GAO Finds That Pilot Government Contractor Whistleblower Program A “Complete Failure”

The U.S. Government Accountability Office (GAO) released a report to Congressional Committees yesterday on the Government Contractor Whistleblower Protections Pilot Program (pilot program). The pilot program was established under the National Defense Authorization Act 2013 (the Act). Its purpose is to expand whistleblower rights against reprisal for executive agencies’ contractors, subcontractors and grantee employees.

However, in the years 2013-2015, the GAO found that 14 federal agency Inspectors General failed to rule in favor of a whistleblower in a single case. Of the 44 whistleblower reprisal cases filed by employees of government contractors that were investigated, the OIG’s ruled failed to rule in favor of the whistleblower complainants in any case.

“This GAO report is shocking and reflects that the Inspectors General are not taking their responsibility to protect whistleblowers who work for government contractors seriously,” said David Colapinto, a partner at Kohn, Kohn & Colapinto. “While the title of the GAO report says “Improvements Needed to Ensure Effective Implementation,” that is a gross understatement,” Colapinto said. “A zero for 44 records for whistleblowers shows that this law is a complete failure,” he added.

The GAO conducted a review of how the Inspectors General of the Departments of Commerce, Homeland Security, Interior, and State had administered the pilot program from 2013-2015. It also found the following areas needed improvement:

• The pilot program requires findings of investigated reprisal complaints to be forwarded to several entities, including to the agency head for a determination of whether reprisal occurred and, as of December 2015, to the head of the contracting activity. However, at two of the four departments reviewed, the OIGs either did not forward their investigation findings to the appropriate entities or did not forward findings in the necessary format because, according to OIG officials, they were unclear about how to execute the requirement. As a result, at these two departments, the agency heads did not make the determination of whether reprisal occurred as required by the pilot program.
• Contracting officers must insert the required Federal Acquisition Regulation (FAR) whistleblower clause to be inserted into contracts exceeding the simplified acquisition threshold, which is generally $150,000, as a method to communicate with contractors about pilot program requirements. However, while the four selected departments reported that they inserted the clause into the required contracts, GAO found new contracts awarded during the pilot program’s timeframe that did not include the required clause. Without effective internal control policies, agencies may continue to omit the required clause.
• Some contractors GAO spoke with were unaware of their obligations under the pilot program. Officials from all four departments reported taking no additional action to communicate to contractors their responsibilities to inform employees of their rights under the pilot program. This is inconsistent with federal internal control standards for communication. Without actions to help contractors fully understand their responsibilities under the pilot program, the departments do not have assurance that contractor employees are also aware of the protections afforded by the pilot program legislation.

The GAO found there was also confusion among department officials about the requirements of the pilot program and that further guidance may help clarify effective implementation. The GAO issued several recommendations, including improving the investigation and reporting processes, creating a process to ensure the whistleblower clause is contained in new contracts, and an improved communication process to ensure all employees of contractors are informed of their whistleblower rights under the pilot program.

“This GAO report screams out for Congressional oversight to ensure that Inspector Generals take their job protecting whistleblowers seriously,” Colapinto said. “Neither whistleblowers nor the taxpayers have been well served by the agencies’ abysmal record of failure under this law,” he said.