For Government Contractors, Will 2012 Be the Rise of the “Past Performance Primary POC”?

This post was written by Joelle E.K. Laszlo.

If you are a Federal government contractor, please take a moment to recall the name of your “Past Performance Primary POC,” or P4OC for short. [In the unlikely event that this acronym catches on, you saw it here first.] Don’t know who your P4OC is? Don’t have one? If not, remedy the situation promptly: starting this year, a good P4OC may be the only thing standing between you and unfavorable information posted by the government on the Internet for all to see.

P4OCs can attribute their recent surge in significance to the Final Rule on the Federal Awardee Performance and Integrity Information System (“FAPIIS”), which was published in the Federal Register just after the new year. Followers of this ’blog will be well-acquainted with FAPIIS by now [click here if not]. Mandated by the 2010 Supplemental Appropriations Act, FAPIIS is designed to be a one-stop-shop for information on Federal contractors – particularly information associated with contractor wrongdoing. Conceptually FAPIIS has been praised by advocates of transparency in government contracting, but it has not quite lived up to the hype in its initial months of existence.

Nevertheless, we and others have advised contractors to take FAPIIS seriously and proactively, something the new Final Rule more or less requires. The Final Rule creates a procedure under Federal Acquisition Regulation (“FAR”) clause 52.209-9 whereby a contractor’s P4OC will be notified whenever a Federal agency proposes to post new information about the contractor on FAPIIS. The contractor will have seven calendar days to review the information and object to the post under an exemption to the Freedom of Information Act (“FOIA”). If within the seven-day time frame the contractor asserts that any of the information proposed for posting is covered by a FOIA exemption, that information must be removed within another seven days and the issue must be resolved according to FOIA procedures. Importantly, and as clarified in a second Federal Register Notice, these new procedures for the review of information proposed for FAPIIS posting took effect on January 17, and apply to any government contract that contains FAR 52.209-9 (not just the January 2012 version of the clause).

Given these developments, the first step for any contractor is to ensure that its P4OC and other past performance contacts are included in the Central Contractor Registration database. Because of the short turn-around time for reviewing information proposed for posting to FAPIIS, every government contractor will want to make sure their P4OC is punctual. Even if information proposed for posting is not exempt from the FOIA, contractors will have the opportunity to comment on the data to be posted (in larger data fields than before). This means that a good P4OC will also be able to marshal the information needed to put unfavorable performance records into their proper context. So your P4OC could very well become an MVP.