By Carol L. O’Riordan and Selena Brady
Government contractors will now have a slightly better means of challenging the possible release to the general public of information on them that may actually be exempt from publication under the Freedom of Information Act (FOIA).
On January 3, 2012, the Federal Acquisition Regulatory Council, which helps coordinate Government-wide procurement policy, issued a final rule regarding the release of contractor information in the Federal Awardee Performance and Integrity Information System (FAPIIS). This final rule provides contractors with the protection of a seven-day review period so that they can assert that certain information in FAPIIS is exempt from the FOIA and thus should not be made public.
FAPIIS is a website used by contracting officers and federal employees to review the history of companies’ work with the federal government. It contains information about the integrity and performance of federal contractors. Contracting officers must update FAPIIS to record derogatory information such as non-responsibility determinations, terminations for default or cause, final defective pricing determinations, and administrative agreements with suspension and debarment officials.
The website has two areas for individuals to access, the public and the non-public sections. Government officials and contractors can post information in the non-public section, which can only be viewed by Government personnel, authorized users conducting business for the Government, or the contractor viewing its own personal information. It is not open to the general public.
Under the final rule, the information in the non-public section of FAPIIS will automatically transfer to the public section after 14 days. However, FAPIIS will not transfer past performance reviews, information entered into the system before April 15, 2011, or information that the Government official who posted the information retracts within the 14-day timeframe.
The new rule cautions that Government officials should not post any information to FAPIIS that is exempt under FOIA. However, in the event that exempt information is posted, the rule provides a means for contractors to challenge the exempt information before it is transferred to the public section. The contractor has seven calendar days to review the posted information and assert a FOIA challenge for any exempt information.
During the seven-day period, contractors should review and identify any information that they believe is covered by a FOIA disclosure exemption. Then, contractors should submit a written request for removal of the exempt information within seven calendar days of the posting to FAPIIS and cite to FAR 52.209-9. If a contractor asserts a FOIA exemption, the Government official who posted the information will remove the posting from FAPIIS. The FOIA issue will then be resolved in accordance with agency FOIA procedures before any information is reposted.
While the new final rule provides contractors with more protection than the interim rule published in 2011, it remains important for contractors to regularly review the information posted in FAPIIS. Since the time period for a challenge is brief, the contractor must be proactive in reviewing its information for FOIA exemptions. Also, it will be important to monitor any challenges submitted to the Government and their results in order to keep track of what information has been released to the public section for general use and whether the releases have been correct.
