CHAPTER

15

DEBRIEFINGS

After the government awards a contract, any of the losing companies can get a debriefing from the government. A debriefing is a meeting between the government and an individual “disappointed” offeror (as a losing company is politely referred to). Both sides discuss the company’s proposal so that the company can improve future submissions to the government. The briefings are supposed to be learning experiences for the companies. To the extent that the government can help the companies understand what the government wants and allow the companies to say it better, a debriefing will be beneficial for both the government and the participating companies.

    What information is usually provided at a debriefing?

Usually there is a subtle battle going on at a debriefing. COs are wary of disclosing proprietary or source selection information because it’s against the law. On the opposite end of the spectrum are the companies, which want to know everything they possibly can—not only about their own losing proposal but also about the winner’s proposal and the proposals of their competitors. Thus, the two sides are often coming from opposite ends of the information spectrum.

Unfortunately for companies, there is little chance that they can get all the information they think they are entitled to. The cheapest remedy for agency abuse of the solicitation process is GAO. But GAO takes the position that the contents of the debriefing are beyond its jurisdiction. The only other alternative is the courts, a process far too costly to invoke simply to get additional information.

In addition, companies do not want to be put in the awkward business position of suing potential customers to get information. In some instances, the request for information under the Freedom of Information Act may help the company get the government paperwork from the solicitation process. But that’s about all.

The government has to give companies more information about the winning company since the winning contract is a public document. The real disagreements that arise at debriefings stem from the company’s interest in its competitors’ proposals and the government’s extreme reluctance to share any information on a company’s competitors.

    What form does a debriefing take?

The debriefing can take any form. It can be an in-person meeting. It can be done by telephone or by videoconference. Or it can be done in writing. FAR 15.505(c) also allows a debriefing “by any other method acceptable to the contracting officer (CO).” So there is flexibility in the debriefing process.

    Do debriefings really provide fodder for a protest?

COs and contractors often have an unrealistic view of a debriefing. Both have misconceptions about the power of an agency’s debriefing of an unsuccessful offeror in making it easier to initiate a bid protest. Unfortunately for both the government and industry—and for the procurement process in general—these misconceptions often hide the real value of a debriefing: establishing a better relationship between buyer and seller.

A debriefing can be an unpleasant experience for both sides. COs fear that one slip of the tongue at the debriefing will result in a protest and potentially a humiliating order from GAO or a judge to go back and do the solicitation the right way. The fear is usually unrealistic because, even if the CO makes a mistake, the mistake probably was not the difference between winning and losing the contract; the protester might have lost the contract anyway on some other ground. Because harm to the protester as a result of the mistake, referred to as “competitive prejudice,” is a necessary element of any viable bid protest (Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)), prejudice is often missing and thus a CO’s mistake might not be fatal.

Contractors, on the other hand, might leave a debriefing convinced that the CO has not told them the whole story, that the government is hiding something, that a protest will prove it, and that they will end up getting the contract.

How little impact a debriefing may have on making a successful protest can be seen in the limited legal role a debriefing has.

First, for better or for worse, an agency’s failure to disclose all information required by the FAR to be presented at a debriefing is not something GAO will consider because “the adequacy and conduct of a debriefing is a procedural matter that does not involve the validity of an award” (Healthcare Tech. Solutions Int’l, B–299781, July 19, 2007, 2007 CPD ¶ 132 at 5). So regardless of how fairly or unfairly a CO conducts the debriefing, an unsuccessful vendor will get no remedy from GAO.

Second, the issue in a protest is how the agency evaluated an offer and described its award decision. Explanations after award such as those given at a debriefing are not that important in a protest. Although one judge on the Court of Federal Claims (CFC) found some possible small protest value to a contractor in a debriefing, the judge emphasized the true focus in a protest:

The theory here is sound: once something is in litigation, what people say can be influenced by the fact that it is in litigation. What is usually more accurate is what was said before there was any lawsuit. So although a debriefing may well distress a CO, a slip of the tongue is by no means fatal.

Third, the CO is in charge of how the debriefing will be conducted. FAR 15.506(b): “Debriefings of successful and unsuccessful offerors may be done orally, in writing, or by any other method acceptable to the contracting officer.” In many cases, the CO decides to hold only a written debriefing, which can minimize the “he said-she said” aspect of an oral debriefing.

    If a debriefing is unlikely to lead to a successful protest, is there a better use for a debriefing?

One excellent use of a debriefing is as a relationship-building experience for both the unsuccessful offeror and the agency. The vendor has a one-on-one opportunity to market itself to the agency and to improve its future proposals. The agency has an opportunity to show the unsuccessful offeror how fairly that proposal was evaluated and how it can be improved in the future.

    When do debriefings occur?

The debriefings can occur at one of two points in the solicitation process. There is a preaward debriefing and a postaward debriefing.

If the company is thrown out of the competition prior to award, it is entitled—a key term—to a preaward debriefing. Companies are only entitled to a preaward debriefing; they are not guaranteed a preaward debriefing. The government has the discretion to decide when a preaward debriefing will be held: preaward or postaward. If the preaward debriefing is put off until after the award is made, the CO must document why the debriefing has been delayed.

Who wants a preaward debriefing? Possibly, companies that are excluded from the competitive range, companies that are initially in the competitive range but are later excluded from the competitive range, companies excluded from the competitive range after a final proposal revision and prior to a second final proposal revision, or simply a company that is in the running all the way to the end of the competition and loses.

    How does a company get a debriefing?

Timing is critical. To get any kind of debriefing, preaward or postaward, a company excluded from a competition prior to award must request a debriefing within three days after receiving notice that it was excluded from the competition. Any company that misses this three-day deadline is not guaranteed a debriefing. The government, of course, may decide, as a business relations gesture, to provide a debriefing even if the deadline is past.

Contractors should not use the phone. A request for a preaward debriefing requires written notice to the government.

The government can grant either a preaward or postaward debriefing to companies that meet the three-day deadline.

One advantage to a company getting a preaward debriefing after the award has been made is that the government has to provide more information to the company in a postaward debriefing than in a preaward debriefing. Let’s look at what information has to be given out in a preaward debriefing.

Preaward debriefings have to disclose

1.   “the agency’s evaluation of significant elements of the offeror’s proposal”

2.   “a summary of the rationale for eliminating the offeror from the competition”

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.”

What has to be disclosed at a preaward debriefing makes better sense if some background is provided. In 1997, the debriefing took on a function other than simply disseminating information—it took on the role of discouraging protests. Over the years, it had become clear that losing companies would file protests to get additional information about their proposals. It was only through the protest process that this additional information could be obtained. But once the protest process provided the information, companies often realized that they would lose not only the protest but the contract as well. And they realized this only after the companies had spent time and effort on the protest and the government had also spent time and effort defending against the protest.

Congress realized that if protesters used the protest process to get information, it would be better to give them that information at a debriefing to avoid a “data gathering” protest that the company would ultimately lose anyway.

Congress also wanted to improve the debriefing process while discouraging protests. Accordingly, during the mid-1990s, Congress became much more specific about the information the government had to release during a debriefing. The FAR debriefing regulations show the broad range of information that the government has to disclose.

    Should a lawyer come to a debriefing?

Obviously, whether a company brings a lawyer to the debriefing is a business judgment based on the specific facts and circumstances of the particular situation.

One disadvantage of bringing a lawyer to the debriefing is that it will be perceived as raising the stakes of the debriefing. Having a lawyer at the debriefing might suggest to the government that the company is planning to file a protest. This in turn could make the CO extra cautious about what he or she says at the debriefing. In addition, the government might then want to have its lawyer present at the debriefing.

Along the same lines, taking a tape recorder or a court reporter to the debriefing sends a very specific—and probably the wrong—message to the CO. Whether a particular company believes it is a good business judgment to raise the stakes in this way is a decision that only the company can make.

    What information does the government have to disclose at a postaward debriefing?

The FAR tells a CO what must and must not be disclosed at a debriefing. First, let’s look at what must be disclosed.

The CO must follow FAR 15.306(d). The very first words in that paragraph are the most critical from the contractor’s perspective. That paragraph starts out with “At a minimum, the debriefing information shall include …” Two points must be made about this short but important phrase. First, it describes what the government has to disclose because the phrase uses the word shall. There is no discretion about disclosing the listed items at a debriefing. The language is mandatory. The government must give out the information listed in that paragraph, which includes the following:

•   Whether the CO broke the law in the procurement process

•   The company’s rankings

•   The company’s rating

•   Why the company lost (its weaknesses and deficiencies)

•   The rationale for award of the contract.

But that’s not all the phrase says. It also says that the government shall disclose this information “at a minimum.” In other words, what’s listed in the paragraph is simply the starting point of the information that has to be given out. But as mentioned, at the debriefing tug-of-war between the CO and the losing vendor, the CO often minimizes the information given out and the losing vendor often tries to maximize the information given out.

So as we talk about the specific information that must be given out, it’s important to keep in mind the congressional intent found in this opening phrase: “At a minimum, the debriefing information shall include …”

    What information cannot be disclosed at a debriefing?

What cannot be disclosed at a debriefing is also described by the FAR, first in general terms and then in specific terms.

In general, the FAR says that a debriefing “shall not include point by point comparisons of the debriefing offeror’s proposal with those of the other offerors.” From the company’s perspective, the important phrase is “point by point.” Clearly, any comparison that makes a detailed analysis of a competitor’s proposal in comparison with the winning company’s proposal and the proposals of the other losing competitors is improper.

But only point by point comparisons are prohibited. A general comparison is not. And because the general comparison is not prohibited, reading the language of the FAR, which says “at a minimum,” companies should be able to get some, although not detailed, comparison information at a debriefing.

    Does the government really have to admit at a debriefing that it made a mistake?

The self-incriminatory language in FAR 15.506 (d)(6) seems hard to believe. It tells a CO that he or she must include at the debriefing “reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.” The language seems to require a CO to disclose at a debriefing that he or she broke the law— that, for example, in conducting the discussions, he or she did not follow a particular regulation or broke the law dealing with meaningful discussions.

Would anybody in their right mind want to tell a losing company that the company lost because somebody in the government broke the law? As difficult as this language is to believe, and as tough as this language is to apply fairly, this language nevertheless requires the CO to disclose every law violation resulting from a solicitation.

There’s very good logic behind this bewildering requirement. The logic is that violations of law often come to light during a protest. Despite this, however, the company does not win a protest automatically on the basis that there was a violation of the law. This clause is designed to require the government to disclose at an early stage of the process, before a protest has been filed, that the law has been broken. The government can follow up the disclosure with information showing that the company still would have lost the procurement, even if the law had been followed to the letter. If the government is going to win a protest down the road even though it broke the law, it makes sense to try to avoid a protest over the law violation by disclosing the violation at the beginning of the process.

    The government has to tell losing companies their rankings and ratings. What are “rankings” and “ratings”? What is the difference?

One of the most helpful pieces of information that companies can pick up in a debriefing is their rating and their ranking.

The rating is the point score difference between the losing company and winner. Typically, the government will evaluate the technical and cost proposals on the basis of 100 points. For example, a company will get a score of 90 on the technical proposal and 85 on its cost proposal. What this debriefing requirement demands of the government is that it disclose the score of the winner and the score of the loser.

The rating discloses two very helpful pieces of information: (1) how far behind the winner the losing company actually was and (2) how many points the losing company would have to make up as a result of a protest to win the contract.

The ranking is simply the order of finish. In other words, the winner obviously came in first. Where did the debriefed company come in and where did the other companies come in? This is a controversial issue. The FAR language says that the government must disclose “the overall ranking of all offerors.”

From the company’s perspective, the FAR promises companies that the government “shall” disclose rankings to “offerors.” Use of the word “offerors” suggests that the government give the identity of each offeror and its ranking. But the government often uses abbreviations or some other identifier that does not disclose the specific identity of a company. To companies, it seems that the government is not following the letter of the law. For example, if the government says that the winner (obviously) came in first, and the debriefed company came in fourth, the government may say that “Company A” came in second, “Company B” came in third, and “Company C” came in fifth, while not identifying who Company A is. The problem with this approach is that there is no offer sheet with the signature “Company A” on it.

However, the government usually argues that “the government’s job is not to provide commercial intelligence to losing companies.” So demanding the specific identity of competitors is probably a lost cause for companies. As mentioned, there is no effective way to challenge the government’s incorrect interpretation of this provision.