- Posted on: Sep 18 2021
As explained in prior blogs [Bid Protests – What is a Debrief? and Bid Protests – What is a pre-award debriefing?], the debrief is an explanation by the agency for choosing the proposal or quotation selected for award, the details of which depend on the specific Federal Acquisition Regulation (FAR) section under which the procurement was conducted. Note that debriefings are not always required. For example, under FAR Part 8.4 procurements, the agency provides a “brief explanation for award.” While these are slightly different from debriefings, many of the general principles discussed here still apply.
This Insight will discuss in more depth who can request a debriefing, when it should be requested, what form debriefings take and who can participate, potential questions to pose in conjunction with a debriefing, and some strategies.
Who Can Request a Debriefing, and When Should it be Requested?
For pre-award debriefings, any offeror excluded from the competitive range or any offeror excluded from the competition for other reasons may request a debriefing. A pre-award debriefing must be requested in writing and must be received by the contracting officer within 3 days after receipt of the notice of exclusion from the competition. The contracting officer should hold the debriefing “as soon as practicable,” but the agency may delay the debriefing until after award if it is not in the government’s best interest to conduct a debriefing at that time. An aggrieved potential offeror, however, may not delay the debriefing.
For post-award debriefings, the unsuccessful offeror(s) and awardee(s) are eligible to request a debriefing. The request must be in writing and received by the contracting officer within 3 days after receipt of the notice of contract award. Generally, debriefings take place within 5 days after the request.
What Form do Debriefings Take, and Who Can Participate?
Debriefings can be conducted:
- via videoconference,
- in writing, or
- any combination of the oral and written forms.
Traditionally, the first three forms, in-person, telephonically, and videoconference, create an interactive process that allows for flexibility and spontaneous questions/answers or clarifications of information provided. That is not to say that written debriefings cannot provide an interactive process, but that interactive process is different and may not provide the same insights to be gleaned from tone, body language, inflection, or any spontaneous back-and-forth.
In the age of the pandemic, the form of debriefings has changed a bit, as in-person debriefings are not practical. Only time will tell if the pre-pandemic practice of conducting in-person debriefings will be reinstated. But in this digital age and the ease with which in-person debriefings have been conducted by other means, it is hard to imagine that the government contracting industry will revert to that practice with any enthusiasm.
The participants of an in-person, telephonic, or videoconference depend on a few factors. Some procuring agencies limit the number of persons that can attend, some request an advanced list of names and positions of those that will attend, and some place no restrictions.
A quick note about outside counsel participation: some agencies prefer that no attorneys attend on behalf of the offeror. While some agencies do not restrict having an entity’s attorney(s) participate during the debriefing, those agencies may not be as forthcoming with information as they would be without the attorney taking part.
In practice, it is useful to have the contracts manager, head proposal writer(s), and anyone else who helped drive the contract capture team. One or more of those persons participating for your company should be assigned to take detailed notes during the debriefing. In some instances, it can be useful to have those attending meet immediately after the debriefing and record and discuss further observations.
Preparing questions before the debriefing is helpful to make sure you have asked all the questions you wanted to ask. Sometimes questions are not allowed before or during the debriefing but are allowed after a live or written debriefing (but see the notes about triggers for timeliness below).
Questions should be tailored to the procurement in question. These generic questions provide a useful starting point:
- What were the overall ratings for the non-cost/price factors/subfactors for the awardee versus our company?
- What was the overall evaluated price for the awardee versus our company?
- Did the agency make any adjustments to the cost/price of the awardee or our company? If yes, what were they?
- Did we receive any weaknesses, significant weaknesses, or deficiencies under any of the non-cost/price factors/subfactors? If yes, what were they?
- Did we receive any strengths or significant strengths under any of the non-cost/price factors/subfactors? If yes, what were they?
- What were the key discriminators in the awardee’s proposal or quotation?
- What was the agency’s rationale for award?
Making the Most of Your Debriefing
- Ask meaningful questions and request copies of relevant documents.
While an agency is not always required to address questions in conjunction with a debriefing (a notable exception is a debriefing conducted in accordance with the Department of Defense (DoD) Enhanced Post-award Debriefing Procedures), asking questions can facilitate the exchange of information. For example, preparing questions ahead of a debriefing (whether oral or written) will help focus issues and an agency may provide more information about its evaluation of your proposal or quotation than originally planned.
Questions should request information about the overall evaluation but also request specific information regarding the technical, past performance, and cost/price evaluations, and the award decision.
Requesting a redacted copy of the source selection decision document will also assist in understanding the agency’s evaluation and award process. While an agency is under no obligation to provide a copy, it does not hurt to ask.
- Understand the triggers that start timeliness considerations.
There are various triggers during a debriefing that can start a protest clock running. For example, sometimes, an agency will provide a written debriefing before a live debriefing. In these instances, you should clarify with the agency or request that the debriefing will not “close” until after the live debriefing.
Similarly, for written or oral debriefings, sometimes the offeror has follow-up questions after the debriefing is conducted. These questions and any agency answers do not necessarily equal a continuation of the debriefing. Again, in this instance, you should clarify with the agency or request in advance that the debriefing will not “close” until after you have received the agency’s answers.
Enhanced DoD debriefings permit questions to be submitted 2 days after the debriefing, to which the receipt of the answers closes the debrief. In those instances where no questions are asked in that 2 day period, the debrief is considered closed at the debriefing, thus starting the protest clock. See Nika Technologies, Inc. v. United States, CAFC Case No. 2020-1924 (Fed. Cir. 2021).
Under procurements conducted in accordance with FAR Part 15 or FAR Part 16, debriefings, when timely requested, are required. It is the debriefing that triggers the protest clock in order to obtain a stay of performance or award. There may be some strategy in waiting the full 3 days to request the debriefing so that the protest clock does not start running and a protest is due on Monday morning.
- Request a debriefing even if you do not intend to file a protest.
For unsuccessful offerors, a debriefing can serve as a useful tool in letting you know where there were issues with your proposal or quotation and how you can improve your proposal or quotation for future procurements with that agency.
Not all strategies in requesting a debriefing relate to being the unsuccessful offeror. An awardee may also request a debriefing. Many clients wonder why it would make sense to request a debriefing as the awardee. As discussed here and in previous blogs, debriefings provide information regarding why the procuring agency awarded the contract to the entity chosen. As the awardee, this information can serve different purposes. For example, it can inform the company of areas of its proposal or quotation that were assessed as strengths or significant strengths. This can be valuable information when writing and critiquing proposals for other procurements. Further, if a protest is filed against that company’s award, information regarding the evaluation of its proposal or quotation may assist in defending against the protest and may provide clues into the areas that the agency found differentiated the awardee from the unsuccessful offerors.
- Contact a bid protest attorney when you receive the notice of award and before your scheduled debriefing.
Contacting a bid protest attorney as soon as you receive the notice of award can help in numerous ways. For instance, if you are the incumbent, there may be issues to consider regarding whether to protest.
Before the debriefing, a bid protest attorney can help make sure the debriefing is timely requested and can help draft questions. This is also the time to discuss any value in having your outside counsel attend a live debriefing.
After the debriefing, a bid protest attorney can (a) help identify any issues with the agency’s evaluation, (b) analyze whether your company was treated fairly in comparison to the awardee, (c) analyze whether the agency followed the terms of the solicitation during the evaluation, and (d) help identify any other potential protest issues.
If you have questions about the debriefing process, contact us by calling 800-747-9354 or by emailing email@example.com. We can help you assess the issues and determine what strategy is right for you.
To learn more about bid protests, visit our Bid Protest Lawyer page.
To learn more about bid protests, click here, or contact our Government Contracts partner lead below:
Mary Pat Buckenmeyer is a partner at Dunlap Bennett & Ludwig. Mary Pat’s practice focuses on government contracts area with clients ranging from large defense contractors to small start-up contractors.
Mary Pat’s government contracts law experience includes a range of issues, including contract claims and disputes, compliance, counseling, requests for equitable adjustment, small business issues, size protests and appeals, Freedom of Information Act matters, contractor responsibility and integrity issues, prime-subcontract disputes, teaming agreements, joint venture agreements, non-disclosure agreements, and review of prime and subcontracts, contract terminations and settlement proposals, debarment and suspension, cost and pricing issues, and overseas contracting.
To learn how Ms. Buckenmeyer can assist with your legal needs, click here.
Tagged with: bid protests
Posted in: Government Contracts