CBCA 7324

DENIED: August 5, 2022 CBCA 7324 FOCUSED MANAGEMENT, INC., Appellant, v. CONSUMER FINANCIAL PROTECTION BUREAU, Respondent. Tenley A. Carp and Micah Kanters of Arnall Golden Gregory LLP, Washington, DC, counsel for Appellant. Kevin J. Rice and Angela T. Puri, Office of General Counsel, Consumer Financial Protection Bureau, Washington, DC, counsel for Respondent. Before Board Judges LESTER, O’ROURKE, and CHADWICK. CHADWICK, Board Judge. The appellant, Focused Management, Inc. (FMI), challenges ratings assigned to it by the respondent, Consumer Financial Protection Bureau (CFPB), in the Contractor Performance Assessment Reporting System (CPARS). We summarily deny the appeal. Background The contract, awarded in May 2017, required FMI to staff and operate a “support desk” (or “service desk”) for information technology users at CFPB. FMI performed the contract until May 2022. FMI challenges four CPARS ratings for the second option year, CBCA 7324 2 May 2019 to May 2020. FMI writes that it was “greatly surprised” to receive “‘Marginal’ ratings in the Quality, Schedule, and Management categories and a ‘Satisfactory’ rating in the Cost Control category.” FMI submitted a claim disputing those four ratings. The contracting officer denied the claim in November 2021. FMI filed this appeal in February 2022. In its notice of appeal, which the Board designated the complaint under Board Rule 6(a) (48 CFR 6101.6(a) (2021)), FMI alleged that CFPB’s evaluation contained statements that were “simply not true” and that if “properly evaluated, FMI should have received ‘Satisfactory’ ratings under Quality, Schedule, and Management, and a ‘Very Good’ rating on Cost Control.” CFPB requests summary judgment under Rule 8(f). In opposing the motion, FMI no longer accuses CFPB of making flatly untrue statements. CFPB’s amended statement of undisputed material facts under Rule 8(f)(1)1 contains ninety-six paragraphs, thirty-eight of which FMI does not dispute in its Rule 8(f)(2) statement of genuine issues. Of the remaining fifty-eight paragraphs, FMI responds to one paragraph as “[d]isputed” but cites as support for its denial only an allegation of its complaint, which is not an “appeal file exhibit[],” an “admission in [a] pleading[],” or any other type of “evidence” on which we may rely at the summary judgment stage. See Rule 8(f)(2); see also Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390–91 (Fed. Cir. 1987).2 FMI states that CFPB’s other fifty-seven paragraphs are “disputed in part,” mostly as allegedly “incomplete” or “misleading,” but FMI’s responses consist almost entirely of argument without citation of evidence. FMI cites a total of four pages of record evidence in its statement of genuine issues. We defer review of any underlying factual issues to the Discussion section. Discussion We may review CPARS ratings to determine whether they are “arbitrary and capricious,” which our appellate authority has equated with being “inaccurate” and/or “unfair.” Todd Construction, L.P. v. United States, 656 F.3d 1306, 1311–13, 1316 (Fed. Cir. 2011) (“Todd clearly does have standing to sue based on its substantive allegation that the government acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.”), quoted in CompuCraft, Inc. v. General Services Administration, 1 FMI did not timely respond to CFPB’s motion at first. See Rule 8(g). The Board invited CFPB to refile its Rule 8(f)(1) statement, however, because the statement did not cite evidence bearing on all facts at issue. FMI timely responded to the amended filing. 2 FMI cites its complaint in response to CFPB’s statement that computer hardware that FMI was responsible for inventorying was “accessible” at CFPB headquarters. FMI alleges vaguely that “[c]ertain . . . hardware” was inaccessible in locked rooms. CBCA 7324 3 CBCA 5516, 17-1 BCA ¶ 36,662, at 178,539.3 If we agree with a contractor’s challenge, we will say so, but “we cannot direct the Government to revise [an evaluation] in a particular way through some form of injunctive relief.” Sylvan B. Orr v. Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522, at 177,931. CFPB must show that it “is entitled to judgment as a matter of law based on undisputed material facts.” Rule 8(f).