GovernmentExecutive.com

A Senate panel last week approved a provision that would enhance whistleblower protections for Defense Department contract employees who report potential waste, fraud or abuse.

The Senate Armed Services Committee passed the language as an amendment to the fiscal 2008 Defense authorization bill, during a closed markup session that ended Thursday.

The amendment, offered by Sen. Claire McCaskill, D-Mo., would provide a jury trial in federal court for company employees who are subject to retaliation for exposing possible misconduct in Defense contracts. Contract employees could pursue the trial if they failed to receive an administrative ruling from the Defense secretary within 90 days of bringing a reprisal allegation to an inspector general.

"Jury trials for cases of whistleblower retaliation are a whistleblower's only genuine opportunity for a fair day in court -- with justice decided by the taxpayers the employee is trying to defend," said Tom Devine, legal director for the Government Accountability Project, a Washington-based advocacy group.

According to a statement from McCaskill's office, the amendment is a result of recent oversight hearings that identified loopholes in the law that end up denying federal contract workers the same whistleblower rights as those granted federal employees.

"Employees of private contractors in Iraq have witnessed all kinds of fraud, waste and abuse," McCaskill said in a statement. "They desperately need stronger whistleblower protection so they can help us stop the incredible waste of taxpayer dollars."

The provision would expand the definition of the information that can be revealed by a contract employee, protecting any disclosure that the employee "reasonably believes" is evidence of gross mismanagement, a gross waste of funds or a substantial danger to public health or safety.

The language also would require that employees working on contracts worth more than $5 million be notified of their rights and protections. It would make the Defense Department hold contractors accountable for protecting employees by withholding award payments from companies that retaliate against whistleblowers.

The whistleblower provisions, however, are not included in the House version of the authorization bill, approved May 17. The Senate version, should it clear the floor, would be sent to a House-Senate conference committee to reconcile differences.

But according to Adam Miles, legislative representative for GAP, the House is likely to support the whistleblower provisions in the Senate bill. The House passed similar protections for contract employees in the Whistleblower Protection Enhancement Act (H.R. 985) in March by a 331-94 vote, he noted.

"The McCaskill amendment provides a precedent for Senate support of similar reforms passed already in the House this year -- with a veto-proof majority," Miles said.

The House legislation seeks to reform the 1989 Whistleblower Protection Act, which, since 1994, has been weakened by a series of rulings in the Federal Circuit Court. The bill would restore what many advocacy groups consider Congress' original intent, by protecting federal employees and contractors at all agencies who disclose wrongdoing in the performance of official duties, "without restriction to time, place, form, motive or context."

But the Bush administration has argued that expanding whistleblower protections could increase the number of frivolous complaints and compromise national security. The president has threatened to veto the House bill on the grounds that it would authorize any employee to make a classified disclosure to members of Congress.

Still, Miles argued that because McCaskill's amendment does not authorize contractors to make such disclosures to Congress, it likely would not draw a veto threat from President Bush.

COMMENTS

• Having worked in government contracts for over 16 years, I can tell you that in many cases, government contractors are witness to fraud, waste or abuse by government employees, not merely by their employers. Yet, without whistleblower protection, most of these witnesses would be idiots to report the abuse, since their employers are loath to "bite the hand that feeds." For too long, the government has drawn an arbitrary line separating government employees from contractor personnel. Yes, the contractor is motivated by money. But, in most cases, contractors are motivated by a sincere desire to provide a quality product or service. We're all taxpayers and citizens first, and we have the same stake in wanting good government. The administration and those who play the national security card every time anyone tries to build some accountability or responsibility into the system would do well to remember the story of the boy who cried wolf. Robert Bragaw Posted May 30, 2007 5:17 PM
• To make this effective, the legislation needs to specifically address subcontracts and subcontractor employees. This happened to me! I was retaliated against by my company (a subcontractor) due to the company's fraud against employees (involving the Service Contract Act). While the DOL was investigating and auditing, I was "laid off". I landed a job with the government; and guess what, during the background investigation I was found to be unfit for public service because, after talking to the fraudulent company, my "lay off" was called a firing. I was then informed (by my agency's OGC)that whistleblower protections against this type of lying and retaliation do not flow to subcontractor employees, that since I coooperated with the Department of Labor, I was untrustworthy to my company, and that "firing" was justified. Nice, huh? Lesson everyone around me learned, just shut up or your life will be destroyed. Now I have two "firings" on my record - the "lay off" and then the government. Has any protection been granted me? No! Has my entire future been jeopardized? Yes! Be Careful Posted May 30, 2007 8:57 AM
• We need more government oversight to stop this incrediable waste of taxpayers dollars, not whistleblower protection for contractors. We cannot depend on contractor employees to report these abuses after the fact. It's too late to shut the barn door after the horses are out. For the past 10 years the defense acquisition and contract oversight functions have undergone budget cuts, because the money is needed to pay for the "war effort". It seems that a few more dollars invested in government oversight would have reaped huge benefits in quality products and services. QA Specialist Posted May 30, 2007 8:54 AM