title-14-part-17-sec17-19

119

Federal Aviation Administration, DOT

§ 17.19

(b) Within five (5) business days of

the filing of a protest, or as soon there-
after as practicable, the ODRA shall
convene an initial status conference for
purposes of:

(1) Reviewing the ODRA’s ADR and

adjudication procedures and estab-
lishing a preliminary schedule;

(2) Identifying legal or other prelimi-

nary or potentially dispositive issues
and answering the parties’ questions
regarding the ODRA process;

(3) Dealing with issues related to pro-

tected information and the issuance of
any needed protective order;

(4) Encouraging the parties to con-

sider using ADR;

(5) Appointing a DRO as a potential

ADR neutral to assist the parties in
considering ADR options and devel-
oping an ADR agreement; and

(6) For any other reason deemed ap-

propriate by the DRO or by the ODRA.

will have five (5) business days from
the date of the initial status con-
ference to decide whether they will at-
tempt to use an ADR process in the
case. With the agreement of the ODRA,
ADR may be used concurrently with
the adjudication of a protest. See
§ 17.37(e).

(d) If the Product Team and protester

elect to use ADR proceedings to resolve
the protest, they will agree upon the
neutral to conduct the ADR pro-
ceedings (either an ODRA DRO or a
compensated neutral of their own
choosing) pursuant to § 17.37, and shall
execute and file with the ODRA a writ-
ten ADR agreement. Agreement of any
intervenor(s) to the use of ADR or the
resolution of a dispute through ADR
shall not be required.

(e) If the Product Team or protester

indicate that ADR proceedings will not
be used, or if ADR is not successful in
resolving the entire protest, the ODRA
Director upon being informed of the
situation, will schedule an adjudication
of the protest.

§ 17.19

Motions practice and dismissal

or summary decision of protests.

(a) Separate motions generally are

discouraged in ODRA bid protests.
Counsel and parties are encouraged to
incorporate any such motions in their
respective agency responses or com-

ments. Parties and counsel are encour-
aged to attempt to resolve typical mo-
tions issues through the ODRA ADR
process. The ODRA may rule on any
non-dispositive motion, where appro-
priate and necessary, after providing
an opportunity for briefing on the mo-
tion by all affected parties. Unjustifi-
able, inappropriate use of motions may
result in the imposition of sanctions.
Where appropriate, a party may re-
quest by dispositive motion to the
ODRA, or the ODRA may recommend
or order, that:

(1) The protest, or any count or por-

tion of a protest, be dismissed for lack
of jurisdiction, timeliness, or standing
to pursue the protest;

(2) The protest, or any count or por-

tion of a protest, be dismissed, if frivo-
lous or without basis in fact or law, or
for failure to state a claim upon which
relief may be had;

(3) A summary decision be issued

with respect to the protest, or any
count or portion of a protest, if there
are no material facts in dispute and a
party is entitled to summary decision
as a matter of law.

(b) In connection with consideration

of possible dismissal or summary deci-
sion, the ODRA shall consider any ma-
terial facts in dispute, in a light most
favorable to the party against whom
the dismissal or summary decision
would operate and draw all factual in-
ferences in favor of the non-moving
party.

on its own initiative, the ODRA may,
at any time, exercise its discretion to:

(1) Recommend to the Administrator

dismissal or the issuance of a summary
decision with respect to the entire pro-
test;

(2) Dismiss the entire protest or issue

a summary decision with respect to the
entire protest, if delegated that au-
thority by the Administrator; or

(3) Dismiss or issue a summary deci-

sion with respect to any count or por-
tion of a protest.

(d) A dismissal or summary decision

regarding the entire protest by either
the Administrator, or the ODRA by
delegation, shall be construed as a final
agency order. A dismissal or summary
decision that does not resolve all
counts or portions of a protest shall

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14 CFR Ch. I (1–1–24 Edition)

§ 17.21

not constitute a final agency order, un-
less and until such dismissal or deci-
sion is incorporated or otherwise
adopted in a decision by the Adminis-
trator (or the ODRA, by delegation) re-
garding the entire protest.

(e) Prior to recommending or enter-

ing either a dismissal or a summary de-
cision, either in whole or in part, the
ODRA shall afford all parties against
whom the dismissal or summary deci-
sion is to be entered the opportunity to
respond to the proposed dismissal or
summary decision.

§ 17.21

Adjudicative Process for pro-

tests.

(a) Other than for the resolution of

preliminary or dispositive matters, the
Adjudicative Process for protests will
be commenced by the ODRA Director
pursuant to § 17.17(e).

(b) The Director of the ODRA shall

appoint a DRO or a Special Master to
conduct the adjudication proceedings,
develop the administrative record, and
prepare findings and recommendations
for review of the ODRA Director.

conduct such proceedings and prepare
procedural orders for the proceedings
as deemed appropriate; and may re-
quire additional submissions from the
parties.

(d) The Product Team response to the

protest will be due to be filed and
served ten (10) business days from the
commencement of the ODRA Adjudica-
tion process. The Product Team re-
sponse shall consist of a written chron-
ological, supported statement of pro-
posed facts, and a written presentation
of applicable legal or other defenses.
The Product Team response shall cite
to and be accompanied by all relevant
documents, which shall be chrono-
logically indexed, individually tabbed,
and certified as authentic and com-
plete. A copy of the response shall be
furnished so as to be received by the
protester and any intervenor(s) on the
same date it is filed with the ODRA. In
all cases, the Product Team shall indi-
cate the method of service used.

(e) Comments of the protester and

the intervenor on the Product Team re-
sponse will be due to be filed and
served five (5) business days after their
receipt of the response. Copies of such

comments shall be provided to the
other participating parties by the same
means and on the same date as they
are furnished to the ODRA. Comments
may include any supplemental relevant
documents.

(f) The ODRA may alter the schedule

for filing of the Product Team response
and the comments for good cause or to
accommodate the circumstances of a
particular protest.

(g) The DRO or Special Master may

convene the parties and/or their rep-
resentatives, as needed for the Adju-
dicative Process.

(h) If, in the sole judgment of the

DRO or Special Master, the parties
have presented written material suffi-
cient to allow the protest to be decided
on the record presented, the DRO or
Special Master shall have the discre-
tion to decide the protest on that basis.

(i) The parties may engage in lim-

ited, focused discovery with one an-
other and, if justified, with non-par-
ties, so as to obtain information rel-
evant to the allegations of the protest.

(1) The DRO or Special Master shall

manage the discovery process, includ-
ing limiting its length and availability,
and shall establish schedules and dead-
lines for discovery, which are con-
sistent with timeframes established in
this part and with the FAA policy of
providing fair and expeditious dispute
resolution.

(2) The DRO or Special Master may

also direct the parties to exchange, in
an expedited manner, relevant, non-
privileged documents.

(3) Where justified, the DRO or Spe-

cial Master may direct the taking of
deposition testimony, however, the
FAA dispute resolution process does
not contemplate extensive discovery.

(4) The use of interrogatories and re-

quests for admission is not permitted
in ODRA bid protests.

(5) Where parties cannot voluntarily

reach agreement on a discovery-related
issue, they may timely seek assistance
from an ODRA ADR neutral or may file
an appropriate motion with the ODRA.
Parties may request a subpoena.

(6) Discovery requests and responses

are not part of the record and will not
be filed with the ODRA, except in con-
nection with a motion or other permis-
sible filing.