DoD Issues Final Rule Describing the Enhanced Post-Award Debriefing Rights
On March 18, 2022, the Department of Defense (DoD) published its final rule implementing Section 818 of the FY 2018 National Defense Authorization Act (NDAA). This DoD rule describes the post-award debriefing rights for offerors of negotiated DoD contracts, delivery orders, and task orders valued above $10 million, previously implemented through DoD Class Deviation 2018-O0011. The final rule clarifies, as the Federal Circuit held in Nika Technologies, Inc. v. United States, 987 F.3d 1025 (Fed. Cir. 2021), that if the offeror elects not to ask the follow-on debriefing questions permitted under the enhanced debriefing rule, then the debriefing closes (and the protest clock begins) on the date that the agency gave the requested and required debriefing.
Enhanced Post-award Debriefing Rights and Clarifying Filing Deadlines
The final rule amends the DoD Federal Acquisition Regulation Supplement (DFARS) 215.506 to provide, that when requested by a successful or unsuccessful offeror, a written or oral debriefing is required for contracts valued at $10 million or more. It also amends DFARS 216.505 to specify the enhanced debriefing procedures applicable to task and delivery orders.
In addition to the minimum requirements of FAR 15.506(d), the final rule specifies that small businesses and nontraditional defense contractors1 may request a redacted copy of the agency’s source selection decision as part of the “minimum debriefing information” for contract awards of $10 million and not in excess of $100 million. But, for contract awards in excess of $100 million, the debriefing shall include the redacted written source selection decision.
The final rule also adds DFARS 215.506-70, which confirms as specified in 10 U.S.C. § 2305(b)(5) that when providing a requested and required post-award debriefing, DoD will allow the successful and unsuccessful offerors, to submit additional written questions no later than two days after receipt of the debriefing. The Contracting Officer then has five business days to provide responses to the follow-on questions. The debriefing will not conclude until the later of the date the agency provided the requested and required post-award debriefing, or, if the offeror asks follow-up questions, the date the agency delivers its written response thereto.
Application to Commercial Item Contracts Based on Benefits of Enhanced Transparency
DoD specified that the enhanced debriefing procedures apply to commercial item contracts, including contracts for COTS and commercial services. In so holding, DoD noted the benefits of the enhanced debriefing procedure, including assisting in the development of "small business capabilities, provid[ing] increased participation, and promot[ing] competition;" and providing "enhanced transparency" to "minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry."
DoD will insert new clause, DFARS 252.215-7016, Notification to Offerors-Postaward Debriefings in competitive negotiated solicitations, and DFARS 252.216-7010, Postaward Debriefings for Task Orders and Delivery Orders in solicitations for multiple-award contracts.
© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
A nontraditional defense contractor is “an entity that is not currently performing and has not performed any contract or subcontract for 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 DoD for the procurement.” DFARS 252.215-7016.