In the world of bid protests, GAO gets some of the spotlight because there are so many protests filed there. COFC seems to get plenty of attention because of the complexity and scope of its decisions. The Office of Dispute Resolution for Acquisition (ODRA)? Well, not so much. ODRA is a bit like the forgotten child of the bid protest family—rarely the first name that comes to mind, but very important when it comes to protesting a Federal Aviation Administration (FAA) acquisition. While they are fewer in number, it’s important for any contractor working with the FAA to know this protest option, either to pursue it as a protester or if its award gets protested. This blog post puts ODRA into the spotlight for a change and showcases the process for protesting an FAA acquisition.
The ODRA’s own website and guide has some good tips for ODRA bid protests. Below, we highlight some of the key items to consider.
Filing the Protest
Before you can even think about filing a protest, you need to know where to file it. Under the FAA’s Acquisition Management System (AMS), ODRA is the FAA’s one-stop shop for resolving contract disputes and bid protests, including size-related protests connected to a bid protest. 49 U.S.C. § 40110(d)(5). Interestingly, the FAA is exempt from the protest rules governing most procuring agencies, including the Small Business Act and Competition in Contracting Act. 49 U.S.C. § 40110(d)(2)(D). Rather, it is the FAA’s AMS that “establishes the policies, guiding principles, and internal procedures for the FAA’s acquisition system.” 14 C.F.R. § 17.3(c).
When a protest is filed at ODRA, procurement activities or contractor performance will generally continue during the protest “unless there is a compelling reason to suspend all or part of the procurement activities or contractor performance.” 14 C.F.R. § 17.13(g). If a protester would like to request such a suspension, the protester must set forth such compelling reason(s) in the initial protest and supply all facts and documents in support of that position. 14 C.F.R. § 17.15(d). The protester must also demonstrate that they have alleged a substantial case, that the lack of a suspension would cause irreparable injury, that the relative hardships on the parties favor a suspension, and that a suspension would be in the public interest. Id.
Whether a suspension is requested or not, there are certain elements that the protest must contain in any case. Specifically, the protest is required to be in writing and must include:
- The protester’s name, address, telephone number, and fax number and those of the protester’s counsel;
- The SIR number or, if available, the contract number and the name of the CO;
- The basis for the protester’s status as an interested party;
- The facts supporting the timeliness of the protest;
- Whether the protester requests a protective order, the material to be protected, and a redacted copy of that material
- A detailed statement of the legal and factual grounds of the protest, and a copy of each relevant documents;
- The remedy or remedies sought by the protester; and
- The signature of the legal representative, or another person duly authorized to represent the protester.
As far as timing, protests of terms are due prior to the proposal deadline: “Protests based upon alleged SIR or solicitation improprieties that are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for the receipt of initial proposals.” 14 C.F.R. § 17.15. Otherwise, protests are due “(i) [n]ot later than seven (7) business days after the date the protester knew or should have known of the grounds for the protest; or (ii) If the protester has requested a post-award debriefing from the FAA Product Team, not later than five (5) business days after the date on which the Product Team holds that debriefing.”
But what happens after the protest is actually filed?
After Filing the Protest
Within 5 days of the protest being filed, or as soon as practicable, ODRA will convene an initial status conference and will encourage the parties to use alternative dispute resolution (ADR). 14 C.F.R. § 17.17(b). Thereafter, the FAA and the protester have 5 business days to decide whether they will attempt to use ADR. If the parties decide not to move forward with ADR (or after the ADR is done), the protest will proceed under the ODRA adjudicative process. 14 C.F.R. § 17.13(d).
The ODRA judge will then typically decide the matter based on the administrative record and arguments of parties. You might be surprised at everything that goes into the adjudicative proceedings and (spoiler alert) it is certainly too much to include in just one blog. And anyways, I’m sure you are wondering what happens when the adjudicative process is all said and done.
Potential Protest Remedies
At this point, the hard part is over. You have filed the protest, and the administrative record has finally closed. What happens next? ODRA has its own broad discretion to recommend and impose remedies consistent with the AMS and other applicable law. 14 C.F.R. § 17.23(a). What might those remedies be, you ask? ODRA could recommend and impose any combination of the following:
- Amend the SIR;
- Refrain from exercising options under the contract;
- Issue a new SIR;
- Require a recompetition or reevaluation;
- Terminate an existing contract for the FAA’s convenience;
- Direct an award to the protester;
- Award bid and proposal costs; and/or
- Any other remedy consistent with the AMS that is appropriate given the circumstances.
Id. This will largely depend on the circumstances surrounding the procurement or proposed procurement. For example, ODRA might look at factors such as the nature of the deficiency, degree of prejudice to other parties, degree of prejudice to the integrity of the acquisition system, extent of performance completed, the urgency of the procurement, and the impact on the Agency’s mission. 14 C.F.R. § 17.23(b).
Takeaway
As you can see, there are unique rules and regulations that apply to ODRA protests. After all, filing a protest at ODRA can be tricky. There are short deadlines and little-known technical rules that apply and can ultimately lead to dismissal. You should strongly consider hiring an attorney to assist you in avoiding complex technical pitfalls and present a stronger case at ODRA. If you find yourself contemplating a filing or defending a protest at ODRA, please feel free to reach out to us.
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