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The appellant argued that the government forced it to make false entries on various ENG Form 4025s. Each side submitted declarations. ASBCA found the appellant’s declarations were conclusory and thus ruled that the appellant failed to establish its claim by a preponderance of the evidence.
Appeal of Sungwoo E&C Co., Ltd., ASBCA Nos. 61144, 61219
- Appeal – The appellant challenged the government’s Contractor Performance Assessment Report System (CPARS) rating for three task orders under a Multiple Award Task Order Contract (MATOC). It raised several issues, including the government’s alleged failure to award task orders, alleged fraud and suspension, and an alleged improper exercise of contract options.
- CPARS Rating – The appellant argued the government acted arbitrarily and in bad faith when it evaluated the three task orders as unsatisfactory and revised the March 1 Base Year CPAR from satisfactory to unsatisfactory. The government responded that the appellant failed to show evidence of this. The ASBCA found overwhelming record evidence of the appellant’s performance, which was riddled with unsatisfactory and marginal performance. The government sufficiently detailed the performance issues in Contract Deficiency Reports (CDRs). Thus, the Board denied this appeal.
- False Entries – The appellant also claimed it was “instructed and forced” by the government to make false entries on its ENG Form 4025s, and “instructed and forced” to procure offshore materials. The appellant offered conclusory declarations from two of its employees. They claimed that an unidentified individual allegedly stated that offshore materials should be entered as local materials on the ENG form 4025. With declarations from government employees opposing the appellant, ASBCA found the appellant failed to establish by preponderance of the evidence that the government “instructed or forced” the appellant to make false entries or procure offshore materials.
- Government Liability – The appellant asserted that the government’s improper CPARs deprived it of receiving other contracts as well as additional option years. The Board rejected this argument, as it had already determined that the CPARs’ ratings were not arbitrary and capricious, nor made in bad faith. Furthermore, the government had the prerogative to exercise the option years or not.
- Debarment – The appellant challenged its department, claiming that the government’s actions were motivated by the appellant’s refusal to falsify entries on various ENG Form 4025s. ASBCA dismissed this challenge, finding it did not have jurisdiction to consider appeals from suspension or debarment orders.
Young Eui Song of Central IP & Law appeared for the appellant. Dana J. Chase and Julie A. Glascott appeared for the Army.
— Case summary by Joshua Lim, Assistant Editor.
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