Rights and Remedies for Whistleblowers under the Defense Federal Acquisition Regulation Supplement (DFARS)

The Defense Federal Acquisition Regulations Supplement (DFARS) amended existing provisions regarding whistleblower protections for employees of Federal contractors and subcontractors.  

What is prohibited? 

As a Federal contractor/subcontractor with the Department of Defense (“DoD”), the University is prohibited from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing to any of the entities listed below (see Entities/Persons to whom disclosures may be made), information that the employee reasonably believes is evidence of any of the following: 

  • Gross mismanagement of a DoD contract
  • A gross waste of DoD funds
  • An abuse of authority relating to a DoD contract
  • A substantial and special danger to public health or safety
  • A violation of law, rule, or regulation related to a DoD contract (including the competition for or negotiation of a contract.)

A reprisal is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.  

Entities/Persons to whom disclosures may be made:

  • A Member of Congress or a representative of a committee of Congress
  • An Inspector General that receives funding from or has oversight over contracts awarded for or on behalf of DoD
  • The Government Accountability Office
  • A DoD employee responsible for contract oversight or management at the relevant agency
  • An authorized official of the Department of Justice or other law enforcement agency
  • A court or grand jury
  • A management official or other employee of the University who has the responsibility to investigate, discover, or address misconduct

Where and when complaints may be filed:  

An employee of the University who believes that he or she has been discharged, demoted, or otherwise discriminated against for having made a disclosure of the type described above may submit a complaint to the Inspector General of the Department of Defense within three (3) years of the date on which the alleged reprisal took place.  The procedures for filing the complaint are set forth in 48 CFR §203.904.

Note: This right to file a complaint with the DoD Inspector General is separate and distinct from the employee’s right to file a complaint of whistleblower retaliation under the University’s Whistleblower Protection Policy or any applicable University grievance policy.) 

Potential statutory remedies: 

If the head of the agency determines that there is sufficient basis to conclude that the University subjected the complainant to a reprisal as prohibited above, the head of the agency may take one or more of the following actions:

  • Order the University to take affirmative action to abate the reprisal.
  • Order the University 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.
  • Order the University 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.

Right to go to court

If the head of the agency issues an order denying relief or has not issued an order within 210 days after the submission of the complaint or within 30 days after the expiration of an extension of time and there is no showing that such delay is due to the bad faith of the complainant, then:

  • The complainant will 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 University to seek compensatory damages and other relief available under 10 U.S.C. 2409 in the appropriate district court of the United States, which shall have jurisdiction over such action without regard to the amount in controversy.  Such an action shall, at the request of either party to the action, be tried by the court with a jury.  The complaint must be filed within two (2) years of the date on which remedies are deemed to have been exhausted.