Strengthened whistleblower protections approved by Congress are now written into most but not all major contracts at the U.S. Energy Department, according to a DOE Office of Inspector General report dated Nov. 4.
The office reviewed 30 of DOE’s largest contracts, together worth about $386 billion – or 94% of the agency’s $411 billion in contract spending as of January 2019.
Only two agreements don’t yet have the added protections language. One is Bechtel’s contract for construction of the $17 billion Waste Treatment Plant (WTP) at the Hanford Site in Washington state. The other is held by AECOM-led URS-CH2M Oak Ridge (UCOR), which has the $3.2 billion business through July 2020 for remediation of the Oak Ridge Site in Tennessee.
Bechtel directly accounts for 1,300 of the full 3,000-person workforce at the Waste Treatment Plant project, while UCOR has 1,800 employees at Oak Ridge.
The list of the 30 contracts were not made available in the report. At least one contractor outside DOE’s Office of Environmental Management, Idaho National Laboratory manager Battelle, was interviewed for the evaluation.
Congress expanded whistleblower protections for employees of DOE contractors and subcontractors in the National Defense Authorization Act for fiscal 2013. The changes include the ability to take complaints against employers directly to the Office of Inspector General rather than going through Energy Department field office or headquarters.
The updated standards also seek to clarify that “protected activity” can include allegations of gross mismanagement of federal contract or funds; abuse of contract authority; causing significant danger to public health or safety; or violations of a federal rule or contract. The revised protections also stipulate that whistleblowers can make disclosures to the Government Accountability Office, the Justice Department, law enforcement agencies, or a grand jury.
The Hanford Site, the most costly and complex DOE cleanup site, has experienced its share of whistleblower disputes over the years. In August 2015, Hanford subcontractor URS Energy & Construction, now part of AECOM, settled a suit with ex-employee Walter Tamosaitis for $4.1 million. The former worker alleged he was punished and eventually laid off after he raised questions about the future safe operation of the Waste Treatment Plant.
The Energy Department was supposed to insert the language by September 2018 into existing contracts of at least $250,000. The clause is only mandatory for new contracts issued after the 2013 enactment. However, the Energy Department issued guidance in October 2013 encouraging vendors to add the new Federal Acquisition Regulation language into existing deals when major modifications are made.
Both the Bechtel WTP contract and the UCOR award predate the law. Energy Department contracting officers contacted the companies in 2016 and 2015, when the contracts were modified, but the vendors declined to add the updated language, according to the IG report.
Employees at these two contractors are still covered under the existing DOE whistleblower program, but they have not been given the expanded rights, which also include an increased statute of limitations from 90 days to three years for filing a complaint for employer retaliation, the OIG said.
The contractors “did not agree to include [the updated protections] in their contracts, citing numerous reasons,” according to the report. The two vendors noted the clause is mandatory only for new contracts, whistleblower protections already exist, “and the addition could potentially create additional costs.”
There was ultimately no way to insert the updated protections in these two agreements without contractor acceptance, the IG said.
“We are committed to maintaining a work environment that encourages employees to raise concerns without fear of retaliation,” said Bechtel spokeswoman Staci West in an email. “Our employees have multiple ways to raise concerns, including anonymously, under the existing contract.”
The Office of Inspector General started its review in November 2018 and finished in August. The office interviewed federal officials and managers from UCOR, Bechtel, Jacobs subsidiary CH2M Hill Plateau Remediation, and Battelle Energy Alliance. CH2M Hill Plateau is a cleanup contractor at the Hanford Site. The Battelle-led Energy Alliance manages the Idaho National Laboratory.
Deputy Energy Secretary Dan Brouillette told the Senate Energy and Natural Resources Committee on Thursday that getting the latest whistleblower protections in DOE contracts is important to him. The Senate panel is considering Brouillette’s nomination to succeed Rick Perry as secretary of energy. Perry has resigned effective Dec. 1.
