1. “An Opportunity to Communicate”
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
TGIC EXCHANGE BRIEF
CONTRACT DEBRIEFINGS
“An Opportunity to Communicate”
July 18, 2017
Terence Murphy Damien X. Walsh Kaufman & Canoles, P.C. Ofc. of Legal Counsel, (757) OCJCS, LC-HR
(757)

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.

3. Purpose of Debriefings
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).

4. Purpose of Debriefings (cont’d)
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.

5. Debriefings Required Not Required FAR Part 15 Procurements*
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
Debriefings
Required
Not Required
FAR Part 15 Procurements*
FAR Part 12 Commercial Item Procurements
FAR Part 16 Task or Delivery Orders
FAR Part 8 GSA Schedule Procurements
if task or delivery order exceeds $5.5 M under FAR (b)(6)
FAR Part 13 Simplified Acquisitions
FAR Part 14 Sealed Bids
* Not required if not timely requested within three (3) days of notification of exclusion from competition or three (3) days from notice of award

6. Pre-award Debriefings
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 ).
May be oral, in writing or other methods acceptable to the Contracting Officer.
Normally chaired by the Contracting Officer.

7. Pre-award Debriefings (cont’d)
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 (e)

8. Pre-award Debriefings (cont’d)
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

9. Pre-award Debriefings (cont’d)
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)

10. Post-award Debriefings
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.

11. Post-award Debriefings (cont’d)
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
Post-award Debriefings (cont’d)
FAR (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.

12. Post-award Debriefings (cont’d)
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
Post-award Debriefings (cont’d)
FAR (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.

13. Post-award Debriefings (cont’d)
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.

14. How can the government improve the process?
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
How can the government improve 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.

15. How can the government improve the process? (cont’d)
TIDEWATER GOVERNMENT INDUSTRY COUNCIL
How can the government improve 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.

16. January 5, 2017 OFPP “Myth-busting 3” Memorandum
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.

17. TIDEWATER GOVERNMENT INDUSTRY COUNCIL
QUESTIONS