On March 18, 2022, the Department of Defense published a final rule in the Defense Federal Acquisition Regulation Supplement implementing its “enhanced” debriefing process.  That process originated in the National Defense Authorization Act for Fiscal Year 2018 and had previously been implemented via a class deviation.

The DOD enhanced debriefing process — which applies to procurements under FAR Part 15, and to task order competitions under FAR 16.505 — has two hallmarks:

  1. It establishes a structured process for offerors to ask written questions and receive written responses to their questions. Offerors must submit their questions within two business days of their debriefing, and agencies are to respond to those questions within five business days of their receipt.

This provision is significant in determining the deadline to file a bid protest at the Government Accountability Office (GAO) and to trigger the automatic stay of performance under the Competition in Contracting Act (CICA).  That is because — in procurements where a debriefing is both required and timely requested — the protest clock does not begin to run until the debriefing has closed.  The DFARS rule confirms that a (required and timely requested) debriefing remains open until the agency responds to (timely submitted) questions.

  1. For contract awards over $100 million, it requires the agency to provide a redacted copy of its source selection decision document as part of the debriefing.

In addition, small businesses and “nontraditional defense contractors” may request a redacted copy of the source selection decision document as part of their debriefing in contract awards above $10 million.

The final rule implements these requirements by adding provisions to DFARS Parts 215, 216, 233, and 252.  DOD confirmed that the rule applies to the acquisition of commercial products, including commercial-off-the-shelf (COTS) items, as well as commercial services.

In explaining the broad application of the rule, DOD stated that “[t]hese enhanced postaward debriefing requirements will assist in developing small business capabilities, provide increased participation, and promote competition.”  It added:  “Properly conducted postaward debriefings with this enhanced transparency may minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry.”

DOD has generally followed the extended debriefing requirements since passage of the FY 2018 NDAA, but there has been lingering confusion among some DOD components about when and how the requirements apply.  The institution of formal DFARS provisions should reduce that confusion, and help make the process more standardized and predictable for disappointed bidders.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

Read more about Kayleigh Scalzo
Show more Show less
Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

Read more about Jay Carey
Show more Show less