Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 2035 

the concern and the percentage of its 

revenues derived from Energy Saving 

Activities during its most recently 

completed fiscal year. 

(2) If a pre-Financing determination of 

eligibility by SBA is required under the 

definition of Energy Saving Activities or 

Energy Saving Qualified Investment: 

(i) If the concern did not derive at 

least 50% of its revenues during its most 

recently completed fiscal year from 

Energy Saving Activities, submit to SBA 

in writing all available information 

concerning the factors considered under 

paragraph (3) of the definition of 

‘‘Energy Saving Qualified Investment’’ in 

§ 107.50, certified by both you and the 

concern to be true and correct to the 

best of your knowledge. 

(ii) If you are requesting a 

determination by SBA that the activities 

in which the concern is primarily 

engaged are Energy Saving Activities, 

submit to SBA in writing a description 

of the product or service being provided 

or developed, including all available 

documentation of the energy savings 

produced or anticipated, addressing the 

factors considered under paragraph (4) 

of the definition of ‘‘Energy Saving 

Activities’’ in § 107.50 and certified by 

both you and the concern to be true and 

correct to the best of your knowledge. 

4. Amend § 107.1150 by adding a 

sentence at the end of paragraph (c) 

introductory text and adding paragraph 

(d) to read as follows: 

§ 107.1150 Maximum amount of Leverage 

for a Section 301(c) Licensee. 

* * * * * 

(c) * * * Any investment that you 

use as a basis to seek additional leverage 

under this paragraph (c) cannot also be 

used to seek additional leverage under 

paragraph (d) of this section. 

* * * * * 

(d) Additional Leverage based on 

Energy Saving Qualified Investments in 

Smaller Enterprises. (1) Subject to SBA’s 

credit policies, if you were licensed on 

or after October 1, 2008, you may have 

outstanding Leverage in excess of the 

amounts permitted by paragraphs (a) 

and (b) of this section in accordance 

with this paragraph (d). Any investment 

that you use as a basis to seek additional 

Leverage under this paragraph (d) 

cannot also be used to seek additional 

Leverage under paragraph (c) of this 

section. 

(2) To determine whether you may 

request a draw that would cause you to 

have outstanding Leverage in excess of 

the amount determined under paragraph 

(a) of this section: 

(i) Determine the cost basis, as 

reported on your most recent filing of 

SBA Form 468, of any Energy Saving 

Qualified Investments in a Smaller 

Enterprise that individually do not 

exceed 20% of your Regulatory Capital. 

(ii) Calculate the amount that equals 

33% of your Leverageable Capital. 

(iii) Subtract from your outstanding 

Leverage the lesser of (d)(1)(i) or 

(d)(1)(ii). 

(iv) If the amount calculated in 

paragraph (d)(1)(iii) is less than the 

maximum Leverage determined under 

paragraph (a) of this section, the 

difference between the two amounts 

equals your additional Leverage 

availability. 

Dated: January 6, 2011. 

Karen G. Mills, 

Administrator. 

[FR Doc. 2011–486 Filed 1–11–11; 8:45 am] 

BILLING CODE 8025–01–P 

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). 

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 

http://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 http:// 

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 http://DocketsInfo.dot.gov. 

Docket: To read background 

documents or comments received, go to 

http://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 

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1Public Law 104–50, 109 Stat. 436 (November 15, 

1995). 

2 61 FR 24348; May 14, 1996. 

3 63 FR 45372; August 25, 1998. 

4 64 FR 32926; June 18, 1999. 

5 64 FR 47361; August 31, 1999. 

6The 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. 

9The 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 

http://www.faa.gov/about/office_org/ 

headquarters_offices/agc/pol_adjudication/agc70/ 

odra_process/. 

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. 

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. 

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

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, § 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. §§ 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. 

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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 

(§ 17.39) and a section for filing requests 

for reconsideration (§ 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 predisputes. 

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 (§ 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 (§ 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 (§ 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 § 17.21 (Protest 

remedies) would be renumbered as 

§ 17.23, and the Adjudicative process 

for protests section that is currently in 

subpart E would be moved to proposed 

§ 17.21. 

Filing a Protest (§ 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 (§ 17.17) 

In § 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 § 17.17(b), the purpose of 

the initial status conference would be 

clarified. In § 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 (§ 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 

(§ 17.21) 

In addition to moving the procedures 

for the Adjudicative Process for protests 

(from current § 17.37 of subpart E) to 

proposed § 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 (§ 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 §§ 17.23, 17.25, 

17.27, and 17.29 would be renumbered 

as §§ 17.25, 17.27, 17.29 and 17.31, 

respectively. Section 17.33 

(Adjudicative process for contract 

disputes), which would be moved from 

current § 17.39 of subpart E, would be 

added to proposed subpart C. Also, the 

requirement in current § 17.27 

(Submission of joint or separate 

statements) would be deleted. 

Filing a Contract Dispute (§ 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 (§ 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 (§ 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 (§ 17.33) 

In addition to moving this section 

from current § 17.39 of subpart E, 

§ 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 §§ 17.31 and 

17.33 to §§ 17.35 and 17.37, 

respectively. Also, new § 17.39 

(Confidentiality of ADR) would be 

added to provide the applicability of the 

Administrative Dispute Resolution Act 

of 1996, 5 U.S.C. § 571 et seq., and to 

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2038 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

clarify how ADR communications are 

treated. Further, current § 17.35 

(Selection of neutrals for the alternative 

dispute resolution process) would be 

deleted. 

Subpart E—Finality and Review 

As noted previously, §§ 17.37 and 

17.39 of current subpart E (Default 

Adjudicative Process) would be moved 

to subparts B (§ 17.21) and C (§ 17.33), 

respectively. In today’s proposal, the 

requirements in current subpart F 

(Finality and Review—§§ 17.41, 17.43, 

and 17.45) would be moved to subpart 

E. Also, § 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 § 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-forprofit 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 

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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 (http://www.regulations.gov); 

2. Visiting the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies or 

3. Accessing the Government Printing 

Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

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. 

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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 predisputes. 

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 

§ 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. 

§ 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 

§§ 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 

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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. 

§ 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. 

§ 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 §§ 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. 

§ 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-selectionsensitive 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 

§ 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. 

§ 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 § 17.15. The protest 

time limitations set forth in § 17.15 will 

not be extended by attempts to resolve 

a potential protest with the CO. Other 

than the time limitations specified in 

§ 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 § 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 

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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 §§ 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. 

§ 17.15 Filing a protest. 

(a) An interested party may initiate a 

protest by filing with the ODRA in 

accordance with § 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 § 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 § 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. 

§ 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 § 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 

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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 § 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 § 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. 

§ 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. 

§ 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 § 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, nonprivileged documents. 

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(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 crossexamination 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 Process with the DRO or 

Special Master. 

(m) After the closing of the 

administrative record, the DRO or 

Special Master will prepare and submit 

findings and recommendations to the 

ODRA that shall contain the following: 

(1) Findings of fact; 

(2) Application of the principles of 

the AMS, and any applicable law or 

authority to the findings of fact; 

(3) A recommendation for a final FAA 

order; and 

(4) If appropriate, suggestions for 

future FAA action. 

(n) In preparing findings and 

recommendations in protests, the DRO 

or Special Master, using the 

preponderance of the evidence 

standard, shall consider whether the 

Product Team actions in question were 

consistent with the requirements of the 

AMS, had a rational basis, and whether 

the Product Team decision was 

arbitrary, capricious or an abuse of 

discretion. Notwithstanding the above, 

allegations that government officials 

acted with bias or in bad faith must be 

established by clear and convincing 

evidence. 

(o) The DRO or Special Master has 

broad discretion to recommend a 

remedy that is consistent with § 17.23. 

(p) A DRO or Special Master shall 

submit findings and recommendations 

only to the Director of the ODRA or the 

Director’s designee. The findings and 

recommendations will be released to the 

parties and to the public upon issuance 

of the final FAA order in the case. 

Should an ODRA protective order be 

issued in connection with the protest, or 

should a protest involve proprietary or 

competition-sensitive information, a 

redacted version of the findings and 

recommendations, omitting any 

protected information, shall be prepared 

wherever possible and released to the 

public, as soon as is practicable, along 

with a copy of the final FAA order. Only 

persons admitted by the ODRA under 

the protective order and Government 

personnel shall be provided copies of 

the unredacted findings and 

recommendations that contain 

proprietary or competition-sensitive 

information. 

(q) Other than communications 

regarding purely procedural matters or 

ADR, there shall be no substantive ex 

parte communication between ODRA 

personnel and any principal or 

representative of a party concerning a 

pending or potentially pending matter. 

A potential or serving ADR neutral may 

communicate on an ex parte basis to 

establish or conduct the ADR. 

§ 17.23 Protest remedies. 

(a) The ODRA has broad discretion to 

recommend and impose protest 

remedies that are consistent with the 

AMS and applicable law. Such remedies 

may include, but are not limited to one 

or more, or a combination of, the 

following: 

(1) Amend the SIR; 

(2) Refrain from exercising options 

under the contract; 

(3) Issue a new SIR; 

(4) Require a recompetition or 

revaluation; 

(5) Terminate an existing contract for 

the FAA’s convenience; 

(6) Direct an award to the protester; 

(7) Award bid and proposal costs; or 

(8) Any other remedy consistent with 

the AMS that is appropriate under the 

circumstances. 

(b) In determining the appropriate 

recommendation, the ODRA may 

consider the circumstances surrounding 

the procurement or proposed 

procurement including, but not limited 

to: the nature of the procurement 

deficiency; the degree of prejudice to 

other parties or to the integrity of the 

acquisition system; the good faith of the 

parties; the extent of performance 

completed; the feasibility of any 

proposed remedy; the urgency of the 

procurement; the cost and impact of the 

recommended remedy, and the impact 

on the Agency’s mission. 

(c) Attorney’s fees of a prevailing 

protester are allowable to the extent 

permitted by the Equal Access to Justice 

Act, 5 U.S.C. 504(a)(1)(EAJA) and 14 

CFR part 14. 

Subpart C—Contract Disputes 

§ 17.25 Dispute resolution process for 

contract disputes. 

(a) All contract disputes arising under 

contracts subject to the AMS shall be 

resolved under this subpart. 

(b) Contract disputes shall be filed 

with the ODRA pursuant to § 17.27. 

(c) The ODRA has broad discretion to 

recommend remedies for a contract 

dispute that are consistent with the 

AMS and applicable law, including 

such equitable remedies or other 

remedies as it deems appropriate. 

§ 17.27 Filing a contract dispute. 

(a) Contract disputes must be in 

writing and should contain: 

(1) The contractor’s name, address, 

telephone and Fax numbers and the 

name, address, telephone and Fax 

numbers of the contractor’s legal 

representative(s) (if any) for the contract 

dispute; 

(2) The contract number and the name 

of the Contracting Officer; 

(3) A detailed chronological statement 

of the facts and of the legal grounds 

underlying the contract dispute, broken 

down by individual claim item, citing to 

relevant contract provisions and 

attaching copies of the contract and 

other relevant documents; 

(4) Information establishing the 

ODRA’s jurisdiction and the timeliness 

of the contract dispute; 

(5) A request for a specific remedy, 

and the amount, if known, of any 

monetary remedy requested, together 

with pertinent cost information and 

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documentation (e.g., invoices and 

cancelled checks). Supporting 

documentation should be broken down 

by individual claim item and 

summarized; and 

(6) The signature of a duly authorized 

representative of the initiating party. 

(b) Contract disputes shall be filed at 

the following address: ODRA, AGC–70, 

Federal Aviation Administration, 800 

Independence Avenue, SW., Room 323, 

Washington, DC 20591. Telephone: 

(202) 267–3290. Fax: (202) 267–3720. 

(c) A contract dispute against the FAA 

shall be filed with the ODRA within two 

(2) years of the accrual of the contract 

claim involved. A contract dispute by 

the FAA against a contractor (excluding 

contract disputes alleging warranty 

issues, fraud or latent defects) likewise 

shall be filed within two (2) years of the 

accrual of the contract claim. If an 

underlying contract entered into prior to 

the effective date of this part provides 

for time limitations for filing of contract 

disputes with the ODRA, which differ 

from the aforesaid two (2) year period, 

the limitation periods in the contract 

shall control over the limitation period 

of this section. In no event will either 

party be permitted to file with the 

ODRA a contract dispute seeking an 

equitable adjustment or other damages 

after the contractor has accepted final 

contract payment, with the exception of 

FAA contract disputes related to 

warranty issues, gross mistakes 

amounting to fraud or latent defects. 

FAA contract disputes against the 

contractor based on warranty issues 

must be filed within the time specified 

under applicable contract warranty 

provisions. Any FAA contract disputes 

against the contractor based on gross 

mistakes amounting to fraud or latent 

defects shall be filed with the ODRA 

within two (2) years of the date on 

which the FAA knew or should have 

known of the presence of the fraud or 

latent defect. 

(d) A party shall serve a copy of the 

contract dispute upon the other party, 

by means reasonably calculated to be 

received on the same day as the filing 

is received by the ODRA. 

(e) With the exception of the time 

limitations established herein for the 

filing of contract disputes, the ODRA 

retains the discretion to modify any 

timeframe established herein in 

connection with contract disputes. 

§ 17.29 Informal resolution period. 

(a) The ODRA process for contract 

disputes includes an informal resolution 

period of twenty (20) business days 

from the date of filing in order for the 

parties to attempt to informally resolve 

the contract dispute either through 

direct negotiation or with the assistance 

of the ODRA. The CO, with the advice 

of FAA legal counsel, has full discretion 

to settle contract disputes, except where 

the matter involves fraud. 

(b) During the informal resolution 

period, if the parties request it, the 

ODRA will appoint a DRO for ADR who 

will discuss ADR options with the 

parties, offer his or her services as a 

potential neutral, and assist the parties 

to enter into an agreement for a formal 

ADR process. 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. 

(c) The informal resolution period 

may be extended at the request of the 

parties for good cause. 

(d) If the matter has not been resolved 

informally, the parties shall file joint or 

separate statements with the ODRA no 

later than twenty (20) business days 

after the filing of the contract dispute. 

The ODRA may extend this time, 

pursuant to § 17.27(e). The statement(s) 

shall include either: 

(1) A joint request for ADR, or an 

executed ADR agreement, pursuant to 

§ 17.37(d), specifying which ADR 

techniques will be employed; or 

(2) Written explanation(s) as to why 

ADR proceedings will not be used and 

why the Adjudicative Process will be 

needed. 

(e) If the contract dispute is not 

completely resolved during the informal 

resolution period, the ODRA’s 

Adjudicative Process will commence 

unless the parties have reached an 

agreement to attempt a formal ADR 

effort. As part of such an ADR 

agreement the parties, with the 

concurrence of the ODRA, may agree to 

defer commencement of the 

adjudication process pending 

completion of the ADR or that the ADR 

and adjudication process will run 

concurrently. If a formal ADR is 

attempted but does not completely 

resolve the contract dispute, the 

Adjudicative Process will commence. 

(f) The ODRA shall hold a status 

conference with the parties within ten 

(10) business days, or as soon thereafter 

as is practicable, of the ODRA’s receipt 

of a written notification that ADR 

proceedings will not be used, or have 

not fully resolved the Contract Dispute. 

The purpose of the status conference 

will be to commence the Adjudicative 

Process and establish the schedule for 

adjudication. 

(g) The submission of a statement 

which indicates that ADR will not be 

utilized will not in any way preclude 

the parties from engaging in nonbinding ADR techniques during the 

Adjudicative Process, pursuant to 

subpart D. 

§ 17.31 Dismissal or summary decision of 

contract disputes. 

(a) Any party may request by motion, 

or the ODRA on its own initiative may 

recommend or direct, that a contract 

dispute be dismissed, or that a count or 

portion thereof be stricken, if: 

(1) It was not timely filed; 

(2) It was filed by a subcontractor or 

other person or entity lacking standing; 

(3) It fails to state a matter upon 

which relief may be had; or 

(4) It involves a matter not subject to 

the jurisdiction of the ODRA. 

(b) Any party may request by motion, 

or the ODRA on its own initiative may 

recommend or direct, that a summary 

decision be issued with respect to a 

contract dispute, or any count or portion 

thereof if there are no material facts in 

dispute and a party is entitled to a 

summary decision as a matter of law. 

(c) In connection with any potential 

dismissal of a contract dispute, or 

summary decision, the ODRA will 

consider any material facts in dispute in 

a light most favorable to the party 

against whom the dismissal or summary 

decision would be entered, and draw all 

factual inferences in favor of that party. 

(d) At any time, whether pursuant to 

a motion or on its own initiative and at 

its discretion, the ODRA may: 

(1) Dismiss or strike a count or 

portion of a contract dispute or enter a 

partial summary decision; 

(2) Recommend to the Administrator 

that the entire contract dispute be 

dismissed or that a summary decision 

be entered; or 

(3) With a delegation from the 

Administrator, dismiss the entire 

contract dispute or enter a summary 

decision with respect to the entire 

contract dispute. 

(e) An order of dismissal of the entire 

contract dispute or summary decision 

with respect to the entire contract 

dispute, issued either by the 

Administrator or by the ODRA, on the 

grounds set forth in this section, shall 

constitute a final agency order. An 

ODRA order dismissing or striking a 

count or portion of a contract dispute or 

entering a partial summary judgment 

shall not constitute a final agency order, 

unless and until such ODRA order is 

incorporated or otherwise adopted in a 

final agency decision of the 

Administrator or the Administrator’s 

delegee regarding the remainder of the 

dispute. 

(f) 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 

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whom the dismissal or summary 

decision would be entered the 

opportunity to respond to a proposed 

dismissal or summary decision. 

§ 17.33 Adjudicative Process for contract 

disputes. 

(a) The Adjudicative Process for 

contract disputes will be commenced by 

the ODRA Director upon being notified 

by the ADR neutral or by any party that 

either: 

(1) The parties will not be attempting 

ADR; or 

(2) The parties have not settled all of 

the dispute issues via ADR, and it is 

unlikely that they can do so within the 

time period allotted and/or any 

reasonable extension. 

(b) In cases initiated by a contractor 

against the FAA, within twenty (20) 

business days of the commencement of 

the Adjudicative Process or as 

scheduled by the ODRA, the Product 

Team shall prepare and submit to the 

ODRA, with a copy to the contractor, a 

chronologically arranged and indexed 

substantive response, containing a legal 

and factual position regarding the 

dispute and all documents relevant to 

the facts and issues in dispute. The 

contractor will be entitled, at a specified 

time, to supplement the record with 

additional documents. 

(c) In cases initiated by the FAA 

against a contractor, within twenty (20) 

business days of the commencement of 

the Adjudicative Process or as 

scheduled by the ODRA, the contractor 

shall prepare and submit to the ODRA, 

with a copy to the Product Team 

counsel, a chronologically arranged and 

indexed substantive response, 

containing a legal and factual position 

regarding the dispute and all documents 

relevant to the facts and issues in 

dispute. The Product Team will be 

entitled, at a specified time, to 

supplement the record with additional 

documents. 

(d) Unless timely objection is made, 

documents properly filed with the 

ODRA will be deemed admitted into the 

administrative record. 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. 

Designated, relevant portions of such 

documents may be filed, with the 

permission of the ODRA. 

(e) The Director of the ODRA shall 

assign a DRO or a Special Master to 

conduct adjudicatory proceedings, 

develop the administrative adjudication 

record and prepare findings and 

recommendations for the review of the 

ODRA Director or the Director’s 

designee. 

(f) The DRO or Special Master may 

conduct a status conference(s) as 

necessary and issue such orders or 

decisions as are necessary to promote 

the efficient resolution of the contract 

dispute. 

(g) At any such status conference, or 

as necessary during the Adjudicative 

Process, the DRO or Special Master will: 

(1) Determine the appropriate amount 

of discovery required to resolve the 

dispute; 

(2) Review the need for a protective 

order, and if one is needed, prepare a 

protective order pursuant to § 17.9; 

(3) Determine whether any issue can 

be stricken; and 

(4) Prepare necessary procedural 

orders for the proceedings. 

(h) Unless otherwise provided by the 

DRO or Special Master, or by agreement 

of the parties with the concurrence of 

the DRO or Special Master, responses to 

written discovery shall be due within 

thirty (30) business days from the date 

received. 

(i) At a time or at times determined by 

the DRO or Special Master, and in 

advance of the decision of the case, the 

parties shall make individual final 

submissions to the ODRA and to the 

DRO or Special Master, which 

submissions shall include the following: 

(1) A statement of the issues; 

(2) A proposed statement of 

undisputed facts related to each issue 

together with citations to the 

administrative record or other 

supporting materials; 

(3) Separate statements of disputed 

facts related to each issue, with 

appropriate citations to documents in 

the Dispute File, to pages of transcripts 

of any hearing or deposition, or to any 

affidavit or exhibit which a party may 

wish to submit with its statement; 

(4) Separate legal analyses in support 

of the parties’ respective positions on 

disputed issues. 

(j) Each party shall serve a copy of its 

final submission on the other party by 

means reasonably calculated so that the 

other party receives such submissions 

on the same day it is received by the 

ODRA. 

(k) The DRO or Special Master may 

decide the contract dispute on the basis 

of the administrative record and the 

submissions referenced in this section, 

or may, in the DRO or Special Master’s 

discretion, direct the parties to make 

additional presentations in writing. The 

DRO or Special Master may conduct 

hearings, and may limit the hearings to 

the testimony of specific witnesses and/ 

or presentations regarding specific 

issues. The DRO or Special Master shall 

control the nature and conduct of all 

hearings, including the sequence and 

extent of any testimony. Evidentiary 

hearings on the record shall be 

conducted by the ODRA: 

(1) Where the DRO or Special Master 

determines that there are complex 

factual issues in dispute that cannot 

adequately or efficiently be developed 

solely by means of written presentations 

and/or that resolution of the controversy 

will be dependent on his/her 

assessment of the credibility of 

statements provided by individuals with 

first-hand knowledge of the facts; or 

(2) Upon request of any party to the 

contract dispute, unless the DRO or 

Special Master finds specifically that a 

hearing is unnecessary and that no party 

will be prejudiced by limiting the record 

in the adjudication to the parties’ 

written submissions. All witnesses at 

any such hearing shall be subject to 

cross-examination by the opposing party 

and to questioning by the DRO or 

Special Master. 

(l) The DRO or Special Master shall 

prepare findings and recommendations, 

which will contain findings of fact, 

application of the principles of the AMS 

and other law or authority applicable to 

the findings of fact, a recommendation 

for a final FAA order. 

(m) The DRO or Special Master shall 

conduct a de novo review using the 

preponderance of the evidence 

standard, unless a different standard is 

prescribed for a particular issue. 

Notwithstanding the above, allegations 

that government officials acted with bias 

or in bad faith must be established by 

clear and convincing evidence. 

(n) The Director of the ODRA may 

review the status of any contract dispute 

in the Adjudicative Process with the 

DRO or Special Master. 

(o) A DRO or Special Master shall 

submit findings and recommendations 

to the Director of the ODRA or the 

Director’s designee. The findings and 

recommendations will be released to the 

parties and to the public, upon issuance 

of the final FAA order in the case. 

Should an ODRA protective order be 

issued in connection with the contract 

dispute, or should the matter involve 

proprietary or competition-sensitive 

information, a redacted version of the 

findings and recommendations omitting 

any protected information, shall be 

prepared wherever possible and 

released to the public, as soon as is 

practicable, along with a copy of the 

final FAA order. Only persons admitted 

by the ODRA under the protective order 

and Government personnel shall be 

provided copies of the unredacted 

findings and recommendations. 

(p) Attorneys’ fees of a qualified 

prevailing contractor are allowable to 

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the extent permitted by the EAJA, 5 

U.S.C. 504(a)(1). See 14 CFR part 14. 

(q) Other than communications 

regarding purely procedural matters or 

ADR, there shall be no substantive ex 

parte communication between ODRA 

personnel and any principal or 

representative of a party concerning a 

pending or potentially pending matter. 

A potential or serving ADR neutral may 

communicate on an ex parte basis to 

establish or conduct the ADR. 

Subpart D—Alternative Dispute 

Resolution 

§ 17.35 Use of alternative dispute 

resolution. 

(a) By statutory mandate, it is the 

policy of the FAA to use voluntary ADR 

to the maximum extent practicable to 

resolve matters pending at the ODRA. 

The ODRA therefore uses voluntary 

ADR as its primary means of resolving 

all factual, legal, and procedural 

controversies. 

(b) The parties are encouraged to 

make a good faith effort to explore ADR 

possibilities in all cases and to employ 

ADR in every appropriate case. The 

ODRA uses ADR techniques such as 

mediation, neutral evaluation, binding 

arbitration or variations of these 

techniques as agreed by the parties and 

approved by the ODRA. At the 

beginning of each case, the ODRA 

assigns a DRO as a potential neutral to 

explore ADR options with the parties 

and to convene an ADR process. See 

§ 17.35(b). 

(c) The ODRA Adjudicative Process 

will be used where the parties cannot 

achieve agreement on the use of ADR; 

or where ADR has been employed but 

has not resolved all pending issues in 

dispute; or where the ODRA concludes 

that ADR will not provide an 

expeditious means of resolving a 

particular dispute. Even where the 

Adjudicative Process is to be used, the 

ODRA, with the parties’ consent, may 

employ informal ADR techniques 

concurrently with the adjudication. 

§ 17.37 Election of alternative dispute 

resolution process. 

(a) The ODRA will make its personnel 

available to serve as Neutrals in ADR 

proceedings and, upon request by the 

parties, will attempt to make qualified 

non-FAA personnel available to serve as 

Neutrals through neutral-sharing 

programs and other similar 

arrangements. The parties may elect to 

employ a mutually acceptable 

compensated neutral at their expense. 

(b) The parties using an ADR process 

to resolve a protest shall submit an 

executed ADR agreement containing the 

information outlined in paragraph (d) of 

this section to the ODRA pursuant to 

§ 17.17(c). The ODRA may extend this 

time for good cause. 

(c) The parties using an ADR process 

to resolve a contract dispute shall 

submit an executed ADR agreement 

containing the information outlined in 

paragraph (d) of this section to the 

ODRA pursuant to § 17.29. 

(d) The parties to a protest or contract 

dispute who elect to use ADR must 

submit to the ODRA an ADR agreement 

setting forth: 

(1) The agreed ADR procedures to be 

used; and 

(2) The name of the neutral. If a 

compensated neutral is to be used, the 

agreement must address how the cost of 

the neutral’s services will be 

reimbursed. 

(e) Non-binding ADR techniques are 

not mutually exclusive, and may be 

used in combination if the parties agree 

that a combination is most appropriate 

to the dispute. The techniques to be 

employed must be determined in 

advance by the parties and shall be 

expressly described in their ADR 

agreement. The agreement may provide 

for the use of any fair and reasonable 

ADR technique that is designed to 

achieve a prompt resolution of the 

matter. An ADR agreement for nonbinding ADR shall provide for a 

termination of ADR proceedings and the 

commencement of adjudication under 

the Adjudicative Process, upon the 

election of any party. Notwithstanding 

such termination, the parties may still 

engage with the ODRA in informal ADR 

techniques (neutral evaluation and/or 

informal mediation) concurrently with 

adjudication. 

(f) Binding arbitration is available 

through the ODRA, subject to the 

provisions of applicable law and the 

ODRA Binding Arbitration Guidance 

dated October 2001 as developed in 

consultation with the Department of 

Justice. 

(g) The parties may, where 

appropriate in a given case, submit to 

the ODRA a negotiated protective order 

for use in ADR in accordance with the 

requirements of § 17.9. 

§ 17.39 Confidentiality of ADR. 

(a) The provisions of the 

Administrative Dispute Resolution Act 

of 1996, 5 U.S.C. 571, et seq., shall 

apply to ODRA ADR proceedings. 

(b) The ODRA looks to the principles 

of the Federal Rule of Evidence 408 in 

deciding admissibility issues related to 

ADR communications. 

(c) ADR communications are not part 

of the administrative record. 

Subpart E—Finality and Review 

§ 17.41 Final orders. 

All final FAA orders regarding 

protests or contract disputes under this 

part are to be issued by the FAA 

Administrator or by a delegee of the 

Administrator. 

§ 17.43 Judicial review. 

(a) A protester or contractor may seek 

review of a final FAA order, pursuant to 

49 U.S.C. 46110, only after the 

administrative remedies of this part 

have been exhausted. 

(b) A copy of the petition for review 

shall be filed with the ODRA and the 

FAA Chief Counsel on the date that the 

petition for review is filed with the 

appropriate circuit court of appeals. 

§ 17.45 Conforming amendments. 

The FAA shall amend pertinent 

provisions of the AMS, standard 

contract forms and clauses, and any 

guidance to contracting officials, so as to 

conform to the provisions of this part. 

§ 17.47 Reconsideration. 

The ODRA will not entertain requests 

for reconsideration as a routine matter, 

or where such requests evidence mere 

disagreement with a decision or 

restatements of previous arguments. A 

party seeking reconsideration must 

demonstrate either clear errors of fact or 

law in the underlying decision or 

previously unavailable evidence that 

warrants reversal or modification of the 

decision. In order to be considered, 

requests for reconsideration must be 

filed within ten (10) business days of 

the date of issuance of the public 

version of the subject decision or order. 

Subpart F—Other Matters 

§ 17.49 Sanctions. 

If any party or its representative fails 

to comply with an Order or Directive of 

the ODRA, the ODRA may enter such 

orders and take such other actions as it 

deems necessary and in the interest of 

justice. 

§ 17.51 Decorum and professional 

conduct. 

Legal representatives are expected to 

conduct themselves at all times in a 

civil and respectful manner appropriate 

to an administrative forum. 

Additionally, counsel are expected to 

conduct themselves at all times in a 

professional manner and in accordance 

with all applicable rules of professional 

conduct. 

§ 17.53 Orders and subpoenas for 

testimony and document production. 

(a) Parties are encouraged to seek 

cooperative and voluntary production of 

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2048 Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Proposed Rules 

documents and witnesses prior to 

requesting a subpoena or an order under 

this section. 

(b) Upon request by a party, or on his 

or her own initiative, a DRO or Special 

Master may, for good cause shown, 

order a person to give testimony by 

deposition and to produce records. 

Section 46104(c) of Title 49 of the 

United States Code governs the conduct 

of depositions or document production. 

(c) Upon request by a party, or on his 

or her own initiative, a DRO or Special 

Master may, for good cause shown, 

subpoena witnesses or records related to 

a hearing from any place in the United 

States to the designated place of a 

hearing. 

(d) A subpoena or order under this 

section may be served by a United 

States marshal or deputy marshal, or by 

any other person who is not a party and 

not less than 18 years of age. Service 

upon a person named therein shall be 

made by personally delivering a copy to 

that person and tendering the fees for 

one day’s attendance and the mileage 

provided by 28 U.S.C. 1821 or other 

applicable law; however, where the 

subpoena is issued on behalf of the 

Product Team, money payments need 

not be tendered in advance of 

attendance. The person serving the 

subpoena or order shall file a 

declaration of service with the ODRA, 

executed in the form required by 28 

U.S.C. 1746. The declaration of service 

shall be filed promptly with the ODRA, 

and before the date on which the person 

served must respond to the subpoena or 

order. 

(e) Upon written motion by the person 

subpoenaed or ordered under this 

section, or by a party, made within ten 

(10) business days after service, but in 

any event not later than the time 

specified in the subpoena or order for 

compliance, the DRO may: 

(1) Rescind or modify the subpoena or 

order if it is unreasonable and 

oppressive or for other good cause 

shown, or 

(2) Require the party in whose behalf 

the subpoena or order was issued to 

advance the reasonable cost of 

producing documentary evidence. 

Where circumstances require, the DRO 

may act upon such a motion at any time 

after a copy has been served upon all 

parties. 

(f) The party that requests the DRO to 

issue a subpoena or order under this 

section shall be responsible for the 

payment of fees and mileage, as 

required by 49 U.S.C. 46104(d), for 

witnesses, officers who serve the order, 

and the officer before whom a 

deposition is taken. 

(g) Subpoenas and orders issued 

under this section may be enforced in a 

judicial proceeding under 49 U.S.C. 

46104(b). 

§ 17.55 Standing orders of the ODRA 

director. 

The Director may issue such Standing 

Orders as necessary for the orderly 

conduct of business before the ODRA. 

Subpart G—Pre-Disputes 

§ 17.57 Pre-dispute resolution process. 

(a) All potential disputes arising 

under contracts or solicitations with the 

FAA may be resolved with the consent 

of the parties to the dispute under this 

subpart. 

(b) Pre-disputes shall be filed with the 

ODRA pursuant to § 17.59. 

(c) The time limitations for the filing 

of Protests and Contract Disputes 

established in §§ 17.15(a) and 17.27(c) 

will not be extended by efforts to 

resolve the dispute under this subpart. 

§ 17.59 Filing a pre-dispute. 

(a) A Pre-dispute must be in writing, 

affirmatively state that it is a Pre-dispute 

pursuant to this subpart, and shall 

contain: 

(1) The party’s name, address, 

telephone and Fax numbers and the 

name, address, telephone and Fax 

numbers of the contractor’s legal 

representative(s) (if any); 

(2) The contract or solicitation 

number and the name of the Contracting 

Officer; 

(3) A chronological statement of the 

facts and of the legal grounds for the 

party’s positions regarding the dispute 

citing to relevant contract or solicitation 

provisions and documents and attaching 

copies of those provisions and 

documents; and 

(6) The signature of a duly authorized 

legal representative of the initiating 

party. 

(b) Pre-disputes shall be filed at the 

following address: ODRA, AGC–70, 

Federal Aviation Administration, 800 

Independence Avenue, SW., Room 323, 

Washington, DC 20591. Telephone: 

(202) 267–3290, Fax: (202) 267–3720. 

(c) Upon the filing of a Pre-dispute 

with the ODRA, the ODRA will contact 

the opposing party to offer its services 

pursuant to § 17.57. If the opposing 

party agrees, the ODRA will provide 

Pre-dispute services. If the opposing 

party does not agree, the ODRA Predispute file will be closed and no 

service will be provided. 

§ 17.61 Use of alternative dispute 

resolution. 

(a) Only non-binding, voluntary ADR 

will be used to attempt to resolve a Predispute pursuant to § 17.37. 

(b) ADR conducted under this subpart 

is subject to the confidentiality 

requirements of § 17.39. 

Appendix A to Part 17—Alternative 

Dispute Resolution (ADR) 

A. The FAA dispute resolution procedures 

encourage the parties to protests and contract 

disputes to use ADR as the primary means to 

resolve protests and contract disputes, 

pursuant to the Administrative Dispute 

Resolution Act of 1996, Public Law 104–320, 

5 U.S.C. 570–579, and Department of 

Transportation and FAA policies to utilize 

ADR to the maximum extent practicable. 

Under the procedures presented in this part, 

the ODRA encourages parties to consider 

ADR techniques such as case evaluation, 

mediation, or arbitration. 

B. ADR encompasses a number of 

processes and techniques for resolving 

protests or contract disputes. The most 

commonly used types include: 

(1) Mediation. The neutral or compensated 

neutral ascertains the needs and interests of 

both parties and facilitates discussions 

between or among the parties and an 

amicable resolution of their differences, 

seeking approaches to bridge the gaps 

between the parties’ respective positions. The 

neutral or compensated neutral can meet 

with the parties separately, conduct joint 

meetings with the parties’ representatives, or 

employ both methods in appropriate cases. 

(2) Neutral Evaluation. At any stage during 

the ADR process, as the parties may agree, 

the neutral or compensated neutral will 

provide a candid assessment and opinion of 

the strengths and weaknesses of the parties’ 

positions as to the facts and law, so as to 

facilitate further discussion and resolution. 

(3) Binding Arbitration. The ODRA, after 

consultation with the United States 

Department of Justice in accordance with the 

provisions of the Administrative Disputes 

Resolution Act to offer true binding 

arbitration in cases within its jurisdiction. 

The ODRA’s Guidance for the Use of Binding 

Arbitration may be found on its Web site at: 

http://www.faa.gov/go/odra. 

Issued in Washington, DC, on January 4, 

2011. 

Anthony N. Palladino, 

Director, Office of Dispute Resolution for 

Acquisition. 

[FR Doc. 2011–397 Filed 1–11–11; 8:45 am] 

BILLING CODE 4910–13–P 

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