Buried in the supplemental appropriations bill signed by the President on July 29^th is a provision (Section 3010) that will require the General Services Administration to post on a “publicly available Internet website” all contractor information, with the exception of past performance reviews, included in the GSA-maintained Federal Awardee Performance and Integrity Information System (FAPIIS).  Like other recently enacted laws affecting federal contractors, the provision was added to the bill at the last minute with no public debate when the bill was on the Senate floor in late May.

FAPIIS was created pursuant to the FY ’09 Defense Authorization Act and became operational in April 2010.  FAPIIS contains information (going back five years) from various sources that contracting officials use to evaluate the integrity and performance of prospective contractors in order “to protect taxpayers from doing business with contractors that are not responsible sources.”  Information in FAPIIS includes; past performance reviews, excluded parties lists, non-responsibility determinations, contract terminations for default or cause, agency defective pricing determinations, administrative agreements entered into by suspension and debarment officials and contractor self-reporting of criminal convictions, civil liability, and adverse administrative actions.  As mentioned above, FAPIIS is maintained by the General Services Administration.

Currently FAPIIS is only open to “appropriate” acquisition and agency officials as well as the top lawmakers on relevant congressional committees.  Contracting officers are required to review the information in FAPIIS in connection with contracts over the simplified acquisition threshold (currently $100,000) for the purpose of making a responsibility determination,   They must also document the contract file to explain how the information in FAPIIS was considered in any responsibility determination–as well as the action that was taken as a result of the information.

There are concerns that opening the FAPIIS website to the public could lead to public pressure (potentially politically motivated) that could improperly influence a contract award decision, and create a situation where certain vendors targeted by public groups could become “radioactive” and essentially “blacklisted” from future contracts.   A more practical and wide-ranging concern is that making the contractor information in the FAPIIS public could result in the disclosure of proprietary contractor information.

GSA is currently working on the regulations to implement the provision.  There was no timetable or deadline provided by the legislation and GSA has given no indication when FAPIIS will be open to the public.  GSA though has indicated that it will address concerns related to the disclosure of proprietary data.