December 11, 2020 article

Challenging Unfair CPARS Evaluations

Dorn C. McGrath and Ken M. Kanzawa

Back in 1928, the federal government questioned the wisdom of emphasizing past performance to measure a prospective construction contractor’s capability. Times have changed. Today, past performance is a mandatory and often deciding factor in awarding most federal contracts and task orders. To facilitate consideration of past performance in the award process, agencies must prepare performance evaluations for construction contracts valued at $700,000 or more, and for each construction contract terminated for default, using the Contractor Performance Assessment Reporting System (“CPARS”). These CPARS ratings and evaluations (“reports”) serve as a primary source of past performance information.

Issued at least annually and at the time work is completed, CPARS reports assess contractors on a scale of Exceptional, Very Good, Satisfactory, Marginal, and Unsatisfactory across categories, including Quality, Schedule, Management, and Regulatory Compliance. Depending on contract requirements, rating categories also can include Small Business Subcontracting, Cost Control, and up to three other areas. The CPARS assessing official’s comments should support and justify ratings, and are followed by an overall standardized recommendation: “Given what I know today about the contractor’s ability to perform in accordance with this contract or order’s most significant requirements, I [would, or, would not] recommend them for similar requirements in the future.”

Given the importance of CPARS reports for winning future federal business, government contractors should track trends in their evaluations and use them to identify areas for improvement. Moreover, contractors should ensure that each evaluation is fair and accurate. This is especially important because CPARS reports are long-lived: the government may use a report in source selections for six years from the completion of an evaluated construction contract or task order.

Unfortunately, getting an agency to reconsider or withdraw an unfair or inaccurate evaluation is no simple task. But contractors taking the following steps will be in a better position to manage their CPARS reports:

Before the Evaluation

Be proactive. During project startup, meet with your government counterparts to discuss how project accomplishments will be reflected in CPARS. Ask whether CPARS evaluations are tied to payment or incentives. During performance, keep an open dialog with the government. Promptly address performance issues and apprise the government of corrective measures. An up-front mutual understanding of expectations, followed by consistent communications, can help avoid surprises. Do not wait to get your first feedback in the form of a bad CPARS report.

Provide input. While a project is ongoing, consider providing the government with factual information that would support a favorable CPARS report, particularly to show that performance has been better than merely “Satisfactory.” Remember that CPARS is one more duty assigned to already over-subscribed government officials. Useful input from the contractor can assist when it comes time to prepare interim or final CPARS reports.

Read the rules. Familiarize yourself with (1) Federal Acquisition Regulation (“FAR”) subpart 42.15 and (2) the government’s guidance for preparing CPARS reports, available at https://www.cpars.gov/documents/CPARS-Guidance.pdf. Knowing the rules will help you focus on the specific aspects of contract performance that will be rated, and prepare you to identify inaccurate or unfair performance evaluations worth disputing.

Responding to a CPARS Report

Once the government issues a CPARS report, you can state your concurrence or non-concurrence with the evaluation and enter comments in response. Take advantage of this opportunity, even after a favorable evaluation. Here’s why: projects receiving positive CPARS reports can be featured in future proposals. For these projects, your response allows you to highlight accomplishments for selection boards and to expand on the assessing official’s narrative, often without counting against future proposal page limits. For unfavorable CPARS reports, on the other hand, your response can help manage fallout, or even simply set the record straight. Whatever the ratings, a well-organized and detailed response is key.

Act quickly. The clock is ticking. Although you have 60 days from the issuance of a CPARS report to enter a response, you have just 14 days before the report goes live (i.e., becomes available government-wide for use in source selections). If submitted promptly, your non-concurrence and “contractor comments” can delay the agency’s posting of unfavorable ratings to the CPARS pending revision. Make sure that your designated employee timely acts on any notification that an evaluation is ready for comment. If you miss the initial 14-day period, still take advantage of the opportunity to provide comments within the 60 days.

Request a meeting. In addition to submitting contractor comments, you should request to meet with the contracting agency to discuss the CPARS report. Under government guidance, you have seven days to make this request. When disputing a report, schedule the meeting as soon as possible, within the 14-day holding period, to present your rebuttal in advance of written comments. If a meeting is not possible until after the evaluation goes live, do not wait to submit your written response.

When disputing ratings or narratives, do not “concur.” When responding to a CPARS report, you will be presented with the option to check one of two boxes: the contractor “concurs” or “does not concur.” If disputing the evaluation, mark the “does not concur” box. This should trigger a first review within the government.

Request review at a level above the contracting officer. In addition to marking the “does not concur” box, when disputing a CPARS report, you should also request in your written comments a review “at a level above the contracting officer.” A supervisory contracting official (acting as the reviewing official, who may not be as close to the project details) might provide a more neutral perspective.

Be factual. Take a professional tone. Address all issues with the government’s ratings and assessing official comments. When disputing a CPARS report, a convincing rebuttal should not just voice disagreement, but needs to show that the evaluation is unfair or inaccurate. For example:

  • Is the evaluation based on objective facts? Are rating categories and rating types (i.e., interim, final, addendum) used properly?
  • Does the evaluation address performance within the stated evaluation period and contract?
  • Does the evaluation fault the contractor for not exceeding contract requirements? Is the assigned rating consistent with the definitions in FAR 42.1503, Table 42-1?
  • Is the government following its own CPARS Guidance?

Although the CPARS module will not let you upload them, cite documents when possible to refute inaccurate statements or characterizations.

Know your audience. Your audience is two-fold: (1) the agency’s reviewing official, and (2) future source selection officials government-wide. The reviewing official likely will be less familiar with day-to-day contract performance than the assessing official. A source selection official from another agency will be even less familiar. So although your response should cite documents as support when possible, do not exclusively rely on them to speak for themselves. Explain why they support your position. Only the contractor’s narrative entry, not referenced documentation, will be visible to officials accessing the CPARS for source selection use.

Filing a Contract Disputes Act Claim

If meetings with the government and a well-written response fail to elicit the desired change in a CPARS report, you might simply “shrug it off” and turn your attention to improving performance for the next evaluation. Not all would be for naught: your contractor comments will be visible to future selection boards and may assist them in determining how much weight to give the CPARS report as compared to other past performance information.

But should you still take issue with a CPARS report, you can challenge it by filing a claim with the contracting officer pursuant to the Contract Disputes Act (“CDA”), asserting that the evaluation is unfair, inaccurate, arbitrary, or capricious, and requesting a final decision withdrawing or revising the evaluation. A standalone CPARS claim need not seek damages.Even though the contracting officer may have been the assessing official, filing a “claim” and requesting a “final decision” is separate from the contractor comments process, and required under the CDA. Your claim should carefully address any factual or procedural errors and cite governing regulations in FAR subpart 42.15. The claim, however, is not subject to the technical limitations of the CPARS module, and so supporting documentation can, and should be, attached to the claim. If the contracting officer issues an adverse final decision or fails to timely issue a decision, you can either appeal to a Board of Contract Appeals or file suit in the U.S. Court of Federal Claims.

Neither a Board nor the Court will rewrite a CPARS report, but they can issue declaratory relief if a CPARS report was unfair, inaccurate, arbitrary, or capricious.The Armed Services Board of Contracts Appeals, moreover, has stated it will send a CPARS report back to the contracting officer with a requirement to follow applicable regulations and provide a fair and accurate performance evaluation. But to succeed you should not rely on only procedural errors. You should further show prejudice, i.e., that the ratings and evaluations would have been different but for the demonstrated errors in the CPARS report.

Declaratory relief, even in the absence of a reevaluation, could be cited in proposals to disclaim any inaccurate CPARS ratings, or in a bid protest to challenge an agency’s evaluation citing the CPARS report. Yet, relevant case law is still developing. Because CPARS ratings are often negotiated as part of settlements, there remains to be seen a definitive Board or Court decision focusing primarily on the merits of a CPARS report.

Conclusion

Competitions for federal contracts can be close, and awards can turn on even a single CPARS evaluation. To put yourself in the best position possible, contractors are well-advised to take a proactive approach to managing CPARS reports. Left unattended, an unfair or inaccurate evaluation can come back to haunt a contractor for years to come.

Entity:
Topic:

Dorn C. McGrath

Kelley Drye & Warren LLP, Washington, DC, Division 13 (Government Construction)

Ken M. Kanzawa

Kelley Drye & Warren LLP, Washington, DC, Division 13 (Government Construction)