Whistleblower Protections under Government Contracts

FAR contains a policy on whistleblower protection that applies to all Government contracts, regardless of size and type and regardless of contractor status (e.g. small business, minority-owned business, etc.). The policy simply states that government contractors shall not discharge, demote or otherwise discriminate against an employee as a reprisal for disclosing certain information to

• a Member of Congress, or
• an authorized official of an agency or
• an authorized official of the Department of Justice,

The type of information covered by this prohibition includes that relating to a substantial violation of law related to a contract (including the competition for a negotiation of a contract). Note that actions such as disclosing information to the press is not covered under whistleblower protections.

Any employee who believes that he or she has been discharged, demoted, or otherwise discriminated against contrary to this policy may file a complaint with the Inspector General of the agency that awarded the contract. The complaint must meet certain criteria. It must include the violation of law giving rise to the disclosure, the nature of the disclosure giving rise to the discriminatory act, and the specific nature and date of the reprisal.

Once the Inspector General receives the complaint, they will make a preliminary inquiry to ensure that the complaint is not frivolous or for other reasons does not merit further investigation. The IG can kill it right there and then or decide to investigate. Ultimately, the IG will report on the findings of its investigation. Copies will go to the complainant, the contractor, and the head of the contracting activity. The contractor gets 30 days to prepare and submit a response to the the IG report.

Ultimately, the head of the contracting activity makes the final decision on the IG's recommendations. If he/she finds that the contractor has subjected an employee to a reprisal, he/she can take one or more of the following actions:

• Order the contractor to take affirmative action to abate the reprisal
• Order the contractor to reinstate the person to the position that the person held before the reprisal, together with the compensation, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken
• Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorney fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal.

If a contractor fails to comply with the contracting activities orders, the contracting activity is required to have the Department of Justice file an action for enforcement of such order in the US District Court.

The goal of contractors, of course, is to have strong internal controls and ethical behavior to preclude reprisals from happening. We've discussed contractor codes of ethics/conduct previously and will continue to do so as the regulations requiring contractors to have formalized plans continue to evolve. The best advice we can give to contractors is to resolve issues internally and quickly and provide on-going status reports and feedback to aggrieved parties. If as a result of internal reviews you find that the Government has been harmed, seek legal counsel on how best to voluntarily notify the Government and to help develop strategies to make things whole.