Government Contract Attorneys, SDVOSB Law: Government Contracts Attorneys | Lawyers

Challenging CPARS Past Performance Evaluation

Federal Government Contract Attorneys - CPARS

A satisfactory past performance record is increasingly important in today’s competitive marketplace. Historically, the Government maintained several past performance databases – CPARS, ACASS and CCASS.  These databases have now been merged into CPARS - Contractor Performance Assessment Reporting System.  Once past performance evaluations are completed, the Government can retrieve them from another database called the “Past Performance Information Retrieval System (PPIRS).”   The plan is to eventually merge PPIRS into CPARS as well, so there is a single database.

The Government has published the following documents on CPARS:

CPARS Guidance Manual

CPARS User Manual

This information could make or break a contractor’s chances of future contract awards.  It is therefore important that you know what your rights are if you get an unfavorable past performance evaluation.  Attorneys at our firm can assist in challenging a poor CPARS evaluation.  Please contact us for a free consultation by one of our lawyers.

Past Performance Evaluation Procedures

FAR 42.1503 sets forth the procedures for evaluating past performance and gives the contractor an opportunity to respond.  The following steps must be followed:

  1. Unless someone else is designated in the agency procedures, the Contracting Officer is responsible for evaluating past performance.
  2. The agency may perform interim evaluations.
  3. The evaluation should include a clear non-technical description of the principal purpose of the contract or task order. The evaluation must accurately depict the contractor’s performance. Evaluations based on speculation are improper.
  4. Evaluation factors for each assessment shall include, at a minimum, the following:  (i) Technical (quality of product or service); (ii) Cost control (not applicable for firm-fixed-price or fixed-price with economic price adjustment arrangements); (iii) Schedule/timeliness; (iv) Management or business relations; (v) Small business subcontracting (as applicable); and (vi) Other applicable factors.
  5. The agency shall promptly provide its evaluation of a contractor's performance, including both negative and positive evaluations. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment.
  6. Contractors shall be given up to 14 calendar days from the date of notification to submit comments, rebutting statements, or additional information. [CPARS Manual says contractors have up to 60 days to respond, but if they do not respond within 14 days, evaluation is sent to PIPRS as “pending” but can still be relied upon in source selection decisions].
  7. A person a level above the contracting officer must consider disagreements between the parties regarding the evaluation.
  8. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation.
  9. The Government then prepares and submits the past performance evaluation electronically in the CPARS. This evaluation, plus any contractor comments, are automatically transmitted to PPIRS.
  10. The Government shall use the past performance information in PPIRS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS) e.g., terminations for default or cause.

Disputing a CPARS Past Performance Evaluation

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. 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.

This holding is instructive – 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.  If you cannot not resolve the disagreement, you should contact an experienced Government Contract attorney to assist you in an appeal to the Court of Federal Claims or Board of Contract Appeals.  We are here to help.

 

© Copyright 2017 Government Contract Attorneys, SDVOSB Law | WWW.SEEKATTORNEY.COM™
This website does not provide legal advice or establish an attorney-client relationship.