INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE CONTRACTOR REPRISAL 10 U.S.C. 2409, AS AMENDED D EFENSE I NDUSTRY I NITIATIVE W EBINAR O CTOBER 20, 2014

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 2 O VERVIEW o Governing statutes and regulations o Amendments in the FY 2013 NDAA o Whistleblower rights o How claims must be filed o Requirements for the contractor o Intelligence Community excepted o Standards of proof o Possible results/remedial actions

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 3 G OVERNING S TATUTES AND R EGULATIONS o Title 10 U.S.C. § Contractor employees: protection from reprisal for disclosure of certain information o DFARS Subpart 203.9—Whistleblower Protections for Contractor Employees, Revised February 28, 2014 o Inspector General Act of 1978, as amended, Section 8(c)

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 4 E FFECTIVE D ATE OF 2013 NDAA A MENDMENTS o The amendment was signed into law on January 2, 2013 and went into effect on July 1, 2013 and applies to:  All contracts awarded on or after July 1;  All task orders entered on or after July 1; and  All contracts awarded before July 1 that are modified to include a contract clause applying the amendment o Not later than 1 July 2013, the DoD and NASA Supplements to the Federal Acquisition Regulation shall implement the amendment o Major modifications to contracts awarded before implementation, shall include, if possible, a contract clause instituting adherence to this amendment

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 5 T ITLE 10 U.S.C. § 2409 A MENDMENTS IN O CHRE o Prohibition of Reprisal  An employee of a contractor or subcontractor may not be: Discharged Demoted Otherwise discriminated against as a reprisal  For disclosing information to: Congress or a representative of a committee of Congress An Inspector General The Government Accountability Office A DoD employee responsible for contract oversight or management An authorized official of an agency or the DoJ A court or grand jury A management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct  The whistleblower must reasonably believe there is evidence of: Gross mismanagement of a DoD contract or grant Gross waste of DoD funds Abuse of authority relating to a DoD contract or grant Substantial and specific danger to public health or safety, or Violation of law, rule, or regulation related to a DoD contract (including competition for or negotiation of a contract) or grant

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 6 R EASONABLE B ELIEF o Could a similarly situated person (given the information available to the complainant at the time and having the equivalent background, training, and position) believe that the disclosed information evidences gross mismanagement, etc.

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 7 F ILING A C OMPLAINT ( PER THE DFARS) o DoD contractor/subcontractor employees who believe they have been reprised against in violation of 10 U.S.C. § 2409 should file a complaint with the Defense Hotline o The employee will be expected to provide:  Name and contact info  Copy of the protected disclosure and correspondence related to the disclosure  A copy of the personnel action taken against them  Names, titles, company, and location for the management officials alleged to have taken the personnel action  Contract number, if known; if not, enough information to identify the contract  Statement of when, why and how the official knew of the disclosure  Indicate how there is a linkage between the disclosure and the personnel action  Identify any key witnesses

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 8 D O D OIG MUST INVESTIGATE WHEN : o The complaint:  Has been filed within three years of the alleged personnel action  Is not frivolous  Alleges reprisal under the statute  Has not been previously addressed in another Federal or State judicial or administrative proceeding o Unless DoD OIG has determined that the complaint has not met the above conditions, it must submit a report within 180 days after receiving the complaint, unless the complainant agrees to an extension of time up to 180 additional days.

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 9 I NVESTIGATIVE P ROCESS o Intake o Fieldwork o Report of Investigation o Notifications

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 10 R EQUIREMENTS FOR THE C ONTRACTOR o DoD contractors are currently required by section of the Defense Federal Acquisition Regulation Supplement to inform employees, in the predominant native language of the workforce, in writing of their rights under 10 U.S.C. § 2409 o The DFARS at also requires contractors/subcontractors to display the Defense Hotline poster in common work areas and, if they maintain company websites as a method of providing information to employees, they shall display an electronic version of the poster at the website. o The rights and remedies in 10 U.S.C. § 2409 may not be waived by any agreement, policy, or condition of employment o Taking a personnel action against an employee is prohibited under § 2409 even if it is undertaken at the request of a Department or Administration official, unless the request takes the form of a nondiscretionary directive and is within the authority of the Department or Administration official making the request.

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 12 I NTELLIGENCE C OMMUNITY E XCEPTIONS o 10 U.S.C. § 2409 shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)). o 10 U.S.C. § 2409 shall not apply to any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure--  relates to an activity of an element of the intelligence community; or  was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 13 S TANDARDS OF P ROOF o Preponderance of the evidence to determine whether a protected disclosure was a contributing factor in an act of reprisal o Clear and convincing evidence to determine that the action would have been taken absent the protected disclosure, weighing: (1)Timing (2)Strength of the agency's evidence in support of its personnel action; (3)Existence and strength of any motive to retaliate or animus toward the protected disclosure on the part of the agency officials who were involved in the decision; and (4)Any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated.

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 14 RESULTS & REMEDIAL ACTIONS o DoD IG has 180 days to submit a report of investigation o If investigated, the head of the agency concerned, the complainant, and the contractor/subcontractor concerned will each receive a report of findings o The head of the agency has 30 days to determine if there is sufficient basis to conclude that there was reprisal and will deny relief or take one or more of the following actions:  Order the contractor/subcontractor to take affirmative action to abate the reprisal  Order the contractor/subcontractor to make the individual whole  Order the contractor/subcontractor to pay for the complainant’s costs/fees for filing the complaint o If the agency head denies relief or 210 days elapse, the complainant will have exhausted their administrative remedies and may bring a de novo action at law against the contractor/subcontractor  Complainant must file for relief within 2 years of remedies being deemed exhausted

INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE 15 Q UESTIONS Ms. Nilgun Tolek Director Mr. Rich Leatherman Outreach Specialist Whistleblower Reprisal Investigations DoD OIG