Expanding Whistleblower Protections for Contractors Act of 2024

II Calendar No. 448 118TH CONGRESS 2D SESSION S. 1524 [Report No. 118–202] To ensure that whistleblowers, including contractors, are protected from retaliation when a Federal employee orders a reprisal, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 10, 2023 Mr. PETERS (for himself and Mr. BRAUN) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs JULY 29, 2024 Reported by Mr. PETERS, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To ensure that whistleblowers, including contractors, are pro- tected from retaliation when a Federal employee orders a reprisal, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Expanding Whistle- 4 blower Protections for Contractors Act of 2023’’. 5 VerDate Sep 11 2014 00:34 Jul 30, 2024 Jkt 049200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 2 •S 1524 RS SEC. 2. DEFENSE CONTRACTOR EMPLOYEES: PROTECTION 1 FROM REPRISAL FOR DISCLOSURE OF CER- 2 TAIN INFORMATION. 3 Section 4701 of title 10, United States Code, is 4 amended— 5 (1) in subsection (a)— 6 (A) in paragraph (1)— 7 (i) in the matter preceding subpara- 8 graph (A)— 9 (I) by striking ‘‘An employee’’ 10 and all that follows through ‘‘services 11 contractor’’ and inserting ‘‘A pro- 12 tected individual’’; and 13 (II) by striking ‘‘disclosing’’ and 14 all that follows through ‘‘evidence of’’; 15 and 16 (ii) by striking subparagraphs (A), 17 (B), and (C) and inserting the following 18 subparagraphs: 19 ‘‘(A) Objecting or refusing to participate in any 20 activity, policy, practice, or assigned task that the 21 protected individual reasonably believes to be in vio- 22 lation of any law, rule, order, or regulation related 23 to any contract, subcontract, grant, or subgrant. 24 ‘‘(B) Disclosing to a person or body described 25 in paragraph (2) information that the protected indi- 26 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 3 •S 1524 RS vidual reasonably believes is evidence of the fol- 1 lowing: 2 ‘‘(i) Gross mismanagement of any Depart- 3 ment of Defense contract or grant, any gross 4 waste of Department funds, any abuse of au- 5 thority relating to any Department contract, 6 subcontract, grant, or subgrant, or any viola- 7 tion of law, rule, or regulation related to any 8 Department contract or subcontract (including 9 the competition for or negotiation of a contract 10 or subcontract) or grant or subgrant. 11 ‘‘(ii) Gross mismanagement of any Na- 12 tional Aeronautics and Space Administration 13 contract or grant, any gross waste of Adminis- 14 tration funds, any abuse of authority relating to 15 an Administration contract, subcontract, grant, 16 or subgrant, or any violation of law, rule, or 17 regulation related to any Administration con- 18 tract or subcontract (including the competition 19 for or negotiation of a contract or subcontract) 20 or grant or subgrant. 21 ‘‘(iii) A substantial and specific danger to 22 public health or safety.’’; and 23 (B) in paragraph (3)— 24 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 4 •S 1524 RS (i) in subparagraph (A), by striking 1 ‘‘an employee’’ and inserting ‘‘a protected 2 individual’’; and 3 (ii) by striking subparagraph (B) and 4 inserting the following subparagraph: 5 ‘‘(B) it shall not be within the authority of an 6 executive branch official to request that a con- 7 tractor, subcontractor, grantee, or subgrantee en- 8 gage in a reprisal prohibited by paragraph (1).’’; 9 (2) in subsection (c)— 10 (A) in paragraph (1), by adding at the end 11 the following subparagraph: 12 ‘‘(E) Propose appropriate disciplinary action 13 against any executive branch official for any request 14 made of a contractor, subcontractor, grantee, or sub- 15 grantee that subjected the complainant to a reprisal 16 prohibited by subsection (a).’’; and 17 (B) by striking paragraph (7) and insert- 18 ing the following paragraph: 19 ‘‘(7) CLARIFICATION FOR SCOPE OF WAIVER RE- 20 STRICTIONS.—(A) The rights, forum, and remedies pro- 21 vided for in this section may not be waived by any public 22 or private agreement, policy, form, or condition of employ- 23 ment, including by any predispute arbitration agreement. 24 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 5 •S 1524 RS ‘‘(B) No predispute arbitration agreement shall be 1 valid or enforceable if it requires arbitration of a dispute 2 arising under this section.’’; 3 (3) in subsection (f)— 4 (A) by striking ‘‘an employee’’ and insert- 5 ing ‘‘a protected individual’’; and 6 (B) by striking ‘‘the employee’’ and insert- 7 ing ‘‘the protected individual’’; 8 (4) by redesignating subsection (g) as sub- 9 section (h); 10 (5) by inserting after subsection (f) the fol- 11 lowing new subsection: 12 ‘‘(g) AFFIRMATIVE DEFENSE.—Engaging in any ac- 13 tivity protected against reprisal under this section shall 14 be an affirmative defense in any civil or criminal action 15 that seeks liability for engaging in such activity.’’; and 16 (6) in subsection (h), as so redesignated— 17 (A) in paragraph (3), by inserting ‘‘, in- 18 cluding any ‘Federal award’ as defined in sec- 19 tion 2(a) of the Federal Funding Accountability 20 and Transparency Act of 2006 (31 U.S.C. 6101 21 note)’’ after ‘‘agency’’; 22 (B) in paragraph (4), by inserting ‘‘, in- 23 cluding any person that is recipient of a ‘Fed- 24 eral award’ as defined in section 2(a) of the 25 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 6 •S 1524 RS Federal Funding Accountability and Trans- 1 parency Act of 2006 (31 U.S.C. 6101 note)’’ 2 after ‘‘agency’’; and 3 (C) by adding at the end the following new 4 paragraph: 5 ‘‘(8) The term ‘protected individual’ means— 6 ‘‘(A) a contractor, subcontractor, grantee, 7 or subgrantee of the Department of Defense or 8 the National Aeronautics and Space Adminis- 9 tration, including— 10 ‘‘(i) the government of each of the 11 several States, the District of Columbia, an 12 Indian tribe or authorized tribal organiza- 13 tion, the Commonwealth of Puerto Rico, 14 Guam, American Samoa, the Virgin Is- 15 lands, the Commonwealth of the Northern 16 Mariana Islands, or any other territory or 17 possession of the United States; 18 ‘‘(ii) the government of any political 19 subdivision of, agency of, or instrumen- 20 tality of, a government listed in clause (i); 21 and 22 ‘‘(iii) any entity that is recipient of a 23 ‘Federal award’ as defined in section 2(a) 24 of the Federal Funding Accountability and 25 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 7 •S 1524 RS Transparency Act of 2006 (31 U.S.C. 1 6101 note); 2 ‘‘(B) an employee, applicant, or former 3 employee of a contractor, subcontractor, grant- 4 ee, or subgrantee of the Department of Defense 5 or the National Aeronautics and Space Admin- 6 istration, including an employee of— 7 ‘‘(i) the government of each of the 8 several States, the District of Columbia, an 9 Indian tribe or authorized tribal organiza- 10 tion, the Commonwealth of Puerto Rico, 11 Guam, American Samoa, the Virgin Is- 12 lands, the Commonwealth of the Northern 13 Mariana Islands, or any other territory or 14 possession of the United States; and 15 ‘‘(ii) the government of any political 16 subdivision of, agency of, or instrumen- 17 tality of, a government listed in clause (i); 18 or 19 ‘‘(C) a person performing personal services 20 for the Department of Defense or the National 21 Aeronautics and Space Administration pursuant 22 to a contractual agreement for the performance 23 of personal services, including a personal serv- 24 ices contract or personal services agreement, 25 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 8 •S 1524 RS and who engages in an activity for which any 1 reprisal is prohibited under subsection (a), in- 2 cluding a person performing personal services 3 pursuant such a contractual agreement for— 4 ‘‘(i) the government of each of the 5 several States, the District of Columbia, an 6 Indian tribe or authorized tribal organiza- 7 tion, the Commonwealth of Puerto Rico, 8 Guam, American Samoa, the Virgin Is- 9 lands, the Commonwealth of the Northern 10 Mariana Islands, or any other territory or 11 possession of the United States; and 12 ‘‘(ii) the government of any political 13 subdivision of, agency of, or instrumen- 14 tality of, a government listed in clause 15 (i).’’. 16 SEC. 3. ENHANCEMENT OF NON-DEFENSE CONTRACTOR 17 PROTECTION FROM REPRISAL FOR DISCLO- 18 SURE OF CERTAIN INFORMATION. 19 Section 4712 of title 41, United States Code, is 20 amended— 21 (1) in subsection (a)— 22 (A) by striking paragraph (1) and insert- 23 ing the following paragraph: 24 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 9 •S 1524 RS ‘‘(1) IN GENERAL.—A protected individual may 1 not be discharged, demoted, or otherwise discrimi- 2 nated against as a reprisal for the following: 3 ‘‘(A) Objecting or refusing to participate in 4 any activity, policy, practice, or assigned task 5 that the protected individual reasonably believes 6 to be in violation of any law, rule, order, or reg- 7 ulation related to any contract, subcontract, 8 grant, or subgrant. 9 ‘‘(B) Disclosing to a person or body de- 10 scribed in paragraph (2) information that the 11 protected individual reasonably believes is evi- 12 dence of the following: 13 ‘‘(i) Gross mismanagement of any 14 Federal contract or grant, any gross waste 15 of Federal funds, any abuse of authority 16 relating to any Federal contract, sub- 17 contract, grant, or subgrant, or any viola- 18 tion of law, rule, or regulation related to 19 any Federal contract or subcontract (in- 20 cluding the competition for or negotiation 21 of a contract or subcontract) or grant or 22 subgrant. 23 ‘‘(ii) A substantial and specific danger 24 to public health or safety.’’; and 25 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 10 •S 1524 RS (B) in paragraph (3)— 1 (i) in subparagraph (A), by striking 2 ‘‘an employee’’ and inserting ‘‘a protected 3 individual’’; and 4 (ii) by striking subparagraph (B) and 5 inserting the following subparagraph: 6 ‘‘(B) it shall not be within the authority of 7 an executive branch official to request that a 8 contractor, subcontractor, grantee, or sub- 9 grantee engage in a reprisal prohibited by para- 10 graph (1).’’; 11 (2) in subsection (c)— 12 (A) in paragraph (1), by adding at the end 13 the following new subparagraph: 14 ‘‘(E) Propose appropriate disciplinary ac- 15 tion against any executive branch official for 16 any request made of a contractor, subcon- 17 tractor, grantee, or subgrantee that subjected 18 the complainant to a reprisal prohibited by sub- 19 section (a).’’; and 20 (B) by striking paragraph (7) and insert- 21 ing the following paragraph: 22 ‘‘(7) RIGHTS, FORUM, AND REMEDIES NOT 23 WAIVABLE.— 24 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 11 •S 1524 RS ‘‘(A) IN GENERAL.—The rights, forum, 1 and remedies provided for in this section may 2 not be waived by any public or private agree- 3 ment, policy, form, or condition of employment, 4 including by any predispute arbitration agree- 5 ment. 6 ‘‘(B) VALIDITY.—No predispute arbitra- 7 tion agreement shall be valid or enforceable if 8 it requires arbitration of a dispute arising 9 under this section.’’; 10 (3) in subsection (e)— 11 (A) by striking ‘‘an employee’’ and insert- 12 ing ‘‘a protected individual’’; and 13 (B) by striking ‘‘the employee’’ and insert- 14 ing ‘‘the protected individual’’; 15 (4) in subsection (g)— 16 (A) by redesignating paragraph (2) as 17 paragraph (3); 18 (B) by inserting after paragraph (1) the 19 following new paragraph (2): 20 ‘‘(2) The term ‘contract’ includes any ‘Federal 21 award’ as defined in section 2(a) of the Federal 22 Funding Accountability and Transparency Act of 23 2006 (31 U.S.C. 6101 note).’’; and 24 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 12 •S 1524 RS (C) by inserting after paragraph (3), as so 1 redesignated, the following new paragraph: 2 ‘‘(4) The term ‘protected individual’ means— 3 ‘‘(A) a contractor, subcontractor, grantee, 4 or subgrantee of the Federal Government, in- 5 cluding— 6 ‘‘(i) the government of each of the 7 several States, the District of Columbia, an 8 Indian tribe or authorized tribal organiza- 9 tion, the Commonwealth of Puerto Rico, 10 Guam, American Samoa, the Virgin Is- 11 lands, the Commonwealth of the Northern 12 Mariana Islands, or any other territory or 13 possession of the United States; 14 ‘‘(ii) the government of any political 15 subdivision of, agency of, or instrumen- 16 tality of, a government listed in clause (i); 17 and 18 ‘‘(iii) any entity that is recipient of a 19 ‘Federal award’ as defined in section 2(a) 20 of the Federal Funding Accountability and 21 Transparency Act of 2006 (31 U.S.C. 22 6101 note); 23 ‘‘(B) an employee, applicant, or former 24 employee of a contractor, subcontractor, grant- 25 VerDate Sep 11 2014 23:40 Jul 29, 2024 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S1524.RS S1524 ugoodwin on DSK126QN23PROD with BILLS 13 •S 1524 RS ee, or subgrantee of the Federal Government, 1 including an employee of— 2 ‘‘(i) the government of each of the 3 several States, the District of Columbia, an 4 Indian tribe or authorized tribal organiza- 5 tion, the Commonwealth of Puerto Rico, 6 Guam, American Samoa, the Virgin Is- 7 lands, the Commonwealth of the Northern 8 Mariana Islands, or any other territory or 9 possession of the United States; and 10 ‘‘(ii) the government of any political 11 subdivision of, agency of, or instrum [Text truncated for display. 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