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On March 22, 2018, the Department of Defense (DoD), Office of the Under Secretary of Defense issued a Class Deviation letter to the heads of all Department of Defense agencies requiring, effective immediately, that every DoD agency ensure that its contracting officers implement the recommendations for enhanced post-award debriefings set forth in Section 818 of the 2018 National Defense Authorization Act (NDAA).

The direction makes clear that DoD agencies are to provide unsuccessful offerors who are given a debriefing in accordance with FAR 15.506(d) the opportunity to “submit additional questions related to the debriefing within two business days after receiving the debriefing.”  The agency will then be required to “respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions” and must hold the debriefing open until it “delivers its written responses to the unsuccessful offeror.”

The direction also clarifies that that automatic stay of performance provided for by the Competition in Contracting Act (CICA) as implemented in FAR 33.104(c) must still be provided when a protest is filed at the Government Accountability Office (GAO) within five days after “the Government delivers its written response to additional questions submitted by the unsuccessful offerors” in the event that additional questions are submitted within two days after receipt of the debriefing, or on the prior timeline (ten days after the date of award or five days of a required debriefing) where no additional questions are submitted.

This is a significant development for contractors for two reasons.  First, it sets the expectation that agencies will provide meaningful responses to an offeror’s questions.  (Note though that the enhanced debriefing process does not alter the categories of information that an agency is not allowed to disclose, such as the technical solution of the awardee.)  Second, offerors will not be penalized by using these procedures, i.e., unsuccessful offerors who make use of the Q&A procedure will still have the same five day period to timely protest to obtain the CICA stay of performance.  One word of caution:  contractors must be sure to limit reliance on this Q&A procedure to DoD procurements, as the FY 2018 NDAA (and this Class Deviation) limit the roll out of the enhanced post-award debriefing process to DoD agencies.

A copy of the DoD’s March 22, 2018 letter can be found here.

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Photo of Daniel R. Forman Daniel R. Forman

Daniel R. Forman is a partner in Crowell & Moring’s Washington, D.C. office and is co-chair of the firm’s Government Contracts Group.

Dan’s practice focuses on a wide variety of government procurement law, including bid protests, False Claims Act and qui tam litigation…

Daniel R. Forman is a partner in Crowell & Moring’s Washington, D.C. office and is co-chair of the firm’s Government Contracts Group.

Dan’s practice focuses on a wide variety of government procurement law, including bid protests, False Claims Act and qui tam litigation, investigations of potential civil and criminal matters, ethics and compliance, contract claims and disputes, GSA schedule contracting, and small disadvantaged business contracting. Dan is also experienced in negotiating and drafting teaming agreements and subcontracts, as well as providing counseling on the interpretation of FAR clauses and solicitations. Dan’s practice also focuses on state and local procurement matters, including State False Claims Act issues, lobbying and contingency payment compliance. He has been involved in bid protest litigation in six states and the District of Columbia. Dan is ranked as a Band 1 ranked attorney by Chambers USA, listed as a two-time Law360 MVP (2015, 2020), was named to Legal 500’s “Hall of Fame” for Government Contracts in their 2020 Guide, is an Acritas Star, named as a Thomson Reuters Stand-Out Lawyer, and was previously named to BTI’s list of “Client Service All-Stars.

Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

Photo of Christian Curran Christian Curran

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws…

Christian N. Curran is a partner in Crowell & Moring’s Washington, D.C. office, where he practices in the Government Contracts Group. His practice focuses on government contracts litigation and counseling, including bid protests, government investigations, and compliance with federal and state procurement laws and regulations.

Christian has broad experience in the government contracts arena, including bid protest litigation at both the Government Accountability Office and the Court of Federal Claims, contract claims before the Armed Services Board of Contract Appeals, prime-sub disputes, internal investigations, mandatory disclosures, transactional due diligence, Defense Contract Audit Agency audits, and compliance assessments. He also has experience in both traditional litigation and alternative dispute resolution forums, including international arbitration and mediation, and administrative proceedings before various government agencies.