Regulations involving Protections for Contractor Employee Whistleblowers Extended

Back in 2013, the FAR (Federal Acquisition Regulations) Councils added provisions for enhanced whistleblower protections for contractor employees. The coverage, codified at FAR 3.9 set forth the policy that Government contractors cannot discharge, demote or otherwise discriminate against an employee as a reprisal for disclosing information to a Member of Congress, or an authorized official of an agency or the Department of Justice, relating to a substantial violation of law related to a contract.

This was a four year pilot program and has now expired and according to the regulations, it is no longer in effect. However, it is the intent of everyone involved to make the regulations permanent. However, because of the moratorium on new regulations, the FAR Councils have not been able to complete the FAR case to make the 4-year pilot program permanent.

Earlier this week, the FAR Councils issued a Class Deviation from FAR to re-implement the contractor employee whistleblower protections. The effect of this is to revert back to the pilot program regulations as if they had not expired. This class deviation will remain in effect until FAR Case 2017-0005 is formalized.

By way of background, contractor employees who believe that they have been discharged, demoted, or otherwise discriminated against contrary to the policy may file a complaint with the Inspector General of the agency that awarded the contract. If the Government finds the allegations to be true, the Government can 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 (with compensation) or order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses that were reasonably incurred by the complainant.

There have been many contractor employee whistleblowers and many of them also allege reprisal by their employer. We do not have any statistics on how the 4-year pilot program worked out for contractor employee whistleblowers but it probably had positive effect since the Government now wants to make the regulations permanent.