Federal Acquisition Regulation: Whistleblower Protection for Contractor Employees, 66223-66228 [2018-27493]

Download as PDF Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules XI. Statutory and Executive Order Review what actions, if any, to take to revise the MSWLF criteria. Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this is a ‘‘significant regulatory action’’ because it relates to a novel approach to nationwide landfill management. Accordingly, EPA submitted this Advance Notice of Proposed Rulemaking to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Because this document does not impose or propose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various other review requirements that apply when an agency imposes requirements do not apply to this action. Nevertheless, as part of your comments on this ANPRM, you may include any comments or information that could help the Agency: To assess the potential impact of a subsequent regulatory action on small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 272 note); to consider environmental health or safety effects on children pursuant to Executive Order 13045, entitled ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997); to consider human health or environmental effects on minority or low-income populations pursuant to Executive Order 12898, entitled ‘‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations’’ (59 FR 7629, February 16, 1994); or to consider potential impacts to state and local governments or tribal governments. List of Subjects in 40 CFR Part 258 amozie on DSK3GDR082PROD with PROPOSALS1 XII. Conclusion The information available to EPA to date suggests that liquids addition in well-managed bioreactor landfill units and/or wet landfill units may provide reductions in long-term risk and operational costs in comparison to drytomb landfills as a result of accelerated waste biodegradation. The EPA continues to gather information on this issue, including the information received in response to this ANPRM. This information will assist EPA in making a determination concerning VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control. Dated: December 14, 2018. Andrew R. Wheeler, Acting Administrator. [FR Doc. 2018–27748 Filed 12–21–18; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 3, 31, and 52 [FAR Case 2017–005; Docket No. 2017– 0005, Sequence No. 1] RIN 9000–AN32 Federal Acquisition Regulation: Whistleblower Protection for Contractor Employees Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement an act to enhance whistleblower protection for contractor employees. The rule would make permanent the protection for disclosure of certain information. It also would clarify that the prohibition on reimbursement for certain legal costs applies to subcontractors, as well as contractors. SUMMARY: Interested parties should submit comments to the Regulatory Secretariat Division at one of the addresses shown below on or before February 25, 2019 to be considered in the formulation of a final rule. ADDRESSES: Submit comments in response to FAR Case 2017–005 by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ‘‘FAR Case 2017–005’’ under the heading ‘‘Enter Keyword or ID’’ and selecting ‘‘Search.’’ Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2017–005.’’ Follow the DATES: PO 00000 Frm 00061 Fmt 4702 Sfmt 4702 66223 instructions provided on the screen. Please include your name, company name (if any), and ‘‘FAR Case 2017– 005’’ on your attached document. • Mail: General Services Administration, Regulatory-Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 20405. Instructions: Please submit comments only and cite ‘‘FAR case 2017–005’’ in all correspondence related to this case. All comments received will be posted without change to http:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite ‘‘FAR Case 2017–005.’’ SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are proposing to amend the FAR to implement an act to enhance whistleblower protection for contractor and grantee employees (Pub. L. 114–261), enacted December 14, 2016. Although the statute addresses both contractor and grantee employees, the FAR only covers contracts and contractors. Grants are covered in title 2 of the Code of Federal Regulations. This statute amends 41 U.S.C. 4712 to make permanent the pilot program for enhancement of contractor protection from reprisal for sharing certain information. The four-year pilot program was enacted on January 2, 2013, by section 828 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112–239), with an effective period of four years from the date of enactment (i.e., January 2, 2013, through January 1, 2017). Section 1091(e) of the NDAA for FY 2014 (Pub. L. 113–66) modified the effective period of the pilot program to be four years from the date that is 180 days after the date of enactment (i.e., July 1, 2013, through June 30, 2017). However, the program did not expire as it became permanent on December 14, 2016, before either of those expiration dates. This program does not apply to DoD, NASA, or the Coast Guard. This statute also clarifies that the cost principles at 10 U.S.C. 2324(k) and 41 E:\FR\FM\26DEP1.SGM 26DEP1 66224 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules U.S.C. 4304 and 4310 that prohibit reimbursement for certain legal costs apply to costs incurred by a contractor, subcontractor, or personal services contractor. Personal services contractors are contractors. Cost principles generally already apply in the same way to costs incurred by subcontractors as to costs incurred by contractors. amozie on DSK3GDR082PROD with PROPOSALS1 II. Discussion and Analysis A. Pilot program becomes permanent. This rule proposes to amend the FAR to make permanent the civilian agency contractor pilot program that implements 41 U.S.C. 4712, currently located at FAR 3.908. • FAR 3.900 is amended to delete: (1) The discussion of 41 U.S.C. 4705, the prior whistleblower statute (which had been implemented at FAR 3.901 through 3.906, but which had been suspended for the duration of the 41 U.S.C. 4712 pilot program), since the successor statute, 41 U.S.C. 4712, has been made permanent; and (2) the sunset date for 41 U.S.C. 4712. • The FAR 3.908 heading is amended to remove the designation as a pilot program, and the entire section is relocated to 3.900 through 3.906 as follows: Æ 3.908–1 = 3.900(a) Æ 3.908–2 = 3.901 (retains the definition of ‘‘authorized official of the Department of Justice’’) Æ 3.908–3 = 3.903 Æ 3.908–4 = 3.904–1 Æ 3.908–5 = 3.904–2 Æ 3.908–6 = 3.905–1 Æ 3.908–7 = 3.905–2 Æ 3.908–8 = 3.902 Æ 3.908–9 = 3.906 • There are a few minor edits in FAR 3.900(a). • FAR 3.903(a) and 3.905–1 are reformatted with vertical lists for improved clarity. • FAR 3.904–2 is amended to state that the complainant, contractor, and/or subcontractor shall submit their responses to the written report to both the head of the agency and the Office of Inspector General. • FAR clause 52.203–17, Contractor Employee Whistleblower Rights, is amended to remove the reference to section 828 of the NDAA for FY 2013, which is no longer necessary since 41 U.S.C. 4712 has been made permanent. The title of the clause is also simplified. • Agencies will use FAR clause 52.203–17 in contracts for both commercial and noncommercial items that exceed the simplified acquisition threshold. Previously, the requirement to comply with the civilian agency contractor Whistleblower statute was VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 implemented through paragraph (r) of FAR clause 52.212–4, Contract Terms and Conditions—Commercial items. • The civilian agency contractor whistleblower protections of 41 U.S.C. 4712 listed in paragraph (r) of FAR clause 52.212–4 are removed, because the clause 52.203–17 is now included in FAR clause 52.212–5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders— Commercial Items. • Coverage of 10 U.S.C. 2409 will remain in FAR clause 52.212–4(r) to cover DoD, NASA, and the Coast Guard. Only 41 U.S.C. 4712 coverage is being moved to FAR clause 52.212–5. • FAR clause 52.212–5 is amended to list FAR clause 52.203–17. • Conforming changes are made to FAR 52.244–6, Subcontracts for Commercial Items. B. Prohibition on reimbursement for legal costs. • In order to clarify that the prohibition on reimbursement for certain legal costs applies to subcontractors, as well as contractors, this rule proposes to amend FAR 31.205–47 and 31.603 to add ‘‘or subcontract’’ or ‘‘or subcontractor’’ as appropriate. The term ‘‘personal services contract’’ and ‘‘personal services contractor’’ are not added to the FAR, because they are covered by the terms ‘‘contract’’ and ‘‘contractor.’’ Also, the term ‘‘or subcontract’’ is not added at FAR 31.205–47(b)(3)(ii) and (iii), because the Government does not have the authority to rescind, void, or terminate a subcontract. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items This proposed rule does not add any new provisions or clauses, nor does it change the applicability of existing provisions or clauses to contracts at or below the SAT and contracts for the acquisition of commercial items, including COTS items. The clause at 52.203–17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, is not prescribed for use in contracts valued at or below the SAT. IV. Expected Cost Impact on the Public FAR subpart 3.9, Whistleblower Protections for Contractor Employees, was added to the FAR on September 19, 1995, to implement sections 6005 and 6006 of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103– 355) codified at 41 U.S.C. 265, recodified as 41 U.S.C. 4705. DoD, GSA, PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 and NASA published an interim rule in the Federal Register at 78 FR 60169 on September 30, 2013 (finalized on December 4, 2015, at 80 FR 75911) to implement a four-year pilot program to enhance the existing whistleblower protections, as required by section 828 of the NDAA for FY 2013, effective through January 1, 2017. This pilot program is inapplicable to DoD, NASA, and the Coast Guard, because these agencies are covered by 10 U.S.C. 2409, as amended by section 827 of the NDAA for FY 2013. Using FPDS data for FY 2016, there were about 20,800 new awards over the simplified acquisition threshold in FY 2016 by agencies other than DoD, NASA and the Coast Guard, to approximately 9,100 unique awardees. This proposed rule would implement Public Law 114–261, which makes the pilot program permanent. If Public Law 114–261 had not been enacted, the pilot program would have expired and 41 U.S.C. 4705, as implemented in 1995 at FAR 3.900–3.906, would automatically become effective again. Therefore, any impact of this rule is due to the differences between the pilot program authorized by the NDAA for FY 2013, as made permanent, and the prior whistleblower regulations implemented in 1995. The enhancements to the whistleblower regulations created by the pilot that would be made permanent by this rulemaking do not impose any substantive burden on the public. The rule provides more details about the nature of what constitutes whistleblower information and to whom it may be disclosed, as well as more detailed procedures for filing and investigating complaints and enforcing orders. A clause, applicable above the simplified acquisition threshold, informs the contractor that employees working under the contract are subject to whistleblower protection and requires the contractor to inform its employees in writing, in the predominant language of the workforce, of the employee whistleblower rights and protections. This requirement can be easily satisfied by issuing an email to all employees working on the contract. For this reason, DoD, GSA, and NASA consider the burden to be de minimis. The rule would also add the words ‘‘or subcontractor’’ at multiple locations throughout FAR 31.205–47, which also has no or de minimis impact, because the cost principles generally already apply in the same way to costs incurred by subcontractors as to costs incurred by contractors. FAR 31.000 states that the part contains cost principles and procedures for the pricing of contracts, E:\FR\FM\26DEP1.SGM 26DEP1 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed (see 15.404– 1), and the determination, negotiation, or allowance of costs when required by a contract clause. FAR 31.103 further states that the contracting officer shall incorporate the cost principles and procedures in subpart 31.2 and agency supplements by reference in contracts with commercial organizations as the basis for determining reimbursable costs under cost-reimbursement contracts and cost-reimbursement subcontracts under these contracts performed by commercial organizations. Other sections expand this to contracts and subcontracts thereunder with educational institutions and construction and architect-engineer contracts. FAR 31.204 further addresses the applicability of the cost principles and procedures to subcontracts. There were a small number of whistleblower cases filed during the pilot period as shown in a U.S. Government Accountability Office (GAO) report. GAO report 17–227, Contractor Whistleblower Protections Pilot Program—Improvements Needed to Ensure Effective Implementation showed that GAO surveyed 14 departments for reprisal complaints received from July 1, 2013, to December 31, 2015. This report was published and publicly released on March 2, 2017. The report stated ‘‘Of the 127 reprisal complaints submitted by employees of contractors, subcontractors, and grantees under the pilot program, 44 were investigated by the OIG [Office of Inspector General] and none of the investigations completed thus far resulted in findings that substantiated reprisal.’’ amozie on DSK3GDR082PROD with PROPOSALS1 V. 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. VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 66225 VI. Executive Order 13771 This proposed rule is not expected to be subject to E.O. 13771, because this rule has a de minimis impact on the public (see section IV of this preamble). with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2017–005) in correspondence. VII. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601 et seq. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows: The 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). This proposed rule would implement Public Law 114–261, which was enacted December 14, 2016. The objective of this rule is to enhance whistleblower protection for contractor employees, by making permanent the protection for disclosure of certain information, and ensuring that the prohibition on reimbursement for certain legal costs applies to subcontractors, as well as contractors, as required by Public Law 114–261. This proposed rule does not make any substantive changes to the pilot program applicable to civilian agencies authorized by the NDAA for FY 2013, other than to make it permanent. The clause is prescribed above the simplified acquisition threshold (SAT). It also does not apply to DoD, NASA, and the Coast Guard, nor to certain elements of the intelligence community. Based on Federal Procurement Data System (FPDS) data for fiscal year (FY) 2016, there were approximately 10,000 new contract awards to small businesses by civilian agencies that exceeded the SAT (about 5,000 unique vendors). Regarding the amendment to the cost principles, addition of the words ‘‘or subcontractor’’ at multiple locations throughout FAR 31.205–47 has no or de minimis impact, because the cost principles generally already apply in the same way to costs incurred by subcontractors as to costs incurred by contractors. There are no reporting, recordkeeping, or other compliance requirements in this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA were unable to identify any alternatives to the rule that would reduce the impact on small entities and still meet the requirements of the statute. Dated: December 14, 2018. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule consistent PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 VIII. Paperwork Reduction Act List of Subjects in 48 CFR Parts 3, 31, and 52 Government procurement. Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 3, 31, and 52 as set forth below: ■ 1. The authority citation for 48 CFR parts 3, 31, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 2. Revise section 3.900 to read as follows: ■ 3.900 Scope of subpart. This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 2409, which is applicable only to DoD, NASA, and the Coast Guard. (a) 41 U.S.C. 4712 is implemented in 3.900 through 3.906. These sections do not apply to— (1) DoD, NASA, and the Coast Guard; or (2) Any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)). Sections 3.900 through 3.906 do not apply to any disclosure made by an employee of a contractor or subcontractor of an element of the intelligence community if such disclosure— (i) Relates to an activity of an element of the intelligence community; or (ii) Was discovered during contract or subcontract services provided to an element of the intelligence community. (b) Section 743 of Division E, Title VII of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) and its successor provisions in subsequent appropriations acts (and as extended in continuing E:\FR\FM\26DEP1.SGM 26DEP1 66226 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules resolutions), is implemented in 3.909, which is applicable to all agencies. (c) Contracts funded by the American Recovery and Reinvestment Act. Section 3.907 of this subpart implements section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111– 5) and applies to all contracts funded in whole or in part by that Act. ■ 3. Amend section 3.901 by— ■ a. Adding in alphabetical order, the definition, ‘‘Abuse of authority’’; ■ b. Removing the definition ‘‘Authorized official of an agency’’; and ■ c. Revising the definition ‘‘Inspector General’’. The added and revised text reads as follows: 3.901 Definitions. * * * * * Abuse of authority means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract of such agency. * * * * * Inspector General means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts awarded for, or on behalf of, the executive agency concerned. This definition does not apply to 3.907. * * * * * ■ 4. Revise section 3.902 to read as follows: 3.902 Classified information. 41 U.S.C. 4712 does not provide any right to disclose classified information not otherwise provided by law. ■ 5. Revise section 3.903 to read as follows: amozie on DSK3GDR082PROD with PROPOSALS1 3.903 Policy. (a)(1) Contractors and subcontractors are prohibited from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing, to any of the entities listed at paragraph (b) of this section, information that the employee reasonably believes is— (i) Evidence of gross mismanagement of a Federal contract; (ii) A gross waste of Federal funds; (iii) An abuse of authority relating to a Federal contract; (iv) A substantial and specific danger to public health or safety; or (v) A violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract). (2) A reprisal is prohibited even if it is undertaken at the request of an VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 executive branch official, unless the request takes the form of a nondiscretionary directive and is within the authority of the executive branch official making the request. (b) Entities to whom disclosure may be made. (1) A Member of Congress or a representative of a committee of Congress. (2) An Inspector General. (3) The Government Accountability Office. (4) A Federal employee responsible for contract oversight or management at the relevant agency. (5) An authorized official of the Department of Justice or other law enforcement agency. (6) A court or grand jury. (7) A management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct. (c) An employee who initiates or provides evidence of contractor or subcontractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract shall be deemed to have made a disclosure. ■ 6. Amend section 3.904 by revising the section to read as follows: 3.904 Complaints. 7. Add section 3.904–1 to read as follows: ■ 3.904–1 Procedures for filing complaints. A contractor or subcontractor employee who believes that he or she has been discharged, demoted, or otherwise discriminated against contrary to the policy in 3.903 may submit a complaint with the Inspector General of the agency concerned. Procedures for submitting fraud, waste, abuse, and whistleblower complaints are generally accessible on agency Office of Inspector General Hotline or Whistleblower internet sites or the complainant may directly contact the cognizant Office of the Inspector General for submission instructions. A complaint by the employee may not be brought under 41 U.S.C. 4712 more than three years after the date on which the alleged reprisal took place. ■ 8. Add section 3.904–2 to read as follows: 3.904–2 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 shall ensure that the Inspector General provides the report of findings to— PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 (1) The complainant and any person acting on the complainant’s behalf; (2) The contractor and/or subcontractor alleged to have committed the violation; and (3) The head of the agency. (c) Unless otherwise provided in agency procedures, the complainant, contractor, and/or subcontractor shall be afforded the opportunity to submit a written response to the report of findings to the head of the agency and the Office of Inspector General. ■ 9. Revise section 3.905 to read as follows: 3.905 Remedies and enforcement of orders. 10. Add section 3.905–1 to read as follows: ■ 3.905–1 Remedies. (a) Agency response to Inspector General report. Not later than 30 days after receiving a report pursuant to 3.904–2, the head of the agency shall— (1) Determine whether sufficient basis exists to conclude that the contractor or subcontractor has subjected the employee who submitted the complaint to a reprisal as prohibited by 3.903; and (2) Either issue an order denying relief or take one or more of the following actions: (i) Order the contractor or subcontractor to take affirmative action to abate the reprisal. (ii) Order the contractor or subcontractor to reinstate the complainant-employee to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken. (iii) Order the contractor or subcontractor to pay the complainantemployee an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency. (b) Complainant’s right to go to court. (1) Paragraph (b)(2) of this section applies if— (i) The head of the agency issues an order denying relief; or (ii)(A) The head of the agency has not issued an order— (1) Within 210 days after the submission of the complaint; or (2) Within 30 days after the expiration of an extension of time granted in accordance with 41 U.S.C. 4712(b)(2)(B) E:\FR\FM\26DEP1.SGM 26DEP1 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules for the submission of the report to those stated in 3.904–2(b); and (B) There is no showing that such delay is due to the bad faith of the complainant. (2) If the conditions in either paragraph (b)(1)(i) or (ii) of this section are met— (i) The complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint; and (ii) The complainant may bring a de novo action at law or equity against the contractor or subcontractor to seek compensatory damages and other relief available under 41 U.S.C. 4712 in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. (A) Such an action shall, at the request of either party to the action, be tried by the court with a jury. (B) An action under this authority may not be brought more than two years after the date on which remedies are deemed to have been exhausted. (c) Admissibility in evidence. An Inspector General determination and an agency head order denying relief under this section shall be admissible in evidence in any de novo action at law or equity brought pursuant to 41 U.S.C. 4712. (d) No waiver. The rights and remedies provided for in 41 U.S.C. 4712 may not be waived by any agreement, policy, form, or condition of employment. ■ 11. Add section 3.905–2 to read as follows: amozie on DSK3GDR082PROD with PROPOSALS1 3.905–2 Enforcement of orders. (a) Whenever a contractor or subcontractor fails to comply with an order issued under 3.905–1(a)(2), the head of the agency concerned shall file an action for enforcement of the order in the U.S. district court for a district in which the reprisal was found to have occurred. In any action brought pursuant to this authority, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The complainant-employee upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency. (b) Any person adversely affected or aggrieved by an order issued under 3.905–1(a)(2) may obtain review of the order’s conformance with 41 U.S.C. 4712 and its implementing regulations, in the U.S. court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court. ■ 12. Revise section 3.906 to read as follows: 3.906 Contract clause. (a) Except as provided in paragraph (b) of this section, the contracting officer shall insert the clause at 52.203–17, Contractor Employee Whistleblower Rights, in all solicitations and contracts that exceed the simplified acquisition threshold. (b) The clause prescription in paragraph (a) of this section does not apply to solicitations and contracts of DoD, NASA, the Coast Guard, or applicable elements of the intelligence community (see 3.900(a)). 3.907–7 [Amended] 13. Amend section 3.907–7 by removing ‘‘Reinvestment Act of 2009 in’’ and adding ‘‘Reinvestment Act of 2009, in’’ in its place. ■ 3.908 ■ [Removed and reserved] 14. Remove and reserve section 3.908. 3.908–1 through 3.908–9 [Removed] 15. Remove sections 3.908–1 through 3.908–9. ■ PART 31—CONTRACT COST PRINCIPLES AND PROCEDURES 31.205–47 [Amended] 16. Amend section 31.205–47 by— a. In paragraph (a), in the definition of ‘‘Costs’’ by removing ‘‘or others retained by the contractor to assist it;’’ and adding ‘‘or others retained by the contractor or subcontractor to assist it;’’ in its place; ■ b. In the introductory text of paragraph (b), by removing ‘‘law or regulation by the contractor’’ and adding ‘‘law or regulation by the contractor or subcontractor’’ in its place; ■ c. In paragraph (b)(2) by removing ‘‘either a finding of contractor liability’’ and adding ‘‘either a finding of contractor or subcontractor liability’’ in its place; ■ d. In paragraph (b)(3)(i), by removing ‘‘the contractor;’’ and adding ‘‘the contractor or subcontractor;’’ in its place; ■ e. In paragraph (c)(1), by removing ‘‘between the contractor’’ and adding ‘‘between the contractor or subcontractor’’ in its place; ■ f. In paragraph (c)(2)(i), by removing ‘‘incurred by the contractor’’ and adding ‘‘incurred by the contractor or subcontractor’’ in its place; ■ ■ PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 66227 g. In paragraph (d)(1) by removing ‘‘Federal contract; or’’ and adding ‘‘Federal contract or subcontract; or’’ in its place; ■ h. In the introductory paragraph of paragraph (f) by removing ‘‘connection with’’ and adding ‘‘connection with the following’’ in its place; ■ i. In paragraph (f)(4) by removing ‘‘the contractor under’’ and adding ‘‘the contractor or subcontractor under’’ in its place; and removing ‘‘the contractor was’’ and adding ‘‘the contractor or subcontractor was’’ in its place; ■ j. In the introductory paragraph of paragraph (f)(5) by removing ‘‘contractors arising from either’’ and adding ‘‘contractors or subcontractors arising from either—’’ in its place; ■ k. In paragraph (f)(5)(i) by removing ‘‘an agreement’’ and adding ‘‘An agreement’’ in its place; ■ l. In paragraph (f)(5)(ii) by removing ‘‘dual sourcing’’ and adding ‘‘Dual sourcing’’ and removing ‘‘except when’’ and adding ‘‘except when—’’ in its place; ■ m. In paragraph (f)(5)(ii)(A) by removing ‘‘incurred as’’ and adding ‘‘Incurred as’’, removing ‘‘contract or’’ and adding ‘‘contract or subcontract, or’’ in its place, and removing ‘‘contracting officer, or’’ and adding ‘‘contracting officer; or’’ in its place; ■ n. In paragraph (f)(5)(ii)(B) by removing ‘‘when agreed’’ and adding ‘‘When agreed’’ in its place; ■ o. In paragraph (f)(6) by removing ‘‘contract.’’ and adding ‘‘contract or subcontract.’’ in its place; ■ p. In paragraph (f)(7) by removing ‘‘the contractor is’’ and adding ‘‘the contractor or subcontractor is’’ in its place; ■ q. In paragraph (g) by removing ‘‘contractor separately.’’ and adding ‘‘contractor or subcontractor separately.’’ in its place, and removing ‘‘contractor to repay all’’ and adding ‘‘contractor or subcontractor to repay all’’ in its place. ■ 17. Amend section 31.603 by revising paragraph (b)(15) to read as follows: ■ 31.603 Requirements. * * * * * (b) * * * (15) Unless any of the exceptions at 31.205–47(c) or (d) apply, costs incurred by a contractor or subcontractor in connection with any criminal, civil, or administrative proceedings that result in dispositions described at 31.205– 47(b)(1) through (5) commenced by: A Federal, State, local, or foreign government, for a violation of, or failure to comply with, law or regulation by the contractor or subcontractor (including its agents or employees); a contractor or E:\FR\FM\26DEP1.SGM 26DEP1 66228 Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Proposed Rules subcontractor employee submitting a whistleblower complaint of reprisal in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409; or a third party in the name of the United States under the False Claims Act, 31 U.S.C. 3730. For any such proceeding that does not result in a disposition described at 31.205– 47(b)(1) through (5), or to which 31.205– 47(c) exceptions apply, the cost of that proceeding shall be subject to the limitations in 31.205–47(e). PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 18. Amend section 52.203–17 by— a. Revising the section heading; b. Removing from the introductory text ‘‘3.908–9’’ and adding ‘‘3.906’’ in its place; ■ c. Revising the date of the clause; and ■ d. Revising paragraphs (a) and (b) to read as follows: ■ ■ ■ 52.203–17 Contractor Employee Whistleblower Rights. * * * * * Contractor Employee Whistleblower Rights (Date) (a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies established at 41 U.S.C. 4712 and FAR 3.901 through 3.905. (b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. 4712, as described in FAR 3.901 through 3.905. * * * * * 19. Amend section 52.212–4 by revising the date of the clause; and removing from paragraph (r) ‘‘41 U.S.C. 4712 and’’. The revised text reads as follows: ■ * * * * * * * * 20. Amend section 52.212–5 by: a. Revising the date of the clause; b. Redesignating paragraphs (b)(4) through (60) as paragraphs (b)(5) through (61), respectively; ■ c. Adding a new paragraph (b)(4); ■ d. Redesignating paragraphs (e)(1)(ii) through (xxii) as paragraphs (e)(1)(iii) through (xxiii), respectively; ■ e. Adding a new paragraph (e)(1)(ii); ■ f. Revising the date of Alternate II; ■ g. Redesignating paragraphs of Alternate II; (e)(1)(ii)(C) through (T) as paragraphs (e)(1)(ii)(D) through (U), respectively; and ■ h. Adding a new paragraph (e)(1)(ii)(C). amozie on DSK3GDR082PROD with PROPOSALS1 ■ ■ ■ VerDate Sep<11>2014 17:37 Dec 21, 2018 Jkt 247001 * * * * Contract Terms and Conditions Required to Implement Statutes or Executive Orders— Commercial Items (Date) * * * * * (b) * * * ll(4) 52.203–17, Contractor Employee Whistleblower Rights (Date) (41 U.S.C. 4712) * * * * * (e)(1) * * * (ii) 52.203–17, Contractor Employee Whistleblower Rights (Date) (41 U.S.C. 4712) * * * * * Alternate II (Date). * * * * * * * * (e)(1) * * * (ii) * * * (C) 52.203–17, Contractor Employee Whistleblower Rights (Date) (41 U.S.C. 4712) * * * * * ■ 21. Amend section 52.213–4 by revising the date of the clause and paragraph (a)(2)(viii) to read as follows: 52.213–4 Terms and Conditions— Simplified Acquisitions (Other Than Commercial Items). * * * * * Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) (Date) (a) * * * (2) * * * (viii) 52.244–6, Subcontracts for Commercial Items (Date). * * * * 22. Amend section 52.244–6 by— a. Revising the date of the clause; b. Redesignating paragraphs (c)(1)(iii) through (c)(1)(xix) as paragraphs (c)(1)(iv) through (c)(1)(xx), respectively; ■ c. Adding a new paragraph (c)(1)(iii). The revised and added text reads as follows: 52.244–6 Items. * * Subcontracts for Commercial * * * Subcontracts for Commercial Items (Date) * * * * * (c)(1) * * * (iii) 52.203–17, Contractor Employee Whistleblower Rights (Date) (41 U.S.C. 4712) relating to whistleblower protections, if the subcontract is over the simplified acquisition threshold; this clause does not apply to contracts of DoD, NASA, the Coast Guard, or PO 00000 Frm 00066 Fmt 4702 applicable elements of the intelligence community–see FAR 3.900(a). * * * * * [FR Doc. 2018–27493 Filed 12–21–18; 8:45 am] BILLING CODE 6820–EP–P * ■ ■ ■ Contract Terms and Conditions— Commercial Items (Date) * 52.212–5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items. * 52.212–4 Contract Terms and Conditions—Commercial Items. * The revised and added text reads as follows: Sfmt 4702 DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA–2010–0012] RIN 2127–AK58 Federal Motor Vehicle Safety Standards; Motor Vehicle Brake Fluids National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Proposed rule; withdrawal. AGENCY: NHTSA withdraws its notice of proposed rulemaking (NPRM), published on February 3, 2010, proposing amendments to the Federal Motor Vehicle Safety Standard (FMVSS) No. 116, Motor Vehicle Brake Fluids. Since publication of the NPRM and after review of the comments, the agency has determined that updates and corrections outside the scope of the notice are necessary in order to publish a final rule. Based on this, the agency has decided to withdraw the proposal to amend FMVSS No. 116. DATES: The NPRM ‘‘Federal Motor Vehicle Safety Standards; Motor Vehicles Brake Fluids,’’ RIN 2027– AK58, published February 3, 2010 (75 FR 5553), is withdrawn as of December 26, 2018. ADDRESSES: Electronic Access: You can view and download related documents and public comments by going to the website https://www.regulations.gov. Enter the docket number NHTSA–2010– 0012 in the search field. FOR FURTHER INFORMATION CONTACT: Joshua Fikentscher, Office of Crash Avoidance Standards (Phone: 202–366– 1810; Fax: 202–493–0073) or Sara R. Bennett, Office of the Chief Counsel (Phone: 202–366–2992; Fax: 202–366– 3820). You may send mail to both of these officials at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. SUMMARY: SUPPLEMENTARY INFORMATION: Background Federal Motor Vehicle Safety Standard (FMVSS) No. 116, ‘‘Motor Vehicle Brake Fluids,’’ specifies E:\FR\FM\26DEP1.SGM 26DEP1

Agencies

[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Proposed Rules]
[Pages 66223-66228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27493]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 3, 31, and 52

[FAR Case 2017-005; Docket No. 2017-0005, Sequence No. 1]
RIN 9000-AN32


Federal Acquisition Regulation: Whistleblower Protection for 
Contractor Employees

AGENCY:  Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement an act to enhance 
whistleblower protection for contractor employees. The rule would make 
permanent the protection for disclosure of certain information. It also 
would clarify that the prohibition on reimbursement for certain legal 
costs applies to subcontractors, as well as contractors.

DATES: Interested parties should submit comments to the Regulatory 
Secretariat Division at one of the addresses shown below on or before 
February 25, 2019 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-005 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by entering ``FAR Case 
2017-005'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2017-005.'' Follow the instructions provided on the screen. Please 
include your name, company name (if any), and ``FAR Case 2017-005'' on 
your attached document.
     Mail: General Services Administration, Regulatory-
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd 
Floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite ``FAR case 2017-
005'' in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 
2017-005.''

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement an 
act to enhance whistleblower protection for contractor and grantee 
employees (Pub. L. 114-261), enacted December 14, 2016. Although the 
statute addresses both contractor and grantee employees, the FAR only 
covers contracts and contractors. Grants are covered in title 2 of the 
Code of Federal Regulations.
    This statute amends 41 U.S.C. 4712 to make permanent the pilot 
program for enhancement of contractor protection from reprisal for 
sharing certain information. The four-year pilot program was enacted on 
January 2, 2013, by section 828 of the National Defense Authorization 
Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239), with an 
effective period of four years from the date of enactment (i.e., 
January 2, 2013, through January 1, 2017). Section 1091(e) of the NDAA 
for FY 2014 (Pub. L. 113-66) modified the effective period of the pilot 
program to be four years from the date that is 180 days after the date 
of enactment (i.e., July 1, 2013, through June 30, 2017). However, the 
program did not expire as it became permanent on December 14, 2016, 
before either of those expiration dates. This program does not apply to 
DoD, NASA, or the Coast Guard.
    This statute also clarifies that the cost principles at 10 U.S.C. 
2324(k) and 41

[[Page 66224]]

U.S.C. 4304 and 4310 that prohibit reimbursement for certain legal 
costs apply to costs incurred by a contractor, subcontractor, or 
personal services contractor. Personal services contractors are 
contractors. Cost principles generally already apply in the same way to 
costs incurred by subcontractors as to costs incurred by contractors.

II. Discussion and Analysis

    A. Pilot program becomes permanent. This rule proposes to amend the 
FAR to make permanent the civilian agency contractor pilot program that 
implements 41 U.S.C. 4712, currently located at FAR 3.908.
     FAR 3.900 is amended to delete: (1) The discussion of 41 
U.S.C. 4705, the prior whistleblower statute (which had been 
implemented at FAR 3.901 through 3.906, but which had been suspended 
for the duration of the 41 U.S.C. 4712 pilot program), since the 
successor statute, 41 U.S.C. 4712, has been made permanent; and (2) the 
sunset date for 41 U.S.C. 4712.
     The FAR 3.908 heading is amended to remove the designation 
as a pilot program, and the entire section is relocated to 3.900 
through 3.906 as follows:

[cir] 3.908-1 = 3.900(a)
[cir] 3.908-2 = 3.901 (retains the definition of ``authorized official 
of the Department of Justice'')
[cir] 3.908-3 = 3.903
[cir] 3.908-4 = 3.904-1
[cir] 3.908-5 = 3.904-2
[cir] 3.908-6 = 3.905-1
[cir] 3.908-7 = 3.905-2
[cir] 3.908-8 = 3.902
[cir] 3.908-9 = 3.906

     There are a few minor edits in FAR 3.900(a).
     FAR 3.903(a) and 3.905-1 are reformatted with vertical 
lists for improved clarity.
     FAR 3.904-2 is amended to state that the complainant, 
contractor, and/or subcontractor shall submit their responses to the 
written report to both the head of the agency and the Office of 
Inspector General.
     FAR clause 52.203-17, Contractor Employee Whistleblower 
Rights, is amended to remove the reference to section 828 of the NDAA 
for FY 2013, which is no longer necessary since 41 U.S.C. 4712 has been 
made permanent. The title of the clause is also simplified.
     Agencies will use FAR clause 52.203-17 in contracts for 
both commercial and noncommercial items that exceed the simplified 
acquisition threshold. Previously, the requirement to comply with the 
civilian agency contractor Whistleblower statute was implemented 
through paragraph (r) of FAR clause 52.212-4, Contract Terms and 
Conditions--Commercial items.
     The civilian agency contractor whistleblower protections 
of 41 U.S.C. 4712 listed in paragraph (r) of FAR clause 52.212-4 are 
removed, because the clause 52.203-17 is now included in FAR clause 
52.212-5, Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Items.
     Coverage of 10 U.S.C. 2409 will remain in FAR clause 
52.212-4(r) to cover DoD, NASA, and the Coast Guard. Only 41 U.S.C. 
4712 coverage is being moved to FAR clause 52.212-5.
     FAR clause 52.212-5 is amended to list FAR clause 52.203-
17.
     Conforming changes are made to FAR 52.244-6, Subcontracts 
for Commercial Items.
    B. Prohibition on reimbursement for legal costs.
     In order to clarify that the prohibition on reimbursement 
for certain legal costs applies to subcontractors, as well as 
contractors, this rule proposes to amend FAR 31.205-47 and 31.603 to 
add ``or subcontract'' or ``or subcontractor'' as appropriate. The term 
``personal services contract'' and ``personal services contractor'' are 
not added to the FAR, because they are covered by the terms 
``contract'' and ``contractor.'' Also, the term ``or subcontract'' is 
not added at FAR 31.205-47(b)(3)(ii) and (iii), because the Government 
does not have the authority to rescind, void, or terminate a 
subcontract.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This proposed rule does not add any new provisions or clauses, nor 
does it change the applicability of existing provisions or clauses to 
contracts at or below the SAT and contracts for the acquisition of 
commercial items, including COTS items. The clause at 52.203-17, 
Contractor Employee Whistleblower Rights and Requirement to Inform 
Employees of Whistleblower Rights, is not prescribed for use in 
contracts valued at or below the SAT.

IV. Expected Cost Impact on the Public

    FAR subpart 3.9, Whistleblower Protections for Contractor 
Employees, was added to the FAR on September 19, 1995, to implement 
sections 6005 and 6006 of the Federal Acquisition Streamlining Act of 
1994 (Pub. L. 103-355) codified at 41 U.S.C. 265, recodified as 41 
U.S.C. 4705. DoD, GSA, and NASA published an interim rule in the 
Federal Register at 78 FR 60169 on September 30, 2013 (finalized on 
December 4, 2015, at 80 FR 75911) to implement a four-year pilot 
program to enhance the existing whistleblower protections, as required 
by section 828 of the NDAA for FY 2013, effective through January 1, 
2017. This pilot program is inapplicable to DoD, NASA, and the Coast 
Guard, because these agencies are covered by 10 U.S.C. 2409, as amended 
by section 827 of the NDAA for FY 2013. Using FPDS data for FY 2016, 
there were about 20,800 new awards over the simplified acquisition 
threshold in FY 2016 by agencies other than DoD, NASA and the Coast 
Guard, to approximately 9,100 unique awardees.
    This proposed rule would implement Public Law 114-261, which makes 
the pilot program permanent. If Public Law 114-261 had not been 
enacted, the pilot program would have expired and 41 U.S.C. 4705, as 
implemented in 1995 at FAR 3.900-3.906, would automatically become 
effective again. Therefore, any impact of this rule is due to the 
differences between the pilot program authorized by the NDAA for FY 
2013, as made permanent, and the prior whistleblower regulations 
implemented in 1995.
    The enhancements to the whistleblower regulations created by the 
pilot that would be made permanent by this rulemaking do not impose any 
substantive burden on the public. The rule provides more details about 
the nature of what constitutes whistleblower information and to whom it 
may be disclosed, as well as more detailed procedures for filing and 
investigating complaints and enforcing orders. A clause, applicable 
above the simplified acquisition threshold, informs the contractor that 
employees working under the contract are subject to whistleblower 
protection and requires the contractor to inform its employees in 
writing, in the predominant language of the workforce, of the employee 
whistleblower rights and protections. This requirement can be easily 
satisfied by issuing an email to all employees working on the contract. 
For this reason, DoD, GSA, and NASA consider the burden to be de 
minimis.
    The rule would also add the words ``or subcontractor'' at multiple 
locations throughout FAR 31.205-47, which also has no or de minimis 
impact, because the cost principles generally already apply in the same 
way to costs incurred by subcontractors as to costs incurred by 
contractors. FAR 31.000 states that the part contains cost principles 
and procedures for the pricing of contracts,

[[Page 66225]]

subcontracts, and modifications to contracts and subcontracts whenever 
cost analysis is performed (see 15.404-1), and the determination, 
negotiation, or allowance of costs when required by a contract clause. 
FAR 31.103 further states that the contracting officer shall 
incorporate the cost principles and procedures in subpart 31.2 and 
agency supplements by reference in contracts with commercial 
organizations as the basis for determining reimbursable costs under 
cost-reimbursement contracts and cost-reimbursement subcontracts under 
these contracts performed by commercial organizations. Other sections 
expand this to contracts and subcontracts thereunder with educational 
institutions and construction and architect-engineer contracts. FAR 
31.204 further addresses the applicability of the cost principles and 
procedures to subcontracts.
    There were a small number of whistleblower cases filed during the 
pilot period as shown in a U.S. Government Accountability Office (GAO) 
report. GAO report 17-227, Contractor Whistleblower Protections Pilot 
Program--Improvements Needed to Ensure Effective Implementation showed 
that GAO surveyed 14 departments for reprisal complaints received from 
July 1, 2013, to December 31, 2015. This report was published and 
publicly released on March 2, 2017.
    The report stated ``Of the 127 reprisal complaints submitted by 
employees of contractors, subcontractors, and grantees under the pilot 
program, 44 were investigated by the OIG [Office of Inspector General] 
and none of the investigations completed thus far resulted in findings 
that substantiated reprisal.''

V. 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.

VI. Executive Order 13771

    This proposed rule is not expected to be subject to E.O. 13771, 
because this rule has a de minimis impact on the public (see section IV 
of this preamble).

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act 5 U.S.C. 601 et seq. However, 
an Initial Regulatory Flexibility Analysis (IRFA) has been performed 
and is summarized as follows:

    This proposed rule would implement Public Law 114-261, which was 
enacted December 14, 2016. The objective of this rule is to enhance 
whistleblower protection for contractor employees, by making 
permanent the protection for disclosure of certain information, and 
ensuring that the prohibition on reimbursement for certain legal 
costs applies to subcontractors, as well as contractors, as required 
by Public Law 114-261.
    This proposed rule does not make any substantive changes to the 
pilot program applicable to civilian agencies authorized by the NDAA 
for FY 2013, other than to make it permanent. The clause is 
prescribed above the simplified acquisition threshold (SAT). It also 
does not apply to DoD, NASA, and the Coast Guard, nor to certain 
elements of the intelligence community. Based on Federal Procurement 
Data System (FPDS) data for fiscal year (FY) 2016, there were 
approximately 10,000 new contract awards to small businesses by 
civilian agencies that exceeded the SAT (about 5,000 unique 
vendors).
    Regarding the amendment to the cost principles, addition of the 
words ``or subcontractor'' at multiple locations throughout FAR 
31.205-47 has no or de minimis impact, because the cost principles 
generally already apply in the same way to costs incurred by 
subcontractors as to costs incurred by contractors.
    There are no reporting, recordkeeping, or other compliance 
requirements in this rule.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. DoD, GSA, and NASA were unable to identify any 
alternatives to the rule that would reduce the impact on small 
entities and still meet the requirements of the statute.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by this rule 
consistent with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-005) in 
correspondence.

VIII. Paperwork Reduction Act

    The 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 Subjects in 48 CFR Parts 3, 31, and 52

    Government procurement.

    Dated: December 14, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 
3, 31, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 3, 31, and 52 continues to 
read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
2. Revise section 3.900 to read as follows:


3.900   Scope of subpart.

    This subpart implements various statutory whistleblower programs. 
This subpart does not implement 10 U.S.C. 2409, which is applicable 
only to DoD, NASA, and the Coast Guard.
    (a) 41 U.S.C. 4712 is implemented in 3.900 through 3.906. These 
sections do not apply to--
    (1) DoD, NASA, and the Coast Guard; or
    (2) Any element of the intelligence community, as defined in 
section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)). 
Sections 3.900 through 3.906 do not apply to any disclosure made by an 
employee of a contractor or subcontractor of an element of the 
intelligence community if such disclosure--
    (i) Relates to an activity of an element of the intelligence 
community; or
    (ii) Was discovered during contract or subcontract services 
provided to an element of the intelligence community.
    (b) Section 743 of Division E, Title VII of the Consolidated and 
Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its 
successor provisions in subsequent appropriations acts (and as extended 
in continuing

[[Page 66226]]

resolutions), is implemented in 3.909, which is applicable to all 
agencies.
    (c) Contracts funded by the American Recovery and Reinvestment Act. 
Section 3.907 of this subpart implements section 1553 of the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) and applies to 
all contracts funded in whole or in part by that Act.
0
3. Amend section 3.901 by--
0
a. Adding in alphabetical order, the definition, ``Abuse of 
authority'';
0
b. Removing the definition ``Authorized official of an agency''; and
0
c. Revising the definition ``Inspector General''.
    The added and revised text reads as follows:


3.901   Definitions.

* * * * *
    Abuse of authority means an arbitrary and capricious exercise of 
authority that is inconsistent with the mission of the executive agency 
concerned or the successful performance of a contract of such agency.
* * * * *
    Inspector General means an Inspector General appointed under the 
Inspector General Act of 1978 and any Inspector General that receives 
funding from, or has oversight over contracts awarded for, or on behalf 
of, the executive agency concerned. This definition does not apply to 
3.907.
* * * * *
0
4. Revise section 3.902 to read as follows:


3.902   Classified information.

    41 U.S.C. 4712 does not provide any right to disclose classified 
information not otherwise provided by law.
0
5. Revise section 3.903 to read as follows:


3.903   Policy.

    (a)(1) Contractors and subcontractors are prohibited from 
discharging, demoting, or otherwise discriminating against an employee 
as a reprisal for disclosing, to any of the entities listed at 
paragraph (b) of this section, information that the employee reasonably 
believes is--
    (i) Evidence of gross mismanagement of a Federal contract;
    (ii) A gross waste of Federal funds;
    (iii) An abuse of authority relating to a Federal contract;
    (iv) A substantial and specific danger to public health or safety; 
or
    (v) A violation of law, rule, or regulation related to a Federal 
contract (including the competition for or negotiation of a contract).
    (2) A reprisal is prohibited even if it is undertaken at the 
request of an executive branch official, unless the request takes the 
form of a non-discretionary directive and is within the authority of 
the executive branch official making the request.
    (b) Entities to whom disclosure may be made.
    (1) A Member of Congress or a representative of a committee of 
Congress.
    (2) An Inspector General.
    (3) The Government Accountability Office.
    (4) A Federal employee responsible for contract oversight or 
management at the relevant agency.
    (5) An authorized official of the Department of Justice or other 
law enforcement agency.
    (6) A court or grand jury.
    (7) A management official or other employee of the contractor or 
subcontractor who has the responsibility to investigate, discover, or 
address misconduct.
    (c) An employee who initiates or provides evidence of contractor or 
subcontractor misconduct in any judicial or administrative proceeding 
relating to waste, fraud, or abuse on a Federal contract shall be 
deemed to have made a disclosure.
0
6. Amend section 3.904 by revising the section to read as follows:


3.904   Complaints.

0
7. Add section 3.904-1 to read as follows:


3.904-1   Procedures for filing complaints.

    A contractor or subcontractor employee who believes that he or she 
has been discharged, demoted, or otherwise discriminated against 
contrary to the policy in 3.903 may submit a complaint with the 
Inspector General of the agency concerned. Procedures for submitting 
fraud, waste, abuse, and whistleblower complaints are generally 
accessible on agency Office of Inspector General Hotline or 
Whistleblower internet sites or the complainant may directly contact 
the cognizant Office of the Inspector General for submission 
instructions. A complaint by the employee may not be brought under 41 
U.S.C. 4712 more than three years after the date on which the alleged 
reprisal took place.
0
8. Add section 3.904-2 to read as follows:


3.904-2   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 
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 and/or subcontractor alleged to have committed 
the violation; and
    (3) The head of the agency.
    (c) Unless otherwise provided in agency procedures, the 
complainant, contractor, and/or subcontractor shall be afforded the 
opportunity to submit a written response to the report of findings to 
the head of the agency and the Office of Inspector General.
0
9. Revise section 3.905 to read as follows:


3.905   Remedies and enforcement of orders.

0
10. Add section 3.905-1 to read as follows:


3.905-1   Remedies.

    (a) Agency response to Inspector General report. Not later than 30 
days after receiving a report pursuant to 3.904-2, the head of the 
agency shall--
    (1) Determine whether sufficient basis exists to conclude that the 
contractor or subcontractor has subjected the employee who submitted 
the complaint to a reprisal as prohibited by 3.903; and
    (2) Either issue an order denying relief or take one or more of the 
following actions:
    (i) Order the contractor or subcontractor to take affirmative 
action to abate the reprisal.
    (ii) Order the contractor or subcontractor to reinstate the 
complainant-employee to the position that the person held before the 
reprisal, together with compensatory damages (including back pay), 
employment benefits, and other terms and conditions of employment that 
would apply to the person in that position if the reprisal had not been 
taken.
    (iii) Order the contractor or subcontractor to pay the complainant-
employee an amount equal to the aggregate amount of all costs and 
expenses (including attorneys' fees and expert witnesses' fees) that 
were reasonably incurred by the complainant for, or in connection with, 
bringing the complaint regarding the reprisal, as determined by the 
head of the agency.
    (b) Complainant's right to go to court.
    (1) Paragraph (b)(2) of this section applies if--
    (i) The head of the agency issues an order denying relief; or
    (ii)(A) The head of the agency has not issued an order--
    (1) Within 210 days after the submission of the complaint; or
    (2) Within 30 days after the expiration of an extension of time 
granted in accordance with 41 U.S.C. 4712(b)(2)(B)

[[Page 66227]]

for the submission of the report to those stated in 3.904-2(b); and
    (B) There is no showing that such delay is due to the bad faith of 
the complainant.
    (2) If the conditions in either paragraph (b)(1)(i) or (ii) of this 
section are met--
    (i) The complainant shall be deemed to have exhausted all 
administrative remedies with respect to the complaint; and
    (ii) The complainant may bring a de novo action at law or equity 
against the contractor or subcontractor to seek compensatory damages 
and other relief available under 41 U.S.C. 4712 in the appropriate 
district court of the United States, which shall have jurisdiction over 
such an action without regard to the amount in controversy.
    (A) Such an action shall, at the request of either party to the 
action, be tried by the court with a jury.
    (B) An action under this authority may not be brought more than two 
years after the date on which remedies are deemed to have been 
exhausted.
    (c) Admissibility in evidence. An Inspector General determination 
and an agency head order denying relief under this section shall be 
admissible in evidence in any de novo action at law or equity brought 
pursuant to 41 U.S.C. 4712.
    (d) No waiver. The rights and remedies provided for in 41 U.S.C. 
4712 may not be waived by any agreement, policy, form, or condition of 
employment.
0
11. Add section 3.905-2 to read as follows:


3.905-2   Enforcement of orders.

    (a) Whenever a contractor or subcontractor fails to comply with an 
order issued under 3.905-1(a)(2), the head of the agency concerned 
shall file an action for enforcement of the order in the U.S. district 
court for a district in which the reprisal was found to have occurred. 
In any action brought pursuant to this authority, the court may grant 
appropriate relief, including injunctive relief, compensatory and 
exemplary damages, and attorney fees and costs. The complainant-
employee upon whose behalf an order was issued may also file such an 
action or join in an action filed by the head of the agency.
    (b) Any person adversely affected or aggrieved by an order issued 
under 3.905-1(a)(2) may obtain review of the order's conformance with 
41 U.S.C. 4712 and its implementing regulations, in the U.S. court of 
appeals for a circuit in which the reprisal is alleged in the order to 
have occurred. No petition seeking such review may be filed more than 
60 days after issuance of the order by the head of the agency. Filing 
such an appeal shall not act to stay the enforcement of the order of 
the head of an agency, unless a stay is specifically entered by the 
court.
0
12. Revise section 3.906 to read as follows:


3.906   Contract clause.

    (a) Except as provided in paragraph (b) of this section, the 
contracting officer shall insert the clause at 52.203-17, Contractor 
Employee Whistleblower Rights, in all solicitations and contracts that 
exceed the simplified acquisition threshold.
    (b) The clause prescription in paragraph (a) of this section does 
not apply to solicitations and contracts of DoD, NASA, the Coast Guard, 
or applicable elements of the intelligence community (see 3.900(a)).


3.907-7   [Amended]

0
13. Amend section 3.907-7 by removing ``Reinvestment Act of 2009 in'' 
and adding ``Reinvestment Act of 2009, in'' in its place.


3.908   [Removed and reserved]

0
14. Remove and reserve section 3.908.


3.908-1 through 3.908-9   [Removed]

0
15. Remove sections 3.908-1 through 3.908-9.

PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES


31.205-47   [Amended]

0
16. Amend section 31.205-47 by--
0
a. In paragraph (a), in the definition of ``Costs'' by removing ``or 
others retained by the contractor to assist it;'' and adding ``or 
others retained by the contractor or subcontractor to assist it;'' in 
its place;
0
b. In the introductory text of paragraph (b), by removing ``law or 
regulation by the contractor'' and adding ``law or regulation by the 
contractor or subcontractor'' in its place;
0
c. In paragraph (b)(2) by removing ``either a finding of contractor 
liability'' and adding ``either a finding of contractor or 
subcontractor liability'' in its place;
0
d. In paragraph (b)(3)(i), by removing ``the contractor;'' and adding 
``the contractor or subcontractor;'' in its place;
0
e. In paragraph (c)(1), by removing ``between the contractor'' and 
adding ``between the contractor or subcontractor'' in its place;
0
f. In paragraph (c)(2)(i), by removing ``incurred by the contractor'' 
and adding ``incurred by the contractor or subcontractor'' in its 
place;
0
g. In paragraph (d)(1) by removing ``Federal contract; or'' and adding 
``Federal contract or subcontract; or'' in its place;
0
h. In the introductory paragraph of paragraph (f) by removing 
``connection with'' and adding ``connection with the following'' in its 
place;
0
i. In paragraph (f)(4) by removing ``the contractor under'' and adding 
``the contractor or subcontractor under'' in its place; and removing 
``the contractor was'' and adding ``the contractor or subcontractor 
was'' in its place;
0
j. In the introductory paragraph of paragraph (f)(5) by removing 
``contractors arising from either'' and adding ``contractors or 
subcontractors arising from either--'' in its place;
0
k. In paragraph (f)(5)(i) by removing ``an agreement'' and adding ``An 
agreement'' in its place;
0
l. In paragraph (f)(5)(ii) by removing ``dual sourcing'' and adding 
``Dual sourcing'' and removing ``except when'' and adding ``except 
when--'' in its place;
0
m. In paragraph (f)(5)(ii)(A) by removing ``incurred as'' and adding 
``Incurred as'', removing ``contract or'' and adding ``contract or 
subcontract, or'' in its place, and removing ``contracting officer, 
or'' and adding ``contracting officer; or'' in its place;
0
n. In paragraph (f)(5)(ii)(B) by removing ``when agreed'' and adding 
``When agreed'' in its place;
0
o. In paragraph (f)(6) by removing ``contract.'' and adding ``contract 
or subcontract.'' in its place;
0
p. In paragraph (f)(7) by removing ``the contractor is'' and adding 
``the contractor or subcontractor is'' in its place;
0
q. In paragraph (g) by removing ``contractor separately.'' and adding 
``contractor or subcontractor separately.'' in its place, and removing 
``contractor to repay all'' and adding ``contractor or subcontractor to 
repay all'' in its place.
0
17. Amend section 31.603 by revising paragraph (b)(15) to read as 
follows:


31.603   Requirements.

* * * * *
    (b) * * *
    (15) Unless any of the exceptions at 31.205-47(c) or (d) apply, 
costs incurred by a contractor or subcontractor in connection with any 
criminal, civil, or administrative proceedings that result in 
dispositions described at 31.205-47(b)(1) through (5) commenced by: A 
Federal, State, local, or foreign government, for a violation of, or 
failure to comply with, law or regulation by the contractor or 
subcontractor (including its agents or employees); a contractor or

[[Page 66228]]

subcontractor employee submitting a whistleblower complaint of reprisal 
in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409; or a third party 
in the name of the United States under the False Claims Act, 31 U.S.C. 
3730. For any such proceeding that does not result in a disposition 
described at 31.205-47(b)(1) through (5), or to which 31.205-47(c) 
exceptions apply, the cost of that proceeding shall be subject to the 
limitations in 31.205-47(e).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
18. Amend section 52.203-17 by--
0
a. Revising the section heading;
0
b. Removing from the introductory text ``3.908-9'' and adding ``3.906'' 
in its place;
0
c. Revising the date of the clause; and
0
d. Revising paragraphs (a) and (b) to read as follows:


52.203-17   Contractor Employee Whistleblower Rights.

* * * * *

Contractor Employee Whistleblower Rights (Date)

    (a) This contract and employees working on this contract will be 
subject to the whistleblower rights and remedies established at 41 
U.S.C. 4712 and FAR 3.901 through 3.905.
    (b) The Contractor shall inform its employees in writing, in the 
predominant language of the workforce, of employee whistleblower 
rights and protections under 41 U.S.C. 4712, as described in FAR 
3.901 through 3.905.
* * * * *
0
19. Amend section 52.212-4 by revising the date of the clause; and 
removing from paragraph (r) ``41 U.S.C. 4712 and''. The revised text 
reads as follows:


52.212-4   Contract Terms and Conditions--Commercial Items.

* * * * *

Contract Terms and Conditions--Commercial Items (Date)

* * * * *
0
20. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(4) through (60) as paragraphs (b)(5) 
through (61), respectively;
0
c. Adding a new paragraph (b)(4);
0
d. Redesignating paragraphs (e)(1)(ii) through (xxii) as paragraphs 
(e)(1)(iii) through (xxiii), respectively;
0
e. Adding a new paragraph (e)(1)(ii);
0
f. Revising the date of Alternate II;
0
g. Redesignating paragraphs of Alternate II; (e)(1)(ii)(C) through (T) 
as paragraphs (e)(1)(ii)(D) through (U), respectively; and
0
h. Adding a new paragraph (e)(1)(ii)(C).
    The revised and added text reads 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 (Date)

* * * * *
    (b) * * *
    __(4) 52.203-17, Contractor Employee Whistleblower Rights (Date) 
(41 U.S.C. 4712)
* * * * *
    (e)(1) * * *
    (ii) 52.203-17, Contractor Employee Whistleblower Rights (Date) (41 
U.S.C. 4712)
* * * * *
    Alternate II (Date). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (C) 52.203-17, Contractor Employee Whistleblower Rights (Date) (41 
U.S.C. 4712)
* * * * *
0
21. Amend section 52.213-4 by revising the date of the clause and 
paragraph (a)(2)(viii) to read as follows:


52.213-4   Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (Date)

    (a) * * *
    (2) * * *
    (viii) 52.244-6, Subcontracts for Commercial Items (Date).
* * * * *
0
22. Amend section 52.244-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (c)(1)(iii) through (c)(1)(xix) as 
paragraphs (c)(1)(iv) through (c)(1)(xx), respectively;
0
c. Adding a new paragraph (c)(1)(iii).
    The revised and added text reads as follows:


52.244-6   Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (Date)

* * * * *
    (c)(1) * * *
    (iii) 52.203-17, Contractor Employee Whistleblower Rights (Date) 
(41 U.S.C. 4712) relating to whistleblower protections, if the 
subcontract is over the simplified acquisition threshold; this clause 
does not apply to contracts of DoD, NASA, the Coast Guard, or 
applicable elements of the intelligence community-see FAR 3.900(a).
* * * * *
[FR Doc. 2018-27493 Filed 12-21-18; 8:45 am]
 BILLING CODE 6820-EP-P