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:
1. Whether FAPIIS creates a risk of disclosure of source selection sensitive information under FOIA; and
2. Whether FAPIIS will be used when evaluating a contractor’s past performance.
This posting updates our June 2010 discussion and undertakes to answer the above-stated questions in light of regulatory developments since that time.
When Congress directed the establishment of a database containing contractor “integrity” and “performance” information, a central repository for the latter half of that equation already existed in the form of the Past Performance Information and Retrieval System (“PPIRS”), which was established in FY 2002 and was designated as the standard government-wide repository for past performance assessments in July 2009. See GAO, Federal Contractors; Better Performance Information Needed To Support Agency Contract Award Decisions (GAO-09-374, April 2009); OFPP Memorandum for Chief Acquisition Officers and Senior Procurement Executives, Improving Contractor Past Performance Assessments Summary of the Office of Federal Procurement Policy’s Review, and Strategies for Improvement (January 21, 2011); see also 41 U.S.C. § 2313 (c); 74 Fed. Reg. 31557 (July 1, 2009); FAR 42.1503(c). However, with the exception of suspension and debarment information collected in the Excluded Parties Listing System (“EPLS”), there was not, in October 2008, any centrally maintained database for information relevant principally to determinations of contractor responsibility, e.g., determinations of non-responsibility, terminations for default and criminal, civil and administrative proceedings entailing a finding of contractor fault or liability. See 75 Fed. Reg. 14059 (March 23, 2010). It was this lack of readily available information relevant to contractor responsibility that Congress meant to address by creating FAPIIS. See 41 U.S.C. § 2313(a).
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Administrative Law Updates, Government Contracting Updates
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