Thank you to all who attended our recent webinar provided by Federal Publications Seminars. Several attendees asked questions that we were unable to address due to time constraints. Those questions and our answers are provided below. Several attendees were looking for the webinar materials. Here is a link to: A Pocket Guide to Federal Contract Debriefings. Please reach out directly to Mike or Charlie if you would prefer a hard copy; we would be happy to provide copies.
One attendee recommended that we include citations to all cases and GAO decisions on our PowerPoint slides. We have added those and the re-vamped slides are available here: Webinar PowerPoint: A Pocket Guide to Federal Government Contract Debriefings.
Webinar Poll Results
During the webinar, we conducted a very unscientific poll to gauge attitudes on debriefings. We promised to share the results of that poll, so here it is:
Debriefing in past 3 years? 27 No / 65 Yes / 15 Not sure
Satisfied with Debriefings? 26 Unsatisfied / 47 Satisfied / 23 N/A
Did Agency fail to provide required information? 40 No / 29 Yes / 35 N/A
Have you filed a protest after a debriefing? 36 Never / 37 Yes but less than half the time / 9 Yes at least half the time
Did Agency fail or refuse to provide a debriefing that was timely requested? 87 No / 17 Yes 58 / N/A
And, here it is in a more “colorful format”:
Click here to view the image.
Finally, we encourage additional follow-up questions on “All Things Debriefings” and invite you to share your questions and comments on debriefings on twitter: https://twitter.com/GovConInsider
Webinar Questions and Answers
- Is the Agency required to provide the ranking of all Offerors or just the debriefed Offeror?
Answer: For Post-Award Debriefings, the Federal Acquisition Regulations (FAR) specifies that the agency is required to provide “the overall ranking of all offerors,” if a ranking was developed by the agency during the source selection. FAR 15.506(d)(3). The FAR also states that the Agency must provide the “overall evaluated cost or price (including unit prices) and technical rating” of both the successful offeror and the debriefed offeror. FAR 15.506(d)(2). The FAR sets the minimum requirements, so some agencies may provide more information.
- Is the Agency prohibited from disclosing the names of all the Offerors that submitted a proposal?
Answer: It is neither prohibited nor required. According to the FAR, the Award Notice shall include “the number of proposals received” and the “name and address” of the awardee(s). FAR 15.503(b). The FAR also is written to require agencies to provide the overall ranking of all offerors. FAR 15.506(d)(3). So, while agencies are not prohibited from disclosing the names of all offerors, agencies often will redact the names because it is not required to provide that information. It is thus not uncommon to receive a list of all the offerors’ rankings but only the names of the awardee and the debriefed offeror.
- You recommended for contractors to leave their outside counsel home rather than attending the debriefing. What do you recommend for inside counsel?
Answer: Generally, it is okay for inside counsel to attend debriefings. Our recommendation as to outside counsel is based on the perception (right or wrong) that they may have been hired for purposes of filing a protest. We often advise against bringing outside counsel to debriefings because of the potential “chilling effect” that an agency may not be as forthcoming with information in the presence of outside counsel. With inside counsel, that perception and any chilling is lessened. These are not hard and fast rules but just guidelines.
- For large Part 8 GSA acquisitions, are debriefings not allowed? Or are you at the mercy of the agency?
Answer: It depends on what the solicitation provides. Debriefings are required only for Part 15 procurements and for task orders exceeding $5.5 million under FAR 16.505; they are not required for Part 8 procurements no matter the size. For Part 8 procurements, the FAR requires only that the agency provide a “brief explanation of the basis for the award decision” in certain circumstances. One “grey area” arises when agencies procure under Part 8 but also borrow procedures from Part 15. For those procurements, we recommend that you ask questions during the pre-proposal phase to clarify what information the agency will provide in the debriefing. As far as being at the “mercy of the agency,” that is true for all contractors. There are no procedures and no remedies for an inadequate debriefing under current law. We noted in our webinar that Professors Nash and Cibinic were making that point way back in 1990 and it still has not been “fixed” today.
- What is an automatic stay?
Answer: The “automatic stay” is a rule of law under which the filing of a bid protest at the Government Accountability Office may prevent federal agencies from making award of a contract or going forward with performance of a contract until the protest is resolved. There are strict time requirements for filing protests in order to obtain the stay, and agencies have the ability to “override” the stay in certain circumstances. The automatic stay is authorized under the Competition in Contracting Act, 31 U.S.C. § 3553(c) and (d).
- Is Congress of the verge of revamping the FAR?
Answer: No, but there is some activity “on the Hill” that contractors should keep an eye on. We pointed to House and Senate bills that include language: authorizing an outside study of bid protests; limiting (in the Senate Bill) and authorizing (in the House Bill) protest jurisdiction over bid protests of certain task order awards; and imposing costs on losing protesters. There is no certainty on whether any of those measures will be adopted. We also mentioned one big change to the bid protest process that is on the way—the electronic filing system at GAO. That change will also require a filing fee for bid protests filed at GAO. Until that change goes into effect, however, under current law, filing bid protests at GAO is “free” (or, at least there currently is no filing fee).