Among some contractors, it’s taken as an article of faith that even a single negative Contractor Performance Assessment Report will effectively preclude the contractor from winning new government work.
While it’s undoubtedly true, in my opinion, that some Contracting Officers place too much emphasis on a single less-than-perfect CPAR, it’s also true that a contractor with multiple negative CPARs can still win government contracts, so long as the government reasonably believes that the contractor can successfully perform the new work. Case in point: a recent GAO bid protest decision upholding an award to a company with nine (count ’em!) recent, relevant and negative CPARs.
Ask many government contractors, and they’ll tell you that even a single negative report in the Contractor Performance Assessment Reporting System can have a powerful adverse impact on winning future prime contracts.
Given the importance of these performance reports, it’s little wonder that a contractor on the receiving end of a negative CPAR may want to ask a judge to review the matter. But as one recent case demonstrates, a contractor cannot challenge a CPAR with a judge until the contractor has followed the FAR’s claims process.
There’s a scene in 2016’s War Dogs where the Jonah Hill character explains to his employees that they are going to spend all day every day digging through one website. In the background, extras are seen staring in to the blue and yellow glow of FedBizOpps.gov.
“Oh my,” I exclaimed from my couch to no one in particular. “I use that website every day—it’s terrible.”
GAO recently sustained protest to an agency’s FAR Part 13 procurement that relied exclusively on CPARS-generated assessment chart rating percentages to evaluate vendors’ past performance. The agency’s goal was to “maximize competition” by considering all past work, rather than just relevant work.
While there is no FAR Part 13 regulatory prohibition on doing so, GAO found the CPARS charts incomplete and misleading and the evaluation inconsistent with the terms of the solicitation.
Multiple-award task-order contracts are becoming an increasingly common feature of government contracting, and many carry very high ceiling values. This places participation in MATOC awards at a premium.
Unsurprisingly, base MATOC awards are being protested with some frequency before GAO. In a recent decision, GAO provided a unique solution for sustaining MATOC protests without causing substantial disruptions: simply adding the successful protester to the pool.
A contractor’s attempt to challenge an adverse Contractor Performance Assessment Report was not a bid protest subject to the bid protest jurisdiction of the U.S. Court of Federal Claims.
In a recent decision, the Court rejected a protester’s creative attempt to challenge a CPAR as part of a bid protest. Instead, the Court held, a CPAR ordinarily must be challenged through the FAR’s claims and appeals processes–although the Court appeared to leave the door open to bid protest challenges in limited circumstances.