Recent Improvements in Government Contract Bid Debriefings
While the new steps are constructive, the process still is far from perfect.
Debriefings of unsuccessful government contract bidders are unusual events with little parallel in commercial contracting. The regulations are confounding on whether a debriefing is required, when the debriefing should be provided and what the debriefing must contain. One almost needs an expert just to decipher the debriefing rules in a particular situation.
Often, the attendees come to the table with very different agendas. Theoretically, a debriefing is an opportunity for disappointed bidders to learn from the government how to improve their proposals for the next procurement. From the government’s side, another objective is to give the contractor sufficient explanation of the award rationale to dissuade the contractor from filing a protest.
But some contractors approach the debriefing as a vehicle to trap government personnel into admissions that can be used against it in protests. Not wanting to be victimized under the guise of aiding a contractor to improve, agencies have responded by offering only a written debriefing, providing the contractor as little information as possible. Unfortunately this sometimes precipitates a protest because the contractor feels the government is just going through the motions and is hiding information.
But recently, a positive trend has emerged in debriefings in both the defense and civilian sectors. We have seen agencies provide contractors, prior to a telephonic debriefing, with a multi–page memorandum explaining the strengths and weaknesses of their proposal and the rationale for the award. By providing the contractor both the advance written explanation and the follow–up telephonic debriefing, the government builds trust and makes the process transparent.
This is a valuable and helpful trend. While any debriefing is hard and stressful for the disappointed bidder, seeing that the government has invested a substantial effort in the evaluation and has reached a reasoned outcome goes a long way toward avoiding protests. Hopefully, this trend will continue.
Is this trend enough to help companies in their future bids while forestalling unnecessary protests?
Al Krachman, Esq., is a partner at Blank Rome LLP. He can be reached at Krachman@blankrome.com.