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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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Government contractors and health care companies have become increasingly concerned about the application of the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C. § 3287, and the Department of Justice’s (“DOJ”) and False Claims Act (“FCA”) relators’ arguments that the statute extends indefinitely the limitation period applicable to civil FCA cases. 31 U.S.C. §§ 3729-3733. Today, the Supreme rejected the unwarranted extension of the WSLA and properly limited the reach of that statute (and suspension of limitations periods) to the context of criminal law. The decision in Kellogg Brown & Root Services, Inc. v. U.S. ex rel. Carter (“KBR”) is an important victory for Government contractors, health care companies and other recipients of federal funding. It provides protection against stale claims, which should be barred by the statute of limitations. It is particularly noteworthy because it removes the risk of stale FCA claims that would otherwise be time barred and that have no connection to wartime activities, such as health care claims, or lawsuits related to other civilian agency programs, e.g., the Department of Agriculture program discussed in United States v. BNP Paribas SA.
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Concept_Phone-in-Motel-Room_399638Medium-224x300Last Friday, the Federal Circuit issued another decision in the relatively long-running saga of the SUFI Network Services, Inc. v. U.S. litigation, which relates to a telephone network installed by SUFI Network for guests in Air Force lodging facilities in Germany. The decision is down in the weeds of several damages law issues, but it appears to break some new ground that may be helpful for other contractors pursuing damages claims against the Government.

By way of necessary background, a 2004 decision by the ASBCA established that the Air Force Nonappropriated Funds Purchasing Office materially breached a contract by allowing/facilitating service members’ attempts to avoid SUFI Network’s rates (e.g., by using calling cards), resulting in a partial settlement agreement under which the phone network became the Air Force’s property. That partial settlement left open possibilities for litigating lost profits and other damages claims. The ASBCA then the Court of Federal Claims had issued rulings differing with respect to the damages amounts; last May, the Federal Circuit vacated “much of” the Court of Federal Claims’ “lost profits” decision. The lost profits claims have been the subject of a subsequent ASBCA decision on remand. While we await further review of the recent ASBCA decision, the Federal Circuit’s decision from last week addressed SUFI Network’s claims for attorneys fees and expenses related to its pursuit of lost profits, as well as the extent to which a contractor litigating a non-CDA claim can recover lost profits and overhead related to pursuing damages claims. The Federal Circuit came down on the contractor’s side on most of these issues.

The Federal Circuit’s opinion addressed five different legal questions. The issues of “interest” on the awarded attorneys fees and the “standard rates” awarded (sections III and IV of the opinion, respectively) appear to apply relatively straight-forward legal rules and do not merit comment. The court’s rulings regarding “exhaustion” of claims, ability to pursue attorneys fees, and whether the contractor could be awarded an amount to compensate it for overhead and lost profits related to attorneys fees paid to pursue its expectancy claims merit discussion.
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2015-0126 Healthcare.govLast week, several press outlets, a well-regarded legal blog (albeit one that does not generally focus on Government contracts law/policy), and at least one politician criticized the IRS for the award of a relatively small IT services contract to a company called CGI Federal. CGI was the contractor at the center of the problematic rollout of the healthcare.gov website. Although there were clearly substantial problems with the website development and rollout, some of the criticism of CGI—and the implicit calls for substantial punishment of that contractor—demonstrate a lack of fair consideration of publicly available reports about the sources of the problems with the website and misunderstandings of aspects of procurement law and policy.
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iStock_000016952672LargeYesterday, the FAR Council issued an interim regulation addressing inverted corporations involved in government contracting. This interim regulation goes into effect immediately, and companies with inverted corporate structures—or those considering a restructuring—need to understand this development.
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Although this blog focuses on numerous issues of interest to the Government contracts community, two types of disputes that get significant attention here are False Claims Act lawsuits and bid protests. Recently, DOJ and GAO issued their annual reports on the volume of activity with respect to such cases, and although these reports are a few weeks old, we wanted to briefly summarize the reports.
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The GAO recently sustained a protest because the agency failed to adequately consider a False Claims Act (FCA) case that was pending against the awardee’s parent corporation. The GAO’s decision in FCi Federal, Inc. represents a rare intersection of the FCA and GAO’s bid protest jurisdiction. The decision also provides an example of a successful challenge to an affirmative responsibility determination–an issue GAO will generally not review.

Fraud Concept - Magnifying Glass.


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The FCA relators’ and defense bars have been battling for some time about the extent of a relator’s obligation under Rule 9(b) to plead the details of her/his claim with particularity. The Eighth Circuit’s recent decision in US ex rel. Thayer v. Planned Parenthood appears to change the balance in what has been described as a circuit split regarding whether allegations concerning “representative examples” of specific false claims are necessary to satisfy Rule 9(b)’s heightened pleading standard. On closer inspection, however, the court’s opinion raises questions regarding the extent of the circuit split.

Under Planned Parenthood, a relator may be able to evade the representative-example-requiring interpretation of Rule 9(b) if she/he can plead the “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that the claims were actually submitted.” For such “reliable indicia” to exist, the relator would presumably have held a position that would have resulted in first-hand knowledge of the defendant’s billing processes and procedures such that she/he could make credible allegations related to the submission of specific claims to the Government. Many FCA relators will not be in a position to satisfy both of these requirements, and Rule 9(b) should continue to preclude such claims.
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Late last week, the D.C. Circuit affirmed the district court’s dismissal on summary judgment of a relator’s FCA claims in U.S. ex rel. Folliard v. Government Acquisitions, Inc. & Govplace. Although the court provided an extensive discussion of several evidentiary rulings that led to the dismissal of much of the case, its ruling with respect to the Trade Agreements Act (TAA) certifications received from suppliers is significant to contractors. The court held that, in providing country of origin information to the Government under the TAA, the contractor reasonably based its representations on certifications it received from a supplier. Accordingly, the district court had properly granted summary judgment with respect to an FCA claim based on purportedly defective certifications. To the extent a Government contractor is reselling products in reliance on a supplier’s TAA certification—and there is a reasonable basis to accept the certification—the Govplace decision should prove helpful to contractors.
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Editor’s note: This is the second post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. Planned future posts will cover what qualifies as misleading discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.

A common bid protest allegation made by disappointed offerors is that the agency failed to engage in meaningful discussions. It’s basic procurement law that, when an agency engages in discussions with offerors under FAR Part 15, the discussions must be meaningful. But what is required for discussions to be does “meaningful”? Because protesters frequently raise the meaningful discussions protest ground, contractors and their counsel should be familiar with agencies’ discussions-related obligations and how GAO and the CFC approach protests challenges to the adequacy of discussions.
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