Take Advantage of the Newly Enhanced Debriefing Regulations to Improve your Proposals and Avoid or Minimize Bid Protests

The Department of Defense (DoD) issued recent changes to its post-award debriefing regulations that made great strides toward rectifying communication failures and promoting meaningful conversation during debriefings. Under previous regulations, although an unsuccessful offeror who did not receive a pre-award debriefing could request a post-award debriefing in accordance with Federal Acquisition Regulation (FAR) 15.506(d), there was no opportunity for further clarifications. The debrief, whether in writing or verbal, would conclude the engagement process of the debrief, oftentimes leaving the offeror scrambling to determine if the facts or assumptions were correct, and if the reasons for non-award were protestable. With the DoD’s Class Deviation memorandum[1] issued on March 22, 2018, offerors now benefit from key changes to the rules of engagement for post-award debriefings. The DoD memorandum implements revisions to the Defense Federal Acquisition Regulation Supplement (“DFARS”) as required by Section 818 of the FY 2018 National Defense Authorization Act (NDAA), and provides enhanced post-award debriefing rights to contractors.

Key benefits to the industry resulting from the class deviation include:

  • Unsuccessful contractors can now submit follow-up questions within two business days of the debriefing, and the DoD agency is required to provide written responses within five business days after receipt of the questions.
  • The post-award debriefing is not considered to be concluded until five days after the DoD agency’s responses to the debriefing questions are delivered to the offeror.

The recent class deviation addresses only part of the enhanced debriefing requirements. The FY18 NDAA’s Section 818, paragraph (a), “Release of Contract Award Information,” which permits redacted source selection information, is planned for separate implementation through future regulations.

How does this impact your company’s process for debriefings? And how can you use the procurement reform provisions to your advantage?

All too often, debriefings with the Government have been tight-lipped and formulaic to minimize exposure. However, those of us in the industry understand that comprehensive debriefings that offer concrete reasons for non-award can prevent needless protest pursuits to obtain more clarification. Effective debriefings also save the Government and the industry from expenditures related to processing protests. This finding is supported by the 2018 independent study[2] of DoD bid protests conducted by the RAND Corporation, which concluded that “too little information or debriefings that are evasive or adversarial will lead to a bid protest in most cases.” We have participated in countless debriefs and have witnessed far too often that when too little information is provided, the situation ends up in a protest that could have otherwise been avoided.

Take advantage of the new rules to increase the transparency of the source selection evaluation process as well as your understanding of the award decision to determine fairness, improve future proposals, and save on legal fees. Let’s review the practical application of the changes to maximize the value of the debriefings.

Pre-Game

  • Establish a debriefing team.
    • Include your contracts manager or legal representative as needed to prepare for the debriefing, but leave the lawyer at home when you attend the debriefing.
    • This team should be highly knowledgeable of the RFP submission requirements and evaluation criteria, the RFP scope of work, the proposal, any identified strengths and weaknesses presented in discussions or clarification phases, and the FAR clauses related to debriefings.
    • Define internal roles, develop a game plan, and conduct a practice run. Who will lead? Who will speak on which topic? Who will take notes? Everyone should bring a notepad but one person should be accountable for taking detailed notes with no other assigned responsibilities to distract from listening and documenting.
  • Strategize and formulate your questions based on your goals for the debriefing. FAR 15.506(d) requires the DoD agency to provide “reasonable responses to relevant questions.”
    • Know what is supposed to be covered during a post-award debrief so you can ask the right questions when topics are not covered. For example, ask if the agency had ranked proposals, and if so what was the overall ranking of proposals.
    • Consider asking not only fact-finding questions to determine whether the solicitation criteria were consistently followed across all proposals, but also questions to figure out what the winning offer had that your offer did not. In addition, specifically ask about whether the win themes and assumptions worked in your proposal. What features did you offer that the Government liked and which ones were not desirable? Although in accordance with FAR 15.506(e), the agency cannot provide a “point-by-point” comparison of proposals, extracting this type of feedback will still help you improve the competitiveness of your offer on future procurement with the agency.

Game Day

  • Have the right attitude. Be professional and non-combative at the debriefing.
  • Allow the agency to present first and listen closely without interruption.
  • Confer with your team to identify any additional questions. Go through your questions and follow your game plan.
  • Take verbatim notes so you have the relevant details to support your follow-up questions.
  • Don’t try to “win your case” at the debriefing. Instead, try to objectively understand the reasons for non-award.
  • If you won the contract, seek details to improve future proposals and an understanding of your strengths and weaknesses.

Post-Game

  • Immediately after the formal debriefing, transcribe the notes, and conduct an internal examination of the information with your team.
  • Craft your follow-up questions based on developments from the debriefing, and submit them within two business days.
  • Even if you’ve received the innocuous written debriefing, you’re still permitted the two days to submit follow-up questions. Seize the opportunity to do so.
  • The class deviation revised the U.S. Government Accountability Office (GAO) protest timeline so that the clock now starts ticking from the time that the DoD agency delivers the responses to your follow-up questions. This means you now have more time to evaluate the merit of a protest and to develop a more thorough, solid, and ultimately successful protest.

For more information on how Strategic Creations can support your debriefing and protest preparation efforts, please contact us at www.strategiccreations.com/contact.

This post reflects our opinions and conclusions unless otherwise cited. The tips are for information only and not to be construed as legal advice. Readers should consult with their legal representative for expert counsel on pursuing formal protests.


[1]  Class Deviation – Enhanced Postaward Debriefing Rights (March 22, 2018)
https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf

[2]  Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, and Drivers (2018) https://www.rand.org/pubs/research_reports/RR2356.html

Tagged under: