Feral Jundi

     Ok, for those that know me, you will understand that I absolutely despise companies that screw over their contractors.  Partly because I have been the victim of unscrupulous companies, and the other reason is that I get oodles of emails from guys who are getting screwed over by companies.  I shake my head and wonder why is it so tough for these companies to do the right thing? Where is the courage to do good or what happened to taking care of your people?  The funny part, is that the companies that actually do take care of their people, are the ones that usually attract the best of the best, and have more contract stability.  I am a firm believer in this, and I also think that in the long run, companies will make more money if they focus on taking care of their people, because it will minimize turnover and keep contracts stable. 

     I also think that the companies are staffed with guys who apply too much of their war fighting ‘cheat at all costs’ and ‘ big boy rules’ concepts to managing the contractors and contracts.  Which is fine, if you guys want to keep getting contracts and out compete the other guy.  But if you are screwing over your people in your vain attempt to obtain these contracts, then what price glory?  Or if you implement the ‘rob Peter, to pay Paul’ business practice, then what sense does that make?  Focus on being straight with your contractors and stop playing these unethical stupid games with their pay.  Contractors don’t like it, and we will just leave your company hanging when you treat us like that. Worse yet, we won’t care about doing a good job for you, because you don’t care about us. 

     So with that said, lets discuss some of the latest scummy tactics that I am hearing about out there, when it comes to unethical company practices.  Let’s call this one, the ‘bait and switch’ game.  I have heard of this happening with several companies, and it pisses me off to no end. 

    The way it works is that a company signs a contract with a independent contractor for a specific salary. They fly that contractor to the war zone, and then once they are on the ground, the company then creates some excuse to lower the contractor’s salary.  Companies like to say things like ‘things have changed, and the position we hired you for no longer exists…..but if you would like to stay in Iraq and keep working, we will pay you this lower salary with this new position’? I will argue that this was the tactic all along, to bait a contractor with one salary, get them in country, and then switch their salary to a lower one. When a contractor has made it all the way over to that war zone, and they are finally settled in, and then this is thrown at them, it psychologically makes it very hard for a guy to say no. Lesser salary, versus no money and a trip home, is usually what comes to mind.  

     And because of the practice of implementing ‘at will’ contracts with ‘non-disclosure agreements’ attached, companies really don’t care if the contractor is pissed off by the practice.  The contractor also has little hope of forcing the company to abide by any labor laws, perceived or real.  There is also no labor unions to protect contractors and force companies to do the right thing.  The whistleblower stuff is a joke, because the actual success rate and pay off for being a whistleblower on anything to do with these companies, is dismal. Or if you do succeed in getting attention for your case, it still won’t equate to you getting more money or being treated better at your job site.  If anything, reprisal will happen, and your reputation will be torn apart by the company and those that you turned in.  

     Besides, your one of those despicable civilian contractors that the media loves to crap on, so who is going to stand up for you? POGO doesn’t care about contract disputes between contractors and their companies. So what can you do, if you are the victim of a ‘bait and switch’ game?

   For one, I say stay on the contract as long as possible, and look for another gig. That is the financially sound way to play it.  As soon as another contract comes up, leave your current contract pronto. While you are on that current contract, I would also suggest submitting as many anonymous tips to as many hotlines as you can, in order to force the company to get ethical and treat their people correctly. Remember, if you are reporting fraud, waste and abuse, it is not a violation of the non-disclosure agreement.  The law trumps this little agreement we all sign, but the law won’t protect your reputation or your career–reprisal sucks and it will find you.  So anonymously is the best way to go in my book.  It protects you, and the acts of bad companies makes it to those that  need to know that stuff.

   The companies will also get screwed by mass exoduses from contracts.  The more folks just leave, the better, and companies will get a default on contract because they do not have the required individuals for that contract.  I know of several companies that just use ‘floaters’ to cover for these kinds of situations.  But turnover is certainly expensive, and certainly brings negative attention to the company. Defaults on contract have really screwed over companies in the past. So if you and your crew that are displeased with the company your in, all put in a two week or whatever notice, all on the same day, then that would be an expensive shock to the company system.  Just leaving without notice, is an even bigger shock to the company, but it also puts your reputation as a contractor at risk. I recommend just putting in a notice, unless things are so bad that your life is in danger, family problems, or something like that.  

    If you are the victim of the bait and switch game, deal with it smartly and really think out your options.  Do not act out of emotion, act out of practicality. This is a business, so act like a shrewd businessman.  Some guys are willing to deal with the bait and switch, and just chalk it up as ‘getting screwed over by the company’. Money might be a big factor for these folks, and they did not have the luxury of having ‘saved their pennies’ so they could leave.  

     For most though, when a company plays this game with them, they will instantly switch into ‘jaded contractor’ mode, and do all they can to get the hell off of there. I see this over and over again, and jaded contractors are not good for a company.  They provide poor customer service, and really don’t care about the company’s reputation at that point.  Why should they?  

    When you are in this mode, I sympathize and empathize with you, and I am here to say that there is a right way to leave and a wrong way to leave. But leave none the less if you can swing it, because turnover and defaulting on contracts is not good for companies, and that is how you really hurt their bottom line. You could also bring in a lawyer, if you have the time and money.  Be forewarned though.  If you go the legal way, companies have lawyers too, and they are very schooled at dealing with this stuff. Legal action is a tough game to play, and you better be mentally prepared for that, because it can be very taxing. You sometimes end up with little to show for all that time and money expenditure, and legal action is a difficult road to go down.   

     The other way, is to submit all the bad practices that you can to all the groups I have listed below. Start with the IPOA, because if the company you are working for is on their list, then they need to pay the price for what they did to you.  Hopefully the IPOA will actually do something about it, but most importantly, it is a symbolic act, and it puts you in the right frame of mind for dealing with a company.  After all, the company signed on to that code of conduct, and if they don’t want to abide by that code of conduct, then I say do all you can to right the wrongs. You should also try to use the chain of command with a company, but if that has fallen short, and you are getting nowhere with that, then you need to take matters into your own hands. Be smart with your actions and good luck. –Matt

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From the IPOA Code of Conduct 12

6.6. Signatories shall act responsibly and ethically toward their personnel, including ensuring personnel are treated with respect and dignity, and responding appropriately if allegations of personnel misconduct arise.

Submit a complaint to IPOA here.

Check list of IPOA member companies here.

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Submit a tip to the DoD hotline.

Mr. Leonard Trahan, Jr., Director,Defense Hotline

Anyone, whether a service member, civilian employee, defense contractor, or private citizen, who witnesses what he or she believes to be a violation of ethical standards and/or the law, including but not limited to fraud, waste, or abuse of authority, potential leaks of classified information, or potential acts of terrorism, should report such conduct through his or her chain of command, respective service Inspector General, or directly to his or her respective service Inspector General or directly to the Inspector General of the Department of Defense Hotline at 800-424-9098 (e-mail: hotline@dodig.mil)

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Special Inspector General For Iraq Reconstruction

Report fraud, waste and abuse

The mission of the Hotline for the Special Inspector General for Iraq Reconstruction (SIGIR) is to facilitate the reporting of fraud, waste, abuse, mismanagement, and reprisal in all programs associated with Iraq reconstruction efforts funded by the U.S. taxpayer. Cases received by the SIGIR Hotline that are not related to programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Iraq are transferred to the appropriate entity. The SIGIR Hotline receives walk-in, telephone, mail, fax, and online complaints from people in Iraq, the United States, and throughout the world.

Click here to submit a complaint.

The SIGIR Hotline office serves as a clearing house for complaints by maintaining an audit trail of all complaints received and the complaint file records until they are sent to the SIGIR Records Management Office. When a Hotline complaint is received, the Hotline Analyst will evaluate the complaint to determine if the complaint is within SIGIR’s purview to investigate. This evaluation includes a screening to eliminate unacceptable complaints and to determine if the complaint involves funds appropriated or otherwise made available for the reconstruction of Iraq. If the source of funding identified in the complaint is not apparent or identified, a check of the SIRIS database will be conducted. If this check meets with negative results, the SIGIR Hotline Analyst will complete a thorough inquiry with contracting points of contact in Iraq provided to our office by the Investigations, Audits, and Administrative offices in Baghdad.

Upon determination that the funding source involves those funds which have been appropriated or otherwise made available for Iraq reconstruction, the complaint is forwarded to SIGIR Investigations or Audit, depending on the subject matter of the complaint. The Assistant Inspector General for Audit or the Assistant Inspector General for Investigations will determine if a case should be opened. If the complaint is not appropriate for SIGIR, it will be transferred to the appropriate Inspector General agency having oversight.

Before you call or write the SIGIR Hotline, please visit our Hotline FAQ page.

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False Claims Act

From Wikipedia, the free encyclopedia

The False Claims Act (31 U.S.C. § 3729–3733, also called the “Lincoln Law”) is an American federal law which allows people who are not affiliated with the government to file actions against federal contractors claiming fraud against the government. The act of filing such actions is informally called “whistleblowing.” Persons filing under the Act stand to receive a portion (usually about 15-25 percent) of any recovered damages. The Act provides a legal tool to counteract fraudulent billings turned in to the Federal Government. Claims under the law have been filed by persons with insider knowledge of false claims which have typically involved health care, military, or other government spending programs. The government has recovered nearly $22 billion dollars under the False Claims Act between 1987 (after the significant 1986 amendments) and 2008.

History

The American Civil War (1861–1865) was marked by fraud on all levels in the Union north and the Confederate south. The False Claims Act came about because of bad mules. During the Civil War, unscrupulous early day defense contractors sold the Union Army decrepit horses and mules in ill health, faulty rifles and ammunition, and rancid rations and provisions among other unscrupulous actions. The False Claims Act, passed by Congress on March 2, 1863, was an effort by the USA to respond to entrenched fraud where the official Justice Department was reluctant to prosecute fraud cases. Importantly, a reward was offered in what is called the “qui tam” provision, which permits citizens to sue on behalf of the government and be paid a percentage of the recovery. Qui tam is short for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur”, which means, “he who brings a case on behalf of our lord the King, as well as for himself.” In a qui tam action, the citizen filing suit is called a “relator”. As an exception to the general legal rule for standing of a party, courts have held that qui tam relators are “partially assigned” a portion of the government’s legal injury, thereby allowing relators to proceed with their suits.

Provisions

The Act establishes liability when any person or entity improperly receives from or avoids payment to the Federal government—tax fraud excepted. In summary, the Act prohibits:

1. Knowingly presenting, or causing to be presented a false claim for payment or approval;

2. Knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim;

3. Conspiring to commit any violation of the False Claims Act;

4. Falsely certifying the type or amount of property to be used by the Government;

5. Certifying receipt of property on a document without completely knowing that the information is true;

6. Knowingly buying Government property from an unauthorized officer of the Government, and;

7. Knowingly making, using, or causing to be made or used a false record to avoid, or decrease an obligation to pay or transmit property to the Government.

The most commonly used of these provisions are the first and second, prohibiting the presentation of false claims to the government and making false records to get a false claim paid. By far the most frequent cases involve situations in which a defendant—usually a corporation but on occasion an individual—overcharges the federal government for goods or services. Other typical cases entail failure to test a product as required by the rigorous government specifications or selling defective products.

The False Claims Act was amended in 1943 to, most notably, reduce the relator’s share of the recovered proceeds. The law was again amended in 1986. By that time, there was great concern that the national deficit had risen dangerously and President Ronald Reagan had declared that a vast amount of government spending was being misused through waste and fraud.

After the 1986 amendments strengthening the Act were passed (see below), the Act was used primarily against defense contractors. By the late 1990s, however, the focus had shifted to health care fraud, which now accounts for the majority of cases filed by whistleblowers and by the government.

Under the False Claims Act, the Department of Justice is authorized to pay rewards to those who report fraud against the federal government in an amount of between 15 and 30 percent of what it recovers based upon the whistleblower’s report.

Certain claims are not actionable, including:

1. certain actions against armed forces members, members of Congress, members of the judiciary, or senior executive branch officials;

2. claims, records, or statements made under the Internal Revenue Code of 1986 which would include tax fraud;

There are unique procedural requirements in False Claims Act cases. For example:

1. a complaint under the False Claims Act must be filed under seal;

2. the complaint must be served on the government but must not be served on the defendant;

3. the complaint must be buttressed by a comprehensive memorandum, not filed in court, but served on the government detailing the factual underpinnings of the complaint.

1986 changes

(False Claims Act Amendments of 1986 (Pub.L. 99-562, 100 Stat. 3153, enacted October 27, 1986)

1. The elimination of the “government possession of information” bar against qui tam lawsuits;

2. The establishment of defendant liability for “deliberate ignorance” and “reckless disregard” of the truth;

3. Restoration of the “preponderance of the evidence” standard for all elements of the claim including damages;

4. Imposition of treble damages and civil fines of $5,000 to $10,000 per false claim;

5. Increased rewards for qui tam plaintiffs of between 15-30 percent of the funds recovered from the defendant;

6. Defendant payment of the successful plaintiff’s expenses and attorney’s fees, and;

7. Employment protection for whistleblowers including reinstatement with seniority status, special damages, and double back pay.

2009 changes

Main article: Fraud Enforcement and Recovery Act of 2009

On May 20, 2009, the Fraud Enforcement and Recovery Act of 2009 (“FERA”) was signed into law. It includes the most significant amendments to the FCA since the 1986 amendments. FERA enacted the following changes:

1. Expanded the scope of potential FCA liability by eliminating the “presentment” requirement (effectively overruling the Supreme Court’s opinion in Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008));

2. Redefined “claim” under the FCA to mean “any request or demand, whether under a contract or otherwise for money or property and whether or not the United States has title to the money or property” that is (1) presented directly to the United States, or (2) “to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest” and the government provides or reimburses any portion of the requested funds;

3. Amended the FCA’s intent requirement, and now requiring only that a false statement be “material to” a false claim;

4. Expanded conspiracy liability for any violation of the provisions of the FCA;

5. Amended the “reverse false claims” provisions to expand liability to “knowingly and improperly avoid[ing] or decreas[ing] an obligation to pay or transmit money or property to the Government;”

6. Increased protection for qui tam plaintiffs/relators beyond employees, to include contractors and agents;

7. Procedurally, the government’s complaint will now relate back to the qui tam plaintiff/relator’s filing;

8. Provided that whenever a state or local government is named as a co-plaintiff in an action, the government or the relator “shall not [be] preclude[d] . . . from serving the complaint, any other pleadings, or the written disclosure of substantially all material evidence;”

9. Increased the Attorney General’s power to delegate authority to conduct Civil Investigative Demands prior to intervening in an FCA action.

With this revision, the FCA now prohibits knowingly (changes are in bold):

1. Submitting for payment or reimbursement a claim known to be false or fraudulent.

2. Making or using a false record or statement material to a false or fraudulent claim or to an ‘obligation’ to pay money to the government.

3. Engaging in a conspiracy to defraud by the improper submission of a false claim.

4. Concealing, improperly avoiding or decreasing an ‘obligation’ to pay money to the government.

Practical application of the law

The False Claims Act has a detailed process for making a claim under the Act. Mere complaints to the government agency is insufficient to bring claims under the Act. A complaint (lawsuit) must be filed in U.S. District Court (federal court) in camera (under seal). After an investigation by the Department of Justice within 60 days, or frequently several months after an extension is granted, the Department of Justice decides whether it will pursue the case.

If the case is pursued, the amount of the reward is less than if the Department of Justice decides not to pursue the case and the plaintiff/relator continues the lawsuit himself. However, the success rate is higher in cases that the Department of Justice decides to pursue.

Technically, the government has several options in handing cases. These include:

• 1) intervene in one or more counts of the pending qui tam action. This intervention expresses the Government’s intention to participate as a plaintiff in prosecuting that count of the complaint. Fewer than 25% of filed qui tam actions result in an intervention on any count by the Department of Justice.

• 2) decline to intervene in one or all counts of the pending qui tam action. If the United States declines to intervene, the relator may prosecute the action on behalf of the United States, but the United States is not a party to the proceedings apart from its right to any recovery. This option is frequently used by relators and their attorneys.

• 3) move to dismiss the relator’s complaint, either because there is no case, or the case conflicts with significant statutory or policy interests of the United States.

In practice, there are two other options for the Department of Justice:

• 4) settle the pending qui tam action with the defendant prior to the intervention decision. This usually, but not always, results in a simultaneous intervention and settlement with the Department of Justice (and is included in the 25% intervention rate).

• 5) advise the relator that the Department of Justice intends to decline intervention.

This usually, but not always, results in dismissal of the qui tam action. There is case law where claims may be prejudiced if disclosure of the alleged unlawful act has been reported in the press, if complaints were filed to an agency instead of filing a lawsuit, or if the person filing a claim under the act is not the first person to do so. Individual states in the U.S. have different laws regarding whistleblowing involving state governments.

Relevant Decisions by the United States Supreme Court

In a 2008 case, Allison Engine Co. v. United States ex rel. Sanders, the United States Supreme Court considered whether a false claim had to be presented directly to the Federal government, or if it merely needed to be paid with government money, such as a false claim by a subcontractor to a prime contractor. The Court found that the claim need not be presented directly to the government, but that the false statement must be made with the intention that it will be relied upon by the government in paying, or approving payment of, a claim. The Fraud Enforcement and Recovery Act of 2009 reversed the Court’s decision and made the types of fraud to which the False Claims Act applies more explicit.

In a 2009 case, United States ex rel. Eisenstein v. City of New York,the United States Supreme Court considered whether, when the government declines to intervene or otherwise actively participate in a “qui tam” action under the False Claims Act, the United States is a “party” to the suit for purposes of Federal Rule of Appellate Procedure 4(a)(1)(A) (which requires that a notice of appeal in a federal civil action generally be filed within 30 days after entry of a judgment or order from which the appeal is taken). The Court held that when the United States has declined to intervene in a privately initiated FCA action, it is not a “party” for FRAP 4 purposes, and therefore, petitioner’s appeal filed after 30 days was untimely.

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Army:

1. Army Criminal Investigation Command via the local Army CID office or at

the following website here.

2. Army Procurement Fraud Branch directly by calling (703)696-1550

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Phillips & Cohen’s attorneys

The experience that our attorneys brings to its cases is unique among qui tam law firms. Phillips & Cohen’s lawyers have decades of experience working with whistleblowers to bring their qui tam cases to a successful outcome. One of the firm’s founding partners, John Phillips, played a key role at the inception of the modern-day False Claims Act, working closely with congressional legislators to strengthen the Civil War-era law and increase the reward for whistleblowers. He filed the first qui tam lawsuit, which was the first of numerous successful qui tam cases he and the firm have brought.

Many of Phillips & Cohen’s attorneys come from positions of public service and public interest. Our staff includes a former U.S. Attorney, a former assistant U.S. Attorney, a former Senate committee counsel, a former Department of Justice appeals court attorney and a former co-director of a California public interest group that successfully fought oil companies, defense contractors and the city of Los Angeles. Working with whistleblowers to stop Medicare fraud and other types of fraud is in many ways a continuation of that type of work.Phillips & Cohen’s approach to qui tam cases

Phillips & Cohen takes an activist approach to qui tam cases. Some law firms will write up a qui tam lawsuit based solely on what the whistleblower says, then will sit back and wait to see what the U.S. Department of Justice will do.

We, however, actively advocate on behalf of our clients from the time we accept a case until the case is settled and our clients are rewarded. We work closely with our clients from the very beginning and are committed to providing whatever resources are needed to win a case. To make the case as strong as possible, we hire experts to investigate and support the fraud allegations that are made. Phillips & Cohen also works closely with the Justice Department from the time we accept a qui tam case. We lay the groundwork and gather the evidence that will convince the Department to join the whistleblower lawsuit. This work is very important. Justice Department support tremendously improves the odds that a qui tam case will be successful.

We pay for whatever legal resources may be necessary to win a qui tam case. For two related qui tam lawsuits against healthcare giant HCA Inc., Phillips & Cohen assembled a multi-law firm team of 40 lawyers from six law firms and spent $30 million to litigate the case. HCA eventually settled the lawsuits and paid the government a total of $626 million as a result of our qui tam cases alleging Medicare fraud.

Phillips & Cohen’s record of success with qui tam lawsuits

Phillips & Cohen is one of the few law firms whose lawyers are devoted exclusively to representing whistleblowers in qui tam (False Claims Act) litigation. We are also the most successful law firm at representing whistleblowers in qui tam lawsuits. Whistleblower cases brought by Phillips & Cohen attorneys have returned more than $5.3 billion to the U.S. Treasury.

Phillips & Cohen attorneys have an expertise in qui tam litigation, Medicare and Medicaid fraud and defense procurement fraud that few other law firms can match. The firm’s lawyers have been pioneers in applying the False Claims Act to recovering funds in such diverse areas as medical lab testing, municipal bond sales and foreign military aid.

Before making a decision about hiring a lawyer to represent you in a qui tam lawsuit, please read Pitfalls to avoid and Using the Internet to find a lawyer .