Posted on 2/2/2012 2:36 PM

It's time we got aggressive about our rights to debriefings.  FAR 15.506 has a fairly detailed rule requiring debriefings which, for the most part, the government ignores.  Dan Gordon encouraged open, thorough debriefings in his myth busters memorandum.  What did he mean when he said thorough debriefings discourage protests?  No doubt he was thinking about the far too commonplace situation where a bidder has to protest just to see what the SSEB and SSA did when that information should have been released, in redacted form to protect contractor proprietary information, at the debriefing.  A proper FAR 15.506 debriefing prevents a protest just to find out what happened.

FAR 15.506 lists the minimum that should be disclosed at a debriefing.  At a minimum.  Dan has emphasized the regulation lists the minimum information required to be released.  One of the requirements is a "summary of the rationale for award".  As we've said before, we've attended at least one debriefing where the SSEB report and the SSA decision were released (in sparingly expurgated form).  At a minimum, the government should thoroughly explain why it reached its award conclusion.  There is nothing in the law to prevent release of all the post decision documents provided the contractor's rights in its trade secrets and proprietary data are protected.

Get aggressive.  The regulation requires information.  If you don't get it, threaten to protest.  Yes, threaten to protest, which means you had better be prepared to actually file it.  Protesting is a constitutional and statutory right.  As a citizen, even more importantly as an interested bidder on a government contract, you have a right to protest.  Protesting plays an important role in the taxpayers' procurement process. 

When the courts first intervened in public procurements, they did so on the theory that disappointed bidders were acting on behalf of the taxpayers as "private attorney generals".  So, you could say it not only is your right but it is also your obligation to protest.  As a practical matter, why would you want to protest?  So you can find out what happened.  So you can see why you lost the award.  That's why.  And, if the government won't show you the SSEB report and SSA decision at the debriefing, tell the contracting officer you will go to GAO or the Court of Federal Claims to get the documents.

When you go to court or GAO you will not necessarily see the SSEB complete report and SSA decision but your lawyer will see them under a protective order.  Your outside counsel will see everything once he or she is admitted to the protective order.  Based on advice of counsel, you can then decide whether to proceed with the protest.  If the SSEB report and SSA decision meet the legal tests, you can dismiss the protest.  If they don't, you can proceed with the protest and perhaps achieve the kind of victory we have reported in the recent opinions by Judge Lynn Bush.

We once wrote an article about how not to protest.  If your thorough debriefing or your case at court or the GAO reveals that the government followed the evaluation factors and awarded the contract faithfully following those criteria and the applicable regulations, you can forgo your protest.  But always write a letter to the contracting officer explaining that on the basis of a thorough examination of the record you have decided that you will not protest.  You must make maximum use of the word protest in your dealings with the government.  The government must know that you are willing to be the "private attorney general" on behalf of the taxpayer but you only carry your challenge all the way through when you know the government has violated the rules.




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