When it comes to federal procurements, the Federal Aviation Administration (FAA) operates a little differently than most other agencies. Unlike other federal agencies that follow the Federal Acquisition Regulation (FAR), the FAA is governed by its own Acquisition Management System (AMS), which includes unique procedures for handling bid protests. At the heart of this process is the FAA’s Office of Dispute Resolution for Acquisition (ODRA).
Whether you’re a contractor pursuing opportunities with the FAA or counsel advising one, understanding the ODRA bid protest process is essential.
What Is the FAA’s ODRA?
Established under the FAA’s Acquisition Management System, ODRA serves as the forum for resolving procurement disputes, including bid protests and contract disputes. ODRA is an independent tribunal within the FAA designed to provide a fair, transparent, and efficient dispute resolution process.
Jurisdiction and Scope
ODRA generally has exclusive jurisdiction over:
- Pre-award protests challenging the terms of a solicitation;
- Post-award protests involving contract awards; and
- Disputes involving alleged violations of the AMS.
Importantly, ODRA generally does not follow the FAR.
Filing a Protest with ODRA
Who Can File
Any “interested party” — typically an actual or prospective bidder whose direct economic interest would be affected — may file a protest.
Time Limits
- Solicitation protests must be filed before the closing date for receipt of proposals.
- Award protests generally must be filed no later than seven business days after the date the protester knew or should have known of the grounds for protest — or, if the protester has requested a post-award debriefing, not later than five business days after the date on which the debriefing is held.
ODRA strictly enforces these deadlines, and late filings are typically dismissed.
The ODRA Protest Process: Key Steps
1. Filing the Protest
A protest is initiated by submitting a written complaint to ODRA and serving it on the FAA’s Office of the Chief Counsel and the contracting officer. The complaint should include:
- A detailed statement of facts;
- Legal grounds for the protest;
- Copies of relevant documents; and
- The relief sought.
2. Automatic Stay of Award or Performance
If a protest is timely filed, ODRA may impose a stay of contract award or performance, similar to the automatic stay under the Competition in Contracting Act (CICA), though it is discretionary under AMS.
3. Initial Status Conference
ODRA should quickly convene a status conference to establish a schedule, encourage alternative dispute resolution (ADR), and clarify procedural matters.
4. Alternative Dispute Resolution (ADR)
ADR is a hallmark of the ODRA process. ODRA typically encourages mediation, facilitated negotiations, or other ADR techniques. Many protests are resolved through ADR before reaching a formal adjudication.
5. Adjudicative Process
If ADR fails, ODRA generally proceeds to a formal adjudication, which may include:
- Exchange of pleadings;
- Discovery (limited and controlled);
- Motion practice; and/or
- Hearings (rare, but possible).
The process is more streamlined and less formal than litigation or GAO protest proceedings.
6. Decision
ODRA issues a written decision, typically within 65 business days of the protest filing (unless extended). The decision is final and binding within the FAA, but it may be “appealed” to the U.S. Court of Federal Claims in certain circumstances.
Strategic Considerations
- Familiarity with AMS is key – Legal arguments generally should be tailored to the AMS.
- Timeliness is critical – ODRA’s deadlines are short and strictly enforced.
- Consider ADR early – ODRA favors collaborative resolution and provides resources to support it.
- Limited discovery and briefing – Be prepared for a focused, document-driven process.
Conclusion
The FAA’s ODRA offers a unique, efficient, and contractor-accessible forum for resolving bid protests. While it diverges from traditional protest venues like GAO or the Court of Federal Claims, it can provide meaningful relief for aggrieved offerors — provided they understand and follow its rules. Contractors pursuing FAA opportunities should familiarize themselves with the ODRA process or consult counsel experienced in this specialized forum.
