Federal Acquisition Regulation: Whistleblower Protection for Contractor Employees
| Published date | 26 December 2018 |
| Citation | 83 FR 66223 |
| Record Number | 2018-27493 |
| Section | Proposed rules |
| Court | National Aeronautics And Space Administration |
Federal Register, Volume 83 Issue 246 (Wednesday, December 26, 2018)
[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Proposed Rules]
[Pages 66223-66228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27493]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3, 31, and 52
[FAR Case 2017-005; Docket No. 2017-0005, Sequence No. 1]
RIN 9000-AN32
Federal Acquisition Regulation: Whistleblower Protection for
Contractor Employees
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement an act to enhance
whistleblower protection for contractor employees. The rule would make
permanent the protection for disclosure of certain information. It also
would clarify that the prohibition on reimbursement for certain legal
costs applies to subcontractors, as well as contractors.
DATES: Interested parties should submit comments to the Regulatory
Secretariat Division at one of the addresses shown below on or before
February 25, 2019 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments in response to FAR Case 2017-005 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``FAR Case
2017-005'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Comment Now'' that corresponds with ``FAR
Case 2017-005.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2017-005'' on
your attached document.
Mail: General Services Administration, Regulatory-
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite ``FAR case 2017-
005'' in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case
2017-005.''
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement an
act to enhance whistleblower protection for contractor and grantee
employees (Pub. L. 114-261), enacted December 14, 2016. Although the
statute addresses both contractor and grantee employees, the FAR only
covers contracts and contractors. Grants are covered in title 2 of the
Code of Federal Regulations.
This statute amends 41 U.S.C. 4712 to make permanent the pilot
program for enhancement of contractor protection from reprisal for
sharing certain information. The four-year pilot program was enacted on
January 2, 2013, by section 828 of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239), with an
effective period of four years from the date of enactment (i.e.,
January 2, 2013, through January 1, 2017). Section 1091(e) of the NDAA
for FY 2014 (Pub. L. 113-66) modified the effective period of the pilot
program to be four years from the date that is 180 days after the date
of enactment (i.e., July 1, 2013, through June 30, 2017). However, the
program did not expire as it became permanent on December 14, 2016,
before either of those expiration dates. This program does not apply to
DoD, NASA, or the Coast Guard.
This statute also clarifies that the cost principles at 10 U.S.C.
2324(k) and 41
[[Page 66224]]
U.S.C. 4304 and 4310 that prohibit reimbursement for certain legal
costs apply to costs incurred by a contractor, subcontractor, or
personal services contractor. Personal services contractors are
contractors. Cost principles generally already apply in the same way to
costs incurred by subcontractors as to costs incurred by contractors.
II. Discussion and Analysis
A. Pilot program becomes permanent. This rule proposes to amend the
FAR to make permanent the civilian agency contractor pilot program that
implements 41 U.S.C. 4712, currently located at FAR 3.908.
FAR 3.900 is amended to delete: (1) The discussion of 41
U.S.C. 4705, the prior whistleblower statute (which had been
implemented at FAR 3.901 through 3.906, but which had been suspended
for the duration of the 41 U.S.C. 4712 pilot program), since the
successor statute, 41 U.S.C. 4712, has been made permanent; and (2) the
sunset date for 41 U.S.C. 4712.
The FAR 3.908 heading is amended to remove the designation
as a pilot program, and the entire section is relocated to 3.900
through 3.906 as follows:
[cir] 3.908-1 = 3.900(a)
[cir] 3.908-2 = 3.901 (retains the definition of ``authorized official
of the Department of Justice'')
[cir] 3.908-3 = 3.903
[cir] 3.908-4 = 3.904-1
[cir] 3.908-5 = 3.904-2
[cir] 3.908-6 = 3.905-1
[cir] 3.908-7 = 3.905-2
[cir] 3.908-8 = 3.902
[cir] 3.908-9 = 3.906
There are a few minor edits in FAR 3.900(a).
FAR 3.903(a) and 3.905-1 are reformatted with vertical
lists for improved clarity.
FAR 3.904-2 is amended to state that the complainant,
contractor, and/or subcontractor shall submit their responses to the
written report to both the head of the agency and the Office of
Inspector General.
FAR clause 52.203-17, Contractor Employee Whistleblower
Rights, is amended to remove the reference to section 828 of the NDAA
for FY 2013, which is no longer necessary since 41 U.S.C. 4712 has been
made permanent. The title of the clause is also simplified.
Agencies will use FAR clause 52.203-17 in contracts for
both commercial and noncommercial items that exceed the simplified
acquisition threshold. Previously, the requirement to comply with the
civilian agency contractor Whistleblower statute was implemented
through paragraph (r) of FAR clause 52.212-4, Contract Terms and
Conditions--Commercial items.
The civilian agency contractor whistleblower protections
of 41 U.S.C. 4712 listed in paragraph (r) of FAR clause 52.212-4 are
removed, because the clause 52.203-17 is now included in FAR clause
52.212-5, Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
Coverage of 10 U.S.C. 2409 will remain in FAR clause
52.212-4(r) to cover DoD, NASA, and the Coast Guard. Only 41 U.S.C.
4712 coverage is being moved to FAR clause 52.212-5.
FAR clause 52.212-5 is amended to list FAR clause 52.203-
17.
Conforming changes are made to FAR 52.244-6, Subcontracts
for Commercial Items.
B. Prohibition on reimbursement for legal costs.
In order to clarify that the prohibition on reimbursement
for certain legal costs applies to subcontractors, as well as
contractors, this rule proposes to amend FAR 31.205-47 and 31.603 to
add ``or subcontract'' or ``or subcontractor'' as appropriate. The term
``personal services contract'' and ``personal services contractor'' are
not added to the FAR, because they are covered by the terms
``contract'' and ``contractor.'' Also, the term ``or subcontract'' is
not added at FAR 31.205-47(b)(3)(ii) and (iii), because the Government
does not have the authority to rescind, void, or terminate a
subcontract.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This proposed rule does not add any new provisions or clauses, nor
does it change the applicability of existing provisions or clauses to
contracts at or below the SAT and contracts for the acquisition of
commercial items, including COTS items. The clause at 52.203-17,
Contractor Employee Whistleblower Rights and Requirement to Inform
Employees of Whistleblower Rights, is not prescribed for use in
contracts valued at or below the SAT.
IV. Expected Cost Impact on the Public
FAR subpart 3.9, Whistleblower Protections for Contractor
Employees, was added to the FAR on September 19, 1995, to implement
sections 6005 and 6006 of the Federal Acquisition Streamlining Act of
1994 (Pub. L. 103-355) codified at 41 U.S.C. 265, recodified as 41
U.S.C. 4705. DoD, GSA, and NASA published an interim rule in the
Federal Register at 78 FR 60169 on September 30, 2013 (finalized on
December 4, 2015, at 80 FR 75911) to implement a four-year pilot
program to enhance the existing whistleblower protections, as required
by section 828 of the NDAA for FY 2013, effective through January 1,
2017. This pilot program is inapplicable to DoD, NASA, and the Coast
Guard, because these agencies are covered by 10 U.S.C. 2409, as amended
by section 827 of the NDAA for FY 2013. Using FPDS data for FY 2016,
there were about 20,800 new awards over the simplified acquisition
threshold in FY 2016 by agencies other than DoD, NASA and the Coast
Guard, to approximately 9,100 unique awardees.
This proposed rule would implement Public Law 114-261, which makes
the pilot program permanent. If Public Law 114-261 had not been
enacted, the pilot program would have expired and 41 U.S.C. 4705, as
implemented in 1995 at FAR 3.900-3.906, would automatically become
effective again. Therefore, any impact of this rule is due to the
differences between the pilot program authorized by the NDAA for FY
2013, as made permanent, and the prior whistleblower regulations
implemented in 1995.
The enhancements to the whistleblower regulations created by the
pilot that would be made permanent by this rulemaking do not impose any
substantive burden on the public. The rule provides more details about
the nature of what constitutes whistleblower information and to whom it
may be disclosed, as well as more detailed procedures for filing and
investigating complaints and enforcing orders. A clause, applicable
above the simplified acquisition threshold, informs the contractor that
employees working under the contract are subject to whistleblower
protection and requires the contractor to inform its employees in
writing, in the predominant language of the workforce, of the employee
whistleblower rights and protections. This requirement can be easily
satisfied by issuing an email to all employees working on the contract.
For this reason, DoD, GSA, and NASA consider the burden to be de
minimis.
The rule would also add the words ``or subcontractor'' at multiple
locations throughout FAR 31.205-47, which also has no or de minimis
impact, because the cost principles generally already apply in the same
way to costs incurred by subcontractors as to costs incurred by
contractors. FAR 31.000 states that the part contains cost principles
and procedures for the pricing of contracts,
[[Page 66225]]
subcontracts, and modifications to contracts and subcontracts whenever
cost analysis is performed (see 15.404-1), and the determination,
negotiation, or allowance of costs when required by a contract clause.
FAR 31.103 further states that the contracting officer shall
incorporate the cost principles and procedures in subpart 31.2 and
agency supplements by reference in contracts with commercial
organizations as the basis for determining reimbursable costs under
cost-reimbursement contracts and cost-reimbursement subcontracts under
these contracts performed by commercial organizations. Other sections
expand this to contracts and subcontracts thereunder with educational
institutions and construction and architect-engineer contracts. FAR
31.204 further addresses the applicability of the cost principles and
procedures to subcontracts.
There were a small number of whistleblower cases filed during the
pilot period as shown in a U.S. Government Accountability Office (GAO)
report. GAO report 17-227, Contractor Whistleblower Protections Pilot
Program--Improvements Needed to Ensure Effective Implementation showed
that GAO surveyed 14 departments for reprisal complaints received from
July 1, 2013, to December 31, 2015. This report was published and
publicly released on March 2, 2017.
The report stated ``Of the 127 reprisal complaints submitted by
employees of contractors, subcontractors, and grantees under the pilot
program, 44 were investigated by the OIG [Office of Inspector General]
and none of the investigations completed thus far resulted in findings
that substantiated reprisal.''
V. 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.
VI. Executive Order 13771
This proposed rule is not expected to be subject to E.O. 13771,
because this rule has a de minimis impact on the public (see section IV
of this preamble).
VII. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this 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. However,
an Initial Regulatory Flexibility Analysis (IRFA) has been performed
and is summarized as follows:
This proposed rule would implement Public Law 114-261, which was
enacted December 14, 2016. The objective of this rule is to enhance
whistleblower protection for contractor employees, by making
permanent the protection for disclosure of certain information, and
ensuring that the prohibition on reimbursement for certain legal
costs applies to subcontractors, as well as contractors, as required
by Public Law 114-261.
This proposed rule does not make any substantive changes to the
pilot program applicable to civilian agencies authorized by the NDAA
for FY 2013, other than to make it permanent. The clause is
prescribed above the simplified acquisition threshold (SAT). It also
does not apply to DoD, NASA, and the Coast Guard, nor to certain
elements of the intelligence community. Based on Federal Procurement
Data System (FPDS) data for fiscal year (FY) 2016, there were
approximately 10,000 new contract awards to small businesses by
civilian agencies that exceeded the SAT (about 5,000 unique
vendors).
Regarding the amendment to the cost principles, addition of the
words ``or subcontractor'' at multiple locations throughout FAR
31.205-47 has no or de minimis impact, because the cost principles
generally already apply in the same way to costs incurred by
subcontractors as to costs incurred by contractors.
There are no reporting, recordkeeping, or other compliance
requirements in this rule.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. DoD, GSA, and NASA were unable to identify any
alternatives to the rule that would reduce the impact on small
entities and still meet the requirements of the statute.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-005) in
correspondence.
VIII. Paperwork Reduction Act
The 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 Subjects in 48 CFR Parts 3, 31, and 52
Government procurement.
Dated: December 14, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
3, 31, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 3, 31, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
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.
This subpart implements various statutory whistleblower programs.
This subpart does not implement 10 U.S.C. 2409, which is applicable
only to DoD, NASA, and the Coast Guard.
(a) 41 U.S.C. 4712 is implemented in 3.900 through 3.906. These
sections do not apply to--
(1) DoD, NASA, and the Coast Guard; or
(2) Any element of the intelligence community, as defined in
section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)).
Sections 3.900 through 3.906 do not apply to any disclosure made by an
employee of a contractor or subcontractor of an element of the
intelligence community if such disclosure--
(i) Relates to an activity of an element of the intelligence
community; or
(ii) Was discovered during contract or subcontract services
provided to an element of the intelligence community.
(b) Section 743 of Division E, Title VII of the Consolidated and
Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its
successor provisions in subsequent appropriations acts (and as extended
in continuing
[[Page 66226]]
resolutions), is implemented in 3.909, which is applicable to all
agencies.
(c) Contracts funded by the American Recovery and Reinvestment Act.
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.
0
3. Amend section 3.901 by--
0
a. Adding in alphabetical order, the definition, ``Abuse of
authority'';
0
b. Removing the definition ``Authorized official of an agency''; and
0
c. Revising the definition ``Inspector General''.
The added and revised text reads as follows:
3.901 Definitions.
* * * * *
Abuse of authority means an arbitrary and capricious exercise of
authority that is inconsistent with the mission of the executive agency
concerned or the successful performance of a contract of such agency.
* * * * *
Inspector General means an Inspector General appointed under the
Inspector General Act of 1978 and any Inspector General that receives
funding from, or has oversight over contracts awarded for, or on behalf
of, the executive agency concerned. This definition does not apply to
3.907.
* * * * *
0
4. Revise section 3.902 to read as follows:
3.902 Classified information.
41 U.S.C. 4712 does not provide any right to disclose classified
information not otherwise provided by law.
0
5. Revise section 3.903 to read as follows:
3.903 Policy.
(a)(1) Contractors and subcontractors are prohibited from
discharging, demoting, or otherwise discriminating against an employee
as a reprisal for disclosing, to any of the entities listed at
paragraph (b) of this section, information that the employee reasonably
believes is--
(i) Evidence of gross mismanagement of a Federal contract;
(ii) A gross waste of Federal funds;
(iii) An abuse of authority relating to a Federal contract;
(iv) A substantial and specific danger to public health or safety;
or
(v) A violation of law, rule, or regulation related to a Federal
contract (including the competition for or negotiation of a contract).
(2) A reprisal is prohibited even if it is undertaken at the
request of an executive branch official, unless the request takes the
form of a non-discretionary directive and is within the authority of
the executive branch official making the request.
(b) Entities to whom disclosure may be made.
(1) A Member of Congress or a representative of a committee of
Congress.
(2) An Inspector General.
(3) The Government Accountability Office.
(4) A Federal employee responsible for contract oversight or
management at the relevant agency.
(5) An authorized official of the Department of Justice or other
law enforcement agency.
(6) A court or grand jury.
(7) A management official or other employee of the contractor or
subcontractor who has the responsibility to investigate, discover, or
address misconduct.
(c) An employee who initiates or provides evidence of contractor or
subcontractor misconduct in any judicial or administrative proceeding
relating to waste, fraud, or abuse on a Federal contract shall be
deemed to have made a disclosure.
0
6. Amend section 3.904 by revising the section to read as follows:
3.904 Complaints.
0
7. Add section 3.904-1 to read as follows:
3.904-1 Procedures for filing complaints.
A contractor or subcontractor employee who believes that he or she
has been discharged, demoted, or otherwise discriminated against
contrary to the policy in 3.903 may submit a complaint with the
Inspector General of the agency concerned. Procedures for submitting
fraud, waste, abuse, and whistleblower complaints are generally
accessible on agency Office of Inspector General Hotline or
Whistleblower internet sites or the complainant may directly contact
the cognizant Office of the Inspector General for submission
instructions. A complaint by the employee may not be brought under 41
U.S.C. 4712 more than three years after the date on which the alleged
reprisal took place.
0
8. Add section 3.904-2 to read as follows:
3.904-2 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
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 and/or subcontractor alleged to have committed
the violation; and
(3) The head of the agency.
(c) Unless otherwise provided in agency procedures, the
complainant, contractor, and/or subcontractor shall be afforded the
opportunity to submit a written response to the report of findings to
the head of the agency and the Office of Inspector General.
0
9. Revise section 3.905 to read as follows:
3.905 Remedies and enforcement of orders.
0
10. Add section 3.905-1 to read as follows:
3.905-1 Remedies.
(a) Agency response to Inspector General report. Not later than 30
days after receiving a report pursuant to 3.904-2, the head of the
agency shall--
(1) Determine whether sufficient basis exists to conclude that the
contractor or subcontractor has subjected the employee who submitted
the complaint to a reprisal as prohibited by 3.903; and
(2) Either issue an order denying relief or take one or more of the
following actions:
(i) Order the contractor or subcontractor to take affirmative
action to abate the reprisal.
(ii) Order the contractor or subcontractor to reinstate the
complainant-employee to the position that the person held before the
reprisal, together with compensatory damages (including back pay),
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.
(iii) Order the contractor or subcontractor to pay the complainant-
employee 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, as determined by the
head of the agency.
(b) Complainant's right to go to court.
(1) Paragraph (b)(2) of this section applies if--
(i) The head of the agency issues an order denying relief; or
(ii)(A) The head of the agency has not issued an order--
(1) Within 210 days after the submission of the complaint; or
(2) Within 30 days after the expiration of an extension of time
granted in accordance with 41 U.S.C. 4712(b)(2)(B)
[[Page 66227]]
for the submission of the report to those stated in 3.904-2(b); and
(B) There is no showing that such delay is due to the bad faith of
the complainant.
(2) If the conditions in either paragraph (b)(1)(i) or (ii) of this
section are met--
(i) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint; and
(ii) The complainant may bring a de novo action at law or equity
against the contractor or subcontractor to seek compensatory damages
and other relief available under 41 U.S.C. 4712 in the appropriate
district court of the United States, which shall have jurisdiction over
such an action without regard to the amount in controversy.
(A) Such an action shall, at the request of either party to the
action, be tried by the court with a jury.
(B) An action under this authority may not be brought more than two
years after the date on which remedies are deemed to have been
exhausted.
(c) Admissibility in evidence. An Inspector General determination
and an agency head order denying relief under this section shall be
admissible in evidence in any de novo action at law or equity brought
pursuant to 41 U.S.C. 4712.
(d) No waiver. The rights and remedies provided for in 41 U.S.C.
4712 may not be waived by any agreement, policy, form, or condition of
employment.
0
11. Add section 3.905-2 to read as follows:
3.905-2 Enforcement of orders.
(a) Whenever a contractor or subcontractor fails to comply with an
order issued under 3.905-1(a)(2), the head of the agency concerned
shall file an action for enforcement of the order in the U.S. district
court for a district in which the reprisal was found to have occurred.
In any action brought pursuant to this authority, the court may grant
appropriate relief, including injunctive relief, compensatory and
exemplary damages, and attorney fees and costs. The complainant-
employee upon whose behalf an order was issued may also file such an
action or join in an action filed by the head of the agency.
(b) Any person adversely affected or aggrieved by an order issued
under 3.905-1(a)(2) may obtain review of the order's conformance with
41 U.S.C. 4712 and its implementing regulations, in the U.S. 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. Filing
such an appeal shall not act to stay the enforcement of the order of
the head of an agency, unless a stay is specifically entered by the
court.
0
12. Revise section 3.906 to read as follows:
3.906 Contract clause.
(a) Except as provided in paragraph (b) of this section, the
contracting officer shall insert the clause at 52.203-17, Contractor
Employee Whistleblower Rights, in all solicitations and contracts that
exceed the simplified acquisition threshold.
(b) The clause prescription in paragraph (a) of this section does
not apply to solicitations and contracts of DoD, NASA, the Coast Guard,
or applicable elements of the intelligence community (see 3.900(a)).
3.907-7 [Amended]
0
13. Amend section 3.907-7 by removing ``Reinvestment Act of 2009 in''
and adding ``Reinvestment Act of 2009, in'' in its place.
3.908 [Removed and reserved]
0
14. Remove and reserve section 3.908.
3.908-1 through 3.908-9 [Removed]
0
15. Remove sections 3.908-1 through 3.908-9.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31.205-47 [Amended]
0
16. Amend section 31.205-47 by--
0
a. In paragraph (a), in the definition of ``Costs'' by removing ``or
others retained by the contractor to assist it;'' and adding ``or
others retained by the contractor or subcontractor to assist it;'' in
its place;
0
b. In the introductory text of paragraph (b), by removing ``law or
regulation by the contractor'' and adding ``law or regulation by the
contractor or subcontractor'' in its place;
0
c. In paragraph (b)(2) by removing ``either a finding of contractor
liability'' and adding ``either a finding of contractor or
subcontractor liability'' in its place;
0
d. In paragraph (b)(3)(i), by removing ``the contractor;'' and adding
``the contractor or subcontractor;'' in its place;
0
e. In paragraph (c)(1), by removing ``between the contractor'' and
adding ``between the contractor or subcontractor'' in its place;
0
f. In paragraph (c)(2)(i), by removing ``incurred by the contractor''
and adding ``incurred by the contractor or subcontractor'' in its
place;
0
g. In paragraph (d)(1) by removing ``Federal contract; or'' and adding
``Federal contract or subcontract; or'' in its place;
0
h. In the introductory paragraph of paragraph (f) by removing
``connection with'' and adding ``connection with the following'' in its
place;
0
i. In paragraph (f)(4) by removing ``the contractor under'' and adding
``the contractor or subcontractor under'' in its place; and removing
``the contractor was'' and adding ``the contractor or subcontractor
was'' in its place;
0
j. In the introductory paragraph of paragraph (f)(5) by removing
``contractors arising from either'' and adding ``contractors or
subcontractors arising from either--'' in its place;
0
k. In paragraph (f)(5)(i) by removing ``an agreement'' and adding ``An
agreement'' in its place;
0
l. In paragraph (f)(5)(ii) by removing ``dual sourcing'' and adding
``Dual sourcing'' and removing ``except when'' and adding ``except
when--'' in its place;
0
m. In paragraph (f)(5)(ii)(A) by removing ``incurred as'' and adding
``Incurred as'', removing ``contract or'' and adding ``contract or
subcontract, or'' in its place, and removing ``contracting officer,
or'' and adding ``contracting officer; or'' in its place;
0
n. In paragraph (f)(5)(ii)(B) by removing ``when agreed'' and adding
``When agreed'' in its place;
0
o. In paragraph (f)(6) by removing ``contract.'' and adding ``contract
or subcontract.'' in its place;
0
p. In paragraph (f)(7) by removing ``the contractor is'' and adding
``the contractor or subcontractor is'' in its place;
0
q. In paragraph (g) by removing ``contractor separately.'' and adding
``contractor or subcontractor separately.'' in its place, and removing
``contractor to repay all'' and adding ``contractor or subcontractor to
repay all'' in its place.
0
17. Amend section 31.603 by revising paragraph (b)(15) to read as
follows:
31.603 Requirements.
* * * * *
(b) * * *
(15) Unless any of the exceptions at 31.205-47(c) or (d) apply,
costs incurred by a contractor or subcontractor in connection with any
criminal, civil, or administrative proceedings that result in
dispositions described at 31.205-47(b)(1) through (5) commenced by: A
Federal, State, local, or foreign government, for a violation of, or
failure to comply with, law or regulation by the contractor or
subcontractor (including its agents or employees); a contractor or
[[Page 66228]]
subcontractor employee submitting a whistleblower complaint of reprisal
in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409; or a third party
in the name of the United States under the False Claims Act, 31 U.S.C.
3730. For any such proceeding that does not result in a disposition
described at 31.205-47(b)(1) through (5), or to which 31.205-47(c)
exceptions apply, the cost of that proceeding shall be subject to the
limitations in 31.205-47(e).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
18. Amend section 52.203-17 by--
0
a. Revising the section heading;
0
b. Removing from the introductory text ``3.908-9'' and adding ``3.906''
in its place;
0
c. Revising the date of the clause; and
0
d. Revising paragraphs (a) and (b) to read as follows:
52.203-17 Contractor Employee Whistleblower Rights.
* * * * *
Contractor Employee Whistleblower Rights (Date)
(a) This contract and employees working on this contract will be
subject to the whistleblower rights and remedies established at 41
U.S.C. 4712 and FAR 3.901 through 3.905.
(b) The Contractor shall inform its employees in writing, in the
predominant language of the workforce, of employee whistleblower
rights and protections under 41 U.S.C. 4712, as described in FAR
3.901 through 3.905.
* * * * *
0
19. Amend section 52.212-4 by revising the date of the clause; and
removing from paragraph (r) ``41 U.S.C. 4712 and''. The revised text
reads as follows:
52.212-4 Contract Terms and Conditions--Commercial Items.
* * * * *
Contract Terms and Conditions--Commercial Items (Date)
* * * * *
0
20. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(4) through (60) as paragraphs (b)(5)
through (61), respectively;
0
c. Adding a new paragraph (b)(4);
0
d. Redesignating paragraphs (e)(1)(ii) through (xxii) as paragraphs
(e)(1)(iii) through (xxiii), respectively;
0
e. Adding a new paragraph (e)(1)(ii);
0
f. Revising the date of Alternate II;
0
g. Redesignating paragraphs of Alternate II; (e)(1)(ii)(C) through (T)
as paragraphs (e)(1)(ii)(D) through (U), respectively; and
0
h. Adding a new paragraph (e)(1)(ii)(C).
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 (Date)
* * * * *
(b) * * *
__(4) 52.203-17, Contractor Employee Whistleblower Rights (Date)
(41 U.S.C. 4712)
* * * * *
(e)(1) * * *
(ii) 52.203-17, Contractor Employee Whistleblower Rights (Date) (41
U.S.C. 4712)
* * * * *
Alternate II (Date). * * *
* * * * *
(e)(1) * * *
(ii) * * *
(C) 52.203-17, Contractor Employee Whistleblower Rights (Date) (41
U.S.C. 4712)
* * * * *
0
21. Amend section 52.213-4 by revising the date of the clause and
paragraph (a)(2)(viii) 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) (Date)
(a) * * *
(2) * * *
(viii) 52.244-6, Subcontracts for Commercial Items (Date).
* * * * *
0
22. Amend section 52.244-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (c)(1)(iii) through (c)(1)(xix) as
paragraphs (c)(1)(iv) through (c)(1)(xx), respectively;
0
c. Adding a new paragraph (c)(1)(iii).
The revised and added text reads as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (Date)
* * * * *
(c)(1) * * *
(iii) 52.203-17, Contractor Employee Whistleblower Rights (Date)
(41 U.S.C. 4712) relating to whistleblower protections, if the
subcontract is over the simplified acquisition threshold; this clause
does not apply to contracts of DoD, NASA, the Coast Guard, or
applicable elements of the intelligence community-see FAR 3.900(a).
* * * * *
[FR Doc. 2018-27493 Filed 12-21-18; 8:45 am]
BILLING CODE 6820-EP-P
