On March 18, 2022, the US Department of Defense (“DoD”) published a final rule regarding enhanced debriefing rights for unsuccessful offerors with regard to competitive negotiated contracts in excess of $10 million and task orders and delivery orders in excess of $10 million acquired under the Federal Acquisition Regulation (“FAR”).1 This rule takes immediate effect and implements Section 818 of the 2018 National Defense Authorization Act (“NDAA”), which mandated such debriefings.2 Prior to the final rule’s publication, the DoD implemented Section 818 through a class deviation in March 2018 and then published a proposed rule in May 2021.3 The final rule is largely consistent with the class deviation and incorporates the enhanced debriefing requirements through DFARS 215.506 and DFARS clause 252.215-7016 for contracts and DFARS 216.505 and DFARS clause 252.216-7010 for task or delivery orders. As explained below, the final rule “clarif[ies] the time periods for requesting, delivering, and completing the postaward debriefing, including the impact of additional questions on the timely submission of protests to the Government Accountability Office (GAO).”4
Purpose of the Enhanced Debriefing Requirements.
According to the final rule, the enhanced debriefing requirements serve multiple purposes. They “assist in developing small business capabilities, provide increased participation, and promote competition.” Furthermore, these requirements, when conducted properly, may also “minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry.”5
Enhanced Debriefing Requirements.
The final rule requires the DoD, when requested by an offeror, successful or unsuccessful, to provide a written or oral debriefing for contracts, task orders and delivery orders valued at $10 million or more.6
Timeline for Debriefing.
The requirement mandates that the agency provide a postaward debriefing when timely requested by an offeror. FAR 15.506(a)(1) defines “timely request” and states, “[a]n offeror, upon its written request received by the agency within 3 [calendar] days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award” (emphasis added).
Moreover, when an agency provides a required postaward debriefing, the “debriefed Offeror may submit additional written questions related to the debriefing not later than 2 business days [not calendar days] after the date of the debriefing,” and the agency will respond in writing no later than 5 business days after receipt by the contracting officer (although the agency may respond sooner than 5 business days).
When a Debriefing Is Considered Concluded.
The final rule defines the conclusion of the required debriefing as the later of either the date of the debriefing or, if the debriefed offeror provides additional written questions, the date the agency delivers its written responses to the debriefed offeror.7
The conclusion date of the debriefing is important for unsuccessful offerors because it triggers their clock to timely file a bid protest to the GAO and receive the automatic stay of contract performance under the Competition in Contracting Act (“CICA”). Specifically, a stay is automatically imposed if a protest is “within 5 [calendar] days after a debriefing date offered to the protestor under a timely debriefing request” or “within 5 [calendar] days after a postaward debriefing . . . is concluded.”8 If there is no required postaward debriefing, then a protestor has 10 calendar days from contract award to file a timely protest with the GAO and obtain the automatic stay. If a deadline calendar day falls on a weekend or federal holiday, the date rolls over to the next business day. Protestors must take heed of these strict, unforgiving timelines and plan their schedule with these timelines in mind.
The final rule also clarifies the ability of debriefed offerors to submit additional written questions and adopts the interpretation in the 2021 Federal Circuit decision, NIKA Techs., Inc. v. United States.9 This decision held that if the debriefed offeror does not submit additional written questions, then the offeror’s timeline to timely file a protest to the GAO remains 5 calendar days from the debriefing date.
For unsuccessful offerors, the ability to submit additional written questions after receiving a required debriefing provides the opportunity to obtain additional information and time to analyze potential protest grounds. Because of the already truncated timeline for submission of a timely protest to GAO, unsuccessful offerors should always avail themselves of this additional time to obtain information and understand the facts concerning the award that affect any decision to protest.
Contents of the Debriefing.
The debriefing is required to include the following minimum information:
- For awards of contracts between $10 million and $100 million with a small business or nontraditional defense contractor, the small business or nontraditional defense contractor10 has the option to request the agency to disclose a redacted version of its written source selection decision.
- For awards of contracts over $100 million, the agency will disclose a redacted version of its written source selection document.
Applicability to Commercial Products and Services and to Contracts at or below the Simplified Acquisition Threshold.
The DoD determined that it will apply the enhanced debriefing requirements to negotiated procurements and contracts for the procurement of commercial products, to include commercial off-the-shelf items and commercial services. However, the DoD determined that the requirements will not apply to contracts at or below the simplified acquisition threshold.11
Although this final rule has the aspirational intent of both minimizing the number of unnecessary protests filed and strengthening relationships between the DoD and industry, perhaps the most important effect of the enhanced debriefing requirements is that they provide unsuccessful offerors and the agency involved the opportunity to provide more information and clarity regarding the award decision. However, a perhaps unintended consequence of the enhanced debriefing rules, as applied since the deviation was issued in 2018, has been fewer in-person debriefings and engagement with industry and, instead, a greater tendency of agencies to rely on written (and sometimes formulaic) materials—with the result of less communication.
1 DFARS: Postaward Debriefings (DFARS Case 2018-D009), 87 FR 15808 (Mar. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05531.pdf.
2 See National Defense Authorization Act for Fiscal Year 2018, Pub. L. 115-91 (Dec. 12, 2017), https://www.congress.gov/115/plaws/publ91/PLAW-115publ91.pdf.
3 See DFARS Class Deviation – Enhanced Debriefing Rights, DARS Tracking Number 2018-O0011 (Mar. 22, 2018), https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf; see also DFARS: Postaward Debriefings (DFARS Case 2018-D009), 86 FR 27354 (May 20, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10581.pdf.
10 DFARS § 252.215-7016 defines “[n]ontraditional defense contractor” as an entity that is not currently performing and has not performed any contract or subcontract for the DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by the DoD for the procurement (10 U.S.C. 2302(9)).