NON-FEDERAL EMPLOYEE WHISTLEBLOWERS
A. Whistleblower Protections for Employees of Contractors, Subcontractors, and Grantees. Department of Defense & NASA (10 U.S.C. 2409), Civilian Agencies (41 U.S.C. 4712). (Effective for contracts, grants, and task orders awarded on or after July 1, 2013)
1. Whistleblower Reprisal as Prohibited Activity
Discharging, demoting, or otherwise discriminating against an employee of a contractor, subcontractor, or grantee in response to a disclosure of information that the employee reasonably believes is evidence of:
- A gross mismanagement of a Federal contract or grant,
- A gross waste of Federal funds,
- An abuse of authority relating to a Federal contract or grant,
- A substantial and specific danger to public health or safety, or
- A violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
2. Disclosures to the following parties are protected
- A Member of Congress or a representative of a committee of Congress.
- An Inspector General.
- The Government Accountability Office.
- A Federal employee responsible for contract or grant oversight or management at the relevant agency.
- 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, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.
3. Burden of Proof
- The legal burdens of proof specified in 5 U.S.C. 1221(e) shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.
4. OIG Investigation of Complaints
- A person who believes that they have been subjected to a reprisal may file a complaint with the relevant Inspector General.
The OIG must investigate and upon completion of the investigation, either:
Submit a report of the findings of the investigation to:
- the person that alleged the reprisal,
- the contractor or grantee concerned, and
- the head of the agency, or
Make a determination that the complaint:
- is frivolous,
- fails to allege a violation of the relevant prohibition, or
- has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant.
- Submit a report of the findings of the investigation to:
- The report or determination must be made within 180 of receipt of the complaint. The 180 days can be extended for up to an additional 180 days, if the complainant agrees to the extension of time.
- Any complaint must be brought to the IG within 3 years after the date on which the alleged reprisal took place.
There is also an anti-disclosure requirement. OIGs may not respond to any inquiry or disclose any information from or about any person alleging reprisal, except to the extent that such response is:
- made with the consent of the person alleging the reprisal,
- made in accordance with the provisions of section 552a of Title 5 (the Privacy Act) or as required by any other applicable Federal law, or
- necessary to conduct an investigation of the alleged reprisal.
5. Remedy and Enforcement
Within 30 days after receiving an IG's report, the head of the agency shall make a determination whether there is sufficient basis to conclude that the contractor, subcontractor, or grantee has subjected the complainant to a reprisal prohibited by the statute. The head of the agency must either:
- Issue an order denying relief, or
Take one or more of the following actions:
- Order the contractor or grantee to take affirmative action to abate the reprisal.
- Order the contractor or grantee to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
- Order the contractor or grantee to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.
- If the contractor, subcontractor, or grantee fails to comply with an order issued by the head of the agency, the head of the agency is required to file an action for enforcement of the order in the U.S. District Court in which the reprisal was found to have occurred.
- Any person adversely affected or aggrieved by an order issued by the head of an agency may file an appeal in the U.S. court of appeals for a circuit in which the reprisal is alleged to have occurred. This petition must be filed within 60 days after the issuance of the order.
- If the head of an agency issues an order denying relief or does not issue a timely order, the complainant can bring a de novo action at law or equity against the contractor, subcontractor, or grantee in the appropriate U.S. District Court. The employee has 2 years to file this action once the remedies are deemed to be exhausted.
6. Allowability of Legal Fees, Department of Defense & NASA (10 U.S.C. 2324), Civilian Agencies (41 U.S.C. 4310)
- The costs incurred by a contractor in connection with any criminal, civil, or administrative proceeding commenced by a contractor employee submitting a complaint under the reprisal provision are not allowable as a reimbursable cost under a covered contract if the head of the agency makes a finding of retaliation or when a consent agreement makes them unallowable.
7. Notification of Employees
- The head of each agency shall ensure that contractors, subcontractors, and grantees of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
8. FAR Changes
- The FAR, the Department of Defense Supplement to the FAR (DFAR), and the NASA Supplement to the FAR are required to be revised to implement the requirements made by the National Defense Authorization Act of 2013.
9. Effective Date
- These changes take effect on July 1, 2013.
- The civilian agency provisions found at 41 U.S.C. 4712 will expire in four years. This provision temporarily suspends the current civilian contractor employee whistleblower protection found at 41 U.S.C. 4705.