As discussed in Chapter 11 of this Guide, the Federal Aviation Administration (FAA) acquires goods and services using the Acquisition Management System (AMS), rather than the Federal Acquisition Regulation (FAR). Like protests under the AMS, contract disputes are filed with the Office of Dispute Resolution for Acquisition (ODRA) rather than using the forums applicable to FAR-based Agencies. 49 USC 40110(d); 14 CFR 17.27 (2013). The ODRA encourages the use of ADR in all contract disputes, and even offers pre-dispute ADR to address controversies at the earliest stage possible.
Initiating a Contract Dispute
The AMS does not use the procedures found in the Contract Dispute Act of 1978 or FAR Subpart 33.2, which require a party to file a claim, followed by the issuance of a contracting officer’s final decision, and then an appeal. Instead, under the AMS, either party merely needs to file contract dispute with the ODRA. 14 CFR 17.27; AMS Disputes Clause 3.9.1-1 (Oct. 2011). The FAA, through the ODRA, has established the principle that voluntary ADR is the “primary means of resolving all factual, legal, and procedural controversies” under the AMS. 14 CFR 17.35(a).
Informal Negotiation Period
The ODRA Procedural Regulation provides a 20-day informal resolution period from the date a party files its contract dispute at the ODRA. 14 CFR 17.29(a). This period is provided “for the parties to attempt to informally resolve the contract dispute either through direct negotiation or with the assistance of the ODRA.” Id. During this period, the parties may request the services of an ODRA Administrative Judge, 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.” Id. at (b). Unless good cause is shown or the matter is completely resolved, the informal resolution period will end after twenty days, at which time the parties file a joint or separate statement with the ODRA either requesting formal ADR or explaining why ADR will not be used. Id. at (d). If ADR will not be used, then the administrative adjudication process will commence.
Using ADR for Contract Disputes at the ODRA
The parties design the ADR process that they will use, and memorialize their plans in a formal ADR Agreement. Such agreements typically identify the dispute to be addressed, establish the scope of discovery (if any), designate the neutral, establish a schedule, and discuss confidentiality. 14 CFR 17.37(d). The neutral may serve as an arbitrator, a mediator, a facilitator, a neutral evaluator, or some combination of these roles, if deemed appropriate by the parties and the neutral. Id. at (e). ADR processes may be conducted while administrative adjudication is stayed, or it may be conducted concurrently with the adjudication. Id.
Additional information is available on the ODRA’s Official Website. That site includes an ODRA Guide, answers to frequently asked questions, binding arbitration guidance, and much more.
Subpages (3): ADR Techniques at the ODRA | Neutrals Used at the ODRA | Pre-Disputes at the ODRA