The National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 includes enhanced post-award debriefing requirements for the Department of Defense (“DoD”). This change is likely a response to the Office of Federal Procurement Policy’s (“OFPP”) January 5, 2017 memorandum. The memorandum debunked certain misconceptions about the debriefing process and encouraged agencies to adopt best practices and maximize the value of debriefings. One such myth that the OFPP’s memorandum debunked was that debriefings always lead to protests. The memorandum advocated for more transparency in the debriefing process, explaining that, in fact, an effective debriefing process can greatly reduce the frequency of protests.
The legislature appears to have taken OFPP’s message to heart, because the 2018 NDAA requires that DoD post-award debriefing requirements be enhanced. These enhanced debriefing requirements are not yet implemented, but because the NDAA requires the regulations be revised within 180 days after enactment of the NDAA, we can expect more information about these regulations by this summer! These enhanced debriefing requirements differ depending on the magnitude of the contract, but in all cases could have a serious – and we think positive – impact on protests.
What are the Enhanced Post-Award Debriefing Requirements for DoD?
The 2018 NDAA requires that, in the case of a contract award in excess of $100 million, there will be an automatic disclosure of the defense agency’s written source selection award determination as part of the debriefing process. In other words, contractors and their attorneys will not need to wait until after filing a protest, and getting the agency record, to see this critically important document. The determination will be redacted, of course, to protest the confidential and proprietary information of the other offerors. Nonetheless, the provision of this document during debriefing will make it far easier for contractors and attorneys to determine what protestable issues may exist and to assess how likely a protest is to succeed. This is expected to save many contractors time and money.
For contract awards between $10 million and $100 million with a small business or nontraditional contractor, the 2018 NDAA requires that there be an option for the small business or nontraditional contractor to request disclosure of the redacted source selection award determination as part of the debriefing process.
Additionally, the 2018 NDAA mandates a written or oral debriefing for all contract awards and task or delivery orders valued at $10 million or higher. Currently, the regulations only require debriefings for negotiated procurements pursuant to FAR Part 15 and for task and delivery orders valued over $5.5 million.
Another positive change is that, under the new debriefing requirements, additional questions will be permitted. Specifically, offerors will be able to submit additional questions related to the debriefing within two business days after receiving a post-award debriefing. The agency must respond in writing to any additional questions within five business days. The debriefing will be considered concluded when the agency delivers its written responses to the questions of the offeror. In order words, the time that a contractor has to file a protest will not begin until after the contactor receives answers from the Agency. This opportunity for additional questions could prove very useful when deciding whether to file a protest.