On March 2, 2017, the U.S. Government Accountability Office (GAO) published a report highlighting necessary improvements to effectively implement the Whistleblower Protections Pilot Program (WPPP).  The WPPP, introduced in the National Defense Authorization Act for Fiscal Year 2013, and made permanent by Congress in December 2016, expanded whistleblower rights against reprisal for employees of contractors, subcontractors, and grantees.  That same year, the FAR was also amended to require contracting officials to include a contract clause requiring contractors to communicate to their employees their rights under the WPPP in contracts exceeding the simplified acquisition threshold and awarded after September 30, 2013.  The WPPP also required agencies use best efforts to include the FAR clause in major contract modifications of existing contracts.

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On February 14, the Fourth Circuit issued an opinion in United States ex rel. Michaels v. Agape Senior Cmty. Inc. addressing only the first of the two issues that the district court had certified for interlocutory appeal: (1) whether the Department of Justice (DOJ) possesses an unreviewable veto authority over proposed settlements and (2) whether statistical sampling, the analysis of data from a subset of the population of interest in order to make projections across the population of claims at issue, is an appropriate methodology for establishing liability and damages in False Claims Act (FCA) cases.
In its decision, the Fourth Circuit became the third circuit to affirm that the DOJ has absolute, unreviewable authority to veto settlements in qui tam cases where it has declined to intervene. However, notwithstanding that the name of the defendant corporation is derived from the Greek word for love, the Fourth Circuit’s decision (on Valentine’s Day) not to opine on the statistical sampling issue showed no love for those that hoped that the court would bring needed clarity on the permissibility of statistical sampling in FCA cases. Instead, as the authors predicted in a recent Law360 article, the Fourth Circuit dismissed the interlocutory appeal as “improvidently granted” because the panel viewed statistical sampling as an evidentiary issue, rather than a pure question of law.


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On September 29, 2015, the Fourth Circuit agreed to hear an interlocutory appeal in U.S. ex rel. Michaels et al. v. Agape Senior Community, Inc. to address whether the statistical method of extrapolation may be used to prove liability, in addition to damages, under the False Claims Act. The Fourth Circuit will be the first

On February 12, 2015, the Federal Circuit issued an opinion in K-CON Building Systems, Inc. v. United States, addressing jurisdiction over contractor claims under the Contract Disputes Act (“CDA”).

Specifically, K-CON Building Systems explores the implications of claim identification, and whether a contractor can add a new claim to a pending matter when the new claim seeks a different remedy or is based upon a different legal theory.  In this case, K-CON Building Systems, Inc. (“K-CON”) contracted with the federal government to construct a “cutter support team building” for the U.S. Coast Guard.  The contract included a liquidated damages clause and obligated K-CON to pay $589 for each day of delay.  When K-CON completed the building 186 days after the contract’s completion date, the Coast Guard withheld $109,554 in liquidated damages due to alleged delay.
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