Ch.11 – ODRA Protests
Protest Authority.
The Office of Dispute Resolution for Acquisition (ODRA) hears protests regarding solicitations and contracts issued by the Federal Aviation Administration (FAA). Unlike other agencies, the FAA operates its own acquisition system that is not subject to the Federal Acquisition Regulation (FAR). The FAA’s system is called the Acquisition Management System (AMS). It implements the FAA Administrator’s authority found in 49 USC 40110(d). The same statute expressly exempts the FAA from the Competition in Contracting Act, the Small Business Act, the FAR and related statutes. Id. at 40110(d)(2). As a result, the FAA is not subject to the jurisdiction of other acquisition tribunals. Instead, the statue requires the AMS to, “provide for . . . the resolution of bid protests and contract disputes related thereto, using consensual alternative dispute resolution techniques to the maximum extent practicable.” Id. at 40110(d)(1)(B). If ADR does not result in a resolution, the statute vests the ODRA with exclusive authority to adjudicate both protests and contract disputes:
(4) Adjudication of certain bid protests and contract disputes. — A bid protest or contract dispute that is not addressed or resolved through alternative dispute resolution shall be adjudicated by the Administrator through the 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 to section 504 of title 5.
49 USC 40110(d)(4). The ODRA implements the statute through its Procedural Regulation, found at 14 CFR pt. 17, as revised in October of 2011.
Initiating ADR at the ODRA.
The ODRA’s regulation, at Sec. 17.15, describes how to file a protest. Within five days after filing a protest, the ODRA will convene an initial status conference to discuss preliminary matters such as requests for suspension of the award, protective orders, or intervention. Every conference also includes the opportunity to discuss ADR possibilities with an Administrative Judge/Dispute Resolution Officer who is designated to serve exclusively as an ADR Neutral for the protest. Unlike the practice at GAO, the ODRA’s designated ADR Neutral will not have a role in the adjudication of the protest if it is not resolved in ADR. Although the ODRA has arbitration authority, most cases use either ODRA sponsored mediation or ODRA sponsored early neutral evaluation. In all matters that use ADR, the parties and the neutral execute an ADR agreement, which subsequently is filed with the ODRA. Similarly, settlement agreements are typically used to resolve a dispute unless a party decides unilaterally to take appropriate action. For example, a settlement agreement is not necessary if the protester decides to withdraw the protest voluntarily, or the agency takes unilateral corrective action.
Subpages (2): ODRA Early Neutral Evaluation | ODRA Mediation in Protests