Negative Past Performance Evaluation? When and How to Challenge It.

The evaluation of a contractor’s past performance is one of the most important non-price factors taken into account by a procuring agency during the source-selection process. A negative past performance evaluation can substantially reduce a contractor’s chances of retaining work and/or obtaining future federal work.   Sometimes a contractor’s negative review is justified, and other times it is not. Whether you believe the evaluation is justified or not, it is important to understand what rights and procedures are available if you receive a negative past performance evaluation.

The procedures that procuring agencies must follow when completing past performance submissions and the regulatory process for challenging a past performance evaluation are described in FAR 42.1503 and here we’ll break down that process:

  • Agency evaluations of contractor performance, including both negative and positive evaluations, shall be provided to the contractor as soon as practicable after completion.
  • You then have up to 14 calendar days from the date of the notification to submit your comments, rebutting statements, or additional supporting information.
  • Once your comments are submitted, the agency must provide a review of the evaluation at a level above the Contracting Officer.
  • If you disagree with the review and want to challenge it further, you should request a Contracting Officer’s Final Decision pursuant to the Contract Disputes Act (CDA).

Both the Court of Federal Claims and the Boards of Contract Appeals have jurisdiction to hear disputes over a contractor’s past performance evaluation as they are now recognized as claims under the Contract Disputes Act. If you have obtained a Contracting Officer’s Final Decision, and want to challenge the negative evaluation further, contact an experienced government contracts attorney.

About the Author:
Allison-Murphy-Author

Allison Murphy
Allison Murphy focuses her practice on government contracts,
construction law and commercial litigation.

LinkedIn BUtton

 

 

Disclaimer:
This blog is provided for general informational purposes only. Because Groff Murphy is a law firm and the authors of this blog’s content are attorneys, the information provided is often legal in nature. An attorney-client relationship is not established by reading this content. By using the blog, you agree that the information on this blog does not constitute legal or other professional advice, and no attorney-client or other relationship is created between you and the author(s), or Groff Murphy or any of its partners, associates or of-counsel. The information is not guaranteed to be correct, complete or up-to-date as information is subject to change and may not be reflected in prior content. The opinions expressed within the blog are the opinions of the author and may not reflect the opinions of Groff Murphy or any other individual attorney at Groff Murphy.

Outcomes: Every legal matter is different, case outcomes are affected by many different variables. No attorney and/or author can guarantee a result in any particular case nor can results be guaranteed based on prior outcomes.

Categories: Contract Disputes Act, Government Contracting, and Performance Evaluation.