Enhanced Debriefings, Protest Timing, and Asking the Right Questions

Debriefings

      Debriefings are an important tool that unsuccessful bidders can, and should, use to gain valuable information. The insights obtained during a debriefing can help contractors understand the customer better, strengthen future proposals, and provide information for a potential protest.

Enhanced Debriefings

      The DoD and GSA recently issued policy directives on “enhanced postaward debriefing rights.” Enhanced debriefings allow unsuccessful offerors to ask additional questions in response to the standard debriefing information provided in FAR Part 15.506(d). Questions related to the debriefing should be submitted to the agency within two business days of receiving the debriefing. The agency must respond to the questions within five days after questions are submitted.

      In addition to crafting better win-strategies for future procurements, questions can help a contractor decide whether a protest is worthwhile. The government’s response to questions can provide valuable insight on whether the agency adequately followed the procedures laid out in the RFP, or if the agency unreasonably evaluated your proposal. Previously, this sort of information was generally unavailable to the contractor unless they pursued a postaward bid protest and this material was uncovered during the discovery process of the protest.

Positive Impact on Protest Timing

      A second benefit of postaward enhanced debriefing policies is a potential extension of the deadline to protest at the GAO and suspend contract performance, for up to a of maximum seven additional days (2 days to submit questions, plus 5 days for the agency to respond). Under enhanced debriefings, contract performance is suspended if a protest is filed at the GAO within–

• 10 days after the date of contract award; or
• 5 days after a debriefing date offered to the protester under a timely debriefing request and no additional questions related to the debriefing are submitted; or
• 5 days after the Government delivers its written response to additional questions (but only one set) submitted by the unsuccessful offerors, whichever is later (emphasis added).

While timely filing must still must be strictly adhered to, and these are still tight deadlines, it does give the contractor additional time and information before making a protest decision.

The Importance of Asking the Right Questions

The DoD class deviation was issued in March 2018. Over the past year, we have submitted and reviewed many enhanced debriefing questionnaires and the government’s response to the questions, and gained insight on the new process. We found it remains important to write the debriefing questions to encourage full responses from the agency. It is critical to pose open-ended questions requiring a substantive answer, rather than leading questions that may prompt a mere “yes,” “no,” or simply refer to the RFP and/or FAR. The recommended question approach is to include any questions that increase your potential to win future proposals, and to focus on one or two vulnerable areas to scrutinize closely, which may be susceptible to a protest.

      Enhanced debriefings provide additional insight into the agency award process, and increase the time to consider whether to file a protest. The policy can also assist in analyzing the probability of success on a potential protest, so long as the right questions are asked.

Additional Information

If you have questions regarding enhanced debriefings or other federal government contract issues, contact the professionals at Williamson Law Group at (301) 788-8198 for confidential and candid assistance and counsel, or e-mail our attorneys at info@williamsonlawgroup.com.

This Contract Compliance Update is to keep readers current on government contract matters and is not intended to be legal advice. If you have any questions, please contact Williamson Law Group for legal advice regarding your particular case.