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.
