Procedures for Protests and Contracts Dispute, 2035-2048 [2011-397]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 8 (Wednesday, January 12, 2011)]
[Proposed Rules]
[Pages 2035-2048]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-397]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 17

[Docket No. FAA-2010-0840; Notice No. 10-18]
RIN 2120-AJ82


Procedures for Protests and Contracts Dispute

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action would update, simplify, and streamline the current 
regulations governing the procedures for bid protests brought against 
the FAA and contract disputes brought against or by the FAA. It would 
also add a voluntary dispute avoidance and early resolution process. 
This action is necessary to ensure the regulations reflect the changes 
that have evolved since 1999 when they were first implemented. The 
intended effect of this action is to streamline and further improve the 
protest and dispute process.

DATES: Send your comments on or before March 14, 2011.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
0840 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.

For more information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

    Privacy: We will post all comments we receive, without change, to 
https://www.regulations.gov, including any personal information you 
provide. Using the search function of the docket Web site, anyone can 
find and read the electronic form of all comments received into any of 
our dockets, including the name of the individual sending the comment 
(or signing the comment for an association, business, labor union, 
etc.). You may review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477-78) or you 
may visit https://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to 
https://www.regulations.gov at any time and follow the online 
instructions for accessing the docket or Docket Operations in Room W12-
140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marie A. Collins, Senior Attorney and 
Dispute Resolution Officer, FAA Office of Dispute Resolution for 
Acquisition, AGC-70, Room 8332, Federal Aviation Administration, 400 
7th Street, SW., Washington, DC 20590, telephone (202) 366-6400.

SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional 
Information section, we discuss how you can comment on this proposal 
and how we will handle your comments. Included in this discussion is 
related information about the docket, privacy, and the handling of 
proprietary or confidential business information. We also discuss how 
you can get a copy of related rulemaking documents.

Authority for This Rulemaking and Background

    In 1995 Congress, through the Department of Transportation

[[Page 2036]]

Appropriations Act,\1\ directed the FAA ``to develop and implement, not 
later than April 1, 1996, an acquisition management system that 
addressed the unique needs of the agency and, at a minimum, provided 
for more timely and cost effective acquisitions of equipment and 
materials.'' The Act instructed the FAA to design the system, 
notwithstanding provisions of Federal acquisition law, and to not use 
certain provisions of Federal acquisition law. In response, the FAA 
developed the Acquisition Management System (AMS) for the management of 
FAA procurement. The AMS included a system of policy guidance that 
maximized the use of agency discretion in the interest of best business 
practices. As a part of the AMS, the FAA created the Office of Dispute 
Resolution for Acquisition (ODRA) to facilitate the Administrator's 
review of procurement protests and contract disputes. In a 1996 notice 
\2\ published in the Federal Register, the FAA announced the creation 
of the ODRA and stated the agency would promulgate rules of procedure 
governing the dispute resolution process.
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    \1\ Public Law 104-50, 109 Stat. 436 (November 15, 1995).
    \2\ 61 FR 24348; May 14, 1996.
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    In August 1998, the FAA issued a Notice of Proposed Rulemaking 
(NPRM) \3\ that proposed regulations under 14 CFR part 17 for the 
conduct of protests and contract disputes under the FAA AMS. The 
comment period for the NPRM closed on October 26, 1998. On June 18, 
1999,\4\ the FAA published the final rule entitled, Procedures for 
Protests and Contract Disputes; Amendment of Equal Access to Justice 
Act Regulations, which codified (effective June 28, 1999) the 
procedures governing the dispute resolution process. On August 31, 
1999, the FAA published a document \5\ that made certain corrections to 
the June 1999 final rule.
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    \3\ 63 FR 45372; August 25, 1998.
    \4\ 64 FR 32926; June 18, 1999.
    \5\ 64 FR 47361; August 31, 1999.
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    In addition to the rules of procedures, ODRA operates pursuant to 
delegations of authority from the Administrator. In a memorandum signed 
(1998 Delegation) by the Administrator on July 29, 1998,\6\ the 
Administrator generally authorized the ODRA through its Director to 
provide dispute resolution services including administrative 
adjudication of all bid protests and contract disputes under the AMS. 
The 1998 Delegation further provided that all final decisions must be 
executed by the Administrator. The 1998 Delegation was expanded by a 
Delegation dated March 27, 2000 (2000 Delegation), which provided 
additional authority to the ODRA Director ``to execute and issue, on 
behalf of the Administrator, Orders and Final Decisions for the 
Administrator in all matters within the ODRA's jurisdiction valued at 
not more than $1 Million.'' \7\ The 2000 Delegation was superseded by a 
Delegation of Authority from the Administrator, dated March 10, 2004 
(2004 Delegation), which increased the dollar limit of the final 
decisional authority of the ODRA Director from $1 Million to $5 
Million.\8\ The 2004 Delegation was superseded by another Delegation of 
Authority dated March 31, 2010 (2010 Delegation), which increased the 
dollar limit of the final decisional authority of the ODRA Director 
from $5 Million to $10 Million.\9\
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    \6\ The FAA published the text of the delegations set forth in 
the July 29, 1998 memorandum in the Federal Register (see 63 FR 
49151; September 14, 1998).
    \7\ 65 FR 19958-01; April 13, 2000.
    \8\ 69 FR 17469-02; April 2, 2004.
    \9\ The 2010 Delegation was issued by the Administrator in a 
memorandum dated March 31, 2010. Although the FAA has not yet 
published the text of the memorandum in the Federal Register, the 
public can view the memorandum itself at https://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc70/odra_process/.
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    Congress provided further confirmation about the FAA's dispute 
resolution authority in the Vision 100--Century of Aviation 
Reauthorization Act of 2003 (2003 Reauthorization Act) See Public Law 
108-176, Sec.  224(b), 117 Stat. 2490, 2528 (codified as amended at 49 
U.S.C. 40110(d)(4)), which confirmed the ODRA's exclusive jurisdiction. 
Specifically, the 2003 Reauthorization Act expressly provided at 
Subsection (b)(2)(4) under the title ``Adjudication of Certain Bid 
Protests and Contract Disputes'', that ``[a] bid protest or contract 
dispute that is not addressed or resolved through alternative dispute 
resolution shall be adjudicated by the Administrator, through Dispute 
Resolution Officers or Special Masters of the Federal Aviation 
Administration Office of Dispute Resolution for Acquisition, acting 
pursuant to Sections 46102, 46104, 46105, 46106 and 46107 and shall be 
subject to judicial review under Section 46110 and Section 504 of Title 
5.''
    The ODRA dispute resolution procedures encourage the parties to 
protests and contract disputes to use Alternative Dispute Resolution 
(ADR) as the primary means to resolve protests and contract disputes, 
pursuant to the Administrative Dispute Resolution Act of 1996 
(``ADRA''), Pub. L. 104-320, 5 U.S.C. Sec. Sec.  570-579, and in 
consonance with Department of Transportation and FAA policies to 
maximize the use of ADR to the extent possible. Under these procedures, 
the ODRA actively encourages the parties to consider ADR techniques 
such as case evaluation, mediation, arbitration, or other types of ADR. 
In this regard, on October 15, 2001, the FAA published in the Federal 
Register Final Guidance (66 FR 52475) for the use of binding 
arbitration for purposes of resolving bid protests and contract 
disputes relating to procurements and contracts under the FAA AMS after 
receiving the concurrence of the Attorney General in accordance with 
Section 575 of the ADRA. Additionally, the ODRA developed an informal 
pre-dispute process, which provides voluntary dispute avoidance 
services that are available to parties upon request.

Statement of the Problem

    Since the issuance of the FAA's rules of procedure more than 10 
years ago, the ODRA's statutory and regulatory authorities for 
conducting a dispute resolution process evolved, along with the body of 
case law interpreting those rules. The ODRA's implementation of these 
rules of procedure also resulted in the identification of procedural 
issues in need of clarification to provide uniform guidance. The ODRA 
further identified certain aspects of the rules that need revision to 
reflect evolving practices at the ODRA, as well as evolving dispute 
resolution practices in general. An example of such practices is the 
increased emphasis on early intervention and dispute avoidance efforts. 
In consideration of this changing environment, the FAA is proposing to 
amend part 17 to incorporate the evolving practices; reflect the 
availability of a pre-dispute process; reorganize and streamline the 
rules for ease of use; and harmonize the existing part 17 rules with 
current statutory and other authority.

General Discussion of the Proposal

    The FAA's review of current part 17 identified aspects of the 
regulations that would benefit from a reorganization and consolidation 
of certain sections. For example, the procedures that pertain to filing 
and adjudicating protests and contract disputes are scattered 
throughout several subparts. In today's proposal, the procedures for 
filing and adjudicating protests and contract disputes are consolidated 
into subparts B and C, respectively. Also, the finality and review 
provisions are moved from current subpart F to proposed subpart E.

[[Page 2037]]

    The FAA also found that the regulations could be improved by 
including streamlined procedures, as well as providing expanded 
coverage in those instances where guidance was lacking or a process has 
evolved over time. Examples of expanded coverage include the proposed 
addition of a section on the confidentiality of ADR (Sec.  17.39) and a 
section for filing requests for reconsideration (Sec.  17.47). In 
addition to these proposed revisions, new sections are added to 
proposed subpart F to address ``other matters'' like sanctions and 
professional conduct. Further, new subpart G is added to address 
procedures for filing pre-disputes.

Discussion of the Proposed Regulatory Requirements

    A discussion, organized by subpart, and excluding minor editorial 
revisions and clarifications, of proposed changes to 14 CFR part 17, 
follows.

Subpart A--General

    Subpart A would be revised as noted below.

Definitions (Sec.  17.3)

    The following new definitions would be added to this section: 
Adjudicative Process, Default Adjudicative Process, Counsel, 
Contractor, Legal Representative, and Pre-disputes.

Filing and Computation of Time (Sec.  17.7)

    Paragraph (c) would be revised to clarify that ``other days on 
which Federal Government offices in Washington, DC are not open'' is an 
excluded timeframe in calculating time limits for filings. In addition, 
paragraph (d) would be added to allow the use of electronic filing 
where permitted by the ODRA.

Protective Orders (Sec.  17.9)

    Paragraph (d) would be revised to explain the type of sanctions 
that could be imposed if a protective order is violated.

Subpart B--Protests

    In subpart B, current Sec.  17.21 (Protest remedies) would be 
renumbered as Sec.  17.23, and the Adjudicative process for protests 
section that is currently in subpart E would be moved to proposed Sec.  
17.21.

Filing a Protest (Sec.  17.15)

    Paragraph (d)(2) would be revised to make clear the standard of 
review for a request for a suspension or delay of the procurement. 
Also, paragraph (d)(3) would be added to explain the possible 
consequences of protesters' failure to provide appropriate supporting 
documentation in their requests to suspend a procurement or contract 
performance.

Initial Protest Procedures (Sec.  17.17)

    In Sec.  17.17(a), the timeframes for responding to a request for a 
suspension or delay of the procurement would be revised according to 
the established ODRA practice of granting an extension until the date 
of the initial status conference. In Sec.  17.17(b), the purpose of the 
initial status conference would be clarified. In Sec.  17.17(c), the 
requirement that parties file a joint statement about whether they are 
pursuing ADR, and the adjudication timeframes that automatically begin 
when no ADR is contemplated would be removed.

Motions Practice and Dismissal or Summary Decision of Protests (Sec.  
17.19)

    Paragraph (a) would be revised to clarify the use of appropriate 
motions for dismissal or summary decision of protests and the ODRA's 
standard of review for such motions. Paragraph (d) would be revised to 
clarify when such a decision is construed as a final agency order.

Adjudicative Process for Protests (Sec.  17.21)

    In addition to moving the procedures for the Adjudicative Process 
for protests (from current Sec.  17.37 of subpart E) to proposed Sec.  
17.21 of subpart B, this section would be revised to more fully address 
the management of the discovery process and the type of discovery that 
is authorized. This section would be further revised to delineate the 
ODRA's standard of review for protests, the development of the 
administrative record, and under what circumstances ex parte 
communications are permitted in protests. In addition, the revisions to 
this section would address the procedures for preparing and issuing the 
ODRA's findings and recommendations and final FAA order.

Protest Remedies (Sec.  17.23)

    Paragraph (b) of this section would be revised to identify the 
factors the ODRA would consider in determining an appropriate remedy.

Subpart C--Contract Disputes

    In subpart C, current Sec. Sec.  17.23, 17.25, 17.27, and 17.29 
would be renumbered as Sec. Sec.  17.25, 17.27, 17.29 and 17.31, 
respectively. Section 17.33 (Adjudicative process for contract 
disputes), which would be moved from current Sec.  17.39 of subpart E, 
would be added to proposed subpart C. Also, the requirement in current 
Sec.  17.27 (Submission of joint or separate statements) would be 
deleted.

Filing a Contract Dispute (Sec.  17.25)

    Paragraph (a) would be revised to provide additional guidance on 
the information to be included in the contract dispute. Paragraph (e) 
would be added to state the ODRA retains the discretion to modify any 
timeframe established by the regulations in connection to contract 
disputes.

Informal Resolution Period (Sec.  17.29)

    This section would be revised to conform to current practice 
regarding the informal resolution process. This would include 
clarifications related to scheduling and assigning a potential neutral 
for ADR.

Dismissal or Summary Decision of Contract Disputes (Sec.  17.31)

    Section 17.31 would be revised to clarify the standard for 
requesting a dismissal or summary decision, and the process for 
responding to and issuing a decision on a request for dismissal or 
summary decision. This section would also be revised to clarify when 
such a decision is to be construed as a final agency order.

Adjudicative Process for Contract Disputes (Sec.  17.33)

    In addition to moving this section from current Sec.  17.39 of 
subpart E, Sec.  17.33 would be revised to clarify that the process for 
submitting the Dispute File applies to cases initiated by the 
contractor or alternatively by the FAA. Also, it would be revised to 
more fully explain what documents will be admitted into the 
administrative record and the timeframes for responding to written 
discovery. Further, the section would be revised to streamline the 
requirements for final submissions. Additionally, the proposed 
revisions would state that the ODRA must conduct a de novo review using 
the preponderance of the evidence standard, unless a different standard 
is required. The proposed revisions would also identify the 
circumstances under which ex parte communications are permitted in 
contract disputes.

Subpart D--Alternative Dispute Resolution

    The current sections under subpart D would be renumbered from 
Sec. Sec.  17.31 and 17.33 to Sec. Sec.  17.35 and 17.37, respectively. 
Also, new Sec.  17.39 (Confidentiality of ADR) would be added to 
provide the applicability of the Administrative Dispute Resolution Act 
of 1996, 5 U.S.C. Sec.  571 et seq., and to

[[Page 2038]]

clarify how ADR communications are treated. Further, current Sec.  
17.35 (Selection of neutrals for the alternative dispute resolution 
process) would be deleted.

Subpart E--Finality and Review

    As noted previously, Sec. Sec.  17.37 and 17.39 of current subpart 
E (Default Adjudicative Process) would be moved to subparts B (Sec.  
17.21) and C (Sec.  17.33), respectively. In today's proposal, the 
requirements in current subpart F (Finality and Review--Sec. Sec.  
17.41, 17.43, and 17.45) would be moved to subpart E. Also, Sec.  17.47 
(Reconsideration) would be added to subpart E to provide the timeframe 
for filing requests for reconsideration and to state the standard for 
reconsideration according to ODRA precedent.

Subpart F--Other Matters

    Subpart F would be revised to add sections covering sanctions, 
decorum and professional conduct, the use of orders and subpoenas for 
testimony and document production, and Standing Orders of the ODRA 
Director.

Subpart G--Pre-Disputes

    A new subpart (subpart G) would be added. This subpart would make 
clear that the pre-dispute process applies to all potential disputes 
arising under contracts or solicitations with the FAA. Also, it would 
set forth the process for filing a pre-dispute. Further, it would 
clarify the non-binding voluntary nature of the pre-dispute process and 
that it is subject to the confidentiality requirements of proposed 
Sec.  17.39.

Appendix A to Part 17--Alternative Dispute Resolution (ADR)

    Appendix A would be revised to eliminate the description of 
``Minitrial'' and to add a provision that addresses and clarifies the 
use of binding arbitration.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
is no new information collection requirement associated with this 
proposed rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

IV. Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impact of the proposed rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the costs and benefits is not prepared. 
Such a determination has been made for this proposed rule.
    The reasoning for this determination follows: Under the FAA's 
Acquisition Management System, the Office of Dispute Resolution for 
Acquisition (ODRA) manages the dispute resolution process, including 
administrative adjudication of all procurement protests and contract 
disputes. This proposed rule simplifies and clarifies the current part 
17 regulations under which the ODRA operates, including clarifying 
language and definitions, reorganization and consolidation of certain 
sections, and simplification and clarification of certain procedures 
such as filing requirements. These changes would be cost beneficial as 
they make it easier to use the dispute resolution process.
    In addition, the proposed rule is updated to incorporate changes in 
statutory authority and additional authority delegated by the 
Administrator to the ODRA. These changes would have no effect on costs 
or benefits. The rulemaking would also codify a voluntary dispute 
avoidance and early resolution process that the ODRA is already using. 
The voluntary process is inherently less costly than the more formal 
dispute resolution process. The FAA expects that codification of the 
voluntary process will increase its use, thereby lowering the cost of 
the dispute resolution process.
    Since the changes to the proposed rule would either be cost 
beneficial or have no cost effect, we expect the proposed rule to have 
a minimal impact with positive benefits. The FAA therefore has 
determined that this proposed rule does not warrant a full regulatory 
evaluation. The FAA requests comments regarding this determination.
    The FAA has also determined that this proposed rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide-range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) of the RFA provides that

[[Page 2039]]

the head of the agency may so certify and a regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.
    As noted above, the proposed changes to part 17 are either cost 
beneficial or have no effect on costs. Accordingly, the proposed rule 
would not have a significant impact on a substantial number of small 
entities. Therefore, the FAA certifies that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities. The FAA requests comments regarding this determination.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) in any one 
year by State, local, and Tribal governments, in the aggregate, or by 
the private sector; such a mandate is deemed to be a ``significant 
regulatory action.'' The FAA currently uses an inflation-adjusted value 
of $141.3 million.
    This proposed rule does not contain such a mandate. The 
requirements of Title II do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect on the States, on the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and, therefore, would not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312d and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this NPRM under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We have determined that it is not 
a ``significant energy action'' under the executive order, it is not a 
``significant regulatory action'' under Executive Order 12866 and DOT's 
Regulatory Policies and Procedures, and it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.

Additional Information

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, please send only one copy of written comments, or 
if you are filing comments electronically, please submit your comments 
only one time.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. Before acting on this proposal, we 
will consider all comments we receive on or before the closing date for 
comments. We will consider comments filed after the comment period has 
closed if it is possible to do so without incurring expense or delay. 
We may change this proposal in light of the comments we receive.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be 
proprietary or confidential business information. Send or deliver this 
information directly to the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this document. You must mark the 
information that you consider proprietary or confidential. If you send 
the information on a disk or CD-ROM, mark the outside of the disk or 
CD-ROM and identify electronically within the disk or CD-ROM the 
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when we are aware of proprietary information 
filed with a comment, we do not place it in the docket. We hold it in a 
separate file to which the public does not have access, and we place a 
note in the docket that we have received it. If we receive a request to 
examine or copy this information, we treat it as any other request 
under the Freedom of Information Act (5 U.S.C. 552). We process such a 
request under the DOT procedures found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by--
    1. Searching the Federal eRulemaking Portal (https://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at https://www.gpoaccess.gov/fr/.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket or notice number of this rulemaking.
    You may access all documents the FAA considered in developing this 
proposed rule, including economic analyses and technical reports, from 
the Internet through the Federal eRulemaking Portal referenced in 
paragraph (1).

List of Subjects in 14 CFR Part 17

    Administrative practice and procedure, Authority delegations 
(Government agencies), Government contracts.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend Chapter I of Title 14, Code of Federal 
Regulations by revising part 17 to read as follows:

PART 17--PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES

Subpart A--General
Sec.
17.1 Applicability.
17.3 Definitions.
17.5 Delegation of authority.
17.7 Filing and computation of time.
17.9 Protective orders.
Subpart B--Protests
17.11 Matters not subject to protest.
17.13 Dispute resolution process for protests.
17.15 Filing a protest.
17.17 Initial protest procedures.
17.19 Motions practice and dismissal or summary decision of 
protests.
17.21 Adjudicative process for protests.
17.23 Protest remedies.

[[Page 2040]]

Subpart C--Contract Disputes
17.25 Dispute resolution process for contract disputes.
17.27 Filing a contract dispute.
17.29 Informal resolution period.
17.31 Dismissal or summary decision of contract disputes.
17.33 Adjudicative Process for contract disputes.
Subpart D--Alternative Dispute Resolution
17.35 Use of alternative dispute resolution.
17.37 Election of alternative dispute resolution process.
17.39 Confidentiality of ADR.
Subpart E--Finality and Review
17.41 Final orders.
17.43 Judicial review.
17.45 Conforming amendments.
17.47 Reconsideration.
Subpart F--Other Matters
17.49 Sanctions.
17.51 Decorum and professional conduct.
17.53 Orders and subpoenas for testimony and document production.
17.55 Standing orders of the ODRA director.
Subpart G--Pre-Disputes
17.57 Dispute resolution process for pre-disputes.
17.59 Filing a pre-dispute.
17.61 Use of alternative dispute resolution.
Appendix A to Part 17--Alternative Dispute Resolution (ADR)

    Authority: 5 U.S.C. 570--581, 49 U.S.C. 106(f)(2), 40110, 40111, 
40112, 46102, 46014, 46105, 46109, and 46110.

Subpart A--General


Sec.  17.1  Applicability.

    This part applies to all Acquisition Management System (AMS) bid 
protests and contract disputes involving the FAA that are filed at the 
Office of Dispute Resolution for Acquisition (ODRA) on or after the 
effective date of these regulations, with the exception of those 
contract disputes arising under or related to FAA contracts entered 
into prior to April 1, 1996, where such contracts have not been 
modified to be made subject to the FAA AMS. This part also applies to 
pre-disputes as described in subpart G hereof.


Sec.  17.3  Definitions.

    (a) Accrual means to come into existence as a legally enforceable 
claim.
    (b) Accrual of a contract claim means that all events relating to a 
claim have occurred, which fix liability of either the government or 
the contractor and permit assertion of the claim, regardless of when 
the claimant actually discovered those events. For liability to be 
fixed, some injury must have occurred. Monetary damages need not have 
been incurred, but if the claim is for money, such damages must be 
capable of reasonable estimation. The accrual of a claim or the running 
of the limitations period may be tolled on equitable grounds, including 
but not limited to active concealment, fraud, or if the facts were 
inherently unknowable.
    (c) Acquisition Management System (AMS) establishes the policies, 
guiding principles, and internal procedures for the FAA's acquisition 
system.
    (d) Adjudicative Process is an administrative adjudicatory process 
used to decide protests and contract disputes where the parties have 
not achieved resolution through informal communication or the use of 
ADR. The Adjudicative Process is conducted by a Dispute Resolution 
Officer (DRO) or Special Master selected by the ODRA Director to 
preside over the case in accordance with Public Law 108-176, Section 
224, Codified at 49 U.S.C. 40110(d)(4).
    (e) Administrator means the Administrator of the Federal Aviation 
Administration.
    (f) Alternative Dispute Resolution (ADR) is the primary means of 
voluntary dispute resolution that is employed by the ODRA. See Appendix 
A of this part.
    (g) Compensated Neutral refers to an impartial third party chosen 
by the parties to act as a facilitator, mediator, or arbitrator 
functioning to resolve the protest or contract dispute under the 
auspices of the ODRA. The parties pay equally for the services of a 
compensated neutral, unless otherwise agreed to by the parties. An ODRA 
DRO or neutral cannot be a compensated neutral.
    (h) Contract Dispute, as used in this part, means a written request 
to the ODRA seeking, as a matter of right under an FAA contract subject 
to the AMS, the payment of money in a sum certain, the adjustment or 
interpretation of contract terms, or for other relief arising under, 
relating to, or involving an alleged breach of that contract. A 
contract dispute does not require, as a prerequisite, the issuance of a 
Contracting Officer final decision. Contract disputes, for purposes of 
ADR only, may also involve contracts not subject to the AMS.
    (i) Counsel refers to a Legal Representative who is an attorney 
licensed by a State, the District of Columbia, or a territory of the 
United States to practice law or appear before the courts of that State 
or territory.
    (j) Contractor is a party in contractual privity with the FAA and 
responsible for performance of a contract's requirements.
    (k) Discovery is the procedure whereby opposing parties in a 
protest or contract dispute may, either voluntarily or to the extent 
ordered by the ODRA, obtain testimony from, or documents and 
information held by, other parties or non-parties.
    (l) Dispute Resolution Officer (DRO) is an attorney and member of 
the ODRA staff. The term DRO can include the Director of the ODRA.
    (m) Interested party, in the context of a bid protest, is one whose 
direct economic interest has been or would be affected by the award or 
failure to award an FAA contract. Proposed subcontractors are not 
``interested parties'' within this definition and are not eligible to 
submit protests to the ODRA. Subcontractors not in privity with the FAA 
are not interested parties in the context of a contract dispute.
    (n) Intervenor is an interested party other than the protester 
whose participation in a protest is allowed by the ODRA. For a post-
award protest, the awardee of the contract that is the subject of the 
protest will be allowed, upon timely request, to participate as an 
intervenor in the protest. In such a protest, no other interested 
parties will be allowed to participate as intervenors.
    (o) Legal Representative is an individual(s) designated to act on 
behalf of a party in matters before the ODRA. Unless otherwise provided 
under Sec. Sec.  17.15(c)(2), 17.27(a)(1), or 17.59(a)(6), a Notice of 
Appearance must be filed with the ODRA containing the name, address, 
telephone and facsimile (Fax) numbers of a party's legal 
representative.
    (p) Neutral refers to an impartial third party in the ADR process 
chosen by the parties to act as a facilitator, mediator, arbitrator, or 
otherwise to aid the parties in resolving a protest or contract 
dispute. A neutral can be a DRO or a person not an employee of the 
ODRA.
    (q) ODRA is the FAA's exclusive forum acting on behalf of the 
Administrator, pursuant to the statutory authority granted by Public 
Law 108-176, Section 224, to provide dispute resolution services and to 
adjudicate matters within its jurisdiction. The ODRA may also provide 
non-binding dispute resolution services in matters outside of its 
jurisdiction where mutually requested to do so by the parties involved.
    (r) Parties include the protester(s) or the contractor, the FAA, 
and any intervenor(s).
    (s) Pre-Disputes mean an issue(s) in controversy concerning an FAA 
contract or solicitation of the parties that, by mutual agreement, is 
filed with the ODRA. See subpart G, hereof.
    (t) Product Team, as used in these rules, refers to the FAA 
organization(s) responsible for the procurement or

[[Page 2041]]

contracting activity, without regard to funding source, and includes 
the Contracting Officer (CO). The Product Team, acting through assigned 
FAA counsel, is responsible for all communications with and submissions 
to the ODRA in pending matters.
    (u) Screening Information Request (SIR) or Solicitation means a 
request by the FAA for documentation, information, presentations, 
proposals, or binding offers concerning an approach to meeting 
potential acquisition requirements established by the FAA.
    (v) A Special Master is a non-FAA attorney or judge who has been 
assigned by the ODRA to act as its finder of fact, and to make findings 
and recommendations based upon AMS policy and applicable law and 
authorities in the Adjudicative Process.


Sec.  17.5  Delegation of authority.

    (a) The authority of the Administrator to conduct dispute 
resolution and adjudicative proceedings concerning acquisition matters, 
is delegated to the Director of the ODRA.
    (b) The Director of the ODRA may redelegate to Special Masters and 
DROs such delegated authority in paragraph (a) of this section as 
deemed necessary by the Director for efficient resolution of an 
assigned protest or contract dispute, including the imposition of 
sanctions for the filing of frivolous pleadings, making false 
statements, or other disciplinary actions. See subpart F hereof.


Sec.  17.7  Filing and computation of time.

    (a) Filing of a protest or contract dispute may be accomplished by 
overnight delivery, by hand delivery, by Fax, or, if permitted by Order 
of the ODRA, by electronic filing. A protest or contract dispute is 
considered to be filed on the date it is received by the ODRA during 
normal business hours. The ODRA's normal business hours are from 8:30 
a.m. to 5 p.m. Eastern Time. A protest or contract dispute received 
after the time period prescribed for filing, shall not be considered 
timely filed. Service shall also be made on the CO pursuant to 
Sec. Sec.  17.15(e) and 17.27(d).
    (b) Submissions to the ODRA after the initial filing of a protest 
or contract dispute may be accomplished by any means available in 
paragraph (a) of this section. Copies of all such submissions shall be 
served on the opposing party or parties.
    (c) The time limits stated in this part are calculated in business 
days, which exclude weekends, Federal holidays and other days on which 
Federal Government offices in Washington, DC are not open. In computing 
time, the day of the event beginning a period of time shall not be 
included. If the last day of a period falls on a weekend or a Federal 
holiday, the first business day following the weekend or holiday shall 
be considered the last day of the period.
    (d) Electronic Filing. Procedures for electronic filing may be 
utilized where permitted by Order of the ODRA on a case-by-case basis 
or pursuant to a Standing Order of the ODRA permitting electronic 
filing.


Sec.  17.9  Protective orders.

    (a) The ODRA may issue protective orders addressing the treatment 
of protected information, including protected information in electronic 
form, either at the request of a party or upon its own initiative. Such 
information may include proprietary, confidential, or source-selection-
sensitive material, or other information the release of which could 
result in a competitive advantage to one or more firms.
    (b) The terms of the ODRA's standard protective order may be 
altered to suit particular circumstances, by negotiation of the 
parties, subject to the approval of the ODRA. The protective order 
establishes procedures for application for access to protected 
information, identification and safeguarding of that information, and 
submission of redacted copies of documents omitting protected 
information.
    (c) After a protective order has been issued, counsel or 
consultants retained by counsel appearing on behalf of a party may 
apply for access to the material under the order by submitting an 
application to the ODRA, with copies furnished simultaneously to all 
parties. The application shall establish that the applicant is not 
involved in competitive decision making for any firm that could gain a 
competitive advantage from access to the protected information and that 
the applicant will diligently protect any protected information 
received from inadvertent disclosure. Objections to an applicant's 
admission shall be raised within two (2) days of the application, 
although the ODRA may consider objections raised after that time for 
good cause.
    (d) Any violation of the terms of a protective order may result in 
the imposition of sanctions, including but not limited to removal of 
the violator from the protective order and reporting of the violator to 
his or her bar association(s), and the taking of other actions as the 
ODRA deems appropriate. Additional civil or criminal penalties may 
apply.

Subpart B--Protests


Sec.  17.11  Matters not subject to protest.

    The following matters may not be protested before the ODRA, except 
for review of compliance with the AMS:
    (a) FAA purchases from or through, State, local, and Tribal 
governments and public authorities;
    (b) FAA purchases from or through other Federal agencies;
    (c) Grants;
    (d) Cooperative agreements;
    (e) Other transactions.


Sec.  17.13  Dispute resolution process for protests.

    (a) Protests concerning FAA SIRs, solicitations, or contract awards 
shall be resolved pursuant to this part.
    (b) Potential protestors should, where possible, attempt to resolve 
any issues concerning potential protests with the CO. Such attempts are 
not a prerequisite to filing a protest with the ODRA.
    (c) Offerors or prospective offerors shall file a protest with the 
ODRA in accordance with Sec.  17.15. The protest time limitations set 
forth in Sec.  17.15 will not be extended by attempts to resolve a 
potential protest with the CO. Other than the time limitations 
specified in Sec.  17.15 for the filing of protests, the ODRA retains 
the discretion to modify any timeframes established herein in 
connection with protests.
    (d) In accordance with Sec.  17.17(b), the ODRA shall convene an 
initial status conference for the purpose of scheduling proceedings in 
the protest and to encourage the parties to consider using the ODRA's 
ADR process to attempt to resolve the protest, pursuant to subpart D of 
this part. It is the Agency's policy to use voluntary ADR to the 
maximum extent practicable. If the parties elect not to attempt ADR, or 
if ADR efforts do not completely resolve the protest, the protest will 
proceed under the ODRA Adjudicative Process set forth in subpart E of 
this part. Informal ADR techniques may be utilized simultaneously with 
ongoing adjudication.
    (e) The ODRA Director shall designate DROs, outside neutrals or 
Special Masters as potential neutrals for the resolution of protests 
through ADR. The ultimate choice of an ADR neutral is made by the 
parties participating in the ADR. The ODRA Director also shall, at his 
or her sole discretion, designate an adjudicating DRO or Special Master 
for each matter. A person serving as a neutral in an ADR effort in a 
matter, shall not serve as an adjudicating DRO or Special Master for 
that matter.
    (f) Multiple protests concerning the same SIR, solicitation, or 
contract award

[[Page 2042]]

may be consolidated at the discretion of the ODRA Director, and 
assigned to a single DRO or Special Master for adjudication.
    (g) Procurement activities, and, where applicable, contractor 
performance pending resolution of a protest, shall continue during the 
pendency of a protest, unless there is a compelling reason to suspend 
all or part of the procurement activities or contractor performance. 
Pursuant to Sec. Sec.  17.15(d) and 17.17(a), the ODRA may impose a 
temporary suspension and recommend suspension of award or contract 
performance, in whole or in part, for a compelling reason. A decision 
to suspend procurement activities or contractor performance is made in 
writing by the Administrator or the Administrator's delegee upon 
recommendation of the ODRA.


Sec.  17.15  Filing a protest.

    (a) An interested party may initiate a protest by filing with the 
ODRA in accordance with Sec.  17.7(a) within the timeframes set forth 
in this Section. Protests that are not timely filed shall be dismissed. 
The timeframes applicable to the filing of protests are as follows:
    (1) Protests based upon alleged improprieties in a solicitation or 
a SIR that are apparent prior to bid opening or the time set for 
receipt of initial proposals shall be filed prior to bid opening or the 
time set for the receipt of initial proposals.
    (2) In procurements where proposals are requested, alleged 
improprieties that do not exist in the initial solicitation, but which 
are subsequently incorporated into the solicitation, must be protested 
not later than the next closing time for receipt of proposals following 
the incorporation.
    (3) For protests other than those related to alleged solicitation 
improprieties, the protest must be filed on the later of the following 
two dates:
    (i) Not later than seven (7) business days after the date the 
protester knew or should have known of the grounds for the protest; or
    (ii) If the protester has requested a post-award debriefing from 
the FAA Product Team, not later than five (5) business days after the 
date on which the Product Team holds that debriefing.
    (b) Protests shall be filed at: (1) ODRA, AGC-70, Federal Aviation 
Administration, 800 Independence Avenue, SW., Room 323, Washington, DC 
20591. Telephone: (202) 267-3290. Fax: (202) 267-3720; or
    (2) Other address as shall be published from time to time in the 
Federal Register.
    (c) A protest shall be in writing, and set forth:
    (1) The protester's name, address, telephone number, and FAX 
number;
    (2) The name, address, telephone number, and FAX number of the 
protester's legal representative, and who shall be duly authorized to 
represent the protester, to be the point of contact;
    (3) The SIR number or, if available, the contract number and the 
name of the CO;
    (4) The basis for the protester's status as an interested party;
    (5) The facts supporting the timeliness of the protest;
    (6) Whether the protester requests a protective order, the material 
to be protected, and attach a redacted copy of that material;
    (7) A detailed statement of both the legal and factual grounds of 
the protest, and attach one (1) copy of each relevant document;
    (8) The remedy or remedies sought by the protester, as set forth in 
Sec.  17.23;
    (9) The signature of the legal representative, or another person 
duly authorized to represent the protester.
    (d) If the protester wishes to request a suspension of the 
procurement or contract performance, in whole or in part, and believes 
that a compelling reason(s) exists to suspend the procurement or 
contract performance because of the protested action, the protester 
shall, in its initial filing:
    (1) Set forth such compelling reason(s), supply all facts and 
documents supporting the protester's position; and
    (2) Demonstrate--(i) The protester has alleged a substantial case; 
(ii) The lack of a suspension would be likely to cause irreparable 
injury; (iii) The relative hardships on the parties favor a suspension; 
and (iv) Whether a suspension is in the public interest.
    (3) Failure of a protester to provide information or documents in 
support of a requested suspension or failure to address the elements of 
paragraph (d)(2) of this section may result in the summary rejection of 
the request for suspension, or a requirement that the protester 
supplement its request prior to the scheduling of a Product Team 
response to the request under Sec.  17.17(a).
    (e) Concurrently with the filing of a protest with the ODRA, the 
protester shall serve a copy of the protest on the CO and any other 
official designated in the SIR for receipt of protests, by means 
reasonably calculated to be received by the CO on the same day as it is 
to be received by the ODRA. The protest shall include a signed 
statement from the protester, certifying to the ODRA the manner of 
service, date, and time when a copy of the protest was served on the CO 
and other designated official(s).
    (f) Upon receipt of the protest, the CO shall notify the awardee of 
a challenged contract award in writing of the existence of the protest. 
The awardee and/or interested parties shall notify the ODRA in writing, 
of their interest in participating in the protest as intervenors within 
two (2) business days of receipt of the CO's notification, and shall, 
in such notice, designate a person as the point of contact for the 
ODRA.
    (g) The ODRA has discretion to designate the parties who shall 
participate in the protest as intervenors. In protests of awarded 
contracts, only the awardee may participate as an intervenor as a 
matter of right.


Sec.  17.17  Initial protest procedures.

    (a) If, as part of its initial protest filing, the protester 
requests a suspension of procurement activities or contractor 
performance in whole or in part, in accordance with Sec.  17.15(d), the 
Product Team shall submit a response to the request to the ODRA by no 
later than the close of business on the date of the initial scheduling 
conference or on such other date as is established by the ODRA. Copies 
of the response shall be furnished to the protester and any 
intervenor(s) so as to be received within the same timeframe. The 
protester and any intervenor(s) shall have the opportunity of providing 
additional comments on the response within two (2) business days of 
receiving it. Based on its review of such submissions, the ODRA, in its 
discretion, may:
    (1) Decline the suspension request; or
    (2) Recommend such suspension to the Administrator or the 
Administrator's designee. The ODRA also may impose a temporary 
suspension of no more than ten (10) business days, where it is 
recommending that the Administrator impose a suspension.
    (b) Within five (5) business days of the filing of a protest, or as 
soon thereafter as practicable, the ODRA shall convene an initial 
status conference for purposes of:
    (1) Reviewing the ODRA's ADR and adjudication procedures and 
establishing a preliminary schedule;
    (2) Identifying legal or other preliminary or potentially 
dispositive issues and answering the parties' questions regarding the 
ODRA process;
    (3) Dealing with issues related to protected information and the 
issuance of any needed protective order;
    (4) Encouraging the parties to consider using ADR;
    (5) Appointing a DRO as a potential ADR neutral to assist the 
parties in

[[Page 2043]]

considering ADR options and developing an ADR agreement; and
    (6) For any other reason deemed appropriate by the DRO or by the 
ODRA.
    (c) The Product Team and protester will have five (5) business days 
from the date of the initial status conference to decide whether they 
will attempt to use an ADR process in the case. With the agreement of 
the ODRA, ADR may be used concurrently with the adjudication of a 
protest. See Sec.  17.37(e).
    (d) Should the Product Team and protester elect to use ADR 
proceedings to resolve the protest, they will agree upon the neutral to 
conduct the ADR proceedings (either an ODRA DRO or a compensated 
neutral of their own choosing) pursuant to Sec.  17.37, and shall 
execute and file with the ODRA a written ADR agreement. Agreement of 
any intervenor(s) to the use of ADR or the resolution of a dispute 
through ADR shall not be required.
    (e) Should the Product Team or protester indicate that ADR 
proceedings will not be used, or if ADR is not successful in resolving 
the entire protest, the ODRA Director upon being informed of the 
situation, will schedule an adjudication of the protest.


Sec.  17.19  Motions practice and dismissal or summary decision of 
protests.

    (a) Separate motions generally are discouraged in ODRA bid 
protests. Counsel and parties are encouraged to incorporate any such 
motions in their respective agency responses or comments. Parties and 
counsel are encouraged to attempt to resolve typical motions issues 
through the ODRA ADR process. The ODRA may rule on any non-dispositive 
motion, where appropriate and necessary, after providing an opportunity 
for briefing on the motion by all affected parties. Unjustifiable, 
inappropriate use of motions may result in the imposition of sanctions. 
Where appropriate, a party may request by dispositive motion to the 
ODRA, or the ODRA may recommend or order, that:
    (1) The protest, or any count or portion of a protest, be dismissed 
for lack of jurisdiction, timeliness, or standing to pursue the 
protest;
    (2) The protest, or any count or portion of a protest, be 
dismissed, if frivolous or without basis in fact or law, or for failure 
to state a claim upon which relief may be had;
    (3) A summary decision be issued with respect to the protest, or 
any count or portion of a protest, if:
    (i) There are no material facts in dispute and the undisputed 
material facts demonstrate that the Product Team decision, action or 
inaction in question, was consistent with the requirements of the AMS, 
had a rational basis, and was not arbitrary, capricious or an abuse of 
discretion; or
    (ii) There are no material facts in dispute and the undisputed 
material facts demonstrate, that the Product Team decision, action or 
inaction in question, was inconsistent with the requirements of the 
AMS, lacked a rational basis or was arbitrary, capricious or an abuse 
of discretion.
    (b) In connection with consideration of possible dismissal or 
summary decision, the ODRA shall consider any material facts in 
dispute, in a light most favorable to the party against whom the 
dismissal or summary decision would operate and draw all factual 
inferences in favor of the non-moving party.
    (c) Either upon motion by a party or on its own initiative, the 
ODRA may, at any time, exercise its discretion to:
    (1) Recommend to the Administrator dismissal or the issuance of a 
summary decision with respect to the entire protest;
    (2) Dismiss the entire protest or issue a summary decision with 
respect to the entire protest, if delegated that authority by the 
Administrator; or
    (3) Dismiss or issue a summary decision with respect to any count 
or portion of a protest.
    (d) A dismissal or summary decision regarding the entire protest by 
either the Administrator, or the ODRA by delegation, shall be construed 
as a final agency order. A dismissal or summary decision that does not 
resolve all counts or portions of a protest shall not constitute a 
final agency order, unless and until such dismissal or decision is 
incorporated or otherwise adopted in a decision by the Administrator 
(or the ODRA, by delegation) regarding the entire protest.
    (e) Prior to recommending or entering either a dismissal or a 
summary decision, either in whole or in part, the ODRA shall afford all 
parties against whom the dismissal or summary decision is to be entered 
the opportunity to respond to the proposed dismissal or summary 
decision.


Sec.  17.21  Adjudicative Process for protests.

    (a) Other than for the resolution of preliminary or dispositive 
matters, the Adjudicative Process for protests will be commenced by the 
ODRA Director pursuant to Sec.  17.17(e).
    (b) The Director of the ODRA shall appoint a DRO or a Special 
Master to conduct the adjudication proceedings, develop the 
administrative record, and prepare findings and recommendations for 
review of the ODRA Director.
    (c) The DRO or Special Master may conduct such proceedings and 
prepare procedural orders for the proceedings as deemed appropriate; 
and may require additional submissions from the parties.
    (d) The Product Team response to the protest will be due to be 
filed and served ten (10) business days from the commencement of the 
ODRA Adjudication process. The Product Team response shall consist of a 
written chronological, supported statement of proposed facts, and a 
written presentation of applicable legal or other defenses. The Product 
Team response shall cite to and be accompanied by all relevant 
documents, which shall be chronologically indexed, individually tabbed, 
and certified as authentic and complete. A copy of the response shall 
be furnished so as to be received by the protester and any 
intervenor(s) on the same date it is filed with the ODRA. In all cases, 
the Product Team shall indicate the method of service used.
    (e) Comments of the protester and the intervenor on the Product 
Team response will be due to be filed and served five (5) business days 
after their receipt of the response. 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 ODRA. Comments may include 
any supplemental relevant documents.
    (f) The ODRA may alter the schedule for filing of the Product Team 
response and the comments for good cause or to accommodate the 
circumstances of a particular protest.
    (g) The DRO or Special Master may convene the parties and/or their 
representatives, as needed, to pursue the Adjudicative Process.
    (h) 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.
    (i) The parties may engage in limited, focused discovery with one 
another and, if justified, with non-parties, so as to obtain 
information relevant to the allegations of the protest.
    (1) 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 
timeframes established in this part and with the FAA policy of 
providing fair and expeditious dispute resolution.
    (2) The DRO or Special Master may also direct the parties to 
exchange, in an expedited manner, relevant, non-privileged documents.

[[Page 2044]]

    (3) 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.
    (4) The use of interrogatories and requests for admission is not 
permitted in ODRA bid protests.
    (5) Where parties cannot voluntarily reach agreement on a 
discovery-related issue, they may timely seek assistance from an ODRA 
ADR neutral or may file an appropriate motion with the ODRA. Parties 
may request a subpoena.
    (6) Discovery requests and responses are not part of the record and 
will not be filed with the ODRA, except in connection with a motion or 
other permissible filing.
    (7) Unless timely objection is made, documents properly filed with 
the ODRA will be deemed admitted into the administrative record.
    (k) Hearings are not typically held in bid protests. 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:
    (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.
    (l) The Director of the ODRA may review the status of any protest 
in the Adjudicative Pro