News Column

NASA Issues Interim Rule for Contractor Whistleblower Protections

July 30, 2014



Targeted News Service

WASHINGTON, July 30 -- The U.S. National Aeronautics & Space Administration published the following rule in the Federal Register:

NASA Federal Acquisition Regulation Supplement (NFS): Contractor Whistleblower Protections

A Rule by the National Aeronautics and Space Administration on 07/29/2014

Publication Date: Tuesday, July 29, 2014

Agency: National Aeronautics and Space Administration

Entry Type: Rule

Action: Interim rule.

Document Citation: 79 FR 43958

Page: 43958 -43961 (4 pages)

CFR: 48 CFR 1803

48 CFR 1816

48 CFR 1852

RIN: 2700-AE08

Document Number: 2014-17728

Shorter URL: https://federalregister.gov/a/2014-17728

Action

Interim Rule.

Summary

NASA is issuing an interim rule amending the NASA FAR Supplement (NFS) to implement statutory requirements providing whistleblower protections for contractor and subcontractor employees and to address the allowability of legal costs incurred by a contractor related to whistleblower proceedings.

DATES:

Effective date: July 29, 2014. In accordance with FAR 1.108(d)(3), contracting officers are encouraged to include the changes in this interim rule in major modifications to contracts and orders awarded prior to the effective date of this interim rule.

Comment date: Comments on this interim rule should be submitted in writing to the address shown below on or before September 29, 2014.

ADDRESSES:

Interested parties may submit comments, identified by RIN number 2700-AE08 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to Leigh Pomponio via email at leigh.pomponio@NASA.gov. Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT:

Leigh Pomponio, NASA, Office of Procurement, email: leigh.pomponio@NASA.gov or phone: 202-358-0592.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule revises the NFS to implement a policy providing whistleblower protections for contractor and subcontractor employees. This rule implements 10 U.S.C. 2409 as amended by section 846 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) and section 827 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239). Section 846, entitled Protection of Contractor Employees from Reprisal for Disclosure of Certain Information, and Section 827, entitled "Enhancement of Whistleblower Protections for Contractor Employees," made extensive changes to 10 U.S.C. 2409, entitled "Contractor employees: protection from reprisal or disclosure." Paragraph (g) of section 827 amended paragraph (k) of 10 U.S.C. 2324, "Allowable costs under defense contracts" which is also applicable to NASA contracts. Paragraph (g) is implemented by this interim rule.

Paragraph 827(i)(1) specifies that the amendments made by section 827 are applicable to--

Contracts awarded on or after the effective date;

Task orders entered into on or after the effective date, pursuant to contracts awarded before, on, or after such date; and

Contracts awarded before the effective date, which are modified to include a contract clause providing for the applicability of such amendments.

Paragraph 827(i)(3) requires that at the time of any major modification to a contract that was awarded before the effective date, the head of the contracting agency shall make best efforts to include, in the contract, a clause providing for the applicability to the contract of the amendments made by section 827.

Section 846 of the NDAA for FY 2008 and Section 827 of the NDAA for FY 2013 created a standalone statute for NASA that is not dependent on the Federal Acquisition Regulation (FAR) coverage. The NASA contractor whistleblower rule is based on an independent statute that applies only to Title 10 agencies. Section 828, Pilot Program for Enhancement of Contractor Whistleblower Protections, of the NDAA for FY 2013 has been implemented in the FAR; see FAR Case 2013-015, 78 FR 60169, http://www.gpo.gov/fdsys/pkg/FR-2013-09-30/html/2013-23703.htm. Section 828 establishes a four-year "pilot program" to provide enhanced whistleblower protections for employees of civilian agency contractors and subcontractors and suspend the use of FAR 3.901 through 3.906.

The FAR also incorporates sections 827(g) and 828(d) of the NDAA for FY 2013 (Pub. L. 112-239); see FAR Case 2013-017, 78 FR 60173, http://www.gpo.gov/fdsys/pkg/FR-2013-09-30/pdf/2013-23764.pdf, which address legal costs incurred by a contractor in connection with a proceeding commenced by a contractor employee submitting a complaint under the applicable whistleblower section.

[*Federal RegisterVJ 2014-07-29]

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