Hill Encourages DoD IG to Protect Contractor Whistleblowers

Some of the leading Members of Congress recently echoed the Project On Government Oversight by encouraging Department of Defense (DoD) Office of Inspector General (IG) Jon T. Rymer to reconsider his office’s interpretation of a contractor whistleblower provision within the National Defense Authorization Acts of 2008 (Sec. 846) and 2013 (Sec. 844). On September 18, Senators Claire McCaskill (D-MO), Ron Johnson (R-WI), Thomas Carper (D-DE), Tom Coburn (R-OK), and Carl Levin (D-MI), and Representatives Adam Smith (D-WA), Darrell Issa (R-CA), and Elijah Cummings (D-MD) sent a letter chastising Rymer. They stated that his office has an “extremely limited definition of Department of Defense personnel to whom contractor and subcontractor employees may make protected disclosures.”

POGO sent a similar letter to Rymer in May regarding an issue within the Science Applications International Corporation (SAIC). In 2010, John Edwards, an SAIC employee, became aware of possible misconduct by co-workers regarding overbilling on a federal government contract. Edwards reported the misconduct to senior managers at SAIC, but no action was taken to correct the problem.

Generally, a complaint such as this would be directed to the Contract Officer’s Technical Representative (COTR)—in this case Brannan Chisolm—but Edwards was concerned that Chisolm may have been involved in another questionable contract arrangement and therefore would not be responsive to his overbilling concerns. So Edwards went to Mike Boller, who is Chisolm’s supervisor, and Dr. Moses Yarmus, who had contract management responsibilities for the contract on which the alleged overbilling took place.

Yarmus thought enough of the allegations to state in an email to Chisolm that hours not worked on the contract should not be reimbursed, and he requested “immediate corrective actions by SAIC.” Chisolm responded to Yarmus, stating that he “forwarded” the overbilling concerns to the SAIC project managers “for action up to & including removal” of the contractor employees for whom the company overbilled.

Unfortunately, soon after Chisolm’s email response, Edwards was removed from all of his projects at SAIC. By the end of 2011, SAIC terminated Edwards, who had never received a negative performance review.

Edwards subsequently filed a complaint with the DoD IG under 10 U.S. Code § 2409, which states that an employee of a contractor may not be discharged or demoted in reprisal for disclosing misconduct to several different parties, including “[a]n employee…responsible for contract oversight or management.” [Emphasis added] Edwards alleged that SAIC terminated him as a result of his decision to bring to light the alleged misconduct by co-workers. Unfortunately, the IG denied Edwards’ complaint. The whistleblower reprisal investigation report stated that Edwards’ disclosures to Boller and Yarmus were not a “protected disclosure” because they were not made to authorized contracting officials. The investigation report went further, stating that Yarmus was not an employee responsible for “contract oversight and management.” [Emphasis added] Yet Yarmus was involved in the daily management of the contract, and Boller supervised Chisolm, the COTR. In either case, they each had management responsibilities involving the contract in question.

Essentially, the IG report concluded that the only person to whom this misconduct should have been reported was the COTR, even if Edwards believed the COTR was part of the misconduct. In May, POGO argued in its letter that this narrow interpretation of the law was inconsistent with the law and the intent of Congress.

In their own letter, the Members of Congress have confirmed that Rymer’s interpretation of the law differed from Congress’s original intention. The letter candidly states:

There is no rational basis which supports the view that an “employee responsible for contract management or oversight” is limited to only two people on any given contract and DCMA.

We would expect that as an agency with significant oversight responsibilities it would be in the interest of the Office of Inspector General to be more generous, not less, in its interpretation of who is responsible for contract oversight at the Department of Defense.

The Members of Congress asked the IG to review its interpretation and implementation of the law “to ensure that it is consistent with protecting contractor and subcontractor employees from retaliation,” and requested a report on individual cases of retaliation no later than October 17.

POGO commends the Members of Congress for their bipartisan attention to this important issue. We hope that Inspector General Rymer will take heed and reinterpret the law to provide whistleblowers such as John Edwards with the protections provided by law.