[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14633-14636]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005-32; FAR Case 2009-012; Item II; Docket 2009-0009, Sequence 1]
RIN 9000-AL19
Federal Acquisition Regulation; FAR Case 2009-012, American
Recovery and Reinvestment Act of 2009 (the Recovery Act)--Whistleblower
Protections
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
American Recovery and Reinvestment Act of 2009 (the Recovery Act) with
respect to section 1553 of Division A, Protecting State and Local
Government and Contractor Whistleblowers. This rule prohibits non-
Federal employers from discharging, demoting, or discriminating against
an employee as a reprisal for disclosing information.
DATES: Effective Date: March 31, 2009.
Applicability Date: The rule applies to solicitations issued and
contracts awarded on or after the effective date of this rule.
Contracting officers shall modify, on a bilateral basis, in accordance
with FAR 1.108(d)(3), existing contracts to include the FAR clause for
future orders, if the Recovery Act funds will be used. In the event
that a contractor refuses to accept such a modification, the contractor
will not be eligible for receipt of the Recovery Act funds.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before June 1, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009-
012, by any of the following methods:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2009-012'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2009-012. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2009-012'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, FAR Secretariat
(VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments only and cite FAC 2005-32, FAR
case 2009-012, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Jeritta Parnell, Procurement Analyst, at (202) 501-4082. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-32, FAR case
2009-012.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements section 1553 of the American Recovery
and Reinvestment Act of 2009 (the Recovery Act) with respect to the
protection of whistleblowers, by adding a new section 3.907,
Whistleblower Protections Under the American Recovery and Reinvestment
Act of 2009 and a new clause at FAR 52.203-15, Whistleblower
Protections Under the American Recovery and Reinvestment Act of 2009,
and its prescription in FAR 3.907-7.
On February 17, 2009, the President signed Public Law 111-5, the
American Recovery and Reinvestment Act of 2009, including a number of
provisions to be implemented in Federal Government contracts. Among
these provisions is Section 1553 of the Recovery Act, ``Protecting
State and Local Government and Contractor Whistleblowers''. This
requirement promotes transparency in Federal contracting.
B. Discussion
FAR 3.907 provides that non-Federal employers receiving funds under
the Recovery Act are prohibited from discharging, demoting, or
discriminating against employees as a reprisal for disclosing certain
covered information to certain categories of Government officials or a
person with supervisory authority over the employee. This section
further provides definitions relevant to the statute; establishes time
periods within which the Inspector General and the agency head must
take action with regard to a complaint filed by a contractor employee;
establishes procedures for access to investigative files of the
Inspector General; and provides for remedies and enforcement authority.
FAR 3.907-7 prescribes a new clause at 52.203-15.
C. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
Section 4101 of Public Law 103-355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C. 429), governs the applicability of
laws to contracts or subcontracts in amounts not greater than the
simplified acquisition threshold. It is intended to limit the
applicability of laws to them. The FASA provides that if a provision of
law contains criminal or civil penalties, or if the Federal Acquisition
Regulatory Council (FAR Council) makes a written determination that it
is not in the best interest of the Federal Government to exempt
contracts or subcontracts at or below the simplified acquisition
threshold, the law will apply to them.
Therefore, given section 1553 of the Recovery Act, which extends
whistleblower protections to employees of contractors that receive
contracts funded under the Recovery Act, and the initial implementing
guidance for the Recovery Act issued on February 18,
[[Page 14634]]
2009 by the Director of the Office of Management and Budget committing
to an unprecedented level of transparency and accountability for
taxpayer dollars, the FAR Council has determined that it is in the best
interest of the Federal Government to apply this rule to acquisitions
at or below the simplified acquisition threshold, as defined at FAR
2.101.
D. Applicability to Commercial Item Contracts
Section 8003 of Public Law 103-355, the FASA (41 U.S.C. 430),
governs the applicability of laws to commercial items, and is intended
to limit the applicability of laws to commercial items. The FASA
provides that if a provision of law contains criminal or civil
penalties, or if the Federal Acquisition Regulatory Council makes a
written determination that it is not in the best interest of the
Federal Government to exempt commercial item contracts, the provision
of law will apply to contracts for commercial items. The same applies
for subcontracts for commercial items.
Therefore, given section 1553 of the Recovery Act, which prohibits
non-Federal employers working on contracts funded with the Recovery Act
funds from discharging, demoting, or discriminating against an employee
as a reprisal for disclosing information the employee reasonably
believes is evidence of information listed in section 1553(a), the FAR
Council has determined that the rule should apply to contracts for
commercial items, as defined at FAR 2.101, at both the prime and
subcontract levels.
E. Applicability to Commercially Available Off-the-Shelf (COTS) Item
Contracts
Section 4203 of Public Law 104-106, the Clinger-Cohen Act of 1996
(41 U.S.C. 431), governs the applicability of laws to the procurement
of COTS items, and is intended to limit the applicability of laws to
them. Clinger-Cohen provides that if a provision of law contains
criminal or civil penalties, or if the Administrator for Federal
Procurement Policy makes a written determination that it is not in the
best interest of the Federal Government to exempt COTS item contracts,
the provision of law will apply.
Therefore, given section 1553 of the American Recovery and
Reinvestment Act of 2009 (Recovery Act), which prohibits non-Federal
employers working on contracts funded with the Recovery Act funds from
discharging, demoting, or discriminating against an employee as a
reprisal for disclosing information the employee reasonably believes is
evidence of information listed in section 1553(a), the Administrator,
Office of the Federal Procurement Policy, has determined that the rule
should apply to COTS item contracts, as defined at FAR 2.101.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget (OMB) review under section 6 of
Executive Order 12866, Regulatory Planning and Review, dated September
30, 1993. This rule is not a major rule under 5 U.S.C. 804.
F. Regulatory Flexibility Act
The Councils do not expect this interim 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.,
because this rule applies similar, but not identical, whistleblower
protections to contractor and subcontractor employees as currently
covered in FAR Subpart 3.9. Likewise, this rule only applies to
contracts funded in whole or in part with the Recovery Act funds.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils will consider comments from small entities
concerning the affected FAR Parts 3 and 52 in accordance with 5 U.S.C.
610. Interested parties must submit such comments separately and should
cite 5 U.S.C. 601, et seq., (FAC 2005-32, FAR Case 2009-012) in all
correspondence.
G. 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. Chapter
35, et seq.
H. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the American Recovery and Reinvestment Act of 2009
became effective on enactment, and contracts using funds appropriated
by the Recovery Act will soon be ready to award. However, pursuant to
Public Law 98-577 and FAR 1.501, the Councils will consider public
comments received in response to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 3 and 52
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director,Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 3 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 3 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
2. Revise section 3.900 to read as follows:
3.900 Scope of subpart.
(a) Sections 3.901 through 3.906 of this subpart implement 10
U.S.C. 2409 and 41 U.S.C. 265, as amended by Sections 6005 and 6006 of
the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355).
(b) Section 3.907 of this subpart 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.
3.902 [Removed and Reserved]
0
3. Remove and reserve section 3.902.
0
4. Add sections 3.907 through 3.907-7 to read as follows:
3.907 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009 (the Recovery Act).
3.907-1 Definitions.
As used in this section--
Board means the Recovery Accountability and Transparency Board
established by Section 1521 of the Recovery Act.
Covered funds means funds appropriated by or otherwise made
available by the Recovery Act.
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
[[Page 14635]]
related to an agency contract (including the competition for or
negotiation of a contract) awarded or issued relating to covered funds.
Inspector General means an Inspector General appointed under the
Inspector General Act of 1978. In the Department of Defense that is the
DoD Inspector General. In the case of an executive agency that does not
have an Inspector General, the duties shall be performed by an official
designated by the head of the executive agency.
Non-Federal employer, as used in this section, means any employer
that receives Recovery Act 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
Acquisition Regulation.
3.907-2 Policy.
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 or
their representatives:
(1) The Board.
(2) An Inspector General.
(3) The Comptroller General.
(4) A member of Congress.
(5) A State or Federal regulatory or law enforcement agency.
(6) 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.
(7) A court or grand jury.
(8) The head of a Federal agency.
3.907-3 Procedures for filing complaints.
(a) An employee who believes that he or she has been subjected to
reprisal prohibited by the Recovery Act, Section 1553 as set forth in
3.907-2, may submit a complaint regarding the reprisal to the Inspector
General of the agency that awarded the contract.
(b) The complaint shall be signed and shall contain--
(1) The name of the contractor;
(2) The contract number, if known; if not, a description reasonably
sufficient to identify the contract(s) involved;
(3) The covered information giving rise to the disclosure;
(4) The nature of the disclosure giving rise to the discriminatory
act; and
(5) The specific nature and date of the reprisal.
(c) A contracting officer who receives a complaint of reprisal of
the type described in 3.907-2 shall forward it to the Office of the
Inspector General, agency legal counsel or to the appropriate official
in accordance with agency procedures.
3.907-4 Procedures for investigating complaints.
Investigation of complaints will be in accordance with section 1553
of the Recovery Act.
3.907-5 Access to investigative file of Inspector General.
(a) The employee alleging reprisal under this section shall 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 shall 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.
(b) In the event the employee alleging reprisal brings a civil
action under section 1553(c)(3) of the Recovery Act, the employee
alleging the reprisal and the non-Federal employer shall have access to
the investigative file of the Inspector General in accordance with the
Privacy Act.
(c) The Inspector General may exclude from disclosures made under
3.907-5(a) or (b)--
(1) Information protected from disclosure by a provision of law;
and
(2) 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.
(d) An Inspector General investigating an alleged reprisal under
this section may not respond to any inquiry or disclose any information
from or about any person alleging such reprisal, except in accordance
with 5 U.S.C. 552a or as required by any other applicable Federal law.
3.907-6 Remedies and enforcement authority.
(a) Burden of Proof. (1) Disclosure as contributing factor in
reprisal.
(i) An employee alleging a reprisal under this section shall be
deemed to have affirmatively established the occurrence of the reprisal
if the employee demonstrates that a disclosure described in section
3.907-2 was a contributing factor in the reprisal.
(ii) A disclosure may 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. The head of an agency may not find
the occurrence of a reprisal with respect to a reprisal that is
affirmatively established under section 3.907-6(a)(1) 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 in accordance with section 1553 of the Recovery Act, the head of
the agency concerned shall determine whether there is sufficient basis
to conclude that the non-Federal employer has subjected the complainant
to a reprisal prohibited by subsection 3.907-2 and shall either issue
an order denying relief in whole or in part or shall take one or more
of the following actions:
(1) Order the employer to take affirmative action to abate the
reprisal.
(2) 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.
(3) 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)(1) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint, and the
complainant may 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
shall have jurisdiction over such an action without regard to the
amount in controversy if
(i) The head of an agency--
(A) Issues an order denying relief in whole or in part under
paragraph (a) of this section;
[[Page 14636]]
(B) Has not issued an order within 210 days after the submission of
a complaint in accordance with section 1553 of the Recovery Act, or in
the case of an extension of time in accordance with section 1553 of the
Recovery Act, within 30 days after the expiration of the extension of
time; or
(C) Decides in accordance with section 1553 of the Recovery Act not
to investigate or to discontinue an investigation; and
(ii) There is no showing that such delay or decision is due to the
bad faith of the complainant.
(2) Such an action shall, 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 issued under
this section, the head of the agency shall request the Department of
Justice to file an action for enforcement of such order in the United
States district court for a district in which the reprisal was found to
have occurred. In any action brought under this section, the court may
grant appropriate relief, including injunctive relief, compensatory and
exemplary damages, and attorneys fees and costs.
(e) Any person adversely affected or aggrieved by an order issued
under paragraph (b) of this subsection may 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 may be filed more
than 60 days after issuance of the order by the head of the agency.
3.907-7 Contract Clause.
Use the clause at 52.203-15, Whistleblower Protections Under the
American Recovery and Reinvestment Act of 2009 in all solicitations and
contracts funded in whole or in part with Recovery Act funds.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Add section 52.203-15 to read as follows:
52.203-15 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009
As prescribed in 3.907-7, use the following clause:
Whistleblower Protections Under the American Recovery and Reinvestment
Act of 2009 (Mar 2009)
(a) The Contractor shall post notice of employees rights and
remedies for whistleblower protections provided under section 1553
of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-
5).
(b) The Contractor shall include the substance of this clause
including this paragraph (b) in all subcontracts.
(End of clause)
0
6. Amend section 52.212-4 by revising the date of the clause and
paragraph (r) to read as follows:
52.212-4 Contract Terms and Conditions--Commercial Items.
* * * * *
Contract Terms and Conditions--Commercial Items (MAR 2009)
* * * * *
(r) Compliance with laws unique to Government contracts. The
Contractor agrees to comply with 31 U.S.C. 1352 relating to
limitations on the use of appropriated funds to influence certain
Federal contracts; 18 U.S.C. 431 relating to officials not to
benefit; 40 U.S.C. 3701, et seq., Contract Work Hours and Safety
Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C.
265 and 10 U.S.C. 2409 relating to whistleblower protections;
Section 1553 of the American Recovery and Reinvestment Act of 2009
relating to whistleblower protections for contracts funded under
that Act; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating
to procurement integrity.
* * * * *
(End of clause)
0
7. Amend section 52.212-5 by--
a. Revising the date of the clause;
b. Redesignating paragraphs (b)(3) thru (b)(41) as paragraphs
(b)(4) thru (b)(42), respectively, and adding a new paragraph (b)(3);
and
c. Redesignating paragraphs (e)(1)(iii) thru (e)(1)(xiii) as
paragraphs (e)(1)(iv) thru (e)(1)(xiv), respectively, and adding a new
paragraph (e)(1)(iii). The revised and added text reads as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (Mar 2009)
* * * * *
(b) * * *
(3) 52.203-15, Whistleblower Protections under the American
Recovery and Reinvestment Act of 2009 (Section 1553 of Pub. L. 111-
5).
* * * * *
(e)(1) * * *
(iii) 52.203-15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (Section 1553 of Pub. L. 111-
5). Applies to subcontracts funded under the Act.
* * * * *
(End of clause)
0
8. Amend section 52.213-4 by revising the date of the clause and
paragraph (a)(2)(vi) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Mar 2009)
(a) * * *
(2) * * *
(vi) 52.244-6, Subcontracts for Commercial Items. (MAR 2009)
* * * * *
0
9. Amend section 52.244-6 by revising the date of the clause;
redesignating paragraphs (c)(1)(ii) thru (c)(1)(viii) as paragraphs
(c)(1)(iii) thru (c)(1)(ix), respectively, and adding a new paragraph
(c)(1)(ii).
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (Mar 2009)
* * * * *
(c)(1) * * *
(ii) 52.203-15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (Section 1553 of Pub. L. 111-
5). Applies to subcontracts funded under the Act.
* * * * *
(End of clause)
[FR Doc. E9-7020 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P