Industry officials are concerned that a new law providing the public with access to a federal contractor database could have the unintended consequence of creating a politically motivated blacklist of vendors.
A provision in the wartime supplemental appropriations bill President Obama signed into law on July 29 would amend the 2008 Clean Contracting Act by requiring the Office of Management and Budget to disclose on a public website all information, with the exception of past performance reviews, included in the Federal Awardee Performance and Integrity Information System. The information now is accessible only to a handful of government officials, lawmakers and contractors that are listed in the database.
FAPIIS was designed to provide contracting officials with a single source to verify a vendor’s conduct and past performance. The database includes criminal and civil proceedings against suppliers in connection with federal awards, and lists vendors whose contracts were terminated and those banned from doing business with the government.
But, Alan Chvotkin, executive vice president and counsel for the Professional Services Council, a contractor association, said he worries opening up the site to public scrutiny could jeopardize the integrity of the acquisition process.
“While firms are accountable for their past performance, opening portions of the database that are not now already publicly available elsewhere could risk improperly influencing the evaluation and selection of otherwise qualified bidders because of public pressure to blacklist certain vendors,” Chvotkin said. “Furthermore, public posting risks the inappropriate and potentially damaging disclosure of company proprietary information while doing nothing to further government oversight or decision-making.”
The General Services Administration, which is in charge of FAPIIS, said it was working to implement the statute while also addressing contractors’ apprehensions and complaints. “We are aware of some industry concerns regarding the disclosure of proprietary data and will address those,” agency spokeswoman Diane Merriett said on Thursday. There is no timetable yet for opening the database to the public, she said.
The FAPIIS ammendment, which was sponsored by Sen. Bernie Sanders, I-Vt., came as a surprise to many in the government marketplace. The language had garnered almost no media attention prior to last week and was not the subject of a congressional hearing or public debate.
In fact, until recently it appeared there was little hope the long-sought after database would be made public. Last week, the Defense Department rejected a Freedom of Information Act request by the Project on Government Oversight — a federal watchdog group that has advocated for publicly posting contractor performance data — for information in FAPIIS, on the grounds that internal decisions on contract awards are sensitive and exempt from public release.
“There was never any valid reason to keep this database from the public in the first place,” Scott Amey, POGO’s general counsel, said this week.
Sanders agreed, arguing the public has a right to the same data as contracting officials. To receive enough support for his amendment, the senator offered to exempt past performance reviews from public disclosure.
“The American people have every reason to expect that their tax dollars are well-spent,” Sanders said in a statement to Government Executive. “For this reason, I am pleased that with this new legislation every contractor’s history of illegal behavior will be posted on a publicly accessible online database. I strongly expect that this new public awareness will put an end to handing out taxpayer-financed contracts to corporations with a history of fraud.”
— By Robert Brodsky – GovExec.com – August 6, 2010