DoD, GSA, and NASA issued a final rule effective January 19, 2017, that amended the FAR to prohibit the use of funds for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts them from lawfully reporting waste, fraud, or abuse to a designated government representative. The rule specifically cites the agency's Office of the Inspector General (OIG) as a designated investigative or law enforcement representative of a federal department or agency. The rule adds that a contractor is required to give notice only to current employees and subcontractors that any prohibitions against and restrictions of any preexisting confidentiality agreements or statements covered by the rule are no longer in effect, to the extent that such prohibitions and restrictions are in conflict with the aforementioned prohibitions. The definition of "internal confidentiality agreement or statement" excludes confidentiality agreements arising out of civil litigation or agreements signed at the behest of a federal agency. This rule encompasses contractors and subcontractors alike. Whether the rule will lead to increased reporting remains to be seen.
Ombudsman Jurisdiction over Fair Opportunity Complaints
GSA issued a final rule effective January 9, 2017, that amended the General Services Administration Acquisition Regulation (GSAR) to clarify that the ordering-agency task and delivery order ombudsman has jurisdiction and responsibility to review and resolve fair opportunity complaints on tasks and delivery orders placed against GSA multiple-award contracts. The final rule also requires the ordering agency to include contact information for their task and delivery order ombudsman when placing task or delivery orders against GSA multiple-award contracts. Finally, the rule requires the contractor to provide a copy of its complaint to the GSA procurement ombudsman at the same time it files its complaint with the ordering agency.