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.

Tags: Bid Protest, Department of Defense, DFARS, Final Rule
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Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in 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…

Kayleigh Scalzo represents government contractors in 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, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.

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Photo of Jay Carey Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of…

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

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