[Code of Federal Regulations]
[Title 14, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 14CFR17.39]

[Page 109-111]
 
                     TITLE 14--AERONAUTICS AND SPACE
 
CHAPTER I--FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 17--PROCEDURES FOR PROTESTS AND CONTRACTS DISPUTES--Table of Contents
 
                 Subpart E--Default Adjudicative Process
 
Sec. 17.39  Default adjudicative process for contract disputes.

    (a) The Default Adjudicative Process for contract disputes will 
commence on the latter of:
    (1) The parties' submission to the Office of Dispute Resolution for 
Acquisition of a joint statement pursuant to Sec. 17.27 which indicates 
that ADR will not be utilized; or
    (2) The parties' submission to the Office of Dispute Resolution for 
Acquisition of notification by any party that the parties have not 
settled some or 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) Within twenty (2) business days of the commencement of the 
Default Adjudicative Process, the Product Team shall prepare and submit 
to the Office of Dispute Resolution for Acquisition, with a copy to the 
contractor, a chronologically arranged and indexed Dispute File, 
containing all documents which are relevant to the facts and issues in 
dispute. The contractor will be entitled to supplement such a Dispute 
File with additional documents.
    (c) The Director of the Office of Dispute Resolution for Acquisition 
shall

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assign a DRO or a Special Master to conduct fact-finding proceedings and 
provide findings and recommendations concerning the issues in dispute.
    (d) The Director of the Office of Dispute Resolution for Acquisition 
may delegate authority to the DRO or Special Master to conduct a Status 
Conference within ten (10) business days of the commencement of the 
Default Adjudicative Process, and, may further delegate to the DRO or 
Special Master the authority to issue such orders or decisions to 
promote the efficient resolution of the contract dispute.
    (e) At any such Status Conference, or as necessary during the 
Default Adjudicative Process, the DRO or Special Master will:
    (1) Determine the appropriate amount of discovery required to 
resolve the dispute;
    (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.
    (f) 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 final 
submissions to the Office of Dispute Resolution for Acquisition and to 
the DRO or Special Master, which submissions shall include the 
following:
    (1) A joint statement of the issues;
    (2) A joint statement of undisputed facts related to each issue;
    (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.
    (g) Each party shall serve a copy of its final submission on the 
other party by means reasonable calculated so that the other party 
receives such submissions on the same day it is received by the Office 
of Dispute Resolution for Acquisition.
    (h) The DRO or Special Master may decide the contract dispute on the 
basis of the record and the submissions referenced in this section, or 
may, in the DRO or Special Master's discretion, allow 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. 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.
    (i) The DRO or Special Master shall prepare findings and 
recommendations within thirty (30) business days from receipt of the 
final submissions of the parties, unless that time is extended by the 
Officer of Dispute Resolution for Acquisition for good cause. The 
findings and recommendations shall contain findings of fact, application 
of the principles of the AMS and other law or authority applicable to 
the findings of fact, a recommendation for a final FAA order, and, if 
appropriate, suggestions for future FAA action.
    (j) As a party of the findings and recommendations, the DRO or 
Special Master shall review the disputed issue or issues in the context 
of the contract, any applicable law and the AMS. Any finding of fact set 
forth in the fundings and recommendation must be supported by 
substantial evidence.

[[Page 111]]

    (k) The Director of the Office of Dispute Resolution for Acquisition 
may review the status of any contract dispute in the Default 
Adjudicative Process with the DRO or Special Master during the pendency 
of the process.
    (l) A DRO or Special Master shall submit findings and 
recommendations only to the Director of the Office of Dispute Resolution 
for Acquisition. 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 Office of Dispute Resolution for Acquisition 
protective order be issued in connection with the contract dispute, a 
redacted version of the findings and recommendations omitting any 
protected information, shall be prepared wherever possible and released 
to the public along with a copy of the final FAA order. Only persons 
admitted by the Office of Dispute Resolution for Acquisition under the 
protective order and Government personal shall be provided copies of the 
unredacted findings and recommendation.
    (m) The time limitations set forth in this section may be extended 
by the Office of Dispute Resolution for Acquisition for good cause.
    (n) Attorneys fees of a qualified prevailing contractor are 
allowable to the extent permitted by the EAJA, 5 U.S.C. 504 (a)(1).

[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999; 64 FR 47362, Aug. 
31, 1999]