Overview
FAR Subpart 3.9 implements statutory policies protecting contractor and subcontractor employees from reprisal for "whistleblowing"—the act of disclosing evidence of gross mismanagement, waste, fraud, or safety violations related to Federal contracts. It establishes administrative procedures for filing complaints, conducting investigations, and enforcing remedies, while also prohibiting the use of restrictive internal confidentiality agreements that prevent employees from reporting misconduct.
Key Rules
- Prohibited Activities: Contractors and subcontractors may not discharge, demote, or discriminate against an employee for disclosing information the employee reasonably believes is evidence of:
- Gross mismanagement or gross waste of Federal funds.
- Abuse of authority or substantial/specific danger to public health or safety.
- A violation of law, rule, or regulation related to a Federal contract.
- Protected Channels: Disclosures are protected when made to specific entities, including Members of Congress, Inspectors General (IG), the GAO, DOJ, or management officials within the contractor's own organization.
- Confidentiality "Gag Orders": Agencies are prohibited from providing funds to any entity that requires employees to sign internal confidentiality agreements/statements that restrict them from reporting waste, fraud, or abuse to authorized government representatives.
- Exclusions: This subpart (specifically sections 3.901 through 3.906) does not apply to the DoD, NASA, the Coast Guard, or certain elements of the Intelligence Community, which are governed by separate statutes.
- Statute of Limitations: A complaint of reprisal must be filed within three years of the date the alleged reprisal occurred.
Responsibilities
- Contracting Officers (CO):
- Must insert mandatory clauses (e.g., FAR 52.203-17, 52.203-19) into solicitations and contracts.
- Must verify that offerors have represented they do not require prohibited confidentiality agreements (FAR 52.203-18).
- Forward any whistleblower complaints received to the agency’s Office of Inspector General (OIG).
- Inspector General (IG):
- Responsible for investigating complaints and providing a report of findings to the agency head, the complainant, and the contractor.
- Agency Head:
- Must determine within 30 days of receiving an IG report whether a reprisal occurred.
- Has the authority to order affirmative action (abating the reprisal), reinstatement of the employee, back pay, and payment of legal costs/expert witness fees.
- Contractors/Subcontractors:
- Prohibited from retaliating against whistleblowers.
- Must notify employees in writing of their whistleblower rights and protections.
Practical Implications
- Compliance Audit Requirements: Contractors must review their Standard Operating Procedures (SOPs) and Employee Handbooks. If a company's standard Non-Disclosure Agreement (NDA) does not explicitly carve out an exception for reporting waste, fraud, or abuse to the government, the contractor may be deemed ineligible for award under FAR 3.909-2.
- Remedy Exhaustion: Employees cannot immediately sue in federal court. They must first exhaust administrative remedies by filing with the IG. However, if the agency fails to issue an order within 210 days (in most cases), the employee gains the "de novo" right to take the case to a U.S. District Court.
- Burden of Proof (Recovery Act): Under the Recovery Act provisions (3.907), the "contributing factor" standard is used. If an employee shows their disclosure was a factor in the reprisal, the burden shifts to the employer to prove by "clear and convincing evidence" that they would have taken the same action regardless of the disclosure.
- Subcontractor Flow-down: These protections extend deep into the supply chain; prime contractors are responsible for ensuring their subcontractors do not use prohibited confidentiality agreements or retaliate against their own employees.