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Holding the Government Accountable

DoD IG Narrowing Whistleblower Protections

The Department of Defense (DoD) Inspector General (IG) has recently narrowed the list of people to whom a whistleblower can report misconduct, and thereby be protected from reprisals. Specifically, the DoD IG is ignoring the fact that there is a broad category of government employees who conduct contract management and are therefore people to whom whistleblowers can make protected disclosures.

In 2010, John Edwards, a Science Applications International Corporation (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.

Dr. 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 Dr. 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, alleging that SAIC terminated him as a result of his decision to bring to light the alleged misconduct by co-workers. Because Edwards disclosed this misconduct to DoD employees who were involved in oversight or management of the contract, he should be afforded the whistleblower protections against reprisal as outlined at 10 U.S.C. § 2409.

Unfortunately, Edwards’ complaint was denied by the IG. 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 Dr. Yarmus was not an employee responsible for “contract oversight and management,” ignoring the fact that protected disclosures can be made to DoD employees responsible for “oversight or management.” (Emphasis added) Dr. 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. This narrow interpretation of the law is inconsistent with the law and the intent of Congress. In fact, it is exactly the type of situation Congress wanted to avoid when it improved the statute in 2008 (see Sec. 846) to expand protected disclosures to DoD officials responsible for contract management functions. In 2013 (see Sec. 844), Congress further expanded the law to include making a protected disclosure to a “management official or other employee of the contractor.”

The DoD IG should reconsider the facts in this case and provide Edwards, and similarly situated whistleblowers, with the protections provided by law. The government should be incentivizing whistleblowing, not making it more difficult and hazardous.