Flying in Friendly Skies: The Federal Aviation Administration’s Unique Bid Protest Forum

By Jay Carey & Kayleigh Scalzo on May 15, 2019

Federal contractors usually think of two bid protest forums: the Government Accountability Office and the Court of Federal Claims. But there is another protest forum that often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA.

The ODRA has exclusive jurisdiction over bid protests of FAA procurements. ODRA protests are reviewed under the Administrative Procedure Act, adjudicated by one of the ODRA’s Administrative Judges, and subject to direct appeal to a federal circuit court. While many of the fundamental principles of bid protest practice at GAO and the Court of Federal Claims apply equally at the ODRA, there are several unique features.

First, the ODRA strongly encourages parties to pursue alternative dispute resolution — and ADR can take a very different form than what parties may expect in other protest forums. For instance, when GAO engages in ADR, it is usually in the form of outcome prediction: After the case is fully briefed, GAO convenes a teleconference and informs the parties how it plans to resolve the case. At the ODRA, however, ADR may mean a multi-day mediation, facilitated by one of the ODRA’s Administrative Judges. That type of extended, in-person negotiation is rare in bid protests outside of the ODRA.

Second, the ODRA has a relatively small universe of protest decisions, meaning that litigants may need to draw on Court of Federal Claims and GAO case law in pursuing their claims and defenses. That small universe of decisions is attributable to a few factors:

The ODRA is relatively young — it was formed in 1996 — and thus does not have precedent going back decades and decades.
It hears protests only from a single agency — the FAA — which means that there are fewer procurements and thus fewer protests each year. For example, in the first ten years of the ODRA’s existence (1996-2016), 584 protests were filed there. By contrast, 2,789 protests were filed at GAO in fiscal year 2016 alone.
Many protests filed at the ODRA are resolved through ADR, meaning that they do not result in a published decision. For example, of the 577 protests that were “completed” between 1996 and 2016, 66 percent were “completely resolved” through ADR.

Third, the ODRA has a pretty high sustain rate — and sustains on issues that are often difficult to win at GAO or the Court of Federal Claims. Of the 196 protests that were “adjudicated to final agency decision” between 1996 and 2016, 27 percent were sustained. By contrast, GAO’s sustain rate typically hovers around 15 percent (although GAO’s effectiveness rate, which factors in voluntary corrective action, is usually around 45 percent).

In fact, the ODRA released a string of protest sustains in February 2019 — two of them sustaining challenges to issues implicating agency discretion and judgment:

In Protest of Aquila Fitness Consulting Systems, Ltd., 18 ODRA-00844, the ODRA sustained a protest challenging two weaknesses assigned to the protester under one of the technical factors, noting along the way that it generally gives little weight to the agency’s newly-formed post hoc justifications for the evaluation.
In Protest of Spatial Front, Inc., 18-ODRA-00841, the ODRA sustained a protest for the second time, after finding that the agency essentially repeated its earlier error: Even though the protester’s and awardee’s proposals took very similar approaches to assigning technical work under task orders, the agency treated the offerors unequally by assessing a risk to the protester but not the awardee.
In Protest of MOSA Technology Solutions, Inc., 18-ODRA-00850, the ODRA sustained a protest that the agency deviated from the solicitation terms by failing to include each of four optional subCLINs in the total evaluated price — which would have made the protester the lowest-price, technically-acceptable offeror. The ODRA recommended that the awardee’s contract be terminated for convenience and that the protester be awarded the contract for the remaining requirements.

In short, for contractors doing business with the FAA — or considering doing business with the FAA — it is worth getting to know this unique bid protest forum.