Proposed Rule Deprives Contractors of Right to Contest Negative Performance Evaluations

A Ball Janik LLP Government Contracts Law Update

07/26/2011

On June 28, 2011, the Government published a notice of a proposed rule that would remove the requirement that the Government provide contractors the opportunity to both (1) comment on proposed negative performance evaluations and (2) appeal a negative evaluation one level above the contracting officer.  Given the importance of past performance evaluations in future contract awards and the difficulty of challenging evaluations before either the Boards of Contract Appeals or the Court of Federal Claims, this proposed change is significant.

FAR 42.1503(b) currently provides:

          Agency evaluations of contractor performance prepared under
          this subpart shall be provided to the contractor as soon as
          practicable after completion of the evaluation.  Contractors shall
          be given a minimum of 30 days to submit comments, rebutting
          statements, or additional information.  Agencies shall provide for
          review at a level above the contracting officer to consider
          disagreements between the parties regarding the evaluation.

The proposed rule will replace the current FAR 42.1503 in its entirety and includes only the following requirement relevant to contractor input:

          Agency evaluations of contractor performance, including both
          negative and positive evaluations, prepared under this subpart
          shall be provided to the contractor as soon as practicable after
          completion of the evaluation.

76 Fed. Reg. 37706 (June 28, 2011).  Thus, the proposed rule removes the requirement that the Government provide the contractor with either the opportunity to comment on or rebut negative statements in an evaluation, as well as the current  requirement to provide for review of disagreements over past performance evaluations one level above the contracting officer.  Industry comments on the proposed rule are due by August 29, 2011.

Ball Janik LLP Government Contracts Law Updates are published as a service to clients and friends of our firm.  This information is intended for information purposes only and is not intended to convey legal advice.  Readers should not act on information in this update without first seeking legal advice.

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