80 FR 75911 - Federal Acquisition Regulation; Pilot Program for Enhancement of Contractor Employee Whistleblower Protections
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 80, Issue 233 (December 4, 2015)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 80, Issue 233 (December 4, 2015)
| Page Range | 75911-75913 | |
| FR Document | 2015-30459 |
[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)] [Rules and Regulations] [Pages 75911-75913] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-30459] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 3 and 52 [FAC 2005-85; FAR Case 2013-015; Item IV; Docket 2013-0015, Sequence 1] RIN 9000-AM56 Federal Acquisition Regulation; Pilot Program for Enhancement of Contractor Employee Whistleblower Protections AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA have adopted as final, with changes, an interim rule amending the Federal Acquisition Regulation (FAR) to implement a statutory pilot program enhancing whistleblower protections for contractor employees. DATES: Effective: December 4, 2015. FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2013- 015. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA published an interim rule in the Federal Register at 78 FR 60169 on September 30, 2013, to implement a four-year pilot program to enhance the existing whistleblower protections for contractor employees at FAR subpart 3.9. The pilot program is mandated by section 828, entitled ``Pilot Program for Enhancement of Contractor Employee Whistleblower Protections,'' of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239, enacted January 2, 2013). Paragraph (a) of section 828 adds to title 41 a new section 4712 that contains the elements of the pilot program, which took effect by operation of law on July 1, 2013, and is effective through January 1, 2017. Paragraph (c) of section 828 suspends the pre-existing whistleblower protections in 41 U.S.C. 4705 ``(w)hile section 4712 of this title is in effect . . .'' (i.e., from July 1, 2013 through January 1, 2017). Accordingly, [[Page 75912]] the interim rule created a new FAR section 3.908 to implement section 4712. The rule leaves intact FAR sections 3.901 through 3.906, which implement the pre-existing whistleblower protections in 41 U.S.C. 4705, but suspends their applicability during the period when the pilot is in effect. Absent Congressional action, these authorities will automatically be reinstated when the pilot authority sunsets. The interim rule also clarified that the pilot authority applies to title 41 agencies and is inapplicable to DoD, NASA, and the Coast Guard. The latter three agencies are covered by 10 U.S.C. 2409, which was amended by section 827 of the NDAA to impose permanent requirements very similar to the temporary requirements of the pilot program established in title 41. Section 4712 and its implementing regulations (1) protect contractor or subcontractor employees against reprisal for activities protected by FAR 3.908-3(a) and (2) do not change any right or remedy otherwise available to the employee. FAR 3.907, which addresses whistleblower protections under the American Recovery and Reinvestment Act of 2009, was unaffected by this rule. One respondent submitted comments on the interim rule. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) reviewed the response received in development of the final rule. Only one response was received. A discussion of the response is provided as follows: Comment: The respondent stated that FAR 3.908 ``violates a core tenet of any legitimate law by failing to include any due process rights for the accused,'' but notes also that the statute contains no due process rights for the accused. The respondent urges revision of the interim rule to reactivate current FAR 3.905 during the pilot program. Response: The interim rule provides at FAR 3.908-5 that investigation of complaints by the Inspector General will be in accordance with 41 U.S.C. 4712(b). In general, FAR 3.905 is based on 41 U.S.C. 4705. Paragraph (c) of section 828 of the National Defense Authorization Act for Fiscal Year 2013, upon which this rule is based, suspends the pre-existing whistleblower protections in 41 U.S.C. 4705 ``(w)hile section 4712 of this title is in effect . . .'' However, the additional due process rights in current FAR 3.905(c), (d) and (e) were not based on 41 U.S.C. 4705, and have been incorporated in the final rule at 3.908-5(b), (c), and (d). III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: The interim rule, upon which the final rule is issued with change, was initiated to amend the FAR to implement a four-year pilot program to enhance the existing whistleblower protections for contractor employees at FAR subpart 3.9. The pilot program is mandated by section 828, entitled ``Pilot Program for Enhancement of Contractor Employee Whistleblower Protections,'' of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239, enacted January 2, 2013). The law establishes a pilot program for the period ending on January 1, 2017. Based on a reading of 41 U.S.C. 3101(c) and sections 827 and 828 of the NDAA for FY 2013, the pilot program will apply to all Federal agencies except DoD, NASA, and the Coast Guard. Except for contracts funded under the American Recovery and Reinvestment Act of 2009 (see 3.907), the current protections for contractor whistleblowers are established in law at 41 U.S.C. 4705; paragraph (c) of section 828 suspends 41 U.S.C. 4705 ``(w)hile section 4712 of this title is in effect . . .'' Paragraph (a) of section 828 adds the new section 4712 to title 41 that contains the elements of the pilot program and is effective until January 1, 2017. With the exception of DoD, NASA, and the Coast Guard, as well as any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401(a)(4)), the pilot program applies to the employees of Government contractors and their subcontractors. DoD, GSA, and NASA do not expect the pilot program, which applies to the majority of entities doing business with the Government regardless of business size, to have a significant economic impact specific to small entities. The following information is provided as a means of estimating the overall numbers of entities to which the rule will apply. Based on Federal Procurement Data System reporting data, in Fiscal Year 2012, a Government-wide total of 273,970 new awards that exceeded the simplified acquisition threshold were made to small businesses and other than small businesses by agencies other than DoD, NASA, and the Coast Guard. Of that total, 95,436 new award actions were made to small business entities. The remaining 178,534 award actions were made to other than small businesses. A new contract clause is provided for the pilot program, in accordance with paragraph (d) of section 4712. The clause informs offerors that employees working on any contract awarded are subject to the whistleblower rights and remedies of the pilot program and requires the contractor (and its subcontractors), regardless of business size, to inform their employees in writing of employee whistleblower rights and protections under 41 U.S.C. 4712. There is no requirement for small entities to submit any information under this clause. The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no practical alternatives that will accomplish the objectives of the rule. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. V. Paperwork Reduction Act The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35). List of Subject in 48 CFR Parts 3 and 52 Government procurement. Dated: November 20, 2015. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Interim Rule Adopted as Final With Changes Accordingly, the interim rule amending 48 CFR parts 3 and 52, which was published in the Federal Register at 78 FR 60169 on September 30, 2013, is adopted as final with the following changes: PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 0 1. The authority citation for 48 CFR part 3 continues to read as follows: [[Page 75913]] Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. 0 2. Revise section 3.908-5 to read as follows. 3.908-5 Procedures for investigating complaints. (a) Investigation of complaints will be in accordance with 41 U.S.C. 4712(b). (b) 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. (c) 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. (d) At any time, the head of the agency or designee may request additional investigative work be done on the complaint. 0 3. Revise the section heading for section to read as follows: 3.908-6 Remedies. * * * * * [FR Doc. 2015-30459 Filed 12-3-15; 8:45 am] BILLING CODE 6820-EP-P
![Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations 75911
22.1305). The contractor and Employment Reports on Veterans (FEB 2016) DEPARTMENT OF DEFENSE
subcontractor must file VETS–4212, (a) Definitions. As used in this clause,
Federal Contractor Veterans’ ‘‘active duty wartime or campaign badge GENERAL SERVICES
Employment Report (see ‘‘VETS–4212 veteran,’’ ‘‘Armed Forces service medal ADMINISTRATION
Federal Contractor Reporting’’ and veteran,’’ ‘‘disabled veteran,’’ ‘‘protected
‘‘Filing Your VETS–4212 Report’’ at veteran,’’ and ‘‘recently separated veteran,’’ NATIONAL AERONAUTICS AND
http://www.dol.gov/vets/vets4212.htm). have the meanings given in FAR 22.1301. SPACE ADMINISTRATION
(b) * * *
PART 52—SOLICITATION PROVISIONS (1) The total number of employees in the 48 CFR Parts 3 and 52
AND CONTRACT CLAUSES contractor’s workforce, by job category and [FAC 2005–85; FAR Case 2013–015; Item
hiring location, who are protected veterans IV; Docket 2013–0015, Sequence 1]
■ 8. Amend section 52.212–5 by
(i.e., active duty wartime or campaign badge
revising the date of the clause and RIN 9000–AM56
veterans, Armed Forces service medal
paragraphs (b)(31) and (e)(1)(viii) to read veterans, disabled veterans, and recently
as follows: separated veterans);
Federal Acquisition Regulation; Pilot
(2) The total number of new employees
Program for Enhancement of
52.212–5 Contract Terms and Conditions Contractor Employee Whistleblower
Required To Implement Statutes or hired during the period covered by the
Executive Orders—Commercial Items. report, and of the total, the number of Protections
* * * * * protected veterans (i.e., active duty wartime AGENCY: Department of Defense (DoD),
or campaign badge veterans, Armed Forces General Services Administration (GSA),
Contract Terms and Conditions Required To service medal veterans, disabled veterans,
Implement Statutes or Executive Orders— and National Aeronautics and Space
and recently separated veterans); and Administration (NASA).
Commercial Items (FEB 2016)
* * * * * * * * * * ACTION: Final rule.
(b) * * * (c) The Contractor shall report the above
(31) 52.222–37, Employment Reports on items by filing the VETS–4212 ‘‘Federal SUMMARY: DoD, GSA, and NASA have
Veterans (FEB 2016) (38 U.S.C. 4212). Contractor Veterans’ Employment Report’’ adopted as final, with changes, an
* * * * * (see ‘‘VETS–4212 Federal Contractor interim rule amending the Federal
(e)(1) * * * Reporting’’ and ‘‘Filing Your VETS–4212 Acquisition Regulation (FAR) to
(viii) 52.222–37, Employment Reports on Report’’ at http://www.dol.gov/vets/ implement a statutory pilot program
Veterans (FEB 2016) (38 U.S.C. 4212). vets4212.htm). enhancing whistleblower protections for
* * * * * * * * * * contractor employees.
■ 9. Amend section 52.213–4 by DATES: Effective: December 4, 2015.
■ 11. Amend section 52.222–38 by
revising the date of clause and FOR FURTHER INFORMATION CONTACT: Ms.
revising the date of the provision and Cecelia L. Davis, Procurement Analyst,
paragraphs (a)(2)(viii) and (b)(1)(vi) to
removing from the last sentence at 202–219–0202, for clarification of
read as follows:
‘‘submitted the most recent VETS– content. For information pertaining to
52.213–4 Terms and Conditions— 100A’’ and adding ‘‘filed the most status or publication schedules, contact
Simplified Acquisitions (Other Than recent VETS–4212’’ in its place. the Regulatory Secretariat at 202–501–
Commercial Items).
The revision reads as follows. 4755. Please cite FAC 2005–85, FAR
* * * * * Case 2013–015.
Terms and Conditions—Simplified 52.222–38 Compliance With Veterans’
SUPPLEMENTARY INFORMATION:
Acquisitions (Other Than Commercial Items) Employment Reporting Requirements.
(FEB 2016) * * * * * I. Background
(a) * * * Compliance With Veterans’ Employment DoD, GSA, and NASA published an
(2) * * *
Reporting Requirements (FEB 2016) interim rule in the Federal Register at
(viii) 52.244–6, Subcontracts for 78 FR 60169 on September 30, 2013, to
Commercial Items (FEB 2016). * * * * * implement a four-year pilot program to
* * * * * ■ 12. Amend section 52.244–6 by enhance the existing whistleblower
(b) * * * revising the date of the clause and protections for contractor employees at
(1) * * * FAR subpart 3.9. The pilot program is
(vi) 52.222–37, Employment Reports on paragraph (c)(1)(viii) to read as follows.
mandated by section 828, entitled ‘‘Pilot
Veterans (FEB 2016) (38 U.S.C. 4212)
52.244–6 Subcontracts for Commercial Program for Enhancement of Contractor
(Applies to contracts of $150,000 or more).
Items. Employee Whistleblower Protections,’’
* * * * * of the National Defense Authorization
* * * * *
■ 10. Amend section 52.222–37 by— Act (NDAA) for Fiscal Year (FY) 2013
■ a. Revising the date of the clause; Subcontracts for Commercial Items
(Pub. L. 112–239, enacted January 2,
■ b. Revising paragraphs (a), (b)(1), (FEB 2016)
2013).
(b)(2), and (c); * * * * * Paragraph (a) of section 828 adds to
■ c. Removing from paragraph (d)
(c)(1) * * * title 41 a new section 4712 that contains
‘‘submit VETS–100A’’ and adding ‘‘file (viii) 52.222–37, Employment Reports on the elements of the pilot program,
VETS–4212’’ in its place; and Veterans (FEB 2016) (38 U.S.C. 4212).
■ d. Removing from paragraph (f)
which took effect by operation of law on
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‘‘VETS–100A’’ and adding ‘‘VETS– * * * * * July 1, 2013, and is effective through
4212’’ in its place. [FR Doc. 2015–30458 Filed 12–3–15; 8:45 am] January 1, 2017. Paragraph (c) of section
The revisions read as follows. BILLING CODE 6820–EP–P 828 suspends the pre-existing
whistleblower protections in 41 U.S.C.
52.222–37 Employment Reports on 4705 ‘‘(w)hile section 4712 of this title
Veterans. is in effect . . .’’ (i.e., from July 1, 2013
* * * * * through January 1, 2017). Accordingly,
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Authority: 40 U.S.C. 121(c); 10 U.S.C. Archives and Records Administration • Language at paragraph (b) regarding
chapter 137; and 51 U.S.C. 20113. (NARA) General Records Schedule. retention periods for acquisitions
■ 2. Revise section 3.908–5 to read as DATES: Effective: January 4, 2016. conducted prior to July 3, 1995 is
follows. FOR FURTHER INFORMATION CONTACT: Mr. removed.
Curtis E. Glover, Sr., Procurement • Language is added at a new
3.908–5 Procedures for investigating paragraph (c) to require agencies to
complaints. Analyst, at 202–501–1448, for
clarification of content. For information request approval from NARA through
(a) Investigation of complaints will be the agency’s records officer if a shorter
pertaining to status or publication
in accordance with 41 U.S.C. 4712(b). retention is needed.
schedules, contact the Regulatory
(b) Upon completion of the • In the Table at 4–1:
Secretariat at 202–501–4755. Please cite Æ The retention period identified for
investigation, the head of the agency or
FAC 2005–85, FAR Case 2015–009. records related to Contract Disputes
designee shall ensure that the Inspector
General provides the report of findings SUPPLEMENTARY INFORMATION: statute actions is removed; the
to— I. Background requirement is covered by paragraphs
(1) The complainant and any person numbered (1) and (8).
acting on the complainant’s behalf; DoD, GSA, and NASA are issuing a Æ The retention period for all
(2) The contractor alleged to have final rule to update the Government file contracts and related records is changed
committed the violation; and retention periods identified at FAR to 6 years after final payment.
(3) The head of the contracting 4.805, Government contract files, to Æ The retention period for unsolicited
activity. conform with the retention periods in proposals not accepted by the agency is
(c) The complainant and contractor the revised NARA General Records changed to be in accordance with
shall be afforded the opportunity to Schedule (GRS) 1.1, Financial agency procedures.
submit a written response to the report Management and Reporting Records
notice, which was published in the II. Publication of This Final Rule for
of findings within 30 days to the head
Federal Register at 79 FR 54747 on Public Comment is Not Required By
of the agency or designee. Extensions of
September 12, 2014. The Financial Statute
time to file a written response may be
granted by the head of the agency or Management and Reporting Records can ‘‘Publication of proposed
designee. be found at http://www.archives.gov/ regulations’’, 41 U.S.C. 1707, is the
(d) At any time, the head of the records-mgmt/grs.html. statute which applies to the publication
agency or designee may request NARA has undertaken a 5-year project of the Federal Acquisition Regulation.
additional investigative work be done to redraft the entire GRS to reflect the Paragraph (a)(1) of the statute requires
on the complaint. realities of current Government business that a procurement policy, regulation,
practices and make it more useful in a procedure or form (including an
■ 3. Revise the section heading for
world where almost all record keeping amendment or modification thereof)
section to read as follows:
is electronic. NARA is charged with must be published for public comment
3.908–6 Remedies. oversight of how all records of the if it relates to the expenditure of
* * * * * Federal Government are managed and appropriated funds, and has either a
[FR Doc. 2015–30459 Filed 12–3–15; 8:45 am] retained for business use and historical significant effect beyond the internal
BILLING CODE 6820–EP–P research. Its research on writing a new operating procedures of the agency
schedule for Financial Management and issuing the policy, regulation, procedure
Reporting Records (GRS 1.1) was carried or form, or has a significant cost or
DEPARTMENT OF DEFENSE out under that authority. administrative impact on contractors or
NARA’s research has shown that offerors. This final rule is not required
GENERAL SERVICES many agencies believe the break to be published for public comment,
ADMINISTRATION between procurements over and under because it only changes the retention
the simplified acquisition threshold (6 periods for Government contract files.
NATIONAL AERONAUTICS AND years, 3 months versus 3 years These requirements affect only the
SPACE ADMINISTRATION retention) is no longer useful to them. internal operating procedures of the
NARA polled records management Government.
48 CFR Part 4 personnel at numerous agencies
regarding records created in largely III. Executive Orders 12866 and 13563
[FAC 2005–85; FAR Case 2015–009; Item
V; Docket No. 2015–0009, Sequence No. 1] electronic acquisition systems. It also Executive Orders (E.O.s) 12866 and
examined and tallied statistics regarding 13563 direct agencies to assess all costs
RIN 9000–AN12 some 675,000 boxes of hard-copy and benefits of available regulatory
records stored in the Federal Records alternatives and, if regulation is
Federal Acquisition Regulation; necessary, to select regulatory
Center system. As such, NARA
Retention Periods approaches that maximize net benefits
eliminated the distinction between over
AGENCY: Department of Defense (DoD), and under the simplified acquisition (including potential economic,
General Services Administration (GSA), threshold for purposes of record keeping environmental, public health and safety
and National Aeronautics and Space and unified all retention under a single effects, distributive impacts, and
Administration (NASA). figure of 6 years under GRS 1.1, item equity). E.O. 13563 emphasizes the
ACTION: Final rule. 010. importance of quantifying both costs
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The retention periods for Government and benefits, of reducing costs, of
SUMMARY: DoD, GSA, and NASA are contract records at FAR section 4.805 is harmonizing rules, and of promoting
issuing a final rule amending the changed to conform to the revised flexibility. This is not a significant
Federal Acquisition Regulation (FAR) to NARA GRS 1.1, as follows: regulatory action and, therefore, was not
update the Government contract file • Language at paragraph (a) regarding subject to review under Section 6(b) of
retention periods to conform with the agency procedures for contract file E.O. 12866, Regulatory Planning and
retention periods in the National disposal is removed. Review, dated September 30, 1993. This
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Document Created: 2015-12-14 13:52:35
Document Modified: 2015-12-14 13:52:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective: December 4, 2015. | |
| Contact | Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2013- 015. | |
| FR Citation | 80 FR 75911 | |
| RIN Number | 9000-AM56 | |
| CFR Citation | 48
CFR
3 48 CFR 52 |
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