a. This 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.
b. Definitions.
“Board” means the Recovery Accountability and Transparency Board established by Section 1521 of ARRA.
"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 a negotiation of a contract) awarded or issued relating to covered funds.
"Covered funds" means funds appropriated by or otherwise made available by the ARRA.
“Inspector General” means the Department of Transportation Inspector General appointed under the Inspector General Act of 1978, as amended.
“Non-Federal employer,” as used in this section, means any employer that receives ARRA 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 Aviation Administration Acquisition Management System.
c. General.
(1) 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:
(a) The Board.
(b) An Inspector General.
(c) The Comptroller General.
(d) A member of Congress.
(e) A State or Federal regulatory or law enforcement agency.
(f) 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.
(g) A court or grand jury.
(h) The head of a Federal agency, or its representatives.
(2) A contracting officer who receives a complaint of reprisal of the type described in paragraph (1) must forward it to legal counsel or to the appropriate party in accordance with agency procedures.
d. Procedures for filing complaints.
(1) An employee who believes that he or she has been subject to reprisal prohibited by ARRA Section 1553 should submit a complaint regarding the reprisal to the Inspector General of the agency that awarded the contract.
(2) The complaint must be signed and must contain—
(a) The name of the contractor;
(b) The contract number, if known; if not, a description reasonably sufficient to identify the contract(s) involved;
(c) The covered information giving rise to the disclosure;
(d) The nature of the disclosure giving rise to the discriminatory act; and
(e) The specific nature and date of the reprisal.
e. Procedures for investigating complaints.
(1) Except as provided under T3.17.A.6.d.(1), unless the Inspector General determines that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, the Inspector General will investigate the complaint, and upon completion of the investigation submit a report of the findings to—
(a) The employee and any person acting on the employee’s behalf;
(b) The employee’s employer;
(c) The head of the appropriate agency: and,
(d) The Board.
(2) Except as provided at Section T3.17.A.6.e.(1)(c), the Inspector General will, not later than 180 days after receiving a complaint under T3.17.A.6.e.(1):
(a) Make a determination that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has been previously invoked to resolve such complaint; or
(b) Submit a report under T3.17.A.6.e.
(c) If the Inspector General is unable to complete an investigation under this section in time to submit a report within 180 days after receiving the complaint—
(i) If the employee submitting the complaint agrees to the extension of time, the Inspector General will submit a report under T3.17.A.6.e. within such additional period of time as must be agreed upon between the Inspector General and the employee submitting the complaint.
(ii) The Inspector General should extend the period for not more than 180 days without obtaining the agreement of the person submitting the complaint to such extension, provided that the Inspector General provides a written explanation for the decision which will be provided to both the employee submitting the complaint and the non-Federal employer.
(d)(i) The Inspector General should decide not to conduct or continue an investigation upon providing to the employee submitting the complaint and the employee's employer a written explanation.
(ii) Upon receipt of the Inspector General's decision not to conduct or continue an investigation, the employee must immediately assume the right to a civil remedy under ARRA Section 1553 (c)(3).
f. Access to Investigative File of Inspector General.
(1) The non-Federal employee alleging reprisal under this section must 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 must 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.
(2) In the event the employee alleging reprisal brings a civil action under T3.17.A.6.g., the person alleging the reprisal and the non-Federal employer must have access to the investigative file of the Inspector General in accordance with the Privacy Act.
(3) The inspection should exclude from disclosures made under T3.17.A.1.f.—
(a) Information protected from disclosure by a provision of law; and
(b) 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.
(4) An Inspector General investigating an alleged reprisal under this section should not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the 5 U.S.C. 552a.
g. Remedies and enforcement authority.
(1) Burden of Proof.
(a) Disclosure as contributing factor in reprisal.
(i) An employee alleging a reprisal under this section must be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in T3.17.A.6.c. was a contributing factor in the reprisal.
(ii) A disclosure should 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. (a) The Administrator should not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under T3.17.A.6.c. 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 under T3.17.A.6.d., the Administrator concerned must determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by T3.17.A.6.g.(1) and must either issue an order denying relief in whole or in part or must take one or more of the following actions:
(i) Order the employer to take affirmative action to abate the reprisal.
(ii) 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.
(iii) 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)(i) The complainant must be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant should 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 must have jurisdiction over such an action without regard to the amount in controversy if
(A) The Administrator—
(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 under section 3.17.A.6.c, or in the case of an extension of time section 3.17.A.6.c, within 30 days after the expiration of the extension of time; or
(c) Decides under 3.17.A.6.c(i) not to investigate or to discontinue an investigation; and
(B) There is no showing that such delay or decision is due to the bad faith of the complainant.
(ii) Such an action must, 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, the Administrator must request the Department of Justice to file an action for enforcement of such order in the district court for a district in which the reprisal was found to have occurred. In any action brought under this section, the court should grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney’s fees and costs.
(e) Any person adversely affected or aggrieved by an order issued under this section should 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 should be filed more than 60 days after issuance of the order by the Administrator.
