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14 CFR Ch. I (1–1–19 Edition)

§ 17.23

questioning by the DRO or Special
Master.

(k) The Director of the ODRA may

review the status of any protest in the
Adjudicative Process with the DRO or
Special Master.

(l) After the closing of the adminis-

trative record, the DRO or Special
Master will prepare and submit find-
ings and recommendations to the
ODRA that shall contain the following:

(1) Findings of fact;
(2) Application of the principles of

the AMS, and any applicable law or au-
thority to the findings of fact;

(3) A recommendation for a final

FAA order; and

(4) If appropriate, suggestions for fu-

ture FAA action.

(m) In preparing findings and rec-

ommendations in protests, the DRO or
Special Master, using the preponder-
ance of the evidence standard, shall
consider whether the Product Team ac-
tions in question were consistent with
the requirements of the AMS, had a ra-
tional basis, and whether the Product
Team decision was arbitrary, capri-
cious or an abuse of discretion. Not-
withstanding the above, allegations
that government officials acted with
bias or in bad faith must be established
by clear and convincing evidence.

(n) The DRO or Special Master has

broad discretion to recommend a rem-
edy that is consistent with § 17.23.

(o) A DRO or Special Master shall

submit findings and recommendations
only to the Director of the ODRA or
the Director’s designee. The findings
and recommendations will be released
to the parties and to the public upon
issuance of the final FAA order in the
case. If an ODRA protective order was
issued in connection with the protest,
or if a protest involves proprietary or
competition-sensitive information, a
redacted version of the findings and
recommendations, omitting any pro-
tected 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 Govern-
ment personnel shall be provided cop-
ies of the unredacted findings and rec-
ommendations that contain propri-

etary or competition-sensitive infor-
mation.

(p) Other than communications re-

garding purely procedural matters or
ADR, there shall be no substantive

parte

communication between ODRA

personnel and any principal or rep-
resentative of a party concerning a
pending or potentially pending matter.
A potential or serving ADR neutral
may communicate on an

ex parte

basis

to establish or conduct the ADR.

§ 17.23

Protest remedies.

(a) The ODRA has broad discretion to

recommend and impose protest rem-
edies that are consistent with the AMS
and applicable law. Such remedies may
include, but are not limited to one or a
combination of, the following:

(1) Amend the SIR;
(2) Refrain from exercising options

under the contract;

(3) Issue a new SIR;
(4) Require a recompetition or reval-

uation;

(5) Terminate an existing contract

for the FAA’s convenience;

(6) Direct an award to the protester;
(7) Award bid and proposal costs; or
(8) Any other remedy consistent with

the AMS that is appropriate under the
circumstances.

(b) In determining the appropriate

recommendation, the ODRA may con-
sider the circumstances surrounding
the procurement or proposed procure-
ment including, but not limited to: the
nature of the procurement deficiency;
the degree of prejudice to other parties
or to the integrity of the acquisition
system; the good faith of the parties;
the extent of performance completed;
the feasibility of any proposed remedy;
the urgency of the procurement; the
cost and impact of the recommended
remedy; and the impact on the Agen-
cy’s mission.

protester are allowable to the extent
permitted by the Equal Access to Jus-
tice Act, 5 U.S.C. 504(a)(1) (EAJA) and
14 CFR part 14.

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