41 U.S.C. § 4705 — Protection of contractor employees from

Page 140 TITLE 41—PUBLIC CONTRACTS § 4704 or subcontractor, as appropriate, is liable to the Federal Government for payment of the cost to the Federal Government of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the Fed- eral Government in challenging the asserted restriction, unless special circumstances would make the payment unjust. (2) CHALLENGE NOT SUSTAINED.—If the con- tracting officer’s challenge to the restriction on the right of the Federal Government to use technical data is not sustained on final dis- position, the Federal Government— (A) continues to be bound by the restric- tion; and (B) is liable for payment to the party as- serting the restriction for fees and other ex- penses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restric- tion if the challenge by the Federal Govern- ment is found not to be made in good faith. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3794.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4703(a) ........ 41:253d(a). June 30, 1949, ch. 288, title III, § 303D, formerly § 303E, as added Pub. L. 98–577, title II, § 203(a), Oct. 30, 1984, 98 Stat. 3071; renum- bered § 303D, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. 4703(b) ........ 41:253d(b). 4703(c) ........ 41:253d(c) (1st sen- tence). 4703(d) ........ 41:253d(c) (last sen- tence). 4703(e) ........ 41:253d(d). 4703(f) ........ 41:253d(e). 4703(g) ........ 41:253d(f). § 4704. Prohibition of contractors limiting sub- contractor sales directly to Federal Govern- ment (a) CONTRACT RESTRICTIONS.—Each contract for the purchase of property or services made by an executive agency shall provide that the con- tractor will not— (1) enter into an agreement with a subcon- tractor under the contract that has the effect of unreasonably restricting sales by the sub- contractor directly to the Federal Govern- ment of any item or process (including com- puter software) made or furnished by the sub- contractor under the contract (or any follow- on production contract); or (2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Gov- ernment. (b) RIGHTS UNDER LAW PRESERVED.—This sec- tion does not prohibit a contractor from assert- ing rights it otherwise has under law. (c) INAPPLICABILITY TO CERTAIN CONTRACTS.— This section does not apply to a contract for an amount that is not greater than the simplified acquisition threshold. (d) INAPPLICABILITY WHEN GOVERNMENT TREAT- ED SIMILARLY TO OTHER PURCHASERS.—An agree- ment between the contractor in a contract for the acquisition of commercial products or com- mercial services and a subcontractor under the contract that restricts sales by the subcon- tractor directly to persons other than the con- tractor may not be considered to unreasonably restrict sales by that subcontractor to the Fed- eral Government in violation of the provision included in the contract pursuant to subsection (a) if the agreement does not result in the Fed- eral Government being treated differently with regard to the restriction than any other prospec- tive purchaser of the commercial products or commercial services from that subcontractor. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3795; Pub. L. 115–232, div. A, title VIII, § 836(b)(19), Aug. 13, 2018, 132 Stat. 1864.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4704(a) ........ 41:253g(a). June 30, 1949, ch. 288, title III, § 303G(a), (b), formerly § 303H, as added Pub. L. 98–577, title II, § 206(a), Oct. 30, 1984, 98 Stat. 3073; renumbered § 303G, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. 4704(b) ........ 41:253g(b). 4704(c) ........ 41:253g(c). June 30, 1949, ch. 288, title III, § 303G(c), as added Pub. L. 103–355, title IV, § 4103(b), Oct. 13, 1994, 108 Stat. 3341. 4704(d) ........ 41:253g(d). June 30, 1949, ch. 288, title III, § 303G(d), as added Pub. L. 103–355, title VIII, § 8204(a), Oct. 13, 1994, 108 Stat. 3396. Editorial Notes AMENDMENTS 2018—Subsec. (d). Pub. L. 115–232 substituted ‘‘com- mercial products or commercial services’’ for ‘‘com- mercial items’’ in two places. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 4705. Protection of contractor employees from reprisal for disclosure of certain information (a) DEFINITIONS.—In this section: (1) CONTRACT.—The term ‘‘contract’’ means a contract awarded by the head of an executive agency. (2) CONTRACTOR.—The term ‘‘contractor’’ means a person awarded a contract with an ex- ecutive agency. (3) INSPECTOR GENERAL.—The term ‘‘Inspec- tor General’’ means an Inspector General ap- pointed under chapter 4 of title 5. (b) PROHIBITION OF REPRISALS.—An employee of a contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an au- thorized official of an executive agency or the Department of Justice information relating to a Page 141 TITLE 41—PUBLIC CONTRACTS § 4706 1 See References in Text note below. substantial violation of law related to a con- tract (including the competition for, or negotia- tion of, a contract). (c) INVESTIGATION OF COMPLAINTS.—An indi- vidual who believes that the individual has been subjected to a reprisal prohibited by subsection (b) may submit a complaint to the Inspector General of the executive agency. Unless the In- spector General determines that the complaint is frivolous, the Inspector General shall inves- tigate the complaint and, on completion of the investigation, submit a report of the findings of the investigation to the individual, the con- tractor concerned, and the head of the agency. If the executive agency does not have an Inspector General, the duties of the Inspector General under this section shall be performed by an offi- cial designated by the head of the executive agency. (d) REMEDY AND ENFORCEMENT AUTHORITY.— (1) ACTIONS CONTRACTOR MAY BE ORDERED TO TAKE.—If the head of an executive agency de- termines that a contractor has subjected an individual to a reprisal prohibited by sub- section (b), the head of the executive agency may take one or more of the following actions: (A) ABATEMENT.—Order the contractor to take affirmative action to abate the re- prisal. (B) REINSTATEMENT.—Order the contractor to reinstate the individual to the position that the individual held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the individual in that posi- tion if the reprisal had not been taken. (C) PAYMENT.—Order the contractor to pay the complainant an amount equal to the ag- gregate amount of all costs and expenses (in- cluding attorneys’ fees and expert witnesses’ fees) that the complainant reasonably in- curred for, or in connection with, bringing the complaint regarding the reprisal, as de- termined by the head of the executive agen- cy. (2) ENFORCEMENT ORDER.—When a contractor fails to comply with an order issued under paragraph (1), the head of the executive agen- cy shall file an action for enforcement of the order in the United States district court for a district in which the reprisal was found to have occurred. In an action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compen- satory and exemplary damages. (3) REVIEW OF ENFORCEMENT ORDER.—A per- son adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order’s conformance with this subsection, and regulations issued to carry out this section, in the United States court of ap- peals for a circuit in which the reprisal is al- leged in the order to have occurred. A petition seeking review must be filed no more than 60 days after the head of the agency issues the order. Review shall conform to chapter 7 of title 5. (e) SCOPE OF SECTION.—This section does not— (1) authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (b); or (2) modify or derogate from a right or rem- edy otherwise available to the employee. (f) FOUR-YEAR SUSPENSION OF EFFECTIVENESS WHILE PILOT PROGRAM IS IN EFFECT.—While sec- tion 4712 1 of this title is in effect, this section shall not be in effect. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3796; Pub. L. 112–239, div. A, title VIII, § 828(c), Jan. 2, 2013, 126 Stat. 1841; Pub. L. 117–286, § 4(b)(72), Dec. 27, 2022, 136 Stat. 4351.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4705(a) ........ 41:265(e). June 30, 1949, ch. 288, title III, § 315, as added Pub. L. 103–355, title VI, § 6006, Oct. 13, 1994, 108 Stat. 3365; Pub. L. 104–106, title XLIII, § 4321(e)(8), Feb. 10, 1996, 110 Stat. 675. 4705(b) ........ 41:265(a). 4705(c) ........ 41:265(b). 4705(d) ........ 41:265(c). 4705(e) ........ 41:265(d). In subsection (d)(2), the word ‘‘contractor’’ is sub- stituted for ‘‘person’’ for clarity and for consistency with subsection (d)(1). Editorial Notes REFERENCES IN TEXT Section 4712 of this title, referred to in subsec. (f), formerly referred to a pilot program in the section catchline and contained a subsec. (i) which provided that section 4712 would be in effect for a specified four- year period. The section catchline was amended and subsec. (i) was struck out by Pub. L. 114–261, § 1(a)(3)(A), Dec. 14, 2016, 130 Stat. 1362. AMENDMENTS 2022—Subsec. (a)(3). Pub. L. 117–286 substituted ‘‘chap- ter 4 of title 5.’’ for ‘‘the Inspector General Act of 1978 (5 U.S.C. App.).’’ 2013—Subsec. (f). Pub. L. 112–239 added subsec. (f). § 4706. Examination of facilities and records of contractor (a) DEFINITION.—In this section, the term ‘‘records’’ includes books, documents, account- ing procedures and practices, and other data, re- gardless of type and regardless of whether the items are in written form, in the form of com- puter data, or in any other form. (b) AGENCY AUTHORITY.— (1) INSPECTION OF PLANT AND AUDIT OF RECORDS.—The head of an executive agency, acting through an authorized representative, may inspect the plant and audit the records of— (A) a contractor performing a cost-reim- bursement, incentive, time-and-materials, labor-hour, or price-redeterminable con- tract, or any combination of those con- tracts, the executive agency makes under this division; and (B) a subcontractor performing a cost-re- imbursement, incentive, time-and-materials, labor-hour, or price-redeterminable sub- contract, or any combination of those sub-