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ASBCA Reconsiders CAS 418 Definition Of "Homogeneous Cost Pools"

Client Alert | 1 min read | 03.06.07

In a decision published on February 26, 2007, the Armed Services Board of Contract Appeals granted Appellant's motion for reconsideration of the widely criticized decision in AM General LLC, ASBCA Nos. 53610, 54741, 06-1 BCA ¶ 33,190, in which the Board had granted summary judgment to the Government, finding that an overhead cost pool that included some capital facilities used in production of the commercial HUMMER but was allocated to all HUMMER production did not comply with the homogeneity requirements of CAS 418 because those assets did not directly benefit production of the military version of the HUMMER. After considering the additional arguments of the contractor and of the National Defense Industrial Association as amicus curiae (represented by Crowell & Moring), the Board found that the evidence about the "homogeneity" of activities in the pool and the base at issue was insufficient to demonstrate a violation of CAS 418 and that the Government had failed even to address materiality ("a crucial test for determining homogeneity"), and for these reasons vacated its prior decision.

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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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