       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

         JACQUELINE R. SIMS, LLC, DBA
              JRS Management,
               Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2014-5076
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00196-EJD, Judge Edward J.
Damich.
               ______________________

              Decided: January 27, 2015
               ______________________

   MICHELE YVETTE SIMS, Sims Law Firm, of Duluth,
Georgia, for plaintiff-appellant.

    MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and STEVEN J. GILLINGHAM, Assistant Director.
2                      JACQUELINE R. SIMS   v. UNITED STATES



                 ______________________

    Before MOORE, WALLACH, and CHEN, Circuit Judges.
WALLACH, Circuit Judge.
     Appellant Jacqueline R. Sims, LLC (“JRS”) seeks re-
view of the decision of the United States Court of Federal
Claims in Jacqueline R. Sims, LLC v. United States, No.
13-174 (Fed. Cl. Feb. 25, 2014) (“Sims”) (J.A. 1–15),
granting summary judgment in favor of Appellee the
United States. For the reasons set forth below, this court
affirms.
                      BACKGROUND
                A. The Ceramics Contract
    JRS signed Contract No. DJBP010100000006 (“Ce-
ramics Contract”) with the United States, acting through
the Federal Bureau of Prisons (“BOP”), on September 24,
2009, with an effective date of October 1, 2009. The value
of the contract award was $63,180 for a base year and
included four option years. Under the terms of the con-
tract, JRS was to provide ceramics instruction to the
inmates at Federal Prison Camp (“FPC”), Alderson, West
Virginia. JRS hired a subcontractor who provided the
ceramics instruction. Typically, JRS would receive a task
order and would then provide a payment invoice to the
Government.
    JRS was required to provide three sessions a week,
each session lasting three hours, totaling 468 hour ses-
sions per year. Federal Acquisition Regulation, 48 C.F.R.
ch. 1 (“FAR”) § 52.216-21, titled “Requirements (Oct.
1995) Alternate I (Apr. 1984),” was incorporated into the
contract and defines the requirements terms of the con-
tract. J.A. 29.
   JRS’s subcontractor provided services in October and
November 2009 and January 2010, and was paid in full
JACQUELINE R. SIMS V. UNITED STATES                         3



for those services. JRS did not provide any services to the
Government “during December 2009, or for the period
from February 1, 2010 to September 30, 2010.” Sims, at
4. The Government exercised the first option period,
extending the contract to September 2011.
     On September 9, 2010, BOP prepared a Past Perfor-
mance Evaluation (“PPE”) pursuant to FAR § 42.15. JRS
was rated on four criteria: quality of service (“unsatisfac-
tory”); timeliness of performance (“poor”); business rela-
tions (“fair”); and customer satisfaction (“fair”).” Id. BOP
noted JRS had failed to provide a ceramics instructor for
the inmates during part of the performance period. JRS
responded and argued that when actual services were
provided, they were of “good quality.” J.A. 87. The com-
pany also provided an explanation why the subcontractor
failed to provide services. Based on this response, the
evaluation was changed from overall “unsatisfactory” to
“fair.” JRS asked for review of the evaluation. Citing
FAR § 42.1503(b), BOP’s chief of acquisition issued a
memorandum in which JRS was evaluated on the four
criteria listed above. Under “Timeliness of Performance,”
JRS received a rating of “Poor” because it failed to provide
services under the contract. The officer wrote:
   A review of the rating period reveals that four
   task orders were issued beginning in October 2009
   through September 30, 2010; however, service was
   not rendered from February 1, 2010 to September
   30, 2010. JRS initially notified BOP that lack of
   service was due to personal illness of the contract
   instructor. Although, JRS did inform the BOP of
   their instructor’s illness, such circumstances do
   not relieve the contractor of [its] obligation to pro-
   vide service under the terms of the contract. Ad-
   ditionally, we note that service was not rendered
   as of June 2010 because JRS did not have an em-
   ployee cleared to enter the institution to perform
   service. Failure to provide service during the last
4                      JACQUELINE R. SIMS   v. UNITED STATES



    eight months of the rating period effectively com-
    promised achievement of the contract require-
    ments resulting in a revised rating of Poor for
    Timeliness of Performance for the full rating peri-
    od.
J.A. 83. Relating to business relations, JRS received a
rating of “Fair.” J.A. 84. According to the contracting
officer:
    JRS was notified more than once during the rat-
    ing period that the contract instructor was not
    performing service. . . . Responses to contractual
    issues were generally effective at the beginning of
    the rating period; however, the effectiveness and
    responsiveness to issues of non-performance
    steadily declined in the last eight months of the
    rating period rendering an overall rating for
    Business Relations for the full rating period of
    Fair.
J.A. 84. JRS received a rating of “Good” for “Quality of
Service” and a rating of “Fair” for “Customer Satisfac-
tion.” J.A. 83–84. The last sentence of the memorandum
read “[t]hese evaluations may be used to support future
award decisions, and shall be therefore marked ‘Source
Selection Information.”’ 1 J.A. 84.
    On November 12, 2010, BOP notified JRS that the
company had “failed to provide . . . ceramics instruction
services since June 29, 2010” and JRS had thirty days to


    1   “Source Selection Information” means certain in-
formation “prepared for use by an agency for the purpose
of evaluating a bid or proposal to enter into an agency
procurement contract, if that information has not been
previously made available to the public or disclosed
publicly.” FAR § 2.101.
JACQUELINE R. SIMS V. UNITED STATES                        5



provide a replacement instructor. Appellee’s Supp. App.
(“Supp. App.”) 57. JRS failed to find a replacement. On
December 27, 2010, BOP accordingly notified JRS it was
“considering terminating th[e] contract for cause.” Id. at
58. The contract was terminated on January 24, 2011,
and after JRS appealed the termination, it was converted
into a termination for convenience.
    In February 2012, JRS bid on a contract to provide
radiology technologist services at the Federal Correctional
Institution in Miami, Florida. Based in part on JRS’s
PPE, a contracting officer for BOP, determined that JRS
was non-responsible and JRS was not awarded the con-
tract. JRS was notified of the decision and that the
“matter [had been referred] to the [Small Business Asso-
ciation] for a [Certificate of Competency (“COC”)] deter-
mination.” Supp. App. 66.
    JRS then requested that the agency “reverse your de-
termination of nonresponsibility, withdraw the COC
referral, and proceed to award my firm the contract.” Id.
JRS did not mention the Ceramics Contract evaluation or
any argument about the unenforceability of the Ceramics
Contract. JRS did not take any other action relating to
the non-responsibility finding.
    On March 27, 2012, JRS submitted a “Contracts Dis-
putes Act Claim,” requesting relief from the December 16,
2010, PPE. JRS requested an equitable adjustment in the
amount of $1500 for what it alleged was a breach by the
Government of the contract terms. Specifically, JRS
argued PPEs were not authorized for the contract and
that by issuing a PPE, BOP “unilaterally chang[ed]” the
terms of the contract without first obtaining JRS’s written
consent. Id. at 68. JRS also raised the issue of unen-
forceability for the first time, arguing “[t]he fact that the
contract at issue was not legally enforceable is key with
regards to the Contractor Performance Report, because it
means that my company was under no legal obligation to
6                      JACQUELINE R. SIMS   v. UNITED STATES



furnish Ceramics Instructor services ordered by the
Government.” Supp. App. 71.
     On May 24, 2012, JRS’s claim was denied and the
contracting officer explained: “[a]lthough per FAR
[§] 42.1502(b), Federal agencies are only required to
prepare evaluations of contractor performance for a
contract that exceeds the simplified acquisition threshold,
Contracting Officers are not prohibited from utilizing this
resource for contracts not exceeding the simplified acqui-
sition threshold.” Supp. App. 72. The contracting officer
also stated she would “not reopen a performance evalua-
tion review more than a year later to address concerns
that JRS was capable of raising in the designated time
frames for review,” and thus there was insufficient reason
to change the evaluation. Id at 73.
     On August 15, 2012, JRS presented additional docu-
mentation and a revised claim, which expanded the scope
of JRS’s legal arguments to include: violation of FAR
§ 42.1502; unilateral modification of the contract; breach
of the covenant of good faith and fair dealing; unenforcea-
bility; and bad faith. On October 12, 2012, the contract-
ing officer rejected JRS’s revised claim, finding “the
allegations made stem from the same set of operative
facts as, and are substantially the same as, the original
claim [JRS] filed on March 27, 2012.” Id. at 97.
                B. The Parenting Contract
    On or about August 20, 2009, JRS entered into a
contract with the BOP to provide parenting classes (“Par-
enting Contract”). Pursuant to the contract, JRS was to
provide classes in order to “support positive relationships
between inmates and their children during and after their
incarceration.” J.A. 92. As the Court of Federal Claims
explained, “[t]he substantive provisions of the Parenting
Contract largely mirror those in the Ceramics contract.
The similarities between the two contracts include the
inclusion of FAR 52.216-21, Requirements (Oct. 1995)
JACQUELINE R. SIMS V. UNITED STATES                      7



Alternate I (Apr. 1984) and FAR 52.212-4(c).” Sims, at 6.
The effective date of this contract was October 1, 2009, it
included a base year plus four one-year option periods,
and was valued at $81,432. Like the Ceramics Contract,
the process entailed JRS receiving a task order; JRS
hiring subcontractors to provide the actual instruction;
and JRS invoicing the Government after the services had
been rendered.
    Through its subcontractors, JRS performed the “ser-
vices for the first year of the contract and the first four
months of the first option period,” and has been paid for
these services. Sims, at 6. No services were rendered
during the last eight months of the first option period,
and the Government opted not to exercise the second
option period.
     The BOP produced a PPE for the base year and the
first option period, and both were submitted to JRS for
review. JRS submitted a rebuttal and on February 24,
2011, JRS received an amended PPE, receiving an overall
rating of “good” for the base year evaluation. JRS did not
raise the unenforceability of the contract as an excuse for
its non-performance in its rebuttal. JRS submitted a
“Contracts Disputes Act Claim” relating to the base year
and option year PPE on the Parenting Contract on March
27, 2012. Similar to the Ceramics Contract, JRS argued
the generation of PPEs amounted to a unilateral change
in the terms of the contract, and for the first time argued
the Parenting Contract was legally unenforceable for the
same reasons expressed in the Ceramics Contract claim.
    The Court of Federal Claims noted “the Parenting
Contract and the Ceramics Contract claims followed
virtually identical paths.” Sims, at 7. On the same date
the contracting officer denied JRS’s Ceramics Contract
claim, May 24, 2012, the Parenting Contract claim was
also denied for the same reasons. As with the Ceramics
Contract, JRS submitted an amended claim with addi-
8                       JACQUELINE R. SIMS   v. UNITED STATES



tional legal theories on August 15, 2012, and “[t]he Par-
enting Complaint mirrors the Ceramics Complaint save
that it does not include the affirmative bad faith claim
raised with respect to the Ceramics Complaint.” Id. Both
complaints allege four counts: (1) the BOP exceeded its
authority to prepare performance evaluations as delineat-
ed in FAR Subpart 42.15; (2) the BOP’s preparation of the
PPEs amounts to a unilateral change in the terms of the
contracts, in violation of the Contracts’ express incorpora-
tion of FAR § 52.212-4(c); (3) the BOP’s evaluations were
arbitrary and capricious because JRS received negative
evaluations for failing to perform under contracts which
were unenforceable; and (4) the BOP, by preparing the
PPEs as if JRS was obligated to perform when JRS claims
it was not, breached the implied duty of good faith and
fair dealing. The Ceramics Complaint states a fifth count
alleging affirmative bad faith on the BOP’s part when the
BOP delivered the Ceramics PPE directly to the Federal
Correctional Institution in Miami.
    As with the Ceramics Contract claim, the revised Par-
enting Contract claim was denied on October 12, 2012.
The contracting officer determined the arguments raised
in the revised claim were substantially the same as those
raised in the original Parenting Contract claim.
    JRS appeals and this court has jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3) (2012).
                       DISCUSSION
    Summary judgment is appropriate “when there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” R. Ct. Fed. Cl.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at
248. A fact is material if it could “affect the outcome of
the suit under the governing law.” Id.
JACQUELINE R. SIMS V. UNITED STATES                      9



    A grant of summary judgment by the Court of Federal
Claims is reviewed de novo. Local Okla. Bank, N.A. v.
United States, 452 F.3d 1371, 1376 (Fed. Cir. 2006). In
particular, “[t]his court reviews judgments of the Court of
Federal Claims to determine whether they are premised
on clearly erroneous factual determinations or otherwise
incorrect as a matter of law.” Foley Co. v. United States,
11 F.3d 1032, 1034 (Fed. Cir. 1993) (citing Transamerica
Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed. Cir.
1992)).
I. The Court of Federal Claims Correctly Determined the
        Contract Was Enforceable as Performed
     The Court of Federal Claims concluded “the contracts
were both enforceable to the extent that they were actual-
ly performed.” Sims, at 9. Both parties agree the con-
tract was enforceable as performed, however, JRS
contends “[s]ince the contracts were unenforceable and
only binding to the extent actually performed, during
periods when JRS did not perform, no valid contract
existed.” Appellant’s Br. 12. Additionally, JRS argues,
“[t]he contracts were unenforceable at inception—a fact
which the BOP admits. This means that JRS had no
obligation to perform. Case law clearly settles that an
unenforceable requirements contract is only definite and
binding to the extent actually performed by the parties.”
Id. Essentially, JRS argues it could be evaluated only
when it physically performed (i.e., taught a ceramics or
parenting class) as agreed, and not when it chose not to
perform.
     JRS also argues the Court of Federal Claims erred in
finding no genuine dispute of material fact because “JRS
disputed the factual allegation that the parties acted at
all times as if there was mutuality of intent to be bound,
and provided sufficient evidence to prove that the factual
dispute was genuine.” Id. at 18. Furthermore, to JRS, it
“never acted as if bound to perform, and at no time did
10                       JACQUELINE R. SIMS   v. UNITED STATES



JRS perform exactly as prescribed by the contracts.” Id.
at 18–19. JRS also contends the “record demonstrates
that the BOP never intended to be bound to the contracts
as if they were enforceable requirements contracts.” Id.
at 19. To JRS, because “an essential element of a re-
quirements contract is the promise by the buyer to pur-
chase the subject matter of the contract exclusively from
the seller,” that BOP used other entities to fulfill its needs
demonstrates BOP did not act as though it was bound.
Id.
    As the Court of Federal Claims explained, “[t]he par-
ties performed as if their conduct was governed by an
enforceable contract,” Sims, at 13, and the Government
paid JRS for all performed services. The court also em-
phasized:
     [T]he only evidence before the Court shows that
     the parties entered into a pair of contracts that,
     while unenforceable, were not treated as such. . . .
     The parties performed as if their conduct was gov-
     erned by an enforceable contract: JRS performed
     and the Government paid. Indeed, after the Gov-
     ernment prepared the performance evaluations
     for both contracts, JRS had the opportunity to
     comment on the evaluations. JRS did not raise
     even the specter of unenforceability. From the
     Court’s view, both parties acted as if they were
     bound by a contract which required that JRS per-
     form certain services whenever the Government
     requested them.
Id. Though JRS makes contrary arguments, it does not
provide support for these assertions. Without evidence
from Appellant, these findings will not be disturbed.
Indeed, when given the chance to review the PPEs of the
Ceramics and Parenting Contracts, JRS rebutted the
ratings, and provided explanations for why the subcon-
tractors failed to provide services. JRS did not raise any
JACQUELINE R. SIMS V. UNITED STATES
                                                        11


enforceability argument. See Supp. App. 65, 168. Thus,
the Court of Federal Claims correctly determined “despite
the flaws in the written language of the contracts, the
parties intended to be bound.” Sims, at 13.
    JRS alternatively argues “the question as to whether
the parties intended to form binding requirements con-
tracts or performed as if their conduct was governed by
enforceable requirements contracts is of no consequence.”
Appellant’s Br. 24. That is, to JRS, “[t]he infirmities in
the contracts rendered the contracts unenforceable, and
the contracts were only enforceable and binding to the
extent actually performed.” Id.
     Basing its arguments on contract law, JRS argues
that because the contracts were unenforceable, the four
elements of contract law had to be “satisfied for the orders
to be binding upon JRS: (1) mutuality of intent to contract
i.e., a meeting of the minds regarding the provisions of the
agreement; (2) offer and acceptance; (3) consideration; and
(4) a Government representative having actual authority
to bind the United States.” Id. at 26–27 (citing Hometown
Fin., Inc. v. United States, 409 F.3d 1360, 1364 (Fed. Cir.
2005)). JRS contends there was no mutual assent or
acceptance, and that “the orders were akin to unilateral
purchase orders, or offers to create option contracts.” Id.
at 27.
    In Willard, Sutherland & Co. v. United States, a case
that also involved a contract with the Government, the
contract was found to be unenforceable as written, but
enforceable as it was actually performed. 262 U.S. 489,
494 (1923) (“While the contract at its inception was not
enforceable, it became valid and binding to the extent
that it was performed.”); cf Horn v. United States, 98 Fed.
Cl. 500, 504–05 (2011). As explained above, the “Gov-
ernment would provide delivery orders or task orders to
JRS requesting services, JRS would render service, and
then JRS would invoice the Government for payment.”
12                        JACQUELINE R. SIMS   v. UNITED STATES



Sims, at 3. This process demonstrates mutual assent and
acceptance.
    Finally, as the Court of Federal Claims explained,
“[u]nless the contracts are enforceable to some degree, . . .
wrongful negative evaluations under the contracts, and
the effect of the negative evaluations lack a legal basis.”
Sims, at 8. Accordingly, this court discerns no error in
the court’s determination the parties acted as though they
were bound by the contracts.
II. The Court Correctly Determined the Government Was
         Entitled to Evaluate JRS’s Performance
    The Court of Federal Claims held that language in the
two contracts provided the contracting officer with discre-
tion to prepare PPEs in accordance with FAR Subpart
42.15, which also permitted the BOP to release the evalu-
ations as Source Selection Information. JRS’s original
Complaints alleged BOP exceeded the authority of FAR
subpart 42.15 2 by creating PPEs, and there was therefore



     2   FAR § 42.1502 states:
     (a) General. Past performance evaluations shall
     be prepared at least annually and at the time the
     work under a contract or order is completed. Past
     performance evaluations are required for con-
     tracts and orders for supplies, services, research
     and development, and contingency operations, in-
     cluding contracts and orders performed inside and
     outside the United States . . . . These evaluations
     are generally for the entity, division, or unit that
     performed the contract or order. . . .
     (b) Contracts. Except as provided in paragraphs
     (e), (f), and (h) of this section, agencies shall pre-
     pare evaluations of contractor performance for
     each contract (as defined in FAR part 2) that ex-
JACQUELINE R. SIMS V. UNITED STATES
                                                          13


an unlawful unilateral change to the contract. JRS argued
to the Court of Federal Claims that “FAR [§] 42.1502
describe[d] the only situations in which a government
agency can prepare PPEs (presumably absent contractual


   ceeds the simplified acquisition threshold and for
   each order that exceeds the simplified acquisition
   threshold. . . .
   (c) Orders under multiple-agency contracts.
   Agencies shall prepare an evaluation of contractor
   performance for each order that exceeds the sim-
   plified acquisition threshold that is placed under a
   Federal Supply Schedule contract or placed under
   a task-order contract or a delivery-order contract
   awarded by another agency . . . .
   (d) Orders under single-agency contracts. For sin-
   gle-agency task-order and delivery-order con-
   tracts, the contracting officer may require
   performance evaluations for each order in excess
   of the simplified acquisition threshold when such
   evaluations would produce more useful past per-
   formance information for source selection officials
   than that contained in the overall contract evalua-
   tion . . . .
    (g) Past performance evaluations shall include an
   assessment of contractor performance against,
   and efforts to achieve, the goals identified in the
   small business subcontracting plan when the con-
   tract includes the clause at 52.219-9, Small Busi-
   ness Subcontracting Plan.
   (h) Agencies shall not evaluate performance for
   contracts awarded under Subpart 8.7.
   (i) Agencies shall promptly report other contractor
   information in accordance with 42.1503(h).
14                      JACQUELINE R. SIMS   v. UNITED STATES



authority to do so),” however, the court disagreed, finding
contracting officers have broad discretion to create PPEs
except in the limited circumstances expressly identified in
the FAR. Sims, at 9, 11. On appeal, JRS argues “[t]he
contracts at issue made no mention of FAR Subpart 42.15,
and did not contain a performance evaluation clause that
identified performance evaluation factors or evaluation
rating definitions that would be used to evaluate JRS’s
performance.” Appellant’s Br. 40.
     The Court of Federal Claims also determined
“[s]everal parts of [FAR subpart 42.15] inform the Court’s
conclusion that a contracting officer is given discretion to
prepare performance evaluations in those circumstances
not expressly described in the FAR,” id. at 11, and this
court agrees. FAR § 42.15(a) provides that past perfor-
mance evaluations shall be prepared at least annually
and the evaluations are for the entity that performed the
contract or order. Pursuant to FAR § 42.1503(a) and (b),
contracting officers consider all relevant sources of infor-
mation relating to a contractor’s performance, and the
contractor must be given an opportunity to respond to the
evaluations, as happened here. See FAR § 42.1503.
Contrary to JRS’s argument, FAR § 42.1502 does not
describe the only situations in which PPEs must or must
not be generated. The BOP did not violate FAR subpart
42.15 by preparing performance evaluations that are not
mandated by that provision. The Court of Federal Claims
correctly concluded that “contracting officers have broad
discretion in producing evaluations, except in the limited
circumstances discussed in FAR § 42.1502.” Sims, at 12.

    With regard to its argument that the preparation of
the PPEs was a unilateral change to the contracts, JRS
argues the contracts do not expressly provide for the
preparation of evaluations. It also says, since the con-
tracts expressly incorporate FAR § 52.212-4, requiring
that any modification to the scope of the contract “may be
made only by written agreement of the parties,” the
JACQUELINE R. SIMS V. UNITED STATES
                                                         15


Government breached the contract. Both the Ceramic
and Parenting Contracts have a clause stating: “[t]he
[contracting officer’s technical representative] is responsi-
ble, as applicable, for . . . evaluating performance.” Sims,
at 12 (emphasis added). “This is the only language in
either contract that refers to performance evaluations,
and it certainly does not place a duty upon the BOP not to
prepare evaluations.” Id.
    JRS nevertheless argues this clause allows the con-
tracting officer’s technical representative, not the con-
tracting officer, to create performance evaluations. JRS
offers no support for this semantic distinction and we
afford this argument no weight. Furthermore, JRS offers
no other persuasive evidence for why BOP was prohibited
from evaluating JRS under FAR subpart 42.15. Thus,
because the BOP did not exceed its authority under FAR
subpart 42.15, there was no unilateral change to the
contract.
III. The Court Correctly Determined the Government Did
Not Breach the Covenant of Good Faith and Fair Dealing
     JRS argued to the Court of Federal Claims that “[b]y
failing to provide [JRS] with a fair and accurate assess-
ment of its performance, Defendant breached [] the cove-
nant of good faith and fair dealing by depriving Plaintiff
of the reasonable expectation of having its performance
fairly[] and accurately evaluated.” J.A. 34. “In essence,
this duty requires a party to not interfere with another
party’s rights under the contract. The United States, no
less than any other party, is subject to this covenant.”
Precision Pine & Timber, Inc. v. United States, 596 F.3d
817, 828 (Fed. Cir. 2010) (citations omitted).

    The Court of Federal Claims held that “JRS has failed
to demonstrate anything in the Government’s actions that
breach the implied duty of good faith and fair dealing or
otherwise demonstrate that the BOP’s evaluations were
arbitrary or capricious.” Sims, at 13.
16                      JACQUELINE R. SIMS   v. UNITED STATES



    JRS contends the court should have applied a “pre-
ponderance of the evidence” standard, rather than a “clear
and convincing evidence” standard, and improperly re-
quired JRS to show bad faith. This is incorrect. The
court found JRS was unable to show “the BOP’s evalua-
tions were arbitrary or capricious,” id., and explained “the
only evidence before the Court shows the parties entered
into a pair of contracts that, while unenforceable, were
not treated as such.” Id. The court then evaluated the
evidence and found a complete lack of a breach on the
Government’s part. This was not error. Here, JRS pro-
vides no substantive evidence that the Government
breached the contract.
    JRS also argues that “[i]n preparing erroneous [PPEs]
that included low ratings and negative comments about
JRS’s performance, the BOP failed to provide JRS with
fair and accurate evaluations. The evaluations were
based upon the false premise that the contracts were
enforceable, and that JRS was required to furnish all
requested services.” Appellant’s Br. 36. As described
above, the parties acted as though they intended to be
bound by the contract.
     Finally, though the PPEs did address JRS’s failure to
provide services, JRS did not provide the services when it
received a valid task order. JRS did not raise the unen-
forceability argument when it had the chance to respond
to the PPEs, but contended its subcontractors were una-
ble to perform. “We have previously explained that a
contractor is responsible for the unexcused performance
failures of its subcontractors.” Todd Constr., L.P. v.
United States, 656 F.3d 1306, 1316 (Fed. Cir. 2011) (in-
ternal quotation marks and citation omitted). According-
ly, the Court of Federal Claims correctly determined the
Government did not breach the covenant of good faith and
fair dealing.
JACQUELINE R. SIMS V. UNITED STATES
                                                    17


                       CONCLUSION
    For the foregoing reasons, the judgment of the Court
of Federal Claims is
                      AFFIRMED
