[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34258-34260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14189]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 3 and 52

[FAC 2005-42; FAR Case 2009-012; Item I; Docket 2009-0009, Sequence 1]
RIN 9000-AL19


Federal Acquisition Regulation; FAR Case 2009-012, American 
Recovery and Reinvestment Act (the Recovery Act) of 2009-- 
Whistleblower Protections

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) have adopted as final, 
with changes, an interim rule amending the Federal Acquisition 
Regulation (FAR) to implement the American Recovery and Reinvestment 
Act of 2009 (the Recovery Act) with respect to section 1553 of Division 
A, Protecting State and Local Government and Contractor Whistleblowers. 
This rule prohibits non-Federal employers from discharging, demoting, 
or discriminating against an employee as a reprisal for disclosing 
information.

DATES: Effective Date: June 16, 2010.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Jeritta Parnell, Procurement Analyst, at (202) 501-4082. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR 
Case 2009-012.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 74 FR 14633 on March 31, 2009, to implement the Recovery 
Act with respect to section 1553 of Division A, Protecting State and 
Local Government and Contractor Whistleblowers. A Technical Amendment 
was published in the Federal Register at 74 FR 22810 on May 14, 2009.
    The comment period closed on June 1, 2009. Six comments from two 
respondents were received. The Councils considered the comments 
received and concluded that the interim rule should be converted to a 
final rule with minor changes.
    The comments received are discussed below.
    a.The first respondent submitted the following 4 comments.
    Comment 1. The respondent believes that the prescription at FAR 
3.907-7 is too broad and should be revised to limit application more 
specifically to work funded with the Recovery Act funds. Revised 
language is proposed for FAR 3.907-7 as follows: ``Use the clause at 
52.203-15, Whistleblower Protections under the ARRA of 2009 in--All 
solicitations and contracts entirely funded with Recovery Act funds; 
and All solicitations and contracts funded in part with Recovery Act 
funds for the work to be funded with those Recovery Act funds.''
    Response. Section 1553 prohibits reprisals against any employee of 
a contractor receiving ``covered funds'' for disclosing certain 
information related to ``covered funds.'' The limitation of the 
applicability of the rule is created by the

[[Page 34259]]

definition of covered information, which means only information that 
the employee reasonably believes is evidence of gross mismanagement of 
the contract or subcontract related to covered funds, gross waste of 
covered funds, a substantial and specific danger to public health or 
safety related to the implementation or use of covered funds, an abuse 
of authority related to the implementation or use of covered funds, or 
a violation of law, rule, or regulation related to an agency contract 
(including the competition for or negotiation of a contract) awarded or 
issued relating to covered funds. It does not apply to information 
relating to problems not associated with the use of covered funds.
    Section 1553 defines ``Covered funds'' to mean any contract, grant, 
or other payment received by a contractor if--
    (1) The Federal Government provides any portion of the money or 
property that is provided, requested, or demanded; and
    (2) At least some of the funds are appropriated or otherwise made 
available by the Recovery Act.
    As defined in section 1553, covered funds is broader than just 
funds appropriated or otherwise made available by the Recovery Act.
    Since the prohibition of reprisals applies to any employee of the 
contractor receiving the covered funds, the clause prescription as 
stated in the interim rule at FAR 3.907-7 is correct. However, the 
Councils have revised the definition of ``covered funds'' at FAR 3.907-
1 to be more consistent with the statutory definition, and have revised 
the flowdown in the clause at FAR 52.203-15(b) to apply only to 
subcontracts that are funded in whole or in part with the Recovery Act 
funds.
    Comment 2. The respondent states that because section 1553 of the 
Recovery Act is implemented by FAR 52.203-15 and included in contracts 
for commercial items by FAR 52.212-5(b)(3), it is not necessary to 
amend paragraph (r) of FAR 52.212-4.
    Response. The Councils agree. The newly added language at FAR 
52.212-4(r) is deleted.
    Comment 3. The respondent states that the clause at FAR 52.203-15 
should be indicated as a ``check-off'' clause as has been noted for FAR 
52.212-5(b)(4), and FAR 52.204-11 (FAR Case 2009-009).
    Response. The Councils agree. However, it is not necessary to make 
any further changes to the rule. This is a checklist being interpreted 
correctly by the U.S. National Archives and Records Administration and 
the U.S. Government Printing Office.
    Comment 4. The respondent states that it is unnecessary to include 
the reference to FAR 52.203-15 in paragraph (e)(1) of FAR 52.212-5 
because this was incorporated under FAR Case 2009-011.
    Response. The Councils partially agree. The Technical Amendment to 
the rule, published in the Federal Register at 74 FR 22810 on May 14, 
2009, moved this paragraph to the Alternate II.
    b. The second respondent submitted 2 comments to the interim rule.
    Comment 1. The respondent believes that the rule should be amended 
to require the contracting officer to immediately forward the complaint 
ONLY to the Office of Inspector General (OIG).
    Response. The Councils partially agree. The language in FAR 3.907-
3(c) is revised to add ``and to other designated officials in 
accordance with agency procedures (e.g., agency legal counsel'') so 
that agencies are informed as well as the OIG.
    Comment 2. The respondent believes that the Recovery Act grants 
authority concerning the extension of time for investigating complaints 
and the determination on whether or not to investigate or to 
discontinue an investigation to the IG, not to the agency head as 
stated in FAR 3.907-6(c)(1).
    Response. The Councils agree that subsection (b) of section 1553 
gives the authority to the IG. However, FAR 3.907-6(c)(1) reflects the 
wording of subsection (c)(3) of section 1553. The FAR did not create 
any new authority here.
    In addition, the Councils added a reference, at FAR 52.203-15, to 
the web address where contractors may obtain a whistleblower poster 
developed by the Recovery Accountability and Transparency (RAT) Board.
    This is a significant regulatory action and, therefore, was subject 
to Office of Management and Budget review under section 6 of Executive 
Order 12866, Regulatory Planning and Review, dated September 30, 1993. 
This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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., because the rule applies 
similar, but not identical, whistleblower protections to contractor and 
subcontractor employees as currently covered in FAR subpart 3.9. 
Likewise, this rule only applies to contracts awarded with Recovery Act 
funds.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
chapter 35, et seq.

List of Subjects in 48 CFR Parts 3 and 52

    Government procurement.

    Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.

0
Accordingly, the interim rule published in the Federal Register at 74 
FR 14633 on March 31, 2009, is adopted as a final rule with the 
following changes:

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

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

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

0
2. Amend section 3.907-1 by revising the definition of ``Covered 
funds'' to read as follows:


3.907-1  Definitions.

* * * * *
    Covered funds means any contract payment, grant payment, or other 
payment received by a contractor if--
    (1) The Federal Government provides any portion of the money or 
property that is provided, requested, or demanded; and
    (2) At least some of the funds are appropriated or otherwise made 
available by the Recovery Act.
* * * * *
0
3. Amend section 3.907-3 by revising paragraph (c) to read as follows:


3.907-3  Procedures for filing complaints.

* * * * *
    (c) A contracting officer who receives a complaint of reprisal of 
the type described in 3.907-2 shall forward it to the Office of 
Inspector General and to other designated officials in accordance with 
agency procedures (e.g., agency legal counsel).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 52.203-15 by revising the date of the clause, and 
paragraphs (a) and (b) to read as follows:

[[Page 34260]]

52.203-15  Whistleblower Protections Under the American Recovery and 
Reinvestment Act of 2009.

* * * * *
    WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND 
REINVESTMENT ACT OF 2009 (JUN 2010)
    (a) The Contractor shall post notice of employees rights and 
remedies for whistleblower protections provided under section 1553 of 
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) 
(Recovery Act).
    (b) The Contractor shall include the substance of this clause, 
including this paragraph (b), in all subcontracts that are funded in 
whole or in part with Recovery Act funds.
* * * * *


52.212-4  [Amended]

0
5. Amend section 52.212-4 by removing the clause date ``(Mar 2009)'' 
and adding ``(JUN 2010)'' and removing from paragraph (r) ``Section 
1553 of the American Recovery and Reinvestment Act of 2009 relating to 
whistleblower protections for contracts funded under that Act;''.
0
6. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(3) ``(Mar 2009)'' and adding ``(JUN 
2010)'' in its place; and
0
c. Revising paragraph (e)(1)(ii)(B) of Alternate II.
    The revised 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 (JUN 2010)
* * * * *
    Alternate II * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (B) 52.203--15, Whistleblower Protections Under the American 
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. 
L. 111-5).
* * * * *
0
7. Amend section 52.213-4 by revising the date of the clause and 
paragraph (a)(2)(vi) 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) (JUN 2010)
    (a) * * *
    (2) * * *
    (vi) 52.244-6, Subcontracts for Commercial Items (JUN 2010).
* * * * *
0
8. Amend section 52.244-6 by revising the date of the clause and 
paragraph (c)(1)(ii) to read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *
    SUBCONTRACTS FOR COMMERCIAL ITEMS (JUN 2010)
* * * * *
    (c)(1) * * *
    (ii) 52.203-15, Whistleblower Protections Under the American 
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. 
L. 111-5), if the subcontract is funded under the Recovery Act.
* * * * *
[FR Doc. 2010-14189 Filed 6-15-10; 8:45 am]
BILLING CODE 6820-EP-S