This post was also written by Joelle E.K. Laszlo.
It has been called “a steaming pile,” posited as “the worst government website . . . ever seen,” and emblazoned with two giant red thumbs pointed downward. And those were the reviews of its proponents. Just a handful of weeks after much of its content it became publicly available, the Federal Awardee Performance and Integrity Information System (“FAPIIS”) looks like a database only a mother could love. That is not to say, however, that FAPIIS can be ignored. As its content and its navigability improve, FAPIIS could become a formidable obstacle for contractors seeking to demonstrate their responsibility to do business with the Federal government. Contractors should become familiar with FAPIIS now, to be positioned, if necessary, to mount a good defense later.
As a quick recap, FAPIIS consolidates information from existing Federal databases, including the Excluded Parties List System, the Past Performance Information Retrieval System (“PPIRS”), and the Contractor Performance Assessment Reporting System (“CPARS”), and also accepts inputs from contracting officers and contractors (via the Central Contractor Registration database) on an ongoing basis. In the latter category, as of April 22, any contractor with more than $10 million in active contracts and grants that is bidding on a Federal contract over $500,000 is required to report any finding or admission of its fault in a criminal, civil, or administrative proceeding in the preceding five years. The contractor is further required to certify that the information provided is “current, accurate, and complete as of the date of the submission,” and to provide updates on a semi-annual basis. These details, along with Government-supplied data posted since April 15 about contractor terminations for default; suspension, debarment, and other penalties; non-responsibility determinations; defective pricing determinations; and contract-related criminal, civil, and administrative proceedings and their outcomes are now publicly available through FAPIIS.
The recency of the information available through FAPIIS is responsible for some of the criticism about its usefulness, and this should only improve with time. But at a recent open colloquium about FAPIIS, certain other downsides to the database emerged, without similarly clear solutions. For example, currently when past performance information is posted by a Government official to a contractor’s record in CPARS, the contractor is notified and receives thirty days to review and comment on the information before it is transferred to PPIRS. (A contractor that wishes to comment on a past performance review after the thirty-day period must do so through PPIRS.) The contractor’s comments are ultimately to be posted in FAPIIS along with the Government’s review, though it appears uncertainties remain about how much space (in characters) a contractor will have for its defense, how easily contractor comments may be located in FAPIIS, and even how quickly and thoroughly a contractor must comment in order to preserve the ability to protest the loss of a contract because of its negative reviews in FAPIIS. What is clear, however, is that FAPIIS imposes a duty on every contractor to pay close attention to its past performance reviews, and to have a plan for commenting on those that may be detrimental to future contracting opportunities.
What that duty is exactly and the advisable dimensions of a response plan will probably take shape as FAPIIS does. In the interest of providing greater structure to the database, the Office of Management and Budget will soon publish a final rule setting forth standardized past performance evaluation factors and procedures for their reporting. Governmentwide training for contracting officers in the entry and use of FAPIIS data is also reportedly in the works. And for now, anyone who conducts a search in FAPIIS is presented with a pop-up window meant to remind contracting officers that “use of the information in [FAPIIS] should not result in de facto debarment.” … On further thought, one can only hope that the FAPIIS training comes sooner rather than later.