Reassess Your Size Status, Update Your DSBS and SAM Listings, Check Your Past Performance Ratings, and Update Your Employment Policies, Handbooks and Postings
The start of a new year is a time for New Year’s Resolutions. Here are several we strongly urge you to follow-through on early in 2017.
The latest incarnation of aggressive scammers impersonating IRS agents features fake IRS notices arriving by e-mail or snail mail.
According to the IRS, the fake notices labeled as “CP2000”, purport to be related to the Affordable Care Act and request information related to 2014. For further details, see the IRS announcement on this topic.
Every year, the Interagency Suspension and Debarment Committee (ISDC) reports to Congress concerning statistics on federal suspension and debarment. The ISDC released 2016’s annual report on June 15. The 10 page release shows that federal agencies completed a total of 918 suspension actions and 1,873 debarments in FY 2015. These figures are somewhat lower than those reported in 2014, when 1,009 suspensions and 1,929 debarments were completed. Overall, federal agencies suspended about 9% fewer contractors in 2015 as in 2014, and debarred approximately 3% fewer.
In a unanimous decision, the Supreme Court ruled in Universal Health Services v. Escobar that the implied certification theory is a valid basis for False Claims Act liability. Under this theory, a government contractor’s claim or invoice can be held as fraudulent if the contractor “fails to disclose non-compliance with material statutory, regulatory, or contractual requirements” and the misrepresentation or misleading omission is “material to the Government’s payment decision.”
On April 19, I was fortunate enough to attend oral arguments at the Supreme Court for Universal Health Services v. Escobar. Although the facts of the case were tied to filings for reimbursement under Medicaid, the legal question at hand – whether the submission of an invoice to the government is an implied certification that the contractor has complied with all the material terms of the contract – is one of critical importance to all government contractors.
The primary reason the implied certification theory of liability makes many lose sleep is because of the False Claims Act (FCA), which allows for significant penalties – treble damages and fines of $5,500-$11,000 per claim – on a contractor who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval (31 USC § 3729).” In certain judicial circuits that accept implied certification, an invoice can be categorized as fraudulent if the contractor fails to comply with virtually any of the clauses or provisions in the contract.