The U.S. Department of Defense (DOD) has just locked in its Enhanced Postaward Debriefing procedures, making it easier for contractors to understand the source selection and contract award process and make informed bid protest decisions. The new final rule, published March 18, gives contractors additional information and time to work with in preparing their protest strategies.
Debriefings as a Tool for Bid Protests
Bid protests are designed to protect the integrity of the procurement process and to allow disappointed bidders or offerors the opportunity to seek relief for an improper or flawed solicitation or contract award decision.
Whether before the U.S. Court of Federal Claims, the General Accountability Office or an agency, the key to a successful protest is to set forth a detailed statement of the legal and factual grounds, including identifying specific facts. Other than potential issues with how the contractor’s proposal was evaluated, the protester will typically have little insight into the decision-making process until the debriefing.
The debriefing allows the contractor to collect information about the procurement and award decision. During the debriefing, the contractor should try to determine whether the source selection committee made identifiable procurement errors.
Once an offeror has submitted a written request for a debriefing to the agency, the agency will furnish the basis for the selection decision and contract award. A standard debriefing must contain certain basic information regarding whether source selection procedures were followed, but the government does not need to include a point-by-point comparison of the debriefed offeror’s proposal with those of other offerors, and does not need to provide a written product to the offeror. Offerors have five days following a standard debriefing to protest in order to qualify for a Competition in Contracting Act (CICA) automatic stay of performance.
DOD introduced Enhanced Postaward Debriefing Rights in March 2018 through the issuance of a class deviation (a deviation from the FAR and DFARS that is applicable to all contracts). In May of 2021, DOD issued its proposed rule, now adopted as final. Under the new rule, enhanced debriefing rights will apply to small or “nontraditional” contractors for awards between $10 and $100 million, and all awards above $100 million.
With enhanced debriefing rights, contracting officers (COs) are required to allow offerors the opportunity to submit follow-up questions related to the debriefing, and the response from the agency must be in writing. The agency must also submit a redacted Source Selection Document to small or nontraditional offerors within the $10 to $100 million award range when the offerors request it, and must do the same for all awards above the $100 million threshold.
Critically, enhanced debriefing procedures also grant the contractor more time to submit a bid protest. The new rule does not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror. Offerors now have two days following the debriefing in which to submit follow-on questions to the agency, and five additional days from receipt of the agency’s written responses to protest. The agency itself has five days to respond, for a potential protest window of nearly two full weeks following debriefing.
The table below offers a side-by-side comparison of some of the key enhancements to debriefing rights offered by the DOD’s new rule.
|Limited to question about whether certain procedures and authorities were followed.||Open to follow-up questions related to the debriefing.|
|Responses may be oral or in writing.||Responses must be in writing.|
|No guidelines for when questions must be submitted, or when the agency must respond.||The contractor must submit additional questions within two business days after the debriefings. The agency must respond to the questions within five business days after receipt of the questions.|
|5 days following debriefing to protest to qualify for a CICA stay||
Up to 12 days following debriefing to protest to qualify for a CICA stay