How To Win a Bid Protest, Part 2: The Debriefing

The debriefing is your chance to find out why your proposal was not selected and how you can improve future proposals.  It is also where you learn the facts that determine whether you should protest and what arguments you can make.  There are steps you should take to make your debriefing as informative as possible.

1. Always request a debriefing, and do it in writing. Not all procurements entitle you to a formal “debriefing”; in Federal Supply Schedule procurements, for example, all you can get is a “brief explanation.”  But you aren’t entitled to anything unless you formally request it in writing.  The deadline for submitting the request is typically three days.  You should submit your written request even if the agency has already begun to provide some information; some protest deadlines turn on whether a written request was submitted.  Even if you are the awardee, you should request a debriefing:  You may obtain information that will help you defend against a protest and improve your proposals going forward.  

2. Accept the offered date, and don’t defer. If the agency opts for a live debriefing and offers a date, accept it if at all possible.  Certain protest deadlines run from the first date the agency offers, even if you ask for and ultimately receive a later date.  If you are eliminated from a competition prior to award, do not delay requesting a debriefing, and do not defer it until after award.  If you ask for a deferral, the protest clock still runs and you may lose your opportunity to protest.  (On the other hand, if the contracting officer chooses to defer the debriefing until after award, it will not affect the protest clock unless the protest is based on solicitation improprieties.)

3. Ask questions and draw out information.  Debriefings must identify significant weaknesses or deficiencies in your proposal and provide information about your past performance evaluation, the awardee’s technical rating and evaluated price, and a summary of the rationale for award.  But you want more information than that.  You will not be able to obtain information about the awardee’s (or other competitors’) proposals or evaluations beyond the awardee’s technical evaluation rating and price, nor will you learn the identity of the other offerors.  But you can ask for more information about any weaknesses in your proposal, whether your proposal was assigned any strengths (and if so for what), whether or how the agency considered or rated specific proposal features, or how the agency addressed particular solicitation provisions. You should also confirm the actual date of award, since that affects the protest deadline.  Finally, you should ask for redacted copies of the agency’s source selection decision and evaluation of your proposal.  The agency is not required to give you these materials (outside of DoD and GSA procurements under enhanced debriefing rules), but there is a chance it may.

You can submit some general questions with your request for a debriefing or shortly afterwards.  You should also ask for the opportunity to submit follow-up or clarifying questions in writing.  (Certain DoD and GSA procurements use “enhanced debriefing” rules that automatically permit additional questions.)  Ask the agency to confirm that it will hold the debriefing open until it responds to your additional questions, since protest deadlines run from the close (the formal end) of the debriefing.

4. Adopt the right tone.  Do not argue with the agency in the debriefing; the agency will not change its award decision.  Your goal is to get the agency talking, obtain information, and enhance your relationship with your potential customer.  Find out what you can about how the agency evaluates proposals so that you can prepare a better one for the next procurement.  Take comprehensive notes (and have a dedicated note-taker).

5. Consult with counsel. You don’t need counsel to attend the debriefing (and the presence of lawyers sometimes causes the agency to clam up), but you should always prepare with counsel.  Counsel can help you figure out what questions to ask and how to frame them so that the agency is more likely to answer.  There may also be specific information that counsel will need for a protest, and you don’t want to miss anything.

Consulting counsel is also important because debriefing and protest deadlines are complex.  Lots of variables affect these deadlines: for example, whether the debriefing is deemed “required” under the FAR (or a “debriefing” at all), when your request was submitted, whether you accepted the first-offered date, whether you submitted supplemental questions, and when the debriefing is considered “closed.”  Getting this wrong can mean missing your deadlines for filing a GAO protest or getting an automatic stay of performance.  


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