Government Contracts FAR Proposed Rule Seeks to Enhance Whistleblower Protections
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Wednesday, January 23, 2019

FAR Proposed Rule Seeks to Enhance Whistleblower Protections

By Government Contracts Editorial Staff

A proposed rule would amend the Federal Acquisition Regulation to enhance whistleblower protection for contractor employees. The rule would make permanent the protection for disclosure of certain information. It also would clarify that the prohibition on reimbursement for certain legal costs applies to subcontractors, as well as contractors. The rule implements PL 114-261, which amended 41 USC 4712 to make permanent the whistleblower pilot program. In particular, the rule would amend FAR 3.903, which sets forth the FAR policy, to permanently provide that contractors and subcontractors are prohibited from discharging, demoting, or otherwise discriminating against an employee in reprisal for disclosing to certain entities information that the employee reasonably believes is evidence of:

  • gross mismanagement of a federal contract;
  • gross waste of federal funds;
  • an abuse of authority relating to a federal contract;
  • a substantial and specific danger to public health or safety;
  • or a violation of law, rule, or regulation related to a federal contract.

A reprisal is prohibited even when it is undertaken at the request of an executive branch official, unless the request is a nondiscretionary directive within the authority of the executive branch official making the request. PL 114-261 also clarified that the cost principles at 10 USC 2324(k) and 41 USC 4304 and 4310 that prohibit reimbursement for certain legal costs apply to costs incurred by a contractor, subcontractor, or personal services contractor.

Pilot Program. The four-year pilot program was enacted by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (PL 112-239), with an effective period of four years from the date of enactment (i.e., January 2, 2013, through January 1, 2017). Section 1091(e) of the NDAA for FY 2014 (PL 113-66) modified the effective period of the pilot program to be four years from the date that is 180 days after the date of enactment (i.e., July 1, 2013, through June 30, 2017). However, the program did not expire, because it became permanent on December 14, 2016, before either of those expiration dates. This program does not apply to DoD, NASA, or the Coast Guard, because these agencies are covered by 10 USC 2409, as amended by section 827 of the NDAA for FY 2013.

New Regulations. The rule proposes new regulations at FAR 3.904-1, regarding procedures for filing complaints, FAR 3.904-2, regarding procedures for investigating complaints, FAR 3.905-1 to set forth remedies, and FAR 3.905-2 to provide procedures for enforcement of orders. A full listing of the regulations impacted by this rule appears in the table below. Comments on this proposed rule, identified by FAR Case 2017-005, are due by February 25, 2019. For the text of the rule, see ¶70,006.335.

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