Contractors Ponder Next Move With Regard to FAPIIS

POGO’s ears were burning this morning courtesy of a prominent government contracting law firm’s advice to its clients regarding the latest contractor accountability news.

We found out today that we were mentioned in this “Client Alert” issued last Friday by the law firm Wiley Rein LLP. This particular alert discusses recent efforts seeking to expand the Federal Awardee Performance and Integrity Information System (FAPIIS), the federal government’s contractor integrity and performance database similar (in principle, but definitely not scope) to POGO’s Federal Contractor Misconduct Database (FCMD).

The second paragraph caught our attention:

By statute, the Chairman and Ranking Member of certain congressional oversight committees may access FAPIIS upon request.  The information is not automatically available to the public, but the Project on Government Oversight (POGO) submitted a request under the Freedom of Information Act on April 21, 2010, for all FAPIIS information relating to administrative, criminal or civil proceedings.  The request also sought contractor comments on the FAPIIS information and data on how Government officials used FAPIIS information in responsibility determinations and past performance evaluations.  If POGO's request is granted in full, the requested FAPIIS data will essentially become public information.

That Freedom of Information Act (FOIA) request is posted here. By the way, POGO has not yet received an acknowledgment from the FOIA office at the General Services Administration (GSA) even though we submitted the request almost one month ago. Agencies are required to respond to FOIA requests within 20 business days.

Wiley Rein’s client list includes several of the top federal contractors. In fact, one of its former contractor clients was Blackwater, which filed a $30 million legal malpractice suit against the firm in 2008 for its representation in a wrongful death lawsuit involving the brutal murder of four Blackwater employees in Fallujah, Iraq in 2004. Blackwater’s malpractice lawsuit was quickly thrown out of court.

The Wiley Rein alert notes that the final rule implementing FAPIIS announces the intention of the Federal Acquisition Regulatory Councils and Office of Management and Budget (OMB) to further expand the scope of information included in FAPIIS. It also highlights the Senate’s latest effort to improve FAPIIS via the Feingold and Coburn-sponsored “Federal Contracting Oversight and Reform Act of 2010” and last week’s publication of an advanced notice seeking guidance on how to amend the Federal Acquisition Regulation (FAR) to permit public posting of contract actions while still protecting contractors’ proprietary and confidential information.

As evidenced by the Wiley Rein alert, the federal contracting community sees the writing on the wall with regard to accountability and transparency. “Contractors should be aware that performance information available to acquisition personnel, other Government officials, and the public likely will continue to expand,” the alert warns. “In response, contractors should continue to take advantage of any opportunities to present explanatory or mitigating information through FAPIIS or related databases.”

POGO is a fervent believer in this two-way communication strategy, which is why we actively encourage the contractors in our FCMD to submit comments and/or complaints which we post on the site. Unfortunately, very few have taken advantage of this opportunity.

-- Neil Gordon

Photo: http://www.flickr.com/photos/teliko82/ / CC BY-NC 2.0

Comments

[Observer V]

Neil--with due respect to POGO's good work, there's a reason you don't hear much from contractors. They read and feel an excessive bias against them. I don't have a quant. content analysis, but the high odds are you'll bash a contractor, compared with a fed. Four Legs Good, Two Legs Bad.

I agree strongly that more contractor info should be disclosed. But I trust you recognize that most of the nondisclosure is enforced by the government, e.g., the muzzle on contractor public comment on contracts in progress, or contractor's releasing deliverables without permission.

I also believe POGO does not understand the consequences of releasing past perf data. Such a release will tend to suppress and eventually snuff out competition, which is desperately needed. Contracting officers and/or proposal eval panels will find reasons to exclude just about any contractor over time, especially if you include "misconduct" like settlements with no admission of wrongdoing.
There is no expiration date for a black marks on a company's record and reputation, even if there has been a total changeover in management or approach and even if civil or criminal penalties have been paid.

With past performance grist, your bad-contractor database could upscope to, say, 1000 firms, and most of them will have black marks that never go away.

Frankly, a few should retire from the business, but the government can't possibly do without them. And the vast number of contracts being performed are untroubled.

The government could backfill for the excluded contractors with inexperienced small businesses, HUBzone prevaricators, grossly inefficient universities, or FFRDCs with their swollen salaries and overhead and sole-source, cost-plus mentality.

And, except for the unions, perhaps, few people would want to see the government try to add, say, 0.5 to 1.0 million workers, to pick up the slack.

Also notice that government agencies, while they may suffer the occasional tough audit or a criminal prosecution of an employee, do not have their performances systematically and comprehensively evaluated in public. This ought to be your first concern because: (1) many federal programs make a lot of stumbles and often are awfully conceived and implemented. (2) civil servants are rarely penalized for their mistakes, which must have something to do with agency performance. Federal agency performances mostly can't honestly be attributed to Congress, bad technology, or other parties' screw-ups

Think of how big a companion data base of federal agency and federal employee conduct would be. And it would be a lot easier to compile from existing sources. (And be sure to include the settlements!) This should be a high-priority POGO undertaking.