Photo of Luke Levasseur

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.

Read Luke's full bio.

CMS Caregiver PicNursing home care and costs—and their connection to Medicare—are issues that sporadically receive media attention and, last weekend, were the subjects of a large expose and op-ed in the NY Times. A few days before those articles were published, the Seventh Circuit issued its anticipated decision in US ex rel. Absher v. Momence Meadows Nursing Center, which addresses nursing home care and Medicare payments in a context familiar to readers of this blog: the False Claims Act. In a decision of interest to nursing home and other healthcare providers—as well as other types of service providers to the federal Government—the appeals court reversed a dangerously expansive trial court interpretation of the “worthless services” theory of FCA liability. The Seventh Circuit’s decision leaves some important questions for another day, but it provides some good news for businesses contracting with the Government.
Continue Reading Seventh Circuit Pares Back Potential “Worthless Services” FCA Claims

A termination for default (T for D) is “a drastic sanction which should be imposed or sustained only for good grounds and on solid evidence.” A T for D will impact future responsibility determinations and needs to be fought by contractors who want to continue to work in the Government market. In DMW Marine Group v. Department of Commerce, the Civilian Board of Contract Appeals (CBCA) granted a contractor’s appeal, effectively reversing the National Oceanic and Atmospheric Administration’s (NOAA) T for D based on the contractor’s failure to provide a certification called for under the contract. The Board’s decision reflects a common-sense understanding of the exchanges between the parties—and a proper rejection of an overly aggressive use of the “drastic sanction.”
Continue Reading The CBCA Issues an Interesting “T for D” Decision, Applying UCC Principles to Reach a Common-Sense Result

Object-White Podium_14754214Medium

Marcia Madsen recently presented an excellent paper, which was co-authored by Michelle Litteken, at the ABA Section of Public Contract Law’s annual meeting in Boston. During the ABA meeting, Marcia also moderated a panel on important issues that frequently occur during investigations of Government contractors. For executives or counsel dealing with issues in a

In a case against two medical device makers in which DOJ (reasonably) declined to intervene, the U.S. Eighth Circuit Court of Appeals recently affirmed the district court’s dismissal of a series of False Claims Act allegations. The court’s opinion provides clear, relatively short, and thoughtful explanations of both the public disclosure bar and the original source exception—and why the relator’s allegations were improperly based on public disclosures for which he was not an original source. The opinion is a helpful refresher in the policy behind and the application of these rules barring claims of parasitic relators.
Continue Reading Eighth Circuit Provides Explanation of the FCA’s Public Disclosure Bar and Original Source Exception while Affirming the Dismissal of False Claims Allegations

Editor’s note: This is the first post in a series of posts focused on protest allegations related to discussions with offerors. Planned future posts will cover what qualifies as meaningful discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.

iStock_000032523472SmallIn a bid protest, the disappointed offeror often alleges that the agency failed to conduct meaningful discussions or engaged in unequal discussions. A threshold inquiry is whether the agency engaged in discussions. The CFC and GAO approach the question of whether agency communications constitute discussions differently, and a protester may want to consider that difference when selecting a protest forum.


Continue Reading When Does an Agency Cross the Line from Clarifications to Discussions?

Recently, the CFC rejected a bid protest action filed by Kellogg Brown & Root (KBR) with respect to one of the Army’s LOGCAP contracts. The contractor had performed the logistics and civil augmentation contract, under which the Army issued task orders for different years, on a “cost-reimbursement basis.” When the Army tried to change to a firm-fixed price arrangement for the 2013 close-out period, KBR balked and refused to submit a proposal—instead filing a bid protest action. The CFC dismissed the case, ruling that KBR did not properly invoke the court’s bid protest jurisdiction but rather was attempting to litigate a contract administration dispute.
Continue Reading Court of Federal Claims Rejects Attempt to Shoehorn what it Characterizes as a Contract Administration Matter Into a Bid Protest

Legal SettlementIn a recent decision, the Federal Circuit added to its precedent explaining how a trial court should analyze what would have occurred in a “non-breach world” for purposes of awarding expectancy damages in a contract case. In Stockton East Water District v. United States, the Federal Circuit held that the trial court failed to sufficiently consider the parties’ conduct during the six years leading up to the breach when awarding damages for the breach period. The Federal Circuit and Court of Federal Claims issued numerous decisions addressing expectancy damages and the non-breach world in the Winstar cases; Stockton East adds to that precedent with guidance for contractors presenting damages claims in the tricky situation of the Government announcing what is likely to happen several years before its conduct constitutes a breach of contractual obligations. The Federal Circuit’s decision makes clear that the contractor can point to the parties’ conduct during the pre-breach period to explain what the non-breach world would have looked like—and how expectancy damages should be measured.
Continue Reading Defining the Non-Breach World Remains Key to Determining Expectancy Damages

Tajik

The Court of Federal Claims issued a lengthy decision in a case arising from a construction project gone awry in which the contractor was terminated for default (T for D), ended up in bankruptcy, and lost a fraud counterclaim to DOJ. The contractor had taken a substantial risk by agreeing to a firm-fixed price that was substantially lower than it had originally proposed—then (after a few problems) lacked the necessary liquidity to complete the project. The decision in Liquidating Trustee Ester Du Val of Ki Liquidation, Inc. v. US is a reminder that contractors agreeing to a firm-fixed price are accepting substantial risk, and when entering into this type of contract in unpredictable circumstances, they must be able to bear that risk, as a lifeline is unlikely to be forthcoming from the agency.


Continue Reading A Tajik Construction Project Nightmare Serves as a Lesson Regarding the Perils of Firm-Fixed Price Contracting in Uncertain Situations

One of the ongoing issues lawyers face when litigating bid protests at GAO is the lack of precedent related to protective order (PO) admissions. The rules are relatively clear with respect to outside counsel and most in-house attorneys applying for admission under a PO. However, although GAO generally applies its rules consistently with respect to consultants, many consultant applications draw unnecessary objections that have been answered repeatedly by GAO case attorneys in other protests, though not in published opinions or guidance. Although GAO’s protective order process generally works well, it could be improved (and save time and cost) by more written guidance regarding admissibility of consultants. In this post, we’ll briefly summarize the rules applicable to attorneys then provide our take on some of the unwritten rules of consultant admissions. (To the extent readers disagree or want to point to consultant-related precedent, please feel free to continue the conversation in the comments section.)
Continue Reading Some of the Unwritten Rules of GAO Protective Order Admissions

Object-White Podium_14754214Medium

Last week, Marcia Madsen presented a paper to the ABA’s Tenth Annual Institute on the Civil False Claims Act and Qui Tam Enforcement. In her paper and during her presentation, she asked whether makes sense to litigate the meaning of procurement statutes, regulations, and contracts in civil False Claims Act cases in the federal district