Since this past summer, federal agencies have been required to submit electronic records of contractor past performance into a single Government-wide repository, known as the Past Performance Information Retrieval System (PPIRS).  Information in PPIRS, as well as in other Government databases containing information on contractor performance, has now been linked to a new system  -- the Federal Awardee Performance and Integrity Information System, or FAPIIS -- which, starting on April 22, 2010, Contracting Officers must consult when making contractor responsibility determinations.  Prior to FAPIIS, the information Contracting Officers routinely considered when making responsibility determinations was limited to debarment and suspension information, which is maintained in the Excluded Party List System (EPLS).  With the introduction of FAPIIS, Contracting Officers can and, in fact, must, consider the expanded range of information available in FAPIIS and, then, document the contract file to explain:  (i) how the information in FAPIIS was considered in any responsibility determination and (ii) the action that was taken as a result of that information.

FAPIIS was designed to "significantly enhance the Government's ability to evaluate the business ethics and quality of prospective contractors competing for Federal contracts and to protect taxpayers from doing business with contractors that are not responsible sources."  Thus, FAPIIS will provide Contracting Officers "one stop access" to EPLS and PPIRS, as well as prior non-responsibility determinations, contract terminations for default or cause, agency defective pricing determinations, administrative agreements entered into  by suspension and debarment officials to resolve a suspension or debarment and contractor self-reporting of criminal convictions, civil liability, and adverse administrative action. Under this final rule, which amends Parts 2, 9, 12, 42 and 52 of the Federal Acquisition Regulation, Contractors will have the opportunity to provide additional information demonstrating responsibility before a Contracting Officer makes a non-responsibility determination based on relevant information from FAPIIS in certain circumstances.   

The final rule also sets forth reporting requirements for contractors having more than $10 million in active contracts and grants seeking contracts over $500,000.  Specifically, such contractors must, as of the time of proposal submission, report in FAPIIS information pertaining to criminal, civil and administrative proceedings through which a requisite determination of fault was made.  Under any resultant contract, the contractor must then update information in FAPIIS on a semi-annual basis through the life of the contract. 

The Government is taking a "phased approach" to the implementation of FAPIIS, and intends to seek additional sources of information that can better inform Contracting Officers before making responsibility determinations. Among the information that we can expect to see in FAPIIS in the near future is State and Local-level information in connection with the award or performance of a contract or grant with a State or Local Government. 

We welcome your questions or comments, which can be sent to Jonathan DeMella at 206.623.3427 or email: demella@oles.com

The Government Contracts Practice Group at Oles Morrison has an established history of assisting contractors with claims against federal and state agencies, bid protests and providing advice and counseling on all issues involving public procurement.