Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009), 15808-15812 [2022-05531]
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Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations
A. Summary of Significant Changes
From the Proposed Rule
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
B. Analysis of Public Comments
1. Support for the Rule
DoD is issuing a final rule
amending 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: Effective March 18, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly Ziegler, telephone 571–372–
6095.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background
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DoD published a proposed rule in the
Federal Register at 86 FR 27354 on May
20, 2021, 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)(4) to delay the beginning
of the timeframe during which the
contracting officer shall immediately
suspend contract performance or
terminate the awarded contract if a
protest is filed. These changes may also
impact the timeframe for filing a timely
protest. Four respondents submitted
public comments in response to the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments and the
changes made to the rule as a result of
those comments is provided, as follows:
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Edits were made to the proposed rule
to clarify the time periods for
requesting, delivering, and completing
the postaward debriefing, including the
impact of additional questions on the
timely submission of protests to the
Government Accountability Office
(GAO). Conforming edits were made to
the time periods associated with
protests to the GAO and in the
solicitation provision and contract
clause.
Comment: Some respondents
supported the rule.
Response: DoD acknowledges the
support.
2. Clarification of Protest Timeline
Comment: Some respondents
requested that DoD clarify the timelines
for additional questions as it pertains to
the protest window.
Response: DoD has simplified the text
throughout the final rule to address
potential confusion and adopt the plain
language interpretation in Nika
Technologies Inc. v. United States,
United States Court of Appeals for the
Federal Circuit, decided February 4,
2021. The final rule is revised to clarify
that, for DoD, the 5-day protest window
at Federal Acquisition Regulation (FAR)
33.104 begins on the date that the
postaward debriefing is offered, unless
additional questions are received within
2 business days after the debriefing date.
If the agency receives timely additional
questions from the offeror, the agency
will respond in writing within 5
business days. Upon delivery of the
agency response, the 5-day protest
window will begin.
3. Expansion to Successful Offerors
Comment: One respondent expressed
concerns that the proposed rule expands
the requirement to provide a postaward
debriefing to successful offerors,
although section 818 only requires a
debriefing of disappointed offerors.
Response: The proposed rule does not
expand the requirement for postaward
debriefings to successful offerors,
because the FAR already provides for
postaward debriefings to both successful
and unsuccessful offerors at FAR
15.506(b).
4. Untimely Additional Questions
Comment: One respondent
recommended that additional questions
be permitted more than 2 days after the
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debriefing and answered voluntarily
without impacting the process.
Response: While contracting officers
have the discretion to voluntarily
answer questions received after the
postaward debriefing is concluded, the
statute requires a response to only those
questions received within 2 business
days after the postaward debriefing.
5. Source Selection Decision Document
Release
Comment: One respondent
recommended DoD provide the source
selection decision document prior to the
postaward debriefing, because it may
result in more relevant questions and
fewer requests for debriefings.
Response: The statute provides that
certain offerors requesting a debriefing
in accordance with FAR 15.506 are
eligible to receive a redacted source
selection decision document as part of
the postaward debriefing. As a result of
section 818, debriefed offerors will have
the opportunity to submit additional
follow-up questions about the
debriefing, including questions about
the source selection decision document.
6. Document Redaction Standards
Comment: One respondent expressed
concerns that the quality of redactions
is inconsistent and suggested that strict
standards be set for redacting source
selection documentation to protect
proprietary information before
implementing this policy change.
Response: Establishing additional
redaction guidelines beyond those
already in the FAR is outside scope of
this rule.
C. Other Changes
The final rule also—
• Corrects the location of the online
annual representations and
certifications in the System for Award
Management at DFARS 212.301(f) to
reflect https://www.sam.gov;
• Redesignates DFARS 216.506
paragraph (S–70) as 216.506–70
paragraph (a); and
• At 215.570 and 216.506–70 clarifies
that the prescriptions for the new
DFARS provision and clause apply to
acquisitions valued at $10 million or
more.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products Including Commercially
Available Off-the-Shelf (COTS) Items,
and for Commercial Services
This final rule creates one new
solicitation provision at 252.215–7016,
Notification to Offerors—Postaward
Debriefings, for use in competitive
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negotiated solicitations, and one new
contract clause at 252.216–7010,
Postaward Debriefings for Task Orders
and Delivery Orders, for use in
multiple-award contracts. DoD is not
applying the rule to contracts and
subcontracts valued at or below the
SAT. DoD is applying the rule to
contracts for the acquisition of
commercial products including COTS
items and for the acquisition of
commercial services.
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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 Council
(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. DoD
did not make that determination.
Therefore, this rule does not apply
below the SAT.
B. Applicability to Contracts for the
Acquisition of Commercial Products
Including Commercially Available Offthe-Shelf (COTS) Items and for the
Acquisition of Commercial Services
10 U.S.C. 2375 governs the
applicability of laws to DoD contracts
and subcontracts for the acquisition of
commercial products including COTS
items and for the acquisition of
commercial services, and is intended to
limit the applicability of laws to
contracts for the acquisition of
commercial products including COTS
items and for the acquisition of
commercial services. 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 product contracts
and commercial service contracts, the
provision of law will apply to contracts
for the acquisition of commercial
products and commercial services. Due
to delegations of authority from
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USD(A&S), the Principal Director, DPC
is the appropriate authority to make this
determination. DoD has made that
determination. Therefore, this rule does
apply to the acquisition of commercial
products including COTS items and to
the acquisition of commercial services,
if otherwise applicable.
C. Determination
Given that the requirements of section
818 apply to contracts valued at $10
million or higher, DoD will not apply
the requirements of section 818 to
contracts valued at or below the SAT.
However, DoD will apply the
requirements of section 818 to
negotiated procurements and contracts
for the acquisition of commercial
products including COTS items and for
the acquisition of commercial services.
It is not in the best interest of the
Federal Government to exempt
application of this rule to commercial
products including COTS items and to
commercial services, for the following
reasons. Implementation of section 818
affords offerors the opportunity for
enhanced postaward debriefings for
contracts, task orders, and 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 an agency response.
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 products and
commercial services does not increase
the burden on offerors, since the rule
only enhances existing requirements
concerning postaward debriefings.
Exclusion of acquisitions of commercial
products including COTS items and of
commercial services would greatly limit
access to the benefits afforded to
successful and unsuccessful offerors by
the section 818 requirements.
IV. 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
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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. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This rule amends the DFARS to
implement section 818 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2018 (Pub. L. 115–91),
which provides offerors and contractors
with significantly enhanced written or
oral debriefing information for
negotiated contracts and task orders or
delivery orders that exceed $100
million, and the opportunity for small
entities and nontraditional defense
contractors to obtain such information
for awards that exceed $10 million but
do not exceed $100 million.
The objective of the rule is to ensure
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.
There were no significant issues
raised by the public in response to the
initial regulatory flexibility analysis.
This rule is not expected to have a
significant economic impact on a
substantial number of small entities,
because the enhanced ability to obtain
source selection information for actions
over $10 million by submitting
questions is voluntary. However,
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obtaining such additional information
may be helpful to entities competing on
future actions.
Data obtained from the Federal
Procurement Data System for FYs 2018,
2019, and 2020 indicate that DoD
awarded an average of approximately
5,534 negotiated awards and delivery
orders 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
defense 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 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 rule that
would meet the requirements of the
statute.
VII. Paperwork Reduction Act
The rule does not contain information
collection requirements that require the
approval of the Office of Management
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,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 212, 215, 216,
233, and 252 are amended as follows:
■ 1. The authority citation for 48 CFR
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. In paragraph (f) introductory text,
removing ‘‘https://www.acquisition.gov’’
and adding ‘‘https://www.sam.gov’’ in
its place;
■ b. Adding paragraph (f)(vi)(F);
■ c. Redesignating paragraphs (f)(vii)
through (xviii) as paragraphs (f)(viii)
through (xix); and
■ d. Adding new paragraph (f)(vii).
The additions read as follows:
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■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
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(f) * * *
(vi) * * *
(F) Use the provision at 252.215–
7016, 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 252.216–7010,
Postaward Debriefings for Task Orders
and Delivery Orders, as prescribed in
216.506–70(b), to comply with section
818 of the National Defense
Authorization Act for Fiscal Year 2018
(Pub. L. 115–91).
*
*
*
*
*
business days after receiving the
postaward debriefing;
(b) Respond in writing to timely
submitted additional questions within 5
business days after receipt of the
questions; and
(c) Not consider the postaward
debriefing to be concluded until the
later of—
(1) The date that the postaward
debriefing is delivered, orally or in
writing; or
(2) If additional written questions
related to the debriefing are timely
received, the date the agency delivers its
written response.
■ 5. Add section 215.570 to read as
follows:
PART 215—CONTRACTING BY
NEGOTIATION
215.570
3. Amend section 215.506 by adding
paragraphs (b) and (d) to read as
follows:
■
215.506
Postaward debriefing of offerors.
(b) Notwithstanding FAR 15.506(b),
when requested by a successful or
unsuccessful offeror, a written or oral
debriefing is required for contract
awards 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.
*
*
*
*
*
■ 4. Add section 215.506–70 to read as
follows:
215.506–70
questions.
Opportunity for follow-up
When providing a required postaward
debriefing to successful and
unsuccessful offerors, contracting
officers shall—
(a) Provide an opportunity to submit
additional written questions related to
the required debriefing not later than 2
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Solicitation provision.
Use the provision at 252.215–7016,
Notification to Offerors—Postaward
Debriefings, in competitive negotiated
solicitations for contract awards valued
at $10 million or more, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items.
PART 216—TYPES OF CONTRACTS
6. 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 more
(section 818 of the National Defense
Authorization Act for Fiscal Year 2018
(Pub. L. 115–91)).
(ii) Follow the procedures at 215.506
and 215.506–70 when providing the
postaward debriefing to successful and
unsuccessful awardees for task orders or
delivery orders valued at $10 million or
more.
■ 7. Revise section 216.506 to read as
follows:
216.506 Solicitation provisions and
contract clauses.
8. Add section 216.506–70 to read as
follows:
■
216.506–70 Additional solicitation
provisions and contract clause.
(a) Use the provisions at 252.215–
7007, Notice of Intent to Resolicit, and
252.215–7008, Only One Offer, as
prescribed at 215.371–6 and 215.408(3),
respectively.
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(b) Use the clause at 252.216–7010,
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 and task orders or
delivery orders placed under the
contract may be valued at $10 million
or more.
PART 233—PROTESTS, DISPUTES,
AND APPEALS
233.102
[Amended]
9. Amend section 233.102 by
removing ‘‘Government Accountability
Office’’ and adding ‘‘Government
Accountability Office (GAO)’’ in its
place.
■
10. Add section 233.104 to read as
follows:
■
233.104
Protests to GAO.
(c) Protests after award. (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 in paragraphs (c)(1)(A) through
(D) of this section, whichever is later,
except as provided in FAR 33.104(c)(2)
and (3)—
(A) Within 10 days after the date of
contract award;
(B) Within 10 days after the date a
task order or delivery order is issued,
where the value exceeds $25 million (10
U.S.C. 2304c(e));
(C) Within 5 days after a debriefing
date offered to the protestor under a
timely debriefing request in accordance
with FAR 15.506 regardless of whether
the protestor rejected the offered
debriefing date, unless an earlier
debriefing date is negotiated as a result;
or
(D) Within 5 days after a postaward
debriefing under FAR 15.506 is
concluded in accordance with 215.506–
70(b).
233.171
[Amended]
11. Amend section 233.171 by
removing ‘‘Government Accountability
Office’’ and adding ‘‘GAO’’ in its place.
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■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
12. Add section 252.215–7016 to read
as follows:
■
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252.215–7016 Notification to Offerors—
Postaward Debriefings.
As prescribed in 215.570, use the
following provision:
Notification to Offerors—Postaward
Debriefings (Mar 2022)
(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 to successful or unsuccessful
offerors for contract awards valued at $10
million or more, while protecting the
confidential and proprietary information of
other offerors. The request is considered
timely if received 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 required postaward debriefing is
provided—
(i) The debriefed Offeror may submit
additional written questions related to the
debriefing not later than 2 business days after
the date of the debriefing;
(ii) The agency will respond in writing to
timely submitted additional questions within
5 business days after receipt by the
contracting officer; and
(iii) The postaward debriefing will not be
considered to be concluded until the later
of—
(A) The date that the postaward debriefing
is delivered, orally or in writing; or
(B) If additional written questions related
to the debriefing are timely received, the date
the agency delivers its written response.
(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 (3) of this
provision, whichever is later:
(1) Within 10 days after the date of contract
award.
(2) Within 5 days after a debriefing date
offered to the protestor under a timely
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debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506
unless an earlier debriefing date is negotiated
as a result.
(3) Within 5 days after a postaward
debriefing under FAR 15.506 is concluded in
accordance with Defense Federal Acquisition
Regulation Supplement 215.506–70(b).
(End of provision)
13. Add section 252.216–7010 to read
as follows:
■
252.216–7010 Postaward Debriefings for
Task Orders and Delivery Orders.
As prescribed at 216.506–70(b), use
the following clause:
Postaward Debriefings for Task Orders and
Delivery Orders (Mar 2022)
(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 more to the
Contractor, regardless of whether the
Contractor’s offer for the task order or
delivery order was successful or
unsuccessful, while protecting the
confidential and proprietary information of
other contractors. The request is considered
timely if received within 3 days of
notification of task order or delivery order
award.
(2) If a required 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 the date of the debriefing;
(ii) The agency will respond in writing to
timely submitted additional questions within
5 business days after receipt; and
(iii) The postaward debriefing will not be
considered to be concluded until the later
of—
(A) The date that the postaward debriefing
is delivered, orally or in writing; or
(B) If additional written questions related
to the debriefing are timely received, the date
the agency delivers its written response.
(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 (3) of this clause,
whichever is later:
(1) Within 10 days after the date a task
order or delivery order is issued, where the
value exceeds $25 million (10 U.S.C.
2304c(e)).
(2) Within 5 days after a debriefing date
offered to the protestor under a timely
debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506
unless an earlier debriefing date is negotiated
as a result.
(3) Within 5 days after a postaward
debriefing under FAR 15.506 is concluded in
accordance with Defense Federal Acquisition
Regulation Supplement 215.506–70(b).
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(End of clause)
B. Analysis of Public Comments
[FR Doc. 2022–05531 Filed 3–17–22; 8:45 am]
1. Support for the Rule
BILLING CODE 5001–06–P
Comment: The respondent supported
the rule and requested DoD publish the
final rule expeditiously.
Response: DoD acknowledges the
support.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
2. Expansion of the Statutory Criteria
48 CFR Part 204
[Docket DARS–2021–0017]
RIN 0750–AL48
Defense Federal Acquisition
Regulation Supplement: Contract
Closeout Authority for DoD Services
Contracts (DFARS Case 2021–D012)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2021.
DATES: Effective March 18, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly R. Ziegler, telephone 571–
372–6095.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 86 FR 48366 on
August 30, 2021, to implement section
820 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2021 (Pub. L. 116–283).
Section 820 authorizes DoD contracting
officers to close out certain physically
complete contracts or groups of contacts
through modification of such contracts,
without completing the requirements of
Federal Acquisition Regulation (FAR)
4.804–5(a)(3) through (15) based upon
the age of the contract action.
Two respondents submitted public
comments in response to the proposed
rule.
jspears on DSK121TN23PROD with RULES2
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments and the
changes made to the rule as a result of
those comments is provided, as follows:
A. Summary of Significant Changes
From the Proposed Rule
There are no changes from the
proposed rule as a result of public
comments.
VerDate Sep<11>2014
20:13 Mar 17, 2022
Jkt 256001
Comment: The respondent expressed
concern that the rule, as well as the
current DFARS text that implemented
the statutory direction in the NDAA for
FY 2017, reflects the language in section
820 of the FY 2021 NDAA. The
respondent asserts that the statutory
language will not achieve the intent of
Congress without further clarification.
Response: This final rule implements
the statutory authority provided in
section 820 of the NDAA for FY 2021.
There is nothing in the statute to
indicate Congress had any intent other
than the plain language meaning of that
section as stated. DoD previously
published a final rule at 84 FR 18153 on
April 30, 2019, to implement section
836 of the NDAA for FY 2017.
3. Additional Guidance for the
Workforce
Comment: The respondent
recommends DoD develop Procedures,
Guidance, and Information (PGI) for the
acquisition workforce that includes
additional guidance on the application
of the eligibility criteria and
establishment of costs.
Response: DoD has no indication that
the acquisition workforce requires an
update to the PGI on contract closeout.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Products Including Commercially
Available Off-the-Shelf (COTS) Items,
and for Commercial Services
This rule does not create any new
solicitation provisions or contract
clauses. It does not impact any existing
solicitation provisions or contract
clauses.
IV. Expected Impact of the Rule
DFARS 204.804(3)(i) currently
provides for the expedited closeout of
contracts or groups of contracts without
completion of a reconciliation audit or
other corrective actions required by FAR
4.804–5(a)(3) through (15) if certain
criteria are met. If a contract was
entered into at least 17 years prior to the
current fiscal year, is physically
complete, and has been determined not
reconcilable, the contracting officer may
close the contract through a negotiated
settlement.
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
This final rule reduces the age
requirement from 17 years to 10 years
for military construction and
shipbuilding and 7 years for all other
contract actions. The rule adds a new
requirement that these contracts must be
physically complete at least 4 years
prior to the current fiscal year.
The expanded authority will apply to
more recent contracts, subject to the
other criteria in DFARS 204.804(3)(i), to
reduce the current backlog and
administration requirements for
contracts eligible for closeout.
V. 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.
VI. 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. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD does not expect this 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, a final
regulatory flexibility analysis (FRFA)
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. The FRFA is summarized as
follows:
This rule amends the Defense Federal
Acquisition Regulation Supplement
E:\FR\FM\18MRR2.SGM
18MRR2
]]>Agencies
[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15808-15812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05531]
[[Page 15807]]
Vol. 87
Friday,
No. 53
March 18, 2022
Part IV
Department of Defense
-----------------------------------------------------------------------
Defense Acquisition Regulations System
-----------------------------------------------------------------------
48 CFR Parts 204, 208, 209, et al.
Defense Federal Acquisition Regulations; Final Rules and Proposed Rule
Federal Register / Vol. 87 , No. 53 / Friday, March 18, 2022 / Rules
and Regulations
[[Page 15808]]
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending 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: Effective March 18, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Ziegler, telephone 571-
372-6095.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 86 FR
27354 on May 20, 2021, 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)(4) to delay the beginning of the
timeframe during which the contracting officer shall immediately
suspend contract performance or terminate the awarded contract if a
protest is filed. These changes may also impact the timeframe for
filing a timely protest. Four respondents submitted public comments in
response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments and the changes made to the rule as
a result of those comments is provided, as follows:
A. Summary of Significant Changes From the Proposed Rule
Edits were made to the proposed rule to clarify the time periods
for requesting, delivering, and completing the postaward debriefing,
including the impact of additional questions on the timely submission
of protests to the Government Accountability Office (GAO). Conforming
edits were made to the time periods associated with protests to the GAO
and in the solicitation provision and contract clause.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Some respondents supported the rule.
Response: DoD acknowledges the support.
2. Clarification of Protest Timeline
Comment: Some respondents requested that DoD clarify the timelines
for additional questions as it pertains to the protest window.
Response: DoD has simplified the text throughout the final rule to
address potential confusion and adopt the plain language interpretation
in Nika Technologies Inc. v. United States, United States Court of
Appeals for the Federal Circuit, decided February 4, 2021. The final
rule is revised to clarify that, for DoD, the 5-day protest window at
Federal Acquisition Regulation (FAR) 33.104 begins on the date that the
postaward debriefing is offered, unless additional questions are
received within 2 business days after the debriefing date. If the
agency receives timely additional questions from the offeror, the
agency will respond in writing within 5 business days. Upon delivery of
the agency response, the 5-day protest window will begin.
3. Expansion to Successful Offerors
Comment: One respondent expressed concerns that the proposed rule
expands the requirement to provide a postaward debriefing to successful
offerors, although section 818 only requires a debriefing of
disappointed offerors.
Response: The proposed rule does not expand the requirement for
postaward debriefings to successful offerors, because the FAR already
provides for postaward debriefings to both successful and unsuccessful
offerors at FAR 15.506(b).
4. Untimely Additional Questions
Comment: One respondent recommended that additional questions be
permitted more than 2 days after the debriefing and answered
voluntarily without impacting the process.
Response: While contracting officers have the discretion to
voluntarily answer questions received after the postaward debriefing is
concluded, the statute requires a response to only those questions
received within 2 business days after the postaward debriefing.
5. Source Selection Decision Document Release
Comment: One respondent recommended DoD provide the source
selection decision document prior to the postaward debriefing, because
it may result in more relevant questions and fewer requests for
debriefings.
Response: The statute provides that certain offerors requesting a
debriefing in accordance with FAR 15.506 are eligible to receive a
redacted source selection decision document as part of the postaward
debriefing. As a result of section 818, debriefed offerors will have
the opportunity to submit additional follow-up questions about the
debriefing, including questions about the source selection decision
document.
6. Document Redaction Standards
Comment: One respondent expressed concerns that the quality of
redactions is inconsistent and suggested that strict standards be set
for redacting source selection documentation to protect proprietary
information before implementing this policy change.
Response: Establishing additional redaction guidelines beyond those
already in the FAR is outside scope of this rule.
C. Other Changes
The final rule also--
Corrects the location of the online annual representations
and certifications in the System for Award Management at DFARS
212.301(f) to reflect https://www.sam.gov;
Redesignates DFARS 216.506 paragraph (S-70) as 216.506-70
paragraph (a); and
At 215.570 and 216.506-70 clarifies that the prescriptions
for the new DFARS provision and clause apply to acquisitions valued at
$10 million or more.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products Including Commercially
Available Off-the-Shelf (COTS) Items, and for Commercial Services
This final rule creates one new solicitation provision at 252.215-
7016, Notification to Offerors--Postaward Debriefings, for use in
competitive
[[Page 15809]]
negotiated solicitations, and one new contract clause at 252.216-7010,
Postaward Debriefings for Task Orders and Delivery Orders, for use in
multiple-award contracts. DoD is not applying the rule to contracts and
subcontracts valued at or below the SAT. DoD is applying the rule to
contracts for the acquisition of commercial products including COTS
items and for the acquisition of commercial services.
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 Council (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. DoD did not make that
determination. Therefore, this rule does not apply below the SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Products Including Commercially Available Off-the-Shelf (COTS) Items
and for the Acquisition of Commercial Services
10 U.S.C. 2375 governs the applicability of laws to DoD contracts
and subcontracts for the acquisition of commercial products including
COTS items and for the acquisition of commercial services, and is
intended to limit the applicability of laws to contracts for the
acquisition of commercial products including COTS items and for the
acquisition of commercial services. 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 product contracts and
commercial service contracts, the provision of law will apply to
contracts for the acquisition of commercial products and commercial
services. Due to delegations of authority from USD(A&S), the Principal
Director, DPC is the appropriate authority to make this determination.
DoD has made that determination. Therefore, this rule does apply to the
acquisition of commercial products including COTS items and to the
acquisition of commercial services, if otherwise applicable.
C. Determination
Given that the requirements of section 818 apply to contracts
valued at $10 million or higher, DoD will not apply the requirements of
section 818 to contracts valued at or below the SAT. However, DoD will
apply the requirements of section 818 to negotiated procurements and
contracts for the acquisition of commercial products including COTS
items and for the acquisition of commercial services.
It is not in the best interest of the Federal Government to exempt
application of this rule to commercial products including COTS items
and to commercial services, for the following reasons. Implementation
of section 818 affords offerors the opportunity for enhanced postaward
debriefings for contracts, task orders, and 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 an agency response. 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
products and commercial services does not increase the burden on
offerors, since the rule only enhances existing requirements concerning
postaward debriefings. Exclusion of acquisitions of commercial products
including COTS items and of commercial services would greatly limit
access to the benefits afforded to successful and unsuccessful offerors
by the section 818 requirements.
IV. 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. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This rule amends the DFARS to implement section 818 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L.
115-91), which provides offerors and contractors with significantly
enhanced written or oral debriefing information for negotiated
contracts and task orders or delivery orders that exceed $100 million,
and the opportunity for small entities and nontraditional defense
contractors to obtain such information for awards that exceed $10
million but do not exceed $100 million.
The objective of the rule is to ensure 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.
There were no significant issues raised by the public in response
to the initial regulatory flexibility analysis.
This rule is not expected to have a significant economic impact on
a substantial number of small entities, because the enhanced ability to
obtain source selection information for actions over $10 million by
submitting questions is voluntary. However,
[[Page 15810]]
obtaining such additional information may be helpful to entities
competing on future actions.
Data obtained from the Federal Procurement Data System for FYs
2018, 2019, and 2020 indicate that DoD awarded an average of
approximately 5,534 negotiated awards and delivery orders 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 defense 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 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 rule
that would meet the requirements of the statute.
VII. Paperwork Reduction Act
The rule does not contain information collection requirements that
require the approval of the Office of Management 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,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR 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. In paragraph (f) introductory text, removing ``https://www.acquisition.gov'' and adding ``https://www.sam.gov'' in its place;
0
b. Adding paragraph (f)(vi)(F);
0
c. Redesignating paragraphs (f)(vii) through (xviii) as paragraphs
(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 252.215-7016, 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 252.216-7010,
Postaward Debriefings for Task Orders and Delivery Orders, as
prescribed in 216.506-70(b), 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 adding paragraphs (b) and (d) to read as
follows:
215.506 Postaward debriefing of offerors.
(b) Notwithstanding FAR 15.506(b), when requested by a successful
or unsuccessful offeror, a written or oral debriefing is required for
contract awards 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.
* * * * *
0
4. Add section 215.506-70 to read as follows:
215.506-70 Opportunity for follow-up questions.
When providing a required postaward debriefing to successful and
unsuccessful offerors, contracting officers shall--
(a) Provide an opportunity to submit additional written questions
related to the required debriefing not later than 2 business days after
receiving the postaward debriefing;
(b) Respond in writing to timely submitted additional questions
within 5 business days after receipt of the questions; and
(c) Not consider the postaward debriefing to be concluded until the
later of--
(1) The date that the postaward debriefing is delivered, orally or
in writing; or
(2) If additional written questions related to the debriefing are
timely received, the date the agency delivers its written response.
0
5. Add section 215.570 to read as follows:
215.570 Solicitation provision.
Use the provision at 252.215-7016, Notification to Offerors--
Postaward Debriefings, in competitive negotiated solicitations for
contract awards valued at $10 million or more, including solicitations
using FAR part 12 procedures for the acquisition of commercial items.
PART 216--TYPES OF CONTRACTS
0
6. 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 more (section 818 of the National Defense
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91)).
(ii) Follow the procedures at 215.506 and 215.506-70 when providing
the postaward debriefing to successful and unsuccessful awardees for
task orders or delivery orders valued at $10 million or more.
0
7. Revise section 216.506 to read as follows:
216.506 Solicitation provisions and contract clauses.
0
8. Add section 216.506-70 to read as follows:
216.506-70 Additional solicitation provisions and contract clause.
(a) Use the provisions at 252.215-7007, Notice of Intent to
Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.371-6
and 215.408(3), respectively.
[[Page 15811]]
(b) Use the clause at 252.216-7010, 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 and task orders or delivery orders
placed under the contract may be valued at $10 million or more.
PART 233--PROTESTS, DISPUTES, AND APPEALS
233.102 [Amended]
0
9. Amend section 233.102 by removing ``Government Accountability
Office'' and adding ``Government Accountability Office (GAO)'' in its
place.
0
10. Add section 233.104 to read as follows:
233.104 Protests to GAO.
(c) Protests after award. (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 in paragraphs (c)(1)(A) through (D) of this section,
whichever is later, except as provided in FAR 33.104(c)(2) and (3)--
(A) Within 10 days after the date of contract award;
(B) Within 10 days after the date a task order or delivery order is
issued, where the value exceeds $25 million (10 U.S.C. 2304c(e));
(C) Within 5 days after a debriefing date offered to the protestor
under a timely debriefing request in accordance with FAR 15.506
regardless of whether the protestor rejected the offered debriefing
date, unless an earlier debriefing date is negotiated as a result; or
(D) Within 5 days after a postaward debriefing under FAR 15.506 is
concluded in accordance with 215.506-70(b).
233.171 [Amended]
0
11. Amend section 233.171 by removing ``Government Accountability
Office'' and adding ``GAO'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Add section 252.215-7016 to read as follows:
252.215-7016 Notification to Offerors--Postaward Debriefings.
As prescribed in 215.570, use the following provision:
Notification to Offerors--Postaward Debriefings (Mar 2022)
(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 to successful or unsuccessful offerors
for contract awards valued at $10 million or more, while protecting
the confidential and proprietary information of other offerors. The
request is considered timely if received 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 required postaward debriefing is provided--
(i) The debriefed Offeror may submit additional written
questions related to the debriefing not later than 2 business days
after the date of the debriefing;
(ii) The agency will respond in writing to timely submitted
additional questions within 5 business days after receipt by the
contracting officer; and
(iii) The postaward debriefing will not be considered to be
concluded until the later of--
(A) The date that the postaward debriefing is delivered, orally
or in writing; or
(B) If additional written questions related to the debriefing
are timely received, the date the agency delivers its written
response.
(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 (3) of this provision, whichever
is later:
(1) Within 10 days after the date of contract award.
(2) Within 5 days after a debriefing date offered to the
protestor under a timely debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506 unless an earlier
debriefing date is negotiated as a result.
(3) Within 5 days after a postaward debriefing under FAR 15.506
is concluded in accordance with Defense Federal Acquisition
Regulation Supplement 215.506-70(b).
(End of provision)
0
13. Add section 252.216-7010 to read as follows:
252.216-7010 Postaward Debriefings for Task Orders and Delivery
Orders.
As prescribed at 216.506-70(b), use the following clause:
Postaward Debriefings for Task Orders and Delivery Orders (Mar 2022)
(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 more to the Contractor, regardless of
whether the Contractor's offer for the task order or delivery order
was successful or unsuccessful, while protecting the confidential
and proprietary information of other contractors. The request is
considered timely if received within 3 days of notification of task
order or delivery order award.
(2) If a required 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 the date of the debriefing;
(ii) The agency will respond in writing to timely submitted
additional questions within 5 business days after receipt; and
(iii) The postaward debriefing will not be considered to be
concluded until the later of--
(A) The date that the postaward debriefing is delivered, orally
or in writing; or
(B) If additional written questions related to the debriefing
are timely received, the date the agency delivers its written
response.
(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 (3) of this clause, whichever is later:
(1) Within 10 days after the date a task order or delivery order
is issued, where the value exceeds $25 million (10 U.S.C. 2304c(e)).
(2) Within 5 days after a debriefing date offered to the
protestor under a timely debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506 unless an earlier
debriefing date is negotiated as a result.
(3) Within 5 days after a postaward debriefing under FAR 15.506
is concluded in accordance with Defense Federal Acquisition
Regulation Supplement 215.506-70(b).
[[Page 15812]]
(End of clause)
[FR Doc. 2022-05531 Filed 3-17-22; 8:45 am]
BILLING CODE 5001-06-P
