At the hearing, he said he “learned that in the [Department of Energy] contracting world, the legal costs incurred by the companies are reimbursed by the DOE. Since this is taxpayer money, I began to feel that I was battling myself. It is unclear to me that if a company loses a retaliation case, whether they have to pay DOE back for the funds they received. Further complicating it, if the company chooses to settle but admits no guilt, it appears they do not have to pay DOE back for any of the legal costs. I felt like everything was stacked to support the companies.”
This raises an important question. Should the federal government pay to defend a company against whistleblowers whose actions might well be in the best interests of taxpayers?
The inquiring mind of Sen. Claire McCaskill (D-Mo.) wants to know.
On Tuesday, she sent a letter to the department’s National Nuclear Security Administration (NNSA) to determine if what Tamosaitis said about reimbursement is correct.
If his allegation is true, “this raises serious concerns,” she wrote to Thomas P. D’Agostino, the department’s undersecretary for nuclear security and NNSA administrator.
“The federal government relies on whistleblowers to report information about waste, fraud, abuse, and mismanagement of taxpayer dollars and has mandated whistleblower protections, including protections for employees of contractors of the National Nuclear Security Administration (NNSA), to ensure that employees are not retaliated against for their disclosures. Reimbursing a contractor’s legal costs for defending against these types of claims appears to contravene these policies.”
She told the agency to let her know how much it has paid to defend companies against Tamosaitis’s claims. The department said no final decision on reimbursement has been made.
A Bechtel statement says its agreement with the department “includes a standard contract provision for reimbursement of legal expenses. DOE’s final determination on the allowability of costs in the Tamosaitis matter will occur after the case is resolved. The criteria for reimbursement afforded to BNI [Bechtel National Inc.] does not differ from that of other DOE contractors and is not unique to the WTP [Waste Treatment Plant] contract.”
Energy’s practice of reimbursing contractors to defend the companies against whistleblowers, however, is not the norm in the federal government.
“DOE’s financial cushion for contractors to fight whistleblower lawsuits is unique, in GAP’s experience,” said Tom Devine, legal director of the Government Accountability Project, a nonprofit whistleblower advocacy organization. “The practice is so outrageous that in the 2005 Energy Policy Act, Congress passed a law requiring re-payment when there is a judgment against the contractor in whistleblower cases.”