For contractor and grantee employees at NASA, whistleblower  protections have changed over time. Figure 1 depicts the disclosure  process and the complaint process. NASA Administrator Did Not Meet the Required Time Frames for Reprisal Complaint Review

The Administrator failed to meet the required review time frame and issue  an order of final determination of reprisal for 5 completed investigations  received from the OIG from 2008 through June 2017. In all 5 cases, the  Administrator took longer than the 30 days to issue an order. For 3 of the 6 complaints, the OIG found that reprisal had occurred and  reported those findings to the administrator for final determination of  reprisal. The Administrator determined that none of these 3 complaints  qualified for protection under the law. According to an official  from the Office of General Counsel, the agency has no standard process  to ensure the contractors are afforded due process, among other things. He said that  each case is different and would have to be handled on a case by case  basis. Despite acknowledging  these challenges, the Administrator does not have a formal process or  criteria to monitor and evaluate the way the office handles issuing an  order of final determination of reprisal to ensure that it meets the statutory  time requirements. Without monitoring, evaluating, and taking  appropriate corrective action based on the way the Administrator or his or  her designee makes a final determination of reprisal, there is no  assurance that whistleblower reprisal complaints will be handled within  required time frames in the future. Based on our review of a  generalizable sample of contracts, we estimate that 98 percent of  contracts would be expected to include a whistleblower clause at the time  new contracts were awarded in applicable contracts in 2016, and 2  percent would not. NASA’s Guidance Contributes to Different Understanding of Reprisal Protections

Three elements of NASA’s whistleblower reprisal protection guidance—its  procurement notice, NFS clause, and definition of major modification— contribute to potential confusion or inconsistent application of  whistleblower reprisal protections. First, in July 2014, NASA notified its contracting officials of the changes to  the NFS required by the 2013 amendments to section 2409 Title 10 of the  U.S. code through a procurement notice 04-80, but this notice has been  interpreted differently by officials in NASA Headquarters, a NASA center,  and the OIG. Internal control standards require that an entity should internally  communicate necessary quality information in order to meet requirements  of the mission. Recommendations for Executive Action:

We are making three recommendations to NASA:  The Administrator should monitor, evaluate, and make appropriate  corrective actions, such as a documented process, to ensure it reviews  reprisal complaints in a timely manner. In its response to our recommendations NASA agreed  to develop and document a process to ensure it reviews reprisal  complaints in a timely manner to ensure all parties’ due process rights are  protected, review existing procurement policy and clarify guidance as  appropriate, and update NASA grant guidance to communicate  whistleblower protections to grantees, sub-grantees and their employees. Appendix I: Objectives, Scope, and Methodology

To assess the extent to which National Aeronautics and Space  Administration’s (NASA) Office of Inspector General (OIG) has  investigated contractor and grantee whistleblower reprisal complaints and  developed guidance for the investigations, we reviewed data provided by  the NASA OIG on the total number of whistleblower allegations of fraud,  waste, abuse, misconduct, or mismanagement and reprisal claims. The sample is projectable  to NASA fiscal year 2016 contracts; however, we did not make a case by  case legal determination for contracts not in our sample. Finally, in order to learn about contractor and grantee experiences during  NASA’s implementation of enhanced whistleblower protections, we  conducted interviews with or received written answers to questions from a  selected group of NASA contractors and grantees.
Why GAO Did This Study

NASA obligated over $18 billion in contracts and more than $1 billion in grants in fiscal year 2016, and it relies on a significant number of contractor and grantee employees to accomplish its work. These employees are legally protected from reprisal—such as demotion or firing—for whistleblowing.
GAO was asked to review NASA's whistleblower reprisal protections for contractor and grantee employees. This report addresses, among other things, the extent to which (1) NASA's Inspector General investigated contractor and grantee whistleblower reprisal complaints; (2) NASA's Administrator reviewed reprisal complaints in a timely manner; and (3) NASA communicated the applicable whistleblower reprisal protections to contractors. GAO reviewed NASA and its Inspector General's policies and guidance; reviewed a generalizable sample of 100 contracts from all NASA centers with contracts in fiscal year 2016; and interviewed relevant officials and contractors, grantees, and advocacy groups.

What GAO Found

From 2008 through June 2017, National Aeronautics and Space Administration (NASA) contractor and grantee employees submitted 48 reprisal complaints such as alleged firing or demotion for reporting fraud, waste, or abuse within the government. NASA's Inspector General addressed all 48 complaints, completed investigations for 6 of those complaints, and forwarded investigation reports to the NASA Administrator, who is responsible for making a final determination of whether reprisal occurred. The Administrator determined that none of the complaints qualified for protection under the law.
Further, in 5 of the 6 cases forwarded by the OIG, the Administrator was required by statute to make a final determination of reprisal within 30 days. GAO found that the Administrator did not meet this required time frame for all 5 cases and had no documented response for one of them (see figure for all 5 cases). According to officials from NASA's Office of General Counsel, each case must be handled on a case by case basis to ensure due process and 30 days is insufficient time to issue an order of final determination of reprisal. However, in order to ensure that whistleblower reprisal complaints are handled within required timeframes, NASA would have to monitor and evaluate its processes for making final determinations of reprisal, but it has not yet taken this step. Consequently, NASA does not know what changes may be needed to ensure that it is meeting the statutory 30-day requirement.
NASA communicates whistleblower protections to contractors through inclusion of a required contract clause. For example, GAO found that almost all—98 percent—of contracts would be expected to include a whistleblower clause as required by statute. However, certain elements of NASA whistleblower protection guidance have contributed to a different understanding of reprisal protections among officials at headquarters, a NASA center, and the Inspector General. For example, a July 2014 procurement notice and contract clause language resulted in different interpretations about when the protections apply. Federal internal control standards require that an entity should communicate necessary quality information internally to meet the objectives of its mission. Without additional clarity in its guidance on when the protections apply, NASA centers and procurement officials will be at risk of inconsistent implementation of the law.

What GAO Recommends

GAO is making three recommendations to NASA, including evaluating the process for reviewing reprisal complaints to ensure it is meeting the required timeframe and clarifying guidance on when protections apply to contractor employees. NASA agreed with the recommendations and plans to develop a documented process to ensure it reviews reprisal complaints in a timely manner and clarify guidance as appropriate, among other things.