Avoid Painful and Costly Mistakes When Appealing Government Contractor Past Performance Evaluations and CPARS Ratings.)

Challenging Government's CPAR Ratings, & CPARS EvaluationWhen it comes to responding to or appealing negative contractor CPAR ratings from your most recent government contract, there are very few contractors in federal procurement that never had some level of concern or disagreement with contractor Past Performance Information Retrieval System ratings (PPIRS Ratings) under the Contract Performance Evaluation System (CPARS Evaluations). 

October 2016 case as actual evidence that the  Contractor Performance Assessment Reporting System CPAR response initially starts the painful problem that can lead all the way to appeal. (Board lacks jurisdiction over contractor’s (i) claim that its due process rights were violated by Government’s failure to permit contractor to review and respond to negative comments in CPAR before it was published and (ii) contractor’s request for injunctive relief or specific performance, but retains jurisdiction over other disputes involving CPARS ratings).

  • Knowing how to respond in the contractor comments  after the initial notification is critical
  • After the agency final CPARS evaluation decision, what you do next and how you do it can avoid disastrous mistakes
  • Preserving your rights to any CPAR ratings appeal starts at the agency level
  • Allowing your CPAR Contractor Performance Assessment Report to make its way to PPIRS could be too late.

The U.S. Court of Appeals for the Federal Circuit has made it clear that the federal government has a contractual and legal duty to not hinder your performance or prevent you from obtaining the fruits of your contractual bargain. See Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010); Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).

  • The agency is required to follow its own definitions discussed as CPAR ratings and evaluations 
  • When unacceptable performance is alleged the Contracting Officer must be able to produce documentation to substantiate the adverse past performance evaluation.
  • Knowing what are the FAR thresholds for evaluating contractor performance on federal government contracts plays a vital role in how you appeal the CPARS ratings decision.

When your company receives a negative CPARs evaluation report, it can ruin your ability to get future federal contracts. Therefore, effectively challenging the evaluation via your CPAR contractor comments must be immediately addressed.

  • Many companies attempt this process might be unaware of the serious legal implications of not properly addressing the factual mistakes made by the government and addressing the relevant procurement law that has been violated.

CPAR Ratings and past performance evaluationsThe Federal Acquisition Regulation (FAR) mandate that contractor performance information be collected (FAR Part 42.15) and used in source selection evaluations (FAR Part 15). 

Companies are often misguided on how to formally challenge contractor performance ratings. As a result, they spend thousands of dollars only to find out they did not follow the correct process.

Negative contractor CPARS ratings can severely impact your ability to get future government contracts. Therefore, it is essential for government contractors to understand their legal rights under the CPARS Evaluation process. The agency often lacks documentation to support their contractor performance assessments and even may tread on its legal obligation under the duty of good faith and fair dealing.

In many cases, there is no record showing that the Contracting Officer, through the COTR has ever addressed contract performance deficiencies with the contractor. This can become a problem for the government when there is a performance-based contract involved.

  • The key to challenging CPARS past performance ratings is to provide detailed explanations when the government sends the evaluation to you.
  • Add additional pages if necessary.
  • Do not simply disagree with the agency’s contractor performance assessment report, you must focus on the relevant details and present evidence to support your position of why your contractor performance evaluation is not justified.

Courts have struggled with how to deal with contract performance situations where contractors seek court intervention with contractor performance assessment and CPAR reporting. However, both the Boards of Contract Appeals and the U.S. Court of Federal Claims agree that contractor past performance challenges can fall within the purview of the Contract Disputes Act (CDA).

Contractor  Past Performance Performance Assessment Reporting System – CPAR Ratings

When challenging the government’s contractor past performance performance evaluation ratings, companies should first see whether the agency provided a complete assessment rating. The CPAR ratings and evaluation process provides some minimum level of due process. See FAR 42.1503.

However, the ability to dispute final contractors ratings in PPIRS or CPARS evaluation criteria can be very difficult. When you receive notice of the final contractor performance assessment reporting review, you have 14 days to respond to comments or rebuttal to unsatisfactory contractor past performance evaluation ratings.

  • Presenting details at this stage sets the stage for protecting your rights on appeal.
  • You cannot introduce new evidence at the appeal stage.

The Reviewing Official is responsible for reviewing the contractor performance assessment report, commenting on contract performance, and then issuing a CPARS rating when the review reflects a disagreement between the Assessing Official and the contractor.

Once the agency reviewing official enters her final decision over the contractor’s dispute, the past performance evaluation ratings will then enter into its final resting place called PPIRS, the Past Performance Information Retrieval System.

Contractor Response to CPAR Ratings Challenge: The first step when responding to CPARS evaluation is keeping in mind that the key is to effectively consider the factual and legal reasons why the evaluation scores were unwarranted.

When initiating comments, another important consideration for CPAR ratings and evaluation reviews is to provide a lengthy detailed and factual basis for your disagreement in your response. 

Government contractors should point to inaccuracies in the record; it is also crucial to have documentation throughout the performance period supporting your disagreement.

  • You should also ask the contracting officer for a re-evaluation of contract performance although the FAR does not require it.
  • If you need more than allowed days to respond the unsatisfactory CPARs rating, always ask the agency in writing.

Initiating the Formal Evaluation Challenge? Once the contractor ratings and CPARS evaluation are completed by the agency, government contractors should initiate a claim with the Contracting Officer under the Contract Disputes Act.

  • Failure to follow this step will prove disastrous for any appeal filed either at the Board of Contracts Appeal or U.S Court of Federal Claims.
  • Challenging the government’s contractor past performance evaluation is legally considered a dispute relating to the contract under the CDA.

The Act requires that “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 USC 605(a). This includes filing a claim that disputes contractors ratings under the contract.

Your CPARS ratings and dispute claims should not simply reflect a disagreement with the government.

  • The contractor past performance evaluation must be complete in order to start the claims or appeal process.
  • The CDA claim should be specific and detailed enough to allow the contracting officer to make a reasonable determination.
  • You must receive a contracting officer’s final decision before looking to appeal to the Board or Court of Federal Claims.

CPARS Appeal Process & Appealing Past Performance of Contract & CPAR Ratings

After the Contracting Officer issues a final decision denying your claim to change your CPARS ratings, the disputes process now gives the appellate court, Court of Federal Claims, subject matter jurisdiction to hear your complaint. You want to address the issue before your performance evaluation record goes into PPIRS.

When considering the CPAR appeal process, companies should be aware that there is numerous contractor CPAR ratings appeal cases that were dismissed simply because the contractor did not follow the required process. This cannot only be a waste of valuable effort, but also a substantial waste of time and legal fees. See information about evaluating subcontractor past performance.

Find Out More About Our Practice Areas and How We Can Help You

For additional help preparing a Contract Disputes Act claims with challenging the government’s performance of contract assessment evaluation report and CPARs ratings,  and to avoid costly legal mistakes, call our government contracts lawyers at 1-866-601-5518.

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