Best Value Qui Tam Cases

There are several types of Capital Medical Equipment (“CME”) that are routinely sold to hospitals and healthcare organizations, including Magnetic Resonance Imaging Scanners (“MRI”), Computed Tomography Scanners (“CT Scanners”), and Ultrasound Equipment. These products represent a major portion of CME purchases that hospitals and healthcare organizations make each year.

CME acquisitions are generally made according to the policies and procedures articulated in the Federal Acquisition Regulations (“FAR”), which allows the government to solicit competitive pricing for CME acquisition. FAR provides for the “best value” approach in the selection process, which is defined as the expected outcome of an acquisition that, in the government’s estimation, provides the greatest overall benefit in response to the requirement.

Unlike best price calculations, price is only one factor under the best value approach that the government can consider in selecting a vendor. The best value approach does not require that the government receive the lowest or best price. The government can weigh other factors, such as the risk of unsuccessful performance, past performance considerations, or the technical requirements of the solicitation. Even though price is not necessarily the deciding factor, price nevertheless is always considered throughout the best value selection process. The submission of accurate pricing information, therefore, is critical to a fully informed decision by the government.

Actions involving best value most often occur in two situations: 1) manufacturers failing to provide accurate pricing data to the government in their responses to solicitations; and 2) manufacturers using the product coding and configurations system to distort pricing data, cover-up better deals, or justify better pricing.

For more information and case citations, please see “Federal False Claims Act and Qui Tam Litigation,” published by Law Journal Press (2010).

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You should be aware that qui tam claims are subject to a Statute of Limitations. The area of limitations periods is complex. There are also first to file rules, public disclosure bars, original source issues, and varying limitations in pursuing retaliation claims. If you wish to pursue your claims, you should promptly seek the opinion of an attorney regarding the merits of your qui tam claim and the applicable statute of limitations.