I. Background
DoD, GSA, and NASA published a final rule in the Federal Register at 75 FR 14059 on March 23, 2010, FAR Case 2008-027, Federal Awardee Performance and Integrity Information System, to implement the requirements of FAPIIS. This rule became effective on April 22, 2010.
That rulemaking and the associated launch of FAPIIS in April 2010 are part of an ongoing effort by the Administration to enhance the Government's ability to evaluate the business ethics and quality of prospective contractors competing for Federal contracts. That rulemaking also addresses requirements set forth in section 872 of the Clean Contracting Act of 2008 (subtitle G of title VIII of Pub. L. 110-417) (41 U.S.C. 417b) for a system containing specific information on the integrity and performance of covered Federal agency contractors.
Additional information on FAR Case 2008-027 may be found in the Federal Register at 75 FR 14059, March 23, 2010.
With respect to the availability of information in FAPIIS, section 872(e)(1) states, in pertinent part, that the Administrator of General Services "shall ensure that the information in the database is available to appropriate acquisition officials of Federal agencies and to such other government officials as the Administrator determines appropriate." Section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212), enacted July 29, 2010, modifies section 872(e)(1) to require that the Administrator of General Services post all FAPIIS information, excluding past performance reviews, on a publicly available Web site. FAPIIS will now become the publicly available Web site.
To comply with section 3010, this preamble contains instructions to contracting officers on modifying existing contracts to incorporate the new clause. To begin the transition process and lessen the number of contracts that will require modification when the interim rule is published, the Department of Defense's Director of Defense Procurement and Acquisition Policy issued a Class Deviation for the Department on October 12, 2010 (see http://www.acq.osd.mil/dpap/policy/policyvault/USA005830-10-DPAP.pdf). On October 14, 2010, the Civilian Agency Acquisition Council (CAAC) Chair issued a Consultation for Class Deviation letter recommending that civilian agencies authorize a class deviation (see https://www.acquisition.gov/comp/caac/caacletters/CAAC-Letter-2011-01.pdf). Both the DoD deviation and the CAAC letter provide a contract clause that complies with section 3010 and was expected to be included in the interim rule. Agencies were encouraged to take advantage of the deviations until this FAPIIS interim rule became effective. To implement section 3010, the following steps have been, or are being taken:
1. Enhanced FAPIIS functionality. The Managers of the FAPIIS system, in consultation with the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils), are making changes to the FAPIIS architecture to support the transparency requirements of section 3010. The current architecture, consistent with the rule effective on April 22, 2010, provides a one-stop information system to help acquisition officials make informed decisions about an offeror's business integrity, but lacks the functionality to make information immediately available to the public as it is posted in the system. On and after April 15, 2011, when system changes are completed, information posted to FAPIIS by offerors, contractors, and Government personnel will be publicly available in accordance with section 3010.
2. New FAR clause. The Councils have developed a new FAR clause 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters, to replace the current FAR clause 52.209-8, Updates of Information Regarding Responsibility Matters. The current clause states that only Government personnel and authorized users performing business on behalf of the Government will have access to a contractor's record in the FAPIIS system. The new clause does not include this statement but instead provides notice to contractors that all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available. The new clause also states that requests to review the information posted in FAPIIS before April 15, 2011, will be subject to the Freedom of Information Act (FOIA) process.
The new FAR clause will be implemented in the following manner:
a. New contracts. On or after the effective date of this interim rule, contracting officers will be required to insert the FAR clause 52.209-9, in accordance with the prescription at FAR 9.104-7(c), in solicitations issued on or after the date of this rule and resultant contracts. As explained immediately above in paragraph 2. of this Background, information posted under the new clause on or after April 15, 2011, except for past performance reviews, will be released to the public. Information posted before April 15, 2011, will continue to be handled under FOIA. However, the clause at FAR 52.209-9, Alternate I, requires this information to be reposted if a six-month update will be due on or after April 15, 2011. The reposted information will be made available to the public.
b. Existing contracts. Prior to April 15, 2011, contracting officers will be required to bilaterally modify existing contracts (including indefinite-delivery indefinite-quantity contracts) that contain the FAR clause 52.209-8, if a six-month update will be due on or after April 15, 2011. The modification shall replace the FAR clause 52.209-8 with the new FAR clause 52.209-9. If the contracting officer is unable to negotiate this modification prior to April 15, 2011, the contracting officer will be required to obtain approval at least one level above the contracting officer to negotiate an alternate resolution.
3. FAPIIS and CCR Notice. A notice has been posted on the FAPIIS Web site, available at http://www.cpars.csd.disa.mil/FAPIISmain.htm, as well as on the Central Contractor Registration at http://www.ccr.gov through which offerors submit certain information to FAPIIS to alert offerors, contractors, and Government officials to the requirements of section 3010 and the actions they need to take in implementing this law. For contracting officers, this includes taking appropriate steps to ensure that they do not post information in the system on or after April 15, 2011, that would create a harm protected by a disclosure exemption under FOIA. For example, heightened attention might need to be given to whether documentation supporting a non-responsibility determination or termination for default decision should be redacted before the determination or decision is posted. The Federal Acquisition Regulatory Council (OFPP, DoD, GSA, and NASA) are continuing to consider the need for additional regulatory or other guidance to address the implementation of section 3010 and welcome public comment on this issue.
Finally, this rule makes several conforming changes and technical corrections:
FAR 9.104-7 and 12.301--Modifies the clause prescriptions to prescribe the new clause.
FAR 52.209-7--Relocates the definition of "Principal", in alphabetical order, in paragraph (a) of the clause.