The Only Smart Uses of a Debriefing

Breakout Session #: A06 Terry O’Connor, Esq. Stephanie Wilson, Esq. Berenzweig Leonard, LLP McLean, VA

Date: Monday, July 25

Time: 11:15am–12:30pm

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5 Rules for a Smart Debriefing

1. Make sure you get a “required debriefing” or “brief explanation.”

2. Know the limited information available.

3. Understand the mindsets at a debriefing.

4. Know the odds of information from a debriefing leading to winning the lost contract.

5. Build relationships, not controversies.

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The Only Smart Uses of a Debriefing

TO IMPROVE YOUR CHANCES OF WINNING THE NEXT CONTRACT

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Rule 1: Get a Debriefing

“Required debriefing” vs.

“Brief explanation”

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Rule 1: Get a Debriefing

Brief explanation: FAR 8.405-2(d) FAR 13.106-3(d)

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Rule 1: Get a Debriefing

FAR 8.405-2(d): • only if award was based on factors

other than price alone • no details of what is a brief explanation

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Rule 1: Get a Debriefing

FAR 13.106-3(d):

“brief explanation” means “some details” per FAR 15.503(b)(2).

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Rule 1: Get a Debriefing

Simplified Acquisition Procedures “brief explanation”

• # of offerors solicited • # of proposals received • Each awardee’s name and address. • The items, quantities, and any stated

unit prices of each award. • In general terms, the reason(s) the

offeror's proposal was not accepted. FAR 15.503(b)(2)

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Rule 1: Get a Debriefing

“Required debriefing”: • Part 15 – RFPs • Part 16 - Orders over $5.5M

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Rule 1: Get a Debriefing

• “3-day turn-around” rule • FAR notice starts the clock

• Miss the deadline?

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Rule 1: Get a Debriefing

• Pre-award debriefing – FAR 15.505 – 3-day rule

• Postpone it?

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Rule 1: Get a Debriefing

• Post-award debriefing − FAR 15.506 − 3-day rule

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Rule 1: Get a Debriefing

FAR 15.506(a)(1): An offeror, upon its written request

received by the agency within 3 days after the date on which offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed…

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Rule 1: Get a Debriefing

FAR 15.503(b) Post-award notices. (1) Within 3 days after the date of contract

award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award or had not been previously notified under paragraph (a) of this section.

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The Only Smart Uses of a Debriefing

DON’T GET MAD, GET BETTER

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Rule 2: Know the Limited Information Available

FAR 15.506(d): AT A MINIMUM, the debriefing SHALL include —

(1) The significant weaknesses or deficiencies in the offeror’s proposal; (2) RATING of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) RANKING of all offerors;

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Rule 2: Know the Limited Information Available

FAR 15.506(d): AT A MINIMUM, the debriefing SHALL include —

(4) A summary of the rationale for award; (5) The make and model of the commercial item; (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

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Rule 2: Know the Limited Information Available

GAO: • “The decision not to provide an offeror the

opportunity to ask reasonable questions during the debriefing is not consistent with applicable procurement regulations.” Optimal Solutions & Technologies, B-407467, Jan. 4, 2013.

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Rule 2: Know the Limited Information Available

What you will NOT get: • Point-by-point comparisons to proposals

of other offerors. • Information prohibited from disclosure by

FAR 24.202or exempt from release under FOIA.

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The Only Smart Uses of a Debriefing

FOR MARKETING AND

NOT FOR PROTESTING

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Rule 3: Understand the Mindsets at a Debriefing

The Contracting Officer’s Mindset

• Overworked and underpaid • Risk-averse: protests, personal

liability, releasing protected information

• Ultra-conservative approach • Distrust of contractors?

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Rule 3: Understand the Mindsets at a Debriefing

The Contractor’s Mindset

• Disappointed and concerned • Defending-advocating for its proposal • Impact on income • Distrust of government?

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Rule 4: Know the Odds of Winning the Lost Contract

Debriefing information is critical for determining whether to protest. • Standing to file protest. • Can’t rely on information from

debriefing to win the protest.

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Rule 4: Know the Odds of Winning the Lost Contract

Winning Protest ≠ Winning the Contract

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Rule 4: Know the Odds of Winning the Lost Contract

11%-29%

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The Only Smart Uses of a Debriefing

BUILDING A BETTER

RELATIONSHIP WITH THE GOVERNMENT FOR FUTURE

BUSINESS

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Rule 5: Build Relationships, Not Controversies

• Being “adversarial” is not effective • Being a “Good Contractor” is effective • Relationship building

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Rule 5: Build Relationships, Not Controversies

How this changes a contractor’s conduct:

• The letter requesting a debriefing • The preparation for the debriefing • Your conduct at the debriefing

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5 Rules for A SMART Debriefing

1. Make sure you get a “required debriefing” or “brief explanation”

2. Know the limited information available

3. Understand the mindsets at a debriefing

4. Know the odds of the information from a debriefing leading to winning the lost contract

5. Build relationships, not controversies

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The Only Smart Uses of a Debriefing

Questions?

Contact Information

Terry O’Connor Berenzweig Leonard, LLP 8300 Greensboro Drive, Suite 1250 McLean, Virginia 22102 (703) 760-0402 toconnor@berenzweiglaw.com

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