On March 1, 2017, the Civilian Board of Contract Appeals (“CBCA”) confirmed that it lacks jurisdiction to grant injunctive relief in the case of a negative Contractor Performance Assessment Reporting System (“CPARS”) evaluation. Compucraft, Inc. v. Gen. Services Admin., CBCA 5516, March 1, 2017, 2017 WL 838076. Specifically, the CBCA will not order an agency to alter a CPARS evaluation even though “[a] contractor clearly [has] standing to sue [the Government] based on the substantive allegation that the [G]overnment acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.” Id. at § II (internal quotation marks omitted). The CBCA joins the ranks of the Court of Federal Claims (“COFC”) and the Armed Services Board of Contract Appeals (“ASBCA”), both of which have already arrived at the same conclusion. Todd Const., L.P., v. U.S., 88 Fed. Cl. 235, 243 (2009); Versar, Inc., ASBCA 56857, May 6, 2010, 10-1 BCA ¶ 34437.
This decision underscores the reality that it’s the contractors themselves who can most effectively change a CPAR rating. Some approaches work better than others.
When CPARs are issued, contractors “shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information.” FAR § 42.1503(d). The best practice is to simultaneously (1) perform a deep dive into the contract records to support a detailed written explanation of what issues the CPAR author may have overlooked or failed to consider when placing unfavorable information or ratings in the evaluation; and (2) reach out to the CO to see if (s)he is willing to meet to discuss the performance evaluation and consider revising it to reflect a more favorable view of the contractor’s performance. Often, when presented with compelling facts, an agency will reconsider its initial findings. A face-to-face meeting is frequently helpful. But, even if the agency does not revise its evaluation, the agency must include the written contractor response as a part of the evaluation in CPARS.