On March 18, 2022, the Department of Defense (“DOD”) issued its long-awaited Final Rule implementing Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (“NDAA FY 2018”), and formally codifying defense contractors’ rights to post-award enhanced debriefings. Contractors have been bound by a Class Deviation implementing these requirements since March 2018, with DOD only issuing its proposed rule in May 2021. Though the Final Rule largely tracks the proposed rule, it does include several important clarifications, and, of course, directly impacts timeliness rules for filing post-award protests of DOD awards at the Government Accountability Office (“GAO”).
The Final Rule implements Section 818 of the NDAA FY 2018, which amended DOD statutory authority at 10 U.S.C. § 2305, to provide for certain required enhanced post-award debriefing rights for competitive negotiated contracts, task orders, and delivery orders that exceed $10 million. Section 818 also directed DOD contracting officers to permit follow-up questions to the Government’s debriefings, and to delay the overall timeframe for automatic suspension upon filing of a protest. To accomplish these goals, the Final Rule adds a new solicitation provision, DFARS 252.215-7016, Notification to Offerors – Postaward Debriefings, for use in competitive negotiated solicitations, and a new contract clause, DFARS 252.216-7010, Postaward Debriefings for Task Orders and Delivery Orders, for use in multiple-award contracts.
Applicability: When are Enhanced Debriefings Required?
Under the Final Rule, enhanced debriefings are required “for contract awards valued at $10 million or more.” This includes procurements for the acquisition of commercial items, including commercially available off-the-shelf (“COTS”) items, as well as acquisitions for commercial services. The $10 million threshold is applicable both to negotiated procurements, as well as to the award of task or delivery orders.
Importantly, the Final Rule does not directly impact an offeror’s ability to request a standard debriefing pursuant to FAR 15.506(a) or FAR 16.505(b)(6), which provides that post-award debriefings are permitted and, when requested, required for all negotiated procurements and for task or delivery orders exceeding $6 million.
Content: What is an Enhanced Debriefing?
Under the standard debriefing procedures in FAR parts 15.506 and 16.505, contracting officers are required to provide offerors with a debriefing, including “the basis for the selection decision and contract award,” if an offeror provides a written request for such debriefing within 3 days of the offeror receiving notice of contract award. FAR 15.506(a)(1). Contracting officers are encouraged to hold debriefings within 5 days of this request. FAR 15.506(a)(2). Standard debriefings will not include a “point-by-point” comparison of offerors’ proposals, but generally will include:
- The Government’s evaluation of the significant weaknesses or deficiencies in offeror’s proposal;
- The overall evaluated cost or price and technical ratings of successful offeror and debriefed offeror;
- Evaluations of debriefed offeror’s past performance information;
- Overall ranking of all offerors;
- Summary of the rationale for award;
- The make and model of products to be delivered by the successful offeror if the acquisition is for commercial products; and
- Reasonable responses to relevant questions about source selection procedures used.
Notably, the standard debriefing procedures do not require contracting officers to respond to additional questions after the debriefing, or to turn over specific source selection information – which is the additional information provided by the Final Rule’s enhanced debriefings. That is, DOD’s enhanced debriefings must include all of the information stated in FAR 15.506(d), above, and must provide debriefed offerors the following:
- The Opportunity to Submit Additional Questions – Under the DOD enhanced debriefing procedures, contracting officers must give debriefed offerors an additional 2 business days to submit questions in response to the requested and required debriefing. The contracting officer must respond to these follow-up questions within 5 business days – tolling GAO’s protest timeliness rules until the enhanced debriefing is “concluded” (discussed further below).
- Written Source Selection Decision Document – The DOD enhanced debriefing procedures also give some unsuccessful offerors the right to request redacted versions of the Agency’s written source selection decision – not just a mere summary of the decision as required by FAR 15.506. This document can provide offerors – and potential protesters – valuable insight into the Agency’s award decision and evaluation processes. But, the right does not extend to all unsuccessful offerors.
This right first applies both to small business contractors[1] and nontraditional defense contractors[2] if the contract award is expected to be between $10 million and $100 million. For all other unsuccessful offerors, though, contractors only may request such information if the contract is expected to exceed $100 million.
If unsuccessful offerors meet one of these threshold requirements, they should ensure their request for the written source selection decision document is included in their initial request for a debriefing (in addition to any other questions the offeror seeks to have answered at the initial debriefing). By ensuring the documentation is provided as part of the initial debriefing, contractors ensure the opportunity to submit related follow-up questions through the enhanced debriefing process.
Timeliness: When Must I File My Bid Protest?
As mentioned above, the key takeaway for defense contractors is the impact the Final Rule has on bid protest timeliness with the GAO. Under the Competition in Contracting Act (“CICA”), unsuccessful offerors have 10 days from the date it first knew or should have known of the basis for a post-award protest (e.g., generally 10 days from receipt of notice of award from the contracting officer). Filing a bid protest with GAO during this timeframe not only ensures the protest’s timeliness, but also gives contractors the right to an automatic stay – meaning, the Agency is required to stay award of the subject contract pending the outcome of the protest. The preexisting exception to this rule is when post-award debriefings are requested and required under FAR 15.506 or 16.505, wherein this deadline is extended until after conclusion of the debriefing. Under the GAO rules, unsuccessful offerors must file the protest within 10 calendar days after the debriefing. See 4 CFR §21.1(a)(2). However, in order to obtain an automatic stay, unsuccessful offerors must file their protest within 5 calendar days of the requested and required debriefing.
Confused yet? Don’t worry, we have provided a summary timeline below, because we are just getting started. Under the DOD’s enhanced debriefings policy, the GAO’s protest timeliness rules are extended once again to cover the added time needed for unsuccessful offerors to ask follow-up questions, and to permit the contracting officer to respond to these questions. Accordingly, under the Final Rule, “for DoD, the 5-day protest window at Federal Acquisition Regulation (FAR) 33.104 begins on the date that the postaward debriefing is offered, unless additional questions are received within 2 business days after the debriefing date. If the agency receives timely additional questions from the offeror, the agency will respond in writing within 5 business days. Upon delivery of the agency response, the 5-day protest window will begin.” In other words, the debriefing will be “concluded” upon the later of: (1) the date that the post-award debriefing is delivered; or (2) if additional questions are timely received, the date the agency delivers its written responses. At the occurrence of either event, protesters must file with GAO within 5 calendar days to ensure both timeliness and the automatic stay.
Protest Timeline:
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Adherence to the “new” timeliness rules should not come as a surprise to defense contractors, given they have been bound by essentially the same terms since the Class Deviation was issued in 2018. However, there has been some confusion over the past few years as to the impact the 2-day follow-up provision has on the GAO timeliness rules – an ambiguity detailed by the Federal Circuit in Nika Technologies, Inc. v. U.S., 987 F.3d 1025 (Fed. Cir. 2021). The Final Rule directly addresses this ambiguity in the proposed rule by adopting language from Nika to clarify that if an unsuccessful offeror does not submit follow-up questions, a post-award protest is timely (and the automatic stay may be requested) only if filed within 5 calendar days of the initial debriefing. Further, though the Final Rule does clarify that contracting officers, within their discretion, may respond to additional questions raised beyond the 2-day follow-up period, contractors are warned that such discretion does not extend the GAO’s timeliness rules.
Successful and unsuccessful offerors alike should take advantage of the enhanced debriefing proceedings, where applicable. These debriefings allow contractors to pose targeted questions unique to their individual bids and the procurement as a whole, in addition to receiving a written source selection determination (in some circumstances). This not only can set up a successful protest, but also can assist offerors in further developing their bid strategies. Navigating the debriefing process and bid protest timelines can be a burdensome process, but we are here to help.
[1] Small business contractors are those that meet the Small Business Administration’s size and certification standards at 13 CFR part 121 at the time of bid submission.
[2] Nontraditional defense contractors are those entities not currently performing, or that have not performed, any contract or subcontract for DOD that is subject to fully coverage under the cost accounting standards (41 U.S.C. § 1502 and implementing regulations) for a period of 1 year preceding the solicitation.
