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06.07.2017 Williams Mullen GovCon Perspectives

Part 1: Federal Government Contract Debriefings, The Ten Commandments, Nos. I - V

Today’s blog post is titled “Part 1: Federal Government Contract Debriefings, The Ten Commandments, Nos. I - V.” Of course, these Ten Commandments are not handed down from on high. And they are not carved in stone. But they represent best practices for contractors competing in the federal marketplace, and they can help you get the most out of your Debriefings—which is an often-overlooked resource for government contractors. Today, we address the first five of the Ten Commandments, also known as the “First Tablet.”

I. Always Request A Debriefing.

This one applies to everyone. All disappointed bidders and all awardees. Win or lose, if you invested the time and money to submit a proposal, then you are short-changing yourself if you pass up the opportunity for a Debriefing. It is your right. Usually. Even in cases where there is no “right” to a Debriefing, if you ask for it, the Government may comply. Besides, in cases where you have a right to a Debriefing the Government is expecting—and is prepared—to give you and all offerors a Debriefing. The bottom line is that you should always request a Debriefing.

II. Submit A Written (Email) Request For A Debriefing. Immediately!

As soon as you receive Notice of Award or Notice of Exclusion from the Competitive Range, you should submit your request for a Debriefing. Do it immediately! There is no reason to delay and no consideration or strategy in play. Your request can be sent electronically. And there are no magic words or special phraseology required. Please click here to access A Practical Guide to Federal Government Contract Debriefings, which includes a sample request for a Debriefing in the Appendix.

III. Accept The First Debriefing Date Offered. Do Not Delay!

After you have requested a Debriefing, the Government will usually offer a date for your Debriefing session. Do not turn down any dates offered! Always accept the first date offered to you! Debriefings trigger important deadlines and implicate significant legal rights. By rejecting one date for a later one, you may unwittingly affect the deadline for filing a bid protest or for obtaining the “automatic stay” of performance. Don’t risk it—just take the first date offered.

IV. Be Aware Of What The Agency Must Disclose.

The Federal Acquisition Regulation (FAR) contains strict rules for what the Government must disclose at a Debriefing. Those requirements vary depending upon whether the Debriefing is a Pre-Award (FAR 15.505(e)) or Post-Award Debriefing (FAR 15.506(d)). You should know what information you are entitled to, and the FAR will tell you. If you know what the Government must disclose to you, then you can check to make sure that the Government provides the required information. And, if the Government falls short of the requirements, you can and should ask for the Government to give you what the FAR says you are entitled to receive.

V. Be Aware of What the Agency Cannot Disclose.

The FAR also tells you what information the Government is prohibited from disclosing at a Debriefing. And the rules vary depending upon whether it is a Pre-Award Debriefing (FAR 15.505(f)) or a Post-Award Debriefing (FAR 15.506(e)). If you know what the Government cannot disclose, then you are in the best position to protect your rights. For example, if the Government tells you trade secret information of your competitor—information that is not to be disclosed according to FAR 15.505(f)(6) and FAR 15.506(e)(2)—then you know you have a problem. Among the problems is determining whether the Government also has disclosed your trade secret information to your competitors. In addition, if you know what the Government cannot disclose under V and what the Government must disclose under IV, then you know that there is a lot of information in between that the Government may disclose. And that is where you should focus your questions and your efforts for more information. Do not waste your time—and don’t waste your customer’s time—asking for something that the Government cannot tell you.

Please stay tuned for our next installment, and watch for “Part II: Federal Government Contract Debriefings, The Ten Commandments, Nos. VI - X,” where we will talk about the “Second Tablet” in the weeks ahead.

To download a copy of A Practical Guide to Federal Government Contract Debriefings, please click here.