A recent decision from the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA) delivers significant rulings on two fronts: the unenforceability of contractual bid protest bars in FAA procurements, and the FAA’s renewed commitment to transparency in its adjudicative proceedings. Protest of Cavan Solutions, 2026 WL 1284037 (O.D.R.A. 2026), is required reading for any contractor doing business with the FAA.
Background
Cavan Solutions and Advanced Sciences & Technology, LLC (AS&T) both held IDIQ contracts under the FAA’s “Systems Engineering and Technical Innovative Solutions” (SETIS) program. After the FAA product team awarded a task order valued at approximately $23.8 million to AS&T, Cavan filed an initial and then a supplemental protest alleging organizational conflicts of interest (OCI) tied to former FAA employees who had become AS&T employees.
Following an investigation, the contracting officer concluded there was “ample evidence” of an “unmitigable, unavoidable OCI” that could not be waived. The contracting officer moved to exclude AS&T from the competition, terminate its task order, and award it instead to Cavan — essentially providing complete relief on the protest’s core claims. With the protest rendered largely moot, the ODRA turned to two unresolved issues that carry significant precedential weight.
1. Issue One: Cavan’s Request for Enhanced Remedies
Cavan urged the ODRA to go further than the product team had gone by asking the ODRA itself to reopen the OCI investigation as to a second former employee (“employee one”), assess whether AS&T’s SETIS contract should be terminated for default, evaluate AS&T’s present responsibility (i.e., eligibility for future awards), and refer the matter to the Department of Transportation inspector general for investigation of alleged false statements and potential misconduct by FAA officials.
The ODRA declined. Relying on 14 CFR § 17.23(b) and its own precedent in Protests of IBEX Weather Services, the ODRA reasoned that the product team’s conduct here was materially different from cases warranting administrator-ordered escalation. In IBEX, the product team had persisted in its arguments despite an overwhelming factual record that did not support the product team’s position, forcing the ODRA itself to find material misrepresentations in the record. Those circumstances drove the ODRA’s recommendation to begin suspension and debarment proceedings.
Here, by contrast, the ODRA noted that the product team cooperated, conducted an evidence-based investigation, and voluntarily provided complete corrective action without being compelled by a contested decision. The ODRA credited the contracting officer’s good faith, noting that he acknowledged further “contract administrative efforts” may be appropriate — a recognition of the importance of the integrity of the Acquisition Management System (AMS), the FAA’s procurement regulations. Given that the protest was moot and the product team was better positioned than the ODRA to assess what further action was warranted, the ODRA recommended denial of Cavan’s request for enhanced remedies.
Takeaway for contractors: The ODRA’s willingness to recommend escalated remedies — including IG referrals or debarment proceedings — appears to depend heavily on whether the agency acted in good faith and took meaningful corrective action. Voluntary, diligent compliance is a significant mitigating factor.
2. Issue Two: The Unenforceability of SETIS Clause G.8.3
The ODRA decision’s most consequential holding concerned its determination that a task order solicitation clause barring protests was unenforceable, and it arose from the product team’s motion to reconsider the ODRA’s earlier interlocutory ruling denying motions to dismiss the protest.
The SETIS contracts contain a clause, G.8.3, providing that the contracting officer’s task order award decision would be “final and conclusive” and non-protestable, except for protests concerning the contract’s scope, period, or ceiling — or where the task order value exceeded $25 million. The product team and AS&T had argued this clause stripped the ODRA of jurisdiction over the protest because the task order value was below the monetary threshold. The ODRA’s original ruling, reaffirmed here, found the clause unenforceable on three separate statutory grounds.
a. 49 U.S.C. § 40110(d)(4). This provision — the FAA’s organic bid protest statute — expressly mandates that bid protests shall be adjudicated by the administrator through ODRA Dispute Resolution officers or special masters, subject to judicial review under 49 U.S.C. § 46110 and the Equal Access to Justice Act. A contractual provision stripping the ODRA of jurisdiction directly contravenes this mandatory language.
b. FASA’s task order protest bar does not apply to FAA. Department of Defense and civilian agencies can restrict task order protests under 10 U.S.C. § 3406(f) and 41 U.S.C. § 4106(f), respectively — both of which were enacted as part of the Federal Acquisition Streamlining Act (FASA). But Congress expressly exempted the FAA from FASA through 49 U.S.C. § 40110(d)(2). The FAA cannot employ a statutory exception that Congress specifically declined to extend to it.
c. 5 U.S.C. § 575(a)(3). Because clauses vesting “final and conclusive” authority without judicial review function as arbitration agreements (United States v. Wunderlich, 342 U.S. 98 (1951)), clause G.8.3 also ran afoul of the federal statute prohibiting agencies from requiring consent to arbitration as a condition of entering into a contract.
The 2016 Memorandum: A Troubling Disclosure
One of the stranger aspects of the product team’s reconsideration motion was their introduction of a previously non-public 2016 memorandum, approved by then-FAA Administrator Michael Huerta, who held the position from 2013 to 2018, which the product team argued endorsed the no-protest clause. The ODRA reviewed the memorandum and was deeply critical of its contents.
The ODRA found that the 2016 memorandum had misled the administrator by (1) failing to disclose that other agencies’ protest bars rested on express statutory authority that does not apply to the FAA; (2) omitting any mention of 14 CFR §§ 17.11 and 17.45, the FAA’s own regulations that define protest exclusions and require AMS conformity; and (3) asserting without basis that the ODRA would dismiss task order protests under the no-protest clause — a statement the ODRA flatly disavowed.
Adding to the concern, the current AMS policy (Policy 3.9.3) is actually weaker than what Huerta approved. The 2016 memorandum required non-delegable approval authority from the acquisition executive, formal legal review rather than mere notice, and a 30-day administrator notification window before a no-protest clause could be inserted into a solicitation. None of those safeguards appear in the current policy.
The ODRA’s conclusion was pointed: “The Government of the United States does not work in this manner.” Unpublished memoranda providing incomplete information to an administrator cannot override public statutes and duly promulgated regulations, and certainly cannot foreclose contractors’ rights to administrative and judicial review.
Takeaway: FAA procurement policy that conflicts with 49 U.S.C. § 40110(d)(4) and the ODRA’s enabling regulations cannot be saved by internal memoranda — even those bearing an administrator’s signature — particularly when those memoranda omit critical statutory context.
Transparency and Publication
The ODRA also rejected the product team’s request to suppress the public version of the order denying motions to dismiss. Citing recent DOT guidance encouraging agencies to publish formal adjudication decisions on public legal databases, the ODRA recommended publication of all public versions of orders in the protest. The ODRA noted that the FAA’s unique insulation from Government Accountability Office bid protest review makes more transparency, not less, essential to demonstrating that the ODRA’s proceedings are free from abuse of discretion.
Conclusion
The Cavan Solutions case is significant for several reasons:
- No-protest clauses in FAA contracts are unenforceable. Contractors holding SETIS contracts — and likely other IDIQ vehicles that contain similar clauses — should understand that task order awards are protestable at the ODRA regardless of contractual language to the contrary.
- FASA’s task order protest bar has no application to FAA. The FAA cannot rely on the same task order exceptions that bind DOD and civilian agencies under FASA.
- Good-faith corrective action matters. An agency that investigates thoroughly and takes voluntary remedial action is less likely to face escalated remedies — such as inspector general referrals or suspension proceedings — than one that stonewalls or opposes a protest in the face of clear evidence.
- Transparency is the rule. The ODRA’s commitment to publishing its decisions, even over the product team’s objection, reinforces that FAA procurement adjudications are subject to public scrutiny.
For government contractors, in-house counsel, and acquisition officials alike, this decision is a reminder that statutory protest rights cannot be contracted away — and that the integrity of procurement systems depends on candid, complete, and lawful administration.
