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Posted on Monday, October 16, 2017

What Types of Procurements Open the Door to Required Debriefings?

Debriefings – already an important part of the solicitation process – may become even more valuable if the Senate’s proposal for the 2018 National Defense Authorization Act to provide even more information in DoD procurement debriefings becomes law. (Read our write-up of this proposed legislation here.)

Whether the proposed legislation becomes law or not, there are two reasons why bidders need to know the rules for getting a compulsory or “required debriefing.” First, a required debriefing allows bidders access to information that might improve their future offers. Second, a required debriefing establishes longer GAO protest and automatic stay deadlines.  (Read our write-up of how a required debriefing lengthens the protest and stay deadlines.)

Unfortunately, not all procurements entitle an unsuccessful bidder to a required debriefing. The key to being entitled to a required debriefing lies in the phrase “competitive proposals.” According to Federal law, an agency is required to debrief an unsuccessful offeror who timely requests a debriefing in cases where “a contract is awarded … on the basis of competitive proposals.”

The most obvious type of procurement involving “competitive proposals” is a FAR Part 15 procurement using a Request for Proposals (RFP) process. Task order competitions under FAR Part 16 over $5,000,000 also entitle offerors to a required debriefing, according to Federal law.

The types of solicitations that do not promise a required debriefing to an unsuccessful bidder are procurements involving “other competitive procedures.” A recent decision of the GAO involved one type of “other competitive procedure.” In GSE, Inc., B-415135, Sept. 22, 2017, the Army issued a solicitation for proposals to develop and perform engine testing of heavy-fuel systems for unmanned aircraft. The Army referred to the solicitation as a Broad Agency Announcement (BAA) and stated that proposals were being solicited in accordance with FAR 6.102(d)(2) and FAR 35.016, both referring to BAAs. Specifically, FAR 6.102(d) identifies the following procurement methods as “other competitive procedures” – (1) procurements for architecture-engineer contracts conducted pursuant to FAR 36.6; (2) procurements for basic and applied research conducted pursuant to a Broad Agency Announcement under FAR subpart 35.017; and (3) procurements under the Federal Supply Schedule (FSS) pursuant to FAR subpart 8.4.  Because the Army procurement involved a BAA, GSE was not entitled to a required debriefing.

Thus, it’s important for contractors to remember that a procurement involving “competitive proposals” entitles bidders to a required debriefing, but a procurement involving “other competitive procedures” does not. Of course, being “entitled” to a required debriefing is not enough – bidders must timely request one within three days.

There are two other important points. First, there is no harm in asking the agency for a non-required debriefing. GSE did so and the Army offered GSE two debriefing dates which GSE “respectfully declined.”  If GSE had accepted the first offered debriefing date, anything it learned at the non-required debriefing could be protested at GAO within 10 days. Second, some “other competitive procedures” allow the unsuccessful vendor some opportunity for feedback from the government. For example, FSS buys based on factors other than price alone are entitled (FAR 8.405-2(d)) to a “brief explanation,” a term FAR unfortunately does not define.

Even if an offeror is not entitled to a debriefing under FAR, we recommend that it consider requesting one from the agency anyway. Failure to do so means a missed opportunity to build upon the relationship with the government customer and get information that could improve future proposals.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the October 2017 Monthly Insights newsletter. For more information on how to sign up for Monthly Insights, please click here.

Terry O’Connor is a Partner at Berenzweig Leonard, LLP. He and Stephanie Wilson lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.