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Defense Whistleblower Protections Expand to Subcontractors

These employees for the first time can report fraud and retaliation.

Monday, July 1, marks the first day employees of subcontractors on Defense contracts enjoy new protections against reprisals from supervisors for reporting waste or fraud, as required under the 2013 National Defense Authorization Act signed by President Obama in January.

“Previously, subcontractors could complain to a boss, but not to a government office,” noted Marguerite Garrison, deputy inspector general for administrative investigations at the Defense Department’s inspector general’s office, who met with reporters Thursday to get out the word.

The new law expands protections for whistleblowers against reprisals for disclosures they make “to a court, grand jury, management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover or address misconduct,” her guidance explains. Workplace information campaigns must be in the language of the workforce.

The new protections -- long favored by whistleblower advocacy groups and pursued by Sen. Claire McCaskill, D-Mo., also alter the burden of proof on a preponderance of evidence to “bring it up to par with protections in other statutes,” said Nilgun Tolek, the Pentagon IG’s director of whistleblower reprisal investigations. “Congress has been going in this direction for a long time.”

The new protections, however, are not retroactive, the officials explained, so they don’t  apply to contracts let before July 1, nor to task orders added  before that date. And the regulations are still being incorporated into the Defense supplement to the Federal Acquisition Regulation. “The language is all wrapped up in contract law,” Garrison said. “It’s a long-term implementation that plays out over time.”

Allegations the law might affect, said Tolek, would include, for example, “when someone sees a bunch of equipment that’s part of the contract work being thrown out when it’s perfectly good.” The employee could raise his or her concern with the Defense Contract Management Agency, and “whether they’re right or not, they’re protected from the company” reprisals. Other examples include billing against one contract the work done on another contract, overbilling, or swapping in young people on assignments when they don’t have the advertised expertise, she said.

The IG’s administrative investigations office does not handle criminal cases under qui tam or the False Claims Act, which are done by the IG’s Defense Criminal Investigative Service.

In anticipation of the change, the IG administrative investigations staff grew by 30 percent to 40 percent in the past two years, Garrison said, and they expect a rise in the number of complaints. In 2006, the office received only 16 complaints to its hotline -- “the bellybutton of the DoD inspector general,” she said. By 2012, the number had grown to 85, though only one was substantiated.  “Whether we’ll see an increase in complaints, we anticipate additional investigators and expect to do the investigations in-house” rather than delegate them to the service IGs, Garrison said.

“Even if we don’t get more complaints, we will do more investigations because of threshold issues in the management chain that had prevented us in the past from going forward,” which made the workload statistics look negative, added Tolek. And many of the complaints do not pan out --one would-be whistleblower thought he was a Defense contractor but actually was doing work for the State Department, she said.

Garrison and her team have been speaking to companies and industry councils on the need to go beyond the previous practice of putting posters up in the workplace and on the company website to inform workers of their whistleblower protections. “Soldiers, sailors, Marines and airmen call the hotline because they know they have protection,” Garrison said, “but contractors need an education process.”

Garrison says she still has to educate her own workforce on how to read a contract. “We’re in uncharted territory. Will we get it right 100 percent of the time? No. We will make mistakes, but will learn as we go.”

(Image via AlexRoz/Shutterstock.com)

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