Our previous discussions of the Federal Performance and Integrity Information System (“FAPIIS”) posted here in June 2010 and March 2011, urged contractors generally to manage affirmatively FAPIIS and, specifically, to: (i) place a high priority on entry and updating of data into FAPIIS; (ii) take advantage of every opportunity to comment on, explain or rebut information posted in FAPIIS; and (iii) be alert for Government posting of harmful information, in particular information potentially protected from disclosure by a Freedom of Information Act ("FOIA") disclosure exemption, Exemption 4. It is now apparent that, in light of a recent action of the Civilian Agency Acquisition Council and the Defense Acquisition Regulation Council (“the Councils”), contractors who successfully manage FAPIIS will be those contractors who not only implement the above steps but do so very quickly and are, as well, hyperalert for and prepared to react immediately to Government posting of potentially harmful information.

On January 3, 2012, the Councils finalized the rule initially proposed on January 24, 2011 amending FAR sections 9.104-7, 9.105-2, 9.406-3, 42.1503 and the clause at FAR 52.209-9 to implement the requirement of Section 3010 of the Supplemental Appropriations Act, 2010. That Act requires that the information in FAPIIS, “excluding past performance reviews, . . . be made publicly available.”...