Are You Debriefed By the CO? FAR Debriefing Before Filing a Bid Protest

Debriefed? Now What?

 As a corporate decision to challenge a recent government contract award,  getting a pre award or post award debriefing before filing a bid protest letter at GAO is one of the most valuable tools that government Debriefing Before Filing a Bid Protest Letter at GAOcontractors can use. One reason is that as a practical matter you are tasked with finding out the basis for the non-selection and for filing a bid protest.  Oftentimes, a FAR  debriefing can provide insights as to why you received the evaluation score from the agency.

Debriefing Definition

 

FAR 15.505 – Preaward  Part 15 FAR Debriefing of Offerors

This an important consideration for bidders that are excluded from the competitive range or otherwise excluded from competition. Although you can request the preaward debriefing before or after the project is awarded, you must still meet the 3 day deadline.

  • Postponing a FAR debrief until after contract award can impact the protest filing deadline.
  •  If you do not submit a timely request for a debriefing, the agency does not have to provide you with either a preaward or postaward debriefing.
  • The purpose of FAR unsuccessful tender debrief rules is to furnish the basis for the selection decision and contract award. See 10 USC 2305(b)(5) (2000).

Most government contractors are not aware they are under the “should have known” requirement for the timeliness of filing a bid protest. They should always try to gain information that can form the basis of a bid protest.

  • If you fail to promptly request a debriefing, and you find out after the fact, you might face a timeliness argument from the agency that you failed to diligently pursue the basis of your protest. 
  • You don’t want to have to spend the extra time and attorney fees to litigate this issue.
  • You should always ask to be briefed by the agency if you lose the bid.

You can now use the debriefed information to formulate the basis for your protest letter. Without this pieced of information, the agency will more than likely try to get your case dismissed due to mere speculation (not a valid ground for filing a bid protest.)

Another reason why you should take advantage of requesting an agency debrief is that it may allow you to toll (postpone) the 10-day requirement deadline for filing. In other words, when there is a competitive proposal under FAR 15, you can now file a required debriefing. You must do so in writing to the Contracting Officer.

The reason for FAR unsuccessful tender debrief rules is to communicate with the contracting agency and get relevant information early in time to decide whether or not you want to file a COFC pr GAO bid protest. Remember, it must be a REQUIRED debriefing.

A GAO bid Protest will be sustained if the agency provided material information concerning solicitation requirements to a single competitor in a post-award debriefing and then the agency subsequently reopened the competition without providing the other competitors with the same information. See SYMVIONICS, Inc., B-293824.2.

FAR Part 15.506 Post Award Debriefing

The following information is taken from FAR Part 15.506.

FAR 15.506 — Postaward Debriefing of Offerors.

(a) (1) An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award.

(2) To the maximum extent practicable, the debriefing should occur within 5 days after receipt of the written request. Offerors that requested a postaward debriefing in lieu of a preaward debriefing, or whose debriefing was delayed for compelling reasons beyond contract award, also should be debriefed within this time period.

(3) An offeror that was notified of exclusion from the competition (see 15.505(a)), but failed to submit a timely request, is not entitled to a debriefing.

(4) (i) Untimely debriefing requests may be accommodated.

(ii) Government accommodation of a request for delayed debriefing pursuant to 15.505(a)(2), or any untimely debriefing request, does not automatically extend the deadlines for filing protests. Debriefings delayed pursuant to 15.505(a)(2) could affect the timeliness of any protest filed subsequent to the debriefing.

(b) Debriefings of successful and unsuccessful offerors may be done orally, in writing, or by any other method acceptable to the contracting officer.

(c) The contracting officer should normally chair any debriefing session held. Individuals who conducted the evaluations shall provide support.

(d) At a minimum, the debriefing information shall include —

(1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable;

(2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;

(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and

(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

(e) The debriefing shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including —

(1) Trade secrets;

(2) Privileged or confidential manufacturing processes and techniques;

(3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and

(4) The names of individuals providing reference information about an offeror’s past performance.

(f) An official summary of the debriefing shall be included in the contract file.

FAR Part 8 Debrief Vs FAR Part 15 Debriefing

One of the dangerous landmines that you can run into when asking for a contract debriefing after award is failing to understand when the deadline to file a bid protest is tolled or postponed.

If you are challenging the government proposal evaluation when the procurement was conducted under FAR Part 15, you normally have 10 days to file a bid protest at GAO. A FAR Part 15 Debrief can toll the ten-day filing requirement. This is in total contrast to a FAR Part 8 debrief.

When the agency is only required to give an “explanation” about your proposal, this is not considered a required debriefing. In other words, a FAR Part 8 debrief is not a required debrief and neither are FAR part 12 and FAR 13 debriefings.

Understand When You Are Officially Debriefed

When you attend a FAR debrief after a government contracts award, you should pay strong attention to when the debriefing is actually over.  Are you officially debriefed? This critical for your next deadline. If you receive a written debriefing, see if it actually states that it is concluded. If not, ASK.

An example is if after you ask some questions, the Contracting Officer tells you that she will “get back to you.” This actually occurred in the case of Zafer Constr. Co.; Tourism, Indus. And Trading Co., Inc., B-295903,B-295903.2, 2005 CPD ¶ 87 (Comp. Gen. 2005)

FAR Debrief Tips and Bid  Protest Rules

What happens if after filing your protest you find an independent ground to file, can this start the protest process over? Generally yes.

  • When a new basis for the protest is known, this starts the clock on the new information. Each issue starts the clock. However, GAo watches for piece meal litigation.

Generally, you should wait until you receive the agency debriefing before filing a bid protest letter. Once, you receive an acknowledgment from the agency of your request for a debriefing, you should wait until the debrief occurs.

  • Under FAR 15.05(b) and (6)(a) the contracting officer should make every effort to conduct a preaward debriefing as soon as practicable.
  • For a postawarddebriefing the agency should conduct  it to the maximum extent practicable within five days after receipt of your written request.
See How We Can Help You With a GAO or COFC Bid Protest

For help with government contract FAR debriefings , call our bid protest lawyers at 1-866-601-5518.

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