[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: 14CFR17.39]



[Page 113-115]

 

                     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



[[Page 114]]



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 115]]



    (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]