Debriefings for Competitive Acquisitions

Debriefings for Competitive Acquisitions Boston Chapter NCMA Workshop 10 March 2010

Presenters Government Industry Dick BeanLegal Department,General Dynamics C4 Systems, Needham, MArichard.bean@gdc4s.com • Rick Andreoli Acquisition Center of Excellence, Air Force Electronic Systems Center, Hanscom AFB, MArick.andreoli@hanscom.af.mil

Debriefings • Why? • Provide every offeror the opportunity to find out how to improve for next time (even the awardee) • Find out what were good and bad proposal techniques and methods • Get limited insight into what the awardee did right (excluding proprietary information) • Insight into the complete evaluation process (to confirm compliance) • Instill confidence that offerors were treated fairly

Debriefings: FAR Guidance • 15.505 -- Preaward Debriefing of Offerors. • Statutory right to request this, but the contracting officer may refuse for “compelling reasons” as long as reasons for delay are documented in the contract file • If delayed, debriefing shall be provided during postaward debriefing period • Can be done orally, in writing, or by any other method acceptable to the contracting officer • Should be chaired by the contracting officer (but any senior ranking person can chair the event)

Pre-Award Debriefings • Agency’s evaluation of significant elements in the offeror’s proposal • Summary of the rationale for eliminating the offeror from the competition • Reasonable responses to relevant questions about what authorities were followed in the competitive range process (e.g., regulations, policies, solicitation content)

Pre-Award Debriefings • What will not be disclosed: • Number of offerors • Identity of offerors • Content of other proposals • Ranking of other offerors • Evaluation of other offerors • Anything prohibited in a post-award debriefing • Debriefing summary required in the contract file (discoverable if protest later filed)

Pre-Award Debriefings • Practice tips: - Use/provide actual evaluation notices - Provide in sufficient time to allow review - Alternatively, provide break in debriefing to allow review - Raise questions regarding any Q & A’s posed during solicitation and pre-solicitation phase

Debriefings: FAR Guidance • 15.506 – Postaward Debriefing of Offerors. • An offeror, upon written request, shall be debriefed and furnished the basis for the selection decision and contract award • Can be done orally, in writing, or by any other method acceptable to the contracting officer • Should be chaired by the contracting officer (but any senior ranking person can chair the event)

Post-Award Debriefing • Content- • Evaluation of significant weaknesses or deficiencies • Overall evaluated cost or price (including unit prices), technical rating (if applicable) of the successful offeror and the debriefed offeror and past performance information on the debriefed offeror • Overall ranking of all offerors (if used)

Post-Award Debriefing • Content (continued)- • Summary of the rationale for award • For acquisition of commercial items, the make and model of the item to be delivered • Reasonable responses to relevant questions about procedures, regulations and other applicable authorities • Some agencies require more than the FAR: the decision document (as redacted)

Post-Award Debriefing • What cannot be provided- • No point-by-point comparisons with other offerors • Information prohibited from disclosure by the Freedom of Information Act, trade secrets, privileged or confidential manufacturing processes or techniques, commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and names of individuals providing past performance information • Debriefing summary required for the contract file

Air Force Policy • Debriefed offeror shall be provided the same ratings for its proposal that were briefed to the Source Selection Authority during the decision briefing (AFFARS Mandatory Procedure 5315.5) • Air Force will provide redacted decision document at debriefing • Air Force will also debrief in Fair Opportunity evaluations (SAF/AQC Policy Memo 07-C-02)

Post-Award Debriefing • Practice tips- • The more advance notice, the better! Get senior staff from both Government and industry together • Consider use of VTC and/or telephone • The more questions resolved at a debriefing may preclude the need to file a protest! • Openness is the key to success

Post-Award Debriefing • Timing is almost everything! • FAR allows a contracting officer to deny a debriefing if request is untimely (>3 days after notice) • See Coffman Specialties, Inc. B-400706.2, Nov. 12, 2008 – Debriefing denied. Award made Sep. 21; Sep. 22 inquiry for certain info (denied), then Oct. 8 letter citing FAR 15.506

Post-Award Debriefing • Debriefing “should” occur within five days after receipt of a written request • Window of opportunity to obtain a stay of contract performance is a critical time line(five days after debriefing to get GAO stay)

Post-Award Debriefing • Can an unsuccessful offeror file a protest more than five days after debriefing? Yes, up to ten days after award or debriefing, but no stay of performance! See Velos, Inc., B-400500.9, December 14, 2009 (footnote 13) • Filing an agency protest does not “toll” or suspend these time lines! • Requirements for overcoming statutory stay of performance are high; can be challenged

Techniques/Strategies • Assure timely, clearly stated, written debriefing request is submitted (consider asking for the Source Selection Decision Document) • Have right personnel present – including level above the proposal writer for objectivity • Not a debate – an exchange of information

Techniques/Strategies • Ask questions about your proposal • Price (or rates) too high or low? • Responsive to requirements (any deficiencies)? • Areas for improvement (significant weaknesses)? • Areas that were strengths? • If best value, why a higher priced proposal was worth the extra cost (or if you are higher, why wasn’t your proposal worth the extra cost)?

Techniques/Strategies • Adequacy of discussions? • Examine the debriefing charts and source selection decision document – any significant weaknesses or deficiencies identified which were not the subject of discussions? See Tiger Truck, LLC, B-400685, January 14, 2009 • Any inconsistencies between record of discussion and final evaluation? See The Boeing Company, B-311344 et al, June 18, 2008; Velos, Inc., B-400500.7, November 28, 2009

Techniques/Strategies • “Best value” questions may reveal issues with application of the evaluation criteria • Potentially uncover “hidden” evaluation criteria • Possible misapplication of the published relative order of importance of the criteria • Adequate understanding of what your proposal offered versus the awardee? • If you only met a requirement, was that a disadvantage?

Techniques/Strategies • Compare language on briefing charts for similar strengths to the awardee • Was the same technical benefit treated the same? • Confirm equal evaluation credit • If different, ask why • If no good explanation, could be a basis to challenge the decision • Similarly compare the decision document

Techniques/Strategies • Past Performance • A subjective area but worth questioning • Any references fail to respond? How many tries? • What about awardee’s references? Same number of attempts (equal treatment)? • Were you allowed the opportunity to respond to all negative references (excluding CPARS)?

Techniques/Strategies • Don’t overlook the price/cost evaluation process (Tiger Truck case previously cited) • Was the evaluation criteria correctly applied? • Was there a rational basis for the cost realism assumptions made? • Try to get all questions answered at the debriefing because of timeliness rules – call a “life line” if needed, or take a “caucus” break

Techniques/Strategies • “Cygnus’s proposal contained several major weaknesses … and it had a major weakness under the single most important technical evaluation subcriterion …” (decision document) Cygnus Corporation, Inc., B-292649.4, December 30, 2003 • Agency had not addressed these matters with Cygnus – protest sustained

Post-Award Protest • Merits of Agency Protest/Ombudsman Complaint: • While you may forego the ability to take it further to the GAO due to timeliness issues, it may still serve an intended purpose to find out what went wrong and how to fix it • If agency uncovers actual errors that would have affected the decision, the agency would have an obligation to take corrective action • Corrective action would result in a follow-on debriefing

Post-Award Protest • Agency Protest/Ombudsman Complaint (cont.) • Unsuccessful offeror could be building an administrative record that could be used at the U.S. Court of Federal Claims • U.S. Court of Federal Claims is the forum to challenge an “override” decision (overriding statutory automatic stay of performance)

Sample Air Force Debriefing Format

Topics for Discussion • Role of Each Debriefing Team Member: • Program Manager • Contracting Officer • Technical Evaluation Lead • Past Performance Evaluation Lead • Cost/Price Evaluation Lead • Legal Counsel

Topics for Discussion • Contractor assurances of no protest- • Will this result in a different debriefing content? • Yes? • No?

Topics for Discussion • Viability of debriefings at contractor facility • Is the cost/effort worth it?

Topics for Discussion • What role, if any, can the Proposal Analysis Report play in the debriefing process? • Arguably not required to be released, but would that be considered in some circumstances?

Topics for Discussion • Use of the Freedom of Information Act in obtaining relevant information • Substantively useful? • Timeliness?See Automated Medical Products Corporation , B-275835, February 3, 1997 [untimely]Coffman Specialities [cited decision earlier]

Any Questions? Thanks for attending our session today!

References • FAR 15.505 Preaward Debriefing of offerors • FAR 15.506 Postaward Debriefing of offerors • AFFARS MP 5315.506 Postaward Debriefing of offerors

Debriefings for Competitive Acquisitions