2018 NDAA: Congress Enacts Changes to DoD Debriefings

Almost a year ago, we wrote of a memorandum from the Office of Federal Procurement Policy urging agencies to strengthen the debriefing process. OFPP’s rationale was simple: because effective debriefings tend to reduce the number of protests, agencies should be inclined to enhance the debriefing process.

Congress seems to have taken note: the 2018 National Defense Authorization Act requires the Department of Defense to make significant improvements to the debriefing process.  That said, those improvements are limited to large DoD acquisitions, leaving many small businesses stuck with the much more limited debriefing rights currently available under the FAR.

NDAA Section 818—entitled Enhanced Post-Award Debriefing Rights—imposes three significant changes of which contractors should be aware.

First, the NDAA bolsters the amount of information offerors will receive under DoD debriefings. For small business awards valued between $10 million and $100 million—and for any contract valued over $100 million, regardless of the awardee’s status—defense agencies must disclose the agency’s written source selection award determination (redacted as necessary to protect other offeror’s confidential information).

This is a significant increase in the amount of information disclosed as part of debriefings: currently, agencies need only disclose basic information about the awardee’s scores and a summary of the rationale for award.

Second, the NDAA also makes clear that written or oral debriefings will be required for all contract awards and task or delivery orders valued at $10 million or more.

This also represents a significant expansion of debriefing rights: now, the FAR only requires debriefings under negotiated procurements (FAR part 15) and for task and delivery orders valued over $5.5 million (FAR 16.505).

Third, the NDAA requires agencies to give offerors the ability to ask questions following receipt of the debriefing—specifically, within two business days after receiving the debriefing.

True, the FAR already requires agencies to allow offerors the ability to ask questions; but oftentimes, agencies require questions to be posed before the debriefing is received. I’ve always thought this requirement is nonsensical, as it’s tough for an offeror to know what questions to ask if it lacks any information about the evaluation. Congress apparently agrees and now wants to make clear that questions must be allowed after the debriefing is received.

Congress also seeks to improve the debriefing process by giving some teeth to the requirement that agencies accept questions. That is, although the FAR already contemplates that offerors be given the opportunity to ask questions, agencies sometimes ignore this mandate and close the debriefing before questions can be asked. The NDAA hits back at this practice: it says that a contractor’s bid protest clock does not start ticking until the government delivers its response to any questions posed by an offeror. In other words, the longer the agency waits to allow for and respond to questions, the more time a protester will have to develop potential protest arguments.

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All told, the NDAA makes significant changes to the post-award debriefing process in DoD procurements. These changes are a big step in the right direction but not a perfect solution to the problem OFPP identified. The changes will apply only to DoD, not civilian agencies. And even for small businesses, enhanced debriefings will only be available for large acquisitions of $10 million or greater. As a result, many small businesses won’t be entitled to enhanced debriefings, even in DoD acquisitions.

Perhaps, though, the rollout of this enhanced debriefings process will prove that, contrary to a common agency perception, better post-award communication actually decreases protests. If so, agencies might begin offering enhanced debriefings even when they’re not required, which would be a real win for everyone in the contracting community.

President Trump signed the 2018 NDAA into law on December 12. It’s only a matter of time before these changes take effect.
This content originally appeared on SmallGovCon.