The American Recovery and Reinvestment Act (ARRA) is providing approximately $787 Billion in funds for economic stimulus. But, there are several new requirements for companies providing stimulus package goods and services. For example, the stimulus carries with it new whistleblower protection for those working for the stimulus package contracting companies.
Government contractors with GSA contracts are being asked to modify the provisions of their contracts to include FAR 52.203-15 “Whistleblower Protections under the American Recover and Reinvestment Act”, along with 52.204-11 “Reporting Requirements” and 52.212-5 “Contract Terms and Conditions to Implement Statutes or Executive Orders – Commercial Items”. These are optional contract modifications; but, contractors who do not accept them are not eligible for orders funded in whole or in part by the stimulus funds from any level of government, including state and local entities. According to the GSA administrators, Recovery Act orders available via e-Buy (a key GSA ordering tool) will be filtered to exclude those contractors who do not accept the new provisions.
The whistleblower protections include employees of non-Federal employers receiving stimulus funds. These employees may not be discharged, demoted, or otherwise discriminated against for disclosing information that the employee reasonably believes is evidence of the gross mismanagement of an agency contract or grant related to covered funds, a gross waste of covered funds, a substantial and specific danger to public health or safety related to the implementation or use of covered funds, an abuse of authority related to the implementation or use of covered funds, or a violation of law, rule or regulation related to an agency contract or grant, awarded or issued related to covered funds.
This means that the employer may not take action toward an employee that would dissuade a reasonable person from making such a disclosure. An employee seeking to prove that an employer’s actions were retaliatory must show that the protected conduct was a “contributing factor” in the employment action taken. The Act specifically states that knowledge of the employee’s disclosure by the person taking the employment action and the disclosure are sufficient to show that the whistleblowing disclosure was a contributing factor in the employment action. To dispute the employee's position, an employer must demonstrate by clear and convincing evidence—a very high standard—that the action would have been taken regardless of the disclosure. If a claim is successfully proven, an employee may be granted reinstatement, back pay, compensatory damages, and costs and attorneys’ fees.”
The changed GSA contract terms also requires compliance with FAR 52.203-13 “Contractor Code of Business Ethics and Conduct”. This clause requires contractors with $5 million in contracts (or as required by an agency) to establish an ethics awareness and compliance program, including providing an internal reporting mechanism, such as a hotline, displaying hotline posters, preparing a written code of ethics, and conducting training.