Monday, March 3, 2014

Enhancements of Contractor (and Subcontractor) Whistleblower Protections

The DoD has published its final rule regarding whistleblower protections for contractor employees. Before we get in to the substance of the new provision, there are a few things to note here. First, it applies only to DoD contractors. However, don't let that fact lull you non-DoD contractors into a sense of relief. Many times, these rules that start out DoD only, eventually carry over into FAR and then apply to all Government contractors. Secondly, it applies to subcontractors as well as contractors. The implementing DFARS (DoD FAR Supplement) clause is one of those flowdown clauses that prime contractors must send to their subs. Thirdly, it applies to all entities large and small. There is no contract threshold below which it doesn't apply. Finally, this new rule replaces an interim rule that has been around since last September so consider the effective date September 2013, not February 2014.

The new rule prohibits contractors and subcontractors from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing, to any of the listed entities, information that the employee reasonably believes is evidence of

  • gross mismanagement of A DoD contract,
  • a gross waste of DoD funds, an abuse of authority relating to a DoD contract, 
  • a violation of law, rule, or regulation related to a DoD contract (including the competition for or negotiation of a contract), or
  • a substantial and specific danger to public health or safety.

Such reprisal is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.

The "entities" to whom disclosure may be made and then protected by this provision include,

  • Member of Congress or a representative of a committee of Congress
  • An inspector General that receives funding from or has oversight over contracts awarded for or on behalf of DoD
  • The Government Accountability Office (GAO)
  • A DoD employee responsible for contract oversight or management (e.g DCMA and DCAA)
  • An authorized official of the Department of Justice or other law enforcement agency
  • A court or grand jury
  • A management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

The new rule also contains procedures for filing and investigating complaints as well as remedies (punishment) that are available should a contractor be found in violation of this whistleblower statute.

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