Contractors have long complained that they don’t get enough information in debriefings, those informational meetings contracting officers often grant after they’ve made the award. Well now they have until July 19 to comment on a proposed change to the Defense supplement of the Federal Acquisition Regulation. Prompted by a 2018 provision of the defense authorization law, debriefings would get a big enhancement. For more, Federal Drive with Tom Temin turned to Rogers, Joseph O’Donnell attorney Jeff Chiow.
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Tom Temin: Mr. Chiow, good to have you on.
Jeff Chiow: Thanks Tom, glad to be here.
Tom Temin: So what’s going on with this rule they are responding to a congressional mandate on debriefings? What is the problem that the rule is trying to solve here?
Jeff Chiow: The problem is trying to solve is that there’s been a sense with an industry that they’re not getting a fulsome debrief, and the only way to get more information is to file a protest. And so in part, I think a response to the RAND study that said, what is the problem with procurements and bid protests? And the answer that came out of it was we need more information. And so this law tries to fix that.
Tom Temin: But the counter argument to full debriefings is that the contractors would get more ammunition for their protests.
Jeff Chiow: I think that’s true. It depends upon which client you’re talking about. But certainly, it’s the case that the responsible clients I work with, once they hear and clean story that seems like it’s an uphill battle, they’ll stop that protester or they won’t fine them.
Tom Temin: Alright. So tell us what the proposed rule would do, then how would it change debriefings if it becomes enacted?
Jeff Chiow: Yeah. So in fact, it wouldn’t actually change much, because as soon as the statute came out, the Department of Defense issued a interim guidance that essentially put into effect as requirements. So. So since 2018, DoD contractors have been able to get an enhanced debriefing. And an enhanced debriefing means what relative to a standard debriefing. So there’s lots of detail that we could go into, but let’s just keep it basic, you know, once you get your debrief, and by the way, you should always accept the first date offered, because a lot of timing is tied to that, once you get your debrief, what enhanced debriefing means is you get two business days to ask your follow up questions, then the government has five business days to respond. And then your debriefing is complete when you get those responses.
Tom Temin: Alright. And this would then do what if the new rule would give you more time for all of this?
Jeff Chiow: So all the new rule does is essentially, as I said, give effect to what has already been happening, and it tries to do some clarification. But as I mentioned to you when we were setting up the call, it doesn’t do a great job of that, it actually introduces some confusion that was dealt with in a recent federal circuit case. I can go into that if you’d like me to
Tom Temin: Well, yeah, for the layman, tell us what happened.
Jeff Chiow: Yeah, sure. At the end of the day, the debriefing rules, what they trigger is the timeliness of your bid protest, which will usually file it the Government Accountability Office. And also the provisions of the CICA stay, the CICA stay is the order that stops performance until the protest is resolved. And so the very simple rule is that once the debriefing is completed, then you have five days, not business days, five days to file your GAO bid protest and to get a CICA stay. And so what’s been happening, again, since the law was established back in December of 2017, is you get the extra debriefing questions, you get your answer. And that’s when your five day clock starts ticking. But this little wrinkle that comes up is what if you don’t ask any questions, did your debriefing clock start when you decided not to ask questions, or two days later, when it became evident that you didn’t ask your questions? So again, the federal circuit dealt with this issue and they said, well, if you didn’t ask questions, you don’t get those extra two days.
Tom Temin: Crazy. We’re speaking with Jeff Chiow. He is co chair of the Government Contracts Practice Group at the law firm Rogers Joseph O’Donnell, I guess maybe the real question then is a contractor who wants to know what went wrong, if they did not get the award, what is the best practice for using a debriefing or seeking a debriefing? And what should you ask to make sure you get your questions answered?
Jeff Chiow: Yeah, I do a lot of bid protests. And the way that I generally advise clients is ask your questions when you ask for the debriefing. Because these new rules will give you maybe two shots at asking questions. So when you ask the agency for a debrief, throw out a couple of questions that are obvious to you. And hopefully they’ll address those in your debrief. And then you get two more days, now that you have a fuller understanding, you get two more days to ask those more robust questions.
Tom Temin: Yeah, so you should then know what it is you want to ask ahead of time, you should do some preparation before requesting the debriefing, it sounds like.
Jeff Chiow: Absolutely. And whenever somebody calls me, I pull out FAR 15.506. I say this is what they have to tell you and let’s look at what else you think went wrong. Let’s ask all the questions so you can get all the answers you’re entitled to.
Tom Temin: And I imagine that contracting officers vary in the degree to which they are forthcoming in what it is they give out because some of them just are by the book, by the rule, and they want to give as little as they possibly can because they considered their government prerogative to do their discretion in awarding contracts. Others are a little bit looser about it. So does it take a little human relations work to get the most out of a particular CEO?
Jeff Chiow: Yeah, and you can use all the human relations work you’ve won, if somebody wants to hide the ball, they’re gonna hide the ball. We actually found a bid protest yesterday, the notice of award that our client got did not say who won any awards, or how much they were awarded that. There was nothing there to go on. And that, unfortunately, is what this rule and similar ones are supposed to avoid, but it still happens.
Tom Temin: So sometimes you have to just grit your teeth and take it easy, because you could have that same contracting officer the next time around, and so you want to kind of maintain some level of relationship with your customer.
Jeff Chiow: Yeah, but if you give in too many times, then you’ll end up getting that same treatment, you’ll never hear a true story about why you weren’t selected and then you’ll just sort of be ushered off to the side. That’s why people decide sometimes regretfully to file their protests.
Tom Temin: And getting back to this proposed new DFARS rule then, what should comments say, what do you advise people to comment on if they want to? What are you telling the government?
Jeff Chiow: My comments are going to be sort of around the need to clarify some of the things that are done here. It’s intending to fix a problem, but this problem has a long history. The statute modifies Title 10 and the debriefing rules that are in there. By the way, Title 10 is not just DoD. Title 10 is DoD, NASA and the Coast Guard. So if you have a NASA procurement, are you entitled to the same rules? Well, now you’re gonna have a DFARS rule that implements them, but not a NASA rule, even though the statute says your entitled to it. There’s lots of ins and outs and also that little wrinkle about does your clock start on the day that you decide not to ask debrief questions, the the issue that came up in the federal circuit case. So clarifying a lot of different things, I’ll try to do that in my comments on the rule.
Tom Temin: And just listening to you and having covered this whole topic for so many years, then now strikes me that your debriefing and possible protests strategy should be integral to the planning of your whole bidding process, shouldn’t it?
Jeff Chiow: Yeah. I like to talk about pre-award bid protest thinking and adding that as part of your capture planning. But absolutely, you’ve got to be thinking about bid protest, if you’re going over after anything that matters to you in the federal space.
Tom Temin: Got it. Jeff Chiow is co-chair of the Government Contracts Practice at the law firm Rogers, Joseph O’Donnell. Thanks so much for joining me.
Jeff Chiow: Thanks, Tom.