Enhanced debriefings are finally here.  On March 22, 2018, Shay Assad, the DoD Director of Defense Procurement and Acquisition Policy, issued a DoD-wide policy directive that, effective immediately, DoD is offering “enhanced postaward debriefings” to unsuccessful offerors.  Def. Acquisition Reg. Sys. Memo. No. 2018-O0011 (Mar. 22, 2018).  Mr. Assad’s policy directive, issued as a class deviation to the Federal Acquisition Regulation, gives practical effect to Section 818 of the National Defense Authorization Act for Fiscal Year 2018.  Accordingly, an unsuccessful offeror to a DoD contract award that is based upon the submission of “competitive proposals[,]” and where the unsuccessful offeror timely requested a debriefing within three calendar days of receiving notification of the contract award, now not only has a right to a full debriefing, but also to an enhanced debriefing.  10 U.S.C. § 2305(b)(5)(A).

By law, to be considered a full, initial debriefing, DoD must provide, orally or in writing:

(i) the agency’s evaluation of the significant weak or deficient factors in the [unsuccessful] offeror’s offer;
(ii) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(iii) the overall ranking of all offers;
(iv) a summary of the rationale for the award;
(v) in the case of a proposal that includes a commercial item that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; [and]
(vi) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency[.]

10 U.S.C. § 2305(b)(5)(B).  Now, after obtaining this information, the unsuccessful offeror can also get an enhanced debriefing.

An enhanced debriefing means that after the Government has issued its initial debriefing, the Government must allow the unsuccessful offeror to pose at least one round of follow-up questions, provided that the questions are submitted no later than two business days after receipt of the initial debriefing.  Further, the agency has to respond with written answers within five business days.  What is more, until the Government supplies the written answers, the five-calendar-day period for timely submitting a GAO bid protest in order to obtain a mandatory stay of performance of the awarded contract will not start to run.

The easy way to remember the enhanced debriefing rules is 3-2-5-5.  Three calendar days to request the debriefing, two business days to submit additional questions after the debriefing, five business days for the Government to respond, and five calendar days to file the protest.  Or, stated more simply: 3 days to request it; 2 days to question it; 5 days to answer it; and 5 days to protest it to get a mandatory stay of performance.  

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.