New DOD Class Deviation Changes Debriefing Process

Scott Arnold

The United States Department of Defense (“DOD”) has amended the process for debriefings required under Federal Acquisition Regulation (“FAR”) 15.506 to allow for offeror questions related to the debriefing. Offerors are allowed up to two business days following a debriefing to submit written questions, and the agency has up to five business days after receipt of the questions to submit written responses. The agency must hold the debriefing open until it delivers its written responses to the disappointed offeror. The new process applies to all DOD debriefings required under FAR 15.506.

The purpose of this new rule implementing section 818 of the 2018 National Defense Authorization Act (“NDAA”) is to improve the quality of debriefings and reduce the number of situations where disappointed offerors feel compelled to protest because the information they receive in debriefings is insufficiently detailed to convince them that the selection decision was fair. More fulsome debriefings should allow offerors to make more informed decisions about whether to protest.

But another major impact of the new rules is the amount of time disappointed offerors now have to protest and obtain Competition in Contracting Act (“CICA”) stays when DOD provides required debriefings under FAR 15.506. Prior to the deviation, unless an agency voluntarily held a debriefing open to answer questions that might arise during the debriefing, the debriefing was closed at the conclusion of the telephone call or in-person meeting or, in the case of a written debriefing, when the debriefing document was transmitted. Protests would be due within 10 days for timeliness purposes and within 5 days for CICA stay purposes. These 10- and five-day deadlines for timeliness and CICA stay purposes still apply, but now, as long as the disappointed offeror submits questions related to the debriefing within two business days after the debriefing, the 10- and five-day clocks do not start running until the agency provides written responses. When disappointed offerors use this process, they should not only obtain more information upon which to base a decision as to whether to protest, they will have substantially more time to file the GAO protests they decide to pursue. The additional time will likely amount to at least an extra few days, and probably over an additional week in most cases—depending on how long the agency takes to provide written responses.

You can see the Memorandum announcing the new rule here: https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf.