Evaluation Disputes Protecting Reputation of Government Contractors

The Contract Disputes Act (CDA) creates the framework for handling “claims” against the government on Federal contracts. Contract claims most commonly relate to issues of time or money. But not all claims are so straightforward.

The law is increasingly recognizing a contractor’s right to use CDA claims to challenge erroneous performance evaluations issued by Federal agencies on public contracts. Most performance evaluation claims do not involve adjustments to contract time or compensation. Instead, the heart of the matter is the contractor’s dissatisfaction with arbitrary and capricious evaluations. The purpose of the claim is to compel the agency to modify the evaluation to reflect the contractor’s actual performance.

The importance of performance evaluation claims is significant and far-reaching. A negative performance evaluation—or worse, a recommendation against future performance—can ruin a contractor’s ability to get new work (the life-blood of every government contractor).

Slowly, but steadily, the United States Court of Federal Claims (COFC) and Agency Boards of Contract Appeals are opening the door to relief for contractor claims based on arbitrary and capricious past performance evaluations—including the potential for recovering monetary damages that flow from erroneous evaluations.

PAST PERFORMANCE

Federal agencies evaluate contractor performance through the Contractor Performance Assessment Reporting System (CPARS or CPAR System). All Federal agencies access and rely on information in the CPAR System when assessing a contractor’s “Past Performance” and fitness for a new contract award. In fact, the majority of competitive solicitations include Past Performance as an evaluation factor.

Understanding how the CPAR System works—and how to challenge erroneous CPARS evaluations—is essential for contractors that want to compete in the extremely competitive Federal marketplace.

RATINGS AND NARRATIVES

The Federal Acquisition Regulation (FAR) (specifically, FAR 42.1503) requires agencies to collect contractor performance data for use in source selection decisions. By relying on this data, the Government theorizes that it increases the odds of doing business with contractors that provide quality products and services.

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