The government's evaluation of a contractor's performance on a contract is a critical component for contractors trying to win new contracts. Typically, the agency puts its evaluation in a report, commonly referred to as a CPARS (the Contractor Performance Assessment Reporting System), according to FAR Subpart 42.15. On occasion, a contractor believes the agency's evaluation is inaccurate, but is unsuccessful in getting the agency to change the evaluation. In these situations, it is important to know what kind of help, if any, a lawsuit could bring. A recent decision of the Armed Services Board of Contract Appeals (ASBCA) shows one alternative that contractors have to challenge a CPARS evaluation that they believe is unfair.
ServeFed had a contract to provide healthcare staffing services at Fort Hood, Texas. It required ServeFed to perform at least at a rate in hours as specified in the Performance Work Statement. When it came time for the agency to evaluate ServeFed's performance, the agency rated ServeFed's Quality as Unsatisfactory, and its Schedule rating was also Unsatisfactory. The bottom line of the CPARS was that the agency recommended against future rewards for ServeFed.
ServeFed submitted a formal claim to the contracting officer asking (1) that ratings for Schedule and Quality be corrected to ratings of Satisfactory or Very Good and (2) that the recommendation on future work should be changed from a negative to a positive reference.
The contracting officer issued a Contracting Officer's Final Decision that raised ServeFed's Schedule rating to Marginal, a one-level higher rating, but let the remaining evaluations stand. The contracting officer also would not change the Quality rating from Unsatisfactory.
ServeFed then appealed the decision to the ASBCA. They initially asked the ASBCA to "direct" the contracting officer to do three things: withdraw the Unsatisfactory ratings, replace them with Satisfactory or Very Good, and change the bottom-line recommendation from a negative to a positive rating. However, according to an earlier decision of the ASBCA, these types of relief sought specific performance or injunctive relief, relief Congress has not authorized Boards to provide. Thus, a Board cannot order the government to revise a CPARS rating.Appeal ofCameron Bell Corp. d/b/a Gov Sols. Grp., ASBCA No. 61856, 2019 WL 2127647 (May 1, 2019).
In issuing its ServeFed decision, the ASBCA explained what type of help or relief a Board can give contractors seeking a CPARS do-over.
As mentioned above in theCameron Belldecision, a Board cannot "direct" or force a contracting officer to change a CPARS rating from one rating to another. Realizing that later in the lawsuit, ServeFed changed the type of relief it was seeking and asked the ASBCA to do the following: "determine that the disputed performance ratings are unreasonable, arbitrary, capricious, and an abuse of discretion; determine that the Government breached its implied contractual duty of good faith and fair dealing; remand this matter to the Contracting Officer for the Contracting Officer to determine if the CPARS should be amended to comply with the applicable regulations and to provide appellant a fair and accurate performance evaluation."
All the relief ServeFed was now asking for was familiar relief in government contracts: asking judges to decide if the government conduct was unreasonable, arbitrary, capricious, and an abuse of discretion, if it violated the implied contractual duty of good faith and fair dealing, and if its evaluation was a fair and accurate performance evaluation. The ASBCA concluded it had the jurisdiction to provide the relief that ServeFed was now asking for and allowed ServeFed to change the relief sought in this appeal.Appeal of ServeFed, Inc.,ASBCA No. 63290, 2023 WL 2118443 (Feb. 2, 2023).
Berenzweig Leonard has helped numerous clients deal with unfavorable CPARS focusing on the CPARS requirements on an agency found in FAR, as well as the requirements found in theCPARS Guide. As this decision shows, contractors have to be careful about the relief they ask for. Often, the better relief is to avoid litigation and try to convince the contracting officer that the facts that form the basis of the agency's evaluation are simply wrong.
Originally published April 6, 2023
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