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The False Claims Act case against Lance Armstrong lasted longer than his 7 year Tour de France win streak.

While the settlement of the False Claims Act case against Lance Armstrong has generated a press release, a quick online search didn’t produce a copy of the actual agreement. So I filed a Freedom of Information Act request and the next day the Department of Justice provided me a copy of the Lance Armstrong settlement agreement.  Thank you, Team DOJ!  Below is my take on that agreement and what it tells us about the case.

The settlement amount

The settlement agreement provides that Lance Armstrong will pay $5 million to the Government and $1.65 million to the relator Floyd Landis. To put this in context, the Postal Service had paid about $40 million to sponsor Team Postal. Trebling that amount, and throwing in civil penalties and investigative costs, bumps up potential damages to well over $100 million. The settlement amount was thus less than 7 cents on the dollar.

Damages was always the Government’s weakness – because there weren’t any. This should have been apparent at the outset from the contemporaneous USPS reports on how much publicity and new revenue the Team Postal sponsorship had generated. These reports were poppycock, of course, but they still posed insurmountable problems for the Government’s case.…

Continue Reading What the Lance Armstrong settlement agreement tells us about the Government’s case

Does an unproven allegation of fraud or an improper termination for default limit a contractor’s ability to seek and obtain new contracts? Not automatically. According to the decision in Afghan American Army Services Corp. v. United States, No. 11-520C (Fed. Cl. Oct. 15, 2012) [pdf], contracting officials are required to conduct their own investigation and get the facts right before determining that a contractor is not responsible. Relying on unsupported conclusions of other government officials to justify a determination of non-responsibility is arbitrary and capricious.

The Army disqualified AAA from receiving a contract for trucking services in Afghanistan because AAA was deemed non-responsible. The determinative factor in the decision was a proposed debarment containing allegations that AAA had forged documents relating to an earlier trucking services contract. AAA had not previously been notified of the allegations and was not given an opportunity to rebut them. Rather than investigating the facts herself, the contracting officer simply assumed that AAA had violated criminal forgery statutes and had failed to take any corrective action.…

Continue Reading Unsupported fraud allegations don’t support a determination of nonresponsibility

Under a recent ruling by the U.S. Court of Appeals for the Ninth Circuit, contractors may face False Claims Act liability for the submission of false estimates, including fraudulent underbidding. In United States ex rel. Hooper v. Lockheed Martin Corporation, No. 11-55278 (9th Cir. Aug. 2, 2012) [pdf], the Ninth Circuit joined the First and Fourth Circuits in holding that “false estimates, defined to include fraudulent underbidding in which the bid is not what the defendant actually intends to charge, can be a source of liability under the FCA.”

In this case, a former Lockheed Martin employee alleged that the company intentionally underbid its proposal for the Air Force’s Range Standardization and Automation IIA (“RSA IIA”) program. Lockheed was awarded the RSA IIA contract in 1995, and since then it has been paid more than $900 million on a cost-reimbursement plus award fee basis. Hooper, the qui tam relator and former Lockheed employee, alleged that the employees preparing Lockheed’s RSA IIA bid were told to “lower their estimates without regard to actual costs.”…

Continue Reading Underbidding and faulty estimates may carry FCA liability

The U.S. District Court for the District of Columbia has issued a decision that may have a far-reaching impact on actions brought by the federal government under the False Claims Act. In United States v. First Choice Armor & Equipment, Inc., No. 09-1458 (D.D.C. Aug. 29, 2011) [pdf], the government asserted claims for fraudulent conveyances under the Federal Debt Collection Procedures Act in addition to its FCA and common law claims.  The court’s August 29 decision allows these claims to survive a motion to dismiss.…

Continue Reading Payment of fraudulent claims incurs a “debt” under the FDCPA

The Commission on Wartime Contracting’s final report [pdf] asserts that upwards of $60 billion in U.S. tax dollars have been lost to fraud, waste, and abuse in Iraq and Afghanistan over the past decade. The independent Commission was created in 2008 to assess contingency contracting for logistics, security, and reconstruction, as well as to make recommendations to Congress in order to improve contracting practices. The Commission’s final report blames the staggering losses on a lack of oversight, poor planning, and corruption. …

Continue Reading Fraud, waste and abuse in Iraq & Afghanistan contracts

Contractors beware: the U.S. Postal Service Office of Inspector General (OIG) thinks that $1 out of every $20 spent by USPS on its contractors is fraudulent, and OIG is itching to find it. According to a July 18, 2011 OIG blog article, “conservative business estimates project up to 5 percent of contracted dollars are lost to fraud, meaning $1.45 billion of Postal Service funds are potentially at risk.” While these numbers are fanciful, there is no doubt that the OIG is taking this seriously. Read on for more details.
Continue Reading Postal Service OIG steps up contract fraud investigations

Secrecy is not often associated with fairness in the American system of justice. One law that requires secrecy is the False Claims Act, which encourages and rewards private citizens who bring actions against those whom they believe have defrauded the government. Because these cases must be filed under seal, the defendant remains blind to the allegations until a government investigation is well underway. Even before the government is notified of alleged fraudulent behavior, the whistleblower or “qui tam relator” can obtain documentation and information necessary to investigate and file suit without going through a formal discovery process. Whistleblowers and their attorneys may even use a “ringer” to obtain evidence and avoid alerting a contractor of the potential suit.…
Continue Reading Secrecy in whistleblower lawsuits under the False Claims Act