Effective Contract Debriefings for Government-Industry Communication

1. TIDEWATER GOVERNMENT INDUSTRY COUNCIL TGIC EXCHANGE BRIEF CONTRACT DEBRIEFINGS “An Opportunity to Communicate” July 18, 2017 Terence Murphy Damien X. WalshKaufman & Canoles, P.C. Ofc. of Legal Counsel, (757) 624-3139 OCJCS, LC-HR tmurphy@kaufcan.com (757) 433-3482 damien.x.walsh.civ@mail.mil www.tasc-tgic.org

2. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Important Note The contents of this presentation are intended for general information only and should not be construed or relied upon as legal advice nor as a legal opinion on any specific facts or circumstances. www.tasc-tgic.org

3. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Purpose of Debriefings • For the government to clearly communicate to industry how to improve future proposals. • Basis for the source selection decision and contract award – implies the government followed its evaluation factors. • Identification of contractor strengths and weaknesses, highlights how they might improve, and allows them to develop plans for future competition, and the means to persuade their superiors to commit funds to develop the next proposal. (Remember, contractors must be able to explain ROI for proposal expenses). www.tasc-tgic.org

4. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Purpose of Debriefings (cont’d) • Develop lines of communication between the government and industry as partners sharing risks to accomplish complex missions. • Some awardees want a debrief to better understand their strengths and weaknesses for future RFPs. • This is not a time for the government or the contractor to explain what they meant in the solicitation or proposal, as their intent should have been clear, or cleared up by questions and responses during the RFP period. www.tasc-tgic.org

5. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Debriefings www.tasc-tgic.org

6. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Pre-award Debriefings • Contracting Officer shall provide the debriefing as soon as possible, but not later than the time post-award debriefings are provided. Any delays in the best interest of the government should be documented (FAR 15.505). • May be oral, in writing or other methods acceptable to the Contracting Officer. • Normally chaired by the Contracting Officer. www.tasc-tgic.org

7. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Pre-award Debriefings (cont’d) • Agency must disclose evaluation of significant elements of offeror’s proposal. • Summary of rationale for eliminating offeror from competition. • Reasonable responses to relevant questions regarding elimination of offeror from procurement. FAR 15.505(e) www.tasc-tgic.org

8. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Pre-award Debriefings (cont’d) • Agency shall not disclose: • Number of offerors • Identity of offerors • Content of other proposals • Ranking of proposals • Evaluation of other proposals www.tasc-tgic.org

9. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Pre-award Debriefings (cont’d) • Should be held within five (5) days after request to “the maximum extent practicable” (not required) www.tasc-tgic.org

10. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Post-award Debriefings • Provide the rationale for source selection and award. • To the maximum extent possible, debriefing shall be held within five (5) days of the receipt of the written request for debriefing (untimely requests for debriefing “may be accommodated” − perhaps a good tool to establish communication and good will with government partners as resources permit). • May be oral or in writing or other means acceptable to the Contracting Officer. • Normally chaired by the Contracting Officer. www.tasc-tgic.org

11. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Post-award Debriefings (cont’d) FAR 15.506(d) required debriefing information: • Evaluation of significant weaknesses or deficiencies in offeror’s proposal. • Overall evaluated cost or price, including unit prices and technical rating of successful offeror and debriefed offeror. • Past performance information on debriefed offeror. • Overall ranking of all offerors. • Summary of rationale for award. www.tasc-tgic.org

12. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Post-award Debriefings (cont’d) FAR 15.506(d) required debriefing information: • Commercial items – make and model of the item to be delivered by successful offeror. • Reasonable responses to relevant questions about whether source selection procedures in solicitation, applicable regulations or other authorities were followed. www.tasc-tgic.org

13. TIDEWATER GOVERNMENT INDUSTRY COUNCIL Post-award Debriefings (cont’d) Prohibited information includes: • Point-by-point comparison of debriefed offeror’s proposal and proposals of other offerors. • Information exempt from release under the Freedom of Information Act. • Trade secrets • Commercial financial information • Names of individuals providing reference information about offeror’s past performance. www.tasc-tgic.org

14. TIDEWATER GOVERNMENT INDUSTRY COUNCIL How can the governmentimprove the process? • It is a communication process so focus on good RFP input for better debriefing output. • Write clear and concise solicitations. • Write clear and concise evaluation factors as protests based on the government allegedly not following its stated evaluation factors (particularly for best value procurements) is the primary basis of GAO protests. www.tasc-tgic.org

15. TIDEWATER GOVERNMENT INDUSTRY COUNCIL How can the governmentimprove the process?(cont’d) • Provide clear debriefing information that will help the contractor understand why another contractor was awarded the contract – most post-award protests to GAO relate to unclear information about price, personnel, confusion about potential discussions with only one offeror, and other evaluation issues. • Debriefing is an opportunity to explain the process and avoid a protest. • So embrace debriefing as a communication tool. www.tasc-tgic.org

16. TIDEWATER GOVERNMENT INDUSTRY COUNCIL January 5, 2017 OFPP“Myth-busting 3” Memorandum Memorandum provides a series of myth-busters to address misconceptions regarding debriefings that discourage some agencies from taking full advantage of this important tool. www.tasc-tgic.org

17. TIDEWATER GOVERNMENT INDUSTRY COUNCIL QUESTIONS www.tasc-tgic.org