Last Monday, the Department of Defense (DoD) Director of Defense Pricing / Defense Procurement and Acquisition Policy issued a class deviation to implement paragraph (b) and (c) of Section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. That Section of the NDAA amends 10 U.S.C. 2305(b)(5) and 31 U.S.C. 3553(d)(4) to provide enhanced post-award debriefing rights for unsuccessful offerors and to revise the Government Accountability Office (GAO) protest timelines.
The class deviation, which is effective immediately, requires contracting officers providing a debriefing pursuant to FAR 15.506(d) to include in the debriefing information an opportunity to submit additional questions related to the debriefing within two business days after the debriefing. The agency must then respond in writing within five business days of receipt of those questions and cannot consider the debriefing concluded until it delivers its written responses to the unsuccessful offeror.
In addition, the agency must comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance or termination of an awarded contract upon receipt of a protest filed by an unsuccessful offeror at the GAO within:
- Ten days after the contract award; or
- Five days after a debriefing date offered to the protester under a timely debriefing request if no additional debriefing questions are submitted; or
- Five days after the agency delivers its written response to additional questions submitted by the unsuccessful offeror, whichever is later.
The class deviation will remain in effect until it is incorporated into the DFARS or otherwise rescinded.
There is, of course, no guaranty that agency responses to written questions will contain substantive, useful information (much like Q&A responses can sometimes be non-answers). But if you’re pursuing DoD contracts, be ready to take advantage of this new procedure. Regardless of whether you win the contract or not, the ability to pose additional questions to the procuring agency could be very valuable.
Eric Whytsell is responsible for this Article.
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