Whistleblower Protection for Employees of Government Contractors

The FAR (Federal Acquisition Regulations) Councils are proposing to amend the FAR to implement a provision in prior NDAAs (National Defense Authorization Acts) to strengthen and make permanent protections for disclosures of certain information. It also clarifies the prohibition on reimbursement for certain legal costs incurred by contractors and subcontractors in defense of employee whistleblower complaints.

A four-year pilot program created by the 2013 NDAA will become permanent under this new regulation. The new regulation however contains some enhancements to pilot program regulations. It provides more details about the nature of what constitutes whistle lower information and to whom it may be disclosed, as well as more detailed procedures for filing and investigation complaints and enforcing orders.

The prohibition against retaliating against contractor whistleblowers is found in FAR 3.9, Whistleblower Protections for Contractor Employees. It is quite expansive so we won't try to cover its essence in this short blog post. One new definition has been proposed - Abuse of Authority. Abuse of authority means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract of such agency.

The basic policy remains essentially the same as that in the pilot program: Contractors and subcontractors are prohibited from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing, to (i) congress or a representative of a congressional committee (ii) inspector general (iii) GAO (Government Accountability Office), (iv) a federal employee responsible for contract oversight or management at the relevant agency, (v) an outhorized official of the Justice Department, (vi) a court or grand jury, or (vii) a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct the following:

1. Evidence of gross mismanagement of a Federal contract
2. A gross waste of Federal funds
3. An abuse of authority relating to a Federal contract
4. A substantial and specific danger to public health or safety, or
5. A violation of law, rule, or regulation related to a Federal contract.

Tomorrow we will examine the cost allowability of defending against whistleblower allegations.