Problem of the Day

[Don Mansfield]

FAR 3.908-9 states:

Quote

“The contracting officer shall insert the clause at 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, in all solicitations and contracts that exceed the simplified acquisition threshold.”

Assume the following:

• It is September 13, 2023
• You are a contracting officer for a civilian agency other than NASA or the Coast Guard
• You are selecting clauses to be included in a solicitation for a noncommercial contract expected to exceed the simplified acquisition threshold

[C Culham]

Oh Don...The systems will handle it so "Whatever"  

[Don Mansfield]

Only three votes? Oh, well.

The reason I posted was that I thought the clause prescription was remarkably incomplete. The scope of the subpart at FAR 3.900 reads:

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This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 4701, which is applicable only to DoD, NASA, and the Coast Guard.

(a) 41 U.S.C. 4705 (in effect before July 1, 2013 and on or after January 2, 2017). Sections 3.901 through 3.906 of this subpart implement 41 U.S.C. 4705, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph (c) of this section. These sections are not in effect for the duration of the pilot program described in paragraph (b) of this section.

(b) 41 U.S.C. 4712 (in effect on July 1, 2013 through January 1, 2017). Section 3.908 of this subpart implements the pilot program, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph (c) of this section.

 

The clause prescription merely says to insert the clause in solicitations and contracts over the SAT. Nothing about the clause applying to civilian agencies other than NASA or the Coast Guard. Nothing about the clause not applying after January 1, 2017. So much for the guidance for writing clause prescriptions in the FAR Drafting Guide:

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Include in the prescription all conditions, requirements, and instructions for using the provision or clause and any alternates.

 

[Don Mansfield]

BTW, yes I know that Congress made the Pilot Program permanent. Yes, I know that some civilian agencies issued class deviations. Yes, I know there is a FAR case pending. 

None of those things detract from my point.