F-35 Whistleblower Case
In November 2012, Solomon brought a False Claims Act (Whistleblower) action against Lockheed Martin and Northrop Grumman for making false claims against the government on the F-35 Joint Strike Fighter contract. The claims focused on the defendants’ use of Earned Value Management (EVM). In December 2017, a federal appeals court affirmed a district court’s decision that it lacked jurisdiction over the claims based on the Act's public disclosure bar. The court concluded that public disclosures provided “specific details about the fraudulent scheme and the types of actors involved in it” that were “sufficient to set the government on the trail of the fraud.”
Key documents are below. There is also a F-35 Whistleblower White Paper that can be downloaded. It provides a full narrative, lessons learned and recommendations for Program Managers (PM) and oversight agencies to ensure that EVM information is valid and reliable.
1. RELATOR’S FIRST AMENDED COMPLAINT
Key Documents
1: RELATOR’S FIRST AMENDED COMPLAINT (FAC)
US DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
USA ex rel. Paul J. Solomon, Plaintiffs, LOCKHEED MARTIN CORP. (LMC) and NORTHROP GRUMMAN SYSTEMS CORP. (NGC), Defendants.
CIVIL ACTION NO. 3:12-CV-4495-D, FALSE CLAIMS ACT COMPLAINT Document 34 Filed 03/20/15
Excerpts:
..a case of fraud by two major defense contractors, who wrongfully obtained lucrative defense contracts and contract payments by submitting grossly understated cost estimates and using improper accounting to conceal their cost overruns, resulting in a loss to the U.S. government in the hundreds of millions of dollars. Defendants LMC and NGC…conspired to defraud the government in at least three ways.
First, Defendants obtained a contract modification and increased funding for the F-35 program in 2005 by knowingly submitting grossly understated cost estimates, misleading the government into believing the F-35 program was more affordable than it actually was. LMC knowingly understated costs across the whole F-35 program by as much as $2.1 billion, which included a $233 million understatement on NGC’s portion of the program. One part of Defendants’ scheme to understate their costs is documented in a May 9, 2005 “Memorandum of Agreement” between LMC and NGC, which the Relator, Paul Solomon, discovered in the course of his duties as a compliance auditor at NGC. Based on these misleading cost estimates—which Defendants made at a time when they knew the government was keenly focused on the affordability of the F-35 program—Defendants fraudulently induced the government to approve a contract modification that authorized billions of dollars in additional funding for the F-35 Program. Because the contract modification was obtained by fraud, Defendants’ subsequent claims for payment under that contract constitute actionable false claims. And because of this fraud, the U.S. was deprived of the benefit of its bargain to the tune of hundreds of millions of dollars.
Second, after securing the contract modification, Defendants incurred substantial and foreseeable cost overruns. LMC and NGC concealed these overruns by improperly diverting funds from “Management Reserve (MR),” a budget reserve that is set aside for unanticipated future needs and is specifically prohibited from being used to cover cost overruns. Defendants’ improper depletion of MR funds endangered the financial viability of the F-35 program, forcing the government to make steep cuts in testing and development resources with expensive and detrimental long-term consequences.
Third, by covering up their cost overruns, presenting a misleadingly rosy picture of their performance on measures of cost control, and setting performance goals which they knew all along they would not be able to meet, LMC and NGC were able to secure larger profits in the form of higher performance-based Award Fees than were warranted based on their actual contract performance.
On June 25, 2007, LMC Program Manager Dan Crowley, LMC General Manager Tom Burbage, and NGC Program Manager Janis Pamiljans announced in a letter to all employees (Download below) on the F-35 program that the JSFPO had awarded an “exceptional” rating across all categories, and that LMC and NGC would receive more than 95% of the available Award Fee amount. According to the letter, JSFPO had noted LMC and NGC’s “excellent progress” on “continuously improving cost performance.”
On information and belief, however, Crowley, Burbage, and Pamiljans knew that the “exceptional” rating was based on falsified cost performance reporting and that the Award Fee was undeserved.
2. “Layman’s” Explanation of the F-35 allegations
to Sen. McCain, GAO, and DoD IG:
Excerpts:
As early as 2006, LM and the DoD program office knew that the program was getting further and further behind schedule and that there were significant cost overruns.
LM started cooking the books by overstating true earned value and understating the
Estimate at Completion (EAC). It submitted monthly cost performance reports that masked the truth. They intentionally ignored the DFARS/ANSI-748 guidelines. They managed the numbers, not the program.
In my opinion, LM's objectives were to keep funds and award fees (profit) flowing and to defer a Nunn-McCurdy review."
3. NGC’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
Document 105 Filed 03/21/16
Excerpts:
The link between defendants’ EVMS practices, including their misuse of MR, and their entitlement to award fees was publicly disclosed.
The DCMA EVMS Compliance Report found the “same patterns of MR abuse, cost report falsification, and other EVMS violations throughout the JSF program that were very similar to the violations” Relator had previously reported to DCMA. In other words, these violations were publicly disclosed in DCMA’s Report. For example, DCMA found LMC had inappropriately stored MR in empty work packages and had used the resulting underruns to offset supplier overruns.
In sum, NGC’s proffered public disclosures contain the allegations or transactions on which the fraudulent inducement claim is based.
4. US COURT OF APPEALS
FOR THE FIFTH CIRCUIT
USA ex rel. Paul J. Solomon, Plaintiff-Appellant,
LMC and NGC, Defendants-Appellees. NO. 17-10046, 12/19/17
Excerpts:
The public disclosures must therefore provide “‘specific details about the fraudulent scheme and the types of actors involved in it sufficient to ‘set the government on the trail of the fraud.’”
The question is whether the relator could have synthesized an inference of fraud from the public disclosures. Public disclosures will be sufficient if they provide details “such that the defendant’s misconduct would have been readily identifiable” and “furnish evidence of the fraudulent scheme alleged.”
The DCMA report states that Lockheed “was using MR funds to alter its own and subcontractor performance levels and cost overruns.” The report identified Lockheed’s purpose: “to prevent the cost performance index (CPI) from worsening.”
..we also conclude that the DCMA and GAO reports allege facts that make a potentially fraudulent scheme readily identifiable: LMC and its subcontractors were violating contracting regulations by using their MR budgets to compensate for over-budget expenditures that would have otherwise raised their cost performance indexes and estimates at completion reported to the government.
We are not concerned however, with the overall probability of someone inferring fraudulent activity from the public disclosures. The focus is on whether they could have made the inference.
5. F-35 Whistleblower White Paper
Excerpts:
Second, after securing the contract modification, Defendants incurred substantial and foreseeable cost overruns. LM and NGC concealed these overruns by improperly diverting funds from MR, a budget reserve that is set aside for unanticipated future needs and is specifically prohibited from being used to cover cost overruns.
Third, by covering up their cost overruns, presenting a misleadingly rosy picture of their performance on measures of cost control, and setting performance goals which they knew all along they would not be able to meet, LM and NGC were able to secure larger profits in the form of higher performance-based Award Fees than were warranted based on their actual contract performance.”
(Download F-35 Whistleblower below)