Just in time for Thanksgiving, the federal government has withdrawn its False Claim Act suit against KBR alleging $100 million in improper charges for private security costs under KBR’s LOGCAP III contract. We criticized the court’s August 3, 2011 decision denying KBR’s motion to dismiss the case last summer. While KBR has good reason to celebrate the withdrawal of the claim, the court’s approach to the case will continue to present problems for government contractors.
The case arose out of a dispute relating to the allowability of private security costs. KBR attempted to seize the initiative by submitting a Contract Disputes Act claim to the Army contracting officer and then appealing to the Armed Services Board of Contract Appeals. The government responded to the Board case with a False Claims Act complaint in the D.C. federal district court. KBR moved to dismiss the FCA case, contending that there was nothing “false” about its claims for payment of private security costs. KBR argued that the issue was just a contract dispute that ought to be resolved as such.
The court denied KBR’s motion, citing internal KBR emails questioning the allowability of private security costs and KBR’s effort to obtain change order allowing them. The court held that that the government’s allegations satisfied the “materiality” element of the implied false certification theory under the DC Circuit’s SAIC decision.
The government’s decision to withdraw the complaint is certainly a positive development for KBR. Perhaps the claim will be resolved as an ordinary contract dispute, as it should have been in the first place. The informal resolution of the case is not as positive for other contractors facing government efforts to wield the False Claims Act sword in connection with resolving ordinary contract disputes. Without further consideration of the issue in the KBR case, some courts will no doubt be tempted to treat the issue of materiality as a factual, and not a legal, question. The risk remains that the government or a qui tam relator can cite a contractor’s internal discussion of the meaning of ambiguous contract terms as evidence of an FCA violation.