Debriefings and Bid Protests After
Federal Contract Award
Decisions: Strategies for Success
William A. Shook, Esq.
G. Matthew Koehl, Esq.
Presentation Outline
 Background
 Pre-Award and Post-Award Debriefing Rules
 Debriefing “Exception” to Timing for GAO Bid Protests and
Automatic Stay
 Special Procedural Rules and Strategic Considerations for
Bid Protests
 Checklist to Prepare for a Debriefing
 Strategies for Successful Debriefings
 Task and Delivery Order Protests
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Background – Purpose and History of Debriefings
 Learn how to improve future offers
 Determine if there exists a basis for protest
 According to one government Agency, debriefings:
 Instill confidence you were treated fairly
 Assure you qualified people evaluated your proposal
 Reduce protests and misunderstandings
 Historically, many protests filed for “discovery” purposes
where the agency has not provided adequate information
 Post-1996 debriefing process designed to prevent this
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Background - Debriefing Basics
 Formal debriefing rules specify timing and content of debriefings.
FAR 15.505/15.506 (Attachment A)
 Debriefing rules apply only to FAR Part 15 negotiated procurements;
other types of competitive procedures require only limited disclosure
of evaluation information. See, e.g., FAR 8.405-2(d)
 Debriefings affect timing for filing bid protests and obtaining the
GAO’s “automatic stay” of contract award and performance
 Two types of Debriefings: Pre-Award and Post-Award
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Pre-Award Debriefings – Notice of Exclusion
 Only for those excluded from competitive range or otherwise
excluded from competition prior to award
 CO should provide “prompt” written notice of exclusion and
basis for not requesting a proposal revision. FAR 15.503(a)
 “Prompt” is not defined in the FAR
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Pre-Award Debriefings – Time for Requesting and Deferral Option
 Contractor must request in writing within 3 calendar days of
notification. FAR 15.505(a)(1); if no timely written request, no right
to a debriefing. FAR 15.505(a)(3)
 Saturday email notifying contractor of its competitive range exclusion
is “deemed received on the next business day.” International Res.
Group , B-286663, 2001 CPD¶3
 Contractor may delay its one debriefing until after award and obtain
broader post-award debriefing information
 But, competition is over, Agency invested in outcome
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Pre-Award Debriefings – Timing
 Must be held “as soon as practicable” after timely request. FAR
15.505(b)
 Agency may refuse request if, for “compelling reasons,” a timely
debriefing is not in Government’s best interest. FAR 15.505(b)
 If pre-award debriefing refused:
 Agency must provide debriefing within post-award debriefing
time requirements (5 days)
 Agency must provide broad post-award debriefing information
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Pre-Award Debriefing – Format
 Methods for conducting pre-award debriefings:
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Oral
Written
Any other method acceptable to the Contracting Officer
Subject to ability to meet minimum informational requirements
in FAR 15.505(e)
 FAR 15.505(d)
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Pre-Award Debriefing
 What Must Be Discussed?
 Evaluation results of significant elements in proposal
 Summary of rationale excluding offer
 “Reasonable” responses to “relevant” questions about whether
the Government followed the rules
 What do “reasonable” and “relevant” mean?
 FAR 15.505(e)
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Pre-Award Debriefing
 What May Not Be Discussed?
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Point by point comparison
Proprietary or exempt information
Number of offerors
Identify of offerors
Content of other offerors’ proposals
Ranking of other offerors
Evaluation of other offerors
 FAR 15.505(f)
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Post-Award Debriefing
 Any losing contractor who has not had a pre-award debriefing
 Written request must be filed within 3 calendar days after
notification or no right to a debriefing. FAR 15.506(a)(1)
 Should be held within 5 days “to the maximum extent
practicable.” FAR 15.506(a)(1)
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Post-Award Debriefing
 What must be discussed?
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Deficiencies and significant weaknesses of proposal
Ratings of your and awardee’s proposal
Your past performance ratings
Total evaluated cost/prices, including unit prices
Overall ranking of proposals, if done
Summary of rationale for award decision
“Reasonable” responses to “relevant” questions
 FAR 15.506(d)
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Post-Award Debriefing
 What is not discussed?
 Point by point comparison of proposals
 Any information exempt from disclosure under the Freedom of
Information Act (FOIA)
 Trade Secrets
 Confidential manufacturing processes
 Commercial or financial information
 Names of individuals providing past performance information
 FAR 15.506(e)
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GAO “Automatic Stay” and Bid Protest Timing
 General Rules:
 Automatic Stay: 10 days from award for timely protest to the
Government Accountability Office (GAO). 31 USC 3553; FAR
33.104(c) (Attachment B)
 Timely Post-Award Bid Protest. 10 days from date contractor
knew or should have known basis for protest (whichever is
earlier). 4 CFR 21.2(a)(2) (Attachment C)
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Debriefing Exception to GAO Stay and Protest Deadlines
 Exception tolls deadline for “stay” and timely bid protest
 Designed to encourage debriefings and to discourage
“defensive” or “blind” protests
 Modified Automatic Stay: 5 days from required debriefing. FAR
33.104(f). Also tolls time for obtaining automatic stay for Agency
level protests. FAR 33.103(f)(3)
 Modified Timely Post-Award GAO Bid Protest: 10 days from the date
of a required debriefing. 4 CFR 21.1(a)(2)
 Exceptions are only for “required” debriefings
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When Is a Debriefing “Required”?
 “Required” = procurement conducted on the basis of “competitive
proposals” where debriefing is requested and required. 4 CFR
21.1(a)(2)
 A debriefing is not “required” if not timely requested. FAR
15.505(a)(3); 15.506(a)(4)
 “Competitive proposals” is not defined by GAO’s Bid Protest
Regulations, nor by statute or regulation. Systems Plus, Inc. v.
United States, 68 Fed. Cl. 206 (2005)
 Timely requested debriefings under FAR Part 15 procurements are
“required.” Sherrick Aerospace, B-310359.2, 2008 CPD¶17
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GSA Schedule Debriefings Are Not “Required”
 FSS task and delivery order competitions are conducted under FAR
8.4, even where they closely resemble FAR Part 15 rules
 No “required” debriefing - the Agency need only provide “a brief
explanation of the basis for the award decision.” FAR 8.405-2(d)
 No “tolling” of time for filing protests against GSA schedule task and
delivery orders even if the agency provides a debriefing
 Ordinary “10 day rule” applies to GSA Schedule task and delivery
order protests (i.e., must file within 10 days of when you know or
should know basis for protest)
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Protests Filed Before A “Required” Debriefing Are “Premature”
 GAO protests filed in advance of a “required” debriefing will be
dismissed, without prejudice. 4 CFR 21.1(a)(2)
 Exception to timeliness rules is designed to encourage de-briefings
and to discourage “defensive” or “blind” protests. 61 Fed. Reg.
39039, 39040 (July 26, 1996)
 Don’t need to file pre-debriefing protest even if contractor is aware of
the Agency evaluation errors to which later protests. The Boeing
Company, B-311344.11, et al. 2008 CPD¶114 (June 18, 2008)
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Protests Based Upon Non-Required Debriefings
 Protests based upon non-required debriefings are allowed
 Must satisfy 10-day rule, no tolling
 If you first learn the basis for protest in a non-required or untimely
requested debriefing and file in 10 days, 10-day rule is satisfied. See
Raith Eng'g & Mfg. Co., B-298333.3, 2007 CPD¶9
 The Agency sometimes provides written debriefing materials in
advance of non-required debriefing session so that debriefing
information is not “newly discovered”
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Delayed Debriefings and “Diligent Pursuit” Rule
 Tolling may extend for months if debriefing is timely requested. GeoCenters, Inc., B- 276033, 97-1 CPD¶182
 BUT, “diligent pursuit” required of protesters, contractor must not
wait too long in face of Agency delaying debriefing
 Protest untimely where protester delayed debriefing for more than 1
month for FOIA response and its president’s vacation. Pentec Envtl.,
Inc., B-276874.2, 97-1 CPD¶199
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Stay for the Entire Debriefing
 Franz Rubenbauer Raumausstatter, B- 290317.3, et al., 2002
WL 1562079 (Jul. 16, 2002)
 Two protesters walked out of debriefing
 Protests filed more than 10 days after debriefings based on
information that would have been presented in debriefings
(had protester representatives stayed)
 Protest dismissed, contractors accountable under “diligent
pursuit” rule for information
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When Does the Debriefing End?
 Contractors often send post-debriefing requests for
clarification or additional information
 Absent “clear indication” that a debriefing is extended
pending the Agency’s response to additional questions, the
debriefing is presumed over at the conclusion of the session.
New SI, LLC, B-295209, et al., 2005 CPD ¶ 71
 Posing questions after the debriefing session concludes does
not extend time for filing a bid protest. Id.
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Protesting the Debriefing
 Inadequate debriefing generally not a valid protest ground
 Bad debriefing has no effect on previously-made Agency
source selection decision
 Whittaker Services Corporation, B-260951, 95-2 CPD¶102;
Sarasota Measurements & Controls, Inc., B-252406.3; B252406, 94-2 CPD¶32
 Inadequate debriefing will, however, lower the threshold for
pleading protest grounds with specificity
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Errors Appearing Only In The Debriefing Materials
 If evaluation “errors” appear in the debriefing materials only, and not
the evaluation record, no valid protest
 Debriefing occurs after the evaluation is complete, evaluation errors
must appear in the evaluation record for a valid protest
 GAO: debriefing is only an explanation of the Agency's evaluation
and source selection decision, not the evaluation or decision itself
 Del-Jen International Corporation, B- 297960, 2006 CPD¶81; EER
Sys., Inc., B-290971.3, B-290971.6, 2002 CPD¶186
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Remedying Competitive Harm In A Post-Debriefing ReCompetition For The Same Requirement
 Agency corrective action may result in a re-competition after the
debriefing and release of awardee proposal information
 Substantial Agency discretion to determine the correct remedy:
 Upholds determination not to release all offerors’ prices;
disclosure of awardee’s prices under these circumstances did
not create an improper competitive advantage. Symvionics, Inc.,
B-293824.2, 2004 CPD¶204
 Upholds release of all offerors’ prices to remedy the potential
competitive advantage (even if not improperly obtained) held by
the other offerors whose prices were not disclosed. Ocean
Servs, LLC , B-292511.2, 2003 CPD¶206
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Debriefing Preparation
 Procurement-specific list of items to which you are entitled
 Prepare list of “relevant” questions
 Specific to each evaluation factor and subfactor
 Address past performance information
 Ask for source selection memorandum
 Attachment D to Course materials
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Debriefing - Strategies for Success
 Participation Strategy
 Request oral or written?
 Provide questions in advance?
 Have you received written debriefing materials in advance of
debriefing session?
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Debriefing Attendees
 Relevant Business Development group employees
 Relevant Proposal Preparation group employees
 Government sales executive(s)
 Don’t bring your lawyer, even if you are considering a protest
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Debriefing – Conduct and “Tone”
 Behave reasonably and dispassionately
 You are there to learn, not accuse
 Don’t ask “irrelevant” questions
 Unsupported accusations of agency bias or misconduct
 Conduct “lessons learned” session with business development
and proposal team after debriefings
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Task and Delivery Order Protests
 Protests to GAO are now authorized by statute for task or delivery
orders valued in excess of $10 million
 Effective May 2008 for DoD, FAR rule pending
 Offerors must be given a post-award debriefing
 GAO has not ruled whether task order debriefing is “required”
 For now, don’t rely upon GAO exception to timeline for stay and
timely protest available for “required” debriefings
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Questions?
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