In This Issue

Federal Government

Separating the Wheat from the Chaff or Undermining Congressional Intent? The US's Proactive Dismissals of Qui Tam Actions

One of the most important tools in the government’s anti-fraud toolbox is the federal False Claims Act (FCA),1 a Civil War–era statute with a treble damage remedy and qui tam2 provisions that incentivize and protect private persons who bring civil actions to recover damages arising from fraud on government programs.3 The use of a private attorney general to supplement the sovereign’s resources has roots in our country's statutes and in English law dating back hundreds of years.4 Private individuals are often much better situated, motivated, and even equipped to detect and redress wrongdoing. Indeed, in the last 30 years, qui tam actions have recovered more than $42 billion for the U.S. Treasury that otherwise potentially would have been lost as a result of fraud.5

National Security

Other Transactions: A Small Step for Public Contracting, a Giant Challenge for Protest Jurisdiction

Government agencies have relied on Other Transactions (OTs) for more than six decades, since NASA was granted the authority to enter into OTs via the Space Act in 1958.1 The Space Act OTs were specifically designed as flexible contractual instruments with the primary purpose of research and development (R&D) efforts.2 These OTs were a potent tool used by NASA to enhance the country’s abilities to excel in the “space race” occasioned by the Soviet Union’s launch of Sputnik in October 1957.3 NASA continued to adroitly leverage Space Act OTs to successfully implement the ambitious space program in response to President John F. Kennedy’s challenge to the nation in 1961 to claim a leadership role in space exploration, starting with the landing of a man on the Moon by the end of that decade. In a historic achievement of epic proportions, and in retrospect a resounding testimony to the efficacy and promise of OTs, the late President Kennedy’s vision was fully realized on July 20, 1969, when two American astronauts walked on the Moon. Since enactment of the Space Act, NASA developed its own culture, approach, and corresponding rules and procedures for the use of the Space Act OT that remains unique among federal agencies.4

Courts & Judiciary

"Defective Certifications” Under the CDA: The Federal Circuit Provides Some Clarity

As originally promulgated, the Contract Disputes Act (CDA) contained several ambiguities that became apparent as litigation unfolded over the subsequent decade. Among other issues, the CDA as interpreted by the Federal Circuit created a potential unfair scenario where a contractor could litigate a case through trial, expending years of effort and cost, only to discover that a technical infirmity in the original claim certification meant that the Board or court lacked jurisdiction from the outset, forcing the contractor to recommence the entire process from the beginning.

Public Contract

News from the Committees

Summary of Minutes, Commercial Products & Services Committee, February 13, 2020 Greg Pilotte introduced guest speaker Earl Pinto, Deputy Associate Administrator of General Services, who discussed “the cross-agency priority goal focused on implementing shared services known as ‘Sharing Quality Services’ [SQS] and what this means for the contracting community. Earl recently joined the GSA to lead this effort tied to the President’s Management Agenda [PMA].”