Debriefings for Competitive
Acquisitions
October 19
NCMA Boston Chapter
Dick Bean
Associate General Counsel
General Dynamics C4 Systems
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Debriefings
• Why? Some reasons for the FAR policy:
– Provide every offeror the opportunity to find out
how to improve for next time (even the awardee)
– Find out what were good and bad proposal
techniques and methods
– Get limited insight into what the awardee did right
(excluding proprietary information)
– Insight into the complete evaluation process (to
confirm compliance)
– Instill confidence that offerors were treated fairly
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Debriefings
– However, does it really provide sufficient
information to explain why one proposal was
selected over others?
– If past history shows that some companies file
GAO protests and then withdraw when their
counsel receives the agency report, does it
indicate more could have been done at the
debriefing to establish the agency made the right
decision and preclude that protest filing? Maybe!
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Debriefings
• GAO Report B-158766, November 23, 2010
Annual Report to Congress on Bid Protests
– 2,299 filed in FY 2010, 441 decided on the merits
• GAO Report B-401197, April 9, 2009
Report to Congress on Bid Protests Involving
Defense Procurements
– 2004-2008 average: 55.78% of DoD protests
closed within 30 days of filing
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Pre-Award Debriefings
• 15.505 -- Preaward Debriefing of Offerors.
– Statutory right to request this, but the contracting
officer may refuse for “compelling reasons” as
long as reasons for delay are documented in the
contract file
• If delayed, debriefing shall be provided during
postaward debriefing period
– Can be done orally, in writing, or by any other
method acceptable to the contracting officer
– Should be chaired by the contracting officer (but
any senior ranking person can chair the event)
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Pre-Award Debriefings
• Agency’s evaluation of significant elements in
the offeror’s proposal
• Summary of the rationale for eliminating the
offeror from the competition
• Reasonable responses to relevant questions
about what authorities were followed in the
competitive range process (e.g., regulations,
policies, solicitation content)
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Pre-Award Debriefings
• What will not be disclosed:
– Number of offerors
– Identity of offerors
– Content of other proposals
– Ranking of other offerors
– Evaluation of other offerors
– Anything prohibited in a post-award debriefing
• Debriefing summary required in the contract
file (discoverable if protest later filed)
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Pre-Award Debriefings
• Practice tips:
- Use/provide actual evaluation notices (if not
provided with comp. range letter)
- Provide in sufficient time to allow review
- Alternatively, provide break in debriefing to
allow review
- Raise questions regarding any Q & A’s posed
during solicitation and pre-solicitation phase
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Post-Award Debriefings
• 15.506 – Postaward Debriefing of Offerors.
– An offeror, upon written request, shall be
debriefed and furnished the basis for the selection
decision and contract award
– Can be done orally, in writing, or by any other
method acceptable to the contracting officer
– Should be chaired by the contracting officer (but
any senior ranking person can chair the event)
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Post-Award Debriefing
• Content– Evaluation of significant weaknesses or
deficiencies
– Overall evaluated cost or price (including unit
prices), technical rating (if applicable) of the
successful offeror and the debriefed offeror and
past performance information on the debriefed
offeror
– Overall ranking of all offerors (if used)
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Post-Award Debriefing
• Content (continued)– Summary of the rationale for award
– For acquisition of commercial items, the make and
model of the item to be delivered
– Reasonable responses to relevant questions about
procedures, regulations and other applicable
authorities
– Some agencies require more than the FAR: the
decision document (as redacted)
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Post-Award Debriefing
• What cannot be provided– No point-by-point comparisons with other offerors
– Information prohibited from disclosure by the
Freedom of Information Act, trade secrets, privileged
or confidential manufacturing processes or
techniques, commercial and financial information that
is privileged or confidential, including cost
breakdowns, profit, indirect cost rates, and names of
individuals providing past performance information
• Debriefing summary required for the contract
file
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Release Policies
• Debriefed offeror should be provided the
same rating materials for its proposal that
were briefed to the Source Selection Authority
during the decision briefing
• DoD agencies may provide redacted decision
document at debriefing
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Delivery Order Competitions
• Debriefings are required for “fair opportunity”
competitions for delivery orders exceeding
$5M. See FAR 16.505(b)(4)
• Similar procedures as Part 15 source selection
• Contracting Officer must document the
contract file with the basis of award and
rationale for any tradeoffs among price and
non-price factors. See FAR 16.505(b)(5)
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Post-Award Debriefing
• Practice tips– The more advance notice, the better! Get senior
staff from both Government and offeror together
(level above the proposal writer)
– Consider VTC or telephone (rather than written)
– The more questions resolved at a debriefing may
preclude a protest
– Openness is the key to success - counsel will get
documents anyway with agency report or through
discovery process at GAO
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Protest After Award
• FAR 33.104(c)(1) - When the agency receives
notice of a protest from the GAO within 10
days after contract award or within 5 days
after a debriefing date offered to the protester
for any debriefing required by FAR 15.505 or
15.506, whichever is later, the contracting
officer shall suspend performance or
terminate the awarded contract [except when
following for override procedures]
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Post-Award Debriefing
• Timing is almost everything sometimes!
• FAR allows a contracting officer to deny a
debriefing if request is untimely (>3 days after
notice)
• See Coffman Specialties, Inc. B-400706.2, Nov.
12, 2008 – Debriefing denied. Award made
Sep. 21; Sep. 22 inquiry for certain info
(denied), then Oct. 8 letter citing FAR 15.506
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Post-Award Debriefing
• Debriefing “should” occur within five days
after receipt of a written request
• Window of opportunity to obtain a stay of
contract performance is a critical time line
• Within five days after “required” debriefing or
within ten days after award if no debriefing
required (e.g., sealed bid or GSA Schedule)
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Post-Award Debriefing
• Can an unsuccessful offeror file a protest more
than five days after debriefing? Yes, up to ten
days after award or debriefing, but no stay of
performance! See Velos, Inc., B-400500.9,
December 14, 2009 (footnote 13)
• Filing an agency protest does not “toll” or
suspend these time lines!
• Requirements for overcoming statutory stay
of performance are high; can be challenged
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Techniques/Strategies
• Assure timely, clearly stated, written
debriefing request is submitted (consider
asking for the Source Selection Decision
Document prior to debriefing to review it)
• Have right personnel present – including level
above the proposal writer for objectivity
• Not a debate – an exchange of information
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Techniques/Strategies
• Ask questions about your proposal
– Price (or rates) too high or low?
– Responsive to requirements (any deficiencies)?
– Areas for improvement (significant weaknesses)?
– Areas that were strengths?
– If best value, why a higher priced proposal was
worth the extra cost (or if you are higher, why
wasn’t your proposal worth the extra cost)?
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Techniques/Strategies
 Adequacy of discussions?
 Examine the debriefing charts and source
selection decision document – any significant
weaknesses or deficiencies identified which were
not the subject of discussions? See Tiger Truck,
LLC, B-400685, January 14, 2009
 Any inconsistencies between record of discussion
and final evaluation? See The Boeing Company, B311344 et al, June 18, 2008; Velos, Inc., B400500.7, November 28, 2009
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Techniques/Strategies
• “Best value” questions may reveal issues with
application of the evaluation criteria
– Potentially uncover “hidden” evaluation criteria
– Possible misapplication of the published relative
order of importance of the criteria
– Adequate understanding of what your proposal
offered versus the awardee?
– If you only met a requirement, was that a
disadvantage?
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Techniques/Strategies
• Compare language on briefing charts for
similar strengths to the awardee
– Was the same technical benefit treated the same?
– Confirm equal evaluation credit
– If different, ask why
– If no good explanation, could be a basis to
challenge the decision
• Similarly compare the decision document
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Techniques/Strategies
• Past Performance
– A subjective area but worth questioning
– Any references fail to respond? How many tries?
– What about awardee’s references? Same number
of attempts (equal treatment)?
– Were you allowed the opportunity to respond to
all negative references (excluding CPARS)?
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Techniques/Strategies
• Don’t overlook the price/cost evaluation
process (Tiger Truck case previously cited)
– Was the evaluation criteria correctly applied?
– Was there a rational basis for the cost realism
assumptions made?
• Try to get all questions answered at the
debriefing because of timeliness rules – call a
“life line” if needed, or take a “caucus” break
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Techniques/Strategies
• “Cygnus’s proposal contained several major
weaknesses … and it had a major weakness
under the single most important technical
evaluation subcriterion …” (decision
document) Cygnus Corporation, Inc., B292649.4, December 30, 2003
• Agency had not addressed these matters with
Cygnus – protest sustained
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Post-Award Protest
 Merits of Agency Protest/Ombudsman
Complaint:
 While you may forego the ability to take it further
to the GAO due to timeliness issues, it may still
serve an intended purpose to find out what went
wrong and how to fix it (may also build goodwill)
 If agency uncovers actual errors that would have
affected the decision, the agency would have an
obligation to take corrective action
▪ Corrective action would result in a follow-on debriefing
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Post-Award Protest
• Agency Protest/Ombudsman Complaint
(cont.)
– Unsuccessful offeror could be building an
administrative record that could be used at the
U.S. Court of Federal Claims
• U.S. Court of Federal Claims is the forum to
challenge an “override” decision (overriding
statutory automatic stay of performance)
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Override of Automatic Stay
• FAR 33.104(c)(2) - two alternate bases:
• Urgent and Compelling Circumstances
Examples: potential for loss of life; national
security concerns; significant safety issues
• Best Interests of the Government
Examples: program schedule impacts;
program cost impacts
• HCA determination; GAO must be notified
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Override of Automatic Stay
• U.S. Court of Federal Claims determines
whether override decision was arbitrary,
capricious, or an abuse of discretion
• “Ensuring CICA Stay Overrides are Reasonable,
Supportable, and Less Vulnerable to Attack:
Practical Recommendations in Light of Recent
COFC Cases” by Wilkinson and Ehlers,
December 2007 Air Force Law Review
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Topics for Discussion
• Role of Each Debriefing Team Member:
– Program Manager
– Contracting Officer
– Technical Evaluation Lead
– Past Performance Evaluation Lead
– Cost/Price Evaluation Lead
– Legal Counsel
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Topics for Discussion
• Contractor – provide assurances of no
protest?
– Will this result in a different debriefing content?
– Yes?
– No?
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Topics for Discussion
• Viability of debriefings at contractor facility
– Is the cost/effort worth it?
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Topics for Discussion
• What role, if any, can the Proposal Analysis
Report play in the debriefing process?
– Arguably not required to be released, but would
that be considered in some circumstances?
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Topics for Discussion
• Use of the Freedom of Information Act in
obtaining relevant information
– Substantively useful?
– Timeliness?
See Automated Medical Products Corporation , B275835, February 3, 1997 [untimely]
Coffman Specialities [cited decision earlier]
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Any Questions?
Thanks for attending!
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