Whistleblower protections for contractors and grantees of the intelligence community

(a)

In general

Title XI of the National Security Act of 1947 (50 U.S.C. 3231 et seq.) is amended by adding at the end the following:

1105.

Whistleblower protections for contractors and grantees of the intelligence community

(a)

Definitions

In this section: (1)

Agency

The term agency means an executive department or independent establishment (as such terms are defined in sections 101 and 104 of title 5, United States Code) that contains an intelligence community element, except for the Federal Bureau of Investigation. (2)

Applicant

The term applicant means an individual who is applying to be an employee of a contractor, subcontractor, grantee or subgrantee. (3)

Contract

The term contract means a contract, including a personal services contract, awarded by the head of an agency. (4)

Contractor

The term contractor means an entity awarded a contract. (5)

Covered intelligence community element

The term covered intelligence community element means the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. (6)

Employee

The term employee means an individual who is an officer or an employee of a contractor, subcontractor, grantee, or subgrantee. (7)

Former employee

The term former employee means an individual who previously worked as an employee for a contractor, subcontractor, grantee, or subgrantee. (8)

Grant

The term grant means a grant awarded by the head of an agency. (9)

Grantee

The term grantee means an entity that is awarded a grant. (10)

Inspector General

Except as otherwise specifically provided, the term Inspector General means the Inspector General of the Intelligence Community appointed under section 103H or an Inspector General appointed under the Inspector General Act of 1978 (5 U.S.C. App.) or section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517). (11)

Protected disclosure

The term protected disclosure means— (A)any lawful disclosure of information to an individual listed under subsection (b)(2) by an employee that the employee believes evidences— (i)a violation of any Federal law, rule, or regulation; or (ii)gross mismanagement, including of a contract or grant, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (B)if the actions do not result in the employee unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with— (i)the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; (ii)testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or (iii)cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General. (12)

Personal services contractor

The term personal services contractor means an individual awarded a contract with an agency. (13)

Subcontractor

The term subcontractor means an entity that reaches an agreement with a contractor to fulfill any element of a contract. (14)

Subgrantee

The term subgrantee means an entity that reaches an agreement with a grantee to fulfill any element of a grant. (b)

Prohibition of reprisals

(1)

In general

An employee, applicant, former employee, or personal services contractor carrying out a contract, subcontract, grant, or subgrant for an agency that contains a covered intelligence community element may not be discharged, demoted, or otherwise discriminated against because the employee, applicant, former employee, or personal service contractor was perceived as making or about to make— (A)a protected disclosure; or (B)any lawful disclosure that complies with— (i)subsections (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); (ii)subparagraphs (A), (D), or (H) of section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)); or (iii)subparagraphs (A), (D), or (I) of section 103H(k)(5). (2)

Individuals described

The individuals described in this paragraph are as follows: (A)An Inspector General. (B)An authorized official of the Department of Justice or other Federal law enforcement agency. (C)A corporate management official or other individual who has the authority to investigate, discover, or address misconduct. (D)The Director of National Intelligence. (E)The head of the agency containing the covered intelligence community element that awarded the contract or grant. (c)

Investigation of complaints

(1)

Submission of complaint

An employee, applicant, former employee, or personal services contractor who believes that he or she has been subjected to a reprisal prohibited by subsection (b) may submit a complaint of such reprisal— (A)to the Inspector General of the agency that awarded the contract or grant; (B)in the case of a complaint— (i)regarding a covered intelligence community element in the Department of Defense, to the Inspector General of the Department of Defense; or (ii)submitted by an employee, applicant, former employee, or personal services contractor who is a National Intelligence Program funded billet of a covered intelligence community element in the Department of Defense, to— (I)the Inspector General of the Department of Defense; and (II)(aa)the head of the agency containing the covered intelligence community element that awarded the contract or grant; or (bb)the Investigator General of the Intelligence Community; or (C)to the Inspector General of the Intelligence Community. (2)

Determinations

(A)

In general

Except as provided under subparagraph (B), the Inspector General who receives a complaint referred to in paragraph (1) shall— (i)make a determination that the complaint— (I)is frivolous; (II)fails to allege a violation of the prohibition in subsection (b); or (III)has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant; or (ii)shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the employee, applicant, former employee, or personal services contractor who submitted the complaint, and the contractor, subcontractor, grantee, or subgrantee concerned, and the head of the agency that awarded the contract or grant not later than 180 days after receiving the complaint. (B)

Extension of time

If the Inspector General is unable to complete an investigation in time to submit a determination within the 180-day period specified in subparagraph (A)(ii) and the employee, applicant, former employee, or personal services contractor who submitted the complaint agrees to an extension of time, the Inspector General shall submit a report under subparagraph (A)(ii) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the individual submitting the complaint. (3)

Burdens of proof

Consistent with Executive orders protecting information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, the legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall, to the greatest extent possible, be controlling for the purposes of any investigation conducted by an Inspector General, or a decision by the head of an agency to determine whether a reprisal prohibited by subsection (b) has occurred. (4)

Submission to Congress

(A)

In general

If the employee, applicant, former employee, or personal services contractor wishes to submit to Congress their complaint submitted under paragraph (1) or if such a complaint is an urgent concern, the Inspector General who receives the complaint shall, within 7 calendar days of receipt of the complaint, forward such transmittal to the congressional intelligence committees, together with any comments the Inspector General considers appropriate. (B)

Submission by the employee

If the Inspector General does not forward the complaint as required by subparagraph (A), the employee, applicant, former employee, or personal services contractor (subject to subparagraph (C)) may submit the complaint to Congress by contacting either or both of the congressional intelligence committees directly. (C)

Conditions

The employee, applicant, former employee, or personal services contractor may contact the congressional intelligence committees directly as described in subparagraph (B) only if the employee, applicant, former employee, or personal services contractor— (i)before making such a contact, furnishes to the head of the agency involved, through an Inspector General, a statement of the complaint and notice of the intent to contact the intelligence committees directly; and (ii)obtains and follows from the head of the agency involved, through the Inspector General, direction on how to contact the congressional intelligence committees in accordance with appropriate security practices. (D)

Official capacity

A member or employee of one of the congressional intelligence committees who receives a complaint under this paragraph does so in that member or employee's official capacity as a member or employee of that committee. (E)

Urgent concern defined

In this paragraph, the term urgent concern has the meaning given that term in section 8H of the Inspector General Act of 1978 (5 U.S.C. App). (d)

Remedy and enforcement authority

(1)

In general

Not later than 30 days after receiving an Inspector General report pursuant to subsection (c)(2)(A)(ii), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the employee, applicant, former employee, or personal services contractor submitting the complaint was subject to a reprisal prohibited by subsection (b) and shall— (A)issue an order denying relief; or (B)order the agency concerned and the contractor, subcontractor, grantee, or subgrantee— (i)to take affirmative action to abate the reprisal; (ii)to reinstate the employee, applicant, former employee, or personal services contractor to the position that the employee, applicant, former employee, or personal services contractor 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 employee, applicant, former employee, or personal services contractor in that position if the reprisal had not been taken; or (C)to pay the employee, applicant, former employee, or personal services contractor 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 employee, applicant, former employee, or personal services contractor for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency. (e)

Notification

The head of each agency containing a covered intelligence community element shall— (1)inform each contractor, subcontractor, grantee, and subgrantee of such agency, in writing, of the remedies provided by this section; and (2)ensure that each contractor, subcontractor, grantee, and subgrantee of such agency inform their employees and personal services contractors, in writing, of the remedies provided under this section. (f)

No private cause of action

Nothing in this section shall be construed to permit, authorize, or require a private cause of action to challenge the merits of a determination by an Inspector General under this section. (g)

Prohibition on waiver

The remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.

(b)

Table of contents amendment

The table of contents in the first section of the National Security Act of 1947 is amended by adding at the end the following:

Sec. 1105. Whistleblower protections for contractors and grantees of the intelligence community.