Publicly available information should be promptly reviewed.

• Author: Mcgrath, Dorn C.
• Position: Ethics corner

As of Jan. 3# contractors have seven calendar days to review information after it is posted in the Federal Awardee Performance and Integrity Information System (F API IS) and object to its public release if a Freedom of Information Act exemption applies.

In 2010, the government implemented the system to improve contracting officer access to information and to facilitate evaluation of the integrity and performance of prospective contractors. To implement these requirements, the Federal Acquisition Regulation requires contractors submitting proposals expected to exceed $500,000--and who have current active federal contracts and grants totaling over $10 million--to report via the Central Contractor Registration database information relating to civil, criminal, or administrative proceedings, and certain settlements relating to those matters. Contractors must certify their information is current, accurate and complete as of the date of their offers, and must update this information semiannually by posting the required information in the database.

Federal agencies also post information in the system, including: final and revised defective cost or pricing data determinations; "for cause" terminations; administrative agreements to resolve suspension or debarment; and nonresponsibility determinations based on lack of satisfactory performance or record of integrity and business ethics.

In making the determination of a contractor's responsibility, contracting officers must consider links to the Excluded Parties List System, the Past Performance information Retrieval System and any other relevant past performance information.

Section 3010 of the 2010 Supplemental Appropriations Act required that all information posted in the system after April 15, 2011--except past performance reviews--be publicly available. This created a storm of controversy over whether publicly posting such information in FAPIIS unduly risks the release of confidential and proprietary information.

In addressing this risk, FAR 52.209-9, Updates of Publicly Available Information Regarding Responsibility (Jan. 2012), now grants a seven-day review period for contractors to determine if FAPIIS-posted information is covered by a Freedom of Information Act disclosure exemption. A contractor must be notified when the government posts new information in the non-public database. If within seven days of notification the contractor asserts an applicable Freedom of Information Act exemption...