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72–560 PDF 2012

S. Hrg. 112–547 

WHISTLEBLOWER PROTECTIONS FOR 

GOVERNMENT CONTRACTORS 

HEARING 

BEFORE THE

AD HOC SUBCOMMITTEE ON CONTRACTING 

OVERSIGHT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

DECEMBER 6, 2011 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JERRY MORAN, Kansas 

MICHAEL L. ALEXANDER, Staff Director 

NICHOLAS A. ROSSI, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

JOYCE WARD, Publications Clerk and GPO Detailee 

AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT 

CLAIRE MCCASKILL, Chairman 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

JON TESTER, Montana 

MARK BEGICH, Alaska 

ROB PORTMAN, Ohio 

SUSAN M. COLLINS, Maine 

JOHN MCCAIN, Arizona 

JERRY MORAN, Kansas 

MARGARET DAUM, Staff Director 

BRIAN CALLANAN, Minority Staff Director 

KELSEY STROUD, Chief Clerk 

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(III) 

C O N T E N T S 

Opening statement: Page 

Senator McCaskill ............................................................................................ 1 

Senator Portman .............................................................................................. 3 

WITNESSES 

TUESDAY, DECEMBER 6, 2011 

Hon. Peggy E. Gustafson, Inspector General, U.S. Small Business Administration ........................................................................................................................ 5 

Marguerite C. Garrison, Deputy Inspector General for Administrative Investigations, U.S. Department of Defense ............................................................... 7 

Walter L. Tamosaitis, Ph.D., URS Corporation, and Former Research and 

Technology Manager, Waste Treatment Project, Hanford Waste Treatment 

Plant ...................................................................................................................... 17 

Angela Canterbury, Director of Public Policy, Project on Government Oversight ....................................................................................................................... 19

ALPHABETICAL LIST OF WITNESSES

Canterbury, Angela: 

Testimony .......................................................................................................... 19 

Prepared statement .......................................................................................... 67 

Garrison, Marguerite C.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 33 

Gustafson, Hon. Peggy E.: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 29 

Tamosaitis, Walter L. Ph.D.: 

Testimony .......................................................................................................... 17 

Prepared statement .......................................................................................... 46 

APPENDIX 

Chart submitted by Senator McCaskill ................................................................. 78 

Letter with enclosure submitted by the Department of Energy .......................... 79 

Questions and Responses for the Record from: 

Ms. Gustafson ................................................................................................... 83 

Ms. Garrison ..................................................................................................... 85 

Ms. Canterbury ................................................................................................. 88 

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WHISTLEBLOWER PROTECTIONS FOR 

GOVERNMENT CONTRACTORS 

TUESDAY, DECEMBER 6, 2011 

U.S. SENATE, AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

Room SD–342, Dirksen Senate Office Building, Hon. Claire 

McCaskill, Chairman of the Subcommittee, presiding. 

Present: Senators McCaskill, Tester, and Portman. 

OPENING STATEMENT OF SENATOR McCASKILL 

Senator MCCASKILL. Good morning. Thank you all for being here 

today. 

We are going to hold a hearing today on whistleblower protections, and just briefly I wanted to talk overall about this subject 

matter because I think it is incredibly important. This is probably 

not the best attended hearing that will be held on the Hill today, 

but those of you that are here understand the importance of whistleblowers in terms of government oversight. 

I really do not think there is anything that is more important 

than whistleblowers because if you look around, it is very clear 

that whistleblowers have made a difference time and time again in 

terms of ferreting out serious and significant problems in the Federal Government. I can look no further than Arlington and Dover, 

and I can give many other examples where the reason that problems were identified and the reason we had the ability to go in and 

correct problems was because somebody who worked there told 

someone, someone who saw the problem said to themselves, ‘‘I cannot deal with this anymore. Someone has to do something about 

this.’’ And that is the best instincts, and those are the instincts 

that we must protect. And a whistleblower that has reprisals 

against them is something that we cannot stand for in this government. And that is what this hearing is about. 

I am proud to have been active in working in this area since the 

time I came to the Senate, and there are changes that we have 

been able to make in the law as it relates to whistleblower protections. There are now proposals that have been put forth both in the 

Senate and in the House, and I think that they are deficient in a 

major way. And the way I think they are deficient is because they 

do not fully address those people who work for contractors. And 

that is why we are here today. 

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Now, there is a dirty little secret that people like to ignore, and, 

frankly, one of the reasons I voted against the Republican proposal 

last week on the extension of the payroll tax is because it was all 

about limiting Federal employees. It did not say a word about contractors. Anyone who thinks they are going to get at the problem 

of the growth of the Federal Government and the spending that is 

occurring in the Federal Government, if they think they can do 

that by leaving contractors out of the equation, they do not understand the Federal Government right now. 

Agency after agency, we have more contractors working for those 

agencies than we have Federal employees. We have more contractors working at many agencies than we have Federal employees. So 

if we are not including contractors in the protection of the whistleblower legislation, then we have a huge problem here. If the whistleblowers that work for contractors do not have the same protections as Federal employees, we are saying to contractors we do not 

think wrongdoing by you is that important. We do not think waste 

and fraud and abuse that occurs in a contract capacity is as important as waste or fraud or violating rules of regulations or the law, 

that somehow your sins are not as worthy of being reported and 

protection for that reporter than the sins that may be occurring by 

people who directly work for the Federal Government. 

So I think it is really important that we expand the protections 

for whistleblowers to people who work for contractors. We have 

been able to do that in two important respects. Senator Collins and 

I sponsored an amendment to the National Defense Authorization 

Act in 2008 that extends protections to whistleblowers for contractors that work for the Department of Defense. We also did the 

same thing for contractors that were receiving any of the money 

under the stimulus act. 

So it is not that this is without precedent. We have now done it 

for stimulus dollars, and we have done it for contractors that work 

for the Department of Defense (DOD). Why not the rest of government? Why is this important to do with contractors who work for 

DOD and not with contractors that work for the Department of Energy (DOE) or contractors that work for Homeland Security (DHS)? 

I think we have thousands, and thousands, and thousands. 

I will never forget the day when I asked the head of the Department of Homeland Security, Secretary Chertoff, when I first arrived at the Senate, how many contractors worked there. He had 

no idea. He had no idea how many contractors worked at the Department of Homeland Security. Suffice it to say, I believe that 

there are more contractors that work for the Department of Homeland Security than there are employees. 

So that is what this hearing is about. I have introduced legislation, along with my friend Jim Webb, that will expand the protection of whistleblowers to any whistleblower, whether they are an 

employee or whether they are a Federal contractor. And if there is 

a reason we should distinguish between the two, I hope someone 

today points it out because I would be anxious to hear what that 

reasoning is. 

So that is why we are here, and I think this will be a good hearing to explain the underpinnings of the legislation we have proposed, and I now will turn the microphone over to the Ranking 

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Member of the Subcommittee, my friend, who has been a great 

Senator to work with on this Subcommittee, Senator Portman. 

OPENING STATEMENT OF SENATOR PORTMAN 

Senator PORTMAN. Thank you, Chairman McCaskill. I appreciate 

it. And thanks to the witnesses for being here today, and thanks 

for holding this hearing on a truly important topic, particularly at 

a time when we are looking at bigger and bigger debt, $15 trillion 

now, and a deficit of about $1.3 trillion this year. We need to focus 

on waste and mismanagement of taxpayer dollars more than ever. 

So it is an appropriate hearing. 

The stopping of wasteful spending and detecting it and preventing it ultimately is something that whistleblowers play a key 

role in. There are others as well. We need official oversight and 

monitoring, including by contracting officers in the agencies and Inspectors General and law enforcement authorities. But whistleblowers are often the eyes and ears for all of us and for the American taxpayer to be sure we are detecting, preventing, and stopping 

wasteful spending. And they often serve as a vital communication 

link, too, between what is really happening in the daily operations 

of major Federal programs and the policymakers here in Congress 

and in the Executive Branch who are responsible for oversight of 

these programs. 

The laws that are currently in place, whistleblower protection 

laws, are necessary to give individual employees that confidence to 

be able to speak up, to do the right thing without fear of retaliation. Today, as I counted, we have a patchwork of those kinds of 

protections. I think there are 19 different laws, depending on how 

you count them, that deal with whistleblower protections. As I 

think we will hear this morning, we have found that some of them 

work better than others. 

The Whistleblower Protection Act of 1989 is sort of the standard 

protection for Federal Government employees who report misconduct, and in October I was pleased to join with my colleagues 

in this Subcommittee on both sides of the aisle to support legislation to strengthen that statute for government employees in significant ways, including broadening the scope of protected disclosures. 

But unlike these public sector protections, there is no standard 

whistleblower statute that covers private sector employees. Instead, 

Congress has taken a more piecemeal approach to that, creating 

whistleblower protections to address abuses in specific areas: Sarbanes-Oxley would be one in the securities and bank fraud areas; 

within specific departments such as the Department of Energy 

whistleblower provisions; or more recently to major new spending 

commitments. There were provisions, for instance, in the 2009 

stimulus bill. 

I think it is fair to say that whistleblower protections for nonFederal employees are nowhere more necessary and appropriate 

than in Federal contracting. After all, that is the jurisdiction of this 

Subcommittee, so it is appropriate for us to take a look at this. 

We now spend over half a trillion dollars a year in contracts annually. Think about that. That is 15 percent of all Federal spending now goes into government contracting. That was about $539 

billion last year. 

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When we are dealing with taxpayer dollars of that magnitude, 

there can be no question that we have to take every effort to ensure good stewardship. The law provides a number of protections 

for contractor employees from the False Claims Act to civilian protections in the Federal Acquisition Regulation (FAR) 3.9, to defense 

contractor protections in Section 2409. I would be interested to 

hear from our witnesses today on how these existing protections for 

contractors have proven effective and where they might fall short. 

I am also very interested in exploring some of the unique issues 

raised by extension of these whistleblower protections to private 

sector employees such as contractor employees. One of the issues 

is the need to ensure that the law does not disrupt or undermine 

a company’s own internal compliance and reporting processes. I do 

not think that would be in our interest. 

There was a recent Law Review article in the Harvard Law Review that notes that there is now a large body of research that 

shows that these internal whistleblowings can actually be more effective at stopping organizational wrongdoing and waste than the 

external reporting. So we do not want to disrupt the internal processes that are in place. And given our finite resources for enforcement and investigation, we want to encourage strong internal private compliance efforts to detect and correct wrongdoing. 

Ideally, I think the law should encourage firms to be self-policing 

to the extent possible, and that means whistleblowing protections 

should extend to both the internal and external reporting of wrongdoing. 

Unfortunately, many whistleblower laws are one-sided in this respect. I give you as one example the securities whistleblower provisions in Dodd-Frank. It fails to protect employees who report security violations internally and instead offers large financial incentives to bypass those internal controls and immediately report out. 

The Federal Acquisition Regulation suffers, I think, from a similar flaw. It protects contractor employees who report to government 

officials but not those who choose to go through the internal chain 

of command. 

I think these are serious concerns and something I would like to 

hear more about today because I think they may permit some 

abuses to go undiscovered while actually impeding good-faith internal compliance efforts. On this point, I think Senator McCaskill’s 

whistleblower reform proposal gets it right by extending protections to employees who report misconduct to the management of 

their organization. 

Another important consideration is the need to ensure these 

rights are clear and well defined for both employers and employees. 

Would-be whistleblowers would be more likely to stay silent if they 

do not understand their rights, and by the same token, employers 

may be overlawyered or overburdened if they are exposed to unclear requirements or ambiguous liabilities in this area. For that 

reason, I think the parameters should be very carefully defined in 

law and carefully understood. 

So with that, I look forward to hearing from our witnesses on 

how best to protect contractor whistleblowers and how best to save 

taxpayer dollars. 

Thank you, Madam Chairman. 

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1The prepared statement of Ms. Gustafson appears in the appendix on page 29. 

Senator MCCASKILL. Thank you, Senator Portman, and we will 

begin with our witnesses. 

First, we have Peg Gustafson, the Inspector General for the 

Small Business Administration and the Chair of the Legislation 

Committee of the Council of Inspectors General on Integrity and 

Efficiency (CIGIE). Prior to becoming Inspector General, Ms. Gustafson was my General Counsel, where she wisely advised me on 

oversight issues and helped to write the legislation that has 

strengthened the Offices of Inspectors General (OIG). From 1997 to 

2007, Ms. Gustafson was, in fact, General Counsel when I served 

as State Auditor of Missouri. It is great to see you, Peg. 

Marguerite Garrison is the Deputy Inspector General for Administrative Investigations at the Department of Defense. Prior to becoming the Deputy IG, Ms. Garrison was a career Army Military 

Police officer where she achieved the rank of Colonel. Before retiring from that position, Ms. Garrison served as the Chief of the initiatives group in the army where she identified and coordinated 

key issues of strategy, police, future concepts, and comprehensive 

army information requirements across the Army staff. 

It is the custom of this Subcommittee to swear in all witnesses 

that appear before us, so if you do not mind, I would ask you to 

stand and raise your hand. Do you swear that the testimony you 

will give before this Subcommittee is the truth, the whole truth, 

and nothing but the truth, so help you God? 

Ms. GUSTAFSON. I do. 

Ms. GARRISON. I do. 

Senator MCCASKILL. Thank you both. 

We will turn to you first, Ms. Gustafson, for your testimony. 

TESTIMONY OF HON. PEGGY E. GUSTAFSON,1 INSPECTOR 

GENERAL, U.S. SMALL BUSINESS ADMINISTRATION 

Ms. GUSTAFSON. Madam Chairman, Ranking Member Portman, 

thank you very much for the opportunity to be here today and for 

your continued support of the work of Inspectors General. I am 

happy to be here in my capacity as Chair of the Legislation Committee for the Council of Inspectors General on Integrity and Efficiency, which I will also call ‘‘CIGIE’’ from now on in my testimony. 

Inspectors General are strongly supportive of essential safeguards for whistleblowers. Tools to incentivize and protect whistleblowers, whose actions are often brave and selfless, are encouraged 

and needed by Inspectors General. 

Offices of Inspectors General play an important role in investigating allegations brought forward by whistleblowers. Given our 

experience and resources, IGs are well positioned to receive information from whistleblowers, protect their confidentiality, and fully 

investigate the allegations in a fair, timely, and unbiased manner. 

The CIGIE Legislation Committee has sought to obtain an accurate sense of the IG community on certain whistleblower-related 

legislative proposals by conducting several surveys within the past 

2 years on matters involving whistleblowers. 

One such survey involves the perspective of IGs in agencies that 

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6 

ment Act (ARRA) or the stimulus act, which includes a provision 

aimed at protecting State and local government contractor whistleblowers. 

During the timeframe of February 2009 through April 2011, IGs 

who had responded to the survey had received 1,652 complaints regarding ARRA transactions from employees of non-Federal entities. 

The complaints related to approximately 323 distinct ARRA transactions, meaning that multiple complaints had been received on 

some of these transactions. Of the 1,652 complaints, 35 percent, or 

580, resulted in the opening of an investigation, audit, or other Office of Inspector General review, and 150 others at the time of the 

survey were still being considered for IG action. Though the judicial and criminal investigative process can be lengthy and may still 

be ongoing in some of these cases, responding OIGs indicated that 

their investigations and reviews of the whistleblower complaints 

had resulted in recovery of approximately $1.85 million as of April 

of this year. 

One of the key provisions of ARRA is Section 1553 that gives the 

authority of OIGs to investigate reprisal complaints from non-Federal employee whistleblowers. Of the surveyed IGs, 8 of the OIGs 

had received a total of 18 reprisal complaints, and 11 of those had 

been accepted for investigation. The majority of IGs that had received these complaints had not experienced any problems or concerns with implementing Section 1553 or in responding to the complainants’ request to access the completed investigation file. 

As a community, IGs are always concerned about statutory requirements ordering them to conduct an investigation and statutory deadlines mandating completion of an investigation within a 

prescribed period of time. These mandates undermine the ability of 

IGs to independently set priorities and create the potential for finite resources to be diverted from other high-impact investigations 

that may better serve taxpayers’ interest. 

By expanding the potential pool of non-Federal employee whistleblower complaints beyond ARRA to encompass all government contracts, grants, and payments, a significant impact on IG resources 

is anticipated. And, therefore, efforts to provide for IG discretion on 

whether to open an investigation or the timeframes will be crucial 

going forward in this endeavor. 

The ability of IGs to carry out their mission is dependent on the 

authority to access records pertinent to the investigation of the 

complaint. In instances of IGs having authority to access the 

records of State, local, and private sector employers who received 

ARRA funds, the IGs believe that Section 1515 of the Recovery Act 

serves as a viable model for giving IGs this access. 

One additional area of concern is the requirement that IGs disclose pending investigations of a whistleblower’s reprisal complaint 

to the whistleblower’s employer. There is a concern that these disclosure requirements could jeopardize the ability to obtain accurate 

information for the investigation and may jeopardize the whistleblower status with the employer if they were to figure out who the 

whistleblower was. Therefore, efforts to provide IGs with greater 

discretion on whether or when to disclose the investigation to the 

employer may assist OIG investigation efforts. 

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1The prepared statement of Ms. Garrison appears in the appendix on page 33. 

CIGIE shares the perspective that IGs are well positioned to investigate these complaints but believes the scope of the legislative 

proposal does necessitate that IGs have the authority to access 

these records and give IGs the flexibility to conduct these investigations as balanced with the other IG priorities. We also believe 

the IGs’ role should be narrow, where the IGs are conducting the 

investigation and reporting the findings to the agency officials authorized to make the ensuing decisions. 

I want to thank you again for the opportunity to speak with you 

and look forward to working with you going forward on this. 

Thanks. 

Senator MCCASKILL. Thank you, Ms. Gustafson. Ms. Garrison. 

TESTIMONY OF MARGUERITE C. GARRISON,1 DEPUTY INSPECTOR GENERAL FOR ADMINISTRATIVE INVESTIGATIONS, U.S. 

DEPARTMENT OF DEFENSE 

Ms. GARRISON. Madam Chairman and Ranking Member 

Portman, thank you for the opportunity to appear before you this 

morning to discuss whistleblower protections for government contractor employees. 

The Inspector General Act of 1978, as amended, entrusts us with 

responsibility for improving the economy, efficiency, and effectiveness of the Department’s operations through prevention and detection of fraud, waste, and mismanagement. To do so, the Department of Defense IG (DOD IG), conducts audits, evaluations, and investigations—many of which arise from disclosures brought to light 

by whistleblowers. Under the broad authority of the IG Act, we 

may investigate any matter of concern. 

DOD IG is somewhat unique among IG offices in that our responsibility to investigate whistleblower reprisal complaints derives 

not only from the IG Act but also from several other statutes. 

DOD IG has overall responsibility for the whistleblower protection program across the Department. A strong whistleblower protection program includes a confidential channel for the disclosure 

of wrongdoing, reliable protection against reprisal for making protected disclosures, and assurance that everyone concerned understands their rights and responsibilities under the law. 

Since the late 1980s, Congress has passed a series of laws protecting members of the Armed Forces, appropriated and non-appropriated fund employees, and DOD contractor employees from reprisal. DOD IG has the authority to investigate these complaints 

and to oversee allegations conducted by Department of Defense 

component Inspectors General. 

Additionally, pursuant to the American Recovery and Reinvestment Act of 2009, DOD IG has the authority to investigate complaints of reprisal filed by employees of non-Federal employers who 

make disclosures related to possible fraud, waste, or abuse of Recovery Act funds. 

Our authority with respect to DOD contractor employees is 

drawn from Title 10, United States Code, Section 2409, as amended in 2008. Since 1986 the statute has been amended on multiple 

occasions. The 2008 amendment expanded the types of protected 

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disclosures and their authorized recipients. It also imposed additional deadlines for agency heads to resolve reprisal complaints. We 

welcomed those enhancements to protections for defense contractor 

whistleblowers. 

In 2008, we recommended legislation to require defense contractors to inform their employees in writing of their whistleblower 

rights under the statute. Our recommendation resulted in the inclusion of that requirement in the National Defense Authorization 

Act for Fiscal Year 2009. 

While the protections under Section 2409 have been strengthened over the years, in our experience there are certain features in 

the law that may have impacted the potential substantiation of 

some complaints. For example, the law fails to protect defense contractor employees from reprisal for reporting wrongdoing to company management. It also does not protect employees from actions 

directed by government officials. Nor does it protect employees of 

subcontractors. The lack of protections in these areas stands in 

contrast to other similar whistleblower protection statutes, such as 

the American Recovery and Reinvestment Act. 

We are proud of the role that Congress has assigned our agency 

to objectively and thoroughly investigate whistleblower reprisal 

complaints. For over 20 years, we have maintained a robust whistleblower protection program which has been a top priority of the 

DOD IG. Whistleblowers perform an important public service, often 

at great professional and personal risk, by exposing fraud, waste, 

and abuse within the programs and operations of the Department. 

In closing, I would like to thank the Subcommittee for the opportunity to discuss the important topic of whistleblower protections 

for government contractor employees. I look forward to answering 

your questions. 

Senator MCCASKILL. Thank you very much to both of you. 

Let me start with you, Ms. Gustafson. You talk in your testimony 

about resources and the fact that if we mandate an investigation 

to be completed within a certain period of time, that would—and 

I understand this—really be tough in terms of potential resources 

and understanding—as you well remember, there were all kinds of 

laws that said I had to do so many audits that we could not do because we did not have the personnel, so we had to prioritize based 

on where we thought risk was. 

The problem is that if we do not mandate the investigation and 

we do not mandate a time period for the investigation, I think we 

lose some of the public accountability. 

Have you given any thought and has the Council given any 

thought to maybe mandating some kind of public accountability as 

to why an investigation was not pursued? 

Ms. GUSTAFSON. Well, I think that actually there has definitely 

been thought given to that, and I think actually S. 241 has some 

provisions in there that the IGs are very supportive of, which is to 

say there is an investigation that needs to be done, there is some 

discretion given to the IGs with an accountability in the semiannual reports as to why an investigation has not been completed 

within a certain length of time. And there is also accountability 

built in when you have to report to the whistleblower if you have 

decided not to undertake that investigation. 

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9 

So I actually think that this is there and that is something the 

IG community is very supportive of. And it goes on to then give the 

whistleblower access to the court immediately after that so that the 

whistleblower’s rights are not estopped by an IG. Some of these IG 

shops are three people, four people. 

Senator MCCASKILL. Right. 

Ms. GUSTAFSON. And some are thousands of people. So, I think 

it is actually a schematic that has been devised to kind of allow for 

robust investigations when that can happen without estopping the 

whistleblower from going elsewhere in times when it simply cannot. 

Senator MCCASKILL. So do you think the way that S. 241 has 

been drafted, the legislation that we have drafted, do you think it 

gives enough discretion to the Inspectors General? 

Ms. GUSTAFSON. Well, it gives complete discretion to the Inspectors General. 

Senator MCCASKILL. OK, good. I am confused, Ms. Garrison, 

about the number—since we changed the law and the standards, 

I am confused about the number of complaints that you have had 

as to whistleblower retaliation among the contractor community 

and the total investigated, and the fact that there have been none 

substantiated. But more troubling, whether or not they have been 

substantiated, you had the law changed in 2008. You had 44 complaints in 2009, 51 in 2010, and 68 in 2011. And of all of those, 

there have only been five investigations. Why is that? 

Ms. GARRISON. Well, many times when we look at the incoming 

complaint, there are several reasons for that, Madam Chairman. 

No. 1 is that the complaint is from a subcontractor and not a contractor employee. Another reason may be that the employee made 

the complaint to a company management official, not a government 

official. 

A third reason could be that the government official directed the 

unfavorable personnel action rather than the contractor because 

they saw that there was some deficiency in the performance of the 

employee. 

So those are some of the reasons why, but mostly because they 

have been subcontractor employees and not contractors. 

Senator MCCASKILL. OK. On the last point you made, I am confused. What was the last point, that—— 

Ms. GARRISON. The last point was that—excuse me, Madam 

Chairman. 

Senator MCCASKILL. That is OK. 

Ms. GARRISON. The last point was that the unfavorable personnel 

action that was directed against the employee came as a result of 

a government official perceiving a deficiency in the duty performance of the individual and, therefore—— 

Senator MCCASKILL. Isn’t that always the defense? 

Ms. GARRISON. Pardon me? 

Senator MCCASKILL. Isn’t that what would have to be investigated? Isn’t the government always going to say the reprisal was 

not because they were whistleblowers but because they were not a 

good employee? 

Ms. GARRISON. No, the contractor is the one that let the employee go based upon what the government official said, and it was 

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10 

a perceived deficiency in the duty performance, so no. But in some 

cases, if we see that the government employee directed that unfavorable personnel action because of some disclosure that the employee made, then under the IG Act we have the authority to—— 

Senator MCCASKILL. But how do you know that without investigating? How do you know that they were let go for performance 

as opposed to being a whistleblower if you never investigate it? 

Ms. GARRISON. Well, we have conducted preliminary inquiries 

and looked at the basis of the fact of the termination of the employment, and based upon our initial inquiry, we have determined that 

the performance of that employee was deficient prior to the protected disclosure. 

Senator MCCASKILL. Oh, so you are saying that there is documented evidence that there were performance issues prior to any 

whistleblowing activity? 

Ms. GARRISON. Yes. 

Senator MCCASKILL. OK. We were told in a briefing that DOD 

IG was also relying on the previous standards in the law as opposed to the standards that were put in place in 2008 based on the 

fact that the contract was executed before 2008. Is that correct? 

Ms. GARRISON. That is correct. 

Senator MCCASKILL. On what legal basis are you all making that 

decision? Because this is not about protecting contractors. This is 

about protecting whistleblowers. And I do not know why the date 

of the contract execution would have legal bearing on what standard would be applied. Is that a lawyer inside the Department of 

Defense that is giving you that advice? 

Ms. GARRISON. When we looked at the 1994 statute, we look at 

the date of the contract and when the contract was let. The provision that was in place at the time of the contract is what we are 

looking at. So, for example, we had a contract that was executed 

in 2007. The 2008 amendment was not in place at that time, so we 

look at the statute of 1994 to determine where we are going to 

head in that investigation or whether we are going to pursue it. 

Senator MCCASKILL. But why would you do that? On what legal 

basis? Because there is nothing that I am aware of in the law— 

and I admit that I am one, a lawyer. I am not aware—since the 

law is focused on protecting the whistleblower, it has no bearing 

on not telling contractors what they can or cannot do. It is telling 

them that it is basically protecting a whistleblower. Why would the 

date of execution of the contract be the controlling date as opposed 

to the standard that we have put in the law going forward? 

Ms. GARRISON. Well, it has been our experience thus far that the 

complaints we have received have been on contracts that are before 

two thousand—— 

Senator MCCASKILL. You do not understand my question. On 

what legal basis are you—is there any—did you get a legal opinion 

from someone that told you that the old law needed to control protections for whistleblowers as opposed to the new law for any contract that had been executed before 2008 or 2009? 

Ms. GARRISON. I would like to take that one for the record. 

Senator MCCASKILL. That would be great. And if there was a 

legal opinion, I would love to review it. I would love to see it and 

get the basis for that, because I do not believe that is correct in 

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11 

the law. I think that the standard that should be used should apply 

across the board going forward, because this is not something that 

materially impacts the contract provisions for the contractor. It materially impacts the protections for the whistleblower. And I think 

that is a distinction with a real difference. So I would love to see 

where that decision was made and how it was made and get the 

backup documentation for it. 

Thank you, Ms. Garrison. Senator Portman. 

Senator PORTMAN. Thank you, Madam Chairman, and thank you 

all for your testimony. 

Ms. Garrison, I was just curious about one thing you said in response to the Chair’s questions about subcontractors and the reporting under—you said that many of the whistleblower complaints 

are subcontractors and, therefore, are not investigated. Should 

whistleblower protections extend to employees of subcontractors? 

Ms. GARRISON. We see that S. 241 does extend it to subcontractors, and we see that as a positive, so yes. 

Senator PORTMAN. OK. Who should these reports of wrongdoing 

be made to—the prime contractor first? 

Ms. GARRISON. We also see in S. 241 that the disclosures have 

been expanded so that they can be made internally and that we 

could also be involved from a DOD IG’s perspective. 

Senator PORTMAN. On the internal disclosures, as I noted in my 

statement, I do think it is very important to have greater symmetry between the protections for external reporting and internal 

reporting, and the fact is that most whistleblowers report inside 

their organization first, and I think we should be encouraging them 

rather than, in effect, telling whistleblowers to circumvent the internal company procedure in order to be guaranteed protection. 

To what extend do you believe this gap in the law has prevented 

whistleblowers from coming forward or prevented substantiation of 

their reprisal allegations? 

Ms. GARRISON. It is hard for us to speculate on the substantiation rates or what kind of effect that would have. However, we 

do believe with the passage of S. 241, since the whistleblower protections will be expanded, we may see an increase in the number 

of cases from subcontractor employees as long as we have a good 

education after the law is passed. 

Senator PORTMAN. And what other tools do you think we should 

be using other than S. 241 to promote internal reporting and better 

self-regulating? 

Ms. GARRISON. Well, as I said previously, the 2009 NDAA, made 

it mandatory that a written clause be included in all contracts and 

that the employers would have to inform their employees of all the 

whistleblower protections. We see that as one means of doing it. 

We also could have a communications campaign where we would 

have various posters about internal disclosures, and we would have 

to educate our contracting officer representatives (CORs) and our 

government contracting offices on how to expand those protections. 

Senator PORTMAN. And, Ms. Gustafson, about internal reporting, 

do you have some thoughts on that? How do you believe this gap 

has affected folks coming forward and what tools can you see are 

necessary to promote more internal reporting and better self-regulating? 

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12 

Ms. GUSTAFSON. I do think it is always kind of hard to know 

what the gap is because it is kind of what do we not know, but I 

will say that just from my experience as an Inspector General, to 

Ms. Garrison’s point, letting people know what they can do and 

where they should go is always very helpful. I find that both internally as an Inspector General letting the SBA employees know that 

we are there and they should be telling us allegations of wrongdoing or things they see that might be fraud, waste, and abuse, 

and I would think that would be true across the board, be it a private employer or Federal contractor or any agencies. 

Senator PORTMAN. I was curious. Ms. Garrison, in your testimony you talked about complaints of reprisal filed by members of 

our military where you are at DOD, and you said that those reprisal complaints far outnumber those filed by contractors—436 

military whistleblower reprisal allegations in fiscal year 2011 compared to 68 defense contractor employee reprisal allegations in the 

same space of time. 

In your view, what accounts for this disparity? 

Ms. GARRISON. Yes, Senator. We believe that the disparity is accounted for because we have done a great job of going out and advising the military population and various service IGs and Department of Defense component IGs about the whistleblower protections under 1034. That increases the number of, we believe, incoming complaints. 

We are not so sure that the contractors are as well informed 

about the whistleblower protections as our military personnel. 

Senator PORTMAN. And can you comment on that across the 

agencies or, Ms. Gustafson, maybe you could comment on that? In 

other words, is this something that is just DOD or is this consistent, this disparity, across the civilian agencies? 

Ms. GUSTAFSON. Well, I guess I would say I have no reason to 

think it would be just across DOD. I do not know why it would. 

And I do think that one of the issues maybe even with ARRA is, 

the stimulus bill went pretty far in applying whistleblower protections, but, of course, it had to be related to just ARRA funds. And 

so you really did have a relatively small subset of people who 

would be able to take advantage of those provisions when you compare it to all Federal moneys. And I think that may have had 

something of a tamping-down effect, too, because that is something 

that you would have to know in order to go forward. You have to 

know that the rights are there, know it is an ARRA project, and 

then know where to go. 

Senator PORTMAN. On advance notice of whistleblower rights, 

getting back to contractors, Ms. Garrison, you said that you believe 

that some notification through internal means—you mentioned 

posters or other sort of campaigns to let folks know might be helpful, and you said that in your contracts you require that the private 

sector make those rights known. I think that is under Section 1034. 

I am just wondering if you all could both comment on this. Do 

you think the contractor workforce is sufficiently aware today of 

the protections under Section 2409 or the FAR 3.9? Do you think 

that is generally known among contractor employees? 

Ms. GUSTAFSON. With all due respect, Senator, I really do not 

know the answer to that question, and I would hate to guess. That 

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13 

is something that we have not taken the temperature of the IG 

community on, so I really do not think I can speak to that. DOD 

may have a better view. 

Ms. GARRISON. We believe the inclusion of the language in the 

DFARS has caused an increased awareness. However, I do not 

know how much of an increase that is across the Department. 

Senator PORTMAN. And do you have other thoughts as to how 

that notification could be improved other than the thoughts you 

gave us earlier? Either one of you. Ms. Gustafson, has your group 

looked at this? 

Ms. GUSTAFSON. We have not, Senator. So that is something 

we—— 

Senator PORTMAN. Is that something you could look at and get 

back to us on? 

Ms. GUSTAFSON. We could certainly for the Subcommittee seek 

opinions of the IG community. That is something I would be happy 

to do, sure. 

Senator PORTMAN. OK. 

With regard to the statute of limitations, I was curious to see 

that there are, in effect, sort of open rights here without a statutory period. No question we want a robust, effective whistleblower 

protection. We want it to be clear and well defined, as I said earlier. But I do not think we want these protections to be misused 

either. 

As I look at it—and tell me if I am wrong—it seems as though 

the statute of limitations is open. For instance, we would not want 

whistleblower reprisal allegations to serve as a pretext for an unrelated dispute with an employer—you talked a little about that earlier, Ms. Garrison—or as a defense against what were considered 

to be legitimate personnel actions. And often, there is a statute of 

limitations that is tolled upon discovery of the potential wrongdoing. 

My understanding is that the whistleblower protections in Section 1533—and this is in the American Recovery and Reinvestment 

Act, in the stimulus—contained no time limit within which to file 

an IG complaint to secure protection against reprisals, and there 

is no limit within which a civil action must be filed after the employee has exhausted the administrative remedies. 

I just wondered what you all thought about that. Do you think 

that is the right approach? Do you think there should be a statute 

of limitations both on the filing of the reprisal complaint and bringing a civil action? 

Ms. GUSTAFSON. Senator Portman, I do not—in the survey of the 

IG community, I would note that nobody had brought that up as 

an issue, which I find, I guess, telling enough that I want to point 

out that nobody had brought up whether that was a concern. It 

may be that ARRA is so recent that it has not yet become a question. So it may be something moving forward, as it becomes not 

just about ARRA but whether S. 241 becomes the law of the land. 

We might have something we want to look at. But as of right now, 

even though I am a lawyer, quite frankly, I have not thought about 

that question, and so that might be something that we going forward would want to work on. Whether it would go back to a different whistleblower—refer back to a different whistleblower law 

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14 

already in place to have the kind of symmetry that you talked 

about where there is a uniformity among laws might be one alternative. 

Senator PORTMAN. Would you be willing to have your group look 

at that, too, and report back to the Subcommittee what you think 

on the statute of limitations? 

Ms. GUSTAFSON. I can certainly take the views of the IG community and get back to you. 

Senator PORTMAN. And again, Section 1553 could become a template for further action, including some of the legislative proposals 

talked about today, so we would like to get your input on that. 

Ms. GUSTAFSON. OK. 

Senator PORTMAN. Any thoughts on that, Ms. Garrison? 

Ms. GARRISON. Yes, Senator. On the statute of limitations, we 

found that a statute of limitations results in a more timely investigation, and that evidence can become stale, so the longer it takes 

to file the complaint, the more stale the evidence will become. 

Senator PORTMAN. OK. Good. Thanks very much. 

Thanks, Madam Chairman. 

Senator MCCASKILL. So you are saying actually, Ms. Garrison, 

that a statute of limitations might help the strength of these cases 

in terms of our ability to investigate them because it provides some 

kind of deadline for everybody to either come forward or not come 

forward? 

Ms. GARRISON. Yes, Madam Chairman. 

Senator MCCASKILL. I understand that. 

Welcome, Senator Tester. Good to see you. 

Senator TESTER. Thank you, Madam Chairman. 

Senator MCCASKILL. Would you like to ask some questions of 

these witnesses? 

Senator TESTER. I sure would. 

First of all, I want to express my appreciation for you and the 

Ranking Member holding this hearing. I appreciate your work that 

you have done on cutting waste, fraud, and abuse during your tenure here. As we look to balance the budget, this is the low-hanging 

fruit. We have just got to be able to make sure that we know about 

it so we can deal with it, and how we can enhance our ability to 

get the information about waste, fraud, and abuse is critically important. And I want to thank the Members for testifying. Sorry I 

was not here. I had a previous conflict. 

But I just want to ask either or both of you, just from your perspective, how important are whistleblowers when it comes to ferreting out—— 

Ms. GUSTAFSON. Well, I think it is very clear and is pretty much 

the unanimous opinion of the IG community that much of our work 

could not be done if we did not have people on the ground telling 

us or pointing us to issues that they see involving abuse or waste 

or fraud of Federal funds, be it a Federal contractor employee, 

somebody sitting at a desk at DHS or DOD, or just be it the Federal money that is flowing out and is eventually being used to build 

planes or build roads. 

The IG community is substantially far too small to be able to do 

that without having people who are firsthand witnesses to that tell 

us what is going on, so it is crucial. 

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Senator TESTER. Would you agree with that? 

Ms. GARRISON. Yes, we would. We have found in our experience 

that internal allegations or reprisal complaints that come forward. 

Senator TESTER. OK, good. So how can we enhance their ability 

to come forward? Because I am sure there is a lot that goes on that 

we do not know about, and so how can we enhance their ability to 

come forward with—and sometimes it is a fine line because you do 

not want to get in the situation where somebody is having a fight 

with somebody. But the other side of the coin is that, it is a significant problem, I think, and we need every attack avenue we can get. 

So how do we enhance whistleblowers to come forward? Any 

ideas? 

Ms. GUSTAFSON. Well, first you have to make sure that if they 

do come forward, there will be some way for them to get restitution 

if they start getting reprised against and have an avenue to seek 

redress if somebody were to retaliate against them for coming forward. But, also, I do think a lot of it is education and letting them 

know what the avenues are to report these types of activities, be 

it internally, be it to the IG, be it to the RAT Board for the Recovery Act. That is crucial because a lot of times people, if they do not 

know where to go to begin with, they might be stymied from the 

get-go. 

Ms. GARRISON. I agree with my colleague. 

Senator TESTER. OK. Some have noted the low instance of fraud 

in the Recovery Act. Were there things in the Recovery Act that we 

should apply to other pieces of legislation that come to your mind 

that would prevent—or as far as that goes, is there anything we 

should be putting in pieces of legislation that would help prevent 

waste, fraud, and abuse? 

Ms. GUSTAFSON. Well, there are a couple of provisions of the Recovery Act that I think were really new and that the Inspectors 

General have found to be tremendously useful. One is the level of 

transparency that has come about as a result of the reporting requirements and the very robust Web site that the RAT Board has 

put up where you really can see where the money was going and 

whether it is an ARRA project. Another are the whistleblower protections that were in there. I do think everybody has been very 

heartened by the low levels of fraud. I would hasten to add it is 

not over yet, but I think people have been surprised. And those 

have been two of the big changes, and so it would be—it seems 

clear that they have had some impact on why it is so. 

Senator TESTER. OK. Anything to add to that? 

Ms. GARRISON. No. 

Senator TESTER. OK. I know your positions. I do not want you 

to incriminate yourselves. But compared to the media, compared to 

Inspectors General, compared to auditors, regulatory organizations, 

where would you stack whistleblowers in that as far as their ability 

to stop waste, fraud, and abuse? Inspectors General, No. 1, I am 

sure. [Laughter.] 

Ms. GUSTAFSON. There are a lot of people who work for me that 

would be very disappointed if I did not say that. But, again, there 

is only so much that we can do. I can speak just, for example, for 

SBA. A lot of the risk that comes from my—and the Small Business Administration deals with the lending going on that is done 

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16 

under delegated authority. And, quite frankly, if we did not have 

a good relationship with lenders to tell us about those problems, for 

example, we simply would not know. So it is not even just about 

outsourcing. It is really just about the nature of the beast that a 

lot of this really happens once the money is finally done, and we 

are simply not there. So how about even footing? 

Senator TESTER. All right. Even keel all the way across. How is 

that? Well, I want to thank you both for your testimony and for 

being here today. 

Thank you, Madam Chairman. 

Senator MCCASKILL. Thank you, Senator Tester. 

I think that one of the things we have tried to get at in 241— 

and I just want to put this on the record—kind of goes to the point 

you were making, Ms. Garrison, earlier about the government asking for something to happen with an employee as opposed to the 

contractor asking something to happen or the subcontractor asking 

something to happen with the employee. Right now the DOD provision just covers retaliation by the employer. It does not even cover 

retaliation by the government. 

So just so the example is made clear, let us say there is a contractor over in Afghanistan working on a highway, and they learn 

that somebody that is part of the military is involved in getting a 

kickback from some of the money we are paying for security. This 

is just a hypothetical example. If that government official finds out 

that this employee knows this, that government official could retaliate against that employee and it would not be covered in this 

law because it only covers action by their employer and not by the 

government, correct, in the DOD provision now? 

Ms. GARRISON. Yes, ma’am. 

Senator MCCASKILL. Which we fix in 241. 

Ms. GARRISON. Yes, ma’am. 

Senator MCCASKILL. So that the retaliation, no matter where it 

occurs, whether it occurs by the government or whether it occurs 

by the employer, be it a contractor or subcontractor, would all be 

covered. And I assume that you would agree that would be a major 

improvement in terms of us being able to protect whistleblowers. 

Ms. GARRISON. Yes, Madam Chairman, we would agree. 

Senator MCCASKILL. OK, great. Thank you. 

I do not have anything else for this panel. Do you have anything 

else for this panel? 

Senator PORTMAN. No. Thank you. 

Senator MCCASKILL. Thank you both very much. I appreciate you 

both being here. And please tell all the men and women that work 

for you that, as far as I am concerned—and I think many of the 

people who serve in an oversight capacity in the Senate—they are 

the unsung heroes in terms of us trying to get at the problems we 

have with the government spending money in ways it should not. 

So thank all of them for us, please. 

Ms. GUSTAFSON. Thank you. 

Senator MCCASKILL. Thank you. 

Let me introduce this panel. First we have Dr. Walter 

Tamosaitis. Am I saying that right? 

Dr. TAMOSAITIS. That is very good. 

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1The prepared statement of Mr. Tamosaitis appears in the appendix on page 46. 

Senator MCCASKILL. Thank you. Dr. Tamosaitis was the Research and Technology Manager (R&T) and Assistant Chief Process 

Engineer for the Waste Treatment Project at the Hanford nuclear 

site in Washington State. Mr. Tamosaitis has a Ph.D. in systems 

engineering and systems management, and he has over 40 years of 

experience. As a contractor employee at the Waste Treatment 

Project, Dr. Tamosaitis raised serious safety concerns about project 

testing. 

And Angela Canterbury is the Director of public policy for the 

Project on Government Oversight (POGO). In this capacity Ms. 

Canterbury has advanced public policies to combat corruption and 

promote openness and accountability in government. She has been 

an effective advocate for legislation that has improved the financial 

regulatory system, lobbying and congressional ethics rules, whistleblower protections, the Freedom of Information Act, and other 

open-government initiatives. Prior to joining POGO, Ms. Canterbury served as the Director of advocacy for Public Citizen’s Congress Watch Division. 

As I said before, it is the custom of this Subcommittee to swear 

in our witnesses, so if you all would mind standing for me, raising 

your hand. Do you swear that the testimony you will give today before the Subcommittee will be the truth, the whole truth, and nothing but the truth, so help you, God? 

Dr. TAMOSAITIS. I do. 

Ms. CANTERBURY. I do. 

Senator MCCASKILL. Thank you both, and we will begin with 

you, Dr. Tamosaitis. 

Dr. TAMOSAITIS. I may go a tad more than 5 minutes. 

Senator MCCASKILL. That is fine. 

TESTIMONY OF WALTER L. TAMOSAITIS,1 PH.D., URS CORPORATION, AND FORMER RESEARCH AND TECHNOLOGY 

MANAGER, WASTE TREATMENT PROJECT, HANFORD NUCLEAR SITE 

Dr. TAMOSAITIS. Good morning. My name is Walt Tamosaitis and 

I live in Richland, Washington. I am here speaking and representing myself today. Thank you for giving me this opportunity 

to provide this testimony. I also think it is a very important topic. 

As a contractor employee, I am living the experience today. 

I have a B.S., M.S., and Ph.D. in engineering, a certificate in 

business, and a professional engineering license, over 42 years industrial experience with DuPont and chemical plant operations 

with URS in DOE nuclear work. 

My last position was that of the Research & Technology Manager 

in the $13 billion Waste Treatment Plant (WTP) project in Hanford, Washington. It is known as the WTP or the VIT plant. 

The objective of the WTP is to put 56 million gallons of hazardous nuclear waste into a stable waste form to eliminate an environmental and safety threat. This material is in 177 aging waste 

tanks that long ago have exceeded their design life. One-third of 

those tanks have already leaked. Any delay in startup or throughH605-41331-79W7 with DISTILLER

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put of the WTP increases the chance of additional radioactive leaks 

to the environment. 

I am an advocate for the WTP, but it must be built to run safely 

and efficiently. While an advocate, I am opposed to corner cutting 

to earn fees and meet artificial schedules. This especially applies 

when the taxpayer cost is now over $13 billion and predicted to go 

to around $20 billion. The original cost for this plant was $4.6 billion. 

The safety threats in the WTP are very serious. They include the 

trapping of explosive hydrogen gas in the waste which can lead to 

fires or an explosion; solids buildup, which can lead to a criticality; 

erosion and vessel and pipe pluggages that can render the plant totally inoperable. Several of these relate to mixing in the vessels. 

Because of the design of the plant, making changes later is not 

really an option and would be extremely costly, if it was even possible. 

Bechtel is the prime contractor in the WTP. The DOE contract 

gives them the design authority and the design agency responsibility for the project. This means Bechtel decides what needs to be 

done and how it will be done. They then get rewarded for cost and 

schedule performance, but will have no operating responsibility. 

Their focus is profits, not performance. 

At 7 a.m. on July 1, 2010, I was suddenly terminated from the 

WTP job and escorted off the premises after I continued to raise 

valid safety and technical concerns during a time when Bechtel 

was attempting to meet a June 30th deadline for closing the mixing 

issue. 

Meeting the June 30th deadline was very important because there was a $5 million award fee on the line for them, and there 

was also an additional $50 million in Congress that they were trying to get. And we have e-mails which indicate that they were fearful if they did not close M3, they would have lost all that money. 

Two days earlier, I submitted a list of nearly 50 technical issues, 

many of which included mixing concerns. On July 1, I went into 

work to finalize the details of my team’s next assignment in WTP. 

I found my e-mail account had been turned off the night before. I 

was directed to go into an office and told, ‘‘Hand over your badge, 

your BlackBerry, and your phone.’’ I was then unceremoniously escorted off the WTP site. I was not allowed to talk to anyone and 

could not go to my office to get any of my personal belongings. 

My termination sent a chill through the WTP and the community. After termination from my WTP job, my employer, URS, assigned me to a basement office that housed two working copying 

machines. I have been sitting in a basement office now for nearly 

16 months. I have little meaningful work and no contact from URS 

management. I have not been invited to any safety or staff meetings, which are the staple of normal operations. 

I went to the Department of Energy Employee Concerns Program 

immediately after this happened. I was told that they had not seen 

such a flagrant case of retaliation and that I should seek help outside, which they then gave me the name of a person and I did. 

I found no help for whistleblowers in the State of Washington, 

no help from the IG, and very little help from the Department of 

Labor (DOL). The DOE Inspector General was supposed to look 

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1The prepared statement of Ms. Canterbury appears in the appendix on page 67. 

into my termination but stopped as soon as they learned I had filed 

a claim with the DOL. After a year, the DOL time expired, and 

with no outcome I asked for my case to be moved to Federal court. 

Any information we received from the IG in DOL was so heavily 

redacted, it was virtually useless. It will be nearly 2 years before 

a trial first occurs. 

Meanwhile, Bechtel gets reimbursed for their efforts. For example, in their most recent survey, which they released last week, 

‘‘Addressing the Culture,’’ it is estimated to have cost taxpayers nearly $2 million. 

I wrote a letter to the Defense Nuclear Facilities Safety Board 

(DNFSB) which prompted several investigations and a public hearing last October. The Defense Board has substantiated my technical and cultural concerns. The cultural issues in the WTP with 

Bechtel surround anyone who challenges Bechtel engineering, especially when cost and schedule is on the line and they can earn fee 

against it. Even their own survey released last week identified the 

problems of delay and working difficulties within the WTP. 

The contractors need regulation. Contractor whistleblowers and 

concerned employees need protection. With no whistleblower protection, the contractors do what they want. They actually make 

more money in DOE by not doing it right the first time. They get 

paid to build it, and then they get paid more to fix it, if it will run 

at all. And this cost the taxpayers billions at a time when our country’s budget cannot afford it. The original WTP cost was about $4.6 

billion, and now it is at over $13 billion in 10 years. 

I encourage you to pass laws to strengthen protection for whistleblowers. I encourage you to see that DOE contracts are reviewed 

with more rigor and end the DOE practice of appointing one company as the design authority and the design agency. I encourage 

you to eliminate taxpayer reimbursement to companies for defending improper practices. I also encourage you to increase the Defense Board’s scope and to give them enforcement responsibility because without teeth they can be ignored. 

Despite my career being ended, I would do it again because it 

was the right thing to do. Given the tools, more people like me will 

stand up against waste, fraud, abuse, bad practices, and poor quality in government contracts. 

Thank you, and I will be glad to entertain any questions you may 

have. 

Senator MCCASKILL. Thank you, Dr. Tamosaitis. Ms. Canterbury. 

TESTIMONY OF ANGELA CANTERBURY,1 DIRECTOR OF PUBLIC 

POLICY, PROJECT ON GOVERNMENT OVERSIGHT 

Ms. CANTERBURY. Thank you and good morning. I am the Director of Public Policy at the Project On Government Oversight a 30- 

year-old nonpartisan, independent watchdog that champions good 

government reforms. 

Whistleblowers are the guardians of the public trust and safety 

and among the best partners in crime fighting. It is well known 

that whistleblowers have saved countless lives and billions of taxpayer dollars. Studies have also shown that whistleblowers play a 

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bigger role in exposing corporate fraud than auditors, government 

regulators, or the media. 

But perhaps the best illustration of how whistleblowers save tax- payer dollars is the more than $27 billion recovered since 1987 

through the hugely successful False Claims Act (FCA). As you well 

know, the law not only acts as a deterrent to fraud, but also 

incentivizes whistleblowing through the financial awards and 

strong protections against retaliation. 

However, the FCA does not cover a host of other wrongdoing, in 

spite of the government’s huge exposure to these risks given the 

amount of Federal dollars distributed to non-Federal entities. According to USAspending.gov, out of nearly $3.8 trillion in the Federal budget, roughly half was spent on prime awards to contractors, grantees, States, and localities. 

A recent POGO report on the costs of contractors notes that this 

workforce now dwarfs the Federal employee workforce by approximately four-fold, and yet most of those on the front lines do not 

have protections to come forward when they witness waste, fraud, 

and abuse. The accountability loopholes are many in the patchwork 

of laws that protect only some Federal fund recipients and only 

under very limited circumstances. 

In addition to the FCA, there are also some extremely narrow 

protections under 42 U.S.C., Section 4705, but this is fairly flimsy 

policy, and few contractor employees can or should rely on those 

protections. However, in 2005, nuclear contractor employee rights 

were slightly upgraded. Also, progress has been made in closing 

other loopholes for the Department of Defense contractor whistleblowers. 

In 2009, the protected types of disclosures and recipients were 

expanded. However, these still lack some basic best practices found 

in other modern private sector whistleblower laws and, thus, have 

not yielded the kind of accountability that is needed. This is apparent in Iraq and Afghanistan where the Commission on Wartime 

Contracting recently estimated $31 to $60 billion has been lost to 

waste and fraud. 

However, there is a model whistleblower protection for Federal 

fund recipients. It simply needs to be expanded beyond its original 

scope. The American Recovery and Reinvestment Act of 2009 included excellent whistleblower protections for employees of entities 

funded by the Recovery Act. Notably, the stimulus spending so far 

has experienced extremely low incidence of fraud, as acknowledged 

here today and also by the GAO and others. 

The Non-Federal Employee Whistleblower Protection Act (WPA) 

of 2001, S. 241, builds on the success of the Recovery Act and mirrors many of its provisions. Introduced earlier this year by Madam 

Chair McCaskill, along with Senator Webb, S. 241 would bridge the 

wide gaps in current coverage and comprehensively apply best 

practice protections to employees of all entities that receive Federal 

funds. Like the Recovery Act, it would do the following: 

It would protect the most common disclosures made by employees, those made internally. 

It would cover disclosures of gross mismanagement, gross waste, 

substantial and specific to public health and safety, abuse of authority, or a violation of a law, rule, or regulation. 

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It would require an Inspector General to review and report all 

claims of retaliation and investigate non-frivolous claims within a 

reasonable timeframe. 

It would provide effective remedies, including compensatory damages and enforcement when reprisal is confirmed. 

It would grant normal access to a jury trial and ensure whistleblowers do not get stuck in administrative limbo for longer than a 

year. 

In sum, S. 241 would substantially reduce the risks for whistleblowers and encourage more to come forward and create far more 

accountability to taxpayers. However, we do have a few suggested 

improvements. 

First, every Federal fund recipient should be required to post notices of their rights and remedies under this section at work sites. 

Second, we should require IGs to separately investigate the 

wrongdoing that the whistleblower exposed in the first place. 

Last, though it may be beyond the scope of this particular piece 

of legislation, we would like to see incentives for whistleblowing expanded to emulate the successful FCA award program. 

In these tough economic times, with a ballooning Federal deficit, 

it is just plain common sense to have more ‘‘deputies’’ to safeguard 

taxpayer dollars and the public trust. This is why POGO and partners of ours in the Make It Safe Coalition strongly support better 

whistleblower protections for Federal contractors. 

We urge you to support enactment of S. 241, and I thank you for 

the opportunity to testify today. 

Senator MCCASKILL. Thank you very much, Ms. Canterbury. 

Let me start. I think it is important to focus in on the independent investigation of the Defense Nuclear Facilities Safety 

Board as it relates to your case, Dr. Tamosaitis. They reviewed 

30,000 pages of documents and did 45 different witness interviews 

and then released a report that—and I believe that report was released in June of this year—that was highly critical of Bechtel and 

the management of safety at Hanford. 

According to this report, done by this independent review board, 

safety board, Bechtel had created a chilled atmosphere adverse to 

safety, and it specifically recommended that DOE investigate. They 

found the Energy Department and contractor management suppressed technical dissent, and I am quoting from their report. 

So I know that DOE kind of said, ‘‘Well, since you talked to 

Labor, we are going to let Labor handle it.’’ Have you circled back 

around with DOE since this report was issued to—have you gotten 

any response from them about in light of what this independent review board found, did they feel any need to pick the mantle back 

up and look carefully at what happened surrounding the concerns 

you had raised and what happened to your employment as a result 

of that? 

Dr. TAMOSAITIS. Regarding me, no. They have announced that 

they are going to do another Health Safety Security (HSS) survey, 

but that is as much as I know of. 

Senator MCCASKILL. And I assume Bechtel is still in charge? 

Dr. TAMOSAITIS. Bechtel is still in charge of the project, yes, Senator. 

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Senator MCCASKILL. And everyone sees you go to work in the 

basement with no windows? 

Dr. TAMOSAITIS. Yes, ma’am. 

Senator MCCASKILL. And knows that you are not allowed to work 

even though you are there onsite and getting paid? 

Dr. TAMOSAITIS. Correct. 

Senator MCCASKILL. So every day you are an example to all the 

workers there, whether they are Federal employees or Bechtel employees, ‘‘Do not say anything, or you, too, will be banished to the 

basement’’? 

Dr. TAMOSAITIS. Yes, Senator. Very directly. It is a very visible 

example of what happens if you speak up. 

Senator MCCASKILL. It is just unbelievable to me that we have 

allowed this to occur. And I know that you have a case in court, 

but it is—— 

Dr. TAMOSAITIS. Yes, I want—— 

Senator MCCASKILL. It would be one thing if this was an initial 

stage and you did not have this independent review. It would be 

another thing if this was, frankly, I mean, I am all about trying 

to save money, but this is about safety. And that is what is really 

of concern. 

Dr. TAMOSAITIS. It is safety and it is billions of dollars, and the 

reimbursement for Bechtel to be—while they pursue their defense, 

for example—I am requoting my verbal testimony, but the survey 

they released last week cost taxpayers nearly $2 million. 

Senator MCCASKILL. I am speechless about the reality of you still 

going there every day as a walking billboard to everyone to keep 

their mouth shut, because that is essentially what you are. 

Dr. TAMOSAITIS. Yes, Senator, and that is why I took action because I did not want the people, especially the young engineers, to 

think that what happened to me was right or that they should 

manage that way. 

Senator MCCASKILL. Were you working—I assume you worked 

side by side with Federal employees at Hanford, at the waste treatment—— 

Dr. TAMOSAITIS. Yes, ma’am. 

Senator MCCASKILL. Now, if a DOE employee reports waste of 

government funds, they are fully protected from retaliation; whereas, it is not clear that you as a contractor employee have that same 

protection. 

Dr. TAMOSAITIS. I am not sure what the DOE employees—what 

coverage they have. In the State of Washington, there is essentially 

no whistleblower remedies. The Hanford site, a Supreme Court decision in the State of Washington said that any Hanford whistleblower cases had to take the Federal route and go to the DOL. 

Senator MCCASKILL. Right. 

Dr. TAMOSAITIS. And then their year timed out, and now we have 

made a motion to move to Federal court. In Federal court, we have 

named DOE as a defendant because we have sufficient information 

that indicates that the Federal project manager played a role in my 

termination. 

Senator MCCASKILL. So is the government reimbursing Bechtel 

for the costs of the legal suit against you, do you know? 

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Dr. TAMOSAITIS. Yes. It is my clear understanding that they are 

being reimbursed, and it is my understanding that if they are 

found guilty, they could have to repay. But if they are not found 

guilty, which means if they settle at the end of whatever period of 

time and admit no guilt, they are fully reimbursed. The survey, 

again—— 

Senator MCCASKILL. For the settlement amount, too, or just for 

the costs of the defense; do you know? 

Dr. TAMOSAITIS. I do not know that. 

Senator MCCASKILL. Ms. Canterbury, do you know what the situation is? And is this common that the government is funding the 

defense for these cases across the board for contractors? 

Ms. CANTERBURY. It was my understanding that the change that 

was made in 2005 disallowed DOE to pay for the defense of contractors. So if that is ongoing, that is a problem. 

Senator MCCASKILL. So we need to look into that. We need to ask 

some significant questions of DOE about who is paying for the defense of this case and whether or not taxpayers are—— 

Dr. TAMOSAITIS. Senator, it is my clear understanding they are 

being reimbursed for it. 

Senator MCCASKILL. I think this is an area that we need to get 

more information on, and I will task the staff to look at the funding 

of the defense of these lawsuits and the funding of any settlement. 

If the case is settled without an admission of guilt, which is the 

rule not the exception in most lawsuits, do the settlement monies 

come out of Bechtel’s profits, or do they come out of the treasury? 

And I think it is important that we get to the bottom of that. 

Have you been able to look at the investigative files of the Department of Labor? 

Dr. TAMOSAITIS. They were heavily redacted. Very difficult to understand for the information that we received. My understanding 

is Bechtel and URS did not provide full information, and I do not 

have a summary of the totality of what they provided. 

Senator MCCASKILL. Do you know if the information that the 

Safety Defense Board looked at, do you know if it was as heavily 

redacted as what you have been able to see? 

Dr. TAMOSAITIS. No, Senator, I do not know what they looked at. 

I will say that the Defense Board was the only group that looked 

at the issue in a timely manner and identified the issue correctly. 

Senator MCCASKILL. So the administrative remedies that we 

have in the law for whistleblowers completely failed you? 

Dr. TAMOSAITIS. Yes, ma’am. 

Senator MCCASKILL. So you had the Safety Board that did the 

job they were supposed to do, and then you have had to turn to 

the courts because the administrative—which, of course, we have 

designed the administrative process in order to try to avoid the 

courts, and, clearly, that is not working out. 

Dr. TAMOSAITIS. Again, the administrative process internally, Bill 

Taylor of the Employee Concerns Program (ECP), told me to seek 

help outside, which I did. 

Senator MCCASKILL. So, in fact, the people who are tasked with 

the administrative process are the ones who advised you, Get out 

of Dodge, so to speak, and get into the civil court system because 

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the administrative system is not going to be adequate in terms of 

addressing your problem? 

Dr. TAMOSAITIS. Correct. One hundred percent correct. 

Senator MCCASKILL. OK. Thank you very much. Senator 

Portman. 

Senator PORTMAN. Thank you, Madam Chairman, and I appreciate the testimony. 

I wanted to followup, Ms. Canterbury, if I could, on some of your 

comments on the policy side, and I appreciate what you said about 

providing additional notification to private sector employees in response to my earlier question to the last panel and fleshing that 

out a little further. 

Let me hear from both of you, if you have answers to this. I am 

just trying to get at what works and what does not work with regard to existing protections for private sector—for Federal contractors, non-Federal employees. 

You have the False Claims Act, which you mentioned, and that 

gives whistleblowers the right to file the suits against contractors. 

‘‘Qui tam’’ I think is the Latin for it, the qui tam suits, and then 

others for defrauding the government. So it can be a suit against 

contractors or anyone, right, for defrauding the government? And 

then there is the DOD statute we talked about earlier, Section 

2409, and for the civilian agencies, FAR 3.9, which prohibits any 

contractor from ‘‘discharging, demoting, or otherwise discriminating 

against’’ an employee for reprisals for reporting substantial violations of law related to a contract, and complaints under those provisions are brought to the IG, as we heard about earlier, of the relevant agency, so the Inspector General in this case of DOE. 

Just if you could tell us on the record, what do you see as the 

major gaps in these existing protections that have either prevented 

whistleblowers from coming forward or resulted in unprotected reprisals? And then, Ms. Canterbury, if you could, just give me any 

specific investigations of contractors that you believe would have 

been more effective with stronger whistleblower protections. 

Ms. CANTERBURY. Thank you, Senator, for that question. As I 

mentioned in my testimony, that particular statute, which is under 

the FAR Rule 3.9, is rather flimsy. Substantial violations of law are 

the only disclosures which are protected, and I think there is a lot 

of concern about what ‘‘substantial’’ might be and in what context 

that might be substantiated. 

Beyond that, there are no time limitations on investigations that 

might be conducted by an IG, no time limitation on agency actions, 

so it is conceivable that there could be interminable limbo for a 

whistleblower who might try to rely on those protections. And as 

I said, I would not advise any contractor to do so. 

In terms of cases in which with better protections we might have 

had more accountability or the whistleblower might have found justice, it is very hard to say. In fact, most of the cases of which we 

are aware have come under the False Claims Act. Because of its 

underlying very strong public policy, that is the avenue through 

which most contractors have sought to bring to light instances of 

fraud or to seek protections from retaliation. And so those are the 

cases we are most familiar with, and I think that there are certainly many more who have not come forward at all, and billions 

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in taxpayer dollars that have been wasted. I believe the public has 

been put in jeopardy in terms of health and safety because there 

has not been a strong public policy for whistleblowers. 

Senator PORTMAN. Do you think as a general matter that Federal 

employees are more likely to step forward with reports of waste or 

abuse than non-Federal employees? 

Ms. CANTERBURY. I think that is true. We have had the Whistleblower Protection Enhancement Act in place for many years, but 

as you noted in your opening remarks, that law also is in desperate 

need of enhancement, and this Subcommittee has moved a bill that 

will do that, that will strengthen the Whistleblower Protection Act. 

So, yes, they do have more rights under the law currently as 

Federal employees than a non-Federal employee who may be sitting alongside doing the same type of work. 

Senator PORTMAN. And one issue that you talked about and that 

we talked about earlier was just notifying non-Federal employees 

of their rights and being sure it is understood is the administrative 

procedure. I talked about the importance of having an internal 

process that works, which sometimes works and sometimes does 

not. And then we talked about just some of the statutory provisions 

that might be less than clear and that there is sort of a patchwork 

on the non-Federal side and that legislation that we did pass—I 

think it was unanimous out of this Subcommittee, in fact, on the 

Federal side—— 

Ms. CANTERBURY. Yes. 

Senator PORTMAN [continuing]. Helped to clean up the Federal 

side. But we have not done that on the non-Federal side. 

Dr. Tamosaitis, your contracting comments I found interesting, 

and I do not know as much about Hanford and how that cleanup 

is going. I have been involved in some other cleanups and found 

that if it is a cost-plus contract, sometimes it results in some of the 

concerns you raised, not specifically about safety but about the taxpayer dollars being wasted. Is that a cost-plus contract, do you 

know? 

Dr. TAMOSAITIS. The project, no. The project has award fees in 

it. It is not a cost-plus. It is a capital project. They have intermediate milestones and I will say incentives for meeting various 

targets. 

Senator PORTMAN. Is it a fixed-cost contract then with awards? 

Would that be the right way to describe it? 

Dr. TAMOSAITIS. Well, no, I would say not fixed cost. It is going 

up by billions. 

Senator PORTMAN. Yes, that is what it sounded like from what 

you said earlier. 

Dr. TAMOSAITIS. It is a capital project, and they continue to reforecast what the total price will be. Congress allots $690 million 

a year in funding, ‘‘capital funding,’’ and they are getting an additional $50 million, which Bechtel was after. If they had not closed 

the M3, the mixing issue, in June, the $50 million was in jeopardy. 

So this coming year they would have $740 million. They wanted to 

go for more money. But I do not know the status of that additional 

money. 

Senator PORTMAN. Yes, well, I appreciate that, and I am not expecting you to be the lawyer on this, but I do think some of the 

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waste that we hear about in this Subcommittee, talking about contracting generally and some of the things that you raised, are related to the incentives. As you said earlier, companies who are paid 

to build something and then when it does not work are paid to fix 

it would be another example of that, where the structure of the 

contract itself leads to some of these excessive taxpayer payments 

that you typically would not see in the private sector on a fixedcost basis. 

Dr. TAMOSAITIS. In this contract, they will be gone when they 

push the button, basically right when they push the button to start 

it up. So they will have limited to no operating responsibility. 

There is a very limited performance requirement, but I will say in 

my view that continues to decrease as time goes on as to what the 

plan has to do over what period of time when they start it up. A 

major issue in my mind is the design authority/design agency confounding, deciding what needs to be done and how it needs to be 

done. I have used the term that is like putting the fox in the henhouse to guard it. They then have schedule and cost milestones 

they have to meet, and if you are deciding what needs to be done 

and how it needs to be done and it has to be done here, you are 

pretty well going to meet it. And then you are not going to be there 

to operate it. 

In answer to an earlier question on the adequacy of the whistleblower laws, I think the laws clearly have to be improved, stepped 

up. There is also for the management of the company, attention 

needs to be given on that side because what really provides a memory is publicity and money. So if they—I will say not so much the 

law may be written, sitting on a shelf. So the companies need to 

see that there is a sting to them and money will be memory as well 

as the bad publicity. And until the management of the companies 

see that, it is a continual uphill battle. 

Senator PORTMAN. Well, thank you both for your testimony. I appreciate it. 

Senator MCCASKILL. It is interesting, the award fee stuff we saw 

over and over again in Iraq and Afghanistan where there had been 

terrible execution of the contracts and they got the performance 

fees. We did a whole hearing on it in the Armed Services Committee, and it was shocking to me. And basically the culture was, 

‘‘Well, we just give them those fees. No matter how good a job they 

did, just everybody knows they get them.’’ I am, like, ‘‘Well, why 

is it considered some reward then if you are giving them to folks 

who are not doing a good job?’’ 

Let me just finally say this: This has been a very helpful hearing. 

I think both Senator Portman and I have asked for additional information from the Inspectors General community and others in 

this hearing that we want to followup with. I hope that Senator 

Portman takes a hard look at Senate bill 241. I would love to have 

his help with it in making it the best we can possibly make it. 

The one thing I would say to you, Ms. Canterbury, we have this 

chart1 that we prepared for this hearing, and this is the various 

different provisions for whistleblowers in different parts of the 

law—who is protected, what disclosures are protected, who to disH605-41331-79W7 with DISTILLER

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1The chart submitted by Senator McCaskill appears in the appendix on page 78. 

close to, additional protections and remedies. And they are different. And one of the things I would really like to see us get done 

in S. 241 is to clean up this patchwork, because how in the world 

can we expect people to know what their rights are if it depends 

on which contract you are working under, where you are working, 

whether you are in stimulus dollars, or whether you are DOD? Our 

attempt to try to clean this up, all of this was done with good intentions. It is like our job training programs. We have 47, 48 of 

them, and every one of them was created by a Member of Congress 

that had good intentions in terms of job training. But we have created this labyrinth of job training that ultimately falls in terms of 

its effectiveness because of the weight and complexity of the myriad programs. 

So any help that your organization can give us in terms of making sure that what we have done with S. 241 is to try to clean this 

up—and it is complicated by the fact that Issa’s bill has a pilot program for contractors, which I think we know we do not need a pilot 

program. And Senator Akaka’s bill does not include contractors at 

all. So we have right now in Congress three different pieces of legislation that are going to make this worse, not better. So hopefully 

we can all get together and try to clean this up because I think 

that is how we are going to get to more effective protection of whistleblowers and ultimately then more effective expenditure of Federal dollars. 

Thank you very much for being here. Thank you for attending 

the hearing. Thank you, Senator Portman. 

Ms. CANTERBURY. Thank you. 

Mr. TAMOSAITIS. Thank you. 

[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.] 

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