Tag: FAA

FAA Rules for Drones: The Waiting is the Hardest Part

drone operations

The May edition of “Unmanned Systems” magazine printed interviews with Earl Lawrence and Marke Gibson, two administrators at the Federal Aviation Administration who are focused on drone integration.  While the FAA currently authorizes commercial drone operations on a case-by-case basis, it is anticipated that a new rule will be finalized this year and will be comprehensive enough to fulfill the public desire for commercial drone operations.

Lawrence predicted that performance-based standards, rather than weight and speed classifications, may be used in the new rule because they provide a more effective response to safety risks posed by drones. Lawrence also believed the new drone rule will require a certification for commercial drone operators.

Gibson noted that testing has revealed drone pilots are able to see other aircraft approaching at a distance of two and one half miles in daylight hours, more than the one mile estimated for operations within visual line-of-sight.  Gibson found this, and other testing data, valuable as the FAA continues its rulemaking for drones.

At least until the new rule is passed, however, commercial operators must still follow the Section 333 exemption process.  Those that wish to operate drones for business purposes must convince the FAA to issue an exemption.  The FAA requires information like the intended use of the drone; its design and operational characteristics; and how its operation will be done safely.

Neither Lawrence nor Gibson told the magazine when the new rule would actually be rolled out by the FAA.  Last Friday at a drone seminar though, Gibson hinted that the new rule may be announced this summer.  Hopefully, the waiting, not the rule itself, is the hardest part.

ARTICLE BY Jeffrey K. Phillips
© Steptoe & Johnson PLLC. All Rights Reserved.

Night Moves: FAA Makes Front Page News With Drone Exemption

On April 18, 2016, the FAA approved, for the first time ever, nighttime operation of a small unmanned aircraft system (UAS or “drone”) when used for commercial activity.  The FAA permitted Industrial Skyworks, Inc. to use drones to inspect buildings at night.

In order to get the exemption, the FAA required the following of Industrial Skyworks:

  • The pilot in command had to possess a commercial or private pilot certification that allowed night operations;

  • The pilot needed a medical certificate per 14 C.F.R. part 67; and

  • The drone had to remain in the pilot’s and visual observer’s line of sight at all times.

Industrial Skyworks bolstered its case by taking these steps to ensure the drone’s safe operation at night.

  • It would be launched from an illuminated landing and take-off area and equipped to continually alert the pilot of its location and altitude.

  • It possessed anti-collision lights visible from 5,000 feet.

  • The site of the preprogrammed flight was limited in size, and the area was restricted to authorized personnel.

  • The pilots completed a training program that included nighttime operating skills and experience.

  • The company created a comprehensive security plan, including a provision that the pilot in command and visual observer would arrive at the work site 30 minutes prior to flight to ensure their eyes adjusted to the darkness.

Article By Jeffrey K. Phillips of Steptoe & Johnson PLLC

© Steptoe & Johnson PLLC. All Rights Reserved.

FAA and OSHA Enter into Agreement to Strengthen Enforcement of AIR21 Whistleblower Protection Law

The FAA and OSHA have entered into a Memorandum of Understanding to facilitate coordination and cooperation concerning enforcement of the AIR21 whistleblower protection law.

The DOL and FAA both play a critical role in enforcing the whistleblower protection provision of AIR21. FAA has responsibility to investigate complaints related to air carrier safety and has authority under the FAA’s statute to enforce air safety regulations and issue sanctions to airmen and air carriers for noncompliance with these regulations. FAA enforcement action may include air carrier and/or airman certificate suspension and/or revocation and/or the imposition of civil penalties. Additionally, FAA may issue civil penalties for violations of 49 U.S.C. § 42121. OSHA has the responsibility to investigate employee complaints of discrimination and may order a violator to take affirmative action to abate the violation, reinstate the complainant to his or her former position with back pay, and award compensatory damages, including attorney fees.

Under the MOU, OSHA will promptly notify FAA of any AIR21 whistleblower retaliation complaints and will provide the FAA with all investigative findings and preliminary orders, investigation reports, and orders associated with any hearing or administrative appeal related to the complaint. And when a whistleblower notifies the FAA of retaliation involving air carrier safety, the FAA will promptly provide OSHA with a copy of the complaint and will advise the whistleblower that an AIR21 complaint must be filed with OSHA within 90 days of the retaliation. And the FAA will provide OSHA with the general results of any investigation conducted, to include whether or not FAA concluded there was a violation of a federal regulation, order, or standard relating to air carrier safety.

ARTICLE BY Jason Zuckerman of Zuckerman Law

© 2015 Zuckerman Law

That Drone in Your Holiday Stocking Must Now Be Registered With FAA

Fearing for public safety over the explosion of hobby-type drones taking to the air, on December 14, 2015, the Federal Aviation Administration (FAA) issued the first rule1 of its kind directed squarely to owners and operators of hobby and recreational small unmanned aircraft systems (sUAS aka drones) that now requires their registration on the FAA’s new online drone registration portal.2 A second, more comprehensive drone rule is expected to issue in 2016 to allow the use of drones for certain commercial purposes where the risk to public safety is low.

In the meantime, the hobby drone rule, which goes into effect on December 21, 2015 ahead of the holiday rush, requires all hobby-type drones weighing between 0.55 pounds (about two sticks of butter) and 55 pounds that have flown prior to December 21, 2015 to be registered no later than February 19, 2016.3 For hobby drones in this weight class flying for the first time on or after December 21, 2015 (i.e. holiday stocking stuffers), the rule requires that the owner register the drone before the first flight.

The FAA structured the grace period to encourage registration of millions of pre-existing drones while also requiring that all new drones be registered before first flight. To further encourage registration, the $5.00 registration fee will be credited back to registrants if they register within the first 30 days. And to lessen the burden of registration, the rule provides that a single registration applies to as many drones as an owner/operator owns or operates. If these incentives are insufficient to prompt compliance, the rule provides civil penalties up to $27,500, and criminal penalties including fines up to $250,000 and/or imprisonment for up to three years.

U.S. citizens age 13 or older can register their drones at the FAA’s registration portal. The registrant will need to provide the FAA with their name, physical address, mailing address (if different) and email address. Upon completion of the registration process, the FAA will provide the registrant (or certificate holder, as the FAA calls them) with a unique registration number that must be affixed to each drone.4 In addition, each registration must be renewed every 3 years and will require an additional $5.00 renewal fee.

After the rule goes into effect on December 21, 2015, all operators of hobby drones falling within the weight limits of the rule must provide proof of registration in the form of a Certificate of Aircraft Registration, either in printed or electronic form—much the same way as an angler or a hunter currently provides proof of a state fishing license or a state hunting license to a game warden.5

A number of exceptions to the rule are worth mentioning. First, hobby drones that weigh less than 0.55 pounds (i.e. radio-controlled micro quadcopters that fit in the palm of your hand) do not require registration.6 The rule will not apply to drones flown solely indoors. The rule also does not apply to those who want to fly drones for commercial purposes (i.e. for pay and/or hire) or on behalf of a state or federal government agency (i.e. fire departments, police departments, etc.). Such operators must first obtain an exemption of the FAA’s rules applicable to, for example, passenger-carrying aircraft, that the FAA has interpreted as also being applicable to commercial operators of unmanned drones regardless of size and weight. In addition, any types of entities other than individual hobbyists—such as corporations, or anyone wanting to record a lease or security interest—cannot use the online registration portal.

The new rule is the first concrete step that the FAA has taken in response to Congress’ mandate to the FAA under Section 333 of the FAA Modernization and Reform Act of 2012 to integrate unmanned aircraft into the National Airspace System (NAS). The next big step will be the FAA’s issuance in 2016 of rules that provide a legal path for using drones for commercial purposes without having to obtain prior FAA approval. Those rules will likely have a sweeping impact on business owners of all types who want to buy and sell aerial imaging and/or aerial data transmission services, including large-scale land developers, shopping mall operators and owners of other large structures, real estate agents, wedding photographers, and live TV/radio broadcast providers, to name a few, as well as industries that support those businesses, including software and hardware component suppliers, venture capital and financing providers, accountants, and the like.

In the interim, the new rule will force a dramatic change in the way consumers think about small radio-controlled unmanned aircraft in the future—they’re not just toys anymore.

Article By Thomas E. Williams of Neal, Gerber & Eisenberg LLP
© 2015 Neal, Gerber & Eisenberg LLP.

1 See FAA Interim Final Rule (IFR) available at: https://www.faa.gov/news/updates/media/20151213_IFR.pdf
2 The FAA’s drone registration portal is available at: https://www.faa.gov/uas/registration/
3 Model radio-controlled aircraft of all types, including the type of fixed wing, radio-controlled model aircraft that have flown in parks and fields for decades, fall under the new rule.
4 The unique registration number may be affixed via permanent marker, label, engraving or other means as long as the number is readily accessible and readable upon close visual inspection.
5 Although it is unlikely that the FAA will have the manpower to enforce the new rule against hobbyists who do not register their drones, the FAA nevertheless intends to employ a strategic approach to encourage compliance ranging from outreach and education programs to administrative and/or legal action should the facts of a case so warrant.
6 According to the FAA, most toy drones costing $100 or less will likely weigh less than 0.55 pounds (250 grams).

FAA Issues New Proposed Rules for Unmanned Aerial Systems (Drones)

Greenberg Traurig Law firm

The FAA Modernization and Reform Act of 2012 addressed the integration of civil unmanned aircraft systems, also known as UAS or drones, into the national airspace system. The Act requires the Secretary of Transportation to develop, among other things, a comprehensive integration plan and rules governing the operation of small UAS. On Feb. 15, 2015, the Federal Aviation Administration (FAA) issued its proposed rules. According to the Secretary of Transportation, UAS “technology is advancing at an unprecedented pace and this milestone allows federal regulations and the use of our national airspace to evolve to safely accommodate innovation.”

The Notice of Proposed Rulemaking will be available for public comment for 60 days following its publication in the Federal Register. Interested and affected companies have the opportunity to provide comments on the FAA proposal and shape the final UAS rule.

Permitted Vehicles

The proposed rules would permit the operation of UAS weighing less than 55 pounds. The UAS would not be required to have an airworthiness certificate, such as that required for an airplane, but they would have to display aircraft markings similar to other aircraft, and operators would be required to conduct a pre-flight safety check. The FAA is also soliciting public comment on further exemptions for “micro” UAS, weighing 4.4 pounds or less. The proposed rules do not apply to model aircraft and do not apply to private, recreational use of drones.

Operational Limits

The UAS could operate at speeds up to 100 mph, and at altitudes below 500 feet above ground level. Operations would be limited to daylight hours with visibility of at least 3 miles. The UAS would have to remain within the unaided visual line-of-sight of the operator; binoculars or an onboard camera would not satisfy this requirement. Operators could also use an observer to assist in maintaining visual contact, but would have to retain the ability to see the UAS themselves.

Licensed Operators

Operators would have to be licensed by the FAA, but they would not need a pilot’s license. Under existing regulations, operators can request an exemption from FAA regulations, but such exemptions are usually conditioned on possession of a pilot’s license by the operator. Under the proposed rules, operators would have to be at least 17 years old and be vetted by the Transportation Security Administration. They would be required to pass an initial aeronautical test at an FAA test site, with an update test every 2 years. The anticipated costs for the license are small, in the range of a few hundred dollars.

Flights over People and Property

The UAS would be prohibited from operating over any persons “not directly participating in the operation” or “not located under a covered structure that can provide reasonable protection.” This is a significant limitation, which would preclude flights over most public locations such as schools, beaches and parks, and might be read to limit flights over residential areas. Given the number of drone videos already posted online, this rule is likely to be broken, which, as noted below, may result in potential liability. The limitation on overflight of other persons also highlights privacy concerns. Although not directly addressed in the proposed rules, privacy issues will continue to be a point of friction between drone operators and those potentially affected, such as drone-operating photo-journalists and their news subjects.

Delivery Systems and Remote Monitoring

The line-of-sight requirement would likely preclude the type of remotely-piloted delivery systems envisioned by certain major sales and fulfillment services. This requirement may also limit the use of the proposed rules for authorizing remote monitoring of agricultural sites, pipelines and other areas that are out of the line-of-sight of the operator. However, in these situations, the FAA grants limited exemptions to existing FAA regulations for qualified operators, and the proposed rules do not preclude further development of rules for remote operation.

Liability and Insurance

A UAS weighing 50 pounds and traveling at 100 mph could represent a significant potential danger to persons and property. The proposed rules would require a report within 10 days of any accident involving injury to persons or property. Companies operating drones are cautioned that existing liability policies may not provide coverage for drones, particularly for those that are not operated in compliance with existing FAA regulations and exemptions. Some carriers are writing coverage specific to drones, and operators, as well as the companies that hire such operators, should consult with their insurance agents prior to commencing operations.

Ongoing Legal Issues and Interim Operations

The FAA rules are proposed rules, not authorizations for immediate operations. Therefore, companies that plan to use drones before the rules are finalized are cautioned that, unless they hold an existing FAA exemption, they may risk liability for the commercial use of drones. In addition to the FAA, state and local governments are currently exploring further restrictions on drone flights, including restrictions related to privacy, which are not directly addressed in the FAA proposed rules.

In addition to regulatory limitations, drone operations can create significant risks of liability for personal injury, property damage and other claims. These legal issues are likely to present risks even for companies that do not directly operate drones, but instead contract with drone operators.

Given the rapid development in both the technology and the rules and regulations, companies that plan to operate or hire drones should consult with counsel to get an up-to-date assessment of the regulatory environment and other legal risks pertaining to their particular location.

ARTICLE BY

Alais L. M. Griffin
Jordan D. Grotzinger
Adam Siegler
OF
Greenberg Traurig, LLP

Three Things Commercial Drone Operators Need to Know Regarding the FAA’s Proposed Rules

Neal, Gerber & Eisenberg LLP

In a long anticipated move, on February 15, 2015, the Federal Aviation Administration (FAA) issued proposed rules that are intended to permit the commercial operation of small unmanned aircraft, commonly referred to as “drones.”

Safety is Key

The proposed rules attempt to balance the risk to public safety while providing a regulatory framework that is reasonably (but not overly) burdensome to the industry to avoid stifling advances in technology and economic competitiveness.  The FAA addresses safety in a number of ways, but most obviously by limiting the weight of the drone, limiting the manner of its operation, and by placing restrictions on the people flying the drone. By providing a regulatory path for at least some commercial operations, the proposed rules help those in the industry avoid uncertainty and substantial costs associated with requesting an FAA exemption or special airworthiness certificate.

Only Small Drones Would Have the Green Light 

Under the proposed rules, commercial operators of a small drone (weighing less than 55 pounds) must not fly higher than 500 feet above ground level, faster than 100 mph, over people who are not directly involved in the operation, at night, or when weather visibility is less than 3 miles.  A small drone must undergo a preflight inspection before use, though FAA airworthiness certification would not be required. With some modifications due to its size, small drones nevertheless would be subject to the same aircraft marking and registration requirements that are applicable to manned aircraft.  And although the drone must remain within the visual line-of-sight of the operator at all times, to meet the needs of commercial operators where limited risk to people or property would be incurred, this requirement may be met by also deploying a visual observer, perhaps in radio contact with the operator, to assist the operator to maintain visual contact with the small drone in place of the operator.

Operators (“Pilots”) of Drones Must Meet Minimum Requirements

To establish at least a reasonable degree of uniformity across all potential commercial uses permitted under the rules and to minimize national security risks within the borders of the U.S., commercial operators of small drones must:

Be at least 17 years old;

Pass an initial and recurrent aeronautical knowledge test at an FAA-approved knowledge test center;

Be vetted by the Transportation Security Administration (TSA);

Obtain an unmanned aircraft operator certificate with a small unmanned aircraft systems (UAS) type rating,

Make available to the FAA the small unmanned aircraft for inspection/testing; and

Report an accident within 10 days of any operation that results in injury or property damage.

To be sure, winners and losers will exist on both sides of the proposed rules.  While crop monitoring, research uses, educational/academic uses, powerline/antenna/bridge inspections, aerial photography, wildlife tracking, and rescue operations may be more easily accommodated under the proposed rules, other commercial uses will remain in the cold, such as anything requiring use of a drone heavier than 55 pounds at takeoff, flights higher than 500 feet, faster than 100 mph, or at distances or under conditions where the operator or visual observer cannot maintain visual line-of-sight with the drone.  Until the FAA obtains data sufficient to warrant expansion of these rules, those who wish to operate a drone outside the proposed rules have the option of pursuing either an FAA exemption or a special airworthiness certificate.

ARTICLE BY

Thomas E. Williams
OF
Neal, Gerber & Eisenberg LLP

July 4th Puts the Federal Aviation Administration (FAA) Drone Policy to the Test

COV_cmyk_C

Dramatic videos posted over the holiday weekend show fireworks displays that were filmed from drones.  The videos are remarkable, with the drones often flying within the sweep of the exploding shells.  Burning fireworks frequently zoom past the cameras.  We found drone fireworks videos from Decatur, Ga., Lake Martin, Ala., Oak Mountain State Park, Ala., and Nashville, Tenn.  The drone operators may have been inspired by a popular YouTube video of fireworks over West Palm Beach that attracted more than 6 million views and considerable press coverage.

We expect that the videos are also causing post-holiday headaches at the FAA.  The FAA’s reaction to these videos may prove to be an early test of its recent regulatory notice interpreting its longstanding rules on model aircraft.

As we previously reported, the FAA is playing catch up on its drone rules.  For years, the agency’s regulation of drones was limited to an advisory circular from 1981 and a policy statement from 2007, neither of which provided a comprehensive set of rules.  In March, the agency lost an enforcement action against a drone operator largely because it had never adopted specific regulations for drones.

On June 23, the FAA took a substantial step forward by issuing a notice of the agency’s interpretation of its authority to regulate drones.  The notice interprets Congress’s 2012 FAA legislation, including a provision that prohibits FAA regulation of model aircraft that are flown for “hobby or recreational” purposes and that meet certain other criteria.

In a key provision of the interpretation, the FAA stated that Congress’s prohibition on regulating model aircraft does not prohibit the agency from enforcing – against drone operators – the “general rules . . . that apply to all aircraft.”  This interpretation would permit the agency, for example, to allege that the fireworks drone operators violated regulations that prohibit careless and reckless operations that endanger life or property.

Finally, for those following the FAA’s position on commercial operation of drones, the fireworks videos may present a novel issue related to compensation.  In the June 23 interpretation, the FAA reiterated its longstanding position that commercial drone operations are generally prohibited, and the agency cited the example of “photographing [an] event and selling the photos to someone else.”

Some of the fireworks videos we reviewed were preceded by advertisements, which would appear to indicate that they are part of the YouTube Partner Program, where a portion of the advertising revenue is paid to the video creator.  The FAA has traditionally adopted a very broad view of commercial operations, and it will be interesting to see whether it considers “monetized” videos to cross the line.

We expect the FAA may have something to say about these fireworks videos.

Article By:

Brian D Smith
Of:
Covington & Burling LLP

 

The Exploding Use of Drones

COV_cmyk_C

The potential for drones, i.e., unmanned aircraft systems (“UAS”), is tremendous.  After years of being associated with military operations, the civilian UAS market is expected to dramatically expand in the United States in the next ten years.  A multitude of conceivable applications for UAS — including mapping, weather forecasting, law enforcement, news gathering, real estate, photography, agriculture, and freight transport — promises to change the way business is done across a diverse array of industries and companies.

By any measure, the UAS market is significant and growing. Optimistic analysts project that annual U.S. civilian spending on UAS will grow from $1.15 billion in 2015 to $4 billion in 2020 and $5.11 billion in 2025.   Less sanguine analysts place the annual worldwide civilian UAS market between $498 million and $1 billion  by 2020.  The FAA predicts that UAS will be the “most dynamic growth sector within aviation industry.”

However, many legal and regulatory obstacles remain before drones can be widely used in our national airspace.  Current federal law prohibits UAS in most circumstances with exceptions for test flights and government aircraft that secure special permission from the FAA.

This will change because Congress delegated to the Federal Aviation Administration (FAA) the task of integrating UAS in to the National Airspace System by September 2015.  Quite apart from the regulatory framework developed by the FAA, numerous legal issues will arise ranging from takings and property torts relating to flights over private property to privacy issues.  State tort laws will be heavily involved.

Notwithstanding these legal and regulatory challenges to widespread UAS usage, there is great momentum and potential for this new form of aviation.  Businesses should focus on how they can benefit from the use of drones.  Once they have done so, they should navigate the legal and regulatory thicket.  The rewards could be substantial.

Article By:

Jack L. Schenendorf
Of:
Covington & Burling LLP

FAA Reauthorization Bill Passes with Union Restrictions Despite Objections from Labor Groups

The National Law Review recently published an article by MapLight regarding the FAA Reauthorization Bill:

Feb. 8, 2012 – Both the U.S. House of Representatives and the Senate agreed to the conference report on a bill that provides a long-term reauthorization of the Federal Aviation Administration (HR 658). The FAA has experienced over 20 short-term reauthorizations since September 2007. A main sticking point centered on labor issues — in particular, changes to the National Mediation Board that would make it more difficult for airline and railway workers to unionize.

On Feb. 3, the House agreed to the conference report by a vote of 248-169 while the Senate agreed on Feb. 6, by a vote of 75-20. The President is expected to sign the measure.

The measure was opposed by unions such as the Communications Workers of America, the International Association of Machinists and Aerospace Workers, and the International Brotherhood of Teamsters. The measure was supported by the Aerospace Industries Association, the Air Transport Association, and the Associated General Contractors of America. Air transportation unions were split on the issue: the Association of Professional Flight Attendants opposed the measure while the Air Line Pilots Association favored the bill overall, stating that although they “would have preferred that certain provisions unrelated to aviation safety had not been included, the compromise was necessary to set the stage for the passage of this extremely important funding bill.”

U.S. Senate

  • Interest groups that oppose this bill (Building trades unions, Teachers unions, Manufacturing unions, Railroad unions, etc.) gave 2.2 times as muchon average to Senators who voted ‘NO’ ($180,640) as they gave to Senators who voted ‘YES’ ($83,649).
  • Interest groups that support this bill (Public works, industrial & commercial construction, Builders associations, Aircraft manufacturers, Travel agents, etc.) gave 1.9 times as much on average to Senators who voted ‘YES’ ($134,065) as they gave to Senators who voted ‘NO’ ($71,362). 17 of the top 20 recipients of campaign contributions connected to interest groups that support this bill voted in favor of the measure.

U.S. House of Representatives

  • Interest groups that oppose this bill (Building trades unions, Teachers unions, Manufacturing unions, Railroad unions, etc.) gave 5.9 times as muchon average to House members who voted ‘NO’ ($100,072) as they gave to House members who voted ‘YES’ ($16,915). 18 of the top 20 recipients of campaign contributions connected to interest groups that oppose this bill voted against the measure.
  • Interest groups that support this bill (Public works, industrial & commercial construction, Builders associations, Aircraft manufacturers, Travel agents, etc.) gave 1.5 times as much on average to House members who voted ‘YES’ ($33,973) as they gave to House members who voted ‘NO’ ($21,984).

METHODOLOGY: MapLight analysis of reported contributions to congressional campaigns of senators in office on day of vote, from interest groups invested in the vote according to MapLight, July 1, 2005 – June 30, 2011 and House members in office on day of vote, from interest groups invested in the vote according to MapLight, July 1, 2009 – June 30, 2011. Campaign contributions data source:OpenSecrets.org

A link to this data release can be found here.

© Copyright 2012 MapLight

Protesting at ODRA?: Learning the Lay of the Land

Recently posted in the National Law Review an article by Marko W. Kipa and Ryan E. Roberts of Sheppard Mullin Richter & Hampton LLP regarding filing with the Office of Dispute Resolution for Acquisition when the FAA makes an award.

 

Your company submitted a proposal to the Federal Aviation Administration (“FAA”) to provide widgets and related services. The opportunity had corporate visibility and was critical to your sector’s bottom line. After several agonizing months of waiting for an award decision, you learn that the FAA made an award to your competitor. You immediately accept the first debriefing date offered by the Agency. As that date approaches, you begin to strategize and weigh your options – should you file the bid protest at the Government Accountability Office (“GAO”) or the Court of Federal Claims? The answer – neither. When the FAA makes an award, any protest must be filed with the Office of Dispute Resolution for Acquisition – otherwise known as ODRA. There are several similarities and differences between, on the one hand, the GAO and the Court of Federal Claims, and, on the other hand, ODRA.

First, you are entitled to an automatic stay of performance if you timely file your protest at the GAO (unless the stay is overridden by the Agency).  To obtain a stay of performance at the Court of Federal Claims, you will most likely need to prevail on a motion for a temporary restraining order or a preliminary injunction. It is very difficult, however, to obtain a stay of performance at the ODRA. ODRA presumes that performance will continue pending resolution of the protest, and a protestor must separately brief the issue of whether a stay should be granted.  Unless the protester can demonstrate “a compelling reason to suspend or delay all or part of the procurement activities,” ODRA will allow performance to continue. 14 C.F.R. § 17.13(g); 14 C.F.R. § 17.15(d).  A review of ODRA’s suspension decisions shows that stays of performance are rarely granted. In other words, you should expect that ODRA will not grant a stay of performance.

Second, FAA procurements are not governed by the Federal Acquisition Regulation (“FAR”). Rather, the FAA is subject to the Acquisition Management System (“AMS”), which “establishes the policies, guiding principles, and internal procedures for the FAA’s acquisition system.” 14 C.F.R. § 17.3(c). While the FAR and the AMS share some overlapping concepts, there are notable differences between the two. For example, the AMS does not recognize the FAR’s distinction between “discussions” and “clarifications,” and instead categorizes all exchanges as “communications.” Furthermore, the AMS encourages communications with potential offerors, including one-on-one communications, stating that they “should take place throughout the source selection process” to “ensure that there are mutual understandings between the FAA and the offerors about all aspects of the procurement, including the offerors’ submittals/proposals.”   AMS § 3.2.2.3.1.2.2. ODRA has routinely denied protests where a disappointed offeror has claimed to have been the subject of unfair treatment when the FAA only communicated with one offeror. See, e.g., Consolidated Protests of Consecutive Weather, Eye Weather Windsor Enterprises, and IBEX Group, Inc., 02-ODRA-00254.

Third, ODRA has a robust alternative dispute resolution (“ADR”) program that is central to its resolution of bid protests. ODRA makes a variety of ADR techniques available to the parties, including mediation, neutral evaluation and mini-trials. 14 C.F.R. § 17.31(b). Additionally, ODRA’s rules were amended recently to place an even greater emphasis on ADR. The new rule officially instructs parties to use ADR as the primary means for settling protests and disputes, and allows parties to file “predisputes” so that they may engage in nonbinding, confidential discussions. 76 Fed. Reg. 55217 (Sept. 7, 2011) (to be codified at 14 C.F.R. Part 17). Although you can decline to participate in ODRA’s ADR program, it is well-worth your time and resources to consider pursuing this option.

Fourth, you should be aware of the various procedural rules at ODRA, as they differ from those of the GAO. Most notably, ODRA spurns the GAO standard of calendar days for business days (thereby excluding weekends and federal holidays). In this regard, a party must file its post-award protest within (i) 7 business days of when it knew or should have known of the basis for its protest, or (ii) not later than 5 business days from the date of the debriefing. 14 C.F.R. § 17.15(a)(3). Once filed, a contractor should be prepared to act – the FAA’s response to the protest is due 10 business days after the initial status conference, and the contractor’s comments on the FAA’s response are due five business days later. 14 C.F.R. § 17.17(e); 14 C.F.R. § 17.37(c). Contractors can also expect ODRA to issue a decision relatively quickly, as the ODRA Dispute Resolution Officer assigned to the case must issue a decision within 30 business days of the FAA’s response to the protest. 14 C.F.R. § 17.37(a),(i).

In conclusion, ODRA differs markedly from the GAO and COFC as a bid protest forum. An understanding of those differences is critical to the preservation and pursuit of your bid protest rights. Since ADR at ODRA has resulted in some form of agency corrective action in roughly 40% of the cases filed at the ODRA from 1997-2007, a failure to appreciate the differences in the rules and the consequent forfeiture of your protest rights can be highly prejudicial. See here.

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.