We have previously provided information about the final FAR Rule implementing the Federal Awardee Performance and Integrity Information System, known as FAPIIS. This Rule, which became effective on April 22, 2010, requires many government contractors to provide certified disclosures pertaining to certain administrative, civil, and criminal proceedings. The Government is collecting this information via a series of questions that are now active in Central Contracting Registration (“CCR”), and contractors are beginning to wrestle with the significant questions.
Below is an example of one of the questions that may be facing contractors (this image comes from p. 18 of the renewal/update screenshots made available by CCR (pdf.)):
Here are some of the reasons why this inquiry is giving rise to questions:
1) By inserting the first parenthetical – “including parent organization, all branches, and affiliates worldwide” – one could argue that the question now expands the scope of the contractors’ disclosure requirements beyond the language and purpose of the underlying statute and FAR Rule. Moreover, there is another version of this question appearing elsewhere in CCR where the parenthetical reads “represented by the DUNS number on this specific CCR record,” but does not request information regarding branches and affiliates worldwide. (See p. 24 of the new registration screenshots made available by CCR).
2) Whereas the text of the final FAR Rule seeks certified disclosures about certain proceedings “in connection with the award to or performance by the offeror of a Federal contract or grant”, this CCR question also seeks parallel information with respect to State contracts or grants, and uses the phrase “your business or organization”, rather than “offeror”.
3) Whereas the text of the final FAR Rule seeks certified disclosures about certain proceedings “at the Federal or State level”, this CCR question is not limited in that way and may cause confusion about whether certain foreign or local proceedings must be disclosed.
4) The phrase “or other acknowledgment of fault” is vague and seemingly broader than the final FAR Rule.
5) Does this question impermissibly broaden the FAR Rule without giving the opportunity for notice and comment?
There are many other questions and conundrums as well. Please join us for a webinar on Thursday, May 6, from 2:00 pm – 3:30 pm ET, for an in-depth discussion of the final Rule and the issues now facing government contractors.