Challenging bad past performance reviews
POSTED ON Tuesday, Aug 3 2010
BY KENNETH B. WECKSTEIN and SHLOMO D. KATZ

Past performance is a key evaluation factor in virtually every federal procurement, yet it is something over which contractors have frustratingly little control. How can that be, you wonder? Doesn't a contractor create its own past performance by how it performs its contracts?

Not entirely. Under the performance evaluation system legislated by Federal Acquisition Regulation (FAR) part 42.15, contracting personnel input detailed past performance information -- including subjective opinions -- into databases that other agencies can access to see what experiences their colleagues have had with a given contractor. One such system is the Contractor Performance Assessment Reporting System or "CPARS." In the CPARS, contractors are evaluated at least once a year, and sometimes more frequently, on a variety of factors, including their Business Relations. A contractor who is deemed uncooperative by the contracting officer, for example, because the contractor is trying to hold the Government to the terms of the contract, might be marked "unsatisfactory" under Business Relations. And, the contractor might get the kiss of death -- a rating of "Definitely would not award another contract."

Officially, contractors can review their CPARS and have their rebuttals included in the database, but what Government employee is going to believe the rebuttal of a biased contractor over the "unbiased" assessment of another Government employee? Contractors have occasionally tried to challenge negative CPARS in court, but have been largely unsuccessful. When the suits have been filed in U.S. district courts, the Government has typically moved to dismiss because Government contract cases are supposed to be brought in the Court of Federal Claims or at the Boards of Contract Appeals. But, when the cases have been filed in those traditional Government contracts forums, the Government has argued that they should be dismissed because the contractor has not filed a certified claim under the Contracts Disputes Act (CDA).

A recent decision of the Armed Services Board of Contract Appeals (ASBCA) suggests that contractors may have a remedy, albeit an incomplete one. In Colonna’s Shipyard, Inc., ASBCA No. 56940 (June 24, 2010), the ASBCA found that when the contractor receives a bad performance evaluation because of a disagreement with the contracting officer over what the contract requires, the contractor can use the disputes process to obtain a ruling that its contract interpretation is correct. The contractor need not request monetary relief to get a decision from the ASBCA. For example, if the contractor believes that it was wrongly assigned low grades for the timeliness of its performance, it can obtain a contract interpretation saying that it was right and the Government was wrong.

The question then becomes, what happens with the bad past performance review in the CPARS or other databases? Boards of Contract Appeals do not seem to have authority to order the Government to remove the improper past performance ratings. That leaves the contractor with few options. It could go back to the court and try to get relief and it could ask the Government to post the Board decision along with the past performance review. Either way, if a contractor wants to challenge a negative past performance review, there is a way to navigate the case law to get some practical relief.



TAGS:
government contracts, Weckstein, Katz, Federal Acquisition Regulation (FAR), Contractor Performance Assessment Reporting System (CPARS), Contract Disputes Act of 1978, Armed Services Board of Contract Appeals (ASBCA)
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One small step against Bundled Contracts
POSTED ON Monday, Aug 2 2010
BY KENNETH B. WECKSTEIN and AMY WALBORN

The Obama Administration recently took a small step to execute its agenda to promote transparency in contracting and small businesses. The Department of Defense ("DOD") released an interim rule effective July 13, 2010 amending the Defense Acquisition Regulation Supplement ("DFAR") to require DOD contracting officers to publish a notice of a solicitation for a bundled acquisition on a public website. "Bundling" is a practice where an agency will combine a number of small requirements that were separate contracts into a single larger contract that may be unsuitable for award to a small business concern. The separate smaller contracts often had been performed by small business concerns or were at least suitable for award to a small business concern. When contracts are bundled into one larger job with different categories of work, small businesses that had been capable of performing the smaller contracts may not have the capability to perform the larger, bundled contract. For that reason, bundling has been criticized as limiting opportunities for small businesses to compete for government contracts.

Currently only the incumbent small business contractor is required to be notified if the follow on contract is going to be bundled. With the new change, the information will be posted for any interested contractors to see. As a result, more small businesses will have the opportunity to submit concerns to the agency (and possibly protest) a bundled acquisition. This notice is to be posted at least 30 days prior to release of the solicitation on the website www.FedBizOpps.gov. In the notice, the DOD is required to describe the "measurably substantial benefits" that are expected to be derived as a result of the bundling. This notice requirement only applies to DOD contracts but it will likely be seen as an improvement by small business owners that seek business with the DOD. DOD is accepting comments on this interim rule until September 13, 2010. For more information see the Federal Register at 75 FR 40714 available here.



TAGS:
government contracts, Weckstein, Walborn, Obama Administration, Department of Defense (DOD), Defense Acquisition Regulation Supplement (DFAR), bundling
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Exceptions to Every Rule
POSTED ON Tuesday, Jul 6 2010
BY KENNETH B. WECKSTEIN and TAMMY HOPKINS

In Federal Government Contracts, for every black letter rule, there often is an exception. This maxim was proven yet again by a case decided by the US Court of Federal Claims in May.

In Magnum Opus Technologies, Inc., et al., v. United States, et al., -- Fed. Cl. --, 2010 WL 2255523 (Nos. 10-106C, 10-127C May 28, 2010), the Court of Federal Claims granted Plaintiffs’ Motion on the Administrative Record, concluding that the Air Force improperly exercised options for extending ID/IQ contracts for four out of six of the contract-holders. The case was framed as a bid protest – with the plaintiffs arguing that the Air Force violated FAR 17.207 and was required to hold a new competition for the option work. Ultimately, the Court agreed.

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Government to publish J&A's for sole source contracts.
POSTED ON Thursday, Jun 24 2010
BY KENNETH B. WECKSTEIN and MICHAEL D. MALONEY

We previously blogged that the Government soon may resort to sole-source contract awards in response to the overwhelming oil clean up and containment needs along the Gulf Coast in the aftermath of the BP oil spill disaster. Flexibility is an important feature of federal government contracting.

But so is transparency. And the Government just announced new rules that should go a long way to ensure that the sun shines on agencies' sole-source contracting decisions.

The new rules, at FAR 6.305 and 13.501, require agencies to make publicly available Justification and Approval ("J&A") documents for noncompetitive contracts. The new rules go into effect on July 16, 2010. After that date, agencies must post their J&A documents on the agencies' website and at FedBizOpps.gov. Generally, the rules require agencies to post the J&A documents within 14 days of the sole-source award and to maintain the posting for a minimum of 30 days. As with all Government contract rules, there are nuances and exceptions. For example, the publication requirement does not apply if it would disclose the agency's needs and such disclosure would compromise national security or create other security risks. The rules also ensure that contractor proprietary information is not publicly disclosed. Overall, the rules will make sole-source award decisions more transparent and that is a good thing.

If you are a government contractor, however, be careful. These rules have no impact on the bid protest timeliness requirements at GAO or the Court of Federal Claims statutory jurisdiction. These rules and the implementing statute behind them do not affect a sea change in bid protest law. Nor were they intended to do so. For protests at GAO, disappointed bidders generally still must protest sole-source awards within 10 days of when the basis of the protest was known or should have been known. That means that as soon as a company learns that the Government is contemplating a sole source award for work that the company believes it also can perform, the spurned competitor needs to file its protest. That knowledge could come before the J&A is published.

Click here for the new rules.



TAGS:
government contracts, Weckstein, Maloney, Government Accountability Office (GAO), Court of Federal Claims
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