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 that 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 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 a federal agency’s negative performance evaluation. This was a “claim” within the meaning of the Contract Disputes Act. Unfortunately for the contractor, its excuse for late completion involved problems with subcontractors, a well-recognized form of nonexcusable delay.

Other cases this week addressed the daily rate of liquidated damages for a public owner and a public works contractor’s assent to a union labor agreement. The liquidated damages rate could include the cost of salaried administrative personnel. And, the contractor was obligated to pay union pay rates even though its employees twice voted to reject union representation.