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AspiringGovKr

Awardee Debrief

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As a matter of practice, my company requests formal debriefings whether we are the successful or unsuccessful awardee.  The most recent written Debriefing included a side by side comparison of our successful offer against the unsuccessful offeror’s proposal. The chart had both company’s adjectival evaluations as well as the total contract value (TCV). My question is whether the unsuccessful offeror’s TCV should have been deemed confidential (and an exception to FOIA disclosure). The technical solution was complicated enough that I could not back into unit prices but it does provide substantial feedback as to their pricing choices and structure. Please provide your learned insight (and references to areas you might suggest I further research if you are so inclined.) I have not distributed the written Debrief as I wanted to research first.  thanks!

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If the Government has given you the written debriefing, then it is public information.

The guidelines on what should be included in a required debriefing, and what must not be included, may be found in FAR 15.506(d) and (e), respectively.  It may be that your contracting officer hasn't read these paragraphs, and may have erred in revealing an unsuccessful offeror's information.

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Thank you! It seems to me that the issue is whether the unsuccessful offeror’s TCV is still confidential/proprietary when it is aggregated in one $. If so then the CO should not have provided it to the awardee. I can find many cases dealing with out Year unit prices of the awardee as being confidential/proprietary (exception under FOIA) but nothing regarding unsuccessful offeror’s pricing.

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You don’t have a problem.  The Government released the data.  If there was an error, it was a Government error.  You may share the debriefing document with others in your company as you normally would.  For all you know, the unsuccessful offeror may have already consented to the release of the information.  

Nothing in FAR 15.506(d) contemplates release of any unsuccessful offeror information to any other offeror — not the identity, overall evaluated cost or price, or ratings.  However, 15.506(d) lists minimums, not maximums.  Maybe 15.506(e) is more problematic, but it isn’t your problem.

This is not legal advice, and I am not an attorney.  If you want legal advice, you will want to look elsewhere.  

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I caution against over-relying on FAR 15 for this, unless you are sure FAR 15 procedures were used.  The vast majority of contracts do not use FAR 15 procedures (in HHS, my best estimate is less than 4% of new contract actions are straight FAR 15).

FAR 3.104 is worth a read.  As a CO, its very unclear to me what exactly can and cannot be disclosed in a debrief - other than if you guess wrong and disclose too much its instant death

 

 

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All required debriefings are given under FAR 15.506.

Simplified acquisitions, orders against federal supply schedules, sealed bids, and fair opportunity considerations under $5.5 Million do not require debriefings.  Anything given for these is not a "required" debriefing.

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On ‎9‎/‎25‎/‎2019 at 9:54 PM, ji20874 said:

All required debriefings are given under FAR 15.506.

Simplified acquisitions, orders against federal supply schedules, sealed bids, and fair opportunity considerations under $5.5 Million do not require debriefings.  Anything given for these is not a "required" debriefing.

ji20874 is 100% correct. We do tend to jump around the FAR parts during an acquisition , but FAR 15 covers the "required" debriefs. 

On ‎9‎/‎25‎/‎2019 at 12:50 PM, AspiringGovKr said:

Thank you! It seems to me that the issue is whether the unsuccessful offeror’s TCV is still confidential/proprietary when it is aggregated in one $. If so then the CO should not have provided it to the awardee. I can find many cases dealing with out Year unit prices of the awardee as being confidential/proprietary (exception under FOIA) but nothing regarding unsuccessful offeror’s pricing.

I am no expert  in this field, but the time I have spent in it tells me you might be dealing with a rookie that has been assigned paperwork duties. Just gave you everything they had, as oppose to discerning what should and should not have been provided. 

Once again, ji20874 is correct. Not your problem. 

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