Earlier this month, the U.S. Department of Defense (DOD) issued a final rule to add the 2018 National Defense Authorization Act’s enhanced post-award debriefing rights to the Defense Federal Acquisition Regulation Supplement (DFARS). The rule took effect immediately on March 18, 2022, and formalizes procedures DOD has largely been following for the past several years. The new regulation supersedes Class Deviation 2018-O0011, which previously addressed a subset of the statutory enhanced debriefing rights. Most defense contractors will notice no difference between life under the old class deviation and life under the new DFARS provisions.
Here are the key takeaways:
- The heart of the final rule is the statutory requirement (also present in the class deviation) to provide offerors in covered DOD procurements two business days following a required post-award debriefing in which to submit written post-debriefing questions to the procuring agency. The offeror’s protest clock does not begin to run until after the agency has provided written responses to the offeror’s timely submitted written questions. In accordance with the Federal Circuit’s precedent in Nika Technologies Inc. v. United States, protest timelines are not extended if the offeror does not submit timely post-debriefing questions.
- The final rule further clarifies that both successful and unsuccessful offerors are entitled to the enhanced post-award debriefing in covered procurements.
- The enhanced debriefing rights apply both to contract awards and to task and delivery order awards under Indefinite Delivery, Indefinite Quantity contracts, as long as the award is worth $10 million or more.
- As required by the underlying statute, all debriefed offerors in procurements valued in excess of $100 million are automatically entitled to receive at least a copy of “the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award.” In addition, in procurements valued between $10 million and $100 million, debriefed offerors that are small businesses or nontraditional defense contractors are entitled to receive at least the redacted source selection decision document, if they request it. Agencies are free to provide additional, properly redacted evaluation and source selection documents to debriefed offerors of any size or status.
A few caveats:
- As is always the case, an offeror is not entitled to a debriefing of any sort if it does not timely request one.
- The new rule and the enhanced debriefing process are mandatory only for DOD agencies. Civilian agencies, however, are free to adopt these procedures.
- The enhanced debriefing rights apply only to post-award debriefings. Agencies, however, are free to adopt modified versions of these procedures for pre-award debriefings.
- The final rule does not apply to procurements where debriefings are not required (such as Federal Supply Schedule order competitions under FAR Part 8, or situations where an offeror has missed the deadline to request a required debriefing). But, here too, agencies are free to adopt these procedures for use in non-required “debriefings.” Offerors should keep in mind, though, that an agency’s voluntary use of the same or similar procedures in a non-required debriefing generally will not entitle the offeror to extended protest deadlines.