Government Contracts Monitor

Ten Things to Remember about Debriefings

October 7, 2014

By: Eric Whytsell

With the end of the government’s fiscal year comes a rash of contract awards, which means that many contractors are experiencing either “the thrill of victory” or “the agony of defeat”. Regardless of which side of the award decision you end up on, there are a number of important things to keep in mind about debriefings:

They’re Not Just for Disappointed Offerors. When you miss out on an opportunity, asking for a debriefing is an obvious response: you want to find out as much as possible about the basis for the decision so you can assess whether grounds for a protest exist. Winning offerors, however, often ignore debriefings. But even if you won the contract, there’s still great value in meeting with the customer to learn what you did right and what you could have done better. In addition, and perhaps more importantly, a debriefing may allow you to learn useful information about your competition that you might not otherwise be able to obtain – information that can come in handy (but would likely be subject to a protective order and out of your reach) if they decide to file a protest. You owe it to yourself to always request a debriefing, win or lose.
Don’t Delay -- You Only Have 3 Calendar Days to Make Your Request. Whether you’ve just received notice of award (win or lose) or notification that you have been excluded from the competitive range or competition, you generally must file a written request for a debriefing within 3 calendar days of receiving the news. An e-mail is sufficient. Indeed, many contractors routinely fire off a debriefing request immediately upon receipt of award notification. The better practice, however, is to take time to think through the issues raised in this list before submitting your request.
You May Not Be Entitled to a Debriefing, Strictly Speaking. It’s important to remember that “full” agency debriefings are not required in every procurement context. Indeed, the debriefings described in FAR 15.505 and 15.506 only apply to FAR Part 15 negotiated procurements. While other competitive procedures (e.g. FAA’s Acquisition Management System) may provide for similar debriefings, other procurement schemes entitle offerors to significantly less information concerning the evaluation and award decision. For example, under FAR 8.405-2, unsuccessful offerors seeking information about a federal supply schedule award that considered more than price alone only receive “a brief explanation of the basis for the award decision.” But while it’s always important to be aware of the parameters of the information you are entitled to, you should not be afraid to ask for the information you want. After all, the worst agency personnel can do is say, “No.” And they may make more than the standard disclosure.
Specify the Type of Debriefing You Want – What You Get Can Be Important. Agencies have a great deal of discretion in deciding the nature and timing of the debriefing they provide, but that does not mean the contractor shouldn’t try to influence that decision. At the very least, your debriefing request should specify the type of debriefing you want (in-person, by phone, written) and take steps to make it easy for the agency to give you what you want. Contractors often favor an in-person debriefing because that format allows participants to observe body language and facial expressions, which makes it easier for both sides to engage in a meaningful discussion. If that’s what you ask for, make sure to provide dates and times (as many as possible) when your team will be available to meet at the agency’s office. If the in-person option involves too much travel and you instead request a telephonic debriefing, you should still provide as many dates and times as possible. In general, debriefings by phone (which still provide at least a theoretical opportunity for dialog) are preferable to written debriefings (which generally don’t).
The Agency Is Supposed to Conduct the Debriefing Within 5 Days (But Don’t Count on It). FAR 15.506(a)(2) provides that, “to the maximum extent practicable, the debriefing should occur within 5 days after receipt of the written request.” Of course, all sorts of things can – and often do -- cause an agency to conduct a debriefing more than 5 days after the request is received. That is not always a bad thing: who wouldn’t rather have an in-person meeting with the agency 10 days later instead of receiving an e-mail with a written debriefing in half the time? If you’re willing to wait for a more substantive debriefing, let the agency know that.
When Scheduling a Debriefing, Think Hard About the Timing. Because the date of the debriefing defines the protest deadline, the timing of the debriefing can be critical. Unfortunately, it is also too often overlooked. Contractors who send their request and ask for the earliest possible debriefing without consulting the calendar may find themselves with very little time to prepare any protest they decide to file based on what they learn at the debriefing. This is particularly true with respect to protests before the GAO in which an automatic stay is sought, which must be filed at the GAO the day before the deadline so that GAO personnel can timely notify the agency of the stay.
Prepare the Questions You Want Answered. Regardless of the kind of debriefing you get, you must determine the specific questions you want to have answered. Sometimes agencies require (or allow) such questions to be submitted beforehand. Either way, developing questions is vital to a successful debriefing. Lack of preparation in this context means the loss of any chance of control or influence. If you think you may get a written debriefing, consider posing questions in your debriefing request or reserving the right to submit them later. In the event you receive a written debriefing under FAR Part 15, you may want to argue to the agency that the debriefing is not complete until you receive “reasonable responses to relevant questions” about whether the agency followed applicable procurement guidance (one of the required elements of a debriefing, which is often not fulfilled by written debriefings).
If You Don’t Ask, You Certainly Won’t Get an Answer. Contractors should not be afraid to raise the issues they want to learn about (within reason). You should generally stay away from questions that clearly fall within the types of information expressly excluded from debriefings (e.g. point-by-point comparisons, trade secrets, etc.). But most other questions can be articulated so that they at least arguably fall within the “reasonable responses to relevant questions” category of inquiries. So long as those questions are posed in a respectful, non-accusatory way, there’s usually not much downside to raising them.
Put the Hard Questions at the End. Sometimes the sequencing of questions is as important as the questions themselves. When choosing the topics you want to cover during a debriefing, you should identify the questions that the agency may perceive as inappropriate and confirm that it really does make sense to ask them – or at least to have them in reserve. If it does, consider how you can rephrase each question to make it less objectionable. If the question or the topic involved is still likely to be perceived by the agency as out-of-bounds, or a personal attack or otherwise problematic, move it to the end of your script. Questions that push the envelope should be reserved for later in the debriefing so they don’t shut down the conversation before it gets started.
You Can Get Your Lawyer Involved if You Want. Inviting your lawyer to a debriefing certainly can have the effect of shutting down the discussion, if only because the agency will bring their lawyer too – and some government attorneys are cautious to a fault. However, depending on the circumstances of the specific procurement and the government lawyer in question, the strategy can also have the opposite effect. If you suspect the key issues in the award decision relate to legal questions that might be better explored and addressed by attorneys, having both sides lawyered up might be particularly productive. Of course, contractors sometimes want their lawyers there to serve as their spokesman and questioner, believing that the benefits from such an approach outweigh any potential adverse impact on the conversation. And with the right lawyer, such contractors are often right.

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