The U.S. Government maintains past performance records on contractors that perform work on U.S. Government contracts. A poor past performance report could result in denied awards, payment of damages, or a default termination. These performance ratings are based, in part, upon the following:
- Contract Performance
- Quality Assurance
- Program Management
- Engineering Support
- Problem Solving
- Personalities
- Communication
- Team Meetings
- Subcontractor Management
- General Administration
- Supplier Performance
- Technical Ability
- On Time Deliveries
- Managing Price
When making a past performance assessment the Contracting Officer/Government is required to use actual standards when making positive or negative assessments of the contractor. This assessment is documented per FAR Part 42.1500. This information is made publically available to all Government agencies to use when conducting a FAR Part 13: Contractor Responsibility Determination. This gives the Contracting Officer a great deal of power that can be inappropriately used against the contractor. In order to maintain a fair and reasonable past performance rating system the contractor now has the right to appeal and potentially amend past performance rating.
RIGHT TO APPEAL:
The Courts stated “Given the Increasing importance of performance reviews and prejudice to contractors from erroneous ratings that an assertion by a Contractor challenging their past performance rating was a CLAIM. This decision gave the Court of Federal Claims and the Appeals Boards the jurisdiction to adjudicate a past performance dispute and make a recommendation to have the past performance rating amended to reflect the truth of the matter.
As a Department of Defense contractor you have the right to legally challenge any past performance rating. When considering whether to challenge your performance rating you need to consider that failure to challenge could seriously hinder your ability to obtain new contracts.
For more information send an email to PMalyszek@dodbooardofappeals.com