Contractor Whistleblower Protections Pilot Program: Improvements Needed to Ensure Effective Implementation
Published: 2017-03-02T00:00:00

Fast Facts:
Whistleblowers play an important role in safeguarding the federal government against fraud, waste, and abuse. In 2013, a pilot program expanded the whistleblower rights of contractors at civilian agencies against reprisal (such as firing or demotion). For example, the program expanded the persons and entities to which a whistleblower can disclose misconduct.
However, we found that some agencies did not forward investigations to the appropriate authorities, and that some contractors were unaware of the pilot program. We recommended improving the program's policies and guidance, as well as better communicating with contractors.

Highlights:
section_title: Why GAO Did This Study
paragraphs: Whistleblowers play an important role in safeguarding the federal government against fraud, waste, abuse, and mismanagement. The National Defense Authorization Act for Fiscal Year 2013 introduced a pilot program to expand whistleblower rights against reprisal for executive agencies' contractors, subcontractors, and grantee employees. Also, in 2013, the FAR was amended to require agencies to insert a contract clause to ensure contractors communicate rights to their employees for certain contracts.
The act also contained a provision for GAO to report on the status of the pilot program. This report: (1) describes the results of the whistleblower pilot program across 14 selected executive departments from July 1, 2013, to December 31, 2015 and (2) assesses the extent to which four departments implemented the pilot program. GAO analyzed survey data from 14 executive departments, which are a subset of all entities covered by the legislation; selected four departments based on high and low contract funds awarded to conduct a more detailed review of the pilot program implementation; interviewed agency officials and contractors; and reviewed a non-generalizable sample of contracts included in the pilot program.
section_title: What GAO Found
paragraphs: The Whistleblower Protections Pilot Program (pilot program) provides enhanced legal protections to contractor employees who believe that they have experienced reprisal as a result of disclosing certain wrongdoings. Among other enhancements, the act expanded the persons and entities to which a whistleblower could disclose wrongdoing and identified which office within an agency has responsibility for handling complaints. For example, under the pilot program, when the Office of Inspector General (OIG) receives a complaint, it must determine whether a complaint is covered by the pilot program and if covered, conduct an investigation and submit the findings to the agency head, complainant, and contractor. The 14 selected departments that GAO reviewed reported receiving an estimated 1,560 whistleblower reprisal complaints from July 1, 2013, through December 31, 2015. Of these complaints, 127 were submitted by contractor, subcontractor, and grantee employees under the pilot program. The 14 OIGs investigated 44 of the 127 complaints but did not find that reprisal had occurred in any of them. The complaints not investigated by the OIGs were excluded for a variety of reasons, such as the complaint was deemed to be frivolous or was being decided by another judicial authority.
GAO's in-depth review of four selected departments' implementation of the pilot program found various opportunities for improvement. Specific details follow:
The pilot program requires findings of investigated reprisal complaints to be forwarded to several entities, including to the agency head for a determination of whether reprisal occurred and, as of December 2015, to the head of the contracting activity. However, at two of the four departments reviewed, the OIGs either did not forward their investigation findings to the appropriate entities or did not forward findings in the necessary format because, according to OIG officials, they were unclear about how to execute the requirement. As a result, at these two departments, the agency heads did not make the determination of whether reprisal occurred as required by the pilot program.
Contracting officers must insert the required Federal Acquisition Regulation (FAR) whistleblower clause to be inserted into contracts exceeding the simplified acquisition threshold, which is generally $150,000, as a method to communicate with contractors about pilot program requirements. However, while the four selected departments reported that they inserted the clause into the required contracts, GAO found new contracts awarded during the pilot program's timeframe that did not include the required clause. Without effective internal control policies, agencies may continue to omit the required clause.
Some contractors GAO spoke with were unaware of their obligations under the pilot program. Officials from all four departments reported taking no additional action to communicate to contractors their responsibilities to inform employees of their rights under the pilot program. This is inconsistent with federal internal control standards for communication. Without actions to help contractors fully understand their responsibilities under the pilot program, the departments do not have assurance that contractor employees are also aware of the protections afforded by the pilot program legislation.
section_title: What GAO Recommends
paragraphs: GAO is making specific recommendations to the four selected departments to improve whistleblower protections policies and guidance and communication with contractors. The departments agreed with the recommendations and have taken or identified actions to address the recommendations.

section_title: Letter
paragraphs: Whistleblowers play an important role in safeguarding the federal  government against waste, fraud, and abuse, and their willingness to  come forward can contribute to improvements in government operations,  including in the acquisition of services and goods provided by contractors.  In fiscal year 2015, the federal government, excluding the Department of  Defense, obligated over $164 billion in contracts for a variety of services  and goods, such as nuclear site cleanup, information technology services,  and office supplies. Contractor, subcontractor, and grantee employees  who carry out activities under federal contracts and grants may have  insight into potential fraud, waste, abuse, and mismanagement. In order  to encourage disclosure of wrongdoing, contractors should maintain an  open environment without fear of reprisal.
Although some protections for contractor employee whistleblowers  existed before 2013, the National Defense Authorization Act (NDAA) for  Fiscal Year 2013 introduced a Pilot Program for Enhancement of  Contractor Employee Whistleblower Protections (pilot program) to  enhance contractor whistleblower protections for employees of  contractors, subcontractors, and grantees at certain executive agencies  against reprisal. The legislation covers numerous executive agencies,  including 14 executive departments. The pilot program, among other  things, provides enhanced legal protections to contractor employees who  reasonably believe they have experienced reprisal as a result of  disclosing certain wrongdoing as defined in the statute to specified bodies  and individuals.
The NDAA for Fiscal Year 2013 also contained a provision for us to  evaluate and report on the implementation of the pilot program. This  report (1) describes the results of the whistleblower protections pilot  program between July 1, 2013, and December 31, 2015, across 14  executive departments subject to the act and (2) assesses the extent to  which four selected executive departments implemented the pilot  program.
To describe the results of the pilot program, we surveyed the Office of  Inspector General (OIG) at the 14 executive departments covered by the  legislation on whistleblower reprisal complaints received between July 1,  2013, and December 31, 2015. In this report, we use the terms “agency”  and “agency head” when referring to provisions of the whistleblower  protections pilot program legislation in general because the legislation  uses these terms. When we refer to departments, we are referring to the  14 executive departments defined by statute and covered by the  whistleblower protections pilot program that we focused on for our review.  We surveyed the OIGs at the Departments of Agriculture, Commerce,  Education, Energy, Health and Human Services, Homeland Security,  Housing and Urban Development, Interior, Justice, Labor, State,  Transportation, Treasury, and Veterans Affairs and received responses  from the OIGs at all 14 of these departments. Among other things, the  survey collected information about the number of disclosures of fraud,  waste, abuse, and mismanagement as well as reprisal complaints and  mechanisms used by executive departments to implement provisions of  the pilot program. Each department’s OIG consulted with their cognizant  department officials to obtain responses to our survey questions on an  as-needed basis. The survey used for this study is reprinted in appendix I.
To assess the extent to which departments have implemented the pilot  program, we selected four executive departments based primarily on the  dollar value of their fiscal year 2015 contract funds awarded, the most  recent year available at the time we began our review. To obtain a range  of departments, we included two departments (Homeland Security, State)  with higher contract funds awarded and two departments (Commerce,  Interior) with lower contract funds awarded. At each department, we  focused on the department’s handling of reprisal complaints filed by  contractor and subcontractor employees. We interviewed or obtained  written answers from officials at each department’s OIG, the office of the  agency head, and the acquisitions office about their processes and  practices for the agency duties outlined in the mandate. Where  applicable, we reviewed documentation such as relevant policies,  guidance, and internal reports. To identify whether contracts contained a  required Federal Acquisition Regulation (FAR) clause, we requested a  non-generalizable sample of contracts from each of the four selected  departments. To identify an example of a contract without the clause, we  reviewed documentation for a random selection of at least 50 contracts at  each of the four departments. We asked for contract actions awarded in  the fourth quarter of fiscal year 2015 to ensure we were sampling  contracts that are required to have the clause and would be reasonably  accessible by the departments (e.g., they would likely not be archived).  We also reviewed orders awarded during this period. We used the  Federal Procurement Data System–Next Generation (FPDS-NG) to  generate a sample of contract actions over $150,000, which is generally  the simplified acquisition threshold, that were awarded by the four  departments included in our review in the fourth quarter of fiscal year  2015. We conducted data reliability checks on the FPDS-NG dataset by  comparing it to contract documentation obtained from contract files and  determined it was sufficiently reliable for our purposes.
Further, to identify challenges experienced during the implementation of  the pilot program, we conducted interviews with contractors and  whistleblower advocacy groups. We contacted a total of 13 contractors,  including both large and small business contractors based on their  contract obligations from fiscal year 2013 through fiscal year 2015, as  reported in FPDS-NG, and we spoke with or received written answers to  our questions from 7. We also spoke with two whistleblower advocacy  groups. For additional information on our scope and methodology, see  appendix II.
We conducted this performance audit from February 2016 to March 2017  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Federal Employee Whistleblower Protections
paragraphs: Federal employees have had protections against whistleblower reprisal— also known in some cases as adverse consequences or retaliation—for  several decades. The Civil Service Reform Act of 1978 and the   Whistleblower Protection Act of 1989 both provided federal employees  with certain rights against reprisal for disclosing certain wrongdoing and  created avenues of investigation of complaints. More recently, the  Whistleblower Protection Enhancement Act of 2012 expanded and  clarified protections for federal employee whistleblowers, including adding  clarity that federal employees are protected even if the disclosures are  identified as part of their existing job duties, such as for auditors and  safety inspectors.
section_title: Contractor Employee Whistleblower Protections
paragraphs: Disclosure:  An allegation to certain bodies and individuals  made by an employee who believes he or she  has witnessed certain wrongdoing, such as  gross mismanagement or gross waste.
Reprisal Complaint:   Following a disclosure, a complaint that an  employee has experienced reprisal as a result  of the disclosure, such as demotion or  discharge.
In 1986, whistleblower reprisal protections were extended to employees  of defense contractors. The National Defense Authorization Act for Fiscal  Year 1987 provided protections for employees of defense contractors,  who were prohibited from discharging, demoting, or otherwise  discriminating against an employee for disclosing certain wrongdoing.  Similar protections were expanded to other executive agencies in 1994,  when legislation provided certain rights for contractor employees at  civilian executive agencies. For example, one right is to have the OIG of  the executive agency conduct an investigation into reprisal complaints  when the contractor employee believes reprisal has occurred as a result  of disclosing certain information to authorized persons or bodies, such as  a member of Congress. In 2013, after the passage of the NDAA for  Fiscal Year 2013, the pilot program went into effect and further expanded  protections to also include employees of subcontractors and grantees and  directs the agency head to make the determination on whether a  contractor employee had been reprised against.
section_title: Requirements under the Pilot Program
paragraphs: In 2013, the pilot program went into effect and, among other  enhancements, limited the OIG investigation of complaints to 180 days,  whereas previously there was no time limitation on the investigation.  Further, under the pilot program, contractor, subcontractor, and grantee  employees are protected from reprisal if they disclose to certain persons  or bodies information they reasonably believe is evidence of gross  mismanagement of a federal contract or grant, a gross waste of federal  funds, an abuse of authority relating to a federal contract or grant, a  substantial and specific danger to public health or safety, or a violation of  law, rule, or regulation related to a federal contract or grant. Moreover, in  addition to protections under the previous statute for disclosing certain  information to a Member of Congress or an authorized official of an  executive agency or the Department of Justice, employees are now  protected when disclosing information related to certain wrongdoing to a  broader range of authorized persons or bodies, such as a management  official at the contractor, or to a law enforcement agency.
Under the pilot program, both the OIG at each executive agency as well  as certain agency officials are responsible for executing provisions of the  pilot program. The pilot program not only enhances agency responsibility  to help ensure contractor employees are aware of their rights, but clearly  identifies which office within the agency has responsibility for handling  reprisal complaints. Figure 1 depicts the disclosure process and the  complaint process.
Changes in Disclosure Process. Under the pilot program, the number  of persons and bodies to whom a contractor employee may disclose  protected information has expanded. Under the prior statute, a contractor  employee was only covered if he or she disclosed certain wrongdoing to a  Member of Congress, an authorized official of an executive agency, or the  Department of Justice. Figure 1 above describes the disclosure process  under the pilot program.
Agencies’ OIG Responsibilities. Upon receiving a reprisal complaint,  OIGs must evaluate whether a reprisal complaint is covered under the  pilot program. OIGs might not investigate for a variety of reasons, such as  in cases where the complaint is already under investigation by another  authority such as another OIG, or otherwise does not allege a violation of  the law, such as if the claim was made prior to July 1, 2013. If the OIG  determines the case is not covered under the pilot program, it may then  notify the complainant that no further action will be taken on the reprisal  complaint.
If the reprisal complaint is covered, the OIG must investigate the  complaint and submit a report of its findings to the agency head, the  complainant, the head of the contracting activity, and the contractor. OIGs  may make a preliminary determination of whether reprisal occurred based  on the investigation; however, the final determination of reprisal must be  made by the agency head. As described in figure 1 above, the report  provided by the OIG to the agency head must be sent within 180 days  from receipt of the reprisal complaint. If the OIG determines it needs more  time to investigate, OIGs are able to seek an extension of this timeline by  getting permission from the complainant to do so.
Federal Acquisition Regulation 52.203-17  Contractor Employee Whistleblower Rights  and Requirement to Inform Employees of  Whistleblower Rights   (a) This contract and employees working on  this contract will be subject to the  whistleblower rights and remedies in the pilot  program on Contractor employee  whistleblower protections established at 41  U.S.C. 4712 by section 828 of the National  Defense Authorization Act for Fiscal Year  2013 (Pub. L. 112-239) and FAR 3.908.  (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 section 3.908 of the Federal  Acquisition Regulation.   (c) The Contractor shall insert the substance  of this clause, including this paragraph (c), in  all subcontracts over the simplified acquisition  threshold.
Agencies’ Responsibilities. Once the investigation findings are  forwarded from the OIG, the agency head must determine whether there  is a sufficient basis to conclude that a contractor employee was reprised  against, and must either issue an order that the contractor take some  form of remedial action or issue an order denying relief. During the 30-day  period after the agency head receives the OIG report, the agency head  may ask the OIG for additional investigative work. In addition, the  complainant and the contractor must be afforded an opportunity to submit  a written response to the OIG report during the same 30-day period.
Under the pilot program, contracting officers are also responsible for  inserting Federal Acquisition Regulation clause 52.203-17 (FAR clause)  into applicable contracts and agency heads are responsible for ensuring  that contractors communicate to their employees their rights under the  pilot program. This FAR clause lays out the responsibility of contractors  to communicate to their employees their rights under the pilot program,  which requires these protections to be communicated to contractor,  subcontractor, and grantee employees in writing and in their predominant  language. Applicable contracts that require the FAR clause include all  contracts over the simplified acquisition threshold awarded on or after  September 30, 2013, according to the FAR interim rule. The pilot  program also requires agencies to make best efforts to include the clause  in contracts awarded before July 1, 2013, that have undergone major  contract modifications; the terms “best efforts” and “major modifications,”  are not defined in the statute.
section_title: Our Recent Work on Whistleblower Protections
paragraphs: In 2015 and 2016, we reported on whistleblower protection issues,  including issues related to the general public and federal employees, as  illustrated below:  In October 2015, we reported on whistleblower protections for any  individual, including the general public, reporting tax fraud to the  Internal Revenue Service Whistleblower Office. We found that  whistleblowers may not have adequate protections against employer  retaliation when filing disclosures. We made 10 recommendations to  the Internal Revenue Service including tracking dates, strengthening  and documenting procedures for award payments and whistleblower  protections, and improving external communications. The Internal  Revenue Service agreed with our recommendations.
In July 2016, we reported on the whistleblower process at Homeland  Security for a specific regulation on Chemical Facility Anti-Terrorism  Standards and found that the Department did not have documented  procedures for investigating disclosures made by whistleblowers and  their website provided only limited guidance. We recommended that  Homeland Security develop a documented process and procedures to  address whistleblower retaliation reports, and provide additional  guidance on the Homeland Security whistleblower website and  telephone tip line. Homeland Security agreed with our  recommendations.
In September 2016, we testified before a House subcommittee on the  status of DOD’s implementation of whistleblower protections and  reported that of the 18 recommendations we had previously made,  DOD had implemented 15, including that DOD ensure that  investigations are conducted by someone outside of the complainant’s  chain of command. DOD also had implemented our  recommendations to improve and track investigation timeliness and  strengthen oversight of the military services’ investigations, and was  considering steps to implement the remaining three recommendations  regarding standardized investigations and reporting to Congress.
In November 2016, we reported on the status of implementing the  Whistleblower Protection Enhancement Act, which strengthens  protections for federal employees. We reported that the Merit Systems  Protection Board has taken steps to collect and report whistleblower  appeals data, but we found a number of weaknesses in Merit Systems  Protection Board’s data collection. We recommended that the Merit  Systems Protection Board help ensure the accuracy of its reporting on  whistleblower appeals received and closed by (1) updating its data  entry user guide to include additional guidance and procedures and  (2) adding a quality check in its data analysis and reporting process to  better identify discrepancies. The Merit Systems Protection Board  agreed with these recommendations.
In 2016, we also reported on aspects of the Department of Energy’s  (Energy) whistleblower program and its contractor-run facilities, including  its implementation of the 2013 pilot program. In our July 2016 report, we  reported that Energy had taken limited to no action to hold responsible  contractors that had created a chilled work environment, or an  environment that may not respond favorably to whistleblower  disclosures. We recommended that Energy revise existing guidance to  clarify what constitutes a chilled work environment and define appropriate  steps the Department can take to hold contractors accountable. Energy  agreed with this recommendation.
section_title: All 14 Executive Departments Surveyed Varied in the Number of Reprisal Complaints Received and How They Implemented the Pilot
paragraphs: As the pilot program was being implemented, the number of reprisal  complaints received varied across the 14 executive departments,  according to the OIGs’ responses to our survey. According to the OIGs, of  the estimated 1,560 reprisal complaints received from July 1, 2013, to  December 31, 2015, the OIGs investigated about one-third of the total  127 complaints submitted by contractors, subcontractors, and grantee  employees covered under the pilot program. All remaining reprisal  complaints were disposed of for various reasons, but none of the pilot  program investigations completed thus far resulted in findings that  substantiated reprisal. In addition, the 14 OIGs reported using multiple  mechanisms to implement the pilot program, including incorporating a  new contract clause to notify contractors of their responsibilities.
subsections: section_title: Reprisal Complaints Received Varied across the 14 Executive Departments
paragraphs: The number of reprisal complaints received varied across the 14  executive departments we surveyed. OIGs at the 14 executive  departments reported receiving an estimated 1,560 whistleblower reprisal  complaints from July 1, 2013, through December 31, 2015. The 1,560  reprisal complaints consisted of each department receiving a range of  complaints, from approximately 3 to 600 based on survey responses. The  1,560 reprisal complaints included complaints from employees of  contractors, subcontractors, and grantees as well as groups not covered  by the pilot program, such as federal employees and the general public.
Of the estimated 1,560 reprisal complaints received from July 1, 2013,  through December 31, 2015, OIGs from the 14 departments reported that  127 were submitted by employees of contractors, subcontractors, and  grantees under the pilot program. However, the OIGs reported varying  levels of insight into whether federal, contractor, subcontractor, or grantee  employees had submitted the reprisal complaints. For example, 2  departments reported actual counts for all categories while 4 departments  provided a mix of actual counts and estimates. Two of the 14  departments could not separate the number of reprisal complaints by  category, and did not track how many they had received from federal,  contractor, subcontractor, or grantee employees. At these 2 departments,  OIG officials said that their case management systems, the electronic  systems they use to track complaints, could not provide this level of detail  on the source of the complaint. As a result, the officials at these 2  departments said that they reviewed individual cases to determine if the  reprisal complaints filed were relevant to the pilot program.
The 14 departments differed in the number of reprisal complaints  received under the pilot program. For example, 2 departments reported  receiving as few as 1 complaint apiece while 1 department received 35  complaints. Three departments accounted for almost 60 percent of the  pilot program complaints received from employees of contractors,  subcontractors, and grantees between July 1, 2013, and December 31,  2015. Almost all of the 127 reprisal complaints were reported directly to  the department’s OIG. For the remaining reprisal complaints, 4 were  referrals from within the respective department, 1 was a referral from  Congress, and 1 was filed by an advocacy group on the behalf of a  complainant.
section_title: OIGs Investigated About One-Third of the 127 Reprisal Complaints Identified Under the Pilot Program
paragraphs: Of the 127 reprisal complaints submitted by employees of contractors,  subcontractors, and grantees under the pilot program, 44 were  investigated by the OIG and none of the investigations completed thus far  resulted in findings that substantiated reprisal. See figure 2 for more  information about the disposition of reprisal complaints covered in the  pilot program.
According to OIG responses to our survey, they had completed  investigations for 27 of the 44 investigated reprisal complaints. As  required under the pilot program, OIGs reported forwarding their  investigation findings to the agency head in 12 of the 27 completed  investigations. The remaining 15 investigations were completed by 1 OIG  that reported it did not forward its findings to the agency head. This is not  consistent with a provision of the pilot program and is discussed later in  this report.
Of the 32 reprisal complaints submitted but not investigated, OIGs  determined that the cases were one of the following: frivolous, previously  decided by another federal or state judicial proceeding, to be referred to  another investigative body, or to receive an “other disposition.” In cases  that received other dispositions, OIGs reported that these cases could not  proceed because the complainants did not respond to requests for  information or declined to waive confidentiality, which they stated were  necessary to conduct an investigation.
Of the 51 reprisal complaints submitted for which it was determined that  the complaints were not covered by the pilot program, the OIGs at the  respective departments—10 in total—did not take any further actions to  investigate. In these cases, the OIGs determined that the initial disclosure  was related to conduct that did not, for example, allege gross  mismanagement covered under the pilot, and therefore, these reprisal  complaints were not covered by the pilot program.
section_title: OIGs Reported Using Multiple Mechanisms to Implement the Pilot Program
paragraphs: All 14 OIGs reported using a combination of mechanisms to implement  the pilot program, including existing efforts to manage whistleblower  disclosures and new efforts to handle reprisal complaints filed under the  pilot program. Some of these mechanisms were extensions of existing  efforts, such as using existing whistleblower hotlines to accept reprisal  complaints related to the pilot program. Several OIGs also noted that they  developed education programs for contractors, subcontractors, and  grantees, such as adding information about the pilot program to their  whistleblower websites. In addition to these efforts, a few OIGs reported  developing efforts specifically for the pilot program. For example, one OIG  reported using a monthly report to provide a snapshot for the status of  complaints and when the 180-day investigative period would end for each  complaint—a specific time frame that is part of the pilot program’s  enhancements to whistleblower protections. See table 1 for various  methods used by OIGs to implement the pilot program.
Under the pilot program as implemented, contracting officers are also  required to include a FAR clause—which instructs contractors to  communicate to their employees, in writing and in their predominant  language, their protections under the pilot program—in new contracts  (contracts awarded after September 30, 2013) that exceeded the  simplified acquisition threshold, generally over $150,000. All 14  departments reported in the survey that they had required insertion of the  FAR clause 52.203-17 into new contracts as a means of ensuring that  contractor employees are informed of their rights under the pilot  program. In addition to the clause, 2 departments reported taking  additional steps to ensure contractors are informing their employees of their rights. One department reported developing new guidance that will  require their contracting staff to obtain email confirmation from contractors  that they have notified employees of their rights. Also, during a roundtable  discussion we conducted with senior procurement officials, another  department official said that they had conducted forums with contractors  to inform them about the importance of the pilot program and to gather  feedback about challenges.
Despite using various mechanisms to implement the pilot program, most  of the 14 OIGs identified ambiguities and some challenges with the pilot  program. For example, over half of the OIGs identified at least one of  each of the following as a challenge that they experienced while  implementing the pilot:
Ambiguities in the pilot program (10 of 14 departments)—for example,  the OIGs reported that there is a lack of guidance regarding the  definition of a “frivolous” allegation.
Personnel or funding (9 of 14 departments)—for example, the OIGs  reported that these are complex cases where the investigation can be  extensive and consume significant investigative manpower.
Timeliness requirements for investigating reprisal complaints (8 of 14  departments)—for example, the OIGs reported that it is difficult to  determine how much time it will take to complete an investigation  because they have little formal control over non-government entities.
Two whistleblower advocacy groups we spoke with echoed these  concerns, noting that contractor employees’ reprisal complaints can take  a backseat to other issues because OIGs may have limited resources or  other priorities, such as investigating federal employee complaints. Given  these limited resources, one of the groups said that they had started to  offer training on whistleblower protections during the implementation of  the pilot program to help OIGs better understand issues such as what is  considered a covered disclosure or personnel actions that may constitute  reprisal to the detriment of the contractor.
section_title: Four Selected Departments Did Not Fully Implement Provisions of the Mandate
paragraphs: Four selected departments—Commerce, Homeland Security, Interior, and  State—used various processes for implementing the pilot program, and  some had not yet fully implemented the program. In particular, OIGs of  these departments reported they provided internal training on the  protections provided by the pilot program. Further, the OIGs reported that  they either had existing guidance or developed guidance during the  implementation of the pilot program, however we found that the guidance  was lacking in certain details. Moreover, the pilot program requires that  the departments’ OIGs forward a report of their investigation findings to  several entities, but we found two OIGs with completed investigations that  did not fully implement these reporting requirements. Additional details of  contractor and subcontractor employees’ reprisal complaints submitted to  the selected departments and the handling of the complaints are included  in appendix III. In addition, within the four departments’ contracting  offices, some of the new contracts we reviewed were missing one of the  required FAR clauses as required by law, and none of the four  departments have policies in place to make best efforts to include a  required FAR clause in major contract modifications, as required by the  pilot program. Finally, departments have not taken full advantage of  opportunities to improve communications between department officials  and contractors to help make contractors’ employees aware of their  protections from reprisal for disclosing potential wrongdoing.
subsections: section_title: Selected OIGs Provided Internal Training on the Pilot Program
paragraphs: At the four selected departments we reviewed, the OIGs reported that  they provided internal training on the protections provided by the pilot  program. For example, an official at State reported having training  available not only for OIG staff, but also for contracting officers. Interior  officials reported that they had developed detailed training slides that  cover several whistleblower laws, including the pilot program protections.  Homeland Security officials reported that they had a slide dedicated to the  pilot program in whistleblower training slides, but also said additional  training would be helpful. Commerce OIG officials reported that the Office  of Special Counsel and Department of Justice officials provided training  related to whistleblower protections to the OIG staff.
section_title: Selected OIGs Have Varying Pilot Program Guidance, but This Guidance Is Lacking in Certain Details
paragraphs: Commerce, Homeland Security, Interior, and State OIGs all reported  having guidance in place to implement the pilot program, but that  guidance varied and lacked certain details regarding the provisions in the  pilot program. Specific details follow:
Commerce OIG officials provided a flow chart and a legal  memorandum as the pilot program guidance which detail the OIG and  department responsibilities under the pilot program. Commerce OIG  also has guidance related to conducting investigations, but not  specifically those that fall under the pilot program. Commerce officials  we spoke with said that these documents are sufficient as guidance to  effectively implement the pilot program. However, we noted that while  the flow chart provides a description of the pilot program, it does not  include some program details that will facilitate implementing the  program, such as identifying to which offices within Commerce a  report should be sent following an investigation. For example, it does  not identify which office is the “head of the contracting activity” or the  designee to where a report should be sent. Further, the investigations  guidance may benefit from incorporating some elements of the flow  chart specific to the pilot program.
Homeland Security OIG officials provided a directive as the pilot  program guidance. The directive outlines OIG responsibilities under  the pilot program, including intake and investigation procedures, as  well as a process for tracking complaints. Homeland Security officials  we spoke with said this directive is thorough. However, we noted the  directive does not include the FAR 3.908-5 requirement to send the  investigation findings to the head of the contracting activity and  believe there may be opportunity to include more guidance. When we  asked about the FAR requirement, OIG officials said they believed  forwarding findings to the head of the contracting activity is a  responsibility of the agency head which had not previously provided  the proper contact to the OIG.
Interior OIG officials provided their policy for investigations as the pilot  program guidance. However, we noted that Interior’s OIG  investigations policy document was not specific to the pilot program  processes or protections. Interior OIG officials agreed and reported  that if the pilot is made permanent they plan to make changes to the  policy for investigations to include the pilot program details.
State OIG officials provided their policy for pilot program  investigations as the pilot program guidance. The policy includes  instructions on obtaining evidence for pilot program investigations, on  the reporting process when an investigation is complete, as well as  identifies levels of review. The policy instructs State officials to share  investigation findings with the agency head; however, we found it  does not specify how that information should be communicated. A  State OIG official said that the report of findings is communicated to  the agency head through a system that allows memoranda to be  submitted as either an action memorandum or information  memorandum. State OIG officials reported that initially, they had  submitted information memoranda because action memoranda  traditionally have a one page limit, which is insufficient to  communicate the findings of an investigation. However, according to  State OIG officials, in 2016, the Office of the Executive Secretariat  (which handles executive communication) requested that OIG put its  whistleblower reports in the form of an action memorandum, but this  change has not been put into guidance. An action memorandum  signals that action by the agency head is required, while an  information memorandum does not. Although a determination by the  agency head is required by law, we noted that the OIG guidance does  not specify that the action memoranda should be sent to the agency  head, signaling action is to be taken.
According to federal internal control standards, management should  internally communicate the necessary information to achieve the entity’s  objectives. This can be achieved through clear guidance or policies.  Further, FAR 3.908-5 establishes pilot program requirements, and  department guidance should include the requirements laid out in the FAR,  such as time frames for determinations by the agency head and who  receives copies of the investigation results. Although the four selected  OIGs all provided some level of guidance on executing the pilot program,  it is possible that some steps in this process may be missed because they  do not have detailed guidance that addresses all required elements of the  pilot program. Without providing more details in their guidance, these  departments may be at risk of not fully implementing all the provisions of  the pilot program.
section_title: Two OIGs with Completed Investigations Did Not Fully Implement Pilot Program Reporting Requirements
paragraphs: The pilot program statute and implementing regulations require that the  OIG forward a report of its investigation findings to several entities,  including the agency head, the complainant, and the contractor.  Additionally, the FAR requires that the agency’s head of the contracting  activity also receive a report of investigation findings. Of our four selected  departments, Commerce and Interior reported that they did not have any  investigations finalized during our review period. In contrast, Homeland  Security and State had investigations with findings that were not  forwarded to all appropriate entities to allow the agency head to make a  final determination of whether reprisal occurred. Specific details follow:
Homeland Security OIG officials reported that they found the  complaints to be unsubstantiated in their two investigative reports and  reported forwarding the findings from their two investigations during  this period to the contractor and the complainant. However, although  OIG officials reported attempting to send the report to the agency  head, department officials reported that the reports did not actually go  to the appropriate contacts. As a result, the reports were not received  by the correct contact in the department, and the agency head did not  make the determination in either case, as required by law. Agency  officials reported that in one case a report was sent to the Office of  General Counsel Labor and Employment division, not the agency  head, and in the other case, the report was forwarded to the  Secretary’s office, but nothing was done with the report. OIG officials  said their implementation of the pilot was an evolving process and that  they were not notified that the reports had gone to the wrong person.
State OIG officials reported that the five investigations completed by  December 31, 2015, were forwarded to the agency head, and the  results of the OIG investigations were communicated to both the  complainant and the contractor. During the course of our review, a  State OIG official said that he had previously sent the reports to the  relevant contracting activity at each Bureau, as designated by the  Department of State Acquisition Regulation, in an effort to meet the  requirement to provide the investigation results to the head of the  contracting activity. However, starting in October 2016 and going  forward, officials said the OIG plans to send reports to State’s  Procurement Executive, the head of the contracting activity at the  State Department, who has since been designated by the agency  head during the course of this review to make determination of  potential reprisals, as well as provide remedies. For these five cases,  a State OIG official reported that the complaints were unsubstantiated  and the OIG forwarded all findings as information memoranda to the  agency head. The information memoranda include a cover page  indicating the investigation’s findings, and that the Secretary should  review the report for informational purposes, but there is no indication  on the cover page of actions required—including that the agency head  has 30 days to make a determination—because a determination had  been made by the OIG. However, the pilot program requires that even  if the OIG determines the reprisal complaint is unsubstantiated, the  agency head must make the final determination. Officials from the  agency head at State explained that for the five cases in which  information memoranda were provided to report the investigations’  findings, they understood that no action was required, and no action  was taken, however the responsibility to make a final determination of  whether reprisal occurred under the pilot program remained. As a  result, no documentation exists indicating that the agency head  agreed with the investigations’ findings. According to the statute,  however, the agency head, not the OIG, must make the determination  of whether reprisal occurred within 30 days of receiving the report of  investigation findings. During our review, and in part as a result of  ongoing work, in June 2016, OIG officials said State instructed the  OIG to provide the results of its investigations as action memoranda,  rather than information memoranda, for both substantiated and  unsubstantiated investigation findings of a reprisal complaint in order  to indicate action from the agency head is necessary. In addition, the  action memorandum now includes the 30-day requirement for the  agency head to make a determination as to whether the employee  was subjected to a reprisal on the complaint. As a result of these  changes, two additional investigation findings from October 2016 were  reported to the agency head in the action memorandum format.
section_title: Some New Contracts at the Four Departments Were Missing the FAR Clause, and the Departments Lack Processes to Ensure the FAR Clause Is Inserted
paragraphs: In addition to investigating reprisal complaints, the pilot program required  a new FAR clause to be inserted into contract actions; this action is to be  accomplished by the departments’ contracting officials. As discussed  earlier, the FAR clause instructs contractors to communicate to their  employees, in writing and in the predominant language of their workforce,  their rights under the pilot program. These rights include who an  employee may report an initial disclosure or submit a reprisal complaint  to, their right to an investigation for covered reprisal complaints, and other  rights and remedies. The FAR clause is required to be inserted into new  contracts over the simplified acquisition threshold, generally $150,000, for  any contracts awarded after September 30, 2013, until the close of the  pilot program on July 1, 2017. For commercial item acquisitions,  contracting officers must insert an already-required clause, 52.212-4, that  now requires compliance with the pilot program statute 41 U.S.C. § 4712.
Commerce, Homeland Security, Interior, and State contracting officials  reported that they use the FAR clause to inform contractors of their  responsibilities. However, we found that at State, Commerce, and  Homeland Security, contract writing systems may not automatically  include the clause into contracts that are required, and some required a  contracting officer to insert the FAR clause into each contract into which it  is required to be included, rather than through an automated system. At  Interior, officials said the clause would be automatically inserted into new  awards as appropriate, however, we found the clause was not inserted in  all contracts that we reviewed. Internal control standards require that an  entity should establish monitoring activities and evaluate results.  However, we found all four selected departments reported having no  department-wide, regular compliance review that would detect whether  the required FAR clause is included in required contracts. For example,  Commerce officials reported that while they do have a compliance review  that checks for the insertion of mandatory clauses, and a review was  conducted in 2014 and included contract actions from 2011 through 2013,  a review has not been done since; therefore, no department-wide review  has been done on the inclusion of the FAR clause required by the pilot  program. A contracting official from Homeland Security said that all  contracting officers, as part of the review process before a contract is  signed, are required to review contract actions to ensure that all  applicable clauses are included; however, no department-wide review is  done. Contracting officials from Interior said that, while they conduct  contracting compliance reviews, they do not include specific clauses in  those reviews unless the agency has a specific reason to do so, such as  if they determined through risk analysis that the clause may not be  included. To date, according to these officials, Interior has not checked  compliance of the inclusion of the FAR clause. Officials from State report  they rely solely on supervisory review of contract documents and there is  no higher-level compliance review to determine whether the FAR clause  is inserted into new contracts.
Despite the acknowledgement from all four departments that the required  clause was to be included in new contracts, we found that some contracts  in our review lacked the required whistleblower protections FAR clause  52.203-17 or 52.212-4 for commercial item contracts. The contracts for  Homeland Security, Interior, and State were not commercial item  contracts, but the contract for Commerce was. At Commerce, a contract  awarded in September 2015 of more than $450,000 for computer  hardware and software licenses provided by contractors does not include  the required whistleblower protections FAR clause or the commercial item  contract clause. Further, at Homeland Security, a contract awarded in  September 2015 for over $550,000 for the design and implementation of  security software does not include the required whistleblower protections  FAR clause. In addition, at Interior, a contract awarded in August 2015 of  about $200,000 to perform research and development does not include  the required whistleblower protections FAR clause. At State, a contract  awarded in September 2015 for project development and design services  for over $230,000 also did not include the required whistleblower  protections FAR clause. Without a process in place to ensure the required  contract clause is inserted into new contracts, these clauses may  continue to be excluded. If acquisition officials fail to include the required  clauses and fail to take other action that would inform the contractor  employees of their rights under the pilot program, contractor employees  may not be aware of their rights.
section_title: The Four Departments Lack Policies on Making Best Efforts to Include the FAR Clause in Major Contract Modifications
paragraphs: The pilot program requires that executive agencies make a best effort to  include the FAR clause in major contract modifications of existing  contracts awarded before July 1, 2013. Officials from Commerce reported  that they do not include the FAR clause in major modifications, but  pointed out that the standard FAR convention for incorporating clauses  into existing contracts allows the contracting officer to use discretion.  Homeland Security officials also noted that contracting officers are  encouraged to include the clause in major modifications to required  contracts and task orders. Interior officials reported that it is up to the  bureaus within Interior to decide if the clause is inserted into major  modifications, and there is no department-wide policy. State officials  reported that the clause is added on a case-by-case basis, and  contracting officials are responsible for determining whether it is  necessary to add the clause. Contracting officials at all four departments  said they do not have a policy in place that defines major modification, or  any policy or guidance that instructs contracting officials on how to  determine if a modification would be considered “major” or what the  contracting officer should do to make a best effort to include the FAR  clause. Some contracting officials reported that even though there are  requirements in the statute regarding making best efforts, they rely on the  FAR and generally do not seek out additional counsel on the  implementation of the law. However, the requirement to make best efforts  to include the FAR clause into existing contracts (those awarded before  the effective date of the pilot program) during major modifications of those  contracts is not implemented in the FAR. In the FAR interim rule,  agencies are only “encouraged” to put the clause in major modifications,  but there is no mention of “best efforts” to do so. As a result, some  departments’ officials who rely on the FAR guidance and rules may not be  aware of the statutory requirement to make a best effort to include the  FAR clause in major modifications to contracts awarded before July 1,  2013.
Additionally, some of the contracting officials we spoke with said there  may be costs associated with asking a contractor to include the clause  during a major modification of an existing contract. However, contractors  we spoke with said that adding the FAR clause would be largely  administrative and they would be unlikely to ask for additional  compensation to do so. Further, one contractor we spoke with pointed out  that the company he represents would be hesitant to argue against  including the FAR clause because the contractor understood and agreed  with the importance of protecting whistleblowers from potential reprisal.
Without a department-wide policy in place to determine whether or not to  include the FAR clause into an existing contract during a major  modification and to define what is major, it may not be possible for these  departments to ensure their contracting officers are making a best effort  to include the clause into existing contracts awarded prior to July 1, 2013,  as required by the pilot program.
section_title: Opportunities Exist to Improve Communications between Department Officials and Contractors
paragraphs: Some contractors we spoke with were unaware of their obligations under  the pilot program. These contractors not only have received federal funds  from one or more of the four selected departments in our review, but also  other federal agencies. They pointed out that they generally have not  been contacted by agencies to follow up on what steps or actions they  have taken to communicate in writing to employees about their rights  against reprisal. However, another contractor pointed out that agencies  have followed up and sought confirmation or attestation on other contract  clauses, such as clauses designed to address human trafficking. In  addition, one whistleblower advocacy group we spoke with noted that  contractors’ employees may not be aware of their rights or where to find  more information about the pilot program protections. This reinforces the  need for agencies to ensure the mechanisms are in place for contractors  to communicate these rights to the covered employees.
At the four selected departments, department officials reported taking no  additional action beyond inserting the FAR clause to inform contractors  about their responsibilities to communicate to their employees—in writing  and in the employees’ predominant language—their rights under the pilot  program. Some officials noted that contractors are responsible for  implementing FAR clauses, and if they do not do so, they are in breach of  the contract. Federal internal control standards, under the information and  communication standard, note that management should externally  communicate necessary information to achieve its objectives. Given that  contractors we spoke with stated they were not all aware of the need to  communicate to their employees about their rights in this area,  opportunities for improvements to communications between the two  parties exist. For example, one department in our survey of 14  departments reported conducting external communication beyond  including the FAR clause in new contracting actions by developing new  guidance that will require its contracting staff to obtain email confirmation  from contractors that they have notified their employees of their rights as  reported above. Without additional communication about the  requirements and protections provided by the whistleblower protections  pilot program between the four departments and their contractors,  contractors may not fully understand or appreciate the significance of  their responsibility to communicate to their employees.
section_title: Conclusions
paragraphs: Executive departments have an opportunity to help reduce fraud, waste,  abuse, and mismanagement of government funds by leveraging the  willingness of contractor, subcontractor, and grantee employees to report  such instances. Because whistleblowers risk reprisal, including potential  job loss, agencies must ensure those contractor employees are aware of  their protections against reprisal. To fully implement the enhancement of  contractor employee whistleblower protections pilot program, especially  now that it has been made permanent, and to ensure that the review  process does not stop short of the agency head review, OIGs must report  their investigation findings to the agency head. When reports are not  forwarded to the agency head for final determination, the requirement  under the statute is not met. Further, the determination of the agency  head may differ from that reached by the OIG, possibly affecting the  complainant’s recourse. At the four selected departments reviewed,  confusion among department officials about the pilot program’s processes  and requirements remain, and further guidance may help clarify  responsibilities under the pilot program. Further, opportunities exist for  these four departments to ensure that the necessary FAR clause is  included in all required contracts, and that they make a best effort to  include the FAR clause in major modifications to existing contracts.  Finally, improving communication with contractors, subcontractors, and  grantees to ensure employees are aware of their responsibilities and  rights under the pilot program are important steps for the selected  executive departments’ contracting officials to take. By fully implementing  the pilot program, these departments can encourage contractor personnel  to disclose evidence of wrongdoing. Without these critical oversight  elements of contracts, contractor employees may be unaware of the  protections they have against reprisal, which may ultimately impact their  willingness to come forward when witnessing fraud, waste, abuse, and  mismanagement.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Inspectors General of Commerce, Homeland  Security, Interior, and State develop or clarify existing guidance on the  implementation of the pilot program. For example, the guidance should  identify specific pilot program processes such as levels of review during  an investigation, and where the findings of investigations are to be  reported.
We also recommend that the Secretaries of Commerce, Homeland  Security, Interior, and State develop policies and processes to help  ensure that  the FAR clause 52.203-17 is inserted in new contracts and major  modifications as appropriate,  contracting officials can determine whether a modification is major  and the applicability of the FAR clause, and whether they are making  their best efforts to include the clause into existing contracts during  major modifications, and  contracting officials communicate with contractors and subcontractors  to help ensure employees are informed about the requirements and  protections provided by the whistleblower protection pilot program.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this product to the Departments of Commerce,  Homeland Security, Interior, and State for comment.  All four departments  concurred with the recommendations. The agencies’ comments are  summarized below and written comments from Commerce, Homeland  Security, and State are reproduced in appendices IV, V, and VI  respectively.  Interior agreed with the recommendations in an email.  We  also received technical comments from Commerce, Homeland Security,  and State which we incorporated, as appropriate.
In Commerce’s written comments, the Department said the differences  between the statute and the FAR regulations need to be addressed, and  agreed to encourage contractors to communicate with their  subcontractors about the requirements and protections of the pilot  program. Commerce OIG agreed to incorporate some of the guidance in  their policy manual into their flowchart guidance, and revise their  investigative policy manual as necessary.
In Homeland Security’s written comments, the Department agreed to  review processes to ensure the FAR clause is inserted into new  contracts, develop policies and procedures to ensure contracting officers  have clear guidance on when to incorporate the FAR clause, and will  communicate broadly with those who do business with the Department to  remind them of their contractual obligation under the pilot. The Homeland  Security OIG has updated their directive in accordance with our  recommendation.
In an email, Interior noted that the Department plans to develop  supplemental guidance in fiscal year 2017 to assist contracting officers in  appropriately applying the FAR clause and remind them of their  responsibility to communicate the requirements of the clause to their  contractors and subcontractors where possible.
In State’s written comments, the Department agreed to ensure that the  FAR clause is inserted in new contracts and major modifications, assist  contracting officers to determine whether a modification is major and  whether they are making best efforts to include it, and assist contracting  officials with communicating to contractors and subcontractors to help  ensure contractor employees are informed about the requirements under  the pilot program. The State OIG has updated policies to include the 30- day deadline for agency head determination in whistleblower reports,  accommodate the agency head’s specifications for sending the report,  and specify that the Procurement Executive is the Secretary of State’s  designee for whistleblower investigations.
We are sending copies of this report to the appropriate congressional  committees, the Secretaries of Commerce, Interior, Homeland Security,  and State, and to other interested parties. In addition, the report is  available at no charge on the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-4841 or makm@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last  page of this report. GAO staff who made key contributions to this report  are listed in appendix VII.
section_title: Appendix I: Survey
section_title: Appendix II: Objectives, Scope, and Methodology
paragraphs: The National Defense Authorization Act for Fiscal Year 2013 contained a  provision for us to evaluate and report on the implementation of the Pilot  Program for the Enhancement of Contractor Employee Whistleblower  Protections (pilot program). In December 2016, Congress enacted  legislation making the pilot program permanent. Our report: (1) describes  the results of the whistleblower pilot program between July 1, 2013, and  December 31, 2015, across 14 executive departments; and (2) assesses  the extent to which four selected departments implemented the pilot  program.
To describe the results of the whistleblower pilot program, we surveyed  the Office of Inspector General (OIG) at the 14 executive departments  covered by the legislation on the reprisal complaints received between  July 1, 2013, and December 31, 2015. In this report, we use the terms  “agency” and “agency head” when referring to provisions of the  whistleblower protections pilot program legislation in general because the  legislation uses these terms. We use the term “departments” when we  refer to the 14 executive departments defined by statute and covered by  the whistleblower protections pilot program that were the focus of this  review. Specifically, we surveyed the OIGs at the Departments of  Agriculture, Commerce, Education, Energy, Health and Human Services,  Homeland Security, Housing and Urban Development, Interior, Justice,  Labor, State, Transportation, Treasury, and Veterans Affairs. We sent the  survey questionnaire—by e-mail in an attached Microsoft Word form that  respondents could return electronically after completing it—to 14  executive departments on June 15, 2016, and received responses from  the OIGs at all 14 departments. We coordinated survey responses  through each department’s OIG, which consulted with their cognizant  department officials to respond to questions on an as-needed basis.
Among other things, the survey collected information about the number of  disclosures of waste, fraud, abuse, and mismanagement as well as  reprisal complaints and mechanisms used by executive departments to  implement provisions of the pilot program. For each department, we  asked officials to provide information about activities and data related to  whistleblower complaints, including data on complaints that were not  subject to the pilot program. For pilot program-related information, we  requested data on contractor, subcontractor, and grantee employees,  such as the number of complaints received from each group and how  many of the complaints were investigated by the OIG. When necessary,  we performed limited follow-up with all 14 departments to clarify answers  and request relevant documentation; this follow-up took place from July  26, 2016, to December 8, 2016. We did not independently verify  information obtained through the survey, including data describing the  case numbers the departments provided; however, to determine the  information was reliable for our purposes we asked the departments to  describe the source(s) of information used and steps taken to determine  these numbers. We believe these data are reliable for our purposes. The  survey used for this study is reprinted in appendix I.
Since this was not a sample survey, it has no sampling errors. However,  the practical difficulties of conducting any survey may introduce errors,  commonly referred to as nonsampling errors. For example, difficulties in  interpreting a particular question, sources of information available to  respondents, or entering data into a database or analyzing them can  introduce unwanted variability into the survey results. We took steps in  developing the survey, collecting the data, and analyzing them to  minimize such nonsampling error. We conducted three telephone pretests  of the survey instrument with officials at three departments to ensure that  questions were clear, comprehensive, and unbiased, and to minimize the  burden the questionnaire placed on respondents. An independent  reviewer within GAO also reviewed a draft of the questionnaire prior to  administration of the survey. We made changes to the content and format  of the questions based on feedback from the pretests and independent  review. In addition to pretesting the survey, we coordinated with the  Council of the Inspectors General on Integrity and Efficiency (CIGIE) to  hold a question and answer session after releasing the survey.
To assess the extent to which departments implemented the pilot  program, we selected four departments based primarily on the dollar  value of their fiscal year 2015 contract funds awarded, the most recent  year available at the time we began our review. To obtain a range of  experience level with contracting at departments, we included two  departments with higher contract funds awarded (Homeland Security,  State) and two departments with lower contract funds awarded  (Commerce, Interior). To identify these departments, we ranked  department contract funds awarded from highest to lowest, and selected  two departments from the top half of the 14 departments, and two from  the bottom half. Our secondary criteria included the proportion of contract  funds awarded to overall obligations in fiscal year 2015 and whether the  departments’ OIG website included mention of the pilot program. At each  department, we focused on the department’s handling of reprisal  complaints filed by contractor and subcontractor employees. We  interviewed or obtained written answers from department OIG officials,  the office of the agency head, and contracting officials about their  processes and practices for the agency duties outlined in the mandate.  Where applicable, we reviewed documentation such as relevant policies,  guidance, and internal reports. Findings based on information collected  from the four departments cannot be generalized to all departments.
To identify whether a Federal Acquisition Regulation (FAR) clause was  included in contracts as required, we reviewed a non-generalizable  sample from each of the four case study departments. To identify an  example of a contract without the clause, we reviewed documentation for  a random selection of at least 50 contracts at each of the four  departments. We used the Federal Procurement Data System–Next  Generation (FPDS-NG) to generate a sample of contract actions over  $150,000 that were awarded by the four departments included in our  review in the fourth quarter of fiscal year 2015. The sample also included  orders awarded in the fourth quarter of fiscal year 2015, regardless of the  award date of the associated contract. To avoid selecting contracts where  the underlying base contract was awarded by another department, we  excluded interagency contracts. We asked for contract actions awarded in  the fourth quarter of fiscal year 2015 to ensure we were sampling  contracts that are required to have the clause and would be reasonably  accessible by the departments (e.g., they would likely not be archived).  To avoid selecting contracts where the underlying base contract was  awarded by another department, we excluded interagency contracts. We  also excluded task or delivery orders awarded using blanket purchase  agreements because we could not consistently determine which  department awarded the underlying base contract based on FPDS-NG  data. For Homeland Security, we excluded contracts awarded by the  Coast Guard because the Coast Guard is not covered under the pilot  program and its contracts would not be required to contain this clause.  We excluded personal services contracts because they are not  specifically included in the pilot program statute.
We conducted data reliability checks on the FPDS-NG dataset by  comparing it to contract documentation obtained from contract files and  determined it was sufficiently reliable for our purposes.
Finally, in order to learn about challenges experienced during the  implementation of the pilot program, we also conducted interviews with  contractors and whistleblower advocacy groups. We contacted five large  and eight small business contractors based on their contract obligations  from fiscal year 2013 through fiscal year 2015, as reported in FPDS-NG.  For large contractors, we contacted firms that were listed on FPDS-NG’s  “Top 100 Contractors” list for at least two of the four selected departments  and in at least two of the fiscal years since 2013, when the pilot program  went into effect. For small business contractors, we contacted firms that  received among the largest amount of contract obligations at each of the  four selected departments in at least two separate years since 2013. We  ultimately interviewed or obtained written answers from seven  contractors. While information collected from the contractors is not  generalizable to all contractors, they provide important perspectives on  challenges experienced by both large and small contractors.  Lastly, we  spoke with two advocacy groups for whistleblowers.
We conducted this performance audit from February 2016 to March 2017  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
section_title: Appendix III: A Summary of Selected Departments’ Reprisal Complaints and the Handling of Those Complaints
paragraphs: This appendix provides additional information on reprisal complaints for  the four selected departments—Commerce, Homeland Security, Interior,  and State—under the Pilot Program for Enhancement of Contractor  Employee Whistleblower Protections (pilot program).
Table 2 provides a summary of the data collected regarding reprisal  complaints received at each department and the Office of Inspector  General officials’ disposition of each complaint.
section_title: Appendix IV: Comments from the Department of Commerce
section_title: Appendix V: Comments from the Department of Homeland Security
section_title: Appendix VI: Comments from the Department of State
section_title: Appendix VII: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact names above, Penny Berrier (Assistant  Director), Mary Diop, Meghan Perez, and Jocelyn Yin were principal  contributors to this report. In addition, the following people made key  contributions to this report: James Ashley, Lorraine Ettaro, Stephanie  Gustafson, Kurt Gurka, Julia Kennon, John Krump, Kate Lenane, Sylvia  Schatz, and Roxanna Sun.