Because their government contracts did not explicitly require them to adhere to industry standards and because would-be whistleblowers had failed to demonstrate that government entities considered their alleged missteps material, a defendant construction company should be granted summary judgment on claims brought under the Massachusetts False Claims Act, a Superior Court judge has decided.
In Commonwealth ex rel. Minarik v. Tresca Brothers Concrete, Sand and Gravel, Inc., two delivery drivers asserted claims under the False Claims Act on behalf of six Massachusetts municipalities and three charter schools.
They alleged that their former employer regularly delivered to public construction projects batches of ready-mix concrete that did not meet applicable standards because they were too old, contained too much water, or both. They also alleged that their employer failed to pay the required “prevailing wage” for time spent by drivers delivering concrete to public job sites.
With respect to the first of the four elements of an FCA claim, falsity, the plaintiffs were advancing an “implied certification theory,” arguing that the defendant had submitted claims for payment that failed to disclose its noncompliance with industry standards, Business Litigation Session Judge Kenneth W. Salinger noted.
But absent provisions in its public contracts mandating compliance with those standards, the defendant’s failure to abide by them could not serve as the basis of FCA claims, Salinger...
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