Friday, January 22, 2016

Contractors Cannot Stop Employees from Whistleblowing

Last February, we reported on new a DoD prohibition against awarding contracts to companies that have had their employees sign non-disclosure agreements restricting them from reporting fraud, waste, and abuse to a Government representative authorized to receive such reporting. That prohibition was incorporated in the DoD FAR Supplement (DFARS) at 252.203-7998.

Evidently, the rest of the Government thought that this was a pretty good thing so the FAR Councils are proposing to amend the Federal Acquisition Regulation (FAR) similarly an make it applicable to all Governmental Agencies. Well, perhaps the impetus came from Congress and the President in the Consolidated and Further Continuing Appropriations Act of 2015 that required Government-wide implementation of the prohibition.

If the proposal becomes regulation, and there is no doubt that it will since the prohibition is now law, Agencies will not be able to use funds, appropriated or not, for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts such employees or subcontractors from lawfully reporting waste, fraud, or abuse to a designated Government representative authorized to receive such information.

Contractors must self-certify that it does not require employees or subcontractors to sign non-disclosure agreements and if they've done so in the past, contractors are required to notify those employees or subcontractors that previous agreements are no longer valid.

 Finally, the "Government representative authorized to receive such information" is a designated investigative or law enforcement representative of a Federal department or agency. Presumably, this will be the investigative arm of one or more of the various Inspector Generals (IGs) but it could also be other Federal law enforcement like the NCIS, the Army CID, or the Air Force OSI.

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