The Department of Defense (DoD) recently issued a proposed rule to implement Section 818 of the FY18 NDAA. Under Section 818, Congress required the DoD to issue new regulations in the Defense Acquisition Regulation Supplement (DFARS) on the procedures for enhanced debriefing rules within six months.
In response, on March 22, 2018, the DoD issued a Class Deviation which implemented most of the procedures for enhanced debriefing required by the FY 2018 NDAA. We previously reported on that Class Deviation, which is available here. The Class Deviation required contracting officers to provide unsuccessful offerors with an opportunity to submit additional questions within two business days after receiving a debriefing. The Class Deviation also required DoD agencies to “respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions.” Further, the Class Deviation prohibited DoD agencies from considering a post-award debriefing to be concluded until after the agency delivered “its written responses to the unsuccessful offeror” and required agencies to comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance. Accordingly, the Government Accountability Office (GAO) bid protest timeliness and Competition in Contracting Act (CICA) stay deadlines did not start until DoD agencies provided these responses. The Class Deviation did not, however, implement Section 818(a) of the FY18 NDAA, which called for the enhanced debriefing procedures to require, in certain situations, “disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award.”
On May 20, 2021, more than three years after issuing the Class Deviation and long after Congress’ six-month deadline, DoD finally published a proposed rule that implements all of the requirements of Section 818 of the FY18 NDAA. The proposed rule would amend FAR 215.506 (Postaward Debriefing to Offerors) to require a written or oral debriefing upon request for contracts valued at $10 million or more. For contract awards valued between $10 million and $100 million with a small business or “nontraditional defense contractor,” the debriefing must include an option for the applicable contractor to request disclosure of the redacted source selection decision. For contract awards in excess of $100 million, the agency is required to provide a redacted source selection decision in all requested debriefings. The proposed rule also amends DFARS 216.505 (Ordering) to require contracting officers to follow the procedures in DFARS 215.506 in all task and delivery orders valued at $10 million or more.
With respect to the opportunity to ask questions and receive an agency response, the proposed rule deviates little from the Class Deviation. While the Class Deviation allowed “unsuccessful offerors an opportunity to submit additional questions,” the proposed rule allows unsuccessful and successful offerors to submit questions. Further, unlike the Class Deviation, the proposed rule makes clear that an offeror’s questions must be timely submitted in order to trigger the requirement for the agency to respond. It is important to note that the Federal Circuit has held that where a protester in a DoD procurement fails to submit written enhanced debriefing questions, the unsuccessful offeror has only five calendar days after receiving its required debriefing to file a GAO protest to receive the CICA stay.
This proposed rule will provide offerors additional time to develop debriefing questions, to consider the important decision of whether to protest and to determine the content of any protest. It should also reduce the number of protests that are filed to ascertain the basis for the award decision, as many offerors will be able to review a redacted source selection document without needing to file a protest. Finally, by conducting more thorough debriefings, agencies may recognize and correct any evaluation errors before an offeror files a protest. Interested parties are encouraged to submit comments on the proposed rule, which are due on July 19, 2021.