Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009), 27354-27358 [2021-10581]

Download as PDF 27354 Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules FEDERAL COMMUNICATIONS COMMISSION FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 47 CFR Part 64 Defense Acquisition Regulations System [WC Docket Nos. 19–195 and 11–10; Report No. 3172; FRS 27325] [CG Docket No. 17–59; Report No. 3173; FRS 27311] 48 CFR Parts 212, 215, 216, 233, and 252 Petitions for Reconsideration of Action in Rulemaking Proceeding Petition for Reconsideration of Action in Rulemaking Proceeding Federal Communications Commission. AGENCY: Federal Communications Commission. AGENCY: ACTION: Petitions for Reconsideration. ACTION: Petitions for Reconsideration (Petitions) have been filed in the Commission’s rulemaking proceeding by Thomas C. Power, on behalf of CTIA. SUMMARY: Oppositions to the Petitions must be filed on or before June 4, 2021. Replies to an opposition must be filed on or before June 14, 2021. DATES: Federal Communications Commission, 45 L Street NE, Washington, DC 20554. ADDRESSES: This is a summary of the Commission’s document, Report No. 3172, which was released May 11, 2021. The full text of the Petitions can be accessed online via the Commission’s Electronic Comment Filing System at: http://apps.fcc.gov/ ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because the Commission is not adopting any rules. Subject: Establishing the Digital Opportunity Data Collection and Modernizing the FCC Form 477 Data Program, FCC 20–94, published at 85 FR 50886, August 18, 2020 and FCC 21–20, published at 86 FR 18124, April 7, 2021, in WC Docket Nos. 19–195 and 11–10. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g). Number of Petitions Filed: 2. Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. [FR Doc. 2021–10591 Filed 5–19–21; 8:45 am] Petition for Reconsideration (Petition) has been filed in the Commission’s rulemaking proceeding by Joshua M. Bercu, on behalf of USTelecom—The Broadband Association. SUMMARY: Oppositions to the Petition must be filed on or before June 4, 2021. Replies to an opposition must be filed on or before June 14, 2021. DATES: Federal Communications Commission, 45 L Street NE, Washington, DC 20554. ADDRESSES: Eli Johnson, Wireless Telecommunications Bureau, (202) 418–1395 or Eli.Johnson@ fcc.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Petition for Reconsideration. FOR FURTHER INFORMATION CONTACT: Jerusha Burnett, Consumer and Governmental Affairs Bureau, (202) 418–0526 or Jerusha.Burnett@fcc.gov. This is a summary of the Commission’s document, Report No. 3173, released May 11, 2021. The full text of the Petition can be accessed online via the Commission’s Electronic Comment Filing System at: http://apps.fcc.gov/ ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission. Subject: Advanced Methods to Target and Eliminate Unlawful Robocalls, published 86 FR 17726, April 6, 2021, in CG Docket No 17–59. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g). Number of Petitions Filed: 1. SUPPLEMENTARY INFORMATION: Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. [FR Doc. 2021–10600 Filed 5–19–21; 8:45 am] DEPARTMENT OF DEFENSE [Docket DARS–2021–0010] RIN 0750–AJ73 Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018–D009) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. AGENCY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2018 that provides enhanced postaward debriefing rights under negotiated contracts, task orders, and delivery orders. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before July 19, 2021, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2018–D009, using any of the following methods: Æ Federal eRulemaking Portal: https://www.regulations.gov. Search for ‘‘DFARS Case 2018–D009’’. Select ‘‘Comment Now’’ and follow the instructions provided to submit a Comment. Please include ‘‘DFARS Case 2018–D009’’ on any attached documents. Æ Email: osd.dfars@mail.mil. Include DFARS Case 2018–D009 in the subject line of the message. Æ Mail: Defense Acquisition Regulations System, Attn: Ms. Kimberly Ziegler, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, Washington, DC 20301–3060. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check https:// www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). SUMMARY: Ms. Kimberly Ziegler, telephone 571–372– 6095. FOR FURTHER INFORMATION CONTACT: BILLING CODE 6712–01–P BILLING CODE 6712–01–P SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 16:57 May 19, 2021 Jkt 253001 PO 00000 Frm 00074 Fmt 4702 Sfmt 4702 E:\FR\FM\20MYP1.SGM 20MYP1 Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules I. Background DoD is proposing to amend the DFARS to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115–91). Section 818 amends 10 U.S.C. 2305 to enhance postaward debriefing rights for competitive negotiated contracts, task orders, and delivery orders that exceed $10 million and to provide offerors the opportunity, upon receiving a postaward debriefing, to submit follow-up questions related to the debriefing and to receive agency responses. Section 818 also amends 31 U.S.C. 3553(d) to extend the timeframe during which the contracting officer shall immediately suspend contract performance or terminate the awarded contract if a protest is filed. Section 818(a)(4) requires robust procedures, consistent with 10 U.S.C. 2305(b)(5)(D), that must preclude point-by-point comparisons of the debriefed offeror’s offer with other offers and may not disclose any information that is exempt from disclosure under 5 U.S.C. 552(b). There is sufficient existing policy in FAR 3.104–4, Disclosure, protection, and marking of contractor bid or proposal information and source selection information; therefore, no additional DFARS changes are required in this regard. II. Discussion and Analysis The following changes to the DFARS are proposed to implement section 818 of the NDAA for FY 2018: DFARS 215.506 implements new requirements for contracting officers when providing postaward debriefings, stipulating the requirements for information to be provided to successful and unsuccessful offerors. DFARS 215.506(S–70) outlines the debriefing process, which provides the opportunity for offerors to submit written follow-up questions within two business days after receiving the debriefing, as well as requirements for the agency to respond in writing to the timely submitted follow-up questions within five business days after receipt of the questions. DFARS 215.506(S–70)(2) ensures contracting officers do not consider the postaward debriefing to be concluded until the agency delivers its written response to an offeror. DFARS 215.506(b) informs contracting officers that notwithstanding FAR 15.506(b), when requested, a written or oral debriefing is required for all contracts valued at $10 million or more. DFARS 215.506(d)(i) and (ii) specify the following: (1) for contract awards in excess of $10 million, and not in excess VerDate Sep<11>2014 16:57 May 19, 2021 Jkt 253001 of $100 million, with a small business or nontraditional defense contractor (as defined in DFARS 201.101), the debriefing information must include the option for a small business or nontraditional defense contractor to request the disclosure of the written source selection decision document, redacted to protect the confidential and proprietary information of other offerors; and (2) for the award of a contract in excess of $100 million, the debriefing information must include the disclosure of the written source selection decision document, redacted accordingly. DFARS 216.505(b)(6) informs contracting officers that, in addition to the notice required at FAR 16.505(b)(6), a written or oral debriefing is required for task and delivery orders valued at $10 million or more. Paragraph (b)(6)(ii) directs contracting officers to follow the procedures in DFARS 215.506 when providing postaward debriefings to successful and unsuccessful awardees for task or delivery orders valued at $10 million or more. Paragraph (c)(1) in DFARS 233.104, notifies contracting officers of the new timeframes for the suspension of performance or termination of a contract, task order, or delivery order awarded, upon notification from the General Accountability Office (GAO) of a protest filed within the following time periods, whichever is later: • Within 10 days after the date of contract award or the issuance of a task or delivery order, where the value of the order exceeds $25 million. • Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, and the unsuccessful offeror submits no additional questions related to the debriefing. • Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, if the debriefing date offered is not accepted. • Within 5 days, commencing on the day the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered. A new solicitation provision is added at DFARS 252.215–70XX, Notification to Offerors—Postaward Debriefings, for use in competitive negotiated solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items. The solicitation provision informs offerors of the new enhanced postaward debriefing requirements for contracts valued at $10 PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 27355 million or higher. The prescription for the provision is added at DFARS 215.570. The provision is also listed at DFARS 212.301(f)(vi) for use in the acquisition of commercial items. The proposed rule adds a new contract clause at DFARS 252.216– 70YY, Postaward Debriefings for Task Orders and Delivery Orders, for use in multiple-award contracts. The clause informs multiple-award contractors of the new enhanced postaward debriefing requirements for task orders and delivery orders. The clause is prescribed in paragraph (S–71) at DFARS 216.506 and is listed at DFARS 212.301, new paragraph (f)(vii), for use in the acquisition of commercial items. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items This proposed rule implements section 818 of the NDAA for FY 2018. Section 818 requires that DoD provide successful and unsuccessful offerors the opportunity for enhanced postaward debriefings. The rule adds one new solicitation provision at 252.215–70XX, Notification to Offerors—Postaward Debriefings, for use in competitive negotiated solicitations, and one new contract clause at 252.216–70YY, Postaward Debriefings for Task Orders and Delivery Orders, for use in multiple-award contracts. DoD does not intend to apply this rule to contracts and subcontracts valued at or below the SAT. DoD intends to apply this rule to commercial items, including COTS items, for the reasons described in section III.C. of this preamble. A. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) 41 U.S.C 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory (FAR) Council makes a determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Principal Director, Defense Pricing and Contracting (DPC), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. E:\FR\FM\20MYP1.SGM 20MYP1 27356 Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules B. Applicability to Contracts for the Acquisition of Commercial Items, Including Commercially Available Offthe-Shelf (COTS) Items 10 U.S.C. 2375 governs the applicability of laws to DoD contracts and subcontracts for the acquisition of commercial items, including COTS items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items, including COTS items. 10 U.S.C. 2375 provides that if a provision of law contains criminal or civil penalties, or if the Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)) makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Due to delegations of authority from USD(A&S), the Principal Director, DPC is the appropriate authority to make this determination. C. Determination DoD is proposing to not apply the requirements of section 818 to contracts at or below the SAT, since the requirements apply to contracts valued at $10 million or higher. The section 818 requirements will apply to negotiated procurements and contracts for the acquisition of commercial items, including COTS items. DoD plans to make a determination to apply this statute to acquisitions for commercial items, including COTS items. It is not in the best interest of the Federal Government to exempt application of this rule to commercial items, including COTS items, for the following reasons. Implementation of section 818 affords offerors the opportunity for enhanced postaward debriefings for contracts and task or delivery orders that exceed $10 million. Implementation provides offerors the opportunity, upon receiving a postaward debriefing, to submit followup questions related to the debriefing and to receive agency responses. These enhanced postaward debriefing requirements will assist in developing small business capabilities, provide increased participation, and promote competition. Properly conducted postaward debriefings with this enhanced transparency may minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry. Applying these requirements to the acquisition of commercial items does not increase the burden on offerors, since the rule only enhances existing VerDate Sep<11>2014 16:57 May 19, 2021 Jkt 253001 requirements concerning postaward debriefings. Exclusion of acquisitions of commercial items, including COTS items, would greatly limit access to the benefits afforded to successful and unsuccessful offerors by the section 818 requirements. VI. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. V. Congressional Review Act As required by the Congressional Review Act (5 U.S.C. 801–808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register. This rule is not anticipated to be a major rule under 5 U.S.C. 804. VI. Regulatory Flexibility Act DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule implements requirements primarily for the Government. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: This rule proposes to amend the DFARS to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115–91). Section 818 provides offerors and contractors with significantly enhanced written or oral debriefing information for negotiated contracts and task or delivery orders that exceed $100 million, and the opportunity for small entities and nontraditional contractors to obtain PO 00000 Frm 00076 Fmt 4702 Sfmt 4702 such information for awards that exceed $10 million, but do not exceed $100 million, with small entities and nontraditional contractors. The objective of this proposed rule is to ensure contractors and offerors are provided a standard written or oral postaward debriefing at the dollar thresholds in the statute, while protecting the confidential and proprietary information of other offerors. The statute also provides direction to contracting officers when notified that a protest has been received by the Government Accountability Office. The legal basis for the rule is section 818 of the NDAA for FY 2018 (Pub. L. 115–91). The enhanced ability to obtain source selection information for actions over $10 million by submitting questions is voluntary. The rule is expected to have a beneficial impact on small entities by increasing the transparency of the award decision process. Obtaining such additional information may be helpful to entities competing on future actions. Data obtained from the Federal Procurement Data System for FY 2018, 2019, and 2020 indicate that DoD awarded an average of approximately 5,534 negotiated awards and delivery or task orders per year valued between $10 and $100 million. Of those actions, an average of 3,994 were awarded to approximately 1,543 unique small entities and 1,311 nontraditional contractors. Based upon that data, approximately 1,543 unique small entities will have the opportunity to request and obtain enhanced debriefing information if desired. This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the proposed rule that would meet the requirements of the statute. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018–D009), in correspondence. VII. Paperwork Reduction Act The rule does not contain information collection requirements that require the approval of the Office of Management E:\FR\FM\20MYP1.SGM 20MYP1 Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Parts 212, 215, 216, 233, and 252 Government procurement. Jennifer D. Johnson, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are proposed to be amended as follows: ■ 1. The authority citation for parts 212, 215, 216, 233, and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 212—ACQUISITION OF COMMERCIAL ITEMS 2. Amend section 212.301 by— a. Adding paragraph (f)(vi)(F); b. Redesignating paragraph (f)(xviio) as (f)(xvii); ■ c. Redesignating paragraphs (f)(vii) through (xviii) as (f)(viii) through (xix); and ■ d. Adding new paragraph (f)(vii). The additions read as follows: ■ ■ ■ 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (f) * * * (vi) * * * (F) Use the provision at 252.215– 70XX, Notification to Offerors— Postaward Debriefings, as prescribed in 215.570, to comply with section 818 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91). (vii) Part 216—Types of Contracts. Use the clause at 252.216–70YY, Postaward Debriefings for Task Orders and Delivery Orders, as prescribed in 216.506(S–71), to comply with section 818 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91). * * * * * PART 215—CONTRACTING BY NEGOTIATION Postaward debriefing of offerors. (b) Notwithstanding FAR 15.506(b), when requested, a written or oral debriefing is required when awarding a contract valued at $10 million or more (section 818 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91)). VerDate Sep<11>2014 16:57 May 19, 2021 Jkt 253001 215.570 Solicitation provision. Use the provision at 252.215–70XX, Notification to Offerors—Postaward Debriefings, in competitive negotiated solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items. PART 216—TYPES OF CONTRACTS 3. Amend section 215.506 by— a. Adding paragraphs (b) and (d); and b. Adding paragraph (S–70) to follow paragraph (e). The additions read as follows: ■ ■ ■ 215.506 (d) In addition to the requirements of FAR 15.506(d), the minimum debriefing information shall include the following: (i) For award of a contract in excess of $10 million and not in excess of $100 million with a small business or nontraditional defense contractor, an option for the small business or nontraditional defense contractor to request disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award. (ii) For award of a contract in excess of $100 million, disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award. * * * * * (S–70) When providing a required postaward debriefing to successful and unsuccessful offerors, contracting officers shall— (1) Provide an opportunity to submit additional written questions related to the required debriefing within 2 business days after receiving the debriefing; the agency shall respond in writing to timely submitted additional questions within 5 business days after receipt of the questions; and (2) Not consider the postaward debriefing to be concluded until— (i) After the second business day after delivering the debriefing, if no additional questions are received; or (ii) The agency delivers its written responses to timely submitted additional questions. ■ 4. Add section 215.570 to subpart 215.5 to read as follows: 5. Amend section 216.505 by adding paragraphs (b)(6) introductory text and (b)(6)(ii) to read as follows: ■ 216.505 Ordering. (b) * * * (6) Postaward notices and debriefing of awardees for orders exceeding $6 million. In addition to the notice required at FAR 16.505(b)(6), a written or oral postaward debriefing of successful and unsuccessful awardees is required for task orders and delivery PO 00000 Frm 00077 Fmt 4702 Sfmt 4702 27357 orders valued at $10 million or higher (section 818 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115–91)). (ii) Follow the procedures at 215.506 when providing the postaward debriefing to successful and unsuccessful awardees for task orders or delivery orders valued at $10 million or higher. ■ 6. Amend section 216.506 by adding paragraph (S–71) to read as follows: 216.506 Solicitation provisions and contract clauses. * * * * * (S–71) Use the clause at 252.216– 70YY, Postaward Debriefings for Task Orders and Delivery Orders, in competitive negotiated solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when a multiple-award contract is contemplated. PART 233—PROTESTS, DISPUTES, AND APPEALS 233.102 [Amended] 7. Amend section 233.102 by removing ‘‘Government Accountability Office’’ and adding ‘‘Government Accountability Office (GAO)’’ in its place. ■ 8. Add section 233.104 to subpart 233.1 to read as follows: ■ 233.104 Protests to GAO. (c)(1) In lieu of the time periods in FAR 33.104(c)(1), contracting officers shall immediately suspend performance or terminate the awarded contract, task order, or delivery order upon notice from the GAO of a protest filed within the time periods listed below, whichever is later, except as provided in FAR 33.104(c)(2) and (3)— (A) Within 10 days after the date of awarding a contract or issuing a task order or delivery order, where the value of the order exceeds $25 million (10 U.S.C. 2304c(e)); (B) Within 5 days after the date that was offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, and the unsuccessful offeror submits no additional questions related to the debriefing; (C) Within 5 days after the date that was offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, if the debriefing date offered is not accepted; or (D) Within 5 days commencing on the day the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, E:\FR\FM\20MYP1.SGM 20MYP1 27358 Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules when a requested and required debriefing is held on the date offered (31 U.S.C. 3553). 233.171 [Amended] 9. Amend section 233.171 by removing ‘‘Government Accountability Office’’ and adding ‘‘GAO’’ in its place. ■ PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 10. Add section 252.215–70XX to read as follows: ■ 252.215–70XX Notification to Offerors— Postaward Debriefings. As prescribed in 215.570, use the following provision: Notification to Offerors—Postaward Debriefings (DATE) (a) Definition. As used in this provision— Nontraditional defense contractor means an entity that is not currently performing and has not performed any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement (10 U.S.C. 2302(9)). (b) Postaward debriefing. (1) Upon timely request, the Government will provide a written or oral postaward debriefing for contracts valued at $10 million or higher to the Offeror, while protecting the confidential and proprietary information of other offerors. The request is considered timely if requested within 3 days of notification of contract award. (2) When required, the minimum postaward debriefing information will include the following: (i) For contracts in excess of $10 million and not in excess of $100 million with a small business or nontraditional defense contractor, an option for the small business or nontraditional defense contractor to request disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award. (ii) For contracts in excess of $100 million, disclosure of the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award. (3) If a postaward debriefing is provided— (i) The debriefed Offeror may submit additional written questions related to the required and provided debriefing within 2 business days after receiving the debriefing; the agency will respond in writing to timely submitted additional questions within 5 business days after receipt; and (ii) The postaward debriefing will not be considered to be concluded until— (A) After the second business day after the agency delivered the debriefing, if no additional written questions were submitted by the debriefed Offeror, or VerDate Sep<11>2014 17:44 May 19, 2021 Jkt 253001 (B) The agency delivers its written responses to timely submitted additional questions. (c) Contract performance. The Government may suspend performance of or terminate the awarded contract upon notice from the Government Accountability Office of a protest filed within the time periods listed in paragraphs (c)(1) through (4) of this provision, whichever is later: (1) Within 10 days after the date of contract award. (2) Within 5 days after the offered date for a debriefing to an unsuccessful offeror that is timely requested, and when requested is required, if the unsuccessful offeror submits no additional questions related to the debriefing. (3) Within 5 days after the offered date for a debriefing to an unsuccessful offeror that is timely requested, and when requested is required, if the debriefing date offered is not accepted. (4) Within 5 days after the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered. paragraphs (b)(1) through (4) of this clause, whichever is later: (1) Within 10 days after the date of issuance of a task order or delivery order, where the value of the order exceeds $25 million (10 U.S.C. 2304c(e)). (2) Within 5 days after the offered date for a debriefing to an unsuccessful contractor that is timely requested, and when requested is required, if the unsuccessful contractor submits no additional questions related to the debriefing. (3) Within 5 days after the offered date for a debriefing to an unsuccessful contractor that is timely requested, and when requested is required, if the debriefing date offered is not accepted. (4) Within 5 days after the Government delivers its written response to additional questions timely submitted by the unsuccessful contractor, when a requested and required debriefing is held on the date offered (31 U.S.C. 3553). (End of provision) ■ 11. Add section 252.216–70YY to read as follows: DEPARTMENT OF DEFENSE (End of clause) [FR Doc. 2021–10581 Filed 5–19–21; 8:45 am] BILLING CODE 5001–06–P Defense Acquisition Regulations System 252.216–70YY Postaward Debriefings for Task Orders and Delivery Orders. 48 CFR Parts 215, 236, 242, and 252 As prescribed at 216.506(S–71), use the following clause: [Docket DARS–2020–0040] Postaward Debriefings for Task Orders and Delivery Orders (DATE) (a) Postaward debriefing. (1) Upon timely request, the Government will provide a written or oral postaward debriefing for task orders or delivery orders valued at $10 million or higher to the Contractor, regardless of whether the Contractor’s offer for the order was successful or unsuccessful, while protecting the confidential and proprietary information of other contractors. The request is considered timely if requested within 3 days of notification of task order or delivery order award. (2) If a postaward debriefing is provided— (i) The debriefed Contractor may submit additional written questions related to the required and provided debriefing within 2 business days after receiving the debriefing; the agency will respond in writing to timely submitted additional questions within 5 business days after receipt; and (ii) The postaward debriefing will not be considered to be concluded until— (A) After the second business day after the agency delivered the debriefing, if no additional written questions were submitted by the debriefed Contractor; or (B) The agency delivers its written responses to timely submitted additional questions. (b) Task order or delivery order performance. The Government may suspend performance of or terminate the awarded task order or delivery order, upon notice from the Government Accountability Office of a protest filed within the time periods listed in PO 00000 Frm 00078 Fmt 4702 Sfmt 4702 RIN 0750–AK16 Defense Federal Acquisition Regulation Supplement: Past Performance of Subcontractors and Joint Venture Partners (DFARS Case 2018–D055) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. AGENCY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2019 that establishes a requirement for use of the best available information regarding past performance of subcontractors and joint venture partners when awarding DoD contracts for construction and architect-engineer services. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before July 19, 2021, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2018–D055, using any of the following methods: Æ Federal eRulemaking Portal: https://www.regulations.gov. Search for SUMMARY: E:\FR\FM\20MYP1.SGM 20MYP1

Agencies

[Federal Register Volume 86, Number 96 (Thursday, May 20, 2021)]
[Proposed Rules]
[Pages 27354-27358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10581]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 215, 216, 233, and 252

[Docket DARS-2021-0010]
RIN 0750-AJ73


Defense Federal Acquisition Regulation Supplement: Postaward 
Debriefings (DFARS Case 2018-D009)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2018 that provides enhanced 
postaward debriefing rights under negotiated contracts, task orders, 
and delivery orders.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before July 19, 2021, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2018-D009, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2018-D009''. Select ``Comment Now'' and follow 
the instructions provided to submit a Comment. Please include ``DFARS 
Case 2018-D009'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2018-D009 in 
the subject line of the message.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Kimberly Ziegler, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting (except allow 30 days for posting of comments 
submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Ziegler, telephone 571-
372-6095.

SUPPLEMENTARY INFORMATION:

[[Page 27355]]

I. Background

    DoD is proposing to amend the DFARS to implement section 818 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 
(Pub. L. 115-91). Section 818 amends 10 U.S.C. 2305 to enhance 
postaward debriefing rights for competitive negotiated contracts, task 
orders, and delivery orders that exceed $10 million and to provide 
offerors the opportunity, upon receiving a postaward debriefing, to 
submit follow-up questions related to the debriefing and to receive 
agency responses. Section 818 also amends 31 U.S.C. 3553(d) to extend 
the timeframe during which the contracting officer shall immediately 
suspend contract performance or terminate the awarded contract if a 
protest is filed. Section 818(a)(4) requires robust procedures, 
consistent with 10 U.S.C. 2305(b)(5)(D), that must preclude point-by-
point comparisons of the debriefed offeror's offer with other offers 
and may not disclose any information that is exempt from disclosure 
under 5 U.S.C. 552(b). There is sufficient existing policy in FAR 
3.104-4, Disclosure, protection, and marking of contractor bid or 
proposal information and source selection information; therefore, no 
additional DFARS changes are required in this regard.

II. Discussion and Analysis

    The following changes to the DFARS are proposed to implement 
section 818 of the NDAA for FY 2018:
    DFARS 215.506 implements new requirements for contracting officers 
when providing postaward debriefings, stipulating the requirements for 
information to be provided to successful and unsuccessful offerors. 
DFARS 215.506(S-70) outlines the debriefing process, which provides the 
opportunity for offerors to submit written follow-up questions within 
two business days after receiving the debriefing, as well as 
requirements for the agency to respond in writing to the timely 
submitted follow-up questions within five business days after receipt 
of the questions. DFARS 215.506(S-70)(2) ensures contracting officers 
do not consider the postaward debriefing to be concluded until the 
agency delivers its written response to an offeror.
    DFARS 215.506(b) informs contracting officers that notwithstanding 
FAR 15.506(b), when requested, a written or oral debriefing is required 
for all contracts valued at $10 million or more.
    DFARS 215.506(d)(i) and (ii) specify the following: (1) for 
contract awards in excess of $10 million, and not in excess of $100 
million, with a small business or nontraditional defense contractor (as 
defined in DFARS 201.101), the debriefing information must include the 
option for a small business or nontraditional defense contractor to 
request the disclosure of the written source selection decision 
document, redacted to protect the confidential and proprietary 
information of other offerors; and (2) for the award of a contract in 
excess of $100 million, the debriefing information must include the 
disclosure of the written source selection decision document, redacted 
accordingly.
    DFARS 216.505(b)(6) informs contracting officers that, in addition 
to the notice required at FAR 16.505(b)(6), a written or oral 
debriefing is required for task and delivery orders valued at $10 
million or more. Paragraph (b)(6)(ii) directs contracting officers to 
follow the procedures in DFARS 215.506 when providing postaward 
debriefings to successful and unsuccessful awardees for task or 
delivery orders valued at $10 million or more.
    Paragraph (c)(1) in DFARS 233.104, notifies contracting officers of 
the new timeframes for the suspension of performance or termination of 
a contract, task order, or delivery order awarded, upon notification 
from the General Accountability Office (GAO) of a protest filed within 
the following time periods, whichever is later:
     Within 10 days after the date of contract award or the 
issuance of a task or delivery order, where the value of the order 
exceeds $25 million.
     Within 5 days after the date that is offered to an 
unsuccessful offeror for a debriefing that is requested, and when 
requested is required, and the unsuccessful offeror submits no 
additional questions related to the debriefing.
     Within 5 days after the date that is offered to an 
unsuccessful offeror for a debriefing that is requested, and when 
requested is required, if the debriefing date offered is not accepted.
     Within 5 days, commencing on the day the Government 
delivers its written response to additional questions timely submitted 
by the unsuccessful offeror, when a requested and required debriefing 
is held on the date offered.
    A new solicitation provision is added at DFARS 252.215-70XX, 
Notification to Offerors--Postaward Debriefings, for use in competitive 
negotiated solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items. The solicitation 
provision informs offerors of the new enhanced postaward debriefing 
requirements for contracts valued at $10 million or higher. The 
prescription for the provision is added at DFARS 215.570. The provision 
is also listed at DFARS 212.301(f)(vi) for use in the acquisition of 
commercial items.
    The proposed rule adds a new contract clause at DFARS 252.216-70YY, 
Postaward Debriefings for Task Orders and Delivery Orders, for use in 
multiple-award contracts. The clause informs multiple-award contractors 
of the new enhanced postaward debriefing requirements for task orders 
and delivery orders. The clause is prescribed in paragraph (S-71) at 
DFARS 216.506 and is listed at DFARS 212.301, new paragraph (f)(vii), 
for use in the acquisition of commercial items.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This proposed rule implements section 818 of the NDAA for FY 2018. 
Section 818 requires that DoD provide successful and unsuccessful 
offerors the opportunity for enhanced postaward debriefings. The rule 
adds one new solicitation provision at 252.215-70XX, Notification to 
Offerors--Postaward Debriefings, for use in competitive negotiated 
solicitations, and one new contract clause at 252.216-70YY, Postaward 
Debriefings for Task Orders and Delivery Orders, for use in multiple-
award contracts.
    DoD does not intend to apply this rule to contracts and 
subcontracts valued at or below the SAT. DoD intends to apply this rule 
to commercial items, including COTS items, for the reasons described in 
section III.C. of this preamble.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT)

    41 U.S.C 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 41 
U.S.C. 1905 provides that if a provision of law contains criminal or 
civil penalties, or if the Federal Acquisition Regulatory (FAR) Council 
makes a determination that it is not in the best interest of the 
Federal Government to exempt contracts or subcontracts at or below the 
SAT, the law will apply to them. The Principal Director, Defense 
Pricing and Contracting (DPC), is the appropriate authority to make 
comparable determinations for regulations to be published in the DFARS, 
which is part of the FAR system of regulations.

[[Page 27356]]

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including Commercially Available Off-the-Shelf (COTS) Items

    10 U.S.C. 2375 governs the applicability of laws to DoD contracts 
and subcontracts for the acquisition of commercial items, including 
COTS items, and is intended to limit the applicability of laws to 
contracts for the acquisition of commercial items, including COTS 
items. 10 U.S.C. 2375 provides that if a provision of law contains 
criminal or civil penalties, or if the Under Secretary of Defense for 
Acquisition and Sustainment (USD(A&S)) makes a written determination 
that it is not in the best interest of the Federal Government to exempt 
commercial item contracts, the provision of law will apply to contracts 
for the acquisition of commercial items. Due to delegations of 
authority from USD(A&S), the Principal Director, DPC is the appropriate 
authority to make this determination.

C. Determination

    DoD is proposing to not apply the requirements of section 818 to 
contracts at or below the SAT, since the requirements apply to 
contracts valued at $10 million or higher. The section 818 requirements 
will apply to negotiated procurements and contracts for the acquisition 
of commercial items, including COTS items.
    DoD plans to make a determination to apply this statute to 
acquisitions for commercial items, including COTS items. It is not in 
the best interest of the Federal Government to exempt application of 
this rule to commercial items, including COTS items, for the following 
reasons. Implementation of section 818 affords offerors the opportunity 
for enhanced postaward debriefings for contracts and task or delivery 
orders that exceed $10 million. Implementation provides offerors the 
opportunity, upon receiving a postaward debriefing, to submit follow-up 
questions related to the debriefing and to receive agency responses. 
These enhanced postaward debriefing requirements will assist in 
developing small business capabilities, provide increased 
participation, and promote competition. Properly conducted postaward 
debriefings with this enhanced transparency may minimize the number of 
unnecessary protests filed while strengthening relationships between 
DoD and industry.
    Applying these requirements to the acquisition of commercial items 
does not increase the burden on offerors, since the rule only enhances 
existing requirements concerning postaward debriefings. Exclusion of 
acquisitions of commercial items, including COTS items, would greatly 
limit access to the benefits afforded to successful and unsuccessful 
offerors by the section 818 requirements.

VI. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
Under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. This rule is not 
anticipated to be a major rule under 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because this rule implements requirements primarily for the Government. 
However, an initial regulatory flexibility analysis has been performed 
and is summarized as follows:
    This rule proposes to amend the DFARS to implement section 818 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 
(Pub. L. 115-91). Section 818 provides offerors and contractors with 
significantly enhanced written or oral debriefing information for 
negotiated contracts and task or delivery orders that exceed $100 
million, and the opportunity for small entities and nontraditional 
contractors to obtain such information for awards that exceed $10 
million, but do not exceed $100 million, with small entities and 
nontraditional contractors.
    The objective of this proposed rule is to ensure contractors and 
offerors are provided a standard written or oral postaward debriefing 
at the dollar thresholds in the statute, while protecting the 
confidential and proprietary information of other offerors. The statute 
also provides direction to contracting officers when notified that a 
protest has been received by the Government Accountability Office. The 
legal basis for the rule is section 818 of the NDAA for FY 2018 (Pub. 
L. 115-91).
    The enhanced ability to obtain source selection information for 
actions over $10 million by submitting questions is voluntary. The rule 
is expected to have a beneficial impact on small entities by increasing 
the transparency of the award decision process. Obtaining such 
additional information may be helpful to entities competing on future 
actions.
    Data obtained from the Federal Procurement Data System for FY 2018, 
2019, and 2020 indicate that DoD awarded an average of approximately 
5,534 negotiated awards and delivery or task orders per year valued 
between $10 and $100 million. Of those actions, an average of 3,994 
were awarded to approximately 1,543 unique small entities and 1,311 
nontraditional contractors. Based upon that data, approximately 1,543 
unique small entities will have the opportunity to request and obtain 
enhanced debriefing information if desired.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known significant alternative approaches to the 
proposed rule that would meet the requirements of the statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D009), in 
correspondence.

VII. Paperwork Reduction Act

    The rule does not contain information collection requirements that 
require the approval of the Office of Management

[[Page 27357]]

and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 215, 216, 233, and 252

    Government procurement.

Jennifer D. Johnson,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are proposed to 
be amended as follows:

0
1. The authority citation for parts 212, 215, 216, 233, and 252 
continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 212.301 by--
0
a. Adding paragraph (f)(vi)(F);
0
b. Redesignating paragraph (f)(xviio) as (f)(xvii);
0
c. Redesignating paragraphs (f)(vii) through (xviii) as (f)(viii) 
through (xix); and
0
d. Adding new paragraph (f)(vii).
    The additions read as follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (f) * * *
    (vi) * * *
    (F) Use the provision at 252.215-70XX, Notification to Offerors--
Postaward Debriefings, as prescribed in 215.570, to comply with section 
818 of the National Defense Authorization Act for Fiscal Year 2018 
(Pub. L. 115-91).
    (vii) Part 216--Types of Contracts. Use the clause at 252.216-70YY, 
Postaward Debriefings for Task Orders and Delivery Orders, as 
prescribed in 216.506(S-71), to comply with section 818 of the National 
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91).
* * * * *

PART 215--CONTRACTING BY NEGOTIATION

0
3. Amend section 215.506 by--
0
a. Adding paragraphs (b) and (d); and
0
b. Adding paragraph (S-70) to follow paragraph (e).
    The additions read as follows:


215.506  Postaward debriefing of offerors.

    (b) Notwithstanding FAR 15.506(b), when requested, a written or 
oral debriefing is required when awarding a contract valued at $10 
million or more (section 818 of the National Defense Authorization Act 
for Fiscal Year 2018 (Pub. L. 115-91)).
    (d) In addition to the requirements of FAR 15.506(d), the minimum 
debriefing information shall include the following:
    (i) For award of a contract in excess of $10 million and not in 
excess of $100 million with a small business or nontraditional defense 
contractor, an option for the small business or nontraditional defense 
contractor to request disclosure of the agency's written source 
selection decision document, redacted to protect the confidential and 
proprietary information of other offerors for the contract award.
    (ii) For award of a contract in excess of $100 million, disclosure 
of the agency's written source selection decision document, redacted to 
protect the confidential and proprietary information of other offerors 
for the contract award.
* * * * *
    (S-70) When providing a required postaward debriefing to successful 
and unsuccessful offerors, contracting officers shall--
    (1) Provide an opportunity to submit additional written questions 
related to the required debriefing within 2 business days after 
receiving the debriefing; the agency shall respond in writing to timely 
submitted additional questions within 5 business days after receipt of 
the questions; and
    (2) Not consider the postaward debriefing to be concluded until--
    (i) After the second business day after delivering the debriefing, 
if no additional questions are received; or
    (ii) The agency delivers its written responses to timely submitted 
additional questions.
0
4. Add section 215.570 to subpart 215.5 to read as follows:


215.570  Solicitation provision.

    Use the provision at 252.215-70XX, Notification to Offerors--
Postaward Debriefings, in competitive negotiated solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items.

PART 216--TYPES OF CONTRACTS

0
5. Amend section 216.505 by adding paragraphs (b)(6) introductory text 
and (b)(6)(ii) to read as follows:


216.505  Ordering.

    (b) * * *
    (6) Postaward notices and debriefing of awardees for orders 
exceeding $6 million. In addition to the notice required at FAR 
16.505(b)(6), a written or oral postaward debriefing of successful and 
unsuccessful awardees is required for task orders and delivery orders 
valued at $10 million or higher (section 818 of the National Defense 
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91)).
    (ii) Follow the procedures at 215.506 when providing the postaward 
debriefing to successful and unsuccessful awardees for task orders or 
delivery orders valued at $10 million or higher.
0
6. Amend section 216.506 by adding paragraph (S-71) to read as follows:


216.506  Solicitation provisions and contract clauses.

* * * * *
    (S-71) Use the clause at 252.216-70YY, Postaward Debriefings for 
Task Orders and Delivery Orders, in competitive negotiated 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
when a multiple-award contract is contemplated.

PART 233--PROTESTS, DISPUTES, AND APPEALS


233.102  [Amended]

0
7. Amend section 233.102 by removing ``Government Accountability 
Office'' and adding ``Government Accountability Office (GAO)'' in its 
place.
0
8. Add section 233.104 to subpart 233.1 to read as follows:


233.104  Protests to GAO.

    (c)(1) In lieu of the time periods in FAR 33.104(c)(1), contracting 
officers shall immediately suspend performance or terminate the awarded 
contract, task order, or delivery order upon notice from the GAO of a 
protest filed within the time periods listed below, whichever is later, 
except as provided in FAR 33.104(c)(2) and (3)--
    (A) Within 10 days after the date of awarding a contract or issuing 
a task order or delivery order, where the value of the order exceeds 
$25 million (10 U.S.C. 2304c(e));
    (B) Within 5 days after the date that was offered to an 
unsuccessful offeror for a debriefing that is requested, and when 
requested is required, and the unsuccessful offeror submits no 
additional questions related to the debriefing;
    (C) Within 5 days after the date that was offered to an 
unsuccessful offeror for a debriefing that is requested, and when 
requested is required, if the debriefing date offered is not accepted; 
or
    (D) Within 5 days commencing on the day the Government delivers its 
written response to additional questions timely submitted by the 
unsuccessful offeror,

[[Page 27358]]

when a requested and required debriefing is held on the date offered 
(31 U.S.C. 3553).


233.171  [Amended]

0
9. Amend section 233.171 by removing ``Government Accountability 
Office'' and adding ``GAO'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
10. Add section 252.215-70XX to read as follows:


252.215-70XX   Notification to Offerors--Postaward Debriefings.

    As prescribed in 215.570, use the following provision:

Notification to Offerors--Postaward Debriefings (DATE)

    (a) Definition. As used in this provision--
    Nontraditional defense contractor means an entity that is not 
currently performing and has not performed any contract or 
subcontract for DoD that is subject to full coverage under the cost 
accounting standards prescribed pursuant to 41 U.S.C. 1502 and the 
regulations implementing such section, for at least the 1-year 
period preceding the solicitation of sources by DoD for the 
procurement (10 U.S.C. 2302(9)).
    (b) Postaward debriefing. (1) Upon timely request, the 
Government will provide a written or oral postaward debriefing for 
contracts valued at $10 million or higher to the Offeror, while 
protecting the confidential and proprietary information of other 
offerors. The request is considered timely if requested within 3 
days of notification of contract award.
    (2) When required, the minimum postaward debriefing information 
will include the following:
    (i) For contracts in excess of $10 million and not in excess of 
$100 million with a small business or nontraditional defense 
contractor, an option for the small business or nontraditional 
defense contractor to request disclosure of the agency's written 
source selection decision document, redacted to protect the 
confidential and proprietary information of other offerors for the 
contract award.
    (ii) For contracts in excess of $100 million, disclosure of the 
agency's written source selection decision document, redacted to 
protect the confidential and proprietary information of other 
offerors for the contract award.
    (3) If a postaward debriefing is provided--
    (i) The debriefed Offeror may submit additional written 
questions related to the required and provided debriefing within 2 
business days after receiving the debriefing; the agency will 
respond in writing to timely submitted additional questions within 5 
business days after receipt; and
    (ii) The postaward debriefing will not be considered to be 
concluded until--
    (A) After the second business day after the agency delivered the 
debriefing, if no additional written questions were submitted by the 
debriefed Offeror, or
    (B) The agency delivers its written responses to timely 
submitted additional questions.
    (c) Contract performance. The Government may suspend performance 
of or terminate the awarded contract upon notice from the Government 
Accountability Office of a protest filed within the time periods 
listed in paragraphs (c)(1) through (4) of this provision, whichever 
is later:
    (1) Within 10 days after the date of contract award.
    (2) Within 5 days after the offered date for a debriefing to an 
unsuccessful offeror that is timely requested, and when requested is 
required, if the unsuccessful offeror submits no additional 
questions related to the debriefing.
    (3) Within 5 days after the offered date for a debriefing to an 
unsuccessful offeror that is timely requested, and when requested is 
required, if the debriefing date offered is not accepted.
    (4) Within 5 days after the Government delivers its written 
response to additional questions timely submitted by the 
unsuccessful offeror, when a requested and required debriefing is 
held on the date offered.


(End of provision)

0
11. Add section 252.216-70YY to read as follows:


252.216-70YY   Postaward Debriefings for Task Orders and Delivery 
Orders.

    As prescribed at 216.506(S-71), use the following clause:

Postaward Debriefings for Task Orders and Delivery Orders (DATE)

    (a) Postaward debriefing. (1) Upon timely request, the 
Government will provide a written or oral postaward debriefing for 
task orders or delivery orders valued at $10 million or higher to 
the Contractor, regardless of whether the Contractor's offer for the 
order was successful or unsuccessful, while protecting the 
confidential and proprietary information of other contractors. The 
request is considered timely if requested within 3 days of 
notification of task order or delivery order award.
    (2) If a postaward debriefing is provided--
    (i) The debriefed Contractor may submit additional written 
questions related to the required and provided debriefing within 2 
business days after receiving the debriefing; the agency will 
respond in writing to timely submitted additional questions within 5 
business days after receipt; and
    (ii) The postaward debriefing will not be considered to be 
concluded until--
    (A) After the second business day after the agency delivered the 
debriefing, if no additional written questions were submitted by the 
debriefed Contractor; or
    (B) The agency delivers its written responses to timely 
submitted additional questions.
    (b) Task order or delivery order performance. The Government may 
suspend performance of or terminate the awarded task order or 
delivery order, upon notice from the Government Accountability 
Office of a protest filed within the time periods listed in 
paragraphs (b)(1) through (4) of this clause, whichever is later:
    (1) Within 10 days after the date of issuance of a task order or 
delivery order, where the value of the order exceeds $25 million (10 
U.S.C. 2304c(e)).
    (2) Within 5 days after the offered date for a debriefing to an 
unsuccessful contractor that is timely requested, and when requested 
is required, if the unsuccessful contractor submits no additional 
questions related to the debriefing.
    (3) Within 5 days after the offered date for a debriefing to an 
unsuccessful contractor that is timely requested, and when requested 
is required, if the debriefing date offered is not accepted.
    (4) Within 5 days after the Government delivers its written 
response to additional questions timely submitted by the 
unsuccessful contractor, when a requested and required debriefing is 
held on the date offered (31 U.S.C. 3553).


(End of clause)

[FR Doc. 2021-10581 Filed 5-19-21; 8:45 am]
BILLING CODE 5001-06-P