In a suit brought under the False Claims Act, also called a qui tam action, an individual with knowledge of a past or present fraud committed against the government may bring a suit against an entity on the government’s behalf. In a qui tam action, the government is the proper plaintiff, or party in interest, and the employee is considered a “relator.” In many instances, however, the relator drives the case, often acting as a private attorney general. If successful, the relator can recover a portion of the recovery award.
The Superior Court (Salinger, J.) recently allowed a defendant’s motion for summary judgment in a qui tam action under the Massachusetts False Claims Act (“FCA”), G.L. c. 12, §§ 5A-5O. In Commonwealth ex rel. Minarik v. Tresca Brothers, Concrete, Sand and Gravel, Inc., two delivery drivers brought suit on behalf of six municipalities and three charter schools. Among other claims, the relators alleged that Tresca regularly delivered batches of ready-mix concrete to public construction projects that exceeded the 90-minute timeframe as required by industry standards, which, the relators argued, constituted an implied false certification. Ruling on summary judgment, the Superior Court held that the contracts with the government did not, in fact, require compliance with industry standards nor was Tresca otherwise legally required to comply with the industry standards. The Court also found it significant that Tresca presented evidence that contracts for similar jobs did not require compliance with industry factors – an important consideration under the FCA – and the relators presented no evidence to the contrary. Therefore, the Court held Tresca did not put forth any implied false certifications as the relators had alleged. Although this holding is but one of many in the Minarik decision, one take-away for municipal governments is to consider inserting contract provisions which require contractors to comply with the relevant industry standards.