[Code of Federal Regulations]

[Title 14, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 14CFR17.37]



[Page 112-113]

 

                     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. 17.37  Default adjudicative process for protests.





    (a) Other than for the resolution of preliminary or dispositive 

matters, the Default Adjudicative Process for protests will commence 

upon the submission of the Product Team Response to the Office of 

Dispute Resolution for Acquisition, pursuant to Sec. 17.17.

    (b) The Director of the Office of Dispute Resolution for Acquisition 

shall select a DRO or a Special Master to conduct fact-finding 

proceedings and to provide findings and recommendations concerning some 

or all of the matters in controversy.

    (c) The DRO or Special Master may prepare procedural orders for the 

proceedings as deemed appropriate; and may require additional 

submissions from the parties. As a minimum, the protester and any 

intervenor(s) must submit to the Office of Dispute Resolution for 

Acquisition written comments with respect to the Product Team Response 

within five (5) business days of the Response having been filed with the 

Office of Dispute Resolution for Acquisition or within five (5) business 

days of their receipt of the Response, whichever is later. 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 Office 

of Dispute Resolution for Acquisition.

    (d) The DRO or Special Master may convene the parties and/or their 

representatives, as needed, to pursue the Default Adjudicative Process.

    (e) 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.

    (f) The parties may engage in voluntary discovery with one another 

and, if justified, with non-parties, so as to obtain information 

relevant to the allegations of the protest. The DRO or Special Master 

may also direct the parties to exchange, in an expedited manner, 

relevant, non-privileged documents. 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. 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 time frames 

established in this part and with the FAA policy of providing fair and 

expeditious dispute resolution.

    (g) 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:



[[Page 113]]



    (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.

    (h) The Director of the Office of Dispute Resolution for Acquisition 

may review the status of any protest in the Default Adjudicative Process 

with the DRO or Special Master during the pendency of the process.

    (i) Within thirty (30) business days of the commencement of the 

Default Adjudicative Process, or at the discretion of the Office of 

Dispute Resolution for Acquisition, the DRO or Special Master will 

submit findings and recommendations to the Office of Dispute Resolution 

for Acquisition 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.

    (j) In arriving at findings and recommendations relating to 

protests, the DRO or Special Master shall consider whether or not the 

Product Team actions in question had a rational basis, and whether or 

not the Product Team decision under question was arbitrary, capricious 

or an abuse of discretion. Findings of fact underlying the 

recommendations must be supported by substantial evidence.

    (k) The DRO or Special Master has broad discretion to recommend a 

remedy that is consistent with Sec. 17.21.

    (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, only 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 protest, 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 personnel shall be provided copies of the 

unredacted findings and recommendations.

    (m) The time limitations set forth in this section may be extended 

by the Office of Dispute Resolution for Acquisition for good cause.