GAO Seeks Improvements to Contractor Whistleblower Pilot Program

A report issued by the Government Accountability Office recommends improvements to the Pilot Program for Enhancement of Contractor Employee Whistleblower Protections.

The National Defense Authorization Act for Fiscal Year 2013 (PL 112-239) added 41 USC 4712 to create a four-year pilot program to enhance existing whistleblower protections for contractor employees.

The statute prohibits contractors and subcontractors from discharging, demoting, or discriminating against an employee as a reprisal for disclosing information that the employee reasonably believes is evidence of gross mismanagement of a government contract, a gross waste of federal funds, an abuse of authority relating to a contract, or a violation of law, rule, or regulation related to a contract. The statute includes procedures for filing complaints and for investigations by agency inspectors general.

An interim rule in Federal Acquisition Circular 2005-70 and a final rule in FAC 2005-85 implemented the new requirements at FAR 3.908. The rules also added a new contract clause, FAR 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, for solicitations and contracts that exceed the simplified acquisition threshold.

The clause specifies that the contract and employees working on the contract are subject to the pilot program’s whistleblower rights and remedies, and requires contractors to inform employees in writing, in the predominant language of the workforce, of their whistleblower rights and protections.

GAO reviewed 14 agencies that received 1,560 whistleblower reprisal complaints between July 1, 2013, and December 31, 2015. Of these complaints, 127 were submitted by contractor, subcontractor, and grantee employees under the pilot program. Agency IGs investigated 44 of the 127 complaints but did not find that reprisal had occurred in any of them.

GAO then conducted an in-depth review of the implementation of the pilot program at the Departments of Commerce, Homeland Security, Interior, and State, and found various opportunities for improvement. Among GAO’s findings:

  • At two of the departments, the IGs either did not forward their investigation findings to the appropriate entities or did not forward findings in the necessary format because they were unclear about how to execute the requirement. As a result, the agency heads did not make a determination of whether reprisal occurred as required by the pilot program.
  • All four departments reported that they inserted FAR 52.203-17 into contracts exceeding the simplified acquisition threshold, but GAO found new contracts awarded during the pilot program’s timeframe that did not include the required clause.
  • Some contractors were unaware of their obligations under the pilot program, and officials from all four departments reported taking no additional action to communicate to contractors their responsibilities to inform employees of their rights under the pilot program.

The report included a recommendation to develop policies and processes to help ensure that FAR 52.203-17 is inserted in new contracts and major modifications as appropriate. For the text of the report, see GAO-17-227, Contractor Whistleblower Protections Pilot Program: Improvements Needed to Ensure Effective Implementation.

About William Van Huis

Bill Van Huis is a Senior Writer/Analyst for Wolters Kluwer Law & Business who tracks and analyzes new regulations impacting federal government contracting. He also follows court decisions involving bid protests and contract disputes. You can find his work in WK publications like Government Contract Reports and the FAR and DFARS Matrix Tools. Bill is a Certified Professional Contracts Manager, and he has a law degree from Southern Illinois University, where he graduated summa cum laude. Prior to joining WK, Bill worked both inside and outside state and local government in the areas of procurement and municipal finance. Bill also worked as a staff attorney for the Illinois Supreme Court.
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