126 

14 CFR Ch. I (1–1–19 Edition) 

§ 17.33 

due within thirty (30) business days 
from the date received. 

(i) At a time or at times determined 

by the DRO or Special Master, and in 
advance of the decision of the case, the 
parties shall make individual final sub-
missions to the ODRA and to the DRO 
or Special Master, which submissions 
shall include the following: 

(1) A statement of the issues; 
(2) A proposed statement of undis-

puted facts related to each issue to-
gether with citations to the adminis-
trative record or other supporting ma-
terials; 

(3) Separate statements of disputed 

facts related to each issue, with appro-
priate citations to documents in the 
Dispute File, to pages of transcripts of 
any hearing or deposition, or to any af-
fidavit or exhibit which a party may 
wish to submit with its statement; 

(4) Separate legal analyses in support 

of the parties’ respective positions on 
disputed issues. 

(j) Each party shall serve a copy of 

its final submission on the other party 
by means reasonably calculated so that 
the other party receives such submis-
sions on the same day it is received by 
the ODRA. 

(k) The DRO or Special Master may 

decide the contract dispute on the 
basis of the administrative record and 
the submissions referenced in this sec-
tion, or may, in the DRO or Special 
Master’s discretion, direct the parties 
to make additional presentations in 
writing. The DRO or Special Master 
may conduct hearings, and may limit 
the hearings to the testimony of spe-
cific witnesses and/or presentations re-
garding specific issues. The DRO or 
Special Master shall control the nature 
and conduct of all hearings, including 
the sequence and extent of any testi-
mony. Evidentiary hearings on the 
record shall be conducted by the 
ODRA: 

(1) Where the DRO or Special Master 

determines that there are complex fac-
tual issues in dispute that cannot ade-
quately or efficiently be developed 
solely by means of written presen-
tations and/or that resolution of the 
controversy will be dependent on his/ 
her assessment of the credibility of 
statements provided by individuals 

with first-hand knowledge of the facts; 
or 

(2) Upon request of any party to the 

contract dispute, unless the DRO or 
Special Master finds specifically that a 
hearing is unnecessary and that no 
party will be prejudiced by limiting the 
record in the adjudication to the par-
ties’ written submissions. All witnesses 
at any such hearing shall be subject to 
cross-examination by the opposing 
party and to questioning by the DRO or 
Special Master. 

(l) The DRO or Special Master shall 

prepare findings and recommendations, 
which will contain findings of fact, ap-
plication of the principles of the AMS 
and other law or authority applicable 
to the findings of fact, and a rec-
ommendation for a final FAA order. 

(m) The DRO or Special Master shall 

conduct a de novo review using the pre-
ponderance of the evidence standard, 
unless a different standard is pre-
scribed for a particular issue. Notwith-
standing the above, allegations that 
government officials acted with bias or 
in bad faith must be established by 
clear and convincing evidence. 

(n) The Director of the ODRA may 

review the status of any contract dis-
pute in the Adjudicative Process with 
the DRO or Special Master. 

(o) A DRO or Special Master shall 

submit findings and recommendations 
to the Director of the ODRA or the Di-
rector’s designee. The findings and rec-
ommendations will be released to the 
parties and to the public, upon 
issuance of the final FAA order in the 
case. Should an ODRA protective order 
be issued in connection with the con-
tract dispute, or should the matter in-
volve proprietary or competition-sen-
sitive information, a redacted version 
of the findings and recommendations 
omitting any protected information, 
shall be prepared wherever possible and 
released to the public, as soon as is 
practicable, along with a copy of the 
final FAA order. Only persons admitted 
by the ODRA under the protective 
order and Government personnel shall 
be provided copies of the unredacted 
findings and recommendations. 

(p) Attorneys’ fees of a qualified pre-

vailing contractor are allowable to the 
extent permitted by the EAJA, 5 U.S.C. 
504(a)(1). 

See 

14 CFR part 14. 

VerDate Sep<11>2014 

12:50 Apr 30, 2019

Jkt 247046

PO 00000

Frm 00136

Fmt 8010

Sfmt 8010

Y:\SGML\247046.XXX

247046

spaschal on DSK3GDR082PROD with CFR