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INTEGRITY  EFFICIENCY  ACCOUNTABILITY  EXCELLENCE
DEFENSE INDUSTRY INITIATIVE WEBINAR
CONTRACTOR REPRISAL
10 U.S.C. 2409, AS AMENDED
OCTOBER 20, 2014
OVERVIEW
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Governing statutes and regulations
Amendments in the FY 2013 NDAA
Whistleblower rights
How claims must be filed
Requirements for the contractor
Intelligence Community excepted
Standards of proof
Possible results/remedial actions
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GOVERNING STATUTES AND REGULATIONS
o Title 10 U.S.C. § 2409. Contractor employees: protection
from reprisal for disclosure of certain information
o DFARS Subpart 203.9—Whistleblower Protections for
Contractor Employees, Revised February 28, 2014
o Inspector General Act of 1978, as amended, Section 8(c)
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EFFECTIVE DATE OF 2013 NDAA
AMENDMENTS
o The amendment was signed into law on January 2, 2013 and went into effect on July
1, 2013 and applies to:
 All contracts awarded on or after July 1;
 All task orders entered on or after July 1; and
 All contracts awarded before July 1 that are modified to include a contract clause applying
the amendment
o Not later than 1 July 2013, the DoD and NASA Supplements to the Federal
Acquisition Regulation shall implement the amendment
o Major modifications to contracts awarded before implementation, shall include, if
possible, a contract clause instituting adherence to this amendment
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TITLE 10 U.S.C. § 2409
AMENDMENTS IN OCHRE
o Prohibition of Reprisal
 An employee of a contractor or subcontractor may not be:
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Discharged
Demoted
Otherwise discriminated against as a reprisal
 For disclosing information to:
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Congress or a representative of a committee of Congress
An Inspector General
The Government Accountability Office
A DoD employee responsible for contract oversight or management
An authorized official of an agency or the DoJ
A court or grand jury
A management official or other employee of the contractor or subcontractor who has the responsibility to
investigate, discover, or address misconduct
 The whistleblower must reasonably believe there is evidence of:
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Gross mismanagement of a DoD contract or grant
Gross waste of DoD funds
Abuse of authority relating to a DoD contract or grant
Substantial and specific danger to public health or safety, or
Violation of law, rule, or regulation related to a DoD contract (including competition for or negotiation of a
contract) or grant
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REASONABLE BELIEF
o Could a similarly situated person (given the information
available to the complainant at the time and having the
equivalent background, training, and position) believe
that the disclosed information evidences gross
mismanagement, etc.
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FILING A COMPLAINT (PER THE DFARS)
o DoD contractor/subcontractor employees who believe they have been
reprised against in violation of 10 U.S.C. § 2409 should file a complaint
with the Defense Hotline
o The employee will be expected to provide:
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Name and contact info
Copy of the protected disclosure and correspondence related to the disclosure
A copy of the personnel action taken against them
Names, titles, company, and location for the management officials alleged to have
taken the personnel action
Contract number, if known; if not, enough information to identify the contract
Statement of when, why and how the official knew of the disclosure
Indicate how there is a linkage between the disclosure and the personnel action
Identify any key witnesses
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DOD OIG MUST INVESTIGATE WHEN:
o The complaint:
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Has been filed within three years of the alleged personnel action
Is not frivolous
Alleges reprisal under the statute
Has not been previously addressed in another Federal or State judicial or
administrative proceeding
o Unless DoD OIG has determined that the complaint has not
met the above conditions, it must submit a report within 180
days after receiving the complaint, unless the complainant
agrees to an extension of time up to 180 additional days.
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INVESTIGATIVE PROCESS
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Intake
Fieldwork
Report of Investigation
Notifications
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REQUIREMENTS FOR THE CONTRACTOR
o DoD contractors are currently required by section 252.203-7002 of the Defense
Federal Acquisition Regulation Supplement to inform employees, in the
predominant native language of the workforce, in writing of their rights under 10
U.S.C. § 2409
o The DFARS at 252.203-7004 also requires contractors/subcontractors to display the
Defense Hotline poster in common work areas and, if they maintain company
websites as a method of providing information to employees, they shall display an
electronic version of the poster at the website.
o The rights and remedies in 10 U.S.C. § 2409 may not be waived by any agreement,
policy, or condition of employment
o Taking a personnel action against an employee is prohibited under § 2409 even if it
is undertaken at the request of a Department or Administration official, unless the
request takes the form of a nondiscretionary directive and is within the authority of
the Department or Administration official making the request.
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INTELLIGENCE COMMUNITY EXCEPTIONS
o 10 U.S.C. § 2409 shall not apply to any element of the
intelligence community, as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
o 10 U.S.C. § 2409 shall not apply to any disclosure made by an
employee of a contractor, subcontractor, or grantee of an
element of the intelligence community if such disclosure- relates to an activity of an element of the intelligence community; or
 was discovered during contract, subcontract, or grantee services provided to
an element of the intelligence community
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STANDARDS OF PROOF
o Preponderance of the evidence to determine whether a protected
disclosure was a contributing factor in an act of reprisal
o Clear and convincing evidence to determine that the action would
have been taken absent the protected disclosure, weighing:
(1) Timing
(2) Strength of the agency's evidence in support of its personnel action;
(3) Existence and strength of any motive to retaliate or animus toward the
protected disclosure on the part of the agency officials who were
involved in the decision; and
(4) Any evidence that the agency takes similar actions against employees
who are not whistleblowers but are otherwise similarly situated.
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RESULTS & REMEDIAL ACTIONS
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DoD IG has 180 days to submit a report of investigation
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If investigated, the head of the agency concerned, the complainant, and the
contractor/subcontractor concerned will each receive a report of findings
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The head of the agency has 30 days to determine if there is sufficient basis to conclude that
there was reprisal and will deny relief or take one or more of the following actions:
 Order the contractor/subcontractor to take affirmative action to abate the reprisal
 Order the contractor/subcontractor to make the individual whole
 Order the contractor/subcontractor to pay for the complainant’s costs/fees for filing the
complaint
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If the agency head denies relief or 210 days elapse, the complainant will have exhausted their
administrative remedies and may bring a de novo action at law against the
contractor/subcontractor
 Complainant must file for relief within 2 years of remedies being deemed exhausted
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QUESTIONS
Ms. Nilgun Tolek
Director
Mr. Rich Leatherman
Outreach Specialist
Whistleblower Reprisal
Investigations
DoD OIG
[email protected]
703-602-0095
[email protected]
703-604-9564
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