Only weeks after the new Federal Awardee Performance and Integrity Information System (FAPIIS) became operational, efforts are underway to expand the scope of information collected about government contractors and broaden access to the information. FAPIIS was created in response to Section 872 of the National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, which required the General Services Administration to create a system containing specific information on government contractors' integrity and performance. See 75 Fed. Reg. 14059 (Mar. 23, 2010). The database contains information from existing past performance databases, as well as contractor performance evaluations, suspension and debarment actions, and administrative agreements with Government suspension and debarment officials. Contractors whose total value of contracts exceeds $10 million also must report semi-annually civil, criminal and administrative findings of "fault and liability" related to the performance of federal government contracts. As of April 22, 2010, Contracting Officers must use FAPIIS for responsibility determinations and past performance evaluations during the acquisition process.
By statute, the Chairman and Ranking Member of certain congressional oversight committees may access FAPIIS upon request. The information is not automatically available to the public, but the Project on Government Oversight (POGO) submitted a request under the Freedom of Information Act on April 21, 2010, for all FAPIIS information relating to administrative, criminal or civil proceedings. The request also sought contractor comments on the FAPIIS information and data on how Government officials used FAPIIS information in responsibility determinations and past performance evaluations. If POGO's request is granted in full, the requested FAPIIS data will essentially become public information.
In the Final Rule implementing FAPIIS, the FAR Councils and Office of Management and Budget also signaled that they already were considering ways to expand the scope of information included in FAPIIS. The Rule specifically stated future versions of the database might include state government contracts and grants, contract actions below the current $500,000 threshold, and violations of laws outside the context of government contracts. This desire to increase the volume of performance information collected about contractors and made available to Government personnel is echoed in legislation recently introduced by Senators Feingold and Coburn, S. 3323, the Federal Contracting and Oversight and Reform Act of 2010. The bill would increase the period for retaining data in FAPIIS from five years to 10 years and expand the information in the system about administrative proceedings to include all such proceedings, rather than only those resulting in a finding of fault or liability for the contractor. The Senators also propose to permit any member of Congress to access FAPIIS and to require agency Inspectors General to periodically investigate whether agency officials are appropriately considering the information in the database in their acquisition decisions. Lastly, although not addressed to performance information per se, the FAR Councils this week issued an Advanced Notice of Proposed Rulemaking seeking guidance on how best to amend the FAR to permit public posting of contract actions, while still protecting contractors' proprietary information, should such public posting be required by future statutes or regulations. See 75 Fed. Reg. 26916 (May 13, 2010).
Contractors should be aware that performance information available to acquisition personnel, other Government officials, and the public likely will continue to expand. In response, contractors should continue to take advantage of any opportunities to present explanatory or mitigating information through FAPIIS or related databases. Wiley Rein will continue to monitor legislative and regulatory changes regarding the information collected about contractor performance.