Since the Federal Awardee Performance and Integrity Information System opened to the public on April 15, 2011, contractors have been concerned that their trade secrets and other proprietary information might also become accessible. With good reason—the interim version of FAR 52.209-9 provided for the public availability of all newly submitted information other than “past performance reviews.”

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The final rule on public access to FAPIIS specifically addresses the problem. Rather than simply ignoring Freedom of Information Act exemptions entirely as the interim rule did, the final form of FAR 52.209-9 (Jan. 3, 2012) [pdf] includes a mechanism that allows the contractor to identify information covered by a FOIA exemption.

Under the procedure in FAR 52.209-9, the contractor will receive notification whenever an agency posts new information to the non-public portion of the contractor’s FAPIIS record. The contractor would then have 7 calendar days to review the information and to assert the application of a FOIA exemption. Under the final rule, the contract “must cite 52.209-9 and request removal within 7 calendar days of the posting to FAPIIS.” The agency would then have 7 days to remove exempt information and to repost any releasable portion of it.

The final language of FAR 52.209-9 does not contemplate that all FOIA issues will actually be resolved in 14 days. Rather, it provides that questions as to the scope of a particular FOIA exemption will be “handled in accordance with agency Freedom of Information Act procedures.” Any remaining disputes would presumbably be resolved in an appropriate United States District Court in a “reverse-FOIA” action under the Administrative Procedure Act.

As more background on this subject, we discuss the apparent conflict between the interim FAPIIS rule and FOIA in a February 2011 white paper. In another post, we discuss the proposal to make the text of government contracts available on the internet.

Image: Michael Myers