We recently wrote about enhanced post-award debriefing requirements included in the Senate’s version of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 [read article here]. The final NDAA signed into law on December 12, 2018, incorporates many of the changes from the Senate version, though the changes are not as burdensome on the Department of Defense (“DoD”) in the final NDAA.
For instance, the final NDAA requires a written or oral debriefing for all contract and task order awards valued at $10 million or greater, whereas the Senate version would have required a combined written and oral debriefing. Next, while the Senate version of the NDAA would have required disclosure of a redacted source selection award determination as a part of all DoD debriefings (with an option for access to the unredacted determination and supporting agency record by outside counsel for awards exceeding $10 million), the final version requires such disclosure as part of a debriefing only in an acquisition exceeding $100 million. However, small business and nontraditional contractors may request this disclosure in acquisitions exceeding $10 million. The final NDAA does not provide for outside counsel of unsuccessful offerors to obtain an unredacted copy of the award determination and supporting agency record.
The final NDAA does keep the Senate version provision of permitting offerors to submit follow-up questions within two business days of the debriefing and requiring the agency to respond within five business days. As in the Senate version, the debriefing will not be considered concluded (thereby starting the five-day period to submit a protest to the U.S. Government Accountability Office (“GAO”) and implement the Competition in Contracting Act automatic stay of performance) until the agency’s responses to the follow-up questions are provided.
Notably, the final NDAA does not include the provision from the Senate version that sought to shorten GAO’s decision deadline for protests arising from DoD agencies to 65 days except in unusually complex cases. Therefore, GAO’s current 100-day deadline will remain in place.
Lastly, the final NDAA establishes a pilot program requiring protesters with at least $250 million in revenues in the preceding year who have a protest denied by GAO to reimburse the DoD for its costs incurred defending against the protest. In addition to potentially deterring large businesses from protesting in the first place, this requirement may encourage the DoD to litigate a protest until a decision is issued by GAO rather than take corrective action. The pilot program will run from October 1, 2019 to September 30, 2022. It remains to be seen how the DoD will determine the costs it incurs defending against a protest.
About the Author: Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at firstname.lastname@example.org