104 

§ 16.305 14 CFR Ch. I (1–1–13 Edition) 

decisional employee an ex parte communication relevant to the merits of 

the proceeding; 

(2) No FAA employee shall make or 

knowingly cause to be made to any interested person outside the FAA an ex 

parte communication relevant to the 

merits of the proceeding; or 

(3) Ex parte communications regarding solely matters of agency procedure 

or practice are not prohibited by this 

section. 

§ 16.305 Procedures for handling ex 

parte communications. 

A decisional employee who receives 

or who makes or knowingly causes to 

be made a communication prohibited 

by §16.303 shall place in the public 

record of the proceeding: 

(a) All such written communications; 

(b) Memoranda stating the substance 

of all such oral communications; and 

(c) All written responses, and memoranda stating the substance of all oral 

responses, to the materials described in 

paragraphs (a) and (b) of this section. 

§ 16.307 Requirement to show cause 

and imposition of sanction. 

(a) Upon receipt of a communication 

knowingly made or knowingly caused 

to be made by a party in violation of 

§16.303, the Associate Administrator or 

his designee or the hearing officer may, 

to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to 

show cause why his or her claim or interest in the proceeding should not be 

dismissed, denied, disregarded, or otherwise adversely affected on account of 

such violation. 

(b) The Associate Administrator 

may, to the extent consistent with the 

interests of justice and the policy of 

the underlying statutes administered 

by the FAA, consider a violation of 

this subpart sufficient grounds for a decision adverse to a party who has 

knowingly committed such violation or 

knowingly caused such violation to 

occur. 

PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES 

Subpart A—General 

Sec. 

17.1 Applicability. 

17.3 Definitions. 

17.5 Delegation of authority. 

17.7 Filing and computation of time. 

17.9 Protective orders. 

Subpart B—Protests 

17.11 Matters not subject to protest. 

17.13 Dispute resolution process for protests. 

17.15 Filing a protest. 

17.17 Initial protest procedures. 

17.19 Motions practice and dismissal or 

summary decision of protests. 

17.21 Adjudicative Process for protests. 

17.23 Protest remedies. 

Subpart C—Contract Disputes 

17.25 Dispute resolution process for contract disputes. 

17.27 Filing a contract dispute. 

17.29 Informal resolution period. 

17.31 Dismissal or summary decision of contract disputes. 

17.33 Adjudicative Process for contract disputes. 

Subpart D—Alternative Dispute Resolution 

17.35 Use of alternative dispute resolution. 

17.37 Election of alternative dispute resolution process. 

17.39 Confidentiality of ADR. 

Subpart E—Finality and Review 

17.41 Final orders. 

17.43 Judicial review. 

17.45 Conforming amendments. 

17.47 Reconsideration. 

Subpart F—Other Matters 

17.49 Sanctions. 

17.51 Decorum and professional conduct. 

17.53 Orders and subpoenas for testimony 

and document production. 

17.55 Standing orders of the ODRA director. 

Subpart G—Pre-Disputes 

17.57 Dispute resolution process for Pre-disputes. 

17.59 Filing a Pre-dispute. 

17.61 Use of alternative dispute resolution. 

APPENDIX A TO PART 17—ALTERNATIVE DISPUTE RESOLUTION (ADR) 


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Federal Aviation Administration, DOT § 17.3 

AUTHORITY: 5 U.S.C. 570–581, 49 U.S.C. 

106(f)(2), 40110, 40111, 40112, 46102, 46014, 46105, 

46109, and 46110. 

SOURCE: 76 FR 55221, Sept. 7, 2011, unless 

otherwise noted. 

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 October 7, 2011, 

with the exception of those contract 

disputes arising under or related to 

FAA contracts entered into prior to 

April 1, 1996, where such contracts have 

not been modified to be made subject 

to the FAA AMS. This part also applies 

to pre-disputes as described in subpart 

G of this part. 

§ 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. 


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§ 17.5 14 CFR Ch. I (1–1–13 Edition) 

(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 that, by mutual 

agreement of the parties, is filed with 

the ODRA. See subpart G of this part. 

(t) Product Team, as used in these 

rules, refers to the FAA organization(s) 

responsible for the procurement or contracting activity, without regard to 

funding source, and includes the Contracting Officer (CO). The Product 

Team, acting through assigned FAA 

counsel, is responsible for all communications with and submissions to the 

ODRA in pending matters. 

(u) Screening Information Request (SIR 

or Solicitation) means a request by the 

FAA for documentation, information, 

presentations, proposals, or binding offers concerning an approach to meeting 

potential acquisition requirements established by the FAA. 

(v) A Special Master is a non-FAA attorney or judge who has been assigned 

by the ODRA to act as its finder of 

fact, and to make findings and recommendations based upon AMS policy 

and applicable law and authorities in 

the Adjudicative Process. 

§ 17.5 Delegation of authority. 

(a) The authority of the Administrator to conduct dispute resolution 

and adjudicative proceedings concerning acquisition matters is delegated to the Director of the ODRA. 

(b) The Director of the ODRA may redelegate to Special Masters and DROs 

such delegated authority in paragraph 

(a) of this section as deemed necessary 

by the Director for efficient resolution 

of an assigned protest or contract dispute, including the imposition of sanctions for the filing of frivolous pleadings, making false statements, or other 

disciplinary actions. See subpart F of 

this part. 

§ 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 Contracting 


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Federal Aviation Administration, DOT § 17.13 

Officer (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-selection-sensitive material, 

or other information the release of 

which could result in a competitive advantage to one or more firms. 

(b) The terms of the ODRA’s standard 

protective order may be altered to suit 

particular circumstances, by negotiation of the parties, subject to the approval of the ODRA. The protective 

order establishes procedures for application for access to protected information, identification and safeguarding of 

that information, and submission of redacted copies of documents omitting 

protected information. 

(c) After a protective order has been 

issued, counsel or consultants retained 

by counsel appearing on behalf of a 

party may apply for access to the material under the order by submitting an 

application to the ODRA, with copies 

furnished simultaneously to all parties. 

The application shall establish that the 

applicant is not involved in competitive decision-making for any firm that 

could gain a competitive advantage 

from access to the protected information and that the applicant will diligently protect any protected information received from inadvertent disclosure. Objections to an applicant’s admission shall be raised within two (2) 

days of the application, although the 

ODRA may consider objections raised 

after that time for good cause. 

(d) Any violation of the terms of a 

protective order may result in the imposition of sanctions, including but not 

limited to removal of the violator from 

the protective order and reporting of 

the violator to his or her bar association(s), and the taking of other actions 

as the ODRA deems appropriate. Additional civil or criminal penalties may 

apply. 

Subpart B—Protests 

§ 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 


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§ 17.15 14 CFR Ch. I (1–1–13 Edition) 

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 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 SIR 

or solicitation improprieties that are 

apparent prior to bid opening or the 

time set for receipt of initial proposals 

shall be filed prior to bid opening or 

the time set for the receipt of initial 

proposals. 

(2) In procurements where proposals 

are requested, alleged improprieties 

that do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be 

protested not later than the next 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; 


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Federal Aviation Administration, DOT § 17.17 

(3) The SIR number or, if available, 

the contract number and the name of 

the CO; 

(4) The basis for the protester’s status as an interested party; 

(5) The facts supporting the timeliness of the protest; 

(6) Whether the protester requests a 

protective order, the material to be 

protected, and attach a redacted copy 

of that material; 

(7) A detailed statement of both the 

legal and factual grounds of the protest, and one (1) copy of each relevant 

document; 

(8) The remedy or remedies sought by 

the protester, as set forth in §17.23; 

(9) The signature of the legal representative, or another person duly authorized to represent the protester. 

(d) If the protester wishes to request 

a suspension of the procurement or 

contract performance, in whole or in 

part, and believes that a compelling 

reason(s) exists to suspend the procurement or contract performance because 

of the protested action, the protester 

shall, in its initial filing: 

(1) Set forth such compelling reason(s), supply all facts and documents 

supporting the protester’s position; and 

(2) Demonstrate— 

(i) The protester has alleged a substantial case; 

(ii) The lack of a suspension would be 

likely to cause irreparable injury; 

(iii) The relative hardships on the 

parties favor a suspension; and 

(iv) That a suspension is in the public 

interest. 

(3) Failure of a protester to provide 

information or documents in support of 

a requested suspension or failure to address the elements of paragraph (d)(2) 

of this section may result in the summary rejection of the request for suspension, or a requirement that the protester supplement its request prior to 

the scheduling of a Product Team response to the request under §17.17(a). 

(e) Concurrent with the filing of a 

protest with the ODRA, the protester 

shall serve a copy of the protest on the 

CO and any other official designated in 

the SIR for receipt of protests, by 

means reasonably calculated to be received by the CO on the same day as it 

is to be received by the ODRA. The protest shall include a signed statement 

from the protester, certifying to the 

ODRA the manner of service, date, and 

time when a copy of the protest was 

served on the CO and other designated 

official(s). 

(f) Upon receipt of the protest, the 

CO shall notify the awardee of a challenged contract award in writing of the 

existence of the protest. The awardee 

and/or interested parties shall notify 

the ODRA in writing, of their interest 

in participating in the protest as intervenors within two (2) business days of 

receipt of the CO’s notification, and 

shall, in such notice, designate a person as the point of contact for the 

ODRA. 

(g) The ODRA has discretion to designate the parties who shall participate 

in the protest as intervenors. In protests of awarded contracts, only the 

awardee may participate as an intervenor as a matter of right. 

§ 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: 


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§ 17.19 14 CFR Ch. I (1–1–13 Edition) 

(1) Reviewing the ODRA’s ADR and 

adjudication procedures and establishing a preliminary schedule; 

(2) Identifying legal or other preliminary or potentially dispositive issues 

and answering the parties’ questions 

regarding the ODRA process; 

(3) Dealing with issues related to protected information and the issuance of 

any needed protective order; 

(4) Encouraging the parties to consider using ADR; 

(5) Appointing a DRO as a potential 

ADR neutral to assist the parties in 

considering ADR options and developing an ADR agreement; and 

(6) For any other reason deemed appropriate by the DRO or by the ODRA. 

(c) The Product Team and protester 

will have five (5) business days from 

the date of the initial status conference to decide whether they will attempt to use an ADR process in the 

case. With the agreement of the ODRA, 

ADR may be used concurrently with 

the adjudication of a protest. See 

§17.37(e). 

(d) If the Product Team and protester 

elect to use ADR proceedings to resolve 

the protest, they will agree upon the 

neutral to conduct the ADR proceedings (either an ODRA DRO or a 

compensated neutral of their own 

choosing) pursuant to §17.37, and shall 

execute and file with the ODRA a written ADR agreement. Agreement of any 

intervenor(s) to the use of ADR or the 

resolution of a dispute through ADR 

shall not be required. 

(e) If the Product Team or protester 

indicate that ADR proceedings will not 

be used, or if ADR is not successful in 

resolving the entire protest, the ODRA 

Director upon being informed of the 

situation, will schedule an adjudication 

of the protest. 

§ 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 there 

are no material facts in dispute and a 

party is entitled to summary decision 

as a matter of law. 

(b) In connection with consideration 

of possible dismissal or summary decision, the ODRA shall consider any material facts in dispute, in a light most 

favorable to the party against whom 

the dismissal or summary decision 

would operate and draw all factual inferences in favor of the non-moving 

party. 

(c) Either upon motion by a party or 

on its own initiative, the ODRA may, 

at any time, exercise its discretion to: 

(1) Recommend to the Administrator 

dismissal or the issuance of a summary 

decision with respect to the entire protest; 

(2) Dismiss the entire protest or issue 

a summary decision with respect to the 

entire protest, if delegated that authority by the Administrator; or 

(3) Dismiss or issue a summary decision with respect to any count or portion of a protest. 

(d) A dismissal or summary decision 

regarding the entire protest by either 

the Administrator, or the ODRA by 

delegation, shall be construed as a final 

agency order. A dismissal or summary 

decision that does not resolve all 

counts or portions of a protest shall 

not constitute a final agency order, unless and until such dismissal or decision is incorporated or otherwise 


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Federal Aviation Administration, DOT § 17.21 

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 for the Adjudicative Process. 

(h) If, in the sole judgment of the 

DRO or Special Master, the parties 

have presented written material sufficient to allow the protest to be decided 

on the record presented, the DRO or 

Special Master shall have the discretion to decide the protest on that basis. 

(i) The parties may engage in limited, focused discovery with one another and, if justified, with non-parties, so as to obtain information relevant to the allegations of the protest. 

(1) The DRO or Special Master shall 

manage the discovery process, including limiting its length and availability, 

and shall establish schedules and deadlines for discovery, which are consistent with timeframes established in 

this part and with the FAA policy of 

providing fair and expeditious dispute 

resolution. 

(2) The DRO or Special Master may 

also direct the parties to exchange, in 

an expedited manner, relevant, nonprivileged documents. 

(3) Where justified, the DRO or Special Master may direct the taking of 

deposition testimony, however, the 

FAA dispute resolution process does 

not contemplate extensive discovery. 

(4) The use of interrogatories and requests for admission is not permitted 

in ODRA bid protests. 

(5) Where parties cannot voluntarily 

reach agreement on a discovery-related 

issue, they may timely seek assistance 

from an ODRA ADR neutral or may file 

an appropriate motion with the ODRA. 

Parties may request a subpoena. 

(6) Discovery requests and responses 

are not part of the record and will not 

be filed with the ODRA, except in connection with a motion or other permissible filing. 

(7) Unless timely objection is made, 

documents properly filed with the 


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ODRA will be deemed admitted into 

the administrative record. 

(j) Hearings are not typically held in 

bid protests. The DRO or Special Master may conduct hearings, and may 

limit the hearings to the testimony of 

specific witnesses and/or presentations 

regarding specific issues. The DRO or 

Special Master shall control the nature 

and conduct of all hearings, including 

the sequence and extent of any testimony. Hearings will be conducted: 

(1) Where the DRO or Special Master 

determines that there are complex factual issues in dispute that cannot adequately or efficiently be developed 

solely by means of written presentations and/or that resolution of the 

controversy will be dependent on his/ 

her assessment of the credibility of 

statements provided by individuals 

with first-hand knowledge of the facts; 

or 

(2) Upon request of any party to the 

protest, unless the DRO or Special 

Master finds specifically that a hearing 

is 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. 

(k) The Director of the ODRA may 

review the status of any protest in the 

Adjudicative Process with the DRO or 

Special Master. 

(l) 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. 

(m) 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. 

(n) The DRO or Special Master has 

broad discretion to recommend a remedy that is consistent with §17.23. 

(o) 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. If an ODRA protective order was 

issued in connection with the protest, 

or if a protest involves 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. 

(p) 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 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; 


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(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 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 

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(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 non-binding ADR techniques during the Adjudicative Process, pursuant to subpart D 

of this part. 

§ 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 


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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 

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: 


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(1) Determine the appropriate 

amount of discovery required; 

(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, and 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 


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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 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; 

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 neutralsharing 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 

non-binding ADR shall provide for a 

termination of ADR proceedings and 

the commencement of adjudication 

under the Adjudicative Process, upon 


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the election of any party. Notwithstanding such termination, the parties 

may still engage with the ODRA in 

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 Rule 408 of the Federal Rules of Evidence in deciding admissibility issues 

related to ADR communications. 

(c) ADR communications are not part 

of the administrative record unless 

otherwise agreed by the parties. 

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 

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 


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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 on 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 Dispute resolution process for 

Pre-disputes. 

(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 

(4) 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. 


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§ 17.61 14 CFR Ch. I (1–1–13 Edition) 

§ 17.61 Use of alternative dispute resolution. 

(a) Only non-binding, voluntary ADR 

will be used to attempt to resolve a 

Pre-dispute 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 offers true binding arbitration in 

cases within its jurisdiction. The ODRA’s 

Guidance for the Use of Binding Arbitration 

may be found on its website at: http:// 

www.faa.gov/go/odra. 


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