How to Contest a CPARS Evaluation
What do I do after getting an unfavorable CPARS evaluation?
When rating a contractor, either at the interim or final phase of a contract, the Contracting Officer or Contracting Officer's Representative is tasked with rating a contractor's performance. Let's face it, an evaluation is subjective in many cases. If you disagree with an evaluation, the first step is to file a rebuttal statement via the CPARS system. The CO's superior, or "reviewing official," will review the contractor's rebuttal statements and decide if any of the ratings should change. Most of the time the ratings do no change. After all, the Contracting Officer and Reviewing Official are working for the same office. Having said that, this is the opportunity to attempt to reach a compromise by having the ratings changed. If you are unable to reach a compromise with the Government, then as discussed below, you have the right to litigate.
Challenging a CPARS Evaluation Via Litigation at Board of Contract Appeals or Court of Federal Claims
Both the Court of Federal Claims and the Boards of Contract Appeals have accepted jurisdiction to hear disputes over a contractor’s past performance evaluation. The contractor must first submit a CDA claim asserting that the Government acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.
In the Appeals of PROTEC, ASBCA Nos. 61161, et al. (May 30, 2018), the Armed Services Board of Contract Appeals held that it did not have jurisdiction to force the Army to revise a CPARS evaluation. However, the Board found that it could issue an order asking that the Army revisit the CPARS evaluation and provide a fair and accurate performance evaluation.
In BLR Group of America v. United States, 94 Fed. Cl. 354 (2010), the Court of Federal Claims noted that the past performance procedures set forth in FAR Part 42.15 are mandatory and should be read into the contract. A contractor’s claim that the Government did not fairly follow those procedures therefore establishes the right to file a claim under the Contract Disputes Act. Unfortunately, in the BLR case the contractor never submitted a request for a Contracting Officer's Final Decision and the case was dismissed on that basis.
In Todd Construction v. U.S., 656 F.3d 1306 (U.S. Ct. of App. Fed Cir. 2011), the contractor claimed that the Government failed to follow the procedural requirements in CPARS and improperly gave it poor ratings. The court denied the contractor’s claim. The contractor did not show that the Government’s evaluation would have been different if it followed the CPARS procedures. Additionally, the contractor could not prove that the Government abused its discretion when giving it a poor CPARS evaluation especially since the contractor admitted it was responsible for some of the performance delays. In this regard the court stated:
Todd also specifically admitted in the complaint that it delivered only "the majority [i.e., not all] of the [required] submittals" to the government on time. J.A. 107, 110. The performance evaluations do not specify how much delay the government attributed to Todd; they simply indicate that Todd's performance was untimely. To raise a plausible inference that the ratings were arbitrary and capricious, the contractor would, at the very least, need to allege facts indicating that all of the substantial delays were excusable. Todd has not done so, and we therefore agree with the Claims Court that its complaint was properly dismissed under Rule 12(b)(6).
Apart from Todd's allegations on delay, Todd also specifically asserts that its problems with subcontractors did not reflect poorly on its management or supervisory capabilities. Again, Todd's conclusory statement that the performance of its subcontractors could not reflect negatively on its own performance does not support a claim that its performance ratings for effectiveness of management and control of subcontractors should be changed.
Let Us Help
When challenging or disputing a CPARS evaluation be specific. Mere conclusory statements that the Government is wrong will not suffice. So, if you are not satisfied with the Government’s past performance evaluation, ask for a Contracting Officer’s Final Decision and be specific. You can, of course, always try to resolve your dispute before commencing litigation. We are here to help.
