Brad and I answer many customer agency questions. One of the questions we receive often is on the subject of brief explanations and debriefings.
Question:
I know unsuccessful vendors aren't entitled to a debriefing after an award of a MAS order. They are only entitled to brief explanations which can be as simple as a quick phone call or short email. I remember some discussion on this issue, but can't find it on the blog site. What information is required, by ordering activities, to divulge in brief explanations to unsuccessful vendors?
Answer:
Okay, on to the question at hand. First, I'm going to give you word for word what the Federal Acquisition Regulation (FAR) says, and then I will provide my recommendations. FAR subPart 8.405-2(d) states, "After award, ordering activities should provide timely notification to unsuccessful offerors. If an unsuccessful offeror requests information, on an award that was based on factors other than price alone, a brief explanation of the basis for the award decision shall be provided." Well, that's it for what the FAR says. I oftentimes remind customer agencies during our, “Using GSA MAS for professional services”, just how short FAR subPart 8.4 is.
So the next question is, what does "brief explanation" mean, and how is it handled? First, if a contractor calls a Contracting Officer (CO) and requests a debriefing, the CO should make clear from the beginning of the conversation that information provided during the conversation is not a debriefing. As a best practice, I suggest the CO say or write something like the following: "This is a brief explanation of the basis of award per FAR subPart 8.405-2(d) and debriefings do not exist using the Multiple Award Schedules (MAS) program." The reason I include this is that we always want to mitigate the risk of protest for our customer agencies. Yes, MAS awards can be protested.
For more information on protests: Click Here.
Many contractors will call the CO and ask for a debriefing. If a CO calls it a debriefing, then they may be held to the higher standards of FAR Part 15.
For other FAR Part 15 terms that should be avoided: Click Here.
A ramification to holding a debriefing may include, but it is not limited to, requiring the CO to extend the clock for a contractor to protest. When a formal "debriefing" takes place, a contractor is given an additional 5 days to protest from the date of the debriefing. Under FAR subPart 8.4, a contractor is only given 10 calendar days to protest from the date of the award, period. Would I recommend waiting until day 7 or 8 to provide a brief explanation? Certainly not! This has not been tested by protest yet, but I would always give the contractor time to consider their decision.
Let's see, brief explanation, what does that mean? This is where it gets interesting. Brad and I have had this discussion several times. The answer is, wait for it….. it depends. When getting ready to provide a brief explanation, Brad and I like to pick up the phone and talk to the contractors. Of course, this is entirely at the discretion of the CO. The CO knows the contractor better than anyone else at this point. They need to use their experience with the contractor to determine how much information to provide. A brief explanation could be as little as explaining to the contractor what evaluation factors were used besides price. If the CO has the feeling a contractor may protest, then the CO may consider providing additional information to educate the contractor. How will the CO gauge the contractors concerns without speaking with them? As an example, it may help to provide the contractor with; 1) the evaluation factors, 2) the rating the contractor received on the individual factors, and 3) the weaknesses in the contractors submittal that resulted in the lower ratings. In our experience as COs (Brad and I), we have felt that this type of explanation provided during a phone call has dissuaded contractors from protesting as they understood their weaknesses and gained knowledge to increase their ability to provide a quality quote on the next RFQ. We also believe that many contractors see a brief explanation in a short letter as the Government hiding something from the contractor. As a cautionary note, the CO should not provide any comparisons between the other quoters or any other information from the other quotes.
As a side note, did you know that the only time you have to provide a “brief explanation”, is for services that require a SOW? There are no requirements in FAR subPart 8.405-1, to provide brief explanations to unsuccessful vendors, when awarding an order using the MAS program for supplies and services not requiring a Statement of Work (SOW).
Well, that’s about it for this blog. Do you have any questions or comments pertaining to this blog? Let us know what you think below in the comments section.
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