Everyone “knows” that past performance is a critical part of both Best Value and LPTA competitive procurements. Everyone “knows” that CPARS ratings are the gold standard for demonstrating past performance. And everyone “knows” that once a CPARS rating is in the system, contractors are stuck with that rating: good, bad, or indifferent.
Sure, contractors can try and persuade the contracting officer to change their CPARS rating. FAR part 42.1503(d) provides a procedure to try and refute a negative past performance rating. Most of the time, in practice, trying to disprove a negative CPARS rating is like trying to push back the tides, the moon, or some other immovable force.
Up until now, contractors had a theoretical possibility of formally appealing the contracting officer’s CPARS decision through the disputes process (i.e., to the appropriate Board of Contract Appeals or the U.S. Court of Federal Claims). But there were enough open questions regarding jurisdictional and substantive issues that the prospect didn’t seem very real.
Enter the Armed Services Board of Contract Appeals (ASBCA) and the recent case of Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019). In Cameron Bell, the ASBCA squarely addressed the negative CPARS rating issue (and a contractor’s appeal to the contracting officer of that negative rating). The case shed light on which jurisdiction the ASBCA had to deal with concerning a negative CPARS rating, and what remedies were available under that jurisdiction. Usually, matters that turn on jurisdictional issues have pages and pages of “inside baseball” legal analysis that lawyers, if no one else, find fascinating.
The Cameron Bell decision was short and to the point. The ASBCA (and presumably the Civilian Agency Board of Contract Appeals and the Court of Federal Claims):
- Has jurisdiction to review the contracting officer’s CPARS ratings
- Can determine whether the contracting officer’s ratings were reasonable or arbitrary and capricious
- Cannot, itself, assign a particular CPARS rating, but can continue to send unreasonable (i.e., wrong) ratings back to the contracting officer until the rating is reasonable (i.e., correct)
- Potentially also award monetary damages for the impact of the incorrect past performance ratings
Now You “Know”
Of course, being able to appeal a negative CPARS rating doesn’t mean that rating will automatically get changed. Many times, a negative past performance rating is negative for a good reason, and contractors should not expect the government to roll over and change it just because of an appeal. But the Boards of Contract Appeals and Court of Federal Claims will give CPARS appeals a thorough, and fair review. Now, everyone “knows” something can be done to correct erroneous past performance ratings that would otherwise make winning future contracts a dicey proposition.
About the Author:
|William Weisberg, Esq
William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013.