Contracting with DoD: Enhanced Debriefings Are Here!
In our February 2018 Alert, Jones Day explained that the 2018 National Defense Authorization Act ("NDAA") contained a requirement that the Secretary of Defense implement new rules for enhanced debriefings for certain types of acquisitions. On March 22, 2018, the Office of the Under Secretary of Defense for Acquisition and Sustainment issued a class deviation memorandum implementing the new enhanced debriefing rules for certain Department of Defense ("DoD") procurements.
The memorandum provides that, effective immediately, post-award debriefings under Federal Acquisition Regulation (FAR) 15.506(d) must contain an opportunity for offerors to submit additional questions related to the debriefing within two business days after the debriefing. The policy requires that the agency respond in writing to these questions within five business days of receiving them.
In addition, the memorandum provides that the agency "shall not" consider the post-award debriefing to be concluded until after the agency delivers its written responses to the unsuccessful offeror. The memorandum specifically instructs agencies to implement a stay of contract performance if a GAO protest is filed within five days after the government delivers its written responses to the additional questions. The memorandum states that this class deviation will remain in effect until the policies are incorporated into the Defense Federal Acquisition Regulation Supplement (DFARS) or otherwise rescinded.
The impact of this class deviation will likely be fewer—and higher quality—protests of DoD procurements. In addition, the new policy will allow companies to clarify ambiguous debriefing information and will provide additional time to analyze whether to file a protest of the award.
For further information, please contact your principal Firm representative or the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com/contactus/.
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our "Contact Us" form, which can be found on our website at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.