In the construction industry, the payment application process usually requires contractors and subcontractors to complete a great deal of paperwork. In addition to submitting traditional payment applications that identify the contractor’s or subcontractor’s schedule of values, work completed to date, and balance to finish, contractors and subcontractors may also be required to submit certain lien waivers, certifications, affidavits, and other types of sworn representations. While these additional submissions may seem clerical, or even ceremonial in nature, they can have serious legal ramifications.
The United States District Court for the Eastern District of Virginia recently issued a decision that may have broad implications to the calculation and imposition of civil penalties in False Claim Act (FCA) cases, because, for the first time, a court refused to issue mandatory civil penalties against a contractor that was found to have violated the FCA.
More specifically, United States ex rel. Bunk v. Birkart Globalistics GmbH & Co., et. al., No. 1:02-CV-1168 (E.D. Va. February 14, 2012), involves a qui tam claim that was filed against a contractor for violations of the FCA. The alleged violations stem from a bid submitted to the Department of Defense, which included a Certificate of Independent Pricing that stated:
Prior to 2007, the Pennsylvania Mechanic’s Lien Law of 1963, 49 P.S. §1101-§1902 (the “Mechanic’s Lien Law”) operated for over 40 years in its original form, without any significant or substantive modifications. In 2007, however, amendments to the Mechanic’s Lien Law went into effect that significantly changed the statute. For example, the 2007 amendments changed, inter alia, the enforceability of upfront waivers and the definition of a “subcontractor.” In 2009, additional amendments to the Mechanic’s Lien Law went into effect which changed some of the 2007 amendments.