The U.S. Department of Justice’s (DOJ) Office of the Inspector General (OIG) has released a public memorandum warning of a serious “systemic issue” in the DOJ. The February 10 memo claims that the DOJ has failed to ensure that federal contractors and their employees are contractually informed of essential federal whistleblower rights and protections. In the memo, Inspector General Michael E. Horowitz reports that his office found numerous instances where federal contractors did not have whistleblower rights and protections included in their contracts with the federal government. The report also described situations in which contractors themselves were not aware that these rights and protections needed to be passed on to their own workers. Both of these situations point to a systemic issue at the DOJ, as it is the DOJ’s responsibility to make sure that the rights and protections are included in all of the contracts and that workers are aware of them.
Like many other branches of the federal government, the DOJ often contracts work to outside organizations. Federal law requires that in any contract above a dollar amount of $250,000, the contractors must insert a specific clause in their contract. This clause consists of the DOJ requiring contractors to fully inform their employees of their rights as potential whistleblowers. The OIG reports that in their audits of multiple contracts, they found many that were non-compliant:
“The Department has the responsibility to ensure its contractors inform their workers of whistleblower rights and protections. In various audits, we found instances where the contracting officers did not include the mandatory whistleblower protection clause in existing and new contracts. In other instances, the contract clause was included, but the contracting officers did not follow up with the contractors’ management to verify that they had informed workers of their whistleblower rights and protections as required.”
Beyond omitting the rights in contracts or failing to highlight them for employees, the OIG found other procedures that may have discouraged whistleblowing in DOJ contracting. In one case, the OIG found that while employee’s rights and protections had been made clear in the contract, the employee’s contract also “prohibited any discussions with government officials outside of the employee’s chain of command without prior authorization. Such a prohibition is also contrary to the whistleblower protections described in FAR Subpart 3.908-3(a).” The OIG claims that contracts sometimes contradicted themselves, making it difficult for potential whistleblowers to determine which course of action was compliant with their contract and which would put them in violation of it.
On August 9, 2016, the DOJ’s Justice Management Division (JMD) issued a set of guidelines for new contracts and for updating pre-existing contracts:
(1) provide contractors with a “Whistleblower Information for DOJ Contractors, Subcontractors, and Grantees” document (Whistleblower Information document);
(2) direct the contractors and subcontractors to distribute the Whistleblower Information document to their employees; and
(3) direct the contractor to provide an affirmative response notifying the DOJ of their successful distribution of the Whistleblower Information document to its employees, which should be added to the contract file.
The OIG found that even after more than four years, many contracts still stand in violation of these guidelines. These guidelines could have greatly simplified the lives of many contractors who may have struggled with contradictions in their contracts, or with the classic whistleblower conundrum of morality vs. duty.
The memo ends with recommendations to the DOJ on how to fix some of these systemic issues. First, the OIG recommends that the DOJ reacquaint its workers and contractors with the whistleblower rights and protections that they have omitted in the past. Second, it recommends developing new policies that will clarify when and how to inform contactors. These new policies would then ensure that the contractors have been informed of their whistleblower rights.