DOD Finalizes Enhanced Post-Award Debriefings Rule
The Department of Defense (DOD) issued a final rule on March 18, 2022, that amends the Defense Federal Acquisition Regulation Supplement (DFARS) to require "enhanced" post-award debriefings in certain DOD procurements. Although DOD has been conducting enhanced debriefings under a class deviation from the Federal Acquisition Regulation (FAR) since 2018, the final rule formalizes and clarifies the process.
The enhanced debriefing rules are important for government contractors to understand because they impact the tight deadline for filing a protest at the U.S. Government Accountability Office (GAO). An offeror that fails to recognize and take advantage of its rights under the rule will forego valuable information, shorten its time to protest and potentially lose its right to the automatic stay of the awarded contract under the Competition in Contracting Act (CICA).
The final rule contemplates a two-step, post-award debriefing process. The first step is the traditional written or oral debriefing that has long been required under FAR 15.506. The enhanced debriefing rule allows the offeror to proceed to a second step, in which the offeror may submit "additional written questions related to the debriefing" following the initial written or oral debriefing. If the offeror submits questions, the debriefing remains open until the agency responds to the questions.
That the debriefing does not conclude until the agency responds is significant because that is the event that starts the clock to file a GAO protest. An unsuccessful offeror has only five calendar days after the conclusion of its debriefing to file a protest that triggers CICA's automatic stay (or 10 days from contract award, if that is a later date).
The debriefed offeror's questions must be submitted within two business days after receipt of the traditional written or oral debriefing. If the offeror does not submit written questions within two business days, the debriefing will be deemed to have concluded on the date of the traditional debriefing. The offeror's deadline to protest will remain the fifth calendar day after the traditional debriefing (or 10th day from contract award, whichever is later).
If the offeror timely submits questions, the agency then has up to five business days to respond to the questions and, as noted, the protest clock does not start until the agency responds. That means an unsuccessful offeror can extend its time to protest by several days – potentially up to seven business days – by submitting additional written questions, and still get the benefit of the automatic stay. The offeror gains valuable time to develop a protest and decide whether to protest at all. The "additional written questions" process also gives the unsuccessful offeror an opportunity to learn more about why it lost the competition.
The final rule also adds a requirement that did not exist in the class deviation: DOD must provide the debriefed offeror a copy of the agency's written source selection decision document in some circumstances. The agency must provide the decision document in all debriefings when the award exceeds $100 million. For awards between $10 million and $100 million, the agency must provide small businesses and nontraditional defense contractors an option to request the decision document. The decision document will be redacted to protect the confidential and proprietary information of other offerors.
Notably, the new DFARS rule extends these enhanced debriefing rights to the successful offeror, as well. The awardee may use the additional questions and redacted decision document to learn more about what the agency liked and disliked about its proposal.
If you would like assistance navigating the debriefing process, please contact Holland & Knight's Government Contracts Group.