[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Rules and Regulations]
[Pages 55217-55230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22842]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 17
[Docket No. FAA-2010-0840; Amdt. No. 17-1]
RIN 2120-AJ82
Procedures for Protests and Contracts Dispute
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action updates, simplifies, and streamlines the current
regulations governing the procedures for bid protests brought against
the FAA and contract disputes brought against or by the FAA. It also
adds a voluntary dispute avoidance and early resolution process. This
action ensures the regulations reflect the changes that have evolved
since they were first implemented in 1999. The intended effect of this
action is to further improve the protest and dispute process.
DATES: Effective October 7, 2011.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see the How
To Obtain Additional Information section of this document.
FOR FURTHER INFORMATION CONTACT: Marie A. Collins, Senior Attorney and
Dispute Resolution Officer, FAA Office of Dispute Resolution for
Acquisition, AGC-70, Room 8332, Federal Aviation Administration, 400
7th Street, SW., Washington, DC 20590, telephone (202) 366-6400.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking and Background
In 1995 Congress, through the Department of Transportation
Appropriations Act,\1\ directed the FAA ``to develop and implement, not
later than April 1, 1996, an acquisition management system that
addressed the unique needs of the agency and, at a minimum, provided
for more timely and cost effective acquisitions of equipment and
materials.'' The Act instructed the FAA to design the system,
notwithstanding provisions of Federal acquisition law, and to not use
certain provisions of Federal acquisition law. In response, the FAA
developed the Acquisition Management System (AMS) for the management of
FAA procurement. The AMS included a system of policy guidance that
maximized the use of agency discretion in the interest of best business
practices. As a part of the AMS, the FAA created the Office of Dispute
Resolution for Acquisition (ODRA) to facilitate the Administrator's
review of procurement protests and contract disputes. In a 1996 notice
\2\ published in the Federal Register, the FAA announced the creation
of the ODRA and stated the agency would promulgate rules of procedure
governing the dispute resolution process.
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\1\ Public Law 104-50, 109 Stat. 436 (November 15, 1995).
\2\ 61 FR 24348; May 14, 1996.
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In August 1998, the FAA issued a Notice of Proposed Rulemaking
(NPRM) \3\ that proposed regulations under 14 CFR part 17 for the
conduct of protests and contract disputes under the FAA AMS. The
comment period for the NPRM closed on October 26, 1998. On June 18,
1999,\4\ the FAA published the final rule entitled, Procedures for
Protests and Contract Disputes; Amendment of Equal Access to Justice
Act Regulations, which codified (effective June 28, 1999) the
procedures governing the dispute resolution process. On August 31,
1999, the FAA published a document \5\ that made certain corrections to
the June 1999 final rule.
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\3\ 63 FR 45372; August 25, 1998.
\4\ 64 FR 32926; June 18, 1999.
\5\ 64 FR 47361; August 31, 1999.
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In addition to the rules of procedures, ODRA operates pursuant to
delegations of authority from the Administrator. In a memorandum signed
by the Administrator on July 29, 1998 (1998 Delegation),\6\ the
Administrator generally authorized the ODRA through its Director to
provide dispute resolution services including administrative
adjudication of all bid protests and contract disputes under the AMS.
The 1998 Delegation further provided that all final decisions must be
executed by the Administrator. The 1998 Delegation was expanded by a
Delegation dated March 27, 2000 (2000 Delegation), which provided
additional authority to the ODRA Director ``to execute and issue, on
behalf of the Administrator, Orders and Final Decisions for the
Administrator in all matters within the ODRA's jurisdiction valued at
not more than $1 Million.'' \7\ The 2000 Delegation was superseded by a
Delegation of Authority from the Administrator, dated March 10, 2004
(2004 Delegation), which increased the dollar limit of the final
decisional authority of the ODRA Director from $1 Million to $5
Million.\8\ The 2004 Delegation was superseded by another Delegation of
Authority dated March 31, 2010 (2010 Delegation), which increased the
dollar limit of the final decisional authority of the ODRA Director
from $5 Million to $10 Million.\9\
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\6\ The FAA published the text of the delegations set forth in
the July 29, 1998 memorandum in the Federal Register (see 63 FR
49151; September 14, 1998).
\7\ 65 FR 19958-01; April 13, 2000.
\8\ 69 FR 17469-02; April 2, 2004.
\9\ The 2010 Delegation was issued by the Administrator in a
memorandum dated March 31, 2010. Although the FAA has not yet
published the text of the memorandum in the Federal Register, the
public can view the memorandum itself at http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc70/odra_process/.
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Congress provided further confirmation about the FAA's dispute
resolution authority in the Vision 100-Century of Aviation
Reauthorization Act of 2003 (2003 Reauthorization Act), see Public Law
108-176, Sec. 224(b), 117 Stat. 2490, 2528 (codified as amended at 49
U.S.C. 40110(d)(4)), which confirmed the ODRA's exclusive jurisdiction.
Specifically, the 2003 Reauthorization Act expressly provided at
Subsection (b)(2)(4) under the title ``Adjudication of Certain Bid
Protests and Contract Disputes,'' that ``[a] bid protest or contract
dispute that is not addressed or resolved through alternative dispute
resolution shall be adjudicated by the Administrator, through Dispute
Resolution Officers or Special Masters of the Federal Aviation
Administration Office of Dispute Resolution for Acquisition, acting
pursuant to Sections 46102, 46104, 46105, 46106 and 46107 and shall be
subject to judicial review under Section 46110 and Section 504 of Title
5.''
The ODRA dispute resolution procedures encourage the parties to
[[Page 55218]]
protests and contract disputes to use Alternative Dispute Resolution
(ADR) as the primary means to resolve protests and contract disputes,
pursuant to the Administrative Dispute Resolution Act of 1996
(``ADRA''), Public Law 104-320, 5 U.S.C. 570-579, and in consonance
with Department of Transportation and FAA policies to maximize the use
of ADR to the extent possible. Under these procedures, the ODRA
actively encourages the parties to consider ADR techniques such as case
evaluation, mediation, arbitration, or other types of ADR. In this
regard, on October 15, 2001, the FAA published in the Federal Register
Final Guidance (66 FR 52475) for the use of binding arbitration for
purposes of resolving bid protests and contract disputes relating to
procurements and contracts under the FAA AMS after receiving the
concurrence of the Attorney General in accordance with Section 575 of
the ADRA. Additionally, the ODRA developed an informal pre-dispute
process, which provides voluntary dispute avoidance services that are
available to parties upon request.
On January 12, 2011, the FAA published the Procedures for Protests
and Contracts Dispute NPRM,\10\ which proposed to update, simplify and
streamline the procedures for bid protests against the FAA and contract
disputes brought against or by the FAA. The NPRM had a 60-day comment
period, which ended March 14, 2011.
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\10\ 76 FR 2035; January 12, 2011.
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Statement of the Problem
Since the issuance of the FAA's rules of procedure more than 10
years ago, the ODRA's statutory and regulatory authorities for
conducting a dispute resolution process evolved, along with the body of
case law interpreting those rules. The ODRA's implementation of these
rules of procedure also resulted in the identification of procedural
issues in need of clarification to provide uniform guidance. The ODRA
further identified certain aspects of the rules that need revision to
reflect evolving practices at the ODRA, as well as evolving dispute
resolution practices in general. An example of such practices is the
increased emphasis on early intervention and dispute avoidance efforts.
Overview of Final Rule
In order to address the changing environment with respect to the
FAA's dispute resolution process, the agency adopts the rules proposed
in the Procedures for Protests and Contracts Dispute NPRM it published
on January 12, 2011. Today's final rule revises part 17 to incorporate
the ODRA's evolving practices; reflect the availability of a pre-
dispute process; reorganize and streamline the rules for ease of use;
and harmonize the existing part 17 rules with current statutory and
other authority.
The final rule reorganizes and consolidates for ease of use the
current part 17 procedures for adjudicating protests and contract
disputes. The procedures related to the adjudicative process for
protests and for contract disputes that are currently in subpart E are
now included in subpart B and subpart C, respectively. The finality and
review provisions have been moved from subpart F to subpart E.
Also, today's final rule includes streamlined procedures, as well
as expanded coverage in areas where guidance was lacking or a process
has evolved over time. Examples of expanded coverage include the
addition of a section on the confidentiality of ADR (Sec. 17.39) and a
section for filing requests for reconsideration (Sec. 17.47). In
addition, new sections have been added to subpart F to address ``other
matters'' like sanctions and professional conduct. Further, new subpart
G has been added to address procedures for filing pre-disputes.
Summary of the NPRM
The NPRM proposed to update, simplify, and streamline the FAA's
regulations governing the procedures for bid protests brought against
the FAA and contract disputes brought against or by the FAA. It also
proposed to add a voluntary dispute avoidance and early resolution
process. The FAA published the NPRM in the Federal Register on January
12, 2011 with a 60-day comment period. The comment period ended on
March 14, 2011. No comments were received to the rulemaking docket. You
may refer to the NPRM for further details.
Discussion of Final Rule
A discussion, organized by subpart, and excluding minor editorial
revisions and clarifications, of the adopted changes to 14 CFR part 17,
follows. Additionally, even though we received no comments, the FAA has
made non-substantive editorial and clarifying changes to the NPRM which
are explicitly identified below.
Subpart A--General
Subpart A is revised as noted below.
Definitions (Sec. 17.3)
The following new definitions are added to this section:
Adjudicative Process, Default Adjudicative Process, Counsel,
Contractor, Legal Representative, and Pre-disputes. An additional
editorial change was made to correct the sentence structure of
paragraph (s) by relocating the phrase ``of the parties.''
Filing and Computation of Time (Sec. 17.7)
Paragraph (c) is revised to clarify that ``other days on which
Federal Government offices in Washington, DC are not open'' is an
excluded timeframe in calculating time limits for filings. In addition,
paragraph (d) is added to allow the use of electronic filing where
permitted by the ODRA.
Protective Orders (Sec. 17.9)
Paragraph (d) is revised to explain the type of sanctions that
could be imposed if a protective order is violated.
Subpart B--Protests
In subpart B, current Sec. 17.21 (Protest remedies) is renumbered
as Sec. 17.23, and the Adjudicative process for protests section that
is currently in subpart E is moved to Sec. 17.21.
Filing a Protest (Sec. 17.15)
Paragraph (d)(2) is revised to make clear the standard of review
for a request for a suspension or delay of the procurement. Also,
paragraph (d)(3) is added to explain the possible consequences of
protesters'' failure to provide appropriate supporting documentation in
their requests to suspend a procurement or contract performance. An
additional editorial change was made to correct the sentence structure
of paragraph (a)(1) by relocating the phrase ``SIR or solicitation,''
and to paragraph (d)(4) by substituting the word ``That'' for
``Whether.''
Initial Protest Procedures (Sec. 17.17)
In Sec. 17.17(a), the timeframes for responding to a request for a
suspension or delay of the procurement are revised according to the
established ODRA practice of granting an extension until the date of
the initial status conference. In Sec. 17.17(b), the purpose of the
initial status conference is clarified. In Sec. 17.17(c), the
requirement that parties file a joint statement about whether they are
pursuing ADR, and the adjudication timeframes that automatically begin
when no ADR is contemplated are removed. An additional editorial change
was made to correct the sentence structure by substituting the word
``If'' for ``Should'' in paragraphs (d) and (e).
[[Page 55219]]
Motions Practice and Dismissal or Summary Decision of Protests (Sec.
17.19)
Paragraph (a) is revised to clarify the use of appropriate motions
for dismissal or summary decision of protests and the ODRA's standard
of review for such motions. Paragraph (d) is revised to clarify when
such a decision is construed as a final agency order. An additional
editorial change was made to provide consistency with Sec. 17.31(a)
which states the same standard in a more concise manner.
Adjudicative Process for Protests (Sec. 17.21)
In addition to moving the procedures for the Adjudicative Process
for protests from current Sec. 17.37 of subpart E to proposed Sec.
17.21 of subpart B, this section is revised to more fully address the
management of the discovery process and the type of discovery that is
authorized. This section further is revised to delineate the ODRA's
standard of review for protests, the development of the administrative
record, and under what circumstances ex parte communications are
permitted in protests. In addition, the revisions to this section
address the procedures for preparing and issuing the ODRA's findings
and recommendations and final FAA order. An additional editorial change
was made for clarification by replacing the words ``to pursue'' with
``for.''
Protest Remedies (Sec. 17.23)
Paragraph (b) of this section is revised to identify the factors
the ODRA considers in determining an appropriate remedy.
Subpart C--Contract Disputes
In subpart C, current Sec. Sec. 17.23, 17.25, 17.27, and 17.29 are
renumbered as Sec. Sec. 17.25, 17.27, 17.29 and 17.31, respectively.
Section 17.33 (Adjudicative process for contract disputes), which has
been moved from current Sec. 17.39 of subpart E, is added to proposed
subpart C. Also, the requirement in current Sec. 17.27 (Submission of
joint or separate statements) is deleted. An additional editorial
change was made to correct the sentence structure in Sec. 17.21 (p) by
substituting the words ``if'' for ``should'' and ``be'' for ``was.'' An
additional editorial change was made to delete the redundant phrase
``or more.''
Filing a Contract Dispute (Sec. 17.25)
Paragraph (a) is revised to provide additional guidance on the
information to be included in the contract dispute. Paragraph (e) is
added to state the ODRA retains the discretion to modify any timeframe
established by the regulations in connection to contract disputes.
Informal Resolution Period (Sec. 17.29)
This section is revised to conform to current practice regarding
the informal resolution process. This includes clarifications related
to scheduling and assigning a potential neutral for ADR.
Dismissal or Summary Decision of Contract Disputes (Sec. 17.31)
Section 17.31 is revised to clarify the standard for requesting a
dismissal or summary decision, and the process for responding to and
issuing a decision on a request for dismissal or summary decision. This
section also is revised to clarify when such a decision is to be
construed as a final agency order.
Adjudicative Process for Contract Disputes (Sec. 17.33)
In addition to moving this section from current Sec. 17.39 of
subpart E, Sec. 17.33 is revised to clarify that the process for
submitting the Dispute File applies to cases initiated by the
contractor or alternatively by the FAA. Also, it is revised to more
fully explain what documents will be admitted into the administrative
record and the timeframes for responding to written discovery. Further,
the section is revised to streamline the requirements for final
submissions. Additionally, the revisions state that the ODRA must
conduct a de novo review using the preponderance of the evidence
standard, unless a different standard is required. The revisions also
identify the circumstances under which ex parte communications are
permitted in contract disputes. An additional editorial change was made
to Sec. 17.33 (g)(1) to delete the unnecessary phrase ``to resolve the
dispute.''
Subpart D--Alternative Dispute Resolution
The current sections under subpart D are renumbered from Sec. Sec.
17.31 and 17.33 to Sec. Sec. 17.35 and 17.37, respectively. Also, a
new Sec. 17.39 (Confidentiality of ADR) is added to provide for the
applicability of the Administrative Dispute Resolution Act of 1996, 5
U.S.C. 571 et seq., and to clarify how ADR communications are treated.
Further, current Sec. 17.35 (Selection of neutrals for the alternative
dispute resolution process) is deleted. An additional editorial
correction was made to Sec. 17.37 (e) to delete the word ``informal.''
An additional revision was made to Sec. 17.39 (c) to reflect current
practice permitting the parties to agree to include ADR communications
in the administrative record.
Subpart E--Finality and Review
As noted previously, Sec. Sec. 17.37 and 17.39 of current subpart
E (Default Adjudicative Process) is moved to subparts B (Sec. 17.21)
and C (Sec. 17.33), respectively. In today's final rule, the
requirements in current subpart F (Finality and Review--Sec. Sec.
17.41, 17.43, and 17.45) are moved to subpart E. Also, Sec. 17.47
(Reconsideration) is added to subpart E to provide the timeframe for
filing requests for reconsideration and to state the standard for
reconsideration according to ODRA precedent.
Subpart F--Other Matters
Subpart F is revised to add sections covering sanctions, decorum
and professional conduct, the use of orders and subpoenas for testimony
and document production, and Standing Orders of the ODRA Director.
Subpart G--Pre-Disputes
A new subpart (subpart G) is added. This subpart makes clear that
the pre-dispute process applies to all potential disputes arising under
contracts or solicitations with the FAA. Also, it sets forth the
process for filing a pre-dispute. Further, it clarifies the non-binding
voluntary nature of the pre-dispute process and that it is subject to
the confidentiality requirements of Sec. 17.39.
Appendix A to Part 17--Alternative Dispute Resolution (ADR)
Appendix A is revised to eliminate the description of ``Minitrial''
and to add a provision that addresses and clarifies the use of binding
arbitration.
Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Orders 12866 and 13563 direct that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
requires agencies to analyze the economic impact of regulatory changes
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39)
prohibits agencies from setting standards that create unnecessary
obstacles to the foreign commerce of the United States. In developing
U.S. standards, this Trade Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) requires agencies to prepare a written assessment of
the costs, benefits, and other effects of proposed or final rules that
include
[[Page 55220]]
a Federal mandate likely to result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impact of the final rule.
Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it to be included in the preamble if a
full regulatory evaluation of the costs and benefits is not prepared.
Such a determination has been made for this final rule.
The reasoning for this determination follows: Under the FAA's
Acquisition Management System, the Office of Dispute Resolution for
Acquisition (ODRA) manages the dispute resolution process, including
administrative adjudication of all procurement protests and contract
disputes. This final rule simplifies and clarifies the current part 17
regulations under which ODRA operates, including clarifying language
and definitions, reorganization and consolidation of certain sections,
and simplification and clarification of certain procedures such as
filing requirements. These changes will make it easier (less costly) to
use the dispute resolution process.
In addition, the final rule is updated to incorporate changes in
statutory authority and additional authority delegated by the
Administrator to ODRA (these changes will have no effect on expected
costs). The rulemaking also will codify a voluntary dispute avoidance
and early resolution process that ODRA is already using. The voluntary
process is inherently less costly than the more formal dispute
resolution process. The FAA expects that codification of the voluntary
process will increase its use, thereby lowering the overall cost of
dispute resolutions.
Since no comments were received regarding our determination in the
NPRM that the benefits exceed the costs, the FAA expects the final rule
to have benefits that exceed the costs. The FAA therefore has
determined that this final rule does not warrant a full regulatory
evaluation.
The FAA has also determined that this final rule is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, and is not ``significant'' as defined in DOT's
Regulatory Policies and Procedures.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
As noted above, the changes to part 17 are either cost beneficial
or have no effect on costs. We received no comments regarding the
initial regulatory flexibility analysis determination of no significant
economic impact. Accordingly, the final rule will not have a
significant impact on a substantial number of small entities.
Therefore, as the FAA Administrator, I certify that this final rule
will not have a significant economic impact on a substantial number of
small entities.
International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this final rule and determined it will
have little or no effect on international trade as it applies to both
foreign and domestic contractors with the FAA.
Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) in any one
year by State, local, and tribal governments, in the aggregate, or by
the private sector; such a mandate is deemed to be a ``significant
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $140.8 million.
This final rule does not contain such a mandate. The requirements
of Title II do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We have determined that
this action will not have a substantial direct effect on the States, on
the relationship between the national Government and the States, or on
the distribution of power and responsibilities among the various levels
of government, and, therefore, will not have federalism implications.
Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this final rule qualifies for the categorical exclusion
identified in paragraph 312d and involves no extraordinary
circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We
[[Page 55221]]
have determined that it is not a ``significant energy action'' under
the executive order, it is not a ``significant regulatory action''
under Executive Order 12866 and DOT's Regulatory Policies and
Procedures, and it is not likely to have a significant adverse effect
on the supply, distribution, or use of energy.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new requirement for information collection associated with
this final rule.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
Executive Order Determinations
Executive Order 12866
See the ``Regulatory Evaluation'' discussion in the ``Regulatory
Notices and Analyses'' section elsewhere in this preamble.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency determined
that this action will not have a substantial direct effect on the
States, or the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, does not have Federalism
implications.
Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under the executive order and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
How To Obtain Additional Information
Rulemaking Documents
An electronic copy of a rulemaking document my be obtained by using
the Internet--
1. Search the Federal eRulemaking Portal (http://www.regulations.gov/);
2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies; or
3. Access the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
Copies may also be obtained by sending a request (identified by
notice, amendment, or docket number of this rulemaking) to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 0591, or by calling (202) 267-9680.
The Rulemaking Docket
The rulemaking docket includes a copy of the rulemaking and related
documents, as well as any public comments. You may access the docket
for this rulemaking at http://www.regulations.gov. Follow the online
instructions to search the docket number for this action.
While no comments were filed to this rulemaking docket, anyone is
able to search the electronic form of comments received into any of the
FAA's dockets by using the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.).
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document,
may contact its local FAA official, or the person listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 17
Administrative practice and procedure, Authority delegations
(Government agencies), Government contracts.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations by revising part 17 to read as follows:
PART 17--PROCEDURES FOR PROTESTS 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 protests.
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 contract disputes.
17.27 Filing a contract dispute.
17.29 Informal resolution period.
17.31 Dismissal or summary decision of contract disputes.
17.33 Adjudicative Process for contract disputes.
Subpart D--Alternative Dispute Resolution
17.35 Use of alternative dispute resolution.
17.37 Election of alternative dispute resolution 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-disputes.
17.59 Filing a pre-dispute.
17.61 Use of alternative dispute resolution.
Appendix A to Part 17--Alternative Dispute Resolution (ADR)
Authority: 5 U.S.C. 570-581, 49 U.S.C. 106(f)(2), 40110, 40111,
40112, 46102, 46014, 46105, 46109, and 46110.
Subpart A--General
Sec. 17.1 Applicability.
This part applies to all Acquisition Management System (AMS) bid
protests and contract disputes involving the FAA that are filed at the
Office of Dispute Resolution for Acquisition
[[Page 55222]]
(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.
Sec. 17.3 Definitions.
(a) Accrual means to come into existence 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, regardless of when
the claimant actually discovered those events. For liability to be
fixed, some injury must have occurred. Monetary damages need not have
been incurred, but if the claim is for money, such damages must be
capable of reasonable estimation. The accrual of a claim or the running
of the limitations period may be tolled on equitable grounds, including
but not limited 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 administrative adjudicatory process
used to decide protests and contract disputes where the parties have
not achieved resolution through informal communication or the use of
ADR. The Adjudicative Process is conducted by a Dispute Resolution
Officer (DRO) or Special Master selected by the ODRA Director to
preside over the case in accordance with Public Law 108-176, Section
224, Codified at 49 U.S.C. 40110(d)(4).
(e) Administrator means the Administrator of the Federal Aviation
Administration.
(f) Alternative Dispute Resolution (ADR) is the primary means of
voluntary dispute resolution that is employed 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, mediator, or arbitrator
functioning to resolve 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 compensated 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
interpretation of contract terms, or for other relief arising under,
relating to, or involving an alleged breach of that contract. A
contract dispute does not require, 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 Representative 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 contractual privity with the FAA and
responsible for performance of a contract's requirements.
(k) Discovery is the procedure whereby opposing parties in a
protest or contract 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.
(m) Interested party, in the context of a bid protest, is one whose
direct economic interest has been or would be affected by the award or
failure to award an FAA contract. Proposed subcontractors are not
``interested parties'' within this definition and are not eligible to
submit protests to the ODRA. Subcontractors 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 participation in a protest is allowed by the ODRA. For a post-
award protest, the awardee of the contract that is the subject of the
protest will be allowed, upon timely request, to participate as an
intervenor in the protest. In such a protest, no other interested
parties will be allowed to participate as intervenors.
(o) Legal Representative is an individual(s) designated to act on
behalf of a party in matters before the ODRA. Unless otherwise provided
under Sec. Sec. 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
representative.
(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
Administrator, pursuant to the statutory authority granted by Public
Law 108-176, Section 224, to provide dispute resolution services and to
adjudicate matters within its jurisdiction. The ODRA may also provide
non-binding dispute resolution 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 intervenor(s).
(s) Pre-Disputes mean an issue(s) in controversy concerning an FAA
contract 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 contracting
activity, without regard to funding source, and includes the
Contracting Officer (CO). The Product Team, acting through assigned FAA
counsel, is responsible for all communications 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 offers concerning an approach to meeting
potential acquisition requirements established by the FAA.
(v) A Special Master is a non-FAA attorney or judge who has been
assigned by the ODRA to act as its finder of fact, and to make findings
and recommendations based upon AMS policy and applicable law and
authorities in the Adjudicative Process.
Sec. 17.5 Delegation of authority.
(a) The authority of the Administrator to conduct dispute
resolution and adjudicative proceedings concerning acquisition matters
is delegated to the Director of the ODRA.
(b) The Director of the ODRA may redelegate 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 dispute, including the imposition of
sanctions for the filing of frivolous pleadings, making false
statements, or other disciplinary actions. See subpart F of this part.
Sec. 17.7 Filing and computation of time.
(a) Filing of a protest or contract dispute may be accomplished by
overnight delivery, by hand delivery, by
[[Page 55223]]
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 Officer (CO) pursuant to Sec. Sec. 17.15(e) and 17.27(d).
(b) Submissions to the ODRA after the initial filing of a protest
or contract dispute may be accomplished by any means available in
paragraph (a) of this section. Copies of all such submissions shall be
served on the opposing party or parties.
(c) The time limits stated in this part are calculated in business
days, which exclude weekends, Federal holidays and other days on which
Federal Government 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 Federal
holiday, the first business day following 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 permitting electronic
filing.
Sec. 17.9 Protective orders.
(a) The ODRA may issue protective orders addressing the treatment
of protected information, including protected 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 advantage to one or more firms.
(b) The terms of the ODRA's standard protective order may be
altered to suit particular circumstances, by negotiation of the
parties, subject to the approval of the ODRA. The protective order
establishes procedures for application for access to protected
information, identification and safeguarding of that information, and
submission of redacted copies of documents omitting protected
information.
(c) After a protective order has been issued, counsel or
consultants retained by counsel appearing on behalf of a party may
apply for access to the material 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 competitive decision-making for any firm that could gain a
competitive advantage from access to the protected information and that
the applicant will diligently protect any protected information
received from inadvertent disclosure. Objections to an applicant's
admission 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 imposition 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 association(s), and the taking of other actions as the
ODRA deems appropriate. Additional civil or criminal penalties may
apply.
Subpart B--Protests
Sec. 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;
(c) Grants;
(d) Cooperative agreements;
(e) Other transactions.
Sec. 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.
(c) Offerors or prospective offerors shall file a protest with the
ODRA in accordance with Sec. 17.15. The protest time limitations set
forth in Sec. 17.15 will not be extended by attempts to resolve a
potential protest with the CO. Other than the time limitations
specified in Sec. 17.15 for the filing of protests, the ODRA retains
the discretion to modify any timeframes established herein in
connection with protests.
(d) In accordance with Sec. 17.17(b), the ODRA shall convene an
initial status conference for the purpose of scheduling 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 subpart 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. Informal ADR techniques may be utilized simultaneously with
ongoing adjudication.
(e) The ODRA Director shall designate DROs, outside neutrals or
Special Masters as potential neutrals for the resolution of protests
through ADR. The ultimate choice of an ADR neutral is made by the
parties participating in the ADR. The ODRA Director also shall, at his
or her sole discretion, designate an adjudicating DRO or Special Master
for each matter. 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.
(f) Multiple protests concerning the same SIR, solicitation, or
contract award may be consolidated at the discretion of the ODRA
Director, and assigned to a single DRO or Special Master for
adjudication.
(g) Procurement activities, and, where applicable, contractor
performance 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 procurement activities or contractor performance.
Pursuant to Sec. Sec. 17.15(d) and 17.17(a), the ODRA may impose a
temporary suspension and recommend suspension of award or contract
performance, in whole or in part, for a compelling reason. A decision
to suspend procurement activities or contractor performance is made in
writing by the Administrator or the Administrator's delegee upon
recommendation of the ODRA.
Sec. 17.15 Filing a protest.
(a) An interested party may initiate a protest by filing with the
ODRA in accordance with Sec. 17.7(a) within the timeframes set forth
in this Section. Protests that are not timely filed shall be dismissed.
The timeframes applicable to the filing of protests are as follows:
(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 solicitation, but which
are subsequently incorporated into the solicitation, must be protested
not later than the next
[[Page 55224]]
closing time for receipt of proposals following the incorporation.
(3) For protests other than those related to alleged solicitation
improprieties, 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 debriefing.
(b) Protests shall be filed at:
(1) ODRA, AGC-70, Federal Aviation Administration, 800 Independence
Avenue, SW., Room 323, Washington, DC 20591; Telephone: (202) 267-3290,
Fax: (202) 267-3720; or
(2) Other address as shall be published from time to time in the
Federal Register.
(c) A protest shall be in writing, and set forth:
(1) The protester's name, address, telephone number, and FAX
number;
(2) The name, address, telephone number, and FAX number of the
protester's legal representative, and who shall be duly authorized to
represent the protester, to be the point of contact;
(3) The SIR number or, if available, the contract number and the
name of the CO;
(4) The basis for the protester's status as an interested party;
(5) The facts supporting the timeliness 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 protest, and one (1) copy of each relevant document;
(8) The remedy or remedies sought by the protester, as set forth in
Sec. 17.23;
(9) The signature of the legal representative, or another person
duly authorized 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 procurement or
contract performance because of the protested action, the protester
shall, in its initial filing:
(1) Set forth such compelling reason(s), supply all facts and
documents supporting the protester's position; and
(2) Demonstrate--
(i) The protester has alleged a substantial 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 address the elements of
paragraph (d)(2) of this section may result in the summary rejection of
the request for suspension, or a requirement that the protester
supplement its request prior to the scheduling of a Product Team
response to the request under Sec. 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 received by the CO on the same day as it is
to be received by the ODRA. The protest 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 challenged 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 intervenors within
two (2) business days of receipt of the CO's notification, and shall,
in such notice, designate a person as the point of contact for the
ODRA.
(g) The ODRA has discretion to designate the parties who shall
participate in the protest as intervenors. In protests of awarded
contracts, only the awardee may participate as an intervenor as a
matter of right.
Sec. 17.17 Initial protest procedures.
(a) If, as part of its initial protest filing, the protester
requests a suspension of procurement activities or contractor
performance in whole or in part, in accordance with Sec. 17.15(d), the
Product Team shall submit a response to the request to the ODRA by no
later than the close of business on the date of the initial 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
intervenor(s) so as to be received within the same timeframe. The
protester and any intervenor(s) shall have the opportunity of providing
additional comments 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
Administrator's designee. The ODRA also may impose a temporary
suspension of no more than ten (10) business days, where it is
recommending that the Administrator impose a suspension.
(b) Within five (5) business days of the filing of a protest, or as
soon thereafter as practicable, the ODRA shall convene an initial
status conference for purposes of:
(1) Reviewing the ODRA's ADR and adjudication procedures and
establishing a preliminary schedule;
(2) Identifying legal or other preliminary or potentially
dispositive issues and answering the parties' questions regarding the
ODRA process;
(3) Dealing with issues related to protected information and the
issuance of any needed protective order;
(4) Encouraging the parties to consider using ADR;
(5) Appointing a DRO as a potential ADR neutral to assist the
parties in considering ADR options and developing an ADR agreement; and
(6) For any other reason deemed appropriate by the DRO or by the
ODRA.
(c) The Product Team and protester will have five (5) business days
from the date of the initial status conference to decide whether they
will attempt 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 Sec. 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 proceedings (either an ODRA DRO or a compensated neutral of their
own choosing) pursuant to Sec. 17.37, and shall execute and file with
the ODRA a written 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.
Sec. 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 comments. Parties and
counsel are encouraged to attempt to resolve typical motions issues
through the ODRA ADR process. The ODRA may rule on any non-dispositive
motion, where
[[Page 55225]]
appropriate and necessary, after providing an opportunity for briefing
on the motion by all affected parties. Unjustifiable, inappropriate use
of motions may result in the imposition of sanctions. Where
appropriate, a party may request by dispositive motion to the ODRA, or
the ODRA may recommend or order, that:
(1) The protest, or any count or portion of a protest, be dismissed
for lack of jurisdiction, timeliness, or standing to pursue the
protest;
(2) The protest, or any count or portion of a protest, be
dismissed, if frivolous 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 decision, the ODRA shall consider any material facts in
dispute, in a light most favorable to the party against whom the
dismissal or summary decision would operate and draw all factual
inferences in favor of the non-moving party.
(c) Either upon motion by a party or 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 protest;
(2) Dismiss the entire protest or issue a summary decision with
respect to the entire protest, if delegated that authority by the
Administrator; or
(3) Dismiss or issue a summary decision with respect to any count
or portion 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 not constitute a
final agency order, unless and until such dismissal or decision is
incorporated or otherwise adopted in a decision by the Administrator
(or the ODRA, by delegation) regarding the entire protest.
(e) Prior to recommending or entering either a dismissal or a
summary decision, either in whole or in part, the ODRA shall afford all
parties against whom the dismissal or summary decision is to be entered
the opportunity to respond to the proposed dismissal or summary
decision.
Sec. 17.21 Adjudicative Process for protests.
(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 Sec. 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.
(c) The DRO or Special Master may conduct such proceedings and
prepare procedural orders for the proceedings as deemed appropriate;
and may require 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 Adjudication process. The Product Team response shall consist of a
written chronological, supported statement of proposed 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 chronologically indexed, individually tabbed,
and certified as authentic and complete. 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 indicate the method of service used.
(e) Comments of the protester and the intervenor on the Product
Team response 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
representatives, as needed for the Adjudicative Process.
(h) If, in the sole judgment of the DRO or Special Master, the
parties have presented written material sufficient to allow the protest
to be decided on the record presented, the DRO or Special Master shall
have the discretion to decide the protest on that basis.
(i) The parties may engage in limited, focused discovery with one
another and, if justified, with non-parties, so as to obtain
information relevant to the allegations of the protest.
(1) The DRO or Special Master shall manage the discovery process,
including limiting its length and availability, and shall establish
schedules and deadlines for discovery, which are consistent 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 Special 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 requests 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 connection with a motion or
other permissible filing.
(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 Master 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 testimony.
Hearings will be conducted:
(1) Where the DRO or Special Master determines that there are
complex factual issues in dispute that cannot adequately or efficiently
be developed solely by means of written presentations 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-examination 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
[[Page 55226]]
Adjudicative Process with the DRO or Special Master.
(l) After the closing of the administrative record, the DRO or
Special Master will prepare and submit findings 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 authority to the findings of fact;
(3) A recommendation for a final FAA order; and
(4) If appropriate, suggestions for future FAA action.
(m) In preparing findings and recommendations in protests, the DRO
or Special Master, using the preponderance of the evidence standard,
shall consider whether the Product Team actions in question were
consistent with the requirements of the AMS, had a rational basis, and
whether the Product Team decision was arbitrary, capricious or an abuse
of discretion. Notwithstanding 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
remedy that is consistent with Sec. 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 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 that contain proprietary
or competition-sensitive information.
(p) Other than communications regarding purely procedural matters
or ADR, there shall be no substantive ex parte communication between
ODRA personnel and any principal or representative 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.
Sec. 17.23 Protest remedies.
(a) The ODRA has broad discretion to recommend and impose protest
remedies 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 revaluation;
(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
consider the circumstances surrounding the procurement or proposed
procurement 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 Agency's mission.
(c) Attorney's fees of a prevailing protester are allowable to the
extent permitted by the Equal Access to Justice Act, 5 U.S.C. 504(a)(1)
(EAJA) and 14 CFR part 14.
Subpart C--Contract Disputes
Sec. 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
Sec. 17.27.
(c) The ODRA has broad discretion to recommend remedies for a
contract dispute that are consistent with the AMS and applicable law,
including such equitable remedies or other remedies as it deems
appropriate.
Sec. 17.27 Filing a contract dispute.
(a) Contract disputes must be in writing and should contain:
(1) The contractor's name, address, telephone and Fax numbers and
the name, address, telephone and Fax numbers of the contractor's legal
representative(s) (if any) for the contract dispute;
(2) The contract number and the name of the Contracting Officer;
(3) A detailed chronological statement of the facts and of the
legal grounds underlying the contract dispute, broken down by
individual claim item, citing to relevant contract provisions and
attaching copies of the contract 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 monetary remedy requested, together with pertinent cost information
and documentation (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 at the following address:
ODRA, AGC-70, Federal Aviation Administration, 800 Independence Avenue,
SW., Room 323, Washington, DC 20591; Telephone: (202) 267-3290, Fax:
(202) 267-3720.
(c) A contract dispute against the FAA shall be filed with the ODRA
within two (2) years of the accrual of the contract claim involved. A
contract dispute by the FAA against a contractor (excluding contract
disputes alleging warranty issues, fraud or latent 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 effective
date of this part provides for time limitations for filing of contract
disputes 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 contractor based on warranty
issues must be filed within the time specified under applicable
contract warranty provisions. 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
[[Page 55227]]
filing of contract disputes, the ODRA retains the discretion to modify
any timeframe established herein in connection with contract disputes.
Sec. 17.29 Informal resolution period.
(a) The ODRA process for contract disputes includes an informal
resolution period of twenty (20) business days from the date of filing
in order for the parties to attempt to informally resolve 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 disputes, except where the matter involves 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 parties, offer his or her services as a potential 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.
(c) The informal resolution period may be extended at the request
of the parties for good cause.
(d) If the matter has not been resolved informally, the parties
shall file joint or separate statements with the ODRA no later than
twenty (20) business days after the filing of the contract dispute. The
ODRA may extend this time, pursuant to Sec. 17.27(e). The statement(s)
shall include either:
(1) A joint request for ADR, or an executed ADR agreement, pursuant
to Sec. 17.37(d), specifying which ADR techniques 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 completely resolved during the
informal resolution period, the ODRA's Adjudicative 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 commencement of the
adjudication process pending completion of the ADR or that the ADR and
adjudication process will run concurrently. If a formal ADR is
attempted but does not completely resolve the contract dispute, the
Adjudicative Process will commence.
(f) The ODRA shall hold a status conference 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 proceedings 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-binding ADR techniques during the Adjudicative Process, pursuant to
subpart D of this part.
Sec. 17.31 Dismissal or summary decision of contract disputes.
(a) Any party may request by motion, or the ODRA on its own
initiative may recommend or direct, that a contract 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 standing;
(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.
(b) Any party may request by motion, or the ODRA on its own
initiative may recommend or direct, that a summary decision be issued
with respect to a contract dispute, or any count or portion thereof if
there are no material facts in dispute and a party is entitled to a
summary decision as a matter of law.
(c) In connection with any potential dismissal of a contract
dispute, or summary decision, the ODRA will consider any material facts
in dispute in a light most favorable to the party against whom the
dismissal or summary decision would be entered, and draw all factual
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 portion of a contract dispute or
enter a partial summary decision;
(2) Recommend to the Administrator that the entire contract dispute
be dismissed or that a summary decision be entered; or
(3) With a delegation from the Administrator, dismiss the entire
contract dispute or enter a summary decision 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 dispute, issued either by
the Administrator or by the ODRA, on the grounds set forth in this
section, shall constitute a final agency order. An ODRA order
dismissing or striking a count or portion of a contract dispute or
entering a partial summary judgment shall not constitute a final agency
order, unless and until such ODRA order is incorporated or otherwise
adopted in a final agency decision of the Administrator or the
Administrator's delegee regarding the remainder of the dispute.
(f) Prior to recommending or entering either a dismissal or a
summary decision, either in whole or in part, the ODRA shall afford all
parties against whom the dismissal or summary decision would be entered
the opportunity to respond to a proposed dismissal or summary decision.
Sec. 17.33 Adjudicative Process for contract disputes.
(a) The Adjudicative Process for contract 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 reasonable 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 scheduled by the ODRA, the Product Team shall prepare and
submit to the ODRA, with a copy to the contractor, a chronologically
arranged and indexed substantive response, containing a legal and
factual position regarding the dispute and all documents relevant to
the facts and issues in dispute. The contractor will be entitled, at a
specified time, to supplement the record with additional documents.
(c) In cases initiated by the FAA against a contractor, within
twenty (20) business days of the commencement 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 counsel, a
chronologically arranged and indexed 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.
[[Page 55228]]
Designated, relevant portions of such documents may be filed, with the
permission of the ODRA.
(e) The Director of the ODRA shall assign a DRO or a Special Master
to conduct adjudicatory proceedings, develop the administrative
adjudication record and prepare findings and recommendations for the
review of the ODRA Director or the Director's designee.
(f) The DRO or Special Master may conduct a status conference(s) as
necessary and issue such orders or decisions as are necessary to
promote the efficient resolution of the contract dispute.
(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 Sec. 17.9;
(3) Determine whether any issue can be stricken; and
(4) Prepare necessary procedural orders for the proceedings.
(h) Unless otherwise provided by the DRO or Special Master, or by
agreement of the parties with the concurrence of the DRO or Special
Master, responses 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 submissions 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 undisputed facts related to each issue
together with citations to the administrative record or other
supporting materials;
(3) Separate statements of disputed facts related to each issue,
with appropriate citations to documents in the Dispute File, to pages
of transcripts of any hearing or deposition, or to any affidavit 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 submissions 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 section, 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 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
testimony. Evidentiary hearings on the record shall be conducted by the
ODRA:
(1) Where the DRO or Special Master determines that there are
complex factual issues in dispute that cannot adequately or efficiently
be developed solely by means of written presentations 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 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 parties' 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, application of
the principles of the AMS and other law or authority applicable to the
findings of fact, and a recommendation for a final FAA order.
(m) The DRO or Special Master shall conduct a de novo review using
the preponderance of the evidence standard, unless a different standard
is prescribed for a particular issue. Notwithstanding the above,
allegations that government officials acted with bias or in bad faith
must be established by clear and convincing evidence.
(n) The Director of the ODRA may review the status of any contract
dispute 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 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. Should an
ODRA protective order be issued in connection with the contract
dispute, or should the matter involve proprietary or competition-
sensitive 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 prevailing 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 regarding purely procedural matters
or ADR, there shall be no substantive ex parte communication between
ODRA personnel and any principal or representative 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
Sec. 17.35 Use of alternative dispute resolution.
(a) By statutory mandate, it is the policy of the FAA to use
voluntary ADR to the maximum extent practicable to resolve matters
pending at the ODRA. The ODRA therefore uses voluntary ADR as its
primary means of resolving all factual, legal, and procedural
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, binding arbitration or variations of these
techniques as agreed by the parties and approved by the ODRA. At the
beginning 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 Sec. 17.35(b).
(c) The ODRA Adjudicative Process 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 dispute; or where the ODRA
concludes that ADR will not provide an expeditious means of resolving a
particular dispute. Even where the Adjudicative Process is to be used,
the ODRA, with the parties' consent, may employ informal ADR techniques
concurrently with the adjudication.
Sec. 17.37 Election of alternative dispute resolution process.
(a) The ODRA will make its personnel available to serve as Neutrals
in ADR proceedings and, upon request by the parties, will attempt to
make qualified
[[Page 55229]]
non-FAA personnel available to serve as Neutrals through neutral-
sharing programs and other similar arrangements. The parties may elect
to employ a mutually acceptable compensated neutral at their expense.
(b) The parties using an ADR process to resolve a protest shall
submit an executed ADR agreement containing the information outlined in
paragraph (d) of this section to the ODRA pursuant to Sec. 17.17(c).
The ODRA may extend this time for good cause.
(c) The parties using an ADR process to resolve a contract dispute
shall submit an executed ADR agreement containing the information
outlined in paragraph (d) of this section to the ODRA pursuant to Sec.
17.29.
(d) The parties to a protest or contract 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 compensated neutral is to be
used, the agreement must address how the cost of the neutral's services
will be reimbursed.
(e) Non-binding ADR techniques are not mutually exclusive, and may
be used in combination if the parties agree that a combination is most
appropriate to the dispute. The techniques to be employed must be
determined 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 reasonable ADR technique that is designed 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. Notwithstanding such termination, the parties may still engage
with the ODRA in ADR techniques (neutral evaluation and/or informal
mediation) concurrently with adjudication.
(f) Binding arbitration is available through the ODRA, subject to
the provisions of applicable law and the ODRA Binding Arbitration
Guidance dated October 2001 as developed in consultation with the
Department of Justice.
(g) The parties may, where appropriate in a given case, submit to
the ODRA a negotiated protective order for use in ADR in accordance
with the requirements of Sec. 17.9.
Sec. 17.39 Confidentiality of ADR.
(a) The provisions of the Administrative 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 Evidence in deciding admissibility issues related to ADR
communications.
(c) ADR communications are not part of the administrative record
unless otherwise agreed by the parties.
Subpart E--Finality and Review
Sec. 17.41 Final orders.
All final FAA orders regarding protests or contract disputes under
this part are to be issued by the FAA Administrator or by a delegee of
the Administrator.
Sec. 17.43 Judicial review.
(a) A protester or contractor may seek review of a final FAA order,
pursuant 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 appropriate circuit court of appeals.
Sec. 17.45 Conforming amendments.
The FAA shall amend pertinent provisions of the AMS, standard
contract forms and clauses, and any guidance to contracting officials,
so as to conform to the provisions of this part.
Sec. 17.47 Reconsideration.
The ODRA will not entertain requests for reconsideration as a
routine matter, or where such requests evidence mere disagreement with
a decision or restatements of previous arguments. 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
Sec. 17.49 Sanctions.
If any party or its representative fails to comply with an Order or
Directive of the ODRA, the ODRA may enter such orders and take such
other actions as it deems necessary and in the interest of justice.
Sec. 17.51 Decorum and professional conduct.
Legal representatives are expected to conduct themselves at all
times in a civil and respectful manner appropriate to an administrative
forum. Additionally, counsel are expected to conduct themselves at all
times in a professional manner and in accordance with all applicable
rules of professional conduct.
Sec. 17.53 Orders and subpoenas for testimony and document
production.
(a) Parties are encouraged to seek cooperative and voluntary
production of documents and witnesses prior to requesting 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. Section 46104(c) of
Title 49 of the United States Code governs the conduct of depositions
or document production.
(c) Upon request by a party, or on his or her own initiative, a DRO
or Special Master may, for good cause shown, subpoena 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. Service 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 attendance. The person serving the
subpoena or order shall file a declaration of service 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 person 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 specified in the
subpoena or order for compliance, the DRO may--
(1) Rescind or modify the subpoena or order if it is unreasonable
and oppressive or for other good cause shown, or
(2) Require the party on whose behalf the subpoena or order was
issued to advance the reasonable cost of producing documentary
evidence. Where circumstances require, the DRO may act upon such a
motion at any time
[[Page 55230]]
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 payment of fees and
mileage, as required by 49 U.S.C. 46104(d), for witnesses, officers who
serve the order, and the officer 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).
Sec. 17.55 Standing orders of the ODRA Director.
The Director may issue such Standing Orders as necessary for the
orderly conduct of business before the ODRA.
Subpart G--Pre-Disputes
Sec. 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 consent of the parties to the
dispute under this subpart.
(b) Pre-disputes shall be filed with the ODRA pursuant to Sec.
17.59.
(c) The time limitations for the filing of Protests and Contract
Disputes established in Sec. Sec. 17.15(a) and 17.27(c) will not be
extended by efforts to resolve the dispute under this subpart.
Sec. 17.59 Filing a Pre-Dispute.
(a) A Pre-dispute must be in writing, affirmatively state that it
is a Pre-dispute pursuant to this subpart, and shall contain:
(1) The party's name, address, telephone 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 number 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 solicitation provisions and documents and attaching copies
of those provisions and documents; and
(4) The signature of a duly authorized legal representative of the
initiating party.
(b) Pre-disputes shall be filed at the following address: ODRA,
AGC-70, Federal Aviation Administration, 800 Independence Avenue, SW.,
Room 323, Washington, DC 20591; Telephone: (202) 267-3290, Fax: (202)
267-3720.
(c) Upon the filing of a Pre-dispute with the ODRA, the ODRA will
contact the opposing party to offer its services pursuant to Sec.
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 service will be provided.
Sec. 17.61 Use of alternative dispute resolution.
(a) Only non-binding, voluntary ADR will be used to attempt to
resolve a Pre-dispute pursuant to Sec. 17.37.
(b) ADR conducted under this subpart is subject to the
confidentiality requirements of Sec. 17.39.
Appendix A to Part 17--Alternative Dispute Resolution (ADR)
A. The FAA dispute resolution procedures encourage the parties
to protests and contract disputes to use ADR as the primary means to
resolve protests and contract disputes, pursuant to the
Administrative Dispute 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, mediation, or arbitration.
B. ADR encompasses a number of processes and techniques for
resolving protests or contract 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
between or among the parties and an amicable resolution of their
differences, seeking approaches to bridge the gaps between the
parties'' respective positions. The neutral or compensated neutral
can meet with the parties 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
provide a candid assessment and opinion of the strengths and
weaknesses of the parties'' positions as to the facts and law, so as
to facilitate further discussion and resolution.
(3) Binding Arbitration. The ODRA, after consultation with the
United States Department of Justice in accordance with the
provisions of the Administrative Disputes Resolution 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.
Issued in Washington, DC, on July 25, 2011.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2011-22842 Filed 9-6-11; 8:45 am]
BILLING CODE 4910-13-P