In this article, we describe the general rules that a government contractor must follow to get an effective debriefing. It is based on our years of government contract experience working with clients who want to get as much information as possible from the government on why they lost a contract or task order so they can improve future proposals.
Part I describes the steps required by federal regulations to get a debriefing and the information that a contractor can expect to learn at a debriefing. Part II provides guidance on the best approach for contractors to take to ensure they get an effective debriefing. As you will see, we believe that the best approach to a successful debriefing is one in which the unsuccessful contractor builds a better relationship with the government customer and learns how to improve its next proposal.
Part I – GETTING A REQUIRED DEBRIEFING
Step 1. Identify the kind of solicitation process you were involved in.
The preliminary issue for a contractor to address in trying to get any information from the government is determining whether you are entitled to any kind of feedback. The amount of feedback you get depends initially on the kind of solicitation you responded to. Some solicitations you respond to entitle you to no feedback. Other types of solicitations require the government to give you information in varying amounts.
The most useful type of debriefing for contractors is a “required debriefing.” A required debriefing is available for contracts awarded following a Request for Proposal (RFP) solicitation conducted under FAR Part 15. A required debriefing is also available for task orders over $5.5M awarded under FAR Part 16 IDIQ contracts. On the other hand, GSA FSS buys under FAR Part 8 and simplified acquisitions under FAR Part 13 do not require the government to provide debriefings to bidders, although the FAR does require the government to disclose some limited information to unsuccessful vendors.
It is important to add one point up front — a government contractor can always ask the government for a debriefing for any kind of procurement. As always, there’s no harm in asking. However, if the government gives you a voluntary debriefing, you cannot expect the government to give you all the information you would be entitled to if you had been entitled to a required debriefing as described below. Regardless, there is no harm in asking the government for a debriefing.
Step 2. File a timely request for a debriefing.
You must ask for a required debriefing via a written request received by the contracting officer within 3 days after learning you lost. You will lose your right to a required debriefing if you miss this deadline. Offerors typically send a contracting officer an email debriefing request immediately upon learning, often via email, that they were not awarded the contract.
There are few magic words that a contractor has to use to get a timely required debriefing request. All the email or letter has to say is that the contractor is requesting a required pre-award or a post-award debriefing. Although the request can be simple, make sure that the request is not vague; specifically request a debriefing for the solicitation involved.
In addition, to make the most out of a debriefing from the government, we encourage contractors to put in their debriefing request any specific questions you would like the government to answer in the debriefing, while recognizing the limitations on what information the government can share.
Before your debriefing, carefully read FAR 15.506, which describes the information the government must give you. Often, contractors don’t get even all that information. It’s important to stress to the contracting officer – politely of course – that what is described in these paragraphs is only the minimum amount of information that shall be disclosed. It is also helpful to review any agency guidance to contracting officers on debriefings to combat any government reluctance.
The Department of Defense (DoD) has expanded the information available to unsuccessful offerors. Called an enhanced post-award debriefing, contracting officers now must include in the debriefing information provided to unsuccessful offerors during a required debriefing an opportunity to submit additional questions related to the debriefing within 2 business days after receiving the debriefing. The agency must respond in writing to the additional questions submitted by an unsuccessful offeror within 5 business days after receipt of the questions. The agency cannot consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror.
Part II – GETTING AN EFFECTIVE DEBRIEFING
We believe our clients can make the best use of a debriefing if they approach it as a one-on-one marketing opportunity with the government designed to help them win the next solicitation.
We understand how difficult it is for contractors to avoid being adversarial in a debriefing. They come to a debriefing discouraged and upset that the government did not see the merit in a proposal they put so much time and effort into. They try to convince the contracting officer that the government should change its evaluation and award them the contract. They also try to get as much information as possible out of the contracting officer so that they can improve their chances of winning a bid protest. This adversarial approach can become more evident after the contractors realize that the contracting officer has not given them as much information as they want or even as much information as FAR requires.
A. Understand the mindsets at a debriefing.
We caution contractors not to take an adversarial approach for a few reasons.
First, the chances of winning a protest and then actually winning the contract are not great. The few studies that have looked into this have found that a contractor’s chances of changing the award outcome are somewhere between 10-30%. Second, this adversarial attitude completely turns off contracting officers. They invariably walk away from that debriefing with a bad attitude about the contractor.
Moreover, the contracting officer may have walked into the debriefing with a bad attitude in the first place. From the contracting officer’s standpoint, a debriefing is just one more thing on their already overcrowded plate. Contracting officers often go into a debriefing with a defensive attitude. They don’t want to give contractors too much information for fear that the information could lead to a successful protest, or that they could disclose proprietary information. The result is that the contracting officer is tempted to give information grudgingly and say as little as possible.
With this context in mind, we counsel our clients to understand the pressure on the contracting officer, anticipate the limits of a debriefing, avoid the adversarial approach, and focus on using the debriefing as an opportunity to improve their next proposal. We urge contractors to focus on learning why they lost the last bid and how they can improve their chances for future contracts.
We also urge them to use the debriefing for relationship building with the contracting officer so that the debriefing can lead to possible future contracts. We want the contracting officer to leave the debriefing with a better understanding of our client’s capabilities and a better relationship with them.
B. Implementing a non-adversarial approach.
Resist the temptation to return-email a request for a debriefing too hastily. Do some preparation first. Some agencies have debriefing guides that can be very helpful in your preparation – even if the solicitation is with another agency. We encourage contractors to review the debriefing guides from NASA, DHS, and Department of Defense.
Using the DoD guide as an example, DoD identifies questions that the contracting officer should be prepared to answer and, in doing so, suggests to contractors that the questions are valid ones for unsuccessful offerors to ask. Here are some examples from the DoD guide:
a) Please explain the basis for the strengths, weaknesses, or deficiencies in our proposal for each evaluation factor and subfactor.
b) Did you discuss all weaknesses, significant weaknesses, and deficiencies?
c) Were there any solicitation requirements that we failed to address? If so, what were they?
In the email/letter requesting the debriefing, stress that your interest in getting a debriefing is to improve your chances of winning future work with the agency. The debriefing request can be a good first step in establishing a good relationship.
This article is based on our experience in helping clients navigate the debriefing process. We believe that an effective debriefing is one in which the unsuccessful offeror uses the debriefing to learn how they can improve their chances for future work and build a better relationship with its potential customer. Should you have any questions about obtaining an effective debriefing, we welcome the opportunity to discuss these issues in more depth with you.
About the Author
Terrence O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard. Terry got his start in government contracts as a federal government attorney, where he wrote government contracts and advised government employees on a wide range of procurement issues. While in private practice, he has taught government contracts law to contracting officers, contract specialists and other government procurement professionals as an instructor for Management Concepts, Inc. Terry wishes to thank Aleksey House, a 2L at George Washington University Law School, for her assistance on this article.
Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring reports on recent contract decisions, recent upcoming contracts, key protest decisions, events, and more. This post was published in the January 2020 newsletter. To sign up for our govcon newsletters, please email [email protected].