DEFENSE CONTRACTOR REQUIREMENTS WITH RESPECT TO EMPLOYEES WHO COMMUNICATE WITH GOVERNMENT OFFICIALS

SEC. 837. DEFENSE CONTRACTOR REQUIREMENTS WITH RESPECT TO EMPLOYEES WHO COMMUNICATE WITH GOVERNMENT OFFICIALS (a) Defense Contractor Requirement.— (1) Chapter 141 of title 10, United States Code, is amended by inserting after section 2409 the following new section: “§ 2409a. Communicating with Government officials: defense contractor requirement to prohibit retaliatory personnel actions “(a) Regulations.— (1) The Secretary shall promulgate regulations containing the requirements described in subsections (b), (c), and (d) and such other provisions as the Secretary considers necessary to administer such requirements. Such regulations shall require that each contract described in paragraph (2) contain a clause requiring the contractor to comply with such regulations. “(2) The regulations shall apply to each contract entered into by a contractor and the Department of Defense for an amount greater than $500,000, except that the regulations shall not apply to any contract in which the price is based solely on established catalog or market prices of commercial items sold in substantial quantities to the general public. “(b) Prohibition.— The regulations promulgated under this section shall prohibit a defense contractor from discharging or otherwise discriminating against any employee with respect to such employee’s compensation or terms and conditions of employment because the employee (or any person acting pursuant to a request of the employee) discloses to an appropriate Government official information concerning a contract between the defense contractor and the Department of Defense which the employee reasonably believes evidences a violation of any Federal law or regulation relating to Department of Defense procurement or the subject matter of the contract. 104 STAT. 1617 “(c) Complaint and Investigation.— The regulations promulgated under this section shall include the following provisions: “(1) Any employee of a defense contractor who believes that he or she has been discharged or otherwise discriminated against by the defense contractor in violation of regulations promulgated under subsection (b) may file with the Secretary a complaint alleging such discharge or discrimination. Any such complaint may not be filed more than 180 days after the later of the date on which the violation is alleged to have occurred or was discovered. “(2) A complaint filed under paragraph (1) must contain a certification, signed by the complainant, which states specifically the nature of the alleged discriminatory act and of the disclosure giving rise to such act. The certification must also contain one of the following statements: “(A) All attempts at resolution through an internal company grievance procedure have been exhausted. “(B) The company grievance procedure was not used because the complainant reasonably believed it to be ineffectual or to expose the complainant to employer reprisals. “(C) The company has no company grievance procedure. “(3) Upon receipt of a complaint filed under paragraph (1), the Secretary shall serve notice of the complaint on the defense contractor named in the complaint and the head of the agency which entered into the contract. “(4) (A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an initial investigation to determine whether the complaint is frivolous or merits further investigation. As part of such initial investigation, the Secretary shall find out whether the employee and the defense contractor have attempted to resolve the dispute. If the Secretary determines that the complaint merits further investigation, the Secretary shall, except as provided in subparagraph (B), complete an investigation of the complaint within 90 days after receipt of the complaint. “(B) If the Secretary determines that it is not possible to complete an investigation of a complaint within the 90-day period prescribed in subparagraph (A), the Secretary shall notify the employee of the reasons why the investigation cannot be completed within such time period and of the date when the investigation will be completed. The Secretary also may defer action on a complaint at any time with the consent of the complainant and the defense contractor. “(C) Not later than 30 days after an investigation is completed, the Secretary of Defense shall provide a written report of the results of the investigation to the complainant, any person acting on behalf of the complainant, and the defense contractor alleged to have committed the violation. “(D) Within 90 days after providing a report of the results of an investigation of a complaint, the Secretary shall issue an order providing the relief prescribed in paragraph (5) or denying the complaint, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement agreement entered into by the Secretary and the defense contractor alleged to have committed such violation. 104 STAT. 1618 “(E) An order of the Secretary under this section shall be made on the record after notice and opportunity for an agency hearing. In issuing an order, the Secretary shall follow procedures that are as informal as practicable, consistent with principles of fundamental fairness. At a minimum, the Secretary shall afford the complainant and the defense contractor an opportunity to submit in writing information and arguments in opposition to the conclusion of the report of the results of the investigation. “(F) The Secretary may not enter into a settlement agreement terminating a proceeding on a complaint without the participation and consent of the complainant. “(5) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of regulations promulgated under subsection (b) has occurred, the Secretary may issue, separately or in combination, any of the following: “(A) An order that the defense contractor who committed such violation take affirmative action to abate the violation. “(B) An order that such contractor reinstate the complainant to the position held by such individual when discharged, together with the compensation (including back pay), employment benefits, and other terms and conditions of his or her employment. “(C) An assessment against such contractor (at the request of the complainant) of a sum equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) reasonably incurred by the complainant for, or in connection with, bringing the complaint on which the order was issued, as determined by the Secretary. “(6) In determining whether a violation of regulations promulgated under subsection (b) has occurred, the Secretary shall use the standard of proof that is used by the Merit Systems Protection Board in proceedings under section 1221 of title 5, as described in paragraphs (1) and (2) of section 1221(e) of that title. “(d) Review and Enforcement.— (1) Any person adversely affected or aggrieved by an order issued under subsection (c)(5)(B) may obtain review of the order’s conformance with this section and the regulations promulgated under this section in the United States court of appeals for the circuit in which the violation alleged in the order occurred. No petition seeking such review may be filed more than 60 days after issuance of the Secretary’s order. Review shall conform to chapter 7 of title 5. “(2) An order of the Secretary with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in any criminal or other civil proceeding. “(3) Whenever a person has failed to comply with an order issued under subsection (c)(5)(B), the Secretary shall file an action for enforcement of such order in the United States district court for the district in which the violation was found to have occurred. In any action brought under this subsection, the court may grant appropriate relief, including injunctive relief, and compensatory and exemplary damages. “(4) Any nondiscretionary duty imposed by the regulations under this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28. “(e) Definitions.— In this section: “(1) The term ‘appropriate Government official’ includes— 104 STAT. 1619 “(A) an officer or employee of the Department of Defense responsible for command, direct staff assistance to a commander, contract administrator, program management, audit, inspection, investigation, or enforcement of any law or regulation relating to Government procurement or the subject matter of the contract; “(B) a Member of Congress or an officer or employee of Congress, the General Accounting Office, the Congressional Budget Office, or the Office of Technology Assessment; and “(C) any other officer or employee of the United States whose duties include the investigation or enforcement of any law, rule, or regulation relating to Government procurement or the subject matter of the contract. “(2) The term ‘defense contractor’ means any employer providing goods or services, under contract, to the Department of Defense. “(3) The term ‘Secretary’ means the Secretary of Defense. “(4) The term ‘information concerning a contract’ means, with respect to a contract with the Department of Defense, information about cost, price, compliance with specifications, meeting the user’s requirements, user safety, use or disposition of services, real property or personal property acquired under the contract, the procurement process (including competition, negotiation, award, and administration), and relationships with Government personnel, competitors, or subcontractors.”. (2) The table of sections at the beginning of chapter 141 of such title is amended by inserting after the item relating to section 2409 the following new item: “2409a. Communicating with Government officials: defense contractor requirement to prohibit retaliatory personnel actions.”. (b) Effective Date.— Section 2409a of title 10, United States Code, as added by subsection (a), shall apply to contracts entered into during the period beginning on the date which is 180 days after the date of the enactment of this Act. Such section shall cease to be in effect on the date which is 4 years after such date of enactment.