Did you just lose a government contract competition? You need to ask for a debriefing! That’s your chance to learn why you lost and how you can win next time! This article is from the government’s perspective, but contact Christoph@ChristophLLC.com for expert advice for your situation.
Source selections always carry the risk of litigation. The bad news is there is no way to eliminate the possibility of a protest. The good news is there are ways to conduct source selections to minimize the likelihood of a protest. Take advantage of the following acquisition strategies to avoid litigation and save time and money.
Losing offerors are prime protest candidates. They have nothing to lose and everything to gain. The post-award debriefing of offerors is the Government’s opportunity to extinguish any flickers of doubt about the fairness of the source selection, so get it right and keep it tight. The debriefing session should not display any signs of inconsistency or ambiguity. Diligent debriefings deter protests by demonstrating the fairness and impartiality of the source selection process and award decision.
By Christoph Mlinarchik, JD, CFCM, PMP | Owner, www.Christoph LLC.com
Debriefing format for unanticipated questions: query, caucus, answer
During the debriefing, there is always a chance the acquisition team will be surprised by unexpected questions. For such wildcards, follow a controlled process to avoid costly mistakes: (1) allow the offeror to present the question, (2) ask for any clarifications, (3) discuss the Government’s answer in private to reach a firm consensus, and (4) deliver the Government’s answer. Most importantly, answer only the question provided. Do not wander off into tangents, divulge unrelated information, or offer personal opinions. To digress into uncharted waters is to risk a protest.
Face-to-face debriefings require diligence and discipline to adhere to the question, caucus, and answer process. Fortunately, FAR 15.506(b) allows debriefing sessions to be conducted “orally, in writing, or by any other method acceptable to the contracting officer.” One way to minimize risk is to conduct debriefings by written correspondence or teleconference. Debriefing by written correspondence allows for adequate time to digest the offeror’s questions and provide appropriate answers, but the downside is that it is impersonal and time-consuming. If debriefings are in person, mandate that especially complex or consequential questions be submitted in writing so the Government can pause, clarify any ambiguity, fully contemplate the answer, and provide a crystal-clear response.
Teleconferences present the same pitfalls as face-to-face debriefings: it is easier for the Government to speak out of turn. In a teleconference debriefing, be sure to use the phone’s mute function while deciding the Government’s answer to the offeror’s unexpected question. In whatever format the debriefing takes place, the key is to create a buffer zone of time wherein the Government develops the proper answer to the question, thus avoiding off-the-cuff mistakes.
Minimize the window of opportunity for the CICA Stay
FAR 33.104(c) implements 31 U.S.C. § 3553, the statutory requirement of the Competition in Contracting Act to suspend contract performance (the “CICA Stay”) immediately when the agency receives notice from the GAO of a protest filed within 10 days after contract award or within five days after the date offered for the required post-award debriefing, whichever is later. The CICA Stay can ruin contracting timelines as everything comes to a screeching halt.
Post-award debriefings should be offered to be provided on a date within five days of award. Every day after the fifth day following contract award extends the losing offeror’s window of opportunity to trigger a CICA Stay. If the post-award debriefing is offered to be provided on the sixth day, the losing offeror has 11 days for a CICA Stay instead of 10; if offered on the eighth day, the losing offeror has 13 days; and so on.
The salient subtlety is that the CICA Stay window is 10 days after award, or five days after the offered debriefing date, whichever is later—not the date the offer was extended, and not the date the debriefing actually took place. Thus, if the debriefing is offered for the fourth day after award, but the losing offeror cannot meet until day seven, the CICA Stay window is not extended as if the clock starts on day seven. The clock starts ticking from the fourth day after award because that is the date of the debriefing offered by the Government.
When recommending the timeline for post-award debriefings, FAR 15.506(a) does not use “shall” language, but rather “maximum extent practicable.” This is in recognition of the fact that providing an ill-prepared and sloppy debriefing is far worse than increasing the window of opportunity for triggering a CICA Stay. Poorly prepared debriefings greatly increase the risk of protests. During the three days of wait time for congressional notification (the 1279 Report), the Contracting Officer and acquisition team members should be anticipating questions, preparing answers, and strategizing for the upcoming debriefings.
Practice makes perfect
It is absolutely imperative to prepare for the debriefing. The Contracting Officer should anticipate questions and formulate canned answers. Review the questions asked during discussions because these will return during debriefings. Even better, ask for written questions in advance. This way, the Contracting Officer can review questions and develop answers with the guidance of the program attorney and the acquisition team.
Although the debriefing should be a collaborative effort, the Contracting Officer is the leader of the campaign. All acquisition team members should be briefed by the Contracting Officer on the level of participation and preparation expected of them. The Contracting Officer controls the debriefing, but is free to defer to the expertise of others. As an example, the Contracting Officer might allow a program engineer to explain one of the evaluation factors.
No personal opinion or unsolicited advice
Do not provide unsolicited advice or personal opinions during debriefings. Stick to objective analysis based on the solicitation. A common blunder is when the veteran Contracting Officer deviates from the structured answer to an offeror’s question. Drawing upon decades of wisdom to produce a foolish outcome, the Contracting Officer offers a personal opinion about a deficiency unrelated to the Government’s solicitation requirements: “The proposal had problems with X, Y, and Z.” This is a protest waiting to happen if X, Y, and Z are not evaluation criteria in the solicitation.
Criticizing an offeror on factors not found in the solicitation creates solid ground for protest known as “unstated evaluation criteria,” a phrase everyone on the acquisition team must beware. Truth is no defense. It does not matter if the critique is meritorious, only whether or not it directly relates to a stated Government requirement found in the solicitation. Avoid tangential criticisms by adhering to a structured, consensus-based method of answering offeror questions during debriefings.
No “leveling” or point-by-point comparisons
FAR 15.506(e) states that the debriefing “shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors.” This is called “leveling.” This type of comparison is prohibited because it compares offerors against one another, instead of against the objective Government requirements. Offerors must not be briefed about how they compared to the competition—only about how well they met the requirements of the solicitation. The goal is to provide an overview of the source selection process and the reasons for the offeror’s failure, not a personally tailored consultation.
Do not withhold objective, negative information
Debriefing is the opportune time to assuage the fears and insecurities of unsuccessful offerors. They need to know they had a fair shot at the contract award. If they feel like the Government is improperly withholding information about the source selection process, offerors may lodge a protest to hunt for the information during the ensuing litigation process. Avoid these expensive fishing expeditions by providing ample feedback in the debriefing. Do not be afraid to share negative information about the offeror’s losing proposal—that is in fact one of the main purposes of the debriefing sessions. FAR 15.506(d) requires the Government to disclose the evaluation of significant weaknesses or deficiencies in a losing offeror’s proposal, framed against the Government’s requirements as stated in the solicitation. As such, an unsuccessful offeror should leave a debriefing with a solid grasp of the reason(s) for its failure.
CHRISTOPH MLINARCHIK, JD, CFCM, PMP is an attorney, expert witness, professional instructor, consultant, and author of 50+ publications on contract law and acquisitions. As owner of www.Christoph LLC.com, he teaches courses and advises on contracting, source selections, proposals, bid protests, and government contract law to federal, military, and private industry professionals nationwide—from novices to C-level executives. Christoph was a senior contracting officer for the Department of Defense and has Defense contracting experience across the Air Force, Navy, Pentagon, and Office of the Secretary of Defense. He also previously served as an Air Force JAG acquisitions attorney. Christoph was recently honored with the “Top Professionals Under 40” award by National Contract Management Association.
Christoph LLC is available for consultation, advice, and in-house training about Federal contracting topics, including source selections, proposals, government contract law, bid protests, and more. Visit www.ChristophLLC.com or email Christoph@ChristophLLC.com for details.