Maria is a partner and the Chair of the Government Contracting department. She focuses her practice exclusively on federal government contracting and procurement, guiding her clients throughout the entire lifecycle of their...Read More by Author
Armed Services Board of Contract Appeals Reaffirms Jurisdiction Over Contractors’ Challenges to CPARS, But Notes Limitations
Any government contractor knows that Contractor Performance Assessment Rating System (“CPARS”) evaluations can make or break you. Your past performance ratings impact your ability to secure future work for the federal government and are critically important to your success in the field of government contracting. So what do you do when an agency gives you unfair, biased, or inaccurate negative CPARS ratings that could hurt your chances of getting work in the future? You challenge them, of course!
Your first step is always to respond to the negative CPARS evaluation in the system itself. Once a CPARS evaluation has been completed by the agency, you will receive notification that an evaluation has been submitted. At that time, you are able to submit comments, rebut statements, or provide additional information in an attempt to challenge any negative ratings received. You have to act fast, though. The evaluation is automatically published on PPIRS after 14 days, so make sure you get your rebuttal in before that time! If you raise a challenge to your evaluation, an agency is required to review the situation, using someone a level above the Assessing Official who authored the initial evaluation. In other words, someone higher up the chain has to take a look and see whether or not he/she believes that the negative CPARS given by the Assessing Official was justified, or unfair. In many cases, this may clear up the issue and result in a corrected evaluation. But if it does not, you are not out of options. You may be able to file a claim challenging the negative performance evaluation using the procedures outlined in the Contract Disputes Act.
A recent Armed Services Board of Contract Appeals case reaffirms that the Board has jurisdiction to hear such a claim. In Cameron Bell d/b/a Gov Solutions Group, ASBCA No. 61856 (May 1, 2019), a contractor challenged the negative CPARS ratings it had received from an agency. The agency moved to dismiss the contractor’s claim, arguing that the Board did not have jurisdiction to hear such a challenge. The Board expressly disagreed. It explained that it had jurisdiction to assess whether the contracting officer acted reasonably in rendering the performance rating, or, in the alternative, acted arbitrarily and capriciously and abused his discretion in giving the contractor negative ratings. The Board also added that it had the power to consider whether the agency had breached its duty of good faith and fair dealing. This is all good news for contractors –it reaffirms that a contractor may file claims against a federal agency based on unfair or inaccurate evaluations, and also confirms the availability of good faith and fair dealing claims in the CPARS context.
However, the Board did note some limitations on a contractor’s ability to challenge negative CPARS. Specifically, the Board explained that it did not have the power to order specific performance, and could not, therefore, order the government to issue a revised CPARS. The Board could only remand to the contracting officer, requiring him/her to follow the applicable regulations and provide a fair evaluation. Moreover, the Board noted that, because the contractor had not asked for any monetary damages, the Board lacked jurisdiction to award monetary damages.
Does the decision in Cameron Bell mean that a contractor can never recover damages in connection with a negative CPARS claim? Well, not necessarily. There is at least one Armed Services Board of Contract Appeals case that suggests that recovery of certain monetary damages may be possible. Specifically, in Government Services Corp., ASBCA No. 60367 (June 22, 2016), a contractor sought $100,000 in monetary damages. This amount represented the administrative and legal costs the contractor estimated that it would incur in order to “counter the apparent bad faith libelous actions” of the agency in providing an unjustified negative rating. In effect, the contractor sought to recoup the costs it anticipated incurring in order to rebut or otherwise explain its negative CPARS ratings on future proposals, or address the issue in related bid protests. The agency argued that the contractor’s claim for “estimated” damages should be dismissed because it did not include a “sum certain.” The Board denied the government’s motion to dismiss, explaining that the contractor’s use of “estimated or approximate costs” was permissible, because it still stated a specific amount.
So what does this mean for you? It means you have rights and remedies if you receive a negative CPARS evaluation that you believe is biased, unfair or inaccurate. The key to success in this context is understanding how to utilize those rights and remedies, when to use them, and the proper way to file a claim. If you have questions about the CPARS process, or CPARS claims, contact a legal professional.