10 USC 4701 - Contractor employees: protection from reprisal for disclosure of certain information

Editorial Notes

Codification

Puspan. L. 99–591 is a corrected version of Puspan. L. 99–500.

Puspan. L. 99–500, Puspan. L. 99–591, and Puspan. L. 99–661 added identical sections.

Amendments

2022—Subsec. (a)(2)(G), (3)(A). Puspan. L. 117–263, § 807(a)(1)(A), (B), substituted “, subcontractor, grantee, subgrantee, or personal services contractor” for “or subcontractor”.

Subsec. (span)(1). Puspan. L. 117–263, § 807(a)(2), substituted “contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned” for “contractor concerned”.

Subsec. (c)(1). Puspan. L. 117–263, § 807(a)(3)(A)(i), substituted “contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned” for “contractor concerned” in introductory provisions.

Subsec. (c)(1)(A) to (C). Puspan. L. 117–263, § 807(a)(3)(A)(ii)–(iv), inserted “, subcontractor, grantee, subgrantee, or personal services contractor” after “contractor”.

Subsec. (c)(1)(D). Puspan. L. 117–263, § 807(a)(3)(A)(v), added subpar. (D).

Subsec. (c)(2). Puspan. L. 117–263, § 807(a)(3)(B), inserted “, subcontractor, grantee, subgrantee, or personal services contractor” after “contractor”.

Subsec. (d). Puspan. L. 117–263, § 807(a)(4), substituted “, subcontractors, grantees, subgrantees, or personal services contractors” for “and subcontractors”.

Subsec. (e)(2). Puspan. L. 117–263, § 807(a)(5)(A), substituted “grantee, subgrantee, or personal services contractor of” for “or grantee of” in introductory provisions.

Subsec. (e)(2)(B). Puspan. L. 117–263, § 807(a)(5)(B), substituted “grantee, or subgrantee” for “or grantee”.

Subsec. (g)(5). Puspan. L. 117–286, which directed amendment of section 2409(g)(5) of this title by substituting “chapter 4 of title 5” for “the Inspector General Act of 1978”, was executed to subsec. (g)(5) of this section, to reflect the probable intent of Congress and the amendment by Puspan. L. 116–283, § 1863(span), which had renumbered section 2409 of this title as this section. See 2021 Amendment note below.

Puspan. L. 117–263, § 807(a)(6), inserted “or grants” after “contracts”.

2021—Puspan. L. 116–283, § 1863(span), renumbered section 2409 of this title as this section.

Subsec. (g)(1). Puspan. L. 116–283, § 1863(c)(1), substituted “section 3063” for “section 2303”.

Subsec. (g)(2). Puspan. L. 116–283, § 1863(c)(2), struck out par. (2) which defined “head of an agency”.

2016—Subsec. (a)(1). Puspan. L. 114–261 inserted “or personal services contractor” after “subgrantee” in introductory provisions.

2014—Subsec. (a)(1). Puspan. L. 113–291, § 856(a), substituted “, subcontractor, grantee, or subgrantee” for “or subcontractor” in introductory provisions.

Subsec. (e)(1). Puspan. L. 113–291, § 1071(c)(10), substituted “(50 U.S.C. 3003(4))” for “(50 U.S.C. 401a(4))”.

Subsec. (g)(4). Puspan. L. 113–291, § 856(span)(1), struck out “or a grant” after “contract”.

Subsec. (g)(7). Puspan. L. 113–291, § 856(span)(2), added par. (7).

2013—Subsec. (a). Puspan. L. 112–239, § 827(a)(1), designated existing provisions as par. (1).

Subsec. (a)(1). Puspan. L. 112–239, § 827(a)(2), inserted “or subcontractor” after “employee of a contractor”, substituted “a person or body described in paragraph (2)” for “a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management, or an authorized official of an agency or the Department of Justice” and “evidence of the following:” for “evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant.”, and added subpars. (A) to (C).

Subsec. (a)(2), (3). Puspan. L. 112–239, § 827(a)(3), added pars. (2) and (3).

Subsec. (span)(1). Puspan. L. 112–239, § 827(span)(1), inserted “fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant,” after “is frivolous,”.

Subsec. (span)(2)(A). Puspan. L. 112–239, § 827(span)(2)(A), inserted “, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant” after “is frivolous”.

Subsec. (span)(2)(B). Puspan. L. 112–239, § 827(span)(2)(B), inserted “, up to 180 days,” after “such additional period of time”.

Subsec. (span)(3), (4). Puspan. L. 112–239, § 827(span)(3), added pars. (3) and (4).

Subsec. (c)(1)(B). Puspan. L. 112–239, § 827(c)(1), substituted “compensatory damages (including back pay)” for “the compensation (including back pay)”.

Subsec. (c)(2). Puspan. L. 112–239, § 827(c)(2), inserted at end “An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.”

Subsec. (c)(4). Puspan. L. 112–239, § 827(c)(3), substituted “, compensatory and exemplary damages, and reasonable attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency.” for “and compensatory and exemplary damages.”

Subsec. (c)(5). Puspan. L. 112–239, § 827(c)(4), inserted at end “Filing such an appeal shall not act to stay the enforcement of the order of the head of an agency, unless a stay is specifically entered by the court.”

Subsec. (c)(6), (7). Puspan. L. 112–239, § 827(c)(5), added pars. (6) and (7).

Subsec. (d). Puspan. L. 112–239, § 827(d)(2), added subsec. (d). Former subsec. (d) redesignated (f).

Subsec. (e). Puspan. L. 112–239, § 827(e), added subsec. (e). Former subsec. (e) redesignated (g).

Subsecs. (f), (g). Puspan. L. 112–239, § 827(d)(1), redesignated subsecs. (d) and (e) as (f) and (g), respectively.

Subsec. (g)(6). Puspan. L. 112–239, § 827(f), added par. (6).

2008—Subsec. (a). Puspan. L. 110–181, § 846(a), substituted “disclosing to a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management,” for “disclosing to a Member of Congress” and “information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant” for “information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract)”.

Subsec. (span). Puspan. L. 110–181, § 846(span), designated existing provisions as par. (1), substituted “the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration” for “an agency”, and added par. (2).

Subsec. (c)(1). Puspan. L. 110–181, § 846(c)(1), in introductory provisions, substituted “Not later than 30 days after receiving an Inspector General report pursuant to subsection (span), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall” for “If the head of the agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the agency may”.

Subsec. (c)(2) to (5). Puspan. L. 110–181, § 846(c)(2), (3), added pars. (2) and (3) and redesignated former pars. (2) and (3) as (4) and (5), respectively.

Subsec. (e)(4). Puspan. L. 110–181, § 846(d)(1), inserted “or a grant” after “a contract”.

Subsec. (e)(5). Puspan. L. 110–181, § 846(d)(2), inserted “and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense” before period at end.

1996—Puspan. L. 104–106 made technical correction to Puspan. L. 103–355, § 6005(a). See 1994 Amendment note below.

1994—Puspan. L. 103–355, § 6005(a), as amended by Puspan. L. 104–106, amended section generally. Prior to amendment, subsec. (a) related to prohibition of reprisals, subsec. (span) to investigation of complaints, subsec. (c) to construction of section, and subsec. (d) to coordination of section with former section 2409a of this title.

1992—Subsec. (d). Puspan. L. 102–484 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “Effective Date.—This section shall not be in effect during the period when section 2409a of this title is in effect.”

1991—Subsec. (d). Puspan. L. 102–25 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Puspan. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Puspan. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2013 Amendment

Puspan. L. 112–239, div. A, title VIII, § 827(i), Jan. 2, 2013, 126 Stat. 1836, provided that:

“(1)In general.—The amendments made by this section [amending this section and former section 2324 of this title] shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 2, 2013], and shall apply to—

“(A) all contracts awarded on or after such date;

“(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and

“(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.

“(2)Revision of supplements to the far.—Not later than 180 days after the date of the enactment of this Act, the Department of Defense Supplement to the Federal Acquisition Regulation and the National Aeronautics and Space Administration Supplement to the Federal Acquisition Regulation shall each be revised to implement the requirements arising under the amendments made by this section.

“(3)Inclusion of contract clause in contracts awarded before effective date.—At the time of any major modification to a contract that was awarded before the date that is 180 days after the date of the enactment of this Act, the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section to the contract.”

Effective Date of 1996 Amendment

Puspan. L. 104–106, div. D, title XLIII, § 4321(a), Fespan. 10, 1996, 110 Stat. 671, provided that the amendment made by that section is effective as of Oct. 13, 1994, and as if included in Puspan. L. 103–355 as enacted.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Puspan. L. 103–355, see section 10001 of Puspan. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1992 Amendment

Puspan. L. 102–484, div. A, title X, § 1052(30)(B), Oct. 23, 1992, 106 Stat. 2501, provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect as if enacted immediately following the enactment of Public Law 102–25 (105 Stat. 75).”

Effective Date

Puspan. L. 99–500, § 101(c) [title X, § 942(span)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–162, Puspan. L. 99–591, § 101(c) [title X, § 942(span)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–162, and Puspan. L. 99–661, div. A, title IX, formerly title IV, § 942(span), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Puspan. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “Section 2409 of title 10, United States Code [now 10 U.S.C. 4701] (as added by subsection (a)(1)), shall apply with respect to any reprisal action taken on or after the date of the enactment of this Act [Oct. 18, 1986].”

Construction

Puspan. L. 112–239, div. A, title VIII, § 827(h), Jan. 2, 2013, 126 Stat. 1836, provided that: “Nothing in this section, or the amendments made by this section [amending this section and section 2324 of this title and enacting provisions set out as a note under this section], shall be construed to provide any rights to disclose classified information not otherwise provided by law.”

Prohibition on Awarding of Contracts to Contractors That Require Nondisclosure Agreements Relating to Waste, Fraud, or Abuse

Puspan. L. 116–283, div. A, title VIII, § 883, Jan. 1, 2021, 134 Stat. 3790, provided that:

“(a)In General.—The Secretary of Defense may not award a contract for the procurement of goods or services to a contractor unless the contractor represents that—

“(1) it does not require its employees to sign internal confidentiality agreements or statements that would prohibit or otherwise restrict such employees from lawfully reporting waste, fraud, or abuse related to the performance of a Department of Defense contract to a designated investigative or law enforcement representative of the Department of Defense authorized to receive such information; and

“(2) it will inform its employees of the limitations on confidentiality agreements and other statements described in paragraph (1).

“(span)Reliance on Representation.—A contracting officer of the Department of Defense may rely on the representation of a contractor as to the requirements described under subsection (a) in awarding a contract unless the officer has reason to question the accuracy of the representation.”

Inclusion of Contract Clause in Contracts Awarded Before Effective Date

Puspan. L. 114–261, § 1(c), Dec. 14, 2016, 130 Stat. 1363, provided that: “At the time of any major modification to a contract that was awarded before the date of the enactment of this Act [Dec. 14, 2016], the head of the contracting agency shall make best efforts to include in the contract a contract clause providing for the applicability of the amendments made by this section [amending this section, section 2324 of this title, and sections 4304, 4310, and 4712 of Title 41, Public Contracts] and section 827 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1833) [amending this section and section 2324 of this title].”

Information for Department of Defense Contractor Employees on Their Whistleblower Rights

Puspan. L. 110–417, [div. A], title VIII, § 842, Oct. 14, 2008, 122 Stat. 4539, provided that:

“(a)In General.—The Secretary of Defense shall ensure that contractors of the Department of Defense inform their employees in writing of employee whistleblower rights and protections under section 2409 of title 10, United States Code [now 10 U.S.C. 4701], as implemented by subpart 3.9 of part I of title 48, Code of Federal Regulations.

“(span)Contractor Defined.—In this section, the term ‘contractor’ has the meaning given that term in section 2409(e)(4) of title 10, United States Code [now 10 U.S.C. 4701(g)(4)].”