Implied Certification under the False Claims Act
This Faculty Working Paper has been updated and posted within the Georgetown Law Faculty Publications series in the Scholarly Commons. It is currently available at http://scholarship.law.georgetown.edu/facpub/642/
The False Claims Act prohibits fraud by government contractors, including a contractor's false certification of compliance with the contract, statutes or regulations. In the early 1990s, some courts began holding that the act of requesting payment from the government implicitly represents such compliance for the purposes the FCA. Circuits are today split on the implied certification doctrine. This Article provides a theory of implied certification, suggests how the circuit split should be resolved and describes how contracting agencies should write contracts in light of the existing rule. There are good reasons for the implied certification rule: it is an information-forcing majoritarian default; it affirms the special ethical obligations of government contractors; and it addresses agency lassitude in drafting and monitoring performance. But implied certification also has its costs. Most importantly, it lowers the bar to frivolous qui tam actions and threatens to impose FCA liability for violations better addressed by more discretionary and nuanced regulatory responses. This Article recommends a narrow implied certification rule: the fact that a contract, statute or regulation conditions either participation in or payment for a contract on compliance with it should create a prima facie case that a claim for payment represents such compliance, shifting the burden to the defendant to show that FCA liability would interfere with other regulatory monitoring and enforcement mechanisms. The Article also recommends that contracting agencies pay more attention to the FCA when drafting contracts. They can approximate first-best results by requiring express certification of compliance with those duties for which FCA liability makes sense, and contracting-out of implied certification for those duties that are better enforced in other ways. In addition to these practical suggestions, the Article draws some general lessons about the contractual duties to cooperate, interpretive defaults in contract and tort, and the special ethical obligations of government contractors.