Procedures for Protests and Contracts Dispute, 55217-55230 [2011-22842]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Rules and Regulations]
[Pages 55217-55230]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22842]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 17

[Docket No. FAA-2010-0840; Amdt. No. 17-1]
RIN 2120-AJ82


Procedures for Protests and Contracts Dispute

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action updates, simplifies, and streamlines the current 
regulations governing the procedures for bid protests brought against 
the FAA and contract disputes brought against or by the FAA. It also 
adds a voluntary dispute avoidance and early resolution process. This 
action ensures the regulations reflect the changes that have evolved 
since they were first implemented in 1999. The intended effect of this 
action is to further improve the protest and dispute process.

DATES: Effective October 7, 2011.

ADDRESSES: For information on where to obtain copies of rulemaking 
documents and other information related to this final rule, see the How 
To Obtain Additional Information section of this document.

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: 

Authority for This Rulemaking and Background

    In 1995 Congress, through the Department of Transportation 
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 
by the Administrator on July 29, 1998 (1998 Delegation),\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

[[Page 55218]]

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''), Public Law 104-320, 5 U.S.C. 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.
    On January 12, 2011, the FAA published the Procedures for Protests 
and Contracts Dispute NPRM,\10\ which proposed to update, simplify and 
streamline the procedures for bid protests against the FAA and contract 
disputes brought against or by the FAA. The NPRM had a 60-day comment 
period, which ended March 14, 2011.
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    \10\ 76 FR 2035; January 12, 2011.
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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.

Overview of Final Rule

    In order to address the changing environment with respect to the 
FAA's dispute resolution process, the agency adopts the rules proposed 
in the Procedures for Protests and Contracts Dispute NPRM it published 
on January 12, 2011. Today's final rule revises part 17 to incorporate 
the ODRA's 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.
    The final rule reorganizes and consolidates for ease of use the 
current part 17 procedures for adjudicating protests and contract 
disputes. The procedures related to the adjudicative process for 
protests and for contract disputes that are currently in subpart E are 
now included in subpart B and subpart C, respectively. The finality and 
review provisions have been moved from subpart F to subpart E.
    Also, today's final rule includes streamlined procedures, as well 
as expanded coverage in areas where guidance was lacking or a process 
has evolved over time. Examples of expanded coverage include the 
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, new sections have been added to subpart F to address ``other 
matters'' like sanctions and professional conduct. Further, new subpart 
G has been added to address procedures for filing pre-disputes.

Summary of the NPRM

    The NPRM proposed to update, simplify, and streamline the FAA's 
regulations governing the procedures for bid protests brought against 
the FAA and contract disputes brought against or by the FAA. It also 
proposed to add a voluntary dispute avoidance and early resolution 
process. The FAA published the NPRM in the Federal Register on January 
12, 2011 with a 60-day comment period. The comment period ended on 
March 14, 2011. No comments were received to the rulemaking docket. You 
may refer to the NPRM for further details.

Discussion of Final Rule

    A discussion, organized by subpart, and excluding minor editorial 
revisions and clarifications, of the adopted changes to 14 CFR part 17, 
follows. Additionally, even though we received no comments, the FAA has 
made non-substantive editorial and clarifying changes to the NPRM which 
are explicitly identified below.

Subpart A--General

    Subpart A is revised as noted below.

Definitions (Sec.  17.3)

    The following new definitions are added to this section: 
Adjudicative Process, Default Adjudicative Process, Counsel, 
Contractor, Legal Representative, and Pre-disputes. An additional 
editorial change was made to correct the sentence structure of 
paragraph (s) by relocating the phrase ``of the parties.''

Filing and Computation of Time (Sec.  17.7)

    Paragraph (c) is 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) is added to allow the use of electronic filing where 
permitted by the ODRA.

Protective Orders (Sec.  17.9)

    Paragraph (d) is 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) is renumbered 
as Sec.  17.23, and the Adjudicative process for protests section that 
is currently in subpart E is moved to Sec.  17.21.

Filing a Protest (Sec.  17.15)

    Paragraph (d)(2) is revised to make clear the standard of review 
for a request for a suspension or delay of the procurement. Also, 
paragraph (d)(3) is added to explain the possible consequences of 
protesters'' failure to provide appropriate supporting documentation in 
their requests to suspend a procurement or contract performance. An 
additional editorial change was made to correct the sentence structure 
of paragraph (a)(1) by relocating the phrase ``SIR or solicitation,'' 
and to paragraph (d)(4) by substituting the word ``That'' for 
``Whether.''

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 are 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 is 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 are removed. An additional editorial change 
was made to correct the sentence structure by substituting the word 
``If'' for ``Should'' in paragraphs (d) and (e).

[[Page 55219]]

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

    Paragraph (a) is 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) is revised to clarify when 
such a decision is construed as a final agency order. An additional 
editorial change was made to provide consistency with Sec.  17.31(a) 
which states the same standard in a more concise manner.

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 is revised to more fully address the 
management of the discovery process and the type of discovery that is 
authorized. This section further is 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 
address the procedures for preparing and issuing the ODRA's findings 
and recommendations and final FAA order. An additional editorial change 
was made for clarification by replacing the words ``to pursue'' with 
``for.''

Protest Remedies (Sec.  17.23)

    Paragraph (b) of this section is revised to identify the factors 
the ODRA considers in determining an appropriate remedy.

Subpart C--Contract Disputes

    In subpart C, current Sec. Sec.  17.23, 17.25, 17.27, and 17.29 are 
renumbered as Sec. Sec.  17.25, 17.27, 17.29 and 17.31, respectively. 
Section 17.33 (Adjudicative process for contract disputes), which has 
been moved from current Sec.  17.39 of subpart E, is added to proposed 
subpart C. Also, the requirement in current Sec.  17.27 (Submission of 
joint or separate statements) is deleted. An additional editorial 
change was made to correct the sentence structure in Sec.  17.21 (p) by 
substituting the words ``if'' for ``should'' and ``be'' for ``was.'' An 
additional editorial change was made to delete the redundant phrase 
``or more.''

Filing a Contract Dispute (Sec.  17.25)

    Paragraph (a) is revised to provide additional guidance on the 
information to be included in the contract dispute. Paragraph (e) is 
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 is revised to conform to current practice regarding 
the informal resolution process. This includes clarifications related 
to scheduling and assigning a potential neutral for ADR.

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

    Section 17.31 is 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 also is 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 is 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 is 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 is revised to streamline the requirements for final 
submissions. Additionally, the revisions state that the ODRA must 
conduct a de novo review using the preponderance of the evidence 
standard, unless a different standard is required. The revisions also 
identify the circumstances under which ex parte communications are 
permitted in contract disputes. An additional editorial change was made 
to Sec.  17.33 (g)(1) to delete the unnecessary phrase ``to resolve the 
dispute.''

Subpart D--Alternative Dispute Resolution

    The current sections under subpart D are renumbered from Sec. Sec.  
17.31 and 17.33 to Sec. Sec.  17.35 and 17.37, respectively. Also, a 
new Sec.  17.39 (Confidentiality of ADR) is added to provide for the 
applicability of the Administrative Dispute Resolution Act of 1996, 5 
U.S.C. 571 et seq., and to clarify how ADR communications are treated. 
Further, current Sec.  17.35 (Selection of neutrals for the alternative 
dispute resolution process) is deleted. An additional editorial 
correction was made to Sec.  17.37 (e) to delete the word ``informal.'' 
An additional revision was made to Sec.  17.39 (c) to reflect current 
practice permitting the parties to agree to include ADR communications 
in the administrative record.

Subpart E--Finality and Review

    As noted previously, Sec. Sec.  17.37 and 17.39 of current subpart 
E (Default Adjudicative Process) is moved to subparts B (Sec.  17.21) 
and C (Sec.  17.33), respectively. In today's final rule, the 
requirements in current subpart F (Finality and Review--Sec. Sec.  
17.41, 17.43, and 17.45) are moved to subpart E. Also, Sec.  17.47 
(Reconsideration) is 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 is 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) is added. This subpart makes clear that 
the pre-dispute process applies to all potential disputes arising under 
contracts or solicitations with the FAA. Also, it sets forth the 
process for filing a pre-dispute. Further, it clarifies the non-binding 
voluntary nature of the pre-dispute process and that it is subject to 
the confidentiality requirements of Sec.  17.39.

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

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

Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Orders 12866 and 13563 direct 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

[[Page 55220]]

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 final 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 to 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 final 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 final rule simplifies and clarifies the current part 17 
regulations under which 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 will make it easier (less costly) to 
use the dispute resolution process.
    In addition, the final rule is updated to incorporate changes in 
statutory authority and additional authority delegated by the 
Administrator to ODRA (these changes will have no effect on expected 
costs). The rulemaking also will codify a voluntary dispute avoidance 
and early resolution process that 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 overall cost of 
dispute resolutions.
    Since no comments were received regarding our determination in the 
NPRM that the benefits exceed the costs, the FAA expects the final rule 
to have benefits that exceed the costs. The FAA therefore has 
determined that this final rule does not warrant a full regulatory 
evaluation.
    The FAA has also determined that this final 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 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 changes to part 17 are either cost beneficial 
or have no effect on costs. We received no comments regarding the 
initial regulatory flexibility analysis determination of no significant 
economic impact. Accordingly, the final rule will not have a 
significant impact on a substantial number of small entities. 
Therefore, as the FAA Administrator, I certify that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this final rule and determined it will 
have little or no effect on international trade as it applies to both 
foreign and domestic contractors with the FAA.

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 $140.8 million.
    This final rule does not contain such a mandate. The requirements 
of Title II do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We have determined that 
this action will 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, will 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 final rule 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 final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We

[[Page 55221]]

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.

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. The FAA has determined that 
there is no new requirement for information collection associated with 
this final 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 regulations.

Executive Order Determinations

Executive Order 12866

    See the ``Regulatory Evaluation'' discussion in the ``Regulatory 
Notices and Analyses'' section elsewhere in this preamble.

Executive Order 13132, Federalism

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

Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

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

How To Obtain Additional Information

Rulemaking Documents

    An electronic copy of a rulemaking document my be obtained by using 
the Internet--
    1. Search the Federal eRulemaking Portal (https://www.regulations.gov/);
    2. Visit the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies; or
    3. Access the Government Printing Office's Web page at https://www.gpoaccess.gov/fr/.
    Copies may also be obtained by sending a request (identified by 
notice, amendment, or docket number of this rulemaking) to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 0591, or by calling (202) 267-9680.

The Rulemaking Docket

    The rulemaking docket includes a copy of the rulemaking and related 
documents, as well as any public comments. You may access the docket 
for this rulemaking at https://www.regulations.gov. Follow the online 
instructions to search the docket number for this action.
    While no comments were filed to this rulemaking docket, anyone is 
able to search the electronic form of comments received into any of the 
FAA's dockets by using the name of the individual submitting the 
comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.).

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document, 
may contact its local FAA official, or the person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the Internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 17

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

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends 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.
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

[[Page 55222]]

(ODRA) on or after October 7, 2011, 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 of this part.


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 that, by mutual agreement of the parties, is 
filed with the ODRA. See subpart G of this part.
    (t) Product Team, as used in these rules, refers to the FAA 
organization(s) responsible for the procurement or 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 of this part.


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

[[Page 55223]]

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 
Contracting Officer (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 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 SIR or solicitation improprieties 
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

[[Page 55224]]

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 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) That 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) Concurrent 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 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) If 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) If 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

[[Page 55225]]

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 there are no material facts in 
dispute and a party is entitled to summary decision as a matter of law.
    (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 for 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.
    (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.
    (j) 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 unn