Debriefings: A Modest Proposal

So, I was asking myself, what about government contracts drives me up a wall?  More particularly, what is most frustrating to me, as a practicing procurement lawyer?  Easy: debriefings.  We (at least contractor “we”) have participated in debriefings where the government “script” was some variation on: “Your proposal was terrible.  Here is [insert the absolute minimum to fill up a page or five minutes of phone time, no matter the size or complexity of the procurement].  You were lucky we didn’t laugh you out of the competitive range.”  Or, a debriefing where the time spent on ground rules, and what won’t be discussed, is longer (often much longer) than the substance.

I get it.  I know why (even though no one says it out loud) the Government does it that way: to avoid “giving” protest grounds to the contractor.  There is a pervasive feeling that if the contractor gets a comprehensive, candid debriefing (still within the FAR part 15 confines on what can be disclosed), then the contractor will magically have grounds of protest, and will use them at GAO.  Whereas, if the government keeps it short and shorter, there won’t be a protest.  The frustrating part, to me, is that this is almost 180 degrees wrong.

 It is wrong because:

• I (as a protest lawyer for my client) don’t need detailed proof of the agency getting it wrong to file at GAO.  I only need a good faith belief by the contractor that the government violated a statute, a regulation, the terms of the solicitation, or acted unreasonably (“We can’t have been scored [fill in the blank] on [fill in the other blank] because we [fill in the blank]  on the [fill in the blank—i.e. task, or contract, or proposal section, or other contract], and that the contractor was prejudiced (“but for the government’s action or inaction, we would have….”).  Congress and GAO intentionally set this as a low bar.  Higher than “we lost, therefore the government was wrong,” but not proof (at this stage).  Proof comes later.
• More protests are filed out of a contractor not knowing.  A bare bones debriefing is much more likely to cause the contractor to say “…they really didn’t understand our technical proposal…,” or something similar, and generate a protest to find out.  (DOD is going in the right direction with their Enhanced Debriefings, but even they have room to improve.)
• And everything the government thinks they are keeping from the contractor by keeping the debriefing sparse will be made available to me, their outside counsel, under a GAO Protective Order during the protest, with plenty of time and opportunity to use that material in our later protest filings.

Whenever I have the chance to speak with my government counterparts (or have the contractor speak with their counterparts) before the debriefing starts, I try to communicate this message: “Be as candid and complete with us as you can.  I am certainly not committing that we won’t protest even if the debriefing is detailed, but I can tell you that we are more likely to protest after a sparse debriefing, because the contractor is more likely to believe you messed up, rather than we messed up. And if we do protest, I will see everything in your files anyway, so there is no tactical advantage to keeping things thin.” Sometimes they listen, sometimes they don’t.

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