November 8, 2009 by  

Yesterday, POGO submitted a public comment on a proposed change to the Federal Acquisition Regulation (FAR) that would implement a government-wide contractor database similar in principle to POGO’s Federal Contractor Misconduct Database.

Federal officials must consult this database–called the Federal Awardee Performance and Integrity Information System (FAPIIS)–to check on prospective bidders’ integrity and performance backgrounds before awarding contracts. Contractors with federal contracts worth more than $10 million must submit information for inclusion in FAPIIS (i.e. data pertaining to criminal, civil and administrative proceedings involving violations of federal, state and local laws or contracts) and update that information on a regular basis.

As we’ve stated before, POGO strongly supports the establishment of FAPIIS for the positive impact it will have on contractor accountability, but we have various concerns that we were able to address in our public comment. Our concerns are so numerous and cover so many aspects of the proposed rule, in fact, that we felt compelled at the end of our comment to ask the FAR Councils to consider publishing a second interim rule and seek additional public comments.

One of our biggest concerns is that FAPIIS will be off-limits to the public. The non-public aspect of the database is especially confounding given the impression conveyed by then-candidate and now-President Obama that he would radically improve government transparency and public access to government information. We also question the proposed rule’s interpretation of the various dollar thresholds set out in the law, warn that some of the existing government databases from which FAPIIS will draw information may not be reliable, highlight the lack of a clearly-established system of penalties for contractors who fail to comply with the law, suggest that special consideration be given as to how the system will keep track of contractors’ aliases, subsidiaries and/or affiliates, and suggest that there should be no unwarranted restrictions on how information in FAPIIS gets retained and reviewed.

Overall, the proposed rule seems to diminish the benefits that could be derived from the database while downplaying or ignoring very important provisions in the law.

— Neil Gordon

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