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ASBCA Holds That Of Contracting Officer’s Decision Does Preclude Appeal Challenging Performance Evaluations

Authored by attorney Neil S. Lowenstein

In a recently released decision (11/18/13, Metag Insast Ticaret A.S., ASBCA No. 58616), the Armed Services Board of Contract Appeals reaffirmed its earlier holding that performance evaluation disputes may constitute Contract Disputes Act (CDA) claims, if the contractor has sought a final decision, as being an appealable request for interpretation of contract terms and relief therefore arising under the contract. In Metag, the Board further allowed the appeal to proceed even though the Contracting Officer (CO) had not issued a final decision.

In a recently released decision (11/18/13, Metag Insast Ticaret A.S., ASBCA No. 58616), the Armed Services Board of Contract Appeals reaffirmed its earlier holding that performance evaluation disputes may constitute Contract Disputes Act (CDA) claims, if the contractor has sought a final decision, as being an appealable request for interpretation of contract terms and relief therefore arising under the contract. In Metag, the Board further allowed the appeal to proceed even though the Contracting Officer (CO) had not issued a final decision.

The government had moved to discuss Metag’s appeal on that basis. But the Board held that Metag had provided the CO a reasonable amount of time to issue a decision before appealing, considering the size and complexity of the claim. This is despite the fact that only 51 days had elapsed between the final decision request and the appeal, but the Board concluded that 176 days had elapsed between Matag’s claim submission and the government’s motion to dismiss without a CO’s decision on the claim; and so the CO’s delay was unreasonable.

Performance evaluations are a continuing critical aspect of government contracts projects, and with best value and other more evaluative procurement processes are very important in both the administrative processes for the project for which they are issues and future prospects. It is therefore important for contractors to review and formally respond to any performance evaluations; but particularly those resulting in “marginal” or “unsatisfactory” ratings. Ideally, performance disagreements can be resolved as part of that review and response process; but if not the ability to request a CO’s final decision about performance ratings is another important tool in the contractor’s toolbox. The Metag decision reinforces that right, and the obligations of COs to reasonably and timely address contractor’s concerns respecting evaluation ratings.

For more information about this or other government contracts matters, please contact Neil Lowenstein or any other member of the Vandeventer Black Construction and Public Contracts team.

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.

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