Government Contracts Monitor

Defective Debriefings - Where\'s the Remedy?

October 15, 2012

By: Lindsay Simmons

Debriefings are a key component of most competitive procurements. They can occur before or after contract award and can and should be requested by successful and unsuccessful offerors alike.

In a debriefing the agency discusses the strengths and weaknesses it found during the evaluation process and,  post-award, information about the awardee's proposal and price and the rationale for the source selection decision.  Properly conducted, these debriefings can prevent protests by unsuccessful offerors.  Poorly conducted they can spark protests.

Stunningly, unsuccessful offerors  challenging the quality or conduct of debriefings do not succeed.  As the GAO has consistently held : Agency miscommunication or misinformation provided during a debriefing is a procedural matter having no effect on the validity of the actual evaluation and award decision. CACI Field Services Inc., B-234945, 89-2 CPD ¶ 97 (Comp. Gen. Aug. 2, 1989) (citing BDM Management Services Co., B-228287, 88-1 CPD ¶ 93 (Comp. Gen. Feb. 1, 1988)). 

Stated another way - "There is no remedy available to the person who receives an inadequate or defective debriefing."  Ralph C. Nash & John Cibinic, Debriefing: Tell It Like It Is, 4 Nash & Cibinic Rep. ¶ 43, July 1990, at 102.

However, as noted by Nash and Cibinic, while missteps in a debriefing may not form the basis for overturning an award decision, to the extent they cause a disappointed offeror to file a protest, the protestor "should obtain the costs of filing and pursuing the protest until the correct information was obtained." Id. They should, but they do not.

A very recent GAO protest involved just such a situation. A federal agency conducted a written post -award debriefing in a lowest price technically acceptable procurement. In the debriefing the agency informed the disappointed bidder that it did not have the lowest priced proposal. But the written debriefing set forth a winning price that was higher than the disappointed bidder's price.  Not surprisingly, a protest followed. 

Subsequently the agency corrected its debriefing, and provided the correct pricing --  information that made clear there was no basis for protest.  While the agency accompanied its new, corrected debriefing information with perfuse apologies, the disappointed bidder was left holding the legal bill for its protest.

There are a lot of costs associated with pursuing a government contract - -this should not be one of them.  Steps should be taken to provide a remedy for offerors who receive defective debriefings.

 

Lindsay Simmons is the attorney responsible for the content of this article.