[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Rules and Regulations]
[Pages 69517-69523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21321]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3, 31, and 52
[FAC 2023-06, FAR Case 2017-005, Item II; 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: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to implement an act to enhance
whistleblower protection for contractor employees. The rule makes
permanent the protection for disclosure of certain information. It also
clarifies that the prohibition on reimbursement for legal fees accrued
in defense against reprisal claims applies to subcontractors, as well
as contractors.
DATES: Effective date: November 6, 2023.
Applicability: At the time of any major modification to a contract,
the agency shall make best efforts to include 52.203-17 in a contract
that does not already contain it.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Malissa Jones, Procurement Analyst, at 571-886-4687 or by email at
[email protected]. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or [email protected]. Please cite FAC 2023-06, FAR Case
2017-005.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 83 FR 66223 on December 26, 2018, to amend the FAR to
implement an act to enhance whistleblower protection for contractor and
grantee employees, including employees of subcontractors (Pub. L. 114-
261), enacted December 14, 2016. Although the statute addresses both
contractor and grantee employees, including employees of
subcontractors, the FAR only directly covers contracts and contractors,
and indirectly covers subcontracts and subcontractors with flowdown
requirements. Grants are covered in title 2 of the Code of Federal
Regulations.
This statute also amends 41 U.S.C. 4712 to make permanent the pilot
program for enhancement of contractor protection from reprisal for
sharing certain information. This program does not apply to DoD, NASA,
or the Coast Guard, where similar permanent enhanced whistleblower
protections for contractor employees were enacted by section 827 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013
(Pub. L. 112-239, 10 U.S.C. 2409). Neither program applies to certain
elements of the intelligence community (10 U.S.C. 2409(e) and 41 U.S.C.
4712(f)).
The four-year pilot program was enacted on January 2, 2013, by
section 828 of the NDAA for FY 2013, with an
[[Page 69518]]
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.
Public Law 114-261 also clarifies that the cost principles at 10
U.S.C. 2324(k) and 41 U.S.C. 4304 and 4310 that prohibit reimbursement
for legal fees accrued in defense against reprisal claims apply to
costs incurred by a contractor, subcontractor, or personal services
contractor. Personal services contractors are contractors, and the cost
principles generally already apply in the same way to costs incurred by
subcontractors as to costs incurred by contractors. Three respondents
submitted comments on the proposed rule.
II. Discussion and Analysis
DoD, GSA, and NASA reviewed the public comments in the development
of the final rule. The comments did not recommend changes to the rule;
instead, they expressed concerns regarding the underlying intent of the
statute. While DoD, GSA, and NASA recognize the concerns identified in
the public comments, the public comments are not within the scope of
the rule. A discussion of the comments received is provided as follows:
A. Summary of Changes From Proposed Rule
No changes were made to the rule as a result of the public
comments.
A minor change was made from the proposed rule regarding the
applicability of FAR 52.203-17. The proposed rule prescribed the clause
in acquisitions above the simplified acquisition threshold (SAT). The
final rule changes the prescription of clause 52.203-17 to apply to all
solicitations and contracts, including those at or below the SAT. The
clause implements 41 U.S.C. 4712(d), which requires contractors and
subcontractors to notify their employees of their whistleblower
protections. The employee protections of the whistleblower program are
applicable to all contracts regardless if expressly stated in the
awarded contract. By changing the clause prescription to include
solicitations and contracts at or below the SAT, contractors and
subcontractors will have greater awareness of this responsibility and
employees also will be more aware of the whistleblower protections.
B. Analysis of Public Comments
1. Whistleblower Declaration
Comment: A respondent stated that there should be a requirement for
the whistleblower to declare they are blowing the whistle.
Response: Changing the statutory requirement is outside the scope
of the rule.
2. Compulsory Reinstatement
Comment: A respondent stated that the current requirement to
reinstate an employee if the IG or agency determine the whistleblower
was retaliated against should not be compulsory.
Response: Changing the statutory requirement at 41 U.S.C. 4712(c)
is outside the scope of the rule.
3. Ability To Waive Complaint
Comment: A respondent stated that FAR 3.905-1 should clarify
whether or not whistleblower cases are exempt from employment
agreements that waive the right to a jury trial or arbitration.
Response: FAR 3.905-1(d) states there is no waiver: ``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.''
The source of this text is 41 U.S.C. 4712(c)(7). Also see 41 U.S.C.
4712(c) for the right to a jury trial.
4. Standard for Liability
Comment: A respondent stated that the statutory standard for
determining liability should be changed from an event that
``contributed'' to the negative employment action to one that
``substantially contributed'' or ``primarily contributed'' to the
negative employment action.
Response: 41 U.S.C. 4712(a) states that ``an employee . . . may not
be discharged, demoted, or otherwise discriminated against as a
reprisal for disclosing . . .''. The statute does not require a showing
that the event substantially or primarily contributed to the negative
employment action.
5. Allowability of Legal Fees
Comment: A respondent stated that the statutory requirement should
include allowability of legal fees to settle de minimis suits and for
suits when a contractor successfully defends itself from the
whistleblower, as well as requiring the plaintiff to bear their own
litigation costs unless the IG finds the whistleblowing
``substantially'' or ``primarily'' contributed to the retaliatory
action.
Response: Some of these costs are already allowable, see FAR
31.205-47. Changing the statutory requirements is outside the scope of
the rule.
6. Readability
Comment: A respondent stated that some of the changes in the rule
make the text insufficiently readable. The respondent stated that the
definition of ``abuse of authority'' and the text at FAR 3.903(a) and
(c) have a low readability score.
Response: The definition of ``abuse of authority'' in the proposed
rule was taken verbatim from 41 U.S.C. 4712(g)(1) and previously
included in the FAR at 3.908-2. The text at 3.903(a) was substantively
drawn from 41 U.S.C. 4712(a)(1) and reframed in active voice as a
prohibition that applies to contractors and subcontractors. The text at
3.903(c) was taken verbatim from 41 U.S.C. 4712(a)(3)(A), with the
exception of omitting references to grants. Because these are the words
of the statute, no changes will be made.
7. Support for the Rule
Comment: A respondent stated that they support the rule.
Response: Noted.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products and Commercial Services,
Including Commercially Available Off-the-Shelf (COTS) Items
Based on the determinations by the FAR signatories (DoD, GSA, and
NASA) and the Administrator for Federal Procurement Policy, in
accordance with 41 U.S.C. 1905, 1906, and 1907, this rule applies to
all solicitations and resultant contracts, including contracts and
subcontracts for acquisitions at or below the SAT, and contracts and
subcontracts for the acquisition of commercial services and commercial
products, including COTS items.
As explained below, the underlying statutory requirements that this
rule implements are applicable to all Government contracts and
subcontracts by operation of law. The FAR is being amended to include
the clause, 52.203-17, Contractor Employee Whistleblower Rights, which
implements 41 U.S.C. 4712, in all prime contracts and subcontracts. The
discretion that the FAR signatories and the Administrator are
exercising is essentially limited to the determination to incorporate
the clauses established by this rule into contracts and subcontracts
below the SAT and contracts and subcontracts for commercial products,
commercial services, and COTS items. The FAR
[[Page 69519]]
Council is not determining when the whistleblower law applies but
rather when the clause would be included in contracts and subcontracts.
The clause does not apply to DoD, NASA and the Coast Guard, or
applicable elements of the intelligence community.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
Pursuant to 41 U.S.C. 1905, contracts or subcontracts in amounts
not greater than the SAT will be exempt from a provision of law unless
the law (i) contains criminal or civil penalties; (ii) specifically
refers to 41 U.S.C. 1905 and states that the law applies to contracts
and subcontracts in amounts not greater than the SAT; or (iii) the
Federal Acquisition Regulatory Council (FAR Council) makes a written
determination and finding (D&F) that it would not be in the best
interest of the Federal Government to exempt contracts and subcontracts
in amounts not greater than the SAT from the provision of law. If none
of these conditions are met, the FAR is required to include the
statutory requirement(s) on a list of provisions of law that are
inapplicable to contracts and subcontracts in amounts not greater than
the SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Products and Commercial Services
Pursuant to 41 U.S.C. 1906, acquisitions of commercial products and
commercial services (other than acquisitions of COTS items, which are
addressed in 41 U.S.C. 1907) are exempt from a provision of law unless
the law (i) contains criminal or civil penalties; (ii) specifically
refers to 41 U.S.C. 1906 and states that the law applies to
acquisitions of commercial products and commercial services; or (iii)
the FAR Council makes a written determination that it would not be in
the best interest of the Federal Government to exempt contracts and
subcontracts for the procurement of commercial products and commercial
services from the provision of law. If none of these conditions are
met, the FAR is required to include the statutory requirement(s) on a
list of provisions of law that are inapplicable to acquisitions of
commercial products and commercial services.
C. Applicability to Contracts for Commercially Available Off-the-Shelf
Items
Pursuant to 41 U.S.C. 1907, acquisitions of COTS items will be
exempt from a provision of law unless the law (i) contains criminal or
civil penalties; (ii) specifically refers to 41 U.S.C. 1907 and states
that the law applies to acquisitions of COTS items; (iii) concerns
authorities or responsibilities under the Small Business Act (15 U.S.C.
644) or bid protest procedures developed under the authority of 31
U.S.C. 3511 et seq.; 10 U.S.C. 3308; or 41 U.S.C. 3706 and 3707; or
(iv) the Administrator for Federal Procurement Policy makes a written
determination that it would not be in the best interest of the Federal
Government to exempt contracts and subcontracts for the procurement of
COTS items from the provision of law.
D. Determinations
The requirements of FAR 52.203-17, Contractor Employee
Whistleblower Rights, ensures that all contractor and subcontractor
employees are covered by the whistleblower rights and remedies. Having
the clause in all Federal Government contracts is beneficial to
contractor and subcontractor employees, and the public. Employees
benefit from having whistleblower rights and remedies so they can
report potential wrongdoing without fear of reprisal. The public
benefits from employees reporting wrongdoing which may result in
actions to hold firms responsible for unlawful acts. It is in the best
interest of the Government to apply whistleblower protections through a
clause in all Federal Government contracts.
For these reasons, the FAR Council has determined that it is in the
best interest of the Government to apply the final rule to contracts
and subcontracts at or below the SAT and for the acquisition of
commercial products and commercial services.
Similarly, the Administrator for Federal Procurement Policy has
determined that it is in the best interest of the Government to apply
this rule to contracts and subcontracts for the acquisition of COTS
items. It should be noted that the pilot program applied the clause to
all commercial products, commercial services, and COTS acquisitions
through 52.212-4(r), but only above the SAT for noncommercial
acquisitions.
IV. Expected Impact of the Rule
The rule enhances whistleblower protection for contractor employees
by making permanent the protection for disclosure of certain
information, and by applying the requirement for contractors and
subcontractors to inform their employees of the whistleblower
protections through the inclusion of FAR clause 52.203-17 in
acquisitions at or below the SAT. It also clarifies that FAR 31.205-47
prohibition on reimbursement for legal fees accrued in defense against
reprisal claims applies to subcontractors, as well as contractors. DoD,
NASA, and the Coast Guard have a different whistleblower program for
contractor employees.
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 not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801-808) requires interim
and final rules to be submitted to Congress before the rule takes
effect. DoD, GSA, and NASA will send this to each House of the Congress
and to the Comptroller General of the United States. The Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget has determined that this is not a major rule under 5 U.S.C.
804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
This 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. 601-612.
This rule implements 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 rule makes minor changes to the pilot program, along with
making it a permanent program. In the final rule, the clause 52.203-
17 will apply to all solicitations and contracts. The pilot program
applied the clause to all commercial products and commercial
services and COTS acquisitions through 52.212-4(r), but only above
the SAT for non-commercial acquisitions. The FAR Council made a
determination to apply the
[[Page 69520]]
clause to contracts at or below the SAT because the contractor
employee protections apply regardless of contract value. By changing
the clause prescription to include solicitations and contracts at or
below the SAT, this makes clearer the rights and protections
employees have.
There were no significant issues raised by the public in
response to the initial regulatory flexibility analysis.
The program 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 2020-
2022, there were an average 146,242 new contract awards by agencies
other than DoD, NASA, and the Coast Guard, including commercial
awards and awards at or below the SAT that were awarded to small
businesses (to an average of 23,984 unique vendors).
Regarding the amendment to the cost principles, addition of the
words ``or subcontractor'' in multiple places throughout FAR 31.205-
47 has no or a 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.
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.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
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. 3501-3521).
List of Subjects in 48 CFR Parts 3, 31, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA 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 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); 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. 4701, 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 resolutions), is implemented in 3.909, which is
applicable to all agencies.
(c) 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 a definition for ``Abuse of
authority'';
0
b. Removing the definition of ``Authorized official of an agency''; and
0
c. Revising the definition of ``Inspector General''.
The addition and revision read 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
chapter 4 of title 5 of the United States Code 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. Add 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) Disclosure may be made to the following entities:
(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.
[[Page 69521]]
0
6. Revise section 3.904 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 report of findings has been provided by the
Inspector General to the head of the agency and to--
(1) The complainant and any person acting on the complainant's
behalf; and
(2) The contractor and/or subcontractor alleged to have committed
the violation.
(c) 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
in a time and manner that permits the agency head to take action not
later than 30 days after receiving the report, as required by 3.905-
1(a).
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.
(iv) Consider disciplinary or corrective action against any
official of the executive agency, if appropriate.
(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) 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 2
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.
The contracting officer shall insert the clause at 52.203-17,
Contractor Employee Whistleblower Rights, in all solicitations and
contracts, except 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.
[[Page 69522]]
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
0
16. Amend section 31.205-47--
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 paragraph (b) introductory text 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 paragraph (f) introductory text by removing ``connection with''
and adding ``connection with the following'' in its place;
0
i. In paragraph (f)(4) by removing ``the contractor'' wherever it
appears and adding ``the contractor or subcontractor'' in its place;
0
j. Revising paragraph (f)(5);
0
k. In paragraph (f)(6) by removing ``contract'' and adding ``contract
or subcontract'' in its place;
0
l. In paragraph (f)(7) by removing ``the contractor is'' and adding
``the contractor or subcontractor is'' in its place; and
0
m. In paragraph (g) by removing ``the contractor'' wherever it appears
and adding ``the contractor or subcontractor'' in its place.
The revision reads as follows:
31.205-47 Costs related to legal and other proceedings.
* * * * *
(f) * * *
(5) Costs of legal, accounting, and consultant services and
directly associated costs incurred in connection with the defense or
prosecution of lawsuits or appeals between contractors or
subcontractors arising from either--
(i) An agreement or contract concerning a teaming arrangement, a
joint venture, or similar arrangement of shared interest; or
(ii) Dual sourcing, coproduction, or similar programs, are
unallowable, except when--
(A) Incurred as a result of compliance with specific terms and
conditions of the contract or subcontract or written instructions from
the contracting officer; or
(B) When agreed to in writing by the contracting officer.
* * * * *
31.603 [Amended]
0
17. Amend section 31.603 by removing from paragraph (b)(15) ``incurred
by a contractor'' and ``regulation by the contractor'' and adding
``incurred by a contractor or subcontractor'' and ``regulation by the
contractor or subcontractor'' in their place, respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
18. Revise section 52.203-17 to read as follows:
52.203-17 Contractor Employee Whistleblower Rights.
As prescribed in 3.906, insert the following clause:
Contractor Employee Whistleblower Rights (NOV 2023)
(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 Federal Acquisition Regulation (FAR) 3.900 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
3.900 through 3.905.
(c) The Contractor shall insert the substance of this clause,
including this paragraph (c), in all subcontracts.
(End of clause)
0
19. Amend section 52.212-4 by revising the date of the clause and
paragraph (r) to read as follows:
52.212-4 Contract Terms and Conditions--Commercial Products and
Commercial Services.
* * * * *
Contract Terms and Conditions--Commercial Products and Commercial
Services (NOV 2023)
* * * * *
(r) Compliance with laws unique to Government contracts. The
Contractor agrees to comply with 31 U.S.C. 1352 relating to
limitations on the use of appropriated funds to influence certain
Federal contracts; 18 U.S.C. 431 relating to officials not to
benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety
Standards; 41 U.S.C. chapter 87, Kickbacks; 49 U.S.C. 40118, Fly
American; and 41 U.S.C. chapter 21 relating to procurement
integrity.
* * * * *
0
20. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(4) through (64) as paragraphs (b)(5)
through (65);
0
c. Adding a new paragraph (b)(4);
0
d. Redesignating paragraphs (e)(1)(ii) through (xxiv) as paragraphs
(e)(1)(iii) through (xxv);
0
e. Adding a new paragraph (e)(1)(ii); and
0
f. In Alternate II:
0
i. Revising the date of the alternate;
0
ii. Redesignating paragraphs (e)(1)(ii)(C) through (W) as paragraphs
(e)(1)(ii)(D) through (X); and
0
iii. Adding a new paragraph (e)(1)(ii)(C).
The revisions and additions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (NOV
2023)
* * * * *
(b) * * *
__(4) 52.203-17, Contractor Employee Whistleblower Rights (NOV
2023) (41 U.S.C. 4712); 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).
* * * * *
(e)(1) * * *
(ii) 52.203-17, Contractor Employee Whistleblower Rights (NOV
2023) (41 U.S.C. 4712).
* * * * *
Alternate II (NOV2023). * * *
* * * * *
(e)(1) * * *
(ii) * * *
(C) 52.203-17, Contractor Employee Whistleblower Rights (NOV
2023) (41 U.S.C. 4712).
* * * * *
0
21. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
[[Page 69523]]
0
b. Removing from paragraph (a)(2)(vii) ``(SEP 2023)'' and adding ``
(NOV 2023)'' in its place;
0
c. Redesignating paragraphs (b)(1)(i) through (xxi) as paragraphs
(b)(1)(ii) through (xxii); and
0
d. Adding a new paragraph (b)(1)(i).
The revision and addition read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other than Commercial
Products and Commercial Services) (NOV 2023)
* * * * *
(b) * * *
(1) * * *
(i) 52.203-17, Contractor Employee Whistleblower Rights (NOV
2023) (41 U.S.C. 4712); 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).
* * * * *
0
22. Amend section 52.244-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (c)(1)(iii) through (xxi) as paragraphs
(c)(1)(iv) through (xxii); and
0
c. Adding a new paragraph (c)(1)(iii).
The revision and addition read as follows:
52.244-6 Subcontracts for Commercial Products and Commercial Services.
* * * * *
Subcontracts for Commercial Products and Commercial Services (NOV 2023)
* * * * *
(c)(1) * * *
(iii) 52.203-17, Contractor Employee Whistleblower Rights (NOV
2023) (41 U.S.C. 4712); 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. 2023-21321 Filed 10-4-23; 8:45 am]
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