For federal contractors, past performance looms large. Positive past performance can earn awards; poor past performance, on the hand, can lose them. For that reason, contractors should zealously respond to any negative evaluations posted to the government-wide Contractor Performance Assessment Reporting System (CPARS).
Not much can be done for a deserved negative evaluation. But what about an unfair evaluation–one that fails to provide a holistic and balanced report or that ignores key facts? Is there any recourse?
Yes, and here we discuss the primary means for challenging negative evaluations.
There are two principal points where a contractor can either respond to or challenge an evaluation: after the evaluation is first drafted on CPARS and after an evaluation on CPARS becomes final. A contractor response is procedurally designed into the overall evaluation scheme; a challenge is more formal and demands a claim (and possibly an appeal) under the Contract Disputes Act.
Responding to negative evaluation
For every evaluation recorded in CPARS, a contractor should receive notice. Immediately after receipt, a contractor should review the evaluation, including ratings and the associated commentary.
If a contractor objects in any way to the evaluation–e.g., a low rating or misstated facts–it has 14 days to submit comments, rebutting statements, or additional information. At that point, the agency should automatically elevate the dispute to a level above the contracting officer for resolution. But contractors shouldn’t rely on at that happening as a matter of course! Communicate separately with the contracting officer to request that higher level review.
Now, when submitting comments or rebutting statements, contractors should avoid the urge of going on the attack! It makes more sense to strike an objective and professional tone. Facts, coupled with persuasive argument, will garner more points with the contracting officer and the reviewing official.
Hopefully, the reviewing official will take his or her task seriously and conduct a thorough assessment. This might involve discussing the issue with the contracting officer and other Government personnel, the contractor, or both. Ultimately, the reviewing official’s decision could affirm the evaluation, modify portions, or change it altogether. Once finalized, the evaluation will live on the CPARS for three years (most contracts) and six years (for construction and A/E contracts).
Challenging an Evaluation through a Claim and Appeal
If a contractor doesn’t find relief through its rebutting comments, there’s still another avenue: a formal contract claim (which we’ve discussed before).
Using this procedure, a contractor files a claim, under the Contract Disputes Act, with the contracting officer. In the claim, the contractor leverages facts, legal authority, and other sources (e.g., the CPARS guidance) to thoroughly explain why the agency’s evaluation was unreasonable, arbitrary, or capricious. Put simply, the contractor tells the Government–in a matter of fact way–how it got the evaluation wrong.
The contracting officer then evaluates the claim and issues a final decision, as she would for a monetary claim. It’s possible that the contracting officer could reverse course and rewrite the evaluation. Or maybe she makes some changes, but not all. Or she could stand firm on the evaluation as written.
So, what happens if you’re not satisfied with the contracting officer’s final decision? At that point, it’s time to appeal the decision to a board of contract appeal (ASBCA or CBCA) or the Court of Federal Claims. In one of those forums, the contractor would engage in traditional-style litigation before neutral judges. To that end, it would file a complaint, conduct discovery, and ultimately participate in a hearing.
If a contractor persuades the board or Court that an evaluation was unreasonable, what happens then? Well, neither board nor the Court will redraft the evaluation; nor will tell the agency exactly how to rewrite it. But it might issue a declaratory judgment holding that the evaluation is arbitrary and capricious. Or it might remand the evaluation to the agency for another try; in theory, the agency will use the court-ordered second go-around to consider all the issues raised by the contractor in the appeal.
In the end, there’s no reason for a contractor to resign itself to an unfairly conducted evaluation. A contractor can challenge the evaluation before it goes live on CPARS, file a claim afterwards, and, if necessary, file an appeal.
If you have any questions about responding to a draft CPAR, filing a claim, or an appeal, contact us at 913-354-2630.