CPARS and Past Performance Challenges

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Past performance evaluations follow a contractor for years. Ratings entered in the Contractor Performance Assessment Reporting System (CPARS) are used by source selection officials across the government, and a single marginal or unsatisfactory rating can cost a contractor future awards. Contractors have the right to respond to an evaluation and, in many cases, to challenge it. Acting quickly and presenting the facts persuasively can make a real difference.

Agencies are required to evaluate contractor performance on contracts above certain dollar thresholds, typically at least annually and at contract completion. The assessing official rates areas such as quality, schedule, cost control, management, small business subcontracting and regulatory compliance, and adds a narrative. The contractor is then notified and given up to 14 calendar days to submit comments, rebut the evaluation or provide additional information. The evaluation becomes available to source selection officials no later than 14 days after notification, whether or not the contractor has commented, so any delay means other agencies may see the rating before your response is in the record.

• Read the narrative closely and identify factual errors, missing context and ratings that are inconsistent with the narrative itself.
• Gather contemporaneous records, such as correspondence, modifications, schedules and acceptance documents, that support your position.
• Show where government actions, such as late direction, changes or defective specifications, caused the problems being blamed on the contractor.
• Request a meeting with the assessing official when the issues are significant.
• Keep the tone factual and professional, since future evaluators will read your response.

When a contractor disagrees with the assessment, the evaluation is reviewed at a level above the contracting officer. A well-documented response often leads to a revised rating.

If the agency will not correct an inaccurate evaluation, the contractor may be able to submit a claim under the Contract Disputes Act asking the contracting officer to revise it, and then appeal to the Board of Contract Appeals or the Court of Federal Claims. Tribunals review whether the evaluation was arbitrary, capricious or inconsistent with procedures. They generally cannot rewrite the rating themselves, but they can find that it was improper and direct the agency to reconsider. Strict procedural requirements apply, so contractors should get advice before filing.

Disputes often arise when an evaluation blames the contractor for delays the government caused, relies on a single incident to rate an entire period, ignores corrective actions the contractor took, or was prepared by someone with little involvement in the contract. Evaluations that are entered late, after key personnel have left, or that contradict earlier positive interim ratings are also frequent sources of error.

Past performance problems also surface in source selections. If an agency relies on an inaccurate or irrelevant evaluation, or treats offerors unequally, a bid protest may be available. Unfavorable evaluations can also be linked to cure notices and terminations for default, so they should be addressed as part of an overall strategy.

Your past performance record is one of your most valuable competitive assets. If you have received a draft CPARS evaluation you disagree with, the comment period is short. Contact us right away, and visit bctwlaw.com to learn more about our firm.