Performance Evaluations: Leveling the Playing Field

Transcription

1 Performance Evaluations: Leveling the Playing Field By Kathryn T. Muldoon Griffin, Erica J. Geibel, and Todd M. Garland Kathryn T. Muldoon Griffin Erica J. Geibel The Federal Acquisition Regulation (FAR) requires federal agencies to evaluate contractor performance and report the evaluations in the Contractor Performance Assessment Reporting System (CPARS), a government-wide database. 1 It provides detailed requirements for agencies to follow in preparing evaluations, including the requirement to justify ratings with sufficient written narratives and objective facts. 2 The FAR puts teeth in the CPARS evaluations, requiring federal agencies to consider past performance as part of source selection decisions. 3 Although inaccurate evaluations may hinder the government s ability to make wise source selection decisions, the inaccuracies can have a disproportionally negative impact on contractors. Administrative and legal avenues exist for contractors to challenge evaluations, but contested evaluations remain in the government s CPARS pending resolution of the challenge. A recent U.S. Department of Defense Inspector General (DoD IG) report found that, within DoD, officials failed to comply consistently with requirements for evaluating contractor performance. 4 According to the DoD IG, agency officials repeatedly failed to prepare written narratives sufficient to justify the ratings given, as required by the FAR; failed to rate required evaluation factors ; and failed to prepare evaluations for all contracts for which evaluations are required. 5 The DoD IG focused on the consequences to the government but did not address the impact of these significant shortcomings on contractors. The importance of accurate evaluations to contractors has not been lost on the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), U.S. Court of Federal Claims (COFC), and boards of contract appeals. After initially questioning whether performance evaluation challenges Kathryn T. Muldoon Griffin is a partner, Erica J. Geibel is of counsel, and Todd M. Garland is an associate at Smith Pachter McWhorter, PLC, in Tysons Corner, Virginia. could be cognizable claims under the Contract Disputes Act (CDA), 6 these tribunals now treat the challenges as they would any other claim. Since 2009, the COFC and the Armed Services Board of Contract Appeals (ASBCA) have regularly exercised jurisdiction over appeals of contractor claims involving Todd M. Garland CPARS challenges (CPARS claims). To date, neither has issued a decision on the merits of a CPARS claim. Instead, the decisions have addressed jurisdictional challenges raised by the government, including assertions that contractor challenges to performance ratings are administrative matters rather than cognizable CDA claims, that the relief sought by the contractor is not available, or that the complaint fails to include allegations sufficient to state a claim. 7 A possible reason for the absence of decisions on the merits is that government agencies have been more willing to consider contractor justifications for changing evaluations and resolve the CPARS claims by agreement short of trial after jurisdictional questions are decided in the contractor s favor. A Procurement Lawyer article, Challenging Negative Performance Evaluations: Confronting Hurdles at ASBCA and COFC, summarized the state of the law regarding CPARS challenges as of mid Since then, case law has continued to develop. Among other developments described below, the Civilian Board of Contract Appeals (CBCA) confirmed its jurisdiction to decide appeals involving contractor performance evaluation challenges; the ASBCA found that a monetary claim based on the estimated costs to be incurred as a result of a negative performance evaluation is a valid claim under the CDA; and the COFC further explained why a CDA claim, rather than a bid protest, is the appropriate avenue for adjudicating CPARS claims. Background: The FAR s Performance Evaluation Requirements With limited exception, the FAR requires federal agencies to prepare past performance evaluations for contracts and orders that exceed the simplified acquisition threshold, and certain contracts terminated for default, regardless of value. 9 Agencies must prepare evaluations at least annually and when work is completed. 10 They also are required to assign responsibility and management accountability for the completeness of the Volume 53, Number 1 The Procurement Lawyer 7

2 evaluations and have procedures for obtaining input from the technical office, contracting office, program management office, agency labor compliance advisor office, and, where appropriate, quality assurance and end users of the product or service. 11 The FAR provides that evaluations should include clear relevant information that accurately depicts the contractor s performance, and be based on objective facts supported by program and contract or order performance data. 12 It also specifies the minimum evaluation factors: technical (quality of product or service); cost control (as DoD officials were found to have failed to prepare written narratives sufficient to justify performance ratings, to rate all required performance factors, and to prepare evaluations for all contracts requiring them. applicable); schedule/timeliness; management or business relations; small business subcontracting; and other (as applicable) (e.g., trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension, and debarments). It further specifies a five-level rating system ( exceptional, very good, satisfactory, marginal, and unsatisfactory ) and requires that the ratings assigned to each evaluation factor be supported by a narrative. 13 In addition to the minimum factors, some agencies include a recommendation section in which the individual assessing the contractor s performance (assessing official) indicates whether, given what [he or she] know[s] about the contractor s ability to perform in accordance with this contract or order s most significant requirements, the assessing official would recommend the contractor for similar requirements in the future. FAR tables 42-1 and 42-2 provide definitions for the ratings and other requirements for the supporting narratives. 14 For example, table 42-1 defines exceptional as Performance meets contractual requirements and exceeds many to the Government s benefit. The contractual performance of the element or sub-element being evaluated was accomplished with few minor problems for which corrective actions taken by the contractor were highly effective. To justify an exceptional rating, an agency must identify multiple significant events and state how they were of benefit to the Government. A singular benefit, however, could be of such magnitude that it alone constitutes an Exceptional rating. Also, there should have been NO significant weaknesses identified. On the other end of the spectrum, table 42-1 defines unsatisfactory as Performance does not meet most contractual requirements and recovery is not likely in a timely manner. The contractual performance of the element or sub-element contains a serious problem(s) for which the contractor s corrective actions appear or were ineffective. Although a singular problem... could be of such serious magnitude that it alone justifies an unsatisfactory rating, generally an agency must identify multiple significant events that the contractor had trouble overcoming and state how it impacted the Government. 15 In addition, the agency should support the unsatisfactory rating with references to the management tools used to notify the contractor of the contractual deficiencies (e.g., deficiency reports or letters). 16 Agencies input their evaluations in the CPARS and notify the contractor when the evaluations are available for comment. The evaluations are uploaded automatically to the Past Performance Information Retrieval System (PPIRS), including any contractor-submitted information, not later than 14 days after the contractor is notified of the evaluation s availability for comment. Procuring agencies use the information in PPIRS to evaluate offerors and ensure compliance with FAR requirements to consider past performance information prior to making a contract award. 17 Agencies must provide for review at a level above the contracting officer (reviewing official) to consider disagreements regarding the CPARS evaluation. 18 Agencies also must update PPIRS with contractor comments provided after 14 days, as well as any reviewing official or other agency response to the contractor comments. 19 The takeaways for contractors are (1) the FAR has clear rules regarding what the government must do to support an evaluation and (2) contractors have a limited time to provide comments to dispute inaccurate evaluations. Indeed, it often takes herculean efforts for contractors to respond to negative evaluations within 14 days because, among other reasons, the government has not provided the contractor with prior notice of perceived contractual deficiencies, does not issue the evaluation in a timely manner (e.g., over six months after the evaluation period ends), or does not support its ratings with appropriate narratives. Despite these government failures, reviewing officials add to the problems because they are often reluctant to correct the evaluations or address the contractor comments, opting to simply affirm the original evaluation. In these situations, contractors are forced to either allow the disputed evaluation to remain in PPIRS or seek administrative and legal avenues for correcting the evaluation. Recent Developments The May 2017 DOD IG Report. On May 9, 2017, the DoD IG issued a report describing the results of a threeyear audit of DoD s system for evaluating contractor performance. 20 According to the report, DoD officials (1) failed 8 The Procurement Lawyer Fall 2017

3 to prepare written narratives sufficient to justify performance ratings; (2) failed to rate all required evaluation factors; and (3) failed to prepare evaluations for all contracts required to be evaluated. In one instance, an assessing official rated the contractor s performance as marginal, which under the FAR requires the agency to identify a significant failure and how the failure impacted the Government. 21 The same official ignored the FAR requirements and, instead of explaining how or whether the alleged failure was significant, explicitly stated that the government was not impacted. In the example, the assessing official provided a marginal rating for the schedule evaluation factor even though the contractor was late on only 3 percent of its deliveries for hardware items. 22 The official effectively ignored the definition of a marginal rating when it admitted the contractor s minor delivery issues had no impact to the fielding schedule since... the contractor delivered adequate quantities of hardware to support fielding. 23 The DoD IG report emphasized the consequences to the government of these failures by assessing officials: Federal source selection officials did not have access to timely, accurate, and complete past performance assessment information needed to make informed decisions related to contract awards. In addition, unreliable data in CPARS may lead to awarding a contract to a poorly performing contractor. 24 The report does not mention the significant, adverse effect that incorrect or unjustified ratings have on contractors, such as the harm to a contractor s reputation and the considerable amount of time and expense that contractors may be forced to incur before persuading the agency to correct a rating. In contrast to the DoD IG report, unreliable data in the CPARS may lead an agency to decline award to a highly qualified contractor with minor past performance issues. Indeed, the FAR requirement for fair and accurate performance evaluations reflects a significant procurement policy that is aimed at both the Government and the individual contractor. 25 The FAR drafters even recognize that the procedures for collecting, recording and using past performance information... are extremely important to both the Government and to contractors, and requirements are necessary to help ensure their integrity and fairness. 26 The Civilian Board of Contract Appeals: Jurisdiction to Hear Performance Evaluation Claims. In Todd Construction, L.P. v. United States, 27 the Federal Circuit held that a contractor s challenge to a performance evaluation, seeking a ruling that an evaluation was unfair and inaccurate, constitutes a cognizable claim under the CDA. The court recognized that, under the FAR, the definition of a claim includes requests for other relief arising under or relating to the contract. 28 The Federal Circuit concluded that although unsatisfactory performance evaluations may not relate to the terms of the contract itself, they relate to [the contractor s] performance under the contract, which is sufficient for CDA jurisdiction. 29 Before October 2016, only the COFC and ASBCA had exercised jurisdiction over claims challenging a performance evaluation. Then, in Orr, the CBCA followed Federal Circuit, COFC, and ASBCA precedent, holding that contractor challenges to a performance evaluation are cognizable CDA claims. 30 For reasons unique to the contractor s claim, discussed below, the CBCA dismissed the appeal. A few months later, in Stobil Enterprise, 31 the contractor (Stobil) asserted that the CBCA had jurisdiction over a claim based on a government failure to issue a performance evaluation. Without deciding whether the allegations were actionable, the CBCA held that it lacked jurisdiction over the appeal because Stobil never submitted a claim to the contracting officer. 32 Most recently, in CompuCraft, Inc., 33 the contractor (CompuCraft) submitted a claim to the contracting officer alleging, inter alia, that the contracting officer s evaluation relied on inaccurate facts and conclusions. CompuCraft also alleged the evaluation would cause irreparable damage if it was not corrected or removed. The CBCA held that it had jurisdiction to the extent the contractor sought declaratory relief, and, quoting Todd, concluded that a contractor clearly has standing to sue the Government based on the substantive allegation that the Government acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation. 34 A CDA Claim Continues to Provide the Threshold Requirement for Jurisdiction. In the absence of a statutory definition, 35 the FAR defines a claim as a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in COMING ATTRACTIONS NOVEMBER 2 4, 2017 Fall Educational Program and Open Council Meeting Sealbach Hilton Hotel, Louisville, KY MARCH 14 17, th Annual Federal Procurement Institute (FPI) and Open Council Meeting Loews Hotel, Annapolis, MD APRIL 19 20, th Annual State & Local Procurement Symposium Detroit, MI AUGUST 2 4, 2018 Annual Meeting CLE Programming/ Open Council Meeting Chicago, IL Volume 53, Number 1 The Procurement Lawyer 9

4 a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. 36 There is no particular form or wording required, but a claim must provide adequate notice as to its basis and amount. 37 When challenging a performance evaluation, a contractor submits a sufficient claim by putting the government on notice that it disagrees with the evaluation. In MicroTechnologies, LLC, 38 the contractor (Micro- Tech) submitted a claim for damages associated with alleged government-caused delays, as well as revision of its CPARS evaluation. MicroTech described the reasons the government was responsible for the delays and argued that those same reasons supported MicroTech s claim that the Almost all decisions that have addressed contractor performance evaluation challenges involve nonmonetary claims in which the contractor sought declaratory relief. CPARS evaluation was erroneous and an abuse of discretion. 39 MicroTech also alleged that the CPARS evaluation violated the government s contractual obligation to provide a fair and accurate performance assessment. 40 On appeal before the ASBCA, the government moved for summary judgment. The government initially argued that MicroTech s CPARS challenge did not meet the definition of a claim, attempting to distinguish between a CPARS rating and an evaluation. 41 The government later abandoned the argument but continued to maintain that Micro- Tech s claim did not adequately identify the reasons for the contractor s challenge. The ASBCA disagreed, holding: MicroTech s claims provided a description of the allegedly flawed treatment it received from the Air Force and sought revision of its CPAR for those reasons and to reflect its actual performance. Thus, it notified the contracting officer of the basis of its claims, something the contracting officer seemed to acknowledge by treating the submissions as claims and denying them. 42 In Federal Contracting, Inc. v. United States, 43 the contractor (FCI) challenged the Army Corps of Engineers termination of its contract for default. FCI also submitted a claim requesting that the Corps interim unsatisfactory performance evaluation of FCI s performance be withdrawn as unfair, inaccurate, erroneous, biased, and an abuse of discretion. 44 The government argued that FCI never submitted a claim because it had merely requested withdrawal of the evaluation, which, according to the government, did not constitute a written demand as required by the FAR. 45 The court rejected the government s argument that contractors challenging performance evaluations must use specific language. Instead, the court examined the facts to determine whether FCI had clearly and unequivocally stated its disagreement with the government s performance evaluation and provided a clear indication of the relief sought. The COFC held that FCI s letters stating that it strongly disagreed with the interim evaluation and requesting withdrawal of the evaluation constituted a CDA claim seeking nonmonetary relief. 46 FCI s letters were sufficient to meet the requirement for a written demand seeking relief as a matter of right, and the contracting officer s response denying the FCI s request was sufficient to meet the final decision requirement. Simply stated, the court held: the government s argument that [the contractor] failed to meet the CDA s requirements because it couched its action as a formal request rather than a demand lack[ed] merit. 47 The ASBCA has held, however, that the CDA does not encompass allegations that the government s actions violated a contractor s constitutional rights, or that the government s actions constituted a constructive debarment. In Colonna s Shipyard, Inc., Colonna asserted that the contracting officer s statement in its evaluation that it would not recommend Colonna for future contracts is clearly designed to bar Colonna s from future government contracts. 48 Colonna also asserted a due process violation, arguing that the Navy did not afford Colonna the opportunity to hear and respond to the negative comments before the Navy finalized the CPARS. 49 The ASBCA dismissed the due process and constructive debarment elements of Colonna s complaint for lack of jurisdiction. CDA Jurisdiction Exists over the Entire Evaluation. Nearly three decades ago, the Federal Circuit made clear that tribunals reviewing a final decision under the CDA are free to accept or reject the contracting officer s conclusions because the decision is reviewed de novo. Citing the CDA, the Federal Circuit in Assurance Co. v. United States held that a reviewing tribunal has the power to reduce a contracting officer s award because where an appeal is taken to a board or court, the contracting officer s award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal. 50 In Wilner v. United States, the Federal Circuit further clarified that under the CDA, when suit is brought following a contracting officer s decision, the findings of fact in that decision are not binding upon the parties and are not entitled to any deference. 51 This rule is typically applied to monetary claims. In CompuCraft, 52 the CBCA applied these principles to an appeal of a contractor s nonmonetary claim challenging 10 The Procurement Lawyer Fall 2017

5 a performance evaluation. CompuCraft submitted a claim to the General Services Administration (GSA) contracting officer seeking to have its CPARS ratings changed from marginal and unsatisfactory to exceptional, very good, or satisfactory or, alternatively, to have its [r]atings [for this order] removed entirely from the CPARS website. 53 On the same day that CompuCraft submitted its claim, the contracting officer posted a modified evaluation on the CPARS website, changing all ratings to satisfactory, except in the area of management. 54 For management, the contracting officer continued to rate CompuCraft s performance as marginal. 55 On appeal before the CBCA, CompuCraft challenged GSA s evaluation in its entirety. CompuCraft asserted that its performance warranted exceptional ratings in each category. GSA argued that, because the contracting officer changed the ratings for CompuCraft to satisfactory in all categories except management, the only aspect of Compu- Craft s claim properly before the CBCA was whether the unchanged marginal rating was arbitrary and capricious. 56 Citing Assurance and Wilner, the CBCA held that its jurisdiction was not limited to the ratings the contracting officer refused to change. Rather, the CBCA s jurisdiction encompassed all of the ratings in the evaluation at issue in CompuCraft s claim. 57 A Contractor s Challenge to a Performance Evaluation Can Include a Request for Monetary Relief. Almost all decisions that have addressed contractor performance evaluation challenges involve nonmonetary claims in which the contractor sought declaratory relief. The one exception is Government Services Corp. 58 In this case, the contractor (GSC) submitted a claim for $100,000, alleging that a negative CPARS rating constituted bad faith and a breach of the duty of good faith and fair dealing owed by the government. 59 GSC described how it developed the $100,000 figure: The numerical calculation of $100, was derived by a simple mathematical formula of estimating the future expense, both administrative and legal, that is expected to be required to counter the apparent bad faith libelous actions of [the government] in the CPARS which are the subject of the claim. The good faith estimate was reached after considering the number and frequency of bid submittals by GSC on solicitations that require consideration of past performance ratings such as those contained within the CPARS. This calculation was then further refined by the applicable life of the subject CPAR (discounting the 15 month remaining suspension of GSC) and the cost[,] both administrative and legal, of addressing the issue with future Contracting Officers in the form of negotiations as well as protests. 60 The government argued that by estimating its damages, GSC s claim failed to include a sum certain as required by FAR In its June 2016 decision, the ASBCA rejected the government s argument, holding neither the CDA nor its implementing regulations require submission of a detailed cost breakdown or other specific cost-related documentation with the claim. 61 The ASBCA also rejected the government s assertion that by using the word estimate in its claim, GSC included the kind of qualifying language that can render a claim invalid. 62 The ASBCA affirmed that use of estimated or approximate costs in determining the value of a claim is permissible so long as the total overall demand is for a sum certain. 63 Even though GSC derived the $100,000 figure from estimated costs, GSC s claim still included a demand for payment of a specific amount, meeting the FAR s requirement that a monetary claim be for a sum certain. Contractors Must Show Prejudice or Some Discernable Injury Resulting from the Evaluation. In Todd, the Federal Circuit held that the procedures set forth in the federal regulations, a contract, or agency guidance for preparing, reviewing, and entering performance evaluations into CPARS are not fundamental procedural rights. 64 As such, when challenging an evaluation based on the government s failure to follow proper procedures in issuing the When challenging an evaluation based on the government s failure to follow proper procedures in issuing the evaluation, the contractor must show prejudice. evaluation, the contractor must show prejudice, i.e., that a different outcome would have resulted if the procedural violations were cured. 65 In the recent Orr appeal, the contractor (Orr) argued that the government failed to conduct the performance evaluation as required by the contract. Orr alleged that he was denied the opportunity to comment on the evaluation, he was not asked to sign or review the evaluation, and he did not know the evaluation existed until he submitted an invoice. 66 Citing Todd, the CBCA held that it lacked jurisdiction over these aspects of Orr s challenge to the evaluation. 67 According to the CBCA, the contractor s complaints were procedural missteps that did not prejudice Orr and thus did not give rise to a cause of action under the CDA. 68 The Appeal May Be Moot if the Government Can Show That It Removed the Evaluation from CPARS Volume 53, Number 1 The Procurement Lawyer 11

6 and Never Considered It. Also in Orr, the CBCA declined to address substantive challenges to the performance evaluation, which had become moot. 69 The contract involved a blanket purchase agreement (BPA) under which the government issued orders to clean equipment after fire suppression incidents. Orr alleged that a negative performance evaluation affected his ability to receive awards under the BPA. The government established (through a contracting officer declaration) that [the contracting officer] never acted upon the performance evaluation and never considered it when making future awards or developing performance ratings.... The contracting officer did not use the performance evaluation for any purpose, has now withdrawn it from Mr. Orr s contract performance file and destroyed it, and has attested that it will not be taken into consideration for any future awards or performance evaluations, and it will never be distributed, shared or utilized by any successor contracting officers. 70 The CBCA thus held that Orr was not prejudiced because the evaluation could have no effect upon Mr. Orr s ability to obtain future awards, meaning there was no actual controversy affecting any legally cognizable interest for the CBCA to review. 71 Forcing contractors to defer challenges to an evaluation until after unsuccessfully bidding on a future contract is both inefficient and unfair. Specific Performance and Injunctive Relief Are Not Available Remedies. Although the COFC and the ASBCA have uniformly held that neither tribunal has jurisdiction to grant specific performance or injunctive relief, contractors continue to seek orders directing the contracting officer to issue a certain rating, remove an evaluation from CPARS, or other similar relief. In Colonna s Shipyard 72 and MicroTechnologies 73 (both discussed above), instead of dismissing the appeals outright, the ASBCA struck portions of the complaints in which the contractors requested specific performance or injunctive relief. For example, MicroTech requested the ASBCA to declare that [its] CPAR is erroneous and remand the matter... back to the Contracting Officer and require the Air Force to provide MicroTech with a fair and accurate evaluation. 74 MicroTech conceded that the Board is not empowered to issue injunctions or require the government to take any action on the evaluation. 75 The ASBCA struck the corresponding paragraphs from the complaint but otherwise exercised jurisdiction over MicroTech s challenge to the evaluation. CPARS Challenges Cannot Be Adjudicated in a Bid Protest. In multiple decisions, the COFC has recognized the practical reasons for treating an evaluation challenge as related to contract performance, and thus addressable under the CDA, as opposed to considering the challenge as part of the court s bid protest jurisdiction. 76 A principal reason is that when examining the government procurement process as a whole, it makes the most sense for contractors to challenge an allegedly unfair and inaccurate performance evaluation as a contract-performance claim pursuant to the CDA at the time the [agency] issued the performance evaluation. 77 Forcing contractors to defer challenges to an evaluation until after unsuccessfully bidding on a future contract is both inefficient and unfair. First, as one commentator has noted, there is no question that bid protests can greatly disrupt the government procurement process, while CDA claims are typically nondisruptive. 78 Additionally, by forcing contractors to wait until after an unsuccessful bid, the contractor would be tethered to the inaccurate performance evaluation for an unspecified possibly lengthy period of time. 79 Finally, forcing contractors to wait makes it more likely that personnel changes and fading memories could hinder the contractor s chances for success. 80 Given the heavy burden faced by unsuccessful bidders challenging contract awards... challenges to performance evaluations are best made within the confines of the CDA. 81 Last year, in ITility, LLC v. United States, the COFC went beyond these policy considerations and concluded that a bid protest was not the appropriate avenue for challenging an evaluation, while also denying the contractor s request for injunctive relief with respect to a CPARS evaluation. 82 ITility involved a bid protest in which ITility sought to enjoin both the Air Force from continuing to publish a CPARS entry for ITility s performance and other agencies from reviewing the CPARS entry when considering ITility s pending bids. 83 ITility alleged that the CPARS was inaccurate and failed to consider agency-caused delay. The COFC held that ITility s performance evaluation challenge related to contract performance rather than an agency procurement decision. As a result, a CDA claim, not a protest, was the proper vehicle for settling the dispute. Moreover, because ITility failed to present evidence that the agency relied on the evaluation in considering ITility s offer, ITility s claim was not ripe for review. 84 Itility is distinguishable from Coast Professional, Inc. v. United States. 85 In Coast Professional, two contractors protested the U.S. Department of Education s decision not to issue award-term task orders based on audits of their 12 The Procurement Lawyer Fall 2017

7 performance. The contracts provided for a base term and included an option permitting the government to unilaterally extend the term. The contracts also included an Award Term Extension clause, which allowed the contractor to earn award-term extensions and options based on performance ratings. 86 The clause specified that [a]ny award term extensions awarded under this clause will be executed in the form of a new Task Order issued by the Contracting Officer under the Contractor s then current GSA schedule contract. 87 The Federal Circuit held that, unlike an option that does not result in a new contract or task order, the contract specified that an Award Term Extension constituted a new task order under a GSA schedule contract. 88 Thus, the past performance evaluation and the agency s Award Term Extension decision related to a proposed award or the award of a contract. For this reason, the court held a contractor s challenge to an award decision based on past performance falls within the court s Tucker Act bid protest jurisdiction, not within its CDA jurisdiction. CPARS Claims Are Seldom Candidates for Summary Judgment. CPARS claims often involve factual disputes over a contractor s performance, making the claims unlikely candidates for summary judgment. GSC Construction, Inc. 89 demonstrates the difficulty contractors face in obtaining summary judgment on claims challenging an evaluation. The Navy disputed GSC s allegations that the Navy committed procedural violations in the preparation and dissemination of the final performance evaluation. 90 The ASBCA refused to resolve the factual dispute, but also denied the motion because GSC wholly fail[ed] to proffer uncontested facts establishing that the Navy s violations had any substantive adverse impact on the ratings set forth in the performance evaluation. 91 GSC also alleged that the Navy s factual analysis and conclusions in the final performance evaluation were clearly erroneous and arbitrary and capricious. 92 According to GSC, the Navy failed to consider the adverse impact of changes, disputed work, defective specifications, and the Navy s administration of the contract on the contract work and schedule. 93 The ASBCA found that resolving the allegations necessarily require[d] an examination of the details of GSC s performance that underlie the Navy s adverse ratings. 94 The ASBCA thus denied GSC s motion because the adequacy and propriety of the evaluation [was] inextricably intertwined with the plethora of genuine factual issues presented in GSC s appeals. 95 In Colonna s Shipyard, the contractor (Colonna) moved for partial summary judgment, alleging, for example, that the evaluation was not factually correct and that the evaluation contain[ed] several factual errors. 96 Colonna s motion relied exclusively on references to the disputed CPARS and did not support its factual allegations with citations to the record, affidavits, or other evidence. In reply, the Navy disputed all of the material facts alleged by Colonna and submitted a declaration from its CPARS program manager in opposition to Colonna s motion. 97 Given Colonna s failure to support its factual allegations, the ASBCA could not find any facts in favor of Colonna. 98 It further found that there were material facts in dispute and denied Colonna s motion. 99 Conclusion The FAR specifically defines the ratings the government can give in a CPARS evaluation and minimum requirements for what the government must do to support a given rating. Assessing officials far too often ignore these definitions and requirements. The FAR, nevertheless, requires agencies to upload evaluations into CPARS within 14 days of notifying the contractor that the evaluation is available for comment. This means contractors have limited time to dispute inaccurate ratings before they are available to source selection officials. The Federal Circuit, COFC, and boards of contract appeals recognize the importance of the evaluations to contractors. These tribunals have jurisdiction over disputes involving performance evaluations, but a CDA claim is a jurisdictional prerequisite and, if the appeal involves a nonmonetary claim, the tribunal can only issue declaratory relief. Contractors are thus well-advised to routinely document the facts that support a positive rating and use these facts to dispute an inaccurate rating in the CPARS, and, if necessary, a CDA claim and appeal. Contractors also should consider whether they can quantify costs they will incur as a result of an inaccurate rating and whether those costs can serve as the basis for a monetary claim. PL Endnotes 1. FAR (a). 2. See, e.g., FAR (g) (setting forth the factors agencies are required to include for each performance evaluation); FAR (b)(1). 3. See FAR , Inspector Gen., U.S. Dep t of Def., DODIG , Summary of Audits on Assessing Contractor Performance: Additional Guidance and System Enhancements Needed (2017) [hereinafter DoD IG Report]. 5. Id. at 5, 9; see also FAR (b) U.S.C See, e.g., Aim Constr. & Contracting Corp., ASBCA No , 07-1 BCA 33,466, at 165,915; TLT Constr. Corp., ASBCA No , 02-2 BCA 31,969, at 157,912; CardioMetrix, ASBCA No , 97-2 BCA 29,319, at 145,787; G. Bliudzius Contractors, Inc., ASBCA No , 92-1 BCA 24,605, at 122, Kathryn T. Muldoon & Erica J. Geibel, Challenging Negative Performance Evaluations: Confronting Hurdles at ASBCA and COFC, 51 Procurement Law., no. 1, Fall 2015, at FAR Id. 11. FAR FAR (b)(1). 13. FAR Id. 15. Id. Volume 53, Number 1 The Procurement Lawyer 13

8 16. Id. 17. See, e.g., FAR pts. 9, 13, 15, 36, FAR (d). 19. FAR (f). 20. DoD IG Report, supra note 4, at i. 21. Id. at 11; see also FAR tbl DoD IG Report, supra note 4, at Id. 24. Id. at i. 25. Todd Constr., L.P. v. United States, 94 Fed. Cl. 100, 111 (2010) (emphasis added). 26. See id. (emphasis added) (quoting Office of Federal Procurement Policy; Past Performance Information, 58 Fed. Reg. 3573, 3575 (Jan. 11, 1993)) F.3d 1306 (Fed. Cir. 2011). 28. Id. at 1311 (quoting FAR 2.101). 29. Id. at CBCA 5299, 16-1 BCA 36,522, at 177, CBCA 5246-R, 17-1 BCA 36, Id. at CBCA 5516, 17-1 BCA 36, Id. at 5 6 (alterations omitted) (quoting Todd, 656 F.3d at 1316). 35. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) ( Since the CDA itself does not define the term claim, we look to the Federal Acquisition Regulations (FAR) implementing the CDA for the definition. (citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc))). 36. FAR K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015) (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). 38. ASBCA No , 16-1 BCA 36, Id. at 177, Id. 41. Id. at 177, Id Fed. Cl. 788 (2016). 44. Id. at Id. at Id. 47. Id. 48. ASBCA No , 16-1 BCA 36,518, at 177, Id F.2d 1202, 1206 (Fed. Cir. 1987) F.3d 1397, 1401 (Fed. Cir. 1994) (en banc). 52. CBCA 5516, 17-1 BCA 36, Id. at 4 (alterations in original). 54. Id. 55. Id. 56. Id. at Id. at ASBCA No , 16-1 BCA 36, Id. at 177, Id. at 177, Id. 62. Id. 63. Id. at 177, Todd Constr., L.P. v. United States, 656 F.3d 1306, (Fed. Cir. 2011). 65. Id. at 1316; see also GSC Constr., Inc., ASBCA No , 14-1 BCA 35,714, at 174, Orr, CBCA 5299, 16-1 BCA 36,522, at 177, Id. at 177, Id. at 177, Id. at 177, Id. at 177, Id. at 177, Colonna s Shipyard Inc., ASBCA No , 10-2 BCA 34,494, at 170, MicroTechnologies, LLC, ASBCA No , 15-1 BCA 36, Id. at 177,236 (emphasis added). 75. Id. at 176, Todd Constr., L.P. v. United States, 85 Fed. Cl. 34, 42 (2008) (citing BLR Grp. of Am. v. United States, 84 Fed. Cl. 634, 647 (2008)). 77. BLG Grp. of Am., 84 Fed. Cl. at Id. (citing Vernon J. Edwards, Postscript: Breach of Loss of the Fair Opportunity to Compete, 20 Nash & Cibinic Rep. 59 (Dec. 2006) ( Protests are highly disruptive to Government operations. )). 79. Id. 80. Id. 81. Id. (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005) (noting that the unsuccessful bidder whose protest concerned an agency s past performance determination was required to establish that it was significantly prejudiced by the agency s error)) Fed. Cl. 452 (2015). 83. Id. at Id. at F.3d 1349 (Fed. Cir. 2016). 86. Id. at Id. 88. Id. at ASBCA No , 14-1 BCA 35, Id. at 174, Id. 92. Id. at 174, Id. 94. Id. at 174, Id. 96. Colonna s Shipyard, Inc., ASBCA No , 16-1 BCA 36,518, at 177, Id. at 177, Id. 99. Id. 14 The Procurement Lawyer Fall 2017