Circuit Court Signals Potential Impacts of Escobar

Written by and
Lower courts have begun grappling with the implications of the U.S. Supreme Court’s decision in Universal Health Services, Inc. v. United States ex rel. Escobar. In U.S. ex rel. Sheet Metal Workers International Association v. Horning Investments, LLC, a union filed a qui tam lawsuit against Horning Investments, LLC. Horning, a roofing company, was acting as a subcontractor for a construction project for the U.S. Department of Veterans Affairs. The union claimed that Horning violated the False Claims Act by failing to pay union workers in accordance with the Davis-Bacon Act. Under the Davis-Bacon [...]Read more

Law360 Publishes Article on Kingdomware by Jeff Belkin and Breana Ware

Written by and
On June 21, 2016, Law360 published the article “High Court Boosts Veterans Contracts in Kingdomware” written by Jeff Belkin and Breana Ware. In this article, Jeff and Breana discuss the issues at hand in the recent unanimous decision for the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States, No. 14-916. As indicated by Jeff and Breana, this ruling will have a significant impact on the U.S. Department of Veterans Affairs’ procurement process; on current and future protests before the Government Accountability Office regarding the VA’s use, or nonuse, of the Rule of Two; [...]Read more

The Supreme Court Weighs In on the Implied Certification Theory of False Claims Act Liability

Written by and
The Supreme Court has handed the Department of Justice and qui tam relators a bigger hammer to wield against government contractors with its opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, confirming the viability of the implied certification theory of False Claims Act (FCA) liability. In this case, the relators filed a qui tam action alleging that a provider of mental-health services in Massachusetts violated the FCA when it submitted Medicaid reimbursement claims that included representations about the services provided, but failed to disclose that the service [...]Read more

OFCCP Announces Final Rule Regarding Gender Equality in the Government Contracts Workplace

Written by
On June 14, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule setting forth the requirements that covered federal contractors and subcontractors must meet to fulfill their obligations under Executive Order 11246 to ensure nondiscrimination in employment on the basis of sex. The new rule updates prior, outdated guidelines to bring the requirements in line with case law interpreting Title VII of the Civil Rights Act of 1964 and the U.S. Equal Employment Opportunity Commission’s current interpretation of the statute (which sometimes [...]Read more

Supreme Court Hears Oral Arguments in Significant False Claims Act Case

Written by
Our colleagues Jackie Baratian and Jason Popp summarize here the oral argument for Universal Health Services v. United Sates ex rel. Escobar heard by the U.S. Supreme Court on Tuesday, April 19th, laying out the various arguments presented by counsel and addressed by the Justices.  As they note, much of the argument focused on the Restatement of Contracts, as a source of “fraud” in contracting common law, to help draw a distinction between an implied promise and an immaterial unspoken performance detail.  The Justices also took note of the decision in Halper, in which the Supreme Court in [...]Read more

Law360 Quotes Chris Roux on Florida I-4 Ultimate Project

Written by
Alston & Bird Construction & Government Contracts partner Chris Roux was quoted on federal funding for Florida’s $2.3 billion I-4 Ultimate Project in conjunction with traditional public-private partnerships.  As indicated by Roux, a notable aspect of the project is the inclusion of two TIFIA loans and construction loans with Societe Generale as the syndication agent, CIBC as the documentation agent and BTMU as the administrative agent.  Roux said that the TIFIA loans, at approximately $950 million, were the largest ever TIFIA loans to a P3 project. To read more about Roux’s comments [...]Read more

Is the False Claims Act Becoming a Catch-All Penalty for Any and Every Contractual Breach?

Written by and
A recent Department of Justice (DOJ) settlement announcement suggests that the government intends to continue to use the False Claims Act (FCA), rather than more traditional breach of contract or tort claims or regulatory authority, to administer its contracts. On March 7, 2016, the DOJ announced its $3 million settlement with ArmorSource LLC to resolve FCA allegations against the company. ArmorSource contracted with the U.S. Army in 2006 to provide ballistic helmets for combat. In 2010, the Army recalled the helmets after rounds of failed ballistic safety tests. The government alleged that from [...]Read more

Supreme Court to Rule on the Implied Certification Theory

Written by and
The U.S. Supreme Court has scheduled oral arguments in a case that will have significant implications for cases brought under the False Claims Act (FCA). In Universal Health Services v. United States ex rel. Escobar, No. 15-7, the Court will hear argument on two important questions. First, whether the “implied certification” theory of legal falsity is viable under the FCA, a question on which the circuit courts of appeal are divided. If the Court concludes the implied certification theory is viable, then the second issue it will consider is whether government contractors’ reimbursement claims [...]Read more

Jeff Belkin and Tony Balloon Quoted in The Wall Street Journal

Written by
On February 29, Jeff Belkin and Tony Balloon were quoted in The Wall Street Journal explaining the Office of Management and Budget’s new mandate on electronic invoicing and how it will impact government contractors and raise additional cybersecurity concerns. “Any time you’re talking about moving money—particularly this volume—there’s going to be a significant level of scrutiny on compliance infrastructure and risk mitigation and fraud mitigation. There will be more scrutiny on what is already a highly regulated area of finance,” said Balloon. “It’s not clear if any financial [...]Read more

Are More Constitutional Challenges to State DBE Contracting Programs On the Way?

Written by , and
An Illinois construction company is petitioning the U.S. Supreme Court to decide whether it has standing to challenge as unconstitutional a state’s implementation of a disadvantaged business enterprise (DBE) participation goal in connection with a road project. If sustained, the company’s challenge would have far-reaching implications, including opening the door for other disappointed bidders to prosecute constitutional challenges to states’ implementation of mandatory disadvantaged business contracting programs. In 2009, the Illinois Department of Transportation (IDOT) sought bids for [...]Read more