United States: Post-Award Protest Primer: Part 2

Last Updated: July 17 2017
Article by Daniel E. Chudd and James A. Tucker

Part 2: Debriefings

You just received an email: "We appreciate your interest in the XYZ procurement. The Agency determined that your proposal did not represent the best value to the Government. Award has been made to Acme Corp. at a price of $50,000,000." After kicking your trashcan across the office, what do you do next?

If the procurement was conducted on the basis of competitive proposals under Federal Acquisition Regulation (FAR) Part 15, or as a task/delivery order competition resulting in an award exceeding $5.5 million under FAR Subpart 16.5, you're entitled to a debriefing so long as you request one in writing within three days of your receipt of the notice of award. See FAR 15.506(a); 16.505(b)(6). Even when a debriefing is not required, many agencies will offer one (or some form of feedback resembling one). In a future post on timeliness, we'll discuss some important differences between these non-required debriefings and required debriefings in the context of when a protest must be filed.

The Office for Federal Procurement Policy (OFPP) recently issued an excellent discussion of debriefings in the latest in a series of Myth-Busting Memoranda. ( See our blog post on the Debriefing Memo here.) As the OFPP put it, "[d]ebriefings afford offerors on a competitive solicitation an explanation of the evaluation process, an assessment of their proposal in relation to the evaluation criteria, a general understanding of the basis of the award decision, and the rationale for exclusion from the competition." Debriefings, when they are thorough and meaningful, are not only great learning experiences that can help your firm prepare a better proposal in future competitions. Indeed, in addition to being useful to unsuccessful offerors, debriefings can offer significant insight to awardees. As a result, we encourage successful offerors to request debriefings as well.

Debriefings also can help you decide whether to protest the contract award. Sometimes a debriefing suggests that the procurement may have been tainted with error and perhaps should be challenged. At other times, a debriefing helps you understand the rational reason an agency awarded a contract to another firm, even if you may disagree with the agency's subjective judgment. The worst debriefings are skimpy, evasive, or fail to provide the required reasonable responses to relevant questions—and, as the OFPP rightly notes, often provoke protests that would not have been filed if the agency had been more forthright in providing information.

Debriefings may be conducted "orally, in writing, or by any other method acceptable to the contracting officer." FAR 15.506(b). FAR 15.506(d) sets out the minimum that a required post-award debriefing under FAR Part 15 must include:

  • The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable;
  • The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;
  • The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;
  • A summary of the rationale for award;
  • For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and
  • Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

Agencies are free to provide more information—such as redacted source selection documents, discussion of the debriefed offeror's strengths, and so forth—as long as they avoid a point-by-point comparison of your proposal with those of other offerors and safeguard the proprietary information of other offerors. FAR 15.506(e). Some agencies have internal guidance that results in additional information being provided as a matter of course. In fact, the Air Force recently piloted a program that allowed for an extended debriefing period in which outside counsel for an offeror would potentially have access to source selection sensitive information not normally provided in a debriefing.

Pursuant to the FAR, offerors are allowed to ask "relevant questions" and receive "reasonable responses." We encourage our clients to take advantage of this opportunity, regardless of whether they are contemplating a protest. At times an agency may try to avoid this requirement by providing a written debriefing and promptly saying that the debriefing is closed. Our advice, when you receive such a debriefing, is to request in writing the opportunity to ask questions pursuant to FAR 15.506(d)(6) and seek confirmation that the debriefing will be held open until such questions are answered. Although the agency will not always assent, in more cases than not the agency will agree to respond to the questions.

At other times, agencies will request offerors to submit their questions in writing in advance of the debriefing (especially if it is an oral debriefing). Even if such questions are requested in advance, if a relevant question is provoked by something in the debriefing itself, agencies should respond, whether or not the question was submitted in advance. Agencies may respond to these supplemental questions on the spot or may respond later in writing.

A debriefing should not be closed until the required information and reasonable responses have all been provided. As we'll discuss later in this series, knowing the date the debriefing formally closed often allows you additional time in which to file a GAO protest and receive an automatic stay of contract performance.

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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