Federal Contractors—especially those engaging in FAR Part 15 direct contract negotiations—should make it a routine practice to timely request debriefings after the Contracting Agency excludes the bidder from the competitive range (“pre-award debriefing”) or after the Agency issues the award (“post-award debriefing”). Debriefings allow the Contractor to understand the evaluation process used by the Contracting Agency and to receive an assessment of how it fared in that evaluation. This is not a one-sided presentation as Contracting Agencies are required to answer the contractor’s relevant questions about the decision-making process. Properly run debriefings can be used to better tailor future bids and negotiations, as further marketing to the Contracting Agency for future awards, and, occasionally, to unearth grounds for a potential protest if any part of the evaluation process is out of sync with the FARs. In the event the contractor learns of a basis for protest at the debriefing, the deadline to file a protest begins running from the date of the debriefing—whether it was required or not.
Technically speaking, de-briefings are only “required” when the Contracting Agency utilizes direct negotiated procurement under FAR Part 15 or issues task/delivery orders under FAR 16.505(b)(6). However, it is not unheard of for a Contracting Agency to provide a de-briefing even when not required under the FARs, especially when presented with the executive memo [1] transmitted by the Obama-Administration’s Acting Administrator for Federal Procurement Policy encouraging Contracting Agencies to engage in debriefings.
The process of requesting a debriefing is relatively straightforward. Debriefings are requested by written notice to the Contracting Officer and should include a citation to either FAR 15.505 (for pre-award debriefings) or FAR 15.506 (for post-award debriefings). Debriefing requests must be submitted within three days of notice of an exclusion or non-award, otherwise the Contracting Agency’s obligation to provide a debriefing in FAR Part 15 contract negotiations becomes discretionary. Where the Contracting Agency is required to provide a debriefing by the FARs and the contractor has made a timely written request, the debriefing must occur within five days of the request. Extensions of time to conduct the debriefing can be requested, but we generally advise contractors not to use that option since, if a protest is ultimately required, that delay can impact the protest.
Even if a debriefing is not “required,” and even if the written demand for a debriefing is not provided within 3 days, there are good reasons for a contractor to attempt to pursue the debriefing process. Such was the case in Matter of Sancilio & Company, Inc., where the contractor was granted the opportunity to measure its protest deadlines from the date of the “debriefing,” even though the contractor had not issued a timely written demand for the debriefing such that the Contracting Agency was under no obligation to provide the debriefing. [2] There, Sancilio & Company bid on a Department of Veteran Affairs RFP for fish oil capsules. The RFP required the fish oil capsules in each proposal to have NDC/UPC numbers that were unique to the bidding firm. The VA accepted a bid from a firm that allegedly did not have unique NDC/UPC numbers for its capsules and notified Sancilio & Company of its decision. Six (6) days after receiving notice of the award, Sancilio & Company submitted a written request for the “required” debriefing. Despite the fact that the debriefing request was submitted three (3) days late, the VA still provided the now not-required debriefing. As a result of the debriefing, Sancilio & Company learned of the NDC/UPC issue and filed its protest 15 days after receiving the notice of award.
The VA sought to dismiss the Protest on the grounds that it was filed beyond 10-days from the date of the notice of the award, and argued that the since the debriefing was not “required” because of the late debriefing demand, the contractor could not use the debriefing to toll the 10-day deadline. The GAO refused to dismiss the Protest on this argument, noting that it was irrelevant whether the debriefing was “required” or “not-required.” Rather, if the contractor learned of information leading to the protest at any debriefing, the 10-day Protest timeline would start from the date of the debriefing.
COMMENT: Debriefings are a useful tool for federal contractors. It provides a collaborative opportunity to understand the decision-making process employed by a Contracting Agency and receive information to hone future bids to ensure the best competitive advantage. In the less-collaborative sense, information received at a debriefing may be used both as the basis of a protest and as the “triggering event” for the 10-day protest deadline. Since this rule holds true whether the debriefing is technically “required” or “not-required,” and since the debriefing is really a win-win situation for the contractor whether a protest is brewing or not, debriefings should become a routine staple of the bid process.
[2] GAO B-414579 (May 15, 2017).