Part 42.15 of the FAR entitles federal contractors to submit comments and receive agency review of an unfavorable performance evaluation in the Contractor Performance Assessment Reporting System (CPARS). If the contractor’s rebuttal is unsuccessful, the contractor may challenge the CPARS rating by submitting a claim to the contracting officer (CO) under the Contract Disputes Act. If the CO denies the claim, the contractor can then appeal the CO’s decision to the appropriate Board of Contract Appeals or the United States Court of Federal Claims. Two recent ASBCA decisions shed light on how boards will evaluate contractor appeals of CPARS ratings.
In Cameron Bell Corp. d/b/a Gov’t Solutions Grp., the Armed Services Board of Contract Appeals (ASBCA) confirmed that it has jurisdiction to “determine whether the government acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.” The ASBCA held that while it does not have the jurisdiction to require the government to issue a specific rating, it can remand the matter to the CO and direct the government to conduct a “fair and accurate” evaluation of the contractor’s performance in accordance with law and regulation.
In PROTEC GmbH, the ASBCA addressed the merits of a CPARS evaluation and the contractor’s claim that the government had failed to perform a CPARS review at a level above the CO as required by FAR 42.1503(d). The contractor challenged several statements the government made in the contractor’s CPARS evaluation. The ASBCA performed a substantive assessment of the record to determine whether each of those statements was fair and accurate and found that the contractor failed to show that the CPARS evaluation was unfair or inaccurate. The contractor also claimed that the procedures used by the government were not fair because a review was not performed at a level above the CO as required by FAR 42.1503(d). In denying that claim, the ASBCA reasoned that “[g]enerally, in order for a contractor to have standing to raise a procedural claim, the contractor must show prejudice.” The ASBCA found that the contractor did not show prejudice because it did not show that the CPARS assessment would have been different but for the purported procedural errors.
Thus, before appealing an unfavorable CPARS rating, a contractor should consider both the limitations on courts’ and boards’ authorization to review such a matter and the difficulties it may face in proving its claims on appeal. As demonstrated in Cameron Bell, an order remanding a CPARS rating for reevaluation may result in no or only partial relief for the contractor. For example, the agency may only need to provide a more specific explanation as to why it assigned a low rating. In other cases, however, such an order may require the agency to reexamine the rating based on the contractor’s record of performance, the objective guidelines in the FAR (i.e., the specific ratings defined in FAR 42.1503 and the information the government must provide to justify the rating), and the particular challenges raised by the contractor on appeal. Also, as demonstrated in PROTEC, to succeed on a claim that the government’s evaluation was unfair or inaccurate, the contractor must present contemporaneous documents and other substantive evidence to prove that the government’s assertions in the assessment were inaccurate. The contractor should be equally prepared to show prejudice if its claim is based on a procedural violation.