Section 827 of the 2013 National Defense Authorization Act (“NDAA”), “Enhancement of Whistleblower Protections for Contractor Employees,” enacted some key changes to the protections provided to whistleblowers. By the terms of the statute, these laws became effective July 1, 2013.1 The NDAA required that the DFARS and NASA supplemental regulations to the FAR be amended to implement these changes. While these changes are in process, they have not yet been implemented.2
Following are three important changes:
- The law is now explicitly extended to subcontractors. In addition, both contractors and subcontractors will be obligated to inform their employees (in writing in the native language of the workforce) of the new protections afforded to whistleblowers.
- Protected disclosures now include those relating to an “abuse of authority.” The Act goes on to define the term “abuse of authority” as “an arbitrary exercise of authority that is inconsistent with the mission of the Department of Defense [or NASA] or the successful performance of a Department [or Administration] contract or grant.”
- The whistleblower now has additional avenues for making the disclosure. The list now includes a court or grand jury and any “management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.”
While the precise effect of these “enhancements” remains to be seen, federal contractors and subcontractors should be aware of their obligations and restrictions relating to whistleblowing employees, especially since the number of whistleblowers and qui tam suits is rising. Because of the changes, more employers are covered and additional disclosures are protected due to the expansion of the subject matter of covered disclosures and to whom they may be made.
1 Specifically, it applies to all contracts awarded on or after this date, task orders entered into on or after this date if the contract was entered into on or before this date, and all contracts that are subsequently modified to include this clause. These changes apply only to those contracting with the Department of Defense and NASA. Note that the “intelligence community” is specifically exempted from the section.
2 See DFARS case 2013-D010.