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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle C—Amendments to General Contracting Authorities, Procedures, and Limitations

P. L. 112-

House Conference Report 112-705

SEC. 827. ENHANCEMENT OF WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES.

(a) In General- Subsection (a) of section 2409 of title 10, United States Code, is amended--

(1) by inserting `(1)' before `An employee';

(2) in paragraph (1), as so designated--

(A) by inserting `or subcontractor' after `employee of a contractor';

(B) by striking `a Member of Congress' and all that follows through `the Department of Justice' and inserting `a person or body described in paragraph (2)'; and

(C) by striking `evidence of' and all that follows and inserting the following: `evidence of the following:

`(A) Gross mismanagement of a Department of Defense contract or grant, a gross waste of Department funds, an abuse of authority relating to a Department contract or grant, or a violation of law, rule, or regulation related to a Department contract (including the competition for or negotiation of a contract) or grant.

`(B) Gross mismanagement of a National Aeronautics and Space Administration contract or grant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract) or grant.

`(C) A substantial and specific danger to public health or safety.'; and

(3) by adding at the end the following new paragraphs:

`(2) The persons and bodies described in this paragraph are the persons and bodies as follows:

`(A) A Member of Congress or a representative of a committee of Congress.

`(B) An Inspector General.

`(C) The Government Accountability Office.

`(D) An employee of the Department of Defense or the National Aeronautics and Space Administration, as applicable, responsible for contract oversight or management.

`(E) An authorized official of the Department of Justice or other law enforcement agency.

`(F) A court or grand jury.

`(G) A management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

`(3) For the purposes of paragraph (1)--

`(A) an employee who initiates or provides evidence of contractor or subcontractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Department of Defense or National Aeronautics and Space Administration contract or grant shall be deemed to have made a disclosure covered by such paragraph; and

`(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of a Department or Administration official, unless the request takes the form of a nondiscretionary directive and is within the authority of the Department or Administration official making the request.'.

(b) Investigation of Complaints- Subsection (b) of such section is amended--

(1) in paragraph (1), by inserting `fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant,' after `is frivolous,';

(2) in paragraph (2)--

(A) in subparagraph (A), by inserting `, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant' after `is frivolous'; and

(B) in subparagraph (B), by inserting `, up to 180 days,' after `such additional period of time'; and

(3) by adding at the end the following new paragraphs:

`(3) The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is--

`(A) made with the consent of the person alleging the reprisal;

`(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or

`(C) necessary to conduct an investigation of the alleged reprisal.

`(4) A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.'.

(c) Remedy and Enforcement Authority- Subsection (c) of such section is amended--

(1) in paragraph (1)(B), by striking `the compensation (including back pay)' and inserting `compensatory damages (including back pay)';

(2) in paragraph (2), by adding at the end following new sentence: `An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.';

(3) in paragraph (4), by striking `and compensatory and exemplary damages.' and inserting `, compensatory and exemplary damages, and reasonable attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency.';

(4) in paragraph (5), by adding at the end the following new sentence: `Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court.'; and

(5) by adding at the end the following new paragraphs:

`(6) The legal burdens of proof specified in section 1221(e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.

`(7) The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.'.

(d) Notification of Employees- Such section is further amended--

(1) by redesignating subsections (d) and (e) as subsections (f) and (g), respectively; and

(2) by inserting after subsection (c) the following new subsection (d):

`(d) Notification of Employees- The Secretary of Defense and the Administrator of the National Aeronautics and Space Administration shall ensure that contractors and subcontractors of the Department of Defense and the National Aeronautics and Space Administration, as applicable, inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.'.

(e) Exceptions for Intelligence Community- Such section is further amended by inserting after subsection (d), as added by subsection (d)(2) of this section, the following new subsection (e):

`(e) Exceptions- (1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

`(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure--

`(A) relates to an activity of an element of the intelligence community; or

`(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.'.

(f) Abuse of Authority Defined- Subsection (g) of such section, as redesignated by subsection (d)(1) of this section, is further amended by adding at the end the following new paragraph:

`(6) The term `abuse of authority' means the following:

`(A) An arbitrary and capricious exercise of authority that is inconsistent with the mission of the Department of Defense or the successful performance of a Department contract or grant.

`(B) An arbitrary and capricious exercise of authority that is inconsistent with the mission of the National Aeronautics and Space Administration or the successful performance of an Administration contract or grant.'.

(g) Allowability of Legal Fees- Section 2324(k) of such title is amended--

(1) in paragraph (1), by striking `commenced by the United States or a State' and inserting `commenced by the United States, by a State, or by a contractor employee submitting a complaint under section 2409 of this title'; and

(2) in paragraph (2)(C), by striking `the imposition of a monetary penalty' and inserting `the imposition of a monetary penalty or an order to take corrective action under section 2409 of this title'.

(h) Construction- Nothing in this section, or the amendments made by this section, shall be construed to provide any rights to disclose classified information not otherwise provided by law.

(i) Effective Date-

(1) IN GENERAL- The amendments made by this section shall take effect on the date that is 180 days after the date of the enactment of this Act, and shall apply to--

(A) all contracts awarded on or after such date;

(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and

(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.

(2) REVISION OF SUPPLEMENTS TO THE FAR- Not later than 180 days after the date of the enactment of this Act, the Department of Defense Supplement to the Federal Acquisition Regulation and the National Aeronautics and Space Administration Supplement to the Federal Acquisition Regulation shall each be revised to implement the requirements arising under the amendments made by this section.

(3) INCLUSION OF CONTRACT CLAUSE IN CONTRACTS AWARDED BEFORE EFFECTIVE DATE- At the time of any major modification to a contract that was awarded before the date that is 180 days after the date of the enactment of this Act, the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section to the contract.

Enhancement of whistleblower protections for contractor employees (sec. 827)

The Senate amendment contained a provision (sec. 844) that would strengthen protections for contractor employees who blow the whistle on waste, fraud, and abuse on Department of Defense (DOD) contracts.

The House bill contained no similar provision.

The House recedes with an amendment that would: (1) revise the provision to ensure that it fully covers contractors of the National Aeronautics and Space Administration, as well as DOD; (2) clarify that whistleblower remedies may include only reasonable attorneys' fees; (3) modify the provision on arbitration agreements; and (4) exclude elements of the intelligence community from coverage.

The conferees agree that whistleblower complaints related to commercial aviation safety issues are uniquely within the expertise of the Federal Aviation Administration (FAA), and should be investigated through FAA whistleblower procedures set forth in section 106(t) of title 49, United States Code (section 341 of Public Law 112-95), to the maximum extent practicable. The conferees direct the DOD Inspector General to work with the FAA Office of Audit and Evaluation and the Occupational Safety and Health Administration to address commercial aviation safety issues. The conferees note that DOD remains responsible for the oversight and regulation of public use aircraft, as defined in section 40102(a)(41)(E) of title 49, United States Code.

Senate Report 112-173

Enhancement of whistleblower protections for contractor employees (sec. 844)

The committee recommends a provision that would amend section 2409 of title 10, United States Code, to significantly enhance whistleblower protections for contractor employees. The provision recommended by the committee would: (1) extend coverage to employees of subcontractors; (2) extend coverage to disclosures that are made to management officials of the contractor; (3) extend coverage to abuses of authority that undermine performance of a contract; (4) extend coverage to reprisal actions that are taken in concert with the contracting agency; (5) revise the standard of proof to match the standard already applicable in federal employee cases; (6) provide that whistleblower rights under the provision may not be waived by an arbitration agreement; (7) clarify that contractor legal fees are not allowable if the contractor is determined to have engaged in a reprisal; and (8) establish statutes of limitation for complaints and appeals.

The committee understands that over a 3-year period from 2009 through 2011, 163 complaints were filed under section 2409 and only 5 of these complaints were investigated by the Department of Defense Inspector General. In December 2011, a representative of the Inspector General testified that many of these complaints were outside the scope of the statute because the alleged wrongdoing was reported by subcontractor employees or was reported to company management. The provision recommended by the committee would correct these and other shortcomings in the existing law.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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