By Andrew Victor, Sam Van Kopp, and Haaleh Katouzian
June 18, 2021
Recently, the Department of Defense (DOD) published a proposed rule in the Federal Register that would formalize DOD’s Class Deviation Letter issued in March of 2018 regarding enhanced debriefing rights for unsuccessful offerors.. As many contractors are aware, larger DOD source selections have been conducted with more disclosure in debriefings. The proposed rule formalizes the Class Deviation as it implements Section 818 of the 2018 National Defense Authorization Act (NDAA) by amending Defense Federal Acquisition Regulation Supplement (DFARS) 215.506.
Specifically, the proposed rule provides for the following process that is similar to the Class Deviation:
- Upon request by the contractor, agencies are required to provide a debriefing—written or oral—for contracts, task orders, and delivery orders of at least $10 million.
- For awards that exceed $100 million, as part of the requested debriefing, agencies are required to provide a redacted source selection decision document.
- For awards between $10 million and $100 million, small business or a nontraditional defense contractors may request disclosure of the redacted source selection decision document.
Additionally, the proposed rule reiterates the time frame for these debriefings. After a debriefing, contractors have two business days to submit written questions. The agency then has five business days to respond in writing to the follow-up questions. Because the debriefing does not close until an agency has responded to the written questions, unsuccessful offerors should always submit written questions within two business days. Responses to the written questions may provide insight to the source selection; further, the time to protest at the Government Accountability Office (“GAO”) is delayed until the agency responds. This includes the 5-day timeline to obtain the stay of performance under the Competition in Contracting Act (“CICA”).
Interested parties will have until July 19, 2021, to comment on the formalization of enhanced debriefings. Because agencies are aware of and have been following the Class Deviation for some time, we expect DOD to implement the proposed rule.
More in-depth debriefings help agencies uncover problems in the source selection and provide unsuccessful offerors more time to evaluate their options. Nichols Liu LLP has extensive experience assisting unsuccessful offerors develop debriefing questions and advising on whether a protest should be filed.
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