Opportunities to Appeal Past Performance Evaluations are Limited

(Editor’s Note. The following illuminates how much ability you have in reversing an agency’s past performance evaluation.)

Todd sued to force the Army Corps of Engineers to remove “unfair” and “inaccurate” unsatisfactory performance evaluations from the government’s appraisal system. After the Corps rejected its appeal of the evaluation Todd appealed stating the evaluations were made without proper procedures and was erroneous. The Court ruled the allegations constituted a proper claim but concluded it was not authorized to award equitable or injunctive relief because it cannot force the agency to change or remove the performance evaluation but could only remand the case back to the Corps with “proper and just” instructions. The Court explained that “proper and just” instructions do not trump the general prohibition to provide an injunction against the evaluation noting a CO’s decision to assign a particular evaluation is discretionary where the contractor is entitled only to a determination of whether the agency’s rating constituted an abuse of discretion. However, it added that should it find procedural deficiencies or an unfair evaluation, it could issue a declarative judgment to help the agency address identified concerns on remand (Todd Construction V US, Fed. Cl. No 07-324).

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