15808 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 

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 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 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 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 

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 

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, 


jspears on DSK121TN23PROD with RULES2
15810 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 

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: 

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 

■ 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 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. 

■ 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 

■ 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. 


jspears on DSK121TN23PROD with RULES2
Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 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] 

■ 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. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 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) 

■ 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). 


jspears on DSK121TN23PROD with RULES2
15812 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules and Regulations 

(End of clause) 

[FR Doc. 2022–05531 Filed 3–17–22; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

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) 

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 2021. 

DATES: Effective March 18, 2022. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kimberly R. Ziegler, telephone 571– 

372–6095. 

SUPPLEMENTARY INFORMATION: 

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. 

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. 

B. Analysis of Public Comments 

1. Support for the Rule 

Comment: The respondent supported 

the rule and requested DoD publish the 

final rule expeditiously. 

Response: DoD acknowledges the 

support. 

2. Expansion of the Statutory Criteria 

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. 

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 


jspears on DSK121TN23PROD with RULES2