According to a recent article (Click HERE), U.S. federal contract spending grew, for the fourth year in a row to $597 Billion in 2019, which was an all-time high. This represents an enormous amount of goods and services purchased by the U.S. federal government, and makes the federal government the single largest purchaser of goods in the world.
The federal government does an enormous amount of business with contractors who are eager to provide their goods and services, and who are willing to compete for those contracts. Therefore, it’s important that federal government agencies provide mechanisms and processes for current and potential contractors to be given an opportunity to learn and understand where they went wrong and how they can get better, as a part of the procurement process.
Debriefings provide opportunities for companies, and government agencies, to compile information, get important feedback, and develop relationships with key partners in the procurement process.
WHAT IS A DEBRIEF: A debrief is an opportunity for a firm to gather information that explains specifically why they were not included in the competitive range, or why they did not win an award. Debriefs provide a sort of blueprint and lessons learned for contractors, if used in the right way. Debriefs let a contractor know why their proposal was deficient, what was lacking in their proposal, gives details about the evaluation of its proposal, and helps contractors get better the next time.
Because every procurement is different, it isn’t an exact science, but debriefs offer the contractor a chance to learn and understand how they can be better at responding to solicitations, proposal writing, and how to frame your future responses to solicitations.
Types of Debriefs - According to FAR Part 15.505 and 15.506 there are two types of debriefs.
The first type is the pre-award debrief. These are debriefings that are given to contractors that are excluded from the competitive range, or from continued competition, prior to the awarding of a contract. To be considered for a pre-award debrief, contractors must submit a written, or emailed, request to the contracting officer within 3 days (excluding weekends and federal holidays – FAR 15.501) following their receipt of a notification that they did not make the competitive range.
By offering pre-award debriefings early in a selection process, a contractor that clearly won’t win, is not hijacked and wondering if they’ve won an award, or not. It’s in the best interest of the contractor, and the federal government, to try and move on as quickly as possible to hold these debriefings.
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Pre-award debriefs are an essential part of the process and serves as an asset to contractors and the government, as sort of a release valve to continue the award process without contractors who won’t win the award. For the balance of this blog post, I will not go into the nuances and specifics about the pre-award debriefing process, because it is the less common of the two types.
The second type of debrief is the post-award debrief, which is discussed in detail in FAR part 15.506. To be considered for a post-award debrief, contractors must submit a written, or emailed, request to the contracting officer within 3 days (excluding weekends and federal holidays – FAR 15.501) following their receipt of a notification that they did not win the award.
If the contractor fails to provide a written request timely, the government can reject the requests
Contractors should be aware of these rules. A contracting officer can still grant a contractor a debriefing if they did not submit a timely request, but it is up to the discretion of the contracting officer. From a contracting officers standpoint, the award process takes a significant amount of time and dedication, so not requesting a timely debriefing, will likely mean you won't get one.
To the government, time always equates to money or the potential of money.
For a list of items that can be discussed and cannot be discussed during a debrief, visit FAR Part 15.505 and 15.506.
A RULE OF THUMB
Debriefs should ALWAYS remain cordial and be a non-adversarial interaction between a contractor and a government agency.
Benefits of debriefs to a potential contractor: Debriefs help a firm understand where they are relative to the competition in their industry, provide a baseline for lessons learned, and tell the contractor how they can get better. Debriefs can also allow a contractor to make a determination about whether or not they have grounds for a protest.
A debrief, while not specifically designed for this purpose, also gives a firm the ability to reinforce their capabilities, and further pitch, or market, themselves. Even in a debriefing, firms should be thinking about building good will and good relationships with the federal government agency.
Benefits of a debrief to government agencies: Debriefs provide agencies with more informed firms for future procurements. Informed firms = better proposals = higher quality offers = stronger competition. Stronger competition ultimately means better performances by contractors on government contracts. Debriefs also allow the government to show transparency and fairness, and at the same time, giving the government the bandwidth to educate firms about its procurement processes and award decisions.
4 Things to Keep In Mind:
1. A good debrief will usually leave both the contractor and the government more respectful of each others perspective of the process.
2. A contractor is entitled to only one debrief per proposal that was submitted. So if a contractor chose a pre-award debrief, they are not entitled to a post-award debrief, and vice versa.
3. Debriefs can be provided to the contractor in person, over the phone, in writing, via email, or any other means by which the contracting officer deems appropriate.
4. Per FAR Part 15.506, in a negotiated procurement, and FAR Part 16.5 in an IDIQ procurement over $5.5M, it is not a choice of the contracting officer to provide a debrief to the contractor. The contractor has the right to the debrief. The government agency must provide debriefs to the contractors, if the contractor requests the debrief in writing and timely. FAR says that to the maximum extent practical the government should provide the debriefing to the contractor within 5 days of the contractors written request.
NOTE: New Department of Defense (DOD) Policy for Post-Award Debriefs: Controversy has long surrounded debriefs, which pointed to the lack of depth and effectiveness of debriefs. In the beginning of 2018, the National Defense Authorization Act (NDAA) enhanced post-award debriefing rights to contractors doing business with DOD agencies with what was called the 2-day rule. It mandated contracting officers allow contractors two additional days, following the debriefing, to ask additional questions.
It also directed contracting officers five days to respond to those additional questions. The aim of this new policy was to make the debriefing process more thorough, and thus reduce the number of protests that arise from weak debriefs that have, for a long time, caused problems and actually led to more protests. The gist was to have more meaningful exchanges between the federal government and contractors, with a hope that this increased communication will deter and prevent protests.
If contractors feel they have more redress and are being heard more, relations will become more palatable, and goodwill will, more often than not, prevail, and protests will be thwarted. This is the thought process. Let’s see if it will be an accurate forecast.
The chart below provides a dashboard glimpse of Government Accountability Office (GAO) statistics from FY 2015 through FY 2019. At the end of 2019, following a full year of the new policy, the GAO released the annual Bid Protest Report to Congress for Fiscal Year 2019. Interestingly enough, as you can see below, the trend was down. This report is mandated by the Competition in Contracting Act (CICA). The trending data on the five year trend, is interesting, to say the least. in the GAO’s bid protest adjudication.
Chart courtesy of McCarter & English Government Contract Law