Subpart 3.9—Whistleblower
Protections for Contractor Employees
(a)
Sections 3.901
through 3.906
of this subpart implement 10 U.S.C. 2409
and 41 U.S.C. 265, as amended by Sections
6005 and 6006 of the Federal Acquisition Streamlining Act of 1994 (Pub. L.
103-355).
(b)
Section 3.907
of this subpart implements Section 1553 of the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5), and applies to all contracts funded
in whole or in part by that Act.
“Authorized
official of an agency” means an officer or employee responsible for
contracting, program management, audit, inspection, investigation, or
enforcement of any law or regulation relating to Government procurement or the
subject matter of the contract.
“Authorized
official of the Department of Justice” means any person responsible for the
investigation, enforcement, or prosecution of any law or regulation.
“Inspector
General” means an Inspector General appointed under the Inspector General Act
of 1978, as amended. In the Department of Defense that is the DoD Inspector General. In the case of an executive agency
that does not have an Inspector General, the duties shall be performed by an
official designated by the head of the executive agency.
Government
contractors shall not discharge, demote or otherwise discriminate against an
employee as a reprisal for disclosing information to a Member of Congress, or
an authorized official of an agency or of the Department of Justice, relating
to a substantial violation of law related to a contract (including the competition
for or negotiation of a contract).
3.904 Procedures for filing complaints.
(a)
Any employee of a contractor who believes that he or she has been discharged,
demoted, or otherwise discriminated against contrary to the policy in 3.903
may file a complaint with the Inspector General of the agency that awarded the
contract.
(b)
The complaint shall be signed and shall contain—
(1)
The name of the contractor;
(2)
The contract number, if known; if not, a description reasonably sufficient to
identify the contract(s) involved;
(3)
The substantial violation of law giving rise to the disclosure;
(4)
The nature of the disclosure giving rise to the discriminatory act; and
(5)
The specific nature and date of the reprisal.
3.905 Procedures for investigating complaints.
(a)
Upon receipt of a complaint, the Inspector General shall conduct an initial
inquiry. If the Inspector General determines that the complaint is frivolous or
for other reasons does not merit further investigation, the Inspector General
shall advise the complainant that no further action on the complaint will be
taken.
(b)
If the Inspector General determines that the complaint merits further
investigation, the Inspector General shall notify the complainant, contractor,
and head of the contracting activity. The Inspector General shall conduct an
investigation and provide a written report of findings to the head of the
agency or designee.
(c)
Upon completion of the investigation, the head of the agency or designee shall
ensure that the Inspector General provides the report of findings to—
(1)
The complainant and any person acting on the complainant’s behalf;
(2)
The contractor alleged to have committed the violation; and
(3)
The head of the contracting activity.
(d)
The complainant and contractor shall be afforded the opportunity to submit a
written response to the report of findings within 30 days to the head of
the agency or designee. Extensions of time to file a written response may be
granted by the head of the agency or designee.
(e)
At any time, the head of the agency or designee may request additional
investigative work be done on the complaint.
(a)
If the head of the agency or designee determines that a contractor has
subjected one of its employees to a reprisal for providing information to a
Member of Congress, or an authorized official of an agency or of the Department
of Justice, the head of the agency or designee may take one or more of the
following actions:
(1)
Order the contractor to take affirmative action to abate the reprisal.
(2)
Order the contractor to reinstate the person to the position that the person
held before the reprisal, together with the compensation (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.
(3)
Order the contractor 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.
(b)
Whenever a contractor fails to comply with an order, the head of the agency or
designee shall request the Department of Justice to file an action for
enforcement of such order in the United States district court for a district in
which the reprisal was found to have occurred. In any action brought under this
section, the court may grant appropriate relief, including injunctive relief
and compensatory and exemplary damages.
(c)
Any person adversely affected or aggrieved by an order issued under this
section may obtain review of the order’s conformance with the law, and this
subpart, in the United States Court of Appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No petition seeking such
review may be filed more than 60 days after issuance of the order by the
head of the agency or designee. Review shall conform to Chapter 7 of
Title 5, United States Code.
3.907 Whistleblower Protections Under the
American Recovery and Reinvestment Act of 2009 (the Recovery Act).
“Board”
means the Recovery Accountability and Transparency Board established by Section
1521 of the Recovery Act.
“Covered
funds” means funds appropriated by or otherwise made available by the Recovery
Act.
“Covered
information” means information that the employee reasonably believes is
evidence of gross mismanagement of the contract or subcontract related to
covered funds, gross waste of covered funds, a substantial and specific danger
to public health or safety related to the implementation or use of covered
funds, an abuse of authority related to the implementation or use of covered
funds, or a violation of law, rule, or regulation related to an agency contract
(including the competition for or negotiation of a contract) awarded or issued
relating to covered funds.
“Inspector
General” means an Inspector General appointed under the Inspector General Act
of 1978. In the Department of Defense that is the DoD
Inspector General. In the case of an executive agency that does not have an
Inspector General, the duties shall be performed by an official designated by
the head of the executive agency.
“Non-Federal
employer,” as used in this section, means any employer that receives Recovery
Act funds, including a contractor, subcontractor, or other recipient of funds
pursuant to a contract or other agreement awarded and administered in
accordance with the Federal Acquisition Regulation.
Non-Federal
employers are prohibited from discharging, demoting, or otherwise discriminating
against an employee as a reprisal for disclosing covered information to any of
the following entities or their representatives:
(5)
A State or Federal regulatory or law enforcement agency.
(6)
A person with supervisory authority over the employee or such other person
working for the employer who has the authority to investigate, discover, or
terminate misconduct.
(8)
The head of a Federal agency.
3.907-3 Procedures for filing complaints.
(a)
An employee who believes that he or she has been subjected to reprisal
prohibited by the Recovery Act, Section 1553 as set forth in 3.907-2,
may submit a complaint regarding the reprisal to the Inspector General of the
agency that awarded the contract.
(b)
The complaint shall be signed and shall contain—
(1)
The name of the contractor;
(2)
The contract number, if known; if not, a description reasonably sufficient to
identify the contract(s) involved;
(3)
The covered information giving rise to the disclosure;
(4)
The nature of the disclosure giving rise to the discriminatory act; and
(5)
The specific nature and date of the reprisal.
(c)
A contracting officer who receives a complaint of reprisal of the type
described in 3.907-2
shall forward it to the Office of the Inspector General, agency legal counsel
or to the appropriate official in accordance with agency procedures.
3.907-4 Procedures for investigating complaints.
Investigation
of complaints will be in accordance with section 1553 of the Recovery Act.
3.907-5 Access to investigative file of Inspector
General.
(a)
The employee alleging reprisal under this section shall have access to the
investigation file of the Inspector General, in accordance with the Privacy
Act, 5 U.S.C. §552a. The investigation of
the Inspector General shall be deemed closed for the purposes of disclosure
under such section when an employee files an appeal to the agency head or a
court of competent jurisdiction.
(b)
In the event the employee alleging reprisal brings a civil action under section
1553(c)(3) of the Recovery Act, the employee alleging the reprisal and the
non-Federal employer shall have access to the investigative file of the
Inspector General in accordance with the Privacy Act.
(c)
The Inspector General may exclude from disclosures made under 3.907-5(a)
or (b)—
(1)
Information protected from disclosure by a provision of law; and
(2)
Any additional information the Inspector General determines disclosure of which
would impede a continuing investigation, provided that such information is
disclosed once such disclosure would no longer impede such investigation,
unless the Inspector General determines that the disclosure of law enforcement
techniques, procedures, or information could reasonably be expected to risk
circumvention of the law or disclose the identity of a confidential source.
(d)
An Inspector General investigating an alleged reprisal under this section may
not respond to any inquiry or disclose any information from or about any person
alleging such reprisal, except in accordance with 5 U.S.C. 552a or as required by any other
applicable Federal law.
3.907-6 Remedies and enforcement authority.
(1)
Disclosure as contributing factor in reprisal.
(i) An employee alleging a reprisal under this section shall
be deemed to have affirmatively established the occurrence of the reprisal if
the employee demonstrates that a disclosure described in section 3.907-2
was a contributing factor in the reprisal.
(ii)
A disclosure may be demonstrated as a contributing factor in a reprisal for
purposes of this paragraph by circumstantial evidence, including—
(A)
Evidence that the official undertaking the reprisal knew of the disclosure; or
(B)
Evidence that the reprisal occurred within a period of time after the
disclosure such that a reasonable person could conclude that the disclosure was
a contributing factor in the reprisal.
(2)
Opportunity for rebuttal. The head of an agency may not find the
occurrence of a reprisal with respect to a reprisal that is affirmatively
established under section 3.907-6(a)(1)
if the non-Federal employer demonstrates by clear and convincing evidence that
the non-Federal employer would have taken the action constituting the reprisal
in the absence of the disclosure.
(b)
No later than 30 days after receiving an Inspector General report in accordance
with section 1553 of the Recovery Act, the head of the agency concerned shall
determine whether there is sufficient basis to conclude that the non-Federal
employer has subjected the complainant to a reprisal prohibited by subsection 3.907-2
and shall either issue an order denying relief in whole or in part or shall
take one or more of the following actions:
(1)
Order the employer to take affirmative action to abate the reprisal.
(2)
Order the employer to reinstate the person to the position that the person held
before the reprisal, together with the compensation (including back pay),
compensatory damages, 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.
(3)
Order the employer 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.
(c)(1)
The complainant shall be deemed to have exhausted all administrative remedies
with respect to the complaint, and the complainant may bring a de novo action
at law or equity against the employer to seek compensatory damages and other
relief available under this section in the appropriate district court of United
States, which shall have jurisdiction over such an action without regard to the
amount in controversy if—
(A)
Issues an order denying relief in whole or in part under paragraph (a) of this
section;
(B)
Has not issued an order within 210 days after the submission of a complaint in
accordance with section 1553 of the Recovery Act, or in the case of an
extension of time in accordance with section 1553 of the Recovery Act, within
30 days after the expiration of the extension of time; or
(C)
Decides in accordance with section 1553 of the Recovery Act not to investigate
or to discontinue an investigation; and
(ii)
There is no showing that such delay or decision is due to the bad faith of the
complainant.
(2)
Such an action shall, at the request of either party to the action, be tried by
the court with a jury.
(d)
Whenever an employer fails to comply with an order issued under this section,
the head of the agency shall request the Department of Justice to file an
action for enforcement of such order in the United States district court for a
district in which the reprisal was found to have occurred. In any action brought
under this section, the court may grant appropriate relief, including
injunctive relief, compensatory and exemplary damages, and attorneys fees and
costs.
(e)
Any person adversely affected or aggrieved by an order issued under paragraph
(b) of this subsection may obtain review of the order’s conformance with the
law, and this section, in the United States Court of Appeals for a circuit in
which the reprisal is alleged in the order to have occurred. No petition
seeking such review may be filed more than 60 days after issuance of the order
by the head of the agency.
Use
the clause at 52.203-15,
Whistleblower Protections Under the American Recovery and Reinvestment Act of
2009 in all solicitations and contracts funded in whole or in part with
Recovery Act funds.