On March 22, the Department of Defense (“DOD”) issued a class deviation for enhanced debriefing rights under Federal Acquisition Regulation (“FAR”) 15.506(d). The upshot is that a disappointed offeror in a DOD procurement will have additional time to file a post-award protest at the Government Accountability Office (“GAO”) and still obtain the statutory stay allowed by the Competition in Contracting Act (“CICA”).
Until recently, when a disappointed offeror in a negotiated procurement filed a post-award protest at GAO, the agency was required to stay performance of the awarded contract until GAO resolved the protest, but only if GAO received and notified the agency of the protest within five days of the offeror’s debriefing. For civilian agency procurements, that’s still the case. For DOD procurements, Congress recently gave disappointed offerors a bit of a reprieve.
The 2018 National Defense Authorization Act amended CICA to change the formula for DOD debriefings. The statute now requires that the procuring agency allow the disappointed offeror to submit written questions within two business days of the debriefing. The agency must answer them in writing within five business days. Only then is the debriefing closed, and the five-day clock for a CICA stay begins to run.
DOD’s March 22 class deviation instructs all DOD contracting officers to immediately comply with the enhanced debriefing timelines, as well as with the requirement to stay performance if the agency receives notice of the protest within five days of the close of the debriefing, when the agency has answered all of the offeror’s written questions.
The intent of the enhanced debriefing is clearly to provide disappointed offerors enough information to discourage protests of DOD contract awards. For offerors, however, the benefits are also clear: (1) the enhanced debriefing period will allow as many as ten additional days to prepare a post-award protest before the clock for a stay begins to run; and (2) the additional information from the agency’s written answers may prove useful in preparing a post-award protest. Time will tell if the enhanced debriefings reduce protests. In the meantime, disappointed offerors should take full advantage of two true rarities in federal contracting, time and source selection information.