Challenging Negative CPARS at the Court Of Federal Claims: A Cautionary Tale

Cautionary tales have been around for hundreds of years, serving to warn its listeners of a certain danger. They traditionally have three parts: 1) a danger is identified; 2) someone engages in the dangerous act; 3) the results of engaging in the dangerous act are undesirable. This is one of many cautionary tales in the government contracts arena.

First, a dangerous act -- in this tale, challenging negative performance evaluations at the Court of Federal Claims ("COFC").

Second, someone engages in the dangerous act -- in Torres Advanced Enterprise Solutions, LLC v. United States, No. 17-868C, 2017 WL 4366238 (Fed. Cl. Oct. 2, 2017), the plaintiff alleged (among other things) that the Department of State exaggerated and manufactured negative performance issues during the review of plaintiff's performance of the incumbent contract and entered those evaluations into the CPARS.

Third, the results are undesirable -- negative information about plaintiff's past performance is made public. Here, the plaintiff sought to redact all negative information that derived from CPARS evaluations of the plaintiff's incumbent contract performance. The COFC found that such information should not be redacted and should be made available to the public

The plaintiff argued that CPARS information is "source-selection information that should be protected from disclosure to prevent [plaintiff's] competitors from gaining an unfair advantage in future solicitations." The COFC acknowledged that past performance information entered into the CPARS is source-selection information and should not be released to other than Government personnel pursuant to the FAR. However, in rejecting the plaintiff's argument, the COFC noted that the FAR provisions cited apply only to procuring agencies and their officials. Those constraints do not apply to the COFC, which is instead bound only by the protective order issued by the court.

The COFC's protective order provides for the redaction only of information that will "safeguard the competitive process, including source selection information, proprietary information, and confidential information." A party seeking to redact information must therefore show that the information's disclosure would cause competitive harm. The plaintiff argued that making such information public would enable competitors to overbid based on the belief that they could use the negative past performance evaluations against the plaintiff. The COFC rejected this argument, pointing out that: 1) procuring agencies will have access to the CPARS regardless of whether they are public; and 2) that an offeror who submits a higher price is at a disadvantage in any given procurement, and therefore, a competitor proposing a higher price than it otherwise would have submitted cannot harm the plaintiff.

So while challenges to CPARs may be necessary to correct arbitrary evaluations, if the court disagrees with the legal challenge, the negative past performance may be bared for the world to see.