[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2410-2411]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-28]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 203 and 252
RIN 0750-AG09
Defense Federal Acquisition Regulation Supplement; Whistleblower
Protections for Contractor Employees (DFARS Case 2008-D012)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Section 846 of
the National Defense Authorization Act for Fiscal Year 2008 and Section
842 of the National Defense Authorization Act for Fiscal Year 2009.
These laws address protections for contractor employees who disclose
information to Government officials with regard to waste or
mismanagement, danger to public health or safety, or violation of law
related to a DoD contract.
DATES: Effective date: January 15, 2009.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before March 16, 2009, to be
considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2008-D012,
using any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: dfars@osd.mil. Include DFARS Case 2008-D012 in the
subject line of the message.
[cir] Fax: 703-602-7887.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Angie
Sawyer, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon,
Washington, DC 20301-3062.
[cir] Hand Delivery/Courier: Defense Acquisition Regulations
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Angie Sawyer, 703-602-8484.
SUPPLEMENTARY INFORMATION:
A. Background
10 U.S.C. 2409 and 41 U.S.C. 251 et seq. prohibit Government
contractors from discharging, demoting, or otherwise discriminating
against employees as a reprisal for disclosing to Government officials
information relating to a substantial violation of law related to a
contract. 10 U.S.C. 2409 and 41 U.S.C. 251 et seq. are implemented in
Subpart 3.9 of the Federal Acquisition Regulation. Section 846 of the
National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-
181) and Section 842 of the National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417) amended 10 U.S.C. 2409 to establish
protections for DoD contractor employees that differ from those
specified in 41 U.S.C. 251 et seq. and the Federal Acquisition
Regulation. Therefore, this interim rule adds a new DFARS subpart to
address DoD requirements related to whistleblower protections. The
differences between the FAR and the new DFARS policy include: Expansion
of the types of information to which the protections apply; expansion
of the categories of Government officials to whom information may be
disclosed without reprisal; establishment of time periods within which
the Inspector General and the agency head must take action with regard
to a complaint filed by a contractor employee; establishment of a de
novo right of action in federal district court for contractor employees
who have exhausted their administrative remedies under 10 U.S.C. 2409;
and addition of a contract clause requiring contractors to inform
employees in writing of their whistleblower rights and protections.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule
contains a new requirement for contractors to inform employees in
writing of their whistleblower rights and protections, compliance with
this requirement is not expected to have a significant cost or
administrative impact on contractors. Therefore, DoD has not performed
an initial regulatory flexibility analysis. DoD invites comments from
small businesses and other interested parties. DoD also will consider
comments from small entities concerning the affected DFARS subparts in
accordance with 5 U.S.C. 610. Such comments should be submitted
separately and should cite DFARS Case 2008-D012.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
This interim rule implements Section 846 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) and Section
842 of the National Defense Authorization Act for Fiscal Year 2009
(Pub. L. 110-417). These laws address whistleblower protections for DoD
contractor employees and require DoD to ensure that DoD contractors
inform their employees in writing of whistleblower rights and
protections. Comments received in response to this interim rule will be
considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 203 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR parts 203 and 252 are amended as follows:
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1. The authority citation for 48 CFR Parts 203 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
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2. Subpart 203.9 is added to read as follows:
Subpart 203.9--Whistleblower Protections for Contractor Employees
Sec.
203.900 Scope of subpart.
203.903 Policy.
203.904 Procedures for filing complaints.
[[Page 2411]]
203.905 Procedures for investigating complaints.
203.906 Remedies.
203.970 Contract clause.
Subpart 203.9--Whistleblower Protections for Contractor Employees
203.900 Scope of subpart.
This subpart implements 10 U.S.C. 2409 as amended by Section 846 of
the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181) and Section 842 of the National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417).
203.903 Policy.
The following policy applies to DoD instead of the policy at FAR
3.903:
(1) 10 U.S.C. 2409 prohibits contractors from discharging,
demoting, or otherwise discriminating against an employee as a reprisal
for disclosing, to any of the following entities, information that the
employee reasonably believes is evidence of gross mismanagement of a
DoD contract, a gross waste of DoD funds, a substantial and specific
danger to public health or safety, or a violation of law related to a
DoD contract (including the competition for or negotiation of a
contract):
(i) A Member of Congress.
(ii) A representative of a committee of Congress.
(iii) An Inspector General that receives funding from or has
oversight over contracts awarded for or on behalf of DoD.
(iv) The Government Accountability Office.
(v) A DoD employee responsible for contract oversight or
management.
(vi) An authorized official of an agency or the Department of
Justice.
(2) A contracting officer who receives a complaint of reprisal of
the type described in paragraph (1) of this section shall forward it to
legal counsel or to the appropriate party in accordance with agency
procedures.
203.904 Procedures for filing complaints.
In addition to the procedures at FAR 3.904, any contractor employee
who believes that he or she has been discharged, demoted, or otherwise
discriminated against contrary to the policy in 203.903 may file a
complaint with the DoD Inspector General.
203.905 Procedures for investigating complaints.
The following procedures apply to DoD instead of the procedures at
FAR 3.905:
(1) The DoD Inspector General will make a determination as to
whether a complaint is frivolous or merits further investigation.
(2) If the DoD Inspector General determines that a complaint merits
further investigation, the DoD Inspector General will--
(i) Notify the complainant, the contractor alleged to have
committed the violation, and the head of the agency;
(ii) Conduct an investigation; and
(iii) Provide a written report of findings to the complainant, the
contractor alleged to have committed the violation, and the head of the
agency.
(3) The DoD Inspector General--
(i) Will determine that the complaint is frivolous or will submit
the report addressed in paragraph (2) of this section within 180 days
after receiving the complaint; and
(ii) If unable to submit a report within 180 days, will submit the
report within the additional time period to which the person submitting
the complaint agrees.
203.906 Remedies.
(1) Not later than 30 days after receiving a DoD Inspector General
report in accordance with 203.905, the head of the agency--
(i) Shall determine whether sufficient basis exists to conclude
that the contractor has subjected one of its employees to a reprisal as
prohibited by 203.903; and
(ii) Shall issue an order denying relief or shall take one or more
of the actions specified in FAR 3.906(a).
(2) If the head of the agency issues an order denying relief or has
not issued an order within 210 days after the submission of the
complaint or within 30 days after the expiration of an extension of
time granted in accordance with 203.905(3)(ii), and there is no showing
that such delay is due to the bad faith of the complainant--
(i) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint; and
(ii) The complainant may bring a de novo action at law or equity
against the contractor to seek compensatory damages and other relief
available under 10 U.S.C. 2409 in the appropriate district court of the
United States, which shall have jurisdiction over such an action
without regard to the amount in controversy. Such an action shall, at
the request of either party to the action, be tried by the court with a
jury.
(3) An Inspector General determination and an agency head order
denying relief under paragraph (2) of this section shall be admissible
in evidence in any de novo action at law or equity brought pursuant to
10 U.S.C. 2409(c).
203.970 Contract clause.
Use the clause at 252.203-7002, Requirement to Inform Employees of
Whistleblower Rights, in all solicitations and contracts.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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3. Section 252.203-7002 is added to read as follows:
252.203-7002 Requirement to Inform Employees of Whistleblower Rights.
As prescribed in 203.970, use the following clause:
REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (JAN 2009)
The Contractor shall inform its employees in writing of employee
whistleblower rights and protections under 10 U.S.C. 2409, as
described in Subpart 203.9 of the Defense Federal Acquisition
Regulation Supplement.
(End of clause)
[FR Doc. E9-672 Filed 1-14-09; 8:45 am]
BILLING CODE 5001-08-P