118
14 CFR Ch. I (1–1–14 Edition)
§ 17.23
(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
ex
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.
(c) Attorney’s fees of a prevailing
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.
Subpart C—Contract Disputes
§ 17.25
Dispute resolution process for
contract disputes.
(a) All contract disputes arising
under contracts subject to the AMS
shall be resolved under this subpart.
(b) Contract disputes shall be filed
with the ODRA pursuant to § 17.27.
(c) The ODRA has broad discretion to
recommend remedies for a contract
dispute that are consistent with the
AMS and applicable law, including
such equitable remedies or other rem-
edies as it deems appropriate.
§ 17.27
Filing a contract dispute.
(a) Contract disputes must be in writ-
ing and should contain:
(1) The contractor’s name, address,
telephone and Fax numbers and the
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