FAA 14 CFR PART 17-2011 Procedures for protests and contracts disputes《抗议和合同纠纷的解决规程》.pdf

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1、105 Federal Aviation Administration, DOT Pt. 17 (1) An FAA decision to dismiss a complaint without prejudice, as set forth in 16.27; (2) A Directors determination; (3) An initial decision issued by a hearing officer at the conclusion of a hearing; (4) A Directors determination or an initial decision

2、 of a hearing officer that becomes the final decision of the Associate Administrator because it was not appealed within the applicable time periods provided under 16.33(b) and 16.241(b). Subpart IEx Parte Communications 16.301 Definitions. As used in this subpart: Decisional employee means the Admin

3、-istrator, Deputy Administrator, Asso-ciate Administrator, Director, hearing officer, or other FAA employee who is or who may reasonably be expected to be involved in the decisional process of the proceeding. Ex parte communication means an oral or written communication not on the public record with

4、 respect to which reasonable prior notice to all parties is not given, but it shall not include re-quests for status reports on any matter or proceeding covered by this part, or communications between FAA employ-ees who participate as parties to a hearing pursuant to 16.203(b) of this part and other

5、 parties to a hearing. 16.303 Prohibited ex parte commu-nications. (a) The prohibitions of this section shall apply from the time a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply

6、at the time of the acquisition of such knowledge. (b) Except to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the FAA and no FAA employee partici-pating as a party shall make or know-ingly cause to be made to any decisional employe

7、e an ex parte com-munication relevant to the merits of the proceeding; (2) No FAA employee shall make or knowingly cause to be made to any in-terested person outside the FAA an ex parte communication relevant to the merits of the proceeding; or (3) Ex parte communications regard-ing solely matters o

8、f agency procedure or practice are not prohibited by this section. 16.305 Procedures for handling ex parte communications. A decisional employee who receives or who makes or knowingly causes to be made a communication prohibited by 16.303 shall place in the public record of the proceeding: (a) All s

9、uch written communications; (b) Memoranda stating the substance of all such oral communications; and (c) All written responses, and memo-randa stating the substance of all oral responses, to the materials described in paragraphs (a) and (b) of this section. 16.307 Requirement to show cause and impos

10、ition of sanction. (a) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of 16.303, the Associate Administrator or his designee or the hearing officer may, to the extent consistent with the inter-ests of justice and the policy of the un-derlying st

11、atutes, require the party to show cause why his or her claim or in-terest in the proceeding should not be dismissed, denied, disregarded, or oth-erwise adversely affected on account of such violation. (b) The Associate Administrator may, to the extent consistent with the interests of justice and the

12、 policy of the underlying statutes administered by the FAA, consider a violation of this subpart sufficient grounds for a de-cision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. PART 17PROCEDURES FOR PRO-TESTS AND CONTRACTS DIS-PUTES Subpa

13、rt AGeneral Sec. 17.1 Applicability. VerDate Mar2010 14:10 Mar 01, 2011 Jkt 223043 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-106 14 CFR Ch. I (1111 E

14、dition) 17.1 17.3 Definitions. 17.5 Delegation of authority. 17.7 Filing and computation of time. 17.9 Protective orders. Subpart BProtests 17.11 Matters not subject to protest. 17.13 Dispute resolution process for pro-tests. 17.15 Filing a protest. 17.17 Initial protest procedures. 17.19 Dismissal

15、or summary decision of pro-test. 17.21 Protest remedies. Subpart CContract Disputes 17.23 Dispute resolution process for con-tract disputes. 17.25 Filing a contract dispute. 17.27 Submission of joint or separate state-ments. 17.29 Dismissal or summary decision of con-tract disputes. Subpart DAlterna

16、tive Dispute Resolution 17.31 Use of alternative dispute resolution. 17.33 Election of alternative dispute resolu-tion process. 17.35 Selection of neutrals for the alter-native dispute resolution process. Subpart EDefault Adjudicative Process 17.37 Default adjudicative process for pro-tests. 17.39 D

17、efault adjudicative process for con-tract disputes. Subpart FFinality and Review 17.41 Final orders. 17.43 Judicial review. 17.45 Conforming amendments. APPENDIX A TO PART 17ALTERNATIVE DIS-PUTE RESOLUTION (ADR) AUTHORITY: 5 U.S.C. 570581, 49 U.S.C. 106(f)(2), 40110, 40111, 40112, 46102, 46014, 4610

18、5, 46109, and 46110. SOURCE: Docket No. FAA19984379, 64 FR 32936, June 18, 1999, unless otherwise noted. Subpart AGeneral 17.1 Applicability. This part applies to all protests or contract disputes against the FAA that are brought on or after June 28, 1999, with the exception of those contract disput

19、es arising under or related to FAA contracts entered into prior to April 1, 1996. 17.3 Definitions. (a) Accrual mean to come into exist-ence as a legally enforceable claim. (b) Accrual of a contract claim means that all events relating to a claim have occurred which fix liability of either the gover

20、nment or the contractor and permit assertion of the claim, regard-less of when the claimant actually dis-covered those events. For liability to be fixed, some injury must have oc-curred. Monetary damages need not have been incurred, but if the claim is for money, such damages must be capa-ble of rea

21、sonable estimation. The ac-crual of a claim or the running of the limitations period may be tolled on such equitable grounds as where the of-fice of Dispute Resolution for Acquisi-tion determines that there has been ac-tive concealment or fraud or where it finds that the facts were inherently un-kno

22、wable. (c) Acquisition Management System (AMS) establishes the policies, guiding principles, and internal procedures for the FAAs acquisition system. (d) Administrator means the Adminis-trator of the Federal Aviation Admin-istration. (e) Alternative Dispute Resolution (ADR) is the primary means of d

23、ispute resolution that would be employed by the FAAs Office of Dispute Resolution for Acquisition. See Appendix A of this part. (f) Compensated Neutral refers to an impartial third party chosen by the parties to act as a facilitator, medi-ator, or arbitrator functioning to re-solve the protest or co

24、ntract dispute under the auspices of the Office of Dis-pute Resolution for Acquisition. The parties pay equally for the services of a Compensated Neutral, unless otherwise agreed to by the parties. A Dispute Resolution Officer (DRO) or Neutral cannot be a Compensated Neutral. (g) Contract dispute, a

25、s used in this part, means a written request to the Office of Dispute Resolution for Acqui-sition seeking resolution, under an ex-isting FAA contract subject to the AMS, of a claim for the payment of money in a sum certain, the adjust-ment or interpretation of contract terms, or for other relief ari

26、sing under, relating to or involving an alleged VerDate Mar2010 14:10 Mar 01, 2011 Jkt 223043 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-107 Federal A

27、viation Administration, DOT 17.5 breach of that contract. A contract dis-pute does not require, as a prerequisite, the issuance of a Contracting Officer final decision. Contract disputes for purposes of ADR only may also involve contracts not subject to the AMS. (h) Default Adjudicative Process is a

28、n adjudicative process used to resolve protests or contract disputes where the parties cannot achieve resolution through informal communication or the use of ADR. The Default Adjudica-tive Process is conducted by a DRO or Special Master selected by the Office of Dispute Resolution for Acquisition to

29、 serve as adjudicative officers, as that term is used in part 14 of this chapter. (i) Discovery is the procedure where opposing parties in a protest or con-tract dispute may, either voluntarily or to the extent directed by the Office of Dispute Resolution for Acquisition, obtain testimony from, or d

30、ocuments and information held by, other parties or non-parties. (j) Dispute Resolution Officer (DRO) is a licensed attorney reporting to the Of-fice of Dispute Resolution for Acquisi-tion. The term DRO can include the Di-rector of the Office of Dispute Resolu-tion for Acquisition, Office of Dispute

31、Resolution for Acquisition staff attor-neys or other FAA attorneys assigned to the Office of Dispute Resolution for Acquisition. (k) An interested party, in the context of a bid protest, is one whose direct economic interest has been or would be affected by the award or failure to award an FAA contr

32、act. Proposed sub-contractors are not interested parties within this definition and are not eligi-ble to submit protests to the Office of Dispute Resolution for Acquisition. (l) An intervenor is an interested party other than the protester whose participation in a protest is allowed by the Office of

33、 Dispute Resolution for Ac-quisition. For a post-award protest, the awardee of the contract that is the sub-ject of the protest shall be allowed, upon request, to participate as an in-tervenor in the protest. In such a pro-test, no other interested parties shall be allowed to participate as interve-

34、nors. (m) Neutral refers to an impartial third party in the ADR process chosen by the Office of Dispute Resolution for Acquisition to act as a facilitator, me-diator, arbitrator, or otherwise to re-solve a protest or contract dispute. A Neutral can be a DRO or a person not an employee of the FAA who

35、 serves on behalf of the Office of Dispute Resolu-tion for Acquisition. (n) The Office of Dispute Resolution for Acquisition (ODRA), under the direction of the Director, acts on behalf of the Administrator to manage the FAA Dis-pute Resolution Process, and to rec-ommend action to be the Adminis-trat

36、or on matters concerning protests or contract disputes. (o) Parties include the protester(s) or (in the case of a contract dispute) the contractor, the FAA, and any inter-venor(s). (p) Product Team, as used in these rules, refers to the FAA organization(s) responsible for the procurement activ-ity,

37、without regard to funding source, and includes the Contracting Officer (CO) and assigned FAA legal counsel, when the FAA organization(s) rep-resent(s) the FAA as a party to a pro-test or contract dispute before the Of-fice of Dispute Resolution for Acquisi-tion. The CO is responsible for all Prod-uc

38、t Team communications with and submissions to the Office of Dispute Resolution for Acquisition through as-signed FAA counsel. (q) Screening Information Request (SIR) means a request by the FAA for documentation, information, presen-tations, proposals, or binding offers concerning an approach to meet

39、ing po-tential acquisition requirements estab-lished by the FAA. The purpose of a SIR is for the FAA to obtain informa-tion needed for it to proceed with a source selection decision and contract award. (r) A Special Master is an attorney, usually with extensive adjudicative ex-perience, who has been

40、 assigned by the Office of Dispute Resolution for Acqui-sition to act as its finder of fact, and to make findings and recommendations based upon AMS policy and applicable law and authorities in the Default Ad-judicative Process. 17.5 Delegation of authority. (a) The authority of the Adminis-trator t

41、o conduct dispute resolution proceedings concerning acquisition VerDate Mar2010 14:10 Mar 01, 2011 Jkt 223043 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,

42、-,-108 14 CFR Ch. I (1111 Edition) 17.7 matters, is delegated to the Director of the Office of Dispute Resolution for Ac-quisition. (b) The Director of the Office of Dis-pute Resolution for Acquisition may redelegate to Special Masters and DROs such delegated authority in para-graph (a) of this sect

43、ion as is deemed necessary by the Director for efficient resolution of an assigned protest or contract dispute, including the imposi-tion of sanctions or other disciplinary actions. 17.7 Filing and computation of time. (a) Filing of a protest or contract dis-pute may be accomplished by mail, overnig

44、ht delivery, hand delivery, or by facsimile. A protest or contract dis-pute is considered to be filed on the date it is received by the Office of Dis-pute Resolution for Acquisition during normal business hours. The Office of Dispute Resolution for Acquisitions normal business hours are from 8:30 a.

45、m. to 5 p.m. est or edt, whichever is in use. A protest or contract dispute received via mail, after the time period prescribed for filing, shall not be con-sidered timely filed even though it may be postmarked within the time period prescribed for filing. (b) Submissions to the Office of Dis-pute R

46、esolution for Acquisition after the initial filing of a contract dispute may be accomplished by any means available in paragraph (a) of this sec-tion. Submissions to the Office of Dis-pute Resolution for Acquisition after the initial filing of a protest may only be accomplished by overnight delivery

47、, hand delivery or facsimile. (c) The time limits stated in this part are calculated in business days, which exclude weekends and Federal holi-days. In computing time, the day of the event beginning a period of time shall not be included. If the last day of a pe-riod falls on a weekend or a Federal

48、holiday, the first business day fol-lowing the weekend or holiday shall be considered the last day of the period. 17.9 Protective orders. (a) The Office of Dispute Resolution for Acquisition may issue protective orders addressing the treatment of pro-tected information, either at the re-quest of a p

49、arty or upon its own initia-tive. Such information may include proprietary, confidential, or source-se-lection-sensitive material, or other in-formation the release of which could result in a competitive advantage to one or more firms. (b) The terms of the Office of Dispute Resolution for Acquisitions standard protective order may be altered to suit particular circumstances, by negotia-tion of the parties, subject to the ap-proval of the Offi