DOJ Fraud and False Claims Recoveries at Record Levels in FY2011

Raja Mishra

The U.S. Department of Justice reported this week that it recovered $5.6 billion in criminal and civil fraud payments in fiscal year 2011, including more than $3 billion under the civil False Claims Act.  The fraud recoveries set a one-year record for DOJ; the FCA recoveries capped a record-setting three-year period during which DOJ recovered $8.7 billion. The figures underscore the Obama administration’s aggressive pursuit of fraud and false claims.

DOJ said its fraud recoveries were primarily driven by investigations into Medicare, mortgage, grant and contracting frauds. Officials said the recoveries were much-needed revenue generators for the federal government in a time of record debt and deficits.

“These recoveries far exceed the cost of the agents and prosecutors who secured them,” said Deputy Attorney General James M. Cole at a press conference alongside Vice President Joe Biden. “For every dollar Congress has provided for health care enforcement over the past there years, we have recovered nearly seven.”

Health care fraud –including Medicare, Medicaid, and Tricare—accounted for $2.4 billion of the FCA recoveries in fiscal year 2011. Procurement fraud cases accounted for $422 million in fiscal year 2011. 

Qui tam relators filed 638 suits FCA suits in 2011, far exceeding the average annual rate for the past decade. For contractors, these statistics make clear that—now more than ever—timely government contracts counseling is necessary to ensure compliance and avoid becoming a casualty in the government’s escalating war on fraud and false claims.

Department of Defense Proposes Adequacy Checklists for Offerors

Derek Mullins

     On December 2, 2011, the Department of Defense (“DoD”) proposed a new rule that would require contractors bidding on specified solicitations to submit proposal adequacy checklists with their offers. The new proposed DFARS section, § 215.408(3), would give the contracting officer the discretion to include the Proposal Adequacy Checklist solicitation provision in any solicitation that requires the submission of certified cost or pricing data. In solicitations that include the provision, an offeror would be required to (1) complete the proposal adequacy checklist; (2) note which page of its proposal satisfies each checklist requirement; and (3) in the event the required information is not provided, explain why.

     The checklist contains 47 requirements, which fall into the following categories of information:

  • General Instructions
  • Materials and Services
  • Subcontracts
  • Commercial Item Determinations
  • Adequate Price Competition
  • Interorganizational TransfersDirect Labor
  • Indirect Costs
  • Other Costs
  • Formats for Submission of Line Item Summaries
  • Other

     Interestingly, DoD took many of the listed items directly from DCAA’s existing proposal adequacy checklist. According to DoD, the objective in proposing the rule is “to ensure that offerors submit thorough, accurate, and complete proposals” by allowing them to “self validate the adequacy of their proposals.” Defense Federal Acquisition Regulation Supplement: Proposal Adequacy Checklist, 76 Fed. Reg. 75512 (proposed Dec. 2, 2011) (to be codified at 40 C.F.R. pt. 215, 252). Based on data taken from FY 2008 - FY2010, DoD estimates that there are 905 solicitations per year that satisfy the criteria where the checklist could be used.

     The proposed rule is part of DoD’s Better Buying Power Initiatives program, which was launched by Former Defense Secretary Robert Gates in May 2010. The efficiency initiative was introduced to provide better value to taxpayers by improving the way DoD conducts business and aims to, among other things, save $100 billion dollars in defense spending over the next few years. While the proposed rule has the potential to cut down on incomplete proposals – a point of contention in many bid protests – the net benefit is unclear, since it could also increase the period of time between request for proposals and contract award. Further, it remains to be seen whether contracting officers would actually exercise their discretion and include the provision in applicable solicitations. Contractors and other interested persons have been invited to comment on the proposed rule and have until the end of January to do so.