Your company submitted a proposal to the Federal Aviation Administration ("FAA") to provide widgets and related services. The opportunity had corporate visibility and was critical to your sector's bottom line. After several agonizing months of waiting for an award decision, you learn that the FAA made an award to your competitor. You immediately accept the first debriefing date offered by the Agency. As that date approaches, you begin to strategize and weigh your options – should you file the bid protest at the Government Accountability Office ("GAO") or the Court of Federal Claims? The answer – neither. When the FAA makes an award, any protest must be filed with the Office of Dispute Resolution for Acquisition – otherwise known as ODRA. There are several similarities and differences between, on the one hand, the GAO and the Court of Federal Claims, and, on the other hand, ODRA.
First, you are entitled to an automatic stay of
performance if you timely file your protest at the GAO (unless the
stay is overridden by the Agency). To obtain a stay of
performance at the Court of Federal Claims, you will most likely
need to prevail on a motion for a temporary restraining order or a
preliminary injunction. It is very difficult, however, to
obtain a stay of performance at the ODRA. ODRA presumes that
performance will continue pending resolution of the protest, and a
protestor must separately brief the issue of whether a stay should
be granted. Unless the protester can demonstrate "a
compelling reason to suspend or delay all or part of the
procurement activities," ODRA will allow performance to
continue. 14 C.F.R. § 17.13(g); 14 C.F.R.
§ 17.15(d). A review of ODRA's suspension
decisions shows that stays of performance are rarely
granted. In other words, you should expect that ODRA will not
grant a stay of performance.
Second, FAA procurements are not governed by the
Federal Acquisition Regulation ("FAR"). Rather, the
FAA is subject to the Acquisition Management System
("AMS"), which "establishes the policies, guiding
principles, and internal procedures for the FAA's
acquisition system." 14 C.F.R.
§ 17.3(c). While the FAR and the AMS share some
overlapping concepts, there are notable differences between the
two. For example, the AMS does not recognize the FAR's
distinction between "discussions" and
"clarifications," and instead categorizes all exchanges
as "communications." Furthermore, the AMS encourages
communications with potential offerors, including one-on-one
communications, stating that they "should take place
throughout the source selection process" to "ensure that
there are mutual understandings between the FAA and the offerors
about all aspects of the procurement, including the
offerors' submittals/proposals." AMS
§ 3.2.2.3.1.2.2. ODRA has routinely denied protests where
a disappointed offeror has claimed to have been the subject of
unfair treatment when the FAA only communicated with one
offeror. See, e.g., Consolidated Protests of
Consecutive Weather, Eye Weather Windsor Enterprises, and IBEX
Group, Inc., 02-ODRA-00254.
Third, ODRA has a robust alternative dispute
resolution ("ADR") program that is central to its
resolution of bid protests. ODRA makes a variety of ADR
techniques available to the parties, including mediation, neutral
evaluation and mini-trials. 14 C.F.R.
§ 17.31(b). Additionally, ODRA's rules were
amended recently to place an even greater emphasis on ADR. The
new rule officially instructs parties to use ADR as the primary
means for settling protests and disputes, and allows parties to
file "predisputes" so that they may engage in nonbinding,
confidential discussions. 76 Fed. Reg. 55217 (Sept. 7, 2011)
(to be codified at 14 C.F.R. Part 17). Although you can
decline to participate in ODRA's ADR program, it is
well-worth your time and resources to consider pursuing this
option.
Fourth, you should be aware of the various
procedural rules at ODRA, as they differ from those of the
GAO. Most notably, ODRA spurns the GAO standard of calendar
days for business days (thereby excluding weekends and federal
holidays). In this regard, a party must file its post-award
protest within (i) 7 business days of when it knew or should have
known of the basis for its protest, or (ii) not later than 5
business days from the date of the debriefing. 14 C.F.R.
§ 17.15(a)(3). Once filed, a contractor should be
prepared to act – the FAA's response to the
protest is due 10 business days after the initial status
conference, and the contractor's comments on the
FAA's response are due five business days later. 14
C.F.R. § 17.17(e); 14 C.F.R.
§ 17.37(c). Contractors can also expect ODRA to
issue a decision relatively quickly, as the ODRA Dispute Resolution
Officer assigned to the case must issue a decision within 30
business days of the FAA's response to the protest. 14
C.F.R. § 17.37(a),(i).
In conclusion, ODRA differs markedly from the GAO and COFC as a bid
protest forum. An understanding of those differences is
critical to the preservation and pursuit of your bid protest
rights. Since ADR at ODRA has resulted in some form of agency
corrective action in roughly 40% of the cases filed at the ODRA
from 1997-2007, a failure to appreciate the differences in the
rules and the consequent forfeiture of your protest rights can be
highly prejudicial. See here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
