• Debriefings Tips
  • September 12, 2018 | Author: Lori Ann Lange
  • Law Firm: Peckar & Abramson A Professional Corporation - Washington Office
  • One area of government contracting that can be particularly frustrating for government contractors is learning why you didn’t get the contract award. When the Government is using sealed bidding, it’s usually easily to find out why you lost. You compare your bid pricing against your competitor’s bid pricing. Since award is made to the low, responsive bidder, looking at the bids generally will tell you why you lost.

    Understanding why you lost often is much more complicated in procurements using competitive negotiation. In those types of procurements, award often is made on a best value basis. The contractor whose proposal offers the best combination of price and other evaluation factors (such as technical capability, past performance, experience, and key personnel) is the winner. Best value, however, is a subjective determination and contractors often can’t figure out or disagree with the contracting agency’s best value determination.

    To assist contractors in understanding why their proposal was not selected, the Government provides debriefing on competitively negotiated procurements conducted under FAR Part 15 and some task and delivery order procurements conducted under FAR Part 16. Debriefings themselves are often frustrating for contractors as many government agencies seek to limit the amount of information they provide; often with the thought that providing too much information may give the contractor ammunition to file a bid protest challenging the award. Many contractors, however, are not going into debriefings looking for grounds to protest. They just want a better understanding of why they lost.

    With that said, here are some tips for contractors can follow to try to get the most out of their debriefings:

    1. Always request your debriefing within three calendar days of when you received notice of the contract award. See, FAR 15.506(a)(1). While the agency may honor untimely debriefing requests, it is not required to do so. Also, untimely debriefings may not extend the time to file a protest. FAR 15.506(a)(4)(ii).

    2. If you have a choice, try to get a face to face debriefing or even a telephonic debriefing. This gives you a better opportunity to ask questions and to discuss issues raised during the debriefing. Remember, however, that you are not entitled to a face to face or telephonic debriefing and the agency has the right to give you a written debriefing. FAR 15.506(b).

    3. If you get the opportunity for a face to face or telephonic debriefing, assign one person to take notes. This should be that person’s sole role at the debriefing. This creates a much better record of what occurred at the debriefing.

    4. Understand what the agency is supposed to tell you and what it can’t tell you. The FAR states that, at a minimum, the debriefing should include information on:

    • The agency’s evaluation of the significant weaknesses or deficiencies in your proposal.
    • The overall evaluated cost or price (including unit prices) and technical rating of you and the winner.
    • Your past performance information.
    • If the agency did a ranking, the overall ranking of all offerors.
    • A summary of the rationale for award.
    • If the agency is buying commercial items, the make and model of the item to be delivered.
    • Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

    FAR 15.506(d). Remember, the agency will not provide you with a point-by-point comparison of your proposal against the winner’s proposal. Nor will the agency reveal the strength and weaknesses of the winner’s proposal.

    5. Ask questions. Even if you get a written debriefing, the agency is supposed to respond to relevant questions about whether the Government complied with source selection procedures. Some agencies are reluctant to answer questions and require that questions be submitted before the debriefing. If you ask questions, be careful to make sure that the debriefing remains open while you are waiting for a response to your questions.

    Recently, Congress strengthened the debriefing requirements for DoD procurements in § 818 of the National Defense Authorization Act. Although not all of these enhancements have taken effect yet, one enhancement that has taken effect is the ability to ask questions. DoD now has to give contractors the ability to ask questions following the receipt of the debriefing. Contractors have two business days after the debriefing to submit their relevant questions. The debriefing remains open while DoD responds to those questions.

    One enhancement that has not yet taken effect is the requirement for DoD to disclosure the agency’s written source selection award decision when the procurement is in excess of $100 million ($10 million for small business awards). DoD may redact the decision as necessary to black out the other offerors’ confidential information. When implemented, disclosure of this document should provide contractors with a better understanding of the agency’s best value award decision and make debriefings better – at least on some procurements.