How to Challenge a Bad Performance Rating.

Author:Sarria, Alex
Position:Government Contracting Insights

* While you might not be able to fight City Hall, you can fight a Contractor Performance Assessment Reporting System rating. The Armed Services Board of Contract Appeals recently confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor's performance--a potent form of relief available to companies who believe the government has improperly rated them.

In a published opinion--Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019)--the board said that while it cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation.

By regulation, companies have a right to rebut a negative evaluation of their performance in the Contractor Performance Assessment Reporting System, or CPARS. A contractor's rebuttal submission typically is due within 14 calendar days of the date the agency invites the contractor to respond. If this proves unsuccessful, a contractor may challenge the CPARS rating by submitting a claim with the contracting officer under the Contract Disputes Act, or CDA. Then, if the contracting officer denies the claim, the contractor can appeal the decision to an appropriate Board of Contract Appeals or the United States Court of Federal Claims.

That is precisely what the contractor did in Cameron Bell. There, a contractor challenged a less-than satisfactory rating of its performance in a CDA claim. After the contracting officer denied the claim, the contractor appealed to the ASBCA seeking various forms of relief, including injunctive relief, breach of contract damages, and a request that the board "return [the] matter to the government with guidance indicating that the government should have rated appellant satisfactory, or better."

The government moved to dismiss the appeal for lack of jurisdiction. The board denied the motion in part, finding that it has jurisdiction to "assess whether the contracting officer acted reasonably in rendering the disputed performance rating or was arbitrary and capricious and abused his discretion." The board also noted that, while it lacks authority to order the government to revise a CPARS rating, it "may remand to require the contracting officer to follow applicable regulations and provide [the contractor] a fair and accurate performance evaluation."

The Cameron Bell decision provides a few helpful reminders to contractors who are...

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