Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 55217 

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/. 

transportation to a slaughtering facility’’ 

both times they occur and adding the 

words ‘‘equines for slaughter’’ in their 

place. 

■ f. In paragraphs (d) and (e), by 

removing the words ‘‘equines to a 

slaughtering facility’’ both times they 

occur and adding the words ‘‘equines 

for slaughter’’ in their place. 

■ g. By adding an OMB citation at the 

end of the section to read ‘‘(Approved 

by the Office of Management and 

Budget under control numbers 0579– 

0160 and 0579–0332)’’. 

Done in Washington, DC, this 30th day of 

August 2011. 

Edward Avalos, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 2011–22762 Filed 9–6–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 17 

[Docket No. FAA–2010–0840; Amdt. No. 17– 

1] 

RIN 2120–AJ82 

Procedures for Protests and Contracts 

Dispute 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action updates, 

simplifies, and streamlines the current 

regulations governing the procedures for 

bid protests brought against the FAA 

and contract disputes brought against or 

by the FAA. It also adds a voluntary 

dispute avoidance and early resolution 

process. This action ensures the 

regulations reflect the changes that have 

evolved since they were first 

implemented in 1999. The intended 

effect of this action is to further improve 

the protest and dispute process. 

DATES: Effective October 7, 2011. 

ADDRESSES: For information on where to 

obtain copies of rulemaking documents 

and other information related to this 

final rule, see the How To Obtain 

Additional Information section of this 

document. 

FOR FURTHER INFORMATION CONTACT: 

Marie A. Collins, Senior Attorney and 

Dispute Resolution Officer, FAA Office 

of Dispute Resolution for Acquisition, 

AGC–70, Room 8332, Federal Aviation 

Administration, 400 7th Street, SW., 

Washington, DC 20590, telephone (202) 

366–6400. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking and 

Background 

In 1995 Congress, through the 

Department of Transportation 

Appropriations Act,1 directed the FAA 

‘‘to develop and implement, not later 

than April 1, 1996, an acquisition 

management system that addressed the 

unique needs of the agency and, at a 

minimum, provided for more timely and 

cost effective acquisitions of equipment 

and materials.’’ The Act instructed the 

FAA to design the system, 

notwithstanding provisions of Federal 

acquisition law, and to not use certain 

provisions of Federal acquisition law. In 

response, the FAA developed the 

Acquisition Management System (AMS) 

for the management of FAA 

procurement. The AMS included a 

system of policy guidance that 

maximized the use of agency discretion 

in the interest of best business practices. 

As a part of the AMS, the FAA created 

the Office of Dispute Resolution for 

Acquisition (ODRA) to facilitate the 

Administrator’s review of procurement 

protests and contract disputes. In a 1996 

notice 2 published in the Federal 

Register, the FAA announced the 

creation of the ODRA and stated the 

agency would promulgate rules of 

procedure governing the dispute 

resolution process. 

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 by the 

Administrator on July 29, 1998 (1998 

Delegation),6 the Administrator 

generally authorized the ODRA through 

its Director to provide dispute 

resolution services including 

administrative adjudication of all bid 

protests and contract disputes under the 

AMS. The 1998 Delegation further 

provided that all final decisions must be 

executed by the Administrator. The 

1998 Delegation was expanded by a 

Delegation dated March 27, 2000 (2000 

Delegation), which provided additional 

authority to the ODRA Director ‘‘to 

execute and issue, on behalf of the 

Administrator, Orders and Final 

Decisions for the Administrator in all 

matters within the ODRA’s jurisdiction 

valued at not more than $1 Million.’’ 7

The 2000 Delegation was superseded by 

a Delegation of Authority from the 

Administrator, dated March 10, 2004 

(2004 Delegation), which increased the 

dollar limit of the final decisional 

authority of the ODRA Director from $1 

Million to $5 Million.8 The 2004 

Delegation was superseded by another 

Delegation of Authority dated March 31, 

2010 (2010 Delegation), which increased 

the dollar limit of the final decisional 

authority of the ODRA Director from $5 

Million to $10 Million.9

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 


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55218 Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 

10 76 FR 2035; January 12, 2011. 

protests and contract disputes to use 

Alternative Dispute Resolution (ADR) as 

the primary means to resolve protests 

and contract disputes, pursuant to the 

Administrative Dispute Resolution Act 

of 1996 (‘‘ADRA’’), Public Law 104–320, 

5 U.S.C. 570–579, and in consonance 

with Department of Transportation and 

FAA policies to maximize the use of 

ADR to the extent possible. Under these 

procedures, the ODRA actively 

encourages the parties to consider ADR 

techniques such as case evaluation, 

mediation, arbitration, or other types of 

ADR. In this regard, on October 15, 

2001, the FAA published in the Federal 

Register Final Guidance (66 FR 52475) 

for the use of binding arbitration for 

purposes of resolving bid protests and 

contract disputes relating to 

procurements and contracts under the 

FAA AMS after receiving the 

concurrence of the Attorney General in 

accordance with Section 575 of the 

ADRA. Additionally, the ODRA 

developed an informal pre-dispute 

process, which provides voluntary 

dispute avoidance services that are 

available to parties upon request. 

On January 12, 2011, the FAA 

published the Procedures for Protests 

and Contracts Dispute NPRM,10 which 

proposed to update, simplify and 

streamline the procedures for bid 

protests against the FAA and contract 

disputes brought against or by the FAA. 

The NPRM had a 60-day comment 

period, which ended March 14, 2011. 

Statement of the Problem 

Since the issuance of the FAA’s rules 

of procedure more than 10 years ago, the 

ODRA’s statutory and regulatory 

authorities for conducting a dispute 

resolution process evolved, along with 

the body of case law interpreting those 

rules. The ODRA’s implementation of 

these rules of procedure also resulted in 

the identification of procedural issues in 

need of clarification to provide uniform 

guidance. The ODRA further identified 

certain aspects of the rules that need 

revision to reflect evolving practices at 

the ODRA, as well as evolving dispute 

resolution practices in general. An 

example of such practices is the 

increased emphasis on early 

intervention and dispute avoidance 

efforts. 

Overview of Final Rule 

In order to address the changing 

environment with respect to the FAA’s 

dispute resolution process, the agency 

adopts the rules proposed in the 

Procedures for Protests and Contracts 

Dispute NPRM it published on January 

12, 2011. Today’s final rule revises part 

17 to incorporate the ODRA’s evolving 

practices; reflect the availability of a 

pre-dispute process; reorganize and 

streamline the rules for ease of use; and 

harmonize the existing part 17 rules 

with current statutory and other 

authority. 

The final rule reorganizes and 

consolidates for ease of use the current 

part 17 procedures for adjudicating 

protests and contract disputes. The 

procedures related to the adjudicative 

process for protests and for contract 

disputes that are currently in subpart E 

are now included in subpart B and 

subpart C, respectively. The finality and 

review provisions have been moved 

from subpart F to subpart E. 

Also, today’s final rule includes 

streamlined procedures, as well as 

expanded coverage in areas where 

guidance was lacking or a process has 

evolved over time. Examples of 

expanded coverage include the addition 

of a section on the confidentiality of 

ADR (§ 17.39) and a section for filing 

requests for reconsideration (§ 17.47). In 

addition, new sections have been added 

to subpart F to address ‘‘other matters’’ 

like sanctions and professional conduct. 

Further, new subpart G has been added 

to address procedures for filing predisputes. 

Summary of the NPRM 

The NPRM proposed to update, 

simplify, and streamline the FAA’s 

regulations governing the procedures for 

bid protests brought against the FAA 

and contract disputes brought against or 

by the FAA. It also proposed to add a 

voluntary dispute avoidance and early 

resolution process. The FAA published 

the NPRM in the Federal Register on 

January 12, 2011 with a 60-day 

comment period. The comment period 

ended on March 14, 2011. No comments 

were received to the rulemaking docket. 

You may refer to the NPRM for further 

details. 

Discussion of Final Rule 

A discussion, organized by subpart, 

and excluding minor editorial revisions 

and clarifications, of the adopted 

changes to 14 CFR part 17, follows. 

Additionally, even though we received 

no comments, the FAA has made nonsubstantive editorial and clarifying 

changes to the NPRM which are 

explicitly identified below. 

Subpart A—General 

Subpart A is revised as noted below. 

Definitions (§ 17.3) 

The following new definitions are 

added to this section: Adjudicative 

Process, Default Adjudicative Process, 

Counsel, Contractor, Legal 

Representative, and Pre-disputes. An 

additional editorial change was made to 

correct the sentence structure of 

paragraph (s) by relocating the phrase 

‘‘of the parties.’’ 

Filing and Computation of Time (§ 17.7) 

Paragraph (c) is revised to clarify that 

‘‘other days on which Federal 

Government offices in Washington, DC 

are not open’’ is an excluded timeframe 

in calculating time limits for filings. In 

addition, paragraph (d) is added to 

allow the use of electronic filing where 

permitted by the ODRA. 

Protective Orders (§ 17.9) 

Paragraph (d) is revised to explain the 

type of sanctions that could be imposed 

if a protective order is violated. 

Subpart B—Protests 

In subpart B, current § 17.21 (Protest 

remedies) is renumbered as § 17.23, and 

the Adjudicative process for protests 

section that is currently in subpart E is 

moved to § 17.21. 

Filing a Protest (§ 17.15) 

Paragraph (d)(2) is revised to make 

clear the standard of review for a 

request for a suspension or delay of the 

procurement. Also, paragraph (d)(3) is 

added to explain the possible 

consequences of protesters’’ failure to 

provide appropriate supporting 

documentation in their requests to 

suspend a procurement or contract 

performance. An additional editorial 

change was made to correct the sentence 

structure of paragraph (a)(1) by 

relocating the phrase ‘‘SIR or 

solicitation,’’ and to paragraph (d)(4) by 

substituting the word ‘‘That’’ for 

‘‘Whether.’’ 

Initial Protest Procedures (§ 17.17) 

In § 17.17(a), the timeframes for 

responding to a request for a suspension 

or delay of the procurement are revised 

according to the established ODRA 

practice of granting an extension until 

the date of the initial status conference. 

In § 17.17(b), the purpose of the initial 

status conference is 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 are 

removed. An additional editorial change 

was made to correct the sentence 

structure by substituting the word ‘‘If’’ 

for ‘‘Should’’ in paragraphs (d) and (e). 


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Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 55219 

Motions Practice and Dismissal or 

Summary Decision of Protests (§ 17.19) 

Paragraph (a) is revised to clarify the 

use of appropriate motions for dismissal 

or summary decision of protests and the 

ODRA’s standard of review for such 

motions. Paragraph (d) is revised to 

clarify when such a decision is 

construed as a final agency order. An 

additional editorial change was made to 

provide consistency with § 17.31(a) 

which states the same standard in a 

more concise manner. 

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 is revised to more fully address 

the management of the discovery 

process and the type of discovery that 

is authorized. This section further is 

revised to delineate the ODRA’s 

standard of review for protests, the 

development of the administrative 

record, and under what circumstances 

ex parte communications are permitted 

in protests. In addition, the revisions to 

this section address the procedures for 

preparing and issuing the ODRA’s 

findings and recommendations and final 

FAA order. An additional editorial 

change was made for clarification by 

replacing the words ‘‘to pursue’’ with 

‘‘for.’’ 

Protest Remedies (§ 17.23) 

Paragraph (b) of this section is revised 

to identify the factors the ODRA 

considers in determining an appropriate 

remedy. 

Subpart C—Contract Disputes 

In subpart C, current §§ 17.23, 17.25, 

17.27, and 17.29 are renumbered as 

§§ 17.25, 17.27, 17.29 and 17.31, 

respectively. Section 17.33 

(Adjudicative process for contract 

disputes), which has been moved from 

current § 17.39 of subpart E, is added to 

proposed subpart C. Also, the 

requirement in current § 17.27 

(Submission of joint or separate 

statements) is deleted. An additional 

editorial change was made to correct the 

sentence structure in § 17.21 (p) by 

substituting the words ‘‘if’’ for ‘‘should’’ 

and ‘‘be’’ for ‘‘was.’’ An additional 

editorial change was made to delete the 

redundant phrase ‘‘or more.’’ 

Filing a Contract Dispute (§ 17.25) 

Paragraph (a) is revised to provide 

additional guidance on the information 

to be included in the contract dispute. 

Paragraph (e) is added to state the 

ODRA retains the discretion to modify 

any timeframe established by the 

regulations in connection to contract 

disputes. 

Informal Resolution Period (§ 17.29) 

This section is revised to conform to 

current practice regarding the informal 

resolution process. This includes 

clarifications related to scheduling and 

assigning a potential neutral for ADR. 

Dismissal or Summary Decision of 

Contract Disputes (§ 17.31) 

Section 17.31 is revised to clarify the 

standard for requesting a dismissal or 

summary decision, and the process for 

responding to and issuing a decision on 

a request for dismissal or summary 

decision. This section also is revised to 

clarify when such a decision is to be 

construed as a final agency order. 

Adjudicative Process for Contract 

Disputes (§ 17.33) 

In addition to moving this section 

from current § 17.39 of subpart E, 

§ 17.33 is revised to clarify that the 

process for submitting the Dispute File 

applies to cases initiated by the 

contractor or alternatively by the FAA. 

Also, it is revised to more fully explain 

what documents will be admitted into 

the administrative record and the 

timeframes for responding to written 

discovery. Further, the section is revised 

to streamline the requirements for final 

submissions. Additionally, the revisions 

state that the ODRA must conduct a de 

novo review using the preponderance of 

the evidence standard, unless a different 

standard is required. The revisions also 

identify the circumstances under which 

ex parte communications are permitted 

in contract disputes. An additional 

editorial change was made to § 17.33 

(g)(1) to delete the unnecessary phrase 

‘‘to resolve the dispute.’’ 

Subpart D—Alternative Dispute 

Resolution 

The current sections under subpart D 

are renumbered from §§ 17.31 and 17.33 

to §§ 17.35 and 17.37, respectively. 

Also, a new § 17.39 (Confidentiality of 

ADR) is added to provide for the 

applicability of the Administrative 

Dispute Resolution Act of 1996, 5 U.S.C. 

571 et seq., and to clarify how ADR 

communications are treated. Further, 

current § 17.35 (Selection of neutrals for 

the alternative dispute resolution 

process) is deleted. An additional 

editorial correction was made to § 17.37 

(e) to delete the word ‘‘informal.’’ An 

additional revision was made to § 17.39 

(c) to reflect current practice permitting 

the parties to agree to include ADR 

communications in the administrative 

record. 

Subpart E—Finality and Review 

As noted previously, §§ 17.37 and 

17.39 of current subpart E (Default 

Adjudicative Process) is moved to 

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

respectively. In today’s final rule, the 

requirements in current subpart F 

(Finality and Review—§§ 17.41, 17.43, 

and 17.45) are moved to subpart E. Also, 

§ 17.47 (Reconsideration) is added to 

subpart E to provide the timeframe for 

filing requests for reconsideration and to 

state the standard for reconsideration 

according to ODRA precedent. 

Subpart F—Other Matters 

Subpart F is revised to add sections 

covering sanctions, decorum and 

professional conduct, the use of orders 

and subpoenas for testimony and 

document production, and Standing 

Orders of the ODRA Director. 

Subpart G—Pre-Disputes 

A new subpart (subpart G) is added. 

This subpart makes clear that the predispute process applies to all potential 

disputes arising under contracts or 

solicitations with the FAA. Also, it sets 

forth the process for filing a pre-dispute. 

Further, it clarifies the non-binding 

voluntary nature of the pre-dispute 

process and that it is subject to the 

confidentiality requirements of § 17.39. 

Appendix A to Part 17—Alternative 

Dispute Resolution (ADR) 

Appendix A is revised to eliminate 

the description of ‘‘Minitrial’’ and to 

add a provision that addresses and 

clarifies the use of binding arbitration. 

Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Orders 12866 and 13563 

direct that each Federal agency shall 

propose or adopt a regulation only upon 

a reasoned determination that the 

benefits of the intended regulation 

justify its costs. Second, the Regulatory 

Flexibility Act of 1980 (Pub. L. 96–354) 

requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (Pub. L. 96–39) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, that 

they be the basis of U.S. standards. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (Pub. L. 104–4) requires 

agencies to prepare a written assessment 

of the costs, benefits, and other effects 

of proposed or final rules that include 


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55220 Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 

a Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

annually (adjusted for inflation with 

base year of 1995). This portion of the 

preamble summarizes the FAA’s 

analysis of the economic impact of the 

final rule. 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If the 

expected cost impact is so minimal that 

a proposed or final rule does not 

warrant a full evaluation, this order 

permits that a statement to that effect 

and the basis for it to be included in the 

preamble if a full regulatory evaluation 

of the costs and benefits is not prepared. 

Such a determination has been made for 

this final rule. 

The reasoning for this determination 

follows: Under the FAA’s Acquisition 

Management System, the Office of 

Dispute Resolution for Acquisition 

(ODRA) manages the dispute resolution 

process, including administrative 

adjudication of all procurement protests 

and contract disputes. This final rule 

simplifies and clarifies the current part 

17 regulations under which ODRA 

operates, including clarifying language 

and definitions, reorganization and 

consolidation of certain sections, and 

simplification and clarification of 

certain procedures such as filing 

requirements. These changes will make 

it easier (less costly) to use the dispute 

resolution process. 

In addition, the final rule is updated 

to incorporate changes in statutory 

authority and additional authority 

delegated by the Administrator to ODRA 

(these changes will have no effect on 

expected costs). The rulemaking also 

will codify a voluntary dispute 

avoidance and early resolution process 

that ODRA is already using. The 

voluntary process is inherently less 

costly than the more formal dispute 

resolution process. The FAA expects 

that codification of the voluntary 

process will increase its use, thereby 

lowering the overall cost of dispute 

resolutions. 

Since no comments were received 

regarding our determination in the 

NPRM that the benefits exceed the costs, 

the FAA expects the final rule to have 

benefits that exceed the costs. The FAA 

therefore has determined that this final 

rule does not warrant a full regulatory 

evaluation. 

The FAA has also determined that 

this final rule is not a ‘‘significant 

regulatory action’’ as defined in section 

3(f) of Executive Order 12866, and is not 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide range of small entities, 

including small businesses, not-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 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

As noted above, the changes to part 17 

are either cost beneficial or have no 

effect on costs. We received no 

comments regarding the initial 

regulatory flexibility analysis 

determination of no significant 

economic impact. Accordingly, the final 

rule will not have a significant impact 

on a substantial number of small 

entities. Therefore, as the FAA 

Administrator, I certify that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

International Trade Impact Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards is not 

considered an unnecessary obstacle to 

the foreign commerce of the United 

States, so long as the standard has a 

legitimate domestic objective, such the 

protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. The FAA has assessed 

the potential effect of this final rule and 

determined it will have little or no effect 

on international trade as it applies to 

both foreign and domestic contractors 

with the FAA. 

Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more 

(adjusted annually for inflation with the 

base year 1995) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$140.8 million. 

This final rule does not contain such 

a mandate. The requirements of Title II 

do not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. We 

have determined that this action will 

not have a substantial direct effect on 

the States, on the relationship between 

the national Government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

will not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this final rule 

qualifies for the categorical exclusion 

identified in paragraph 312d and 

involves no extraordinary 

circumstances. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this final rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). We 


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Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 55221 

have determined that it is not a 

‘‘significant energy action’’ under the 

executive order, it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 and DOT’s Regulatory 

Policies and Procedures, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that the 

FAA consider the impact of paperwork 

and other information collection 

burdens imposed on the public. The 

FAA has determined that there is no 

new requirement for information 

collection associated with this final 

rule. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

conform to International Civil Aviation 

Organization (ICAO) Standards and 

Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these regulations. 

Executive Order Determinations 

Executive Order 12866 

See the ‘‘Regulatory Evaluation’’ 

discussion in the ‘‘Regulatory Notices 

and Analyses’’ section elsewhere in this 

preamble. 

Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency determined that this action will 

not have a substantial direct effect on 

the States, or the relationship between 

the Federal Government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

does not have Federalism implications. 

Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

The FAA analyzed this final rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it is not a 

‘‘significant energy action’’ under the 

executive order and it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

How To Obtain Additional Information 

Rulemaking Documents 

An electronic copy of a rulemaking 

document my be obtained by using the 

Internet— 

1. Search the Federal eRulemaking 

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

2. Visit the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies; or 

3. Access the Government Printing 

Office’s Web page at http:// 

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

Copies may also be obtained by 

sending a request (identified by notice, 

amendment, or docket number of this 

rulemaking) to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue, 

SW., Washington, DC 0591, or by calling 

(202) 267–9680. 

The Rulemaking Docket 

The rulemaking docket includes a 

copy of the rulemaking and related 

documents, as well as any public 

comments. You may access the docket 

for this rulemaking at http:// 

www.regulations.gov. Follow the online 

instructions to search the docket 

number for this action. 

While no comments were filed to this 

rulemaking docket, anyone is able to 

search the electronic form of comments 

received into any of the FAA’s dockets 

by using the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. 

A small entity with questions regarding 

this document, may contact its local 

FAA official, or the person listed under 

the FOR FURTHER INFORMATION CONTACT

heading at the beginning of the 

preamble. To find out more about 

SBREFA on the Internet, visit http://

www.faa.gov/regulations_policies/

rulemaking/sbre_act/. 

List of Subjects in 14 CFR Part 17 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Government 

contracts. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends chapter I of title 14, Code of 

Federal Regulations by revising part 17 

to read as follows: 

PART 17—PROCEDURES FOR 

PROTESTS AND CONTRACT 

DISPUTES 

Subpart A—General 

Sec. 

17.1 Applicability. 

17.3 Definitions. 

17.5 Delegation of authority. 

17.7 Filing and computation of time. 

17.9 Protective orders. 

Subpart B—Protests 

17.11 Matters not subject to protest. 

17.13 Dispute resolution process for 

protests. 

17.15 Filing a protest. 

17.17 Initial protest procedures. 

17.19 Motions practice and dismissal or 

summary decision of protests. 

17.21 Adjudicative Process for protests. 

17.23 Protest remedies. 

Subpart C—Contract Disputes 

17.25 Dispute resolution process for 

contract disputes. 

17.27 Filing a contract dispute. 

17.29 Informal resolution period. 

17.31 Dismissal or summary decision of 

contract disputes. 

17.33 Adjudicative Process for contract 

disputes. 

Subpart D—Alternative Dispute Resolution 

17.35 Use of alternative dispute resolution. 

17.37 Election of alternative dispute 

resolution process. 

17.39 Confidentiality of ADR. 

Subpart E—Finality and Review 

17.41 Final orders. 

17.43 Judicial review. 

17.45 Conforming amendments. 

17.47 Reconsideration. 

Subpart F—Other Matters 

17.49 Sanctions. 

17.51 Decorum and professional conduct. 

17.53 Orders and subpoenas for testimony 

and document production. 

17.55 Standing orders of the ODRA 

director. 

Subpart G—Pre-Disputes 

17.57 Dispute resolution process for 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 


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(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 predisputes 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. 

(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 


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Fax, or, if permitted by Order of the 

ODRA, by electronic filing. A protest or 

contract dispute is considered to be 

filed on the date it is received by the 

ODRA during normal business hours. 

The ODRA’s normal business hours are 

from 8:30 a.m. to 5 p.m. Eastern Time. 

A protest or contract dispute received 

after the time period prescribed for 

filing shall not be considered timely 

filed. Service shall also be made on the 

Contracting Officer (CO) pursuant to 

§§ 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 

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 


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closing time for receipt of proposals 

following the incorporation. 

(3) For protests other than those 

related to alleged solicitation 

improprieties, the protest must be filed 

on the later of the following two dates: 

(i) Not later than seven (7) business 

days after the date the protester knew or 

should have known of the grounds for 

the protest; or 

(ii) If the protester has requested a 

post-award debriefing from the FAA 

Product Team, not later than five (5) 

business days after the date on which 

the Product Team holds that debriefing. 

(b) Protests shall be filed at: 

(1) ODRA, AGC–70, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Room 323, Washington, 

DC 20591; Telephone: (202) 267–3290, 

Fax: (202) 267–3720; or 

(2) Other address as shall be 

published from time to time in the 

Federal Register. 

(c) A protest shall be in writing, and 

set forth: 

(1) The protester’s name, address, 

telephone number, and FAX number; 

(2) The name, address, telephone 

number, and FAX number of the 

protester’s legal representative, and who 

shall be duly authorized to represent the 

protester, to be the point of contact; 

(3) The SIR number or, if available, 

the contract number and the name of the 

CO; 

(4) The basis for the protester’s status 

as an interested party; 

(5) The facts supporting the timeliness 

of the protest; 

(6) Whether the protester requests a 

protective order, the material to be 

protected, and attach a redacted copy of 

that material; 

(7) A detailed statement of both the 

legal and factual grounds of the protest, 

and one (1) copy of each relevant 

document; 

(8) The remedy or remedies sought by 

the protester, as set forth in § 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: 

(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 


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appropriate and necessary, after 

providing an opportunity for briefing on 

the motion by all affected parties. 

Unjustifiable, inappropriate use of 

motions may result in the imposition of 

sanctions. Where appropriate, a party 

may request by dispositive motion to 

the ODRA, or the ODRA may 

recommend or order, that: 

(1) The protest, or any count or 

portion of a protest, be dismissed for 

lack of jurisdiction, timeliness, or 

standing to pursue the protest; 

(2) The protest, or any count or 

portion of a protest, be dismissed, if 

frivolous or without basis in fact or law, 

or for failure to state a claim upon 

which relief may be had; 

(3) A summary decision be issued 

with respect to the protest, or any count 

or portion of a protest, if there are no 

material facts in dispute and a party is 

entitled to summary decision as a matter 

of law. 

(b) In connection with consideration 

of possible dismissal or summary 

decision, the ODRA shall consider any 

material facts in dispute, in a light most 

favorable to the party against whom the 

dismissal or summary decision would 

operate and draw all factual inferences 

in favor of the non-moving party. 

(c) Either upon motion by a party or 

on its own initiative, the ODRA may, at 

any time, exercise its discretion to: 

(1) Recommend to the Administrator 

dismissal or the issuance of a summary 

decision with respect to the entire 

protest; 

(2) Dismiss the entire protest or issue 

a summary decision with respect to the 

entire protest, if delegated that authority 

by the Administrator; or 

(3) Dismiss or issue a summary 

decision with respect to any count or 

portion of a protest. 

(d) A dismissal or summary decision 

regarding the entire protest by either the 

Administrator, or the ODRA by 

delegation, shall be construed as a final 

agency order. A dismissal or summary 

decision that does not resolve all counts 

or portions of a protest shall not 

constitute a final agency order, unless 

and until such dismissal or decision is 

incorporated or otherwise adopted in a 

decision by the Administrator (or the 

ODRA, by delegation) regarding the 

entire protest. 

(e) Prior to recommending or entering 

either a dismissal or a summary 

decision, either in whole or in part, the 

ODRA shall afford all parties against 

whom the dismissal or summary 

decision is to be entered the opportunity 

to respond to the proposed dismissal or 

summary decision. 

§ 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 

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 crossexamination 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 


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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; 

(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 

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 


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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 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 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. 


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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; 

(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 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 


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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 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 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 


jlentini on DSK4TPTVN1PROD with RULES
55230 Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Rules and Regulations 

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 PreDisputes. 

(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. 

§ 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 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. 

Issued in Washington, DC, on July 25, 

2011. 

J. Randolph Babbitt, 

Administrator. 

[FR Doc. 2011–22842 Filed 9–6–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 23 

[Docket No. CE315; Special Conditions No. 

23–254–SC] 

Special Conditions: Embraer S.A.; 

Model EMB 505; Single-Place SideFacing Lavatory Seat Dynamic Test 

Requirements 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final special conditions; request 

for comments. 

SUMMARY: These special conditions are 

issued for the Embraer S.A., EMB 505 

airplane. This airplane will have a novel 

or unusual design feature(s) associated 

with the installation of a single-place 

side-facing seat. The applicable 

airworthiness regulations do not 

provide adequate or appropriate safety 

standards for this design feature. In 

order to provide a level of safety that is 

equivalent to that afforded to occupants 

of forward and aft facing seating, 

additional airworthiness standards, in 

the form of special conditions, are 

necessary. 

DATES: The effective date of these 

special conditions is August 31, 2011. 

Comments must be received on or 

before October 7, 2011. 

ADDRESSES: Comments on these special 

conditions may be mailed in duplicate 

to: Federal Aviation Administration 

(FAA), Regional Counsel, ACE–7, 

Attention: Rules Docket, Docket No. 

CE315, 901 Locust, Room 506, Kansas 

City, Missouri 64106, or delivered in 

duplicate to the Regional Counsel at the 

above address. Comments must be 

marked: CE315. Comments may be 

inspected in the Rules Docket 

weekdays, except Federal holidays, 

between 7:30 a.m. and 4 p.m. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Bob Stegeman, Federal Aviation 

Administration, Aircraft Certification 

Service, Small Airplane Directorate, 

ACE–111, 901 Locust, Kansas City, 

Missouri, 816–329–4140, fax 816–329– 

4090, e-mail Robert.Stegeman@faa.gov. 

SUPPLEMENTARY INFORMATION: The FAA 

has determined that notice and 

opportunity for prior public comment 

hereon are impracticable because these 

procedures would significantly delay 

issuance of the approval design and 

thus delivery of the affected aircraft. In 

addition, the substance of these special 

conditions has been subject to the 

public comment process in several prior 

instance with no substantive comments 


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