(Editor’s Note. We have been reporting for several years now about the increasing importance of past performance evaluations becoming the basis for award decisions and more recently, about developments exhorting agencies to provide more timely, complete and accurate past performance evaluations as well as tips to maximize past performance ratings during contract performance. However, we have not addressed the means available to challenge a past performance evaluation once it has been made which has always been a problem. In fact, new emphasis on timely submittals has resulted in a significant increase in questionable past performance evaluations being submitted and relied upon because in its haste to comply with new requirements to provide timely evaluations assessing officials (AOs) are preparing evaluations without the benefit of hand-on knowledge of contract performance.. In the midst of this proliferation of unfair negative past performance evaluations, contractors need to have practical advice on how to challenge these. This topic was addressed in a new article in the Dec 24, 2013 issue of the Federal Contract Report written by Alan Pamperton, Jade Totman and Kayleigh Scalzo of Covington & Burlington LLP.)
Background on Recent Developments
Past performance evaluations (PPEs) are usually electronically captured, kept and communicated. The process begins when an AO inputs adjectival ratings – Exceptional, Very Good, Satisfactory, Marginal, Unsatisfactory – and supporting narrative from a Contractor Performance Assessment Report (CPAR) which uploads to a database, the Contractor Performance Assessment Reporting System (CPARS). Data from CPARS and other reports of “adverse actions” such as non-responsibility determinations or terminations for default flow to a separate database, the Past Performance Information Retrieval System (PPIRS). CPARS and PPIRS are not publically available but accessible only by source selection officials to use in making award decisions. But the public can access a separate final database called the Federal Awardee Performance and Integrity Information System (FAPIIS). FAPIIS contains “adverse action” reports from PPIRS, plus other information related to “business integrity” including listings on the System for Award Management, administrative agreements with Suspension and Debarment Officials and records of certain criminal, civil and administrative proceedings.
According to FAR 42.1502 a timely performance evaluation is prepared “at the time the work under contract or order is completed.” The government CPARS guidance states it should be completed not later than 120 calendar days after the end of the contract or order evaluation period stressing “it is essential that…information be provided timely and accurately.”
So what actions are recommended when untimely, inaccurate or unreasonable evaluations are entered. The authors state there are two main ways to challenge these
– agency actions or Contract Dispute Act (CDA) claims.
Agency Level Appeals
The first action is usually an agency level appeal which is in effect a prompt request for the agency to reconsider its evaluation. Under FAR 42.1503(d) a contractor has a minimum of 30 days to submit comments, rebut statements or any additional information to the AO. Any remaining disagreement may be submitted “for review at a level above the contracting officer to a Reviewing Officer (RO).” The authors state no matter the merits of the appeal, the decision still lies with the contracting agency that may be reluctant to change its position. Nonetheless, this agency level appeal does have the advantage of avoiding more adversarial and expensive litigation approaches where the contractor may be successful.
The process of an agency level appeal begins with the contractor responding to an untimely or unreasonable evaluation “immediately, diplomatically and strategically.” An immediate appeal within 30 days is needed which will limit any dissemination of the adverse information. The contractor is advised to state, in writing to the AO, it will dispute the CPAR and that it is preparing comments, rebutting statements and other material where it hopes to resolve the matter informally and with the disclosure of any information that could be construed as adverse to either the contractor or agency. The contractor should request the agency (1) extend the default timeframe for contesting the adverse CPAR from the 30 day window and (2) not make any relevant CPAR information available as source selection information until the dispute is resolved. The extension of time should encompass the full term of the possible dispute including negotiations with the AO and RO as well as an amount of time to assemble the performance record. Additionally, the contractor may ask for a separate level of review apart from and above the RO which may include the agency’s procurement officer or legal counsel – a step the FAR neither provides for but does not prohibit.
Next, within the timeframe approved by the agency, the contractor must prepare and submit its comments, rebutting statement and additional information to challenge the CPAR. These comments should include a catalog of substantive and procedural defects of the CPAR where the substantive defects may include incorrect ratings, incorrect definitions used by the agency or incorrect facts. Procedural defects may include an express violation of any agency’s acquisition handbook or similar intra-agency rules. In the case of an untimely or overdue CPAR, procedural defects may include violations of FAR provisions or intra-agency guidelines pertaining to timeliness. For example, a contractor may state the CPAR was not completed after contract completion or was completed after the 120 calendar window provided in the CPAR Guidance Manual and DOD policy.
In support of its comments, a contractor can submit documents as attachments. For example, in challenging an adverse fact it may submit documentation from the contract file or favorable comments from contracting officials. Additionally contractors may want to include affidavits or declarations from employees with firsthand knowledge to rebut information. The authors state that timely and effective comments may change a CPAR and eliminate the need for a CDA claim.
Considerations for a CDA Claim
Failing a successful agency level appeal, the next step involves a filing of a CDA claim. Some actions can mitigate the expense and adversarial nature of such a claim. First, to pursue a claim the contractor must submit a CDA claim to the contracting officer for a final decision (as opposed to the appeal to the AO that was part of the agency-level appeal). The CDA claim will probably be a repackaged – perhaps enhanced – version of the agency appeal. It may incorporate new facts and legal issues that arose during the agency appeal. The claim needs to be in writing and seek “as a matter of right,” “the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract” as well as a clear and unequivocal statement that gives the contracting officer adequate notice of its basis and asks for relief independent from that available from an agency level appeal (FAR 2.101). The CDA claim should be after the process of negotiation between the agency and contractor is complete. Also, a letter to an agency offering observations relevant to its initial CPAR does not constitute a CDA claim, especially where a final CPAR has not been issued. After the CPAR is issued a CDA claim will present new opportunities for the CO and contractor to reach a final agreement to a revised evaluation without incurring litigation expenses.
Second, once the CO has denied the claim (or has not responded in a reasonable amount of time) the contractor has the option of bringing its claim before an independent decision maker. It needs to first decide on the best forum to litigate. The CDA allows an appeal to an appropriate board of appeals within 90 days of the CO’s final decision or one year to the U.S. Court of Federal Claims (COFC). The authors state now the COFC is the best forum because prior cases clearly gave it jurisdiction over challenging adverse performance evaluations while the appeals boards have been less welcoming to such challenges.
Third, contractors need to be realistic about the scope of possible remedies for them. A COFD decision cannot result in the court writing a new CPAR, requiring a different rating or even an injunction. Rather a favorable result is usually a “proper and just” declaratory instruction to correct the CPAR. Some commentators state such declaratory relief is “meaningless” because the declaration cannot require an agency to assign a particular rating, withdraw one or remove one from a particular data base. Consequently, a contractor needs to request a declaratory judgment and remand order with “proper and just” instructions and meaningful corrective actions.
Finally, a contractor needs to consider the types of challenges that are likely to be persuasive to the court or appeals board. So, if timeliness is being challenged, then the contractor must show there is actual prejudice (harm) caused by being untimely such as alleging the CPAR would have been different but for untimeliness. If substantive errors are being alleged then a showing of blatant flaws (e.g. clear cut factual inaccuracies and logically contradictory evaluations) are most effective. For any type of assertion of errors it is best to link the error to a violation of applicable rules, regulations or policy. So for example, in its guidance for A&E contracts being reconciled with construction appraisals in the CPARS a late evaluation may be completed only if the AO for the period being reviewed (1) is available(2)has sufficient knowledge of contractor’s performance(3)has documentation for the evaluation and (4) has communicated periodically with the contractor on its performance. So if a contractor can associate a claim for untimely or erroneous evaluation to a violation of one of these four conditions, its case would be more persuasive with the court or appeals board.
© 2024 Government Contract Associates. All Rights Reserved.
