The U.S. Department of Defense’s (DOD) new “enhanced” debriefing rule is intended to provide bidders more transparency and increase the efficiency of the DOD’s bidding system. Effective March 18, the rule is mandatory for contracts and orders worth more than $100 million, while also impacting those worth between $10 million to $99 million to a lesser extent. The DOD believes that sharing more information and providing the ability to ask questions will reduce the number of protests.

Contracts Greater Than $100 Million

Unsuccessful bidders will automatically receive the full-source selection decision document (with appropriate redaction of other bidders’ confidential information) on the date of the debriefing. Any unsuccessful bidders may submit follow-up questions within two business days, and the awarding agency has five business days to respond.

The debriefing process remains open while the contractor awaits the agency’s response to questions. That should give unsuccessful bidders more time to contemplate filing a protest, while potentially allowing them to better understand why they did not receive the award.

Once the bidder receives the agency’s response, the bidder has five business days to file a protest. If a bidder decides to not submit questions, the bidder will have five business days from the receipt of the full-source selection decision document to file a protest. Contractors who successfully secure an award will also receive the redacted full-source selection decision document and the ability to submit questions.

Contracts Between $10 Million and $100 Million

The rule is not just limited to projects worth more than $100 million as contractors can request the source selection document for any contract worth between $10 million and $100 million. More than 70% of the DOD’s lower-valued deals fall within this category.

However, the businesses requesting the documents cannot be currently performing or have performed a contract with the DOD within one year of making the request. Smaller businesses and other nontraditional bidders will benefit from being able to request such documents to prepare prospective bids for consideration. These lower-valued source selection documents must be requested, unlike the contracts of $100 million, which must be issued and do not require a request.

Reduction of Protests

Prior to the rule, DOD was only obligated to provide a general explanation for rejecting contractors’ bids. Contractors and their attorneys had long complained about the lack of detail in post-award debriefings. Ultimately, the rule seeks to provide more transparency and efficiency between the DOD and contractors. Ideally, bidders should be more informed, and the DOD hopes to have less protests.

*Emmi Beuger is a 2022 Summer Associate in the Construction Practice of Troutman Pepper.  She is not admitted to practice law.