Proposed DOD Rule Would Enhance Post-Award Debriefing Rights
Department of Defense contractors may soon enjoy expanded debriefing rights, greater transparency over award decisions, and much needed clarity over the timeframes for obtaining a stay of contract performance thanks to newly proposed Department of Defense rules regarding post-award debriefings. Per Section 818 of the National Defense Authorization Act for Fiscal Year 2018, the Department of Defense (“DOD”) was required to draft regulations to establish comprehensive post-award debriefing rights for bidders in DOD procurements. On March 22, 2018, the DOD issued a Class Deviation that implemented portions of the FY 2018 requirements. Finally, on May 20, 2021, the DOD published a proposed rule—the Defense Federal Acquisition Regulation Supplement: Postaward Debriefing. The proposed rule will formally amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to codify the March 2018 Class Deviation and implement additional post-award debriefing rights.
The post-award debriefing process is designed to assist government contractors in gaining insight into an agency’s reasons for awarding procurement decisions. The existing post-award debriefing process provides limited information to unsuccessful bidders, leaving them questioning their proposals and often resulting in unnecessary or unwarranted bid protests. The DOD’s proposed rule increases the transparency of the post-award debriefing process.
A more transparent debrief should provide government contractors greater insight on their proposal’s strengths and weaknesses, boost their confidence in procurement decisions, and provide additional time to decide whether to file a bid protest. In addition, because bidders can ascertain the basis for award decisions by reviewing a redacted source selection document under the proposed rule, the proposed rule is intended to reduce the number of protests filed. At the same time, by conducting more thorough debriefings, agencies can correct procurement errors before protests are filed.
It will be imperative for DOD contractors to utilize these enhanced procedures to maximize the benefit from post-award debriefings. Here are the four key takeaways that contractors need to know about the proposed rule:
- Right to a debriefing for all awards over $10 million:
For all contracts valued at $10 million or higher, including task orders, delivery orders, and contracts for the acquisition of commercial items, the DOD agency would be required to provide a post-award debriefing if the contracting officer requests one within three days of notification of the contract award. It is unclear if this is three business days or calendar days, as the proposed rule uses business days in all other instances. To be safe, a contractor should request a post-award debriefing within three calendar days of notification of the contract award.
- Right to receive a redacted award decision:
For awards over $100 million, the debriefing must disclose a redacted version of the source selection decision document (“SSDD”). For contract awards with a small business or nontraditional defense contractor between $10 and $100 million, the contractors may request a redacted SSDD. This significant change in debriefing procedures allows greater insight for contractors as to how their proposals compared to that of the awardee.
- Right to ask follow-up questions after a debriefing:
The proposed rule would allow offerors—both successful and unsuccessful—to submit written follow-up questions within two business days after receiving a debriefing. The DOD agency must respond to follow-up questions within five business days. The post-award debriefing is concluded upon delivery of the agency’s written response to the offeror. Notably, a contractor must submit their follow-up questions to toll the protest clock; otherwise, the time to file a protest commences the day that the contractor received the debriefing.
- New timeframes for performance suspension after protest:
This rule clarifies how contract performance suspension would occur after a protest was filed with the General Accountability Office (“GAO”). Contracting officers shall immediately suspend performance or termination of a contract, task order, or delivery order awarded, upon notice of a protest filed at the GAO within the time periods below, whichever is later:
- within ten days after issuance of a contract award or task order or delivery order, where the order’s value exceeds $25 million;
- within five days after a requested and required debriefing was given, and the unsuccessful offeror submits no additional questions;
- within five days after the offered date for a requested and required debriefing by the agency, where the contractor does not accept the debriefing date offered; or
- within five days after the agency’s written response to additional questions that were timely submitted by the unsuccessful contractor.
These proposed rules would apply to post-award debriefings for DOD procurements; civilian agency debriefings would not be affected. Many DOD agencies already have been proactively following these procedures, so some DOD offerors may notice few practical changes upon the final enactment of the rules.
All comments on the proposed rule are due by July 19, 2021.
For additional information regarding this proposed rule, or for assistance drafting and submitting proposals, quotations, or bids, please contact the government contract attorneys at Eckland & Blando LLP.