top of page

FedSubK Feature: Now What? My Offer was Excluded from Further Consideration

Often small businesses face several conundrums when they are on the receiving end of a notice of elimination from the competitive range and then faced with a decision on when to receive a debriefing or, if necessary, to protest. From the inside, as a Contracting Officer, I didn’t ever fully understand the concern over taking a debriefing and contemplating a protest. I worried about getting a protest because it can derail a contract for months, but I never understood the concern from the side of the business.

 

Before getting into what I’ve learned since becoming a consultant, let’s talk about debriefings a little bit. If you’ve never been through the debriefing process, or even if you have but haven’t felt you’ve received the information you needed, here Is a run-down of why asking for the debriefing at any stage of the process (pre-award elimination or post-award) is a good thing.  

 

Why did I receive notice that my proposal has been excluded prior to the contract award?

The RFP will state when the Government plans to establish a competitive range for the purposes of a more efficient evaluation. A competitive range determination and preaward notification of exclusion of the proposal from further consideration is made when the Government believes that there is a clear delineation between proposals that have a chance of receiving contract award and those that don’t.  When this determination is made, it is done so a few reasons:

 

  • Efficiency in the process for the Government to negotiate with a smaller sub-set of offerors most likely to provide the best value to the Government.

  • To minimize further costs for offerors with no chance of contract award.

 

The notification will offer the opportunity to request a debriefing within 3 calendar days of receipt of the notice.  Or you may opt to take a post award debriefing instead. If you don’t make this request in a timely manner, the Government is not required to provide a debriefing (pre or post award).

 

Why should I want a debriefing if I’ve already lost the contract?

A debriefing is where you can find out how the Government viewed your proposal and find out how to improve on that perception for the next time you propose to that agency or another.


Should I ask for a debriefing

The answer here is always going to be YES.  Even if you receive a written debriefing abstract with your notification letter, ask to talk to the Contracting Officer via a debriefing request. The question is when.

 

If I receive a preaward notification, when should I ask to be debriefed, preaward or post award? 

It depends. A few things to consider are:


  • The Government can refuse a preaward debriefing when requested but must make every effort to provide a debriefing as soon as practicable.  In any event, it must be provided no later than when post award debriefings are held.

  • If a company does not take the offer of a preaward debriefing, it may be too late to bring up a known issue that is then later, at time of the post award debriefing, untimely to protest.

  • A preaward debriefing does not include the same level of detail in terms of trade off decisions related to your proposal and the winning proposal because that information is not yet available. At minimum, preaward debriefings include:

    • The agency’s evaluation of significant elements in the offeror’s proposal.

    • A summary of the rationale for eliminating the offeror from the competition.

    • Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competition.

  • Preaward debriefings do not disclose the--

    • Number of offerors.

    • Identity of other offerors.

    • Content of other offerors’ proposals.

    • Ranking of other offerors.

    • Evaluation of other offerors.

 

What information is available to me as part of a post award debriefing?

A post award debriefing provides information that is beneficial to seeing the competition landscape for the contract. At a minimum, the post award debriefing includes:

  • The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable.

  • The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror.

  • The overall ranking of all offerors, when any ranking was developed by the agency during the source selection.

  • A summary of the rationale for award.

  • For acquisitions of commercial products, the make and model of the product to be delivered by the successful offeror.

  • Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.


You can see that it’s significantly more info. Waiting for it and then protesting exclusion from the competitive range on grounds of something you knew at the time of exclusion will most likely render your protest untimely.

 

What types of info should I not expect to get in a preaward or post award debriefing?

Under no circumstances will debriefings include:

  • Point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors

  • Information prohibited from disclosure under the Freedom of Information Act ( 5 U.S.C.552) including-

    • Trade secrets.

    • Privileged or confidential manufacturing processes and techniques.

    • Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information.

    • The names of individuals providing reference information about an offeror’s past performance.

 

Can and should I protest being excluded from the competitive range?

This is more complicated, based on things I’ve learned since becoming a consultant. There is a perception that if a business protests, a CO/KO or agency might hold a grudge. It doesn’t happen (I know, I’ve never seen it in over 35+ years). But there is a real fear among small businesses that a protest isn’t worth the risk of being labeled as a troublemaker or ruining an existing relationship with an agency or its personnel.

 

Example in point, last year a client of mine received notice they had been eliminated from the competitive range. In the notice, the CO/KO provided its rationale for removal. The client requested a pre-award debriefing from the CO/KO the same day. The client was interested in the other two pieces of info that, at a minimum, they were entitled to under FAR 15.505(e) as part of a pre-award debriefing:

  • the agency's evaluation of significant elements in the offeror's proposal, and

  • reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed in the process of eliminating the offeror from the competitive range.

 

The CO/KO's response to the client’s request was that the request for a preaward debriefing was noted but that they had not made an award and were still in source selection. Well, duh! So, now what? That’s not very compelling.

 

The client sent a follow up outlining that:

  • It had made a timely request within 3 days of receipt of notice of its exclusion (FAR 15.505(a)(1)),

  • It had not requested a delayed pre-award debriefing (FAR 15.505(a)(2)), and

  • The Contracting Officer had not provided a compelling reason to refuse the request in its notice of exclusion or its response to the pre-award debriefing request (FAR 15.505(b)).

 

The response the client received from the agency? Crickets. Even with follow up emails every two weeks.  

 

Four months later, after award had been made, the agency provided a letter and attachment titled "Preaward Debriefing" AND the info provided was limited to what was allowed under FAR 15.505(e) for a pre-award debriefing. Disappointing at best.

 

Did the client have a legitimate complaint? Likely. Particularly because the debriefing disclosed a measure used by the agency that was not disclosed in the RFP evaluation criteria and was indicated as part of the basis for its elimination.

 

Did the client do anything about it? It thought about it but wrestled with how a complaint or protest might impact their current work relationships on other projects with the same CO/KO as well as future opportunities. The client ultimately made a business decision to preserve the existing business relationship, accept the debriefing provided, and move on. And this happens more often than you'd think.

 

What should you walk away from a debriefing understanding?

You should walk away with and understanding of places in your proposal where you missed the mark and can improve your next proposal, even when not with the same agency. Capturing debriefing feedback is important and doing your own "hot wash" after a debriefing is even more important. Don't make the same mistakes twice! Update your proposal team review checklists with your findings after each debrief.


While you may weigh existing work with the same agency, existing relationships, etc., in the matter of the timing of your request (and potential protest), know that from the CO/KO perspective inside, they don't take debriefing requests and protests personally. They aren't allowed to view your business less favorably on future proposals.


What's happens next depends on YOU. Only YOU can determine the best time to request a debriefing when eliminated from the competitive range, particularly if there is the potential of a protestable issue.  And only YOU can mitigate proposal writing mistakes from occurring again and improve your proposal writing and review processes. And learning from those mistakes should be an expected part of the proopsal life cycle on our way to that winning proposal.

 

References:

12 views0 comments

Related Posts

See All

Comments


bottom of page