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

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