It's high time contractors got aggressive about their rights to thorough debriefings. FAR 15.506 has a fairly detailed rule requiring debriefings which the government often ignores. (We've blogged about the scourge of terse written debriefings.) Dan Gordon encouraged open, thorough debriefings in the now famous myth busting memorandum. What did he mean when he said thorough debriefings discourage protests? No doubt he was thinking about the far too commonplace situation where a contractor has to protest just to see what the SSEB and SSA did. That information, in our opinion, should be released in redacted form, to protect the contractor's proprietary information, at the debriefing. A proper FAR 15.506 debriefing prevents a protest just to find out what happened.
FAR 15.506 lists, as Dan points out, the minimum amount of information that should be disclosed at a debriefing. Minimum. One of the requirements is a "summary of the rationale for award". As we've said before, we've attended one debriefing where the SSEB report and the SSA decision were released (in sparingly expurgated form). At a minimum, the government should thoroughly explain why it reached its award conclusion. There is nothing in the law to prevent the release of all the post decision documents provided the contractor's rights in its trade secrets and confidential, proprietary information are protected. If there is a protest, the deciding tribunal will publish that redacted information.
Contractors should be aggressive in pursuing their rights to thorough debriefings. The regulation clearly promotes transparency. OFPP encourages it. If contractors do not get thorough debriefings, they should protest. Protesting is a statutory right. And protesting plays an important part in the taxpayers' procurement process.
When courts first intervened in public procurement awards, they did so on the theory that disappointed bidders were acting on behalf of the taxpayers as "private attorney generals". So, you could say it not only is your right but it also is your obligation to police the system. As a practical matter, why would you want to protest? So you can find out what happened, pure and simple. So you can find out why you lost the award. And if the government will not show you the SSEB report and SSA decision at the debriefing, tell the contracting officer you will go to GAO or the Court of Federal Claims (COFC) to get the documents.
When you go to GAO or the COFC, you will not necessarily see the SSEB complete report and the SSA decision but your lawyer will see them under a protective order. Your outside counsel will see everything once he or she is admitted to the protective order. Based on advice of counsel, you can then decide whether to proceed with the protest. If the SSEB report and SSA decision meet the legal tests, you can withdraw or dismiss the protest. If they don't, you can proceed with the protest.
We do not know how many "blind" protests are filed because of failed debriefings but we suspect there are many. Dan Gordon certainly was right on this point. A concerned contractor who is not told why it lost may well be inclined to protest just to find out. We certainly encourage that reaction. The rule is that the items listed in the FAR 15,506 debriefing agenda is a minimum requirement. Please start demanding copies of the SSEB report and SSA decision at your debriefings. It's the right thing to do.
bill@spriggslawgroup.com
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