[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