Unsatisfactory Performance Rating
Sample Letter – Unsatisfactory Performance Rating
On behalf of our client, CONTRACTOR, we are responding to the unsatisfactory performance rating which you signed on (DATE) and was furnished upon CONTRACTOR’s request on (DATE). After review of the rating, we request that it be rescinded for two significant reasons: it was not issued in accordance with the Federal Acquisition Regulations and, therefore, is invalid, and, based upon the circumstances, is not warranted.
The Federal Acquisition Regulations, in 36.201(a)(3) require that the contracting officer, if he concludes that an unsatisfactory rating is due a contractor, shall advise the contractor in writing of the basis of the rating and permit the contractor the opportunity to submit a written rebuttal to the proposed rating. This written rebuttal must be reviewed and included in the rating report. This review of the proposed rating and the opportunity to submit written comments was not afforded CONTRACTOR. In fact, this rating was unknown to CONTRACTOR until it attempted to get another project on (DATE), at which time it was revealed. Therefore, since the “due process” concepts mandated in the Federal Acquisition Regulations for the evaluation and issuance of the rating were not followed, the rating was null and void and may not be used against CONTRACTOR in future procurements.
Furthermore, the Federal Acquisition Regulations require that the performance rating be prepared at the time of final acceptance of the project. This project concluded on December 30 and the rating was not made until nine months later, in (DATE). This belated and surreptitious approach to the rating of this contractor has the decided appearance of an arbitrary and capricious action on the part of the inspector. You cannot imagine my client’s dismay and shock upon discovering that it would not be permitted to participate in another (AGENCY) procurement due to this unknown and unwarranted unsatisfactory performance rating. This rating is all the more disconcerting because CONTRACTOR has been named contractor of the year both by the (AGENCY) and the (AGENCY) and has received several outstanding performance ratings on other government projects.
In addition to being procedurally incorrect in the issuance of the performance rating, a review of the factual basis clearly demonstrates that a rating of “unsatisfactory” was not warranted. On SF 1420, three of the five categories are rated satisfactory with only two rated unsatisfactory. Despite the majority of the elements being rated satisfactory, the overall rating entered was unsatisfactory. Such an overall rating was not supported by the ratings of the individual elements. To further highlight this inconsistent and incorrect evaluation one need only review the (AGENCY) form 2629 accompanying the SF 1420 performance rating. On the (AGENCY) form, six of the nine elements were rated satisfactory and only three were rated unsatisfactory. Yet again the rater, despite the fact that a clear majority of the elements were rated satisfactory, entered an unsatisfactory rating. Such action created the distinct impression that the rating was not supported by the record and that (AGENCY) acted in an arbitrary manner in rating the CONTRACTOR’s performance.
A review of the facts concerning the comments by the rater also supports the conclusion that an unsatisfactory rating was not warranted on this contract. A decided majority of the inspection reports for this project stated that the work performed was acceptable or “per contract.” It is significant to note that the contractor was granted a fifty percent increase in the contract price due to the performance of change order work, particularly with respect to the Walker duct system. All of this work was accomplished in a timely manner and no liquidated damages were assessed by (AGENCY).
The rater made much of the fact that (AGENCY) loaned a stock of 404 caps, as an example of the “one-sided” spirit of cooperation displayed by (AGENCY). What the rater did not state, which was pertinent to the issue, was that the 404 caps were not part of the original contract work, that it was necessary to add them by change order once performance had begun and that they had to be installed as the work progressed. If (AGENCY) had not made its stock available, the project would have been delayed by the government pending the ordering and receipt of the caps.
The rater also stated that metal shavings were found in the Walker duct system. A review of the inspection reports revealed very few ducts had this metal sawdust. (Only one of the reports CONTRACTOR has shows one duct with the metal sawdust.) The rater also stated that four foremen were used on the job, but failed to state that this project was performed only on weekends over a one year period, that each weekend phase was completed on time and was acceptable and that the majority of the phases were under the supervision of two of the four foremen. The actual circumstances, therefore, differed considerably from the impression conveyed on the rating forms. By the same token, however, the rater noted that some materials, i.e. the “pour rock” were not available in sufficient quantities. However, that situation occurred only one or two times and, most importantly, the phase of work being performed was completed on time and in an acceptable fashion.
Based upon the foregoing disregard of the regulations and facts, we request that the (AGENCY) rescind the unsatisfactory performance rating and assure our client in writing that it has been removed from any list or database so that CONTRACTOR is not denied future contract awards. We request a prompt written response on this matter because of the fact that this invalid rating has already been used to deny CONTRACTOR a contract. Failure to rectify this situation will only lead CONTRACTOR to pursue its other options. If you have any questions or comments regarding this matter, do not hesitate to contact me.
Very truly yours,