Contractor Information Will Be Open to Public by Devon E. Hewitt, Esq. PilieroMazza PLLC The rule implementing the Federal Awardee Performance and Integrity Information System (FAPIIS) became effective on April 22, 2010; an interim rule has been issued notifying contractors that the information contained in FAPIIS, except for performance reviews, will be made available to the public on April 15, 2011. FAPIIS consolidates information from the Excluded Parties List System (EPLS), Past Performance Information Retrieval System (PPIRS) and the Contractor Performance Assessment Reporting System (CPARS). FAPIIS also includes non-responsibility determinations, information regarding debarments and suspensions and defective pricing determinations, all reported by contracting officials. In addition, per the FAPIIS final rule, contractors must report information regarding criminal, civil and administrative proceedings involving the contractor, which information is fed to FAPIIS. Contracting officers review FAPIIS in making responsibility determinations for every contract award above the Simplified Acquisition Threshold of $150,000. Implementation of FAPIIS was a key part of the administration’s ongoing effort “to enhance the Government’s ability to evaluate the business ethics and quality of prospective contractors” competing for federal contracts. However, when it was implemented last year, FAPIIS was supposed to be accessible only by federal “acquisition officials,” and certain other government officials and members of Congress. That changed with an amendment to the Supplemental Appropriations Bill of 2010, enacted July 29, 2010. The amendment requires that FAPIIS data, excluding past performance reviews, be available to the public. The interim rule issued this week implements this legislation. Other than the reference to “past performance reviews,” the interim rule does not provide any guidance regarding the scope of data available to the public through FAPIIS. For example, the interim rule does not define the term “past performance reviews.” Does the term include agency evaluations of a contractor’s past performance conducted in connection with a competitive procurement? Clearly, this lack of guidance is cause for concern. While the public could always seek access to specific information in FAPIIS under the Freedom of Information Act (FOIA), FOIA has exemptions and exceptions precluding release of certain types of information in certain circumstances. One exemption is contractor proprietary and confidential information, the release of which will cause a contractor “substantial harm.” FOIA also requires a public request for release of agency records to identify the specific information sought and permits a contractor to review the request and challenge its release under a FOIA exemption or exception. FAPIIS may contain source selection sensitive information and contractor proprietary information, information which may be exempt from release to the public under FOIA. The interim rule, however, does not provide any FOIA-like controls on the public’s access to information in FAPIIS. The interim rule notes that the FAR Council is still considering “the need for additional regulatory or other guidance” regarding the public’s access to FAPIIS and welcomes comments on the issue. Comments are due March 25, 2011. Given the uncertainties regarding the nature of FAPIIS information that will be publically available, it is likely that numerous comments will be filed. Yet, the comment period closes only three weeks before the date on which the public will have access to FAPIIS—April 15It seems unlikely, therefore, that a revised, final rule with better guidance will be issued by the April 15 deadline. Devon E. Hewitt is a partner at PilieroMazza PLLC. Ms. Hewitt has over 20 years experience in the field of government contracts, representing both small and large government contractors. She advises clients on a wide range of government contracting issues including FAR compliance, small business contracting programs, intellectual property and data rights, the Service Contract Act, noncompete, nonsolicitation and nondisclosure agreements, subcontracts and teaming arrangements, joint ventures, FOIA, novations, and government audits and investigations. She can be reached at dhewitt@pilieromazza.com.