This post was written by Joelle E.K. Laszlo.
Though April 15 will not be tax day this year, it may still be scary for some. According to an interim rule published last week in the Federal Register, April 15 is the day that information in the Federal Awardee Performance and Integrity Information System (“FAPIIS”) will be made available to the public, pursuant to the 2010 Supplemental Appropriations Act. While the interim rule assures that contractor past performance reviews will not be among the information available on FAPIIS, and that certain documents may require redaction before they are posted for public access, contractors wanting a say in what the public ultimately gets to see on FAPIIS are advised to speak now (or at least by the end of March).
Aside from announcing the date that FAPIIS will go live, the interim rule establishes a new Federal Acquisition Regulation (“FAR”) contract clause to provide notice of the public availability of certain data in FAPIIS. The new FAR clause is to have been included in all solicitations and contracts issued on or after January 24, 2011. The interim rule also instructs contracting officers to bilaterally modify any existing contracts to include the new FAR clause. Finally, the interim rule notes that the public must use the procedures under the Freedom of Information Act (“FOIA”) to request access to information posted to FAPIIS before April 15, 2011 (though under the new FAR clause some that information must be re-posted, and will thus become publicly available).
As we previously reported, FAPIIS brings together the information from a number of Federal databases and records on contractor performance. Specific details that will be publicly available through FAPIIS include: contract terminations for default; contractor suspension, debarment, and other penalties; contract-related criminal, civil, and administrative proceedings and their outcomes; and contractor non-responsibility determinations. A provision in the 2011 Defense Authorization Act requires contracting officers to report contractor violations of bribery laws in FAPIIS, which may also be among the publicly available details. (Contrary to some reports, however, the 2011 Act does not appear to require FAPIIS reporting of any reduction in contractor profits due to reckless or negligent behavior.)
To the chagrin of transparency advocates, the interim rule advises contracting officers to ensure that no information is posted to FAPIIS “that would create a harm protected by a disclosure exemption under FOIA,” and invites comments on regulatory or other guidance required as the data on FAPIIS becomes publicly available. In order to be considered in the formulation of the final FAPIIS rule, all comments are due on or before March 25th.