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Fixed-Price or Firm-Fixed-Price? Contractor’s Right to Seek Reimbursement of Legal Costs in Defending Qui Tam Suits

Client Alert | 1 min read | 11.20.18

On October 26, 2018, the Court of Federal Claims denied the government’s motion to dismiss a contractor’s lawsuit seeking reimbursement of legal costs incurred in defense of a False Claims Act qui tam suit, and found that the contractor sufficiently pled the requirements for allowability. Tolliver Group, Inc. v. United States, 2018 WL 5307076 (Fed. Cl. Oct. 26, 2018). Tolliver alleged that the legal costs are allocable to the initial fixed-price, level of effort contract, while the government argued that a modification changed the contract to firm-fixed-price—precluding any cost adjustments absent a contract clause providing otherwise. The Court found that the qui tam suit could only have been brought based on Tolliver’s work under the initial task order, and held that the terms and conditions under the initial contract remained in full force and effect, including—by operation of law under the Christian doctrine—the provisions of FAR § 31.205-47 covering allowable legal costs. 


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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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