Whether you have won a contract or have received the dreaded unsuccessful offeror letter regarding the procurement you have been vying for, a debrief is a useful tool. In its simplest of terms, the debrief is an explanation by the agency for choosing the proposal or quotation selected for award, the details of which depend on the specific Federal Acquisition Regulation (FAR) section under which the procurement was conducted. But a debrief is so much more. The debrief can provide the bases of protest, establish timeliness for a protest, and allow an unsuccessful offeror or bidder insight into how to improve their proposal or quotation for the next procurement. Hiring an attorney experienced in this area can help to answer questions you may have.
A debrief must be submitted in writing to the contracting officer and can be requested by the successful or unsuccessful offeror(s). Generally, the information provided will be specific to the requester and include some top-level information regarding the successful offeror(s).
There are significant differences in the debriefing process under FAR Parts 15 and 16 versus FAR Parts 8, 12, and 13. Failure to understand the differences can mean the difference between timely filing a protest or having your protest dismissed.
Timing Matters When Requesting a Debrief
The FAR allows for pre- and post-award debriefings. When a prospective offeror is excluded from the competitive range, the FAR requires the offeror to request a pre-award debriefing within three (3) calendar days of the date of the notice of exclusion. In those instances where you have timely requested a debriefing, but the agency delays in providing the debrief until after award, a protest can still be considered timely.
Post-award debriefings must be requested within three (3) calendar days after the date on which you received your notice of unsuccessful offeror letter. Under FAR Parts 15 and 16, you must submit a request for a required debriefing no later than three (3) calendar days after receiving notice of an adverse action, such as the notice of unsuccessful offeror letter. Understanding debriefings can quickly become overwhelming, but hiring a trusted attorney can help guide you through.
Some key takeaways:
- It is important to note that you should always accept the first date offered by the agency for a debriefing. While the agency may agree to delay a debriefing, the first date offered can start the clock running for the timeliness of a protest.
- If you do not timely request a debrief, the agency is under no obligation to provide you with either a pre- or post-award debriefing, and subsequently, you will have impacted the timeliness of any protest you may wish to file.
- It is important to know under which FAR Part your procurement was conducted to ensure that any protest filed will be timely.
- Knowing when your debriefing has ended is important because it starts the clock running for a timely protest. In many instances, an agency will allow you to ask follow-up questions after receiving a written or oral debriefing. Sometimes those questions prevent the clock from starting, and in other instances they do not. For example, there is a difference between civilian and Department of Defense (DoD) debriefings in this regard.
What Information Will You Learn?
Depending on the FAR Part covering your procurement, the FAR outlines some basic information an agency can release during the debriefing:
- About the awardee:
- Overall evaluated cost/price
- Overall non-cost/price non-price ratings
- About the unsuccessful offeror:
- Overall evaluated cost/price
- Overall non-cost-price ratings
- The evaluation of significant weaknesses or deficiencies assessed vis-à-vis the specific non-price factors for that procurement
Oftentimes the agency will also provide an unsuccessful offeror insight into the areas of their proposal or quotation that were assessed strengths or where the agency found value.
There is some information, however, that the agency will not provide, including:
- A point-by-point comparison of the debriefed offeror’s proposal to that of other offerors
- Information exempt from disclosure, like trade secrets, or privileged or confidential manufacturing processes and techniques
- Cost breakdowns, profit, indirect cost rates, and similar information
- Names of individuals providing reference information about an offeror’s past performance
- Details about the agency’s source selection plan
Further, the agency will not allow the unsuccessful offeror to use the debriefing process to supplement or correct any issues in their proposal or quotation.
The post Bid Protests – What is a Debrief? appeared first on Dunlap Bennett & Ludwig.