3.905-1 Remedies
Source: FAR 3.905-1 on acquisition.gov
FAR 3.905-1 ensures whistleblower protections by mandating agency remedies for reprisal and granting employees the right to seek relief in federal court if administrative remedies are denied or delayed.
Overview
FAR 3.905-1 outlines the remedies available when a contractor or subcontractor is found to have retaliated against an employee (whistleblower) in violation of FAR 3.903. It details the agency's required response to Inspector General reports, the potential actions the agency head may order, the complainant's right to seek relief in federal court, and the non-waivability of whistleblower protections. The section ensures that employees who report wrongdoing are protected from reprisal and have clear avenues for relief if retaliation occurs.
Key Rules
- Agency Response to Inspector General Report
- Within 30 days of receiving a report, the agency head must determine if reprisal occurred and either deny relief or order corrective actions, including abatement, reinstatement with compensation, payment of costs, or disciplinary action against agency officials.
- Complainant's Right to Go to Court
- If relief is denied or not timely issued, the complainant may file a lawsuit in federal court within two years, with the right to a jury trial.
- Admissibility of Evidence
- Inspector General determinations and agency head orders are admissible in court proceedings.
- No Waiver of Rights
- Whistleblower protections cannot be waived by any agreement or employment condition.
Responsibilities
- Contracting Officers: Must ensure contractors comply with whistleblower protections and enforce agency orders.
- Contractors: Must comply with agency orders regarding abatement, reinstatement, and compensation; cannot require employees to waive whistleblower rights.
- Agencies: Must act promptly on IG reports, provide remedies, and consider disciplinary action against agency officials if warranted.
Practical Implications
- This section protects whistleblowers and holds contractors accountable for retaliation, ensuring a safe reporting environment. Contractors must be prepared for potential agency orders and litigation, and cannot circumvent protections through employment agreements. Delays or failures to act can result in court actions and additional liabilities.
(a) Agency response to Inspector General report. Not later than 30 days after receiving a report pursuant to 3.904-2, the head of the agency shall—
(1) Determine whether sufficient basis exists to conclude that the contractor or subcontractor has subjected the employee who submitted the complaint to a reprisal as prohibited by 3.903; and
(2) Either issue an order denying relief or take one or more of the following actions:
(i) Order the contractor or subcontractor to take affirmative action to abate the reprisal.
(ii) Order the contractor or subcontractor to reinstate the complainant employee to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(iii) Order the contractor or subcontractor to pay the complainant employee an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.
(iv) Consider disciplinary or corrective action against any official of the executive agency, if appropriate.
(b) Complainant's right to go to court.
(1) Paragraph (b)(2) of this section applies if—
(i) The head of the agency issues an order denying relief; or
(ii)
(A) The head of the agency has not issued an order—
(1) Within 210 days after the submission of the complaint; or
(2) Within 30 days after the expiration of an extension of time granted in accordance with https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4712&num=0&edition=prelim" target="_blank">41 U.S.C. 4712(b)(2)(B) for the submission of the report to those stated in 3.904-2(b); and
(B) There is no showing that such delay is due to the bad faith of the complainant.
(2) If the conditions in either paragraph (b)(1)(i) or (ii) of this section are met—
(i) The complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint; and
(ii) The complainant may bring a de novo action at law or equity against the contractor or subcontractor to seek compensatory damages and other relief available under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4712&num=0&edition=prelim" target="_blank">41 U.S.C. 4712 in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
(A) Such an action shall, at the request of either party to the action, be tried by the court with a jury.
(B) An action under this authority may not be brought more than 2 years after the date on which remedies are deemed to have been exhausted.
(c) Admissibility in evidence. An Inspector General determination and an agency head order denying relief under this section shall be admissible in evidence in any de novo action at law or equity brought pursuant to https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4712&num=0&edition=prelim" target="_blank">41 U.S.C. 4712.
(d) No waiver. The rights and remedies provided for in https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4712&num=0&edition=prelim" target="_blank">41 U.S.C. 4712 may not be waived by any agreement, policy, form, or condition of employment.