Posted on May 19, 2011 by Michael Payne

Contractors Should Beware of FAPIIS

By: Michael H. Payne

The Duncan Hunter National Defense Authorization Act of 2009 (Public Law 110-417) was enacted on October 14, 2008. Section 872 of the Act required the development and maintenance of an information system that contains specific information on the integrity and performance of covered Federal agency contractors and grantees. The Federal Awardee Performance and Integrity Information System (“FAPIIS”) was developed to address these requirements. FAPIIS is a distinct application that is accessed through the Past Performance Information System (PPIRS) and is available to federal acquisition professionals for their use in award and responsibility determinations. FAPIIS provides users access to integrity and performance information from the FAPIIS reporting module in the Contractor Performance Assessment Reporting System (CPARS), proceedings information from the Central Contractor Registration (CCR) database, and suspension/disbarment information from the Excluded Parties List system (EPLS). (Past performance information on construction contracts is stored in the Construction Contractor Appraisal Support System “CCASS”).

Contractors need to be aware that FAPIIS includes information relating to a contractor’s past performance reviews, suspensions, debarments, nonresponsibility determinations, and civil, criminal and administrative proceedings that include a contractor's performance of federal, state and local contracts. Since contracting officers will be reviewing this information when they conduct responsibility determinations, contractors need to be certain that the information is accurate. In addition, since some of the information, excluding past performance information, is available for public review, there is a possibility that competitors will look for information to use against a contractor in a bid protest. That provides all the more reason that contractors should be diligent in assuring that inaccurate information does not remain on the system.

The new requirements, that became effective on April 15, 2011, are implemented by FAR 9.104-7 and the clause found at FAR 52.209-9., and further information can be found at the Contractor Performance Appraisal Reporting System (“CPARS”) website, and by reading the FAPIIS User Manual.

Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on compliance and federal procurement matters.

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Posted on August 24, 2010 by Michael Payne

Legislation Grants Public Access to the Federal Awardee Performance and Integrity and Information System (FAPIIS)

By: Michael H. Payne & Elise M. Carlin

As recently reported in Washington Technology, on July 29, 2010, President Obama signed the Supplemental Appropriations Act for 2010 into law. This legislation amends the Clean Contracting Act of 2008, and allows the public to access the Federal Awardee Performance and Integrity Information System (FAPIIS), previously off-limits to anyone other than chairmen and ranking members of congressional committees. Under the new law, with the exception of contractors’ past performance evaluations, all information will be available for viewing online.

What Is FAPIIS?

Effective April 22, 2010, FAPIIS was established as part of the 2009 Defense Authorization Act. FAPIIS is managed by the General Services Administration, and was launched as “part of an ongoing initiative by the Administration to increase consideration of contractor integrity and the quality of a contractor's performance in awarding Federal contracts.” The final rule enacting FAPIIS is found in the Federal Register.

The FAPIIS database contains a wide range of information about contractors’ past performance, and aids contracting officers in selecting contractors who will perform well in order to avoid wasting taxpayer money. According to the Contractor Performance Assessment Reporting System (CPARS) website, FAPIIS “contains information to support award decisions as required by the Federal Acquisition Regulation (FAR). FAPIIS is a web-enabled application that collects information on Terminations for Default, Terminations for Cause, Terminations for Material Failure to Comply, Defective Pricing Actions, Non-Responsibility Determinations, and Recipient Not-Qualified Determinations. Use of FAPIIS promotes awards to entities with a history of proven performance and business integrity.” As stated in the Federal Register, “FAPIIS is designed to improve the Government's ability to evaluate the business ethics and expected performance quality of prospective contractors and protect the Government from awarding contracts to contractors that are not responsible sources.”

The legislation which brings to light the information contained in FAPIIS was sponsored by Vermont Senator Bernie Sanders. In a recent interview with Government Executive, Sanders supported his position that the public should have access to the same information as contracting officials. “The American people have every reason to expect that their tax dollars are well-spent . . . For this reason, I am pleased that with this new legislation every contractor’s history of illegal behavior will be posted on a publicly accessible online database. I strongly expect that this new public awareness will put an end to handing out taxpayer-financed contracts to corporations with a history of fraud.”

While it is good news to many that the database is now publicly available, the move to make this information easily accessible is a concern to some in the industry. In a public statement, the Professional Services Council (PSC), the self-defined “national trade association of the government professional and technical services industry,” expressed concern that the new law “could create a politically motivated blacklist of vendors and improperly limit the government’s ability to access the best qualified vendors in the marketplace.”  Alan Chvotkin, Executive Vice President and Counsel for PSC recently stated that, “While firms are accountable for their past performance, opening portions of the database that are not now already publicly available elsewhere could risk improperly influencing the evaluation and selection of otherwise qualified bidders because of public pressure to ‘blacklist’ certain vendors.” Mr. Chvotkin continued, “Furthermore, public posting risks the inappropriate and potentially damaging disclosure of company proprietary information while doing nothing to further government oversight or decision making.” He also promised that, “Given this major modification to FAPIIS, PSC will be working with GSA and other federal agencies to ensure the proper and fair implementation of the public posting requirement.”

When Will The Information Be Available For Viewing?

The GSA is currently working on putting the new law into action, while also striving to alleviate the concerns of those in the industry. Diane Merriett, spokeswoman for the GSA, recently stated, “We are aware of some industry concerns regarding the disclosure of proprietary data and will address those.” At this time, no firm date has been established for the release of the information to the public.

The Federal Contracting Group at Cohen Seglias Pallas Greenhall & Furman will follow this story and keep you informed of any developments as the implementation of the law progresses. 

Michael Payne is a Partner and is the Chairman of the firm's Federal Practice Group.
 

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