title-14-part-17-sec17-23

121

Federal Aviation Administration, DOT

§ 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;

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14 CFR Ch. I (1–1–24 Edition)

§ 17.25

(5) Terminate an existing contract

for the FAA’s convenience;

(6) Direct an award to the protester;
(7) Award bid and proposal costs; or
(8) Any other remedy consistent with

the AMS that is appropriate under the
circumstances.

(b) In determining the appropriate

recommendation, the ODRA may con-
sider the circumstances surrounding
the procurement or proposed procure-
ment including, but not limited to: the
nature of the procurement deficiency;
the degree of prejudice to other parties
or to the integrity of the acquisition
system; the good faith of the parties;
the extent of performance completed;
the feasibility of any proposed remedy;
the urgency of the procurement; the
cost and impact of the recommended
remedy; and the impact on the Agen-
cy’s mission.

protester are allowable to the extent
permitted by the Equal Access to Jus-
tice Act, 5 U.S.C. 504(a)(1) (EAJA) and
14 CFR part 14.

Subpart C—Contract Disputes

§ 17.25

Dispute resolution process for

contract disputes.

(a) All contract disputes arising

under contracts subject to the AMS
shall be resolved under this subpart.

(b) Contract disputes shall be filed

with the ODRA pursuant to § 17.27.

recommend remedies for a contract
dispute that are consistent with the
AMS and applicable law, including
such equitable remedies or other rem-
edies as it deems appropriate.

§ 17.27

Filing a contract dispute.

(a) Contract disputes must be in writ-

ing and should contain:

(1) The contractor’s name, address,

telephone and Fax numbers and the
name, address, telephone and Fax num-
bers of the contractor’s legal represent-
ative(s) (if any) for the contract dis-
pute;

(2) The contract number and the

name of the Contracting Officer;

(3) A detailed chronological state-

ment of the facts and of the legal
grounds underlying the contract dis-
pute, broken down by individual claim

item, citing to relevant contract provi-
sions and attaching copies of the con-
tract and other relevant documents;

(4) Information establishing the

ODRA’s jurisdiction and the timeliness
of the contract dispute;

(5) A request for a specific remedy,

and the amount, if known, of any mon-
etary remedy requested, together with
pertinent cost information and docu-
mentation (

e.g., invoices and cancelled

checks). Supporting documentation
should be broken down by individual
claim item and summarized; and

(6) The signature of a duly authorized

representative of the initiating party.

(b) Contract Disputes shall be filed

with the ODRA, AGC–70, Federal Avia-
tion Administration, telephone (202)
267–3290 as follows:

(1) 600 Independence Avenue SW.,

Room 2W100, Washington, DC 20591 for
filing by hand delivery, courier or
other form of in-person delivery;

(2) 800 Independence Avenue SW.,

Washington, DC 20591 [Attention: AGC–
70, Wilbur Wright Bldg., Room 2W100]
for filing by U.S. Mail; or

(3) Numbers (202) 267–3720 or alternate

(202) 267–1293 for filing by facsimile.

FAA shall be filed with the ODRA
within two (2) years of the accrual of
the contract claim involved. A con-
tract dispute by the FAA against a
contractor (excluding contract disputes
alleging warranty issues, fraud or la-
tent defects) likewise shall be filed
within two (2) years of the accrual of
the contract claim. If an underlying
contract entered into prior to the effec-
tive date of this part provides for time
limitations for filing of contract dis-
putes with the ODRA, which differ
from the aforesaid two (2) year period,
the limitation periods in the contract
shall control over the limitation period
of this section. In no event will either
party be permitted to file with the
ODRA a contract dispute seeking an
equitable adjustment or other damages
after the contractor has accepted final
contract payment, with the exception
of FAA contract disputes related to
warranty issues, gross mistakes
amounting to fraud or latent defects.
FAA contract disputes against the con-
tractor based on warranty issues must
be filed within the time specified under