3.907-6 Remedies and enforcement authority
Source: FAR 3.907-6 on acquisition.gov
FAR 3.907-6 provides strong remedies and enforcement mechanisms to protect whistleblowers from contractor reprisals under the Recovery Act, including agency orders, court actions, and penalties for non-compliance.
Overview
FAR 3.907-6 outlines the remedies and enforcement authority available when a non-Federal employer is found to have taken reprisal against an employee for whistleblowing under the American Recovery and Reinvestment Act of 2009. It details the burden of proof, agency responsibilities, available remedies, judicial review, and enforcement mechanisms to protect whistleblowers and ensure compliance by contractors.
Key Rules
- Burden of Proof
- Employees must show their protected disclosure was a contributing factor in the reprisal, which can be established by circumstantial evidence. Employers can rebut this by clear and convincing evidence that the action would have occurred regardless of the disclosure.
- Agency Action and Remedies
- Within 30 days of receiving an Inspector General report, the agency head must determine if reprisal occurred and may order remedies such as abatement, reinstatement, back pay, compensatory damages, and payment of costs and attorneys’ fees.
- Judicial Remedies
- If administrative remedies are exhausted or delayed, the complainant may file a de novo action in federal district court, with the right to a jury trial.
- Enforcement
- If an employer fails to comply with an order, the agency head must request DOJ enforcement in district court, which may grant further relief.
- Appeals
- Adversely affected parties may seek appellate review within 60 days of the agency order.
Responsibilities
- Contracting Officers: Ensure contractors are aware of whistleblower protections and monitor compliance.
- Contractors: Must not retaliate against whistleblowers and must comply with any agency or court orders for remedies.
- Agencies: Investigate complaints, issue timely decisions, enforce orders, and coordinate with DOJ as needed.
Practical Implications
- This section ensures robust protection for whistleblowers and holds contractors accountable for reprisals. Contractors must have procedures to prevent and address retaliation, and agencies must act swiftly on complaints. Failure to comply can result in significant legal and financial consequences, including court enforcement and damages.
(a) Burden of Proof.
(1) Disclosure as contributing factor in reprisal.
(i) An employee alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the employee demonstrates that a disclosure described in section 3.907-2 was a contributing factor in the reprisal.
(ii) A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including-
(A) Evidence that the official undertaking the reprisal knew of the disclosure; or
(B) Evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.
(2) Opportunity for rebuttal. The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under section 3.907-6(a)(1) if the non-Federal employer demonstrates by clear and convincing evidence that the non-Federal employer would have taken the action constituting the reprisal in the absence of the disclosure.
(b) No later than 30 days after receiving an Inspector General report in accordance with section 1553 of the Recovery Act, the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection 3.907-2 and shall either issue an order denying relief in whole or in part or shall take one or more of the following actions:
(1) Order the employer to take affirmative action to abate the reprisal.
(2) Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, 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.
(3) Order the employer to pay the complainant 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.
(c)
(1) The complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and other relief available under this section in the appropriate district court of United States, which shall have jurisdiction over such an action without regard to the amount in controversy if-
(i) The head of an agency-
(A) Issues an order denying relief in whole or in part under paragraph (a) of this section;
(B) Has not issued an order within 210 days after the submission of a complaint in accordance with section 1553 of the Recovery Act, or in the case of an extension of time in accordance with section 1553 of the Recovery Act, within 30 days after the expiration of the extension of time; or
(C) Decides in accordance with section 1553 of the Recovery Act not to investigate or to discontinue an investigation; and
(ii) There is no showing that such delay or decision is due to the bad faith of the complainant.
(2) Such an action shall, at the request of either party to the action, be tried by the court with a jury.
(d) Whenever an employer fails to comply with an order issued under this section, the head of the agency shall request the Department of Justice to file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this section, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorneys fees and costs.
(e) Any person adversely affected or aggrieved by an order issued under paragraph (b) of this subsection may obtain review of the order’s conformance with the law, and this section, in the United States Court of Appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency.