United States: OFPP Finds What Contractors Have Known: Effective Debriefings Will Lead To Better Proposals And Fewer Protests

Last Updated: January 24 2017
Article by Daniel E. Chudd and Lauren J. Horneffer

On January 5, 2017, the Office of Federal Procurement Policy ("OFPP") released the third memorandum in its "Myth-busting" series. The third memo found that effective debriefings help to prevent protests and that there is clear room for improvement in the ways in which agencies conduct debriefings.  OFPP created the "myth-busting" series as part of an initiative to address misconceptions that currently hinder acquisition-related communications between agencies and government contractors.  The misconceptions, responses, and best practices in this memo are the results of an online survey of industry, an "industry day" where OFPP met with industry attendees, and the existing debriefing guidance of certain agencies.

Feedback from industry indicated that debriefings are extremely valuable: debriefings educate vendors on how to make stronger offers in the future; allow agencies to analyze their own processes; and reduce the chance of protest – if done properly. Studies suggest that many protestors, frustrated by the lack of information in the debriefing, file a protest to assure themselves that the source selection was properly conducted.  Despite the numerous benefits of meaningful debriefings, however, misconceptions prevent agencies from taking full advantage of them.  OFPP addressed eight misconceptions and provided best practices for better debriefings in its Myth-busting memorandum.  OFPP also suggested that agencies develop debriefing guides if they do not already have one in place.  The Department of Homeland Security, the National Aeronautics and Space Administration, the Department of Defense ("DOD"), and the Department of the Treasury ("Treasury") have issued comprehensive debriefing guidance that other agencies could emulate.

Below we have listed the eight misconceptions addressed by the OFPP as well as the OFPP responses and some brief commentary on some of the issues not addressed by OFPP:

Misconception #1: The main misconception addressed by OFPP is that debriefings inevitably lead to protests.

  • OFPP Response: This is incorrect. OFPP concluded that unsuccessful offerors will likely accept the loss of an award if the debriefing shows that the government acted fairly and in accordance with the solicitation. OFPP concedes that there is an exception for those high-dollar procurements that require significant proposal costs and promise great economic benefits upon a successful protest. OFPP suggests that agencies look at Treasury's debriefing guide, including its mock-debriefing scenarios that focus on open and positive communication. The DOD also warns in its debriefing guide that chances of a protest will increase due to a poorly prepared debriefing
    • MoFo Commentary: In our experience, effective debriefings are far more likely to result in no protest than are ineffective debriefings. In fact, even in circumstances in which the significant proposal costs and economic benefits appear to favor a protest a scenario that OFPP views as a potential exception, we have seen effective debriefings result in no protest being filed because the debriefing has demonstrated the reasonableness of the agency's award in those cases.

Misconception #2:  Contracting officers ("COs") should only provide minimal feedback for procurements under Federal Supply Schedules ("FSS") or when using simplified acquisition procedures.

  • OFPP Response: While the FAR only requires a brief explanation for the award decision, providing debriefings like those in FAR Part 15 help vendors understand how to make offers more competitive (especially small businesses) and prevent bid protests.
    • MoFo Commentary: Not only do the debriefings help the offerors, but meaningful debriefings will also help the government because they will likely result in more competitive bids in the future, leading to better value for the government.

Misconception #3:  Debriefings should only disclose proposal ratings, and that the offeror was not selected as the winning proposal, in order to prevent issues being raised by other offerors.

  • OFPP Response: While debriefings cannot provide a page-by-page analysis of the proposal or a point-by-point comparison to the awardee's proposal, they can thoroughly explain deficiencies in the offeror's proposal so that the offeror may avoid repeating them in the future. Clear and comprehensive debriefings reassure offerors that they were treated fairly and that all proposals were evaluated in accordance with the solicitation.
    • MoFo Commentary: The misconception here appears to be that agencies should provide as little information as possible – indeed, much less than FAR 15.506(d) requires. Such a debriefing, however, is more likely to result in a protest, if only to allow the offeror an opportunity to have its attorneys review the information that should have been included in an effective debriefing or to allow it to receive redacted documentation providing this information.

Misconception #4:  Offerors do not use debriefing information to improve their work.

  • OFPP Response: Understanding the government's perspective on strengths and weaknesses is valuable to future business decisions and proposals. Industry indicated that offerors are less likely to protest when they understand their weaknesses and the source selection outcome. Offerors spend significant time and money preparing proposals and deserve a "thorough and meaningful debriefing."
    • MoFo Commentary: Effective debriefings will also benefit the agency and other agencies in the future, as they will result in better proposals and more competition.

Misconception #5:  Attorney presence at debriefings signals an impending protest, and COs should limit the debriefing discussion when attorneys are present.

  • OFPP Response: Attorney presence does not necessarily signal an impending protest, especially if the debriefing is thorough and well planned. Government legal counsel also should participate in debriefings when possible.
    • MoFo Commentary: The presence of legal counsel at an effective debriefing could result in fewer protests, given the legal counsel's knowledge of the high standard of review applied to agency decisions, as well as the bar required by prejudice in a protest.

Misconception #6:  Agencies should not debrief the awardee, as this is a waste of time for both parties.

  • OFPP Response: FAR 15.506 allows for post-award debriefings for unsuccessful and successful offerors alike. Even successful offerors can identify areas for improvement, and apply that knowledge in future proposals. Additionally, debriefings allow COs an opportunity for feedback from the offeror on the solicitation and the source selection process.
    • MoFo Commentary: Debriefing the awardee may also be beneficial to the agency in the event that a protest is filed by an aggrieved offeror. The awardee may be able to provide an outsider's perspective on the procurement to determine the most likely lines of protest. Awardee's counsel may also be able to assist agency counsel more effectively in the early stages of a protest as a result of a debriefing. To that end, debriefing the awardee prior to debriefing the other offerors, and certainly prior to the deadline for any protest, could also be beneficial.

Misconception #7:  All debriefings ought to be in writing.

  • OFPP Response: There is no specific requirement for the manner in which a debriefing is conducted, but agencies and industry alike have expressed a preference for in-person debriefings. If this is impractical, agencies should consider phone or video teleconferencing.
    • MoFo Commentary: In our experience, it is nearly impossible for an agency to provide an effective debriefing in writing only. It is certainly beneficial for offerors to receive debriefing materials in advance of a debriefing, as it will lead to more efficient use of the time. Providing only a written debriefing, however, can often be both inefficient and ineffective. That is why FAR 15.506(d)(6) requires that a debriefing include, at a minimum, "reasonable responses to relevant questions..." To meet this requirement in the context of a written debriefing often means that an offeror must first submit its questions, then request that the debriefing be held open until responses are provided, then wait for responses. This process can take far longer than simply allowing for questions during an in-person debriefing, or requesting that questions be submitted in advance of an in-person debriefing.

Misconception #8:  Debriefings are impossible to prepare for.

  • OFPP Response: While agencies may not be able to predict the exact questions they will be asked, there are areas that can safely be assumed to be relevant. For example, offerors will want to know why they were not selected and how they can improve going forward. Agencies should consider having knowledgeable personnel attend the debriefing; preparing an agenda and outline; gathering all necessary materials; and drafting opening and closing statements. Thorough preparation gains the confidence of the offeror and lessens the likelihood of protest.
    • MoFo Commentary: In addition to the points OFPP makes, much of the debriefing preparation should already be complete as a result of the evaluation itself. An adequately documented award decision will often include documents that can be used either in full or in redacted form during the debriefing. For example, some agencies have provided the evaluation reports for the offeror being debriefed. And NASA's FAR Supplement requires in most circumstances that it produce a decision statement during the evaluation that can be provided during the debriefing. NFS 1815.308(3). These documents, which are already written at the time of award, can be used very effectively in debriefings.

Although these conclusions may be evident to many contractors, the misconception that providing less information in debriefings is a "safer" course may persist among some agencies. It is heartening, then, to see that the OFPP has stressed just the opposite in its third Myth-busting memorandum:  Our experience is that offerors have questions about award decisions and are more likely to protest when a debriefing is ineffective and does not provide sufficient answers.  A thorough and well-prepared debriefing will go a long way toward assuring an offeror that the procurement was conducted according to the solicitation and applicable regulations.  Hopefully, OFPP's memorandum will foster better communication and encourage meaningful debriefings going forward.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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