Debriefings are a critical tool in any federal contractor’s toolbox. As a threshold matter, they are a useful (if not mandatory) first step in many bid protests, helping contractors gather the information they need to substantiate protest arguments. But debriefings are a useful information gathering tool outside the protest context as well. Indeed, they are the primary way a contractor – even a successful, awardee-contractor – can find out how to improve future proposal efforts. Despite their undisputed importance, there is a lot of misinformation out there about debriefings. As a result, many contractors have serious misconceptions regarding debriefings, when to use them, what information one does and does not get in a debriefing, and how debriefings can impact the bid protest process. Below are several key tips to keep in mind to make the most of your debriefing!
1. ALWAYS get one!
You might have already gleaned this from the above, but even a winning proposal is not perfect. Even if you get the contract award, there may be lessons to be learned. Even if you won, there is always room for growth. Always request a debriefing and take the constructive criticism back to your team with the idea of further improving future proposals.
2. Understand What Information You Can – and Can’t – Get in a Debriefing
The FAR provides very specific guidelines for what information the government must provide, and what information the government cannot provide, in a debriefing. The information that a contractor is and is not entitled to depends on whether the debriefing is a pre- or post-award debriefing.
In my view, the most important things for contractors to remember here are: (1) there are limitations on what can be provided and a contractor may not use debriefings as a fishing expedition to gather information on its competitors; and (2) whether pre- or post- award, contractors always have a right to “[r]easonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.” Use this opportunity! Come to the debriefing having thoroughly reviewed the solicitation and applicable law, and prepared to ask specific questions about what you think might have gone wrong.
3. Learn When a Debriefing Does and Does Not Impact Protest Deadlines
Many contractors will tell you that you have 10 days after a debriefing to file a bid protest. That is both correct and incorrect. Correct because, in certain situations, that is true. But incorrect because that is an exception to the rule for post-award protests, and not the rule itself (let alone the rule applicable to pre-award protests).
For bid protests brought before the GAO, the deadline depends on the type of protest being filed. Protests alleging an error in the solicitation itself need to be filed before the deadline to respond to the solicitation. For all other protests, the rule is that contractors must file not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).
The exception to this rule is for procurements involving a required and requested debriefing, which should be filed no later than 10 days after that debriefing. This is the foundation of many contractors’ mistake. They wrongly believe that the applicable deadline is 10 days from their debriefing, when, in reality, the 10-day clock started ticking the date “the basis of protest is known or should have been known” which, in many cases, is going to be considered the date they got notice of award. You count your 10 days from the date of a debriefing (as opposed to the date of award) only if the debriefing was both required and timely requested. The key, then, becomes, understanding when a debriefing is required, and how to timely request it.
a. Recognize “Required” Debriefings
Believe it or not, many types of procurement do not require debriefings. As a general rule, debriefings are not required for GSA Schedule Procurements under FAR Part 8, for Commercial Item Procurements under FAR Part 12, for Simplified Acquisition Procurements under FAR Part 13, or for Sealed Bidding Acquisitions under FAR Part 14. It is really only FAR Part 15 competitive procurements, and certain task orders, that have “required” debriefings. Note, however, that for FAR Part 8 and FAR Part 13 procurements in which award was made based at least partially on non-price evaluation factors, while a “debriefing” is not required, the agency is required to provide “a brief explanation of the basis for the award decision.” But do not mistake a “brief explanation” for a debriefing, even if the government officials call it a debriefing, which they often do. This can become a complicated question and it is best to discuss the specifics of your solicitation with an attorney before you file a protest.
b. Track What Constitutes a “Timely-Requested” Debriefing
As for the timing of your debriefing request, it again depends on the type of protest you seek to file. If you were excluded from the competitive range, you should request your debriefing, in writing, within 3 days of receiving your notice of exclusion from the competitive range. If you are post-award, you should request your debriefing within 3 days of receiving your notice of unsuccessful offeror.
(Extra credit note: Further complicating things – if you want to go after the automatic stay at GAO, you need to calculate 5 – not 10 – days from the date your clock starts ticking).
4. Familiarize Yourself with the Enhanced Debriefing Rules
In March 2018, the DoD issued the Department of Defense (DOD) Class Deviation 2018-O0011 — Enhanced Post Award Debrief Rights, which changed some debriefing rules for DoD agencies. Specifically, the deviation provided that, for all post-award debriefings under FAR 15.506(d), all 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 aim to provide written responses within five days. Regardless of Agency timing, though, they key change was that “the agency shall not consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror.” In other words, in any situation where the DoD deviation applies, the contractor’s 10-day protest (or 5-day stay) deadline clock does not start ticking until the contractor get answers to its post-debriefing questions, even if that is, for example, a week after the debriefing itself. But to take advantage of this extra time, you need to ask questions! Several months ago, the DoD published a proposed rule, seeking to codify the deviation into the actual DFARS, so this rule is here to stay.
5. Don’t Be Afraid to Seek Help
As you can tell, debriefings – and the interrelated processes concerning bid protests – can be very complex and confusing. There are a lot of moving pieces and any number of pitfalls to trip a contractor up. If you have questions about debriefings or bid protests, you should consult an attorney with experience in federal bid protests, and you should do so as early in the process as possible. Attorneys can help advise you as to your deadlines, help draft appropriate debriefing questions, advise you on best conduct for your debriefing, and counsel you on all matters of related strategy.
For more on these topics, and on debriefings and bid protests in general, attend Maria’s “Never Lose Again: The Debriefing Workshop” webinar on September 23.
Meet the Author: Maria Panichelli, Partner and Chair of the Government Contracting Practice Group.
Maria is a partner and the chair of the Government Contracting department at the law firm of Obermayer Rebmann Maxwell and Hippel. She focuses her practice exclusively on federal government contracting and procurement, guiding her clients throughout the entire lifecycle of their federal contracts. Maria has represented her clients before numerous federal agencies, the Government Accountability Office (GAO), the Contract Boards of Appeals, the Court of Federal Claims and the United States Court of Appeals for the Federal Circuit, and other state and federal courts. Her primary practice areas include: Bid Protest Litigation (both asserting and defending/intervening); REAs, Claims and Claim Appeal Litigation; Performance and Compliance Counseling; Federal Subcontracting (including the negotiation and drafting of FAR-compliant subcontracts, sub/prime dispute resolution, pass-through claims and liquidating agreements); and Small Business Procurement (including eligibility and certification issues, size/status protests, teaming, JVs and the mentor protégé programs). Maria’s clients include prime contractors and subcontractors of various sizes, located across the country and abroad, doing business with a number of federal agencies, across a variety of industries. A frequent lecturer and author on federal procurement and small business-related topics, Maria is thrilled to be partnering with Summit Insight again to deliver quality educational content to federal contractors. Connect with her here.