Contractors filed 2,071 bid protests at GAO in 2019– the lowest number in five years.
One possible cause for the decline is the Department of Defense’s enhanced debriefing procedures. Enhanced debriefings mean that contractors have greater access to information before the GAO’s short-fuse filing deadline and can make better-informed decisions regarding protests.
Importantly, the enhanced procedures also permit contractors to ask targeted questions regarding the agency’s source selection decision.
By understanding how to take advantage of debriefings and ask good questions, contractors can maximize the effectiveness of the bid protest process and increase the odds of a favorable outcome.
What Are Enhanced Debriefing Procedures?
DoD implemented mandatory enhanced debriefing procedures about two years ago. The purpose is to provide unsuccessful offerors “an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.”
Agencies must “respond in writing” within five business days after the receipt of the contractor’s questions.
While these requirements may seem modest, the enhanced procedure allow for a more meaningful process and an opportunity for the contractor to better understand the agency’s decision.
By comparison, civilian agency debriefings (which have not implemented enhanced procedures) are much more one sided. A contractor that does not receive a helpful debriefing is left in the unenviable position of potentially investing resources into a bid protest without a complete understanding of the agency’s position regarding the contractor’s proposal.
How To Ask Better Questions and Use Enhanced Debriefings To Your Advantage
A contractor’s goal for every debriefing should be to gather as much information as possible from the contracting officer. The more the contracting officer speaks (or writes), the more the he or she is likely to say something that may be helpful in a possible protest of the contract award.
With that in mind, the Q&A element of enhanced debriefings is critical. Consider a mix of open-ended questions and questions more targeted to the area(s) of concern.
Contractors should also consider the source of the debriefing. While no one is happy to lose out on a contract, try to avoid questions that overtly telegraph a pending bid protest. The threat of litigation could lead to receiving less useful information from the debrief.
Instead, for every debriefing, focus on the goal of improving for the next bid or proposal. This approach will likely enable the contractor obtain more information during the debriefing than if the contracting officer believes the debriefing is a precursor to a protest.
However, if the contracting officer provides information during the debriefing indicating a procurement error, the contractor can run with the information by filing a protest.
The Effect on Bid Protest Timing
The short-fuse for GAO bid protests makes every day during the debriefing process critical.
DoD’s enhanced debriefing procedures help here, too. A recent decision from the Court of Federal Claims holds that the Q&A period defines the debriefing period and, by extension, the deadline for obtaining a mandatory stay of contract performance.
In the decision, the Court held that the “debriefing date” is that last day available to the contractor to submit questions (even if the contractor elects not to do so). In other words, the debriefing period continues while the contractor thinks it over.
Once the debriefing period ends, the contractor must file the protest within the usual five days to obtain the stay.
Practice Tip: While this decision is helpful in terms of defining the time to file a protest, contractors must always remain vigilant on bid protest deadlines. Key words and phrases from the agency (like, “this concludes the debriefing”) should always play a role in decisions on the time for filing.
Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group. You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.