Debriefings for Competitive Acquisitions

October 19 NCMA Boston Chapter Dick Bean Associate General Counsel General Dynamics C4 Systems

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Debriefings

• Why? Some reasons for the FAR policy: – Provide every offeror the opportunity to find out how to improve for next time (even the awardee) – Find out what were good and bad proposal techniques and methods – Get limited insight into what the awardee did right (excluding proprietary information) – Insight into the complete evaluation process (to confirm compliance) – Instill confidence that offerors were treated fairly 2

Debriefings

– However, does it really provide sufficient information to explain why one proposal was selected over others?

– If past history shows that some companies file GAO protests and then withdraw when their counsel receives the agency report, does it indicate more could have been done at the debriefing to establish the agency made the right decision and preclude that protest filing? Maybe!

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Debriefings

• • GAO Report B-158766, November 23, 2010 Annual Report to Congress on Bid Protests – 2,299 filed in FY 2010, 441 decided on the merits GAO Report B-401197, April 9, 2009 Report to Congress on Bid Protests Involving Defense Procurements – 2004-2008 average: 55.78% of DoD protests closed within 30 days of filing 4

Pre-Award Debriefings

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15.505 -- Preaward Debriefing of Offerors.

– Statutory right to request this, but the contracting officer may refuse for “compelling reasons” as long as reasons for delay are documented in the contract file • If delayed, debriefing shall be provided during postaward debriefing period – Can be done orally, in writing, or by any other method acceptable to the contracting officer – Should be chaired by the contracting officer (but any senior ranking person can chair the event) 5

Pre-Award Debriefings

• • • Agency’s evaluation of significant elements in the offeror’s proposal Summary of the rationale for eliminating the offeror from the competition Reasonable responses to relevant questions about what authorities were followed in the competitive range process (e.g., regulations, policies, solicitation content) 6

Pre-Award Debriefings

• • What will not be disclosed: – Number of offerors – Identity of offerors – Content of other proposals – Ranking of other offerors – Evaluation of other offerors – Anything prohibited in a post-award debriefing Debriefing summary required in the contract file (discoverable if protest later filed) 7

Pre-Award Debriefings

• Practice tips: - Use/provide actual evaluation notices (if not provided with comp. range letter) - Provide in sufficient time to allow review - Alternatively, provide break in debriefing to allow review - Raise questions regarding any Q & A’s posed during solicitation and pre-solicitation phase 8

Post-Award Debriefings

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15.506 – Postaward Debriefing of Offerors.

– An offeror, upon written request, shall be debriefed and furnished the basis for the selection decision and contract award – Can be done orally, in writing, or by any other method acceptable to the contracting officer – Should be chaired by the contracting officer (but any senior ranking person can chair the event) 9

Post-Award Debriefing

• Content – Evaluation of significant weaknesses or deficiencies – Overall evaluated cost or price (including unit prices), technical rating (if applicable) of the successful offeror and the debriefed offeror and past performance information on the debriefed offeror – Overall ranking of all offerors (if used) 10

Post-Award Debriefing

• Content (continued) – Summary of the rationale for award – For acquisition of commercial items, the make and model of the item to be delivered – Reasonable responses to relevant questions about procedures, regulations and other applicable authorities – Some agencies require more than the FAR: the decision document (as redacted) 11

Post-Award Debriefing

• • What cannot be provided – No point-by-point comparisons with other offerors – Information prohibited from disclosure by the Freedom of Information Act, trade secrets, privileged or confidential manufacturing processes or techniques, commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and names of individuals providing past performance information Debriefing summary required for the contract file 12

Release Policies

• • Debriefed offeror should be provided the same rating materials for its proposal that were briefed to the Source Selection Authority during the decision briefing DoD agencies may provide redacted decision document at debriefing 13

Delivery Order Competitions

• • • Debriefings are required for “fair opportunity” competitions for delivery orders exceeding $5M. See FAR 16.505(b)(4) Similar procedures as Part 15 source selection Contracting Officer must document the contract file with the basis of award and rationale for any tradeoffs among price and non-price factors. See FAR 16.505(b)(5) 14

Post-Award Debriefing

• Practice tips – The more advance notice, the better! Get senior staff from both Government and offeror together (level above the proposal writer) – Consider VTC or telephone (rather than written) – The more questions resolved at a debriefing may preclude a protest – Openness is the key to success - counsel will get documents anyway with agency report or through discovery process at GAO 15

Protest After Award

• FAR 33.104(c)(1) - When the agency receives notice of a protest from the GAO within 10 days after contract award or within 5 days after a debriefing date offered to the protester for any debriefing required by FAR 15.505 or 15.506, whichever is later, the contracting officer shall suspend performance or terminate the awarded contract [except when following for override procedures] 16

Post-Award Debriefing

• • • Timing is almost everything sometimes! FAR allows a contracting officer to deny a debriefing if request is untimely (>3 days after notice) See Coffman Specialties, Inc. B-400706.2, Nov. 12, 2008 – Debriefing denied. Award made Sep. 21; Sep. 22 inquiry for certain info (denied), then Oct. 8 letter citing FAR 15.506

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Post-Award Debriefing

• • • Debriefing “should” occur within five days after receipt of a written request Window of opportunity to obtain a stay of contract performance is a critical time line Within five days after “required” debriefing or within ten days after award if no debriefing required (e.g., sealed bid or GSA Schedule) 18

Post-Award Debriefing

• • • Can an unsuccessful offeror file a protest more than five days after debriefing? Yes, up to ten days after award or debriefing, but no stay of performance! See Velos, Inc ., B-400500.9, December 14, 2009 (footnote 13) Filing an agency protest does not “toll” or suspend these time lines! Requirements for overcoming statutory stay of performance are high; can be challenged 19

Techniques/Strategies

• Assure timely, clearly stated, written debriefing request is submitted (consider asking for the Source Selection Decision Document prior to debriefing to review it) • Have right personnel present – including level above the proposal writer for objectivity • Not a debate – an exchange of information 20

Techniques/Strategies

• Ask questions about your proposal – Price (or rates) too high or low?

– Responsive to requirements (any deficiencies)?

– Areas for improvement (significant weaknesses)?

– Areas that were strengths?

– If best value, why a higher priced proposal was worth the extra cost (or if you are higher, why wasn’t your proposal worth the extra cost)?

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Techniques/Strategies

 Adequacy of discussions?

 Examine the debriefing charts and source selection decision document – any significant weaknesses or deficiencies identified which were not the subject of discussions? See Tiger Truck , LLC, B-400685, January 14, 2009  Any inconsistencies between record of discussion and final evaluation? See The Boeing Company , B 311344 et al, June 18, 2008; Velos, Inc ., B 400500.7, November 28, 2009 22

Techniques/Strategies

• “Best value” questions may reveal issues with application of the evaluation criteria – Potentially uncover “hidden” evaluation criteria – Possible misapplication of the published relative order of importance of the criteria – Adequate understanding of what your proposal offered versus the awardee?

– If you only met a requirement, was that a disadvantage?

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Techniques/Strategies

• • Compare language on briefing charts for similar strengths to the awardee – Was the same technical benefit treated the same?

– Confirm equal evaluation credit – If different, ask why – If no good explanation, could be a basis to challenge the decision Similarly compare the decision document 24

Techniques/Strategies

• Past Performance – A subjective area but worth questioning – Any references fail to respond? How many tries?

– What about awardee’s references? Same number of attempts (equal treatment)?

– Were you allowed the opportunity to respond to all negative references (excluding CPARS)? 25

Techniques/Strategies

• • Don’t overlook the price/cost evaluation process (Tiger Truck case previously cited) – Was the evaluation criteria correctly applied?

– Was there a rational basis for the cost realism assumptions made?

Try to get all questions answered at the debriefing because of timeliness rules – call a “life line” if needed, or take a “caucus” break 26

Techniques/Strategies

• • “Cygnus’s proposal contained several major weaknesses … and it had a major weakness under the single most important technical evaluation subcriterion …” (decision document) Cygnus Corporation, Inc ., B 292649.4, December 30, 2003 Agency had not addressed these matters with Cygnus – protest sustained 27

Post-Award Protest

 Merits of Agency Protest/Ombudsman Complaint:  While you may forego the ability to take it further to the GAO due to timeliness issues, it may still serve an intended purpose to find out what went wrong and how to fix it (may also build goodwill)  If agency uncovers actual errors that would have affected the decision, the agency would have an obligation to take corrective action ▪ Corrective action would result in a follow-on debriefing 28

Post-Award Protest

• • Agency Protest/Ombudsman Complaint (cont.) – Unsuccessful offeror could be building an administrative record that could be used at the U.S. Court of Federal Claims U.S. Court of Federal Claims is the forum to challenge an “override” decision (overriding statutory automatic stay of performance) 29

Override of Automatic Stay

• • • • FAR 33.104(c)(2) - two alternate bases: Urgent and Compelling Circumstances Examples: potential for loss of life; national security concerns; significant safety issues Best Interests of the Government Examples: program schedule impacts; program cost impacts HCA determination; GAO must be notified 30

Override of Automatic Stay

• • U.S. Court of Federal Claims determines whether override decision was arbitrary, capricious, or an abuse of discretion “Ensuring CICA Stay Overrides are Reasonable, Supportable, and Less Vulnerable to Attack: Practical Recommendations in Light of Recent COFC Cases” by Wilkinson and Ehlers, December 2007 Air Force Law Review 31

Topics for Discussion

• Role of Each Debriefing Team Member: – Program Manager – Contracting Officer – Technical Evaluation Lead – Past Performance Evaluation Lead – Cost/Price Evaluation Lead – Legal Counsel 32

Topics for Discussion

• Contractor – provide assurances of no protest?

– Will this result in a different debriefing content?

– Yes?

– No?

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Topics for Discussion

• Viability of debriefings at contractor facility – Is the cost/effort worth it?

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Topics for Discussion

• What role, if any, can the Proposal Analysis Report play in the debriefing process?

– Arguably not required to be released, but would that be considered in some circumstances? 35

Topics for Discussion

• Use of the Freedom of Information Act in obtaining relevant information – Substantively useful?

– Timeliness?

See Automated Medical Products Corporation , B 275835, February 3, 1997 [untimely] Coffman Specialities [cited decision earlier] 36

Any Questions?

Thanks for attending!

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