Document
Federal Aviation Administration, DOT Pt. 17 (3) Ex parte communications regard- PART 17—PROCEDURES FOR PRO- ing solely matters of agency procedure TESTS AND CONTRACT DISPUTES or practice are not prohibited by this section.
Subpart A—General [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- Sec.
designated at Amdt. 16–1, 78 FR 56148, Sept.
17.1 Applicability.
12, 2013] 17.3 Definitions.
17.5 Delegation of authority.
§ 16.303 Procedures for handling ex 17.7 Filing and computation of time.
parte communications.
17.9 Protective orders.
A decisional employee who receives Subpart B—Protests or who makes or knowingly causes to be made a communication prohibited 17.11 Matters not subject to protest.
by § 16.303 shall place in the public 17.13 Dispute resolution process for pro- record of the proceeding: tests.
17.15 Filing a protest.
(a) All such written communications; 17.17 Initial protest procedures.
(b) Memoranda stating the substance 17.19 Motions practice and dismissal or of all such oral communications; and summary decision of protests.
(c) All written responses, and memo- 17.21 Adjudicative Process for protests.
randa stating the substance of all oral 17.23 Protest remedies.
responses, to the materials described in Subpart C—Contract Disputes paragraphs (a) and (b) of this section.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- 17.25 Dispute resolution process for con- tract disputes.
designated at Amdt. 16–1, 78 FR 56148, Sept.
17.27 Filing a contract dispute.
12, 2013] 17.29 Informal resolution period.
17.31 Dismissal or summary decision of con- § 16.305 Requirement to show cause tract disputes.
and imposition of sanction.
17.33 Adjudicative Process for contract dis- (a) Upon receipt of a communication putes.
knowingly made or knowingly caused to be made by a party in violation of Subpart D—Alternative Dispute Resolution § 16.303, the Associate Administrator or 17.35 Use of alternative dispute resolution.
his designee or the hearing officer may, 17.37 Election of alternative dispute resolu- to the extent consistent with the inter- tion process.
ests of justice and the policy of the un- 17.39 Confidentiality of ADR.
derlying statutes, require the party to Subpart E—Finality and Review show cause why his or her claim or in- terest in the proceeding should not be 17.41 Final orders.
dismissed, denied, disregarded, or oth- 17.43 Judicial review.
erwise adversely affected on account of 17.45 Conforming amendments.
such violation.
17.47 Reconsideration.
(b) The Associate Administrator Subpart F—Other Matters may, to the extent consistent with the interests of justice and the policy of 17.49 Sanctions.
the underlying statutes administered 17.51 Decorum and professional conduct.
by the FAA, consider a violation of 17.53 Orders and subpoenas for testimony this subpart sufficient grounds for a de- and document production.
17.55 Standing orders of the ODRA director.
cision adverse to a party who has knowingly committed such violation or Subpart G—Pre-Disputes knowingly caused such violation to occur.
17.57 Dispute resolution process for Pre-dis- putes.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- 17.59 Filing a Pre-dispute.
designated at Amdt. 16–1, 78 FR 56148, Sept.
17.61 Use of alternative dispute resolution.
12, 2013] A PPENDIX A TO P ART 17—A LTERNATIVE D IS - PUTE R ESOLUTION (ADR) 14 CFR Ch. I (1–1–25 Edition) § 17.1 A UTHORITY : 5 U.S.C. 570–581, 49 U.S.C.
tion 224, Codified at 49 U.S.C.
106(f)(2), 40110, 40111, 40112, 46102, 46014, 46105, 40110(d)(4).
46109, and 46110.
(e) Administrator means the Adminis- S OURCE : 76 FR 55221, Sept. 7, 2011, unless trator of the Federal Aviation Admin- otherwise noted.
istration.
(f) Alternative Dispute Resolution Subpart A—General (ADR) is the primary means of vol- untary dispute resolution that is em- § 17.1 Applicability.
ployed by the ODRA. See Appendix A This part applies to all Acquisition of this part.
Management System (AMS) bid pro- (g) Compensated Neutral refers to an tests and contract disputes involving impartial third party chosen by the the FAA that are filed at the Office of parties to act as a facilitator, medi- Dispute Resolution for Acquisition ator, or arbitrator functioning to re- (ODRA) on or after October 7, 2011, solve the protest or contract dispute with the exception of those contract under the auspices of the ODRA. The disputes arising under or related to parties pay equally for the services of a FAA contracts entered into prior to compensated neutral, unless otherwise April 1, 1996, where such contracts have agreed to by the parties. An ODRA not been modified to be made subject DRO or neutral cannot be a com- to the FAA AMS. This part also applies pensated neutral.
to pre-disputes as described in subpart (h) Contract Dispute , as used in this G of this part.
part, means a written request to the § 17.3 Definitions.
ODRA seeking, as a matter of right under an FAA contract subject to the (a) Accrual means to come into exist- AMS, the payment of money in a sum ence as a legally enforceable claim.
(b) Accrual of a contract claim means certain, the adjustment or interpreta- that all events relating to a claim have tion of contract terms, or for other re- occurred, which fix liability of either lief arising under, relating to, or in- the government or the contractor and volving an alleged breach of that con- permit assertion of the claim, regard- tract. A contract dispute does not re- less of when the claimant actually dis- quire, as a prerequisite, the issuance of covered those events. For liability to a Contracting Officer final decision.
be fixed, some injury must have oc- Contract disputes, for purposes of ADR curred. Monetary damages need not only, may also involve contracts not have been incurred, but if the claim is subject to the AMS.
for money, such damages must be capa- (i) Counsel refers to a Legal Rep- ble of reasonable estimation. The ac- resentative who is an attorney licensed crual of a claim or the running of the by a State, the District of Columbia, or limitations period may be tolled on eq- a territory of the United States to uitable grounds, including but not lim- practice law or appear before the ited to active concealment, fraud, or if courts of that State or territory.
the facts were inherently unknowable.
(j) Contractor is a party in contrac- (c) Acquisition Management System tual privity with the FAA and respon- (AMS) establishes the policies, guiding sible for performance of a contract’s principles, and internal procedures for requirements.
the FAA’s acquisition system.
(k) Discovery is the procedure where- (d) Adjudicative Process is an adminis- by opposing parties in a protest or con- trative adjudicatory process used to de- tract dispute may, either voluntarily cide protests and contract disputes or to the extent ordered by the ODRA, where the parties have not achieved obtain testimony from, or documents resolution through informal commu- and information held by, other parties nication or the use of ADR. The Adju- or non-parties.
dicative Process is conducted by a Dis- (l) Dispute Resolution Officer (DRO) is pute Resolution Officer (DRO) or Spe- cial Master selected by the ODRA Di- an attorney and member of the ODRA rector to preside over the case in ac- staff. The term DRO can include the cordance with Public Law 108–176, Sec- Director of the ODRA.
Federal Aviation Administration, DOT § 17.7 (m) Interested party , in the context of (t) Product Team, as used in these a bid protest, is one whose direct eco- rules, refers to the FAA organization(s) nomic interest has been or would be af- responsible for the procurement or con- fected by the award or failure to award tracting activity, without regard to an FAA contract. Proposed subcontrac- funding source, and includes the Con- tors are not ‘‘interested parties’’ with- tracting Officer (CO). The Product in this definition and are not eligible Team, acting through assigned FAA to submit protests to the ODRA. Sub- counsel, is responsible for all commu- contractors not in privity with the nications with and submissions to the FAA are not interested parties in the ODRA in pending matters.
context of a contract dispute.
(u) Screening Information Request (SIR (n) Intervenor is an interested party or Solicitation) means a request by the other than the protester whose partici- FAA for documentation, information, pation in a protest is allowed by the presentations, proposals, or binding of- ODRA. For a post-award protest, the fers concerning an approach to meeting awardee of the contract that is the sub- potential acquisition requirements es- ject of the protest will be allowed, upon tablished by the FAA.
timely request, to participate as an in- (v) A Special Master is a non-FAA at- tervenor in the protest. In such a pro- torney or judge who has been assigned test, no other interested parties will be by the ODRA to act as its finder of allowed to participate as intervenors. fact, and to make findings and rec- ommendations based upon AMS policy (o) Legal Representative is an indi- and applicable law and authorities in vidual(s) designated to act on behalf of the Adjudicative Process.
a party in matters before the ODRA.
Unless otherwise provided under § 17.5 Delegation of authority.
§§ 17.15(c)(2), 17.27(a)(1), or 17.59(a)(6), a Notice of Appearance must be filed (a) The authority of the Adminis- with the ODRA containing the name, trator to conduct dispute resolution address, telephone and facsimile (Fax) and adjudicative proceedings con- numbers of a party’s legal representa- cerning acquisition matters is dele- tive.
gated to the Director of the ODRA.
(p) Neutral refers to an impartial (b) The Director of the ODRA may re- third party in the ADR process chosen delegate to Special Masters and DROs by the parties to act as a facilitator, such delegated authority in paragraph mediator, arbitrator, or otherwise to (a) of this section as deemed necessary aid the parties in resolving a protest or by the Director for efficient resolution contract dispute. A neutral can be a of an assigned protest or contract dis- DRO or a person not an employee of pute, including the imposition of sanc- the ODRA. tions for the filing of frivolous plead- ings, making false statements, or other (q) ODRA is the FAA’s exclusive disciplinary actions. See subpart F of forum acting on behalf of the Adminis- this part.
trator, pursuant to the statutory au- thority granted by Public Law 108–176, § 17.7 Filing and computation of time.
Section 224, to provide dispute resolu- tion services and to adjudicate matters (a) Filing of a protest or contract dis- within its jurisdiction. The ODRA may pute may be accomplished by overnight also provide non-binding dispute reso- delivery, by hand delivery, by Fax, or, lution services in matters outside of its if permitted by Order of the ODRA, by jurisdiction where mutually requested electronic filing. A protest or contract to do so by the parties involved.
dispute is considered to be filed on the (r) Parties include the protester(s) or date it is received by the ODRA during the contractor, the FAA, and any in- normal business hours. The ODRA’s tervenor(s).
normal business hours are from 8:30 (s) Pre-Disputes mean an issue(s) in a.m. to 5 p.m. Eastern Time. A protest controversy concerning an FAA con- or contract dispute received after the tract or solicitation that, by mutual time period prescribed for filing shall agreement of the parties, is filed with not be considered timely filed. Service the ODRA. See subpart G of this part. shall also be made on the Contracting 14 CFR Ch. I (1–1–25 Edition) § 17.9 Officer (CO) pursuant to §§ 17.15(e) and applicant is not involved in competi- 17.27(d). tive decision-making for any firm that (b) Submissions to the ODRA after could gain a competitive advantage the initial filing of a protest or con- from access to the protected informa- tract dispute may be accomplished by tion and that the applicant will dili- any means available in paragraph (a) of gently protect any protected informa- this section. Copies of all such submis- tion received from inadvertent disclo- sions shall be served on the opposing sure. Objections to an applicant’s ad- party or parties. mission shall be raised within two (2) (c) The time limits stated in this part days of the application, although the are calculated in business days, which ODRA may consider objections raised exclude weekends, Federal holidays after that time for good cause.
and other days on which Federal Gov- (d) Any violation of the terms of a ernment offices in Washington, DC are protective order may result in the im- not open. In computing time, the day position of sanctions, including but not of the event beginning a period of time limited to removal of the violator from shall not be included. If the last day of the protective order and reporting of a period falls on a weekend or a Fed- the violator to his or her bar associa- eral holiday, the first business day fol- tion(s), and the taking of other actions lowing the weekend or holiday shall be as the ODRA deems appropriate. Addi- considered the last day of the period. tional civil or criminal penalties may (d) Electronic Filing—Procedures for apply.
electronic filing may be utilized where permitted by Order of the ODRA on a Subpart B—Protests case-by-case basis or pursuant to a Standing Order of the ODRA permit- § 17.11 Matters not subject to protest.
ting electronic filing.
The following matters may not be protested before the ODRA, except for § 17.9 Protective orders.
review of compliance with the AMS: (a) The ODRA may issue protective (a) FAA purchases from or through, orders addressing the treatment of pro- State, local, and tribal governments tected information, including pro- and public authorities; tected information in electronic form, (b) FAA purchases from or through either at the request of a party or upon other Federal agencies; its own initiative. Such information (c) Grants; may include proprietary, confidential, (d) Cooperative agreements; or source-selection-sensitive material, (e) Other transactions.
or other information the release of which could result in a competitive ad- § 17.13 Dispute resolution process for vantage to one or more firms.
protests.
(b) The terms of the ODRA’s standard (a) Protests concerning FAA SIRs, protective order may be altered to suit solicitations, or contract awards shall particular circumstances, by negotia- be resolved pursuant to this part.
tion of the parties, subject to the ap- proval of the ODRA. The protective (b) Potential protestors should, order establishes procedures for appli- where possible, attempt to resolve any cation for access to protected informa- issues concerning potential protests tion, identification and safeguarding of with the CO. Such attempts are not a that information, and submission of re- prerequisite to filing a protest with the dacted copies of documents omitting ODRA.
protected information. (c) Offerors or prospective offerors (c) After a protective order has been shall file a protest with the ODRA in issued, counsel or consultants retained accordance with § 17.15. The protest by counsel appearing on behalf of a time limitations set forth in § 17.15 will party may apply for access to the ma- not be extended by attempts to resolve terial under the order by submitting an a potential protest with the CO. Other application to the ODRA, with copies than the time limitations specified in furnished simultaneously to all parties. § 17.15 for the filing of protests, the The application shall establish that the ODRA retains the discretion to modify Federal Aviation Administration, DOT § 17.15 any timeframes established herein in § 17.15 Filing a protest.
connection with protests.
(a) An interested party may initiate (d) In accordance with § 17.17(b), the a protest by filing with the ODRA in ODRA shall convene an initial status accordance with § 17.7(a) within the conference for the purpose of sched- timeframes set forth in this Section.
uling proceedings in the protest and to Protests that are not timely filed shall encourage the parties to consider using be dismissed. The timeframes applica- the ODRA’s ADR process to attempt to ble to the filing of protests are as fol- resolve the protest, pursuant to sub- lows: part D of this part. It is the Agency’s (1) Protests based upon alleged SIR policy to use voluntary ADR to the or solicitation improprieties that are maximum extent practicable. If the apparent prior to bid opening or the parties elect not to attempt ADR, or if time set for receipt of initial proposals ADR efforts do not completely resolve shall be filed prior to bid opening or the time set for the receipt of initial the protest, the protest will proceed proposals.
under the ODRA Adjudicative Process (2) In procurements where proposals set forth in subpart E of this part. In- are requested, alleged improprieties formal ADR techniques may be utilized that do not exist in the initial solicita- simultaneously with ongoing adjudica- tion, but which are subsequently incor- tion.
porated into the solicitation, must be (e) The ODRA Director shall des- protested not later than the next clos- ignate DROs, outside neutrals or Spe- ing time for receipt of proposals fol- cial Masters as potential neutrals for lowing the incorporation.
the resolution of protests through (3) For protests other than those re- ADR. The ultimate choice of an ADR lated to alleged solicitation impropri- neutral is made by the parties partici- eties, the protest must be filed on the pating in the ADR. The ODRA Director later of the following two dates: also shall, at his or her sole discretion, (i) Not later than seven (7) business designate an adjudicating DRO or Spe- days after the date the protester knew cial Master for each matter. A person or should have known of the grounds serving as a neutral in an ADR effort for the protest; or in a matter, shall not serve as an adju- (ii) If the protester has requested a dicating DRO or Special Master for post-award debriefing from the FAA that matter.
Product Team, not later than five (5) (f) Multiple protests concerning the business days after the date on which same SIR, solicitation, or contract the Product Team holds that debrief- award may be consolidated at the dis- ing.
cretion of the ODRA Director, and as- (b) Protests shall be filed with the signed to a single DRO or Special Mas- ODRA, AGC–70, Federal Aviation Ad- ter for adjudication.
ministration, telephone (202) 267–3290 as (g) Procurement activities, and, follows: where applicable, contractor perform- (1) 600 Independence Avenue SW., ance pending resolution of a protest, Room 2W100, Washington, DC 20591 for shall continue during the pendency of a filing by hand delivery, courier or protest, unless there is a compelling other form of in-person delivery; reason to suspend all or part of the pro- (2) 800 Independence Avenue SW., curement activities or contractor per- Washington, DC 20591 [Attention: AGC– formance. Pursuant to §§ 17.15(d) and 70, Wilbur Wright Bldg., Room 2W100] 17.17(a), the ODRA may impose a tem- for filing by U.S. Mail; or porary suspension and recommend sus- (3) Numbers (202) 267–3720 or alternate pension of award or contract perform- (202) 267–1293 for filing by facsimile.
ance, in whole or in part, for a compel- (c) A protest shall be in writing, and ling reason. A decision to suspend pro- set forth: curement activities or contractor per- (1) The protester’s name, address, formance is made in writing by the Ad- telephone number, and FAX number; ministrator or the Administrator’s (2) The name, address, telephone delegee upon recommendation of the number, and FAX number of the pro- ODRA. tester’s legal representative, and who 14 CFR Ch. I (1–1–25 Edition) § 17.17 shall be duly authorized to represent ceived by the CO on the same day as it the protester, to be the point of con- is to be received by the ODRA. The pro- tact; test shall include a signed statement (3) The SIR number or, if available, from the protester, certifying to the the contract number and the name of ODRA the manner of service, date, and time when a copy of the protest was the CO; served on the CO and other designated (4) The basis for the protester’s sta- official(s).
tus as an interested party; (f) Upon receipt of the protest, the (5) The facts supporting the timeli- CO shall notify the awardee of a chal- ness of the protest; lenged contract award in writing of the (6) Whether the protester requests a existence of the protest. The awardee protective order, the material to be and/or interested parties shall notify protected, and attach a redacted copy the ODRA in writing, of their interest of that material; in participating in the protest as inter- (7) A detailed statement of both the venors within two (2) business days of legal and factual grounds of the pro- receipt of the CO’s notification, and test, and one (1) copy of each relevant shall, in such notice, designate a per- document; son as the point of contact for the (8) The remedy or remedies sought by ODRA.
the protester, as set forth in § 17.23; (g) The ODRA has discretion to des- (9) The signature of the legal rep- ignate the parties who shall participate resentative, or another person duly au- in the protest as intervenors. In pro- thorized to represent the protester.
tests of awarded contracts, only the (d) If the protester wishes to request awardee may participate as an inter- a suspension of the procurement or venor as a matter of right.
contract performance, in whole or in part, and believes that a compelling [76 FR 55221, Sept. 7, 2011, as amended by reason(s) exists to suspend the procure- Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21, ment or contract performance because 2017] of the protested action, the protester § 17.17 Initial protest procedures.
shall, in its initial filing: (1) Set forth such compelling rea- (a) If, as part of its initial protest fil- son(s), supply all facts and documents ing, the protester requests a suspension supporting the protester’s position; and of procurement activities or contractor (2) Demonstrate— performance in whole or in part, in ac- (i) The protester has alleged a sub- cordance with § 17.15(d), the Product stantial case; Team shall submit a response to the re- (ii) The lack of a suspension would be quest to the ODRA by no later than the likely to cause irreparable injury; close of business on the date of the ini- (iii) The relative hardships on the tial scheduling conference or on such parties favor a suspension; and other date as is established by the (iv) That a suspension is in the public ODRA. Copies of the response shall be interest. furnished to the protester and any in- (3) Failure of a protester to provide tervenor(s) so as to be received within information or documents in support of the same timeframe. The protester and a requested suspension or failure to ad- any intervenor(s) shall have the oppor- dress the elements of paragraph (d)(2) tunity of providing additional com- of this section may result in the sum- ments on the response within two (2) mary rejection of the request for sus- business days of receiving it. Based on pension, or a requirement that the pro- its review of such submissions, the tester supplement its request prior to ODRA, in its discretion, may— the scheduling of a Product Team re- (1) Decline the suspension request; or sponse to the request under § 17.17(a). (2) Recommend such suspension to (e) Concurrent with the filing of a the Administrator or the Administra- protest with the ODRA, the protester tor’s designee. The ODRA also may im- shall serve a copy of the protest on the pose a temporary suspension of no CO and any other official designated in more than ten (10) business days, where the SIR for receipt of protests, by it is recommending that the Adminis- means reasonably calculated to be re- trator impose a suspension.
Federal Aviation Administration, DOT § 17.19 (b) Within five (5) business days of ments. Parties and counsel are encour- the filing of a protest, or as soon there- aged to attempt to resolve typical mo- after as practicable, the ODRA shall tions issues through the ODRA ADR convene an initial status conference for process. The ODRA may rule on any purposes of: non-dispositive motion, where appro- (1) Reviewing the ODRA’s ADR and priate and necessary, after providing adjudication procedures and estab- an opportunity for briefing on the mo- lishing a preliminary schedule; tion by all affected parties. Unjustifi- (2) Identifying legal or other prelimi- able, inappropriate use of motions may nary or potentially dispositive issues result in the imposition of sanctions.
and answering the parties’ questions Where appropriate, a party may re- regarding the ODRA process; quest by dispositive motion to the (3) Dealing with issues related to pro- ODRA, or the ODRA may recommend tected information and the issuance of or order, that: any needed protective order; (1) The protest, or any count or por- (4) Encouraging the parties to con- tion of a protest, be dismissed for lack sider using ADR; of jurisdiction, timeliness, or standing (5) Appointing a DRO as a potential to pursue the protest; ADR neutral to assist the parties in (2) The protest, or any count or por- considering ADR options and devel- tion of a protest, be dismissed, if frivo- oping an ADR agreement; and lous or without basis in fact or law, or (6) For any other reason deemed ap- for failure to state a claim upon which propriate by the DRO or by the ODRA. relief may be had; (c) The Product Team and protester (3) A summary decision be issued will have five (5) business days from with respect to the protest, or any the date of the initial status con- count or portion of a protest, if there ference to decide whether they will at- are no material facts in dispute and a tempt to use an ADR process in the party is entitled to summary decision case. With the agreement of the ODRA, as a matter of law.
ADR may be used concurrently with (b) In connection with consideration the adjudication of a protest. See of possible dismissal or summary deci- § 17.37(e). sion, the ODRA shall consider any ma- (d) If the Product Team and protester terial facts in dispute, in a light most elect to use ADR proceedings to resolve favorable to the party against whom the protest, they will agree upon the the dismissal or summary decision neutral to conduct the ADR pro- would operate and draw all factual in- ceedings (either an ODRA DRO or a ferences in favor of the non-moving compensated neutral of their own party.
choosing) pursuant to § 17.37, and shall (c) Either upon motion by a party or execute and file with the ODRA a writ- on its own initiative, the ODRA may, ten ADR agreement. Agreement of any at any time, exercise its discretion to: intervenor(s) to the use of ADR or the (1) Recommend to the Administrator resolution of a dispute through ADR dismissal or the issuance of a summary shall not be required. decision with respect to the entire pro- (e) If the Product Team or protester test; indicate that ADR proceedings will not (2) Dismiss the entire protest or issue be used, or if ADR is not successful in a summary decision with respect to the resolving the entire protest, the ODRA entire protest, if delegated that au- Director upon being informed of the thority by the Administrator; or situation, will schedule an adjudication (3) Dismiss or issue a summary deci- of the protest. sion with respect to any count or por- tion of a protest.
§ 17.19 Motions practice and dismissal (d) A dismissal or summary decision or summary decision of protests.
regarding the entire protest by either (a) Separate motions generally are the Administrator, or the ODRA by discouraged in ODRA bid protests. delegation, shall be construed as a final Counsel and parties are encouraged to agency order. A dismissal or summary incorporate any such motions in their decision that does not resolve all respective agency responses or com- counts or portions of a protest shall 14 CFR Ch. I (1–1–25 Edition) § 17.21 not constitute a final agency order, un- comments shall be provided to the less and until such dismissal or deci- other participating parties by the same sion is incorporated or otherwise means and on the same date as they adopted in a decision by the Adminis- are furnished to the ODRA. Comments trator (or the ODRA, by delegation) re- may include any supplemental relevant garding the entire protest. documents.
(e) Prior to recommending or enter- (f) The ODRA may alter the schedule ing either a dismissal or a summary de- for filing of the Product Team response cision, either in whole or in part, the and the comments for good cause or to ODRA shall afford all parties against accommodate the circumstances of a whom the dismissal or summary deci- particular protest.
sion is to be entered the opportunity to (g) The DRO or Special Master may respond to the proposed dismissal or convene the parties and/or their rep- summary decision. resentatives, as needed for the Adju- dicative Process.
§ 17.21 Adjudicative Process for pro- (h) If, in the sole judgment of the tests.
DRO or Special Master, the parties (a) Other than for the resolution of have presented written material suffi- preliminary or dispositive matters, the cient to allow the protest to be decided Adjudicative Process for protests will on the record presented, the DRO or be commenced by the ODRA Director Special Master shall have the discre- pursuant to § 17.17(e). tion to decide the protest on that basis.
(b) The Director of the ODRA shall (i) The parties may engage in lim- appoint a DRO or a Special Master to ited, focused discovery with one an- conduct the adjudication proceedings, other and, if justified, with non-par- develop the administrative record, and ties, so as to obtain information rel- prepare findings and recommendations evant to the allegations of the protest.
for review of the ODRA Director. (1) The DRO or Special Master shall (c) The DRO or Special Master may manage the discovery process, includ- conduct such proceedings and prepare ing limiting its length and availability, procedural orders for the proceedings and shall establish schedules and dead- as deemed appropriate; and may re- lines for discovery, which are con- quire additional submissions from the sistent with timeframes established in parties. this part and with the FAA policy of (d) The Product Team response to the providing fair and expeditious dispute protest will be due to be filed and resolution.
served ten (10) business days from the (2) The DRO or Special Master may commencement of the ODRA Adjudica- also direct the parties to exchange, in tion process. The Product Team re- an expedited manner, relevant, non- sponse shall consist of a written chron- privileged documents.
ological, supported statement of pro- (3) Where justified, the DRO or Spe- posed facts, and a written presentation cial Master may direct the taking of of applicable legal or other defenses. deposition testimony, however, the The Product Team response shall cite FAA dispute resolution process does to and be accompanied by all relevant not contemplate extensive discovery.
documents, which shall be chrono- (4) The use of interrogatories and re- logically indexed, individually tabbed, quests for admission is not permitted and certified as authentic and com- in ODRA bid protests.
plete. A copy of the response shall be (5) Where parties cannot voluntarily furnished so as to be received by the reach agreement on a discovery-related protester and any intervenor(s) on the issue, they may timely seek assistance same date it is filed with the ODRA. In from an ODRA ADR neutral or may file all cases, the Product Team shall indi- an appropriate motion with the ODRA.
cate the method of service used. Parties may request a subpoena.
(e) Comments of the protester and (6) Discovery requests and responses the intervenor on the Product Team re- are not part of the record and will not sponse will be due to be filed and be filed with the ODRA, except in con- served five (5) business days after their nection with a motion or other permis- receipt of the response. Copies of such sible filing.
Federal Aviation Administration, DOT § 17.23 (7) Unless timely objection is made, the requirements of the AMS, had a ra- documents properly filed with the tional basis, and whether the Product ODRA will be deemed admitted into Team decision was arbitrary, capri- the administrative record. cious or an abuse of discretion. Not- (j) Hearings are not typically held in withstanding the above, allegations bid protests. The DRO or Special Mas- that government officials acted with ter may conduct hearings, and may bias or in bad faith must be established limit the hearings to the testimony of by clear and convincing evidence.
specific witnesses and/or presentations (n) The DRO or Special Master has regarding specific issues. The DRO or broad discretion to recommend a rem- Special Master shall control the nature edy that is consistent with § 17.23.
and conduct of all hearings, including (o) A DRO or Special Master shall the sequence and extent of any testi- submit findings and recommendations mony. Hearings will be conducted: only to the Director of the ODRA or (1) Where the DRO or Special Master the Director’s designee. The findings determines that there are complex fac- and recommendations will be released tual issues in dispute that cannot ade- to the parties and to the public upon quately or efficiently be developed issuance of the final FAA order in the solely by means of written presen- case. If an ODRA protective order was tations and/or that resolution of the issued in connection with the protest, controversy will be dependent on his/ or if a protest involves proprietary or her assessment of the credibility of competition-sensitive information, a statements provided by individuals redacted version of the findings and with first-hand knowledge of the facts; recommendations, omitting any pro- or tected information, shall be prepared (2) Upon request of any party to the wherever possible and released to the protest, unless the DRO or Special public, as soon as is practicable, along Master finds specifically that a hearing with a copy of the final FAA order.
is unnecessary and that no party will Only persons admitted by the ODRA be prejudiced by limiting the record in under the protective order and Govern- the adjudication to the parties’ written ment personnel shall be provided cop- submissions. All witnesses at any such ies of the unredacted findings and rec- hearing shall be subject to cross-exam- ommendations that contain propri- ination by the opposing party and to etary or competition-sensitive infor- questioning by the DRO or Special mation.
Master. (p) Other than communications re- (k) The Director of the ODRA may garding purely procedural matters or review the status of any protest in the ADR, there shall be no substantive ex Adjudicative Process with the DRO or parte communication between ODRA Special Master. personnel and any principal or rep- (l) After the closing of the adminis- resentative of a party concerning a trative record, the DRO or Special pending or potentially pending matter.
Master will prepare and submit find- A potential or serving ADR neutral ings and recommendations to the may communicate on an ex parte basis ODRA that shall contain the following: to establish or conduct the ADR.
(1) Findings of fact; § 17.23 Protest remedies.
(2) Application of the principles of the AMS, and any applicable law or au- (a) The ODRA has broad discretion to thority to the findings of fact; recommend and impose protest rem- (3) A recommendation for a final edies that are consistent with the AMS FAA order; and and applicable law. Such remedies may (4) If appropriate, suggestions for fu- include, but are not limited to one or a ture FAA action. combination of, the following: (m) In preparing findings and rec- (1) Amend the SIR; ommendations in protests, the DRO or (2) Refrain from exercising options Special Master, using the preponder- under the contract; ance of the evidence standard, shall (3) Issue a new SIR; consider whether the Product Team ac- (4) Require a recompetition or reval- tions in question were consistent with uation; 14 CFR Ch. I (1–1–25 Edition) § 17.25 (5) Terminate an existing contract item, citing to relevant contract provi- for the FAA’s convenience; sions and attaching copies of the con- (6) Direct an award to the protester; tract and other relevant documents; (7) Award bid and proposal costs; or (4) Information establishing the (8) Any other remedy consistent with ODRA’s jurisdiction and the timeliness the AMS that is appropriate under the of the contract dispute; circumstances.
(5) A request for a specific remedy, (b) In determining the appropriate and the amount, if known, of any mon- recommendation, the ODRA may con- etary remedy requested, together with sider the circumstances surrounding pertinent cost information and docu- the procurement or proposed procure- mentation ( e.g. , invoices and cancelled ment including, but not limited to: the checks). Supporting documentation nature of the procurement deficiency; should be broken down by individual the degree of prejudice to other parties claim item and summarized; and or to the integrity of the acquisition (6) The signature of a duly authorized system; the good faith of the parties; representative of the initiating party.
the extent of performance completed; (b) Contract Disputes shall be filed the feasibility of any proposed remedy; with the ODRA, AGC–70, Federal Avia- the urgency of the procurement; the tion Administration, telephone (202) cost and impact of the recommended 267–3290 as follows: remedy; and the impact on the Agen- (1) 600 Independence Avenue SW., cy’s mission.
Room 2W100, Washington, DC 20591 for (c) Attorney’s fees of a prevailing filing by hand delivery, courier or protester are allowable to the extent other form of in-person delivery; permitted by the Equal Access to Jus- (2) 800 Independence Avenue SW., tice Act, 5 U.S.C. 504(a)(1) (EAJA) and Washington, DC 20591 [Attention: AGC– 14 CFR part 14.
70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or (3) Numbers (202) 267–3720 or alternate Subpart C—Contract Disputes (202) 267–1293 for filing by facsimile.
§ 17.25 Dispute resolution process for (c) A contract dispute against the contract disputes.
FAA shall be filed with the ODRA (a) All contract disputes arising within two (2) years of the accrual of under contracts subject to the AMS the contract claim involved. A con- shall be resolved under this subpart. tract dispute by the FAA against a (b) Contract disputes shall be filed contractor (excluding contract disputes with the ODRA pursuant to § 17.27. alleging warranty issues, fraud or la- (c) The ODRA has broad discretion to tent defects) likewise shall be filed recommend remedies for a contract within two (2) years of the accrual of dispute that are consistent with the the contract claim. If an underlying AMS and applicable law, including contract entered into prior to the effec- such equitable remedies or other rem- tive date of this part provides for time edies as it deems appropriate. limitations for filing of contract dis- putes with the ODRA, which differ § 17.27 Filing a contract dispute.
from the aforesaid two (2) year period, the limitation periods in the contract (a) Contract disputes must be in writ- shall control over the limitation period ing and should contain: (1) The contractor’s name, address, of this section. In no event will either telephone and Fax numbers and the party be permitted to file with the name, address, telephone and Fax num- ODRA a contract dispute seeking an bers of the contractor’s legal represent- equitable adjustment or other damages ative(s) (if any) for the contract dis- after the contractor has accepted final pute; contract payment, with the exception (2) The contract number and the of FAA contract disputes related to name of the Contracting Officer; warranty issues, gross mistakes (3) A detailed chronological state- amounting to fraud or latent defects.
ment of the facts and of the legal FAA contract disputes against the con- grounds underlying the contract dis- tractor based on warranty issues must pute, broken down by individual claim be filed within the time specified under Federal Aviation Administration, DOT § 17.31 applicable contract warranty provi- (1) A joint request for ADR, or an ex- sions. Any FAA contract disputes ecuted ADR agreement, pursuant to against the contractor based on gross § 17.37(d), specifying which ADR tech- mistakes amounting to fraud or latent niques will be employed; or defects shall be filed with the ODRA (2) Written explanation(s) as to why within two (2) years of the date on ADR proceedings will not be used and which the FAA knew or should have why the Adjudicative Process will be known of the presence of the fraud or needed.
latent defect.
(e) If the contract dispute is not com- (d) A party shall serve a copy of the pletely resolved during the informal contract dispute upon the other party, resolution period, the ODRA’s Adju- by means reasonably calculated to be dicative Process will commence unless received on the same day as the filing the parties have reached an agreement is received by the ODRA.
to attempt a formal ADR effort. As (e) With the exception of the time part of such an ADR agreement the limitations established herein for the parties, with the concurrence of the filing of contract disputes, the ODRA ODRA, may agree to defer commence- retains the discretion to modify any ment of the adjudication process pend- timeframe established herein in con- ing completion of the ADR or that the nection with contract disputes.
ADR and adjudication process will run [76 FR 55221, Sept. 7, 2011, as amended by concurrently. If a formal ADR is at- Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21, tempted but does not completely re- 2017] solve the contract dispute, the Adju- dicative Process will commence.
§ 17.29 Informal resolution period.
(f) The ODRA shall hold a status con- (a) The ODRA process for contract ference with the parties within ten (10) disputes includes an informal resolu- business days, or as soon thereafter as tion period of twenty (20) business days is practicable, of the ODRA’s receipt of from the date of filing in order for the a written notification that ADR pro- parties to attempt to informally re- ceedings will not be used, or have not solve the contract dispute either fully resolved the Contract Dispute.
through direct negotiation or with the The purpose of the status conference assistance of the ODRA. The CO, with will be to commence the Adjudicative the advice of FAA legal counsel, has Process and establish the schedule for full discretion to settle contract dis- adjudication.
putes, except where the matter in- (g) The submission of a statement volves fraud.
which indicates that ADR will not be (b) During the informal resolution utilized will not in any way preclude period, if the parties request it, the the parties from engaging in non-bind- ODRA will appoint a DRO for ADR who ing ADR techniques during the Adju- will discuss ADR options with the par- dicative Process, pursuant to subpart D ties, offer his or her services as a po- of this part.
tential neutral, and assist the parties to enter into an agreement for a formal § 17.31 Dismissal or summary decision ADR process. A person serving as a of contract disputes.
neutral in an ADR effort in a matter (a) Any party may request by mo- shall not serve as an adjudicating DRO tion, or the ODRA on its own initiative or Special Master for that matter.
may recommend or direct, that a con- (c) The informal resolution period tract dispute be dismissed, or that a may be extended at the request of the count or portion thereof be stricken, if: parties for good cause.
(1) It was not timely filed; (d) If the matter has not been re- (2) It was filed by a subcontractor or solved informally, the parties shall file other person or entity lacking stand- joint or separate statements with the ing; ODRA no later than twenty (20) busi- (3) It fails to state a matter upon ness days after the filing of the con- which relief may be had; or tract dispute. The ODRA may extend this time, pursuant to § 17.27(e). The (4) It involves a matter not subject to statement(s) shall include either: the jurisdiction of the ODRA.
14 CFR Ch. I (1–1–25 Edition) § 17.33 (b) Any party may request by mo- § 17.33 Adjudicative Process for con- tion, or the ODRA on its own initiative tract disputes.
may recommend or direct, that a sum- (a) The Adjudicative Process for con- mary decision be issued with respect to tract disputes will be commenced by a contract dispute, or any count or por- the ODRA Director upon being notified tion thereof if there are no material by the ADR neutral or by any party facts in dispute and a party is entitled that either— (1) The parties will not be attempting to a summary decision as a matter of ADR; or law.
(2) The parties have not settled all of (c) In connection with any potential the dispute issues via ADR, and it is dismissal of a contract dispute, or sum- unlikely that they can do so within the mary decision, the ODRA will consider time period allotted and/or any reason- any material facts in dispute in a light able extension.
most favorable to the party against (b) In cases initiated by a contractor whom the dismissal or summary deci- against the FAA, within twenty (20) sion would be entered, and draw all fac- business days of the commencement of tual inferences in favor of that party.
the Adjudicative Process or as sched- (d) At any time, whether pursuant to uled by the ODRA, the Product Team a motion or on its own initiative and shall prepare and submit to the ODRA, at its discretion, the ODRA may: with a copy to the contractor, a chron- (1) Dismiss or strike a count or por- ologically arranged and indexed sub- tion of a contract dispute or enter a stantive response, containing a legal partial summary decision; and factual position regarding the dis- pute and all documents relevant to the (2) Recommend to the Administrator facts and issues in dispute. The con- that the entire contract dispute be dis- tractor will be entitled, at a specified missed or that a summary decision be time, to supplement the record with entered; or additional documents.
(3) With a delegation from the Ad- (c) In cases initiated by the FAA ministrator, dismiss the entire con- against a contractor, within twenty tract dispute or enter a summary deci- (20) business days of the commence- sion with respect to the entire contract ment of the Adjudicative Process or as dispute.
scheduled by the ODRA, the contractor (e) An order of dismissal of the entire shall prepare and submit to the ODRA, contract dispute or summary decision with a copy to the Product Team coun- with respect to the entire contract dis- sel, a chronologically arranged and in- pute, issued either by the Adminis- dexed substantive response, containing trator or by the ODRA, on the grounds a legal and factual position regarding set forth in this section, shall con- the dispute and all documents relevant stitute a final agency order. An ODRA to the facts and issues in dispute. The order dismissing or striking a count or Product Team will be entitled, at a portion of a contract dispute or enter- specified time, to supplement the record with additional documents.
ing a partial summary judgment shall (d) Unless timely objection is made, not constitute a final agency order, un- documents properly filed with the less and until such ODRA order is in- ODRA will be deemed admitted into corporated or otherwise adopted in a the administrative record. Discovery final agency decision of the Adminis- requests and responses are not part of trator or the Administrator’s delegee the record and will not be filed with regarding the remainder of the dispute.
the ODRA, except in connection with a (f) Prior to recommending or enter- motion or other permissible filing. Des- ing either a dismissal or a summary de- ignated, relevant portions of such doc- cision, either in whole or in part, the uments may be filed, with the permis- ODRA shall afford all parties against sion of the ODRA.
whom the dismissal or summary deci- (e) The Director of the ODRA shall sion would be entered the opportunity assign a DRO or a Special Master to to respond to a proposed dismissal or conduct adjudicatory proceedings, de- summary decision.
velop the administrative adjudication Federal Aviation Administration, DOT § 17.33 record and prepare findings and rec- (k) The DRO or Special Master may ommendations for the review of the decide the contract dispute on the ODRA Director or the Director’s des- basis of the administrative record and ignee.
the submissions referenced in this sec- (f) The DRO or Special Master may tion, or may, in the DRO or Special conduct a status conference(s) as nec- Master’s discretion, direct the parties essary and issue such orders or deci- to make additional presentations in sions as are necessary to promote the writing. The DRO or Special Master efficient resolution of the contract dis- may conduct hearings, and may limit pute.
the hearings to the testimony of spe- (g) At any such status conference, or cific witnesses and/or presentations re- as necessary during the Adjudicative garding specific issues. The DRO or Process, the DRO or Special Master Special Master shall control the nature will: and conduct of all hearings, including (1) Determine the appropriate the sequence and extent of any testi- amount of discovery required; mony. Evidentiary hearings on the (2) Review the need for a protective record shall be conducted by the order, and if one is needed, prepare a ODRA: protective order pursuant to § 17.9; (1) Where the DRO or Special Master (3) Determine whether any issue can determines that there are complex fac- be stricken; and tual issues in dispute that cannot ade- (4) Prepare necessary procedural or- ders for the proceedings. quately or efficiently be developed (h) Unless otherwise provided by the solely by means of written presen- DRO or Special Master, or by agree- tations and/or that resolution of the ment of the parties with the concur- controversy will be dependent on his/ rence of the DRO or Special Master, re- her assessment of the credibility of sponses to written discovery shall be statements provided by individuals due within thirty (30) business days with first-hand knowledge of the facts; from the date received.
or (i) At a time or at times determined (2) Upon request of any party to the by the DRO or Special Master, and in contract dispute, unless the DRO or advance of the decision of the case, the Special Master finds specifically that a parties shall make individual final sub- hearing is unnecessary and that no missions to the ODRA and to the DRO party will be prejudiced by limiting the or Special Master, which submissions record in the adjudication to the par- shall include the following: ties’ written submissions. All witnesses (1) A statement of the issues; at any such hearing shall be subject to (2) A proposed statement of undis- cross-examination by the opposing puted facts related to each issue to- party and to questioning by the DRO or gether with citations to the adminis- Special Master.
trative record or other supporting ma- (l) The DRO or Special Master shall terials; (3) Separate statements of disputed prepare findings and recommendations, facts related to each issue, with appro- which will contain findings of fact, ap- priate citations to documents in the plication of the principles of the AMS Dispute File, to pages of transcripts of and other law or authority applicable any hearing or deposition, or to any af- to the findings of fact, and a rec- fidavit or exhibit which a party may ommendation for a final FAA order.
wish to submit with its statement; (m) The DRO or Special Master shall (4) Separate legal analyses in support conduct a de novo review using the pre- of the parties’ respective positions on ponderance of the evidence standard, disputed issues.
unless a different standard is pre- (j) Each party shall serve a copy of scribed for a particular issue. Notwith- its final submission on the other party standing the above, allegations that by means reasonably calculated so that government officials acted with bias or the other party receives such submis- in bad faith must be established by sions on the same day it is received by clear and convincing evidence.
the ODRA.
14 CFR Ch. I (1–1–25 Edition) § 17.35 (n) The Director of the ODRA may as mediation, neutral evaluation, bind- review the status of any contract dis- ing arbitration or variations of these pute in the Adjudicative Process with techniques as agreed by the parties and the DRO or Special Master. approved by the ODRA. At the begin- (o) A DRO or Special Master shall ning of each case, the ODRA assigns a submit findings and recommendations DRO as a potential neutral to explore to the Director of the ODRA or the Di- ADR options with the parties and to rector’s designee. The findings and rec- convene an ADR process. See § 17.35(b).
ommendations will be released to the (c) The ODRA Adjudicative Process parties and to the public, upon will be used where the parties cannot issuance of the final FAA order in the achieve agreement on the use of ADR; case. Should an ODRA protective order where ADR has been employed but has be issued in connection with the con- not resolved all pending issues in dis- tract dispute, or should the matter in- pute; or where the ODRA concludes volve proprietary or competition-sen- that ADR will not provide an expedi- sitive information, a redacted version tious means of resolving a particular of the findings and recommendations dispute. Even where the Adjudicative omitting any protected information, Process is to be used, the ODRA, with shall be prepared wherever possible and the parties’ consent, may employ infor- released to the public, as soon as is mal ADR techniques concurrently with practicable, along with a copy of the the adjudication.
final FAA order. Only persons admitted by the ODRA under the protective § 17.37 Election of alternative dispute order and Government personnel shall resolution process.
be provided copies of the unredacted (a) The ODRA will make its per- findings and recommendations.
sonnel available to serve as Neutrals in (p) Attorneys’ fees of a qualified pre- ADR proceedings and, upon request by vailing contractor are allowable to the the parties, will attempt to make extent permitted by the EAJA, 5 U.S.C.
qualified non-FAA personnel available 504(a)(1). See 14 CFR part 14.
to serve as Neutrals through neutral- (q) Other than communications re- sharing programs and other similar ar- garding purely procedural matters or rangements. The parties may elect to ADR, there shall be no substantive ex employ a mutually acceptable com- parte communication between ODRA pensated neutral at their expense.
personnel and any principal or rep- (b) The parties using an ADR process resentative of a party concerning a to resolve a protest shall submit an ex- pending or potentially pending matter.
ecuted ADR agreement containing the A potential or serving ADR neutral information outlined in paragraph (d) may communicate on an ex parte basis of this section to the ODRA pursuant to establish or conduct the ADR.
to § 17.17(c). The ODRA may extend this time for good cause.
Subpart D—Alternative Dispute (c) The parties using an ADR process Resolution to resolve a contract dispute shall sub- § 17.35 Use of alternative dispute reso- mit an executed ADR agreement con- lution.
taining the information outlined in paragraph (d) of this section to the (a) By statutory mandate, it is the ODRA pursuant to § 17.29.
policy of the FAA to use voluntary (d) The parties to a protest or con- ADR to the maximum extent prac- tract dispute who elect to use ADR ticable to resolve matters pending at must submit to the ODRA an ADR the ODRA. The ODRA therefore uses agreement setting forth: voluntary ADR as its primary means of (1) The agreed ADR procedures to be resolving all factual, legal, and proce- used; and dural controversies.
(b) The parties are encouraged to (2) The name of the neutral. If a com- make a good faith effort to explore pensated neutral is to be used, the ADR possibilities in all cases and to agreement must address how the cost employ ADR in every appropriate case. of the neutral’s services will be reim- The ODRA uses ADR techniques such bursed.
Federal Aviation Administration, DOT § 17.51 (e) Non-binding ADR techniques are § 17.43 Judicial review.
not mutually exclusive, and may be (a) A protester or contractor may used in combination if the parties seek review of a final FAA order, pur- agree that a combination is most ap- suant to 49 U.S.C. 46110, only after the propriate to the dispute. The tech- administrative remedies of this part niques to be employed must be deter- have been exhausted.
mined in advance by the parties and (b) A copy of the petition for review shall be expressly described in their shall be filed with the ODRA and the ADR agreement. The agreement may FAA Chief Counsel on the date that the provide for the use of any fair and rea- petition for review is filed with the ap- sonable ADR technique that is de- propriate circuit court of appeals.
signed to achieve a prompt resolution of the matter. An ADR agreement for § 17.45 Conforming amendments.
non-binding ADR shall provide for a The FAA shall amend pertinent pro- termination of ADR proceedings and visions of the AMS, standard contract the commencement of adjudication forms and clauses, and any guidance to under the Adjudicative Process, upon contracting officials, so as to conform the election of any party. Notwith- to the provisions of this part.
standing such termination, the parties § 17.47 Reconsideration.
may still engage with the ODRA in ADR techniques (neutral evaluation The ODRA will not entertain re- and/or informal mediation) concur- quests for reconsideration as a routine rently with adjudication.
matter, or where such requests evi- (f) Binding arbitration is available dence mere disagreement with a deci- through the ODRA, subject to the pro- sion or restatements of previous argu- visions of applicable law and the ODRA ments. A party seeking reconsideration Binding Arbitration Guidance dated must demonstrate either clear errors of October 2001 as developed in consulta- fact or law in the underlying decision or previously unavailable evidence that tion with the Department of Justice.
warrants reversal or modification of (g) The parties may, where appro- the decision. In order to be considered, priate in a given case, submit to the requests for reconsideration must be ODRA a negotiated protective order for filed within ten (10) business days of use in ADR in accordance with the re- the date of issuance of the public quirements of § 17.9.
version of the subject decision or order.
§ 17.39 Confidentiality of ADR.
Subpart F—Other Matters (a) The provisions of the Administra- tive Dispute Resolution Act of 1996, 5 § 17.49 Sanctions.
U.S.C. 571, et seq., shall apply to ODRA If any party or its representative ADR proceedings.
fails to comply with an Order or Direc- (b) The ODRA looks to the principles tive of the ODRA, the ODRA may enter of Rule 408 of the Federal Rules of Evi- such orders and take such other ac- dence in deciding admissibility issues tions as it deems necessary and in the related to ADR communications.
interest of justice.
(c) ADR communications are not part of the administrative record unless § 17.51 Decorum and professional con- otherwise agreed by the parties.
duct.
Legal representatives are expected to Subpart E—Finality and Review conduct themselves at all times in a civil and respectful manner appro- § 17.41 Final orders.
priate to an administrative forum. Ad- All final FAA orders regarding pro- ditionally, counsel are expected to con- tests or contract disputes under this duct themselves at all times in a pro- part are to be issued by the FAA Ad- fessional manner and in accordance ministrator or by a delegee of the Ad- with all applicable rules of professional ministrator. conduct.
14 CFR Ch. I (1–1–25 Edition) § 17.53 upon such a motion at any time after a § 17.53 Orders and subpoenas for testi- mony and document production. copy has been served upon all parties.
(f) The party that requests the DRO (a) Parties are encouraged to seek co- to issue a subpoena or order under this operative and voluntary production of section shall be responsible for the pay- documents and witnesses prior to re- ment of fees and mileage, as required questing a subpoena or an order under by 49 U.S.C. 46104(d), for witnesses, offi- this section.
cers who serve the order, and the offi- (b) Upon request by a party, or on his cer before whom a deposition is taken.
or her own initiative, a DRO or Special Master may, for good cause shown, (g) Subpoenas and orders issued order a person to give testimony by under this section may be enforced in a deposition and to produce records. Sec- judicial proceeding under 49 U.S.C.
tion 46104(c) of Title 49 of the United 46104(b).
States Code governs the conduct of depositions or document production. § 17.55 Standing orders of the ODRA Director.
(c) Upon request by a party, or on his or her own initiative, a DRO or Special The Director may issue such Stand- Master may, for good cause shown, sub- ing Orders as necessary for the orderly poena witnesses or records related to a conduct of business before the ODRA.
hearing from any place in the United States to the designated place of a Subpart G—Pre-Disputes hearing.
(d) A subpoena or order under this § 17.57 Dispute resolution process for section may be served by a United Pre-disputes.
States marshal or deputy marshal, or (a) All potential disputes arising by any other person who is not a party under contracts or solicitations with and not less than 18 years of age. Serv- the FAA may be resolved with the con- ice upon a person named therein shall sent of the parties to the dispute under be made by personally delivering a this subpart.
copy to that person and tendering the fees for one day’s attendance and the (b) Pre-disputes shall be filed with mileage provided by 28 U.S.C. 1821 or the ODRA pursuant to § 17.59.
other applicable law; however, where (c) The time limitations for the filing the subpoena is issued on behalf of the of Protests and Contract Disputes es- Product Team, money payments need tablished in §§ 17.15(a) and 17.27(c) will not be tendered in advance of attend- not be extended by efforts to resolve ance. The person serving the subpoena the dispute under this subpart.
or order shall file a declaration of serv- ice with the ODRA, executed in the § 17.59 Filing a Pre-dispute.
form required by 28 U.S.C. 1746. The (a) A Pre-dispute must be in writing, declaration of service shall be filed affirmatively state that it is a Pre-dis- promptly with the ODRA, and before pute pursuant to this subpart, and the date on which the person served shall contain: must respond to the subpoena or order.
(1) The party’s name, address, tele- (e) Upon written motion by the per- phone and Fax numbers and the name, son subpoenaed or ordered under this address, telephone and Fax numbers of section, or by a party, made within ten the contractor’s legal representative(s) (10) business days after service, but in (if any); any event not later than the time spec- (2) The contract or solicitation num- ified in the subpoena or order for com- ber and the name of the Contracting pliance, the DRO may— Officer; (1) Rescind or modify the subpoena or (3) A chronological statement of the order if it is unreasonable and oppres- sive or for other good cause shown, or facts and of the legal grounds for the (2) Require the party on whose behalf party’s positions regarding the dispute the subpoena or order was issued to ad- citing to relevant contract or solicita- vance the reasonable cost of producing tion provisions and documents and at- documentary evidence. Where cir- taching copies of those provisions and cumstances require, the DRO may act documents; and Federal Aviation Administration, DOT Pt. 17, App. A (4) The signature of a duly authorized A PPENDIX A TO P ART 17—A LTERNATIVE legal representative of the initiating D ISPUTE R ESOLUTION (ADR) party.
A. The FAA dispute resolution procedures (b) Pre-disputes shall be filed with encourage the parties to protests and con- the ODRA, AGC–70, Federal Aviation tract disputes to use ADR as the primary Administration, telephone (202) 267–3290 means to resolve protests and contract dis- putes, pursuant to the Administrative Dis- as follows: pute Resolution Act of 1996, Public Law 104– (1) 600 Independence Avenue SW., 320, 5 U.S.C. 570–579, and Department of Room 2W100, Washington, DC 20591 for Transportation and FAA policies to utilize filing by hand delivery, courier or ADR to the maximum extent practicable.
other form of in-person delivery; Under the procedures presented in this part, (2) 800 Independence Avenue SW., the ODRA encourages parties to consider ADR techniques such as case evaluation, me- Washington, DC 20591 [Attention: AGC– diation, or arbitration.
70, Wilbur Wright Bldg., Room 2W100] B. ADR encompasses a number of processes for filing by U.S. Mail; or and techniques for resolving protests or con- (3) Numbers (202) 267–3720 or alternate tract disputes. The most commonly used (202) 267–1293 for filing by facsimile.
types include: (c) Upon the filing of a Pre-dispute (1) Mediation. The neutral or compensated neutral ascertains the needs and interests of with the ODRA, the ODRA will contact both parties and facilitates discussions be- the opposing party to offer its services tween or among the parties and an amicable pursuant to § 17.57. If the opposing resolution of their differences, seeking ap- party agrees, the ODRA will provide proaches to bridge the gaps between the par- Pre-dispute services. If the opposing ties’’ respective positions. The neutral or party does not agree, the ODRA Pre- compensated neutral can meet with the par- ties separately, conduct joint meetings with dispute file will be closed and no serv- the parties’’ representatives, or employ both ice will be provided.
methods in appropriate cases.
[76 FR 55221, Sept. 7, 2011, as amended by (2) Neutral Evaluation. At any stage during Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21, the ADR process, as the parties may agree, 2017] the neutral or compensated neutral will pro- vide a candid assessment and opinion of the strengths and weaknesses of the parties’’ po- § 17.61 Use of alternative dispute reso- sitions as to the facts and law, so as to facili- lution.
tate further discussion and resolution.
(a) Only non-binding, voluntary ADR (3) Binding Arbitration. The ODRA, after will be used to attempt to resolve a consultation with the United States Depart- Pre-dispute pursuant to § 17.37.
ment of Justice in accordance with the pro- (b) ADR conducted under this sub- visions of the Administrative Disputes Reso- lution Act offers true binding arbitration in part is subject to the confidentiality cases within its jurisdiction. The ODRA’s requirements of § 17.39.
Guidance for the Use of Binding Arbitration may be found on its website at: http:// www.faa.gov/go/odra.