Effective immediately, the Department of Defense (DoD) Federal Acquisition Regulation (DFARS) issued its final rule to provide enhanced post-award debriefing rights in competitive negotiated contracts, task orders, and delivery orders exceeding $10 million. The final rule applies to DoD acquisitions greater than $10 million of commercial products, including those for Commercially Available Off-the-Shelf items, and commercial services. The final rule makes clear that offerors have the right to submit timely follow-up questions and to obtain agency responses as part of the enhanced debriefing.
Many an unsuccessful offeror files a protective bid protest based on its belief that it was not fairly considered. Enhanced debriefings provide offerors in covered DoD procurements with the opportunity to learn more about why they were not selected for award. This may help avoid the bringing of protests that ultimately would not be successful and also provide greater clarity to those that compete regarding the evaluation of their submissions.
For awards in excess of $10 million and not in excess of $100 million, the final rule provides an option for the small business or nontraditional defense contractor to “request disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award.” For procurements above $100 million, the final rule provides for the agency disclosure of its written source selection decision document “redacted to protect the confidential and proprietary information of other offerors for the contract award.”
Offerors availing themselves of the opportunity to receive an enhanced debriefing under the final rule have a number of sources for guidance regarding how such debriefing matters affect the time for bringing a bid protest. Under the Competition in Contracting Act (CICA), an offeror has 10 days from the date it first knew or should have known of the basis for a post-award protest. When a post-award required debriefing is provided, the offeror only has 5 days to bring a timely protest to the Government Accountability Office (GAO) and obtain a mandatory stay of the procurement. FAR 33.104(c) provides that the agency “shall” stay the procurement or terminate the challenged award unless the agency determines it is in its best interest or there are urgent and compelling circumstances. Confusion may still arise, however, when questions are raised by an offeror during an enhanced debriefing – how do such questions impact the time period for bringing a timely protest and obtaining the mandatory stay? The final rule seeks to address this confusion, providing that there is a 5-day window for bringing a timely bid protest and that the 5 days begins to run on the date the post-award debriefing is offered. If questions are raised within 2 business days after this debriefing date, the final rule provides that the agency is required to respond to the questions within 5 business days and that the 5-day window for bringing a protest will be deemed to start when the agency delivers its response to the questions. The rule provides that the agency may provide its enhanced debriefing orally or in writing. Responses to any follow-up enhanced debriefing questions that have been timely submitted must be delivered in writing.
DFARS 252.215-7016 Notification to Offerors – Postaward Debriefings and DFARS 252.215-7010 Postaward Debriefings for Task Orders and Delivery Orders, are being revised to add in the provisions on enhanced debriefings.
In bid protests, timing really is everything. While the agency may have the discretion to respond to questions raised beyond the time periods set out in the CICA and rules, such responses will not stay the deadline for filing a timely bid protest. Note too that the ability to obtain a mandatory stay at GAO of the procurement is tied to timeliness of the protest in light of the existing rules. If you have questions about this advisory, contact Susan Warshaw Ebner or your Stinson counsel.