Reporter's Notebook

Is the IG’s report on whistleblower retaliation at GSA anything more than a history lesson?

The General Services Administration’s inspector general concluded former administrator Denise Turner Roth retaliated against former FAS Commissioner Tom Sharp...

Jason Miller@jmillerWFED

June 30, 2017 10:55 am

5 min read

The details behind the power struggle at the General Services Administration to create the Technology Transformation Service by using the multi-billion dollar Acquisition Services Fund (ASF) is salacious and stunning in many ways.

The accusations of veiled threats, the strong consideration by former GSA Administrator Denise Turner Roth to remove the top two executives of the Federal Acquisition Service (FAS) and almost the blind support of the 18F digital services organization by a host of Obama administration appointees despite repeated warnings about their consistent breaking of financial and acquisition regulations and laws makes for a great read.

But in the end, the inspector general’s newly released report detailing this three-year dispute will end up being more of a history lesson than a situation where there are real consequences for Turner Roth and other senior GSA officials.

Nearly every one of the main characters have left GSA. Turner Roth left in January at the end of the Obama administration and is now a senior advisor at WSP USA, a global engineering and professional services organization.

An email to Turner Roth was not immediately returned. She told Federal News Radio last week that the IG’s findings were “wrong and disappointing.”

Tom Sharpe, who filed the initial complaint with the IG in December 2016, recently retired as FAS commissioner and stayed in this role until he left June 24 despite what the IG concluded was Turner Roth’s retaliation.

GSA acting deputy administrator Adam Neufeld and deputy FAS Commissioner Kevin Youel Page also are no longer serving in government. Neufeld, who now is a senior fellow, in a joint appointment between the Tech Institute and the Beeck Center for Social Impact & Innovation at Georgetown University, left in January. Youel Page joined Sharpe in leaving GSA on June 24.

Federal News Radio first reported that Sharpe was the whistleblower that the IG concluded Turner Roth retaliated against.

The IG referred the case to the Office of Special Counsel. OSC has several months to work on the case and even if they find that Turner Roth did retaliate against Sharpe, what are the consequences?

John Mahoney, an attorney specializing in federal employee cases, said the end result of the OSC’s investigation may end up giving the complainant some relief.

“If OSC or the appellant proves the whistleblower retaliation and the defendant agency cannot prove its affirmative defense, at a minimum, the employee appellant can receive corrective action, which, under the Whistleblower Protection Enhancement Act (WPEA), could include retroactive reversal of all proven prohibited personnel practices (PPP) with backpay, benefits, interest, a clean record, attorneys’ fees and proven compensatory damages,” Mahoney said. “Former employees who have been found to have engaged in whistleblower retaliation or other PPP can face debarment from federal employment for a period not to exceed five years, and an assessment of a civil penalty not to exceed $1,000.”

What the IG report does shed further light on, however, is the state of 18F during its early years and the struggles it had with customers and repaying its “loan” from the ASF. The report also confirms the rumors about the battle between FAS and the administrator over how best to use the ASF, which as of the end of fiscal 2016 had $2.1 billion in reserves.

While a lot already has come out about 18F’s financial troubles—not being able to pay back its start-up funding until 2019—the report shows Sharpe’s concerns were either ignored or disregarded by GSA executives. Sharpe highlighted in March 2016, Sharpe detailed 18F was expected to lose $22 million on $44 million in revenue in 2016 and its poor business controls allowed work to be performed for customers without having Interagency Agreements in place.

The IG detailed how the creation of 18F was a sticking point for Sharpe from the beginning.
Sharpe told the IG that 18F was duplicative of FAS’s offerings and to use the ASF, its activities had to be tied back to the acquisition service.

Neufeld said in a statement to Federal News Radio that Sharpe continually took steps to frustrate the creation and development of 18F.

“While 18F has certainly had some growing pains, the program is one of the few initiatives supported by both the Trump and the Obama administrations because of its transformative potential,” he said. “Whether he opposed 18F for substantive reasons or just to ‘protect his turf,’ he is entitled to his opinion. However, he is not entitled to obstruct decisions that are lawful. As a result, his responsibilities over the program were gradually reassigned over the past four years, all consistent with the law. This happened both before and after notification to the Inspector General. Lawfully reassigning the responsibilities of an employee who is failing to perform his functions effectively and in good faith is what taxpayers deserve.”

Sharpe did approve new memorandums of agreements in 2013, 2014 and 2015 for 18F to receive ASF funds.

The IG report stated: “Sharpe wanted to lock down who ‘makes this call’ before finalizing additional funding for new 18F projects. In Sharpe’s view, counsel had been clear that the FAS Commissioner (and not the Administrator’s Chief of Staff) was accountable for the ASF. In raising the issue, Sharpe felt he was just ‘trying to get the [18F] initiative met within proper controls’ by defining up front ‘[w]ho will decide, track and be accountable.’”

And control over the ASF was at the heart of the matter. In many ways, this is why Congress isn’t a big fan of large funds that have limited oversight. The reasons can also be traced to the Senate’s slow progress with the Modernizing Government Technology (MGT) Act, which would create working capital funds in each agency for IT modernizing efforts.

According to the White House budget request for fiscal 2017, 17 agencies currently have this type of funding mechanism. For instance, the Commerce Department has working capital funds at the headquarters level, the Census Bureau and the National Institute of Standards and Technology. Additionally, the Environmental Protection Agency, GSA and the departments of Justice, Treasury, State, Labor, Transportation and Interior are among the agencies with working capital funds.

In the end, the entire experience has left a trail of frustration, hurt feelings and expended a lot of time and energy over a situation that the Trump administration basically fixed when it decided to merge TTS into FAS.