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This White Paper describes the general rules that an unsuccessful government contractor must follow to get An effective required debriefing. It is based on our years of government contract experience working with clients who want to get as much information from the government on why they lost a contract or task order.
Part 1 describes the steps to get a required debriefing and the information that a contractor can expect to learn at a debriefing. Part 2 provides guidance on the best approach for contractors to take to ensure they get an effective debriefing.
Part I – GETTING A REQUIRED DEBRIEFING
Step 1. Identify the kind of solicitation process you were involved in.
The preliminary issue in getting information from the government is determining whether you are entitled to ANY kind of feedback. The amount of feedback you get depends on the kind of solicitation you responded to. Some solicitations you responded to entitle you to no feedback. Other types of solicitations require the government to give you information in varying amounts. So the preliminary task is to focus on the type of solicitation you were involved in.
- GSA FSS buys:
If you submitted a proposal for a GSA Federal Supply Schedule (FSS) order, you are entitled to a “brief explanation” but ONLY if award was based on factors other than price alone. According to FAR 8.405-2(d):
If an unsuccessful offeror requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the award decision shall be provided.
Unfortunately, FAR gives no details of what “a brief explanation” involves.
If you were involved in a GSA FSS solicitation, you don't need to read any further. As described above, your rights to proposal feedback are very limited.
It is important to add the GSA awards contracts and orders not only under the FAR Part 8, the FSS, but also contracts and task orders under FAR Part 15 and FAR Part 16 (for example, Alliant 2, VETS 2). Vendors participating in these solicitations have more debriefing rights so please keep reading this white paper.
- Simplified Acquisitions (currently, NTE generally $150,000)
If you submitted a proposal for a simplified acquisition, you are entitled to a “brief explanation.” According to FAR 13.106-3(d):
(d) Request for information. If a supplier requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the contract award decision shall be provided (see 15.503(b)(2)).
Specifically, according to FAR 15.503(b)(2), you are entitled to
# of offerors solicited
# of proposals received
Each awardee’s name and address.
The items, quantities, and any stated unit prices of each award.
In general terms, the reason(s) the offeror's proposal was not accepted.
Notice that other type of buys under FAR Part 13, Simplified Acquisitions such as blanket purchase agreements (BPAs), orders under BPAs, and simplified procedures for commercial items under FAR Subpart 13.5 do not provide for any type of debriefing.
- Contracts under FAR Part 15 and Orders over $5.5M under FAR Part 16
If you responded to a Request for Proposals (RFP) under FAR Part 15, you are entitled to a required debriefing. Also, if you responded to an RFP or Request for Quotations (RFQ) under a FAR Part 16 multiple-award contract like an Indefinite Delivery, Indefinite Quantity (IDIQ) contract, and the value of the order exceeded $5.5M, you are entitled to a “Required debriefing.” In addition, the Department of Defense allows enhanced post award debriefings.
The term “required debriefing” is a term of art—it’s the phrase that the regulations use to describe the type of information a contractor is entitled to.
It is important to add one last point. A government contractor can always ask the government for a debriefing for any kind of procurement. As always, there's no harm in asking. However, if the government gives you a debriefing, you cannot expect the government to give you all the information you would be entitled to if you had earned a required debriefing.
Step 2. File a timely request for a debriefing.
If you are entitled to a required debriefing as described above, you must file a timely request for a debriefing or you will lose your right to a required debriefing.
The required debriefing request involves the “three day turn-around” rule. To get a required debriefing, you must get a written request for one into the contracting officer’s hands within 3 days of learning you had been eliminated from the competition pre-award or that the award was made to someone else so you lost (post-award).
What typically happens is that after an unsuccessful offeror receives an email from the contracting officer telling the contractor that it was excluded from the competition or that it simply lost, the contractor responds with an email asking for a required briefing. Assuming that the contracting officer does not send an email, the three day period starts to run when the award is formally announced by the agency, usually on fedbizopps.gov.
On occasion, an unsuccessful contractor will miss this 3-day deadline. When that happens, a contractor can ask for the government to provide a voluntary debriefing. But missing the required debriefing 3-day deadline means that the contractor is not entitled to the debriefing information a contractor must get under a required debriefing.
There are few magic words that a contractor has to use to get a timely required debriefing request. All the email or letter has to say is that the contractor is requesting a required debriefing and ask for either a pre-award debriefing or a post-award debriefing. Although the request can be simple, make sure that the request is not vague; specifically request a debriefing for the solicitation involved. In addition, it does not hurt to put in your letter or email a request for additional information that you want to get from the debriefing.
Step 3. ASSUMING YOU WERE ELIMINATED FROM THE COMPETITION PRE-AWARD: Deciding on whether to get a pre-award or a post-award debriefing.
If you were notified that you lost post-award, ignore this step. Go to step 4.
Contractors eliminated from the competition pre-award can, in their 3-day required debriefing request, ask the contracting officer to delay the debriefing until after award. The advantage as we shall see below is that the post-award debriefing gets them more information. The required debriefing can also be delayed by the government “if, for compelling reasons, it is not in the best interests of the government to conduct a debriefing” until after award has been made. In this case, as well, the contractor gets more information at the debriefing.
Step 4. Know the limited information available at a required debriefing
Be prepared to get only limited information from the government at a required debriefing.
A. Information from a preaward debriefing
According to FAR 15.505(e):
At a minimum, preaward debriefings shall include—
(1) The agency's evaluation of significant elements in the offeror's proposal;
(2) A summary of the rationale for eliminating the offeror from the competition; and
(3) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.
(1) The number of offerors;
(2) The identity of other offerors;
(3) The content of other offerors proposals;
(4) The ranking of other offerors;
(5) The evaluation of other offerors; or
(6) Any of the information prohibited in 15.506(e).
B. Information from a postaward debriefing:
According to FAR 15.506(d)
At a minimum, the debriefing information shall include—
(1) The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable;
(2) 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;
(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;
(4) A summary of the rationale for award;
(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and
(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.
FAR 15.506(e) prohibits the contracting officer from disclosing the following at a postaward debriefing:
The debriefing shall not include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including—
(1) Trade secrets;
(2) Privileged or confidential manufacturing processes and techniques;
(3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and
(4) The names of individuals providing reference information about an offeror's past performance.
You will notice that FAR uses the phrase “at a minimum.” However, it is not unusual for contracting officers to routinely convert this phrase into “at a maximum.” It’s important to stress to the contracting officer – politely of course – that what is described in these paragraphs is what the minimum amount of information to be disclosed; FAR also says this minimum is what the contracting officer “shall” provide.
Here are a few points on each of these minimums. Paragraph one says you are entitled to have the government tell you the significant weaknesses and deficiencies. There is no harm in asking the contracting officer to also provide you with what strengths your proposal showed.
Paragraph two refers to rating and paragraph three refers to ranking. Rating commonly refers to an evaluation process on a point basis, say 100 points maximum, or adjectival ratings for example “Excellent.”
Paragraph three deals with ranking. Although the FAR uses the phrase “the overall ranking of all offerors” it is not unusual for a contracting officer to tell your ranking, for example, you finished fourth. However, you want to know where your competition came in and so you would like to know which companies were second and third for example. Not all contracting officers will disclose the second and third ranked companies by name.
Paragraph four, “a summary of the rationale for award,” requires the government to say more than simply the winner was “the best value to the government.” That, of course, was the rationale for award in many cases so it is absolutely no information regarding the rationale. The government should be telling you things like “the winner had excellent past performance, had the lowest price offered and had a plan for providing backup” if a certain situation occurred.
Paragraph five “the make and model of the item” for commercial items typically presents no problems.
Paragraph six is a debriefing requirement that seems ridiculous because it seems that FAR is forcing contracting officers to incriminate themselves by requiring them to tell you about any mistakes that they may have made during the solicitation process.
This required item, however, has real value to the government. It is not unusual, in a complex solicitation, for the government to make a mistake. Rarely, however, are these mistakes a fatal mistake. Most mistakes the government makes during the solicitation process are what is referred to as harmless error. The government’s mistake in many cases never really harmed the unsuccessful offeror’s chances of getting a contract. In other words, the debriefing vendor suffered no “competitive prejudice” from the mistake the government made. As a practical matter, it may well be in the government’s interest to disclose the mistakes early in the process rather than having a mistake come out during a lengthy protest process that the government will win.
One of the recurring problems at a debriefing is that the government doesn’t give out all the information they’re supposed to. Unfortunately for contractors, how much or how little information a contracting officer provides at a debriefing is one of those rare situations where there is no effective way for vendors to force the contracting officer to provide information. The usual protest form, the Government Accountability Office (GAO) has consistently taken the position that whatever happens at a debriefing is beyond its jurisdiction. So, as a practical matter, a contracting officer’s decision to not release relevant information at a debriefing is generally beyond any legal challenge.
C. Information from an Enhanced Postaward Debriefing
The Department of Defense (DoD) has expanded the information available to bidders. Called an enhanced debriefing, contracting officers now must include in the debriefing information provided to unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing. The agency shall respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions. The agency shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror.
Part II – GETTING AN EFFECTIVE DEBRIEFING
We believe that a debriefing can easily be a wonderful marketing opportunity for our clients. So we want to share our business approach to debriefings.
We believe our business clients can make the best use of a debriefing if they approach a debriefing as a one-on-one marketing opportunity with the government designed to help our clients win the next solicitation.
We have seen how easily a debriefing can turn into a lose-lose proposition. It is very easy for both the contractor and the contracting officer to take the wrong approach at a debriefing.
From your perspective, you naturally are discouraged and upset that the government did not see the merit in a proposal you put so much time and effort into. unsuccessful offer roars are tempted to approach a debriefing with two goals. The first goal is to convince the government that the government should change its mind and award them the contract. Alternatively if they cannot get the government to change its mind at the briefing their second goal is to get as much information as possible out of the contracting officer so that they can improve their chances of winning a formal protest against the contracting officer in winning the contract after the successful protest. An adversarial approach, however, will never help a contractor get new contracts. So you must adopt, perhaps against your instincts, a different attitude.
However, it will be difficult to do so because you may find the contracting officer not following the rules and not providing you all the information far says you are entitled to. So the second aspect of an unsuccessful debriefing is the approach that the contracting officer takes at a debriefing.
The only way the debriefing can be truly successful is for you to understand the context of the debriefing from the contracting officer’s viewpoint. You must understand where the contracting officer is coming from.
This adversarial attitude completely turns off contracting officers providing the debriefing they invariably walk away from that debriefing with a bad attitude about you.
You will be tempted to reargue your proposals merits and be tempted to take an adversarial approach.
Let’s look at the contracting officer. Another reason the contracting officer walks out with a bad attitude at the end of the debriefing is the attitude that a contracting officer walks in with in the first place. From the contracting officer standpoint, a debriefing is just one more thing on their plate, probably already overcrowded plate. In addition, contracting officers often go into a debriefing with the grudging defensive attitude. They don’t want to give you too much information for fear that the information could lead to a successful protest of the contract. To avoid lawsuits, contracting officers often give information grudgingly, they say little and if possible put everything in writing so there can be no doubt about what was said at the debriefing and they try to get the written debriefing document vetted by the agency’s lawyers for added protection.
Bidders must anticipate plan on the contracting officer taking this limited, cautious approach and try at every step to establish a good environment for the debriefing.
We believe that the best use of debriefing is to use it to get the next contract. They must find out why they lost the last bid and how they can improve their chances for future contracts second, you must use the debriefing for relationship building with the contracting officer so that the debriefing can lead to possible future contracts the contracting officer must leave the debriefing with a better understanding of your capabilities. You must leave the debriefing knowing how you can improve future proposals.
ADD: USE AGENCY DEBRIEFING GUIDES FOR QS