As we discussed in an earlier post about the NDAA for FY 2018, one of the most significant changes with respect to procurement issues may be related to the DOD's conduct of debriefings. Perhaps missed in the discussions of a potential new protest regime going into effect in a couple years is the fact that one of the most significant debriefing changes is effective immediately without the need for a new regulation.
Specifically, Section 818 of the NDAA required that DOD agencies provide disappointed offerors with an opportunity to ask follow-up questions "within two business days after receiving a post award debriefing" and provided that the "5-day period" associated with the timeline for a CICA stay "does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted" pursuant to the new rule. Because these provisions of the NDAA amended the underlying statutes (10 U.S.C. § 2305 and 31 U.S.C. § 3553) instead of requiring the Secretary to amend the DFARS, these rules went into effect upon the signing of the NDAA. In fact, in a few cases since the NDAA went into effect, we have seen DOD agencies agree that the new rules are in effect.
So, what do contractors need to know?
- Contractors must now be provided an opportunity to ask follow-up questions within two business days of their debriefings. The use of "business days" here is different from the use of "calendar days" in almost every other circumstance related to GAO protests.
- The CICA stay clock does not begin to run until the agency responds to the follow-up questions.
- Unless something changes, GAO is unlikely to enforce these new rules (just as they have not enforced debriefing rules in the past), so contractors will be best served by confirming with the agency that the debriefing will remain open until the follow-up questions are answered rather than relying on the statutory change alone. If the agency refuses to confirm it will comply with the statute, the safer course is to rely on the old, stricter timeline instead.
- These immediately effective changes do not extend to Section 818's additional requirement that agencies provide redacted source selection award documents in certain circumstances and offer written or oral debriefings for all contract and task/delivery order awards exceeding $10 million. Those provisions will become effective only upon amendment of the DFARS – supposedly within 180 days of the statute's enactment.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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