Takeaways

Enhanced DoD post-award debriefing rights include disclosure of a redacted source selection award determination for awards greater than $100 million.
There is also an option to request this disclosure for small businesses or nontraditional contractors for awards greater than $10 million.
The DoD pilot program will require protester payment of costs for denied GAO bid protests filed on or after October 1, 2019, if protester has revenues over $250 million.

On November 8, 2017, the U.S. Senate and House Armed Services Committees announced that they had reached an agreement to reconcile the different versions of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) passed by the Senate and House earlier in the year. The Senate version included many bid protest “reforms” that were largely unpopular with the government contracting community, while the House version did not. The recently issued Conference Report shows that most of the bid protest reforms from the Senate version were removed from the final version of the bill agreed to by the Conference Committee. The remaining bid protest reforms for DoD acquisitions are located at Section 818 regarding “Enhanced Post-Award Debriefing Rights,” and Section 827 regarding “Pilot Program on Payment of Costs for Denied Government Accountability Office Bid Protests.”

Enhanced Post-Award Debriefing Rights for DoD Required Debriefings

Paragraph (a) of Section 818 requires DoD to issue new regulations within 180 days to establish procedures for enhanced post-award debriefings where the debriefing is required. Under paragraph (a)(1), the new procedures must include “disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award” in the case of an award over $100 million, and “an option to request this disclosure” for a “small business or nontraditional contractor” in the case of an award above $10 million.

Paragraph (b) directly amends 10 U.S.C. § 2305(b)(5) to provide for DoD acquisitions “an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing,” and requiring that “[t]he agency shall respond in writing to any additional question […] within five business days” and “the agency shall not consider the debriefing is to be concluded until the agency delivers its written responses.”

Finally, Paragraph (c) directly amends the Competition in Contracting Act (CICA), at 31 U.S.C. § 3553(d)(4), to require that for DoD acquisitions, the “five-day period” to file a bid protest to trigger an automatic stay of the awarded contract does not start until after the government delivers the written responses discussed in Paragraph (b).

These provisions of the FY 2018 NDAA should substantially improve the usefulness of the debriefing process by providing additional transparency into the underlying DoD competition. Disappointed bidders will have a greater understanding of the evaluation and award decision and can better analyze any potential protest grounds before filing a protest.

Pilot Program on Protester Payment of Government Costs for Denied GAO Bid Protests

Section 827 requires that the “Secretary of Defense shall carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense for costs incurred in processing covered protests.” The pilot program will begin on October 1, 2019, and end on September 30, 2022, after which DoD must report to Congress on the feasibility of making the pilot program permanent. The pilot program will only cover bid protests that are “denied in an opinion issued by the Government Accountability Office” and “filed by a party with revenues in excess of $250,000,000” during the period of the pilot program.

Although many aspects of the pilot program are yet to be determined, including what costs DoD will be impose on losing protesters, the final language in the FY 2018 NDAA itself indicates that a protester can avoid the imposition of costs by withdrawing its protest prior to a published opinion issued by GAO. Once implemented, this pilot program may make the U.S. Court of Federal Claims a more attractive bid protest forum for protesters with revenues over $250 million.