By Government Contracts Editorial Staff
The Court of Federal Claims granted in part and denied in part a motion to dismiss challenges to the protester’s Contractor Performance Assessment Report because, although the court’s bid protest jurisdiction does not include direct challenges to performance evaluations in other contracts, allegations the government used the CPAR in bad faith to award a contract stated a bid protest claim. In challenging the award of a dry-dock maintenance contract for the Prevail, the protester contended a CPAR issued for its performance of dry-dock maintenance on the Narragansett was not “factual” or “correct” and “directly caused” the government to reject the protester’s bid on the Prevail contract.
Direct Challenges to CPAR. There was no merit to the protester’s argument it was appropriate to “correct” the CPAR through its protest of the Prevail contract award. The Court of Appeals for the Federal Circuit has strongly discouraged the challenge of performance assessments through bid protests (Bannum, Inc. v. U.S., 49 CCF ¶78,378). Further, the protester’s assertion the government breached its duty to perform the CPAR evaluation and report in accordance with the Federal Acquisition Regulation raised issues of contract administration and constituted a contract claim under the court’s Contract Disputes Act jurisdiction. Similarly, the protester’s allegation the issuance of the CPAR amounted to a de facto debarment and deprivation of its constitutional rights focused on the substance of the CPAR and was a CDA claim, not a bid protest claim.
Use of CPAR in Awarding Contract. However, the protester’s allegation of government bad faith in issuing the CPAR and, more importantly, using the CPAR in awarding the Prevail contract, contained a bid protest claim. Despite the many concerns of a challenge to a CPAR within the framework of a bid protest, allegations of bad faith conduct in the selection of an awardee are within the court’s bid protest jurisdiction. There was no jurisdictional impediment to the claim, “as long as the focus is on bad faith actions which allegedly compromised the award of the Prevail [c]ontract, rather than on alleged bad faith actions related to the issuance of the CPAR.” (Colonna’s Shipyard, Inc. v. U.S., FedCl, 64 CCF ¶81,838)
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