By: Lindsay Simmons
As most of our readers know, the Federal Acquisition Regulation (FAR) has long provided a right to a post-award debriefing for both successful and unsuccessful offerors. FAR 15.506(b).
On March 18, 2022, the Department of Defense (DoD) published a FINAL RULE: (i) to enhance this post-award debriefing right for competitively awarded contracts, task orders, and delivery orders that exceed $10 million; and (ii) to provide offerors with an opportunity, upon receiving a post-award debriefing, to submit follow-up questions related to the debriefing and to receive agency responses. The Rule also delays the start of the timeframe during which the contracting officer must suspend contract performance or terminate the awarded contract if a protest is filed. These changes, in turn, can impact the timeframe for filing a timely protest. Let’s take a closer look.
First, in the wake of the Federal Circuit decision in Nika Technologies Inc. v. United States, the final rule clarifies that, for DoD, the FAR’s 5-day protest window (FAR 33.104) begins on the date a post-award 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 debriefed offeror, the agency will respond in writing within 5 business days. Upon delivery of the agency response, the 5-day protest clock begins to tick. This provision is significant in determining the deadline to file a bid protest at the Government Accountability Office (GAO) and to triggering the automatic stay of performance under the Competition in Contracting Act (CICA). In procurements where a debriefing is both required and timely requested the protest clock does not begin to run until the debriefing has closed. The DFARS rule confirms that a (required and timely requested) debriefing remains open until the agency responds to timely questions.
Second, certain offerors requesting a debriefing in accordance with FAR 15.506 are eligible to receive a redacted source selection decision document as part of the post-award debriefing (in contract awards over $100 million). Now that debriefed offerors will have the opportunity to submit follow-up questions about the debriefing, they will have an important opportunity – to ask questions about the provided source selection decision document. Note that small businesses and “nontraditional defense contractors” also may request a redacted copy of the source selection decision document as part of their debriefing in contract awards above $10 million.
Third, the final rule creates a new solicitation clause (252.215-7016, Notification to Offeror, Postaward Debriefings), and a new contract clause (252.216-7010, Postaward Debriefings for Task Orders and Delivery Orders). DoD will not apply the rule to contracts valued at or below the Simplified Acquisition Threshold. But DoD will apply the rule to contracts for the acquisition of commercial products including COTS items and for the acquisition of commercial services.
The DoD enhanced debriefing process (applicable to procurements under FAR Part 15, and to task order competitions under FAR 16.505), establishes a clear process for offerors to ask written questions and receive written responses. In explaining the broad application of the rule, DoD stated that “[t]hese enhanced postaward debriefing requirements will assist in developing small business capabilities, provide increased participation, and promote competition.” In addition: “Properly conducted postaward debriefings with this enhanced transparency may minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry.”
This final rule should reduce confusion and make the post-award debriefing process more standardized and informative for disappointed bidders.
If you have any further questions, email Lindsay at LSimmons@jacksonkelly.com.
Lindsay Simmons is Of Counsel in the Government industry group, focusing primarily on government contracts. She practices out of the Firm’s office in Washington, D.C.