14 C.F.R. Subpart B—Protests
Title 14 - Aeronautics and Space
The following matters may not be protested before the Office of Dispute Resolution for Acquisition: (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 which do not fall into the category of procurement contracts subject to the AMS. (a) Protests concerning FAA SIRs or contract awards shall be resolved pursuant to this part. (b) The offeror initially should attempt to resolve any issues concerning potential protests with the CO. The CO, in coordination with FAA legal counsel, will make reasonable efforts to answer questions promptly and completely, and, where possible, to resolve concerns or controversies. (c) Offerors or prospective offerors shall file a protest with the Office of Dispute Resolution for Acquisition 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 Office of Dispute Resolution for Acquisition retains the discretion to modify any time constraints imposed in connection with protests. (d) In accordance with §17.17, the Office of Dispute Resolution for Acquisition shall convene a status conference for the protest. Under the procedures set forth in that section, the parties generally will either decide to utilize Alternative Dispute Resolution (ADR) techniques to resolve the protest, pursuant to subpart D of this part, or they will proceed under the Default Adjudicative Process set forth in subpart E of this part. However, as provided in §17.31(c), informal ADR techniques may be utilized simultaneously with ongoing adjudication. (e) The Office of Dispute Resolution for Acquisition Director shall designate Dispute Resolution Officers (DROs) or Special Masters for protests. (f) Multiple protests concerning the same SIR, solicitation, or contract award may be consolidated at the discretion of the Office of Dispute Resolution for Acquisition, 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 or delay all or part of the procurement activities. Pursuant to §§17.15(d) and 17.17(b), the Office of Dispute Resolution for Acquisition may recommend suspension of award or delay of contract performance, in whole or in part, for a compelling reason. A decision to suspend or delay procurement activities or contractor performance would be made in writing by the FAA Administrator or the Administrator's delegee. (a) Only an interested party may file a protest, and shall initiate a protest by filing a written protest with the Office of Dispute Resolution for Acquisition within the times set forth below, or the protest shall be dismissed as untimely: (1) Protests based upon alleged improprieties in a solicitation or a SIR that are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for the receipt of initial proposals. (2) In procurements where proposals are requested, alleged improprieties that do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be protested not later than the next closing time for receipt of proposals following the incorporation; (3) For protests other than those related to alleged solicitation improprieties, the protest must be filed on the later of the following two dates: (i) Not later than seven (7) business days after the date the protester knew or should have known of the grounds for the protest; or (ii) If the protester has requested a post-award debriefing from the FAA Product Team, not later than five (5) business days after the date on which the Product Team holds that debriefing. (b) Protest shall be filed at: (1) Office of Dispute Resolution for Acquisition, AGC–70, Federal Aviation Administration, 400 7th Street, SW., Room 8332, Washington, DC 20590, Telephone: (202) 366–6400, Facsimile: (202) 366–7400; or (2) Other address as shall be published from time to time in the (c) A Protest shall be in writing, and set forth: (1) The protester's name, address, telephone number, and facsimile (FAX) number; (2) The name, address, telephone number, and FAX number of a person designated by the protester (Protester Designee), and who shall be duly authorized to represent the protester, to be the point of contact; (3) The SIR number or, if available, the contract number and the name of the CO; (4) The basis for the protester's status as an interested party; (5) The facts supporting the timeliness of the protest; (6) Whether the protester requests a protective order, the material to be protected, and attach a redacted copy of that material; (7) A detailed statement of both the legal and factual grounds of the protest, and attach one (1) copy of each relevant document; (8) The remedy or remedies sought by the protester, as set forth in §17.21; (9) The signature of the Protester Designee, or another person duly authorized to represent the protester. (d) If the protester wishes to request a suspension or delay of the procurement, in whole or in part, and believes there are compelling reasons that, if known to the FAA, would cause the FAA to suspend or delay the procurement because of the protested action, the protester shall: (1) Set forth each such compelling reason, supply all facts supporting the protester's position, identify each person with knowledge of the facts supporting each compelling reason, and identify all documents that support each compelling reason. (2) Clearly identify any adverse consequences to the protester, the FAA, or any interested party, should the FAA not suspend or delay the procurement. (e) At the same time as filing the protest with the Office of Dispute Resolution for Acquisition, 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 Office of Dispute Resolution for Acquisition. The protest shall include a signed statement from the protester, certifying to the Office of Dispute Resolution for Acquisition 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 inform the Office of Dispute Resolution for Acquisition of the names, addresses, and telephone and facsimile numbers of the awardee and/or other interested parties, if known, and shall, in such notice, designate a person as the point of contact for the Office of Dispute Resolution for Acquisition by facsimile. The CO shall also notify the awardee and/or interested parties in writing of the existence of the protest the same day as the CO provides the foregoing information to the Office of Dispute Resolution for Acquisition. 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. Such notice may be submitted to the ODRA by facsimile. (g) The Office of Dispute Resolution for Acquisition has discretion to designate the parties who shall participate in the protest as intervenors. For awarded contracts, only the awardee may participate as an intervenor. [Doc. No. FAA–1998–4379, 64 FR 32936, June 18, 1999; 64 FR 47362, Aug. 31, 1999] (a) If, as part of a protest, the protester requests a suspension or delay of procurement, in whole or in part, pursuant to §17.15(d), the Product Team shall submit a response to the request to the Office of Dispute Resolution for Acquisition within two (2) business days of receipt of the protest. Copies of the response shall be furnished to the protester and any intervenor(s) so as to be received within the same two (2) business days. The protester and any intervenor(s) shall have the opportunity of providing additional comments on the response within an additional period of two (2) business days. Based on its review of such submissions, the Office of Dispute Resolution for Acquisition, in its discretion, may recommend such suspension or delay to the Administrator or the Administrator's designee. (b) Within five (5) business days of the filing of a protest, or as soon thereafter as practicable, the Office of Dispute Resolution for Acquisition shall convene a status conference to— (1) Review procedures; (2) Identify and develop issues related to summary dismissal and suspension recommendations; (3) Handle issues related to protected information and the issuance of any needed protective order; (4) Encourage the parties to use ADR; (5) Conduct or arrange for early neutral evaluation of the protest by a DRO or Neutral or Compensated Neutral, at the discretion of the Office of Dispute Resolution for Acquisition and/or based upon the agreement or request of any party(ies) seeking such evaluation; and (6) For any other reason deemed appropriate by the DRO or by the Office of Dispute Resolution for Acquisition. (c) On the fifth business day following the status conference, the Product Team and protester will file with the Office of Dispute Resolution for Acquisition— (1) A joint statement that they have decided to pursue ADR proceedings in lieu of adjudication in order to resolve the protest; or (2) Joint or separate written explanations as to why ADR proceedings will not be used and why the Default Adjudicative Process will be needed. (d) Should the Product Team and protester elect to utilize ADR proceedings to resolve the protest, they will agree upon the neutral to conduct the ADR proceedings (either an Office of Dispute Resolution for Acquisition-designated Neutral or a Compensated Neutral of their own choosing) pursuant to §17.33(c), and shall execute and file with the Office of Dispute Resolution for Acquisition a written ADR agreement within five (5) business days after the status conference. Agreement of any intervenor(s) to the use of ADR or the resolution of a dispute through ADR shall not be required. (e) Should the Product Team or protester indicate at the status conference that ADR proceedings will not be used, then within ten (10) business days following the status conference, the Product Team will file with the Office of Dispute Resolution for Acquisition a Product Team Response to the protest. The Office of Dispute Resolution for Acquisition may alter the schedule for filing of the Product Team Response to accommodate the requirements of a particular protest. (f) The Product Team Response shall consist of a written chronological statement of pertinent 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 and tabbed. 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 Office of Dispute Resolution for Acquisition, if practicable, but in any event no later than one (1) business day after the date if it is filed with the Office of Dispute Resolution for Acquisition. In all cases, the Product Team shall indicate the method of service used. (g) Should the parties pursue ADR proceedings under subpart D of this part and fail to achieve a complete resolution of the protest via ADR, the Office of Dispute Resolution for Acquisition, upon notification of that fact by any of the parties, shall designate a DRO or Special Master for purposes of adjudication under subpart E of this part, and the DRO or Special Master shall convene a status conference, wherein he/she shall establish a schedule for the filing of the Product Team Response and further submissions. (h) Upon submission of the Product Team Response, the protest will proceed under the Default Adjudicative Process pursuant to §17.37. (i) The time limitations of this section maybe extended by the Office of Dispute Resolution for Acquisition for good cause. (a) At any time during the protest, any party may request, by motion to the Office of Dispute Resolution for Acquisition, that— (1) The protest, or any count or portion of a protest, be dismissed for lack of jurisdiction, if the protester fails to establish that the protest is timely, or that the protester has no standing to pursue the protest; (2) The protest, or any count or portion of a protest, be dismissed, if frivolous or without basis in fact or law, or for failure to state a claim upon which relief may be had; (3) A summary decision be issued with respect to the protest, or any count or portion of a protest, if: (i) The undisputed material facts demonstrate a rational basis for the Product Team action or inaction in question, and there are no other material facts in dispute that would overcome a finding of such a rational basis; or (ii) The undisputed material facts demonstrate, that no rational basis exists for the Product Team action or inaction in question, and there are no material facts in dispute that would overcome a finding of the lack of such a rational basis. (b) In connection with any request for dismissal or summary decision, the Office of Dispute Resolution for Acquisition shall consider any material facts in dispute, in a light most favorable to the party against whom the request is made. (c) Either upon motion by a party or on its own initiative, the Office of Dispute Resolution for Acquisition 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 Office of Dispute Resolution for Acquisition 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 Office of Dispute Resolution for Acquisition, 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 Office of Dispute Resolution for Acquisition 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. (a) The Office of Dispute Resolution for Acquisition has broad discretion to recommend remedies for a successful protest that are consistent with the AMS and applicable statutes. Such remedies may include, but are not limited to one or more, or a combination of, the following— (1) Amend the SIR; (2) Refrain from exercising options under the contract; (3) Issue a new SIR; (4) Require recompetition; (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 combination of the above remedies, or any other action consistent with the AMS that is appropriate under the circumstances. (b) In determining the appropriate recommendation, the Office of Dispute Resolution for Acquisition should 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 cost of any proposed remedy to the FAA; the urgency of the procurement; and the impact of the recommendation on the FAA. (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).
Title 14: Aeronautics and Space
PART 17—PROCEDURES FOR PROTESTS AND CONTRACTS DISPUTES
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 Dismissal or summary decision of protests.
§ 17.21 Protest remedies.
