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Palantir filed a pre-award bid protest, challenging the Army’s solicitation for Distributed Common Ground System-Army Increment 2 (DCGS-A2), the Army’s primary system for processing and disseminating multisensor intelligence and weather information. The solicitation seeks a single contractor to be the system data architect, developer, and integrator of DCGS-A2. Palantir’s complaint alleges that the Army violated the Federal Acquisition Streamlining Act (FASA) 10 U.S.C. 2377(c) by failing to determine whether its needs could be met by commercial items before issuing the contested solicitation. The Claims Court agreed. The Federal Circuit affirmed the entry of an injunction, rejecting arguments that the trial court erroneously added requirements to section 2377, including that the Army was required to “fully investigate,” “fully explore,” “examine,” and “evaluate” whether all or part of its requirements could be satisfied by commercially available items, such as Palantir’s product. FASA requires an agency to use the results of market research to “determine” whether there are commercial items that “meet the agency’s requirements; could be modified to meet the agency’s requirements; or could meet the agency’s requirements if those requirements were modified to a reasonable extent.” While the trial court’s thorough opinion sometimes uses words other than “determine,” read in context, those words were intended to be synonymous with “determine.” View "Palantir USG, Inc. v. United States" on Justia Law

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Silver’s qui tam action, filed under the False Claims Act (FCA), 31 U.S.C. 3729–33, alleged that PharMerica, which owns and operates institutional pharmacies serving nursing homes, unlawfully discounted prices for nursing homes’ Medicare Part A patients (reimbursed by the federal government to the nursing home on a flat per-diem basis) in order to secure contracts to supply services to patients covered by Medicare Part D and Medicaid (reimbursed directly to the pharmacy by the government on a cost basis) in the same nursing homes--a practice called swapping. The district court dismissed, based on the FCA’s public disclosure bar. The Third Circuit reversed. The district court improperly determined that documents publicly describing the generalized risk of swapping in the nursing home industry served to bar his specific claim, which depended on non-public information that PharMerica was actually engaging in swapping in specific contracts. The district court also erred in concluding, on the basis of Silver’s testimony, that he relied upon certain publicly available information to reach his conclusion and that the information itself disclosed the fraud, without independently determining that the relevant public document did, in fact, effectuate such a disclosure. View "Silver v. Omnicare Inc" on Justia Law

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American Sweeping, Inc. ("ASI"), petitioned the Alabama Supreme Court for a writ of mandamus directing the Circuit Court to vacate an order denying its motion to dismiss the claims asserted against it in the underlying action as time-barred and to enter a dismissal in its favor. On May 22, 2014, two separate accidents occurred on the Interstate 65 bridge crossing the Mobile-Tensaw River Delta. ASI was performing sweeping and cleaning operations on the bridge pursuant its contract with the Alabama Department of Transportation ("ALDOT"). The first accident on the bridge occurred when a vehicle collided with the rear of the "buffer vehicle" that was following the ASI street sweeper. That accident caused traffic on the bridge to come to a complete stop. Shortly thereafter, the second accident occurred when the tractor-trailer truck being driven by William McRae and owned by TK&S Trucking, LLC, collided with the rear of the tractor-trailer truck being operated by Robert Sanders. That collision caused both tractor-trailer trucks to explode, killing McRae and injuring Sanders. In August 2015, ALDOT filed a complaint against, among others, TK&S Trucking and the Estate of William McRae, seeking to recover the costs of the repairs made to the bridge as a result of the tractor-trailer explosion. In December 2015 and April 2016, Sanders and his wife, Barbara, filed individual complaints in intervention, asserting claims against the same defendants seeking monetary damages for medical bills, pain and suffering, and loss of consortium. In 2016, the Sanderses amended their complaints in intervention to assert claims against fictitiously named defendants whose conduct, they alleged, wrongfully caused or contributed to the tractor-trailer accident involving Mr. Sanders. In 2017, the Sanderses once again amended their complaints to substitute ASI for a fictitiously named defendant, asserting that ASI had caused or contributed to the tractor-trailer accident. ASI filed a motion to dismiss the claims against it on the ground that it was barred by the applicable two-year statute of limitations. The trial court held the amendments related-back to the original complaint. The Alabama Supreme Court disagreed with the trial court, granted the petition for mandamus relief and directed the trial court to enter an order dismissing claims asserted against ASI. View "Ex parte American Sweeping, Inc." on Justia Law

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The Board of Water and Sewer Commissioners of the City of Mobile ("the Board") petitions the Alabama Supreme Court for a writ of mandamus to direct the Baldwin Circuit Court to transfer the underlying case to the Mobile Circuit Court. The Board was a public, governmental agency that did business as the Mobile Area Water and Sewer System, and its principal place of business is located in Mobile County. In 2000, the Board entered into an agreement with the Spanish Fort Water System ("SFWS"), in which the Board agreed to sell treated water to SFWS. SFWS provides water to the City of Spanish Fort, located in western Baldwin County close to neighboring Mobile County. To transport the treated water, the Board agreed to build and operate a connection between the two water systems. In 2017, the Board increased the rates for the water that it sold to SFWS. SFWS then sued the Board in the Baldwin Circuit Court, alleging that the Board had breached a 2011 agreement by raising the rates it charged for water. Because the Supreme Court concluded that venue was proper in Mobile County, it granted the petition and issued the writ. View "Ex parte Board of Water and Sewer Commissioners of the City of Mobile." on Justia Law

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The City of Clarksdale solicited sealed bids for a public construction project. The City received sealed bids from Landmark Construction Company, GCI (“Landmark”), and Hemphill Construction Company, Inc. (“Hemphill”). When unsealed, both bids exceeded the project’s allocated funds by more than ten percent. Rather than rebidding the contract, the City conditionally awarded a contract to Landmark, dependent upon the City’s obtaining additional public funds to match Landmark’s bid. The Mississippi Supreme Court found the City’s actions were not provided for in the public bidding laws, reversed the circuit court which held to the contrary, and remanded the case to the trial court for further proceedings. View "Hemphill Construction Company, Inc. v. City of Clarksdale" on Justia Law

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A violation of the False Claims Act's (FCA) first‐to‐file bar cannot be remedied by amending or supplementing the complaint. Relator filed a qui tam action against Allergan, alleging that the pharmaceutical company violated the FCA through a kickback scheme. The Second Circuit reversed and remanded with instructions for the district court to dismiss relator's Third Amended Complaint without prejudice. In this case, relator was not the first relator to sue Allergan under the FCA based on the alleged kickback scheme. View "United States ex rel. Wood v. Allergan, Inc." on Justia Law

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Former employees of the Foundation filed suit under the False Claims Act, alleging that the incentives offered to employees and patients were unlawful kickbacks that rendered false any claims for federal reimbursement. The district court dismissed all but two claims, and later granted summary judgment on the remaining claims. The Eleventh Circuit affirmed and held that the employee exemption to the Anti-Kickback Statute applied to payments that the Foundation made to an employee tasked with referring HIV-positive patients to healthcare services offered by the Foundation. The court also held that the district court correctly dismissed relators' other claims for lack of particularity and that relators waived their argument about amendment. View "Carrel v. AIDS Healthcare Foundation, Inc." on Justia Law

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CGI Technologies and Solutions, Inc. ("CGI"), and Clinton Carter, in his capacity as Director of the Alabama Department of Finance, separately petitioned the Alabama Supreme Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss, for lack of subject-matter jurisdiction, an action filed by Jim Zeigler challenging a contract between CGI and the State of Alabama on the basis that the contract violated Alabama's competitive-bid law. In 1982, the State of Alabama, through the Department of Finance, entered into a software contract with American Management Systems, Inc. ("AMS"), that granted the State a license to install a local-government finance-system package on computers in the Finance Department. There was no dispute that the 1982 contract was competitively bid. In 2004, AMS was acquired by CGI. Over subsequent years, the 1982 contract was amended; Amendment 13 became known as the State of Alabama Accounting Resources System ("STAARS"). The State and CGI entered into four amendments addressing STAARS between March 2014 and September 2015. On March 31, 2017, the State and CGI entered into a letter agreement memorializing an understanding "relative to concluding work" on STAARS. The letter agreement noted that "CGI acknowledges the State's intent to begin transition to an in-house delivery plan or to award a new contract for operational services and support for STAARS within 90 days of the date of this letter, after which, CGI will provide Disengagement Services." Also, the letter agreement recognized a "winding down" of the contractual relationship between CGI and the State, which was to conclude by September 30, 2017. Other than the "winding-down period," the State agreed that "CGI has satisfied its contractual obligations with respect to the STAARS project and software and services provided by CGI under the STAARS Contract." The State contracted for further services from CGI after October 1, 2017, but not extending beyond November 29, 2017. According to Zeigler, in December 2015 he first learned that the amendments authorizing and implementing STAARS had not been competitively bid. CGI filed a motion to dismiss the amended complaint, arguing Zeigler lacked standing to bring this suit, and his statutory authority for his cause of action only allowed as remedy enjoining the contract that violated the competitive-bid law. The circuit court dismissed all but count one of Zeigler's complaint, leading to this request for mandamus relief. Because performance under the 1982 contract, including the STAARS amendments, was complete. the Alabama Supreme Court found there was no performance to enjoin, and no further remedy available to Zeigler for the alleged violation of the Competitive Bid Law. Therefore, the Court agreed with petitioners that Zeigler's claims were moot, and granted the writs. View "Ex parte Carter, in his capacity as Director of Finance for the State of Alabama." on Justia Law

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Specialty Asphalt & Construction, LLC and its majority owner, Lisa Jacobsen (Specialty), brought suit against Lincoln County, Washington (County) for gender discrimination, negligent misrepresentation, and breach of contract arising out of the County's bidding and contracting process for a paving project. Specialty lost all three claims it brought at the trial court. The Court of Appeals affirmed, and Specialty petitioned for review by the Washington Supreme Court. After review, the Supreme Court affirmed in part, reversed in part, and remanded. The Court affirmed with respect to the appellate court's holding that an injunction was the exclusive remedy for Specialty's contract claim. The Court reversed with respect to the gender discrimination and negligent misrepresentation claims: Some elements of Specialty's evidence, standing alone, might not create a reasonable inference of discrimination, but when viewed together, the inference of discrimination "becomes quite strong;" Specialty also provided evidence of its recoverable reliance damages to defeat summary judgment on its negligent misrepresentation claim. View "Specialty Asphalt & Constr., LLC v. Lincoln County" on Justia Law

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Berkowitz's company, Complete Packaging, holds a General Service Administration (GSA) multiple award schedule contract, under which it sells office supplies to government agencies. The defendants hold competing GSA schedule contract. Vendors with GSA schedule contracts must comply with the Trade Agreements Act (TAA), 19 U.S.C. 501, which requires that a vendor only offer and sell U.S.-made or other designated country end products to governmental agencies. Federal Acquisition Regulations identify the designated countries and require that a vendor’s GSA agreement contain a “Trade Agreements Certificate,” certifying that each end product is compliant and listing the other products that are not. Vendors with GSA schedule contracts upload their price lists to the GSA Advantage online portal, GSA’s shopping system. Berkowitz claims that other vendors offered and sold products from non-designated countries, such as China or Thailand, although they filed Trade Agreements Certificate and that any invoices they submitted to the government for TAA noncompliant products constitute material false statements under the False Claims Act (FCA), 31 U.S.C. 3730. The Seventh Circuit affirmed the dismissal of his FCA suit. Berkowitz cannot allege that the defendants made any express misrepresentations; his claims are premised on an implied false certification theory and do not allege specific facts demonstrating what occurred at the individualized transactional level. That defendants may have sold non-compliant products in violation of the TAA does not equate to making a knowingly false statement in order to receive money from the government. View "Berkowitz v. Automation Aids, Inc." on Justia Law