INTEGRITY « EFFICIENCY « ACCOUNTABILITY « EXCELLENCE

CONTRACTOR REPRISAL 10 U.S.C. 2409, AS AMENDED

DEFENSE INDUSTRY INITIATIVE WEBINAR OCTOBER 20, 2014

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OVERVIEW

o Governing statutes and regulationso Amendments in the FY 2013 NDAAo Whistleblower rightso How claims must be filedo Requirements for the contractoro Intelligence Community exceptedo Standards of proofo Possible results/remedial actions

INTEGRITY « EFFICIENCY « ACCOUNTABILITY « EXCELLENCE 3

GOVERNING STATUTES AND REGULATIONSo Title 10 U.S.C. § 2409. Contractor employees: protection

from reprisal for disclosure of certain informationo DFARS Subpart 203.9—Whistleblower Protections for

Contractor Employees, Revised February 28, 2014o Inspector General Act of 1978, as amended, Section 8(c)

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EFFECTIVE DATE OF 2013 NDAA AMENDMENTS

o The amendment was signed into law on January 2, 2013 and went into effect on July 1, 2013 and applies to: All contracts awarded on or after July 1; All task orders entered on or after July 1; and All contracts awarded before July 1 that are modified to include a contract clause applying

the amendmento Not later than 1 July 2013, the DoD and NASA Supplements to the Federal Acquisition

Regulation shall implement the amendmento Major modifications to contracts awarded before implementation, shall include, if

possible, a contract clause instituting adherence to this amendment

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TITLE 10 U.S.C. § 2409AMENDMENTS IN OCHRE

o Prohibition of Reprisal An employee of a contractor or subcontractor may not be:

• Discharged • Demoted • Otherwise discriminated against as a reprisal

For disclosing information to:• Congress or a representative of a committee of Congress• An Inspector General• The Government Accountability Office• A DoD employee responsible for contract oversight or management• An authorized official of an agency or the DoJ• A court or grand jury• A management official or other employee of the contractor or subcontractor who has the responsibility to

investigate, discover, or address misconduct

The whistleblower must reasonably believe there is evidence of:• Gross mismanagement of a DoD contract or grant• Gross waste of DoD funds• Abuse of authority relating to a DoD contract or grant• Substantial and specific danger to public health or safety, or• Violation of law, rule, or regulation related to a DoD contract (including competition for or negotiation of a

contract) or grant

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REASONABLE BELIEF

o Could a similarly situated person (given the information available to the complainant at the time and having the equivalent background, training, and position) believe that the disclosed information evidences gross mismanagement, etc.

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FILING A COMPLAINT (PER THE DFARS)o DoD contractor/subcontractor employees who believe they have been

reprised against in violation of 10 U.S.C. § 2409 should file a complaint with the Defense Hotline

o The employee will be expected to provide: Name and contact info Copy of the protected disclosure and correspondence related to the disclosure A copy of the personnel action taken against them Names, titles, company, and location for the management officials alleged to have

taken the personnel action Contract number, if known; if not, enough information to identify the contract Statement of when, why and how the official knew of the disclosure Indicate how there is a linkage between the disclosure and the personnel action Identify any key witnesses

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DOD OIG MUST INVESTIGATE WHEN:

o The complaint: Has been filed within three years of the alleged personnel action Is not frivolous Alleges reprisal under the statute Has not been previously addressed in another Federal or State judicial or

administrative proceedingo Unless DoD OIG has determined that the complaint has not met

the above conditions, it must submit a report within 180 days after receiving the complaint, unless the complainant agrees to an extension of time up to 180 additional days.

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INVESTIGATIVE PROCESS

o Intakeo Fieldworko Report of Investigationo Notifications

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REQUIREMENTS FOR THE CONTRACTORo DoD contractors are currently required by section 252.203-7002 of the Defense

Federal Acquisition Regulation Supplement to inform employees, in the predominant native language of the workforce, in writing of their rights under 10 U.S.C. § 2409

o The DFARS at 252.203-7004 also requires contractors/subcontractors to display the Defense Hotline poster in common work areas and, if they maintain company websites as a method of providing information to employees, they shall display an electronic version of the poster at the website.

o The rights and remedies in 10 U.S.C. § 2409 may not be waived by any agreement, policy, or condition of employment

o Taking a personnel action against an employee is prohibited under § 2409 even if it is undertaken at the request of a Department or Administration official, unless the request takes the form of a nondiscretionary directive and is within the authority of the Department or Administration official making the request.

INTEGRITY « EFFICIENCY « ACCOUNTABILITY « EXCELLENCE 12

INTELLIGENCE COMMUNITY EXCEPTIONSo 10 U.S.C. § 2409 shall not apply to any element of the

intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

o 10 U.S.C. § 2409 shall not apply to any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure-- relates to an activity of an element of the intelligence community; or was discovered during contract, subcontract, or grantee services provided to

an element of the intelligence community

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STANDARDS OF PROOF

o Preponderance of the evidence to determine whether a protected disclosure was a contributing factor in an act of reprisal

o Clear and convincing evidence to determine that the action would have been taken absent the protected disclosure, weighing:

(1) Timing(2) Strength of the agency's evidence in support of its personnel action; (3) Existence and strength of any motive to retaliate or animus toward the

protected disclosure on the part of the agency officials who were involved in the decision; and

(4) Any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated.

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RESULTS & REMEDIAL ACTIONS

o DoD IG has 180 days to submit a report of investigationo If investigated, the head of the agency concerned, the complainant, and the

contractor/subcontractor concerned will each receive a report of findingso The head of the agency has 30 days to determine if there is sufficient basis to conclude that

there was reprisal and will deny relief or take one or more of the following actions: Order the contractor/subcontractor to take affirmative action to abate the reprisal Order the contractor/subcontractor to make the individual whole Order the contractor/subcontractor to pay for the complainant’s costs/fees for filing the

complainto If the agency head denies relief or 210 days elapse, the complainant will have exhausted their

administrative remedies and may bring a de novo action at law against the contractor/subcontractor Complainant must file for relief within 2 years of remedies being deemed exhausted

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QUESTIONS

Ms. Nilgun TolekDirector

Mr. Rich LeathermanOutreach Specialist

Whistleblower Reprisal InvestigationsDoD OIG

nilgun.tolek@dodig.mil703-602-0095richard.leatherman@dodig.mil703-604-9564