Column: Evaluating Past Performance - the CPARS Process and How to Handle Bad Evaluations

      Past performance information is incredibly important to government contractors. During agency evaluations and source selection decisions, past performance is often second only to price in determining which offer represents the best value to the government.

      For this reason, it is absolutely vital for contractors to ensure their past performance evaluations are both accurate and positive (as positive as possible).

      Contractors must be proactive during the evaluation process and must also understand their rights when faced with disagreements over ratings.

The CPARS database

      The Federal Acquisition Regulation designates the Contractor Performance Assessment Reporting System (CPARS) to be the Government’s “official” source of past performance information.

      CPARS is a government-wide database that is the repository of a contractor’s performance on its past and ongoing federal contracts.

      Generally, these evaluations must be completed at least annually and at the end of contract/order performance.

      A contractor is given ratings ranging from Exceptional to Satisfactory. The ratings are in 7 areas:

1. Technical/Quality of Product or Service;
2. Cost Control;
3. Schedule/Timeliness;
4. Management or Business Relations;
5. Small Business Subcontracting;
6. Regulatory Compliance; and
7. Other (this can include other areas deemed necessary by the agency).

Contractor input into CPARS

      A positive feature of the government’s past performance evaluation system is that it provides for collaboration with the contractor by enabling contractor comments for each evaluation area.

      CPARS also allows contractors to concur/not concur at the end of the evaluation. Contractors typically can discuss their evaluations informally with agency personnel to collaborate further on the agency’s evaluation.

      Once an evaluation has been submitted by the agency, FAR 42.1503(f) designates a period of 14 calendar days before the evaluation is visible to source selection officials. Also, the system itself allows for a total of 60 calendar days for the contractor to submit comments.

Handling ratings disputes

      Of course, these evaluations are subjective to some degree, and unfortunately at times evaluations are not factually accurate or otherwise not in accordance with the government’s regulations or guidance. How a Contractor handles such disagreements is very important, since frequently any rating below a “Satisfactory” can be the death knell for contractors.

      Thankfully, FAR 42.1503(d) provides that agencies “shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation.”

      Ideally, the contractor should resolve any disagreements at the agency level as early in the process as possible. However, if the contractor finds itself at a complete impasse with the agency, it does have a legal remedy.

      The Court of Appeals for the Federal Circuit has held that a dispute over an agency’s CPARS evaluation falls within the FAR’s definition of a “claim,” and therefore, is subject to the requirements of the Contract Disputes Act (CDA). Todd Constr., L.P. v. United States, 656 F.3d 1306, 1311-15 (Fed. Cir. 2011).

      Importantly, this means that the contractor must strictly follow the CDA’s requirements—including seeking a Contracting Officer’s Final Decision. See Vanquish Worldwide, LLC v. United States, 134 Fed. Cl. 72, 77-78 (2017).

      In its claim, the contractor must prove not that the agency’s evaluation was incorrect but that the evaluation was “arbitrary and capricious” in nature. Appeal of — Cameron Bell Corp. d/b/a Gov Sols. Grp. (GOVSG), ASBCA No. 61856, 2019 WL 2127647 (May 1, 2019).

      While the Court of Federal Claims or Board of Contract Appeals cannot direct an agency to revise the evaluation, it can grant declaratory relief and remand the evaluation back to the agency to be completed properly.

      It is also possible to seek monetary damages from the government in connection with a CPARS dispute. Gov’t Servs. Corp., ASBCA No. 60367, 16-1 B.C.A. (CCH) ¶ 36411 (June 20, 2016).

Conclusion

      As always, it is good practice to try to handle disputes at the lowest level as informally as possible. Litigation can be costly and time intensive, but it is important for contractors to know that they do have a legal mechanism at their disposal if an agency is being unreasonable. The best practice is to create procedures within your company to actively and substantively participate in the CPARS process and emphasize the importance of these evaluations. Your past performance is key to the future success of your business, and it is your responsibility to care for it and if necessary, defend it.

To assist you in learning more about this incredibly important topic, Set-Aside Alert is hosting in-depth training on the CPARS and on past performance in a webinar with Paul Hawkins and Brad Reaves from 1 pm to 2:30 pm EST on Jan. 16, 2020.

      For more information and a sign-up link, see https://conta.cc/3744Mn8. Contact Paul Hawkins directly at paul.hawkins@reavescoley.com.

NDAA’s acquisition provisions

Big US gov’t funding boost for FY2020

Significant clarifications now in effect for subcontracting rules

More NDAA items

DOD cyber model update

Space Force gets $40M

Column: Evaluating Past Performance - the CPARS Process and How to Handle Bad Evaluations

Washington Insider: