To be eligible to receive the funds, the BJCTA signs a Master Service Agreement, where, among other things, the BJCTA certifies that it would abide by all federal statutory and regulatory requirements, including the FTA Circular when using federal funds. As part of the FTA Circular, the procurement procedures for procuring architectural and engineering services (“A&E”), required the BJCTA to use the qualifications and procedures outlined in the Brooks Act. The Brooks Act is a federal statute, codified at Brooks Act, 40 U.S.C. §§1103-1104.
The Brooks Act requires an agency such as the BJCTA to do the following:
- Publicly announce A&E services that are being sought;
- Evaluate the qualifications statements;
- Exclude price as an evaluation factor;
- Develop a shortlist of at least three A&E firms for the purposes of discussing the proposed project;
- Rank the three A&E firms in order from the most qualified to the least;
- Evaluate an A&E offeror’s qualifications;
- Conduct negotiations with only the most qualified offeror; and
- If agreement on price fails, negotiate with the next most qualified offeror until a contract award can be made to the most qualified offeror whose price is fair and reasonable to the grantee.
In this case, the Relators alleged that the BJCTA sent out Request for Qualifications (“RFQ”) 15-17 to prospective A&E vendors on June 3, 2015, but that Defendants—the BJCA, Strada Professional Services, Barbara Murdock, and Edmond Watters—failed to properly follow the Brooks Act procurement procedures in regard to task order contracts awarded by the BJCTA to Strada.
The Relators alleged that Strada presented invoices to the BJCTA for payment for services under specified task order contracts. Then, the BJCTA drew down funds from the FTA to pay Strada invoices related to specific task order contracts once the invoices were received. The Relators allege that on an annual basis and each time invoices were submitted and funds were drawn down, the Defendants expressly or implicitly certified that they were in compliance with all federal procurement laws and regulations, including the Brooks Act.
“The jury heard evidence of Federal grant money projects being directed to a vendor that was not the most qualified to do the work, a blatant violation of the ‘Brooks Act’ which requires such funds to be awarded only to the most highly qualified vendor,” says Beasley Allen lawyer Larry Golston. “An independent evaluation committee identified an architectural and engineering (A&E) firm from Maryland as the most highly qualified A&E vendor to whom the BJCTA should negotiate with and award contracts. Instead of awarding contracts to the firm ranked as the most highly qualified A&E vendor, the BJCTA awarded contracts to a local A&E firm with political ties to the City of Birmingham’s former leadership and which was ranked third by the committee. The jury in this case found that the grant-funded contracts were simply awarded to a company that the BJCTA board liked, not the most qualified. And because the BJCTA certified to the government that it was following the Brooks Act but was not, the BJCTA’s misconduct amounted to a $1 million-plus False Claims Act verdict in favor of the whistleblowers, acting on behalf of the government,” Golston said.
The False Claims Act, codified at 31 U.S.C. §3729 was enacted in 1863 after Congressional investigations revealed the fraudulent use of Government funds during the Civil War. The “chief purpose” of the F.C.A. is to “provide for restitution to the government of money taken from it by fraud. (See United ex rel Marcus v. Hess, 317 U.S. 537, 551 63 S.Ct. 379, 388, 87 L.Ed. 443 (1943)). This is a case where the Relators allege that the Defendants fraudulently obtained and used federal grant funds that they were not entitled to (and should not have received absent the falsification records, statements and/or certifications).