Federal Acquisition Regulation; Pilot Program for Enhancement of Contractor Employee Whistleblower Protections, 75911-75913 [2015-30459]
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Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations
22.1305). The contractor and
subcontractor must file VETS–4212,
Federal Contractor Veterans’
Employment Report (see ‘‘VETS–4212
Federal Contractor Reporting’’ and
‘‘Filing Your VETS–4212 Report’’ at
https://www.dol.gov/vets/vets4212.htm).
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
8. Amend section 52.212–5 by
revising the date of the clause and
paragraphs (b)(31) and (e)(1)(viii) to read
as follows:
■
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
Contract Terms and Conditions Required To
Implement Statutes or Executive Orders—
Commercial Items (FEB 2016)
*
*
*
*
*
Employment Reports on Veterans (FEB 2016)
(a) Definitions. As used in this clause,
‘‘active duty wartime or campaign badge
veteran,’’ ‘‘Armed Forces service medal
veteran,’’ ‘‘disabled veteran,’’ ‘‘protected
veteran,’’ and ‘‘recently separated veteran,’’
have the meanings given in FAR 22.1301.
(b) * * *
(1) The total number of employees in the
contractor’s workforce, by job category and
hiring location, who are protected veterans
(i.e., active duty wartime or campaign badge
veterans, Armed Forces service medal
veterans, disabled veterans, and recently
separated veterans);
(2) The total number of new employees
hired during the period covered by the
report, and of the total, the number of
protected veterans (i.e., active duty wartime
or campaign badge veterans, Armed Forces
service medal veterans, disabled veterans,
and recently separated veterans); and
*
*
*
*
*
(e)(1) * * *
(viii) 52.222–37, Employment Reports on
Veterans (FEB 2016) (38 U.S.C. 4212).
(c) The Contractor shall report the above
items by filing the VETS–4212 ‘‘Federal
Contractor Veterans’ Employment Report’’
(see ‘‘VETS–4212 Federal Contractor
Reporting’’ and ‘‘Filing Your VETS–4212
Report’’ at https://www.dol.gov/vets/
vets4212.htm).
*
*
(b) * * *
(31) 52.222–37, Employment Reports on
Veterans (FEB 2016) (38 U.S.C. 4212).
75911
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005–85; FAR Case 2013–015; Item
IV; Docket 2013–0015, Sequence 1]
RIN 9000–AM56
Federal Acquisition Regulation; Pilot
Program for Enhancement of
Contractor Employee Whistleblower
Protections
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial Items)
(FEB 2016)
(a) * * *
(2) * * *
(viii) 52.244–6, Subcontracts for
Commercial Items (FEB 2016).
52.222–38 Compliance With Veterans’
Employment Reporting Requirements.
DoD, GSA, and NASA have
adopted as final, with changes, an
interim rule amending the Federal
Acquisition Regulation (FAR) to
implement a statutory pilot program
enhancing whistleblower protections for
contractor employees.
DATES: Effective: December 4, 2015.
FOR FURTHER INFORMATION CONTACT: Ms.
Cecelia L. Davis, Procurement Analyst,
at 202–219–0202, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAC 2005–85, FAR
Case 2013–015.
SUPPLEMENTARY INFORMATION:
*
I. Background
*
■
*
*
*
*
*
*
*
*
*
9. Amend section 52.213–4 by
revising the date of clause and
paragraphs (a)(2)(viii) and (b)(1)(vi) to
read as follows:
■
*
*
*
*
*
*
*
*
*
*
*
10. Amend section 52.222–37 by—
a. Revising the date of the clause;
b. Revising paragraphs (a), (b)(1),
(b)(2), and (c);
■ c. Removing from paragraph (d)
‘‘submit VETS–100A’’ and adding ‘‘file
VETS–4212’’ in its place; and
■ d. Removing from paragraph (f)
‘‘VETS–100A’’ and adding ‘‘VETS–
4212’’ in its place.
The revisions read as follows.
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52.222–37
Veterans.
*
*
*
*
*
Compliance With Veterans’ Employment
Reporting Requirements (FEB 2016)
*
*
*
*
*
52.244–6
Items.
*
*
Subcontracts for Commercial
*
*
*
Subcontracts for Commercial Items
(FEB 2016)
*
*
*
*
*
(c)(1) * * *
(viii) 52.222–37, Employment Reports on
Veterans (FEB 2016) (38 U.S.C. 4212).
*
*
*
*
*
[FR Doc. 2015–30458 Filed 12–3–15; 8:45 am]
BILLING CODE 6820–EP–P
Employment Reports on
*
*
12. Amend section 52.244–6 by
revising the date of the clause and
paragraph (c)(1)(viii) to read as follows.
(b) * * *
(1) * * *
(vi) 52.222–37, Employment Reports on
Veterans (FEB 2016) (38 U.S.C. 4212)
(Applies to contracts of $150,000 or more).
■
■
■
*
11. Amend section 52.222–38 by
revising the date of the provision and
removing from the last sentence
‘‘submitted the most recent VETS–
100A’’ and adding ‘‘filed the most
recent VETS–4212’’ in its place.
The revision reads as follows.
*
*
*
■
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
*
*
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*
15:22 Dec 03, 2015
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SUMMARY:
DoD, GSA, and NASA published an
interim rule in the Federal Register at
78 FR 60169 on September 30, 2013, to
implement a four-year pilot program to
enhance the existing whistleblower
protections for contractor employees at
FAR subpart 3.9. The pilot program is
mandated by section 828, entitled ‘‘Pilot
Program for Enhancement of Contractor
Employee Whistleblower Protections,’’
of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2013
(Pub. L. 112–239, enacted January 2,
2013).
Paragraph (a) of section 828 adds to
title 41 a new section 4712 that contains
the elements of the pilot program,
which took effect by operation of law on
July 1, 2013, and is effective through
January 1, 2017. Paragraph (c) of section
828 suspends the pre-existing
whistleblower protections in 41 U.S.C.
4705 ‘‘(w)hile section 4712 of this title
is in effect . . .’’ (i.e., from July 1, 2013
through January 1, 2017). Accordingly,
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75912
Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations
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the interim rule created a new FAR
section 3.908 to implement section
4712. The rule leaves intact FAR
sections 3.901 through 3.906, which
implement the pre-existing
whistleblower protections in 41 U.S.C.
4705, but suspends their applicability
during the period when the pilot is in
effect. Absent Congressional action,
these authorities will automatically be
reinstated when the pilot authority
sunsets.
The interim rule also clarified that the
pilot authority applies to title 41
agencies and is inapplicable to DoD,
NASA, and the Coast Guard. The latter
three agencies are covered by 10 U.S.C.
2409, which was amended by section
827 of the NDAA to impose permanent
requirements very similar to the
temporary requirements of the pilot
program established in title 41.
Section 4712 and its implementing
regulations (1) protect contractor or
subcontractor employees against
reprisal for activities protected by FAR
3.908–3(a) and (2) do not change any
right or remedy otherwise available to
the employee.
FAR 3.907, which addresses
whistleblower protections under the
American Recovery and Reinvestment
Act of 2009, was unaffected by this rule.
One respondent submitted comments
on the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (Councils)
reviewed the response received in
development of the final rule.
Only one response was received. A
discussion of the response is provided
as follows:
Comment: The respondent stated that
FAR 3.908 ‘‘violates a core tenet of any
legitimate law by failing to include any
due process rights for the accused,’’ but
notes also that the statute contains no
due process rights for the accused. The
respondent urges revision of the interim
rule to reactivate current FAR 3.905
during the pilot program.
Response: The interim rule provides
at FAR 3.908–5 that investigation of
complaints by the Inspector General
will be in accordance with 41 U.S.C.
4712(b).
In general, FAR 3.905 is based on 41
U.S.C. 4705. Paragraph (c) of section 828
of the National Defense Authorization
Act for Fiscal Year 2013, upon which
this rule is based, suspends the preexisting whistleblower protections in 41
U.S.C. 4705 ‘‘(w)hile section 4712 of
this title is in effect . . .’’ However, the
additional due process rights in current
FAR 3.905(c), (d) and (e) were not based
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on 41 U.S.C. 4705, and have been
incorporated in the final rule at 3.908–
5(b), (c), and (d).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared
a Final Regulatory Flexibility Analysis
(FRFA) consistent with the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. The
FRFA is summarized as follows:
The interim rule, upon which the final rule
is issued with change, was initiated to amend
the FAR to implement a four-year pilot
program to enhance the existing
whistleblower protections for contractor
employees at FAR subpart 3.9. The pilot
program is mandated by section 828, entitled
‘‘Pilot Program for Enhancement of
Contractor Employee Whistleblower
Protections,’’ of the National Defense
Authorization Act (NDAA) for Fiscal Year
(FY) 2013 (Pub. L. 112–239, enacted January
2, 2013). The law establishes a pilot program
for the period ending on January 1, 2017.
Based on a reading of 41 U.S.C. 3101(c) and
sections 827 and 828 of the NDAA for FY
2013, the pilot program will apply to all
Federal agencies except DoD, NASA, and the
Coast Guard. Except for contracts funded
under the American Recovery and
Reinvestment Act of 2009 (see 3.907), the
current protections for contractor
whistleblowers are established in law at 41
U.S.C. 4705; paragraph (c) of section 828
suspends 41 U.S.C. 4705 ‘‘(w)hile section
4712 of this title is in effect . . .’’ Paragraph
(a) of section 828 adds the new section 4712
to title 41 that contains the elements of the
pilot program and is effective until January
1, 2017.
With the exception of DoD, NASA, and the
Coast Guard, as well as any element of the
intelligence community, as defined in section
3(4) of the National Security Act of 1947 (50
U.S.C. 401(a)(4)), the pilot program applies to
the employees of Government contractors
and their subcontractors. DoD, GSA, and
NASA do not expect the pilot program,
which applies to the majority of entities
doing business with the Government
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regardless of business size, to have a
significant economic impact specific to small
entities. The following information is
provided as a means of estimating the overall
numbers of entities to which the rule will
apply. Based on Federal Procurement Data
System reporting data, in Fiscal Year 2012,
a Government-wide total of 273,970 new
awards that exceeded the simplified
acquisition threshold were made to small
businesses and other than small businesses
by agencies other than DoD, NASA, and the
Coast Guard. Of that total, 95,436 new award
actions were made to small business entities.
The remaining 178,534 award actions were
made to other than small businesses.
A new contract clause is provided for the
pilot program, in accordance with paragraph
(d) of section 4712. The clause informs
offerors that employees working on any
contract awarded are subject to the
whistleblower rights and remedies of the
pilot program and requires the contractor
(and its subcontractors), regardless of
business size, to inform their employees in
writing of employee whistleblower rights and
protections under 41 U.S.C. 4712.
There is no requirement for small entities
to submit any information under this clause.
The rule does not duplicate, overlap, or
conflict with any other Federal rules.
There are no practical alternatives that will
accomplish the objectives of the rule.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat. The Regulatory Secretariat
has submitted a copy of the FRFA to the
Chief Counsel for Advocacy of the Small
Business Administration.
V. Paperwork Reduction Act
The final rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
Chapter 35).
List of Subject in 48 CFR Parts 3 and
52
Government procurement.
Dated: November 20, 2015.
William Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Interim Rule Adopted as Final With
Changes
Accordingly, the interim rule
amending 48 CFR parts 3 and 52, which
was published in the Federal Register at
78 FR 60169 on September 30, 2013, is
adopted as final with the following
changes:
PART 3—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
1. The authority citation for 48 CFR
part 3 continues to read as follows:
■
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Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
2. Revise section 3.908–5 to read as
follows.
■
3.908–5 Procedures for investigating
complaints.
(a) Investigation of complaints will be
in accordance with 41 U.S.C. 4712(b).
(b) Upon completion of the
investigation, the head of the agency or
designee shall ensure that the Inspector
General provides the report of findings
to—
(1) The complainant and any person
acting on the complainant’s behalf;
(2) The contractor alleged to have
committed the violation; and
(3) The head of the contracting
activity.
(c) The complainant and contractor
shall be afforded the opportunity to
submit a written response to the report
of findings within 30 days to the head
of the agency or designee. Extensions of
time to file a written response may be
granted by the head of the agency or
designee.
(d) At any time, the head of the
agency or designee may request
additional investigative work be done
on the complaint.
■ 3. Revise the section heading for
section to read as follows:
3.908–6
*
Remedies.
*
*
*
*
[FR Doc. 2015–30459 Filed 12–3–15; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 4
[FAC 2005–85; FAR Case 2015–009; Item
V; Docket No. 2015–0009, Sequence No. 1]
RIN 9000–AN12
Federal Acquisition Regulation;
Retention Periods
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
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AGENCY:
DoD, GSA, and NASA are
issuing a final rule amending the
Federal Acquisition Regulation (FAR) to
update the Government contract file
retention periods to conform with the
retention periods in the National
SUMMARY:
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15:22 Dec 03, 2015
Jkt 238001
Archives and Records Administration
(NARA) General Records Schedule.
DATES: Effective: January 4, 2016.
FOR FURTHER INFORMATION CONTACT: Mr.
Curtis E. Glover, Sr., Procurement
Analyst, at 202–501–1448, for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at 202–501–4755. Please cite
FAC 2005–85, FAR Case 2015–009.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are issuing a
final rule to update the Government file
retention periods identified at FAR
4.805, Government contract files, to
conform with the retention periods in
the revised NARA General Records
Schedule (GRS) 1.1, Financial
Management and Reporting Records
notice, which was published in the
Federal Register at 79 FR 54747 on
September 12, 2014. The Financial
Management and Reporting Records can
be found at https://www.archives.gov/
records-mgmt/grs.html.
NARA has undertaken a 5-year project
to redraft the entire GRS to reflect the
realities of current Government business
practices and make it more useful in a
world where almost all record keeping
is electronic. NARA is charged with
oversight of how all records of the
Federal Government are managed and
retained for business use and historical
research. Its research on writing a new
schedule for Financial Management and
Reporting Records (GRS 1.1) was carried
out under that authority.
NARA’s research has shown that
many agencies believe the break
between procurements over and under
the simplified acquisition threshold (6
years, 3 months versus 3 years
retention) is no longer useful to them.
NARA polled records management
personnel at numerous agencies
regarding records created in largely
electronic acquisition systems. It also
examined and tallied statistics regarding
some 675,000 boxes of hard-copy
records stored in the Federal Records
Center system. As such, NARA
eliminated the distinction between over
and under the simplified acquisition
threshold for purposes of record keeping
and unified all retention under a single
figure of 6 years under GRS 1.1, item
010.
The retention periods for Government
contract records at FAR section 4.805 is
changed to conform to the revised
NARA GRS 1.1, as follows:
• Language at paragraph (a) regarding
agency procedures for contract file
disposal is removed.
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75913
• Language at paragraph (b) regarding
retention periods for acquisitions
conducted prior to July 3, 1995 is
removed.
• Language is added at a new
paragraph (c) to require agencies to
request approval from NARA through
the agency’s records officer if a shorter
retention is needed.
• In the Table at 4–1:
Æ The retention period identified for
records related to Contract Disputes
statute actions is removed; the
requirement is covered by paragraphs
numbered (1) and (8).
Æ The retention period for all
contracts and related records is changed
to 6 years after final payment.
Æ The retention period for unsolicited
proposals not accepted by the agency is
changed to be in accordance with
agency procedures.
II. Publication of This Final Rule for
Public Comment is Not Required By
Statute
‘‘Publication of proposed
regulations’’, 41 U.S.C. 1707, is the
statute which applies to the publication
of the Federal Acquisition Regulation.
Paragraph (a)(1) of the statute requires
that a procurement policy, regulation,
procedure or form (including an
amendment or modification thereof)
must be published for public comment
if it relates to the expenditure of
appropriated funds, and has either a
significant effect beyond the internal
operating procedures of the agency
issuing the policy, regulation, procedure
or form, or has a significant cost or
administrative impact on contractors or
offerors. This final rule is not required
to be published for public comment,
because it only changes the retention
periods for Government contract files.
These requirements affect only the
internal operating procedures of the
Government.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
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]]>Agencies
[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Rules and Regulations]
[Pages 75911-75913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30459]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005-85; FAR Case 2013-015; Item IV; Docket 2013-0015, Sequence 1]
RIN 9000-AM56
Federal Acquisition Regulation; Pilot Program for Enhancement of
Contractor Employee Whistleblower Protections
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA have adopted as final, with changes, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement a statutory pilot program enhancing whistleblower protections
for contractor employees.
DATES: Effective: December 4, 2015.
FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement
Analyst, at 202-219-0202, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2013-
015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 78 FR 60169 on September 30, 2013, to implement a four-year
pilot program to enhance the existing whistleblower protections for
contractor employees at FAR subpart 3.9. The pilot program is mandated
by section 828, entitled ``Pilot Program for Enhancement of Contractor
Employee Whistleblower Protections,'' of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239,
enacted January 2, 2013).
Paragraph (a) of section 828 adds to title 41 a new section 4712
that contains the elements of the pilot program, which took effect by
operation of law on July 1, 2013, and is effective through January 1,
2017. Paragraph (c) of section 828 suspends the pre-existing
whistleblower protections in 41 U.S.C. 4705 ``(w)hile section 4712 of
this title is in effect . . .'' (i.e., from July 1, 2013 through
January 1, 2017). Accordingly,
[[Page 75912]]
the interim rule created a new FAR section 3.908 to implement section
4712. The rule leaves intact FAR sections 3.901 through 3.906, which
implement the pre-existing whistleblower protections in 41 U.S.C. 4705,
but suspends their applicability during the period when the pilot is in
effect. Absent Congressional action, these authorities will
automatically be reinstated when the pilot authority sunsets.
The interim rule also clarified that the pilot authority applies to
title 41 agencies and is inapplicable to DoD, NASA, and the Coast
Guard. The latter three agencies are covered by 10 U.S.C. 2409, which
was amended by section 827 of the NDAA to impose permanent requirements
very similar to the temporary requirements of the pilot program
established in title 41.
Section 4712 and its implementing regulations (1) protect
contractor or subcontractor employees against reprisal for activities
protected by FAR 3.908-3(a) and (2) do not change any right or remedy
otherwise available to the employee.
FAR 3.907, which addresses whistleblower protections under the
American Recovery and Reinvestment Act of 2009, was unaffected by this
rule.
One respondent submitted comments on the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) reviewed the response received in
development of the final rule.
Only one response was received. A discussion of the response is
provided as follows:
Comment: The respondent stated that FAR 3.908 ``violates a core
tenet of any legitimate law by failing to include any due process
rights for the accused,'' but notes also that the statute contains no
due process rights for the accused. The respondent urges revision of
the interim rule to reactivate current FAR 3.905 during the pilot
program.
Response: The interim rule provides at FAR 3.908-5 that
investigation of complaints by the Inspector General will be in
accordance with 41 U.S.C. 4712(b).
In general, FAR 3.905 is based on 41 U.S.C. 4705. Paragraph (c) of
section 828 of the National Defense Authorization Act for Fiscal Year
2013, upon which this rule is based, suspends the pre-existing
whistleblower protections in 41 U.S.C. 4705 ``(w)hile section 4712 of
this title is in effect . . .'' However, the additional due process
rights in current FAR 3.905(c), (d) and (e) were not based on 41 U.S.C.
4705, and have been incorporated in the final rule at 3.908-5(b), (c),
and (d).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
The interim rule, upon which the final rule is issued with
change, was initiated to amend the FAR to implement a four-year
pilot program to enhance the existing whistleblower protections for
contractor employees at FAR subpart 3.9. The pilot program is
mandated by section 828, entitled ``Pilot Program for Enhancement of
Contractor Employee Whistleblower Protections,'' of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L.
112-239, enacted January 2, 2013). The law establishes a pilot
program for the period ending on January 1, 2017. Based on a reading
of 41 U.S.C. 3101(c) and sections 827 and 828 of the NDAA for FY
2013, the pilot program will apply to all Federal agencies except
DoD, NASA, and the Coast Guard. Except for contracts funded under
the American Recovery and Reinvestment Act of 2009 (see 3.907), the
current protections for contractor whistleblowers are established in
law at 41 U.S.C. 4705; paragraph (c) of section 828 suspends 41
U.S.C. 4705 ``(w)hile section 4712 of this title is in effect . .
.'' Paragraph (a) of section 828 adds the new section 4712 to title
41 that contains the elements of the pilot program and is effective
until January 1, 2017.
With the exception of DoD, NASA, and the Coast Guard, as well as
any element of the intelligence community, as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 401(a)(4)), the
pilot program applies to the employees of Government contractors and
their subcontractors. DoD, GSA, and NASA do not expect the pilot
program, which applies to the majority of entities doing business
with the Government regardless of business size, to have a
significant economic impact specific to small entities. The
following information is provided as a means of estimating the
overall numbers of entities to which the rule will apply. Based on
Federal Procurement Data System reporting data, in Fiscal Year 2012,
a Government-wide total of 273,970 new awards that exceeded the
simplified acquisition threshold were made to small businesses and
other than small businesses by agencies other than DoD, NASA, and
the Coast Guard. Of that total, 95,436 new award actions were made
to small business entities. The remaining 178,534 award actions were
made to other than small businesses.
A new contract clause is provided for the pilot program, in
accordance with paragraph (d) of section 4712. The clause informs
offerors that employees working on any contract awarded are subject
to the whistleblower rights and remedies of the pilot program and
requires the contractor (and its subcontractors), regardless of
business size, to inform their employees in writing of employee
whistleblower rights and protections under 41 U.S.C. 4712.
There is no requirement for small entities to submit any
information under this clause. The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no practical alternatives that will accomplish the
objectives of the rule.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy
of the FRFA to the Chief Counsel for Advocacy of the Small Business
Administration.
V. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
List of Subject in 48 CFR Parts 3 and 52
Government procurement.
Dated: November 20, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR parts 3 and 52, which
was published in the Federal Register at 78 FR 60169 on September 30,
2013, is adopted as final with the following changes:
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
1. The authority citation for 48 CFR part 3 continues to read as
follows:
[[Page 75913]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
2. Revise section 3.908-5 to read as follows.
3.908-5 Procedures for investigating complaints.
(a) Investigation of complaints will be in accordance with 41
U.S.C. 4712(b).
(b) Upon completion of the investigation, the head of the agency or
designee shall ensure that the Inspector General provides the report of
findings to--
(1) The complainant and any person acting on the complainant's
behalf;
(2) The contractor alleged to have committed the violation; and
(3) The head of the contracting activity.
(c) The complainant and contractor shall be afforded the
opportunity to submit a written response to the report of findings
within 30 days to the head of the agency or designee. Extensions of
time to file a written response may be granted by the head of the
agency or designee.
(d) At any time, the head of the agency or designee may request
additional investigative work be done on the complaint.
0
3. Revise the section heading for section to read as follows:
3.908-6 Remedies.
* * * * *
[FR Doc. 2015-30459 Filed 12-3-15; 8:45 am]
BILLING CODE 6820-EP-P
