The Federal Awardee Performance and Integrity Information System (“FAPIIS”) is intended to provide government contracting officers a unified database to determine the integrity, responsibility and past performance of government contractors. In theory, this should be a good thing. But recent changes to FAPIIS should concern government contractors. This article will discuss several of these changes.
How Did FAPIIS Begin?
Section 872 of the National Defense Authorization Act for F/Y 2009, Pub. L. No. 110-417, required the General Services Administration to formulate a system that would centralize information about contractors’ integrity and past performance of federal work. The FAR Council issued a final rule on a new system on March 23, 2010, with an effective date of April 22, 2010. 75 Fed. Reg. 14059 (Mar. 23, 2010). This rule became known as FAPIIS.
To Whom Does FAPIIS Apply?
Contracting officers are required to review the information in FAPIIS before awarding any contract in excess of the simplified acquisition threshold. FAR §§ 9.104-6, 2.101.
What Information is Contained in FAPIIS?
FAPIIS consolidates information from several existing systems such as the Excluded Parties List System (“EPLS”), the Past Performance Information Retrieval System (“PPIRS”) and the Contractor Performance Assessment Reporting System (“CPARS”). It also gathers information from contractor self-reporting of criminal, civil and administrative actions and from other sources listed at 75 Fed. Reg. 14059. The data in FAPIIS include determinations of contractor responsibility (or non-responsibility), information regarding contract terminations and administrative agreements to which contractors are parties.
Put simply, the goal of FAPIIS is to amass into a single database all of the information about the responsibility of potential contractors. This information will remain in the FAPIIS database for five years. FAR § 9.104.b(b).
How Should a Contracting Officer Use FAPIIS?
When judging past performance reviews contained in FAPIIS, a contracting officer is required to use the guidelines established in FAR § 15.305(a)(2). Contracting officers are cautioned to use “sound judgment” in evaluating FAPIIS data because “some of [the] information may not be relevant to a determination of present responsibility.” FAR § 9.104-6(b).
When a contracting officer makes a preliminary determination that a contractor does not meet the responsibility requirement, the contracting officer shall “promptly request additional information from the offeror” to try to establish the offeror’s responsibility. FAR § 9.104.6(c). The contracting officer is also required to document the contract file “to indicate how the information contained in FAPIIS was considered in any responsibility determination as well as the action that was taken as a result of the information.” FAR § 9.104-6(d).
Contractor Certifications Under FAPIIS
If the value of a proposed contract is between $150,000 and $500,000, the clause at FAR § 52.209-5 will be inserted into the solicitation. FAR § 9.104-7(a). This clause requires an offeror to certify: (1) if the offeror or any of its principals are presently debarred or proposed for debarment; (2) if they have a civil judgment against them for any of the bad acts listed in the clause; (3) if they are presently under indictment for the same bad acts; or (4) if they have been notified that they are delinquent in the payment of federal taxes for the last three years. These certifications must be entered into the Online Representations and Certifications Application (“ORCA”) database.
For contracts exceeding $500,000 the clause at FAR § 52.209-7 will be inserted into the solicitation. FAR § 9.104- 7(b). This clause requires an offeror to certify whether it has more than $10,000,000 in current active government contracts and grants. This total is determined by adding together the current value of “all current, active contracts and grants, including all priced options, and the total value of all current active orders including all priced options under indefinite-delivery, indefinite-quantity, 8a, or requirements contracts.” FAR § 52.209-7(a)(1-2). If the offeror does not have $10,000,000 in active government contracts, then the self-reporting rules remain unchanged.
If, however, the offeror has more than $10,000,000 in government contracts, the contractor is required to make disclosures and certifications that are more far reaching than those under FAR § 52.209.5. All such contractors “represent, by submission of [the] offer, that the information it has entered into FAPIIS is current, accurate and complete with regard to the following information … .” FAR § 52.209.7(c).
- whether the offeror, or any of its principals, has within the last five years been the subject of a proceeding at the state or federal level that has resulted in:
- a criminal conviction;
- a civil finding of fault and liability resulting in a payment of at least $5,000;
- an administrative proceeding with a finding of fault and liability resulting in either a fine or penalty payment of at least $5,000 or a damages or restitution payment of at least $100,000; or
- in a criminal, civil or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the contractor if the proceeding could have resulted in one of the three dispositions listed above.
This information must be entered into the Central Contractor Registration (“CCR”) database.
This clause, unlike FAR § 52.209-5, requires disclosure of administrative proceedings. It also goes further than FAR § 52.209-5 by requiring disclosure of agreed dispositions of civil, criminal or administrative proceedings if those dispositions contain an acknowledgment of fault and the possibility of the damages or payments listed above.
For contracts in excess of $500,000 and where the successful offeror exceeds the $10,000,000 threshold, the contract clause at FAR § 52.209.9 will be inserted into the contract. FAR § 9.104-7(c). That clause requires contractors to update the certifications required by FAPIIS on a semiannual basis. The law is unclear whether incorrect or late updates will subject a contractor to liability under the False Claims Act. Because of this uncertainty, contractors must carefully monitor their updates and ensure that their certifications and updates are both correct and timely.
Public Access to FAPIIS Data
Originally, FAPIIS contained FAR § 52.209.8, which significantly limited public access to FAPIIS. FAR § 52-209.8(b) (3) contained the following language: “With the exception of the contractor only Government personnel and authorized users performing business on behalf of the Government will be able to view the contractor’s record in the system.” Since the stated purpose of FAPIIS was “to significantly enhance the Government’s ability to evaluate the business ethics and quality of prospective contractors,” restricting FAPIIS access to government agents made perfect sense. 75 Fed. Reg. 14059.
But as part of the ongoing efforts of the Obama administration to increase transparency in government contracting, on January 24, 2011, FAR § 52-209.8 was replaced by FAR § 52.209.9. The new clause removed the language restricting access to the contractor’s FAPIIS record to government agents. In its place the following language was inserted: “As required by Section 3010 of Public Law 111-212, all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publically available.” FAR § 52.209-9(3)(ii). This change raises a number of issues.
Issues for Contractors to Consider Going Forward
Q. What is meant by the phrase “past performance reviews” in FAR § 52-209.9(3)(ii)?
A. That phrase is not defined in FAPIIS. One expects that it will include the reports in PPIRS. Whether it will also include documents attached as exhibits to such reports or other documents contained in PPIRS is unknown at present.
Q. Is information posted in FAPIIS before April 15, 2011, also publically available?
A. Some of it will be available via FOIA. FAR § 52.209-9(3) (i) provides that “(p)ublic requests for information posted prior to April 15, 2011 will be handled under Freedom of Information Act procedures ….” Contractors might consider serving FOIA requests seeking information about their major competitors. Contractors might also arrange for future, regular FOIA requests to capture anything that might have been missed under the previous requests.
Contractors should also consider arranging to serve a FOIA request with respect to itself. Contractors should know what is in the possession of the government and might be released to others pursuant to a FOIA request. The time to figure out what the government has in its files about you is before those files are requested by somebody else.
Q. I own a small business. If a contracting officer determines that my business is not responsible, what are my options?
A. In that case, the contracting officer is required to “refer the matter to the Small Business Administration, which will decide whether to issue a Certificate of Competency.” FAR § 9.104-3(d); FAR Subpart 19.6.
Q. FAR § 9.105-2(b)(2) requires the contracting officer to “document the determination of non-responsibility in FAPIIS.” What does that mean, exactly?
A. This is another area in which businesses can be damaged. Contracting officers are required to enter into FAPIIS the exact reasons for a determination of non-responsibility. Presumably, this will often involve the posting of various documents supporting that determination. Some of those documents could be internal documents of the offeror that contain sensitive or proprietary information. There is no requirement that the contracting officer give the offeror an opportunity to comment upon or object to the posting of such documents. The contracting officer must post this information on FAPIIS within three days of making the determination of non-responsibility. FAR § 9-105-2(b)(2)(ii).
In such a situation, the only recourse that a business has is to “post comments regarding information that has been posted by the Government. The comments will be retained for as long as the associated information is retained. … Contractor comments will remain a part of the record unless the contractor revises them.” FAR § 52.209-9(b)(2). It is doubtful that such postings will have any meaningful impact. Since the contractor will have already been given the opportunity to proffer additional evidence of responsibility per FAR § 9.104-6(c)(1), the postings will probably do little more than repeat comments that have already been deemed unconvincing by the government. And once sensitive business information has been posted on FAPIIS, the genie can never be put back into that bottle.
The recent changes to FAPIIS will undoubtedly lead to additional protests. With the wealth of additional information now available under FAPIIS, creative consultants will be able to find grounds to file protests where none existed before. Given this near-certainty, the prudent contractor should be prepared by having in its files the same information as its competitors. The observation of the nineteenth-century English philosopher Thomas Huxley is appropriate here.