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Fourth Circuit Accepts "Implied Certification" Theory When Contractual Requirement Is Unambiguous and Material

Client Alert | 1 min read | 01.12.15

On January 8, 2015, the Fourth Circuit, in U.S. ex rel. Badr v. Triple Canopy, Inc., reversed the district court's dismissal of allegations that the contractor had submitted false claims by invoicing for security guards who had failed to pass the marksmanship proficiency test even though the contractor never affirmatively certified to the guard's shooting proficiency or presented to the government the false test cards allegedly created to hide the deficiency. The Court noted that the implied certification theory was "prone to abuse" and that it had previously "guarded against turning what is essentially a breach of contract into an FCA violation," but concluded the best manner for drawing the line was by "strict enforcement of the Act's materiality and scienter requirements" and, here, the marksmanship requirement was an objective criterion and its materiality demonstrated by the contractor's alleged falsification of the scoring cards which were required to be maintained under the contract.


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Client Alert | 4 min read | 10.30.26

Two Wrongs Don’t Make a Right: GAO Sustains Protest Where Agency Tried to Fix PIA Violation with a Second PIA Violation

Recent sustain decisions by the U.S. Government Accountability Office (GAO) in Fluor Federal Solutions, LLC and Reliance Test & Technology send a clear message: when an agency tries to fix a Procurement Integrity Act (PIA) violation by committing a second one, the cure can be just as fatal as the disease. The cases involved the U.S. Air Force’s $1.8 billion procurement for O&M services at Elgin Air Force Base. During discussions, the Air Force inadvertently released a pricing overview slide with all offerors’ bottom-line evaluated costs to Reliance Test & Technology, which immediately notified the agency of the error. In response, the Air Force decided to level the playing field by providing the same information to all the other offerors in the procurement, stating, “[o]fferors may consider this disclosure in their [final proposal revision].”...