United States: Enhanced Debriefing Rules In The NDAA Offer Protesters Several Practical Advantages

In Short

The Situation: The 2018 National Defense Authorization Act requires that the Secretary of Defense implement new rules for enhanced debriefings for certain types of acquisitions.

The Result: Once implemented, the enhanced debriefing rules will provide disappointed offerors with several advantages, including enhanced information about source selection decisions, a follow-up question-and-answer period, and additional time to consider whether to protest.

Looking Ahead: The enhanced debriefing scheme has the potential to increase the public's (and contractors') confidence in the procurement system by providing more transparency and could also decrease the number of protests filed.

In our December 2017 Commentary, Jones Day discussed the important changes government contractors should expect as a result of the 2018 National Defense Authorization Act ("NDAA"). One important change is the NDAA's requirement that the Secretary of Defense revise the Defense Supplement to the Federal Acquisition Regulation ("DFARS") to provide additional post-award debriefing rights to contractors competing for federal government contracts. For contracts exceeding $100 million, all required post-award debriefings must include a redacted version of the agency's written source selection award decision. For contracts valued between $10 million and $100 million, small businesses or nontraditional contractors may request the redacted source selection decision. Perhaps even more significant, however, is the provision's new question-and-answer period.

Mandatory Question-and-Answer Period Added to Debriefings

The new debriefing rules will provide the opportunity for disappointed offerors to submit additional follow-up questions within two business days of a mandatory post-award debriefing, and the agency is required to answer these questions, in writing, within five business days. Significantly, a debriefing is not considered to be concluded until the day the agency delivers its written responses.

This new debriefing scheme is particularly significant in the context of timeliness for GAO bid protests. Under the enhanced debriefing scheme, the five-day period for obtaining a stay of contract performance pursuant to the Competition in Contracting Act ("CICA") does not commence until the day the agency delivers its written response to the follow-up questions. With two additional business days for submission of written questions, and up to five additional business days for the agency to deliver a response, this new debriefing scheme could provide protesters with an additional week—or more—to file their protests after a debriefing. This is a significant increase in the amount of time available to protesters, since disappointed offerors are required to file their GAO protests within five calendar days of the their debriefing to obtain a CICA stay of performance.


Debriefings are an element of transparency in the procurement system, but they have also proven to be an important factor in both the efficiency of, and the public's confidence in, the integrity of the system. It has long been recognized that higher-quality debriefings decrease the likelihood of a protest. Congress acknowledged this fact in passing the Federal Acquisition Streamlining Act of 1994, which contained debriefing requirements aimed at increasing trust and decreasing protests. The 2018 RAND report on bid protests reiterates the importance of informative debriefings by stressing the inverse correlation between the quality of a debriefing and likelihood of a protest: "too little information or debriefings that are evasive or adversarial will lead to a bid protest in most cases."

It stands to reason that once the enhanced debriefing rules are implemented, they will lead to fewer bid protests because contractors will not be incentivized to file a bid protest to understand the basis for the award decision or otherwise obtain basic information about how the procurement was conducted. Those protests that are filed will be more targeted and better informed.

Practical Considerations

  • Offerors should carefully review and consider the debriefing guidance in FAR Parts 15.505 and 15.506. Offerors should prepare questions for the agency that take into consideration the requirements of FAR 15.505(e) (pre-award debriefings) and FAR 15.506(d) (post-award debriefings).
  • Just as disappointed offerors should always consider requesting a mandatory debriefing, under the new debriefing rules, offerors should always consider submitting follow-up questions to clarify ambiguous statements or where the offeror reasonably believes the debriefing did not provide sufficient information.
  • If additional time for considering whether to protest is needed, the offeror may want to wait until the second business day after the debriefing before submitting follow-up questions. The extra days will allow more time for assessing the debriefing materials to determine whether a protest is warranted and for selecting the most meritorious potential protest arguments.
  • Finally, companies should keep in mind that the enhanced debriefing rules have not yet been implemented. Rather, the 2018 NDAA instructs the Secretary of Defense to revise the DFARS to implement this new enhanced debriefing scheme. In the meantime, protesters need to comply with the current debriefing rules and protest timelines. However, one way to potentially obtain additional time under the current rules is to ask the agency to hold open the debriefing while it answers additional questions. Although agencies have no obligation to do so, if they agree to hold open the debriefing, this could provide a potential protester with additional time to assess whether to protest and to perfect protest arguments.

Three Key Takeaways

  1. Contractors should always consider requesting a debriefing and, once the enhanced debriefing rules are implemented, should always consider submitting follow-up questions.
  2. Offerors may want to take advantage of the additional time provided by the mandatory question-and-answer period to conduct a more in-depth assessment of whether to protest and to sharpen their protest arguments.
  3. Enhanced debriefings will likely lead to fewer protests and higher-quality protests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions