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)

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.

[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]


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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.

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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.

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[FR Doc. 2015-30459 Filed 12-3-15; 8:45 am]
 BILLING CODE 6820-EP-P