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New whistleblower protections take effect for federal contractors
Monday - 7/1/2013, 5:17am EDT
Under any federal contract that's signed on or after July 1, reprisal protections will be extended for the first time to subcontractors who report waste, fraud or abuse.
The revision to federal statutes also entitles contractor employees to whistleblower protection when they report wrongdoing on a federal contract to supervisors within their own companies. Previous laws required them to take their complaints to a government office such as an inspector general, a government contract manager or a member of Congress in order to receive protection.
Congress enacted the new law as part of the massive annual defense authorization bill for 2013. It covers all of the Defense Department's new contracts and task orders going forward. It also temporarily covers contracts executed by most other federal agencies, with the exception of the Intelligence Community, under a four-year "pilot program."
Margie Garrison, DoD's deputy inspector general for administrative investigations, testified in favor of the enhanced provisions during Senate hearings in 2011. She said in an interview last week that her office routinely receives complaints from whistleblowers working for DoD subcontractors, who until now could be summarily fired or face other discipline if their complaints irritate their immediate employers, the prime contractors they are working for or the government.
"They could report but they didn't have any protections whatsoever," she said. "So, if they were dismissed because a government official said, ‘I don't want this person working on the contract anymore,' we couldn't investigate that and decide whether it was reprisal. Now, with the new provisions that would be covered."
Garrison said the DoD IG's office expects the new law to result in a rise in whistleblower complaints, which she said have already been steadily increasing over the past several years, partially due to the much larger universe of workers who are now covered by the protections: contractor employees vastly outnumber federal civilians who have long been subject to whistleblower protection.
"We had about 16 in 2006 and by last year we had 65," she said. "We think this is a good thing. Many times whistleblowers make allegations at great personal expense. It takes a lot for someone to go forward and say, ‘I think my contract is being handled incorrectly.' We're going to work with the complainant to make sure we clarify exactly what they think is the gross fraud, waste, abuse or mismanagement, and we have to make sure we have the facts to support what they've claimed to us. But if the facts aren't there to support their allegation, we're going to have to go back to them and say we weren't able to prove by clear and convincing evidence that what they reported was waste, fraud or abuse."
In that case, someone who considered him or herself to be a whistleblower wouldn't receive protection. Officials emphasized that the laws don't cover complaints that boil down to disagreements over management decisions. They're intended to uncover bona fide wrongdoing.
The new law includes a loophole that exempts contractors working for "any element" of the Intelligence Community from the new protections that took effect Monday. But Garrison said she believed those contract employees were already adequately covered by Presidential Policy Directive 19, which President Obama signed in October 2012 and by the 1998 Intelligence Community Whistleblower Protection Act.
"I think even though the Intelligence Community was pulled out, I think their protections are now situated correctly," she said. "But as we see that executive order implemented, we'll find out for sure. I don't think there are any glaring gaps [in whistleblower protections]. We see this as a positive benefit, and we hope it will encourage folks to come forward and blow the whistle."