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