POGO Praises Contractor-Whistleblower Protection Proposal

By Neil Gordon | Filed under letter | February 25, 2019

General Services Administration
Regulatory Secretariat Division (MVCB)
1800 F Street NW, 2^nd Floor
Washington, DC 20405

ATTN: Lois Mandell
Submitted via Regulations.gov

Subject: FAR Case 2017–005

Dear Ms. Mandell,

The Project On Government Oversight (POGO) provides the following public comment regarding FAR Case 2017–005, “Federal Acquisition Regulation: Whistleblower Protection for Contractor Employees."¹ POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

The Federal Acquisition Regulatory (FAR) Council (comprised of the Department of Defense, General Services Administration, and NASA) is proposing to amend the Federal Acquisition Regulation to implement a law that made permanent a pilot program enhancing whistleblower protections for civilian agency contractor employees.² Those enhancements extended retaliation protections to employees of subcontractors, expanded the list of entities to which whistleblowers can make disclosures, clarified agencies’ responsibilities for ensuring contractor and subcontractor employees are aware of their rights and for handling retaliation complaints, and established a clearly defined legal process and set of remedies for victims of retaliation.³

POGO supports the proposed rule. Whistleblowers are a critical part of the government’s checks-and-balances system. Since 1986, whistleblowers have helped the government and taxpayers recover over $42 billion under the False Claims Act.⁴ The proposed rule leaves intact the enhancements established by the pilot program. In doing so, it will help ensure that contractor and subcontractor employees are informed of their rights and are not deterred from coming forward with claims of mismanagement, waste of federal funds and resources, abuse of authority, dangers to public health and safety, and violations of laws, rules, and regulations during all phases of the contracting process.

In 2017, the Government Accountability Office reported there were deficiencies in the pilot program, finding, for example, that the agencies must do a better job of communicating to contractors their new obligations under the program.⁵ Nevertheless, we are pleased with the FAR Council’s proposed rule. It is a major step forward in protecting those who are best positioned to expose problems that, if left unaddressed, could result in the loss of billions of dollars, endanger public health, or even jeopardize our national security.

If you have any questions, I can be reached at [email protected] or (202) 347-1122.

Sincerely,

Neil Gordon
Investigator

1 83 Fed. Reg. 66223 (proposed December 26, 2018). https://www.federalregister.gov/documents/2018/12/26/2018-27493/federal-acquisition-regulation-whistleblower-protection-for-contractor-employees (Downloaded February 25, 2019) 2 The pilot program was established in January 2013 by Section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) and was made permanent in December 2016 by Public Law 114-261. 3 41 U.S.C § 4712 4 Department of Justice, Civil Division, “Fraud Statistics – Overview, October 1, 1986 - September 30, 2018.”https://www.justice.gov/civil/page/file/1080696/download (Downloaded February 22, 2019) 5 Government Accountability Office, Contractor Whistleblower Protections Pilot Program: Improvements Needed to Ensure Effective Implementation, GAO-17-227, March 2017. https://www.gao.gov/assets/690/683692.pdf (Downloaded February 22, 2019)