This document summarizes a webinar on challenging unfair CPARS evaluations. The webinar covered that contractors can challenge inaccurate CPARS evaluations in the Court of Federal Claims or Boards of Contract Appeals by filing a claim under the Contract Disputes Act alleging the evaluation was arbitrary and capricious. Contractors have 6 years to file a claim and must first submit the claim to the contracting officer. Available remedies include declaratory judgments and remanding the evaluation back to the agency for reconsideration. Settlement agreements can include making a fair CPARS evaluation.

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7. CPARS – Contractor Claims
And Remedies

8. CPARS
The Contractor Performance Assessment Reporting System –
www.cpars.gov
For more information on the What, When, Who and How of CPARS
Evaluations, see our last presentation: CPARs – What’s Included And
What If It’s Wrong?
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

9. Where can you challenge an unfair CPARS evaluation?
In the Court of Federal Claims:
In Todd Constr., L.P. v. United States, 656 F.3d 1306 (Fed. Cir. 2011) the Federal
Circuit held that the Court of Federal Claims has jurisdiction to consider a
claim under the Contracts Disputes Act (CDA) 41 U.S.C. § 7101 et seq. alleging
that a CPARS evaluation was arbitrary and capricious.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

10. Where can you challenge an unfair CPARS evaluation?
At the Boards of Contract Appeals:
The Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board
of Contract Appeals (CBCA) also have jurisdiction to consider a claim under the
Contracts Disputes Act (CDA) 41 U.S.C. § 601 et seq. allegeing that a CPARS
evaluation was arbitrary and capricious. See e.g. In re Versar, Inc., 2010-1
B.C.A. P34,437, 2010 ASBCA LEXIS 36 (A.S.B.C.A. May 6, 2010).
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

11. Deadlines to Challenge a CPARS?
6 years to file a claim.
90 days to appeal the denial of the claim to the Boards.
1 year to appeal the denial of the claim the Court of Federal Claims.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

12. What is required to appeal an unfair CPARS?
The contractor must file a claim that meets the requirements of the CDA:
It must be in writing.
It must be submitted to the contracting officer before appeal.
It must request a contracting officer’s final decision.
It must state the relief sought.
See BLR Grp. of Am., Inc. v. United States, 96 Fed. Cl. 9 (2010)
To have standing the contractor must allege that the CPARS was substantively incorrect.
Todd Constr., supra.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

13. What kind of claim?
A claim that the CPARS was substantively incorrect and therefore arbitrary and
capricious.
A claim that the inaccurate CPARS constitutes a violation of the government’s
duty of good faith and fair dealing. Versar, supra.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

14. What remedy is available?
A declaratory judgment is available at both the Boards and Courts.
A contractor who receives a declaration from the Court or Board regarding an
unfavorable CPARS review may use it in the future to explain the unfavorable
review when bidding new government work, but the unfavorable review
remains in CPARS.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

15. What remedy is available?
The Boards “do not have jurisdiction to grant specific performance or
injunctive relief.” Versar, supra.
The Court of Federal Claims does not have jurisdiction under the CDA to
provide injunctive or equitable relief. Todd Constr., L.P. v. United States, 88
Fed. Cl. 235, 243 (2009).
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

16. What remedy is available?
The Court of Federal Claims also has authority to remand the evaluation to the
agency for reconsideration.
“The remand does not mandate a particular factual determination, but directs
the agency's attention to matters the court believes require further action to
create an adequate record for the agency's decision.” Todd Constr., L.P. v.
United States, 88 Fed. Cl. 235, 245 (2009).
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

17. Another Option?
Appeal of Government Services Corporation, ASBCA No. 60367, 16-1 B.C.A. (CCH) ¶
36411 (June 20, 2016). The contractor received a CPARS review that it believed was
unfair and inaccurate, and filed a claim for $100,000 in estimated damages. The
estimate was not based on future profits from lost work, which cannot be recovered,
but on the estimated costs to address the unfavorable review on future proposals. The
contractor calculated how many proposals it would submit on solicitations that require
consideration of past performance during the time period that the unfavorable review
would remain in CPARS, and then estimated the cost “both administrative and legal, of
addressing the issue with future Contracting Officers in the form of negotiations as well
as protests.”
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

18. Another Option?
The Government moved to dismiss this claim on the basis that it failed to state
a sum certain. The Board rejected this argument and validated the estimated
claim, allowing the litigation to proceed. The case ultimately settled, and
there is no case so far granting such a claim. However, this provides another
avenue for contractors to bring the government to the negotiating table.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

19. CPARS in Settlements
FAR 42.1503(b)(1): The evaluation should include a clear, non-technical description of
the principal purpose of the contract or order. The evaluation should reflect how the
contractor performed. The evaluation should include clear relevant information that
accurately depicts the contractor’s performance, and be based on objective facts
supported by program and contract or order performance data. The evaluations should
be tailored to the contract type, size, content, and complexity of the contractual
requirements.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

20. CPARS in Settlements
There is no statutory basis for the government to refuse to make a fair CPARS
evaluation part of a settlement.
2019 – Fed Gov Con Webinar Series - Washington DC
JSchaus & Associates

21. THANK YOU!
JSchaus & Assoc.
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Speaker: Maria L. Panichelli
Michael A. Richard
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215-665-3298