ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Crowley Government Services, Inc. ) ASBCA No. 63531
)
Under Contract No. N62387-15-C-2505 )
APPEARANCES FOR THE APPELLANT: James Y. Boland, Esq.
Caleb E. McCallum, Esq.
Venable LLP
Tysons Corner, VA
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
James L. Johnsen, Esq.
Donald J. Thornley, Esq.
Patrick M. Mayette, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT’S MOTION TO DISMISS
On February 13, 2023, appellant, Crowley Government Services, Inc. (Crowley
or CGS), appealed from a contracting officer’s January 30, 2023 final decision in
which the contracting officer at least purported to rescind a Contractor Performance
Assessment Reporting System (CPARS) made by Military Sealift Command (MSC) in
connection with Contract No. N62387-15-C-2505, in response to Crowley’s
November 14, 2022 claim to the contracting officer challenging the CPARS.
Crowley’s claim states:
This [Contract Disputes Act] (CDA) claim seeks relief
from the government’s inaccurate and unfair past
performance evaluations of Crowley under the contract, as
reflected by three past performance evaluations in the
Contractor Performance Assessment Reporting System
(“CPARS”) posted recently by MSC . . . . For the reasons
explained in further detail in this claim, the assigned
ratings of Marginal (and in some cases of Satisfactory) and
the accompanying adverse narratives are factually
inaccurate, inconsistent with the requirements at Federal
Acquisition Regulation (“FAR”) Subpart 42.15, and
unfair. In addition, contrary to applicable law and
regulation, Crowley never received an opportunity to
review and respond to these evaluations before MSC
finalized and posted them. Only recently did MSC permit
Crowley to submit responses, meaning that officials
evaluating Crowley’s proposals for further government
business have been relying on unfair and inaccurate
information regarding Crowley’s performance. In fact,
Crowley has performed all aspects of the contract as
required and in compliance with all contract terms.
(R4, tab 2 at 1) (emphasis added). And the contracting officer’s final decision states:
Although MSC’s leadership stands by the factual substance
of its CPARS ratings, in recognition of MSC’s
longstanding business relationship with CGS and the
possible procedural irregularities during the issuance of
these three CPARS entries, I will direct the following
relief: MSC will rescind the finalized performance
evaluations in CPARS for the 2016-2017, 2017-2018, and
2018-2019 reporting periods. This relief is the most
equitable resolution to the claim given the difficulty of
resolving factual disputes from performance periods
extending back over 7 years, the diminishing relevance of
these performance periods to CGS’s likelihood of success
in future government contracts, and the availability of
other sources of information available to future procuring
agencies to assess CGS’s performance on this contract, i.e.
past performance questionnaires.
(R4, tab 1 at 1-2) (emphasis added). Crowley’s February 13, 2023 notice of appeal
indicates that the appeal challenges the terms of the rescission – specifically the
contracting officer’s reservation regarding the “factual substance” of the CPARS
ratings – stating (emphasis added):
On November 14, 2022, Crowley submitted a claim
pursuant to the CDA seeking a contracting officer’s final
decision providing relief from unlawful, factually
unsupported, and procedurally improper CPARS
assessments issued under Contract No. N62387-15-C-
2505. On January 30, 2023, the contracting officer issued
a final decision denying the full relief sought by Crowley,
stating that “MSC’s leadership stands by the factual
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substance of its CPARS ratings” and that Crowley has a
right of appeal.
The government moves to dismiss the appeal, saying that “the contracting
officer’s relief mooted” the claim (gov’t mot. at 1), and cites DynCorp International,
LLC, ASBCA No. 62,227, 20-1 BCA ¶ 37,682 at 182,944, for the point that “when it
develops during litigation that the relief sought has been granted, or the matters in
controversy are no longer at issue, the case is moot and should be dismissed for lack of
jurisdiction.” However, there is no “litigation development” at issue in this appeal;
that is, nothing has happened during the litigation of this appeal that has arguably
mooted the appeal. Rather, an element of the contacting officer’s decision – that is,
what is at least arguably a reservation of the “factual substance” of the CPARS ratings
despite the rescission of “the finalized performance evaluations in CPARS for the
2016-2017, 2017-2018, and 2018-2019 reporting periods” – is the subject of the
litigation (R4 tab 1 at 1).
A case is moot when the issues presented are no longer “live” or the parties lack
a legally cognizable interest in the outcome. Humane Society of the United States v.
Clinton, 236 F.3d 1320, 1331 (Fed. Cir. 2001). At least at this early stage of the
litigation, we identify in this appeal the following live issues: (1) whether, given the
reservation in the rescission decision of the “factual substance” of the CPARS ratings,
that “factual substance” somehow survives the contracting officer’s rescission
decision, to the prejudice of Crowley; and (2) whether, if so, the “factual substance” of
the CPARS ratings is fair, accurate, and consistent with Federal Acquisition
Regulation (FAR) Subpart 42.15. Consequently, we deny the motion to dismiss for
lack of jurisdiction, without prejudice.
Dated: June 7, 2023
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 63531, Appeal of Crowley
Government Services, Inc., rendered in conformance with the Board’s Charter.
Dated: June 7, 2023
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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