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When reporting a termination for cause in FAPIIS, what documentation is appropriate or permissible for the contracting officer to attach to the record? For example, should or can the contracting officer attach the termination notice to the FAPIIS record if it explains in detail the basis for the termination? What about the CO's memorandum to the contract file; should or can it be attached to the FAPIIS record?

If it is appropriate or permissible to attach these documents to the record, is it advisable to do so? Why or why not?

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There is a FAPIIS module in CPARS and your agency should have focal points (see below) . I don’t have access to that module. Does your agency have any coverage under its FAR supplement or other agency policy and regulations? 

“    42.15   (h) Other contractor performance information.

            (1) Agencies shall ensure information is accurately reported in the FAPIIS module of CPARS within 3 calendar days after a contracting officer-

                 (i) Issues a final determination that a contractor has submitted defective cost or pricing data;

                 (ii) Makes a subsequent change to the final determination concerning defective cost or pricing data pursuant to 15.407-1(d);

                 (iii) Issues a final termination for cause or default notice;

                 (iv) Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience;

                 (v) Receives a final determination after an administrative proceeding, in accordance with 22.1704(d)(1), that substantiates an allegation of a violation of the trafficking in persons prohibitions in 22.1703(a) and 52.222-50(b); or

                 (vi) Determines that a contractor has a history of three or more unjustified reduced or untimely payments to small business subcontractors under a single contract within a 12-month period (see 42.1502(g)(2)).

            (2) The information to be posted in accordance with this paragraph (h) is information relating to contractor performance, but does not constitute a “past performance review,” which would be exempted from public availability in accordance with section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212). Therefore, all such information posted in FAPIIS will be publicly available, unless covered by a disclosure exemption under the Freedom of Information Act (see 9.105-2(b)(2)).

            (3) Agencies shall establish CPARS focal points who will register users to report data into the FAPIIS module of CPARS (available at https://www.cpars.gov/).

            (4) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the contracting officer shall follow the procedures at 9.105-2(b)(2)(iv).“

  “9.105-2 (b)        (iv) The contracting officer, or any other Government official, shall not post any information in the non-public segment of FAPIIS that is covered by a disclosure exemption under the Freedom of Information Act. If the contractor asserts within 7 calendar days, to the Government official who posted the information, that some of the information posted to the non-public segment of FAPIIS is covered by a disclosure exemption under the Freedom of Information Act, the Government official who posted the information must within 7 calendar days remove the posting from FAPIIS and resolve the issue in accordance with agency Freedom of Information Act procedures, prior to reposting the releasable information.“

As I understand it, the information is first posted in the non-public area in FAPIIS and the contractor has an opportunity to review and respond to it.

Per the above, anything posted in FAPIIS has to be that which is publically available. 

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  • 2 weeks later...

Circling back to report that after reviewing several active FAPIIS records, we found that it is common for the CO to attach the termination notice and the termination modification. I didn't see an instance of a CO posting a copy of the CO's memo to file, but that does not mean it isn't permissible.

The contractor has a 7-day period to review the information and assert to the CO that the posted information is covered by a disclosure exemption under FOIA. At that point, the CO must within 7 calendar days remove the posting  while it determines whether the information is releasable or protected. If it isn't, the information can be re-posted.

So it seems that the CO can pretty much post anything it deems appropriate for other agencies to review when making responsibility determinations, unless the contractor claims the information is exempted from release (and the CO confirms this). It is worthy to note that the information is publicly viewable 14 days after the CO posts it in FAPIIS.

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