Key Notes:

  • On March 22, 2018, DoD issued a memorandum and class deviation implementing enhanced postaward debriefing rights under Section 818 of the FY 2018 NDAA.
  • The DoD memo addresses Section 818 paragraphs (b) (opportunity for follow-up questions) and (c) (commencement of post-briefing period), which provide for answers to questions following the debriefing and amend the related timelines for an automatic suspension of performance.
  • Unsuccessful offerors have an opportunity to submit additional questions within two business days after receiving the debriefing and the DoD agency must respond within five business days.

On March 22, 2018, the U.S. Department of Defense (DoD) issued a memorandum and class deviation implementing enhanced postaward debriefing rights. The memorandum implements Section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018, paragraphs (b) (opportunity for follow-up questions) and (c) (commencement of post-briefing period), which amend statutory provisions to provide for follow-up questions after DoD debriefings and revise the related timelines for an automatic suspension of performance. The memorandum was issued by Shay Assad, Director of Defense Pricing/Defense Procurement and Acquisition Policy, within the new Office of the Under Secretary of Defense for Acquisition and Sustainment (formerly Acquisition, Technology and Logistics).

Unsuccessful offerors on contracts with DoD can use these procedures to obtain valuable and necessary information to help them better understand the agency’s reasoning and decision, why they lost the competition and whether there is a valid basis for a bid protest. According to the memorandum, effective immediately, when providing a postaward debriefing to offerors in accordance with Federal Acquisition Regulation 15.506(d):

  • “[C]ontracting 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.”

In addition, the agency must comply with 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 the U.S. Government Accountability Office (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 offerors, whichever is later.”

Although the memorandum uses the language “upon receipt of a protest,” the statutory language of 31 U.S.C. § 3553, “Review of protests; effect on contracts pending decision,” like the language in FAR 33.104(c) (protests after award), is contingent on “notice of a protest” received by the agency from GAO. This process will become automated under the Electronic Protest Docketing System that will be fully implemented by GAO later this year.

The provisions of the 2018 NDAA addressed by the class deviation became effective as statutory amendments immediately upon passage of the NDAA; however, the class deviation addresses any inconsistencies that may exist in the FAR or Defense FAR Supplement and offers guidance for DoD agencies. The Director of Defense Procurement and Acquisition Policy issues class deviations to allow DoD organizations to deviate from the FAR and DFARS. The class deviation remains in effect until it is rescinded or incorporated in the DFARS. The class deviation does not address the FY18 NDAA’s Section 818, paragraph (a), “Release of Contract Award Information,” which must be implemented separately and via regulations.

As we reported previously, these provisions are based on the basic principle that better debriefings should improve communications and reduce protests. The procedures mandated by the NDAA should provide better information to disappointed bidders; improve the usefulness of the debriefing process; and improve the fairness and transparency of the underlying competition.