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Government Contracting: Debriefings 101
According to a recent article on the Federal News Network website (Click HERE), federal contract spending grew at a rate of about 5.8 percent annually between fiscal years 2014 and 2018, from $448 billion in 2014 to a staggering $560 billion for fiscal year 2018, which was an all-time high. This represents an enormous amount of goods and services purchased by the federal government, and makes the federal government the single largest purchaser of goods in the world.
The fact is, the government does an enormous amount of business with contractors who are eager to provide their goods and services to the federal government. Therefore, it’s important that federal government agencies provide mechanisms and processes for current and potential contractors to be given a sort of “due process” to learn and understand where they went wrong and how they can get better.
Debriefs provide vital opportunities for companies, and for government agencies, to gather valuable information and, at the same time, develop relationships that will ultimately benefit all those who are involved 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 feedback and a sort of blueprint for contractors, if used in the right way. Debriefs let a contractor know how their proposal was deficient, what was lacking in their proposal, gives details about the evaluation of its proposal, and gives contractors an idea of what specific aspects of their proposal missed the boat. 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 RFP’s and RFQ’s.
Types of Debriefs - Federal Acquisitions Regulations (FAR) Part 15.505 and 15.506
There are two types of debriefs described in FAR
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. 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.
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 describes to them that they did not win the award. If the contractor fails to provide this written request timely, the government may reject the debriefing. 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 there is some risks in that. First, it takes time away from the procurement process to actually move forward with award activities that need to be dedicated to starting the administrative phase of the procurement itself. Secondly, allowing additional time, beyond time that is regulated by the FAR, is always leaving a proverbial window of time open, that, if not necessary to be open, needs to be closed by the contracting officer. Time always equates to money or the potential of money. So while it is ok for a contracting officer to allow it, they should proceed with caution and only extend the courtesy of a debrief if the situation surrounding a procurement warrants it. Perhaps there is a very poignant reason the contractor missed the deadline and offering the debrief minimally infringes upon the next phase of the procurement.
For a list of items that can be discussed and cannot be discussed during a debrief, visit Federal Acquisitions Regulations (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 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.
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 procurements. Debriefs also build good will, allow the government to show a positive public persona, and shines a positive light on government agencies through public relations. Debriefs also show the governments transparency and fairness, and at the same time, giving the government the bandwidth to educate fims 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 contract, 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. It mandated contracting officers on DOD agency procurements, allow contractors two additional days, following the debriefing, to ask additional questions. It gives contracting officer five days to respond to these additional questions. It hopes to reduce the number of protests that arise from weak debriefs that have, for a long time, caused problems and actually led to protests. The key with this provision, is to provide more thorough and 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.
In summary, debriefs, whether pre-award or post-award, are essential for every contractor, and beneficial to both the contractor and federal government agencies. If you are a contractor, take advantage of debriefings to get better, and if you are the federal government, take advantage of the opportunity to explain, and give valuable useful information. Feel free to reach out for further information.
Feel free to leave a comment below, or contact me below with thoughts or questions, and I will respond.