Any Questions? : Department of Defense Implements FY 2018 NDAA Requirement for Post-Debriefing Q&A Process
This past March marked the beginning of a more fulsome required debriefing process for defense contracts. The Director of Defense Procurement and Acquisition Policy (“DPAP”) issued a class deviation memorandum, effective March 22, 2008, requiring contracting officers to: (1) provide unsuccessful offerors an opportunity to submit additional questions within two days after receiving a debriefing; and (2) hold the debriefing open until the agency delivers written responses. The class deviation implements Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (“NDAA”).
Federal agencies have long been required to debrief unsuccessful bidders after it awards a contract on the “basis of competitive proposals.” And the existing FAR provisions applicable to such debriefings, FAR 15.505 and 15.506, already require agencies to include, as part of the debriefing process, “reasonable responses to relevant questions about whether source selection procedures were followed . . . .”
In practice, however, agencies regularly ignore that requirement — often providing a limited written debriefing, declaring the debriefing closed with no opportunity for questions, and thereby putting the disappointed offeror on a 5-day clock to protest, without all the information to which it is entitled. Such an approach by agencies not only violates the FAR, it is also counterproductive, fostering an atmosphere of distrust and making protests more rather than less likely.
Now, the NDAA and DPAP memo have taken steps to address that problem. The NDAA amended 10 U.S.C. § 2305(b)(5) to allow for “an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” The Department of Defense (“DoD”) then has five business days to respond in writing to any question it receives. And — thanks to amendments the NDAA also made to 31 U.S.C. § 3553(d)(4) — the clock on filing a protest does not begin running until the Department has provided that later written response.
The March 22 DPAP memo implements these changes through a “class deviation” — which is used to allow agencies and organizations to deviate from the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). The class deviation provides that, where a disappointed offeror submits questions within two days after the debriefing, the contracting officer “shall not” consider the debriefing closed until the agency provides written responses. Driving that point home, the deviation also provides that the agency will suspend performance of an awarded contract if it receives notice of protest from GAO within five days after the agency delivers those written responses. The class deviation will remain in effect until the DFARS is formally amended to reflect the change.
Defense contractors should be aware of these new rules — and should make sure that DoD contracting officers are aware of them too. We have seen recent procurements by DoD components, where the contracting officers have not initially followed these new requirements. A polite email or call to the contracting officer will probably solve that problem in many cases. But if a DoD component still does not fulfill these new requirements even after being advised of them, the safest course for a disappointed offeror wishing to pursue a protest will be to file its protest in time for GAO to notify the agency of the protest within five days of the debriefing. Given the importance of obtaining a stay, it is generally better to err on the side of being early, and avoid any risk of being too late.
It is also critical to recognize that these rules do not apply to civilian agencies. Therefore, in civilian agency procurements, an offeror should assume that it is on the clock to protest once it receives a debriefing, even if the agency has not provided an opportunity to ask relevant questions about whether source selection procedures were followed.
The new requirements are an unambiguous improvement; they will foster greater communication between DoD components and disappointed offerors, and allow companies to make more informed decisions about whether pursuing a protest is warranted. They are also, however, part of a recent trend in diverging protest rules applicable to DoD versus other agencies, which increases the complexity of the system and creates pitfalls for the unwary. The best solution, for all concerned, would be to apply the new expanded debriefing process to all federal agencies, not just DoD.
 Whether a debriefing is “required” could impact when a bid protest needs to be filed at the Government Accountability Office (“GAO”). This question requires a close examination of the applicable regulations, and could serve as a trap for even those most seasoned government contractors — as discussed on this blog.