On May 20, 2021, The Department of Defense published a proposed rule that codifies and expands the DOD’s enhanced debriefing program.
The enhanced debriefing program was initially called for by Congress in the National Defense Authorization Act of 2018 and implemented by the DOD through a class deviation. Class deviations are generally temporary authorizations to deviate from the FAR/DFARS.
The enhanced debriefing program has proven popular with both industry and government alike. Accordingly, the proposed rule will expand the enhanced debriefing program and make it permanent.
As initially enacted through the class deviation, the enhanced debriefing program required DOD contracting activities to allow disappointed offerors to submit follow up questions subsequent to a FAR § 15.506 debriefing. The contracting activity would then need to respond to those follow up questions. The thinking behind allowing follow up questions is that increased transparency and insight to the contracting activity’s decision-making process would reduce the number of protests and improve future proposals.
The proposed rule takes this transparency a step further. First it expands the scope of contracts under which a debriefing is required. Under the current rules debriefings are only required on negotiated procurements (FAR Part 15) as well IDIQ task orders (FAR part 16) and commercial items procurements (FAR Part 12) that exceeded a certain threshold. Under the proposed rule, a debriefing must be provided for all procurements, including all task order, delivery orders, and GSA Schedule orders above $10 million.
Further expanding the enhanced debriefing program, the proposed rule would require the contracting activity to provide the source selection decision memorandum with the debriefing for all contracts over $100 million and all small business contracts over $10 million.
The source selection decision memorandum is the comprehensive comparative assessment of proposals against all source selection criteria in the solicitation and its documents the rationale used by the source selection authority to in reaching an award decision, including any tradeoffs made by the source selection authority. It typically contains a wealth of information about the contracting activity’s thinking which can be immensely valuable for contractors looking to improve their future proposals. However, some worry that providing the source selection decision memorandum will just provide more fuel for disappointed offerors intent on protesting.
In addition to codifying and expanding the enhanced debriefing program, the proposed rule also clarifies when an agency must suspend performance on a contract in the face of a bid protest. When the GAO notifies an agency that a protest has been filed, the agency must suspend performance if the protest has been filed within the following timeframes:
- Within 10 days after the date of contract award or the issuance of a task or delivery order, where the value of the order exceeds $25 million.
- Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, and the unsuccessful offeror submits no additional questions related to the debriefing.
- Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, if the debriefing date offered is not accepted.
- Within 5 days, commencing on the day the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered.
To be clear, the proposed rule does not take effect until it becomes a final rule which cannot occur until the notice and comment period is completed. The DoD is now accepting public comments for this proposed rule until July 19, 2021.