SUPREME COURT ADOPTS “IMPLIED CERTIFICATION” WITH MATERIALITY REQUIREMENT

In mid-June, the U.S. Supreme Court adopted the “implied false certification” theory of liability, which treats a contractor’s invoice or other payment request as an implied certification of compliance with relevant statutes, regulations or contract requirements that are material conditions of payments. This theory also treats the failure to disclose a violation as a misrepresentation that renders the claim “false or fraudulent,” and therefore actionable under the Civil False Claims Act, 31 U.S.C. §3729 (the “FCA”). (The FCA permits suits against government contractors if they knowingly present a materially false or fraudulent claim for payment.) The court held that the implied certification theory can be a basis for FCA liability, and can be actionable if the contractor knowing violated a requirement that the contractor knows … Continue reading

ONCE AGAIN: RECURRING AGENCY MISTAKES IN DISCUSSIONS

A recent blog identified “Six Recurring Agency Mistakes in Discussions.” One of the frequently repeated mistakes (conducting unequal discussions) was again repeated in a recently sustained Government Accountability Office (“GAO”) protest decision, Deloitte Consulting, LLP, B-412125, April 15, 2016. Although there were three grounds upon which the GAO sustained the protest, the relevant one for this blog was previously identified as follows: An agency may not identify specific weaknesses in one offer, while failing to advise other offeror(s) that have the same weakness. That is, an agency must identify to each offeror the exact weakness found in their offer. This mistake was made by the Defense Health Agency in its evaluation of proposals for governance, requirements and architecture management support. Past performance was identified in … Continue reading