1. Federal Awardee Integrity Information System Jerry Gabig Huntsville Attorney (256) 509-0279 © Jerome Gabig 2012

2. GSA Video On FAPIIS http://www.fai.gov/video/fap_iis_trailer/fap_iis_trailer/module.htm

3. FAPIIS Outline I.Purpose II.Sorting Out the Acronyms III. FAPIIS Issues & Deadlines IV. Protection Against A “Bad Wrap” A.CPARs administrative reviews B.Source selection safeguard C.Protests D. CDA appeals

4. I. Purpose “FAPIIS is designed to facilitate the Govt’s ability to evaluate the business ethics of prospective contactors and protect the Govt from not responsible sources.” 77 F.R. 42,339

5. FAR Guiding Principle “Use contractors who have a track record of successful past performance or who demonstrate a superior ability to perform.” FAR § 1.102(b)(1)(ii)

6. In 1994, Steven Kelman, then Administrator of OFPP, convinced 20 agencies to make greater use of past performance in source selections. In 1997 those agencies reported a 21% increase in satisfaction with contractor performance Memory Lane

8. GAO-09-374 “[F]iscal years 2006 and 2007 indicate that only a small percentage of contracts had a documented performance assessment.” “Officials cited several reasons for not relying more on past performance information that included an overall lack of confidence in the objectivity of past performance information”

9. II. Sorting Out Acronyms

11. CCR Central Contractor Registration CCR originally was a Department of Defense (DOD) data system Since 2003 Government wide; run by GSA CCR collects, validate, store, and disseminate data in support of agency acquisitions FAR requires vendors to register in CCR prior to receiving a contract. the award of a contract. DUNS number required.

12. PPIRS Past Performance Information Retrieval System PPIRS receives the completed CPARS report cards, including contractor comments PPIRS receives reports of “adverse actions” from contracting officers

13. CPARS Contractor Performance Assessment Reporting System Retained for three years A written “Report Card” issued by a C.O. The CPARS database is available to source selection officials government-wide, but it is not publicly available

15. PPIRS “Adverse actions” include : non-responsibility determinations terminations for cause & default information on defective pricing determinations of contractor fault administrative agreements to resolve a suspension or debarment proceeding.

16. FPDS Federal Procurement Data Service FPDS collects data on contracts: Valued at $3,000 or more Every modification to a FPDC contract, regardless of dollar value

17. The EPLS provides a complete list of individuals and firms excluded by Federal government agencies from receiving federal contracts or federally approved subcontracts.

18. EPLS C.O. must review EPLS after opening bids or receiving proposals. C.O. must review EPLS again, immediately prior to award of RFP. FAR § 9.405(d)(4)

19. System For Award Management (SAM)

20. ORCA Online Representations and Certifications Application Enables prospective contractors to electronically submit required certifications and representations for responses to government solicitations The representations and certifications – Include socioeconomic status, affirmative action compliance, and compliance with reporting requirements – Considered current for up to one year

21. SAM To Expand…

22. FEDBIZOPPS Federal Business Opportunities Synopsizes federal business opportunities over $25,000 Vendors can conduct ad hoc searches or set up automatic queries

23. CFDA Catalog Of Federal Domestic Assistance Contains detailed program descriptions for 2,183 Federal assistance programs Widely used for grants

24. eSRS Electronic Subcontracting Reporting System Created in 2005 to streamline the small business subcontracting program reporting process Provides data to agencies to enable them to more effectively manage subcontracting plans An Internet-based reporting tool that eliminates the need for contractors to submit and process Individual Subcontracting Reports (SF 294) in hard copy Integrated into FPDS

25. III. Issues & Deadlines

26. Sample FAPIIS

27. Possible Issues What if Agency Agreement contains information that is inappropriate to release under FOIA? Defective Pricing: When do you disclose? DCAA Report? Contracting Officer final decision? Termination For Default? Is it removed from FAPIIS if reversed by a Board of Contract Appeals?

28. FAR § 52.209-7 “Information Regarding Responsibility Matters” Administrative Proceedings May be either state or Federal proceeding In connection with award or performance of a government contract Occurred in last 5 years Fine or penalty > $5,000 Payment to Gov’t > $100,000

29. Administrative Hearing DOL Hearings & Appeal for SCA violation? EPA ; OSHA ; OFCCP? What if Contractor pays the full amount of a $10,000 indirect cost rate penalty following a C.O. final decision under FAR § 42.709-3? What if Qui Tam settlement under seal?

30. Contractor Deadline “The Contractor shall update the information in the Federal Awardee Performance and Integrity Information System (FAPIIS) on a semi-annual basis, throughout the life of the contract, by posting the required information in the Central Contractor Registration database” FAR § 52.209-9

31. FAPIIS Certification “The offeror represents, by submission of this offer, that the information it has entered in the … (FAPIIS) is current, accurate, and complete as of the date of submission…” FAR § 52.209-7

32. III. Gov’t Deadlines FAR § 42.1503(e)

33. FAPIIS – Publicly Available Info Public has access to everything but: Past performance reviews Information available to vendor only within 14 day waiting period that is challenged by the vendor as not subject to disclosure under FOIA. FAR § 9.105-2

34. IV. Protection Against A “Bad Wrap”

35. CPARs Administrative Review “Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or other information” Reviewed one level about the C.O. “The ultimate conclusion … is a decision of the contracting agency.” FAR § 42.1503

36. Source Selection Safeguard “If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond.)” FAR § 15.306(a)(2)

37. Protests “While, as a general matter, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency, we will question an agency’s evaluation of past performance where it is unreasonable or undocumented.” Solers, Inc., B-404032.3, April 6, 2011

38. CDA Appeals Both BCAs and COFC have jurisdiction over contractor claims relating to negative CPARs as long as the dispute involves interpretation of or compliance with contract terms. Standard of review is arbitrary and capricious or abuse of discretion. No injunctions. Declaratory relief if COFC. Determine the rights and obligations of the parties if ASBCA.

39. Summary Federal Performance and Integrity Information System Required by Pub. L. No. 110-417, § 872 A “module” of PPIRS that includes publicly available information relating to a contractor's integrity The data is provided by both the government and the contractor. FAPIIS information includes whether a contractor: – is included on the Excluded Parties List – has entered into an Administrative Agreement with a Suspension and Debarment official – has been the subject of a criminal, civil, or administrative proceeding that resulted in a finding of fault relating to performance of a government contract in the past five years – has had any “adverse actions”