Receiving a notice that a competitor received an award can be a punch to the gut. This feeling is compounded when the requested debriefing is short on details. Offerors are normally left with more questions than answers.
The DoD has proposed to amend the DFARS to enhance debriefings in certain procurements. The correct amount of information in a debriefing is an ever-moving target; hopefully, this new proposed amendment will be a step in the right direction.
The proposed amendments are far from finalized, only being announced on May 20, 2021. Comments are now open, and are expected to close on July 19, 2021. The proposed amendments seek to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018.
First, the new rule would allow unsuccessful offerors to submit written follow-up questions within two days of receiving the debriefing. The contracting officer will then have five business days to respond in writing to the question. The key is that the postaward debriefing will not conclude until the agency delivers its written response to the offeror. This key change from 2018, as outlined in more detail below, is the disclosure of source selection documentation through the debriefing process.
Next, the DoD will require written or oral debriefings, when requested, for all contracts $10 million or more.
For awards in excess of $10 million, but less than $100 million, a small business must receive an option to request the written source selection document. The agency can redact the document, but when considering a potential protest, this can contain crucial information. For awards in excess of $100 million, the written source selection document must be included with the debriefing. This applies to negotiated contracts, task orders, and delivery orders..
If the goal is transparency, I do not see the need to create an extra step for small businesses to have to request the written source selection document. This is important for small businesses, assuming this rule goes into effect, be sure to request the source selection document as part of every debriefing.
The new rule also formalizes the timeframe for suspending performance or termination of a contract. Suspension will be required in the following circumstances,
- 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.
The DoD does not intend for these new post-award debriefings to apply at or below the Simplified Acquisition Threshold (SAT). However, the new rules would apply to Commercial Off The Shelf (COTS) items in excess of $10 million.
When doing business with DoD, debriefings are poised for an overhaul. When receiving notice of an unsuccessful offer, be sure to ask written questions, and request the written source selection document. Knowledge is power, be sure to grab it when it is available.
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