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.”

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.Continue Reading Applying FOIA exemptions to contractor information in FAPIIS

The ongoing federal contracting transparency initiatives will not yet include the publication of actual contract documents on the internet. According to a Federal Register notice published on February 10, 2011 [pdf], that proposal has been withdrawn, at least for now.Continue Reading Contract Documents Won’t Be Posted on the Internet . . . Yet

It’s a common assumption in litigation under the Freedom of Information Act that trade secrets lose value with the passage of time. The January 19, 2011 decision in Taylor v. Babbitt, No 03-0173-RMU (D.D.C. Jan. 19, 2011), shows there’s much more to the story. The case involved a 2002 FOIA request seeking “plans, blueprints, specifications, engineering drawings and data” submitted to the government in 1935 in support of a type certificate application for the Fairchild F-45.  After a harrowing ride through the court system, including a trip to the Supreme Court, United States District Judge Ricardo M. Urbina ordered the government to produce the 75-year-old documents.
Continue Reading FOIA trade secrets exemption unavailable for 75-year-old aircraft design

One response to the shortage of experienced federal contracting personnel and qualified DCAA auditors is to turn the job over to the public at large.  That seems to be the plan when it comes to the new federal contractor transparency initiatives, the most recent of which is the rule that will make the Federal Awardee Performance and Integrity Information System (FAPIIS) available to the public after April 15, 2011.  Like the business model adopted by Wikileaks, the concept appears be that posting selected contractor performance data on the internet will be like hiring 300 million inspectors general.  As with many government initiatives, the results are likely to cost more and achieve less than anticipated.
Continue Reading Will public availability of FAPIIS mean 300 million inspectors general?