The Seven Unique Features Of A Protest Challenging An FAA Procurement

Husch Blackwell LLP

Contractors interested in contracts with the Federal Aviation Administration (FAA) should be aware that FAA bid protests are different from protests involving other federal agencies. The FAA’s Office of Dispute Resolution for Acquisition has exclusive jurisdiction to resolve protests involving FAA procurements. Protest proceedings at ODRA are different from those at the Government Accountability Office and the Court of Federal Claims.

  1. ODRA’s jurisdiction.

Unlike most other agencies, FAA bid protests are not decided before GAO or the Court of Federal Claims. Instead, ODRA hears FAA bid protests up to $20 million. Delegation of Authority, 79 Fed. Reg. 21,832 (Apr. 17, 2014). Protests involving amounts above the $20 million dollar threshold are heard by the FAA Administrator.

  1. ODRA has a different set of protest regulations.

GAO’s bid protest regulations are at 4 C.F.R. Part 21. The protest procedures for ODRA are outlined in 14 CFR Part 17, the FAA’s Acquisition Management System, and Procurement Guidance. FAA procurements are governed by the AMS, not the FAR, so its procurement procedures do not always track those found under the FAR.

  1. Deadlines are calculated in business days.

The ODRA regulations count deadlines for filing the initial protest in business days, rather than calendar days. GAO calculates days as calendar days.

  1. ODRA does not have an automatic stay provision.

The Competition in Contracting Act does not apply to FAA procurements. For this reason, the automatic stay that is an important feature of GAO protests is not available in FAA protests. The ODRA does have authority to order a suspension of performance, but only if the protester can demonstrate “a compelling reason to suspend or delay all or part of the procurement activities.” 14 C.F.R. § 17.13(g); 14 C.F.R. § 17.15(d). ODRA evaluates requests for suspension of performance using a four-part test that is similar to the standard of proof required of litigants seeking a preliminary injunction:

(1) whether the protester has alleged a substantial case;

(2) whether a stay or lack of stay is likely to cause irreparable injury to any party;

(3) the relative hardships on the parties; and

(4) the public interest.

  1. ODRA permits discovery.

Unlike protests at GAO, the ODRA process permits discovery. 14 C.F.R. § 17.21(i). The ODRA describes discovery as “an integral part of the ODRA dispute resolution process.” ODRA FAQ 26. While discovery is permitted, it is also limited. Depositions are permitted under some circumstances, but interrogatories and requests for admission are not. 14 C.F.R. § 17.21(i)

  1. ODRA has limited case law.

Because ODRA was established in 1996, the case law is more limited than the case law at GAO. ODRA nevertheless considers decisions of the Court of Federal Claims and GAO to be persuasive authority.

  1. ODRA uses ADR.

Extensive use of ADR is probably the most unique feature of protests of FAA procurements. ADR is “the primary means of voluntary dispute resolution that is employed by the ODRA.” 14 C.F.R. § 17.3(f). The FAA seeks “to use voluntary ADR to the maximum extent practicable.” 14 C.F.R. § 17.13(d). The parties mutually agree upon the ADR procedures (including mediation, neutral evaluation, binding arbitration or an agreed-upon combination of these procedures) and an ADR Neutral. 14 C.F.R. §§ 17.35; 17.37(d). The ADR neutral is typically an ODRA Administrative Judge, but the ADR process is kept separate from the adjudication process. AMS § 3.9.9

Further reading:

When must you protest to get an automatic stay after an enhanced debriefing?

The difference between standing and prejudice in a federal bid protest

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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.

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