[Federal Register: June 16, 2010 (Volume 75, Number 115)]
[Rules and Regulations]
[Page 34258-34260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn10-17]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005-42; FAR Case 2009-012; Item I; Docket 2009-0009, Sequence 1]
RIN 9000-AL19
Federal Acquisition Regulation; FAR Case 2009-012, American
Recovery and Reinvestment Act (the Recovery Act) of 2009--
Whistleblower Protections
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (the Councils) have adopted as final,
with changes, 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: June 16, 2010.
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
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR
Case 2009-012.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 74 FR 14633 on March 31, 2009, to implement the Recovery
Act with respect to section 1553 of Division A, Protecting State and
Local Government and Contractor Whistleblowers. A Technical Amendment
was published in the Federal Register at 74 FR 22810 on May 14, 2009.
The comment period closed on June 1, 2009. Six comments from two
respondents were received. The Councils considered the comments
received and concluded that the interim rule should be converted to a
final rule with minor changes.
The comments received are discussed below.
a.The first respondent submitted the following 4 comments.
Comment 1. The respondent believes that the prescription at FAR
3.907-7 is too broad and should be revised to limit application more
specifically to work funded with the Recovery Act funds. Revised
language is proposed for FAR 3.907-7 as follows: ``Use the clause at
52.203-15, Whistleblower Protections under the ARRA of 2009 in--All
solicitations and contracts entirely funded with Recovery Act funds;
and All solicitations and contracts funded in part with Recovery Act
funds for the work to be funded with those Recovery Act funds.''
Response. Section 1553 prohibits reprisals against any employee of
a contractor receiving ``covered funds'' for disclosing certain
information related to ``covered funds.'' The limitation of the
applicability of the rule is created by the
[[Page 34259]]
definition of covered information, which means only 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 related to an agency contract
(including the competition for or negotiation of a contract) awarded or
issued relating to covered funds. It does not apply to information
relating to problems not associated with the use of covered funds.
Section 1553 defines ``Covered funds'' to mean any contract, grant,
or other payment received by a contractor if--
(1) The Federal Government provides any portion of the money or
property that is provided, requested, or demanded; and
(2) At least some of the funds are appropriated or otherwise made
available by the Recovery Act.
As defined in section 1553, covered funds is broader than just
funds appropriated or otherwise made available by the Recovery Act.
Since the prohibition of reprisals applies to any employee of the
contractor receiving the covered funds, the clause prescription as
stated in the interim rule at FAR 3.907-7 is correct. However, the
Councils have revised the definition of ``covered funds'' at FAR 3.907-
1 to be more consistent with the statutory definition, and have revised
the flowdown in the clause at FAR 52.203-15(b) to apply only to
subcontracts that are funded in whole or in part with the Recovery Act
funds.
Comment 2. The respondent states that because section 1553 of the
Recovery Act is implemented by FAR 52.203-15 and included in contracts
for commercial items by FAR 52.212-5(b)(3), it is not necessary to
amend paragraph (r) of FAR 52.212-4.
Response. The Councils agree. The newly added language at FAR
52.212-4(r) is deleted.
Comment 3. The respondent states that the clause at FAR 52.203-15
should be indicated as a ``check-off'' clause as has been noted for FAR
52.212-5(b)(4), and FAR 52.204-11 (FAR Case 2009-009).
Response. The Councils agree. However, it is not necessary to make
any further changes to the rule. This is a checklist being interpreted
correctly by the U.S. National Archives and Records Administration and
the U.S. Government Printing Office.
Comment 4. The respondent states that it is unnecessary to include
the reference to FAR 52.203-15 in paragraph (e)(1) of FAR 52.212-5
because this was incorporated under FAR Case 2009-011.
Response. The Councils partially agree. The Technical Amendment to
the rule, published in the Federal Register at 74 FR 22810 on May 14,
2009, moved this paragraph to the Alternate II.
b. The second respondent submitted 2 comments to the interim rule.
Comment 1. The respondent believes that the rule should be amended
to require the contracting officer to immediately forward the complaint
ONLY to the Office of Inspector General (OIG).
Response. The Councils partially agree. The language in FAR 3.907-
3(c) is revised to add ``and to other designated officials in
accordance with agency procedures (e.g., agency legal counsel'') so
that agencies are informed as well as the OIG.
Comment 2. The respondent believes that the Recovery Act grants
authority concerning the extension of time for investigating complaints
and the determination on whether or not to investigate or to
discontinue an investigation to the IG, not to the agency head as
stated in FAR 3.907-6(c)(1).
Response. The Councils agree that subsection (b) of section 1553
gives the authority to the IG. However, FAR 3.907-6(c)(1) reflects the
wording of subsection (c)(3) of section 1553. The FAR did not create
any new authority here.
In addition, the Councils added a reference, at FAR 52.203-15, to
the web address where contractors may obtain a whistleblower poster
developed by the Recovery Accountability and Transparency (RAT) Board.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget 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.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 the 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 awarded with Recovery Act
funds.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
chapter 35, et seq.
List of Subjects in 48 CFR Parts 3 and 52
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
0
Accordingly, the interim rule published in the Federal Register at 74
FR 14633 on March 31, 2009, is adopted as a final rule with the
following changes:
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. Amend section 3.907-1 by revising the definition of ``Covered
funds'' to read as follows:
3.907-1 Definitions.
* * * * *
Covered funds means any contract payment, grant payment, or other
payment received by a contractor if--
(1) The Federal Government provides any portion of the money or
property that is provided, requested, or demanded; and
(2) At least some of the funds are appropriated or otherwise made
available by the Recovery Act.
* * * * *
0
3. Amend section 3.907-3 by revising paragraph (c) to read as follows:
3.907-3 Procedures for filing complaints.
* * * * *
(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
Inspector General and to other designated officials in accordance with
agency procedures (e.g., agency legal counsel).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 52.203-15 by revising the date of the clause, and
paragraphs (a) and (b) to read as follows:
[[Page 34260]]
52.203-15 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009.
* * * * *
WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (JUN 2010)
(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)
(Recovery Act).
(b) The Contractor shall include the substance of this clause,
including this paragraph (b), in all subcontracts that are funded in
whole or in part with Recovery Act funds.
* * * * *
52.212-4 [Amended]
0
5. Amend section 52.212-4 by removing the clause date ``(Mar 2009)''
and adding ``(JUN 2010)'' and removing from paragraph (r) ``Section
1553 of the American Recovery and Reinvestment Act of 2009 relating to
whistleblower protections for contracts funded under that Act;''.
0
6. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(3) ``(Mar 2009)'' and adding ``(JUN
2010)'' in its place; and
0
c. Revising paragraph (e)(1)(ii)(B) of Alternate II.
The revised 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 (JUN 2010)
* * * * *
Alternate II * * *
* * * * *
(e)(1) * * *
(ii) * * *
(B) 52.203--15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5).
* * * * *
0
7. 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) (JUN 2010)
(a) * * *
(2) * * *
(vi) 52.244-6, Subcontracts for Commercial Items (JUN 2010).
* * * * *
0
8. Amend section 52.244-6 by revising the date of the clause and
paragraph (c)(1)(ii) to read as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
SUBCONTRACTS FOR COMMERCIAL ITEMS (JUN 2010)
* * * * *
(c)(1) * * *
(ii) 52.203-15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5), if the subcontract is funded under the Recovery Act.
* * * * *
[FR Doc. 2010-14189 Filed 6-15-10; 8:45 am]
BILLING CODE 6820-EP-S