What's in a claim? A lot if you are in the U.S. Court of Appeals for the Third Circuit, where a recent decision retroactively applied the federal False Claims Act ("FCA") to a union's lawsuit alleging that a construction company tried to skirt the "prevailing wage" provisions of the Davis-Bacon Act.1
The Davis-Bacon Act "protect[s] local wage standards by preventing contractors from basing their bids [for federally-funded construction projects] on wages lower than those prevailing in the area."2 Under it, contractors performing federally funded construction contracts must certify their compliance with the Davis-Bacon Act to the U.S. Department of Labor ("DOL") as a precondition for payment.3
According to the labor union that served as relator in this case, Farfield construction company falsely certified its compliance with Davis-Bacon despite misclassifying workers; the union claimed the company classified workers as "less skilled" though they performed tasks ordinarily performed by "higherskilled (and higher-paid) workers."4 A DOL auditor who investigated while the project was ongoing took no action, and the DOL later declined to take action when the district court referred the union's allegations to it. Nonetheless, the relator argued, this conduct violated the FCA.5
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