The Civilian Board of Contract Appeals (CBCA) recently affirmed that it would follow the Court of Federal Claims (COFC) and Armed Services Board of Contract Appeals (ASBCA) in refusing to direct an agency to revise a Contract Performance Assessment Report (CPAR). Compucraft, Inc. v. General Services Administration, CBCA 5516, 17-1 BCA ¶ _______. This decision continues the unsatisfying procedural predicament for contractors that are unhappy with a CPAR. While the CBCA, ASBCA and COFC will review a CPAR to "assess whether the evaluation was arbitrary and capricious," they will not direct the contracting officer to rescind or revise it.

The Federal Circuit in Todd Construction, L.P. v. United States held the Contract Disputes Act provides jurisdiction over contractor claims challenging performance evaluations. 656 F.3d 1306, 1311-14 (Fed. Cir. 2011). The Circuit Court did not reach the question of whether injunctive relief would be available to a contractor that showed the agency's evaluation was arbitrary and capricious. Id. at 1311 n.2. While the Federal Circuit has left open the possibility that the COFC's remand authority might encompass injunctive relief in these cases, the ASBCA and COFC have consistently held they do not possess the power to order an agency to change or rescind a CPAR. See, e.g., Versar, Inc., ASBCA 56857, 10-1 BCA ¶ 34,437 at 169,959; Todd Construction, L.P. v. United States, 88 Fed. Cl. 235, 243 (2009). In what might have been described as dicta, the CBCA followed suit in Sylvan B. Orr v. Department of Agriculture. CBCA 5299, 16-1 BCA ¶ 36,522 at 177,930. The CBCA's most recent decision on this topic removes any doubt that it too believes it cannot order injunctive relief in such cases. Compucraft, Inc., 17-1 BCA ¶ ______.

This line of cases leaves contractors in a deeply unsatisfying situation. While the COFC, CBCA and ASBCA will review challenges to performance evaluations, they will not grant contractors meaningful non-monetary relief. At best, a contractor seeking non-monetary relief might obtain a declaration that the agency's evaluation was arbitrary and capricious and the declaration's moral force might persuade the contracting officer to revise the evaluation on remand. Even in that case, such a declaration is likely to come only years after the CPAR has been on file and used as past performance for subsequent procurements, further blunting its practical effect.

Given this predicament, some contractors have begun to frame their challenges to performance evaluations as monetary claims. While it does not appear any tribunal has yet awarded monetary damages on the basis of a flawed performance evaluation, there are early indications that this could be a viable path. In Government Servic Corp., the ASBCA refused to dismiss a contractor's claim for $100,000 in damages resulting from the agency's breach of good faith and fair dealing. ASBCA 60367, 16-1 BCA ¶ 36,411. The contractor alleged that a negative CPAR would lead to future costs in addressing the issue with future contracting officers in the form of negotiations and protests. While the ASBCA's denial of the agency's motion may simply have been a consequence of the agency's questionable decision to seek dismissal on the basis that the $100,000 was an estimate and thus not a "sum certain," the decision is still an encouraging sign for contractors seeking meaningful oversight of the performance evaluations that have such importance in the federal procurement system. More to come.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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