RGCI - DPC Issues Guidance to DoD for Lack of Verifying Contractor Compliance with Whistleblower Protection Requirements

The Office of the Under Secretary of Defense, Defense Pricing and Contracting (DPC) issued a guidance memorandum dated March 18, 2024 to Agencies based on the results of the Department of Defense (DoD) Inspector General (IG) Audit of DoD Compliance on Whistleblower Protection Requirements. While the DoD IG found in most cases, that Contracting Officers included the DFARS 252.203-7002 Requirement to Inform Employees of Whistleblower Rights clause in contracts, they did not verify whether contractors were complying with the clause.

The DPC guidance memorandum instructs contracting offices to implement the following actions:

  • Review existing contracts to ensure whistleblower clause is included, or if appropriate, modify contracts to include the required clause;
  • Emphasize to contracting officials the value of the whistleblower program through training to address whistleblower compliance; and
  • Apply a risk-based approach to determine whether contractor compliance requirements should be verified, and as appropriate address oversight of the requirement in the contract surveillance plan.

What are the Applicable Whistleblower Clauses and the Requirements?

This is a very unique situation. Normally, the FAR 52.203-17 clause would be included in all federal agency contracts and the clauses in the DFARS and NFS would simply supplement the contractual requirement. However, in this case FAR 3.906 allows DoD, NASA, the Coast Guard, and applicable elements of the intelligence community to replace FAR 52.203-17 with their own version of the whistleblower requirements. These clauses are included in all solicitations and contracts including contracts for the acquisition of commercial products and services; and must be flowed down to subcontracts.

Additionally there is the clause FAR 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statement which prohibits contractors from restricting employees or subcontractors from lawfully reporting waste, fraud, or abuse related to the performance of a Government contract to a designated representative of a Federal agency.

Now What?

As a result of the IG report, Contracting Officers are going to start using a risk-based approach when developing the contract surveillance plan to determine whether compliance with the whistleblower requirements will be verified. Hanging a sign or poster in the cafeteria or entry way to the building will not suffice.

Written Instruction to the Employee is Required

Contractors are required to inform employees in writing of employee whistleblower rights and protections under the laws, using the predominant language of the workforce. Redstone recommends contractors draft a formal written policy on how they plan to inform employees and contract workers of the whistleblower rights and protections. More importantly, contractors need to determine how they will document and maintain the notification so they can demonstrate compliance with the clause. Whistleblower statutes contain strong protections against retaliation, harassment, or discrimination against whistleblowers by firing or taking adverse actions. Some potential remedies for whistleblowers include reinstatement of employee, payment of lost wages, and attorneys’ fees. Contractors should also review any confidentiality agreements to ensure there are no restrictions in reporting waste, fraud, or abuse under a Government contract to an appropriate law enforcement or Federal agency.

How Redstone Government Consulting Can Help

Redstone GCI offers comprehensive support to your company, including the development of policies and procedures tailored to meet whistleblower requirements. We conduct thorough reviews of your existing policies and procedures to ensure compliance with FAR/DFARS standards. Our services extend to providing web-based or in-person training sessions on FAR and Contractor Purchasing System compliance. Additionally, our Learning Management System (LMS) Module facilitates effective communication, education, and tracking of written notifications to your employees.

Employee Notification – Whistleblower Protections Training<br>LEARN MORE

Written by John Shire, Director & Lynne Nalley, Director

John Shire, Director & Lynne Nalley, Director

About Redstone GCI

Redstone GCI is a consulting firm focused on fulfilling the needs of government contractors in all areas of compliance. With a singular mission to help contractors through the multiple layers of “red tape,” we allow contractors to focus on what they do best – support their mission with the U.S. Government. We are home to a group of consultants made up of GovCon industry professionals, CPAs, attorneys, and retired government audit and acquisition professionals.

Our focus and knowledge of audit and compliance functions administered by DCAA and DCMA will always be at the heart of what we do. However, for the past decade, we’ve strategically grown to support other areas of the government contractor back-office with that same level of focus and expertise. We’ve added expertise in contracts management, subcontract administration, proposal pricing, various software systems, HR and employment law, property administration, manufacturing, data analytics/reporting, Grant specialists, M&A, and many other areas. When we see a trend in the needs of contractors, we act to ensure we can provide the best expertise in the market to fulfill those needs.

One thing our clients can be certain of is that with the Redstone GCI Team in your corner, there is no problem too big and no issue too technical for our team to tackle.

Topics: Contracts & Subcontracts Administration, Government Compliance Training, DFARS Business Systems, DCAA Audit Support, Human Resources, Government Regulations, Federal Acquisition Regulation (FAR)