Contractor Whistleblower Protections Pilot Program:

Improvements Needed to Ensure Effective Implementation

GAO-17-227: Published: Mar 2, 2017. Publicly Released: Mar 2, 2017.

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MakM@gao.gov

 

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Whistleblowers play an important role in safeguarding the federal government against fraud, waste, and abuse. In 2013, a pilot program expanded the whistleblower rights of contractors at civilian agencies against reprisal (such as firing or demotion). For example, the program expanded the persons and entities to which a whistleblower can disclose misconduct.

However, we found that some agencies did not forward investigations to the appropriate authorities, and that some contractors were unaware of the pilot program. We recommended improving the program's policies and guidance, as well as better communicating with contractors.

 

Disposition of 127 Pilot Program Reprisal Complaints Received by Offices of Inspector(s) General at 14 Executive Departments from July 1, 2013 to December 31, 2015

Pie chart showing how 127 pilot program reprisal complaints were handled.

Pie chart showing how 127 pilot program reprisal complaints were handled.

Additional Materials:

Contact:

Marie A. Mak
(202) 512-4841
MakM@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

The Whistleblower Protections Pilot Program (pilot program) provides enhanced legal protections to contractor employees who believe that they have experienced reprisal as a result of disclosing certain wrongdoings. Among other enhancements, the act expanded the persons and entities to which a whistleblower could disclose wrongdoing and identified which office within an agency has responsibility for handling complaints. For example, under the pilot program, when the Office of Inspector General (OIG) receives a complaint, it must determine whether a complaint is covered by the pilot program and if covered, conduct an investigation and submit the findings to the agency head, complainant, and contractor. The 14 selected departments that GAO reviewed reported receiving an estimated 1,560 whistleblower reprisal complaints from July 1, 2013, through December 31, 2015. Of these complaints, 127 were submitted by contractor, subcontractor, and grantee employees under the pilot program. The 14 OIGs investigated 44 of the 127 complaints but did not find that reprisal had occurred in any of them. The complaints not investigated by the OIGs were excluded for a variety of reasons, such as the complaint was deemed to be frivolous or was being decided by another judicial authority.

GAO's in-depth review of four selected departments' implementation of the pilot program found various opportunities for improvement. Specific details follow:

  • The pilot program requires findings of investigated reprisal complaints to be forwarded to several entities, including to the agency head for a determination of whether reprisal occurred and, as of December 2015, to the head of the contracting activity. However, at two of the four departments reviewed, the OIGs either did not forward their investigation findings to the appropriate entities or did not forward findings in the necessary format because, according to OIG officials, they were unclear about how to execute the requirement. As a result, at these two departments, the agency heads did not make the determination of whether reprisal occurred as required by the pilot program.
  • Contracting officers must insert the required Federal Acquisition Regulation (FAR) whistleblower clause to be inserted into contracts exceeding the simplified acquisition threshold, which is generally $150,000, as a method to communicate with contractors about pilot program requirements. However, while the four selected departments reported that they inserted the clause into the required contracts, GAO found new contracts awarded during the pilot program's timeframe that did not include the required clause. Without effective internal control policies, agencies may continue to omit the required clause.
  • Some contractors GAO spoke with were unaware of their obligations under the pilot program. Officials from all four departments reported taking no additional action to communicate to contractors their responsibilities to inform employees of their rights under the pilot program. This is inconsistent with federal internal control standards for communication. Without actions to help contractors fully understand their responsibilities under the pilot program, the departments do not have assurance that contractor employees are also aware of the protections afforded by the pilot program legislation.

Why GAO Did This Study

Whistleblowers play an important role in safeguarding the federal government against fraud, waste, abuse, and mismanagement. The National Defense Authorization Act for Fiscal Year 2013 introduced a pilot program to expand whistleblower rights against reprisal for executive agencies' contractors, subcontractors, and grantee employees. Also, in 2013, the FAR was amended to require agencies to insert a contract clause to ensure contractors communicate rights to their employees for certain contracts.

The act also contained a provision for GAO to report on the status of the pilot program. This report: (1) describes the results of the whistleblower pilot program across 14 selected executive departments from July 1, 2013, to December 31, 2015 and (2) assesses the extent to which four departments implemented the pilot program. GAO analyzed survey data from 14 executive departments, which are a subset of all entities covered by the legislation; selected four departments based on high and low contract funds awarded to conduct a more detailed review of the pilot program implementation; interviewed agency officials and contractors; and reviewed a non-generalizable sample of contracts included in the pilot program.

What GAO Recommends

GAO is making specific recommendations to the four selected departments to improve whistleblower protections policies and guidance and communication with contractors. The departments agreed with the recommendations and have taken or identified actions to address the recommendations.

For more information, contact Marie A. Mak at (202) 512-4841 or MakM@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In January 2017, in response to this recommendation, DHS updated its directive to instruct that a whistleblower reprisal complaint investigation report of findings is to be sent to the Head of Contracting Activity, and further pointed users to a website that would specifically help them identify who that person is for each component within DHS. As a result of this update to the directive, OIG staff will be better able to ensure that the report of investigations findings will be forwarded to required entities.

    Recommendation: The Inspectors General of Commerce, Homeland Security, Interior, and State should develop or clarify existing guidance on the implementation of the pilot program. For example, the guidance should identify specific pilot program processes such as levels of review during an investigation, and where the findings of investigations are to be reported.

    Agency Affected: Department of Homeland Security: Office of Inspector General

  2. Status: Closed - Implemented

    Comments: In response to this recommendation, in October 2017, the Department of Commerce Office of Inspector General updated it's Case Management guidance to include a detailed description of investigation requirements consistent with the requirements in the law. This update will help ensure all whistleblower cases are fully investigated under the requirements of the law.

    Recommendation: The Inspectors General of Commerce, Homeland Security, Interior, and State should develop or clarify existing guidance on the implementation of the pilot program. For example, the guidance should identify specific pilot program processes such as levels of review during an investigation, and where the findings of investigations are to be reported.

    Agency Affected: Department of Commerce: Office of the Inspector General

  3. Status: Closed - Implemented

    Comments: In response to this recommendation, Interior office of Inspector General updated its policy with guidance that details the specific requirements of the whistleblower protections. This will help ensure that program requirements are followed during whistleblower investigations.

    Recommendation: The Inspectors General of Commerce, Homeland Security, Interior, and State should develop or clarify existing guidance on the implementation of the pilot program. For example, the guidance should identify specific pilot program processes such as levels of review during an investigation, and where the findings of investigations are to be reported.

    Agency Affected: Department of the Interior: Office of the Inspector General

  4. Status: Closed - Implemented

    Comments: In January 2017, as a result of this recommendation, State's Office of Inspector General updated its guidance to specify that the OIG will make efforts to forward investigations to the agency head in a way that accommodates the agency head, possibly to include designating the reports as action memos, which signal to the agency head that action should be taken. This will help ensure that the agency head is aware that they have a responsibility to make a final determination of whether reprisal occurred.

    Recommendation: The Inspectors General of Commerce, Homeland Security, Interior, and State should develop or clarify existing guidance on the implementation of the pilot program. For example, the guidance should identify specific pilot program processes such as levels of review during an investigation, and where the findings of investigations are to be reported.

    Agency Affected: Department of State: Office of the Inspector General

  5. Status: Closed - Implemented

    Comments: In response to GAO's recommendation, the department of Homeland Security included a review of whether the whistleblower FAR clause is included in contracts as part of its On-Site file reviews and includes specific instructions for the review in it's Assessment Guide. On-Site file reviews are conducted every three years at each agency within the department. Further, in November 2017, DHS developed and held a mandatory training for contract officers that included an overview of whistleblower rights and protections for contractors and subcontractors. These steps will help ensure the whistleblower FAR clause will be included in contracts as required.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that the FAR clause 52.203-17 is inserted in new contracts and major modifications as appropriate.

    Agency Affected: Department of Homeland Security

  6. Status: Closed - Implemented

    Comments: In response to this recommendation, Commerce included a review of selected contracts to determine if all mandatory and applicable clauses were noted, including FAR clause 52.203-17 during its 2017 and 2018 Acquisition Management Review Process. This annual review will help ensure the whistleblower clause is included in contracts as required.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that the FAR clause 52.203-17 is inserted in new contracts and major modifications as appropriate.

    Agency Affected: Department of Commerce

  7. Status: Closed - Implemented

    Comments: In providing comments on this report, Interior concurred with this recommendation. To implement this recommendation, Interior updated it's acquisition management file review to incorporate a review of whether a contract includes FAR clause 52.203-17. This will help ensure that the whistleblower FAR clause will be included in contracts as required.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that the FAR clause 52.203-17 is inserted in new contracts and major modifications as appropriate.

    Agency Affected: Department of the Interior

  8. Status: Open

    Comments: In providing comments on this report, State concurred with this recommendation. In August 2018, officials reported they are in the process of adding the required contract clause to templates, but have not yet taken necessary steps to ensure the clause is inserted in all contracts.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that the FAR clause 52.203-17 is inserted in new contracts and major modifications as appropriate.

    Agency Affected: Department of State

  9. Status: Closed - Implemented

    Comments: To address this recommendation, the Department of Homeland Security has issued guidance on June 30, 2017 which requires contracting officers to include the appropriate clause (either FAR 52.203-17 or 52.212-4) into all contracts existing prior to September 30, 2013 that also have one year or more performance period remaining.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials can determine whether a modification is major and the applicability of the FAR clause, and whether they are making their best efforts to include the clause into existing contracts during major modifications.

    Agency Affected: Department of Homeland Security

  10. Status: Closed - Implemented

    Comments: In response to this recommendation, in September 2017 Commerce issued a class deviation specifying what contract modifications would be considered major, specifically that relevant contracts with a year or more of performance remaining, as well as other criteria, that should be considered. This added clarity of when a contract modification is considered major will help ensure contract officers are including the clause as appropriate.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials can determine whether a modification is major and the applicability of the FAR clause, and whether they are making their best efforts to include the clause into existing contracts during major modifications.

    Agency Affected: Department of Commerce

  11. Status: Closed - Implemented

    Comments: In response to this recommendation, in October 2017, the Department of Interior issued updated guidance to contracting officers specifying when to include the whistleblower FAR clause in modifications. This additional guidance will help contracting officers determine when to include the clause when making major modifications.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials can determine whether a modification is major and the applicability of the FAR clause, and whether they are making their best efforts to include the clause into existing contracts during major modifications.

    Agency Affected: Department of the Interior

  12. Status: Open

    Comments: In providing comments on this report, State concurred with this recommendation. As of August 2018, officials reported they are taking steps to close the recommendation, but have not yet provided support for how this will be completed.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials can determine whether a modification is major and the applicability of the FAR clause, and whether they are making their best efforts to include the clause into existing contracts during major modifications.

    Agency Affected: Department of State

  13. Status: Closed - Implemented

    Comments: To address this recommendation, the Department of Homeland Security issued guidance on June 30, 2017 instructing contracting officers to contact the contractor within 60 days to seek written confirmation from the contractor that they and their subcontractors, as applicable, have informed their employees in writing, in the predominant language of the workforce, of whistleblower rights and protections.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials communicate with contractors and subcontractors to help ensure employees are informed about the requirements and protections provided by the whistleblower protection pilot program.

    Agency Affected: Department of Homeland Security

  14. Status: Closed - Implemented

    Comments: In response to this recommendation, in June 2017, the Department of Commerce's Office of Acquisition Management issued an Acquisition Notice encouraging contracting officers to communicate the contractor employee whistleblower protections to contractors and, to the extent possible, subcontractors. This will help ensure contractors are made aware of the requirement to communicate whistleblower protections to their employees.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials communicate with contractors and subcontractors to help ensure employees are informed about the requirements and protections provided by the whistleblower protection pilot program.

    Agency Affected: Department of Commerce

  15. Status: Closed - Implemented

    Comments: In response to this recommendation, the Department of Interior issued guidance referred to as an Acquisition Policy Flash that encourages contracting officers to take additional action, to the maximum extent possible, to communicate the requirement for contractors to inform employees of their whistleblower rights. The guidance also instructed contracting officers to document that contractors have implemented this requirement, such as through e-mail confirmation.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials communicate with contractors and subcontractors to help ensure employees are informed about the requirements and protections provided by the whistleblower protection pilot program.

    Agency Affected: Department of the Interior

  16. Status: Open

    Comments: In providing comments on this report, State concurred with this recommendation. As of August 2018, officials reported they are taking steps to address this recommendation, but have not provided support for how this will be completed.

    Recommendation: The Secretaries of Commerce, Homeland Security, Interior, and State should develop policies and processes to help ensure that contracting officials communicate with contractors and subcontractors to help ensure employees are informed about the requirements and protections provided by the whistleblower protection pilot program.

    Agency Affected: Department of State

 

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