Two-Step Debriefing Process: “The Ultimate Elimination of Acquisition Protests”

2. Two-Step Debriefing Process: “The Ultimate Elimination of Acquisition Protests” Breakout Session # 401 Sharon D. Bodford, Contracting Officer, Commercial Services Management Deborah Lee, Contracting Officer’s Technical Representative Department of Homeland Security, Federal Law Enforcement Training Center (FLETC) Date: April 6, 2009 Time: 10:30 am -12:00 pm

3. Our Acquisition Mission • Seek out successful debriefing procedures • Identify the critical elements of the two-step debriefing process • Eliminate the protest enemy with the two-step debriefing process

4. Can We Eliminate Protests? YES WE CAN!

5. Debriefing • Why Should We? • Basis for Elimination • Basis for Award • Basis for Improved Proposals • Basic for Future Contractor

6. Debriefing Procedures FAR 15.505 and 15.506 • Debriefing definition • Timing & Conduct of Debriefing • Requests Debriefing • What is Required Debriefing • When is a Required Debriefing Provided • When is Required Debriefing Concluded • Pre-Award Debriefing • Post-Award Debriefing

7. Debriefing Definition Government’s assessment of a offeror’s proposal in relation to the evaluation criteria and an understanding of the basis for the award decision or exclusion from the competitive range

8. Timing & Conduct of Debriefing • Contractor’s opportunity to learn • Explanation of award decision • Opportunity not to correct inadequacies/deficiencies • Oral, writing or any method acceptable to CO • Fax, email or telephone • CO maintains official summary of debriefed information

9. Required Debriefing • Agency notification of contractor exclusion • Timely debriefings for requests • Untimely debriefings may not be accommodated • Debriefings not required, the filing protests deadline is not automatic

10. What is a Required Debriefing • Only firms who submitted a proposal • Submitted in writing • Three (3) days after notice of exclusion or notice of award • Counting three (3) days • Receipt date not counted (FAR 33.101) • Proof of timely request for debriefing • Faxed transmission • Returned receipt • Dated email

11. When is a Required Debriefing Provided • Government provided debriefing “maximum extent practical” within 5 days after receipt of request • CO chairs debriefing session • Once debriefing provided, firm has up to 10 days to file timely protest w/GAO • Protest w/in 5 days of required debriefing can result in automatic suspension of contract performance

12. When is a Required Debriefing Concluded • Debriefing concluded • Agency responses to relevant firm questions • No clear standard for determining relevance of questions • Questions may be received prior to debriefing

13. Pre-Award Debriefing • Information on offerors not releasable • Do not expect to find out • Number and/or identity of offerors • Content, evaluation, & ranking other offeror proposals • Minimum • Evaluation of significant elements of proposals • Summary of rational for elimination • Responses to relevant questions on source selection Procedures • Unsuccessful offeror entitled to one debriefing • Pre-award (outside competitive range); or • Post-award

14. Post-Award Debriefing • Any firm retained in the competitive range • Timely submission • Maximum extent possible • 5 days after written request • Agency must provide • Significant weakness or deficiencies • Evaluated price/cost including unit price (s) • Technical rating of debriefed firm and awardee • Past performance on the debriefed offeror • Overall ranking of all offerors, if developed • Summary of rational for award

15. Post-Award Debriefing cont • Reasonable responses to relevant questions • Procedures followed • Source selection process in the solicitation • Applicable regulations

16. Post-Award Debriefing Exclusions • Shall not include • Point by point comparison or information exempt from release under FOIA • Trade Secrets • The names of individuals providing references • Confidential manufacturing processes • Privileged financial information (cost breakdown, profit, etc)

17. Inadequate Debriefing • Not protestable • Procedural matters do not affect the validity of an award (Hot Shot Express, Inc., B-290482, August 2, 2002 CPD ¶ 139) • Extend protest time for offeror if the time to stay performance of the contract has passed (Geo-Centers, Inc., B-276033, May 5, 1997, 97-1 CPD ¶ 182). • General Accountability Office (GAO) sustained a protest that was filed three months after contract award and two months after a debriefing. The GAO ruled the protest was timely because it was filed 10 days after the protester learned the grounds for the protest in a response to its Freedom of Information Act (FOIA) request.

18. Debriefing Concluded • Agency and offeror expectations that debriefing will provide the requester with a meaningful insight as to why the competitor’s proposal was deemed technically superior is misleading • This is not a comparison of proposals

19. Protests • “Protest” - A written objection by an interested party to any of the following: • Solicitation for offers for a contract for the procurement of property or services • The cancellation of the solicitation or other request • An award or proposed award for the contract • A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract • “Interesting party for the purpose of filing a protest” - An actual or prospective offeror whose direct economic interest would be affected by the award or a contract or by the failure to award contract

20. Types of Protests • Agency Protest (FAR 33.103) • Government Accountability Office (GAO) (FAR 33.104) • Size Protests (19.3)

21. Agency or GAO Protest Requirements • Name (address, fax numbers) • Solicitation or contract number • Detailed statement of legal and factual grounds for protest • Copies of relevant documents • Request for a ruling by Agency • Form of relief requested • Establish that protester is an interested party • Establish timeliness of protest • Solicitation before closing date for RFP or IFB • NLT 10 days when basis Is known • 5 days after debriefing date • Subsequent protests to GAO within 10 days of knowledge of initial adverse agency action

22. Protest To GAO • Same information as Agency • Protest copy to Agency NLT 1 day after submission to GAO • Protests before Award • Award authorized by Head of Contracting Activity (HCA) • Protests after Award • Immediately suspend performance • Performance may be authorized by HCA • GAO decision time • 100 days from filing date • 65 days under express option

23. What Happened! Case Analysis • Background • First Round • Sequence of Events • Outcome of Events • Mission Failure

24. Background • Acquisition Planning – 2006 • Consolidated 4 Sites (1) Brunswick, GA (2) Charleston, SC (3) Cheltenham, MD (4) Artesia, NM • Housing maintenance • Estimated value 150 million dollars • Formal source selection process • FFP/IDIQ award options w/eight years • 8(a) set-aside

25. First Round

26. Sequence of Events • Solicitation issued • April 2007 • Solicitation closed • July 2007 • 5 Offerors (2 Incumbents) • All boards concluded • September 2007 • Source Selection Authority approved • Awarded to Firm D • September 2007 • Best value technically acceptable • $98 million dollars

27. Sequence of Events cont • Debriefings • Telephonic w/agenda • September 2007 • October 2007 • Offerors • 4 Unsuccessful offerors • 1 successful offeror • Participants • CO • Board chairpersons • Legal advisor

28. Outcome of Events • GAO Protests • Incumbents (2) • October 2007 • Lacked meaningful discussion • Stay of performance • GAO Decision • December 2007 • Rendered Academic • Re-evaluate proposals • Termination of Award • Firm D Award Terminated • January 2008

29. Outcome of Events Concluded Lost • Time • Effort • Performance • Dollars Costly Claims • Protests • Termination for Convenience

30. Mission (Acquisition) Failure • Selection of Evaluation Team • Subject Matter Experts • Personal knowledge of incumbents • Inclined to favor incumbent proposals • Influential impacts on ratings • Inexperience evaluators with source selection process • Preoccupied with site responsibilities • Training • Vague • Lacked specific examples • Lacked correlation to the source selection process

31. Mission (Acquisition) Failure cont • Discussion Questions • Verbally to offerors • Written to offerors • FPR Amendment • Board Reports • Failure to include to multiple reviewers • Failure to validate findings to support reports • Failure to identify best value of $20 million dollar difference

32. Mission (Acquisition) Failure cont • Technical Evaluation Approach • Inability to determine relevant clarifying questions • Inability to determine weakness vs. deficiency • Failure to verify findings of each evaluator • Failure to annotate page location of finding • Debriefings • Inexperienced • Lacked correlation to discussion questions • Identified strengths and weaknesses

33. Second Round

34. What Changed! • Background • Second Round • Sequence of Events • Outcome of Events • Mission Success

35. Background • Final Proposal Revisions (FPR) Re-evaluation • Selection of New Evaluation Team • Screened • Experienced • Recommended by stakeholders • Approved by HCA • Centrally located • Time • Committed • Dedicated • Scheduled

36. Background cont • Training • Legal • CO • Chairpersons • Examples from 1st round • Review of evaluation criteria • Step by step review of SSP

37. Sequence of Events • Re-evaluation Reviews • 5 FFPRs • Boards • Convened April 08 • Concluded May 08 • Discussion questions • Clarifications • Thorough • Precise • Validated

38. Sequence of Events cont • Second Final Proposal Revisions (SFPR) amendment • May 08 • Written discussion questions • Updated costs • Solicitation clarifications • Performance period changes

39. Sequence of Events cont • SFPR Boards • Convened May 08 • Concluded July 08 • Board Reports Review Team Established • Legal counsel • CO • Chairpersons

40. Sequence of Events cont • Board Reports • Validity • Reliability • Consistency • Continuity • Precise • Documented forms • Identifiable page numbers • Clear and Identifiable weakness/strength/improvement

41. Sequence of Events concluded • Source Selection Authority • Approved July 08 • Awarded to Firm D • August 2008 • Best Value Technically acceptable • 100 Million • Debriefings • August 2008

42. Two-Step Debriefings • Two – Step Process • Time established • Written Letter • Written Evaluation • Written Rational for Award • Written Request for Clarifications • Written Request for Telephonic Debriefing • Telephonic Debriefing

43. Two - Step Debriefings cont • Two-Step Process Letter • Written Documentation • What (FAR 15.506 (d)) • Why (Purpose Identified) • Background of Solicitation • How (Formal Source Selection Process) • Solicitation Requirements • Basis and Evaluation for Award • Strengths to DQ/Recommendations for improvements • New strengths/recommendations to new proposal • Clear rational of award • Best value amount justified

44. Two – Step Debriefings concluded (Debriefing Instructions- When and Where) Based on the aforementioned analysis of your technical, present/past performance and price proposals, please submit written questions regarding the government’s evaluation of your proposal if you desire further clarifications. Questions shall be submitted via email to Sharon.bodford@dhs.gov by 1:00 pm EDT on August 28, 2008. A telephonic response to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations and other applicable authorities were followed will be scheduled to occur on this date between 3:00 pm and 4:00 pm EDT to ensure complete understanding of the Government’s evaluation of the significant strengths and/or weaknesses or areas for improvements in your proposal. 43

45. Outcome of events • Written Debriefings • Successful outcomes • 1 telephonic debriefing • 1 clarification question • 0 misunderstandings • 0 disagreements • 0 protests • Timely use of resources • Timely Phase-in • Timely Performance

46. Mission (Acquisition) Success • Contractors thoroughly informed • Contractors developed trust • Contractors understood rational for award • Contractors remain interested • Contractors and Government gained appreciation of the source selection process • Government created mutual respect among all players • Government showed value of the each contractor’s proposal

47. Mission Complete In order to eliminate protests… • Document • Clarify • Validate • Reliable • Prepare

48. Did We Eliminate Protests? YES WE DID! 47