ConstructionPro Week, Volume: Construction Advisor Today - Issue: 124 - 09/09/2011

Can Contractors Challenge Negative Performance Evaluations?

With today’s emphasis on the wise expenditure of taxpayer dollars, public entities are becoming more aggressive regarding contractor accountability. Media reports of malingering, claim mongering contractors and million dollar change orders put pressure on public officials. One response has been performance evaluations which are stored in a database and used in future procurement decisions.


These performance evaluations, when negative, have a significant, long-lasting impact on contractors. At the worst, they can become a de facto blackballing of a contractor. It is therefore important that a contractor be afforded an opportunity to review and respond to the allegations against it. And the information in databases must be open and subject to challenge.

In a recent federal appeals case, the Federal Circuit ruled that a disgruntled contractor had the right to challenge an agency’s negative performance evaluation. This was a “claim” within the meaning of the Contract Disputes Act. Contractors on federal projects, at least, can effectively challenge negative performance evaluations they consider inaccurate or unfair. But not all contractors on public projects have the same right. At the local level, many performance evaluation systems are – shall we say – informal.


What has been your experience? Do you feel performance evaluations by public project owners are generally fair and balanced? If you disagree with an assessment, is there an adequate opportunity to refute it? I welcome your comments.


Featured in Next Week’s Construction Claims Advisor:

  • Government Disclaimer of Work Area Size Not Enforced
  • No Recovery for Increase in Prevailing Minimum Wage Rates
  • Participation Goal Cannot Be Met with Unnecessary Subcontractor





While we've not been the subject of a negative performance evaluation, it is easy to see how this can turn what is supposed to be awarded on a competetive bid basis into a cornered market for the "favored contractor" affiliated with whomever is presently in power in that particular government. If the government official can put negative evaluations in a file without having to substantiate them or have them survive a challenge, and then make future awards on that basis, they can easily stack the deck in favor of the contractor they want to get the job, even if it is at a premium cost to the taxpayers. And the worst part is that these purported negative evaluations may linger in the file long after the official is out of office, extending the effects even longer.

The contractor must sign each negative assessment sheet before the results are put into the system. Plus, the contractor is given the opportunity to correct the deficiency. The signature of the contractor does not validate that the negative assessment is correct but, does acknowledge the receipt of the negative assessment.

Satisfactory is the grade, outstanding product/workmanship, but remarks at the end of the process were discouraging. Seems like grading system was fair and accurate, but the remarks area ended up being a rehash of some of the issues on the job,(frustrations included a flood thru the jobsite)and were an emotional speel about little. I would take the remarks section and do away with. Report grade was a good one, remarks were less.

Having worked with the Govt as contract support, I feel that this system is not being used correctly. On several projects I was involved with, the contractors were given outstanding, or very good reports, while the projects had been sub-par at best. Any attempt to give them less than satisfactory was blanket rejected by higher-ups.

I agree 100% with NPO. Unless a thorough and neutral evaluation is done this is destined to be an emotional and biased opinion. The low bid system has always been full of risk for both parties. An owner should not expect to have it both ways...lowest cost and highest quality. He might get both, but he should not expect it. If an owner must have high quality he should negotiate with his favorite contractor instead of using the low bid system.

This is the ugly truth that we have to face regarding these evaluations. We can't avoid these biased feedback especially with public projects. I agree with John G. "If an owner must have high quality he should negotiate with his favorite contractor instead of using the low bid system."





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