Do it Right or Not at All: Challenging the Accuracy of a Contract Performance Assessment Report
Construction and Procurement Law News, Q4 2020
The United States Court of Federal Claims recently dismissed multiple challenges to the accuracy of a Contract Performance Assessment Report (CPAR), not based on merit but based on jurisdiction. This serves as a reminder to all that the proper mechanism to challenge a CPAR must be obeyed for the claims to be heard.
In Colonna’s Shipyard, Inc. v. United States, Colonna sought to challenge the accuracy of its CPAR from a previous Navy contract, the Narragansett Contract. After receiving a negative evaluation on the Narragansett Contract, Colonna bid on another Navy contract, the Prevail Contract. Unsurprisingly, the Navy relied on the its previous performance assessment of Colonna and awarded the Prevail Contract to another contractor.
Colonna sought to challenge the accuracy of its prior CPAR by bringing a post-award bid protest after Colonna was not awarded the Prevail Contract. Before the Court ruled on the merits of the case, the Court dismissed three of Colonna’s four claims.
Colonna first raised a bid protest claim. Colonna argued that the Narragansett CPAR was factually incorrect and caused Colonna to lose the Prevail Contract; therefore, the Court should “correct” the CPAR through the bid protest. The Court relied on Bannum, Inc. v. United States in holding that a bid protest is not the proper forum to challenge a CPAR. Colonna then raised a breach of contract claim. The Court again followed Federal Circuit precedent, Todd Construction L.P. v. United States, and held the bid protest was not the proper forum. Finally, Colonna raised claims of an unconstitutional action and de facto debarment action by the Navy. The Court entertained both claims, but the Court held both claims’ substance was a challenge to the Narragansett Contract CPAR. Therefore, the Court lacked jurisdiction to hear the unconstitutional and de facto debarment claims. Instead, the Court held that the proper mechanism to challenge the accuracy of a CPAR was an action asserted under the Contract Disputes Act. The Court dismissed all three claims for lack of jurisdiction.
The only claim the Court determined it had jurisdiction to hear was Colonna’s breach of the covenant of good faith and fair dealing claim. Colonna claimed the Navy acted in bad faith in awarding the Prevail Contract. The Court held this claim, to the extent it focused on bad faith in awarding the Prevail Contract and not bad faith in the creation of the Narragansett Contract CPAR, was within the Court’s bid protest jurisdiction.
The Colonna decision provides clear guidance on a question that contractors frequently ask about a CPAR rating. First, try to negotiate a better rating, addressing the bases for the lower rating. If still not satisfied, make the claim under the CDA, or combine it with other (monetary claims) under the CDA. Do not wait until the time to contest has passed or until the poor rating causes economic harm in a later bid.