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In May of 2010, the US Government had lots of military and civilian personnel stationed in Iraq and it was dangerous place. To protect the folks in Iraq, the US Government awarded Triple Canopy a contract to provide security. Triple Canopy was supposed to repel attacks, go on roving patrols, shoot at bad people and do other things a security firm would do to protect US military and civilian personnel. To make sure that the Triple Canopy employees who provided the protection were capable, the contract required the employees to have training on their weapons and to score a certain number on an Army marksmanship test. In other words, Triple Canopy employees assigned to the contract had to be able to shoot straight. Further, each employee’s scorecard, with the passing score, was supposed to put in the employee’s personal file.

Unfortunately, according to a court opinion, the Triple Canopy employees were not able to shoot straight – in more than one way. First, the court explained that the Triple Canopy employees assigned to provide protection services were not passing the marksmanship test. Second, according to the court opinion, Triple Canopy supervisors weren’t shooting straight either because they stand accused of back dating the scorecards and of altering the scorecards to reflect that the employees scored high enough to qualify to work on the contract when they didn’t.

A Triple Canopy employee raised these issues in a civil False Claims suit alleging that Triple Canopy presented “false claims” to the government by putting employees on the security contract who could not shoot straight and by falsifying marksmanship records. The US Government joined the lawsuit. When the Federal trial court reviewed the situation, it dismissed the case essentially saying that since Triple Canopy never actually submitted the false scorecards or anything else “false” to make the government pay it for the services, there could be no false claim.

The higher-level court brought sense to the situation. The higher-level court explained that this was not just a breach of contract or an honest disagreement over contract performance, it was indeed an actual fraudulent representation that the government relied on to pay Triple Canopy. The higher-level court said it is no stretch to find that when Triple Canopy submitted its invoices to the government for payment it impliedly certified that it was performing as expected under the agreement it had with the government. So it was reasonable for the contracting officer to think

that the Triple Canopy employees assigned to the contract could actually shoot straight – an important part of protecting someone in a war zone. Further, stating the obvious, the higher-level court found that if the scorecards were not material to contract performance and to getting the government to pay it, why would Triple Canopy alter them? In other words, even if the government never saw the false scorecards, it still did not get straight shooters as required by the contract. So the higher-level court ordered the lower court to take another shot at reviewing the case.

Upon reading this, most government contractors will ask – dearest lawyer – first, how is this news – is it not obvious that falsifying the marksmanship records of those assigned to this contract is a fraud on the government? In response to that, pushing all the legal analysis aside and instead substituting my parent’s (neither are lawyers) review of the situation for the court’s review –based on what the court described it’s a false representation.

Second, government contractors will ask– dearest lawyer – since my supervisors or employees will never create wholly false scorecards or any other false business record, why does this case matter to me? Here’s why… the court said basically that a contractor does not need to actually put something false on the invoice to be engaged in making a false claim to the government. Rather the court said that when a contractor essentially represents to the government that it was providing the services to the government that the government thought it bought, when in fact it was not getting the services it bought, the contractor is presenting false invoices to get the government to pay it. In other words, the higher court explained that from its perspective when Triple Canopy sent those invoices to the government it was saying – “we are performing the contract just as you require, to include having employees on the contract who scored high enough on the marksmanship test to meet the contract’s requirements for marksmanship.”

So, a government contractor needs to make sure that when they submit a proposal to the government and are awarded a contract based on the representation that it and its employees have certain abilities, skills, education, qualifications, capabilities, facilities, accounting systems, or other criteria which the government expects the contractor to have – the contractor and its employees better have whatever they told the government they have. If the government relies on your representations that your business has the qualifications and ability to perform the contract – you better have it. If a contractor submits qualifications or resumes that are all puffed up; or a conflicts of interest mitigation plan or conflict of interest representation that may not be quite accurate; or if it says that is has certain internal controls around its accounting systems, training or other business operations and it doesn’t … the government may conclude that the contractor’s invoices for payment are supported by false information. You gotta shoot straight with the government – even when you are not paid to do so – otherwise depending on the gravity of failing to do so – you may be battling a claim of not shooting straight in the form of a False Claims suit.

“Force, and fraud, are in war the two cardinal virtues.” Thomas Hobbes, Leviathan (1651)

[1] This post cites to the following court case: United States v. Triple Canopy, Inc., 775 F.3d 628, 2015 U.S. App. LEXIS 277, 2015 WL 105374 (4th Cir. Va. 2015)

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