The first half of 2018 has seen a number of important legal decisions handed down for federal contractors, with important developments on issues ranging from the materiality of claims and the statute of limitations under the False Claims Act to the jurisdiction of the Court of Federal Claims and the use of Other Transaction Authority.
Limits to Court of Federal Claims Jurisdiction
In a March ruling, the Federal Circuit declined to overturn the U.S. General Services Administration’s imposition of a rent cap on a leasing proposal for the FBI’s Cleveland field office.
McCarter & English LLP government contracts practice group co-leader Franklin Turner questioned the decision, saying it appeared to come “out of thin air” without much empirical analysis or fidelity to the intent of the Tucker Act.
“I think [the decision] effected a really unwarranted narrowing of the Tucker Act,” he said. “If you look at the Tucker Act … it says that the Court of Federal Claims does have jurisdiction when considering challenges in connection with a procurement, and I think that the acquisition at issue in that case was clearly ‘in connection with’ a procurement.”
Other Important FCA Rulings
While materiality continues to be an important issue in FCA cases, not all important FCA rulings so far in 2018 have involved Escobar, with the Eleventh Circuit, for example, widening a circuit split over the statute of limitations in FCA cases in an April decision.
“I think this is a circuit split that’s going to be [eventually] resolved by the Supreme Court,” Turner said. “The problem from a contractor’s perspective is that oftentimes would-be whistleblowers lie in wait long after any purported wrongdoing has taken place, and after contractors get rid of their records … [and] this tacks on the additional three years for relators to bring their claim, and it essentially ties that claim to the actions of a non-party.”