Section 17.19

14 CFR Ch. I (1-1-19 Edition)

spaschal on DSK3GDR082PROD with CFR

neutral to conduct the ADR proceedings (either an ODRA DRO or a
compensated neutral of their own
choosing) pursuant to Section 17.37, and shall
execute and file with the ODRA a written ADR agreement. Agreement of any
intervenor(s) to the use of ADR or the
resolution of a dispute through ADR
shall not be required.
(e) If the Product Team or protester
indicate that ADR proceedings will not
be used, or if ADR is not successful in
resolving the entire protest, the ODRA
Director upon being informed of the
situation, will schedule an adjudication
of the protest.
Section 17.19 Motions practice and dismissal
or summary decision of protests.
(a) Separate motions generally are
discouraged in ODRA bid protests.
Counsel and parties are encouraged to
incorporate any such motions in their
respective agency responses or comments. Parties and counsel are encouraged to attempt to resolve typical motions issues through the ODRA ADR
process. The ODRA may rule on any
non-dispositive motion, where appropriate and necessary, after providing
an opportunity for briefing on the motion by all affected parties. Unjustifiable, inappropriate use of motions may
result in the imposition of sanctions.
Where appropriate, a party may request by dispositive motion to the
ODRA, or the ODRA may recommend
or order, that:
(1) The protest, or any count or portion of a protest, be dismissed for lack
of jurisdiction, timeliness, or 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 there
are no material facts in dispute and a
party is entitled to summary decision
as a matter of law.
(b) In connection with consideration
of possible dismissal or summary decision, the ODRA shall consider any material facts in dispute, in a light most
favorable to the party against whom
the dismissal or summary decision

would operate and draw all factual inferences in favor of the non-moving
party.
(c) Either upon motion by a party or
on its own initiative, the ODRA 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 ODRA 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 ODRA, 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
ODRA 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.
Section 17.21 Adjudicative Process for protests.
(a) Other than for the resolution of
preliminary or dispositive matters, the
Adjudicative Process for protests will
be commenced by the ODRA Director
pursuant to Section 17.17(e).
(b) The Director of the ODRA shall
appoint a DRO or a Special Master to
conduct the adjudication proceedings,
develop the administrative record, and
prepare findings and recommendations
for review of the ODRA Director.
(c) The DRO or Special Master may
conduct such proceedings and prepare
procedural orders for the proceedings
as deemed appropriate; and may require additional submissions from the
parties.

120

VerDate Sep<11>2014

12:50 Apr 30, 2019

Jkt 247046

PO 00000

Frm 00130

Fmt 8010

Sfmt 8010

Y:\SGML\247046.XXX

247046