Brief Explanation vs. Debriefing

Submitted by Dan Briest on Sunday, March 13, 2011 - 12:02 PM

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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Comments

rfburke

My question is if the decision is made for a NO AWARD, can any solicited offeror request a "brief explanation" on the basis of award? I ask because if a NO AWARD is issued, the basis of award does not exist.Can a NO AWARD decision be protested? Thank you.

Posted 09/01/2017 1:55 PM

Brad deMers

rfburke,Thank you so much for making time to post an interesting question.  Indeed you are semantically correct that FAR <a href="https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%208_4.html#wp1091211" style="text-decoration-line: none;" target="_blank">8.405-2(d)’s</a> requirement for a brief explanation does not cover a “NO AWARD” decision as an award does not exist. In regards to your question can a “NO AWARD” decision be protested, let me say that anything at all can be protested. Its dismissal depends on the merits of the case.  See this Interesting <a href="http://www.gao.gov/products/B-413442?utm_medium=email&utm_source=govdelivery#mt=e-report" style="text-decoration-line: none;" target="_blank">GAO case Latvian Connection LLC B-413442: Aug 18, 2016 </a>The interesting result of this case is that GAO has banned Latvian Connection from filing protests for a year.  Here are a couple of my fave excerpts from this case: *****The inherent right of dispute forums to levy sanctions in response to abusive litigation practices is widely recognized and has been characterized by the Supreme Court as “ancient in origin,” and governed not by rule or statute, but by the control necessarily vested in a forum to manage its own affairs.  Roadway Express, Inc. v. Piper et al., 447 U.S. 752, 765 (1980).  By separate letter of today to Latvian Connection, we are advising the firm, and its principal, that both will be precluded from filing a protest in our Office for a period of one year from the date of this decision.  As set forth above, if, at the end of this period, Latvian Connection wishes to raise concerns that an agency has violated procurement laws or regulations in an acquisition where Latvian Connection has a direct economic interest, and Latvian Connection demonstrates that it is prepared to engage substantively on the issues it raises, we will again accept its protests in our forum. **** In regards to your “NO AWARD” decision, it may be construed as cancelling the solicitation.  Here is another case which involved in part cancelling an RFQ against FSS 70  <a href="http://www.gao.gov/products/B-410778.3#mt=e-report" style="text-decoration-line: none;" target="_blank">XTec, Inc. B-410778.3: Oct 1, 2015</a>Here are the key excerpts regarding the cancellation: *****Cancellation of SolicitationXTec first asserts that cancellation of RFQ No. 858797 was improper since the RFQs “broadly worded requirements” were sufficient in scope to cover all of the more detailed requirements GSA now asserts must be included in the solicitation.  Protest at 8-14. A contracting agency need only have a reasonable basis to support a decision to cancel an RFQ.  Progressive Servs. Corp., B-404183, B-404251.2, Jan. 11, 2011, 2011 CPD ¶ 18 at 2.  A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs.  MedVet Dev. LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3.The agency responds that, early in 2015, it was “made aware by its customer agencies” that the solicitation “insufficiently captured various agencies’ requirements.”  Agency Legal Memorandum, July 27, 2015, at 8.  More specifically, the agency maintains that the solicitation failed to contain detailed requirements regarding the SIP interface between the customer agencies’ systems and the USAccess system; failed to reflect sufficient requirements regarding customer-owned hardware; and identified a performance period that was too short.  Id. at 8-10; AR, Tab 10, Contracting Officer’s Cancellation Memo, May 6, 2015, at 2.  Although not reflected in the contracting officer’s cancellation memo, the agency’s response to this protest also asserts that the solicitation should reflect a requirement for “derived credentials,”<a href="http://www.gao.gov/products/B-410778.3#_ftn16" style="text-decoration-line: none;"><span style="font-size: 11pt; font-family: Arial; color: rgb(24, 86, 140); background-color: transparent; font-style: italic; text-decoration-line: underline; vertical-align: baseline; white-space: pre-wrap;">[16]</a> which was “being developed” at the time of cancellation.  Agency Legal Memorandum, July 27, 2015, at 10.Here, based on our review of the entire record, we cannot conclude that the agency’s decision to cancel the solicitation was unreasonable.  That is, we cannot conclude that the solicitation’s “high level” requirements were, in fact, adequate to meet the government’s needs.  Accordingly, we reject XTec’s assertion that cancellation of the solicitation was unreasonable. ***Depending on your circumstances you may want to consider having a conversation with those contractors who request an explanation regarding the “NO AWARD” decision.  What you don’t want is a protest triggered for discovery when a conversation would have sufficed.  Always remember, under a protective order the protesting attorney generally has access to all your documentation anyway.  Thus, a decision to forgo a conversation with a contractor simply because there is no FAR requirement compelling you to have one has to be weighed carefully. Important note: The information expressed on this blog or its attachments are those of the individual content creators as experienced contracting professionals and should not be viewed as GSA policy. Author of this blog post: <a href="https://interact.gsa.gov/users/brad-demers" style="text-decoration-line: none;" target="_blank">Brad deMers</a> <a href="https://interact.gsa.gov/blog/services-ordering-solutions-table-contents#h.xhq22pjvxo1n" style="text-decoration-line: none;" target="_blank">Link Back to Service Ordering Solutions: Table of Contents</a><div> </div>

Posted 09/05/2017 2:55 PM

Brad deMers

In regards to your “NO AWARD” decision, it may be construed as cancelling the solicitation.  Here is another case which involved in part cancelling an RFQ against FSS 70  <a href="http://www.gao.gov/products/B-410778.3#mt=e-report" style="text-decoration-line: none;" target="_blank">XTec, Inc. B-410778.3: Oct 1, 2015</a>Here are the key excerpts regarding the cancellation: *****Cancellation of SolicitationXTec first asserts that cancellation of RFQ No. 858797 was improper since the RFQs “broadly worded requirements” were sufficient in scope to cover all of the more detailed requirements GSA now asserts must be included in the solicitation.  Protest at 8-14. A contracting agency need only have a reasonable basis to support a decision to cancel an RFQ.  Progressive Servs. Corp., B-404183, B-404251.2, Jan. 11, 2011, 2011 CPD ¶ 18 at 2.  A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs.  MedVet Dev. LLC, B-406530, June 18, 2012, 2012 CPD ¶ 196 at 2-3.The agency responds that, early in 2015, it was “made aware by its customer agencies” that the solicitation “insufficiently captured various agencies’ requirements.”  Agency Legal Memorandum, July 27, 2015, at 8.  More specifically, the agency maintains that the solicitation failed to contain detailed requirements regarding the SIP interface between the customer agencies’ systems and the USAccess system; failed to reflect sufficient requirements regarding customer-owned hardware; and identified a performance period that was too short.  Id. at 8-10; AR, Tab 10, Contracting Officer’s Cancellation Memo, May 6, 2015, at 2.  Although not reflected in the contracting officer’s cancellation memo, the agency’s response to this protest also asserts that the solicitation should reflect a requirement for “derived credentials,”<a href="http://www.gao.gov/products/B-410778.3#_ftn16" style="text-decoration-line: none;"><span style="font-size: 11pt; font-family: Arial; color: rgb(24, 86, 140); background-color: transparent; font-style: italic; text-decoration-line: underline; vertical-align: baseline; white-space: pre-wrap;">[16]</a> which was “being developed” at the time of cancellation.  Agency Legal Memorandum, July 27, 2015, at 10.Here, based on our review of the entire record, we cannot conclude that the agency’s decision to cancel the solicitation was unreasonable.  That is, we cannot conclude that the solicitation’s “high level” requirements were, in fact, adequate to meet the government’s needs.  Accordingly, we reject XTec’s assertion that cancellation of the solicitation was unreasonable. ***Depending on your circumstances you may want to consider having a conversation with those contractors who request an explanation regarding the “NO AWARD” decision.  What you don’t want is a protest triggered for discovery when a conversation would have sufficed.  Always remember, under a protective order the protesting attorney generally has access to all your documentation anyway.  Thus, a decision to forgo a conversation with a contractor simply because there is no FAR requirement compelling you to have one has to be weighed carefully.  Important note: The information expressed on this blog or its attachments are those of the individual content creators as experienced contracting professionals and should not be viewed as GSA policy.  Author of this blog post: <a href="https://interact.gsa.gov/users/brad-demers" style="text-decoration-line: none;" target="_blank">Brad deMers</a><a href="https://interact.gsa.gov/blog/services-ordering-solutions-table-contents#h.xhq22pjvxo1n" style="font-family: Arial; font-size: 11pt; white-space: pre-wrap; text-decoration-line: none;" target="_blank">Link Back to Service Ordering Solutions: Table of Contents</a><div> </div>

Posted 09/05/2017 3:01 PM

maryboehmerichards

My question would be - who has to give the brief explanation?  Does the notification to the unsuccessful bidders from GSA with an explanation of why they didn't win suffice as a brief explanation or does the brief explanation have to be done by the ordering agency?If the ordering agency did not provide a brief explanation and this requirement was accompanied with a SOW for supplies - is the ordering agency required to provide a brief explanation even after the 10 calendar days from date of award has run?  If the answer is yes - would the protest clock start over again and would that be 5 days from receiving the brief explanation?Would love an answer to these questions - thanks so much - Mary.

Posted 09/12/2013 2:34 PM

Dan Briest

Hi Mary, A couple of good questions there.The first question is in reference to what party provides notification to unsuccessful offerors.  That is always going to be done by the ordering agency.  Not GSA. This function can be completed through GSAs eBuy system when the agency makes their award.Next, then you talked about whether the notification to unsuccessful offerors would suffice as a brief explanation. Keep in mind that IAW the ordering procedures for supplies (with or without a SOW), FAR subPart 8.405-1, would be the appropriate method for ordering.  IAW FAR subPart 8.405-1, there is no requirement to provide a brief explanation to unsuccessful offerors. The requirement to provide a brief explanation only exists for services IAW 8.405-2(d).Lastly, you spoke of the protest period. Protests are handled IAW FAR Part 33.1 for the GSA schedule program.  Since you provided the notification to unsuccessful offerors, in my opinion, the 10 day protest clock started at that moment.  Once that ten days has passed, GAO first would have to determine whether the contractor had even met the required timing rules to even be considered an interested party.  Great questions, keep them coming!Dan

Posted 09/12/2013 3:46 PM

KarenGuthrie

That answer was very helpful! Thank you Dan!

Posted 03/25/2011 12:23 PM

Dan Briest

Thanks Karen. Let us know if we can add anything else that will assist you!

Posted 04/04/2011 9:15 PM

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