(a) If NASA does not make a Federal award to a non-Federal entity because the agreement officer determines that the non-Federal entity does not meet either or both of the minimum qualification standards, as described in paragraph (a)(2) of 2 CFR 200.205, the agreement officer must report that determination in FAPIIS, accessible through SAM, only if all of the following apply:

(1) The only basis for the determination described in paragraph (a) of this section is the non-Federal entity's prior record of executing programs or activities under Federal awards or its record of integrity and business ethics, as described in paragraph (a)(2) of 2 CFR 200.205, (i.e., the entity was determined to be qualified based on all factors other than those two standards); and

(2) The total Federal share of the Federal award that otherwise would be made to the non-Federal entity is expected to exceed the simplified acquisition threshold over the period of performance.

(b) Agreement officers are not required to report a determination that a non-Federal entity is not qualified for a Federal award if they make the Federal award to the non-Federal entity and includes specific award terms and conditions (see §1274.209).

(c) If the agreement officer reports a determination that a non-Federal entity is not qualified for a Federal award, as described in paragraph (a) of this section, the agreement officer also must notify the non-Federal entity that—

(1) The determination was made and reported to FAPIIS, accessible through SAM, and include with the notification an explanation of the basis for the determination;

(2) The information will be kept in the system for a period of five years from the date of the determination, as required by section 872 of Public Law 110-417, as amended (41 U.S.C. 2313), then archived;

(3) Agreement officers making a Federal award to the non-Federal entity during that five year period must consider the information found in FAPIIS when judging whether the non-Federal entity is qualified to receive the Federal award when the total Federal share of the Federal award is expected to include an amount of Federal funding in excess of the simplified acquisition threshold over the period of performance of the award;

(4) The non-Federal entity may go to the awardee integrity and performance portal accessible through SAM (currently the Contractor Performance Assessment Reporting System (CPARS)) and comment on any information the system contains about the non-Federal entity itself; and

(5) Agreement officers will consider that non-Federal entity's comments in determining whether the non-Federal entity is qualified for a future Federal award.

(d) If the agreement officer enters information into FAPIIS about a determination that a non-Federal entity is not qualified for a Federal award and subsequently—

(1) Learns that any of that information is erroneous, the agreement officer must correct the information in the system within three business days; and

(2) Obtains an update to that information that could be helpful to other Federal awarding agencies, the agreement officer is strongly encouraged to amend the information in the system to incorporate the update in a timely way.

(e) The agreement officer shall not post any information that will be made publicly available in the non-public segment of designated integrity and performance system that is covered by a disclosure exemption under the Freedom of Information Act. If the recipient asserts within seven calendar days to NASA that some or all of the information made publicly available is covered by a disclosure exemption under the Freedom of Information Act, agreement officers must remove the posting within seven calendar days of receiving the assertion. Prior to reposting the releasable information, agreement officers must resolve the issue in accordance with the agency's Freedom of Information Act procedures.

[81 FR 35584, June 3, 2016]