Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 69517 

■ i. Revising the date of the alternate; 

■ ii. Removing from paragraph 

(e)(1)(ii)(C) ‘‘Lab and Other Covered 

Entities (NOV 2021)’’ and adding ‘‘Lab 

Covered Entities (DEC 2023)’’ in its place; 

and 

■ iii. Redesignating paragraphs 

(e)(1)(ii)(F) through (W) as paragraphs 

(e)(1)(ii)(G) through (X) and adding a 

new paragraph (e)(1)(ii)(F). 

The revisions and additions read as 

follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Products 

and Commercial Services. 

* * * * * 

Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial 

Products and Commercial Services (DEC

2023) 

(b) * * * 

__(9) 52.204–28, Federal Acquisition 

Supply Chain Security Act Orders—Federal 

Supply Schedules, Governmentwide 

Acquisition Contracts, and Multi-Agency 

Contracts. (DEC 2023) (Pub. L. 115–390, title 

II). 

__(10)(i) 52.204–30, Federal Acquisition 

Supply Chain Security Act Orders— 

Prohibition. (DEC 2023) (Pub. L. 115–390, title 

II). 

__(ii) Alternate I (DEC 2023) of 52.204–30. 

* * * * * 

(e)(1) * * * 

(vi)(A) 52.204–30, Federal Acquisition 

Supply Chain Security Act Orders— 

Prohibition. (DEC 2023) (Pub. L. 115–390, title 

II). 

(B) Alternate I (DEC 2023) of 52.204–30. 

* * * * * 

Alternate II. (DEC 2023) * * * 

(e)(1) * * * 

(ii) * * * 

(F)(1) 52.204–30, Federal Acquisition 

Supply Chain Security Act Orders— 

Prohibition. (DEC 2023) (Pub. L. 115–390, title 

II). 

(2) Alternate I (DEC 2023) of 52.204–30. 

* * * * * 

■ 13. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; 

■ b. Removing from paragraph (a)(1)(ii) 

‘‘Lab and Other Covered Entities (NOV 

2021)’’ and adding ‘‘Lab Covered 

Entities (DEC 2023)’’ in its place; 

■ c. Redesignating paragraphs (a)(1)(v) 

through (xi) as paragraphs (a)(1)(vi) 

through (xii) and adding a new 

paragraph (a)(1)(v); and 

■ d. Removing from paragraph (a)(2)(vii) 

‘‘(SEP 2023)’’ and adding ‘‘(DEC 2023)’’ in 

its place. 

The revision and addition read as 

follows: 

52.213–4 Terms and Conditions-Simplified 

Acquisitions (Other Than Commercial 

Products and Commercial Services). 

* * * * * 

Terms and Conditions-Simplified 

Acquisitions (Other Than Commercial 

Products and Commercial Services) 

(DEC 2023) 

* * * * * 

(a) * * * 

(1) * * * 

(v) 52.204–30, Federal Acquisition Supply 

Chain Security Act Orders—Prohibition. (DEC

2023) (Pub. L. 115–390, title II). 

* * * * * 

■ 14. Amend section 52.244–6 by— 

■ a. Revising the date of the clause; 

■ b. Removing from paragraph (c)(1)(v) 

‘‘Lab and Other Covered Entities (NOV 

2021)’’ and adding ‘‘Lab Covered 

Entities (DEC 2023) in its place; and 

■ c. Redesignating paragraphs (c)(1)(viii) 

through (xxi) as paragraphs (c)(1)(ix) 

through (xxii) and adding a new 

paragraph (c)(1)(viii) in its place. 

The revision and addition read as 

follows: 

52.244–6 Subcontracts for Commercial 

Products and Commercial Services. 

* * * * * 

Subcontracts for Commercial Products 

and Commercial Services (DEC 2023) 

* * * * * 

(c)(1) * * * 

(viii)(A) 52.204–30, Federal Acquisition 

Supply Chain Security Act Orders— 

Prohibition. (DEC 2023) (Pub. L. 115–390, title 

II). 

(B) Alternate I (DEC 2023) of 52.204–30. 

* * * * * 

[FR Doc. 2023–21320 Filed 10–4–23; 8:45 am] 

BILLING CODE 6820–14–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 3, 31, and 52 

[FAC 2023–06, FAR Case 2017–005, Item 

II; Docket No. 2017–0005; Sequence No. 1] 

RIN 9000–AN32 

Federal Acquisition Regulation: 

Whistleblower Protection for 

Contractor Employees 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement an act to enhance 

whistleblower protection for contractor 

employees. The rule makes permanent 

the protection for disclosure of certain 

information. It also clarifies that the 

prohibition on reimbursement for legal 

fees accrued in defense against reprisal 

claims applies to subcontractors, as well 

as contractors. 

DATES: Effective date: November 6, 

2023. 

Applicability: At the time of any 

major modification to a contract, the 

agency shall make best efforts to include 

52.203–17 in a contract that does not 

already contain it. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Malissa Jones, Procurement Analyst, at 

571–886–4687 or by email at 

malissa.jones@gsa.gov. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2023–06, FAR Case 2017–005. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

83 FR 66223 on December 26, 2018, to 

amend the FAR to implement an act to 

enhance whistleblower protection for 

contractor and grantee employees, 

including employees of subcontractors 

(Pub. L. 114–261), enacted December 14, 

2016. Although the statute addresses 

both contractor and grantee employees, 

including employees of subcontractors, 

the FAR only directly covers contracts 

and contractors, and indirectly covers 

subcontracts and subcontractors with 

flowdown requirements. Grants are 

covered in title 2 of the Code of Federal 

Regulations. 

This statute also amends 41 U.S.C. 

4712 to make permanent the pilot 

program for enhancement of contractor 

protection from reprisal for sharing 

certain information. This program does 

not apply to DoD, NASA, or the Coast 

Guard, where similar permanent 

enhanced whistleblower protections for 

contractor employees were enacted by 

section 827 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2013 (Pub. L. 112–239, 10 

U.S.C. 2409). Neither program applies to 

certain elements of the intelligence 

community (10 U.S.C. 2409(e) and 41 

U.S.C. 4712(f)). 

The four-year pilot program was 

enacted on January 2, 2013, by section 

828 of the NDAA for FY 2013, with an 


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effective period of four years from the 

date of enactment (i.e., January 2, 2013, 

through January 1, 2017). Section 

1091(e) of the NDAA for FY 2014 (Pub. 

L. 113–66) modified the effective period 

of the pilot program to be four years 

from the date that is 180 days after the 

date of enactment (i.e., July 1, 2013, 

through June 30, 2017). However, the 

program did not expire as it became 

permanent on December 14, 2016, 

before either of those expiration dates. 

Public Law 114–261 also clarifies that 

the cost principles at 10 U.S.C. 2324(k) 

and 41 U.S.C. 4304 and 4310 that 

prohibit reimbursement for legal fees 

accrued in defense against reprisal 

claims apply to costs incurred by a 

contractor, subcontractor, or personal 

services contractor. Personal services 

contractors are contractors, and the cost 

principles generally already apply in the 

same way to costs incurred by 

subcontractors as to costs incurred by 

contractors. Three respondents 

submitted comments on the proposed 

rule. 

II. Discussion and Analysis 

DoD, GSA, and NASA reviewed the 

public comments in the development of 

the final rule. The comments did not 

recommend changes to the rule; instead, 

they expressed concerns regarding the 

underlying intent of the statute. While 

DoD, GSA, and NASA recognize the 

concerns identified in the public 

comments, the public comments are not 

within the scope of the rule. A 

discussion of the comments received is 

provided as follows: 

A. Summary of Changes From Proposed 

Rule 

No changes were made to the rule as 

a result of the public comments. 

A minor change was made from the 

proposed rule regarding the 

applicability of FAR 52.203–17. The 

proposed rule prescribed the clause in 

acquisitions above the simplified 

acquisition threshold (SAT). The final 

rule changes the prescription of clause 

52.203–17 to apply to all solicitations 

and contracts, including those at or 

below the SAT. The clause implements 

41 U.S.C. 4712(d), which requires 

contractors and subcontractors to notify 

their employees of their whistleblower 

protections. The employee protections 

of the whistleblower program are 

applicable to all contracts regardless if 

expressly stated in the awarded 

contract. By changing the clause 

prescription to include solicitations and 

contracts at or below the SAT, 

contractors and subcontractors will have 

greater awareness of this responsibility 

and employees also will be more aware 

of the whistleblower protections. 

B. Analysis of Public Comments 

1. Whistleblower Declaration 

Comment: A respondent stated that 

there should be a requirement for the 

whistleblower to declare they are 

blowing the whistle. 

Response: Changing the statutory 

requirement is outside the scope of the 

rule. 

2. Compulsory Reinstatement 

Comment: A respondent stated that 

the current requirement to reinstate an 

employee if the IG or agency determine 

the whistleblower was retaliated against 

should not be compulsory. 

Response: Changing the statutory 

requirement at 41 U.S.C. 4712(c) is 

outside the scope of the rule. 

3. Ability To Waive Complaint 

Comment: A respondent stated that 

FAR 3.905–1 should clarify whether or 

not whistleblower cases are exempt 

from employment agreements that 

waive the right to a jury trial or 

arbitration. 

Response: FAR 3.905–1(d) states there 

is no waiver: ‘‘No waiver. The rights and 

remedies provided for in 41 U.S.C. 4712 

may not be waived by any agreement, 

policy, form, or condition of 

employment.’’ The source of this text is 

41 U.S.C. 4712(c)(7). Also see 41 U.S.C. 

4712(c) for the right to a jury trial. 

4. Standard for Liability 

Comment: A respondent stated that 

the statutory standard for determining 

liability should be changed from an 

event that ‘‘contributed’’ to the negative 

employment action to one that 

‘‘substantially contributed’’ or 

‘‘primarily contributed’’ to the negative 

employment action. 

Response: 41 U.S.C. 4712(a) states 

that ‘‘an employee . . . may not be 

discharged, demoted, or otherwise 

discriminated against as a reprisal for 

disclosing . . .’’. The statute does not 

require a showing that the event 

substantially or primarily contributed to 

the negative employment action. 

5. Allowability of Legal Fees 

Comment: A respondent stated that 

the statutory requirement should 

include allowability of legal fees to 

settle de minimis suits and for suits 

when a contractor successfully defends 

itself from the whistleblower, as well as 

requiring the plaintiff to bear their own 

litigation costs unless the IG finds the 

whistleblowing ‘‘substantially’’ or 

‘‘primarily’’ contributed to the 

retaliatory action. 

Response: Some of these costs are 

already allowable, see FAR 31.205–47. 

Changing the statutory requirements is 

outside the scope of the rule. 

6. Readability 

Comment: A respondent stated that 

some of the changes in the rule make 

the text insufficiently readable. The 

respondent stated that the definition of 

‘‘abuse of authority’’ and the text at FAR 

3.903(a) and (c) have a low readability 

score. 

Response: The definition of ‘‘abuse of 

authority’’ in the proposed rule was 

taken verbatim from 41 U.S.C. 

4712(g)(1) and previously included in 

the FAR at 3.908–2. The text at 3.903(a) 

was substantively drawn from 41 U.S.C. 

4712(a)(1) and reframed in active voice 

as a prohibition that applies to 

contractors and subcontractors. The text 

at 3.903(c) was taken verbatim from 41 

U.S.C. 4712(a)(3)(A), with the exception 

of omitting references to grants. Because 

these are the words of the statute, no 

changes will be made. 

7. Support for the Rule 

Comment: A respondent stated that 

they support the rule. 

Response: Noted. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products and Commercial Services, 

Including Commercially Available Offthe-Shelf (COTS) Items 

Based on the determinations by the 

FAR signatories (DoD, GSA, and NASA) 

and the Administrator for Federal 

Procurement Policy, in accordance with 

41 U.S.C. 1905, 1906, and 1907, this 

rule applies to all solicitations and 

resultant contracts, including contracts 

and subcontracts for acquisitions at or 

below the SAT, and contracts and 

subcontracts for the acquisition of 

commercial services and commercial 

products, including COTS items. 

As explained below, the underlying 

statutory requirements that this rule 

implements are applicable to all 

Government contracts and subcontracts 

by operation of law. The FAR is being 

amended to include the clause, 52.203– 

17, Contractor Employee Whistleblower 

Rights, which implements 41 U.S.C. 

4712, in all prime contracts and 

subcontracts. The discretion that the 

FAR signatories and the Administrator 

are exercising is essentially limited to 

the determination to incorporate the 

clauses established by this rule into 

contracts and subcontracts below the 

SAT and contracts and subcontracts for 

commercial products, commercial 

services, and COTS items. The FAR 


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Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 69519 

Council is not determining when the 

whistleblower law applies but rather 

when the clause would be included in 

contracts and subcontracts. The clause 

does not apply to DoD, NASA and the 

Coast Guard, or applicable elements of 

the intelligence community. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

Pursuant to 41 U.S.C. 1905, contracts 

or subcontracts in amounts not greater 

than the SAT will be exempt from a 

provision of law unless the law (i) 

contains criminal or civil penalties; (ii) 

specifically refers to 41 U.S.C. 1905 and 

states that the law applies to contracts 

and subcontracts in amounts not greater 

than the SAT; or (iii) the Federal 

Acquisition Regulatory Council (FAR 

Council) makes a written determination 

and finding (D&F) that it would not be 

in the best interest of the Federal 

Government to exempt contracts and 

subcontracts in amounts not greater 

than the SAT from the provision of law. 

If none of these conditions are met, the 

FAR is required to include the statutory 

requirement(s) on a list of provisions of 

law that are inapplicable to contracts 

and subcontracts in amounts not greater 

than the SAT. 

B. Applicability to Contracts for the 

Acquisition of Commercial Products 

and Commercial Services 

Pursuant to 41 U.S.C. 1906, 

acquisitions of commercial products 

and commercial services (other than 

acquisitions of COTS items, which are 

addressed in 41 U.S.C. 1907) are exempt 

from a provision of law unless the law 

(i) contains criminal or civil penalties; 

(ii) specifically refers to 41 U.S.C. 1906 

and states that the law applies to 

acquisitions of commercial products 

and commercial services; or (iii) the 

FAR Council makes a written 

determination that it would not be in 

the best interest of the Federal 

Government to exempt contracts and 

subcontracts for the procurement of 

commercial products and commercial 

services from the provision of law. If 

none of these conditions are met, the 

FAR is required to include the statutory 

requirement(s) on a list of provisions of 

law that are inapplicable to acquisitions 

of commercial products and commercial 

services. 

C. Applicability to Contracts for 

Commercially Available Off-the-Shelf 

Items 

Pursuant to 41 U.S.C. 1907, 

acquisitions of COTS items will be 

exempt from a provision of law unless 

the law (i) contains criminal or civil 

penalties; (ii) specifically refers to 41 

U.S.C. 1907 and states that the law 

applies to acquisitions of COTS items; 

(iii) concerns authorities or 

responsibilities under the Small 

Business Act (15 U.S.C. 644) or bid 

protest procedures developed under the 

authority of 31 U.S.C. 3511 et seq.; 10 

U.S.C. 3308; or 41 U.S.C. 3706 and 

3707; or (iv) the Administrator for 

Federal Procurement Policy makes a 

written determination that it would not 

be in the best interest of the Federal 

Government to exempt contracts and 

subcontracts for the procurement of 

COTS items from the provision of law. 

D. Determinations 

The requirements of FAR 52.203–17, 

Contractor Employee Whistleblower 

Rights, ensures that all contractor and 

subcontractor employees are covered by 

the whistleblower rights and remedies. 

Having the clause in all Federal 

Government contracts is beneficial to 

contractor and subcontractor employees, 

and the public. Employees benefit from 

having whistleblower rights and 

remedies so they can report potential 

wrongdoing without fear of reprisal. The 

public benefits from employees 

reporting wrongdoing which may result 

in actions to hold firms responsible for 

unlawful acts. It is in the best interest 

of the Government to apply 

whistleblower protections through a 

clause in all Federal Government 

contracts. 

For these reasons, the FAR Council 

has determined that it is in the best 

interest of the Government to apply the 

final rule to contracts and subcontracts 

at or below the SAT and for the 

acquisition of commercial products and 

commercial services. 

Similarly, the Administrator for 

Federal Procurement Policy has 

determined that it is in the best interest 

of the Government to apply this rule to 

contracts and subcontracts for the 

acquisition of COTS items. It should be 

noted that the pilot program applied the 

clause to all commercial products, 

commercial services, and COTS 

acquisitions through 52.212–4(r), but 

only above the SAT for noncommercial 

acquisitions. 

IV. Expected Impact of the Rule 

The rule enhances whistleblower 

protection for contractor employees by 

making permanent the protection for 

disclosure of certain information, and 

by applying the requirement for 

contractors and subcontractors to inform 

their employees of the whistleblower 

protections through the inclusion of 

FAR clause 52.203–17 in acquisitions at 

or below the SAT. It also clarifies that 

FAR 31.205–47 prohibition on 

reimbursement for legal fees accrued in 

defense against reprisal claims applies 

to subcontractors, as well as contractors. 

DoD, NASA, and the Coast Guard have 

a different whistleblower program for 

contractor employees. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801–808) requires interim and 

final rules to be submitted to Congress 

before the rule takes effect. DoD, GSA, 

and NASA will send this to each House 

of the Congress and to the Comptroller 

General of the United States. The Office 

of Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget has determined that this is not 

a major rule under 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. The 

FRFA is summarized as follows: 

This rule will not have a significant 

economic impact on a substantial number of 

small entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601–612. 

This rule implements Public Law 114–261, 

which was enacted December 14, 2016. The 

objective of this rule is to enhance 

whistleblower protection for contractor 

employees, by making permanent the 

protection for disclosure of certain 

information and ensuring that the prohibition 

on reimbursement for certain legal costs 

applies to subcontractors, as well as 

contractors, as required by Public Law 114– 

261. 

This rule makes minor changes to the pilot 

program, along with making it a permanent 

program. In the final rule, the clause 52.203– 

17 will apply to all solicitations and 

contracts. The pilot program applied the 

clause to all commercial products and 

commercial services and COTS acquisitions 

through 52.212–4(r), but only above the SAT 

for non-commercial acquisitions. The FAR 

Council made a determination to apply the 


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clause to contracts at or below the SAT 

because the contractor employee protections 

apply regardless of contract value. By 

changing the clause prescription to include 

solicitations and contracts at or below the 

SAT, this makes clearer the rights and 

protections employees have. 

There were no significant issues raised by 

the public in response to the initial 

regulatory flexibility analysis. 

The program does not apply to DoD, 

NASA, and the Coast Guard, nor to certain 

elements of the intelligence community. 

Based on Federal Procurement Data System 

(FPDS) data for fiscal year 2020–2022, there 

were an average 146,242 new contract awards 

by agencies other than DoD, NASA, and the 

Coast Guard, including commercial awards 

and awards at or below the SAT that were 

awarded to small businesses (to an average of 

23,984 unique vendors). 

Regarding the amendment to the cost 

principles, addition of the words ‘‘or 

subcontractor’’ in multiple places throughout 

FAR 31.205–47 has no or a de minimis 

impact, because the cost principles generally 

already apply in the same way to costs 

incurred by subcontractors as to costs 

incurred by contractors. 

There are no reporting, recordkeeping, or 

other compliance requirements in this rule. 

DoD, GSA, and NASA were unable to 

identify any alternatives to the rule that 

would reduce the impact on small entities 

and still meet the requirements of the statute. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

VIII. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). 

List of Subjects in 48 CFR Parts 3, 31, 

and 52 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 3, 31, and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 3, 31, and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

PART 3—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Revise section 3.900 to read as 

follows: 

3.900 Scope of subpart. 

This subpart implements various 

statutory whistleblower programs. This 

subpart does not implement 10 U.S.C. 

4701, which is applicable only to DoD, 

NASA, and the Coast Guard. 

(a) 41 U.S.C. 4712 is implemented in 

3.900 through 3.906. These sections do 

not apply to— 

(1) DoD, NASA, and the Coast Guard; 

or 

(2) Any element of the intelligence 

community, as defined in section 3(4) of 

the National Security Act of 1947 (50 

U.S.C. 3003(4)). Sections 3.900 through 

3.906 do not apply to any disclosure 

made by an employee of a contractor or 

subcontractor of an element of the 

intelligence community if such 

disclosure— 

(i) Relates to an activity of an element 

of the intelligence community; or 

(ii) Was discovered during contract or 

subcontract services provided to an 

element of the intelligence community. 

(b) Section 743 of Division E, Title 

VII, of the Consolidated and Further 

Continuing Appropriations Act, 2015 

(Pub. L. 113–235) and its successor 

provisions in subsequent appropriations 

acts (and as extended in continuing 

resolutions), is implemented in 3.909, 

which is applicable to all agencies. 

(c) Section 3.907 of this subpart 

implements section 1553 of the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5), and applies 

to all contracts funded in whole or in 

part by that Act. 

■ 3. Amend section 3.901 by— 

■ a. Adding in alphabetical order a 

definition for ‘‘Abuse of authority’’; 

■ b. Removing the definition of 

‘‘Authorized official of an agency’’; and 

■ c. Revising the definition of 

‘‘Inspector General’’. 

The addition and revision read as 

follows. 

3.901 Definitions. 

* * * * * 

Abuse of authority means an arbitrary 

and capricious exercise of authority that 

is inconsistent with the mission of the 

executive agency concerned or the 

successful performance of a contract of 

such agency. 

* * * * * 

Inspector General means an Inspector 

General appointed under chapter 4 of 

title 5 of the United States Code and any 

Inspector General that receives funding 

from, or has oversight over contracts 

awarded for, or on behalf of, the 

executive agency concerned. This 

definition does not apply to 3.907. 

* * * * * 

■ 4. Add section 3.902 to read as 

follows: 

3.902 Classified information. 

41 U.S.C. 4712 does not provide any 

right to disclose classified information 

not otherwise provided by law. 

■ 5. Revise section 3.903 to read as 

follows: 

3.903 Policy. 

(a)(1) Contractors and subcontractors 

are prohibited from discharging, 

demoting, or otherwise discriminating 

against an employee as a reprisal for 

disclosing, to any of the entities listed 

at paragraph (b) of this section, 

information that the employee 

reasonably believes is— 

(i) Evidence of gross mismanagement 

of a Federal contract; 

(ii) A gross waste of Federal funds; 

(iii) An abuse of authority relating to 

a Federal contract; 

(iv) A substantial and specific danger 

to public health or safety; or 

(v) A violation of law, rule, or 

regulation related to a Federal contract 

(including the competition for or 

negotiation of a contract). 

(2) A reprisal is prohibited even if it 

is undertaken at the request of an 

executive branch official, unless the 

request takes the form of a nondiscretionary directive and is within the 

authority of the executive branch 

official making the request. 

(b) Disclosure may be made to the 

following entities: 

(1) A Member of Congress or a 

representative of a committee of 

Congress. 

(2) An Inspector General. 

(3) The Government Accountability 

Office. 

(4) A Federal employee responsible 

for contract oversight or management at 

the relevant agency. 

(5) An authorized official of the 

Department of Justice or other law 

enforcement agency. 

(6) A court or grand jury. 

(7) A management official or other 

employee of the contractor or 

subcontractor who has the 

responsibility to investigate, discover, or 

address misconduct. 

(c) An employee who initiates or 

provides evidence of contractor or 

subcontractor misconduct in any 

judicial or administrative proceeding 

relating to waste, fraud, or abuse on a 

Federal contract shall be deemed to 

have made a disclosure. 


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■ 6. Revise section 3.904 to read as 

follows: 

3.904 Complaints. 

■ 7. Add section 3.904–1 to read as 

follows: 

3.904–1 Procedures for filing complaints. 

A contractor or subcontractor 

employee who believes that he or she 

has been discharged, demoted, or 

otherwise discriminated against 

contrary to the policy in 3.903 may 

submit a complaint with the Inspector 

General of the agency concerned. 

Procedures for submitting fraud, waste, 

abuse, and whistleblower complaints 

are generally accessible on agency 

Office of Inspector General hotline or 

whistleblower internet sites or the 

complainant may directly contact the 

cognizant Office of the Inspector 

General for submission instructions. A 

complaint by the employee may not be 

brought under 41 U.S.C. 4712 more than 

three years after the date on which the 

alleged reprisal took place. 

■ 8. Add section 3.904–2 to read as 

follows: 

3.904–2 Procedures for investigating 

complaints. 

(a) Investigation of complaints will be 

in accordance with 41 U.S.C. 4712(b). 

(b) Upon completion of the 

investigation, the head of the agency 

shall ensure that the report of findings 

has been provided by the Inspector 

General to the head of the agency and 

to— 

(1) The complainant and any person 

acting on the complainant’s behalf; and 

(2) The contractor and/or 

subcontractor alleged to have committed 

the violation. 

(c) The complainant, contractor, and/ 

or subcontractor shall be afforded the 

opportunity to submit a written 

response to the report of findings to the 

head of the agency and the Office of 

Inspector General in a time and manner 

that permits the agency head to take 

action not later than 30 days after 

receiving the report, as required by 

3.905–1(a). 

■ 9. Revise section 3.905 to read as 

follows: 

3.905 Remedies and enforcement of 

orders. 

■ 10. Add section 3.905–1 to read as 

follows: 

3.905–1 Remedies. 

(a) Agency response to Inspector 

General report. Not later than 30 days 

after receiving a report pursuant to 

3.904–2, the head of the agency shall— 

(1) Determine whether sufficient basis 

exists to conclude that the contractor or 

subcontractor has subjected the 

employee who submitted the complaint 

to a reprisal as prohibited by 3.903; and 

(2) Either issue an order denying relief 

or take one or more of the following 

actions: 

(i) Order the contractor or 

subcontractor to take affirmative action 

to abate the reprisal. 

(ii) Order the contractor or 

subcontractor to reinstate the 

complainant employee to the position 

that the person held before the reprisal, 

together with compensatory damages 

(including back pay), employment 

benefits, and other terms and conditions 

of employment that would apply to the 

person in that position if the reprisal 

had not been taken. 

(iii) Order the contractor or 

subcontractor to pay the complainant 

employee an amount equal to the 

aggregate amount of all costs and 

expenses (including attorneys’ fees and 

expert witnesses’ fees) that were 

reasonably incurred by the complainant 

for, or in connection with, bringing the 

complaint regarding the reprisal, as 

determined by the head of the agency. 

(iv) Consider disciplinary or 

corrective action against any official of 

the executive agency, if appropriate. 

(b) Complainant’s right to go to court. 

(1) Paragraph (b)(2) of this section 

applies if— 

(i) The head of the agency issues an 

order denying relief; or 

(ii)(A) The head of the agency has not 

issued an order— 

(1) Within 210 days after the 

submission of the complaint; or 

(2) Within 30 days after the expiration 

of an extension of time granted in 

accordance with 41 U.S.C. 4712(b)(2)(B) 

for the submission of the report to those 

stated in 3.904–2(b); and 

(B) There is no showing that such 

delay is due to the bad faith of the 

complainant. 

(2) If the conditions in either 

paragraph (b)(1)(i) or (ii) of this section 

are met— 

(i) The complainant shall be deemed 

to have exhausted all administrative 

remedies with respect to the complaint; 

and 

(ii) The complainant may bring a de 

novo action at law or equity against the 

contractor or subcontractor to seek 

compensatory damages and other relief 

available under 41 U.S.C. 4712 in the 

appropriate district court of the United 

States, which shall have jurisdiction 

over such an action without regard to 

the amount in controversy. 

(A) Such an action shall, at the 

request of either party to the action, be 

tried by the court with a jury. 

(B) An action under this authority 

may not be brought more than 2 years 

after the date on which remedies are 

deemed to have been exhausted. 

(c) Admissibility in evidence. An 

Inspector General determination and an 

agency head order denying relief under 

this section shall be admissible in 

evidence in any de novo action at law 

or equity brought pursuant to 41 U.S.C. 

4712. 

(d) No waiver. The rights and 

remedies provided for in 41 U.S.C. 4712 

may not be waived by any agreement, 

policy, form, or condition of 

employment. 

■ 11. Add section 3.905–2 to read as 

follows: 

3.905–2 Enforcement of orders. 

(a) Whenever a contractor or 

subcontractor fails to comply with an 

order issued under 3.905–1(a)(2), the 

head of the agency concerned shall file 

an action for enforcement of the order 

in the U.S. district court for a district in 

which the reprisal was found to have 

occurred. In any action brought 

pursuant to this authority, the court may 

grant appropriate relief, including 

injunctive relief, compensatory and 

exemplary damages, and attorney fees 

and costs. The complainant employee 

upon whose behalf an order was issued 

may also file such an action or join in 

an action filed by the head of the 

agency. 

(b) Any person adversely affected or 

aggrieved by an order issued under 

3.905–1(a)(2) may obtain review of the 

order’s conformance with 41 U.S.C. 

4712 and its implementing regulations, 

in the U.S. court of appeals for a circuit 

in which the reprisal is alleged in the 

order to have occurred. No petition 

seeking such review may be filed more 

than 60 days after issuance of the order 

by the head of the agency. Filing such 

an appeal shall not act to stay the 

enforcement of the order of the head of 

an agency, unless a stay is specifically 

entered by the court. 

■ 12. Revise section 3.906 to read as 

follows: 

3.906 Contract clause. 

The contracting officer shall insert the 

clause at 52.203–17, Contractor 

Employee Whistleblower Rights, in all 

solicitations and contracts, except 

solicitations and contracts of DoD, 

NASA, the Coast Guard, or applicable 

elements of the intelligence community 

(see 3.900(a)). 

3.907–7 [Amended] 

■ 13. Amend section 3.907–7 by 

removing ‘‘Reinvestment Act of 2009 

in’’ and adding ‘‘Reinvestment Act of 

2009, in’’ in its place. 


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3.908 [Removed and Reserved] 

■ 14. Remove and reserve section 3.908. 

3.908–1 through 3.908–9 [Removed] 

■ 15. Remove sections 3.908–1 through 

3.908–9. 

PART 31—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

■ 16. Amend section 31.205–47— 

■ a. In paragraph (a), in the definition of 

‘‘Costs’’ by removing ‘‘or others retained 

by the contractor to assist it;’’ and 

adding ‘‘or others retained by the 

contractor or subcontractor to assist it;’’ 

in its place; 

■ b. In paragraph (b) introductory text 

by removing ‘‘law or regulation by the 

contractor’’ and adding ‘‘law or 

regulation by the contractor or 

subcontractor’’ in its place; 

■ c. In paragraph (b)(2) by removing 

‘‘either a finding of contractor liability’’ 

and adding ‘‘either a finding of 

contractor or subcontractor liability’’ in 

its place; 

■ d. In paragraph (b)(3)(i) by removing 

‘‘the contractor;’’ and adding ‘‘the 

contractor or subcontractor;’’ in its 

place; 

■ e. In paragraph (c)(1) by removing 

‘‘between the contractor’’ and adding 

‘‘between the contractor or 

subcontractor’’ in its place; 

■ f. In paragraph (c)(2)(i) by removing 

‘‘incurred by the contractor’’ and adding 

‘‘incurred by the contractor or 

subcontractor’’ in its place; 

■ g. In paragraph (d)(1) by removing 

‘‘Federal contract; or’’ and adding 

‘‘Federal contract or subcontract; or’’ in 

its place; 

■ h. In paragraph (f) introductory text by 

removing ‘‘connection with’’ and adding 

‘‘connection with the following’’ in its 

place; 

■ i. In paragraph (f)(4) by removing ‘‘the 

contractor’’ wherever it appears and 

adding ‘‘the contractor or 

subcontractor’’ in its place; 

■ j. Revising paragraph (f)(5); 

■ k. In paragraph (f)(6) by removing 

‘‘contract’’ and adding ‘‘contract or 

subcontract’’ in its place; 

■ l. In paragraph (f)(7) by removing ‘‘the 

contractor is’’ and adding ‘‘the 

contractor or subcontractor is’’ in its 

place; and 

■ m. In paragraph (g) by removing ‘‘the 

contractor’’ wherever it appears and 

adding ‘‘the contractor or 

subcontractor’’ in its place. 

The revision reads as follows: 

31.205–47 Costs related to legal and other 

proceedings. 

* * * * * 

(f) * * * 

(5) Costs of legal, accounting, and 

consultant services and directly 

associated costs incurred in connection 

with the defense or prosecution of 

lawsuits or appeals between contractors 

or subcontractors arising from either— 

(i) An agreement or contract 

concerning a teaming arrangement, a 

joint venture, or similar arrangement of 

shared interest; or 

(ii) Dual sourcing, coproduction, or 

similar programs, are unallowable, 

except when— 

(A) Incurred as a result of compliance 

with specific terms and conditions of 

the contract or subcontract or written 

instructions from the contracting officer; 

or 

(B) When agreed to in writing by the 

contracting officer. 

* * * * * 

31.603 [Amended] 

■ 17. Amend section 31.603 by 

removing from paragraph (b)(15) 

‘‘incurred by a contractor’’ and 

‘‘regulation by the contractor’’ and 

adding ‘‘incurred by a contractor or 

subcontractor’’ and ‘‘regulation by the 

contractor or subcontractor’’ in their 

place, respectively. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 18. Revise section 52.203–17 to read 

as follows: 

52.203–17 Contractor Employee 

Whistleblower Rights. 

As prescribed in 3.906, insert the 

following clause: 

Contractor Employee Whistleblower Rights 

(NOV 2023) 

(a) This contract and employees working 

on this contract will be subject to the 

whistleblower rights and remedies 

established at 41 U.S.C. 4712 and Federal 

Acquisition Regulation (FAR) 3.900 through 

3.905. 

(b) The Contractor shall inform its 

employees in writing, in the predominant 

language of the workforce, of employee 

whistleblower rights and protections under 

41 U.S.C. 4712, as described in FAR 3.900 

through 3.905. 

(c) The Contractor shall insert the 

substance of this clause, including this 

paragraph (c), in all subcontracts. 

(End of clause) 

■ 19. Amend section 52.212–4 by 

revising the date of the clause and 

paragraph (r) to read as follows: 

52.212–4 Contract Terms and 

Conditions—Commercial Products and 

Commercial Services. 

* * * * * 

Contract Terms and Conditions— 

Commercial Products and Commercial 

Services (NOV 2023) 

* * * * * 

(r) Compliance with laws unique to 

Government contracts. The Contractor agrees 

to comply with 31 U.S.C. 1352 relating to 

limitations on the use of appropriated funds 

to influence certain Federal contracts; 18 

U.S.C. 431 relating to officials not to benefit; 

40 U.S.C. chapter 37, Contract Work Hours 

and Safety Standards; 41 U.S.C. chapter 87, 

Kickbacks; 49 U.S.C. 40118, Fly American; 

and 41 U.S.C. chapter 21 relating to 

procurement integrity. 

* * * * * 

■ 20. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (b)(4) 

through (64) as paragraphs (b)(5) 

through (65); 

■ c. Adding a new paragraph (b)(4); 

■ d. Redesignating paragraphs (e)(1)(ii) 

through (xxiv) as paragraphs (e)(1)(iii) 

through (xxv); 

■ e. Adding a new paragraph (e)(1)(ii); 

and 

■ f. In Alternate II: 

■ i. Revising the date of the alternate; 

■ ii. Redesignating paragraphs 

(e)(1)(ii)(C) through (W) as paragraphs 

(e)(1)(ii)(D) through (X); and 

■ iii. Adding a new paragraph 

(e)(1)(ii)(C). 

The revisions and additions read as 

follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders—Commercial Products 

and Commercial Services. 

* * * * * 

Contract Terms and Conditions Required to 

Implement Statutes or Executive Orders— 

Commercial Products and Commercial 

Services (NOV 2023) 

* * * * * 

(b) * * * 

__(4) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712); this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community—see FAR 3.900(a). 

* * * * * 

(e)(1) * * * 

(ii) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712). 

* * * * * 

Alternate II (NOV2023). * * * 

* * * * * 

(e)(1) * * * 

(ii) * * * 

(C) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712). 

* * * * * 

■ 21. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; 


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Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Rules and Regulations 69523 

■ b. Removing from paragraph (a)(2)(vii) 

‘‘(SEP 2023)’’ and adding ‘‘ (NOV 2023)’’ 

in its place; 

■ c. Redesignating paragraphs (b)(1)(i) 

through (xxi) as paragraphs (b)(1)(ii) 

through (xxii); and 

■ d. Adding a new paragraph (b)(1)(i). 

The revision and addition read as 

follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Products and Commercial 

Services). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other than Commercial 

Products and Commercial Services) (NOV 

2023) 

* * * * * 

(b) * * * 

(1) * * * 

(i) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712); this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community—see FAR 3.900(a). 

* * * * * 

■ 22. Amend section 52.244–6 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (c)(1)(iii) 

through (xxi) as paragraphs (c)(1)(iv) 

through (xxii); and 

■ c. Adding a new paragraph (c)(1)(iii). 

The revision and addition read as 

follows: 

52.244–6 Subcontracts for Commercial 

Products and Commercial Services. 

* * * * * 

Subcontracts for Commercial Products and 

Commercial Services (NOV 2023) 

* * * * * 

(c)(1) * * * 

(iii) 52.203–17, Contractor Employee 

Whistleblower Rights (NOV 2023) (41 U.S.C. 

4712); this clause does not apply to contracts 

of DoD, NASA, the Coast Guard, or 

applicable elements of the intelligence 

community—see FAR 3.900(a). 

* * * * * 

[FR Doc. 2023–21321 Filed 10–4–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 19 

[FAC 2023–06, FAR Case 2021–012, Item 

III; Docket No. FAR–2021–0012; Sequence 

No. 1] 

RIN 9000–AO29 

Federal Acquisition Regulation: 8(a) 

Program 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement regulatory changes made by 

the Small Business Administration to 

update and clarify requirements 

associated with the 8(a) program. 

DATES: Effective November 6, 2023. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Dana Bowman, Procurement Analyst, at 

202–803–3188 or by email at 

dana.bowman@gsa.gov, for clarification 

of content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat Division at 

202–501–4755 or GSARegSec@gsa.gov. 

Please cite FAC 2023–06, FAR Case 

2021–012. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 87 FR 76598 on 

December 15, 2022, to implement 

regulatory changes made by the Small 

Business Administration (SBA), in its 

final rule published in the Federal 

Register at 85 FR 66146 on October 16, 

2020. SBA initiated a review of its 

regulations in response to the prior 

administration’s Governmentwide 

regulatory reform initiative. As a result, 

SBA revised the 8(a) program 

regulations to more clearly articulate 

SBA’s intent with regard to certain 

aspects of the 8(a) program to eliminate 

confusion and decrease burdens on 

procuring activities and 8(a) 

participants. 

One respondent submitted comments 

in response to the proposed rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule; however, 

no changes were made as a result of the 

public comments received. A discussion 

of the comments received is provided as 

follows: 

A. Summary of Significant Changes 

There are no significant changes from 

the proposed rule. 

B. Analysis of Public Comments 

1. Support for the Rule 

Comment: The respondent expressed 

support for the rule. 

Response: The Councils acknowledge 

the respondent’s support for the rule. 

2. Negative Impacts of the Rule 

Comment: The respondent indicated 

that moving contracts from the 8(a) 

Program inflicts harm on small 

businesses that are dependent upon 

those contracts for their growth and 

viability. The respondent indicated that 

it has had its contracts moved out of the 

8(a) program into ‘‘new’’ contracts or 

limited competition contract vehicles, 

not available to all 8(a) program 

participants. The respondent indicated 

further that it is not always aware that 

a contract was to be moved to a limited 

competition contract, and if it was not 

a contract holder on that contract, then 

it could not pursue the opportunity. The 

respondent indicated that this can cause 

serious harm to small businesses that 

are counting on that revenue. The 

respondent stated that requiring 

notification to the SBA that a contract 

is being removed from the 8(a) Program 

is a positive step, but that it does not 

decrease the harm being done to a small 

business that is losing the contract. The 

respondent concluded that, overall, the 

proposed revisions are positive, but 

removing contracts from the 8(a) 

Program is detrimental to small 

businesses that are the backbone of the 

defense industrial base. 

Response: The Councils acknowledge 

the respondent’s concerns regarding the 

impact of moving contracts out of the 

8(a) Program. This rule implements 

SBA’s regulatory changes made in its 

final rule published at 85 FR 66146 on 

October 16, 2020, that clarified certain 

aspects of the 8(a) Program. To ensure 

procurements are not removed from the 

8(a) Program without SBA consent, this 

rule adds a requirement for contracting 

officers to notify SBA of follow-on, non8(a) procurements, and specifies that 

contracting officers should notify SBA 

when a mandatory source will be 

utilized for a follow-on to an 8(a) 

contract. This rule also clarifies that 


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