title-14-part-17-sec17-37

126

14 CFR Ch. I (1–1–24 Edition)

§ 17.35

(n) The Director of the ODRA may

review the status of any contract dis-
pute in the Adjudicative Process with
the DRO or Special Master.

(o) A DRO or Special Master shall

submit findings and recommendations
to the Director of the ODRA or the Di-
rector’s designee. The findings and rec-
ommendations will be released to the
parties and to the public, upon
issuance of the final FAA order in the
case. Should an ODRA protective order
be issued in connection with the con-
tract dispute, or should the matter in-
volve proprietary or competition-sen-
sitive information, a redacted version
of the findings and recommendations
omitting any protected 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 Government personnel shall
be provided copies of the unredacted
findings and recommendations.

(p) Attorneys’ fees of a qualified pre-

vailing contractor are allowable to the
extent permitted by the EAJA, 5 U.S.C.
504(a)(1).

See 14 CFR part 14.

(q) 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.

Subpart D—Alternative Dispute

Resolution

§ 17.35

Use of alternative dispute reso-

lution.

(a) By statutory mandate, it is the

policy of the FAA to use voluntary
ADR to the maximum extent prac-
ticable to resolve matters pending at
the ODRA. The ODRA therefore uses
voluntary ADR as its primary means of
resolving all factual, legal, and proce-
dural controversies.

(b) The parties are encouraged to

make a good faith effort to explore
ADR possibilities in all cases and to
employ ADR in every appropriate case.
The ODRA uses ADR techniques such

as mediation, neutral evaluation, bind-
ing arbitration or variations of these
techniques as agreed by the parties and
approved by the ODRA. At the begin-
ning of each case, the ODRA assigns a
DRO as a potential neutral to explore
ADR options with the parties and to
convene an ADR process. See § 17.35(b).

will be used where the parties cannot
achieve agreement on the use of ADR;
where ADR has been employed but has
not resolved all pending issues in dis-
pute; or where the ODRA concludes
that ADR will not provide an expedi-
tious means of resolving a particular
dispute. Even where the Adjudicative
Process is to be used, the ODRA, with
the parties’ consent, may employ infor-
mal ADR techniques concurrently with
the adjudication.

§ 17.37

Election of alternative dispute

resolution process.

(a) The ODRA will make its per-

sonnel available to serve as Neutrals in
ADR proceedings and, upon request by
the parties, will attempt to make
qualified non-FAA personnel available
to serve as Neutrals through neutral-
sharing programs and other similar ar-
rangements. The parties may elect to
employ a mutually acceptable com-
pensated neutral at their expense.

(b) The parties using an ADR process

to resolve a protest shall submit an ex-
ecuted ADR agreement containing the
information outlined in paragraph (d)
of this section to the ODRA pursuant
to § 17.17(c). The ODRA may extend this
time for good cause.

to resolve a contract dispute shall sub-
mit an executed ADR agreement con-
taining the information outlined in
paragraph (d) of this section to the
ODRA pursuant to § 17.29.

(d) The parties to a protest or con-

tract dispute who elect to use ADR
must submit to the ODRA an ADR
agreement setting forth:

(1) The agreed ADR procedures to be

used; and

(2) The name of the neutral. If a com-

pensated neutral is to be used, the
agreement must address how the cost
of the neutral’s services will be reim-
bursed.

VerDate Sep<11>2014

09:06 Jun 28, 2024

Jkt 262046

PO 00000

Frm 00136

Fmt 8010

Sfmt 8010

Y:\SGML\262046.XXX

262046

jspears on DSK121TN23PROD with CFR

127

Federal Aviation Administration, DOT

§ 17.51

(e) Non-binding ADR techniques are

not mutually exclusive, and may be
used in combination if the parties
agree that a combination is most ap-
propriate to the dispute. The tech-
niques to be employed must be deter-
mined in advance by the parties and
shall be expressly described in their
ADR agreement. The agreement may
provide for the use of any fair and rea-
sonable ADR technique that is de-
signed to achieve a prompt resolution
of the matter. An ADR agreement for
non-binding ADR shall provide for a
termination of ADR proceedings and
the commencement of adjudication
under the Adjudicative Process, upon
the election of any party. Notwith-
standing such termination, the parties
may still engage with the ODRA in
ADR techniques (neutral evaluation
and/or informal mediation) concur-
rently with adjudication.

(f) Binding arbitration is available

through the ODRA, subject to the pro-
visions of applicable law and the ODRA
Binding Arbitration Guidance dated
October 2001 as developed in consulta-
tion with the Department of Justice.

(g) The parties may, where appro-

priate in a given case, submit to the
ODRA a negotiated protective order for
use in ADR in accordance with the re-
quirements of § 17.9.

§ 17.39

Confidentiality of ADR.

(a) The provisions of the Administra-

tive Dispute Resolution Act of 1996, 5
U.S.C. 571,

et seq., shall apply to ODRA

ADR proceedings.

(b) The ODRA looks to the principles

of Rule 408 of the Federal Rules of Evi-
dence in deciding admissibility issues
related to ADR communications.

of the administrative record unless
otherwise agreed by the parties.

Subpart E—Finality and Review

§ 17.41

Final orders.

All final FAA orders regarding pro-

tests or contract disputes under this
part are to be issued by the FAA Ad-
ministrator or by a delegee of the Ad-
ministrator.

§ 17.43

Judicial review.

(a) A protester or contractor may

seek review of a final FAA order, pur-
suant to 49 U.S.C. 46110, only after the
administrative remedies of this part
have been exhausted.

(b) A copy of the petition for review

shall be filed with the ODRA and the
FAA Chief Counsel on the date that the
petition for review is filed with the ap-
propriate circuit court of appeals.

§ 17.45

Conforming amendments.

The FAA shall amend pertinent pro-

visions of the AMS, standard contract
forms and clauses, and any guidance to
contracting officials, so as to conform
to the provisions of this part.

§ 17.47

Reconsideration.

The ODRA will not entertain re-

quests for reconsideration as a routine
matter, or where such requests evi-
dence mere disagreement with a deci-
sion or restatements of previous argu-
ments. A party seeking reconsideration
must demonstrate either clear errors of
fact or law in the underlying decision
or previously unavailable evidence that
warrants reversal or modification of
the decision. In order to be considered,
requests for reconsideration must be
filed within ten (10) business days of
the date of issuance of the public
version of the subject decision or order.

Subpart F—Other Matters

§ 17.49

Sanctions.

If any party or its representative

fails to comply with an Order or Direc-
tive of the ODRA, the ODRA may enter
such orders and take such other ac-
tions as it deems necessary and in the
interest of justice.

§ 17.51

Decorum and professional con-

duct.

Legal representatives are expected to

conduct themselves at all times in a
civil and respectful manner appro-
priate to an administrative forum. Ad-
ditionally, counsel are expected to con-
duct themselves at all times in a pro-
fessional manner and in accordance
with all applicable rules of professional
conduct.