title-14-part-17

113

Federal Aviation Administration, DOT

Pt. 17

(3) Ex parte communications regard-

ing solely matters of agency procedure
or practice are not prohibited by this
section.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]

§ 16.303

Procedures for handling ex

parte communications.

A decisional employee who receives

or who makes or knowingly causes to
be made a communication prohibited
by § 16.303 shall place in the public
record of the proceeding:

(a) All such written communications;
(b) Memoranda stating the substance

of all such oral communications; and

randa stating the substance of all oral
responses, to the materials described in
paragraphs (a) and (b) of this section.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]

§ 16.305

Requirement to show cause

and imposition of sanction.

(a) Upon receipt of a communication

knowingly made or knowingly caused
to be made by a party in violation of
§ 16.303, the Associate Administrator or
his designee or the hearing officer may,
to the extent consistent with the inter-
ests of justice and the policy of the un-
derlying statutes, require the party to
show cause why his or her claim or in-
terest in the proceeding should not be
dismissed, denied, disregarded, or oth-
erwise adversely affected on account of
such violation.

(b) The Associate Administrator

may, to the extent consistent with the
interests of justice and the policy of
the underlying statutes administered
by the FAA, consider a violation of
this subpart sufficient grounds for a de-
cision adverse to a party who has
knowingly committed such violation or
knowingly caused such violation to
occur.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]

PART 17—PROCEDURES FOR PRO-

TESTS AND CONTRACT DISPUTES

Subpart A—General

Sec.
17.1

Applicability.

17.3

Definitions.

17.5

Delegation of authority.

17.7

Filing and computation of time.

17.9

Protective orders.

Subpart B—Protests

17.11

Matters not subject to protest.

17.13

Dispute resolution process for pro-

tests.

17.15

Filing a protest.

17.17

Initial protest procedures.

17.19

Motions practice and dismissal or

summary decision of protests.

17.21

Adjudicative Process for protests.

17.23

Protest remedies.

Subpart C—Contract Disputes

17.25

Dispute resolution process for con-

tract disputes.

17.27

Filing a contract dispute.

17.29

Informal resolution period.

17.31

Dismissal or summary decision of con-

tract disputes.

17.33

Adjudicative Process for contract dis-

putes.

Subpart D—Alternative Dispute Resolution

17.35

Use of alternative dispute resolution.

17.37

Election of alternative dispute resolu-

tion process.

17.39

Confidentiality of ADR.

Subpart E—Finality and Review

17.41

Final orders.

17.43

Judicial review.

17.45

Conforming amendments.

17.47

Reconsideration.

Subpart F—Other Matters

17.49

Sanctions.

17.51

Decorum and professional conduct.

17.53

Orders and subpoenas for testimony

and document production.

17.55

Standing orders of the ODRA director.

Subpart G—Pre-Disputes

17.57

Dispute resolution process for Pre-dis-

putes.

17.59

Filing a Pre-dispute.

17.61

Use of alternative dispute resolution.

PPENDIX

ART

17—A

LTERNATIVE

PUTE

ESOLUTION

(ADR)

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14 CFR Ch. I (1–1–24 Edition)

§ 17.1

UTHORITY

: 5 U.S.C. 570–581, 49 U.S.C.

106(f)(2), 40110, 40111, 40112, 46102, 46014, 46105,
46109, and 46110.

OURCE

: 76 FR 55221, Sept. 7, 2011, unless

otherwise noted.

Subpart A—General

§ 17.1

Applicability.

This part applies to all Acquisition

Management System (AMS) bid pro-
tests and contract disputes involving
the FAA that are filed at the Office of
Dispute Resolution for Acquisition
(ODRA) on or after October 7, 2011,
with the exception of those contract
disputes arising under or related to
FAA contracts entered into prior to
April 1, 1996, where such contracts have
not been modified to be made subject
to the FAA AMS. This part also applies
to pre-disputes as described in subpart
G of this part.

§ 17.3

Definitions.

(a)

Accrual means to come into exist-

ence as a legally enforceable claim.

(b)

Accrual of a contract claim means

that all events relating to a claim have
occurred, which fix liability of either
the government or the contractor and
permit assertion of the claim, regard-
less of when the claimant actually dis-
covered those events. For liability to
be fixed, some injury must have oc-
curred. Monetary damages need not
have been incurred, but if the claim is
for money, such damages must be capa-
ble of reasonable estimation. The ac-
crual of a claim or the running of the
limitations period may be tolled on eq-
uitable grounds, including but not lim-
ited to active concealment, fraud, or if
the facts were inherently unknowable.

(c)

Acquisition Management System

(AMS) establishes the policies, guiding
principles, and internal procedures for
the FAA’s acquisition system.

(d)

Adjudicative Process is an adminis-

trative adjudicatory process used to de-
cide protests and contract disputes
where the parties have not achieved
resolution through informal commu-
nication or the use of ADR. The Adju-
dicative Process is conducted by a Dis-
pute Resolution Officer (DRO) or Spe-
cial Master selected by the ODRA Di-
rector to preside over the case in ac-
cordance with Public Law 108–176, Sec-

tion 224, Codified at 49 U.S.C.
40110(d)(4).

(e)

Administrator means the Adminis-

trator of the Federal Aviation Admin-
istration.

(f)

Alternative Dispute Resolution

(ADR) is the primary means of vol-
untary dispute resolution that is em-
ployed by the ODRA. See Appendix A
of this part.

(g)

Compensated Neutral refers to an

impartial third party chosen by the
parties to act as a facilitator, medi-
ator, or arbitrator functioning to re-
solve the protest or contract dispute
under the auspices of the ODRA. The
parties pay equally for the services of a
compensated neutral, unless otherwise
agreed to by the parties. An ODRA
DRO or neutral cannot be a com-
pensated neutral.

(h)

Contract Dispute, as used in this

part, means a written request to the
ODRA seeking, as a matter of right
under an FAA contract subject to the
AMS, the payment of money in a sum
certain, the adjustment or interpreta-
tion of contract terms, or for other re-
lief arising under, relating to, or in-
volving an alleged breach of that con-
tract. A contract dispute does not re-
quire, as a prerequisite, the issuance of
a Contracting Officer final decision.
Contract disputes, for purposes of ADR
only, may also involve contracts not
subject to the AMS.

(i)

Counsel refers to a Legal Rep-

resentative who is an attorney licensed
by a State, the District of Columbia, or
a territory of the United States to
practice law or appear before the
courts of that State or territory.

(j)

Contractor is a party in contrac-

tual privity with the FAA and respon-
sible for performance of a contract’s
requirements.

(k)

Discovery is the procedure where-

by opposing parties in a protest or con-
tract dispute may, either voluntarily
or to the extent ordered by the ODRA,
obtain testimony from, or documents
and information held by, other parties
or non-parties.

(l)

Dispute Resolution Officer (DRO) is

an attorney and member of the ODRA
staff. The term DRO can include the
Director of the ODRA.

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Federal Aviation Administration, DOT

§ 17.7

(m)

Interested party, in the context of

a bid protest, is one whose direct eco-
nomic interest has been or would be af-
fected by the award or failure to award
an FAA contract. Proposed subcontrac-
tors are not ‘‘interested parties’’ with-
in this definition and are not eligible
to submit protests to the ODRA. Sub-
contractors not in privity with the
FAA are not interested parties in the
context of a contract dispute.

(n)

Intervenor is an interested party

other than the protester whose partici-
pation in a protest is allowed by the
ODRA. For a post-award protest, the
awardee of the contract that is the sub-
ject of the protest will be allowed, upon
timely request, to participate as an in-
tervenor in the protest. In such a pro-
test, no other interested parties will be
allowed to participate as intervenors.

(o)

Legal Representative is an indi-

vidual(s) designated to act on behalf of
a party in matters before the ODRA.
Unless otherwise provided under
§§ 17.15(c)(2), 17.27(a)(1), or 17.59(a)(6), a
Notice of Appearance must be filed
with the ODRA containing the name,
address, telephone and facsimile (Fax)
numbers of a party’s legal representa-
tive.

(p)

Neutral refers to an impartial

third party in the ADR process chosen
by the parties to act as a facilitator,
mediator, arbitrator, or otherwise to
aid the parties in resolving a protest or
contract dispute. A neutral can be a
DRO or a person not an employee of
the ODRA.

(q)

ODRA is the FAA’s exclusive

forum acting on behalf of the Adminis-
trator, pursuant to the statutory au-
thority granted by Public Law 108–176,
Section 224, to provide dispute resolu-
tion services and to adjudicate matters
within its jurisdiction. The ODRA may
also provide non-binding dispute reso-
lution services in matters outside of its
jurisdiction where mutually requested
to do so by the parties involved.

(r)

Parties include the protester(s) or

the contractor, the FAA, and any in-
tervenor(s).

(s)

Pre-Disputes mean an issue(s) in

controversy concerning an FAA con-
tract or solicitation that, by mutual
agreement of the parties, is filed with
the ODRA. See subpart G of this part.

(t)

Product Team, as used in these

rules, refers to the FAA organization(s)
responsible for the procurement or con-
tracting activity, without regard to
funding source, and includes the Con-
tracting Officer (CO). The Product
Team, acting through assigned FAA
counsel, is responsible for all commu-
nications with and submissions to the
ODRA in pending matters.

(u)

Screening Information Request (SIR

or Solicitation) means a request by the
FAA for documentation, information,
presentations, proposals, or binding of-
fers concerning an approach to meeting
potential acquisition requirements es-
tablished by the FAA.

(v) A

Special Master is a non-FAA at-

torney or judge who has been assigned
by the ODRA to act as its finder of
fact, and to make findings and rec-
ommendations based upon AMS policy
and applicable law and authorities in
the Adjudicative Process.

§ 17.5

Delegation of authority.

(a) The authority of the Adminis-

trator to conduct dispute resolution
and adjudicative proceedings con-
cerning acquisition matters is dele-
gated to the Director of the ODRA.

(b) The Director of the ODRA may re-

delegate to Special Masters and DROs
such delegated authority in paragraph
(a) of this section as deemed necessary
by the Director for efficient resolution
of an assigned protest or contract dis-
pute, including the imposition of sanc-
tions for the filing of frivolous plead-
ings, making false statements, or other
disciplinary actions. See subpart F of
this part.

§ 17.7

Filing and computation of time.

(a) Filing of a protest or contract dis-

pute may be accomplished by overnight
delivery, by hand delivery, by Fax, or,
if permitted by Order of the ODRA, by
electronic filing. A protest or contract
dispute is considered to be filed on the
date it is received by the ODRA during
normal business hours. The ODRA’s
normal business hours are from 8:30
a.m. to 5 p.m. Eastern Time. A protest
or contract dispute received after the
time period prescribed for filing shall
not be considered timely filed. Service
shall also be made on the Contracting

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§ 17.9

Officer (CO) pursuant to §§ 17.15(e) and
17.27(d).

(b) Submissions to the ODRA after

the initial filing of a protest or con-
tract dispute may be accomplished by
any means available in paragraph (a) of
this section. Copies of all such submis-
sions shall be served on the opposing
party or parties.

are calculated in business days, which
exclude weekends, Federal holidays
and other days on which Federal Gov-
ernment offices in Washington, DC are
not open. In computing time, the day
of the event beginning a period of time
shall not be included. If the last day of
a period falls on a weekend or a Fed-
eral holiday, the first business day fol-
lowing the weekend or holiday shall be
considered the last day of the period.

(d) Electronic Filing—Procedures for

electronic filing may be utilized where
permitted by Order of the ODRA on a
case-by-case basis or pursuant to a
Standing Order of the ODRA permit-
ting electronic filing.

§ 17.9

Protective orders.

(a) The ODRA may issue protective

orders addressing the treatment of pro-
tected information, including pro-
tected information in electronic form,
either at the request of a party or upon
its own initiative. Such information
may include proprietary, confidential,
or source-selection-sensitive material,
or other information the release of
which could result in a competitive ad-
vantage to one or more firms.

(b) The terms of the ODRA’s standard

protective order may be altered to suit
particular circumstances, by negotia-
tion of the parties, subject to the ap-
proval of the ODRA. The protective
order establishes procedures for appli-
cation for access to protected informa-
tion, identification and safeguarding of
that information, and submission of re-
dacted copies of documents omitting
protected information.

issued, counsel or consultants retained
by counsel appearing on behalf of a
party may apply for access to the ma-
terial under the order by submitting an
application to the ODRA, with copies
furnished simultaneously to all parties.
The application shall establish that the

applicant is not involved in competi-
tive decision-making for any firm that
could gain a competitive advantage
from access to the protected informa-
tion and that the applicant will dili-
gently protect any protected informa-
tion received from inadvertent disclo-
sure. Objections to an applicant’s ad-
mission shall be raised within two (2)
days of the application, although the
ODRA may consider objections raised
after that time for good cause.

(d) Any violation of the terms of a

protective order may result in the im-
position of sanctions, including but not
limited to removal of the violator from
the protective order and reporting of
the violator to his or her bar associa-
tion(s), and the taking of other actions
as the ODRA deems appropriate. Addi-
tional civil or criminal penalties may
apply.

Subpart B—Protests

§ 17.11

Matters not subject to protest.

The following matters may not be

protested before the ODRA, except for
review of compliance with the AMS:

(a) FAA purchases from or through,

State, local, and tribal governments
and public authorities;

(b) FAA purchases from or through

other Federal agencies;

§ 17.13

Dispute resolution process for

protests.

(a) Protests concerning FAA SIRs,

solicitations, or contract awards shall
be resolved pursuant to this part.

(b) Potential protestors should,

where possible, attempt to resolve any
issues concerning potential protests
with the CO. Such attempts are not a
prerequisite to filing a protest with the
ODRA.

shall file a protest with the ODRA in
accordance with § 17.15. The protest
time limitations set forth in § 17.15 will
not be extended by attempts to resolve
a potential protest with the CO. Other
than the time limitations specified in
§ 17.15 for the filing of protests, the
ODRA retains the discretion to modify

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§ 17.15

any timeframes established herein in
connection with protests.

(d) In accordance with § 17.17(b), the

ODRA shall convene an initial status
conference for the purpose of sched-
uling proceedings in the protest and to
encourage the parties to consider using
the ODRA’s ADR process to attempt to
resolve the protest, pursuant to sub-
part D of this part. It is the Agency’s
policy to use voluntary ADR to the
maximum extent practicable. If the
parties elect not to attempt ADR, or if
ADR efforts do not completely resolve
the protest, the protest will proceed
under the ODRA Adjudicative Process
set forth in subpart E of this part. In-
formal ADR techniques may be utilized
simultaneously with ongoing adjudica-
tion.

(e) The ODRA Director shall des-

ignate DROs, outside neutrals or Spe-
cial Masters as potential neutrals for
the resolution of protests through
ADR. The ultimate choice of an ADR
neutral is made by the parties partici-
pating in the ADR. The ODRA Director
also shall, at his or her sole discretion,
designate an adjudicating DRO or Spe-
cial Master for each matter. A person
serving as a neutral in an ADR effort
in a matter, shall not serve as an adju-
dicating DRO or Special Master for
that matter.

(f) Multiple protests concerning the

same SIR, solicitation, or contract
award may be consolidated at the dis-
cretion of the ODRA Director, and as-
signed to a single DRO or Special Mas-
ter for adjudication.

(g) Procurement activities, and,

where applicable, contractor perform-
ance pending resolution of a protest,
shall continue during the pendency of a
protest, unless there is a compelling
reason to suspend all or part of the pro-
curement activities or contractor per-
formance. Pursuant to §§ 17.15(d) and
17.17(a), the ODRA may impose a tem-
porary suspension and recommend sus-
pension of award or contract perform-
ance, in whole or in part, for a compel-
ling reason. A decision to suspend pro-
curement activities or contractor per-
formance is made in writing by the Ad-
ministrator or the Administrator’s
delegee upon recommendation of the
ODRA.

§ 17.15

Filing a protest.

(a) An interested party may initiate

a protest by filing with the ODRA in
accordance with § 17.7(a) within the
timeframes set forth in this Section.
Protests that are not timely filed shall
be dismissed. The timeframes applica-
ble to the filing of protests are as fol-
lows:

(1) Protests based upon alleged SIR

or solicitation improprieties that are
apparent prior to bid opening or the
time set for receipt of initial proposals
shall be filed prior to bid opening or
the time set for the receipt of initial
proposals.

(2) In procurements where proposals

are requested, alleged improprieties
that do not exist in the initial solicita-
tion, but which are subsequently incor-
porated into the solicitation, must be
protested not later than the next clos-
ing time for receipt of proposals fol-
lowing the incorporation.

(3) For protests other than those re-

lated to alleged solicitation impropri-
eties, the protest must be filed on the
later of the following two dates:

(i) Not later than seven (7) business

days after the date the protester knew
or should have known of the grounds
for the protest; or

(ii) If the protester has requested a

post-award debriefing from the FAA
Product Team, not later than five (5)
business days after the date on which
the Product Team holds that debrief-
ing.

(b) Protests shall be filed with the

ODRA, AGC–70, Federal Aviation Ad-
ministration, 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.

set forth:

(1) The protester’s name, address,

telephone number, and FAX number;

(2) The name, address, telephone

number, and FAX number of the pro-
tester’s legal representative, and who

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§ 17.17

shall be duly authorized to represent
the protester, to be the point of con-
tact;

(3) The SIR number or, if available,

the contract number and the name of
the CO;

(4) The basis for the protester’s sta-

tus as an interested party;

(5) The facts supporting the timeli-

ness of the protest;

(6) Whether the protester requests a

protective order, the material to be
protected, and attach a redacted copy
of that material;

(7) A detailed statement of both the

legal and factual grounds of the pro-
test, and one (1) copy of each relevant
document;

(8) The remedy or remedies sought by

the protester, as set forth in § 17.23;

(9) The signature of the legal rep-

resentative, or another person duly au-
thorized to represent the protester.

(d) If the protester wishes to request

a suspension of the procurement or
contract performance, in whole or in
part, and believes that a compelling
reason(s) exists to suspend the procure-
ment or contract performance because
of the protested action, the protester
shall, in its initial filing:

(1) Set forth such compelling rea-

son(s), supply all facts and documents
supporting the protester’s position; and

(2) Demonstrate—
(i) The protester has alleged a sub-

stantial case;

(ii) The lack of a suspension would be

likely to cause irreparable injury;

(iii) The relative hardships on the

parties favor a suspension; and

(iv) That a suspension is in the public

interest.

(3) Failure of a protester to provide

information or documents in support of
a requested suspension or failure to ad-
dress the elements of paragraph (d)(2)
of this section may result in the sum-
mary rejection of the request for sus-
pension, or a requirement that the pro-
tester supplement its request prior to
the scheduling of a Product Team re-
sponse to the request under § 17.17(a).

(e) Concurrent with the filing of a

protest with the ODRA, the protester
shall serve a copy of the protest on the
CO and any other official designated in
the SIR for receipt of protests, by
means reasonably calculated to be re-

ceived by the CO on the same day as it
is to be received by the ODRA. The pro-
test shall include a signed statement
from the protester, certifying to the
ODRA the manner of service, date, and
time when a copy of the protest was
served on the CO and other designated
official(s).

(f) Upon receipt of the protest, the

CO shall notify the awardee of a chal-
lenged contract award in writing of the
existence of the protest. The awardee
and/or interested parties shall notify
the ODRA in writing, of their interest
in participating in the protest as inter-
venors within two (2) business days of
receipt of the CO’s notification, and
shall, in such notice, designate a per-
son as the point of contact for the
ODRA.

(g) The ODRA has discretion to des-

ignate the parties who shall participate
in the protest as intervenors. In pro-
tests of awarded contracts, only the
awardee may participate as an inter-
venor as a matter of right.

[76 FR 55221, Sept. 7, 2011, as amended by
Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21,
2017]

§ 17.17

Initial protest procedures.

(a) If, as part of its initial protest fil-

ing, the protester requests a suspension
of procurement activities or contractor
performance in whole or in part, in ac-
cordance with § 17.15(d), the Product
Team shall submit a response to the re-
quest to the ODRA by no later than the
close of business on the date of the ini-
tial scheduling conference or on such
other date as is established by the
ODRA. Copies of the response shall be
furnished to the protester and any in-
tervenor(s) so as to be received within
the same timeframe. The protester and
any intervenor(s) shall have the oppor-
tunity of providing additional com-
ments on the response within two (2)
business days of receiving it. Based on
its review of such submissions, the
ODRA, in its discretion, may—

(1) Decline the suspension request; or
(2) Recommend such suspension to

the Administrator or the Administra-
tor’s designee. The ODRA also may im-
pose a temporary suspension of no
more than ten (10) business days, where
it is recommending that the Adminis-
trator impose a suspension.

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§ 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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§ 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;

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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

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§ 17.31

applicable contract warranty provi-
sions. Any FAA contract disputes
against the contractor based on gross
mistakes amounting to fraud or latent
defects shall be filed with the ODRA
within two (2) years of the date on
which the FAA knew or should have
known of the presence of the fraud or
latent defect.

(d) A party shall serve a copy of the

contract dispute upon the other party,
by means reasonably calculated to be
received on the same day as the filing
is received by the ODRA.

(e) With the exception of the time

limitations established herein for the
filing of contract disputes, the ODRA
retains the discretion to modify any
timeframe established herein in con-
nection with contract disputes.

[76 FR 55221, Sept. 7, 2011, as amended by
Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21,
2017]

§ 17.29

Informal resolution period.

(a) The ODRA process for contract

disputes includes an informal resolu-
tion period of twenty (20) business days
from the date of filing in order for the
parties to attempt to informally re-
solve the contract dispute either
through direct negotiation or with the
assistance of the ODRA. The CO, with
the advice of FAA legal counsel, has
full discretion to settle contract dis-
putes, except where the matter in-
volves fraud.

(b) During the informal resolution

period, if the parties request it, the
ODRA will appoint a DRO for ADR who
will discuss ADR options with the par-
ties, offer his or her services as a po-
tential neutral, and assist the parties
to enter into an agreement for a formal
ADR process. A person serving as a
neutral in an ADR effort in a matter
shall not serve as an adjudicating DRO
or Special Master for that matter.

may be extended at the request of the
parties for good cause.

(d) If the matter has not been re-

solved informally, the parties shall file
joint or separate statements with the
ODRA no later than twenty (20) busi-
ness days after the filing of the con-
tract dispute. The ODRA may extend
this time, pursuant to § 17.27(e). The
statement(s) shall include either:

(1) A joint request for ADR, or an ex-

ecuted ADR agreement, pursuant to
§ 17.37(d), specifying which ADR tech-
niques will be employed; or

(2) Written explanation(s) as to why

ADR proceedings will not be used and
why the Adjudicative Process will be
needed.

(e) If the contract dispute is not com-

pletely resolved during the informal
resolution period, the ODRA’s Adju-
dicative Process will commence unless
the parties have reached an agreement
to attempt a formal ADR effort. As
part of such an ADR agreement the
parties, with the concurrence of the
ODRA, may agree to defer commence-
ment of the adjudication process pend-
ing completion of the ADR or that the
ADR and adjudication process will run
concurrently. If a formal ADR is at-
tempted but does not completely re-
solve the contract dispute, the Adju-
dicative Process will commence.

(f) The ODRA shall hold a status con-

ference with the parties within ten (10)
business days, or as soon thereafter as
is practicable, of the ODRA’s receipt of
a written notification that ADR pro-
ceedings will not be used, or have not
fully resolved the Contract Dispute.
The purpose of the status conference
will be to commence the Adjudicative
Process and establish the schedule for
adjudication.

(g) The submission of a statement

which indicates that ADR will not be
utilized will not in any way preclude
the parties from engaging in non-bind-
ing ADR techniques during the Adju-
dicative Process, pursuant to subpart D
of this part.

§ 17.31

Dismissal or summary decision

of contract disputes.

(a) Any party may request by mo-

tion, or the ODRA on its own initiative
may recommend or direct, that a con-
tract dispute be dismissed, or that a
count or portion thereof be stricken, if:

(1) It was not timely filed;
(2) It was filed by a subcontractor or

other person or entity lacking stand-
ing;

(3) It fails to state a matter upon

which relief may be had; or

(4) It involves a matter not subject to

the jurisdiction of the ODRA.

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14 CFR Ch. I (1–1–24 Edition)

§ 17.33

(b) Any party may request by mo-

tion, or the ODRA on its own initiative
may recommend or direct, that a sum-
mary decision be issued with respect to
a contract dispute, or any count or por-
tion thereof if there are no material
facts in dispute and a party is entitled
to a summary decision as a matter of
law.

dismissal of a contract dispute, or sum-
mary decision, the ODRA will consider
any material facts in dispute in a light
most favorable to the party against
whom the dismissal or summary deci-
sion would be entered, and draw all fac-
tual inferences in favor of that party.

(d) At any time, whether pursuant to

a motion or on its own initiative and
at its discretion, the ODRA may:

(1) Dismiss or strike a count or por-

tion of a contract dispute or enter a
partial summary decision;

(2) Recommend to the Administrator

that the entire contract dispute be dis-
missed or that a summary decision be
entered; or

(3) With a delegation from the Ad-

ministrator, dismiss the entire con-
tract dispute or enter a summary deci-
sion with respect to the entire contract
dispute.

(e) An order of dismissal of the entire

contract dispute or summary decision
with respect to the entire contract dis-
pute, issued either by the Adminis-
trator or by the ODRA, on the grounds
set forth in this section, shall con-
stitute a final agency order. An ODRA
order dismissing or striking a count or
portion of a contract dispute or enter-
ing a partial summary judgment shall
not constitute a final agency order, un-
less and until such ODRA order is in-
corporated or otherwise adopted in a
final agency decision of the Adminis-
trator or the Administrator’s delegee
regarding the remainder of the dispute.

(f) 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 would be entered the opportunity
to respond to a proposed dismissal or
summary decision.

§ 17.33

Adjudicative Process for con-

tract disputes.

(a) The Adjudicative Process for con-

tract disputes will be commenced by
the ODRA Director upon being notified
by the ADR neutral or by any party
that either—

(1) The parties will not be attempting

ADR; or

(2) The parties have not settled all of

the dispute issues via ADR, and it is
unlikely that they can do so within the
time period allotted and/or any reason-
able extension.

(b) In cases initiated by a contractor

against the FAA, within twenty (20)
business days of the commencement of
the Adjudicative Process or as sched-
uled by the ODRA, the Product Team
shall prepare and submit to the ODRA,
with a copy to the contractor, a chron-
ologically arranged and indexed sub-
stantive response, containing a legal
and factual position regarding the dis-
pute and all documents relevant to the
facts and issues in dispute. The con-
tractor will be entitled, at a specified
time, to supplement the record with
additional documents.

against a contractor, within twenty
(20) business days of the commence-
ment of the Adjudicative Process or as
scheduled by the ODRA, the contractor
shall prepare and submit to the ODRA,
with a copy to the Product Team coun-
sel, a chronologically arranged and in-
dexed substantive response, containing
a legal and factual position regarding
the dispute and all documents relevant
to the facts and issues in dispute. The
Product Team will be entitled, at a
specified time, to supplement the
record with additional documents.

(d) Unless timely objection is made,

documents properly filed with the
ODRA will be deemed admitted into
the administrative record. Discovery
requests and responses are not part of
the record and will not be filed with
the ODRA, except in connection with a
motion or other permissible filing. Des-
ignated, relevant portions of such doc-
uments may be filed, with the permis-
sion of the ODRA.

(e) The Director of the ODRA shall

assign a DRO or a Special Master to
conduct adjudicatory proceedings, de-
velop the administrative adjudication

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§ 17.33

record and prepare findings and rec-
ommendations for the review of the
ODRA Director or the Director’s des-
ignee.

(f) The DRO or Special Master may

conduct a status conference(s) as nec-
essary and issue such orders or deci-
sions as are necessary to promote the
efficient resolution of the contract dis-
pute.

(g) At any such status conference, or

as necessary during the Adjudicative
Process, the DRO or Special Master
will:

(1) Determine the appropriate

amount of discovery required;

(2) Review the need for a protective

order, and if one is needed, prepare a
protective order pursuant to § 17.9;

(3) Determine whether any issue can

be stricken; and

(4) Prepare necessary procedural or-

ders for the proceedings.

(h) Unless otherwise provided by the

DRO or Special Master, or by agree-
ment of the parties with the concur-
rence of the DRO or Special Master, re-
sponses to written discovery shall be
due within thirty (30) business days
from the date received.

(i) At a time or at times determined

by the DRO or Special Master, and in
advance of the decision of the case, the
parties shall make individual final sub-
missions to the ODRA and to the DRO
or Special Master, which submissions
shall include the following:

(1) A statement of the issues;
(2) A proposed statement of undis-

puted facts related to each issue to-
gether with citations to the adminis-
trative record or other supporting ma-
terials;

(3) Separate statements of disputed

facts related to each issue, with appro-
priate citations to documents in the
Dispute File, to pages of transcripts of
any hearing or deposition, or to any af-
fidavit or exhibit which a party may
wish to submit with its statement;

(4) Separate legal analyses in support

of the parties’ respective positions on
disputed issues.

(j) Each party shall serve a copy of

its final submission on the other party
by means reasonably calculated so that
the other party receives such submis-
sions on the same day it is received by
the ODRA.

(k) The DRO or Special Master may

decide the contract dispute on the
basis of the administrative record and
the submissions referenced in this sec-
tion, or may, in the DRO or Special
Master’s discretion, direct the parties
to make additional presentations in
writing. The DRO or Special Master
may conduct hearings, and may limit
the hearings to the testimony of spe-
cific witnesses and/or presentations re-
garding 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. Evidentiary hearings on the
record shall be conducted by the
ODRA:

(1) Where the DRO or Special Master

(2) Upon request of any party to the

contract dispute, 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 par-
ties’ written submissions. All witnesses
at any such hearing shall be subject to
cross-examination by the opposing
party and to questioning by the DRO or
Special Master.

(l) The DRO or Special Master shall

prepare findings and recommendations,
which will contain findings of fact, ap-
plication of the principles of the AMS
and other law or authority applicable
to the findings of fact, and a rec-
ommendation for a final FAA order.

(m) The DRO or Special Master shall

conduct a de novo review using the pre-
ponderance of the evidence standard,
unless a different standard is pre-
scribed for a particular issue. Notwith-
standing the above, allegations that
government officials acted with bias or
in bad faith must be established by
clear and convincing evidence.

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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

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.

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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.

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14 CFR Ch. I (1–1–24 Edition)

§ 17.53

Orders and subpoenas for testi-

mony and document production.

(a) Parties are encouraged to seek co-

operative and voluntary production of
documents and witnesses prior to re-
questing a subpoena or an order under
this section.

(b) Upon request by a party, or on his

or her own initiative, a DRO or Special
Master may, for good cause shown,
order a person to give testimony by
deposition and to produce records. Sec-
tion 46104(c) of Title 49 of the United
States Code governs the conduct of
depositions or document production.

or her own initiative, a DRO or Special
Master may, for good cause shown, sub-
poena witnesses or records related to a
hearing from any place in the United
States to the designated place of a
hearing.

(d) A subpoena or order under this

section may be served by a United
States marshal or deputy marshal, or
by any other person who is not a party
and not less than 18 years of age. Serv-
ice upon a person named therein shall
be made by personally delivering a
copy to that person and tendering the
fees for one day’s attendance and the
mileage provided by 28 U.S.C. 1821 or
other applicable law; however, where
the subpoena is issued on behalf of the
Product Team, money payments need
not be tendered in advance of attend-
ance. The person serving the subpoena
or order shall file a declaration of serv-
ice with the ODRA, executed in the
form required by 28 U.S.C. 1746. The
declaration of service shall be filed
promptly with the ODRA, and before
the date on which the person served
must respond to the subpoena or order.

(e) Upon written motion by the per-

son subpoenaed or ordered under this
section, or by a party, made within ten
(10) business days after service, but in
any event not later than the time spec-
ified in the subpoena or order for com-
pliance, the DRO may—

(1) Rescind or modify the subpoena or

order if it is unreasonable and oppres-
sive or for other good cause shown, or

(2) Require the party on whose behalf

the subpoena or order was issued to ad-
vance the reasonable cost of producing
documentary evidence. Where cir-
cumstances require, the DRO may act

upon such a motion at any time after a
copy has been served upon all parties.

(f) The party that requests the DRO

to issue a subpoena or order under this
section shall be responsible for the pay-
ment of fees and mileage, as required
by 49 U.S.C. 46104(d), for witnesses, offi-
cers who serve the order, and the offi-
cer before whom a deposition is taken.

(g) Subpoenas and orders issued

under this section may be enforced in a
judicial proceeding under 49 U.S.C.
46104(b).

§ 17.55

Standing orders of the ODRA

Director.

The Director may issue such Stand-

ing Orders as necessary for the orderly
conduct of business before the ODRA.

Subpart G—Pre-Disputes

§ 17.57

Dispute resolution process for

Pre-disputes.

(a) All potential disputes arising

under contracts or solicitations with
the FAA may be resolved with the con-
sent of the parties to the dispute under
this subpart.

(b) Pre-disputes shall be filed with

the ODRA pursuant to § 17.59.

of Protests and Contract Disputes es-
tablished in §§ 17.15(a) and 17.27(c) will
not be extended by efforts to resolve
the dispute under this subpart.

§ 17.59

Filing a Pre-dispute.

(a) A Pre-dispute must be in writing,

affirmatively state that it is a Pre-dis-
pute pursuant to this subpart, and
shall contain:

(1) The party’s name, address, tele-

phone and Fax numbers and the name,
address, telephone and Fax numbers of
the contractor’s legal representative(s)
(if any);

(2) The contract or solicitation num-

ber and the name of the Contracting
Officer;

(3) A chronological statement of the

facts and of the legal grounds for the
party’s positions regarding the dispute
citing to relevant contract or solicita-
tion provisions and documents and at-
taching copies of those provisions and
documents; and

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Federal Aviation Administration, DOT

Pt. 17, App. A

(4) The signature of a duly authorized

legal representative of the initiating
party.

(b) Pre-disputes shall be filed with

the ODRA, AGC–70, Federal Aviation
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.

with the ODRA, the ODRA will contact
the opposing party to offer its services
pursuant to § 17.57. If the opposing
party agrees, the ODRA will provide
Pre-dispute services. If the opposing
party does not agree, the ODRA Pre-
dispute file will be closed and no serv-
ice will be provided.

[76 FR 55221, Sept. 7, 2011, as amended by
Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21,
2017]

§ 17.61

Use of alternative dispute reso-

lution.

(a) Only non-binding, voluntary ADR

will be used to attempt to resolve a
Pre-dispute pursuant to § 17.37.

(b) ADR conducted under this sub-

part is subject to the confidentiality
requirements of § 17.39.

PPENDIX

ART

17—A

LTERNATIVE

ISPUTE

ESOLUTION

(ADR)

A. The FAA dispute resolution procedures

encourage the parties to protests and con-
tract disputes to use ADR as the primary
means to resolve protests and contract dis-
putes, pursuant to the Administrative Dis-
pute Resolution Act of 1996, Public Law 104–
320, 5 U.S.C. 570–579, and Department of
Transportation and FAA policies to utilize
ADR to the maximum extent practicable.
Under the procedures presented in this part,
the ODRA encourages parties to consider
ADR techniques such as case evaluation, me-
diation, or arbitration.

B. ADR encompasses a number of processes

and techniques for resolving protests or con-
tract disputes. The most commonly used
types include:

(1)

Mediation. The neutral or compensated

neutral ascertains the needs and interests of
both parties and facilitates discussions be-
tween or among the parties and an amicable
resolution of their differences, seeking ap-
proaches to bridge the gaps between the par-
ties’’ respective positions. The neutral or
compensated neutral can meet with the par-
ties separately, conduct joint meetings with
the parties’’ representatives, or employ both
methods in appropriate cases.

(2)

Neutral Evaluation. At any stage during

the ADR process, as the parties may agree,
the neutral or compensated neutral will pro-
vide a candid assessment and opinion of the
strengths and weaknesses of the parties’’ po-
sitions as to the facts and law, so as to facili-
tate further discussion and resolution.

(3)

Binding Arbitration. The ODRA, after

consultation with the United States Depart-
ment of Justice in accordance with the pro-
visions of the Administrative Disputes Reso-
lution Act offers true binding arbitration in
cases within its jurisdiction. The ODRA’s
Guidance for the Use of Binding Arbitration
may be found on its website at:

http://

www.faa.gov/go/odra.

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