October 14, 2017 The Procurement Lawyer

Performance Evaluations: Leveling the Playing Field

by Kathryn T. Muldoon Griffin, Erica J. Geibel, and Todd M. Garland

Kathryn T. Muldoon Griffin is a partner, Erica J. Geibel is of counsel, and Todd M. Garland is an associate at Smith Pachter McWhorter, PLC, in Tysons Corner, Virginia.

The Federal Acquisition Regulation (FAR) requires federal agencies to evaluate contractor performance and report the evaluations in the Contractor Performance Assessment Reporting System (CPARS), a government-wide database.1 It provides detailed requirements for agencies to follow in preparing evaluations, including the requirement to justify ratings with sufficient written narratives and “objective facts.”2 The FAR puts teeth in the CPARS evaluations, requiring federal agencies to consider past performance as part of source selection decisions.3 Although inaccurate evaluations may hinder the government’s ability to make “wise” source selection decisions, the inaccuracies can have a disproportionally negative impact on contractors. Administrative and legal avenues exist for contractors to challenge evaluations, but contested evaluations remain in the government’s CPARS pending resolution of the challenge.

A recent U.S. Department of Defense Inspector General (DoD IG) report found that, within DoD, officials failed to comply consistently with requirements for evaluating contractor performance.4 According to the DoD IG, agency officials repeatedly failed to “prepare written narratives sufficient to justify the ratings given,” as required by the FAR; failed to “rate required evaluation factors”; and failed to prepare evaluations for all contracts for which evaluations are required.5 The DoD IG focused on the consequences to the government but did not address the impact of these significant shortcomings on contractors.

The importance of accurate evaluations to contractors has not been lost on the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), U.S. Court of Federal Claims (COFC), and boards of contract appeals. After initially questioning whether performance evaluation challenges could be cognizable claims under the Contract Disputes Act (CDA),6 these tribunals now treat the challenges as they would any other claim. Since 2009, the COFC and the Armed Services Board of Contract Appeals (ASBCA) have regularly exercised juris- diction over appeals of con- tractor claims involving CPARS challenges (CPARS claims). To date, neither has issued a decision on the merits of a CPARS claim. Instead, the decisions have addressed jurisdictional challenges raised by the government, including assertions that contractor challenges to performance ratings are administrative matters rather than cognizable CDA claims, that the relief sought by the contractor is not available, or that the complaint fails to include allegations sufficient to state a claim.A possible reason for the absence of decisions on the merits is that government agencies have been more willing to consider contractor justifications for changing evaluations and resolve the CPARS claims by agreement — short of trial — after jurisdictional questions are decided in the contractor’s favor.

A Procurement Lawyer article, “Challenging Negative Performance Evaluations: Confronting Hurdles at ASBCA and COFC,” summarized the state of the law regarding CPARS challenges as of mid-2015.Since then, case law has continued to develop. Among other developments described below, the Civilian Board of Contract Appeals (CBCA) confirmed its jurisdiction to decide appeals involving contractor performance evaluation challenges; the ASBCA found that a monetary claim based on the estimated costs to be incurred as a result of a negative performance evaluation is a valid claim under the CDA; and the COFC further explained why a CDA claim, rather than a bid protest, is the appropriate avenue for adjudicating CPARS claims.

Premium Content For:
  • Public Contract Law Section
Join - Now