An interim rule that goes into effect January 24, 2011, creates public access to FAPIIS (Federal Awardee Performance and Integrity Information System) information. 75 FR 4188 (Jan. 24, 2011). FAPIIS is a web-enabled application that is used to collect contractor performance information including Terminations for Cause or Default, Defective Cost and Pricing Data, Determinations of Non-Responsibility, and Administrative Agreements. Once collected, FAPIIS records become available in the Federal Past Performance Information Retrieval System (PPIRS) where they are used to support future acquisitions.

The interim rule is consistent with Section 3010 of the FY 2010 supplemental spending bill that includes a requirement that certain information in FAPIIS be made publicly available. Pub. L. 111- 212. The rule amends the Federal Acquisition Regulations (FAR) and requires the General Services Administrator to post FAPIIS information, excluding past performance reviews, on a public website.

The rule also implements a new clause FAR 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters. The clause provides notice to contractors that, except for past performance reviews, all FAPIIS information posted on or after April 15, 2011 will be publically available.

Contracting officers (COs) must include clause 52.209-9 in solicitations issued on or after January 24, 2011. The rule also requires COs, prior to April 15, “to bilaterally modify existing contracts, including indefinite-delivery indefinite-quantity contracts, that contain clause 52.209-8, Updates of Information Regarding Responsibility Matters, to include the new clause if a six-month contract update” to FAPIIS information by the contractor is due on or before that date. According to the rule, “[i]f the contracting officer is unable to negotiate this modification prior to April 15, 2011, the contracting officer will be required to obtain approval at least one level above the contracting officer to negotiate an alternate resolution.” Id.

The rule cautions COs to ensure they do not post information protected by a disclosure exemption. Although public access to FAPIIS information is required by statute, the FAR Council is “considering other guidance” and accepting written comments through March 25, 2011. We suggest that it may be prudent to submit comments if your company is concerned that there is a class of FAPIIS information that could be damaging if released publicly. For example, we think FAPIIS should not contain any information that has been fairly rebutted by a contractor.