If you bid, but lost out, on a solicitation issued by the Federal Aviation Administration (FAA), you may be thinking of filing a protest to challenge the award. However, FAA procurements are unique in the sense that protests of such procurements are not decided by either the U.S. Government Accountability Office (GAO) or the U.S. Court of Federal Claims, the two venues which decide nearly every other type of protest. The FAA is one of the few federal agencies not subject to the Federal Acquisition Regulation (FAR). While an organization within the Department of Transportation (DOT), which is subject to the FAR and the Department of Transportation Acquisition Regulation (TAR) (48 CFR 12), the FAA, at the direction of Congress, established its own rules and procedures, the Acquisition Management System (AMS) and it is the AMS that governs the FAA’s bid protest regime.
So how do protests of FAA procurements work and what do you need to know about them? Under the AMS, which grants contracting personnel greater discretion and contains fewer prescriptive rules than the FAR, procurement disputes such as bid protests, are decided by the Office of Dispute Resolution for Acquisition (ODRA) under its procedures published at 14 CFR 17. The good news is that ODRA procedures share much of the same general framework as protests before the GAO or the court. In this regard, only interested parties, such as a disappointed bidder, may file a protest, and as in other protests, filing deadlines are strictly enforced. Moreover, the bid protest process before ODRA shares much the same substance as a GAO or court protest, including, for example, similar standing requirements for the protester, the issuance of a protective order for confidential or proprietary documents, the need for a detailed statement of legal and factual grounds of the protest (including copies of any relevant documents), a description of the remedies sought, a briefing schedule, and a similar standard of review – whether the FAA’s actions were consistent with the requirements of the AMS and with a rational basis (14 C.F.R. 17.21(m)). Although attorney representation is not required, counsel is recommended as protective orders only allow counsel to view any protected materials produced during the proceedings.
While there are a number of similarities, there are several differences that a contractor should consider when filing a protest at ODRA. For example, from a housekeeping standpoint, whereas GAO generally operates on a five or ten calendar day clock, depending on whether an automatic stay of performance is sought, ODRA protests must be filed no later than seven business days after the date the protester knew or should have known of the ground for protest, or, where a post-award debriefing was provided, no later than five business days after the debriefing. Moreover, timeliness at ODRA is based on the time that the filing is received at ODRA’s offices during normal business hours (8 a.m. to 5 p.m. Eastern) either in person, by mail, or by facsimile. Initial bid protest filings may be made by email to 9-AGC-ODRA@faa.gov, however ODRA recommends filing any protests containing proprietary or confidential material be made via “traditional methods.” Subsequent filings can be made electronically through the FAA’s Knowledge System Network (KSN) with the agreement of the parties and ODRA approval.
Besides the procedural differences, the main substantive consideration in an ODRA protest will center around the perspective that contractors should have going into the proceedings themselves, because the majority of ODRA cases are resolved through alternative dispute resolution (ADR) rather than an ultimate decision on the merits. In this regard, ODRA protests are unique in that ODRA is mandated to use ADR “[t]o the maximum extent practicable.” Accordingly, from ODRA’s formation in June 1996 through 2016, 66% of all protests were settled through the ADR process. Under these circumstances, contractors contemplating an ODRA protest should formulate their strategy around identifying the best leverage points for inducing the FAA and the awardee to agree to a compromise solution such as a work share arrangement where the protester may receive a portion of the contract as a subcontractor. This goal of receiving some, if not all, of the work is an important distinction in an ODRA process that emphasizes and encourages a compromise under the existing contract structure rather than an effort to invalidate the entire award as is typically the case in a GAO or court.
Focusing on all available negotiation points at the very start of the process is thus critical to facilitating a compromise in ORDA protests, particularly because an automatic stay of performance, which is one of the traditional leverage points in protests, is not available in ODRA proceedings and any stay of performance is generally disfavored. The lack of the automatic stay, and the presumption against granting a stay, makes it important during an ODRA protest to quickly and aggressively pursue ADR at the outset of the proceedings because absent any way of preserving the status quo during the protest period, the longer the protest continues, the more difficult it will for the parties to reach a settlement through ADR which is the true measure of success in ODRA protests.