Gail D. ZirkelbachJason M. CrawfordMary Kate Healy

On March 2, 2017, the U.S. Government Accountability Office (GAO) published a report highlighting necessary improvements to effectively implement the Whistleblower Protections Pilot Program (WPPP).  The WPPP, introduced in the National Defense Authorization Act for Fiscal Year 2013, and made permanent by Congress in December 2016, expanded whistleblower rights against reprisal for employees of contractors, subcontractors, and grantees.  That same year, the FAR was also amended to require contracting officials to include a contract clause requiring contractors to communicate to their employees their rights under the WPPP in contracts exceeding the simplified acquisition threshold and awarded after September 30, 2013.  The WPPP also required agencies use best efforts to include the FAR clause in major contract modifications of existing contracts.

Before the enactment of the WPPP, only employees of defense contractors and certain civilian executive agencies enjoyed whistleblower reprisal protections.  The WPPP expanded the class of employees protected to include grantee and subcontractor employees of 14 executive departments.  The program also added more entities and individuals to whom whistleblowers could disclose suspected wrongdoing.  If a whistleblower believes she/he has experienced reprisal and submits a reprisal complaint, the WPPP requires the executive agency’s Office of Inspector General (OIG) to determine whether an investigation is needed and, if so, to investigate the reprisal complaint and submit a report to the agency head within 180 days.  The agency head must make a determination within 30 days and either issue an order denying relief or issue an order granting relief, as appropriate.

GAO evaluated and reported on the WPPP pursuant to a provision in the NDAA for Fiscal Year 2013.  GAO surveyed the OIG at the 14 executive departments covered by the program: Agriculture, Commerce, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs.  During the July 1, 2013 to December 31, 2015 period, the OIGs received 1,560 reprisal complaints.  The OIGs determined that the WPPP applied to 127 of the reprisal complaints, investigated 44 of those complaints, and determined that the remainder of the complaints did not need to be investigated for various reasons.  None of the OIGs’ investigations resulted in findings that substantiated reprisal.

GAO selected four departments, Commerce, Homeland Security, Interior, and State, for an in-depth review and determined improvements were necessary to implement the program effectively.  GAO selected two departments with higher contract funds awarded (Homeland Security, State) and two departments with lower contract funds awarded (Commerce, Interior) to achieve a range.

GAO determined that two of the four selected departments failed to implement the program’s reporting requirements.  The Commerce and Interior OIGs did not finalize any investigations during the review period.  Although the Homeland Security and State OIGs did complete investigations during the review period, they did not meet the program’s reporting requirements because they failed to forward the reports to their agency heads for a final determination.

GAO found new contracts at each of the four selected departments that failed to include the required FAR clause, and determined that the departments lacked procedures for insuring the clause’s inclusion into new contracts.  Similarly, each of the four departments did not have policies addressing the use of best efforts to include the FAR clause in major modifications.  The OIGs reported that they did not have policies to define major modification and did not have guidance for contracting officials to determine whether a modification would be major.  Although some of the contracting officials speculated there could be costs associated with including the clause in contract modifications, GAO spoke with contractors that suggested the addition would be administrative and at least one contractor’s representative confirmed he would be hesitant to resist the addition given the importance of protecting whistleblowers.

GAO found that there are opportunities to improve communications between contractors and department officials.  GAO spoke with contractors and concluded that some did not know of the program’s requirements and their responsibilities under it.  The contractors indicated that agencies have not followed up with them regarding their responsibilities, and one contractor contrasted the less robust agency efforts to ensure compliance under the WPPP with the more vigorous agency efforts to ensure compliance with other contract clauses, particularly human trafficking.  The four selected departments reported that they took no action to inform contractors of their responsibilities, other than requiring insertion of the FAR clause.  GAO recommends better communication between executive departments and contractors, so that contractors appreciate the importance of communicating with employees regarding available protections.

While much of the GAO report recommends improvements for agency implementation of the WPPP, contractors should also increase communication with their employees about the program and its protections.