On March 22, 2018, the Department of Defense (DoD), Office of the Under Secretary of Defense issued a Class Deviation letter to the heads of all Department of Defense agencies requiring, effective immediately, that every DoD agency ensure that its contracting officers implement the recommendations for enhanced post-award debriefings set forth in Section 818 of the 2018 National Defense Authorization Act (NDAA).
The direction makes clear that DoD agencies are to provide unsuccessful offerors who are given a debriefing in accordance with FAR 15.506(d) the opportunity to “submit additional questions related to the debriefing within two business days after receiving the debriefing.” The agency will then be required to “respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions” and must hold the debriefing open until it “delivers its written responses to the unsuccessful offeror.”
The direction also clarifies that that automatic stay of performance provided for by the Competition in Contracting Act (CICA) as implemented in FAR 33.104(c) must still be provided when a protest is filed at the Government Accountability Office (GAO) within five days after “the Government delivers its written response to additional questions submitted by the unsuccessful offerors” in the event that additional questions are submitted within two days after receipt of the debriefing, or on the prior timeline (ten days after the date of award or five days of a required debriefing) where no additional questions are submitted.
This is a significant development for contractors for two reasons. First, it sets the expectation that agencies will provide meaningful responses to an offeror’s questions. (Note though that the enhanced debriefing process does not alter the categories of information that an agency is not allowed to disclose, such as the technical solution of the awardee.) Second, offerors will not be penalized by using these procedures, i.e., unsuccessful offerors who make use of the Q&A procedure will still have the same five day period to timely protest to obtain the CICA stay of performance. One word of caution: contractors must be sure to limit reliance on this Q&A procedure to DoD procurements, as the FY 2018 NDAA (and this Class Deviation) limit the roll out of the enhanced post-award debriefing process to DoD agencies.
A copy of the DoD’s March 22, 2018 letter can be found here.