The DoD has issued a class deviation to immediately implement part of the the enhanced debriefing requirements mandated by the 2018 National Defense Authorization Act.
In a class deviation issued on March 22, 2018, the DoD says that, effective immediately, contracting officers must comply with new requirements allowing unsuccessful offerors to submit questions–and postponing the ticking of the “protest clock” until after answers are received. But the class deviation doesn’t fully implement the 2018 NDAA’s enhanced debriefing requirements; the portion of the statute calling for the disclosure of redacted source selection information is not addressed.
As SmallGovCon readers will recall, Section 818 of the 2018 NDAA strengthened debriefing requirements for DoD procurements conducted under FAR Part 15. Most notably, the 2018 NDAA requires “enhanced” debriefings of certain offerors, allowing those offerors to obtain the written source selection determination, redacted as necessary to protect other offerors’ confidential information.
But Section 818 also made important updates to the debriefing question-and-answer process. These changes are particularly important in an age in which many debriefings are given in writing, often without clear guidance to offerors about when or how they may ask questions. It’s not uncommon for offerors to receive written debriefings (often in the form of PowerPoint slides) that end with statements like “this concludes your debriefing,” without any mention of questions.
FAR 15.506(d)(6) requires a debriefing to include, at a minimum, “[r]easonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.” But statements like “this concludes your debriefing” can lead to confusion among offerors, some of whom don’t realize that they’re legally allowed to ask reasonable questions no matter what a PowerPoint may say.
Now, the DoD has issued a class deviation to immediately implement the portion of the 2018 NDAA addressing debriefing questions-and-answers. The class deviation, issued, March 22, says:
Effective immediately, when providing a postaward debriefing of offerors in accordance with Federal Acquisition Regulation (FAR) 15.506(d), contracting officers shall include in the debriefing information provided to unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing. The agency shall respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions. The agency shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror.
The class deviation also addresses the GAO protest clock associated with debriefings–something that can be very tricky to navigate when it’s unclear whether a debriefing has concluded. The class deviation says that the DoD will honor the “automatic stay” under the GAO protest process when a protest is filed within the later of: (1) 10 days after the date of contract award; (2) five days after a debriefing date offered to the protester under a timely debriefing request if no additional questions related to the debriefing are submitted; or (3) five days after the Government delivers its written responses to additional questions.
Kudos to DoD for acting quickly to implement these portions of the 2018 NDAA, which should make the debriefing process fairer and more transparent.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.