[Clarification: This story was updated and the headline was altered to make it clearer that the proposed rule change does not add new whistleblower protections for federal contractors. Rather, the proposed rule would allow those whistleblowers to submit their disclosures to the Office of Special Counsel. Updated 1:30 p.m., Jan. 26, 2015.]
Government contractors and subcontractors may have a new avenue to report wrongdoings at federal agencies, if a new rule being floated by the Office of Special Counsel is put in place.
OSC announced Thursday that it was seeking input on a possible revision to regulations covering the disclosure by employees working under federal contracts of wrongdoings taking place at federal agencies.
“This revision will allow employees of Federal contractors, subcontractors, and grantees to disclose wrongdoing within the Federal government if they work at or on behalf of a U.S. government component for which OSC has jurisdiction to accept disclosures,” said a proposed rule published Jan. 22 in the Federal Register.
Through the Civil Service Reform Act of 1978 (CSRA) and the Whistleblower Protection Act (WPA), Congress has deputized federal employees to report fraud, waste and abuse, and provided protection for those employees from reprisals by agency officials.
“In the modern workforce, employees of contractors, subcontractors, and grantees (collectively ‘contractors’) often work alongside Federal employees, having similar if not identical duties,” the proposed rule said. “Thus contractors are similarly situated to observe or experience the same type of wrongdoing as are Federal employees. According contractors a safe channel to report wrongdoing within the government advances Congress’s purpose in enacting the CSRA and WPA. Moreover, Congress recently extended protection against retaliation to government contractors who make whistleblower disclosures, thereby signaling its encouragement of such disclosures. OSC deems such protection against retaliation a precondition to asking insiders to risk their careers to report wrongdoing.”
The National Defense Authorization Act of 2013 (NDAA) implemented a pilot program that enhanced the protection of contractors from reprisals for reporting gross mismanagement of a federal contract or grant. This protection also extended to contractors reporting a “gross waste of Federal funds”, violations of law or regulations, abuses of authority and substantial dangers to public health and safety. Contractors covered by the NDAA can disclose such wrongdoings to authorized officials at either the Department of Justice or OSC.
Under the rule change, OSC will be able to accept disclosures from both current or former contractors who say they faced retalation for reporting wrongdoing, provided they are contractors working for agencies covered by the NDAA or agencies the OSC already has jurisdiction over.
OSC, for example, does not have jurisdiction over the Postal Service, so the rule change and protections would not apply to USPS contract employees. For a complete list of agencies in OSC’s jurisdiction, go to OSC.gov.
Once OSC receives a disclosure from a contractor who is eligible for whistleblower protection, it will determine if there is “substational likelihood” of wrongdoing.
“If OSC determines that a disclosure meets the ‘substantial likelihood’ threshold, the Special Counsel will refer the matter to the relevant agency head, who will be required to conduct an investigation into the disclosure,” the proposed rule said. “The identity of a contractor who makes a disclosure to OSC will not be revealed without his or her consent, unless the Special Counsel determines that there is an imminent danger to public health or safety, or an imminent violation of criminal law. OSC does not consider anonymous disclosures. Any disclosure submitted anonymously will be referred to the Office of Inspector General at the appropriate agency.”
The deadline for submitting comments to OSC on the proposed rule is March 23. Comments can be submitted online or via mail. Include “NPRM” in the subject line of the email.