As we previously discussed, when Congress passed the FY 2018 NDAA it required the Department of Defense (“DoD”) to issue regulations providing for enhanced post-award debriefing rights on certain DoD procurements. Specifically, Congress mandated enhanced content requirements, a follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a suspension of performance of the protested contract (a “CICA stay“):
- Enhanced Content Requirements: While protecting the confidential and proprietary information of other offerors, the debriefing shall include, at a minimum, the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors. These enhanced content requirements apply to “required” debriefings if (1) the contract award exceeds $100M, or (2) the contract award exceeds $10M and the contractor requesting the debriefing is a small business or nontraditional contractor who request such disclosure.
- Follow-up Question Process: Disappointed offeror would be allowed the opportunity for follow-up questions within two business days of receiving a post-award debriefing to be answered in writing by the agency within five business days.
- Time to file protest at GAO and obtain a CICA stay: The debriefing would not be considered concluded, and the five day post-debriefing period pertaining to when a protest needs to be filed to invoke a CICA stay would not commence, until the day the agency delivers its written responses to the disappointed offeror’s follow-up questions.
The enhanced content requirements were to be implemented through DFARS regulatory changes, which DoD has until June 2018 to issue. On the other hand, the follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a CICA stay, are already reflected in statutory changes (10 U.S.C. 2305(a)(5) and 31 U.S.C. 3553(d)(4)). Still, changes to the DFARS were expected to implement the follow-up question process. But this week, in advance of changes to the DFARS, DoD issued Class Deviation 2018-O0011 – Enhanced Postaward Debriefing Rights, which provides for the immediate implementation of the follow-up question process (and corresponding changes to the time to file a protest at GAO and obtain a CICA stay):
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.
Furthermore, the agency shalI 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 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.
This class deviation implements paragraphs (b) and ( c) of section 818 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91 ), which amends 10 U.S.C.
2305(b)(5) and 31 U.S.C. 3553(d)(4) to provide enhanced postaward debriefing rights for unsuccessful offerors and revise the GAO protest timelines.
While arguably contractors could have asserted their follow-up question rights beginning in December 2017 when the relevant statutes were amended, this Class Deviation should give contractors peace of mind that they can rely on DoD actually providing responses to follow-up questions and the extended time to protest at GAO with a CICA stay.
Finally, contractors should keep three things in mind before relying on this Class Deviation and corresponding enhanced post-award debriefing rights: (1) the class deviation does not cover the enhanced content requirements, which will not go into place until DFARS revisions are issued in June; (2) the enhanced post-award debriefing rights only apply to DoD procurement; and most importantly (3) the follow-up question rights, and corresponding extension of time to protest at GAO with a CICA stay, only applies in procurements where the contract was awarded “on the basis of competitive proposals” and the contractor makes a timely request for a debriefing.