OSC Proposal Would Extend Whistleblower Protections to Contractors

The Office of Special Counsel has proposed an expansion of its regulations to add federal contractors, subcontractors, and grantees to the list those who can blow the whistle on federal government wrongdoing and expect protection after doing so. The regulatory changes to 5 CFR 1800 were proposed in a January 22 Federal Register notice.

Congress passed the Civil Service Reform Act and the Whistleblower Protection Act (5 USC 1201, et seq.) to encourage federal employees to report government fraud, waste, and abuse, and to provide protections to those who blow the whistle on government wrongdoing. Under Title 5, Sec. 1213, employees, former employees, or applicants for federal jobs may disclose to the OSC information they reasonably believe to show a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

The impetus for the proposed rule arises from changes in the federal workforce and the government’s increasing reliance on contractors. As a result, the OSC said, contractors are similarly situated to observe or experience the same sort of wrongdoing as federal employees. “According contractors a safe channel to report wrongdoing within the government advances Congress’s purpose in enacting the CSRA and WPA,” the OSC stated. “Moreover, Congress recently extended protection against retaliation to government contractors who make whistleblower disclosures, thereby signaling its encouragement of such disclosures. OSC deems such protection against retaliation a precondition to asking insiders to risk their careers to report wrongdoing.”

The National Defense Authorization Act of 2013 established a pilot program to enhance contractor protection from reprisal for a disclosure of information similar that covered by the WPA (see 41 USC 4712): evidence of 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 or grant. The OSC said that as a law enforcement agency and pursuant to its authority under 5 USC 1213, it may receive disclosures from contractor employees who are covered by the NDAA, provided the disclosure concerns wrongdoing in the federal government as described in the NDAA.

The proposed rule would permit the OSC to receive disclosures from current and former contractors who allege retaliation for making a protected disclosure under 41 USC 4712, provided they work or worked on behalf of a government agency in which federal employees are eligible to file disclosures. Thus, the OSC’s review will be limited to disclosures by contractors who are both covered by the NDAA and working at agencies over which OSC already has jurisdiction pursuant to 5 USC 1213.

Written or electronic comments on the proposed rule must be received by March 23, 2015. Instructions for submitting comments are provided in the OSC’s notice.

About George Gullo

George Gullo is an attorney editor in the Government Contracts group at Wolters Kluwer Law and Business. George serves as the principal editor of Cost Accounting Standards Guide and supports all of the group’s print and electronic publications, as well as legal research tools, including the Government Contracts Reporter, Board of Contract Appeals Decisions, and the FAR and DFARS Matrix Smart Charts. With more than 20 years experience in the legal publishing industry, including over 10 years in the government contracts area, George also has a background in legal and business transactions. He is a graduate of DePaul University College of Law and a licensed Illinois attorney.
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