Attachment M - FAR Deviation 18-01 (Whistleblower Protection-Commercial).pdf

Attachment M

Department of Health and Human Service (HHS)

Federal Acquisition Regulation (FAR) Class Deviation 18‐01

Whistleblower Protection for Contractor Employees

Solicitation and Contract Addendum for Commercial Items/Services that Exceed the Simplified Acquisition Threshold

Background: The FAR currently provides that when the 4‐year pilot program under 41 U.S.C. 4712 expires, the previous whistleblower coverage is back in effect. However, the Civilian Agency Acquisition

Council (CAAC) issued CAAC Letter 2017‐02, dated July 5, 2017, to further implement 41 U.S.C. 4712 (as amended by Public Law 114‐261) to make permanent the 4‐year pilot program and clarifies the use of certain Whistleblower Protection clauses. In turn, the HHS Deputy Assistant Secretary for Office of

Grants and Acquisition Policy and Accountability/Senior Procurement Executive issued HHS FAR Class

Deviation 18‐01, dated February 8, 2018, to implement CAAC guidance and Enhance Whistleblower

Protection for Contractor Employees.

Pursuant to the above‐stated authorities, the underlying solicitation/contract hereby incorporates the following Terms and Conditions:

PART 3‐IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Subpart 3.9‐whistleblower Protections for Contractor Employees

3.900 Scope of subpart.

This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 2409, which is applicable only to DoD, NASA, and the Coast Guard.

41 U.S.C. 4705 (in effect before July 1, 2013). Sections 3.901 through 3 .906 of this subpart implemented 41 U.S.C. 4705, applicable to civilian agencies other than NASA and the Coast Guard.

41 U.S.C. 4712 (in effect on and after July 1, 2013). Section 3.908 of this subpart implements the pilot program, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph {d) of this section.

Section 743 of Division E, Title VII of the Consolidated and further Continuing Appropriations Act, 2015 (Pub. L. 113‐235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions), implemented in 3.909, applicable to all agencies.

Contracts funded by the American Recovery and Reinvestment Act. Section 3.907 of this subpart implements section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111‐ 5), and applies to all contracts funded in whole or in part by that Act.

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52.203‐17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of

Whistleblower Rights. (APR 2014)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the pilot program on Contractor employee whistleblower protections established at 41

U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112‐

239) and FAR 3.908

(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. 4712, as described in section 3.908 of the Federal Acquisition Regulation.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold.

(End of clause)

PART 52‐SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.212‐4 Contract Terms and Conditions‐Commercial Items (Deviation 2017‐02).

As prescribed in 12.301(b)(3), the following clause applies:

CONTRACT TERMS AND CONDITIONS‐COMMERCIAL ITEMS (DEVIATION 2017‐XX) (JUNE 2017)

(a)***

Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C.

1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18

U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety

Standards; 41 U.S.C. chapter 87, Kickbacks; 10 U.S.C 2409 relating to whistleblower protections; 49

U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

52.212‐5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders‐

Commercial Items (Deviation 2017‐02).

As prescribed in 12.301(b)(4), the following clause applies:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS‐

COMMERCIAL ITEMS (DEVIATION 2017‐XX) (JUNE 2017)

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The Contractor shall comply with the FAR clauses in this paragraph(b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or

Executive orders applicable to acquisitions of commercial items:

_X_ (1) 52.203‐6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I

(Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

_X_ (2) 52.203‐13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.SC. 3509).

Note: Applies only if the value of the contract is expected to exceed $5.5 million and the performance period is anticipated to be 120 days or more.

_X_ (3) 52.203‐15, Whistleblower Protections under the American Recovery and Reinvestment Act of

2009 (June 2010) (Section 1553 of Pub. L. 111‐5).

Note: Applies only to contracts funded by the American Recovery and Reinvestment Act of

2009. Please contact the FDA Contracting Officer if you have any questions regarding the application of the clause.

_X_ (4) 52.203‐17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of

Whistleblower Rights (April 2014) (41 U.S.C. 4712) relating to whistleblower protections).

The paragraphs below are renumbered

52.301 Solicitation provisions and contract clauses (Matrix).

Please see CAAC Letter 17‐02, available at:

https://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC%20Letter%202017‐02.pdf.