DoD to Expand Enhanced Debriefings Rights

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The Department of Defense (DoD) recently proposed to amend the Federal Acquisition Regulation Supplement (DFARS) to codify and expand on the rules set forth in DoD’s March 2018 Class Deviation on Enhanced Postaward Debriefing Rights. The proposed rule addresses separately post-award debriefing rights for contract awards and task/delivery order awards.

Contract Awards

Regarding contract awards, the key provisions of DoD’s proposed rule include:

  • Upon request from the contractor within three days of notification of the contract award, DoD will provide a written or oral post-award debriefing for contracts valued at $10 million or higher.
  • When required, the minimum post-award debriefing will include:
    • For contracts in excess of $10 million and not in excess of $100 million with a small business or “nontraditional defense contractor” to request disclosure of the agency’s written source selection document, redacted to protect the confidential and proprietary information of other offerors for the contract award.
    • For contracts in excess of $100 million, disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award.
  • If a post-award debriefing is provided:
    • The debriefed offeror may submit additional written questions related to the required and provided debriefing within two business days after receiving the debriefing, and the agency will respond in writing to timely submitted additional questions within five business days after receipt; and
    • The post-award debriefing will not be considered to be concluded until (a) after the second business day after the agency delivered the debriefing, if no additional written questions were submitted by the debriefed offeror, or (b) the agency delivers its written responses to timely submitted additional questions.
  • The government may suspend performance of or terminate the awarded contract upon notice from the Government Accountability Office (GAO) of a protest filed within the following time periods, whichever is later:
    • Within 10 days after the date of the contract award;
    • Within five days after the offered date for a debriefing to an unsuccessful offeror that is timely requested, and when requested is required, if the unsuccessful offeror submits no additional questions related to the debriefing;
    • Within five days after the offered date for a debriefing to an unsuccessful offeror that is timely requested, and when requested is required, if the debriefing date offered is not accepted; or
    • Within five days after the government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered.

Task/Delivery Order Awards

Regarding task/delivery order awards, the key provisions of DoD’s proposed rule are:

  • Upon request from the contractor within three days of notification of the order award, the government will provide a written or oral post-award debriefing for task orders or delivery orders valued at $10 million or higher to the contractor, regardless of whether the contractor’s offer for the order was successful or unsuccessful.
  • If a post-award debriefing is provided:
    • The debriefed contractor may submit additional written questions related to the required and provided debriefing within two business days after receiving the debriefing, and the agency will respond in writing to timely submitted additional questions within five business days after receipt; and
    • The post-award debriefing will not be considered to be concluded until (a) after the second business day after the agency delivered the debriefing, if no additional written questions were submitted by the debriefed contractor, or (b) the agency delivers its written responses to timely submitted additional questions.
  • The government may suspend performance of or terminate the awarded task order or delivery order, upon notice from the GAO of a protest filed within the following time periods, whichever is later:
    • Within 10 days after the date of issuance of a task order or delivery order, where the value of the order exceeds $25 million (10 U.S.C. §2304c(e));
    • Within five days after the offered date for a debriefing to an unsuccessful contractor that is timely requested, and when requested is required, if the unsuccessful contractor submits no additional questions related to the debriefing;
    • Within five days after the offered date for a debriefing to an unsuccessful contractor that is timely requested, and when requested is required, if the debriefing date offered is not accepted; or
    • Within five days after the government delivers its written response to additional questions timely submitted by the unsuccessful contractor, when a requested and required debriefing is held on the date offered (31 U.S.C. § 3553).

Conclusion

Defense contractors will be happy to see the Enhanced Debriefing Program codified after its successful initial years. The proposed rule also expands the scope of the class deviation in meaningful ways. The most notable expansion of the Enhanced Debriefing Rights is the required disclosure of a redacted source selection document for certain contracting actions. Small businesses and “nontraditional defense contractors” are entitled to a redacted source selection document for contracts in excess of $10 million, and all contractors are entitled to the same for contracts in excess of $100 million.

Also of note is the trend toward more post-award disclosure. In addition to the DoD’s codification of Enhanced Debriefing Rights, the General Services Administration (GSA) has been piloting an enhanced debriefing program since 2018 as well. With DoD and GSA leading the way, we would not be surprised if this trend continues and redefines government-wide minimum debriefing standards.

Comments on DoD’s proposed rule are due by July 19, 2021.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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