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In GSC Constr., Inc., ASBCA No. 62530 (Mar. 1, 2021), the Armed Services Board of Contract Appeals (the Board) denied the Government’s motion to dismiss for lack of jurisdiction.  The contractor submitted a certified claim to the contracting officer (CO) that included costs associated with a change order, and then subsequently filed an appeal

Yesterday, February 17, 2021, Senator Chuck Grassley (R-IA) and Acting Assistant Attorney General of the Civil Division, Brian Boynton, highlighted the central role that the False Claims Act (FCA) has held and will continue to play in the government’s civil fraud enforcement toolkit for years to come. In prepared remarks at the Federal Bar Association’s 2021 Qui Tam Conference, Grassley confirmed that he is drafting legislation intended to curb what he called the government’s incorrect interpretation that the Department of Justice (DOJ) has unfettered authority to dismiss qui tam lawsuits brought by relators. In an apparent reference to the Supreme Court’s landmark decision in Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), Senator Grassley also asserted that the courts have weakened the statute by dismissing cases based on a misapplication of the FCA’s materiality requirement, another area that he suggested was ripe for Congressional intervention. In separate remarks, Boynton highlighted DOJ’s top priority areas for FCA enforcement in the coming years as well as tools the government is developing to increase its ability to uncover complex fraudulent schemes.

Continue Reading “You Have to Come Down with a Sledgehammer, Not a Toothpick!” – Senator Grassley Previews Potential Amendments to Increase False Claims Act Enforcement and Recoveries

On February 3, 2021, the Pandemic Response Accountability Committee (PRAC) issued an update to its Top Challenges in Pandemic Relief and Response, identifying new challenges in funding oversight and reiterating others identified in its original report issued in June 2020. The updated report, based on feedback received from Offices of Inspectors General (OIG) at more than 40 agencies, identifies four new challenges focused on ferreting out fraud related to pandemic funding and the health and safety of federal employees: (1) preventing and detecting fraud against government programs; (2) informing and protecting the public from pandemic-related fraud; (3) data transparency and completeness; and (4) federal workplace safety. The PRAC also identifies contributory risk factors within each new challenge and makes recommendations for agencies to conduct additional oversight. This PRAC update, along with a recently-issued quarterly report from the Special Inspector General for Pandemic Recovery (SIGPR), confirm the rising tide of civil enforcement activity with respect to pandemic relief funds and the attendant risks to recipients and entities involved in administering such funds, particularly in light of the punitive damages provided for by the government’s most powerful civil fraud enforcement tool, the False Claims Act, 31 U.S.C. § 3729.

Continue Reading February Reports from PRAC and SIGPR Confirm Government’s Focus on Pandemic Funding Oversight and Enforcement Challenges

Like many other aspects of the legal landscape, 2020 was defined by COVID-19 and emerging areas of exposure and enforcement to come related to pandemic relief funding. But 2020 also saw many other important FCA developments, from case law developments on materiality, causation, pleading requirements, bars to qui tam actions, and the government’s authority to

On January 6, 2021, the Administrative Conference of U.S. Courts authorized federal district courts to develop policies for accepting “highly sensitive court documents (HSDs),” which would normally be filed electronically under seal, via paper filing. The statement from the Administrative Conference also acknowledged that the recent cybersecurity attack on SolarWinds products compromised the confidentiality of

In General Medicine, P.C. v. United States, No. 3:20-mc-00053, the District Court for the Southern District of Illinois held that a third party has standing to challenge a False Claims Act (FCA) civil investigative demand (CID) that is issued to another entity. In that case, General Medicine, a company that employs physicians and nurse

On July 28, 2020, the U.S. Small Business Administration (SBA) Office of the Inspector General (OIG) issued a report titled, “Serious Concerns of Potential Fraud in the Economic Injury Disaster Loan Program Pertaining to the Response to COVID-19.” The report identifies and summarizes OIG’s “serious concerns” of potential fraud and calls for “immediate attention and

On June 17, 2020, the Pandemic Response Accountability Committee (PRAC) issued its first report, “Top Challenges Facing Federal Agencies: COVID-19 Emergency Relief and Response Effort” (the “Report”). PRAC was established by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). It consists of the twenty-one offices of inspectors general (OIGs) that oversee the

On Wednesday, June 17, 2020, the Pandemic Response Accountability Committee (“PRAC”), composed of 21 Offices of Inspector General overseeing agencies that received the most CARES Act funds, released its first report, “Top Challenges Facing Federal Agencies: COVID-19 Emergency Relief and Response Efforts.”  The report was derived from information provided by 37 Offices of Inspector

In its February 18, 2020 Report, the Inspector General for the U.S. Department of Defense (DoD) concluded that $876.8 million in service-disabled veteran-owned small-business (SDVOSB) contracts were improperly awarded due to a lack of verification by contracting officials. The audit, which was conducted to determine whether DoD awarded contracts to businesses that actually qualified