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CFC Lacked Authority to Set Aside Performance Evaluations

A complaint challenging unsatisfactory performance evaluations failed to state a claim upon which relief could be granted because the Court of Federal Claims lacks authority to order the government to set aside a negative performance evaluation or to remove evaluations from a government database. After the government issued final performance evaluations rating the roofing contractor's overall performance under two task orders as unsatisfactory, and entered the results into the Construction Contractor Appraisal Support System, the contractor sought a judicial determination the evalution was unlawful and an order directing the government to remove the evaluations from the database. The government moved to dismiss, contending the CFC lacked subject matter jurisdiction or, in the alternative, that the complaint failed to state a claim pursuant to CFC Rule 12(b)(6). After determining it had jurisdiction over the complaint (53 CCF 79,046), the court addressed whether it had the power to grant the relief requested by the contractor.
Claim Not Stated

Although the Tucker Act grants the CFC the authority to remand "any case within its jurisdiction" to the government with "such direction as it may deem proper and just" (see 28 USC 1491(a)(2)), the CFC cannot direct the government to reach a particular conclusion on the merits of a performance evaluation. Thus, the CFC can review the procedural propriety of a performance evaluation and remand the matter to the government with a description of procedural deficiencies and direction on to how to remedy them. Also, the CFC can remand a matter if it determines the government abused its discretion in determining an assigned performance rating was "accurate" and "fair." This type of remand would involve a "proper and just" direction for the government to reexamine its rating and either build a proper record for the rating, or assign a rating that is supported by the record. However, the CFC cannot mandate, on remand, that the government assign a particular rating, withdraw a rating, or remove a rating from a database. Here, the complaint did not contain sufficient factual allegations to suggest entitlement to remand, even if the complaint were read broadly enough to request this type of relief. In the interest of fairness, the court deferred ruling on the motion to dismiss to allow the contractor an opportunity to seek leave to file an amended complaint. (Todd Construction, L.P. v. U.S., FedCl, 53 CCF 79,146)

(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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