McCarter & English Blog: Government Contracts & Export Controls

As you may recall, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA required the US Department of Defense (DoD) to draft regulations to establish comprehensive post-award debriefing rights for disappointed offerors involved in applicable DoD procurements. On March 22, 2018, the DoD responded by issuing a Class Deviation that implemented certain FY 2018 NDAA requirements—i.e., those requirements affording disappointed offerors the opportunity to submit additional written questions to the cognizant DoD agency within two business days of its agency debriefing conducted in accordance with FAR 15.506(d). In such circumstances, the cognizant DoD agency must provide written responses to the questions within five business days after receipt of the questions. Moreover, if a disappointed offeror chooses to submit timely post-debriefing questions, the debriefing does not conclude—and thus the disappointed offeror’s GAO protest “clock” does not begin to run—until the agency provides its written response. On May 20, 2021, the DoD published a Proposed Rule to amend the Defense Federal Acquisition Regulation Supplement to (1) codify the March 2018 Class Deviation and (2) implement the additional post-award debriefing requirements from the FY 2018 NDAA.

Highlights of the Proposed Rule are discussed below:

  • Confirming March 2018 Class Deviation Requirements. As noted previously, the Proposed Rule codifies the enhanced debriefing process, due dates, and subsequent GAO protest timelines from the DoD’s March 2018 Class Deviation.
  • Establishing Debriefing Right for DoD Contract Awards in Excess of $10 Million. The Proposed Rule clarifies that, when timely requested, a written or oral debriefing is required for all DoD contract awards valued in excess of $10 million, including task orders, delivery orders, and contracts for the acquisition of commercial items (including commercial-off-the-shelf items).
  • Disclosing of Redacted Agency Source Selection Decisions. For contract awards between $10 million and $100 million, small businesses and nontraditional defense contractors must have the option to request a redacted agency source selection document. For contract awards in excess of $100 million, the debriefing must now include the disclosure of a redacted agency source selection decision document.
  • Establishing Timeframes for Suspension or Termination of Contract Performance. The Proposed Rule also codifies new timeframes within which the agency may suspend or terminate contract performance following the filing of a GAO protest. In particular, the later of the following dates is used:
    • Within ten days after award of a contract or issuance of a task or delivery order in excess of $25 million;
    • Within five days after a requested and required debriefing was given and no additional written questions were submitted by the protester;
    • Within five days after the date offered by the agency for a requested and required debriefing where the debriefing date offered is not accepted by the contractor; or
    • Within five days of the agency’s written response to additional written questions timely submitted by the protester.

Contractors should keep in mind that, for the time being, these regulations will apply only to DoD agencies. Although civilian agencies are free to adopt these regulations, the U.S. General Services Administration is the only agency that has enacted a pilot Enhanced Debriefing Program.

At bottom, increasing procurement transparency through enhanced post-award debriefing should inure to the benefit of DoD contractors. An enhanced debriefing provides better insight into the agency’s evaluation of a contractor’s proposal and, in turn, should allow a more informed decision as to whether the contractor has a cognizable basis for lodging a bid protest.

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