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Board Had Jurisdiction over Performance Rating Challenge

Even though a board of contract appeals cannot grant injunctive relief, the Armed Services Board of Contract Appeals had jurisdiction over a claim challenging a negative performance rating because the appeal raised contract interpretation issues. The dispute arose from a task order awarded under an indefinite-delivery/indefinite-quantity contract to provide environmental restoration and construction services. As part of its prayer for relief in its complaint, the contractor requested the board "to rescind its 'red' performance rating." The government moved for dismissal, arguing the board lacked jurisdiction to consider the performance rating dispute because it lacked authority to grant injunctive relief.

Applicable Clause

The board granted the government's motion to the extent the contractor sought rescission of the negative rating because boards cannot provide specific performance or injunctive relief. However, it is well settled that boards have jurisdiction to entertain claims for contract interpretation. Thus, the board had jurisdiction to evaluate the government's actions in light of applicable contract clauses. Here, the claim invoked the contract's Awarding Orders clause, which required the government to afford the contractor "a fair opportunity to be considered" for task orders and set forth evaluation criteria the CO must use in connection with that fair opportunity, including the contractor's performance on prior TOs. The board also had jurisdiction to determine whether the government breached its implied contractual duty of good faith and fair dealing inherent in every contract. (Versar, Inc., ASBCA, 92,871)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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