How NDAA’s New Rules on Enhanced Debriefings May Bolster Defense Contractors

Companies who’ve lost out on a contract award can seek more information by requesting a debriefing, a post-award explanation of why they failed to secure a contract, with an opportunity to pose questions. But debriefings don’t always reveal enough information. Now, thanks to the 2018 National Defense Authorization Act (NDAA), DoD agencies must provide enhanced debriefings with the goal of helping bidders get more information sooner after learning they’ve lost a contract. How will enhanced debriefings affect the landscape of Defense acquisition, and does the new requirement pave the way for more meaningful debriefings for all FAR procurements?  

Debriefings as a Way to Rebound from Lost Contracts

Getting an agency debriefing after losing a contract can help your business in two ways. First, a debriefing can provide insight on your company’s position within the competitive landscape by showing what it did well and not so well. Thus, a proper debriefing provides valuable material to help you compete for future contracts. Second, a debriefing can inform the decision on whether to file a protest. Driven to avoid bid protests, agencies have always had to tackle the question of whether to disclose more or less information to disappointed offerors. Agencies may still choose to say less in debriefings under the belief that giving too much information in a debriefing will encourage a protest. But too little information may leave an unsatisfied bidder suspicious that a lack of detail hides some glaring defect, sparking a protest instead of discouraging it.

In spite of limitations on what debriefings can disclose, they can provide substantial information and play a role in keeping agencies accountable for source selection. Historically, a debriefing contains a description of the significant weaknesses or deficiencies in the offeror’s proposal, the evaluated price/cost and technical ranking of both the winning bidder and the debriefed offeror, an overall ranking of all offerors (if one exists), a note on the make and model of the commercial item offered by the winning contractor (where applicable), and a summary of the rationale for the award. As such, debriefings allow bidders insight into how their own proposal was received, and where they fell short.

 

Bidders Seek Answers Beyond the Original Debriefing

Often, even after being debriefed, disappointed bidders are left with questions. Bidders have a right to ask “relevant” questions, and agencies are obliged to provide “reasonable responses.” But prior to the new rule there was no deadline to respond, and agencies faced no consequence if they answered late, or unresponsively, or even not at all. Worse, asking questions did not postpone the deadlines to protest, unless the agency indicated that the debriefing was still open pending the answers. So, many protests got filed before answers were forthcoming, and then the bidder’s questions got lost in the shuffle.

With the new rule, unsuccessful offerors are given 2 business days after a debriefing to submit questions to a Defense agency. Once the agency receives a bidder’s questions, it must respond within 5 business days. During that time, the protest deadlines are suspended. Thus, contractors are now promised access to crucial information within a critical window.

Despite the new rule, the same restrictions remain regarding information prohibited in a debriefing. Sensitive content about the other bids (like trade secrets) are not allowed in debriefings. An agency must withhold the names of individuals who provided feedback the losing bidder’s past performance. But agencies have sometimes withheld more information than these prohibited topics. And by facilitating follow-up questions, this is another problem the new rules aim to correct.

 

How Agencies and Contractors Might Respond to ‘Enhanced Debriefings”

Presumably, the new rule is meant to encourage DoD agencies to disclose more information during the debriefing process. There is still no enforcement mechanism, but Defense agencies can be expected to implement the new policy. Notably, it was implemented in a “class deviation,” a quicker method than the normal regulatory process.

It is unclear whether enhanced debriefings will be effective in prompting DoD agencies to disclose more details than they would have otherwise. Some agencies might disclose less in their initial debriefings, leaving it up to the offeror to seek additional data by asking the right questions. Others may be more forthcoming earlier, to short-circuit the Q&A process. Either way, it’s still up to the agency to provide a meaningful answer to a proper question.

And enhanced debriefings don’t change the basic protest process. It still holds that a protest is not a way to substitute the decision-maker’s judgment for that of the source selection authority. Simply put, protests are warranted when there’s been a violation of law or regulation, or a decision so unreasonable that it is an abuse of discretion. If an agency can show good reason for the source selection in a debriefing, then disappointed offerors will be less likely to protest. And a reduction in protests that don’t hold water would be good for agencies and contractors alike. If enhanced debriefings are successful at DoD, it’s possible that they will spread via the FAR to civilian agencies within the Government. Regardless, the DoD spends about ¾ of Federal contracting dollars, so this change, effective immediately, is poised to have a big impact on the entire system.

 

For more on enhanced debriefings, listen to my conversation with Tom Temin on Federal News Radio’s “Federal Drive”.

 

DARS 2018-O0011, Class Deviation – Enhanced Debriefing Rights.

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