Notifications and debriefings provided to offerors regarding the success or failure of their proposals play a key procedural role in negotiated procurements. For successful offerors, the contracting officer (CO) provides an executed contract or other such notice of award. Meanwhile, unsuccessful offerors receive notifications about their exclusion from award consideration and, if requested, debriefings that can provide valuable insight into why their proposals were not selected for award. Thus, pre and post-award notifications and debriefings play a vital role in promoting transparency and integrity of the procurement system. Accordingly, the Federal Acquisition Regulation (FAR) requires COs to provide timely notifications to offerors regarding the success or failure of their proposals. Pre-award notifications are provided to unsuccessful offerors when their proposal is excluded from the competitive range or otherwise eliminated from award consideration before the final award. On the other hand, post-award notifications are sent to both successful and unsuccessful offerors advising them of the award decision.

Notifications to Successful and Unsuccessful Offerors

When offerors are excluded from the competitive range before an award is made, FAR 15.503(a)(1) requires the CO to promptly notify them of their elimination in writing. The FAR requires such notifications to include mandatory information relevant to the acquisition while expressly prohibiting the disclosure of certain other types of information, such as privileged and confidential business and financial information of competing offerors. The pre-award notification must advise the unsuccessful offeror that the government will not consider proposal revisions and provide a supporting rationale or basis for the adverse decision. For offerors in the competitive range that were not selected for award or offerors that did not receive a pre-award unsuccessful offer notification, the CO must provide a written post-award notification within three days of the contract award. Pursuant to FAR 15.503(b), this notification must include the following information:

• The number of offerors solicited.
• The number of proposals received.
• The name and address of each successful offeror.
• The items, quantities, and unit prices for each award. If listing unit prices is impractical – the total contract price.
• The reason the offeror’s proposal was unsuccessful, unless the reason is readily apparent from the price information provided.

Debriefings to Unsuccessful Offerors

FAR 15.505(a)(3) makes it clear that offerors are only entitled to receive one debriefing for each proposal they submit. Thus, depending on the type of procurement at issue, unsuccessful offerors may be entitled to receive a pre or post-award debriefing in addition to the notification of unsuccessful offer.

Pre-Award Debriefings

To request a pre-award debriefing, a contractor must send a written request for a debriefing to the CO within three days of receiving the unsuccessful offer notification eliminating them from the competitive range. The procuring agency may refuse a pre-award debriefing for compelling reasons, provided that the supporting rationale for the delay is documented in the contract file and that the debriefing is eventually provided by the time post-award debriefings are concluded. Pre-award debriefings must, at a minimum, include the procuring agency’s evaluation of the significant elements of the unsuccessful offeror’s proposal. Additionally, pre-award debriefings must include a summary of the rationale or basis for eliminating the unsuccessful offeror from the competition. Finally, during pre-award debriefings, the procuring agency must provide reasonable responses to relevant questions raised by the unsuccessful offeror as to whether the government followed source selection procedures and applicable procurement rules and regulations in making the adverse decision.

Post-Award Debriefings

Post-award debriefings must be requested within three days of receiving notice of unsuccessful offer. Whenever practicable, procuring agencies must provide post-award debriefings to unsuccessful offerors within five days of receiving the written request for a debrief. FAR 15.506(d) mandates that post-award debriefings include the following information:

• If applicable, the government’s evaluation of the significant weaknesses or deficiencies in the unsuccessful offeror’s proposal.
• If applicable, the overall evaluated cost or price and technical rating of the successful offeror compared to that of the debriefed offeror.
• Past performance information on the unsuccessful offeror being debriefed.
• Overall ranking of all offerors.
• A summary of the rationale or basis for the award decision.
• For commercial item acquisitions, the make and model of the item to be delivered by the successful offeror.
• Reasonable responses to relevant questions regarding the government’s adherence to source selection procedures and applicable procurement rules and regulations.

Restrictions on Disclosure of Information During Debriefings

There are restrictions on the government’s disclosure of certain types of information in both pre and post-award debriefings. In pre-award debriefings, agencies are expressly prohibited from disclosing the number or ranking of other offerors. Additionally, the content or evaluation of other offerors’ proposals may not be discussed, along with any other information, the disclosure of which would be prohibited in a post-award debriefing. While unsuccessful offerors receive more information in a post-award debriefing than in a pre-award debriefing, restrictions on disclosure of certain types of information still apply. During post-award debriefings, the government may not disclose trade secrets, privileged or confidential manufacturing processes or techniques, or confidential commercial or financial information, including breakdowns of cost elements, indirect rates, profits, etc. The government may also not disclose the names of the individuals providing an offeror’s past performance reference information, along with any other information, the disclosure of which would be prohibited under applicable law or regulation.

Information obtained from notifications and debriefings can help unsuccessful offerors identify potential bid protest grounds. While COs may sometimes accommodate late requests for debriefings, unsuccessful offerors should make timely requests for debriefings to adequately preserve their bid protest options. When unsuccessful offerors anticipate filing a bid protest at the Government Accountability Office (GAO), they should request a pre-award debriefing when first available, as the “debriefing exception” may impact their ability to file a timely protest at the GAO. However, in procurements where the unsuccessful offeror does not expect to file a bid protest at the GAO due to a business decision or other reasons, the offeror may benefit from opting to receive a post-award debriefing, which provides additional information and context about the adverse decision. Finally, contractors participating in FAR 8.4 federal supply schedule (FSS) procurements should be mindful that they are not entitled to a debriefing but rather a “brief explanation” which may be provided with the initial notification of unsuccessful offer and impact their ability to file a timely GAO bid protest.

Pre and post-award notifications and debriefings provide offerors valuable insight into their proposals and the procurement process. Thus, contractors should make timely requests for debriefings upon receiving the notification of unsuccessful offer, as the government is not required to provide a debriefing in the absence of such a request. While debriefings may be conducted orally, in writing, or in any other way the CO deems acceptable, contractors should be aware that a summary of the debriefing is always included in the contract file. To ensure the effectiveness of their debriefings, contractors should always request information they are entitled to and ask relevant questions regarding the government’s adherence to source selection procedures, applicable regulations, and evaluation criteria outlined in the solicitation. By understanding this framework and seeking counsel as soon as they receive the initial notification of unsuccessful offer, contractors can preserve their protest options while maximizing the effectiveness of their debriefings.

This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.