Make Your Debriefing Count: How to Use the Debriefing Process to Win Bid Protests and Contract Awards Adam K. Lasky Shaun C. Kennedy June 15,

Common Misconceptions Bid Protests Forums – Have to understand protest basics to understand debriefings – Focus on GAO Mechanics of Debriefings Contractor’s Goals in a Debriefing Keys to Successful Debriefings Special Considerations in Small Business Set Asides Considerations for Agencies in Conducting Debriefings Agenda 2

I shouldn’t request a debriefing until I have reason to suspect the agency did something wrong I should use my debriefing to let the contracting officer know exactly what I think of his/her decision and convince him/her to change the award I should request an in-person debriefing because the agency will be more forthcoming in-person than over the phone I’m planning on protesting, I should bring my attorney to the debriefing My protest will succeed if I convince GAO that I submitted a better proposal than the awardee I should not file a protest because my customer will be upset, which will negatively impact future business 3 Common Misconceptions Regarding Debriefings & Bid Protests

Procuring Agency – Agency-level protests only recommended in very limited circumstances Government Accountability Office (GAO) – Biggest advantage is the Competition in Contracting Act (“CICA”) Stay – Debriefings have biggest impact on GAO protests Court of Federal Claims (COFC) – Biggest advantage is complete discovery (makes debriefing less important) – Can go to COFC after Agency or GAO Federal Bid Protest Forums 4

Bid Protests Filed - FY

Protest Outcomes at GAO - FY

CICA Stay Protest must include a detailed statement of the legal and factual grounds for protest (4 C.F.R. 21.1(c)(4)) – Protests grounds based entirely on speculation will be dismissed Protective Orders To Win, protestor must establish: – “Interested Party” – Agency action was unreasonable or inconsistent with the stated evaluation criteria or applicable procurement statutes or regulations; and – “Prejudice” Win Your Protest  Get Your Attorneys’ Fees (rate uncapped for small business protestors) 7 GAO Protests – Key Considerations

GAO strictly enforces deadlines – no forgiveness Protest Filing Deadlines (4 C.F.R. § 21.2 ) – Protest based upon alleged improprieties in a solicitation  due prior to proposal deadline – Protest after a timely agency-level protest  due 10 days after actual or constructive knowledge of initial adverse agency action – All other protests  10 days after the basis of protest is known or should have been known; or 10 days after the date on which the debriefing is held (whichever is later) Separate Timeliness Rules for Obtaining CICA Stay – Agency must receive notice of protest from GAO … Prior to award After award, but within 10 days after contract award or 5 days after requested and required debriefing (whichever is later) – Wrinkle: Notice must be from GAO; GAO has 24 hours to give agency notice after protest filed Debriefing only extends deadlines if: – debriefing is “required”; and – procurement is conducted on the basis of “competitive proposals” 8 GAO Protests – Complex & Strict Filing Deadlines

9 GAO Protest Timeline Courtesy of

10 Useful Resources for Learning More About GAO Protest Procedure GAO Bid Protests: An Overview of Time Frames and Procedures (Cong. Res. Serv. 2016) GAO Bid Protests: An Overview of Time Frames and Procedures A Practitioner’s Road Map to GAO Bid Protests (The Construction Lawyer 2010) A Practitioner’s Road Map to GAO Bid Protests Choice of Forum for Federal Government Contract Bid Protests (Fed. Cir. Bar Journal 2009) Choice of Forum for Federal Government Contract Bid Protests Bid Protests at GAO: A Descriptive Guide (GAO 2009) Bid Protests at GAO: A Descriptive Guide

Can be written, oral, in-person, or combo – Contracting officer chooses format – Doesn’t hurt for contractor to request a preference Which form of debriefing is best for the contractor? Once debriefing date is set, consider requesting a written summary of ratings and evaluation in advance of debriefing 11 How are Debriefings Conducted

12 Information that the Agency is Required to Disclose in a Debriefing Pre-Award Debriefings (FAR (e)) 1.The agency's evaluation of significant elements in the offeror's proposal; 2.A summary of the rationale for eliminating the offeror from the competition; and 3.Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition. Post-Award Debriefings (FAR (d)) 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.

13 Information the Agency is Prohibited from Disclosing in a Debriefing Pre-Award Debriefings (FAR (e)) 1.The number of offerors; 2.The identity of other offerors; 3.The content of other offerors proposals; 4.The ranking of other offerors; 5.The evaluation of other offerors; or 6.Any information prohibited from disclosure in a post-award debriefing. Post-Award Debriefings (FAR (f)) 1.Trade secrets; 2.Privileged or confidential manufacturing processes and techniques; 3.Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and 4.The names of individuals providing reference information about an offeror's past performance. 5.A point-by-point comparisons of the debriefed offeror's proposal with those of other offerors 6.Information prohibited from disclosure by FAR or exempt from release under the Freedom of Information Act (5 U.S.C. 552)

Obtain info that helps you win future contract awards Obtain info that helps you decide whether to protest Obtain info that helps you win a protest – Obtain information that supports suspected protest arguments Bare suspicion isn’t enough to advance a protest ground – Obtain information that allows you to protest as many aspects of the evaluation as possible Only entitled to discovery relevant to protest arguments raised Greater diversity of protest arguments raised  broader discovery Broader discovery  more chance of discovering additional protest arguments Protests are usually won on supplemental protest arguments 14 What Should the Contractor’s Goals be in a Debriefing?

Keys to Successful Debriefings 15

“Required” debriefing restarts clock for CICA stay (and for filing certain protests) – To be “required”  must request within 3 days of notice of award/elimination – A courtesy debriefing doesn’t restart CICA stay clock (or time for filing protests based on info known before debriefing) Don’t ask to defer your pre-award debriefing – Doesn’t delay protest period (FAR (a)(2)) 16 Request a Debriefing Immediately After You Receive First Notice of Award/Elimination

17 Study the RFP Submission/Evaluation Criteria and Your Proposal Debriefings are fast paced – you might not have time to review RFP or your proposal during the debriefing Review the RFP evaluation and submission criteria (usually Sections L & M) Review your proposal Helpful to create a chart reflecting how/where your proposal addressed each evaluation factor and sub-factor Review the notice to unsuccessful offeror

My proposal is better than the winning proposal is NOT a viable protest argument Knowing the most viable bid protest arguments will help you … – frame your questions for the debriefing – know what to listen for in the debriefing – know the right follow-up questions during the debriefing 18 Know the Common/Successful Bid Protest Arguments

Deviation from RFP’s stated evaluation criteria – Use of unstated evaluation criteria (or failure to consider stated evaluation criteria) – Weighting evaluation factors inconsistent with the weighting stated in the RFP Use of a clearly irrational evaluation method (not disclosed in RFP) Unequal treatment of offerors Inadequate documentation of the source selection record Flawed technical evaluation – Acceptance of proposal that fails to meet a material requirement – Acceptance of a blanket offer of compliance – Acceptance of an offer that fails to provide information required by the RFP – Evaluation plainly inconsistent with, or ignores, information in technical proposal – Mechanical evaluation of technical proposal against government estimate Flawed past performance evaluation – Failure to consider relevance of past performance – Failure to consider past performance information that is “too close at hand” to ignore – Unreasonably crediting offeror with past performance of affiliates that were not show to have meaningful involvement in proposed contract performance – Consideration of past performance reference that did not meet relevancy criteria in RFP – Consideration of past performance of subcontractor where prohibited by the RFP Flawed cost evaluation (cost- reimbursement contracts) – Failure to perform cost realism analysis – Material flaws in cost realism analysis – Mechanical application of government estimate in cost realism analysis – Use of unadjusted cost in tradeoff decision Flawed price analysis – Failure to conduct a required price realism analysis – Use of a price realism analysis where not called for in RFP – Mechanical application of government estimate in price realism analysis – Use of price realism analysis to adjust evaluated price Flawed discussions – Lack of “meaningful” discussions – Misleading discussions – Discussions favor one offeror over another Flawed best value decision Organizational conflict of interest Waiver of definitive responsibility criteria Failure to refer the elimination of a small business based on a responsibility factor or traditional-responsibility-factor to the SBA for a Certificate of Competency proceeding 19 Examples of Viable Post-Award Bid Protest Arguments

You are entitled to “Reasonable responses to relevant questions” about the evaluation Develop questions in advance of debriefing – When possible, make questions sound like you are seeking info to improve future proposals - don’t telegraph that you are thinking of protesting – Keep eval. criteria, proposal, and viable protest arguments in mind – Keep debriefing requirements/restrictions in mind – Organize questions by evaluation factor/subfactor – When questions relate to a suspected protest argument – try to make questions yes/no – Ask open ended questions about awardee’s evaluation – Limit the number of questions – Work with your protest attorney to develop questions – Consider sending agency most questions in advance of debriefing If Agency doesn’t know answer to relevant question, request debriefing be kept open until answered 20 Prepare Questions for the Agency Prior to Debriefing

Ideally, at least 3 people on contractor’s debriefing team 2 people taking notes – doing nothing else 1 person speaks for the contractor Ideally, contractor’s Debriefing Team should include: – Primary persons who wrote the proposal – Person who would have been the PM if you’d received the award – A company decision maker 21 Assign Roles to Your Debriefing Team

Important to get protest attorney involved before the debriefing – Very limited time to file protest after debriefing – attorney needs time to understand the procurement – Protest attorney’s knowledge of potential protest arguments can help you prepare for debriefing BUT don’t bring outside counsel to the debriefing – Presence of outside counsel will chill agency during debriefing – Exception: if you filed an earlier protest involving the same procurement 22 Don’t Bring Outside Counsel to the Debriefing

Time to argue with the Agency’s evaluation is a bid protest – not the debriefing Argument may chill Agency’s disclosures, cut debriefing short Argument sidetracks and wastes time Don’t forget this is your customer Be polite and respectful Arguing at debriefing may burn future bridges – Exception: debriefing following competitive range elimination (no award yet), and error in the evaluation is obvious and clearly “prejudicial” 23 Don’t Argue with the Agency at the Debriefing

Can’t win a protest argument based on a misstatement by agency in debriefing BUT, can assert a protest argument based on a misstatement by agency in debriefing – Protest argument will require agency to produce all docs relevant to that argument – Even if statements at debriefing turn out to be inaccurate, related documents may lead to discovery of a winnable supplemental protest 24 Don’t Offer the Agency the Chance to Correct/Clarify a Misstatement

GAO has repeatedly refused to consider protests challenging adequacy of debriefing BUT, the agency’s failure to provide an adequate/any required debriefing opens the door to speculative protest arguments What if the agency’s failure to provide a required debriefing makes your protest untimely? – Don’t let it happen – File bid protest at COFC – seek TRO – Seek injunctive relief from COFC, requiring the agency to provide you with debriefing 25 Failure to Receive a Required Debriefing is Not a Viable Bid Protest Ground

Compile and circulate debriefing notes – send to outside counsel for review Hold meeting between debriefing team and outside counsel to decide whether to protest Conduct a “lessons learned” session with your business development/proposal team after debriefings 26 Debrief the Debriefing

Does a FAR (a)(2) Notice (notice of apparent successful offeror) start the clock for requesting a debriefing? Debriefings don’t extend the time for filing size protests Size Protests can be used as quasi-debriefings 27 Special Considerations for Debriefings in Small Business Set-Asides

Send a written summary to contractor in advance Good debriefings can prevent protests – Full disclosure is more likely to avoid protests – Will reduce quasi-speculative protests – Lets contractor know early it cant show “prejudice” or that it won’t win contract even if it wins protest Can’t win contract  won’t protest Let contractors know what they can do better next time 28 Considerations for Agencies in Debriefings

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