RELATED EXPERIENCE

Highlights

  • Effective immediately, a disappointed offeror in DoD procurements now has the opportunity to submit follow up questions after the telephonic, in-person, or written post-award debriefing – with the debriefing remaining open while the agency provides a written response to the follow up questions. This will give companies that compete for DoD contracts additional tools to win work from the U.S. Government.  
  • The following deadlines apply to this opportunity:
    • The disappointed offeror must submit its additional questions related to the debriefing to the agency within two business days after receiving the post-award debriefing;
    • The agency must respond to timely submitted additional questions within five business days after receipt of the questions; and
    • The agency “shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.”
  • Where an offeror takes advantage of this opportunity in a DoD procurement, the deadline for filing a protest at GAO (and obtaining the CICA automatic stay) will run from receipt of the agency’s response to the follow up questions, as that is when the debriefing is concluded.
  • If offeror does not submit follow up questions related to the debriefing, the debriefing concludes at the end of the telephonic, in-person, or written debriefing – and the deadlines for protest and the CICA stay run from the end of the debriefing. 
  • More “enhanced” debriefing rights will be implemented by DFARS amendment. Those amendments are expected in June 2018.
  • The enhanced debriefing rights apply only to DOD procurements where a debriefing is required and timely requested.

 

The “New” Enhanced Post-Award Debriefing Rights 

(Applicable to DoD Procurements Only)
 
Opportunity to submit follow questions related to Debriefings (in DoD procurements):


Effective immediately, offerors in Department of Defense procurements – where a debriefing is required and timely requested -- have enhanced debriefing rights that permit a disappointed offeror the opportunity to submit follow up questions regarding a telephonic, in-person, or written debriefing – with the debriefing remaining open while the agency provides a written response to the follow up questions. 

The following deadlines apply to this opportunity:

  • The disappointed offeror must submit its additional questions related to the debriefing to the agency within two business days after receiving the post-award debriefing;
  • The agency must respond to timely submitted additional questions within five business days after receipt of the questions; and
  • The agency “shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror."

See 10 USC § 2305(b)(5) (as amended by Section 818 of the National Defense Authorization Act of 2018 (“2018 NDAA”)); see also 31 USC § 3553(d)(4) (also as amended by Section 818 of the 2018 NDAA); “Class Deviation – Enhanced Postaward Debriefing Rights”, DoD Office of the Under Secretary of Defense, Acquisition and Sustainment, Memorandum, dated March 22, 2018.

Effect on Protest Timeliness where mandatory debriefing is held in DoD procurements only:

If disappointed offeror timely submits follow up questions regarding the debriefing:  The 5-day count for the automatic stay at the Government Accountability Office (“GAO”) begins when the Government delivers its written response to the additional questions.
 
If disappointed offeror elects not to submit questions (or if the questions are submitted more than 2 business days after the debriefing):  The 5-day count for the automatic stay at the Government Accountability Office will run from the conclusion of the debriefing – when the debriefing actually ends. 

More Enhanced Debriefing Rights Are Coming (for DoD procurements):

In addition to the above “enhanced debriefing rights”, Section 818 of the 2018 NDAA directed the Secretary of Defense to revise the DFARS “[n]ot later than 180 days after the enactment of” the 2018 NDAA to provide for the following:

  • Mandatory release of the redacted version of agency’s source selection decisions in procurements where contract award exceeds $100 million.
  • The option for release of redacted version of the agency’s source selection decision where the contractor is “a small business or other nontraditional contractor” and the contract award is more than $10 million, but less than $100 million.
  • Provision to ensure that both successful and unsuccessful offerors were entitled to receive redacted copies of source selection decisions, where provided.
  • Robust procedures to protect confidential/proprietary information of other offerors.
  • Mandatory written or oral debriefings for all contract awards and task or delivery orders valued at $10 million or higher.


See Section 818 of the 2018 NDAA.

FOR QUESTIONS OR MORE INFORMATION, PLEASE CONTACT:

Kenneth B. Weckstein

P: +1.202.536.1750

F: +1.617.289.0772

Shlomo D. Katz

P: +1.202.536.1753

F: +1.617.289.0775

Pamela A. Reynolds

P: +1.202.536.1756

F: +1.202.536.1701

Tammy Hopkins

P: +1.202.536.1752

F: +1.617.289.0774

Andrew C. Crawford

P: +1.202.536.1731

F: +1.212.938.2953