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. 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. 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. Energy  agreed with this recommendation. 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. 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. 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. 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. 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. Selected OIGs Provided Internal Training on the Pilot Program

At the four selected departments we reviewed, the OIGs reported that  they provided internal training on the protections provided by 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. 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. Some New Contracts at the Four Departments Were Missing the FAR Clause, and the Departments Lack Processes to Ensure the FAR Clause Is Inserted

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. Opportunities Exist to Improve Communications between Department Officials and Contractors

Some contractors we spoke with were unaware of their obligations under  the pilot program. 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. 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. All four departments  concurred with the recommendations. Appendix I: Survey

Appendix II: Objectives, Scope, and Methodology

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). 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 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.
Why GAO Did This Study

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.

What GAO Found

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.

What GAO Recommends

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.