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1 hour ago, ji20874 said:

It is well-established practice that a set-aside clause’s very stringent requirement for a domestic product takes precedence over more loosely-written clauses that might seem to allow otherwise.  That’s normal with standardized clauses that are written for routine incorporation.

I was able to find a case that supports this. See Bulloch International, IncB-237369, Feb 5, 1990. The Navy rejected a bid as nonresponsive under a small business set-aside where the bidder listed a "FMS/Off set arrangement country end product", in its Buy American Act certificate. The GAO denied the protest:

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A bid as submitted must represent an offer to perform, without exception, the exact thing called for in the IFB, so that upon acceptance, the contractor will be bound to perform in accordance with all the terms and conditions of the IFB. Rocco Indus. (Inc., B-227636, July 24, 1987, 87-2 CPD Para. 87. Moreover, only material available at bid opening may be considered in making a responsiveness determination. DuHadaway Tool and Die Shop, Inc., B-216082, Aug. 29, 1984, 84-2 CPD Para. 239. Accordingly, since Hulloch's bid indicated both that (1) the firm would supply an item manufactured in Australia, and that (2) it would furnish only end items manufactured or produced by small business concerns in the United States, the contracting officer reasonably concluded that Bulloch's bid was nonresponsive in that it was not clear from the bid whether Bulloch would comply with the set-aside requirement to supply a product manufactured or produced in the United States. See Jarke Corp., B-231858, July 25, 1988, 85-2 CPD Para. 82.

 

59 minutes ago, hallowed said:

Would it take 6 awards to recognize that my company is not legitimate?

That wouldn't surprise me.

13 minutes ago, hallowed said:

Do i have any rights arise from this other than the regular dispute process?

Maybe. I suggest you seek counsel from an attorney.

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13 minutes ago, hallowed said:

What does unrestricted solicitation mean? Does it indentify the ones other than set asides? Couldn’t find any info..

It means that the competition is open to other than small businesses.

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19 hours ago, ji20874 said:

Maybe you were just lucky for the other six?  

I recommend being careful in raising the other six awards — an investigator might look into them and you might face a false claim matter (submitting an invoice for a product that does not conform to contract requirements) if any of those six were set-asides.

Anyway, we’re here for learning, not argument.  Happy new year!

Its not a false claim if there is no intent to deceive and the proposer thought that its offer was conforming. Even less so where the offeror identified the source in its offer and the government either didn’t evaluate it or evaluated it and the evaluator was clueless. The government must prove that the offer intended to deceive the government.

The government has the responsibility to evaluate information it requires from offerors. It also has a responsibility to know what it specified in the solicitation. 

Lets stop blaming hallowed here. 

Hallowed, if you wait to hire legal counsel or other professional assistance  for the purpose of preparing and pursuing a claim, those costs are unallowable.

However, if you hire someone NOW, for the purpose of helping resolve the matter and obtaining a settlement of termination costs, prior to it escalating to a claim, those costs might be reimbursable expenses in the termination settlement. 

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13 hours ago, joel hoffman said:

Its not a false claim if there is no intent to deceive and the proposer thought that its offer was conforming. Even less so where the offeror identified the source in its offer and the government either didn’t evaluate it or evaluated it and the evaluator was clueless. The government must prove that the offer intended to deceive the government.

The government has the responsibility to evaluate information it requires from offerors. It also has a responsibility to know what it specified in the solicitation. 

Lets stop blaming hallowed here. 

Hallowed, if you wait to hire legal counsel or other professional assistance  for the purpose of preparing and pursuing a claim, those costs are unallowable.

However, if you hire someone NOW, for the purpose of helping resolve the matter and obtaining a settlement of termination costs, prior to it escalating to a claim, those costs might be reimbursable expenses in the termination settlement. 

Thank you Joel. I’ll find someone a.s.a.p

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16 hours ago, Don Mansfield said:

It means that the competition is open to other than small businesses.

DLA master solicitation states as: quoting other than a domestic end product on an unrestricted solicitation doesn’t make an offer ineligible for the award. Do i have the opportunity to compete for unrestricted solicitations as a small business and offer QC products? If so, i’ll follow that way because set asides seem to be the problem here.

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7 minutes ago, hallowed said:

DLA master solicitation states as: quoting other than a domestic end product on an unrestricted solicitation doesn’t make an offer ineligible for the award. Do i have the opportunity to compete for unrestricted solicitations as a small business and offer QC products? If so, i’ll follow that way because set asides seem to be the problem here.

Sure. Unrestricted means that it is free and open to competition.

No position on whether your offered products would be allowed. 

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45 minutes ago, joel hoffman said:

Sure. Unrestricted means that it is free and open to competition.

No position on whether your offered products would be allowed. 

This is great news. The only thing left is make them unlock my account.. Thank you Joel.🙏 

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16 hours ago, joel hoffman said:

The government must prove that the offer intended to deceive the government.

Under the civil false claims  act, intent is not an element.  All the government needs to prove is that a false claim (one that is not true) was made knowingly.  In this regard, 31 U.S.C. 3729 states

(1) the terms “knowing” and “knowingly”—

(A) mean that a person, with respect to information—(i)

has actual knowledge of the information;

(ii)

acts in deliberate ignorance of the truth or falsity of the information; or

(iii)

acts in reckless disregard of the truth or falsity of the information; and

(B)

require no proof of specific intent to defraud;

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18 U.S. Code § 287 - False, fictitious or fraudulent claims

Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.
(June 25, 1948, ch. 645, 62 Stat. 698Pub. L. 99–562, § 7, Oct. 27, 1986100 Stat. 3169.)

 

Note that 18 USC 287 is for a criminal component of a False Claim.  
 
From the Department of Justice  Criminal Resource Manual, Section 922
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Under 18 U.S.C. § 287, the government must establish that the defendant:

  1. made or presented a false, fictitious, or fraudulent claim to a department of the United States;
  2. knew such claim was false, fictitious or fraudulent; and
  3. did so with the specific intent to violate the law or with a consciousness that what he was doing was wrong.

United States v. Slocum, 708 F.2d 587, 596 (11th Cir. 1983)(citing United States v. Computer Sciences Corp., 511 F. Supp. 1125, 1134 (E.D. Va. 1981), rev'd on other grounds, 689 F.2d 1181 (4th Cir. 1982)).

Under Section 287, unlike 18 U.S.C. § 1001, there may not be a requirement that the statements or claims be material; the United States Courts of Appeals are split on the issue. United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992)(no materiality component); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822 (1984)(same);United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983) (materiality component); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974) (same). The conflict was noted in United States v. White27 F.3d 1531, 1535 (11th Cir. 1994), which did not resolve the issue. Presumably, if a materiality component exists, it is a matter for jury resolution in light of United States v. Gaudin, 115 S.Ct. 2310 (1995).

Although it is clear from the case law that specific intent to defraud is not required for a conviction under 18 U.S.C. § 287, the United States Courts of Appeals are divided on the issue of whether willfulness is an essential element of the crime. For example, the United Stated Courts of Appeals for the Tenth, Fifth and Second Circuits have held that willfulness is not an essential element of Section 287, while the Ninth, Eighth and Fourth Circuits appear to indicate that willfulness is an essential element of Section 287.

Presentation of a claim is more than an intention to make a claim. The claim must be presented actually and physically, and thereby made to the government. The clearest case is presentation directly to the government; however, the claim may go through an intermediary. United States v. Murph, 707 F.2d 895, 896 (6th Cir.) cert. denied, 464 U.S. 844 (1983), (court rejected the argument that defendant did not cause a violation of Section 287 because the claim was submitted by an intermediary; the defendant sold a tax return, falsely claiming a refund, to the intermediary and knew that the return would be presented to the government to claim the refund). Presenting or cashing a refund check constitutes making a false claim on the United States. See United States v. Branker, 395 F.2d 881 (2d Cir. 1968), cert. denied, 393 U.S. 1029 (1969). Although Section 287 does not define the term "claim" (United States v. Barsanti, 943 F.2d 428, 432-33 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992)), in United States v. Cohn, 270 U.S. 339 (1926), the United States Supreme Court wrote:

"While the word "claim" may sometimes be used in the broad juridical sense of "a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty," it is clear, in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a "claim upon or against" the government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the government, based upon the government's own liability to the claimant."

270 U.S. at 345-36. The civil component of the False Claims Act, 31 U.S.C. § 3729(c), also defines the word "claim."

 

 

See also:

https://www.browntax.com/Criminal-Tax-Charges/False-Fictitious-or-Fraudulent-Claims-in-Violation-of-Title-18-U-S-C-Sections-287-and-286.shtml

Title 18, United States Code, Section 287 makes it a crime to make false, fictitious, or fraudulent claims upon the United States

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Claim Against the United States

The first element the government must prove in a § 287 case is that an individual made a claim against the United States for money or property.

[...] It is not required that the government pay or otherwise fulfill the false claim, only that the claim is presented to the government. Also, the false claim does not have to be made directly to the government, it can be made to an intermediary authorized to accept the claim on behalf of the government, such as a tax return preparer, as long as the individual knows the intermediary will present the false claim to the government.

False, Fictitious, or Fraudulent Claim

The second element the government must prove is that the claim is false, fictitious, or fraudulent. Because this section utilizes the word "or," a charge under this section can be presented as either a false, fictitious, or fraudulent claim.

False - Deliberately untrue. Unlawful. An action with intent to perpetrate a betrayal of trust or fraud. Done or said to fool or deceive someone. Adjusted or made so as to deceive. 

Fictitious - false, feigned, or pretended. Not real or true. Made-up or fabricated. 

Fraudulent - Based on or tainted by fraud. Done, made, or effected with a purpose or design to carry out a fraud. Obtained, done by, or involving deception, especially criminal deception.

One can envision the multitude of ways an individual can carry out a false, fictitious, or fraudulent claim to the government. The government's burden is met when they prove the claim was one of these.

For example: An accountant prepares a tax return for a taxpayer. And instead of placing the taxpayer's banking information on the return, the accountant places their own banking information on the tax return. The false information causes the government to deposit the taxpayer's refund into the account of the return preparer.

Materiality

Although not a specific requirement of § 287, it is has been held by some courts that the materiality of a "fraudulent" claim must be proved and determined by a jury, but not so with a "false" or "fictitious" claim. So, the government may chose the wording "false" in their charging document to avoid the issue of materiality as it relates to § 287.

Knowledge

The third element the government must prove is knowledge, or criminal intent, that the claim made to the government was false, fictitious, or fraudulent. The courts vary on their interpretation of the standard the government must meet to prove this element. Generally, the government may meet its burden by showing the individual was aware of the illegality of their actions or acted specifically to break the law

 

 

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For a Civil False Claim under 31 USC 3729 see, for instance this article at https://fcaexpert.com/articles/fca-faq.html

Quote

 

3. What are the components of an offense under the False Claims Act?

Under whatever section of the Act, the government or a qui tam plaintiff must prove the following: (1) that the defendant presented or caused to be presented to the United States government a claim for payment or approval, or a document to facilitate the payment of a false claim; (2) that the claim and/or document was false or fraudulent; and (3) that the defendant knew that the claim was false or fraudulent or acted with reckless disregard of the truth or falsity of the claim. If these elements are present, a violation of the FCA occurs even if the government never actually makes any payment or suffers a financial loss. The defendant does not have to act with a specific intent to defraud in order to be liable, as long as the submission was “knowing.”

4. What is the definition of “knowing” under the False Claims Act?

In 1986, the FCA was substantially amended to improve and enhance the government’s ability to recover federal funds lost through fraud. One important change was the clarified definition of “knowing” found at ‘ 3729(b). The amended Act now mandates that a person (including any health care provider or contractor) can be held liable if it submits or causes to be submitted1 a false or fraudulent claim or a false statement in support of a claim: a. with actual knowledge that it is false (‘ 3729(b)(1)); b. in deliberate ignorance of the truth or falsity of the information (‘ 3729(b)(2)); c. or in reckless disregard of the truth or falsity of the information (‘ 3729(b)(3)). Moreover, Congress clarified that no proof of specific intent to defraud is required. (‘ 3729(b)(3)). One of the most grievous mistakes counsel unfamiliar with the FCA make is to equate the scienter requirement of the FCA with criminal fraud statutes. Not only does the statute state on its face “no specific intent” is necessary, it offers three varying definitions of “knowing” which do determine the scienter requirement. The first definition, actual knowledge [‘3729(b)(1)], is entirely straightforward. If a false claim is submitted, or a false or fraudulent document submitted, and the submission is from a person who knows the document or claim is false or fraudulent, then a knowing submission has occurred. The next two definitions are somewhat more illusive.

A good illustration of acting in deliberate ignorance of the truth or falsity of information (section b(2)) is found where, for example, a physician practice does not properly supervise or train its billing staff, so that inappropriate claims are submitted. The practice cannot avoid liability by asserting that it relied upon the billers if it could have exercised appropriate supervision over them; the same is true of independent billing companies. This provision is sometimes said to deal with the “ostrich with its head in the sand” problem. Put simply, you cannot look the other way and thereby avoid FCA liability. The third definition, acting in “reckless disregard,” is very difficult to assess. Probably, this provision relates to negligence of a very high category. An example might be using a computer billing program for Medicare billing that has not been updated for five years to see, nonetheless, how many claims would be paid. The important point to bear in mind is that nobody quite knows what the second and third categories of “knowing” mean and how a court would interpret these provisions. Therefore, compliance officers, in particular, should act upon the assumption that careless or mistaken claims can serve as the basis for a FCA prosecution.

 

 

I did not use the term "defraud" earlier, by the way. However, there is apparently some legal distinction between "intent to deceive" and knowingly submitting a false claim or false statement. I admit that I'm not an attorney.

 

My point is that, if one unknowingly submits a false statement - without deliberate ignorance or reckless disregard of the truth, it likely isn't a "knowing" false claim act violation, criminal or civil.

As hallowed stated in the above posts, the various clauses in the solicitation appear to contradict each other in some cases. hallowed appears to have thought that what they were planning to do was allowed by the contract.

Moreover, hallowed has stated that the company identified the source of manufacturing to the government - - - who wrote the requirements and who should know the requirements -  and who should have evaluated the required, identified source.  If the government didn't know what was allowable - perhaps that was a reckless disregard of the requirement by the government in the award of the contract. 

The government shouldn't have awarded the two contracts if the country of origin of the identified source wasn't allowed. I don't think that a default or for cause termination/cancellation would stick, but hallowed needs professional advice ans assistance.

Edited by joel hoffman

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4 hours ago, joel hoffman said:

As hallowed stated in the above posts, the various clauses in the solicitation appear to contradict each other in some cases. hallowed appears to have thought that what they were planning to do was allowed by the contract.

That’s exactly what i thought. Never expected to see a clause in the contract with another one voiding it. Where’s the logic here? :) IMHO, the only condition that may allow far 52.219-6 and dfars 252.225-7002 exist in the same contract would be an additional phrase or clause like: “when these two clauses are cited in the same contract, qualfying country end products will be treated as domestic end products”. Otherwise nonfunctional clause should be removed. You can’t put a clause in a contract and then tell the contractor to ignore it. Everything must be clear enough to allow precise interpretation by everyone.

Quoting a domestic end product and then supplying a foreign one is a false claim/fraud. But if you’re exposing the origin of your products as foreign, where would you be expected to get them from? 

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2 hours ago, joel hoffman said:

The government shouldn't have awarded the two contracts if the country of origin of the identified source wasn't allowed. I don't think that a default or for cause termination/cancellation would stick, but hallowed needs professional advice ans assistance.

I’ve contacted a specialist from aptac. Said she will work on my issue after getting back from vacation. Thanks to everyone who shared info and thoughts here. Learned lots of new stuff. I’m grateful..

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21 hours ago, joel hoffman said:

My point is that, if one unknowingly submits a false statement - without deliberate ignorance or reckless disregard of the truth, it likely isn't a "knowing" false claim act violation, criminal or civil.

That is generally a true statement.  For contractors, the government usually does not pursue criminal false claims act remedies because you cannot put a corporation in jail and the government must prove its assertions beyond a reasonable doubt.  As a result, corporate contractors are usually faced with civil false claims act complaints.  Note that a claim can be false without the contractor facing liability because the act requires a knowing submission of a false claim.  As you indicated, if a false claim is not submitted knowingly, there is no liability.

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@hallowed

In thinking more about this you may want explore "improper awards of government contracts" in your research.  Like unauthorized commitments there is case law with regard to a contractor's rights when the government's award is improper.  Could help with you further conversations with APTAC folks and legal counsel.

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On 12/26/2018 at 2:32 PM, hallowed said:

Yes they were set aside for small business...

1

52.219-6 is a common set-aside clause (for total SB set-aside), but there are a few others for HUBZone, SDVOSB, WOSB, and other sorts of small business set-sides.  I would ask for a listing of all Part 19 clauses in both the solicitation and in the contract (or purchase order) -- everything FAR 52.219-__ or DFARS 252.219-__.

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On 12/31/2018 at 8:10 PM, Don Mansfield said:

So it doesn't include FAR 52.219-6?

No it doesn’t. One of them includes both far 52.219-6 and dfars 252.225-7002 which are contradicting clauses but the other one doesn’t have the far but dfars 252.225-7001 and 7002 only.

I understand if they tell me not to quote for set asides again but don’t i have the right to compete for unrestricted ones?

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On 12/31/2018 at 9:12 PM, ji20874 said:

52.219-6 is a common set-aside clause (for total SB set-aside), but there are a few others for HUBZone, SDVOSB, WOSB, and other sorts of small business set-sides.  I would ask for a listing of all Part 19 clauses in both the solicitation and in the contract (or purchase order) -- everything FAR 52.219-__ or DFARS 252.219-__.

I never quote for hub zone, 8(a), woman owned set asides. The reasons made me quote for total sb were dfars 252.225.7001 and 7002. I interpreted these as if they existed to allow me offer foreign products. 

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3 hours ago, hallowed said:

No it doesn’t. One of them includes both far 52.219-6 and dfars 252.225-7002 which are contradicting clauses but the other one doesn’t have the far but dfars 252.225-7001 and 7002 only.

I understand if they tell me not to quote for set asides again but don’t i have the right to compete for unrestricted ones?

I don't know why you wouldn't, but I don't have the solicitation. Maybe there is some other reason. I think you should ask the contracting officer.

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On 1/2/2019 at 8:37 PM, Don Mansfield said:

I don't know why you wouldn't, but I don't have the solicitation. Maybe there is some other reason. I think you should ask the contracting officer.

I’ve asked for the reason several times. The only reason was because i didn’t comply with dla master solicitation’s domestic product rule. That’s ok. But still they refuse to unlock my account to let me compete for unrestricted solicitations. 

Don, i appreciate if you answer these questions to make things clear for me:

1. Are all solicitations -without a set aside code- unrestricted?

2. Can a contract officer include clauses in unrestricted solicitations to exempt small businesses? Which parts should i pay attention to avoid any mistakes in the future?

Thank you..

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