The traditional debriefing process, by which unsuccessful offerors can obtain information on the basis of the Government’s selection and contract award, was just improved to the benefit of contractors. Under the revised debriefing process, contractors will now have the opportunity to submit written questions and receive written responses from the procuring agency. Only after receipt of these written answers will the clock for filing a protest begin to run. We believe that this enhancement to the debriefing process will be a significant improvement for contractors: allowing for a meaningful exchange on the Government’s basis of award and selection decision and providing valuable information for contractors to weigh when deciding whether or not to pursue a protest.
By memorandum issued March 22, 2018, the enhanced debriefing procedures required by the 2017 National Defense Authorization Act (“NDAA”) formally took effect. As we previously discussed in connection with the 2018 NDAA (link to prior blog post), the post-award debriefing required by FAR 15.506(d), which typically provided for a very limited exchange between the contractor and agency, will now include an opportunity for unsuccessful offerors to submit written follow-on questions within two (2) days of receiving the agency’s debriefing. The agency will then have five days to provide its written responses to the contractor’s questions. It is only upon the delivery of these written responses, that the clock for filing a protest and securing an automatic stay of performance in accordance with the Competition in Contract Act (“CICA”), FAR 33.104(c), begins to run.
Achieving a CICA stay is critical because it ensures the suspension of contract performance during the pendency of the protest. Under the enhanced debriefing procedures, the CICA stay will be in effect for protests filed within:
- Ten days after the date of contract award;
- Five days after a debriefing date offered to the protestor under a timely debriefing request and no additional questions related to the debriefing are submitted; or
- Five days after the Government delivers its written response to the additional questions submitted by the unsuccessful offeror, whichever is later.
There are caveats that unsuccessful offerors must bear in mind with respect to obtaining the benefits of this enhanced debriefing process. First, the process only applies to DoD procurements; procurements issued by other government entities are not required to provide this opportunity for a written exchange of questions following a debriefing. Second, in order to take advantage of the enhanced debriefing and extended filing deadline, written questions must be submitted within two days of the debriefing.