title-14-part-17-sec17-21

120

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.

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§ 17.23

(7) Unless timely objection is made,

documents properly filed with the
ODRA will be deemed admitted into
the administrative record.

(j) Hearings are not typically held in

bid protests. The DRO or Special Mas-
ter may conduct hearings, and may
limit the hearings to the testimony of
specific witnesses and/or presentations
regarding specific issues. The DRO or
Special Master shall control the nature
and conduct of all hearings, including
the sequence and extent of any testi-
mony. Hearings will be conducted:

(1) Where the DRO or Special Master

determines that there are complex fac-
tual issues in dispute that cannot ade-
quately or efficiently be developed
solely by means of written presen-
tations and/or that resolution of the
controversy will be dependent on his/
her assessment of the credibility of
statements provided by individuals
with first-hand knowledge of the facts;
or

(2) Upon request of any party to the

protest, unless the DRO or Special
Master finds specifically that a hearing
is unnecessary and that no party will
be prejudiced by limiting the record in
the adjudication to the parties’ written
submissions. All witnesses at any such
hearing shall be subject to cross-exam-
ination by the opposing party and to
questioning by the DRO or Special
Master.

(k) The Director of the ODRA may

review the status of any protest in the
Adjudicative Process with the DRO or
Special Master.

(l) After the closing of the adminis-

trative record, the DRO or Special
Master will prepare and submit find-
ings and recommendations to the
ODRA that shall contain the following:

(1) Findings of fact;
(2) Application of the principles of

the AMS, and any applicable law or au-
thority to the findings of fact;

(3) A recommendation for a final

FAA order; and

(4) If appropriate, suggestions for fu-

ture FAA action.

(m) In preparing findings and rec-

ommendations in protests, the DRO or
Special Master, using the preponder-
ance of the evidence standard, shall
consider whether the Product Team ac-
tions in question were consistent with

the requirements of the AMS, had a ra-
tional basis, and whether the Product
Team decision was arbitrary, capri-
cious or an abuse of discretion. Not-
withstanding the above, allegations
that government officials acted with
bias or in bad faith must be established
by clear and convincing evidence.

(n) The DRO or Special Master has

broad discretion to recommend a rem-
edy that is consistent with § 17.23.

(o) A DRO or Special Master shall

submit findings and recommendations
only to the Director of the ODRA or
the Director’s designee. The findings
and recommendations will be released
to the parties and to the public upon
issuance of the final FAA order in the
case. If an ODRA protective order was
issued in connection with the protest,
or if a protest involves proprietary or
competition-sensitive information, a
redacted version of the findings and
recommendations, omitting any pro-
tected information, shall be prepared
wherever possible and released to the
public, as soon as is practicable, along
with a copy of the final FAA order.
Only persons admitted by the ODRA
under the protective order and Govern-
ment personnel shall be provided cop-
ies of the unredacted findings and rec-
ommendations that contain propri-
etary or competition-sensitive infor-
mation.

(p) Other than communications re-

garding purely procedural matters or
ADR, there shall be no substantive

parte communication between ODRA
personnel and any principal or rep-
resentative of a party concerning a
pending or potentially pending matter.
A potential or serving ADR neutral
may communicate on an

ex parte basis

to establish or conduct the ADR.

§ 17.23

Protest remedies.

(a) The ODRA has broad discretion to

recommend and impose protest rem-
edies that are consistent with the AMS
and applicable law. Such remedies may
include, but are not limited to one or a
combination of, the following:

(1) Amend the SIR;
(2) Refrain from exercising options

under the contract;

(3) Issue a new SIR;
(4) Require a recompetition or reval-

uation;