Challenging a CPARS Rating at a Board of Contracts Appeals
Government contractors have long been able to challenge Contract Performance Assessment Reporting System (CPARS) ratings to the contracting officer (KO). Contractors are entitled to rebut a negative evaluation of their performance in the CPARS as long as the rebuttal is submitted within 14 calendar days of the date the agency invites the contractor to respond. FAR 42.1503(d). The agency may revise the rating based on the contractor’s rebuttal, but if it doesn’t what can a contractor do?
According to a recent Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) case, Cameron Bell Corporation d/b/a Gov Solutions Group, ASBCA 61856 (2019), a contractor can challenge a CPARS rating by submitting a claim under the Contract Disputes Act (CDA). If the KO denies the claim, the contractor can appeal that decision to an appropriate Board of Contract Appeals or the United States Court of Federal Claims.
In other words, after submitting a rebuttal to the CPARS rating, a contractor must take another “step” before a Board of Contracts Appeals will have jurisdiction to review the rating. A contractor must first submit a claim to the KO.
A claim is a "written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract." FAR 2.101.
After the contractor receives a Contracting Officer’s Final Decision (COFD) denying the claim (or there is a deemed denial of the claim), then it can appeal to the Board.
While a claim need not be in any particular form or wording, it must provide adequate notice to the government as to its basis and amount. See K-Con Bldg. Sys. Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015). The adequate notice portion is where contractors tend to get tripped up. The claim must include sufficient information for the KO to provide a full response in his or her COFD. If a contractor does not raise a certain issue or state an amount certain in the claim, the KO will not be able to respond. Accordingly, it will not be part of the KO’s COFD and when the claim goes before the Board, the Board cannot review it. In other words, if the issue is not set forth in the claim and the COFD, the Board will not have jurisdiction to review it.
In Cameron Bell Corporation d/b/a Gov Solutions Group, ASBCA 61856, 2019 WL 2067642, the contractor appealed its low CPARS rating to the Board, arguing the Navy KO assigned an inaccurate and unfair performance rating. In responding to the appeal, the Navy initially argued that the Board lacked jurisdiction to decide the case because the KO had entered a proper CPARS rating and rendered a COFD. As a result, the Navy considered the matter settled. The Board disagreed, finding it has jurisdiction over CPARS appeals as expressed in MicroTechnologies, LLC, ASBCA 59911, 59912, 16-1 BCA ¶ 36,354 at 177,236; Versar, Inc., ASBCA No. 56857, 10-1 BCA ¶ 34,437 at 169,959. Specifically, the Board held that it had jurisdiction to assess whether the contracting officer acted reasonably in rendering the disputed performance rating or was arbitrary and capricious and abused his discretion, and to determine whether the government breached its implied contractual duty of good faith and fair dealing, an issue Cameron Bell had raised in its claim to the KO. In other words, Cameron Bell’s claim included sufficient information to challenge the nature of the KO’s evaluation, which subsequently provided the Board with jurisdiction.
Cameron Bell’s appeal to the Board also raised other issues that were not decided. First, the Board found it did not have jurisdiction to grant specific performance or injunctive relief. As a result, it could not order the government to revise a CPARS rating. Second, it did not have jurisdiction over Cameron Bell’s request for monetary damages because Cameron Bell’s claim had not included damages and the Navy KO was therefore not on notice of that issue.
While the Board could not order the Navy to revise the CPARS rating, it did find that Cameron Bell was entitled to a re-evaluation of its performance by the Navy, and if merited, an increased CPARS rating. Accordingly, its decision instructed the KO “to follow applicable regulations and provide the appellant a fair and accurate performance evaluation.”
The Cameron Bell decision confirms that CPARS ratings are a matter for the agency as long as applicable regulations are followed and the agency does not abuse its discretion. Although the contractor in Cameron Bell did not get its CPARS rating increased by the Board, it did get the Board to order the KO to re-evaluate it, which could ultimately result in an increased rating. Having the ability to challenge the agency’s actions in rendering a disputed performance rating to a Board is a good thing, particularly given the importance of CPARS ratings in source selection decisions.
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