Over the last few years, there has been a significant push to consolidate all contractor information into central locations, and also to ensure that all performance-related information is updated and current (allowing the government customers to have access to the latest and greatest information about how a contractor has performed). Two recent rules – one final and the other proposed – are further implementing this grand plan. See 78 Fed. Reg. 46783 (August 1, 2013) and 78 Fed. Reg. 48123 (August 7, 2013). The final rule standardizes and further clarifies the government’s internal administrative obligations with regard to past performance evaluations, but the new proposed rule will shrink from 30 days to 14 days the period of time that a contractor has to comment on a past performance evaluation. Going forward, contractors will need to be quick on the trigger to ensure that they monitor their past performance evaluations and respond in a timely manner.
In March 2010, the U.S. Government rolled out a new tool promised to provide a centralized source for all publicly available contractor past performance and integrity information – the Federal Performance and Integrity Information System (“FAPIIS”). We have written multiple times about it (in June 2010, March 2011, and January 2012), including the importance of monitoring the information entered to ensure that past performance evaluations are accurate, complete, and fair, and also to prevent release of proprietary information to the public. But the system continues to evolve and, as contractors try to manage the information in FAPIIS, many companies find the process baffling due to (among other things) the multiplicity of modules within the system and the acronyms used to identify them. In fairness, government personnel tasked with implementing FAPIIS have developed on-line training to assist contractors in navigating this complex system. That said, not everyone involved in government contracting can or will take the training, but everyone does need a basic understanding of FAPIIS. So keep reading, because you won’t find this information in the FAR.
By: W. Bruce Shirk
Our previous discussions of the Federal Performance and Integrity Information System (“FAPIIS”) posted here in June 2010 and March 2011, urged contractors generally to manage affirmatively FAPIIS and, specifically, to: (i) place a high priority on entry and updating of data into FAPIIS; (ii) take advantage of every opportunity to comment on, explain or rebut information posted in FAPIIS; and (iii) be alert for Government posting of harmful information, in particular information potentially protected from disclosure by a Freedom of Information Act ("FOIA") disclosure exemption, Exemption 4. It is now apparent that, in light of a recent action of the Civilian Agency Acquisition Council and the Defense Acquisition Regulation Council (“the Councils”), contractors who successfully manage FAPIIS will be those contractors who not only implement the above steps but do so very quickly and are, as well, hyperalert for and prepared to react immediately to Government posting of potentially harmful information.
By Bruce Shirk
We last discussed the Federal Awardee Performance and Integrity Information System (“FAPIIS”) in June 2010. We noted then that, as implemented, the rule gives rise to two questions:
- Whether FAPIIS creates a risk of disclosure of source selection sensitive information under FOIA; and
- Whether FAPIIS will be used when evaluating a contractor’s past performance.
On September 27, 2010, President Obama signed into law the Small Business Jobs and Credit Act of 2010 (Pub. L. No. 111-240). The Act is intended to free up capital by providing tax cuts for small businesses (some of which are temporary) and to promote exports of U.S. products, all with a view to stimulating the small business sector as an engine of job creation. But, as usual, the Administration’s efforts to improve the economy through stimulus measures also give rise to new risks for companies doing business with the federal Government – whether as a prime or a subcontractor, as a large or a small business.
Effective April 22, 2010, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (“FAR Councils”) amended the Federal Acquisition Regulation (“FAR”) to implement the Federal Awardee Performance and Integrity Information System (“FAPIIS”). 75 Fed. Reg. 14059 (March 23, 2010).