Can You Challenge a CPAR Evaluation in a Bid Protest?Technically, no. However, when the contractor is protesting the award of a contract for the same agency that issued the unfavorable Contractor Performance Evaluation Report (CPAR), the contractor may have some success arguing that there was a conflict of interest.

In a very recent decision, the Court of Federal Claims dismissed most of the claims raised by the contractor in its bid protest. However, the contractor’s claim that Navy personnel acted in bad faith in the issuance of a CPAR and in the use of the CPAR in the award of the contract, survived the Navy’s motion to dismiss (see Colonna’s Shipyard, Inc. v. United States).

The contractor’s first claim was that the court should direct the Navy to correct the CPAR it received under a different Navy contract because it caused the contractor to lose the new contract. The court dismissed that count for lack of subject matter jurisdiction, reasoning that the “challenge to the CPAR previously issued under [an earlier] Contract is not within this court’s bid protest jurisdiction for a challenge to the award of the [subject] Contract.” The court likewise dismissed the contractor’s breach of contract claim, which alleged the government breached the contract by failing to perform the CPAR evaluation and report in accordance with the FAR. The court noted that such a claim is a Contract Disputes Act (CDA) claim and not within the court’s bid protest jurisdiction. The contractor’s claim that the CPAR was a de facto debarment and a deprivation of the contractor’s constitutional rights was also dismissed for lack of jurisdiction. The court reasoned that the de facto debarment claim was “by its nature a challenge to the content of a CPAR” and was therefore “a CDA claim, not a bid protest claim.”

The contractor’s claim based on the Navy’s breach of the duty of good faith and fair dealing, however, survived and remains before the court. The contractor had previously filed two suits in the court — one a bid protest and the other challenging the validity of the subject CPAR under the CDA. Those suits were voluntarily dismissed when the Navy agreed to review the contested CPAR and issue a contracting officer’s final decision.

After the contracting officer denied the contractor’s challenge to the CPAR, the contractor filed another suit under the CDA, as well as the subject bid protest. In the bid protest, the contractor alleged that the Navy acted in bad faith in issuing the CPAR and in using it in the award of the contract. The contractor alleged that the Navy’s procurement activities that led to the award of the contract were evidence of bad faith and that the Navy had a conflict of interest because of the disputed CPAR. The conflict of interest allegation was bolstered by the contractor’s claim that Navy personnel included incorrect, misleading, and inaccurate information to preserve their reputations and shift the blame for performance issues onto the contractor. This count survived.

The court denied the Navy’s motion to dismiss this count, reasoning that it saw no jurisdictional impediment, “as long as the focus is on bad faith actions which allegedly comprised the award of the [] Contract, rather than on alleged bad faith actions related to the issuance of the CPAR.”

As discussed in our BuildSmart blog post, CPARS Evaluations: Are You Stuck with What You Get?, correcting a negative CPAR is a significant challenge for contractors. It will be interesting to see whether this contractor will be able to obtain relief by attacking the negative evaluation as a “conflict of interest.”