By Megan Connor
This blog article has been updated due to changes in the regulations. To read the latest version, please click here.
Confronted with an unfavorable interim or final Contractor Performance Assessment Report System (“CPARS”) rating, the first question clients ask us is, “What can we do?”
The answer: challenge it.
The FAR provides that contractors must be given a minimum of 30 days to submit comments, rebutting statements, or additional information upon receipt of a CPARS. If you disagree with anything in a CPARS, you should take this opportunity because your response and comments will be retained as part of the CPARS. Consider sending the contracting officer a letter refuting all negative points in the CPARS with evidence of your good performance. Evidence should be objective documents that support your position, like a government official’s email applauding the efforts of your employees on the contract.
You might also want to schedule a meeting with the contracting officer to review the CPARS. At a minimum, you can learn from the client to improve your performance for next time. But a sit-down is also an opportunity to walk through various performance issues with the contracting officer and explain what role the government had to play, if any, in what is now your low rating. The contracting officer might just reconsider your CPARS once he or she sees the full picture.
No matter what, do not take the contracting officer’s rating as the last word. The FAR requires agencies to “provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation.” If the contracting officer is not receptive to your efforts to explain or discuss performance issues, request that the contracting officer elevate the issue to his or her supervisor.
Importantly, a performance evaluation dispute between a contractor and an agency mayconstitute a CDA claim if contract terms are at issue. In other words, a contractor’s letter questioning the correctness of a contracting officer’s actions based upon the express and incorporated terms of the contract will constitute a claim because it seeks interpretation of contract terms and relief thereunder. See Appeal of Metag Insaat Ticaret A.S., ASBCA No. 58616, 13-1 BCA ¶ 35,454. For example, to the extent FAR 42.1503 is incorporated into your contract, that provision requires evaluations to be accurate and based on objective facts. If you believe (and have evidence to show) your evaluation was inaccurate or lacks objectivity, you may assert as much in a claim, request that the contracting officer re-evaluate you in accordance with the contract terms, and seek a final decision. Should the contracting officer deny this claim, you may appeal it as you would any other CDA claim.
As the old adage goes, your reputation precedes you. This holds true for your past performance ratings on CPARS. If you receive a CPARS rating that does not properly reflect the performance of your company, don’t leave it unchallenged.
About the Author: Megan Connor, an associate with PilieroMazza, focuses her practice in the areas of government contracts, small business administration programs, business and corporate law, and litigation. She may be reached at mconnor@pilieromazza.com.