- Posted on: Aug 24 2021
In a previous blog (located here), we discussed that the debrief, in the simplest of terms, is an explanation by the agency for choosing the proposal or quotation selected for award. But that does not address those situations where an issue arises before the award. Those situations on a competitive procurement give rise to a pre-award debriefing. This blog will explore the contents of a pre-award debriefing, when they are available, and how they impact the timing of a protest.
The Contents of a Pre-award Debriefing
In sharp contrast to a post-award debriefing, the applicable Federal Acquisition Regulation (FAR) and statutes provide that the contents of a pre-award debriefing are more limited, allowing a potential protester information regarding:
(1) the agency’s evaluation of “significant elements” of the offeror’s offer,
(2) a summary of the rationale for the exclusion, and
(3) reasonable responses to relevant questions.
The agency is prohibited from disclosing the number or identity of other offerors and may not disclose information about the content, ranking, or evaluation of other offeror’s proposals. See FAR 15.505(f); 41 U.S.C. § 3705(e); 10 U.S.C. § 2305(b)(6)(D).
Is an Agency Required to Provide a Pre-award Debriefing?
The short answer is: “no.” However, that short answer packs a lot of considerations.
When a prospective offeror is excluded from the competitive range or otherwise excluded from the competition (for instance, because the proposal is determined to be technically unacceptable), the offeror is required to request a pre-award debriefing within 3 days of the date on which the excluded offeror receives the notice of exclusion. FAR 15.505(a)(1); 41 U.S.C. § 3705(b); 10 U.S.C. § 2305(b)(6)(A).
As explained in the applicable statutes and regulations, the contracting officer must make every effort to conduct the debriefing for the excluded offeror as soon as practicable but may delay the debriefing if it is in the best interests of the government. For example, sometimes, the agency delays the pre-award debriefing until after award if there is some concern the pre-award debriefing would have a detrimental impact on the procurement process.
The Impacts on a Timely Protest
In those instances where you have timely requested a debriefing – within three days of the notice of exclusion from the competition – but the agency delays in providing the debrief until after award, a protest can still be considered timely.
In those instances where you delay the pre-award debriefing, for instance, because you would prefer a post-award debriefing that generally provides more information, or where you have requested a timely debriefing but ask the agency to delay providing the debriefing until a later date for whatever reason, you will have potentially impacted the timeliness of any protest filed subsequent to the debriefing.
The takeaway here is that you never want to be the cause for the delay for the debriefing. While an agency can be the cause of the delay without impacting the timeliness of a protest, you cannot.
Do you have questions about pre-award debriefings and whether you should request one? We can help answer those questions and plot your strategies. Contact us by calling 800-747-9354 or by emailing firstname.lastname@example.org. We can help you assess the issues and determine if filing a bid protest 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