What if the government is 100% at fault?
You can learn more about the False Claims act and Whistleblower cases by visiting qui tam attorney Tony Munter’s website.
We never would be the first to suggest government fault in any contracting case, but sometimes we do get calls from people who want to complain about government agencies making mistakes or worse. What does that mean with regard to the False Claims Act?
Well, a classic example of the limits of the False Claims Act occurred about eight years ago at the height of the Iraq war. A whistleblower conference was held here in Washington, D.C. and it included a panel on the False Claims Act. People, upset with idea that the government was wildly spending money in Iraq, asked what kind of cases to bring forth to address the issue. The answer: do not bring those cases. Bring the cases when the government is being defrauded, instead.
The Federal False Claims Act is a powerful tool for fighting fraud against the government. However that is the key to a successful case: there has to be fraud against the government. It cannot be a mistake by the government or a failure of government itself.
So yes, if you have a case involving solid information of a contractor working illegally in concert with government employees, yes that could be fraud. If they are involved in illegally working with the contractor to bid rig or are in any way involved in illegal activity in furtherance of a fraudulent scheme, that would, of course, be a case. But it must be the government that loses the money under such a scheme, and solid evidence of such a conspiracy is usually hard to find. Still, we do not mean to dismiss it as a possibility.
Once upon a time, government knowledge of fraud was itself a complete bar to any case under the False Claims Act. So if any government official knew about the scheme or even any part of it, bringing the case was almost impossible. That is no longer the law.
Still, when the government is aware of practices that the plaintiff thinks is fraud, it can make the case difficult to win. The idea behind the False Claims Act is that the government is suffering a harm and the government is being defrauded. So, when the government knows about it, ordinarily you would expect they could take some action without a case filed.
If the government itself is acting badly,there are other ways to complain. We do have a First Amendment, which some people think of as the greatest of all whistleblower laws. Congressional investigations and inspectors general offices exist along with journalists for just this purpose.
That is all great. We are for whistleblowers who want to protest some form of governmental activity which is truly harmful. It is just usually a very different kind of action than contemplated by the False Claims Act, though may be protected by other whistleblower laws. The idea here is to work with the government, to share information with the government about a private contractor who is guilty of stealing money. It makes this law uniquely an establishment-based whistleblower law.
Under this law, whistleblowers put their faith in the Court systems and try to work with the U.S. Department of Justice. This process can frighten people who have reason not to trust authority, and we understand that. However, the False Claims Act is still the strongest and best way to fight fraud in the United States.
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