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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle B — Amendments to General Contracting Authorities, Procedures, and Limitations

P. L. 115-

House Conference Report. 115-404

(a) Release Of Contract Award Information.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all required post-award debriefings, while protecting the confidential and proprietary information of other offerors, include, at a minimum, the following:

(1) In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000 with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure.

(2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.

(3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure described in paragraph (1) and the debriefing described in paragraph (2).

(4) Robust procedures, consistent with section 2305(b)(5)(D) of title 10, United States Code, and provisions implementing that section in the Federal Acquisition Regulation, to protect the confidential and proprietary information of other offerors.

(b) Opportunity For Follow-Up Questions.—Section 2305(b)(5) of title 10, United States Code, is amended—

(1) by redesignating subparagraphs (C), (D), and (E) as subparagraphs (D), (E), and (F), respectively;

(2) in subparagraph (B)—

(A) in clause (v), by striking “; and” and inserting a semicolon;

(B) in clause (vi), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following new clause:

“(vii) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.”; and

(3) by inserting after subparagraph (B) the following new subparagraph:

“(C) The agency shall respond in writing to any additional question submitted under subparagraph (B)(vii) within five business days after receipt of the question. The agency shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.”.

(c) Commencement Of Post-Briefing Period.—Section 3553(d)(4) of title 31, United States Code, is amended—

(1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii) respectively;

(2) by striking “The period” and inserting “(A) The period”; and

(3) by adding at the end the following new subparagraph:

“(B) For procurements conducted by any component of the Department of Defense, the 5-day period described in subparagraph (A)(ii) does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted pursuant to section 2305(b)(5)(B)(vii) of title 10.”.

The Senate amendment contained a provision (sec. 822) that would require the Secretary of Defense, no later than 120 days after the date of enactment of this Act, to revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all mandatory post-award debriefings must provide details and comprehensive statements of the agency's rating for each evaluation criterion and of the agency's overall award decision. The revision would encourage the release of all information that would otherwise be releasable in the course of a bid protest challenge to an award to protect the confidential and proprietary information of other offerors. This provision would allow for the opportunity for follow-up questions for a disappointed offeror within two business days of receiving a post-award debriefing to be answered in writing by the agency within five business days.

The House bill contained no similar provision.

The House recedes with an amendment that removes the bid protest decision timeline modification and requires a threshold of contract awards in excess of $100.0 million for a mandatory disclosure of the agency's written source selection award determination and an option for small businesses or nontraditional contractors with contracts in excess of $10.0 million but less than $100.0 million to request such disclosure.