Government Contracts Monitor

Like It, or Not: An Agency Can Evaluate Your Performance Whether It’s Required or Not

February 16, 2015

By: Lindsay Simmons

We often hear complaints from contractors that have not received Past Performance Evaluations (PPEs), and for good reason.  PPEs are critical to a contractor’s ability to compete successfully for new government business.  It therefore is surprising to see a contractor complain – actually sue – when the government issues a PPE.  But that’s exactly what happened in a somewhat bizarre case recently decided by the U.S. Court of Appeals for the Federal Circuit, Jacqueline R. Sims v. United States, 14-5076. 

In Sims, the contractor argued that the government breached its contract when the Contracting Officer (CO) prepared Past Performance Evaluations regarding the quality, timeliness and other aspects of Sims’ work fulfilling service contracts with the Bureau of Prisons.  Not surprisingly, the PPEs reflected poor performance by Sims and formed the basis upon which a CO (in an unrelated procurement) found Sims to be nonresponsible.

According to Sims, the PPEs were not required under the Federal Acquisition Regulation (FAR) or the terms of Sims’ contracts and, thus, the Agency exceeded its authority and thereby breached Sims’ contracts when it prepared PPEs under circumstances not expressly identified in FAR 42.15 as requiring PPEs.  The Court of Federal Claims disagreed, and the Federal Circuit affirmed. 

Sims claimed that the FAR describes the “only situations in which a government agency can prepare PPEs”.  On the contrary, however, the trial court found that COs have broad discretion to create PPEs, except in the very limited circumstances set forth in the FAR (for example, under FAR 8.7, Acquisitions from Nonprofit Agencies Employing People Who are Blind or Severely Disabled).  The Federal Circuit agreed that a “contracting officer is given discretion to prepare performance evaluations” and held that the FAR does not describe the only situations in which PPEs may be generated. 

There are many obvious take-aways from this case, but the take-away we wish to focus on is this: Even under contracts where the CO is not required to prepare and file a PPE, you can and should urge the CO to do so if your performance is strong.  Building a robust database of PPEs that establish your track record of performing at a high level is very important.

Lindsay Simmons is responsible for the contents of this article.

© Jackson Kelly PLLC