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). CFPB argues that FMI “has not denied that
[documented] performance issues occurred, but has simply taken issue with the Contracting
Officer’s judgment of the facts under the circumstances.” FMI need only show that “one
or more” facts bearing on its claim are “genuinely in dispute” and “material.”See Amini
Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365, 1368 (Fed. Cir. 2006).
We address the disputed ratings in turn.
Quality
CFPB assigned FMI a marginal rating for quality for 2019–2020.4 The contracting
officer’s evaluation of this factor consists of eight paragraphs explaining the agency’s view
that “FMI met the minimum . . . requirements” but was “not able to complete all the positive
actions aimed at improving . . . [preexisting] issues related to staff turnover, equipment
availability and software asset management activities, and did not meet some other Quality
related contractual requirements.”
3 Under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (2018),
agency action based on inaccurate fact finding would be labeled an abuse of discretion.
See, e.g., Honeywell International Inc. v. Arkema Inc., 939 F.3d 1345, 1348 (Fed. Cir. 2019)
(“The Board abuses its discretion if the decision,” inter alia, “rests on clearly erroneous fact
findings” or if the record “contains no evidence on which the Board could rationally base its
decision.”). “A decision is arbitrary and capricious” under the APA, by contrast, “when the
agency fails to articulate a ‘rational connection between the facts found and the choice
made.’”In re Vivint, Inc ., 14 F.4th 1342, 1351 (Fed. Cir. 2021) (quoting Motor Vehicle
Manufacturers Ass’n of the United States v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29, 43, 103 (1983)), quoted in IAP Worldwide Services, Inc. v. United States, 159
Fed. Cl. 265, 310 (2022). We understand the term “arbitrary and capricious” as used inTodd
Construction to cover both types of errors in this context.
4 In general, the distinction between a marginal rating and a satisfactory rating
as defined by regulation is whether the performance overall “meets” or “does not meet” the
core requirements. See 48 CFR 42.1503, tbl. 42-1(c), (d) (2020).

CBCA 7324 4
FMI argues, first, that the evaluation fails to identify a “significant event” that
“impacted the Government,” as the Federal Acquisition Regulation indicates an agency
should do when assigning a marginal rating.See 48 CFR 42.1503, tbl. 42-1(d) (2020) (“To
justifyMarginal performance, identifya significant event in each categorythat the contractor
had trouble overcoming and state how it impacted the Government.”). We disagree. The
evaluation states, among other things, that FMI provided “inconsistent Quality of Service
to the customers” due to staff turnover, missed “incidents and request deadlines,” and
“struggled with managing Onboards.” These are specific and significant criticisms.
FMI asserts that the staff turnover, equipment issues, and onboarding problems cited
by CFPB were “directly related to the COVID-19 pandemic” and that “the Bureau has failed
to consider the relevant complexities that FMI was dealing with in March of 2020 and
beyond.” FMI cites no evidence or proposed findings raising genuine disputes of fact
regarding any such “complexities,” however, and “simply saying the word ‘COVID-19’” is
not probative “without providing any [evidentiary] support.”Martinez v. Costco Wholesale
Corp., 336 F.R.D. 183, 188 (S.D. Cal. 2020), quoted in United Facilities Service
Corp. v. General Services Administration, CBCA 5272, 22-1 BCA ¶ 38,090, at 184,978,
appeal docketed, No. 22-1911 (Fed. Cir. June 15, 2022). FMI identifies no factual dispute
or legal error bearing on whether the rating is arbitrary, capricious, or otherwise mistaken.
Schedule
CFPB rated FMI’s performance marginal for schedule. The factor evaluation consists
of four paragraphs and states that FMI “struggled to meet the schedule requirements for
Onboard equipment provisioning,” “did not meet other Schedule related contractual
requirements such as the Weekly Service Desk report, Monthly Asset Inventory report[,] . . .
the Quarterly Self-Assessment,” and “inventory verification requirements of a [timely] 99%
verification rate.”
FMI asserts that the agency’s complaints about onboarding “inaccurate[ly] reflect[]
. . . the changes to the onboarding requirements . . . that were implemented during the early
months of the pandemic,” but again, FMI argues in conclusory fashion and does not cite
record evidence raising genuine disputes of fact about the events to which FMI refers or the
inaccuracies it alleges. FMI contends that CFPB should have exercised discretion to be
more flexible about contractual deadlines after March 2020 and asserts that FMI is being
unfairly “criticize[d] . . . for failing to access . . . secured storage areas” to inventory
equipment, which is not a criticism we can discern in the words of the evaluation. Based on
the briefing, we find no triable claim that this rating is arbitrary, capricious, or otherwise in
error.

CBCA 7324 5
Management
CFPB rated FMI marginal for management. The factor evaluation consists of six
paragraphs and states that “inadequate training of new employees and transition of
knowledge during staffing turnovers caused the quality” of technical support “to decrease”
during the year, although “[d]uring this Pandemic COVID-19 time, the FMI contractors . . .
did receive positive feedback for their support.” The evaluation adds that “the transition to
the new [project manager] in April [2020] was ineffective, as observed through issue[s] with
deliverable delivery and execution of Offboarding [and] Onboarding.”
In two short paragraphs citing no evidence, FMI argues that CFPB’s evaluation “fails
to account for” the COVID-19 pandemic. Again, we find such vague and unsupported
assertions inadequate to support a claim that the rating is arbitrary and capricious.
Cost Control
Finally, CFPB rated FMI satisfactory for cost control. CFPB’s evaluation explains
in two paragraphs that “FMI [was] on-budget, with the exception of a low burn-rate affected
bycontractor turnover and delays in recruitment of replacement personnel.” FMI argues that
the rating is unreasonably low because FMI “saved the Bureau money by having a burn rate
of less than 100%” and that “this performance measure is inherently flawed given the
pandemic” in any event. CFPB argues that “cost savings resulted” not from FMI’s
management efforts but “from simply having inadequate staff, which le[d] to serious
performance issues.” Raising the rating to very good would imply “no significant
weaknesses” related to cost control.See 48 CFR 42.1503, tbl. 42-1(b). FMI cites no
evidence that it “controlled costs” in the conventional manner by frugally meeting contract
requirements. Under the circumstances, which are noted in the evaluation, we see no viable
claim that the satisfactory rating is arbitrary, capricious, or otherwise in error.
Decision
We grant CFPB’s motion for summary judgment andDENY the appeal.
Kyle Chadwick
KYLE CHADWICK
Board Judge

CBCA 7324 6
We concur:
Harold D. Lester, Jr. Kathleen J. O’Rourke
HAROLD D. LESTER, JR. KATHLEEN J. O’ROURKE
Board Judge Board Judge