Debriefings and Bid Protests After Federal Contract Award

Debriefings and Bid Protests After Federal Contract Award Decisions: Strategies for Success William A. Shook, Esq. G. Matthew Koehl, Esq.

Presentation Outline § Background § Pre-Award and Post-Award Debriefing Rules § Debriefing “Exception” to Timing for GAO Bid Protests and Automatic Stay § Special Procedural Rules and Strategic Considerations for Bid Protests § Checklist to Prepare for a Debriefing § Strategies for Successful Debriefings § Task and Delivery Order Protests 2

Background – Purpose and History of Debriefings § Learn how to improve future offers § Determine if there exists a basis for protest § According to one government Agency, debriefings: § Instill confidence you were treated fairly § Assure you qualified people evaluated your proposal § Reduce protests and misunderstandings § Historically, many protests filed for “discovery” purposes where the agency has not provided adequate information 3

Background - Debriefing Basics § Formal debriefing rules specify timing and content of debriefings. FAR 15. 505/15. 506 (Attachment A) § Debriefing rules apply only to FAR Part 15 negotiated procurements; other types of competitive procedures require only limited disclosure of evaluation information. See, e. g. , FAR 8. 405 -2(d) § Debriefings affect timing for filing bid protests and obtaining the GAO’s “automatic stay” of contract award and performance § Two types of Debriefings: Pre-Award and Post-Award 4

Pre-Award Debriefings – Notice of Exclusion § Only for those excluded from competitive range or otherwise excluded from competition prior to award § CO should provide “prompt” written notice of exclusion and basis for not requesting a proposal revision. FAR 15. 503(a) § “Prompt” is not defined in the FAR 5

Pre-Award Debriefings – Time for Requesting and Deferral Option § Contractor must request in writing within 3 calendar days of notification. FAR 15. 505(a)(1); if no timely written request, no right to a debriefing. FAR 15. 505(a)(3) § Saturday email notifying contractor of its competitive range exclusion is “deemed received on the next business day. ” International Res. Group , B-286663, 2001 CPD¶ 3 § Contractor may delay its one debriefing until after award and obtain broader post-award debriefing information § But, competition is over, Agency invested in outcome 6

Pre-Award Debriefings – Timing § Must be held “as soon as practicable” after timely request. FAR 15. 505(b) § Agency may refuse request if, for “compelling reasons, ” a timely debriefing is not in Government’s best interest. FAR 15. 505(b) § If pre-award debriefing refused: § Agency must provide debriefing within post-award debriefing time requirements (5 days) § Agency must provide broad post-award debriefing information 7

Pre-Award Debriefing – Format § Methods for conducting pre-award debriefings: § Oral § Written § Any other method acceptable to the Contracting Officer § Subject to ability to meet minimum informational requirements in FAR 15. 505(e) § FAR 15. 505(d) 8

Pre-Award Debriefing § What Must Be Discussed? § Evaluation results of significant elements in proposal § Summary of rationale excluding offer § “Reasonable” responses to “relevant” questions about whether the Government followed the rules § What do “reasonable” and “relevant” mean? § FAR 15. 505(e) 9

Pre-Award Debriefing § What May Not Be Discussed? § § § § Point by point comparison Proprietary or exempt information Number of offerors Identify of offerors Content of other offerors’ proposals Ranking of other offerors Evaluation of other offerors § FAR 15. 505(f) 10

Post-Award Debriefing § Any losing contractor who has not had a pre-award debriefing § Written request must be filed within 3 calendar days after notification or no right to a debriefing. FAR 15. 506(a)(1) § Should be held within 5 days “to the maximum extent practicable. ” FAR 15. 506(a)(1) 11

Post-Award Debriefing § What must be discussed? § § § § Deficiencies and significant weaknesses of proposal Ratings of your and awardee’s proposal Your past performance ratings Total evaluated cost/prices, including unit prices Overall ranking of proposals, if done Summary of rationale for award decision “Reasonable” responses to “relevant” questions § FAR 15. 506(d) 12

Post-Award Debriefing § What is not discussed? § Point by point comparison of proposals § Any information exempt from disclosure under the Freedom of Information Act (FOIA) § Trade Secrets § Confidential manufacturing processes § Commercial or financial information § Names of individuals providing past performance information § FAR 15. 506(e) 13

GAO “Automatic Stay” and Bid Protest Timing § General Rules: § Automatic Stay: 10 days from award for timely protest to the Government Accountability Office (GAO). 31 USC 3553; FAR 33. 104(c) (Attachment B) § Timely Post-Award Bid Protest. 10 days from date contractor knew or should have known basis for protest (whichever is earlier). 4 CFR 21. 2(a)(2) (Attachment C) 14

Debriefing Exception to GAO Stay and Protest Deadlines § Exception tolls deadline for “stay” and timely bid protest § Designed to encourage debriefings and to discourage “defensive” or “blind” protests § Modified Automatic Stay: 5 days from required debriefing. FAR 33. 104(f). Also tolls time for obtaining automatic stay for Agency level protests. FAR 33. 103(f)(3) § Modified Timely Post-Award GAO Bid Protest: 10 days from the date of a required debriefing. 4 CFR 21. 1(a)(2) § Exceptions are only for “required” debriefings 15

When Is a Debriefing “Required”? § “Required” = procurement conducted on the basis of “competitive proposals” where debriefing is requested and required. 4 CFR 21. 1(a)(2) § A debriefing is not “required” if not timely requested. FAR 15. 505(a)(3); 15. 506(a)(4) § “Competitive proposals” is not defined by GAO’s Bid Protest Regulations, nor by statute or regulation. Systems Plus, Inc. v. United States, 68 Fed. Cl. 206 (2005) § Timely requested debriefings under FAR Part 15 procurements are “required. ” Sherrick Aerospace, B 310359. 2, 2008 CPD¶ 17 16

GSA Schedule Debriefings Are Not “Required” § FSS task and delivery order competitions are conducted under FAR 8. 4, even where they closely resemble FAR Part 15 rules § No “required” debriefing - the Agency need only provide “a brief explanation of the basis for the award decision. ” FAR 8. 405 -2(d) § No “tolling” of time for filing protests against GSA schedule task and delivery orders even if the agency provides a debriefing § Ordinary “ 10 day rule” applies to GSA Schedule task and delivery order protests (i. e. , must file within 10 days of when you know or should know basis for protest) 17

Protests Filed Before A “Required” Debriefing Are “Premature” § GAO protests filed in advance of a “required” debriefing will be dismissed, without prejudice. 4 CFR 21. 1(a)(2) § Exception to timeliness rules is designed to encourage de-briefings and to discourage “defensive” or “blind” protests. 61 Fed. Reg. 39039, 39040 (July 26, 1996) § Don’t need to file pre-debriefing protest even if contractor is aware of the Agency evaluation errors to which later protests. The Boeing Company, B 311344. 11, et al. 2008 CPD¶ 114 (June 18, 2008) 18

Protests Based Upon Non-Required Debriefings § Protests based upon non-required debriefings are allowed § Must satisfy 10 -day rule, no tolling § If you first learn the basis for protest in a non-required or untimely requested debriefing and file in 10 days, 10 -day rule is satisfied. See Raith Eng'g & Mfg. Co. , B 298333. 3, 2007 CPD¶ 9 § The Agency sometimes provides written debriefing materials in advance of non-required debriefing session so that debriefing information is not “newly discovered” 19

Delayed Debriefings and “Diligent Pursuit” Rule § Tolling may extend for months if debriefing is timely requested. Geo-Centers, Inc. , B- 276033, 97 -1 CPD¶ 182 § BUT, “diligent pursuit” required of protesters, contractor must not wait too long in face of Agency delaying debriefing § Protest untimely where protester delayed debriefing for more than 1 month for FOIA response and its president’s vacation. Pentec Envtl. , Inc. , B-276874. 2, 97 -1 CPD¶ 199 20

Stay for the Entire Debriefing § Franz Rubenbauer Raumausstatter, B- 290317. 3, et al. , 2002 WL 1562079 (Jul. 16, 2002) § Two protesters walked out of debriefing § Protests filed more than 10 days after debriefings based on information that would have been presented in debriefings (had protester representatives stayed) § Protest dismissed, contractors accountable under “diligent pursuit” rule for information 21

When Does the Debriefing End? § Contractors often send post-debriefing requests for clarification or additional information § Absent “clear indication” that a debriefing is extended pending the Agency’s response to additional questions, the debriefing is presumed over at the conclusion of the session. New SI, LLC, B-295209, et al. , 2005 CPD ¶ 71 § Posing questions after the debriefing session concludes does not extend time for filing a bid protest. Id. 22

Protesting the Debriefing § Inadequate debriefing generally not a valid protest ground § Bad debriefing has no effect on previously-made Agency source selection decision § Whittaker Services Corporation, B-260951, 95 -2 CPD¶ 102; Sarasota Measurements & Controls, Inc. , B-252406. 3; B- 252406, 94 -2 CPD¶ 32 § Inadequate debriefing will, however, lower the threshold for pleading protest grounds with specificity 23

Errors Appearing Only In The Debriefing Materials § If evaluation “errors” appear in the debriefing materials only, and not the evaluation record, no valid protest § Debriefing occurs after the evaluation is complete, evaluation errors must appear in the evaluation record for a valid protest § GAO: debriefing is only an explanation of the Agency's evaluation and source selection decision, not the evaluation or decision itself § Del-Jen International Corporation, B- 297960, 2006 CPD¶ 81; EER Sys. , Inc. , B-290971. 3, B-290971. 6, 2002 24

Remedying Competitive Harm In A Post-Debriefing Re. Competition For The Same Requirement § Agency corrective action may result in a re-competition after the debriefing and release of awardee proposal information § Substantial Agency discretion to determine the correct remedy: § Upholds determination not to release all offerors’ prices; disclosure of awardee’s prices under these circumstances did not create an improper competitive advantage. Symvionics, Inc. , B-293824. 2, 2004 CPD¶ 204 § Upholds release of all offerors’ prices to remedy the potential competitive advantage (even if not 25

Debriefing Preparation § Procurement-specific list of items to which you are entitled § Prepare list of “relevant” questions § Specific to each evaluation factor and subfactor § Address past performance information § Ask for source selection memorandum § Attachment D to Course materials 26

Debriefing - Strategies for Success § Participation Strategy § Request oral or written? § Provide questions in advance? § Have you received written debriefing materials in advance of debriefing session? 27

Debriefing Attendees § Relevant Business Development group employees § Relevant Proposal Preparation group employees § Government sales executive(s) § Don’t bring your lawyer, even if you are considering a protest 28

Debriefing – Conduct and “Tone” § Behave reasonably and dispassionately § You are there to learn, not accuse § Don’t ask “irrelevant” questions § Unsupported accusations of agency bias or misconduct § Conduct “lessons learned” session with business development and proposal team after debriefings 29

Task and Delivery Order Protests § Protests to GAO are now authorized by statute for task or delivery orders valued in excess of $10 million § Effective May 2008 for Do. D, FAR rule pending § Offerors must be given a post-award debriefing § GAO has not ruled whether task order debriefing is “required” § For now, don’t rely upon GAO exception to timeline for stay and timely protest available for “required” 30

Questions? 31