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Decision on CDA Jurisdiction over Evaluation Dispute Reversed

The Court of Federal Claims reversed a decision asserting jurisdiction over a dispute involving a performance evaluation because the air traffic management contractor's written response to a negative Contractor Performance Assessment Report did not constitute a valid Contract Disputes Act claim. In its prior decision, the CFC held its exercise of jurisdiction was consistent with the Tucker Act and the CDA, and the contractor met the "matter of right" requirement for CDA claims because it cited legal grounds in support of its claim for a fair and accurate performance evaluation (53 CCF 79,035). In its motion for partial reconsideration, which the CFC treated as a motion to dismiss for lack of jurisdiction, the government contended the contractor's response to the CPAR was not a CDA claim because it did not assert entitlement to relief as a matter of right, request relief related to the contract, or assert a CDA claim.

Some Elements Satisfied

The court rejected the government's argument the contractor could not bring suit for a purported violation of FAR 42.1502(a) because the requirement of a fair and accurate performance evaluation was primarily for the government's benefit. The claim satisfied the matter of right requirement because contractors receive benefits from fair and accurate performance evaluations that are at least as important as the benefits afforded government agencies. The court also found no merit in the government's contention the contractor did not seek relief "arising under or relating to" its contract. Precedent supported the view that the provisions of FAR Subpart 42.15 should be read into the contract as mandatory terms, and FAR Subpart 42.15 applies to a wide range of procurement contracts. Moreover, as a matter of logic, the performance evaluation related to the contractor's performance under the contract.

Separate Context

However, the court agreed with the government's contention the contractor's response to the CPAR was simply a comment under FAR 42.1503(b), which allows contractors to submit "comments, rebutting statements, or additional information" in response to performance evaluations. When the CO received the contractor's response in her role as Assessing Official, which was a context separate and distinct from the CDA claim process, the CO "was obligated only to treat the response as contractor comments to a performance evaluation pursuant to FAR 42.1503(b), and not also as a CDA claim." In the absence of a claim, the CO was not obligated to issue a decision, and the CO's "failure" to issue a decision was not a deemed denial. (BLR Group of America, Inc. v. U.S., FedCl, 54 CCF 79,400)




(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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