THE FAA Office of Dispute Resolution: Offering Assistance to the Procurement Community That Facilita

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THE FAA Office of Dispute ResolutionOffering
Assistance to the Procurement Community That
Facilitates Quicker Resolution Avoidance of
Prourement Disputes
FAA Small Business Conference

• Behn M. Kelly, Esq., Dispute Resolution Officer,
  ODRA

Behn M. Kelly, Esq. Dispute Resolution Officer
June 16, 2008
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TOPICS

• Overview of the FAAs Procurement Authority
• Bid Protests Contract Disputes at the FAA and
  The Preference For Alternative Dispute Resolution
• Types of Resolution Services Offered By the ODRA
• ADR Outcomes in Bid Protests

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The FAA Procurement System The Preference For
ADR

• 2003 Vision 100--Century of Aviation
• Reauthorization Act (Public Law 108-176),
• Congress directed the ODRA to
• use consensual ADR techniques to the
  maximum extent practicable, and to only use
  adjudication for a bid protest or contract
  dispute that is not addressed or resolved in
  ADR.

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Preference For ADR (Contd.)

• Under 49 U.S.C. 40110 (d), all bid protests and
  contract disputes that cannot be resolved through
  voluntary ADR shall be adjudicated by the
  Administrator through dispute resolution officers
  or special masters of the Federal Aviation
  Administration Office of Dispute Resolution for
  Acquisition.

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The FAA Acquisition Management System (AMS)

• Operational since 1996
• Incorporates Policy favoring ADR
• FAA Administrators Authority Delegations of
  Authority
• Creation of the ODRA

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Introduction to the ODRA

• Impartial, independent of program offices and
  their counsel
• Acts on behalf of and reports to the FAA
  Administrator
• Resolves protests and contract disputes through
  two established regulatory processes
• (1) Alternative Dispute Resolution
• (2) Adjudication

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ODRA MISSION

• To attempt to resolve all disputes in ADR by
  providing the FAA and its contractors with
  dispute resolution services that are readily
  available, as well as more timely and less
  expensive than traditional disputes processes.

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ODRA ADR Characteristics

• PRIMARY METHOD OF RESOLUTION
• HIGH RATE OF USE AND SUCCESS
• PRE-DISPUTE / DISPUTE AVOIDANCE

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ODRA ADR Characteristics (Contd.)

• ADR emphasized explored in all cases
• ODRA Initiated
• Early intervention efforts
• Parties retain choice on ADR neutral

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ADR Services Offered

• Types of ADR available at the ODRA
• Neutral evaluation
• Facilitative mediation
• Binding arbitration
• Hybrid of ADR Services

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Creative ADR Case Management

• Streamline Protest Adjudication Process
• Resolve preliminary legal issues in ADR (e.g.
  suspension requests timeliness challenges)
• Resolve housekeeping matterse.g., protective
  order concerns, request for deadline extensions
• Focus discovery resolve discovery disputes
• Parties can elect to pursue ADR concurrent with
  the bid protest adjudication

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Bid Protest Settlements In ADR

• Protest Withdrawals
• Based on enhanced debriefings and evaluations
  offered in ADR by the Agency
• 60 of Protest Settlements Withdrawals

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Bid Protest Settlements In ADR

• Agency Voluntary Corrective Action
• 40 of Protest Settlements
• Re-compete immediately or after base year or
  revise specs or permit revised offers
• Compete in lieu of sole source
• Capability demonstrations re future
  opportunities
• Payment of Bid Proposal costs

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Uses of ADRThe Pre-Dispute

• Attempt to resolve issues between the Agency and
  a Contractor before a formal bid protest develops
• Almost always successful
• Requires consent of all parties
• Parties generally receptive
• earlier resolution and dispute avoidance
• AMS requires CO to use ADR as part of contract
  management responsibilities.

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ADR Time Frames

• Comparison of the Average Durations of ADR vs.
  Adjudication
• Protests ADR 24 days
• Protests Adj 61 days
• A-76 Contests ADR 31 days
• A-76 Contests Adj 138 days

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ADR STATISTICS

• 500 Cases filed at the ODRA since 1996
• 300 Protests
• Settled in ADR 189 (65)
• 81 Pre-Disputes
• Settled in ADR 79 (97.5)
• 4 Contests
• Settled in ADR 2 (50)
• 131 Contract Disputes
• Settled in ADR 113 (91)

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Out of the Box ADR Outcomes

• Subcontracting arrangements have been negotiated
  between Protester and the Awardee based on
  perceived litigative risk
• Division of the contract (including option years)
  has been negotiated between the Protester and the
  Awardee.

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Out of the Box ADR Outcomes (3)

• Negotiation of an ADR Settlement Agreement based
  on marketing considerations.
• Mentor-Protégé arrangements.

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ODRA WEBSITEOn the FAA Homepage
athttp//www.odra.faa.gov

• Guide to ODRA ADR process
• Sample forms, orders agreements
• ADR Hyperlinks

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TIPS From the ODRA

• Get a clear understanding of the solicitation
  requirement and terms before you submit a
  proposal
• Ask for a debriefing if you dont win the
  contract award
• Whenever possible, attempt to resolve issues with
  the CO before filing at the ODRA
• Start with the ODRAs pre-dispute process if
  possible
• Know the ODRA Timeliness Rules (published on the
  website and at 14 C.F.R. Part 17)

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ODRA TIMELINESS RULES