As we discussed in previous client alerts (found here, here, and here), over the past three years the Department of Defense (DoD) has issued new rules implementing provisions of the National Defense Authorization Act of 2018 (2018 NDAA) that significantly bolster the rights of government contractors by providing for enhanced debriefings. These rules were initially promulgated in March 2018 under FAR Class Deviation No. 2018-O0011. On March 18, 2022, after four years of operating under the Class Deviation, DoD finally issued a final rule implementing the requirement for enhanced debriefings. While the final rule largely mirrors the Class Deviation, we highlight below one significant change and one point of clarification.
First, the final rule now requires DoD to provide offerors a redacted version of the source selection decision document for small business awards over $10 million and for large business awards over $100 million. However, while this requirement is automatic for awards over $100 million, small businesses must specifically request a copy of the redacted source selection decision document for awards between $10 million and $100 million. As such, it is imperative that small business government contractors ensure that they make this specific request when requesting a debriefing. This new requirement, which is set forth at DFARS 215.506(d), is another important step in the direction of transparency and fairness in defense procurements and will allow disappointed offerors to make more informed decisions about whether to protest.
Second, as we discussed in a prior client alert (here), the Federal Circuit’s 2021 decision in Nika Techs., Inc. v. United States, 987 F.3d 1025 (Fed. Cir. 2021) provided significant clarity on the protest timelines applicable under the enhanced debriefing rules set forth in the Class Deviation. The Federal Circuit explained that a prospective protester of a DoD procurement should avail itself of its enhanced debriefing rights by preparing and submitting written questions about its debriefing within two business days after receiving the written debriefing. The Federal Circuit further explained that, to the extent a protester fails to timely submit such questions, it must file any GAO protest within five days of receiving its required debriefing to obtain the important automatic stay of performance under CICA. The final rule was revised to be consistent with the Federal Circuit’s decision in Nika.