S. Rept. 114-270 - TO ENHANCE WHISTLEBLOWER PROTECTION FOR CONTRACTOR AND GRANTEE EMPLOYEES114th Congress (2015-2016)
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Calendar No. 506
114th Congress } { Report
SENATE
2d Session } { 114-270
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TO ENHANCE WHISTLEBLOWER PROTECTION FOR CONTRACTOR AND GRANTEE
EMPLOYEES
_______
June 7, 2016.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 795]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 795) to enhance the
whistleblower protection for contractor and grantee employees,
reports favorably thereon with an amendment in the nature of a
substitute and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7
I. Purpose and Summary
The purpose of S. 795 is to improve the whistleblower
rights of Federal contractors working on Federal contracts,
grants and other programs. The bill would put whistleblowing
protections related to individuals working on Federal civilian
contracts and grants on par with those already existing related
to individuals working on Federal defense contracts and grants
by making the temporary civilian whistleblowing program
permanent and extending these protections to subgrantees. It
would also extend these protections to personal services
contractors working on both defense and civilian grant
programs.
II. Background and the Need for Legislation
This Committee has made it a priority to examine the root
and contributing causes of whistleblower retaliation through
investigations, hearings, and other oversight, and to identify
ways in which gaps or weaknesses in current law can be
addressed through legislation.\1\
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\1\See, e.g., Blowing the Whistle on Retaliation: Accounts of
Current and Former Federal Agency Whistleblowers: Hearing Before the
Comm. on Homeland Security & Governmental Affairs, 114th Cong. (2015),
available at http://www.hsgac.senate.gov/hearings/blowing-the-whistle-
on-retaliation-accounts-of-current-and-former-federal-agency-
whistleblowers; Improving VA Accountability: Examining First-Hand
Accounts of Department of Veterans Affairs Whistleblowers: Hearing
Before the Comm. on Homeland Security & Governmental Affairs, 114th
Cong. (2015), available at http://www.hsgac.senate.gov/hearings/
improving-va-accountability-examining-first-hand-accounts-of-
department-of-veterans-affairs-whistleblowers; Pub. L. No. 112-199
(112th Cong.) (2012); S. 2127, the Dr. Chris Kirkpatrick Whistleblower
Protection Act of 2015 (114th Cong.).
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S. 795 addresses current gaps in whistleblower protections
for the individuals that work on projects funded by the over $1
trillion in contract and grant funding provided by the Federal
Government each year.\2\ Much of this contract and grant
funding flows through the prime contractors and grantees to
subcontractors and subgrantees, but employees of these
subcontractors and subgrantees do not enjoy the same
whistleblower protections that those working for the prime
contractors do.
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\2\Overview of Awards by FY 2008-2015 (last visited Mar. 7, 2016)
(online at: https://www.usaspending.gov/Pages/
TextView.aspx?data=OverviewOfAwardsByFiscalYearTextView). the $438
billion in contracts and $614 billion in grants provided by the Federal
Government in fiscal year (FY) 2015 alone.
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Section 1553 of The American Recovery and Reinvestment Act
of 2009 (ARRA) established whistleblower protections for all
recipients of stimulus funds, including all state and local
government employees and all contractors, including within the
intelligence community (IC).\3\ During a December 6, 2011,
hearing before the Senate Committee on Homeland Security and
Governmental Affairs Subcommittee on Contracting Oversight, the
Chair of the Legislation Committee of the Council of Inspectors
General on Integrity and Efficiency (CIGIE) testified that:
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\3\Pub. L. No. 111-5 (111th Cong.) (2009).
. . . investigations and reviews of the whistleblower
complaints had resulted in recovery of approximately
$1.85 million as of April [2011]. One of the key
provisions of ARRA is Section 1553 that gives the
authority of [Offices of Inspectors General (OIGs)] to
investigate reprisal complaints from non-Federal
employee whistleblowers. Of the surveyed [Inspectors
General (IGs)], 8 of the OIGs had received a total of
18 reprisal complaints, and 11 of those had been
accepted for investigation. The majority of IGs that
had received these complaints had not experienced any
problems or concerns with implementing Section 1553 or
in responding to the complainants' request to access
the completed investigation file.\4\
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\4\Whistleblower Protections for Government Contractors, Hearing
Before the S. Homeland Sec. & Governmental Affairs Subcomm. On
Contracting Oversight 6, 112th Cong. (2011) [hereinafter Whistleblower
Protections] (testimony of the Honorable Peggy Gustafson, Inspector
General, U.S. Small Business Administration/Chair of the Legislation
Committee of CIGIE), available at https://www.gpo.gov/fdsys/pkg/CHRG-
112shrg72560/pdf/CHRG-112shrg72560.pdf.
The ARRA whistleblower provision, while significant, only
extended to contracts funded by stimulus funds, which make up
only a small portion of Federal Government contracts. During
the 2011 subcommittee hearing, the Director of Public Policy at
the Project On Government Oversight (POGO) testified on the
need for extending whistleblower coverage to all Federal
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contractors:
According to USAspending.gov, out of nearly $3.8
trillion in the federal budget in fiscal year 2011,
roughly half was spent on prime awards to contractors,
grantees, states and localities, and others. A recent
POGO report illustrates the imperative of protecting
whistleblowers in this growing workforce of federal
contractors. In fact, in some federal offices
contractor employees outnumber federal employees. Since
1999, the size of the federal employee workforce has
remained relatively constant at about 2 million, while
the contractor workforce has increased radically--from
an estimated 4.4 million to 7.6 million 2005. In other
words, the federal contractor workforce dwarfs the
federal employee workforce nearly four-fold.\5\
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\5\Whistleblower Protections 68-69 (statement of Angela Cantebury,
Director of Public Policy, Project on Government Oversight).
Senator Rob Portman added that ``whistleblower protections
for non-Federal employees are nowhere more necessary and
appropriate than in Federal contracting. We now spend over half
a trillion dollars a year in contracts annually.''\6\
Similarly, Senator Claire McCaskill discussed the need for
extending coverage to all Federal contractors noting that, ``if
we are not including contractors in the protection of the
whistleblower legislation, then we have a huge problem here. If
the whistleblowers that work for contractors do not have the
same protections as Federal employees, we are saying to
contractors we do not think wrongdoing by you is that
important.''\7\
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\6\Id. at 3 (opening statement of Senator Rob Portman).
\7\Id. at 2 (opening statement of Senator Claire McCaskill).
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Dr. Walter Tamosaitis, a former Department of Energy (DOE)
government contractor manager in the $13 billion Waste
Treatment Plant (WTP) project in Hanford, Washington, testified
before the subcommittee based on his own experience having been
terminated as a result of disclosing extensive government
contractor waste. Dr. Tamosaitis described the risks of failing
to cover Federal contractors, stating:
With no whistleblower protection, the contractors do
what they want. They actually make more money in DOE by
not doing it right the first time. They get paid to
build it, and then they get paid more to fix it, if it
will run at all. And this cost [sic] the taxpayers
billions at a time when our country's budget cannot
afford it. The original WTP cost was about $4.6
billion, and now it is at over $13 billion in 10
years.\8\
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\8\Id. at 19 (testimony of Dr. Walter Tamosaitis).
To address this gap in law, Senators Claire McCaskill (D-
MO), Jon Tester (D-MT) and Jim Webb (D-MT) introduced
legislation in the 112th Congress that would have created
permanent whistleblower rights for all Federal Government
contractors, subcontractors, and grantees, including those
within the IC.\9\ Although the bill was not signed into law,
the concept was included in the National Defense Authorization
Act for Fiscal Year 2013, but as a four-year pilot program that
excluded IC contractors.\10\ In sum, the pilot program
prohibits employees of a ``contractor, subcontractor, or
grantee'' from being retaliated against for blowing the whistle
on waste, mismanagement, and abuse occurring in relation to a
Federal contract or grant, and provides employees with a
mechanism for submitting complaints of such conduct to the
inspector general of the relevant agency.\11\ The pilot program
is set to expire in 2017.\12\
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\9\S. 241, the Non-Federal Employee Whistleblower Protection Act of
2012 (112th Cong.).
\10\Pub. L. No. 112-239, 828 (112th Cong.) (2013), codified at 41
U.S.C. Sec. 4712.
\11\Id.
\12\Id.
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Importantly, Congress extended the whistleblower
protections only to the extent the private individual is making
a disclosure that is related to ``gross mismanagement'' ``an
abuse of authority,'' ``a substantial and specific danger to
public health or safety,'' ``or a violation of law, rule, or
regulation'' that is ``related to a Federal contract or grant''
or ``a gross waste of Federal funds.''\13\ A private individual
blowing the whistle on conduct occurring in relation to a
private company that is not related to a Federal project must
seek the protection of other laws that apply to private
citizens.
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\13\Id. (emphasis supplied).
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Similar rights have existed for Department of Defense (DoD)
contractors working on DoD Federal grants for decades.\14\ In
the years since the protections were first added, Congress
expanded the DoD whistleblower protections to also cover
grants,\15\ subcontractors,\16\ and finally, in 2014, grantees
and subgrantees.\17\
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\14\Pub. L. No. 99-500 (99th Cong.) (1986).
\15\Pub. L. No. 110-181 (110th Cong.) (2008).
\16\Pub. L. No. 112-239 (113th Cong.) (2013).
\17\Pub. L. No. 113-291 (113th Cong.) (2014), codified at 10 USC
Sec. 2409.
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Unlike the temporary, four-year program for civilian
contracts, the rights of whistleblowers working on Federal
defense contracts are not time-limited. S. 795 would remedy
this unbalanced treatment by ensuring that contractors,
subcontractors, grantees, and subgrantees of civilian Federal
contracts and grants have the same rights as those working on
defense contracts and grants.
Additionally, S. 795 would add another category of contract
employees who would be protected from retaliation against
whistleblowing: personal services contractors. Personal
services contractors are contractors that contract their
services directly with the Government, instead of as an
employee of a private contracting company, but they are not
currently covered under defense protections or the civilian
pilot program.
One notable example of the need to include personal
services contractors is the story of Mr. Leonard Cooper, a
mechanical engineering expert who worked as a personal services
contractor on embassy security for the State Department.\18\
Mr. Cooper alleged to the Office of Special Counsel that he
believes he was retaliated againstafter he disclosed to
superiors that the Environmental Safety Protection Systems
(ESPS) for embassies worldwide lack the instruments necessary
to sense and account for the impact of constantly-changing wind
conditions or wind that leaks into the building.\19\ This
creates global vulnerability to exposure by chemical,
biological, and radiological (CBR) attacks.\20\ Mr. Cooper also
disclosed that the design of new stand-alone safe haven
facilities, called Compound Emergency Sanctuaries (CES), in the
United States Embassy Compound in Tripoli, Libya does not
protect occupants against arson or fire as a weapon, leading to
their guaranteed death against that type of attack.\21\
Although the United States Office of Special Counsel found a
substantial likelihood that Mr. Cooper is correct and ordered a
State Department investigation, his contract was not
renewed.\22\ As a personal services contractor, he arguably has
no recourse under current law.
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\18\Briefing by Government Accountability Project to Comm. staff
(March 2016).
\19\Letter from the U.S. Office of Special Counsel to Mr. Leonard
Y. Cooper (Mar. 21, 2014) (on file with Comm. staff).
\20\Briefing by Government Accountability Project to Comm. staff
(March 2016).
\21\Id.
\22\Letter from the U.S. Office of Special Counsel to Mr. Leonard
Y. Cooper (Mar. 21, 2014) (on file with Comm. staff).
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S. 795 would extend to subcontractors the existing laws
prohibiting the Federal Government from reimbursing certain
litigation or defense costs for contractors, including in their
defense against retaliation claims by whistleblowers.\23\
Federal taxpayers should not foot the legal bills for
contractors who retaliate against employees that report waste,
fraud and abuse of taxpayer dollars.
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\23\10 U.S.C. Sec. 2324(k), 41 U.S.C. Sec. 4310.
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Current law does not require contracts signed before the
effective date of the National Defense Authorization Act for
Fiscal Year 2013 to be revised so as to include the new
whistleblower protections.\24\ This bill, however, would
require companies to use best efforts to include these
protections if there is a major modification to any contract
that is currently grand-fathered in.
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\24\See 10 U.S.C. Sec. 2324 (note); 41 U.S.C. Sec. 4712 (note).
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S. 795 would make the rights of civilian contractors
permanent and make responsible corrections to existing
protections for civilian and defense contractors to ensure that
Federal Government contractors can safely report government
waste, fraud, abuse and public health and safety threats.
III. Legislative History
Senator Claire McCaskill (D-MO.) introduced S. 795 on March
18, 2015. The bill was referred to the Committee on Homeland
Security and Governmental Affairs. Senator Ron Johnson (R-WI.)
joined as a cosponsor on February 9, 2016.
The Committee considered S. 795 at a business meeting on
February 10, 2016. During the business meeting, a substitute
amendment was offered by Senator McCaskill. The bill, as
amended by the McCaskill substitute amendment, was ordered
reported favorably by voice vote en bloc. Senators Johnson,
McCain, Portman, Paul, Lankford, Ayotte, Ernst, Sasse, Carper,
McCaskill, Tester, Baldwin, Heitkamp, Booker, and Peters were
present for the vote.
Consistent with the Committee's order on technical and
conforming changes at the meeting, the Committee reports the
bill with a technical amendment by mutual agreement of the full
Committee majority and minority staff.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Enhancement of whistleblower protection for contractor and
grantee employees
Subsection (a) adds ``personal services contractor'' to the
list of protected individuals working on defense contracts or
grants for the Federal Government. It also makes permanent the
four-year pilot program that provides whistleblower protections
to certain individuals working on civilian contracts, and adds
``personal services contractor'' and ``subgrantee'' to the list
of those protected individuals.
Subsection (b) prohibits reimbursement of legal fees
accrued by a contractor, subcontractor, or personal services
contractor in defense of reprisal claims brought by the Federal
Government, a state, or by a contractor or grantee employee
arising under the authority of the Federal whistleblower
protections established for civilian and defense contracts.
Subsection (c) requires the head of each contracting agency
to, at the time of any major contract modification, make best
efforts to include the protections established under this bill
and the National Defense Authorization Act for Fiscal Year 2013
in any contract awarded prior to the date of enactment of this
bill.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
May 27, 2016.
Hon. Ron Johnson, Chairman,
Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 795, a bill to
enhance whistleblower protection for contractor and grantee
employees.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
S. 795--A bill to enhance whistleblower protection for contractor and
grantee employees
S. 795 would amend federal law to permanently extend legal
protections to certain nonfederal employees (contractors,
subcontractors, grantees, and others employed by entities that
receive federal funds) who report waste, fraud, or abuse
involving federal funds. Specifically, under the bill, anyone
who reports the misuse of federal funds could not be demoted,
discharged, or discriminated against because of the disclosure.
The current four-year pilot program that extends those same
protections ends in December 2016.
The cost to implement S. 795 would depend on the number of
whistleblower claims made by those nonfederal employees.
Evidence from the pilot program that currently protects certain
non-federal employees from such discrimination suggests that
the number of such claims brought by nonfederal employees has
totaled less than 20 for each of the 26 major federal agencies.
CBO estimates that implementing S. 795 would cost about $3,000
to investigate each claim, or about $5 million over the 2017-
2021 period. Any such spending would be subject to the
availability of appropriated funds. Enacting the bill could
affect direct spending by agencies not funded through annual
appropriations; therefore, pay-as-you-go procedures apply. CBO
estimates, however, that any net increase in spending by those
agencies would be negligible. Enacting S. 795 would not affect
revenues.
CBO estimates that enacting S. 795 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
S. 795 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VI. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 10--ARMED FORCES
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 137--PROCUREMENT GENERALLY
* * * * * * *
SEC. 2324. ALLOWABLE COSTS UNDER DEFENSE CONTRACTS
(a) * * *
* * * * * * *
(k) Proceeding Costs Not Allowable.
(1) Except as otherwise provided in this subsection,
costs incurred by a contractor, subcontractor, or
personal services contractor in connection with any
criminal, civil, or administrative proceeding commenced
by the United States, by a State, or by a contractor,
subcontractor, or personal services contractor employee
submitting a complaint under section 2409 of this title
are not allowable as reimbursable costs under a covered
contract, subcontract, or personal services contract if
the proceeding
(A) relates to a violation of, or failure to
comply with, a Federal or State statute or
regulation or to any other activity described
in subparagraphs (A) through (C) of section
2409(a)(1) of this title, and
(B) results in a disposition described in
paragraph (2).
(2) A disposition referred to in paragraph (1)(B) is
any of the following:
(A) In the case of a criminal proceeding, a
conviction (including a conviction pursuant to
a plea of nolo contendere) by reason of the
violation or failure referred to in paragraph
(1).
(B) In the case of a civil or administrative
proceeding involving an allegation of fraud or
similar misconduct, a determination of
contractor, subcontractor, or personal services
contractor liability on the basis of the
violation or failure referred to in paragraph
(1).
(C) In the case of any civil or
administrative proceeding, the imposition of a
monetary penalty or an order to take corrective
action under section 2409 of this title by
reason of the violation or failure referred to
in paragraph (1).
(D) A final decision--
(i) to debar or suspend the
contractor, subcontractor, or personal
services contractor;
(ii) to rescind or void the contract,
subcontract, or personal services
contract; or
(iii) to terminate the contract,
subcontract, or personal services
contract for default;
* * * * * * *
CHAPTER 141--MISCELLANEOUS PROCUREMENT PROVISIONS
* * * * * * *
SEC. 2409. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL FOR
DISCLOSURE OF CERTAIN INFORMATION
(a) Prohibition of Reprisals.
(1) An employee of a contractor, subcontractor,
grantee, or subgrantee or personal services contractor
may not be discharged, demoted, or otherwise
discriminated against as a reprisal for disclosing to a
person or body described in paragraph (2) information
that the employee reasonably believes is evidence of
the following:
* * * * * * *
TITLE 41--PUBLIC CONTRACTS
* * * * * * *
Subtitle I--Federal Procurement Policy
* * * * * * *
DIVISION C--PROCUREMENT
* * * * * * *
TITLE 41--PUBLIC CONTRACTS
* * * * * * *
Subtitle I--Federal Procurement Policy
* * * * * * *
DIVISION C--PROCUREMENT
* * * * * * *
CHAPTER 43--ALLOWABLE COSTS
* * * * * * *
SEC. 4304. SPECIFIC COSTS NOT ALLOWABLE
(a) Specific Costs.--The following costs are not allowable
under a covered contract:
(1) * * *
* * * * * * *
(15) Costs incurred by a contractor, subcontractor,
or personal services contractor in connection with any
criminal, civil, or administrative proceeding commenced
by the Federal Government or a State, to the extent
provided in section 4310 of this title.
* * * * * * *
SEC. 4310. PROCEEDING COSTS NOT ALLOWABLE
(a) Definitions.--
(1) Costs.--The term ``costs'', with respect to a
proceeding, means all costs incurred by a contractor,
subcontractor, or personal services contractor, whether
before or after the commencement of the proceeding,
including--
(A) administrative and clerical expenses;
(B) the cost of legal services, including
legal services performed by an employee of the
contractor, subcontractor, or personal services
contractor;
(C) the cost of the services of accountants
and consultants retained by the contractor,
subcontractor, or personal services contractor;
and
(D) the pay of directors, officers, and
employees of the contractor, subcontractor, or
personal services contractor for time devoted
by those directors, officers, and employees to
the proceeding.
(2) Penalty.--The term ``penalty'' does not include
restitution, reimbursement, or compensatory damages.
(3) Proceeding.--The term ``proceeding'' includes an
investigation.
(b) In General.--Except as otherwise provided in this
section, costs incurred by a contractor, subcontractor, or
personal services contractor in connection with a criminal,
civil, or administrative proceeding commenced by the Federal
Government, by a State, or by a contractor, subcontractor, or
personal services contractor or grantee employee submitting a
complaint under section 4712 of this title are not allowable as
reimbursable costs under a covered contract, subcontract, or
personal services contract if the proceeding--
(1) relates to a violation of, or failure to comply
with, a Federal or State statute or regulation or to
any other activity described in section 4712(a)(1) of
this title; and
(2) results in a disposition described in subsection
(c).
(c) Covered Dispositions.--A disposition referred to in
subsection (b)(2) is any of the following:
(1) In a criminal proceeding, a conviction (including
a conviction pursuant to a plea of nolo contendere) by
reason of the violation or failure referred to in
subsection (b).
(2) In a civil or administrative proceeding involving
an allegation of fraud or similar misconduct, a
determination of contractor, subcontractor, or personal
services contractor liability on the basis of the
violation or failure referred to in subsection (b).
(3) In any civil or administrative proceeding, the
imposition of a monetary penalty or an order to take
corrective action under section 4712 of this title by
reason of the violation or failure referred to in
subsection (b).
(4) A final decision to do any of the following, by
reason of the violation or failure referred to in
subsection (b):
(A) Debar or suspend the contractor,
subcontractor, or personal services contractor.
(B) Rescind or void the contract,
subcontract, or personal services contract.
(C) Terminate the contract, subcontract, or
personal services contract for default.
(5) A disposition of the proceeding by consent or
compromise if the disposition could have resulted in a
disposition described in paragraph (1), (2), (3), or
(4).
(d) Costs Allowed by Settlement Agreement in Proceeding
Commenced by Federal Government.--In the case of a proceeding
referred to in subsection (b) that is commenced by the Federal
Government and is resolved by consent or compromise pursuant to
an agreement entered into by a contractor, subcontractor, or
personal services contractor and the Federal Government, the
costs incurred by the contractor, subcontractor, or personal
services contractor in connection with the proceeding that are
otherwise not allowable as reimbursable costs under subsection
(b) may be allowed to the extent specifically provided in that
agreement.
(e) Costs Specifically Authorized by Executive Agency in
Proceeding Commenced by State.--In the case of a proceeding
referred to in subsection (b) that is commenced by a State, the
executive agency that awarded the covered contract,
subcontract, or personal services contract involved in the
proceeding may allow the costs incurred by the contractor,
subcontractor, or personal services contractor in connection
with the proceeding as reimbursable costs if the executive
agency determines, in accordance with the Federal Acquisition
Regulation, that the costs were incurred as a result of--
(1) a specific term or condition of the contract,
subcontract, or personal services contract; or
(2) specific written instructions of the executive
agency.
(f) Other Allowable Costs.--
(1) In General.--Except as provided in paragraph (3),
costs incurred by a contractor, subcontractor, or
personal services contractor in connection with a
criminal, civil, or administrative proceeding commenced
by the Federal Government or a State in connection with
a covered contract, subcontract, or personal services
contract may be allowed as reimbursable costs under the
contract, subcontract, or personal services contract if
the costs are not disallowable under subsection (b),
but only to the extent provided in paragraph (2).
(2) Amount of Allowable Costs.--
(A) Maximum amount allowed.--The amount of
the costs allowable under paragraph (1) in any
case may not exceed the amount equal to 80
percent of the amount of the costs incurred, to
the extent that the costs are determined to be
otherwise allowable and allocable under the
Federal Acquisition Regulation.
(B) Content of regulations.--Regulations
issued for the purpose of subparagraph (A)
shall provide for appropriate consideration of
the complexity of procurement litigation,
generally accepted principles governing the
award of legal fees in civil actions involving
the Federal Government as a party, and other
factors as may be appropriate.
(3) When otherwise allowable costs are not
allowable.--In the case of a proceeding referred to in
paragraph (1), contractor, subcontractor, or personal
services contractor costs otherwise allowable as
reimbursable costs under this subsection are not
allowable if--
(A) the proceeding involves the same
contractor, subcontractor, or personal services
contractor misconduct alleged as the basis of
another criminal, civil, or administrative
proceeding; and
(B) the costs of the other proceeding are not
allowable under subsection (b).
* * * * * * *
CHAPTER 47--MISCELLANEOUS
* * * * * * *
Table of sections
Sec.
4701. Determinations and decisions.
* * * * * * *
[4712. Pilot program for enhancement of contractor protection from
reprisal for disclosure of certain information.]
4712. Enhancement of contractor protection from reprisal for disclosure
of certain information.
* * * * * * *
SEC. 4712. [PILOT PROGRAM FOR ENHANCEMENT] ENHANCEMENT OF CONTRACTOR
PROTECTION FROM REPRISAL FOR DISCLOSURE OF CERTAIN
INFORMATION
(a) Prohibition of Reprisals.--
(1) In general.--An employee of a contractor,
subcontractor, [or grantee] grantee, or subgrantee or
personal services contractor, may not be discharged,
demoted, or otherwise discriminated against as a
reprisal for disclosing to a person or body described
in paragraph (2) information that the employee
reasonably believes is evidence of gross mismanagement
of a Federal contract or grant, a gross waste of
Federal funds, an abuse of authority relating to a
Federal contract or grant, a substantial and specific
danger to public health or safety, or a violation of
law, rule, or regulation related to a Federal contract
(including the competition for or negotiation of a
contract) or grant.
* * * * * * *
[(i) Duration of Section.--This section shall be in effect
for the four-year period beginning on the date of that is 180
days after the date the enactment of this section.]
[all]