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Michael Scheininger

Michael Scheininger focuses on the defense of business crimes and civil fraud, especially procurement fraud civil false claims (qui tam) and criminal investigations. He regularly advises government contractors on mandatory disclosure.

Earlier this month, in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, the Supreme Court held that the False Claims Act (“FCA or Act”) does not require that a FCA qui tam complaint be dismissed because of a violation of the seal requirement.  Writing for a unanimous Court to resolve the split among precedent and based on the facts that we recently wrote about here, Justice Kennedy explained that the Act’s text, structure, and purpose do “not enact so harsh a rule.”  Op. at 6.  Instead, the Court concluded that deciding the remedy for violating the seal requirement “should be left to the sound discretion of the district court.”  Op. at 10.  Thus, importantly for qui tam defendants rightfully concerned about the reputational harm that may result from breach of a seal, dismissal remains an available form of relief.  Watch this space for analysis of how the lower courts interpret this decision.
Continue Reading Supreme Court Says False Claims Act Does Not Enact So Harsh a Rule: Dismissal Not Required for Violation of FCA’s Seal Requirement, But Still Available

In response to a request from the Senate Committee on Homeland Security and Governmental Affairs, the Government Accountability Office (“GAO”) recently reported on the “limited role” that public-private partnerships (“PPP”) play in disposing of and managing the federal government’s “excess or unneeded real property.”  Despite recent “[h]igh profile projects” — such as the 60-year lease of the Old Post Office in Washington, DC to be converted into Trump International Hotel — the General Services Administration (“GSA”) “consider[s]” PPPs “for fewer than ten cases each year.”  And while GAO identified three state governments that might use PPPs to dispose of unneeded real property, none was able to point to any recent instances.
Continue Reading GAO Reports on “Limited Role” of Public-Private Partnerships in Disposing of and Managing Excess Real Property

In the recent bid protest decision of Halbert Construction Company Inc., the Government Accountability Office (GAO) illustrated the breadth of a procuring agency’s discretion in conducting a past performance evaluation.  Halbert Construction brought the protest after being excluded from the competitive range, arguing primarily that the Navy unreasonably included a non-relevant prior project in the past performance evaluation which led to Halbert Construction’s exclusion.  The GAO sustained the protest based on the well- established principle that offerors must be treated equally because the Navy excluded another offeror’s past performance reference from the evaluation as not relevant under the solicitation’s relevancy criteria but then failed to do the same for the protestor.

More notable than the relatively straight-forward application of the disparate treatment principle was the decision’s discussion of the very broad discretion of agencies in past performance evaluations.  In this competition for design-build services at multiple Navy installations, the protestor argued that the prior project was not relevant for a number of reasoning, including that the project did not include design-build work and instead “involved a specialized type of construction work that is distinctly different from the commercial and institutional work contemplated by the solicitation.”  In rejecting this argument, the GAO found persuasive that both the prior project and the current competition was under the same North American Industry Classification System (NAICS) code for Commercial and Institutional Building Construction.  This point merits attention because certain NAICS codes may be interpreted broadly and some projects may be improperly categorized for NAICS purposes.  Consequently, offerors may need to be mindful of NAICS codes in considering what prior projects may be evaluated for past performance.Continue Reading GAO Decision Illustrates Breadth of Agency Discretion in Past Performance Evaluations