How protesting a Federal Aviation Administration contract is like ham

In the late 80s, the National Pork Board adopted the slogan “The Other White Meat” ostensibly to remind Americans that there’s more to life than dry boneless skinless chicken breast.

This, of course, has always irked me. There’s nothing “other” about pork. Pork is, in fact, the vastly superior meat. Pork is bacon, sausage, barbecue, tenderloin, chops, ham. Three words: Pro. Sciut. To. Guanciale, people. Guanciale! He said, shaking his fist in the air. I could go on. (Admittedly, it gets a little weird once we get to the jarred products.)

Chicken is great. But chicken is just chicken. It has one superior form: Fried, preferably with hot sauce, served on a square of white bread.

I love fried chicken. It is my secret favorite food. Secret from literally one person, my doctor. And, frankly, she suspects. But if I was stuck on a deserted island and could have one meat, I would choose pork and it wouldn’t even be close. You’d do the same.

What does all this have to do with the Federal Aviation Administration Office of Dispute Resolution? Well, like pork in 1980s America, it’s the other administrative bid protest body.

(Took a minute, but we got there.)

When people hear “bid protest” they think GAO. But if the contract you’re protesting is an FAA contract the FAA has its own deliberative body, the ODRA. We can’t go in to all the differences between GAO and ODRA here, so let’s hit five big ones.

ODRA applies different law

Almost every federal agency uses the Federal Acquisition Regulation (“FAR”) as its acquisition principles. A protest at GAO is often going to involve GAO interpreting a FAR provision. Not an FAA protest. It is exempt from the FAR. The FAA uses its own internal procurement policy called the Acquisition Management System (“AMS”).

Thankfully, they share fundamental principles such as that all offerors must be treated fairly and equally. But there are key differences. For example, the FAR states that when an agency conducts discussions, they must be with all offerors in the competitive range. The AMS encourages communications between the agency and offerors and takes no issue with a communication with one offeror but not others. Thus, a great argument at GAO can potentially go nowhere at ODRA.

ODRA has different deadlines

Here’s something most people who know a thing or two about protests know about post-award protests: the default deadline is that they’re due 10 days after the protester knew or should have known the grounds of protest. That’s not so at ODRA.

At ODRA, a protest is due no later than seven business days after the date the protester knew or should have known the protest grounds. Is that really a big difference? Yeah, it could be. Picture this: A protester learns the grounds of protest on Friday, December 22, 2023. A GAO protest would be due on January 2 because the tenth day is the first and nothing is ever due on a weekend or national holiday. But, because of all the weekends and holidays, an ODRA protest wouldn’t be due until January 4. Any difference that changes a deadline by two days is a huge difference in my book.

Like GAO, ODRA requires protests following a debriefing to be filed five days after the debriefing, but with ODRA, again, it’s business days not calendar days, which, I might remind you, can make a big difference.

ODRA loves ADR

If you’re a veteran of the GAO bid protest process, you know that sometimes GAO will suggest the parties engage in outcome predictive alternative dispute resolution. This is essentially a conference where GAO tells the parties who is probably going to win. There are no arguments. You just find out where you stand and pick your next move. It doesn’t happen that much and when it does, it usually leads to a swift resolution because, seriously, GAO literally says who will win.

At ODRA, one of the first steps is for the parties to attend a scheduling conference where the judge will encourage the parties to participate in voluntary ADR. This is written into ODRA’s protest regulations (14 C.F.R. §§ 17.13(d), 17.35(a)). They flat out say “It is the Agency’s policy to use voluntary ADR to the maximum extent practicable.” The ADR envisioned is much more like a negotiated settlement than GAO’s outcome predictive process. ODRA will provide Dispute Resolution Officers, outside neutrals, or Special Masters for the parties to select to help with the ADR process. Only after ADR has failed (or the parties have refused to conduct ADR) will the protest proceed to the adjudicative process.

There is no automatic stay—and you probably won’t get one

At GAO, a timely protest often triggers an automatic stay of performance provided for by the Competition in Contracting Act. This is one of the tremendous benefits of a GAO bid protest. It halts the transition of work and usually results in a bridge contract to the incumbent. If it’s the incumbent protesting, that generally means it gets to keep working while the protest is decided.

At ODRA, well, it’s very different. It’s much more like a protest at the Court of Federal Claims where a party must show at the outset that it deserves a stay of performance—but perhaps even more difficult. ODRA uses a four-factor test: (1) whether the protester has alleged a substantial case; (2) whether a stay or lack of stay would likely result in irreparable injury; (3) the relative hardships on the parties; and (4) the public interest. That might not sound too difficult but because the AMS instructs that the FAA’s policy is that contract performance generally continue during protests any request for a stay is flying against a headwind. The result is that ODRA grants of a stay are few and far between.

Just the fax, ma’am

Lastly, I lied earlier. There are not five big differences. They’re four big differences and one tiny little one that amuses me. ODRA’s bid protest regulations believe it or not, require a protester to provide a name, address, telephone number, and FAX number.

That means if a protester does not have a FAX machine, technically speaking, it can’t file a protest. If you’re reading this and you don’t know what I’m talking about, a FAX machine is a dead technology that allowed transmission of documents over telephone lines. Telephones, if you didn’t know used to have wires. It was a whole thing. Am I old? I made a Dragnet joke in the subhead. I might be old.

Anyway, ODRA’s FAX number requirement probably dates to the late 80s, much like The Other White Meat.

And that, my friends, is how protesting an FAA contract is like ham.

This post was originally published on JD Supra on May 13, 2022. If you have questions about the FAA’s protest process, please contact us.