DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

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MEMORANDUM FOR BUREAU CHIEF PROCUREMENT OFFICERS

FROM: IRIS B. COOPER, 

SENIOR PROCUREMENT EXECUTIVE, 

OFFICE OF THE PROCUREMENT EXECUTIVE

 

SUBJECT: Class Deviation— The Federal Acquisition Regulation (FAR) to Implement 

an Act to Enhance Whistleblower Protection for Contractor Employees

1. PURPOSE: This class deviation is issued in accordance with FAR 1.404 to implement 

41 U.S.C. 4712 (as amended by Public Law 114-261) to make permanent the 4-year pilot 

program and to clarify the use of certain Whistleblower Protection clauses (see FAR 3.908).

2. EFFECTIVE DATE: Upon issuance

3. EXPIRATION DATE: Until superseded, incorporated in the FAR or otherwise rescinded.

4. BACKGROUND: The current coverage in the FAR states that when the 4-year pilot 

(41 U.S.C. 4712) expires (i.e. January 2, 2017), the previous whistleblower coverage is back in 

effect. However, 41 U.S.C. 4712 (as amended by Public Law 114-261 dated December 14, 2016) 

made permanent the 4-year pilot program, prior to its expiration. In addition, GAO Report 17-227, 

Contractor Whistleblower Protections Pilot Program-Improvements Needed to Ensure Effective 

Implementation, noted confusion in the use of FAR clauses 52.203-17 (inserted in solicitations and 

contracts for noncommercial items) and 52.212-4(r) (inserted in solicitations and contracts for 

commercial items). FAR case 2017-005, which will amend the FAR to make the 4-year pilot 

program permanent, is currently being processed. 

The Chair of the Civilian Agency Acquisition Council (CAAC) issued CAAC Letter 2017-02

authorizing civilian agencies, inclusive of the Department of the Treasury, to issue a class 

deviation pending amendment of the FAR. Additionally, Public Law 114-261 requires that 

"At the time of any major modification to a contract that was awarded before the date of the 

enactment of this Act [December 14, 2016], the head of the contracting agency shall make best 

efforts to include in the contract a contract clause providing for the applicability of the 

amendments made by this section ..." Therefore, the Senior Procurement Executive has 

determined that the issuance of this class deviation is authorized and the actions required herein 

are necessary to implement 41 U.S.C. 4712 (as amended by Public Law 114-261) to make 

permanent the 4-year pilot program (see FAR 3.908) and to clarify the use of certain 

Whistleblower Protection clauses (see aforementioned GAO report).

Acquisition Bulletin No. 17-01

July 17, 2017

Deviation No. 2017-00001

 
DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

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5. DESCRIPTION OF THE DEVIATION1: The attached deviation amends the FAR as 

follows:

a. Revises FAR 3.900 to show that paragraph (a) is not in effect, and that paragraph (b) is 

in effect;

b. Revises FAR 3.908-9 to clarify that FAR clause 52.203-17 is to be included, as 

prescribed, in both noncommercial and commercial solicitations and resultant contracts;

c. Removes the whistleblower protections of 41 U.S.C. 4712 listed in paragraph (r) of FAR 

clause 52.212-4;

d. Lists the FAR clause 52.203-17 in FAR clause 52.212-5; and

e. Revises the FAR clause matrix to show an "A" ("required when applicable") for FAR 

clause 52.203-17 for commercial items.

6. REQUIRED BUREAU ACTIONS: Bureau Chief Procurement Officers shall take 

immediate steps to:

a. Use the text (including the revised FAR clauses and the FAR solicitations provisions/ 

contract clauses matrix) provided in Attachment A of this AB making permanent the use of the 

pilot program and the handling of the acquisition of commercial items; 

b. Amend solicitations for noncommercial items issued since January 2, 2017 for which an 

award has not yet been made to include FAR clause 52.203-17, if the resultant contract is 

anticipated to exceed the simplified acquisition threshold; and

c. Modify existing noncommercial contracts awarded since January 2, 2017 to include 

FAR clause 52.203-17, if the contract exceeds the simplified acquisition threshold and has a 

year or more of performance left. 

7. ADDITIONAL INFORMATION: The point of contact for this AB is Mr. Thomas 

O’Linn, who may be reached at thomas.olinn@treasury.gov or 

OfficeoftheProcurementExecutive@treasury.gov.

8. ATTACHMENT:

Attachment A - Acquisition Bulletin No. 17-01 – Class Deviation (Deviation No. 2017-00001)

 1 Note: Coverage of 10 U.S.C. 2409 will remain in FAR clause 52.212-4(r) to cover DoD. Only 41 U.S.C. 4712 is 

being moved to FAR clause 52.212-5 because it is associated with FAR clause 52.203-17.
DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

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Attachment A –

Acquisition Bulletin No. 17-01 –

Class Deviation (Deviation No. 2017-00001)

PART 3-IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 

INTEREST

* * * * *

Subpart 3.9-whistleblower Protections for Contractor Employees

3.900 Scope of subpart.

This subpart implements various statutory whistleblower programs. This subpart 

does not implement 10 U.S.C. 2409, which is applicable only to DoD, NASA, and the 

Coast Guard.

(a) 41 U.S.C. 4705 (in effect before July 1, 2013). Sections 3.901 through 3.906 of 

this subpart implemented 41 U.S.C. 4705, applicable to civilian agencies other than 

NASA and the Coast Guard.

(b) 41 U.S.C. 4712 (in effect on and after July 1, 2013). Section 3.908 of this subpart 

implements the pilot program, applicable to civilian agencies other than NASA and the 

Coast Guard, except as provided in paragraph (d) of this section.

(c) 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), implemented in 3.909, 

applicable to all agencies.

(d) Contracts funded by the American Recovery and Reinvestment Act. 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.

* * * * *

3.908-9 Contract clause.

The contracting officer shall insert the clause at 52.203-17, Contractor Employee 

Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, in 

all solicitations and contracts that exceed the simplified acquisition threshold, for both 

commercial items and for other than commercial items.

* * * * *
DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

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PART 52-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

52.212-4 Contract Terms and Conditions-Commercial Items (Deviation 2017-

00001).

As prescribed in 12.301(b)(3), insert the following clause: 

CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS 

(DEVIATION 2017-00001) (JULY 2017)

(a) * * * * *

* * * * *

(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; 10 U .S.C. 2409 relating to whistleblower protections; 49 U .S .C. 40118, 

Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

* * * * *

52.212-5 Contract Terms and Conditions Required To Implement Statutes or 

Executive Orders-Commercial Items (Deviation 2017-00001).

As prescribed in 12.301(b)(4), insert the following clause: 

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES 

OR EXECUTIVE ORDERS-COMMERCIAL ITEMS (DEVIATION 2017-00001) 

(JULY 2017)

* * * * *

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the 

Contracting Officer has indicated as being incorporated in this contract by reference to 

implement provisions of law or Executive orders applicable to acquisitions of 

commercial items:

[Contracting Officer check as appropriate.]

(1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 

2006), with Alternate I (Oct 1995) (41 U .S.C. 4704 and 10 U.S.C. 2402).

(2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 

U.S.C. 3509)).

(3) 52.203-15, Whistleblower Protections under the American Recovery and 

Reinvestment Act of 2009 (June 2010) (Section 1553 of Pub. L. 111-5). (Applies to 

contracts funded by the American Recovery and Reinvestment Act of 2009.)
DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220

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(4) 52.203-17, Contractor Employee Whistleblower Rights and Requirement To 

Inform Employees of Whistleblower Rights (April 2014) (41 U .S.C. 4712) relating to 

whistleblower protections).

The paragraphs below are renumbered

* * * * *

52.301 Solicitation provisions and contract clauses (Matrix).

PROVISION OR CLAUSE PRESCRIBED

IN

* * * * *

columns 

not 

shown

* * * * *

CI

* * * * *

52.203-17 Contractor Employee

Whistleblower Rights and 

Requirement To [Inform 

Employees of Whistleblower 

Rights.

3.908-9 A

* * * * *