Debriefings and Bid Protests After Federal Contract Award Decisions: Strategies for Success

William A. Shook, Esq.G. Matthew Koehl, Esq.

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Presentation Outline Background Pre-Award and Post-Award Debriefing Rules Debriefing “Exception” to Timing for GAO Bid Protests and

Automatic Stay Special Procedural Rules and Strategic Considerations for Bid

Protests Checklist to Prepare for a Debriefing Strategies for Successful Debriefings Task and Delivery Order Protests

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Background – Purpose and History of Debriefings Learn how to improve future offers

Determine if there exists a basis for protest

According to one government Agency, debriefings:

Instill confidence you were treated fairly Assure you qualified people evaluated your proposal Reduce protests and misunderstandings

Historically, many protests filed for “discovery” purposes where the agency has not provided adequate information

Post-1996 debriefing process designed to prevent this

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Background - Debriefing Basics

Formal debriefing rules specify timing and content of debriefings. FAR 15.505/15.506 (Attachment A)

Debriefing rules apply only to FAR Part 15 negotiated procurements; other types of competitive procedures require only limited disclosure of evaluation information. See, e.g., FAR 8.405-2(d)

Debriefings affect timing for filing bid protests and obtaining the GAO’s “automatic stay” of contract award and performance

Two types of Debriefings: Pre-Award and Post-Award

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Pre-Award Debriefings – Notice of Exclusion

Only for those excluded from competitive range or otherwise excluded from competition prior to award

CO should provide “prompt” written notice of exclusion and basis for not requesting a proposal revision. FAR 15.503(a)

“Prompt” is not defined in the FAR

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Pre-Award Debriefings – Time for Requesting and Deferral Option

Contractor must request in writing within 3 calendar days of notification. FAR 15.505(a)(1); if no timely written request, no right to a debriefing. FAR 15.505(a)(3)

Saturday email notifying contractor of its competitive range exclusion is “deemed received on the next business day.” International Res. Group , B-286663, 2001 CPD¶3

Contractor may delay its one debriefing until after award and obtain broader post-award debriefing information But, competition is over, Agency invested in outcome

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Pre-Award Debriefings – Timing

Must be held “as soon as practicable” after timely request. FAR 15.505(b)

Agency may refuse request if, for “compelling reasons,” a timely debriefing is not in Government’s best interest. FAR 15.505(b)

If pre-award debriefing refused: Agency must provide debriefing within post-award debriefing time

requirements (5 days) Agency must provide broad post-award debriefing information

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Pre-Award Debriefing – Format

Methods for conducting pre-award debriefings:

Oral Written Any other method acceptable to the Contracting Officer Subject to ability to meet minimum informational requirements

in FAR 15.505(e)

FAR 15.505(d)

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Pre-Award Debriefing

What Must Be Discussed?

Evaluation results of significant elements in proposal

Summary of rationale excluding offer

“Reasonable” responses to “relevant” questions about whether the Government followed the rules

What do “reasonable” and “relevant” mean?

FAR 15.505(e)

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Pre-Award Debriefing

What May Not Be Discussed?

Point by point comparison Proprietary or exempt information Number of offerors Identify of offerors Content of other offerors’ proposals Ranking of other offerors Evaluation of other offerors

FAR 15.505(f)

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Post-Award Debriefing

Any losing contractor who has not had a pre-award debriefing

Written request must be filed within 3 calendar days after notification or no right to a debriefing. FAR 15.506(a)(1)

Should be held within 5 days “to the maximum extent practicable.” FAR 15.506(a)(1)

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Post-Award Debriefing

What must be discussed? Deficiencies and significant weaknesses of proposal Ratings of your and awardee’s proposal Your past performance ratings Total evaluated cost/prices, including unit prices Overall ranking of proposals, if done Summary of rationale for award decision “Reasonable” responses to “relevant” questions

FAR 15.506(d)

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Post-Award Debriefing

What is not discussed?

Point by point comparison of proposals

Any information exempt from disclosure under the Freedom of Information Act (FOIA) Trade Secrets Confidential manufacturing processes Commercial or financial information Names of individuals providing past performance information

FAR 15.506(e)

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GAO “Automatic Stay” and Bid Protest Timing General Rules:

Automatic Stay: 10 days from award for timely protest to the Government Accountability Office (GAO). 31 USC 3553; FAR 33.104(c) (Attachment B)

Timely Post-Award Bid Protest. 10 days from date contractor knew or should have known basis for protest (whichever is earlier). 4 CFR 21.2(a)(2) (Attachment C)

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Debriefing Exception to GAO Stay and Protest Deadlines

Exception tolls deadline for “stay” and timely bid protest Designed to encourage debriefings and to discourage “defensive”

or “blind” protests

Modified Automatic Stay: 5 days from required debriefing. FAR 33.104(f). Also tolls time for obtaining automatic stay for Agency level protests. FAR 33.103(f)(3)

Modified Timely Post-Award GAO Bid Protest: 10 days from the date of a required debriefing. 4 CFR 21.1(a)(2)

Exceptions are only for “required” debriefings

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When Is a Debriefing “Required”?

“Required” = procurement conducted on the basis of “competitive proposals” where debriefing is requested and required. 4 CFR 21.1(a)(2)

A debriefing is not “required” if not timely requested. FAR 15.505(a)(3); 15.506(a)(4)

“Competitive proposals” is not defined by GAO’s Bid Protest Regulations, nor by statute or regulation. Systems Plus, Inc. v. United States, 68 Fed. Cl. 206 (2005)

Timely requested debriefings under FAR Part 15 procurements are “required.” Sherrick Aerospace, B-310359.2, 2008 CPD¶17

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GSA Schedule Debriefings Are Not “Required”

FSS task and delivery order competitions are conducted under FAR 8.4, even where they closely resemble FAR Part 15 rules

No “required” debriefing - the Agency need only provide “a brief explanation of the basis for the award decision.” FAR 8.405-2(d)

No “tolling” of time for filing protests against GSA schedule task and delivery orders even if the agency provides a debriefing

Ordinary “10 day rule” applies to GSA Schedule task and delivery order protests (i.e., must file within 10 days of when you know or should know basis for protest)

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Protests Filed Before A “Required” Debriefing Are “Premature”

GAO protests filed in advance of a “required” debriefing will be dismissed, without prejudice. 4 CFR 21.1(a)(2)

Exception to timeliness rules is designed to encourage de-briefings and to discourage “defensive” or “blind” protests. 61 Fed. Reg. 39039, 39040 (July 26, 1996)

Don’t need to file pre-debriefing protest even if contractor is aware of the Agency evaluation errors to which later protests. The Boeing Company, B-311344.11, et al. 2008 CPD¶114 (June 18, 2008)

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Protests Based Upon Non-Required Debriefings

Protests based upon non-required debriefings are allowed

Must satisfy 10-day rule, no tolling

If you first learn the basis for protest in a non-required or untimely requested debriefing and file in 10 days, 10-day rule is satisfied. See Raith Eng'g & Mfg. Co., B-298333.3, 2007 CPD¶9

The Agency sometimes provides written debriefing materials in advance of non-required debriefing session so that debriefing information is not “newly discovered”

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Delayed Debriefings and “Diligent Pursuit” Rule

Tolling may extend for months if debriefing is timely requested. Geo-Centers, Inc., B- 276033, 97-1 CPD¶182

BUT, “diligent pursuit” required of protesters, contractor must not wait too long in face of Agency delaying debriefing

Protest untimely where protester delayed debriefing for more than 1 month for FOIA response and its president’s vacation. Pentec Envtl., Inc., B-276874.2, 97-1 CPD¶199

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Stay for the Entire Debriefing Franz Rubenbauer Raumausstatter, B- 290317.3, et al., 2002

WL 1562079 (Jul. 16, 2002)

Two protesters walked out of debriefing

Protests filed more than 10 days after debriefings based on information that would have been presented in debriefings (had protester representatives stayed)

Protest dismissed, contractors accountable under “diligent pursuit” rule for information

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When Does the Debriefing End? Contractors often send post-debriefing requests for

clarification or additional information

Absent “clear indication” that a debriefing is extended pending the Agency’s response to additional questions, the debriefing is presumed over at the conclusion of the session. New SI, LLC, B-295209, et al., 2005 CPD ¶ 71

Posing questions after the debriefing session concludes does not extend time for filing a bid protest. Id.

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Protesting the Debriefing

Inadequate debriefing generally not a valid protest ground

Bad debriefing has no effect on previously-made Agency source selection decision

Whittaker Services Corporation, B-260951, 95-2 CPD¶102; Sarasota Measurements & Controls, Inc., B-252406.3; B- 252406, 94-2 CPD¶32

Inadequate debriefing will, however, lower the threshold for pleading protest grounds with specificity

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Errors Appearing Only In The Debriefing Materials

If evaluation “errors” appear in the debriefing materials only, and not the evaluation record, no valid protest

Debriefing occurs after the evaluation is complete, evaluation errors must appear in the evaluation record for a valid protest

GAO: debriefing is only an explanation of the Agency's evaluation and source selection decision, not the evaluation or decision itself

Del-Jen International Corporation, B- 297960, 2006 CPD¶81; EER Sys., Inc., B-290971.3, B-290971.6, 2002 CPD¶186

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Remedying Competitive Harm In A Post-Debriefing Re-Competition For The Same Requirement Agency corrective action may result in a re-competition after the debriefing and

release of awardee proposal information

Substantial Agency discretion to determine the correct remedy: Upholds determination not to release all offerors’ prices; disclosure of

awardee’s prices under these circumstances did not create an improper competitive advantage. Symvionics, Inc., B-293824.2, 2004 CPD¶204

Upholds release of all offerors’ prices to remedy the potential competitive advantage (even if not improperly obtained) held by the other offerors whose prices were not disclosed. Ocean Servs, LLC , B-292511.2, 2003 CPD¶206

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Debriefing Preparation

Procurement-specific list of items to which you are entitled

Prepare list of “relevant” questions

Specific to each evaluation factor and subfactor Address past performance information Ask for source selection memorandum

Attachment D to Course materials

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Debriefing - Strategies for Success

Participation Strategy

Request oral or written?

Provide questions in advance?

Have you received written debriefing materials in advance of debriefing session?

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Debriefing Attendees

Relevant Business Development group employees

Relevant Proposal Preparation group employees

Government sales executive(s)

Don’t bring your lawyer, even if you are considering a protest

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Debriefing – Conduct and “Tone”

Behave reasonably and dispassionately

You are there to learn, not accuse

Don’t ask “irrelevant” questions

Unsupported accusations of agency bias or misconduct

Conduct “lessons learned” session with business development and proposal team after debriefings

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Task and Delivery Order Protests Protests to GAO are now authorized by statute for task or delivery orders

valued in excess of $10 million

Effective May 2008 for DoD, FAR rule pending Offerors must be given a post-award debriefing GAO has not ruled whether task order debriefing is “required”

For now, don’t rely upon GAO exception to timeline for stay and timely protest available for “required” debriefings

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Questions?