spaschal on DSK3GDR082PROD with CFR

Section 17.23

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

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 administrative record, the DRO or Special
Master will prepare and submit findings 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 authority to the findings of fact;
(3) A recommendation for a final
FAA order; and
(4) If appropriate, suggestions for future FAA action.
(m) In preparing findings and recommendations in protests, the DRO or
Special Master, using the preponderance of the evidence standard, shall
consider whether the Product Team actions in question were consistent with
the requirements of the AMS, had a rational basis, and whether the Product
Team decision was arbitrary, capricious or an abuse of discretion. Notwithstanding 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 remedy that is consistent with Section 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 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 that contain propri-

etary or competition-sensitive information.
(p) Other than communications regarding purely procedural matters or
ADR, there shall be no substantive ex
parte communication between ODRA
personnel and any principal or representative 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.
Section 17.23

Protest remedies.

(a) The ODRA has broad discretion to
recommend and impose protest remedies 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 revaluation;
(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 consider the circumstances surrounding
the procurement or proposed procurement 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 Agency-s mission.
(c) Attorney-s fees of a prevailing
protester are allowable to the extent
permitted by the Equal Access to Justice Act, 5 U.S.C. 504(a)(1) (EAJA) and
14 CFR part 14.

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