[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: 14CFR17.45]



[Page 115-116]

 

                     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 F_Finality and Review

 

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.



       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, Pub. L. 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 Office of Dispute Resolution for Acquisition would encourage 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) Minitrial. The minitrial resembles adjudication, but is less 

formal. It is used to provide an efficient process for airing and 

resolving more complex, fact-intensive disputes. The parties select 

principal representatives who should be senior officials of their 

respective organizations, having authority to negotiate a complete 

settlement. It is preferable that the principals be individuals who were 

not directly involved in the events leading to the dispute and who, 

thus, may be able to maintain a degree of impartiality during the 

proceeding. In order to maintain such impartiality, the principals 

typically serve as ``judges'' over the mini-trial proceeding together 

with the Neutral or Compensated Neutral. The proceeding is aimed at



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informing the principal representatives and the Neutral or Compensated 

Neutral of the underlying bases of the parties' positions. Each party is 

given the opportunity and responsibility to present its position. The 

presentations may be made through the parties' counsel and/or through 

some limited testimony of fact witnesses or experts, which may be 

subject to cross-examination or rebuttal. Normally, witnesses are not 

sworn in and transcripts are not made of the proceedings. Similarly, 

rules of evidence are not directly applicable, though it is recommended 

that the Neutral or Compensated Neutral be provided authority by the 

parties' ADR agreement to exclude evidence which is not relevant to the 

issues in dispute, for the sake of an efficient proceeding. Frequently, 

minitrials are followed either by direct one-on-one negotiations by the 

parties' principals or by meetings between the Neutral/Compensated 

Neutral and the parties' principals, at which the Neutral/Compensated 

Neutral may offer his or her views on the parties' positions (i.e., 

Neutral Evaluation) and/or facilitate negotiations and ultimate 

resolution via Mediation.



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