Avoiding Common Bid Protest Mistakes, Part 4: Deconstructing Debriefings – What You Can/Can’t and Should Ask, and the Effect of the DoD Enhanced Debriefing Deviation

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

To all our friends and readers out there, we hope you are surviving protest season!  Our clients have had some big successes, and hopefully you have, too.  In the spirit of the season, the Obermayer Government Contracting group has been working on this series of posts, dealing with the most common bid protest mistakes made by contractors. You may already have attended our webinar, or read our posts on pre-award protests, required debriefings, and competitive range debriefings/protests.  Today we are tackling issues relating to debriefing questions, and the DoD Enhanced Debriefing Deviation. 

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Debriefings are one of the most powerful tools in government contracting.  But to use them effectively, you need to do a number of things. As a threshold matter, you need to recognize the circumstances in which debriefings are required, and get familiar with the deadlines for requesting them. (If you have questions on those topics, check out our previous post.) You also need to learn what information you can and cannot get out of a debriefing. Once you understand that, you must think strategically about the agency’s obligations and limitations with regard to information-sharing, so you can structure and prepare effective questions.  Finally, you need to understand the 2018 DoD deviation concerning enhanced debriefings, and its effect on protest filing deadlines. Ready? We’ll walk through these issues one by one.

1. The Information You Will – And Will Not – Get in a Debriefing

The FAR is very specific about what a contractor can and cannot get out of a debriefing, and the information the agency is obligated to provide differs depending on whether the contractor is requesting a debriefing as a result of an award decision, or as a result of being excluded from the competitive range. (For those confused about the competitive range, check out our last post.)  Contrary to what many contractors expect, you will not be getting a point by point comparison of your offer and the awardee’s offer. Nor will you be able to mine for information relating to your competitor’s pricing or past performance.  You will, however, be able to obtain critical information necessary to determine whether or not you have a basis for protest.  Let’s take a look at how it breaks down:

Pre-Award Debriefings For Offerors Excluded From Competition 

Pre-award debriefings must provide:
  • The agency’s evaluation of significant elements in the offeror’s proposal;
  • A summary of the rationale for eliminating the offeror from the competition; and
  • 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.
Pre-award debriefings will not provide:
  • The number of offerors;
  • The identity of other offerors;
  • The content of other offerors’ proposals;
  • The ranking of other offerors;
  • The evaluation of other offerors; or
  • Trade secrets; privileged or confidential manufacturing processes and techniques; commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; or the names of individuals providing reference information about an offeror’s past performance.

Post-Award Debriefings

Post-award debriefings shall provide:
  • 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.
Post-award debriefings will not provide:
  • Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors;
  • Any information prohibited from disclosure by FAR 24.202 or exempt from release under the Freedom of Information Act, including: Trade secrets; privileged or confidential manufacturing processes and techniques; commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; or the names of individuals providing reference information about an offeror’s past performance.

Surprised?  Well, I wager our opinion on the most important “required” element may surprise you, too!

2. “Reasonable Responses to Relevant Questions” and the Preparation of Effective Debriefing Questions

The most important element in each kind of debriefing is that last catch-all bullet point – the “Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.”  This is your opportunity to delve into any areas where you think something seems … questionable.   What you ask is entirely up to you, and will be extremely fact-specific, depending on your individual concerns and the circumstances surrounding the procurement at issue.  This allows you to tailor your questions and drill down on the potential source selection errors that you suspect occurred. For example:

  • Have an inkling that your competitor has some bad past performance in its history that the agency might have overlooked?  You can’t ask about the competitor’s past performance itself, but you can ask the agency about how it conducted the past performance evaluation, and have the agency walk you through its process to ensure it was consistent with the terms of the solicitation.
  • Don’t understand how your competitor could possibly have been awarded the contract at such a low price?  Ask for information about the agency’s cost realism analysis.
  • Wondering why you were assigned five strengths, no weaknesses, and still got rated as “Acceptable” on the technical factor, when the terms of the solicitation said a no-weakness proposal should be rated as “Good,” if not better?  Request a detailed explanation of the reasoning behind your rating!  Ask, specifically, why the rating does not match the definition or guidelines in the solicitation.
  • Suspect that your competitor relied too heavily on teaming partner’s technical experience in a procurement where that was not permitted?  Ask about how the agency weighted the past performance of major subcontractors and teaming partners as opposed to the past performance of the proposed primes. 

You get the picture. Your team should work carefully with a legal professional to explore potential problem areas and prepare questions prior to the debriefing.  An attorney with experience specific to government contracting can help to draft questions that address your specific concerns, as they relate to applicable law.
All of that said, asking questions and getting agency answers can become a bit more confusing when the agency sends you a written debriefing instead of providing a telephonic or live debriefing.  If you receive a written debriefing, you should still have the ability and opportunity to submit questions.  The tricky part becomes figuring out whether or not you have more time to file your protest.  Remember that all protests – except pre-award protests (which we dealt with in our previous post) – must be filed within 10 days of the date you knew or should have known of the basis for protest or, in a case where a debriefing is required and timely requested, within 10 days from the date of the debriefing.  We’re talking about required debriefings here, so the applicable deadline is going to be 10 days after the debriefing.  But, if you asked questions, when is your debriefing really “over”?  Does your 10-day deadline start running from the date of your debriefing, or the day you get responses to your questions?  Turns out that the answer may turn on whether or not you are dealing with a DoD procurement.  Which brings us to our last point…

3. The DoD Enhanced Debriefing Deviation

In March 2018, the DoD issued the Department of Defense (DOD) Class Deviation 2018-O0011 — Enhanced Post Award Debrief Rights, which stated that, for all post-award debriefings under FAR 15.506(d), all DoD agencies had to follow the same procedure with regard to debriefing questions.  Specifically, unsuccessful offerors requesting and receiving a debriefing must be given two business days after receiving the debriefing to ask any additional questions.  The agency should respond within five days from receipt of the questions, and the agency’s response should be in writing.  Most importantly, though, “the agency shall not consider the postaward debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror.”  This. Is. Huge!  It means that your 10-day protest deadline clock does not start ticking until you get answers to your questions, even if that is, for example, a week after your debriefing.  This gives DoD contractors an opportunity to digest and ruminate on what they learned in a debriefing, come up with any additional questions, and fully investigate all potential avenues regarding potential post-award protests.  Take advantage of this opportunity! 

Don’t get tripped up here, though. Remember that this only applies to DoD (not civilian) agency procurements, and, further, only to post-award debriefings pursuant to FAR 15.506(d).  In any other scenario, you may still be able to ask questions and you may be able – in certain limited circumstances – seek an agreement from the agency that your debriefing is not “concluded” until answers are received. But you cannot assume that your protest filing deadline is extended – most likely, it is not.  Confused yet?  Unfortunately, this can become an even-trickier-still issue when you are dealing with a multiple-agency procurement, or a GWAC.  To ensure you don’t miss a deadline, best practices are to consult a government contracting attorney to determine whether or not the DoD deviation applies.

DISCLAIMER: 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.

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