RULE: Despite what a contracting officer and a contractor claim was said at a debriefing, the focus of a protest is the evaluation record, not the debriefing. 

Contracting officers and contractors often have an unrealistic view of a debriefing. Both have misconceptions about the power of an agency’s debriefing of an unsuccessful offeror in making it easier to initiate a bid protest. Unfortunately for both the government and industry–and for the procurement process in general--these misconceptions often hide the real value of a debriefing: establishing a better relationship between buyer and seller.

Debriefings are not new. Since 1997, FAR has allowed a contracting officer to give unsuccessful vendors a debriefing as to why they lost the contract. Even successful vendors can get a debriefing. And debriefings are available pre-award as well as post-award.  

The FAR describes who is entitled to one: those involved in a Request for Proposal (RFP) procurement and not those in a Request for Quotation procurement. FAR 15.503(b) and 15.506(a)(1). The FAR also describes the process for getting a post-award debriefing: the receipt by the contracting officer of a request for one within three days of the unsuccessful offeror receiving notice it had lost the procurement. Finally, the FAR identifies the type of information that can and cannot be given out at a debriefing.  FAR 15.506 (d) says:

At a minimum, the debriefing information shall include—

(1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable;

(2) The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;

(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror;

and

(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

FAR 15.506(e) describes what a contracting officer cannot disclose at a debriefing:

(e) The debriefing shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552)[.]

But a debriefing can be an unpleasant experience for both sides. Contracting officers fear that one slip of the tongue at the debriefing will result in a protest and potentially a humiliating order from GAO or a judge to go back and do the solicitation the right way.  The fear is usually unrealistic because, even if the contracting officer makes a mistake, the mistake probably was not the difference between winning and losing the contract; the protester might have lost the contract anyway on some other ground.  Because harm to the protester as a result of the mistake, “competitive prejudice,” is a necessary element of any viable bid protest (Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996)), prejudice is often missing so a contracting officer’s mistake might not be fatal.

Contractors, on the other hand, might leave a debriefing convinced that the contracting officer has not told them the whole story, that the government is hiding something, that a protest will prove it, and that they will end up getting the contract.

How little impact a debriefing may have on making a successful protest can be seen in the limited legal role a debriefing has.

First, although the FAR language quoted above begins with the phrase “At a minimum, the debriefing information shall include” and then describes a detailed list of required information, an Agency’s failure to disclose all required information is not something GAO will consider because “the adequacy and conduct of a debriefing is a procedural matter that does not involve the validity of an award.” Healthcare Tech. Solutions Int'l, B–299781, July 19, 2007, 2007 CPD para. 132 at 5. So regardless of how fairly or unfairly a contracting officer conducts the debriefing, an unsuccessful vendor will get no remedy from GAO.

Second, the issue in a protest is how the agency evaluated an offer and described its award decision.  Explanations after award such as those given at a debriefing are not that important in a protest.  Although one judge on the Court of Federal Claims (CFC) found some possible small protest value to a contractor in a debriefing, the judge emphasized the true focus in a protest: 

Portions of the post-award debriefing by the contracting officer are quoted to demonstrate the lack of an adequate articulation of the tradeoff decision. But while such debriefings might, on occasion, yield useful party admissions, any new explanations of the evaluation process made post-award are the sort of ‘post hoc rationalizations’ that courts reject when offered by the government in bid protest cases. The place to look for the required rationale is the Source Selection Decision Document.

Fort Carson Support Services v. U.S.  71 Fed.Cl. 571, 591-592 (Fed.Cl.,2006).

The theory here is sound: once something is in litigation, what people say can be influenced by the fact that it is in litigation. What is usually more accurate is what was said before there was any lawsuit. So although a debriefing may well distress a contracting officer, a slip of the tongue is by no means fatal.

Third, the contracting officer is in charge of how the debriefing will be conducted. FAR 15.506(b): “Debriefings of successful and unsuccessful offerors may be done orally, in writing, or by any other method acceptable to the contracting officer.” In many cases, the contracting officer decides to hold only a written debriefing which can minimize the “he said-she said” aspect of an oral debriefing.

Several recent GAO decisions show debriefing’s limited role in winning a protest. They also show why a contracting officer may want to provide only a written debriefing.

Oral debriefings

Keystone Sealift Services, Inc. (KSS) and General Dynamics American Overseas Marine (AM-SEA) competed for a Navy contract for the operation and maintenance of large, medium-speed, roll-on/roll-off (LMSR) ships in the agency's surge project. Two of the sub-factors the Navy would evaluate were contract administration and property management. After KSS lost, it asked for a debriefing. Following the debriefing, KSS filed a protest. What was actually said at the debriefing became an issue between the parties but not, as we will see, for GAO.

KSS argued that if the Navy had properly evaluated the KSS proposal, particularly its contract administration and property management components, it would have won. But its arguments were based on what it claimed was said at the debriefing. According to GAO, “KSS's assertions are based on statements allegedly made by the agency during the debriefing. Specifically, KSS understood that the agency did not consider its proposal to be as ‘compelling’ as AMSEA's due to unspecified ‘past problems’ with contract administration and its failure to provide specific examples of how it used its property management system.”

The first point GAO made was that how the agency explained the evaluation at the debriefing was not as important as the evaluation itself. “The evaluation record, not the agency's alleged statements during a debriefing, is the basis for our review. We are concerned with the manner in which the evaluation was conducted, notwithstanding the protester's understanding of the agency's subsequent explanation of how it conducted the evaluation. In this regard, a debriefing is only an explanation of the agency's evaluation and source selection decision, not the evaluation or decision itself.”

Moreover, the agency’s memory of the debriefing was different that the hopeful vendor. “The agency denies advising KSS that its proposal was downgraded due to contract administration and property management system concerns, and the evaluation record does not establish otherwise.”

In considering KSS’s protest arguments about how the agency evaluated KSS’s property management system, KSS claimed the agency said one thing at the debriefing but GAO pointed out that the agency had said something different, consistent with evaluation records. Because the debriefing and the evaluation were in harmony, GAO refused to credit KSS’s argument.

GAO denied the protest.  

Keystone Sealift Services, Inc., B- 401526.3, April 13, 2010. Available at http://www.gao.gov/decisions/bidpro/4015263.pdf.

Written debriefing

Nippo Corporation of Tokyo lost a Navy contract for the revitalization of townhouses at Sasebo, Japan. After a debriefing, Nippo filed a protest that ended when the Navy agreed to reevaluate all proposals and make a new award decisions. After the Navy’s re-evaluation, Nippo lost again, asked for a debriefing, and then filed an agency-level protest and finally a GAO protest.

This GAO protest was based on Nippo’s belief that the agency again failed to properly evaluate its proposal and based part of its argument on the debriefing. GAO denied the protest, explaining that the debriefing failed to support Nippo and in fact helped the agency prove it fairly evaluated Nippo’s proposal.

Nippo also asserts that the debriefing provided by the agency shows that its proposal improperly was downgraded for flaws in its initial proposal that were corrected in its FPR. This argument is without merit. Our review is based on the evaluation record, not the information provided in a debriefing. In any case, while the debriefing materials do identify evaluated flaws in Nippo's initial proposal, the debriefing also goes on to specifically note that these flaws were corrected in the FPR. The contemporaneous record confirms that the evaluation considered only strengths and weaknesses in Nippo's FPR; the agency did not downgrade Nippo for flaws in its initial proposal that were corrected.

Nippo Corporation, B-402363.2, May 5, 2010.

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