The Federal Government wants employees of contractors and subcontract and independent contractors to disclose to the government instances of fraud, waste, abuse of authority; violations of law, regulations or policies; or substantial and specific danger to public health or safety. Once someone makes a disclosure of this nature, laws and regulations protect them so they may not be fired, demoted or otherwise discriminated against for disclosing the information.

If they are subject to any sort of reprisal for making the disclosure, they may file a complaint with an agency’s Inspector General (IG).   

Once a person raises such a concern, if they are subject to any sort of reprisal for doing so, they may file a complaint with an agency’s Inspector General (IG).   

Once a person files a complaint with IG, the IG that MUST investigate the complaint unless the IG finds that the complaint has no merit. If the IG finds there was no merit to the complaint, the IG must notify the complainant.

If the IG finds there was improper behavior, after completing the investigation, the IG must submit a report with its findings to the person who complained; to the contractor who was the subject of the complaint; and to the head of the government agency at issue.  

Both the complainant and the contractor have the right to submit a written response to the head of the agency within 30 days of the report. Agency heads will usually grant extensions of time if requested.  

At any time, the agency can ask the IG to conduct further investigation.

If the agency head finds that there was adverse action against the complaining person, then the agency head must issue an order to the contractor to:

  • Affirmatively end any adverse actions against the person
  • Reinstate the complaining person to the position that the person held before the adverse action was taken and provide any compensatory damages, including back pay, employment benefits, and any other employment benefits or conditions that the person had before the retaliation
  • Pay the complainant the total of all reasonable costs and expenses including attorneys’ fees and expert witnesses’ fees that the complaint incurred to bring the complaint.

If the contractor does not follow the order, the agency may bring in DOJ to file an enforcement action against the contractor.  The court can then use its powers to order damages, reinstate or otherwise give the complainant its employment benefits.

If the contractor believes the IG and the agency were wrong, then, the contractor can get the matter reviewed in the federal court of appeals.  

Given this, if you are a federal government contractor, you need to:

  • Be aware of the potential for these types of Inspector General investigations.
  • Assure that your company is ready to conduct its own internal investigation and to defend in the event you are notified that your company is under IG investigation.  
  • Review your insurance policies to see if it covers the costs of these types of investigations
  • Make sure that you do not have any confidentiality agreements or any confidentiality requirements at all that could be construed as prohibiting your employees, subcontractors, or independent contractors from making such disclosures. In fact, when you submit your proposal or are awarded a contract – you certify you don’t have any confidentiality requirements that limit these types of disclosures to the government
  • Inform your employees of their right to raise concerns with the government
  • Remember not only can your employees file these types of complaints against you but so can independent contractors, subcontractors and even employees of other contractors working with your organization on government contracts
  • Flowdown these requirements in your subcontracts

Finally, one of the most effective ways an organization can avoid these costly and time-consuming investigations – is when someone is knocking around your organization making complaints about something – take that opportunity to listen and respond. Otherwise, those complaints may end up with the IG.

“A pessimist is somebody who complains about the noise when opportunity knocks.”

-Oscar Wilde

The intersection of law, business, criminal activity crime and ethics: why do some companies violate the law? what happens when they do? what is ethical? how do we get corporations to follow the law? can lawyers help and, if so, what is the lawyer’s role? Stay tuned, we’re going to address all of these issues and more in When the Writ Hits the Fan.
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