Transparency usually means public access

FAPIIS Coming Soon to a Computer near You

Now, the public will have access to information on a [US Federal] contractor's past performance, specifically if the government has slapped them with any penalties, including non-responsibility determinations, terminations for default, administrative agreements over suspension or debarment, and criminal and civil proceedings.

FAPIIS (Federal Awardee Performance and Integrity Information System) is the government's recently created "one-stop shop" for contractor performance data, compiling information from the many disparate performance databases scattered throughout the federal government.

Now, the looming question is how long will it take GSA to implement the new law.

Feast Your Eyes on FAPIIS

FAPIIS is off-limits to the public, but POGO obtained some screen shots of the database as it appears on the Central Contractor Registration (CCR) government contracting portal. [Read the article to get imagery and other links.]

This is the part of FAPIIS that was modeled on POGO’s Federal Contractor Misconduct Database. Note that the “Disposition” pull-down menu in FAPIIS only has two options—“Conviction/Finding of Fault” and “Other acknowledgement of fault.” In contrast, ours has 13. What’s more, FAPIIS only covers misconduct in connection with the award or performance of a contract or grant. POGO’s database is far more extensive, covering 17 distinct types of misconduct plus an all-inclusive “Other”

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The Federal Awardee Performance and Integrity Information System

It is one thing for government officials involved with the award of contracts and grants to be aware of the outcome of normal business disputes (they should be aware of the outcomes that are adverse to the government as well). It is quite another for such information to be recorded and released publicly through a database that characterizes these routine business disputes as ethical violations. Unfortunately, if the pending legislation passes, contractors and grantees can expect that even the most routine civil and administrative disagreements and proceedings will be put under a microscope and potentially highlighted as evidence of ethical misbehavior.

Entities that contract with the government or accept federal grant funds must be attuned to this requirement and the likelihood that the information will become public.

FAR Council Issues Final Rule Unveiling A New Measure Designed To Ensure Only Responsible Contractors Obtain Contract Awards

Currently, before the award of any federal government contract, contracting officers are required to make an “affirmative determination of responsibility.” (FAR 9.103(b)). To make this determination, contracting officers are required to “possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable standards . . . .” (FAR 9.105-1).

Contracting officers, in fulfilling their obligation to make a responsibility determination prior to contract award, will be required to review the FAPIIS data pertaining to the contractor. That information will include: contracting officers’ non-responsibility determinations; default terminations; defective pricing determinations; administrative agreements with suspension and debarment officials; contractor criminal convictions, civil liability, and adverse administrative actions involving a finding of fault and liability in connection with the award or performance of a government contract; and certain settlements in criminal, civil, or administrative proceedings.

FAR 9.104-6 will require contracting officers to review the FAPIIS database, located at http://www.ppirs.gov/fapiis.html, prior to any contract award that exceeds the simplified acquisition threshold. The rule is applicable to commercial item and commercial-off-the-shelf (COTS) procurements, and to contracts awarded to small business concerns.

Under FAR 52.209-7, offerors will be required to report information pertaining to legal proceedings in connection with the award or performance of a federal government contract. Specifically, offerors will be required to report whether within the last five years they or a principal were involved in any proceedings that resulted in: (1) a criminal conviction; (2) a finding of fault and liability in a civil proceeding that results in a payment of greater than $5,000; (3) a finding of fault and liability in an administrative proceeding that results in a fine of greater than $5,000, or reimbursement, restitution, or damages greater than $100,000; and (4) a settlement in a criminal, civil, or administrative proceeding where fault is admitted and a decision on the merits could have led to any of the results above.

If the FAPIIS database contains adverse information, contracting officers will be required to give offerors the opportunity to provide additional information to demonstrate their responsibility before making a non-responsibility determination, unless the contractor already has been suspended or debarred. Consistent with the current protections provided to small business concerns, where the contracting officer determines that such a concern is not responsible, the contracting officer is required to refer the concern to the Small Business Administration, which will decide whether to issue a Certificate of Competency. In addition, FAPIIS will notify contractors whenever the government posts new information to the contractor’s record, and the contractor will have an opportunity to post comments and respond.

That last article, provided by law firm McKenna Long & Aldridge LLP, includes a great deal more helpful information, and you are encouraged to refer to it if this issue is on your radar screen.