Public Contract Law Journal

Reviving the Program Fraud Civil Remedies Act: Encouraging Widespread Utilization through Financial Incentives and a Centralized Administrative Tribunal

by Jonathan C. Martin

Jonathan C. Martin ( jon.martin019@gmail.com) is a 2017 graduate of The George Washington University Law School and a member of the Public Contract Law Journal. He wishes to  thank The Honorable Jeri K. Somers, Bryan M. Byrd, John P.  Fletcher, and Viviana Lowe for their insight and encouragement throughout the creation of this Note.  

I.  Introduction

The typical case of fraud against the federal government involves a relatively small dollar amount per false assertion or claim.1 Federal agencies often investigate and present these cases to the Department of Justice (DoJ), but the DoJ ultimately brings no formal proceedings against the wrongdoer.2 For example, a contractor once allegedly defrauded ten military bases by wrongfully inflating prices on each of the ten contracts: a total alleged fraud of $50,000.3 However, “no single base was defrauded for more than $6,000.”4 The Department of Defense (DoD) developed the case, and each military base presented its own allegation of fraud to a separate U.S. Attorney’s office, each of which declined to move forward because of the minimal dollar amount associated with each case.5 Around the same time period, a contractor intentionally overbilled the Naval Investigative Service on a “base maintenance contract” for a total amount the Navy suspected exceeded $600,000.6 Evidentiary issues forced the Navy to pursue criminal charges on only $25,000 of the false claims, and the DoJ again declined to prosecute the contractor because of the “low dollar amount involved.”7

Historically, many agency allegations of “small-dollar fraud” met similar fates — leaving the wrongdoer free of consequences and the agency without the means to recover its loss.8 By the early 1980s, however, Congress became well aware that instances of small-dollar fraud not only caused the government significant monetary losses9 but also “erod[ed] public confidence in the administration of [federal] programs.”10 In response, Congress enacted the Program Fraud Civil Remedies Act of 1986 (PFCRA)11 “to provide [de- frauded] agencies . . . with an administrative remedy to recompense . . . losses resulting from such [small-dollar false] claims and statements.”12 Congress believed PFCRA’s authorization for federal agencies to impose civil penalties would provide them with an effective and efficient tool by which to recover misappropriated government funds.13 Because widespread small-dollar fraud can result in substantial aggregate depletion of agency resources,14 Congress’s encouragement for agencies to use PFCRA’s mechanisms became critical.

Since its enactment in 1986, however, agencies only nominally use PFCRA’s mechanisms.15 Thus, the Act has almost entirely failed in its purpose of combating small-dollar fraud.16 PFCRA’s primary defect lies in its express requirement for all penalties recovered under PFCRA to be returned to the U.S. Treasury as “miscellaneous receipts.”17 In essence, this provision requires agencies to pay all legal costs associated with a PFCRA action without the opportunity to remedy losses incurred due to the fraud.18

Congress should amend the statute to allow federal agencies to apply penalties recovered under PFCRA to actual losses resulting from the fraud — with any surplus applied to investigation and litigation costs. Congress should further permit an agency to deposit any remaining penalties in excess of the actual loss and legal expenses into its respective “revolving PFCRA fund,” which would be used solely to fund future PFCRA investigations. These measures would provide agencies with an incentive to use PFCRA’s mechanisms to recover misappropriated government funds.

Furthermore, Congress should eliminate the procedural roadblocks associated with PFCRA actions. Each PFCRA action requires the DoJ’s approval19 and must be adjudicated by an administrative law judge (ALJ).20 These requirements serve as procedural roadblocks21 and work contrary to Congress’s intent for a PFCRA action to be more efficient than a traditional action in federal court.22 To resolve PFCRA’s inefficient procedural burdens, Congress should eliminate the DoJ approval requirement and place exclusive jurisdiction of all PFCRA claims in the boards of contract appeals (BCAs).23 These modifications would allow for quick and efficient adjudications of PFCRA actions.

Part I of this Note will detail the reasons why PFCRA has failed to serve as an effective tool for combating small-dollar fraud. It will next explain how providing agencies with a financial incentive to use PFCRA and reducing the procedural burdens of PFCRA actions can remedy this failure. Part II describes the PFCRA’s legislative history and purpose. Part III provides an overview of PFCRA’s statutory framework and explains its potential as an effective tool to combat small-dollar fraud. Part IV details federal agencies’ historical underutilization of the PFCRA and the reasons for its underuse. Finally, Part V shows how Congress can revive PFCRA as a formidable weapon against small-dollar fraud by amending the statute to permit agencies to retain penalties recovered under PFCRA and placing exclusive jurisdiction of PFCRA actions in the BCAs.

II.  Program Fraud Civil Remedies Act of 1986 — History & Purpose

Congress enacted PFCRA as a “sister scheme” to the False Claims Act (FCA).24 The FCA, a common tool for combating fraud in federal contracting,25 has produced civil penalties as high as $1,000,000,000.26 However, the DoJ rarely prosecutes cases where fraud does not cause a “substantial and identifiable” loss to the government under the FCA, largely due to the high costs of litigating in the federal court system.27 In an attempt to eliminate this “prosecutorial gap” between “high-dollar” and “small-dollar” fraud, Congress decided to enact a “Mini-False Claims Act,”28 formally known as the Program Fraud Civil Remedies Act of 1986.29 The primary legislative purpose for enacting PFCRA sought:

[T]o provide Federal agencies which are the victims of false, fictitious, and fraudulent claims and statements with an administrative remedy to recompense such agencies for losses resulting from such claims and statements, to permit administrative proceedings to be brought against persons who make, present, or submit such claims and statements, and to deter the making, presenting, and submitting of such claims and statements in the future.30

Further, Congress wanted “to provide due process protections to all persons who are subject to the administrative adjudication of false, fictitious, or fraudulent claims or statements.”31

Congress enacted PFCRA as a response to extensive fraud in federal programs occurring through the late 1970s and early 1980s.32 As a priority of his newly elected administration, President Ronald Reagan directed Congress to take concrete steps to curb such fraud in his first State of the Union address:

Waste and fraud are serious problems. Back in 1980, Federal investigators testified before one of your committees that “corruption has permeated virtually every area of the medicare and medicaid health care industry.” One official said many of the people who are cheating the system were “very confident that nothing was going to happen to them.”

Well, something is going to happen. Not only the taxpayers are defrauded — the people with real dependency on these programs are deprived of what they need because available resources are going not to the needy but to the greedy.

The time has come to control the uncontrollable.33

In its investigations, Congress found federal program fraud “pervasive” and specifically described fraud in procurement as being riddled with “mischarging, cross-changing [sic], and egregious over-charging.”34 In April 1985, due to the extreme prevalence of federal procurement fraud in the years leading up to PFCRA’s enactment, the DoD investigated forty-five of the top one hundred U.S. defense contractors for allegations of fraud or other wrongdoing.35 Congress and the Government Accountability Office (GAO) determined the federal government continuously incurred losses “in the hundreds of millions each year,” much of which would never be recovered.36

Congress’s concerns extended to the eroding effect program fraud would have on “public confidence” in government programs “[e]ven when no financial loss is apparent.”37 To remedy the decline of public confidence in federal programs, Congress knew it could not let “small-dollar” fraud cases go unnoticed.38 Congress recognized the DoJ’s focus on prosecuting fraud cases that caused significant depletion of government resources,39 leaving over sixty percent of false claim and statement cases unprosecuted.40 Knowing that litigation of every small-dollar fraud case would overcrowd the federal courts,41 Congress decided the United States needed a “government- wide statute” to “authoriz[e] [f]ederal agencies to bring administrative proceedings” and impose civil monetary penalties against those who have made a false claim or statement to a federal agency.42

III.  Statutory Framework of PFCRA

PFCRA’s overall statutory framework seeks to both efficiently resolve claims and provide due process protections to those alleged to have committed fraud.43 This part will first explain the standard for liability under PFCRA. Then, this part will detail the procedure for adjudicating a PFCRA claim. Finally, it will detail some aspects of PFCRA that exemplify PFCRA’s potential as an effective weapon for combating small-dollar fraud.

A.  Liability Under PFCRA

PFCRA holds liable the following persons: (1) “Any person who makes, presents, or submits . . . a claim that the person knows or has reason to know is false, fictitious, or fraudulent; includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;”44 and (2) “[a]ny person who makes, presents, or submits . . . a written statement that the person knows or has reason to know asserts a material fact which is false, fictitious, or fraudulent . . . and contains or is accompanied by an express certification.”45 While PFCRA limits liability for false statements to a civil penalty of $10,781 per false statement,46 liability for false claims includes a civil penalty of $10,781 per false claim in addition to an assessment of double the amount of damages sustained by the government as long as the claim has already been paid.47 Further, allegations of false claims or damages resulting from false claims exceeding $150,000 may not be adjudicated under PFCRA.48

B.  Administrative Procedure Under PFCRA

An action under PFCRA begins when allegations of fraud are presented to an agency’s “investigating official.”49 PFCRA defines an investigating official as the Inspector General (IG) of the particular agency.50 The investigating official may investigate the fraud allegations and must report all findings and conclusions to the “reviewing official.”51

The agency head appoints the reviewing official, any officer or employee of an agency, to evaluate the evidence and decide whether a PFCRA action should proceed.52 PFCRA forbids the investigating official to supervise the reviewing official.53 Upon receiving the investigating official’s findings and conclusions, the reviewing official must determine whether “there is adequate evidence to believe that a person is liable” for a PFCRA violation.54 If the reviewing official determines adequate evidence exists, the reviewing official must provide the Attorney General with a written notice of the intent to proceed with the administrative action.55

The Attorney General must provide notice of approval or disapproval within ninety days, and the reviewing official may not proceed without approval.56 Further, if the Attorney General determines that any continuation of a PFCRA action may adversely affect a DoJ civil or criminal action, the PFCRA action must be stayed until the Attorney General provides the agency with written authorization.57 The Attorney General has since authorized the Assistant Attorney General for the Civil Division of DoJ to act on notices from the reviewing official and approve or disapprove proceeding with the PFCRA action.58 Finally, administrative action under PFCRA may not proceed if the reviewing official determines the claim for liability will exceed the Act’s jurisdictional limit of $150,000.59

If adequate evidence exists, the claim for liability does not exceed the jurisdictional cap, and the DoJ consents to the PFCRA action, the reviewing official may refer the allegations to the “presiding officer.”60 PFCRA requires an ALJ to act as the presiding officer.61 Once the reviewing official refers the case to the presiding officer, the reviewing official must provide the accused party with a written notice, specifying each “allegation of liability” and “stat[ing] the right of such person to request a hearing.”62 The accused party may request a hearing within thirty days of receiving notice.63

Any determination of liability or “amount of any civil penalty or assessment” must be made by the presiding officer “on the record”64 based on a preponderance of the evidence.65 Then, a U.S. District Court may review the presiding officer’s determinations of liability upon petition.66 Such petition may only be filed (1) within sixty days of the agency sending its decision to the party found liable67 and (2) after the party exhausts all administrative remedies.68

C.  PFCRA’s Potential as a Promising Weapon for Fighting Small-Dollar Fraud

Despite deficient provisions of PFCRA hindering implementation and use by agencies,69 PFCRA contains certain characteristics that could make it a prominent weapon against small-dollar fraud. These features include: (1)  the stemming of liability directly from a violation of PFCRA,70 (2) the authority to assess double damages,71 and (3) the potential for substantial aggregate liability resulting from making multiple false claims or statements.72

1.   Liability Stems Directly from a Violation of PFCRA

Liability under PFCRA stems from a specific violation of PFCRA,73 such as knowingly submitting a false claim or statement to a federal agency,74 and thus requires no contractual relationship with the federal government or the alleging agency.75 Consequently, as this Note will explain below, various individuals throughout the bid preparation process may find themselves subject to PFCRA’s civil penalties or even double the damages that the government actually incurs.76 This might include lower level procurement employees, such as paralegals or law clerks, who might lack independence with respect to their role in the procurement process.77 Furthermore, each individual, as well as the organization itself, might be found liable for civil penalties and assessments under PFCRA if multiple individuals throughout the procurement process knew or had reason to know of the false claim or statement.78

To illustrate, imagine a law clerk employed by a small government con- tractor prepared a proposal for an upcoming competitive procurement. She presents the proposal to her supervisor for approval. Her supervisor re- views the bid and demands she revise the statements regarding the organization’s technical capabilities to a level that she knows or has reason to know are false. She brings this false statement to the attention of her supervisor. Her supervisor acknowledges the fraudulent statement but still insists that the law clerk proceed with the deceptive revisions. The law clerk performs the revisions, and her supervisor submits the proposal to the government. Eventually, the government determines the proposal produced the best value to the government, accepts the proposal, and enters into a contract with the organization. Upon discovering that the contractor submitted false statements, the government decides to seek civil penalties under PFCRA.

Here, the law clerk, the supervisor, and the contracting organization all participated in submitting the false statement. If liability under PFCRA relied on contractual privity, the government would be permitted to recover only from the organization with which it entered a contractual arrangement. However, because liability under PFCRA stems directly from the knowing submission of a false claim or statement to the government,79 the presiding officer may impose civil penalties on the supervisor, the law clerk, and the contracting organization for a single false claim.80

The above example demonstrates how Congress achieved two essential functions for combating small-dollar fraud by not requiring contractual privity for liability under PFCRA.81 First, the PFCRA’s deterrent effect is not limited to senior officials of an organization who contracts with federal agencies.82 Instead, PFCRA places an “affirmative duty” on all employees involved in the contracting process to be wary of the consequences of submitting false claims or statements to a government agency.83 “[S]elf imposed ignorance” will not excuse a party from liability under PFCRA.84 Second, agencies have a financial incentive to pursue actions under PFCRA because of the potential for levying assessments and penalties against several defendants relating to the same set of false claims or statements. When the government pursues penalties and assessments against multiple defendants for the same set of false claims or statements, the government can better allocate its investigation and legal costs across the various allegations. Further, the potential of levying several $10,781 penalties on a single claim or statement encourages the agency to pursue the PFCRA action. These financial incentives are essential for agencies to effectively utilize PFCRA mechanisms.

2.  PFCRA Authorizes Assessments of Double Damages

For any PFCRA violation resulting from a false claim paid by an agency,85 the presiding officer may elect imposing an assessment of up to double the amount of the loss sustained by the agency.86 Allowing the presiding officer to double the damages to a federal agency resulting from a false claim serves two essential functions for combating procurement fraud. First, the presiding officer’s authority to assess double damages serves as a deterrent. The threat of a double damages assessment, together with a corporation’s susceptibility to PFCRA liability under the principles of respondeat superior,87 encourages contractors to institute controls ensuring its employees do not engage in behavior liable under PFCRA. Second, the promise of granting double damages provides federal agencies with another significant financial incentive to implement and utilize PFCRA.88 With recovery limited to the minimal damages sometimes associated with instances of small-dollar fraud, a cost-benefit analysis might render a PFCRA action unappealing or even infeasible.89

For example, assume Agency X paid out $6,000 on a false claim made by Contractor Y and incurred $4,000 in costs associated with a PFCRA investigation and litigation. Under these circumstances, Agency X would not likely choose to incur the $4,000 cost in pursuit of an assessment of $6,000 against Contractor Y. However, a potential assessment of $12,000 against Contractor Y makes the option of pursuing a PFCRA action and incurring the investigation and litigation expenses more attractive.

3.  One False Statement May Produce Several Penalties

Under PFCRA, each false statement submitted to a federal agency carries a potential penalty of $10,781.90 Because some areas of federal procurement regulations require a contractor to make multiple certifications of the same or similar statement,91 a contractor might find itself incurring several penalties under PFCRA for essentially one false statement.92 This potential for multiple liabilities arising from a single false statement operates both as a deterrent against submitting false statements and as a financial incentive for agencies to use PFCRA.

First, contractors subject to regulations requiring multiple certifications of similar statements would be wary of submitting any misrepresentation. Again, the threat of substantial liability would likely encourage contractors to establish controls to ensure consistency and accuracy throughout the procurement process. Second, agencies using contracts that require multiple certifications of the same or similar facts would be more likely to bring PFCRA actions because they can recover a civil penalty for each false statement.

IV.  Underutilization of PFCRA

Since its enactment in 1986, agencies employed PFCRA to combat fraud  far less frequently than Congress envisioned.93 In fact, the vast majority of federal agencies essentially ignored the statute’s existence.94 Despite Congress’s awareness of this underutilization, it has not made significant changes to PFCRA’s statutory structure.95 Congress twice requested the GAO to provide information on the implementation and use of PFCRA by the various agencies.96 On each occasion, GAO reports demonstrated minimal agency implementation and usage of PFCRA97 as well as detailed reasons for its underuse.98 This section will give a brief history of PFCRA’s under-utilization by federal agencies, followed by an explanation of why PFCRA has not been used more often.

A.  Historical Use of PFCRA by Federal Agencies Has Been Low

When enacting PFCRA, Congress’s primary goal was to deter “against future fraud by dispelling the perception that small-dollar frauds against the government may be committed with impunity.”99 In other words, Congress desired for PFCRA’s extensive utilization to eliminate the “open invitation” provided by the DoJ to small-dollar defrauders when the DoJ declined to prosecute “nickel and dime” frauds.100

To date, PFCRA has far from accomplished this goal. From October 21, 1986, through September 30, 1990, the GAO reported only seven agencies’ submissions of PFCRA cases to the DoJ for approval.101 In the same time period, these seven agencies identified a total of 212 cases for an investigating official’s review, of which the official referred only forty-one cases to the DoJ for approval.102 By the time Congress asked the GAO to revisit PFCRA’s implementation in 2012,103 only five agencies used PFCRA between 2006 and 2010.104 During the four-year period, these agencies referred a total of 141 cases to the DoJ, with the Department of Housing and Urban Development (HUD) initiating 135 of those cases.105 These statistics indicate that, with the exception of HUD, agencies failed to employ PFCRA to eliminate the “open invitation [given] to those individuals tempted to defraud the [f]ederal government.”106

B.  Reasons for PFCRA’s Underutilization

PFCRA’s underutilization stems from two critical weaknesses in the PFCRA framework. First, PFCRA fails to properly induce the DoJ to utilize PFCRA mechanisms.107 Second, PFCRA contains several procedural roadblocks that act contrary to Congress’s goal of “establish[ing] a more expeditious . . . procedure to recoup losses, compared with the extensive investments of time . . . required to litigate in [f]ederal court.”108

1.   PFCRA’s Framework Fails to Encourage Agencies to Use Its Mechanisms

Under the current PFCRA framework, several provisions restrict the ability and willingness of federal agencies to pursue an action under PFCRA. First, an agency must bear the cost of investigating and litigating a PFCRA action.109 Not only must agencies pay for all investigative and discovery costs up-front, but PFCRA also fails to provide agencies with any reimbursement of litigation expenses from those persons who are found responsible for PFCRA violations.110 PFCRA’s failure to permit agency retention of civil penalties and assessments further compounds this disincentive.111 With the exception of recoveries made by the U.S. Postal Service (USPS) and the Department of Health and Human Services (HHS),112 PFCRA recoveries must be returned as “miscellaneous receipts” to the U.S. Treasury,113 further limiting a defrauded agency’s ability for “recompense[ation].”114 This framework offers more incentive for a defrauded agency to ignore instances of small-dollar fraud and limit its losses, effectively removing any deterrent effect PFCRA might have.115

PFCRA also discourages the DoJ from pursuing PFCRA actions due to the Act’s $150,000 jurisdictional limit on recovery116 — a relatively low recovery amount in comparison to potential recoveries under other fraud statutes, such as the FCA.117 As previously mentioned, the DoJ ultimately approves or rejects the administrative adjudication of a PFCRA action.118 Despite the need to combat instances of small-dollar fraud, the DoJ cannot be expected to expend its limited resources to litigate every instance of small- dollar fraud.119 Thus, the DoJ likely views PFCRA actions as low priority,120 especially when presented with a choice between a PFCRA action with limited recoveries versus a high-dollar fraud case under the FCA with the potential for recoveries in the millions.121

2.  PFCRA’s Procedural Roadblocks

Though Congress wanted to provide agencies with an administrative remedy for losses resulting from small-dollar fraud,122 it also intended to retain DoJ’s ability to litigate these cases in the federal court system.123 In addition, Congress desired to provide accused parties with due process protections.124 For these reasons, PFCRA requires agencies to follow a complicated procedural process before a PFCRA complaint may be filed — a process that limits their ability to quickly resolve PFCRA cases.125

As noted above, a PFCRA investigation begins when an agency’s IG becomes aware of and decides to investigate allegations of a potential PFCRA violation.126 Here, the first procedural obstacle arises because the agency’s IG must report all findings to the agency’s reviewing official and the reviewing official possesses exclusive authority to determine whether adequate evidence exists to proceed with the action.127 The IG reporting requirement seems superfluous because IGs often participate in preliminary fraud investigations and would likely be better positioned to make the adequate evidence determination.128 The requirements of an IG report and approval by a reviewing official seem unnecessary and restrict the ability of an agency to quickly resolve a PFCRA action.129

PFCRA’s requirement for a written notice of intent to refer the case to the presiding officer, which the reviewing official must provide to the Assistant Attorney General of the DoJ Civil Division, further complicates the process.130 In addition, the reviewing official may not refer the case to the presiding officer prior to receiving the Assistant Attorney General’s express approval.131 As noted above, PFCRA requires the Assistant Attorney General to notify the reviewing official of approval or disapproval within ninety days,132 but the DoJ may stay a proceeding that adversely affects a criminal or civil action in federal court at any time.133 This automatic stay of PFCRA proceedings occasionally renders the evidence stale or enables the statute of limitations to pass.134 The requirement of DoJ approval for each PFCRA action further lengthens an administrative process that Congress intended to be “more expeditious” than a traditional judicial action.135

The requirement for an ALJ serving as the presiding officer acts as another procedural impediment to a PFCRA action.136 Though many agencies directly employ ALJs, an independent process conducted by the Office of Personnel Management (OPM) selects and certifies them.137 Despite agencies’ authorization to employ as many ALJs as they deem necessary, certain agencies do not employ ALJs at all.138 For example, the DoD does not employ ALJs, but it does employ Administrative Judges (AJs).139 Despite similarities between AJs and ALJs, PFCRA expressly restricts the authority to preside over a PFCRA claim to ALJs.140 Thus, to administer a PFCRA claim, the DoD must request and pay for an ALJ detail from OPM or another agency.141 Further, agencies may be reluctant to overload an ALJ’s workload with PFCRA claims.142

V.  Proposed Reform of  PFCRA

As noted above, federal agencies underutilize PFCRA because the Act fails to encourage agencies’ usage of its mechanisms and involves significant procedural roadblocks.143 This section will first explain how financial incentives will promote agency utilization of PFCRA. Then, this section will demonstrate how placing exclusive jurisdiction in an existing procurement dispute forum will alleviate PFCRA’s procedural roadblocks while maintaining due process protections for those accused of PFCRA violations.

A.  Provide Agencies with Financial Incentive to Pursue PFCRA Actions

As previously mentioned, the non-reimbursable investigative and legal costs associated with a PFCRA action discourage agencies from pursuing such actions.144 The requirement to deposit all assessments and penalties recovered by an agency in a PFCRA action into the U.S. Treasury as miscellaneous receipts further dissuades defrauded agencies from using PFCRA mechanisms.145 These financial disincentives make it impractical for agencies to pursue a PFCRA action, resulting in PFCRA’s underuse.146

On the other hand, PFCRA’s “sister scheme”147 — the FCA — has been quite effective in combating large scale procurement fraud,148 in part because of the potential for defrauded agencies to be “made whole” by the civil penalties and assessments.149 The FCA does not address agency retention of monies obtained through FCA actions;150 instead, the “Miscellaneous Receipts” statute governs this issue.151 This statute provides that an agency “receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.”152 However, in FCA actions, the statute permits federal agencies to retain recoveries not exceeding the amount of actual damages sustained by the defrauded agency.153 Therefore, agencies have an incentive to “invest” in FCA actions because of the potential return on such investment.154

Congress should reform PFCRA to provide agencies with an incentive similar to the ones in the FCA. Congress could accomplish this incentive by eliminating Section 3806(g)(1)’s requirement to return all civil penalties and assessments as “miscellaneous receipts” to the U.S. Treasury.155 All monies obtained through PFCRA actions should, instead, be applied in the following manner. Any monies recovered should first be applied to any actual loss suffered as a result of a fraudulent claim. If a surplus remains after the agency is “recompense[d]”156 for its actual losses, the surplus should then be applied to any administrative, investigative, or legal costs incurred by the agency for the PFCRA action, thus making the defrauded agency “whole.”

Further, if surplus remains after making an agency whole, the surplus should be returned to the U.S. Treasury — but not as a miscellaneous receipt. Instead, each agency employing PFCRA’s mechanisms should be granted a designated “PFCRA Revolving Fund,” containing any excess recovery above what makes the agency whole. Each agency should then be able to use its fund to support the administrative, investigative, and legal costs of any future PFCRA actions. Reforming PFCRA to include this financial incentive would allow PFCRA to serve its legislative purpose of “provid[ing] [f]ederal agencies with an administrative remedy to recompense them for losses resulting from false claims and statements . . . [and] to deter such fraudulent behavior in the future.”157

B.  Grant Exclusive Jurisdiction of PFCRA Claims to an Existing Procurement Dispute Forum

Congress can alleviate the procedural burdens of PFCRA actions by placing exclusive jurisdiction of PFCRA claims in an existing procurement dispute forum. With its enactment of PFCRA, Congress intended “to provide due process protections to all persons who are subject to the administrative adjudication of false claims and statements.”158 Congress may have afforded such protections by requiring DoJ’s approval for any PFCRA action and an ALJ to act as the presiding officer,159 but the statutory scheme resulted in a cumbersome and time-consuming process, placing a significant procedural burden on the defrauded agency.160 To alleviate this burden, Congress should remove the DoJ approval and ALJ requirements by placing exclusive jurisdiction of PFCRA actions in an existing tribunal. This part gives an overview of existing procurement dispute forums and explains why Congress should grant exclusive jurisdiction of PFCRA claims to the boards of contract appeals.

1. Overview of Existing Procurement Dispute Forums

Several forums are capable of significantly alleviating the procedural burden of pursuing PFCRA actions while still maintaining due process protections to those accused of PFCRA violations.161 Because instances of small-dollar fraud often arise out of procurement matters,162 Congress should place jurisdiction of PFCRA actions in a forum experienced in the field of government contracting. This part will provide an overview of three existing procurement dispute forums: the U.S. Court of Federal Claims, the Government Accountability Office, and the boards of contract appeals.

a.   U.S. Court of Federal Claims

The Federal Courts Improvement Act of 1982 established the modern U.S. Court of Federal Claims (COFC) pursuant to Article I of the U.S. Constitution.163 COFC is a court of national jurisdiction permitted to hold proceedings anywhere within the United States.164 The President appoints COFC judges, subject to Senate confirmation,165 to serve fifteen-year terms.166 Despite the President’s statutory authorization to appoint up to sixteen judges,167 COFC currently maintains a roster of only ten active judges.168 Further, COFC judges may attain “senior status” upon retirement.169 When COFC needs additional support for efficient claim adjudication, the chief judge may call upon these senior judges “to perform such [judicial] duties” with the COFC.170 COFC currently retains the services of seven senior judges.171

Though COFC adjudicates an assortment of claims against the United States, such as tax refund suits and takings claims,172 it also takes an active role in bid protest resolution.173 Despite its role as the exclusive judicial forum for bid protest resolution,174 COFC lacks any requirement for its judges to have experience in government contract law.175 However, given the high volume of government contracts cases resolved by COFC, virtually all COFC judges develop meaningful government contracts experience.176

COFC follows the Rules of the U.S. Court of Federal Claims (RCFC),177 which are based on the Federal Rules of Civil Procedure.178 Thus, COFC operates much like a U.S. District Court.179 When a plaintiff challenges agency actions in COFC, a DoJ attorney represents the agency.180 A single COFC judge conducts and decides any COFC action reaching trial on the merits.181

Throughout a COFC proceeding, interested parties maintain the duty of informing the COFC judge of any pending “directly related” cases,182 which the judge sometimes consolidates into the case at hand.183 Finally, COFC provides litigants with optional accelerated or expedited procedures, such as minitrials and early neutral prediction.184 Any decision rendered by COFC may be appealed directly to the U.S. Court of Appeals for the Federal Circuit.185

b.  Government Accountability Office

Congress established the Government Accounting Office, now known as the Government Accountability Office (GAO),186 in 1921187 to act as “an instrumentality of the United States Government independent of the executive departments.”188 The Comptroller General serves as the head of the GAO,189 a position appointed by the President and confirmed by the Senate.190 The Comptroller General’s primary responsibilities range from “investigat[ing] all matters related to the receipt, disbursement, and use of public money”191 to “evaluat[ing] the results of a program or activity the Government carries out.”192

Apart from its auditing and oversight function, the GAO holds a reputation for its experience in federal procurement and its particular expertise in bid protests.193 The GAO has administered bid protests since the early twentieth century.194 The GAO’s Procurement Law Control Group within the Office of General Counsel, rather than judges, administers the bid protest process; it consists of attorneys with expertise in public procurement.195 The GAO’s authorization allows it only to make recommendations, and thus, it may not compel the agency to implement its recommendations.196 However, because the GAO must report any noncompliant agencies to Congress each year,197 they ordinarily employ the GAO’s recommendations.198

Required by statute to “provide for the inexpensive and expeditious resolution of protests,”199 the GAO prides itself on offering an “easy and inexpensive” protest process and issuing decisions “not later than 100 days from the date” of filing.200 Along with its strict 100-day timeline, the GAO provides significant opportunity for parties to resolve disputes prior to a recommendation.201 For example, the GAO may provide alternative dispute resolution (ADR) in the form of outcome prediction, where a GAO attorney meets with the parties and discloses the likely outcome of the protest.202 When the GAO attorney predicts that the protest will be sustained against the agency, the agency often takes voluntary corrective action prior to receiving the GAO’s formal recommendation.203 The GAO’s protest decisions may not be directly appealed to any judicial forum.204 However, the statute expressly preserves “the right of any interested party to file a protest with the contracting agency or to file an action in [COFC].”205

c.  Agency Boards of Contract Appeals

The Contract Disputes Act of 1978 (CDA) authorizes the agency boards of contract appeals (BCAs).206 The CDA provides that the BCAs shall “to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes.”207 The BCAs, quasi-judicial forums “quite distinct” from their associated agencies, act independent of traditional agency supervision.208 Unlike COFC judges and GAO attorneys, BCA judges must have at least five years of experience in government contracts law and must “be selected and appointed in the same manner as [ALJs].”209

Generally, a panel of three BCA judges oversees a contract dispute, with one “presiding judge” administering the majority of the case and two “panel judges” providing support.210 Agency attorneys, as opposed to DoJ attorneys, represent the agency before the BCAs.211 The BCAs also provide procedures for small claims, accelerated procedures, and alternative dispute resolution, permitting flexibility in the adjudicative process.212 A BCA decision may be appealed directly to the U.S. Court of Appeals for the Federal Circuit.213

2. The BCAs — The Ideal Choice for Exclusive PFCRA Jurisdiction

Congress can alleviate the procedural burdens under PFCRA by placing exclusive jurisdiction of all PFCRA actions in the BCAs. The BCAs can preside over PFCRA actions better than ALJs, COFC judges, and the GAO because the BCA judges are: (1) experienced in government contracts matters, appointed in the same manner as ALJs, and (3) required by statute to resolve claims efficiently.

BCA judges are required to have at least five years of government contracts experience.214 As noted above, PFCRA actions often involve procurement fraud;215 thus, BCA judges should be better suited than ALJs to grasp the issues involved in a typical PFCRA action. BCA judges must also be selected and appointed in the same manner as ALJs.216 Accordingly, transferring PFCRA adjudication authority from ALJs to BCA judges would be a modest shift in PFCRA’s structure. On the other hand, moving PFCRA jurisdiction to COFC would directly contradict Congress’s concern of overloading federal court dockets.217 Finally, the BCAs would likely provide efficient and inexpensive adjudication of PFCRA claims.218 Further, agencies that do not employ an ALJ, such as the DoD, would no longer be required to pay for an ALJ detail to bring a PFCRA action.219 Instead, a defrauded agency lacking any employed ALJs would simply bring a PFCRA action in its respective BCA. The BCAs’ process for decision-making also focuses on expeditious adjudication of all claims brought before the BCAs220 — a focus which directly aligns with Congress’s intent behind PFCRA.221

Once Congress places exclusive jurisdiction of PFCRA actions in the BCAs, PFCRA procedures would be affected in the following ways. First, instead of requesting the DoJ for approval of its PFCRA action, an agency’s IG would refer its case directly to its BCA. Each BCA should establish procedural and evidentiary requirements for bringing a PFCRA claim. The requirement of adequate evidence for a PFCRA action being instituted should also remain.

Further, moving PFCRA claims to the BCAs limits the DoJ’s ability to stay proceedings. Rather than PFCRA’s current provision allowing the DoJ to unilaterally stay proceedings through a simple written notification,222 the BCAs generally require the government to file a motion to stay proceedings before a stay will be granted.223 The DoJ would still retain the opportunity to intervene or suspend proceedings adverse to pending litigation but would be required to do so through an active motion filed with the BCA.

VI.  CONCLUSION

Though often unnoticed by the media and citizens, small-dollar fraud continues to hamper federal programs.224 PFCRA always had the potential to combat these instances of small-dollar fraud, yet because of its financial disincentives and procedural obstacles, federal agencies rarely used its mechanisms.225 Amending PFCRA to allow defrauded agencies to be “made whole” by PFCRA recoveries would give agencies the incentive to “invest” in PFCRA proceedings.226 Shifting jurisdiction of all claims brought under PFCRA to the BCAs would remove much of the procedural burden from the federal agencies and the DoJ. This burden would instead shift to the BCAs, which are much more capable of handling such a burden. These reforms to PFCRA’s statutory structure would bring PFCRA to the forefront as a weapon against small-dollar fraud in federal contracts, allowing PFCRA to finally serve its initial purpose of “recompens[ing]” agencies for losses suffered as a result of small-dollar fraud and “deter[ring] future instances of small-dollar fraud.”227

Entity:
Topic:
  1. COMM. ON GOVERNMENTAL AFFAIRS, THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1985, S. REP. NO. 99-212, at 5 (1985).
  2. See id. (discussing the DoJ’s “high declination rate” of pursuing allegations of fraud).
  3. Id. at 6.
  4. Id.
  5. See id.
  6. Id.
  7. See id.
  8. See U.S. GEN. ACCOUNTING OFFICE, AFMD-81-57, FRAUD IN GOVERNMENT PROGRAMS: HOW EXTENSIVE IS IT?—HOW CAN IT BE CONTROLLED? 29 (1981) [hereinafter FRAUD IN GOVERNMENT PROGRAMS] (“U.S. attorneys or Department of Justice headquarters declined to prosecute about 14 percent of the cases because they considered the dollar loss insignificant or there was no loss to the Government.”); see also S. REP. NO. 99-212, supra note 1, at 5–6 (detailing several instances where the DoJ declined to prosecute allegations of small-dollar fraud).
  9. See S. REP. NO. 99-212, supra note 1, at 2; see also FRAUD IN GOVERNMENT PROGRAMS, supra note 8, at 4 (stating that in 1977, the federal government lost “close to $600 million a year” from improper issuance of food stamp benefits and that available data shows that at least five food stamp programs incurred half of their losses from “suspected fraud”).
  10. S. REP. NO. 99-212, supra note 1, at 2.
  11. Program Fraud Civil Remedies Act of 1986, Pub. L. No. 99-509, 100 Stat. 1934 (codified as amended at 31 U.S.C. §§ 3801–3812 (2012)).
  12. Id. § 6102(b)(1).
  13. S. REP. NO. 99-212, supra note 1, at 6–7 (“Such an administrative remedy . . . would allow the government to recover money that, up until now, has been irretrievably lost to fraud.”).
  14. See id. at 2; see also FRAUD IN GOVERNMENT PROGRAMS, supra note 8, at 4.
  15. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-12-275R, PROGRAM FRAUD CIVIL REMEDIES ACT: OBSERVATIONS ON IMPLEMENTATION 18, 20–21 (2012); see also Michael Davidson, Combating Small-Dollar Fraud Through a Reinvigorated Program Fraud Civil Remedies Act, 37 PUB. CONT. L.J. 213, 218–19 (2008).
  16. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 18, 20–21.
  17. 31 U.S.C. § 3806(g)(1) (2012) (“[A]ny amount of penalty or assessment collected under this chapter shall be deposited as miscellaneous receipts in the Treasury of the United States.”).
  18. See Davidson, supra note 15, at 232; U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 26 (showing that “[p]enalty amounts [being] sent to U.S. Treasury, not the agency” was a preeminent factor that limited agency use of PFCRA).
  19. 31 U.S.C. § 3803(b)(2) (stating that the DoJ must give written approval before any PFCRA action may proceed to a hearing).
  20. 31 U.S.C. § 3801(a)(7) (defining “presiding officer” as an ALJ).
  21. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 26 (showing that Inspectors General viewed the “PFCRA process [as] too cumbersome”).
  22. See S. REP. NO. 99-212, supra note 1, at 6.
  23. See generally Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2012).
  24. Vt. Agency of Nat. Res. v. United States ex. rel. Stevens, 529 U.S. 765, 786 (2000); False Claims Act, 31 U.S.C. §§ 3729–3733 (2012).
  25. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-320R, INFORMATION ON FALSE CLAIMS ACT LITIGATION 1 (2006).
  26. Top 100 FCA Cases, TAXPAYERS AGAINST FRAUD EDUC. FUND, http://www.taf.org/general-resources/top-100-fca-cases [https://perma.cc/UJ26-SMRX] (compiling the largest FCA judgments).
  27. S. REP. NO. 99-212, supra note 1, at 5.
  28. See Davidson, supra note 15, at 215 (citing Paul E. Pompeo, The Jury’s Out—A Seventh Amendment Challenge to the Program Fraud Civil Remedies Act, 12 GEO. MASON L. REV. 207, 207 (1990)).
  29. Program Fraud Civil Remedies Act of 1986, Pub. L. No. 99-509, 100 Stat. 1934 (codified as amended at 31 U.S.C. §§ 3801–3812 (2012)).
  30. § 6102(b)(1), 100 Stat. at 1934 (emphasis added).
  31. § 6102(b)(2), 100 Stat. at 1934 (emphasis added).
  32. See § 6102(a), 100 Stat. at 1934; FRAUD IN GOVERNMENT PROGRAMS, supra note 8, at 4.
  33. PRESIDENT RONALD REAGAN, STATE OF THE UNION MESSAGE, H.R. DOC NO. 97-133, at 5 (1982).
  34. S. REP. NO. 99-212, supra note 1, at 2.
  35. Federal Securities Laws and Defense Contracting—Part 2: Hearing Before the Subcomm. on Oversight & Investigations of the Comm. on Energy & Commerce, 99th Cong. III, 514 (1985) (statement of Joseph H. Sherick, Inspector General, Department of Defense).
  36. S. REP. NO. 99-212, supra note 1, at 2; see FRAUD IN GOVERNMENT PROGRAMS, supra note 8, at 4.
  37. S. REP. NO. 99-212, supra note 1, at 2.
  38. See id. at 2, 5 (noting the DoJ’s high declination rates of small-dollar fraud cases).
  39. Id. at 5.
  40. Id.
  41. Id.
  42. Id. at 4, 7.
  43. Id. at 2; Program Fraud Civil Remedies Act of 1986, Pub. L. No. 99-509, § 6102(b), 100 Stat. 1934, 1934 (codified as amended at 31 U.S.C. §§ 3801–3812 (2012)).
  44. 31 U.S.C. § 3802(a)(1) (2012) (emphasis added).
  45. Id. § 3802(a)(2) (emphasis added).
  46. Id. The maximum civil penalty under PFCRA per false claim or statement was originally $5,000, but since has been increased to $10,781 pursuant to new DoJ regulations. See 28 C.F.R. § 85.5 (2016) (“Adjustments to penalties for violations occurring after November 2, 2015”).
  47. 31 U.S.C. § 3803(a)(1), (3).
  48. Id. § 3803(c)(1).
  49. Id. § 3803(a).
  50. Id. § 3801(a)(4)(A)(i).
  51. Id. § 3803(a)(1).
  52. Id. § 3801(a)(8)(A).
  53. Id. § 3801(a)(8)(C).
  54. Id. § 3803(a)(2).
  55. Id. § 3803(b).
  56. Id. § 3803(b)(1).
  57. Id. § 3803(b)(3).
  58. 28 C.F.R. § 71.52 (2015) (“Approval of Agency requests to initiate a proceeding”).
  59. 31 U.S.C. § 3803(c)(1).
  60. See id. § 3803(b)–(c).
  61. Id. § 3801(a)(7)(A).
  62. Id. § 3803(d)(1).
  63. Id. § 3803(d)(2).
  64. Id. § 3803(f).
  65. Id.
  66. Id. § 3805(b)(1)(A).
  67. Id. § 3805(b)(1)(B)(ii).
  68. Id. § 3805(b)(1)(B)(i).
  69. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 23–26 (compiling IG views on the reasons for PFCRA’s failure); see also U.S. GEN. ACCOUNTING OFFICE, GAO/AFMD-91-73, PROGRAM FRAUD: IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 10–11, 18–19 (1991) [hereinafter PROGRAM FRAUD: IMPLEMENTATION] (same).
  70. See 31 U.S.C. § 3802(a); see also Daniel A. Bellman, The Program Fraud Civil Remedies Act, BRIEFING PAPERS, Mar. 1988, at 5.
  71. 31 U.S.C. § 3802(a)(1); see also Bellman, supra note 70, at 5.
  72. See 31 U.S.C. § 3802(a)(1), (2) (stating that a civil penalty may be imposed for each false claim or statement); see also Bellman, supra note 70, at 6.
  73. See 31 U.S.C. § 3802(a); Bellman, supra note 70, at 5.
  74. See 31 U.S.C. § 3802(a).
  75. See Bellman, supra note 70, at 5–6; cf. 31 U.S.C. § 3802(a).
  76. See Bellman, supra note 70, at 5–6.
  77. See id. at 6.
  78. Id. at 5 (stating that a company itself can be held liable based on the “collective knowledge” of the organization) (endnote omitted); S. REP. NO. 99-212, supra note 1, at 22 (“[T]he corporation would be held responsible for the collective knowledge of its employees under the doctrine of respondeat superior.”).
  79. 31 U.S.C. § 3802(a).
  80. See Bellman, supra note 70, at 5.
  81. See id. at 8.
  82. See id.
  83. S. REP. NO. 99-212, supra note 1, at 21–22.
  84. Id. at 21.
  85. Under PFCRA, damages resulting from a false claim occur only when the federal agency made payment on the false claim and the assessment may only be calculated based on the portion of the claim that is false. 31 U.S.C. § 3802(a)(1); Bellman, supra note 70, at 5.
  86. 31 U.S.C. § 3802(a)(1); Bellman, supra note 70, at 5.
  87. See S. REP. NO. 99-212, supra note 1, at 22; see also Bellman, supra note 70, at 5.
  88. This financial incentive to implement and utilize PFCRA would truly exist only if the Act were reformed to allow agency retention of recoveries under PFCRA. Cf. 31 U.S.C. § 3806(g) (2012) (requiring that all assessments and penalties recovered be returned to the Treasury as miscellaneous receipts); Davidson, supra note 15, at 234 (proposing that PFCRA be amended to remove the requirement that all penalties be deposited to the Treasury as miscellaneous receipts).
  89. See S. REP. NO. 99-212, supra note 1, at 5 (explaining that the DoJ’s high declination rates were based on a cost-benefit analysis, which found that the costs of litigating a small-dollar fraud allegation exceed the potential recoveries).
  90. See 28 C.F.R. § 85.5 (2016); 31 U.S.C. 3802(a).
  91. See Bellman, supra note 70, at 6 (“For example, in the case of a small business set-aside supply contract, you must certify . . . both that you are a small business concern and that the supplies you will furnish will be manufactured by a small business concern.”) (endnote omitted).
  92. See id.
  93. See Davidson, supra note 15, at 214 (“PFCRA has proved largely ineffective as a vehicle for addressing small-dollar fraud.”).
  94. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 20–21 (showing that only five agencies investigated PFCRA claims between 2006 and 2010).
  95. See generally id.; PROGRAM FRAUD: IMPLEMENTATION, supra note 69, at 4–8.
  96. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 1; PROGRAM FRAUD: IMPLEMENTATION, supra note 69, at 1.
  97. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 19–21; PROGRAM FRAUD: IMPLEMENTATION, supra note 69, at 4–8 (showing that only seven agencies referred PFCRA cases for DoJ approval between 1986 and 1990).
  98. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 24–26 (compiling views of the IG on PFCRA’s underutilization, including “PFCRA process is too cumbersome” and the low availability of ALJs).
  99. S. REP. NO. 99-212, supra note 1, at 6–7.
  100. See id. at 34.
  101. PROGRAM FRAUD: IMPLEMENTATION, supra note 69, at 1, 6. These agencies were U.S. Postal Service, Department of Labor, Department of Defense, Department of Housing and Urban Development, Health and Human Services Department, Department of Transportation, and General Services Administration. Id.

  102. Id.
  103. See generally U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15.
  104. Id. at 20–21. These agencies were Department of Housing and Urban Development, Corporation for National and Community Service, Department of Energy, Department of Health and Human Services, and the Nuclear Regulatory Commission. Id.
  105. Id. at 21.
  106. See S. REP. NO. 99-212, supra note 1, at 34.
  107. See NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., PROCUREMENT FRAUD: LEGISLATIVE AND REGULATORY REFORM PROPOSALS 9 (2008).
  108. S. REP. NO. 99-212, supra note 1, at 6.
  109. Davidson, supra note 15, at 232. These costs include retention of agency counsel, discovery costs and, in the case of the DoD, the cost of hiring an ALJ. Id.
  110. Id. at 232–33.
  111. See 31 U.S.C. § 3806(g)(1) (2012).
  112. Id. § 3806(g)(2).
  113. Id. § 3806(g)(1).
  114. See S. REP. NO. 99-212, supra note 1, at 2.
  115. See Davidson, supra note 15, at 233 (“[I]t is simply not worth the time and effort required to pursue a PFCRA case.”); NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., supra note 107, at 9 (“For example, in a 2002 Army PFCRA test case, the projected cost of fully litigating the case exceeded the maximum recovery.”) (footnote omitted).
  116. See 31 U.S.C. § 3803(c)(1) (2012).
  117. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 26–28.
  118. See 31 U.S.C. § 3803(b)(1).
  119. See S. REP. NO. 99-212, supra note 1, at 5 (“This failure to prosecute and to recover money lost to fraud, some maintain, is the result of a prosecutorial resource problem [within the DoJ].”).
  120. See id.
  121. Cf. NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., supra note 107, at 8–10 (advocating for a reform of PFCRA to raise the jurisdictional limit from $150,000 to $500,000).
  122. See S. REP. NO. 99-212, supra note 1, at 2.
  123. Id. at 11.
  124. Id. at 14.
  125. See generally 31 U.S.C. § 3803 (2012); Bellman, supra note 70, at 7–9 (describing the various stages of PFCRA actions).
  126. See 31 U.S.C. § 3803(a)(1).
  127. Id. § 3803(a)(2).
  128. See Davidson, supra note 15, at 225 (arguing that the IG reporting requirement is unnecessary); cf. NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., supra note 107, at 11–12 (advocating allowing either the investigating official or the reviewing official to notify the DoJ of adequate evidence).
  129. See Davidson, supra note 15, at 225.
  130. See NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., supra note 107, at 11–12.
  131. 31 U.S.C. § 3803(b)(2).
  132. Id. § 3803(b)(1).
  133. Id. § 3803(b)(3).
  134. See Davidson, supra note 15, at 221.
  135. Cf. S. REP. NO. 99-212, supra note 1, at 6.
  136. See 31 U.S.C. § 3801(a)(7) (2012).
  137. VANESSA K. BURROWS, CONG. RESEARCH SERV., RL34607, ADMINISTRATIVE LAW JUDGES: AN OVERVIEW 2 (2010).
  138. See Davidson, supra note 15, at 227.
  139. See id.
  140. See 31 U.S.C. § 3801(a)(7)(A).
  141. BURROWS, supra note 137, at 3 (noting that an agency needs OPM approval for any ALJ detail); Davidson, supra note 15, at 227 (stating that the DoD must bear the expenses of an ALJ detail).
  142. See, e.g., Scot T. Hasselman & Rahul Narula, Can CMS Curtail the Medicare Appeals Backlog?, LAW360 (Aug. 11, 2016, 4:55 PM), https://www-law360-com.gwlaw.idm.oclc.org/articles/827040/print?section=health [https://perma.cc/R7PW-KC8Y].
  143. See discussion supra Part IV.B.
  144. NAT’L PROCUREMENT FRAUD TASK FORCE LEGISLATION COMM., supra note 107, at 10; Davidson, supra note 15, at 232.
  145. See 31 U.S.C. § 3806(g)(1).
  146. U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15 at 26.
  147. See Vt. Agency of Nat. Res. v. United States ex. rel. Stevens, 529 U.S. 765, 786 (2000).
  148. See Top 100 FCA Cases, supra note 27.
  149. See The Miscellaneous Receipts Statute and Permissible Agency Recoveries of Monies, ARMY LAW., Mar. 2001, at 35, 37–40 [hereinafter Miscellaneous Receipts Statute]; Application of the Miscellaneous Receipts Act to the Settlement of False Claims Act Suits Concerning Contracts with the Gen. Servs. Admin., 30 Op. O.L.C. 53, 53 (2006) [hereinafter Application of the Misc. Receipts Act].
  150. See Miscellaneous Receipts Statute, supra note 149, at 38–39.
  151. See 31 U.S.C. § 3302(b) (2012).
  152. Id.
  153. See Application of the Misc. Receipts Act, supra note 149, at 53; see also Miscellaneous Receipts Statute, supra note 149, at 38–40.
  154. See Davidson, supra note 15, at 232–34.
  155. 31 U.S.C. § 3806(g)(1).
  156. S. REP. NO. 99-212, supra note 1, at 2.
  157. Id. at 2 (emphasis added).
  158. Id.
  159. See 31 U.S.C. § 3801.
  160. See Davidson, supra note 15, at 223.
  161. See generally Michael J. Schaengold et al., Choice of Forum for Bid Protests, BRIEFING PAPERS, Oct. 2008.
  162. See S. REP. NO. 99-212, supra note 1, at 6.
  163. Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 105(a), 96 Stat. 25, 26–27 (amending 28 U.S.C. § 171(a)).
  164. 28 U.S.C. § 173 (2012).
  165. Id. § 171(a).
  166. Id. § 172(a).
  167. Id. § 171(a).
  168. Judges—Biographies, U.S. CT. FED. CLAIMS, http://www.uscfc.uscourts.gov/judicial-officers [https://perma.cc/7H2E-WKKR] (listing the active and senior judges of COFC).
  169. 28 U.S.C. § 178(e)(1).
  170. 28 U.S.C. § 797(a)(1), (b).
  171. Judges—Biographies, supra note 168.
  172. See 28 U.S.C. § 1491(a)(1).
  173. See id. § 1491(b)(1).
  174. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d) (providing a “sunset clause” that ended U.S. District Court jurisdiction over bid protests).
  175. Michael J. Schaengold & Robert S. Brams, Choice of Forum for Contract Claims: Court vs. Board / Edition II, BRIEFING PAPERS, May 2006, at 3.
  176. See Schaengold et al., supra 161, at 3.
  177. Rules of the United States Court of Federal Claims (RCFC) (as amended through Aug. 1, 2016).
  178. JOHN CIBNIC, JR. ET AL., FORMATION OF GOVERNMENT CONTRACTS 1774 (4th ed. 2011).
  179. See id. at 1774–76 (detailing COFC’s procedure, including complaints, service, pleadings and motion, etc.).
  180. 28 U.S.C. § 516 (2012) (stating that conduct of litigation for the United States and federal agencies is reserved to DoJ).
  181. Id. § 174(a).
  182. See RCFC 40.2(a)(1).
  183. See RCFC 40.2(a)(4) (“Treatment of Directly Related Cases”).
  184. RCFC App. H (“Procedure for Alternative Dispute Resolution”).
  185. CIBNIC ET AL., supra note 178, at 1808.
  186. In 2004, Congress renamed the General Accounting Office as the Government Accountability Office. GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, § 8, 118 Stat. 811, 814.
  187. Budget and Accounting Act of 1921, Pub. L. No. 67-13, 42 Stat. 20.
  188. 31 U.S.C. § 702(a) (2012).
  189. Id. § 702(b).
  190. Id. § 703(a)(1).
  191. Id. § 712(1).
  192. Id. § 717(b).
  193. See Schaengold et al., supra note 161, at 3; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-471SP, BID PROTESTS AT GAO: A DESCRIPTIVE GUIDE 5 (9th ed. 2009) [hereinafter BID PROTESTS AT GAO]; see, e.g., M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1304 (D.C. Cir. 1971).
  194. GAO published its first bid protest decision in 1926. BID PROTESTS AT GAO, supra note 193, at 3.
  195. See Schaengold et al., supra note 161, at 3.
  196. CIBNIC ET AL., supra note 178, at 1740.
  197. Id.
  198. Id.
  199. 31 U.S.C. § 3554(a)(1) (2012).
  200. BID PROTESTS AT GAO, supra note 193, at 5, 7.
  201. See id. at 7.
  202. Id.
  203. See id. at 27.
  204. CIBNIC ET AL., supra note 178, at 1804.
  205. 31 U.S.C. § 3556 (2012).
  206. Contract Disputes Act of 1978, 41 U.S.C. §§ 7101–7109 (2012).
  207. 41 U.S.C. § 7105(g)(1).
  208. See Boeing Petroleum Servs., Inc. v. Watkins, 935 F.2d 1260, 1261 (Fed. Cir. 1991).
  209. 41 U.S.C. § 7105(a)(2), (b)(2)(B).
  210. JUDGE CAROL N. PARK-CONROY, AMERICAN BAR ASS’N, SECTION OF PUBLIC CONTRACT LAW, PRACTICING BEFORE THE FEDERAL BOARDS OF CONTRACT APPEALS 51 (2012).
  211. See, e.g., Brittashan Enter. Corp. v. Dep’t of State, CBCA 1462 (Apr. 6, 2017).
  212. See CIVILIAN BD. OF CONTRACT APPEALS, RULE OF PROCEDURE Rules 52–54 (2011), http://www.cbca.gsa.gov/howto/rules/procedure.html [https://perma.cc/BPD7-MCQR].
  213. Id. at Rule 32.
  214. See, e.g., 41 U.S.C. § 7105(a)(2).
  215. See S. REP. NO. 99-212, supra note 1, at 6.
  216. See, e.g., 41 U.S.C. § 7105(a)(2).
  217. See S. REP. NO. 99-212, supra note 1, at 5.
  218. See 41 U.S.C. § 7105(g)(1).
  219. See § 7105(e)(1) (granting jurisdiction to each BCA which together encompasses jurisdiction over all agency contract appeals).
  220. See § 7105(g)(1).
  221. See S. REP. NO. 99-212, supra note 1, at 6.
  222. 31 U.S.C. § 3803(b)(3) (2012).
  223. Schaengold & Brams, supra note 175, at 10.
  224. See, e.g., Carl R. Green, 14-AF-0042-PF-002, at 1, 3, 16 (Dec. 5, 2014) (finding the executive director of Philadelphia Housing Authority liable for submitting false statements to HUD).
  225. See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 15, at 26–28.
  226. See Davidson, supra note 15, at 232–34.
  227. S. REP. NO. 99-212, surpa note 1, at 2.