Tuesday, December 1, 2009

DoD Contractors Must Inform Employees of their Whistleblowing Rights

Since 1994, FAR 3.9 has contained whistleblower protections for contractor employees. The policy, believed by some to be somewhat anemic, states that Government contractors shall not 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 of the Department of Justice, relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract). FAR also includes simple procedures for filing complaints, procedures for investigating complaints, and significant remedies imposed upon the contractor if found to have violated the regulation.

The policy just go beefed up, at least for DoD contracts. To implement provisions in the National Defense Authorization Acts of 2008 and 2009, the Department of Defense issued interim DFARS regulations in January 2009 that expanded upon the FAR regulations. The interim regulations just became final in November 2009. The differences between the FAR and the new DFARS policy are quite significant and include:
  • Expansion of the types of information to which the protections apply
  • Expansion of the categories of Government officials to whom information may be disclosed without reprisal
  • Establishment of time periods within which the IG and the agency head must take action with regard to a complaint filed by a contractor employee
  • Allow contractor employees a right of action in federal district court who have exhausted their administrative remedies
  • Requirement for contractors to inform employees in writing of their whistleblower rights and protections.
 Following is a comparison between FAR and DFARS of the kinds of disclosures subject to protection:

And, here is a comparison of the categories of Government officials to whom information may be disclosed without reprisal:

As you will note, both the types of disclosure subject to protection and the number of Government officials to whom disclosures are protected are significantly expanded from the FAR coverage. The "mismanagement" and "waste" provisions introduce a level of subjectiveness into the process as well.

Employee complaints of reprisal are filed with the DoD-IG. The DoD-IG makes a determination as to whether a complaint is frivolous or merits further investigation. Either way, the DoD-IG has about six months to complete the investigation and issue a report.  If the DoD-IG misses its deadline, the compainant may bring a new action against the contractor for compensatory damages and other relief in a US District Court, regardless of the amount in controversy. Either party to the suit may request a jury trial.

The remidies available to the Government are unchanged by this DFARS. Remedies include orders to take affirmative action to abate the reprisal, reinstatement to position held before the reprisal, reimbursement for the complaintant's costs (including attorney fees). See FAR 3.906.

The new DFARS now requires contractors to inform their employees in writing of employee whistleblower rights and protections as described in DFARS 203.9. Contractors can accomplish this through a variety of means including (i) employee handbook, (ii) poster, or (iii) company intranet. We recommend that contractors include whistleblower protection coverage in periodic training sessions as well. This new regulation applies to all DoD contracts, regardless of value.

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