In the past week we have witnessed a wave of major contract award announcements, including DHS Eagle II and Coast Guard TABBS, with more to come. And unlike past large intra-agency contracts or GWACs, it appears that the DHS and Coast Guard procurement teams are making some hard calls and declining a lot of offers.
That means a lot of vendors are or shortly will be receiving critical debriefings in relation to DHS Eagle II, TABBS as well as other procurements. This guidance is provided to assist vendors understand the critical role a debriefing plays in obtaining collateral benefit from the unsuccessful protest and, more importantly, making the all-important “protest or no protest” decision. It is based on effective strategies that I have employed over thirty years in the federal market assisting both small and large businesses in making the “go-no go” decision on protests, prosecuting protests at both the Government Accountability Office (GAO) and the US Court of Federal Claims (CoFC), and defending such protests. Since a successful protest allows the vendor to get back in front of the procuring agency and be re-considered for award, protests are clearly an important business capture consideration on such procurements.
The Nature of Debriefings
Debriefings are not a courtesy- they required where requested under FAR 15 procurements. They are required because the vendor has expended considerable effort and expense in preparing and submitting its proposal. When a proposal is not accepted the vendor is entitled to learn both why its proposal was not successful and basic information regarding the proposal that was accepted. At its core, that is what a debriefing provides – information on how the bidder’s proposal was rated for each evaluation factor under the procurement and information on how the bidder’s proposal stacked up against the awardee’s proposal for those same evaluation factors. That is “plain vanilla” debriefing model.
On major procurements, however, the vendor really wants to know much more. First, the vendor wants to gain insight about how it can be successful in the future. Second, the vendor wants to gain insight about whether the procurement process was fair, rational and consistent with the RFP requirements. Specifically, a lack of confidence on those subjects is what creates the motivation for filing a protest, or at least the basis for prosecuting a protest in good faith. Ironically, this means that it is actually in the interest of the procuring agency to provide an expansive debriefing that provides the unsuccessful bidder with the maximum amount of non-sensitive procurement information. Unfortunately many procuring agencies fail to recognize this reality and provide carefully scripted debriefings that communicate nothing of value. That in turn leads to more protests. The bottom line is that an effective debriefing is in all parties’ interest and the failure by the agency to provide either an effective debriefing or communicate to the unsuccessful bidder that the process was fair, rational and consistent with the RFP requirements is what can, and in many cases should, trigger a bid protest.
The Nature of Protests
Protests provide an avenue for unsuccessful bidders to challenge contract award decisions. The principle behind protests is that the taxpayers ultimately benefit by having unsuccessful bidders “police” the procurement system through protests, thereby deterring wasteful or ineffective contracting practices. Today, protests over federal contracts are confined to three bodies – the contracting agency, GAO and CoFC. The vast majority of protests are filed with GAO for three reasons – in most cases the agency will be required to stay performance of the awarded contract while the protest is being reviewed; GAO protests are required to be resolved within 100 days; and GAO will award attorneys to successful protestors.
Another advantage of GAO protest is that GAO annually reports statistics regarding the number of protests that it receives, the number or protests resolved and the nature of those resolutions. For Government fiscal year 2012, GSA reported that it sustained 570 bid protests out of a pool of 2,475 protests filed, or a protest sustain rate of 18.6%. Id. GAO further reported that in an additional 23% of those protests the contracting agency voluntarily agreed to take corrective action in response to the protest, resulting in a total protest “effectiveness” rate of 42%. Id. This means that 42% of the time that a procurement was protested, the bidder received a remedy that enabled the vendor to continue to compete for the contract. In other words, 42% of the time the protest enabled the vendor to “get back into the game.” On a major contract such as Eagle II or TABBS, getting back into the game has huge value to vendors. This is made clear by what happened earlier this year with the Air Force’s largest contract – NETCENTS. In response to bid protests by multiple vendors, the Air Force was forced to scrap the original contract awards and go back to the drawing board on the procurement. Likewise, in 2009, GSA deemed it prudent to expand the number of awardees under its major Alliant GWAC contract from 31 to 60 vendors as a result of multiple bid protests. That means 29 contractors won seats on Alliant because of the filing of bid protests!
Debriefing Essentials for Large Procurements and Potential Protests
In order to perform an effective assessment of whether a protest should be pursued, the following serves as list of essential practices that vendors under large procurements such as Eagle II and TABBS should pursue in obtaining debriefings:
Essential #1 – Insist on an in-person debrief. FAR 15.5 permits debriefings to be conducted in-person, telephonically or in writing. On a major procurement you need to receive an in-person debriefing in order to have an earnest discussion and exchange. If the agency offers only telephonic or writing debriefings, make it clear that the absence of an in-person debriefing will make it difficult for you to feel confident that the procurement was conducted properly and may cause you to bring a protest. In my experience that will motivate the agency to give you an in-person debriefing.
Essential #2 – Get into the details of the ratings/evaluations. It’s not enough for you to be told that your proposal was rated “good” versus “exceptional” for the awardee for a particular evaluation factor. You need to verify that those ratings are objectively anchored to what you proposed or failed to propose. So get into the details of what was present in your proposal that caused the buying team concern or uncertainty or what was missing from your proposal that would have given them greater confidence in your proposal. If the buyer can’t or won’t communicate information that then you may have to conclude that the buying team can’t justify the difference in the ratings between you and the awardee. Don’t be confrontational but do explain that you need to receive tangible explanations of what caused you to be rated merely “good.” Often the response will be that you met the basic requirements but did not exceed them. In that event be prepared to point out areas where you did exceed the basic requirements and request an explanation of why you were not rewarded with a higher score. Again the goal is not to be confrontational but to assess whether the conduct of the procurement was fair, rational and consistent with RFP requirements. If the buying agency ignored or unreasonably downplayed superior elements of your proposal that may serve as a successful protest argument.
Essential #3 – Assess whether the RFP “ground rules” were followed. Each RFP or RFQ sets forth evaluations factors that will be applied in making the award decisions. These ground rules must be followed by the agency in making the contract award. If the agency deviates from those ground rules, such as by considering unstated evaluation factors or failing to enforce a mandatory requirement against the awardee, then there is a strong likelihood that the vendor has a winning protest argument. In my thirty years of experience I never cease to be amazed at the number of times that procuring agencies deviated from the stated ground rules and based their award on considerations that were not relevant under those ground rules. Consequently it is very important to engage and gain an understanding on what was evaluated and how it was evaluated. A mention of a factor that was not called out in the RFP is a major red flag!
Essential #4 – Confirm how discussions or clarifications with bidders were conducted. There is a major distinction between what it a “clarification” request regarding a proposal and “discussions.” Clarifications are just that – a request to clarify the intent of a statement or element of the proposal. They enable the buying team to ensure they have a proper understanding of the proposal and are perfectly legitimate. But once the inquiry extends to advising the bidder of a perceived weakness or deficiency in its proposal and is then followed by an opportunity to revise the proposal to address the weakness or deficiency, then “discussions” have transpired. Discussions are formal communications which must occur between the procuring agency and all vendors in the competitive range where the award is not based on the initial proposal of the vendors. As part of the discussions all vendors must be given notice regarding weaknesses and deficiencies assessed against their proposals. Consequently, if you learn at the debriefing that the procuring agency was confused or uncertain about one aspect of your proposal, then you should ask why a clarification was not sought. Similarly if you learn that a particular weakness was assigned to your proposal but that weakness was not raised during discussions, that would be very noteworthy.
Essential #5 – Understand the manner in which price was evaluated and the role it played in the source selection process. Price (or cost) must always be evaluated on federal procurements. The role it plays varies depending upon whether the procurement is “best value” versus “low price technically acceptable.” Regardless the vendor needs to ensure that its offered price or cost was properly computed and properly evaluated given the very dominant role that price place in present day source selections.
Essential #6 – Get a Best Value Explanation. The ultimate question on a best value procurement is whether the awardee’s offer was most advantageous to the Government based on the evaluation factors set forth in the RFP. On a multiple award contract such as Eagle II or TABBS, then the question comes down to what was the agency’s basis for discriminating your proposal from the proposals of the awardees. While this determination is permitted to be subjective, the FAR clearly requires that the source selection official document the basis for the best value determination. Consequently it is fair game for you to request that the basis for that determination be explained. If the government team members are unable to provide a cogent explanation for why some vendors received contracts but you did not, then that would probably be worthy of your consideration in deciding whether to protest.By James Phillips