Even though past performance evaluations play a critical role in a contractor getting future contracts, contractors rarely challenge bad past performance ratings or the improper way an agency carries out its required past performance evaluation responsibilities described in FAR Subpart 42.15.

One of the most common agency errors seems to be the agency’s failure to follow the FAR process, like the requirement of an annual evaluation. Another common agency mistake is the failure to rate contractors consistent with the FAR criteria in Table 42-1-Evaluation Ratings Definitions. For example, a contractor is supposed to be rated “Unsatisfactory” only if a contractor’s corrective actions “appear or were ineffective.”

A recent decision of the Armed Services Board of Contract Appeals (ASBCA) gives a good reminder to contractors that the boards of contract appeals and the US Court of Federal Claims give contractors an opportunity to challenge evaluations – to some extent.

In Cameron Bell Corp. D/B/A Gov Solutions Group, the contractor received an “Unsatisfactory” rating, even though its corrective actions were effective and therefore did not meet the FAR’s definition. The contractor asked the Board to remand the matter to the agency with guidance indicating that the government should have rated appellant “Satisfactory, or better” and to award monetary breach of contract damages. The agency filed a motion to dismiss.

The Board confirmed that it does have jurisdiction to consider whether the Contracting Officer acted arbitrarily in assigning the CPARS rating and could remand the matter back to the agency to ensure it follows the applicable regulations and provides a fair and accurate performance evaluation. The Board said “we can assess whether the contracting officer acted reasonably in rendering the disputed performance rating or was arbitrary and capricious and abused his discretion. In other words, we may determine whether the government acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.”

However, the Board did grant the government’s motion to dismiss the contractor’s requests that the Board tell the evaluating agency that it should have rated the contractor “Satisfactory, or better.” The Board confirmed that it did not have the authority to direct the agency what rating to give the contractor. “Although we do not have jurisdiction to grant specific performance or injunctive relief, and therefore cannot order the government to revise a CPARS rating, we may remand to require the contracting officer to follow applicable regulations and provide appellant a fair and accurate performance evaluation.” The Board also dismissed the contractor’s request for monetary damages, because the contractor had not requested monetary damages in its claim to the contracting officer. Cameron Bell Corporation d/b/a Gov Solutions Group, ASBCA No. 6185 (May 1, 2019).

The decision shows that contractors getting bad evaluations or deprived of the government’s complete compliance with the FAR 42.15 process have rights to raise legal challenges, but those rights do not include all the help a contractor might ask for.

Berenzweig Leonard  is teaming up with  Red Team Consulting  for a monthly newsletter featuring reports on recent contract decisions, recent upcoming contracts, key protest decisions, events, and more. This post was published in the June 2019 newsletter. To sign up for our govcon newsletters,  please click here.

Terry O’Connor  is a Partner at Berenzweig Leonard. Terry and  Stephanie Wilson   lead the firm’s  Government Contracts practice. Terry can be reached at  [email protected].