The Office of the Under Secretary of Defense for Acquisition and Sustainment has recently issued an Order establishing enhanced, post-award debriefing rights for contractors who participate in DOD procurements. The order supplements the traditional FAR § 15.506(d) right to a debriefing for FAR Part 15 Negotiated Procurements. The Order provides unsuccessful offerors enhanced rights “to submit additional questions related to the debriefing within two business days after receiving the [mandatory] debriefing.” (emphasis added). In other words, once you receive your mandatory debriefing, you have an additional two business days to submit follow up questions on the debriefing material you received. Once your request is submitted, “The agency shall respond in writing to the additional questions submitted by an unsuccessful offerer within five business days after receipt of the questions. The agency shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offerer.” (emphasis added). These enhanced rights do not apply where mandatory debriefings are not required. See for example; Task Order awards under an ID/IQ or other multiple award contract, GSA FSS buys under FAR Part 8.4, Commercial Item buys under FAR Part 12, and Sealed Bidding under FAR Part 14.

The principal purpose of the enhanced debriefing rights is to provide additional information to the disappointed bidder to enhance the bidder’s knowledge for future procurements and to avoid unnecessary bid protests that might arise because of a lack of information or confusing information from the agency. This change also has the effect of changing the timing calculation for the implementation of the automatic stay of performance: “the agency shall comply with the requirements of FAR § 33.104(c) regarding the suspension of contract performance [automatic stay] or termination of the awarded contract, upon receipt of a protest filed by an unsuccessful offerer at the U.S. Government Accountability Office (GAO) within-

1) Ten days after the date of contract award;

2) Five 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

3) Five days after the Government delivers its written response to additional questions submitted by the unsuccessful offerers, whichever is later.”

This new rule does not change the original requirement to file a GAO post-award protest within 10 days of when you know or should have known the basis of the protest.

For now, this directive applies only to DOD offices, the military branches, and DOD Field Activities. It does not apply to any U.S. Government civilian agencies.

For more information, contact MWL Partner Bill Welch.