Protesting FAA Awards: Understanding the Nuances

by PilieroMazza PLLC

PilieroMazza PLLC

Nearly every federal agency is required to follow the Federal Acquisition Regulation (“FAR”). However, one exception is the Federal Aviation Administration (“FAA”), which is not required to comply with the FAR but rather has its own policies and procedures, called the Acquisition Management System (“AMS”). As a result, unlike most bid protests, which may be brought either at the agency-level, Government Accountability Office (“GAO”) or the Court of Federal Claims (“COFC”), protests against the FAA contract awards (or solicitations) must be filed with the Office of Dispute Resolution for Acquisition (“ODRA”). And, because the FAA has its own set of rules and procedures, while there are some similarities between protests at ODRA and GAO or the COFC, there are many important differences. 

The first, and perhaps most important, is knowing where and when to file the protest. If you accidentally file a FAA protest at GAO or the COFC, this does not prolong the time limits in which you must file the protest at ODRA. For post-award ODRA protests, protests must either be filed no later than seven business days after the date you knew or should have known of the grounds for protest, or, if you requested a post-award debriefing, five business days after the debriefing. This is different from GAO’s standard of calculating timeliness in terms of calendar days, rather than business days.  

Second, you are not entitled to an automatic stay of performance even if the protest is timely filed at ODRA. At GAO, protestors are entitled to an automatic stay of contract performance, which may be overcome in limited circumstances. This is an extremely helpful tool for protestors, such that the status quo is preserved and the awardee is not permitted to perform on the contract while the protest is pending. Although you are not entitled to an automatic stay if you protest at the agency-level or COFC, you can argue for at least a temporary restraining order or preliminary injunction at the COFC, which has some success. Similarly, you also have to argue for a stay of performance during an ODRA protest, which must be submitted with your initial filing. But, unlike COFC, ODRA presumes that contract performance will continue pending resolution of a protest, and to be successful, protestors have to demonstrate a “compelling reason to suspend or delay all or part of the procurement activities.” This is an extremely high standard, and performance suspensions are rarely granted at ODRA.

Third, because FAA procurements are governed by the AMS, it is important to understand some differing concepts between the AMS and the FAR, so that you know if you have a strong protest argument. For example, the FAR states that if the contracting officer decides to conduct discussions with an offeror during the evaluation process, the contracting officer must hold discussions with each offeror, so that there is no unfair treatment among offerors. In contrast, the AMS encourages communications with offerors and expressly states that “[c]ommunications with one offeror do not necessitate communications with other offerors, since communications will be offeror-specific.” AMS § Although this is a strong argument at GAO, ODRA frequently denies protests where the protestor argues disparate treatment in the context of communications.

Lastly, in addition to the timeliness rules, ODRA’s procedural rules vary from GAO, and ODRA encourages alternative dispute resolution for bid protests. In fact, this is the primary means of resolution of bid protests brought before ODRA. Similar to the COFC but unlike GAO, ODRA will hold an initial scheduling conference shortly after the protest has been filed. As another example, if you are represented by counsel and seek a protective order, a redacted copy of the protest must be included with the initial protest filing, rather than the one-day grace period at GAO. And, if you are the contract awardee, and wish to protect and defend your contract award, you must submit your intervention notice within two business days from the date the contracting officer notified you of the protest. These are a few examples of the many nuances between filing a protest at the agency-level, GAO or COFC, and ODRA.  

Understanding the ODRA protest process is crucial to preserving your protest rights. Our attorneys have experience in filing and defending ODRA protests. For assistance with an ODRA protest, contact us today.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© PilieroMazza PLLC | Attorney Advertising

Written by:

PilieroMazza PLLC

PilieroMazza PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.