FAR Council updates whistleblower protection, small business rules

Contractor employees will have enhanced whistleblower protections starting Nov. 6 after a years long effort to improve protections.

In its final rule, the Federal Acquisition Regulatory Council made disclosing certain information permanently protected. Contractors and subcontractors are unable to be reimbursed for reprisal claim defense legal fees. Contractors and subcontractors must inform their employees about these whistleblower protections.

The changes apply to all solicitations and contracts, including those at or below the Simplified Acquisition Threshold and for commercial-off-the-shelf products and services. The final rule also solidifies a pilot program giving contractors improved protections from reprisal if they share certain information. However, this does not apply to the Defense Department, Coast Guard and NASA because they have a different whistleblower program for contractor employees.

No changes were made to the rule after public comments.

As stated in the final rule, “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.”

Changes to the 8(a) program

The 8(a) business development program will have updated and clarified requirements starting Nov. 6 in an effort to “more clearly articulate SBA’s intent with regard to certain aspects of the 8(a) program to eliminate confusion and decrease burdens on procuring activities and 8(a) participants,” the final rule stated.

The FAR Council finalized the Small Business Administration’s changes to the 8(a) program earlier this week. However, prior public comments showed mixed support for the rule, which would move some contracts out of the 8(a) program.

Specifically, it merges the 8(a) business development mentor-protégé program and the all small mentor-protégé program to minimize confusion and redundancy. It removes the requirement for small businesses seeking a contract as a joint venture to submit a joint venture agreement to SBA and changes several program regulations to lessen burdens.

Furthermore, it requires contracting officers to notify SBA for certain activities, namely: “contracting officers are required to submit blanket purchase agreements (BPAs) issued under FAR part 13 and FAR part 13 BPA orders in the 8(a) Program to SBA for acceptance,” the final rule said. “Contracting officers are also required to notify SBA of follow-on, non-8(a) procurements and should notify SBA when a mandatory source will be utilized for a follow-on to an 8(a) contract.”

Protesting small business set asides

Ten years in the making, the FAR Council looks to implement SBA’s regulatory changes to update requirements for size and socioeconomic status protests for contract set-asides in a proposed rule released earlier this week.

Specifically, the changes would apply to small business set-asides for contracts. SBA clarified when size protests must be submitted for the set aside or for multiple-award indefinite-delivery indefinite-quantity (IDIQ) contracts. SBA also looked to allow socioeconomic protests for multiple award IDIQ contract set-asides for historically underutilized business zone, service-disabled veteran-owned small business, women-owned small business or economically disadvantaged women-owned small business that is not partially or totally set aside for that socioeconomic category. SBA noted that its entities could file a size or socioeconomic protest. The changes would not apply to “orders and blanket purchase agreements placed under Federal Supply Schedule contracts,” the proposed rule stated.

Comments are due by Dec. 4.

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