Enhanced Debriefings -- One Year Later

One year ago today, Congress presented the National Defense Authorization Act of 2018 (NDAA) to the President who signed it into law on December 12. One of the NDAA’s provisions, section 818, directed the Department of Defense (DoD) to provide certain enhanced debriefing rights following the award of large contracts and task orders.

Here’s the gist of what the NDAA called for. First, DoD is required to provide a copy of “the agency's written source selection award determination [SSD], redacted to protect the confidential and proprietary information of other offerors for the contract award” for all contracts with an award in excess of $100 million. Small businesses and “nontraditional” offerors are to be given the option to request a copy of the SSD if the award is greater than $10M but less than $100M. NDAA § 818(a)(1).

Second, DoD was directed to provide a written or oral debriefing for all contract awards and task orders valued at $10M or higher. NDAA § 818(a)(2). This is significant because debriefings are now required for commercial item procurements (under FAR part 12); whereas, required debriefings previously were limited to negotiated procurements (under FAR part 15).

Third, the debriefing process was amended to allow disappointed offerors the opportunity “to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” NDAA § 818(b). This provides offerors a chance to digest the debriefing and request additional information. In addition, the follow-up requirement affects the deadlines for filing bid protests (more on that below).

So, where do we stand one year later? DoD was supposed to have issued new DFARS provisions within 180 days. As is often the case, the deadline was for the most part treated as an aspirational goal and you can consider this a work in progress. A proposed rule has been drafted and submitted for internal review as of September 24. Once the internal review is complete, I expect that a Proposed Rule will be published for public comment in the Federal Register.

In the meantime, a Class Deviation (No. O0011) was issued in March that implements a temporary procedure for the submission and response to post-debriefing questions. That remains in effect and will presumably be in effect until a Final Rule implementing the entire enhanced debriefing process is adopted.

What do you need to know now? Disappointed offerors, who are entitled to a debriefing under FAR 15.506(d) (i.e., required debriefings under FAR part 15, and not commercial items procurements under FAR part 12), are now entitled to submit additional questions within two business days after the required debriefing. The agency is then required to respond with five business days. At that point, the debriefing process will be deemed complete and the clock for the timely submission of a protest following a required debriefing will be triggered.

Beware! This procedure could lull you into thinking that you have more time to file your protest. Well, it does and it doesn’t. The procedure does in the sense that the debriefing can remain open so long as your first set of post-debriefing questions have not been answered. Once the agency answers those questions, the door is closed and the clock starts ticking. The fact that the agency entertains a second round of questions or, perhaps, agrees to a follow-up conference call will not stop the clock.

The GAO made this clear in a protest decided in July in which it stated that the enhanced debriefing procedures do not change the timeliness requirements of the GAO’s Bid Protest Regulations. See Protest of State Women Corporation, B-416510, July 12, 2018, 2018 CPD ¶ 240. As before, where a required debriefing is requested, a protest will be untimely if it is not filed within 10 days of the completion of the required debriefing (this was a point of confusion for the agency).

Under the Class Deviation, the debriefing is complete once it’s complete. It will not be complete if the disappointed offeror timely submits post debriefing questions. The debriefing will then be complete once the agency responds to the questions. Once the response is done, the disappointed offeror must file its protest within 10 days. If the disappointed offeror wishes for performance to be stayed during the pendency of the protest, the protest must be filed within a sufficient amount of time to ensure that the agency receives notice of the protest filing within five calendar days of the completion of the debriefing. See FAR 33.104(c); see also 31 U.S.C. § 3553(d)(4).

Do bear in mind that all this pertains only to Department of Defense procurements. The procedures applicable to civilian agency procurements remain unchanged.

All in all, I think the enhanced debriefing legislation is a positive development for procurement transparency. Let’s hope this gets fully rolled out before the 2nd anniversary.

P.S. Always, always, always be aware that there are many procedural traps in bid protests. In fact, I can see that there may be ambiguities in the Class Deviation regarding the suspension of performance. It states that contract performance will be suspended “upon receipt of a protest” filed at GAO; FAR 33.104(c) states that the automatic stay is triggered when the agency receives notice of the protest filing. I think notice wins particularly because notice is the triggering event codified at 31 U.S.C. § 3553. However, you might be better off making sure the agency receives both the protest and notice of the protest within five days to minimize any confusion.