The revised rules make it easier for contractors to determine whether to file an appeal.
The Department of Defense (DOD) bidding process allows for appeals by unsuccessful bidders. These appeals, however, can be expensive and it’s sometimes difficult to obtain the information about the successful bid required to determine whether the selection process was above-board.
The National Defense Authorization Act (NDAA) for Fiscal Year 2018 is designed to make appeals less costly by making the award debriefing process more transparent.
Jacqueline Ryan’s article in Federal Construction Contracting Blog outlines the DOD’s “enhanced post-award debriefing requirements … . These enhanced debriefing requirements differ depending on the magnitude of the contract, but in all cases could have serious—and we think positive—impact on protests.”
For contracts over $100 million “there will be an automatic disclosure of the defense agency’s written source selection award [redacted to protect confidential bidder information] as part of the debriefing process. This means contractors will be able to review this information before committing to the time and expense of filing an appeal.
“For contract awards between $10 million and $100 million with a small business or non-traditional contractor, the 2018 NDAA requires there be an option for the small business or non-traditional contractor to request disclosure of the redacted source selection award determination as part of the debriefing process.”
The DOD must provide a “written or oral debriefing for all contract awards and task or delivery orders valued at $10 million or higher.”
Contractors have two days from the debriefing to submit additional questions. The DOD must respond to these questions within 5 days. “… The time a contractor has to file a protest will not begin until after the contractor receives answers from the Agency.”
The enhanced post-award debriefing requirements are contractor friendly and reasonable. I, like most observers, are normally critical of the legislature for making it increasingly difficult for contractors to do business with the federal government. The NDAA is a welcome and much-needed exception to this trend.
Good News for Department of Defense Contractors: Enhanced Post-Award Debriefing Requirements are on Their Way, Jacqueline Ryan, Federal Construction Contracting Blog, January 26, 2018.