DOD Issues New Proposed Rule on Enhanced Debriefings

GAO Has Released Its Annual Bid Protest Report

By:  Heather Mims

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You may have been aware that the Department of Defense... 

You may have been aware that the Department of Defense was providing enhanced debriefings as part of its procurement process via a Class Deviation announced in 2018. DOD now seeks to make that rule permanent and has published a proposed rule to amend the Defense Federal Acquisition Regulation (DFAR) to continue to provide enhanced post-award debriefing under negotiated contracts, and task and delivery orders that exceed $10 Million. The enhanced debriefing permits offerors the opportunity to submit follow-up questions related to the debriefing within two business days after receiving the debriefing and to receive agency responses within five business days of receipt of the questions. The debriefing will not be considered concluded until the agency delivers its written response to an offeror, which is important for bid protest deadlines.

Finally, the proposed rule in some circumstances also requires the agency’s debriefing information to include the written source selection document, redacted accordingly. The source selection document should be included in the debriefing: (1) where requested by a small business or nontraditional defense contractor for contract awards in excess of $10 Million but less than $100 Million; and (2) for contract awards in excess of $100 Million.

The proposed rule also includes specific information on when contracting officers are required to suspend performance of a contract upon notification from the Government Accountability Office (“GAO”) that a protest has been filed:

  • 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

These changes are merely proposed at this stage and are not yet in effect. Comments on being accepted on the proposed rule through July 19, 2021, so there are several months before we will formally see any of these changes.

About the Author

Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. She has extensive experience litigating bid protests before the GAO as well as experience working with contractors on claims and appeals, government contract terminations, and subcontract disputes. Heather is a top-rated attorney selected to Rising Stars for 2019-2020 by Super Lawyers

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