With an annual budget well over $100 billion and a large portion of that money appropriated to acquisition programs, the U.S. Air Force is a prime target for procurement fraud. Fortunately, the Air Force prioritizes the investigation and prosecution of fraud, as set forth in Air Force Policy Directive (“AFPD”) 51-11, Coordination of Remedies for Fraud and Corruption Related to Air Force Procurement Matters (24 April 2018). AFPD 51-11 states clearly:
The Air Force must detect and correct instances of procurement fraud to maintain operational readiness, recoup lost financial resources, restore public confidence in Air Force acquisitions, and prevent fraudulent conduct from occurring in the future.
The Air Force will aggressively pursue all significant procurement fraud cases which affect Air Force interests, and will ensure that appropriate criminal, civil, contractual, and administrative remedies are taken in a coordinated, expeditious manner. The Air Force will ensure monies lost to procurement fraud will be recovered for use by affected Air Force programs to the extent allowable by law.
AFPD 51-11, ¶ 1–2.
As the United States’ primary litigative tool to combat fraud, the False Claims Act is an integral part of prosecuting procurement fraud afflicting the Air Force. The Air Force has established detailed instructions for how the service assists the Department of Justice (“DOJ”) with investigating and managing False Claims Act cases. Every qui tam litigant with a case involving the Air Force should be familiar with Air Force Instruction (“AFI”) 51-1101, The Air Force Procurement Fraud Remedies Program (19 October 2017), and AFI 51-301, Civil Litigation, Chapter 9 (20 June 2002).
AFI 51-1101 details the responsibilities assigned to the Office of the General Counsel, Secretary of the Air Force (“SAF/GC”) for False Claims Act cases. These responsibilities include to:
- Receive qui tam notices from the DOJ and distribute the notices to an Acquisition Fraud Counsel.
- Establish Air Force positions with respect to procurement fraud related criminal and civil litigation, including qui tam litigation.
- Provide Air Force recommendations to the DOJ regarding intervention and the initiation, amendment, settlement, or withdrawal of actions filed by the United States which allege procurement fraud or corruption involving the Air Force.
- Serve as the approving Air Force office for all DOJ requests for Air Force witnesses, testimony and related cooperation in procurement fraud cases and litigation, and as the approving authority for litigation requests from private parties in qui tam actions in which the government declined to intervene.
- Approve the opening and closing of significant procurement fraud cases, designate a lead Acquisition Fraud Counsel when such cases affect multiple Major Commands (MAJCOMs), Field Operating Agencies (FOAs) or Direct Reporting Units (DRUs), and review remedies plans.
AFI 51-1101, ¶ 1.1.3–1.1.6.
In addition to SAF/GC, it is likely that numerous other entities within the Air Force will play some role in an False Claims Act case, including investigators, subject-matter experts, and base-specific leadership or counsel, among others. But, when seeking the release of information in litigation or testimony from Air Force personnel, a qui tam litigant must work with SAF/GC. In this regard, AFI 51-301 provides the requirements for official requests for information, including Touhy requests.
Want more information? The latest supplement to James B. Helmer, Jr.’s False Claims Act treatise: False Claims Act: Whistleblower Litigation includes greater detail on this topic. The Seventh Edition is available for purchase from its publisher, Bloomberg BNA.
Additionally, our firm routinely represents whistleblowers in complex False Claims Act actions involving defense contractor fraud, including those involving the U.S. Air Force. Our newest attorney, B. Nathaniel Garrett, is a veteran of the Air Force Judge Advocate General’s Corps. His insider knowledge can help attorneys and whistleblowers navigate the unique issues inherent in any Air Force False Claims Act case. If you are aware of fraud involving government contracts, please contact us.
