DoD Issues Class Deviation to Implement Enhanced Postaward Debriefing Requirements from FY 2018 NDAA

April 5, 2018

By Jacqueline K. Unger

On Thursday, March 22, the Department of Defense (“DoD”) issued a Federal Acquisition Regulation (“FAR”) class deviation in light of the enhanced postaward debriefing rights required by Section 818 of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2018.

The NDAA, which was signed into law on December 12, 2017, requires revisions to the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement a number of changes to debriefing requirements for DoD procurements. For instance, the NDAA requires a written or oral debriefing for all contract and task order awards valued at $10 million or greater. For awards exceeding $100 million, the debriefing must include the right to receive a redacted source selection award determination. Small business and nontraditional contractors may request the redacted award determination in acquisitions exceeding $10 million. The NDAA also permits offerors to submit follow-up questions within two business days of the debriefing and requires the agency to provide a written response within five business days, with the debriefing concluding only after the response is delivered.

The class deviation issued by DoD addresses only the latter change, requiring that, for post-award debriefings conducted in accordance with FAR 15.506(d), offerors be given an opportunity to submit questions within two business days of receiving the debriefing and that the agency respond in writing within five business days of receipt of the questions. The debriefing will not be considered concluded until the agency’s written responses are provided. The class deviation requires compliance with the Competition in Contracting Act automatic stay requirements if the agency receives a protest filed by an unsuccessful offeror at the U.S. Government Accountability Office within: (1) ten days after the date of contract award; (2) five days after a debriefing date offered to the protester under a timely debriefing request when no additional questions related to the debriefing are submitted; or (3) five days after the agency provides its written response to additional questions from the protester, whichever is later. This means unsuccessful offerors can buy more time to decide whether to protest without losing the ability to suspend contract performance by submitting additional questions after the initial debriefing.

The class deviation applies only to DoD procurements. It became effective on March 22, 2018, and will remain in effect until it is incorporated into the DFARS or otherwise rescinded.

About the Author: Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at junger@pilieromazza.com.
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