BEST PRACTICES: FULL AND OPEN DEBRIEFINGS

Yes, we believe full and open competition also means full and open debriefings. FAR 15.506(d) starts out stating the minimum and goes on to list 6 items to be covered for a minimal debriefing post award.  Note item number 6 requires "[r]easonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed."  Pretty broad, huh.  "Other applicable authorities" would include Government Accountability Office (GAO) decisions and opinions of the Court of Federal Claims (COFC).  Item number 4 on the list requires, at a minimum, a summary of the "rationale for award".

That brings us to a critical best practice.  We believe debriefings should include release of the source selection evaluation board (SSEB) evaluations and the source selection decision document (SSDD).  Before the debriefing.  A debriefing which should be face to face.  Of course these documents must be expurgated (lawyers prefer the word redacted) to comply with FAR 15.506(e).  But don't go overboard.  A contractor's proprietary markings do not necessarily make it so.  Contractors mark a lot of material that is not protectable when put to the tests required by the regulation.  Government officials are free to scrutinize contractor's claims of trade secrets, confidential data and the like.

Why full and open debriefings?  Because, as Dan Gordon has said, they prevent more protests than they promote.  Simple.  Hard for many to believe, but true. We've been in the protest trenches for decades and we can testify that more contractors file "blind" protests to discover what happened than those who file when they are satisfied they've seen nearly everything.  If a contractor is spoiling for a protest, it is unlikely a closed debriefing will keep it from filing the protest.  Open up the debriefing and you just may avoid the protest.

There is much debate about the adversarial nature of the procurement system, the lack of communication and the almost total absence of "partnering".  To some extent, we believe that is inevitable given our system of strict rules and regulations and the burgeoning competition for less and less work.  However, full and open communication through debriefings is a giant step in the direction of restoring trust and reducing litigation.

One more note.  Many of us rail at the apparently increasing numbers of frivolous protests.  In our opinion, one way to expose and hopefully reduce that population is to conduct full and open debriefings.  Many frivolous protests we've seen are "blind" protests in which wild allegations are made with no factual support from the record.  Reducing this population is a step in the right direction.

Finally, one of the impediments to full and open debriefings is that the government has not have followed "the solicitation, applicable regulations, and other applicable authorities."  Forget the debriefing. Step up to the plate and take corrective action. Right then and there.  Taking corrective action promptly is a best practice to be sure.

bill@spriggsconsultingservices.com