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Luke Levasseur’s litigation practice focuses on government contract matters. He advises and represents clients regarding federal procurement practices and activities. For the past several years, Luke’s practice has focused on litigating large contract disputes and bid protests before the US Court of Federal Claims and the Government Accountability Office. He has also represented clients and performed substantial work with respect to False Claims Act litigation. Luke also has experience handling a variety of other federal court litigation for clients, involving such matters as antitrust claims, a trademark dispute and alleged fraud.

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The long-awaited study by the RAND Corporation (RAND) that was performed pursuant to Section 885 of the 2017 National Defense Authorization Act (NDAA) was delivered to Congress on December 21, 2017 and released to the public last week. Not only does RAND  clearly explain with data the reasons for the Government’s long-standing decision to have a robust bid protest system to review of agencies’ procurement decisions, but RAND’s data, analyses, and recommendations also undercut most of the incessant (and growing) calls for restrictions on bid protests. Among other things, the RAND report demonstrates that there is no basis for the “pilot program” of restrictions imposed by Section 827 of the 2018 NDAA—which requires payment of agencies’ “costs incurred in processing” bid protests by large Government contractors in the event a challenge is not successful.

As RAND explained, the Government, “is a powerful entity in the economy,” and  has a “moral duty to maintain fairness in how it awards large contracts.” The Government also needs to “deter and punish ineptitude, sloth, or corruption of public purchasing officials” (among other reasons for the bid protest system). For years, there have been complaints about the purported abuse of the bid protest process by contractors and unnecessary delays resulting from excessive bid protests. Although the officials calling for restrictions on bid protests were presumably able to present their best evidence and arguments to RAND’s independent analysts, the empirical data simply does not support the restrictions sought. The annual complaints about bid protests in the run-up to each year’s NDAA should cease—and Section 827 of the 2018 NDAA should be repealed.


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Should whistleblowers be permitted to recover hundreds of millions of dollars when the Government steadfastly insists that the factual underpinnings of a False Claims Act relator’s allegations are flatly incorrect? Although a federal district court in Texas awarded more than $660 million in damages to a relator based on purportedly inadequate disclosures to a federal agency, the post-Escobar materiality standard served as an important guardrail for the U.S. Fifth Circuit Court of Appeals. The appeals court reversed and put an end to the abusive FCA lawsuit. Among other things, the court recognized that the federal agency’s repeated, “authoritative” findings that the design and product at issue was compliant with federal safety standards and eligible for federal reimbursement were fundamentally at odds with the notion that the disclosures at issue were material to the government’s decision to pay the claim.
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Millions of Americans who were able to obtain health insurance as a result of the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”) are waiting to learn the extent to which Congress and the new administration will repeal, replace, or do something else with the ACA. At the same time, Government contracts lawyers are watching a group of ACA-related lawsuits being litigated at the Court of Federal Claims and the Federal Circuit. The cases involve “risk corridors,” which the ACA implemented to entice insurers to enter healthcare exchanges by reducing downside risk if, among other possibilities, enrollment did not meet projections. After the ACA was implemented (and control of the Legislative branch had shifted), Congress effectively defunded the ACA’s risk corridors (i.e., reduced necessary appropriations), leaving the Department of Health and Human Services (“HHS”) without sufficient funds to pay participating insurers. So far, approximately 20 of those companies have sued and are pursuing damages claims based on the Government’s failure to make promised payments.

Last November, the Court of Federal Claims issued its first merits ruling in one of the ACA risk corridor cases, Land of Lincoln Mutual Health Insurance v. U.S. Judge Lettow’s opinion in that case rejected the plaintiff’s claims based on “statutory entitlement,” breach of contract, and Fifth Amendment taking theories. A decision in a second case, Moda Health Plan v. U.S., was issued late last week by Judge Wheeler—who ruled in that plaintiff’s favor. In Moda Health, the court held that the relevant ACA provision “requires full annual payments to insurers” and, alternatively, that the Government’s non-payment constituted a breach of the implied-in-fact contract with the insurer.

How the current administration and Congress will change ACA—and the American healthcare system—is anybody’s guess. The ACA-related cases before the Court of Federal Claims are not getting the same amount of press as potential changes to the healthcare reform law, but they address important legal and financial consequences of the long-running policy dispute over the ACA. The cases raise complex legal issues that should be of substantial interest to Government contracts lawyers and practitioners before the Court of Federal Claims and the Federal Circuit.

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On June 27, 2016, in McDonnell v. United States, the Supreme Court resolved a case of substantial interest to businesses that interact regularly with government officials with respect to grants, contracts, regulations and numerous other matters. The Court vacated the conviction of the former governor of Virginia, Bob McDonnell, because it was based on an improperly expansive interpretation of “official act” as used in the federal bribery statute. The Court’s opinion rejects the Department of Justice’s expansive interpretation of the relevant statutes and holds that a government official’s “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act’”—and, thus, is not sufficient to support a conviction. Instead, an honest services fraud allegation must involve:

  • Ÿ “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’”
  • Ÿ “a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee”
  • Ÿ “something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official”
  • Ÿ a “public official [who] make[s] a decision or take[s] an action on that ‘question, matter, cause, suit, proceeding or controversy,’  or agree[s] to do so.”


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Today, in Universal Health Services v United States ex rel. Escobar, the Supreme Court resolved a circuit split on a question of great importance for government contractors: whether a claim presented to the United States for payment can be false or fraudulent for purposes of the False Claims Act (“FCA”) under the so-called “implied certification” theory. The Court answered in the affirmative, unanimously holding that “the implied false certification theory can, at least in some circumstances, provide a basis for liability.” The Court sought to allay any “concerns about fair notice and open-ended liability” by emphasizing the strict application of the FCA’s materiality and scienter requirements, clarifying the meaning of these requirements, and rejecting the Government and Second Circuit’s interpretation of implied certification as “extraordinarily expansive.” It remains to be seen whether the Court’s descriptions of the manner in which the FCA’s materiality and scienter requirements should be “rigorous[ly]” applied will provide meaningful protections to government contractors, including healthcare and other companies participating in various government programs, that face potential FCA liability based on implied certification theories of liability.
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In United States ex rel. Beuchamp v. Academi Training, the Fourth Circuit recently reversed the dismissal of a False Claims Act (FCA), explaining that the trial court had misapplied the public-disclosure bar when it dismissed the relators’ claims. The appellate court’s opinion explains recent (2010) statutory amendments, the manner in which an important pre-amendment Supreme Court precedent applies, and the proper application of the public-disclosure bar to the facts at issue. In short, when analyzing the timing of the public disclosure that purportedly bars FCA allegations, courts must focus on the pleading in which the relator(s) first alleged the relevant fraud—not on the most recent amendment to the complaint.

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Back in August 2015, DoD issued an interim rule, which was effective immediately (and was previously discussed on this blog), imposing substantial new requirements on government contractors with respect to reporting information system network penetrations—and providing new cloud computing requirements. Six weeks later, DoD issued a class deviation giving contractors more time to

A few days ago, on August 26, DoD issued new interim rules amending the Defense Federal Acquisition Regulations (DFARS) with respect to “network penetration reporting and contracting for cloud services.” The new rules, which are now effective, revise several broadly applicable definitions applicable to numerous parts of the DFARS, expand the incident reporting requirements applicable to contractors, and impose security requirements applicable to cloud computing. DoD contractors need to understand these important new rules, which are summarized here, so that they can perform necessary compliance planning and make any necessary disclosures.
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Government contractors face ever-increasing pressure to develop robust compliance programs that, among other things, detect potential violations of laws and regulations—which they are then obliged to report to the agency inspector general and the contracting officer. Like many large contractors, Kellogg Brown & Root’s (KBR) law department oversees (and conducts) investigations into potentially reportable violations

Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO. That generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.
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