Performance evaluation challenge allowed to proceed

The Court of Federal Claims denied the government's Motion to Dismiss for Lack of Subject Matter Jurisdiction in a suit against an agency for an allegedly baseless negative performance evaluation.

In recent years, government procurement has moved away from simply awarding a contract to the lowest bidder. Rather, contracting officer rely more and more on a contractor's past performance with other agencies. Thus, a negative performance evaluation can seriously damage a contractor's ability to obtain future work from the government.

The Court's decision-- and another decision on a 12(b)(1) motion a month prior-- potentially open the door for similar suits by subcontractors. In both cases, however, the Court required that there must first be a request by the contractor to the contracting officer challenging the evaluation and explaining why the evaluation should be changed. Only a denial or refusal to act on this claim is sufficient to pass SMJ muster in the Court of Federal Claims.

The case is Todd Construction Co. v. U.S.