Preparation is Key to Post Award Debriefing

By Michael Hordell

It’s an all too common belief among organizations that want to provide goods and services to the government that when an agency has made its award decision—and subsequently notifies all offerors of this decision—that the agency’s procurement responsibilities have been satisfied. Not so.

Rather, the agency must next prepare for any debriefings that are requested by these offerors whether successful or not. This debriefing process provides an opportunity for an offeror to learn how its proposal was evaluated, receive an explanation of the agency’s award decision, and have the opportunity to ask questions about the agency’s award decision.

In order to meet its responsibilities in this regard, agency representatives need to be thoroughly prepared.

Under Federal Acquisition Regulations (FAR) 15.506 an offeror has three days from receipt of the award notification to submit a written request for a debriefing.1 The debriefing should occur within five days of the agency’s receipt of the written request.2

Generally it is the contracting officer who prepares and presents the debriefing, but it is often a good idea for members of the technical evaluation team to lend support throughout the debriefing process. The contracting officer may choose to debrief offerors either orally or in writing.3 However, in most instances an oral debriefing is typically the more efficient and expeditious method. Nonetheless, it is the contracting officer who has the final say on how the debriefing should be conducted.

Reasons Vary for Requesting a Debriefing

The primary goal of offerors requesting a debriefing is to learn what can be done to make their proposals more attractive for future procurements. Even the winning proposal is likely not perfect. Practically speaking, an agency may sometimes select an awardee not because they had a perfect proposal, but rather because, based on factors set forth in the solicitation, it was determined that this proposal was the best received by the agency.

The successful offeror will often use the debriefing as a “lessons learned” opportunity. It is also likely that the successful and unsuccessful offeror will use the debriefing as an opportunity to market themselves to the agency. For an offeror, this is an important aspect of the debriefing, as it will provide the agency with more information about the company, which may be of use to the agency for future procurements.

Finally, for unsuccessful offerors, a debriefing provides an opportunity to gain an overall understanding as to the basis of the agency’s decision and to ascertain whether the agency made any errors in its evaluation process.
What Information Should Be Released?

FAR § 15.506(d) requires that the following information, at a minimum, be provided at a debriefing:

• The agency’s evaluation of the significant weakness and deficiencies in the offeror’s proposal;
• The overall evaluated cost or price and the technical rating of the awardee and the debriefed offeror;
• The overall ranking of all offerors, if such ranking was developed by the agency;
• A summary of the award rationale; and
• Response to the offeror’s relevant questions with respect to whether the agency followed the source selection procedures in the solicitation, regulations, and other applicable authorities.

FAR § 15.506(e) prohibits a contracting officer from making a point-by-point comparison of offers, providing information exempt from release under the Freedom of Information Act (FOIA), or releasing the identity of individuals providing past performance information.

However, a contracting officer may release a significant amount of information to an unsuccessful offeror to explain the basis for the offeror’s lack of success.

Preparation is Key

Preparation is vital to conducting a thorough and informed debriefing. For example, a prepared contracting officer and debriefing team can instill a sense of confidence in the government procurement system as well as a belief that its proposal was treated fairly. An ill prepared team, however, will cast doubt on the agency’s process and decision which could lead to a protest, even when there is little doubt that the agency made the correct decision.

In preparing for the debriefing, the contracting officer should review the source selection documents, the offeror’s and awardee’s proposals, and evaluation sheets. He or she should also meet with members of the evaluation team to discuss the proposals.

If, during this review the contracting officer discovers an error, the immediate task is to then determine whether the error materially affects the award decision. This must be accomplished prior to the scheduled debriefing since a material error that is prejudicial to an offeror should result in the agency canceling the debriefing and taking corrective action. Obviously, if the error is not material, the review provides the agency with the opportunity to present an accurate picture of the evaluation process.

The contracting officer needs to understand that once the debriefing begins, the successful or unsuccessful offeror can ask any questions. This is why it is critical that the contracting officer is prepared and knows what information can and cannot be released. The contracting officer should be prepared to answer questions about the number of offers received; the evaluation of the offeror’s proposal including the strengths and weaknesses; specific questions about the offerors past performance; and the rationale for the award.

Stand By Your Decision

During a debriefing there are a variety of reasons why an agency might wish to limit the amount of information released. For example, many contracting officers do so in the belief that it will avoid a protest. However, it is important to understand that even when a contracting officer withholds information during a debriefing, it will not necessarily lead to the avoidance of a protest. The Government Accountability Office (GAO) has held that a protest based on information which was withheld from the protester, though requested, and is later discovered through either an immediate request under FOIA4 or during the course of a protest5 will be considered timely. In those instances, the contracting officer will have succeeded in avoiding a protest only for a finite period of time.

The contracting officer’s actions can also cast doubt on the procurement process, which is counterproductive and could result in a reprimand or worse. In many procurements the contracting officer is faced with making difficult decisions, which ultimately determines who will be awarded a contract. It is these decisions that some contracting officers are reluctant to reveal during a debriefing. Contracting officers should avoid this impulse.

The agency has made its decision, it was reviewed at the appropriate levels, and the contracting officer carefully reviewed the file and discussed the issues with the evaluation team prior to the debriefing. At this point, the contracting officer should feel confident in the award decision.

It is important to remember that the purpose of the debriefing is not to obfuscate potential protest issues. Rather, debriefings are an integral part of the procurement process, which increases transparency and instills trust in the entire process.

Further, providing appropriate information during the debriefing to unsuccessful offerors should increase competition for future procurements. Offerors will now be able to utilize this information to make their future proposals more complete and responsive to the agency’s solicitation.

Take the High Road

When conducting a debriefing remember the unsuccessful offerors will be disappointed that their hard work did not result in a contract. They may feel a sense of frustration with the agency or anger that a competitor, whom it views as not as qualified, was selected for the award.

The key in these situations is for the contracting officer to not get emotional or confrontational. Keep in mind the purpose of the debriefing. Present the facts and walk the unsuccessful offerors through the evaluation process. Help them to understand the agency’s award decision.

At a minimum, these steps should encourage confidence in the procurement process even when an unsuccessful offeror does not fully accept the agency’s decision rationale.

It is also important to remember that the debriefing process helps to build a relationship with industry. Keeping the debriefing at a professional level and avoiding getting bogged down in personal attacks will help strengthen the relationship to the benefit of all.

Editor’s Note: Michael A. Hordell, Esq., is a former Procurement Counsel for the Government Accountability Office (GAO) and is the head of Pepper Hamilton LLP’s Government Contracts Practice Group. Mr. Hordell is also the current Chair-Elect of the American Bar Association’s Section of Public Contract Law. The author would like to thank Sean P. Bamford, Esq., a former Assistant Counsel with the Defense Logistics Agency and current associate at Pepper Hamilton LLP, for his assistance in preparing this article.

Foot Notes:

1. FAR 15.506(a)(1) (2005).
2. FAR 15.506(a)(2) (2005).
3. FAR 15.506(b) (2005).
4. See Geo-Centers, Inc., B-276033, May 5, 1997, 97-1 CPD ¶ 182.
5. See Biospherics, Inc., B-278278, January 14, 1998, 98-1 CPD ¶161.