Guide: Introduction

All filings with the ODRA relating to protests or contract disputes must be addressed to the ODRA at the following address:

Protests or contract disputes may be filed by regular mail, overnight delivery, hand delivery, or by facsimile. 14 C.F.R. §17.7(a). The ODRA's telephone and facsimile numbers are as follows:

Because of the tight timeframes for dispute resolution before the ODRA, all filings after those initial filings may be done only by overnight delivery, hand delivery or by facsimile. 14 C.F.R. §17.7(b). Facsimile transmission is not recommended for lengthy submissions, since the ODRA has limited facilities (currently only one fax machine) for receipt of facsimile documents. Timeliness of all filings will be measured by the time received at the ODRA offices. Filings must be received at the ODRA during its normal business hours (8 A.M. to 5 P.M. -- Eastern Time) on the date required. The risk of assuring timely receipt by the ODRA will be borne by the filer. This is particularly important to keep in mind for initial protest or contract dispute filings, since failure to make filing deadlines for those filings may be jurisdictional and may be the basis for a dismissal. See Contact & Filing Information for additional details regarding how to access the ODRA offices.

When a protester or contractor repeatedly fails to meet established filing deadlines or fails to participate in scheduled ODRA conferences, the ODRA may recommend that the protest or contract dispute be dismissed for failure to prosecute. The ODRA likewise may recommend the exclusion of an intervenor in a protest or the imposition of appropriate sanctions against the FAA Product Team for such failures on the Team's part in connection with protests or contract disputes. Accordingly, it is strongly suggested that parties first contact one another reasonably in advance of scheduled deadlines or conferences, to seek agreement on proposed schedule adjustments, whenever it appears likely that they will be unable to meet such deadlines or to participate in such scheduled conferences. The ODRA DRO or Special Master should also be notified in advance of scheduled dates regarding any proposed schedule adjustments, as to the parties' availability for alternative dates for rescheduling of conferences, and as to whether they are in agreement on requests for filing deadline extensions.

ODRA procedures call for the DRO or Special Master to issue findings and recommendations within thirty (30) business days of: (1) the submission of a Product Team Response, in the case of a protest; or (2) the final written submissions of the parties, in the case of a contract dispute. In most cases, findings and recommendations are submitted to the ODRA Director in a much shorter period of time. Although no times are specified for review by the ODRA Director or for the issuance of an Administrator's final Order, to date, the turnaround for these final activities has been relatively short. The overall timing for the ODRA Default Adjudicative Process has been significantly faster than parties will ordinarily experience in other federal contract forums. See ODRA Case Management Statistics.

In the prosecution of a procurement protest or contract dispute, a party might need to refer to documents or other items containing or reflecting trade secrets or confidential commercial information. The ODRA, upon request, can issue a protective order to protect proprietary, confidential, or source-selection-sensitive material, and other information which could result in a competitive advantage to another company or person. A request for a protective order may be made by any party, or may be imposed by the ODRA on its own initiative. 14 C.F.R. §17.9. Even in the absence of an ODRA protective order, the FAA is obligated to protect material of third parties that would ordinarily be subject to a protective order. In order to prevent unfairness, the ODRA can review such material in camera, without releasing that material to other parties.

A party to a protest or a contract dispute wishing to protect its confidential information must be alert to the fact that such material can be subject to the Freedom of Information Act (FOIA)(5 U.S.C. § 552). The FOIA will override a protective order, unless the material qualifies under Exemption 4 to the FOIA -- the exemption pertaining to "privileged or confidential" "trade secrets and commercial or financial information." For this reason, the ODRA recommends that parties be familiar with the criteria for applying FOIA Exemption 4. Current criteria for gaining protection under Exemption 4 are discussed briefly below.

If requested material is contained in documents generated by the FAA, the criteria for protection of such material from FOIA disclosure under Exemption 4 are set forth in Federal Open Market Committee of the Federal Reserve, 443 U.S. 42 (1979).

If the information and/or documents were required to be submitted to the FAA, the party must show that their disclosure would have substantial harmful effect on the party’s competitive position, and if so, what that harmful effect would be, why the effect is substantial, and the causal relationship between disclosure and the claimed harmful effect. Ordinarily, the FAA requires submission of confidential information for some purpose, such as cost analysis, technical validity, or a demonstration of compliance with specifications. The party seeking protection of such information must show concrete damage to its competitive position from the release of such information to the public, and not merely advance a vague or generalized claim of potential harm to its competitive position. See, National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

If the information was voluntarily submitted to the FAA, the party must show that it is the type of material that the party would not customarily release to the public, and/or that disclosure would lessen the availability to the FAA of similar information in the future. See, Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc) cert. denied 507 U.S. 984 (1993).

This Website contains an ODRA Model Protective Order that can be modified by the parties with the concurrence of the ODRA. It is based upon protective orders used by the General Accounting Office (GAO) and the General Services Administration Board of Contract Appeals (GSBCA).

It is suggested that you download the ODRA Model Protective Order onto your hard drive before attempting to make any modifications to it.

Use of a protective order will ordinarily require the retention of outside counsel by a protester or contractor. Because of the risk of misuse of information, pro se protesters or contractors (those proceeding without an attorney) cannot obtain access to confidential documents of other parties and other items protected by such an order, such as sensitive Government source-selection information. After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the order by submitting an application to the ODRA, with copies furnished simultaneously to all parties. The application establishes that the applicant is not involved in competitive decisionmaking for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. See, U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984). Objections to an applicant’s admission should be raised within two days of the application, although the ODRA may consider objections raised after that time. 14 C.F.R. §17.9(c).

LOCATION: The Office of Dispute Resolution for Acquisition (the ODRA) is located in Room 323 of the FAA Headquarters Building at 800 Independence Avenue, S.W., in Washington, D.C. You can contact us as shown below:

BY MAIL: You can reach the ODRA by mail at the following address: Federal Aviation Administration, Office of Dispute Resolution for Acquisition, AGC-70, Room 323, 800 Independence Avenue, S.W., Washington, D.C. 20591. Please recognize that regular mail delivery may be delayed for a variety of reasons and allow sufficient time when mailing items to the ODRA Offices.

BY TELEPHONE: You can call Gloria L. Rosier, Assistant to the Director, at the Office of Dispute Resolution for Acquisition during working hours at (202) 267-3290. ODRA working hours are between 9:00 a.m. and 5:00 p.m. Eastern Standard or Daylight Time. Please be patient. The ODRA receives many calls during the day, and you may get a message. If you get a message, please leave your name, the name of your company, a short summary of your inquiry and a number where we may reply.

BY FACSIMILE: The facsimile number for the Office of Dispute Resolution for Acquisition is (202) 267-3720. Please note that, if your facsimile contains a document that must be received at the ODRA by a certain date, that document must be received at the ODRA facsimile no later than 5:00 p.m. Eastern Time. The volume of information received at the ODRA can be very high, so please allow time for busy signals.

BY HAND: The ODRA office is located in Room 323 of the FAA Headquarters Building at 800 Independence Avenue, S.W., in Washington, D.C., diagonally across from the National Air and Space Museum, and may be reached by Metrorail on either the Blue/Orange or the Green/Yellow Lines at the L'Enfant Plaza Station (7th Street and Maryland Avenue Exit). To deliver a package to the ODRA Office, you may go to the entrance of the FAA Headquarters Building and call the office at Ext. 73290. The ODRA Office is located on the third floor on the East Side of the FAA Headquarters Building around the corner from the Office of the Associate Administrator for Civil Aviation Security. All non-Government employee visitors must be escorted to the ODRA Office.

BY E-MAIL: The ODRA may be reached via e-mail at the following address: Marie.Collins@faa.gov

FILINGS: All filings with the ODRA relating to protests or contract disputes must be addressed as follows:

Protests or contract disputes may be filed by regular mail, overnight delivery, hand delivery, or by facsimile. 14 C.F.R. §17.7(a). The ODRA's telephone and facsimile numbers (as indicated previously) are:

The following language of Section 101 of the Aviation and Transportation Security Act, Public Law 107-71, makes the FAA Acquisition Management System (AMS) applicable to certain TSA acquisitions and allows TSA to modify the AMS for its purposes to adopt "aspects of other acquisition management systems of the Department of Transportation":

STATEMENT OF THE ADMINISTRATOR

As a matter of policy, the FAA is committed to the early and expeditious resolution of contract related disputes, using mediation, fact-finding, and other techniques collectively known as “alternative dispute resolution” (ADR). To further the use of ADR in our agency, this Guidance for the Use of Binding Arbitration has been issued to expand the options available to the FAA for using ADR. This Guidance, which received the concurrence of the Attorney General, specifically provides that the use of binding arbitration is entirely voluntary and is to be used only when it is in the best interest of the Government. In appropriate cases, the use of binding arbitration can provide significant benefits for the agency. For example, an arbitration agreement allows the parties to limit the issues and to tailor the arbitration process according to the unique nature of the dispute; thereby reducing costs and avoiding delays in achieving a final resolution. The use of arbitration also provides greater privacy for the decision making process, and because decision makers are involved in the process of negotiating an arbitration agreement, the parties’ acceptance of and compliance with the award decision is enhanced. Binding arbitration decisions generally are final and not appealable, and may be enforced by either party in court, if necessary. In sum, this Guidance will provide the FAA with yet another ADR tool to help achieve its goal of effective, efficient and fair resolution of contract related controversies, through less formal, consensual methods.

_______/s/___________________________
JANE F. GARVEY, ADMINISTRATOR

INTRODUCTION

The Office of Dispute Resolution for Acquisition (“ODRA”) of the Federal Aviation Administration (“FAA”), a modal administration of the United States Department of Transportation, proposes to utilize binding arbitration among other alternative dispute resolution (“ADR”) techniques for purposes of resolving bid protests and contract disputes relating to procurements and contracts under the FAA Acquisition Management System (“AMS”). The following guidance for the appropriate use of binding arbitration was prepared for review by and coordination with the United States Department of Justice, Office of Dispute Resolution (hereinafter the “Justice Department”), pursuant to the requirement of 5 U.S.C. §575(c) that such guidance be issued “in consultation with the Attorney General” prior to an agency’s use of binding arbitration. On July 26, 2001, the Attorney General concurred in the proposed guidance. Notice of the proposed guidance was published for public review and comment in the Federal Register on August 27, 2001. No comments were received.

Background

The Administrative Dispute Resolution Act of 1990, Pub. L. 101-552 (November 15, 1990), as amended by Pub. L. 102-354 (August 26, 1992) (the “ADRA of 1990”), expressly authorized the use of arbitration among several alternative dispute resolution (“ADR”) techniques available to federal agencies for purposes of dispute resolution, but specifically permitted agency heads to “opt out” of arbitration awards:

(c) The head of any agency that is a party to an arbitration proceeding conducted under this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to the proceeding before the award becomes final by serving on all other parties a written notice to that effect, in which case the award shall be null and void.

This “opt out” feature of the ADRA of 1990 – which rendered federal agency arbitrations less than “binding” – was eliminated when Congress enacted the Administrative Dispute Resolution Act of 1996 (“ADRA of 1996”), Pub. L. 104-320 (October 19, 1996), 5 U.S.C. §§571-583. The ADRA of 1996 specifically permits federal agencies to utilize “binding arbitration” to resolve “issues in controversy.” However, the ADRA of 1996 mandates as a prerequisite to agencies’ use of binding arbitration that they issue agency guidance, in consultation with the Attorney General, on the appropriate use of binding arbitration. 5 U.S.C. §575(c).

After the enactment of the ADRA of 1990, but prior to the enactment of the ADRA of 1996, the Congress, under the 1996 Department of Transportation and Related Agencies Appropriations Act, Pub. L. 104-50 (November 15, 1995), called for the Federal Aviation Administration (“FAA”) to develop a new acquisition management system aimed at fulfilling the agency’s unique procurement needs. Under that statute, the new FAA system was to be developed without reference to existing acquisition statutes and regulations, including, inter alia, the Competition in Contracting Act (“CICA”), the Federal Acquisition Streamlining Act (“FASA”), the Office of Procurement Policy (“OFPP”) Act, the Federal Acquisition Regulation (“FAR”) and all statutes implemented via the FAR. In the FAA’s new Acquisition Management System (“AMS”), a procurement policy document that took effect on April 1, 1996, the FAA Administrator established the Office of Dispute Resolution for Acquisition (“ODRA”), an independent office within the FAA Office of Chief Counsel, as the sole administrative forum for resolution of bid protests and contract disputes relating to procurements and contracts issued under the AMS. The ODRA has served this function since May 1996.

Pursuant to the AMS and supplemental delegations from the Administrator dated July 29, 1998 and March 27, 2000, the ODRA has employed ADR as its primary means of dispute resolution.[1] Procedures for the use of ADR are included as an integral part of the ODRA’s procedural rules under Title 14 Code of Federal Regulations, Part 17. In terms of binding arbitration, the AMS had initially incorporated an “opt out” feature pursuant to the ADRA of 1990:

If binding arbitration is agreed to, the decision of the DRO or neutral arbiter will become a final agency decision, unless the FAA Administrator indicates nonconcurrence with the decision, in writing within seven business days after the date that the decision is issued. If the FAA Administrator nonconcurs with the decision and issues a contrary determination, then that determination becomes the final agency decision concerning the merits of the protest or contract dispute.

AMS §3.9.3.2.3.1 (April 1996). This same language was carried over into the most current version of the AMS. See AMS §3.9.6 (September 1999). Pending the issuance of Justice Department guidance for the use of binding arbitration pursuant to the ADRA of 1996, the FAA ODRA has only authorized binding arbitration using the “opt out” procedure contemplated by the ADRA of 1990. The ODRA procedural rules, which took effect on June 28, 1999, were worded so as to accommodate both the existing procedure and anticipated Justice Department guidance on use of binding arbitration. The pertinent section of the procedural rules provides:

(f) Binding arbitration may be permitted by the Office of Dispute Resolution for Acquisition on a case-by-case basis; and shall be subject to the provisions of 5 U.S.C. 575(a), (b), and (c), and any other applicable law. Arbitration that is binding on the parties, subject to the Administrator’s right to approve or disapprove the arbitrator’s decision, may also be permitted.

14 C.F.R. §17.33(f). The American Bar Association (“ABA”) took issue with this language as part of its comments on an earlier ODRA Notice of Proposed Rulemaking (“NPRM”). The ODRA addressed the ABA’s comments in the following manner:

Binding Arbitration

The ABA takes issue with the language of §17.33(f), which permits the FAA Administrator a limited amount of time within which to "opt-out" of an arbitrator's decision in binding arbitration, arguing that such a provision conflicts with the policies enunciated in the Administrative Dispute Resolution Act of 1996. Accordingly, the ABA recommends deletion of such language.

FAA Response: The FAA disagrees. Under 5 U.S.C. 575(c), any binding arbitration undertaken by a Federal agency must be in accordance with guidance issued by the head of the agency in consultation with the Attorney General, i.e., the Department of Justice (DoJ). As of this time, DoJ has advised that federal agencies, including the FAA, may not engage in any form of binding arbitration without the kind of "opt-out" provision described in proposed §17.33(f). The language with which the ABA takes issue does not mandate this form of binding arbitration, but merely makes it a permissible form. Since any form of ADR will require the concurrence of both parties, the FAA does not see any necessity for eliminating this alternative and has not done so in the final rule. The language of the first sentence of §17.33(f) would allow for binding arbitration without such an "opt out" provision, pursuant to 5 U.S.C. 575(a), (b), and (c), so long as the arbitration process is consistent with current DoJ guidance and "applicable law." Thus, if DoJ modifies its guidance to the agencies so as to allow such binding arbitration, the FAA would not need to revise §17.33 in order to pursue such a dispute resolution option.

Subsequent to the issuance of the ODRA procedural rules, the Federal ADR Council under the leadership of the Attorney General approved and endorsed a publication entitled “Developing Guidance for Binding Arbitration: A Handbook for Federal Agencies,” prepared by Phyllis Hanfling, Esq., Department of Energy, and Martha McClellan, Federal Deposit Insurance Corporation (hereinafter the “Handbook”), as a “blueprint” for the development of agency guidance for use of binding arbitration, as contemplated by the ADRA of 1996. The following proposed ODRA guidance for binding arbitration has been developed along the lines suggested by the Handbook, and in accordance with the recommendations set forth in Section IV of the Handbook, is being transmitted to the Justice Department’s Office of Dispute Resolution for review and comment. It is the intent of the FAA, once Justice Department concurrence is obtained, to publish the proposed guidance (with whatever modifications may be suggested by the Justice Department and adopted by the FAA) in the Federal Register. The FAA is also contemplating the future issuance of guidance for the use of binding arbitration in connection with non-acquisition related disputes. In this regard, the proposed ODRA guidance is considered a first step toward establishing overall guidance for the FAA for use of binding arbitration.

Overview

The following guidance is aimed at satisfying the requirements regarding binding arbitration specified within the ADRA of 1996 and at identifying and addressing critical issues relating to binding arbitration in a manner that is consistent with the FAA dispute resolution process, as set forth under the ODRA’s procedural rules, Title 14 C.F.R. Part 17.

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I. Statutory Requirements

A. Considerations for Not Using Arbitration

The ADRA of 1996 calls for agencies to consider not using any form of ADR, including binding arbitration, in a number of specified circumstances. Accordingly, unless it can be established to the satisfaction of the ODRA Director that the use of binding arbitration for the resolution of a bid protest or contract dispute will be in the best interests of the Government, such an ADR technique will not be utilized whenever:

(1) a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;

(2) the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the agency;

(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;

(4) the matter significantly affects persons or organizations who are not parties to the proceeding;

(5) a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; or

(6) the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency's fulfilling that requirement.

See 5 U.S.C. §572(b).

B. Other Statutory Requirements

In accordance with the ADRA of 1996, the following shall apply to all arbitrations conducted for the resolution of bid protests and contract disputes under the auspices of the ODRA:

1. The decision to arbitrate must be voluntary on the part of all parties to the arbitration. (See 5 U.S.C. §575(a)(1)).

2. A party may limit the issues it agrees to submit to arbitration. (See 5 U.S.C. §575(a)(1)(A)).

3. A party may agree to arbitrate on the condition that the award is limited to a range of possible outcomes. (See 5 U.S.C. §575(a)(1)(B)). (Note: This provision does not contradict the requirement (set out in 4 below) that the parties agree on a maximum amount that the arbitrator can award).

4. An agreement to arbitrate must be in writing. It must set forth the subject matter submitted to the arbitrator, and must specify the maximum award or “cap” that may be granted by the arbitrator. (See 5 U.S.C. §575(a)(2)).

5. The FAA shall not require anyone to consent to arbitration as a condition of entering into a contract or obtaining any other benefit. (See 5 U.S.C. §575(a)(3)).

6. An officer or employee of the FAA who offers to use arbitration must otherwise have the authority to enter into a settlement concerning the matter or must be specifically authorized to consent to the use of arbitration. (See 5 U.S.C. §§575(b)(1) and (2)).

7. The selection of the arbitrator shall be upon mutual agreement of the parties. (See 5 U.S.C. §577(a)). In accordance with Title 14 C.F.R. Part 17, Subpart D, the parties may elect to have the ODRA Director designate an ODRA Dispute Resolution Officer (DRO) to serve as the arbitrator. In the alternative, they may request that the ODRA attempt to make qualified non-FAA personnel available to serve as an arbitrator, through neutral-sharing programs and other similar arrangements. Finally, the parties may elect to employ a mutually acceptable Compensated Neutral (as defined under 14 C.F.R. §17.3(f)) as the arbitrator, if the parties agree as to how the costs of any such Compensated Neutral are to be shared. In no event shall the arbitrator have an official financial or personal conflict of interest with respect to the issue in controversy, unless that interest is fully disclosed in writing and all parties agree that he/she may serve as the arbitrator. (See 5 U.S.C. §§573, 577(b)).

8. An arbitrator may regulate the course and conduct of the arbitration hearing. (See 5 U.S.C. §578(1)).

9. An arbitrator may administer oaths and affirmations. (See 5 U.S.C. §578(2)).

10. An arbitrator may compel the attendance of witnesses and the production of documents. (See 5 U.S.C. §578(3)).

11. An arbitrator may make awards. (See 5 U.S.C. §578(4)).

12. The arbitrator shall set the time and place for the arbitration hearing and shall notify the parties of same at least five days before the hearing is to take place.

13. Parties are entitled to a record of the arbitration hearing. Any party wishing a record shall: (1) make the arrangements for it; (2) notify the arbitrator and other parties that a record is being prepared; (3) supply copies to the arbitrator and the other parties; and (4) pay all costs, unless the parties have agreed to share the costs. (See 5 U.S.C. §§579(b)(1)-(4)).

14. At any arbitration hearing, parties are entitled to be heard and present evidence. (See 5 U.S.C. §§579(c)(1) and (2)).

15. The arbitrator may hear any oral and documentary evidence that is not irrelevant, immaterial, unduly repetitious, or privileged. (See 5 U.S.C. §579(4)).

16. The arbitrator shall interpret and apply any relevant statutes, regulations, legal precedents and policy directives. (See 5 U.S.C. §579(5)).

17. No party shall have any unauthorized ex parte communication with the arbitrator. If a party violates this provision, the arbitrator may require that party to show cause why the issue in controversy should not be resolved against it for the improper conduct. (See 5 U.S.C. §579(d)).

18. The arbitration award for protests shall be made within twenty (20) business days from the filing of an executed ADR agreement with the Office of Dispute Resolution for Acquisition, unless the parties request, and are granted, an extension of time from the Office of Dispute Resolution for Acquisition. For contract disputes, the arbitration award shall be made within forty (40) business days from the filing of an executed ADR agreement with the Office of Dispute Resolution for Acquisition, unless the parties request, and are granted, an extension of time from the Office of Dispute Resolution for Acquisition. (See 5 U.S.C. §§579(e)(1) and (2); 14 C.F.R. §§17.33(g) and (h)).

19. An arbitration award shall include a brief informal discussion of the factual and legal basis for the award. Formal findings of fact and law are not required. (See 5 U.S.C. §580(a)(1)).

20. A final award is binding on the parties and may be enforced pursuant to sections 9 through 13 of Title 9, U.S. Code. (See 5 U.S.C. §580(c)).

21. An arbitration award may not serve as an estoppel in any other proceeding and may not be used as precedent in any factually unrelated proceeding. (See 5 U.S.C. §580(d)).

22. Any action for review of an arbitration award must be made pursuant to sections 9 through 13 of Title 9, U.S. Code. (See 5 U.S.C. §581(a)).

23. Arbitration shall be subject to judicial review under section 10(b) of Title 9, U.S. Code, for evident partiality or corruption of the arbitrator(s). (See 5 U.S.C. §581(b)).

II. Binding Arbitration Guidance

A. The ADR Spectrum

ADR processes, as defined in 5 U.S.C. §571(3) include, but are not limited to, conciliation, facilitation, mediation, fact-finding, ombuds, mini-trials, and arbitration. ADR processes are generally designed to reduce costs, avoid the delays of judicial proceedings, protect the privacy of the parties and increase the level of compliance by involving decision makers in the process. The FAA Associate Administrator, Research and Acquisitions (ARA), and Procurement Executive has executed an ADR Pledge, committing the agency to using ADR in appropriate cases for the resolution of issues in controversy relating to FAA acquisitions. ADR is viewed by the FAA as an indispensable tool for accomplishing its overall mission in the most productive and efficient manner. The FAA, through the Office of Dispute Resolution for Acquisition, has successfully resolved the majority of bid protests and contract disputes under the AMS by means of ADR. ADR is the primary focus of dispute resolution for the ODRA. The forms of ADR employed by the ODRA have been consensual for the most part, principally facilitative mediation and neutral evaluation. Consensual forms of ADR are clearly preferred by the FAA as a general matter. However, as noted above, the ODRA’s procedural rules contemplate the availability of binding arbitration, in the event parties desire to utilize that form of ADR to resolve a particular dispute.

B. Binding Arbitration: Description and Forms

The ODRA will administer a form of binding arbitration that the parties select for the purpose of resolving a bid protest or contract dispute. Binding arbitration is said to be the dispute resolution process most like adjudication. In binding arbitration, the parties agree to use a mutually selected decision-maker to hear their dispute and resolve it by rendering a binding decision or award. In the case of bid protests or contract disputes before the ODRA, the parties’ decision to arbitrate or to utilize another form of ADR will be made immediately after the case is docketed by the ODRA. See 14 C.F.R. §§17.17 and 17.27.

Like litigation, binding arbitration is an adversarial, adjudicative process designed to resolve the specific issues submitted by the parties. Binding arbitration differs significantly from litigation in that it does not require conformity with the legal rules of evidence, and the proceeding is conducted in a private rather than a public forum. Binding arbitration awards typically are enforceable by courts, absent defects in the arbitration procedure. Appeal from such awards, pursuant to the Federal Arbitration Act, 9 U.S.C. §10, is generally limited to fraud or misconduct in the proceedings.

Binding arbitration may also be used in conjunction with mediation in several ways:

· It may be part of a mediation/arbitration (so-called “med/arb”) proceeding, where the parties attempt to mediate the dispute first. Failing resolution, the same neutral arbitrates and issues a binding award. Using the same person as both mediator and arbitrator may have a chilling effect on full participation in mediation, as a party may not believe that the arbitrator will be able to discount unfavorable information learned during the mediation.

· In co-mediation/arbitration, two neutrals preside over the initial joint session. After that, the neutral designated as the mediator works with the parties. Failing settlement, the case, or any unresolved issues, may be submitted to the neutral designated as the “arbitrator,” for a binding decision.

· Arbitration/mediation is another way to avoid the problem of one neutral serving as both mediator and arbitrator. The arbitrator hears the case and renders a written determination that is not disclosed to the parties. He or she then attempts to mediate, with the understanding that if the parties reach no settlement, his/her earlier determination will become the award.

C. Setting the Award “Cap”

In terms of the ADRA’s mandatory requirement for establishing an award “cap”, in addition to negotiating a maximum award (“cap”), the parties might consider agreeing to a minimum award prior to arbitration, using the “High-Low” method as described in the Handbook:

High-Low. The parties agree privately without informing the arbitrator that the final award will be within certain parameters. At the conclusion of the hearing, if the arbitrator’s award is within the agreed upon range, the parties are bound by that figure. If, however, the award is outside the parameters, it is adjusted accordingly. For example, if the high-low figures were $50,000 and $100,000 and the award was $25,000, it would be adjusted to $50,000. Similarly, if the award were $250,000, it would be adjusted to $100,000.

D. The Checklist of Arbitration Issues

The following responds to each of the substantive issues identified in the Handbook as “substantive issues to consider.”

Issue 1: For what types of cases will the agency be willing to use binding arbitration?

Response: The FAA is willing to consider the use of binding arbitration for the resolution of any issue in controversy involving a bid protest or contract dispute, where the aforesaid specified circumstances under the ADRA (i.e., for considering non-use of ADR) are not involved. (See I.A. above).

Issue 2: Will the FAA agree to arbitrate issues other than money, e.g., specific performance, punitive damages, injunctive relief, apportionment of fees?

Response: Because established case law provides that an award of punitive damages against the Government would be a violation of sovereign immunity, the FAA will not agree to having such damages as part of any arbitration award under the ODRA dispute resolution process. On the other hand, non-monetary relief may be and frequently is necessary for the proper resolution of bid protests, e.g., directed cancellations of, or amendments to solicitations or ordered terminations for the convenience of the Government and/or directed contract awards. In such protest cases, should the arbitrator conclude that non-monetary relief is appropriate, the arbitrator’s authority would be limited to recommending to the ODRA Director and the Administrator that such relief be granted. The resolution of contract disputes also may entail the need for declaratory or equitable relief. Where declaratory relief is needed, the arbitrator may be authorized to grant such relief. The arbitrator may be authorized to recommend other forms of equitable relief, such as specific performance. If either party contemplates the need for non-monetary relief, it is strongly suggested that the issue of such relief be addressed specifically as part of the parties’ Arbitration Agreement.

Issue 3: How and by whom will the decision to arbitrate be made?

Response: The decision to arbitrate is strictly that of the parties to the bid protest or contract dispute. As with any other form of ADR, arbitration must be a completely voluntary process. Within the FAA, a decision to arbitrate will be made by the FAA Product Team. Under the AMS, Product Teams are given considerable independent authority and are to operate by consensus. An FAA Product Team ordinarily consists of a Contracting Officer, one or more program officials, and a Product Team Counsel who is a representative of the FAA Office of Chief Counsel.

a. Who will have authority to recommend arbitration?

Response: Arbitration may be recommended by a party or by the ODRA.

b. Who has the authority to enter into settlement? Can this authority be delegated?

Response: Generally, it will be the Contracting Officer who will have authority to execute a settlement agreement on behalf of the FAA. His/her authority might be delegable to another member of an FAA Product Team, so long as the individual holds an appropriate warrant.

c. Who will negotiate the cap on the award?

Response: Negotiation should ordinarily involve the Contracting Officer. It is expected that Product Team Counsel will participate in any negotiation.

d. Who will negotiate the rules and selection of the arbitrator?

Response: The parties must mutually agree upon the arbitrator and will have several
options from which to choose, including: (1) an ODRA Dispute Resolution Officer (DRO); (2) a Board of Contract Appeals Judge from the General Services Administration Board of Contract Appeals (GSBCA) or other non-FAA federal employee made available to the ODRA for purposes of serving as an ADR Neutral under the terms of an interagency agreement with the FAA; and (3) a Compensated Neutral from outside the Government, whose costs are to be shared by agreement of the parties. For the FAA, the decision regarding selection of the arbitrator will be that of the FAA Product Team. The procedural rules that will govern any binding arbitration are to be established by the parties, preferably with input from the arbitrator whom they select, and should be memorialized as part of the Arbitration Agreement.

e. Who will draft the Agreement to Arbitrate?

Response: The Agreement will be drafted by the parties, ordinarily by their respective counsel with the assistance of an ODRA Dispute Resolution Officer (DRO)[2], if desired, and preferably with substantive input from the selected arbitrator.

Issue 4: What will the process be for entering into arbitration?

Response: As described above, the process for entering into arbitration in an ODRA proceeding is an informal process assisted by a designated ODRA DRO and one that is contemplated by the ODRA procedural rules.[3] An FAA Product Team has complete delegated authority from the Administrator under the AMS to resolve acquisition related disputes at the lowest possible level and to employ ADR techniques whenever appropriate. As a member of the Product Team, the FAA Contracting Officer, depending on the extent of his/her warrant, is authorized to execute Arbitration Agreements, provided he/she ascertains first that sufficient funds will be available to cover the maximum possible award against the FAA and second that the circumstances of a case are such that binding arbitration would not be precluded under the guidance of Section I.A. hereinabove and/or would serve the best interests of the Government. Under the FAA’s system, no justification of binding arbitration for approval by a higher level within the agency is required. Accordingly, in lieu of any Request to Arbitrate, the Product Team’s Counsel, with the assistance of other Team members as appropriate, will be required to prepare a Memorandum of Counsel for the Contracting Officer, in order to document Counsel’s evaluation of the merits of the case and the rationale for any election to submit the matter to binding arbitration. This Memorandum of Counsel, which shall be maintained in the Product Team’s files, shall not be made part of any administrative record, shall not be used in the arbitration, and shall carry whatever privileges regarding non-disclosure and non-admissibility may attach to such documents.

Issue 5: What should the Memorandum of Counsel include?

Response: The following information should be included:

Facts & Analysis - A presentation of the factual bases, legal reasons, and policy considerations supporting the decision to use binding arbitration to resolve the particular dispute, including:

· A detailed description of the facts underlying the controversy, and an identification of the disputed issues and the current status of the matter.

· A litigation risk analysis.

· A statement that none of the circumstances specified in 5 U.S.C. §572(b) are present, such that ADR might not be advisable. See Section I.A. above. In the alternative, a statement as to why ADR is advisable and in the best interests of the Government, notwithstanding the existence of such circumstances.

· A description of how binding arbitration was initiated in the present case.

· An explanation of why forms of ADR other than binding arbitration are not feasible for resolution of the issue(s) in controversy, including a description of all consensual forms of ADR that have been offered or attempted and the outcome and a statement as to why further attempts with consensual approaches are inappropriate or impractical. (Note: The foregoing explanation would be obviated if binding arbitration were coupled with mediation – e.g.., using a “med-arb” approach – or some other consensual ADR technique.)

· A detailed cost/benefit analysis of arbitration versus litigation –

o For arbitration: (1) an arbitration timeline (to include the time needed to negotiate and finalize the Arbitration Agreement as well as the time for discovery, submissions of writing presentations, and the hearing); (2) the arbitrator’s fees and expenses; (3) agency personnel costs; (4) any fees for using outside counsel; (5) travel and transportation costs associated with discovery and hearing; (6) any transcript costs; and (7) other estimated expenses (including reproduction, equipment rental, etc.)

o For litigation: (1) a litigation timeline (to include time for any appeal); (2) agency personnel costs; (3) any fees for using outside counsel; (4) travel and transportation costs associated with discovery, hearing and any appeal; (5) any transcript costs; and (6) other estimated expenses (including reproduction, equipment rental, etc.)

Maximum Award - Identification of the proposed maximum award (“cap”) and the funding available to cover that maximum.

Issue 6: How can the FAA encourage the efficiency of the arbitration process?

Response: In all but rare exceptions (see Issue 11, below), only single arbitrators (rather than panels of arbitrators) will handle ODRA bid protests and contract disputes. Arbitrators operating under the auspices of the ODRA shall employ the following measures, with the parties’ consent and cooperation, in order to assure maximum efficiency of the arbitration process:

A. Limit the scope of discovery

B. Establish reasonable deadlines for discovery, the hearing, and rendering of an award, consistent with the timeframes specified in the ODRA procedural rules for completion of ADR - i.e., for bid protests, 20 business days from the parties’ submission to the ODRA of the ADR (Arbitration) Agreement; and for contract disputes, 40 business days from the date of such submission, subject to extensions by the ODRA for cause. See 14 C.F.R. §§17.33(g) and (h). These timeframes shall be incorporated into the Arbitration Agreement. Specify therein also that the arbitration award shall be final when served and that service must be effected by means of certified mail, return receipt requested. In accordance with the ADRA of 1996, the award will be enforceable 30 days after service on all parties. See 5 U.S.C. §580(b).

C. Limit the number of witnesses.

D. Resolve the controversy or individual issues by means of document review or by arbitration via telephone conference in appropriate cases.

Issue 7: How and by whom will outside requests for binding arbitration be accepted?

Response: As noted previously, at the inception of the ODRA’s processing of a bid protest or contract dispute, an ODRA DRO will be designated by the ODRA Director to explore with the parties all ADR options, including binding arbitration. A party (whether the FAA Product Team or a contractor or offeror) wishing to utilize binding arbitration will be provided with the opportunity to request this means of dispute resolution at that juncture. If the parties agree to using binding arbitration, they will be required to furnish a written Arbitration Agreement for review and approval by the ODRA Director in accordance with a time schedule established during the parties’ initial status conference with the Director. The Director will review any such Agreement to assure compliance with the ADRA of 1996 and the guidance herein.

Issue 8: Will the FAA allow arbitration clauses to be written into contracts?

Response: This has not been and will not be the FAA practice under the AMS. Instead, the standard “Disputes” clause makes all bid protests and contract disputes subject to the ODRA Dispute Resolution Process, as set forth in Title 14 C.F.R. Part 17. Arbitration will not be mandated by contract clause or otherwise, but will be considered as one of many ADR options in the manner previously described.

Issue 9: If the agency allows arbitration clauses in contracts, what should be included in the clause?

Response: Not applicable. See Response to Issue 8, above.

Issue 10: What is the arbitrator’s role under the ADRA?

Response: As specified in Section I.B. hereinabove, the provisions of the ADRA will apply to arbitrations of bid protests and contract disputes administered by the FAA ODRA. As such, the arbitrator will have, inter alia, the authority to:

· Regulate the course and conduct of arbitration hearings;

· Administer oaths;

· Compel attendance of witnesses and production of evidence, to the extent that the agency is authorized to do so by law[4];

· Issue awards.

It is suggested that the parties, as part of their Arbitration Agreement, spell out any specific further powers they wish the arbitrator to have, and further afford the arbitrator broad discretion in terms of efficient case management.

Issue 11: Will the ODRA permit the use of a panel of arbitrators in some circumstances?

Response: In only rare circumstances would the ODRA permit more than a single arbitrator to be utilized. Because of the cost attendant to compensating an arbitration panel, the issue(s) in controversy would have to involve significant dollar amounts. Further, the matter would have to be of such technical complexity that no single arbitrator would have sufficient expertise or experience to be able to resolve the matter.

Issue 12: What selection criteria will be considered in choosing an arbitrator?

Response: The ADRA allows an agency to use, with or without reimbursement, the services and facilities of other Federal agencies, State, local and tribal governments, public and private organizations and agencies, and individuals, with the consent of such agencies, organizations, and individuals, and without regard to the provisions of 31 U.S.C. §1342 (regarding the acceptance of voluntary services). The ADRA permits selection of all ADR neutrals, including arbitrators, to be done non-competitively. In terms of any arbitrator, the individual must be acceptable to both the FAA and other parties involved in a bid protest or contract dispute. As noted above, the ODRA provides as options for ADR neutrals three categories of individuals: (1) ODRA Dispute Resolution Officers (DROs); (2) Board of Contract Appeals Judges from the General Services Administration Board of Contract Appeals (GSBCA) or other non-FAA federal employees made available to the ODRA for purposes of serving as an ADR Neutral under the terms of an interagency agreement with the FAA; and (3) Compensated Neutrals from outside the Government, whose costs are to be shared by agreement of the parties. Among the primary criteria for selection of an arbitrator would be: (1) overall reputation of the arbitrator in terms of competence, integrity, and impartiality; (2) degree of expertise and experience in Government contract law and with the FAA Acquisition Management System; (3) degree of expertise and experience with the subject matter/ technical issues involved in the controversy; (4) availability of the arbitrator during the periods most convenient for the parties; (5) geographic proximity of the proposed arbitrator to the parties and to witnesses; (6) relative cost; and (7) the absence of any actual or potential conflict of interest. To the extent rosters of qualified arbitrators are developed, these should be consulted. The ODRA DRO designated by the ODRA Director to explore ADR options with the parties will be available to facilitate an agreement on arbitrator selection.

Issue 13: Will the agency agree to allow non-attorneys to represent a party, or for a party to appear pro se at the arbitration?

Response: Yes. The ODRA Dispute Resolution Process has been designed so that it is readily accessible to small business enterprises and other entities or individuals that wish to prosecute bid protests or contract disputes without representation of counsel. To that end, the ODRA Website (http://www.faa.gov/agc) contains a plain language Guide, a listing of standard forms, and a library of all of the ODRA’s case decisions, with case summaries, topical and case name indexes, and a key word search capability. As a result, more than half the cases docketed by the ODRA to date have been prosecuted by contractors on a pro se basis. (See the latest Case Management Statistics). Before approving any Arbitration Agreement entered into by an unrepresented party, the ODRA Director will ascertain that the party is aware of the risks and limitations inherent in any arbitration and of the advantages that may be offered by consensual forms of ADR, such as retaining control of the dispute resolution outcome and preservation of cordial business relations with the agency.

Issue 14: What should an Arbitration Agreement include?

Response: In accordance with the Handbook, the Agreement should include the following:

1. The names of the parties.

2. The issues being submitted to binding arbitration. The parties can submit all or only certain issues in controversy to binding arbitration.

3. The maximum award (“cap”) that the arbitrator may direct. (Note: The parties must be negotiated such a maximum prior to signing the Agreement. The “cap” amount and any negotiated “low” value (should the parties adopt the aforementioned “High-Low” method) should be redacted from the document prior to presenting it to the arbitrator, if the parties wish not to disclose it.)

4. Any other conditions limiting the range of possible outcomes.

5. The scope of the arbitration. This will limit time and cost and give the arbitrator power to be a “case manager.” A sample case management provision might read:

“The Arbitrator is expected to assume control of the process and to schedule all events as expeditiously as possible, to insure that an award is issued no later than ___ days from the date of this Agreement.”

[Note: Although the Arbitrator will have ultimate authority, it is the ODRA’s intention that the parties retain some control over the arbitration schedule. Thus, whereas the ODRA procedural rules provide for completion of any ADR, including arbitration, within 20 business days for protests; and within 40 business days for contract disputes, the ODRA Director may extend such timeframes upon request of either the parties or the Arbitrator, or both.]

6. References to all provisions of the ODRA procedural rules regarding discovery and the conduct of hearings that the parties may wish to apply to the arbitration process.

7. The name of the arbitrator, the amount of compensation and how it will be paid. (Note: No Agreement shall provide for deposits in an escrow account to pay for expenses of the proceeding in advance of expenses being incurred.)

8. The date when the arbitration will commence.

9. The types of remedies available.

10. A confidentiality provision invoking the ADRA of 1996 and stating that neither the Agreement nor the arbitration award will be considered confidential.

Sample Arbitration Agreements for bid protests and contract disputes are appended hereto as Addenda 1 and 2.

Issue 15: How will the agency pay the arbitrator(s)?

Response: Generally, the parties will agree in advance to share any arbitrator fees and costs, the costs of any transcripts, etc., all of which will be paid after the award is issued. The Government may not escrow funds or pay in advance for any such costs.

Issue 16: Is the FAA willing to use “administered arbitration”?

Response: No. All ADR relating to FAA bid protests and contract disputes is to be administered by the ODRA and not by an outside ADR organization.

Issue 17: What must the arbitration award include?

Response: The arbitration award need not be in the form of formal findings of fact and conclusions of law, but must at least provide in summary form the monetary amount of the award, if any, and the factual and legal basis for the arbitrator’s decision. The award will be subject to the “cap” and any other limitations agreed upon by the parties. Arbitration awards will not be treated as confidential documents.

Issue 18: Will the agency allow arbitration on the documents only, without a hearing, or a telephonic hearing? If so, in what circumstances?

Response: In simple, low dollar amount, cases, or with respect to individual issues, the parties will be authorized to agree to have the arbitrator render an award based solely on his/her review of the documents or based on telephonic testimony. The Arbitration Agreement should specify which issues are to be handled in such manners. The Agreement should also allow the arbitrator discretion to call for live face-to-face testimony on any such issues, should he/she determine that credibility may be a factor in the ultimate decision on those issues.

Issue 19: What selection criteria will be considered in choosing or amending arbitration rules and what must those rules include?

Response: The only rules applicable to the conduct of arbitration under the auspices of the ODRA are the rules pertaining to ADR generally under the ODRA’s procedural rules in Title 14 C.F.R. Part 17. Those rules will not be amended, unless the ODRA desires to modify its overall ADR practices. There are no specific rules governing arbitration, per se. Accordingly, the conduct of any given arbitration will be left to the parties and the arbitrator and should be set forth with adequate particularity within the Arbitration Agreement. Whatever rules are set forth in the Agreement should be aimed at obtaining an expeditious and impartial resolution of the matters at issue. Simpler cases usually will require less in terms of process (i.e., more tailored discovery and more abbreviated hearings) than cases that are more complex. The ODRA Director must approve the terms of any Arbitration Agreement before arbitration can proceed. The Director’s review, among other things, will be to assure that the Agreement conforms to the provisions of the ADRA of 1996.

[1]As of September 5, 2000, the ODRA had completed 116 bid protests. Of those, 63 protests (54%) were resolved by means of ADR techniques. Of the 41contract disputes completed as of July 1, 2000, 34 (83%) were resolved by means of ADR techniques.

[2] The ODRA’s practice immediately upon receipt of a bid protest or contract dispute is for the ODRA Director to designate a DRO to assist the parties with exploring possibilities for resolution by means of ADR. This DRO – who may or may not ultimately be selected as an ADR Neutral – will present for the parties’ consideration various ADR techniques, including binding arbitration. The ODRA procedural rules require that the parties file with the ODRA written statements as to whether ADR will be employed and, if so, they further mandate the submission of a written ADR Agreement. 14 C.F.R. §§17.17, 17.27, and 17.33. If the parties elect to use binding arbitration, the Agreement will be an Arbitration Agreement. Ordinarily, the designated DRO will offer to assist the parties in drafting the ADR Agreement and frequently, to expedite the process, will provide them with a proposed Agreement based on standard forms mounted on the Internet as part of the ODRA’s Website (http://www.faa.gov/about/office_org/Headquarters_offices/agc/). These forms have been modified to conform to the guidance herein, and copies are appended hereto as Addenda 1 and 2.

[4] Under the FAA’s “Organic Statute,” 49 U.S.C. 46101, et seq., the Administrator, in conjunction with the conduct of adjudications, has the authority to subpoena witnesses and documents. This authority has been initially delegated by the Administrator to the ODRA Director by Memorandum dated July 29, 1998, which has been published and updated at the ODRA Website (http://www.faa.gov/about/office_org/Headquarters_offices/agc/pol_adjudication/agc70 under “Delegations”). Such authority is further delegable to ODRA DROs and Special Masters. For purposes of arbitration under the ODRA Dispute Resolution Process, the arbitrator will be considered a “Special Master” and , as such, will have such delegated authority.

Federal Aviation Administration
Office of Dispute Resolution for Acquisition

Washington, D.C. 20590

Protest of _______________________

Pursuant to Solicitation ______________________

ODRA Docket No. ___________________

PROTECTIVE ORDER

This protective order limits disclosure of certain material and information submitted in the above-captioned proceeding before the Federal Aviation Administration Office of Dispute Resolution for Acquisition (“ODRA”), so that no party obtaining access to protected material under this order will gain a competitive advantage as a result of the disclosure. Material to which parties gain access under this protective order is to be used only for the above referenced protest, absent express prior authorization from the ODRA. Such authorization must be in writing, with notice to all parties.

1. This protective order applies to all material that is identified by any party as protected, unless the ODRA specifically provides otherwise. This protective order applies to all written submissions associated with the instant proceeding, and to oral communications where reference to information contained within the protected material might be made.

2. Nothing in this protective order shall be construed to prohibit the disclosure by any federal agency of materials covered by the protective order to other appropriate persons within the federal government, nor shall anything in this order render inapplicable any statutory or regulatory limitations on such disclosure that may otherwise exist.

3. This protective order does not prevent a party from asserting any legally cognizable privilege to withhold any document or information.

4. Counsel must file an Application for Access To Materials Under Protective Order before the ODRA will permit him/her to view protected material. Any objection to granting an applicant access to protected material must be filed within two business days after an application for access is filed with the ODRA. Counsel is entitled to view protected material only after the ODRA issues an order granting his/her application for access.

5. The ODRA will not permit an expert or consultant appearing for a party to view protected material unless the person files an application for access to protected material. The person will not be granted access if he or she is employed by a party to the action, or is working under contract to such a party. Objections to granting an expert or consultant access to protected material must be filed within two business days after the application is filed with the ODRA. An expert or consultant is entitled to view protected material only after the ODRA issues an order granting an application for access.

6. Protected material of any kind may be provided only to the ODRA and to individuals authorized by this protective order, and must be either (a) provided in a sealed parcel containing the legend “PROTECTED MATERIAL ENCLOSED” conspicuously placed on the outside of the parcel containing the protected information, or (b) transmitted via facsimile accompanied by a header sheet containing the legend ‘PROTECTED MATERIAL ENCLOSED’ in large conspicuous type. The first page of each document containing protected material is to be clearly marked as follows:

PROTECTED MATERIAL

TO BE DISCLOSED ONLY IN ACCORDANCE WITH

OFFICE OF DISPUTE RESOLUTION FOR ACQUISTION

PROTECTIVE ORDER

The party claiming protection must clearly identify the specific portion of the material for which it is claiming protection. Whenever protection is claimed for a pleading, the party filing the pleading shall submit a proposed redacted version for public release when the protected version is filed.

7. Only individuals who are admitted under this protective order by the ODRA, and support staff (paralegal, clerical, and administrative personnel) who are employed or supervised by individuals admitted under this order, and who are not involved in competitive decisionmaking for a party to this proceeding or for any firm that might gain a competitive advantage from access to the protected material disclosed under this order, shall have access to information covered by this order. Individuals admitted under this protective order shall advise such support staff, prior to providing them access to protected material, of their obligations under this order.

8. Each party included under this protective order shall receive and maintain, at the offices of its lead counsel, no more than one copy of the protected material and shall not create additional copies except as: (a) incidental to a submission to the ODRA; (b) required for preparing redactions to protected material; or (c) otherwise agreed by the parties with the ODRA’s prior concurrence.

9. When any party sends or receives documents in connection with this protest that are not designated as protected, including proposed redacted versions of protected documents, the party shall refrain from releasing the documents to anyone not admitted under this protective order, including clients, until the end of the second day following receipt of the documents by all parties. This practice permits parties to identify documents that should have been marked protected before the documents are disclosed to individuals not admitted under this protective order.

10. Each individual covered under this protective order shall take all necessary precautions to prevent disclosure of protected material, including, but not limited to physically securing, safeguarding, and restricting access to the protected material. The confidentiality of protected material shall be maintained in perpetuity.

11. Should a party oppose any requested protection, it must submit a written challenge to the material to the ODRA, the party seeking protection, and all other parties, within two working days of receiving the material marked for protection. The party seeking the protection must submit a written response to the challenge to the ODRA and the opposing party within one working day of receipt of opposition. The ODRA will then rule on the challenge and response. Until the ODRA rules on the challenge and response, the material shall be deemed protected subject to this protective order. If the ODRA receives no opposition to material marked as protected or claimed to be protected, it will be deemed protected subject to this protective order unless otherwise ordered by the ODRA.

12. Within seven calendar days after the conclusion of this protest, all documents in a party's possession that contain protected material and all copies thereof shall be (1) returned to counsel for the party or witness who produced them, or (2) with the prior written agreement of the party which generated the protected material, destroyed and certified as destroyed to counsel for the party or witness who produced them. Transcripts of proceedings and briefs shall be destroyed in accordance with the instructions above. For purposes of this paragraph, the conclusion of the protest may be by settlement, or by a judgment that has become nonappealable.

13. Any allegations of abuse or violation of this order will be considered by the ODRA. If an allegation of abuse or violation of the protective order is found, the ODRA may refer the matter to the appropriate United States Attorney for violation of 18 U.S.C. § 1001 with respect to the terms agreed to in the Application for Access To Materials Under Protective Order, and additionally, in the case of attorneys, the ODRA may refer the matter to the appropriate bar association for disciplinary proceedings.

Effective Date of this Protective Order: ___________________

FAA Office of Dispute Resolution for Acquisition

________________________________

Anthony N. Palladino, Director

ITEM	DUE DATE
Filing of Protest Against Solicitation	Prior to bid opening/receipt of proposals
Filing of Other Protests	Within seven (7) business days of time protester knew or should have known of the grounds of protest or If a debriefing is held, within five (5) business days after the debriefing.
Filing of Request for Suspension of Award or Delay of Procurement	As part of Protest submission.
Product Team response to Request for Suspension	Within two (2) business days of filing of Request, but typically is extended until the initial status conference
Protester's reply to Product Team response to Request for Suspension	Within two (2) business days of Product Team's response
CO notification to ODRA of names, etc., of interested parties, and notification to awardee and other interested parties regarding the filing of the Protest	Immediately upon CO's receipt of a copy of the Protest
Request of awardee or other interested parties to intervene in the Protest	Within two (2) business days of their receipt of notification of the Protest
ODRA Status Conference – parties are encouraged to engage in "Informal Communications" to explore settlement and/or to agree on an ADR method to be employed.	Convened within five (5) business days of filing of Protest or as soon as practicable thereafter.
Parties notify ODRA of desire for ADR via a joint statement and an executed ADR Agreement detailing desired form of ADR and the Neutral/Compensated Neutral to be used	Within five (5) business days after ODRA Status Conference.
ADR Proceedings	To be complete within twenty (20) business days of filing of ADR Agreement.
"Default Adjudicative Process" Commences -- "Product Team Response" to be submitted to ODRA, protester and interested party intervenors.	Within ten (10) business days of ODRA Status Conference, if ADR is not to be used or in accordance with a schedule issued by the ODRA DRO or Special Master, where ADR has not been successful.
"Default Adjudicative Process" -- Comments on Product Team Response to be filed with ODRA by Protester/Interested Party Intervenor(s) with copies to other parties	Within five (5) business days of filing of Product Team Response with the ODRA or within five (5) business days of the party's receipt of the Product Team Response, whichever is longer.
"Default Adjudicative Process" -- Dispute Resolution Officer ("DRO") or Special Master is appointed by the ODRA Director to conduct "fact findings"	During or shortly after the ODRA Status Conference.
"Default Adjudicative Process" – discovery, hearings and submissions/briefs	All at the discretion of the DRO or Special Master
"Default Adjudicative Process" – Findings, Recommendations and Proposed Decision by DRO or Special Master	Within thirty (30) business days of commencement of "Default Adjudicative Process"
ODRA review of/comments on DRO/Special Master Findings, Recommendations and Proposed Decision and forwarding of same to the Administrator	Unspecified
Administrator’s Order	Unspecified
Appeal pursuant to 49 U.S.C. §46110	Within sixty calendar days of service of Administrator’s Order

ITEM	DUE DATE
Filing of Contract Dispute	Within two (2) years after dispute accrues or Before contractor’s acceptance of final contract payment, if earlier.
"Informal Communications" – parties achieve settlement, agree on an ADR method or determine to utilize the "Default Adjudicative Process"	Within the first twenty (20) business days after contract dispute is filed.
File with the ODRA either: (1) a joint statement indicating the desire to use ADR, together with an executed ADR Agreement, specifying ADR techniques and whether Neutral is to be appointed by ODRA or Compensated Neutral is to be utilized; or (2) joint or separate statement(s) explaining why ADR will not be used.	By the end of the twenty (20) business day "Informal Communications" period, or within an additional twenty (20) business days, as allowed by the ODRA, where informal resolution "appears probable."
ADR Proceedings	To be complete within forty (40) business days of filing of executed ADR Agreement.
"Default Adjudicative Process" commences and Dispute Resolution Officer ("DRO") or Special Master is appointed by the ODRA Director to conduct "fact findings".	Upon parties’ filing with the ODRA of a joint or separate statement(s) which indicate(s) either: (1) that the parties will not be using ADR Or (2) that ADR has failed to achieve a complete resolution of the dispute
ODRA Status Conference	Within ten (10) business days of commencement of "Default Adjudicative Process."
"Default Adjudicative Process" – Product Team files "Dispute File" containing relevant documents that are chronologically arranged, indexed and separately tabbed	Within twenty (20) business days of commencement of "Default Adjudicative Process."
Contractor files any "Dispute File" supplement, containing additional relevant documents that are chronologically arranged, indexed and separately tabbed	At time established by the DRO/Special Master
"Default Adjudicative Process" – discovery, hearings and submissions/briefs	All at the discretion of the DRO or Special Master
"Default Adjudicative Process" – Findings & Recommendations by DRO/ Special Master	Within thirty (30) business days after final submissions are filed with the DRO/Special Master and the ODRA.
ODRA forwards to Administrator its comments on DRO/Special Master Findings & Recommendations	Unspecified
Administrator’s Order	Unspecified
Appeal pursuant to 49 U.S.C. §46110	Within sixty days of service of Administrator’s Order