The Department of Defense has taken steps to implement a portion of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 (Pub. L. 115-91) enhancing postaward debriefing rights. Specifically, Shay Assad, Director of Defense Pricing/Defense Procurement and Acquisition Policy issued a memorandum on March 22, 2018, requiring contracting officers providing a postaward debriefing in accordance with FAR 15.506(d) to provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing.
Offerors will have two business days after receiving the debriefing in which to submit these questions, and the agency shall respond in writing to the questions within five business days of their receipt. Importantly for determining the timeliness of protests to the Government Accountability Office (GAO), the agency "shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror."
The memo states that the agency shall comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance or termination of the awarded contract, upon receipt of a protest filed by an unsuccessful offeror at GAO within:
- ten days after the date of contract award;
- five days after a debriefing date offered to the protester under a timely debriefing request and no additional questions related to the debriefing are submitted; or
- five days after the government delivers its written response to additional questions submitted by the unsuccessful offerers, whichever is later.
The memo only partially implements a provision of the NDAA which provides for enhanced postaward debriefing rights for unsuccessful offerors and revises the GAO protest timeliness rules for DoD procurements. Among other things, Section 818 of the NDAA requires the DoD to disclose the agency's written source selection and award decision for contract awards in excess of $100 million, with small business receiving the same information for awards greater than $10 million, upon request. The latest memorandum does not mention or implement this provision of the NDAA.