Have You Ever Been Slandered During a Past Performance Review?

In public contracting, a bidder must be deemed “responsible” in order to be eligible for contract award. Bidder responsibility relates to financial resources, managerial capability and past experience. Some of these considerations can be stated clearly and measured objectively. Some cannot. Performance on prior projects is one of the more problematic factors.

It is almost inevitable that some of the participants in a contractor’s past projects will have a chip on their shoulder. And it may not be based on actual performance deficiencies. Former employees are not always complimentary. Project owner personnel may resent having been on the losing end of a claim.

In a recent Ohio case, the public project owner’s evaluation team considered the “off-the-record” remarks of an individual who had previously stated he was on a vendetta against the company that had submitted the low bid. The court refused to reverse a nonresponsibility determination, saying it was reluctant to substitute its judgment for that of the project owner.

How do you handle these situations? When confronted with an unflattering or inaccurate review, are you provided with an adequate opportunity to rebut that information or at least present your point of view? I welcome your comments.

Featured in Next Week’s Construction Claims Advisor:

• Claim Notice Requirement Strictly Enforced
• Claim Notice Sufficient Despite Lack of Breakdown
• Project Owner Waived Written Change Order Requirement

Comments

[mike fotheringham]

Now there are extortionist review websites getting into the act. These websites project only the negative reviews of anonymous malcontents, until such time as Eureka! website ad space is purchased. Suddenly the positive reviews show up and the nasties dwindle.(cough,cough,yelp,yelp)

[RUFRAN C. FRAGO]

Hello Bruce,

In any evaluation exercise, the reviewer has to contend with the pros and cons information that is collated; in search of the facts.
There’s a lot of due diligence required to be fair and this need not require shutting up the source of negative inputs.

As the old adage goes,” where there’s smoke, there’s fire”. If there’s someone seriously making a bold statement against a contractor (or anyone), that’s a telltale evidence, a good probability that there was an event that transpired associated with the comment worth investigating. As someone in the Owner’s Evaluation team, I will make sure I look into it.

As a reviewer, I believe that my assessment should be governed by agreed-to selection criteria, the owner’s objectives, and the established priorities. In the process, I have to while weigh the seriousness of the allegation and to contemplate on gathered inputs versus evidences.

[RUFRAN C. FRAGO, P.Eng., PMP, CCE]

Continuing...

The opportunity to rebut almost lies entirely on the hands of the owner reviewer and there’s not much the contractor can do about it. In fact, as a contractor; we might not even know on a timely basis that we were derailed by a slanderous opposition.

My initial reply is not complete as I was looking through the lenses of the Owner. However, if I am representing the contractor, our approach will be handled with a conscious sense of practicality. As we honestly believe that the negative statement is unfounded, it is incumbent upon us to present the undeniable evidence of eligibility. This will include documentary proofs, which are not limited to testimonies contradicting the slanderous statement. All of these should be done in a professional and acceptable manner.

[Jim Terrinoni]

This is a very serious problem, since a business and/or individual's reputation is a critical asset. Most of the negativity that happens and the opportunities to properly respond are unpredictable. I suggest "Control what you can, which is extremely little; influence everything else to the positive maximum!"
Have a healthy day.
Jim Terrinoni, Marketing/Communication Strategist with Line of Design and cSTEWARDS