Filed under: FAPIIS, FAR, FAR 52.209-9, Federal Awardee Performance and Integrity Information System, FOIA, Freedom of Information Act | Tags: •Administrative Agreements, •Defective Pricing Determinations, •Non-responsibility Determinations, •Recipient Not Qualified Determinations, •Terminations for Default, Contractor Fault, contractor performance data, Exemption 1, Exemption 3, FAPIIS, FAR, FAR 52.209-9, Federal Acquisition Regulation, Federal Awardee Performance and Integrity Information System, FOIA, Freedom of Information Act, national defense or foreign policy, on-line clearinghouse, seven calendar days
The Federal Awardee Performance and Integrity Information System (FAPIIS) – the Government’s new on-line clearinghouse for contractor performance data – is already undergoing changes that will require contractors to respond.
As we reported in a previous post, the FAPIIS system creates a clearinghouse for contractor-related data, including past performance evaluations; nonresponsibility determinations; default terminations; criminal, civil, and administrative proceedings in connection with federal contracts; suspensions and debarment information; administrative agreements; and contracts terminated for fault. Contracting officers began to insert the new FAPIIS clause (FAR 52.209–9) into contracts on January 24, 2011, and the system went “live” on April 15, 2011.
However, on January 3, 2012, a final rule was released that fine-tunes the ways in which companies must respond to information the Government posts to FAPIIS. As we reported previously, companies must diligently scrutinize their FAPIIS entries to avoid the inadvertent disclosure of inaccurate or confidential information. Under the new rule, companies will now have seven calendar days in which to review information proposed for public release on FAPIIS and to make a formal objection to the posting.
The types of information that the Government could post to FAPIIS include:
- Terminations for Default
- Non-responsibility Determinations
- Recipient Not Qualified Determinations
- Defective Pricing Determinations
- Administrative Agreements, and
- DoD Determinations of Contractor Fault
Under the new procedure, all information posted by the Government will be subject to a 14-day waiting period before it becomes publicly available on FAPIIS. The Government will provide notice to the contractor when the new information has been put on the FAPIIS system, at which point the contractor will then have 7 calendar days (not working days) to object to the public release. The information will not be available to the public until the end of the 14-day period.
If the contractor objects, it must cite to the FAPIIS FAR reporting clause and request removal of the information. Importantly, the contractor must also explain how the information falls under one of the disclosure exemptions to the Freedom of Information Act (FOIA) that protects the information from public release. Some of the most frequently used FOIA exemptions include:
- The information relates to classified matters of national defense or foreign policy (Exemption 1)
- The information is protected by another law that specifically exempts the information from public release (Exemption 3)
At the end of the day, as we have previously advised, contractors must be proactive in monitoring their past performance and other conduct that may bear upon their responsibility, including all of the information concerning the contractor and its past performance that is contained in any government database or in news articles, or that is obtainable by an Internet search of the contractor. This way, contractors can act immediately to correct any information that may be inaccurate or misleading.
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