2018 National Defense Authorization Act address a common perception in Federal contract management; debriefings are not the forum for a meaningful, open and honest exchange of information the Federal Acquisition Regulation (FAR) intended. Indeed, in some instances we observe a low trust environment wherein Contracting Officers choose to provide as little information as possible during the debrief, fearing a protest. Industry, frustrated with perfunctory or meaningless debriefs are certain that the real reasons driving the award decision will not be revealed during debriefings and retaliate by protest.
Fortunately, that grim scenario is not characteristic of all debriefings and there is reason to believe that recent policy guidance advocating what we know to be best practices may lead to a process that better meets the interest of both parties.
A debriefing should provide the recipient with insight as to how their proposal was evaluated and information on strengths and weaknesses that may prove valuable in the development of subsequent proposals. It should be an opportunity for offerors to appreciate the mechanics of the source selection process and see their solution critiqued from an alternative, not adversarial, point of view.
From the Government perspective, effective debriefs help firms improve the quality of their proposals which supports a stronger and more competitive supplier base.
OFPP and critics of the post-award debriefing process identify the core problem as misconceptions related to communications with industry during the acquisition lifecycle. Those misconceptions are due in part to the very limited and general guidance set forth in FAR 15.506. To address that “gap,” OFPP in 2017 issued a memorandum that urges agencies to develop and field debriefing guidance and language in the NDAA 2018 directs changes that require the Government to be more forthcoming in sharing source selection information and how it was used to evaluate offers.
It is also important that Government respect the substantial time and effort industry invests in proposal development. A thorough, well documented debrief that makes every effort to assist the unsuccessful offeror understand how they can improve is a positive acknowledgement of that investment.
The language and incentive structure of regulatory or statutory guidance is important. An interesting exercise would have Government source selection officials and industry counterparts design debriefing policy that sought to protect the offerors proprietary interests while maximizing equity for all parties. Utilizing the approach John Rawls proposed in A Theory of Justice, the participants would design a system with the caveat that they would have no prior knowledge of the role they would occupy once the new system was implemented – they could be Government source selection officials or they could be on an industry proposal team. Arguably, a rationale individual in this scenario would seek to maximize the model’s equity and reduce inequalities associated with access to information while protecting the taxpaying public’s interest.
We are unlikely to achieve any utopian debriefing model soon and the government will necessarily continue to enjoy the asymmetrical advantages that come with being the steward of all proposals. But we are seeing some significant changes. The OFPP memorandum identifies best practices excerpted from current agency debriefing guides:
Preparing government personnel on adequate procedures and overall roles and responsibilities by explaining what is and is not allowed to be discussed in accordance with the FAR;
Including draft checklists and sample agenda items for both oral and written debriefing formats; and
Outlining useful tips to address debriefings in complex procurements and how to best engage additional stakeholders such as the program office subject matter experts and general counsel;
Promoting a meaningful consideration of issues by soliciting vendors’ questions, and if applicable, provide the overall general ranking of the debriefed offeror’s proposal in relation to the other proposals.
The 2018 National Defense Authorization Act in Section 818, entitled Enhanced Post-Award Debriefing Rights, identifies three enhancements that will expand the amount and type of information that some, though not all, offerors will receive in a debrief:
The source selection determination (redacted as necessary) will be disclosed for small business awards over $10 million and any contract valued over $100 million, regardless of the awardee’s size status;
Written or oral debriefings will be required for allcontract awards and task or delivery orders valued at $10 million or more;
Agencies must give offerors the ability to ask questions within two business days following receipt of the debriefing.
While the NDAA guidance is restricted by dollar thresholds when viewed in combination with OFPP guidance it seems pretty clear that the message is a call for more transparency in debriefings. The data that has been collected on why firms protest awards suggest that fair and meaningful debriefs are more likely to deflect protest than encourage it.
It would seem then that enhanced debriefs should work to reduce the pattern and number of protests. While the protest trend is measurable, as is the efficacy of protesting, it may be hard to capture data on the actual impact of better debriefs. It is very challenging to gather any empirical data on why someone did not do something. If an unsuccessful offeror does not protest because, following an effective debrief, they can see that they were treated fairly it will never generate a data point. But if what we have here is a failure to communicate its hard to imagine efforts to be more transparent making the problem any worse.
Unfortunately, the enhanced debriefing techniques established by law have yet to emerge from the rule making process. The rule making process is further constrained this year by the executive requirement to eliminate two regulations for every proposed regulation. The process, which has been historically characterized as deliberate, just became more so.
On March 22, 2018 the Undersecretary of Defense issued a Class Deviation on post award enhanced debriefs. The deviation provides that unsuccessful offerors can provide additional questions within two business days after receiving a debrief and that the debrief is not concluded until the agency responds to the questions in writing. There is no timetable for final approval of additional implementing FAR level guidance on enhanced debriefings. But the message to the contracting community to improve communications with industry has been sent and hopefully well received.
Jimm Rich Senior Advisor
A member of the Dawson team since 2016, Jimm served as Chief of Contracting for the U.S. Army Corps of Engineers’ Baltimore, Kansas City and Galveston districts.