Not every violation of a federal contract creates False Claims Act liability. In many FCA cases involving federal contracts, the central issue is not whether a contract requirement was violated, but whether the alleged violation was material to the government’s payment decision. Under the False Claims Act, materiality means whether an alleged misrepresentation or omission had a natural tendency to influence, or was capable of influencing, that payment decision. See 31 U.S.C. § 3729(b)(4). As a government contracting expert witness and former Contracting Officer evaluating materiality, I typically begin my materiality analysis with three areas.
- Context matters
Materiality depends on the procurement context surrounding the contract. Factors such as mission requirements, acquisition strategy, performance risks, and operational constraints influence how agencies evaluate contract performance issues. Understanding how materiality operates within the federal acquisition system is often central to attorneys representing relators, whistleblowers, defendants, and the government. False Claims Act cases involving federal contracts require expert testimony to explain the operational realities of the federal acquisition system, including:
- how federal procurement processes work
- how contracts are administered in practice
- how agencies evaluate compliance issues
- how alleged violations relate to payment decisions
Not every contract violation is material. Federal contracts contain many requirements, but not every deviation from a contract clause necessarily rises to the level of a False Claims Act violation. Materiality analysis focuses on whether the issue would meaningfully influence the government’s decision-making, rather than simply whether a requirement existed. Expert testimony helps the court understand both the legal framework of the False Claims Act and how government contracting operates in practice. This helps the court understand whether the alleged actions were capable of influencing the government’s payment decision, how significant those actions were, and whose decision-making they affected. Law firms retain materiality expert witnesses to provide the court and jury with the perspective of experienced government Contracting Officers and acquisition professionals to explain how a defendant’s alleged actions or omissions were capable of influencing government acquisition decisions.
- What the Government Actually Did Matters
Federal contracts are administered through ongoing interactions between contractors and government officials. Contracting officers and program officials routinely address performance issues, documentation questions, and compliance concerns during the life of a contract. How did the agency behave after learning of an alleged violation? Did the government continue performance, continue payment, demand corrective action, or treat the issue as significant? Each of these facts may bear directly on the materiality analysis. In FCA cases involving federal contracts, documentation plays a major role in evaluating materiality. This can include:
- whether the government historically paid claims despite similar issues
- whether the agency continued performance after learning about the alleged violation
- whether the issue was treated as significant during contract administration
- invoices and payment requests
- correspondence between the contractor and government officials
- performance evaluations or contract administration records
Contract records, notes, and communication are valuable for illustrating how the contract functioned in practice. An effective expert must be able to filter, assess, and clearly explain the significance of what may be an enormous volume of contract documentation.
- 3. The FAR Doesn’t Answer Materiality by Itself
Federal contracts operate within a structured procurement framework governed by the Federal Acquisition Regulation (FAR) and agency-specific rules. The FAR functions less like a single rulebook and more like an interconnected framework of authorities, procedures, and policies. Rather than focusing on regulatory generalities, materiality requires a ground-level understanding of how government contracting functions in practice and how those practices impact the specific circumstances within a specific case. This includes how specific FAR reforms affect competition, communication, acquisition strategy, and contract execution in federal contracts, and how those elements relate to the specific case.
Understanding how these regulations interact with contract terms, performance oversight, and payment procedures requires specialized expertise. Expert testimony on materiality helps the court and the jury understand how these acquisition rules translate into operational systems within government contracting organizations.
Kevin Jans is a former Department of Defense Contracting Officer and President of Skyway Acquisition. He serves as an expert witness in False Claims Act matters involving federal contracts, with a particular focus on materiality, federal acquisition practices, contract administration, and the perspective of a reasonable Contracting Officer.
Attorneys evaluating False Claims Act cases involving federal contracts often benefit from early analysis of procurement context, contract administration, and the government’s payment decisions before expert reports are prepared. Learn more about Kevin Jans’ expert witness experience in False Claims Act matters involving federal contracts https://skywayacq.com/expert-witness-cv/
