Following each Nash & Schooner Hot Topics Webinar event, we interview Professor Ralph Nash to get his thoughts on the topic following the panel discussion. On September 27, Professors Ralph Nash and Steven Schooner hosted special guest James McCullough, Fried Frank, and Julia Wise, OFPP in a discussion of the Federal Awardee Performance and Integrity Information System (FAPIIS).
What are the key points that you think people should understand or know about FAPIIS?
1) Contracting Officers have a responsibility to input data very quickly after making determinations; this includes issues covered under the Contracts Disputes Act. Contracting Officers then have the additional responsibility of updating the information as these issues go to litigation and settle.
2) FAR 52.209-7 & 9, primarily, require contractors with contracts over $10 M to certify that the data it puts into the system is current, accurate and complete. This is data related to criminal convictions, civil judgments and administrative decisions over a monetary threshold.
3) If the government inputs information the contractor has the ability to respond to mitigate the entry – some factual information to demonstrate what the Contracting Officer has entered is wrong. This is important because the FAPIIS database is public knowledge so anybody can go in and do what they want with that information.
4) FAPIIS info is perceived to be integrity information. This is all put into FAR Part 9 as a part of responsibility determinations. But responsibility determinations in federal procurements have not been a big issue in competitive negotiations because the competitive negotiations context is usually the series of trade off decisions done in the evaluation process.
5) Current questions being asked by OFPP, in OFPP’s Notice of Request for Comment, are an indication that here is a concern about the quality of data. Ultimately, they need to come up with a system that (1) is easy to use and (2) gets accurate data into the system.
What do you see as the major consequences of FAPIIS?
The Contracting Officer is required by the regulations to look at this info before they award. This means that Contracting Officers need to document this info in the file and say what they did and how they used it. Will any of that be challengeable either at GAO or COFC? It will certainly make more paperwork in the process but I don’t know if it will subject them to greater protests. Jim McCullough has been suggesting all along that protesters would pick up this data and use it as a way of protesting awards for improper use of the FAPIIS data. But the reality is that there has only been one protest thus far. But the system is so new; it is too early to come to a conclusion.
The other issue I see is that contractors sign certificates that the information they submit into the system is current, accurate and complete (See FAR 52.209-7(c)) which creates the possibility of liability for false statements under the False Claims Act.
What is the one thing contractors should be cognizant of with respect to FAPIIS?
They need to carefully monitor the system. The regulations require the Contracting Officer to tell the contractor when they enter adverse data but you can’t rely on everyone following the regulations. You need to have someone in your organization monitor that system on a daily basis and you need to comment as soon as something is posted to ameliorate the information. Nothing positive goes into the systems, it’s only the negative information.
The other serious issue is making this a matter of responsibility. If a contractor will be declared non-responsible then they should forego the expensive competitive negotiation process. With the way this is structured, a contractor could go through the entire process and, at the end, the Contracting Officer would look at the FAPIIS data and throw the evaluated best offeror out of the negotiation. It scares me that contractors may spend all this money preparing a proposal only to be kicked out of the competition at the end for responsibility – probably not a good way to set up the system. It would be better to have a predetermination process so that these decisions are made before the contractor incurs the expense. This is a lingering problem.
What is the one thing government procurement officials should be cognizant of with respect to FAPIIS?
We need to think about giving Contracting Officers a support staff. This system imposes on Contracting Officers, who have no staff and are overworked – a very unreasonable expectation. Contracting Officers are telling me that they are spending 40% of their time doing data entry. We’re never going to get high quality data from Contracting Officers, who are not clerks, this way.