Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) ushered in enhanced post-award debriefing requirements for covered Department of Defense (DOD) procurements. DOD formally implemented part of those requirements in 2018 in Class Deviation 2018-O0011, which required DOD agencies to give debriefed offerors two business days in which to pose written questions on the debriefing, and required agencies to respond to those questions within five further business days. Under the statute and the class deviation, if an offeror submits timely post-debriefing questions, the protest clock does not begin to run until the agency has responded to those questions. We’ve discussed those timelines here before.
On May 20, 2021, DOD published a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to enshrine the changes already contained in the existing class deviation and to implement the remaining enhanced debriefing rights set forth in the FY 2018 NDAA. The statute anticipated that these regulations would have been implemented within six months of enactment of the statute – but better late than never. Because many DOD agencies have proactively been doing these things already, many DOD offerors will notice few, if any, practical changes once the new rule is finalized.
Key features of the proposed rule are:
- Codification of the current class deviation’s post-debriefing question-and-answer period, with a clear explanation of the timelines that apply for purposes of protests and stays of contract performance.
- A new regulation and solicitation provision clarifying that, when timely requested, a written or oral debriefing is required for all DOD contracts, including commercial-item (and commercial-off-the-shelf item) acquisitions, valued at $10 million or more.
- A new clause for multiple-award contracts, guaranteeing contract holders the same enhanced debriefing rights for task order competitions where the task order is valued at $10 million or more.
- For contracts valued at more than $100 million, the debriefing information must include the disclosure of an appropriately redacted written source selection decision document.
- For offerors that are small businesses or nontraditional defense contractors, the contracting officer must provide the redacted source selection decision document, upon request, even in procurements valued at between $10 million and $100 million. As proposed, this requirement appears to apply only when the contract itself is awarded to another small business or nontraditional defense contractor.
These changes all derive from the FY 2018 NDAA, and many DOD agencies are already doing these things. It bears repeating that agencies are free to, and some already do, provide even more robust debriefings than these regulations and the NDAA would require. Other best practices include providing an appropriately redacted source selection decision document even in acquisitions below the $100 million threshold, providing offerors with copies of the evaluation reports for their own proposals, and holding the debriefing open for questions and answers in some acquisitions valued at less than $10 million, as well as in pre-award debriefings. And, although these regulations will apply only to DOD, civilian agencies are free to adopt them as well, either on a one-off basis, through internal policy, or by amendment of their own FAR supplements. It remains to be seen whether Congress or the FAR Councils eventually roll out these DOD requirements to agencies governmentwide.
As the Office for Federal Procurement Policy has emphasized, and as experience bears out, greater transparency promotes better acquisitions. It also reduces the risk of an unsuccessful offeror filing an unnecessary protest because the agency has deprived it of any basis for concluding that a procurement was fair. More transparent debriefings also help agencies catch and correct procurement errors before a protest has to be filed. All of this contributes to a more efficient and equitable public procurement process.
Comments on the proposed rule are due by July 19, 2021.