Knowing the rules can save thousands of dollars.
The process for challenging your CPARS ratings must be correctly done and through the right channels. You cannot wait until you submit a government bid to then respond to adverse decisions. Yet, the actual road map for challenging you CPARs adjectival ratings still appear to be a mystery. There are certain things you have to address when you challenge your ratings at the contracting officer level. Without them, you are almost guaranteed to get no consideration from the contracting agency.
What is the Contractor Performance Assessment Reporting System (“CPARS”)? The federal government uses CPAR module to centralize past performance information. The main input for this system is a written report issued by a Contracting Officer, which (in most circumstances) is called a Contractor Performance Assessment Report (“CPAR”). As a government contractor, you have the right to comment on the actual report, challenge adverse CPARs ratings. A problem arises when the report shows that the agency fails to record both positive and any alleged negative performance for a specific period of time. Instead, the agency only records negative information.
When it comes to responding to or appealing negative contractor CPARS 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 (PPIRS) 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
- Understanding how to address each element of the CPARS report can create a record for submitting a claim or appealing the CPARS final decision.
- 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 CPARS appeal starts at the agency level
- Allowing your 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 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 application thresholds for evaluating contractor performance on federal government contracts plays a vital role in how you appeal the CPARS decision.
When your company receives a negative CPARs ratings report, it can ruin your ability to get future federal contracts. Therefore, effectively challenging the evaluation via your CPARS 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.
The 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 evaluations. As a result, they spend thousands of dollars only to find out they did not follow the correct process.
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).
Once the agency reviewing official enters her final decision over the contractor’s dispute, the past performance evaluation will then enter into its final resting place called PPIRS, the Past Performance Information Retrieval System.
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 CPARS contract comments, another important consideration for CPARS ratings and evaluation reviews is to provide a lengthy detailed and factual basis for your disagreement in your response. If you have to add more pages, then advise the contracting officer accordingly.
Government contractors should point to lack of decisions based on objective facts, inaccuracies between positive and negative in the record; it is also crucial to have documentation throughout the performance period supporting your disagreement.
INITIATING THE CPARS APPEAL PROCESS
Once the contractor 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.
Your CPAR ratings contract dispute claim 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.
Tip: When submitting a Contract Disputes Act claim in response to negative CPARS ratings, the claim should obvious that there is a dispute. Courts do not like to have to rely upon inferences. At least tell the government that you disagree and demand that the adverse rating (s) be permanently withdrawn. See VANQUISH WORLDWIDE, LLC v. U.S.
- If you have to scramble and compile emails or documents to prove that you have meet the Contract Disputes Act requirement for CPARS ratings, chances are that you have already lost your case
- The government has no problem on appeal asking the court to dismiss your case
- Communication that contemplates further dialogue with the government does not amount to a Claim for correct CPARS ratings
CPARS Ratings Appeal Process
After the Contracting Officer issues a final decision denying your claim to change your CPARS ratings scores 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 are numerous contractor CPARS 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.
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.