1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

UNITED STATES OF AMERICA, )

ex rel. KEAVENEY, et al. )

 )

 Plaintiffs, ) 

 )

) 

v. ) Civil Action No. 13-855 (EGS)

)

SRA INTERNATIONAL, INC., )

et al. )

 )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

Qui Tam Relators Kevin Keaveney and Margot Brennan 

(collectively “Relators”) allege violations of the False Claims 

Act (“FCA”), 31 U.S.C. § 3729-3733, against Defendants SRA 

International, Systems Research and Applications Corporation

(collectively “SRA”) and Triton Services (collectively 

“Defendants”). Am. Compl., ECF No. 32 at 71-79. Relators allege 

that, to secure a Department of Defense (“DOD”) contract,

Defendants made numerous false statements to the government. Id.

Defendants SRA and Triton move to dismiss Relators’ Complaint 

for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6) and for failure to plead with particularity
2

as required under Federal Rule of Civil Procedure 9(b). SRA Mot. 

Dismiss, ECF No. 35; Triton Mot. Dismiss, ECF No. 38. Upon 

review of Defendants’ motions, the responses and replies 

thereto, and for the reasons discussed below, Defendants’ 

Motions to Dismiss are GRANTED in part and DENIED in part. 

I. BACKGROUND

A. Procedural History

On June 7, 2013, Relators filed their Complaint, Compl., 

ECF No. 1, and on February 23, 2015, the United States filed a 

Notice of Election to Decline Intervention. ECF No. 14. 

Defendants were served with the Amended Complaint on August 19, 

2015, and on October 16, 2015, Defendants filed the two motions 

to dismiss pursuant to Rules 12(b)(6) and 9(b) that are now 

before this Court. SRA Mot. Dismiss, ECF No. 35; Triton Mot. 

Dismiss, ECF No. 38.

In the Amended Complaint, Relators allege that Defendants 

engaged in a wide array of conduct that ultimately led to the 

submission of false claims to the government, including that 

Defendants: (1) made misrepresentations and concealed key 

information from their proposals to fraudulently induce the 

government to enter into the contract (Count I); (2) charged 

excessive pass-through fees for subcontractor labor (Count II); 

(3) made misrepresentations in monthly status reports and other 
3

submissions to the government (Counts III and IV); (4) inflated 

invoices and charged the government for services that were never 

rendered (Count V); and (5) implemented a kickback scheme 

wherein Defendants shared the proceeds of their allegedly 

fraudulent conduct amongst themselves (Count VI). Am. Compl., 

ECF No. 32 ¶¶ 121-150.

B. Relationship Between the Parties

Relator Kevin Keaveney is the President of K2 Global 

Solutions, Inc. (“K2GS”), a defense contracting company that 

supplies a variety of services to federal entities, including 

strategic planning, risk analysis, predictive modeling, defense 

readiness systems and data analysis. Id. ¶ 4. Mr. Keaveney has 

extensive experience in the national security sector and has 

developed a range of products and strategic management systems 

that have been widely adopted by the United States military. Id.

¶¶ 12-16. These products include, inter alia, the Army Reserve 

Expeditionary Force (“AREF”), a doctrinal and strategic 

management system used by the Army Reserve, and an automated 

version of AREF known as the Army Reserve Pool Based Sourcing

(“ARPBS”). Id. ¶¶ 12-14. Relator Margot Brennan is an officer of 

K2GS. Id. ¶ 5. 

Defendant Systems Research and Applications Corporation is 

a wholly-owned subsidiary of Defendant SRA International, Inc.
4

and serves as SRA’s primary contract vehicle with the U.S. 

government. Id. ¶ 6. In 2007, SRA entered into a joint venture 

named “Project Galaxy” with Defendant Triton Services, Inc. 

(“Triton”), a subcontractor. Id. ¶ 8. To perform the contract, 

Triton engaged various second-tier subcontractors, including 

K2GS, Tiber Creek Consulting, Inc. (“Tiber Creek”), Concurrent 

Technologies Corporation (“CTC”), and an individual named Jim 

Song.

From June to October 2005, Mr. Keaveney worked as a 

contractor for the DOD reporting to Joseph Angello, the Director 

of the Office of the Undersecretary of Defense, Personnel and 

Readiness, Readiness, Programming and Assessments. Id. ¶ 15. In 

February 2007, after Mr. Keaveney’s contract expired, Mr. 

Angello requested Mr. Keaveney’s assistance to continue the 

ARPBS and other military projects Mr. Keaveney had developed. 

Because Mr. Angello required Mr. Keaveney to procure his own 

contract vehicle, Mr. Keaveney approached Triton, a pre-approved 

subcontractor for various Department of Defense prime 

contractors. Id. ¶ 18. Triton’s Chief Executive Officer, Larry 

Stack, informed Mr. Keaveney that Triton would use one of its

existing prime contracting relationships, ultimately its 

relationship with SRA, to obtain the requisite contract vehicle. 

Id. ¶ 18.
5

C. Defendants’ Contracts with the U.S. Department of 

Defense

In 2003, the Department of Defense awarded Galaxy 

Scientific Corporation (“Galaxy”), a future subsidiary of SRA, a 

contract to provide analytic services and software. Id. ¶ 19. 

Galaxy teamed with Triton in early 2007 to become the prime 

contractor for an additional contract anticipated to be let in 

May 2007. Id. In March 2007, Mr. Angello met with Triton, Mr. 

Keaveney and another DOD representative to discuss the 

anticipated contract. Id. ¶ 20. At this meeting, the 

participants discussed Mr. Keaveney’s future role, the structure 

of the prospective contract, limits on Triton’s pass-through 

rates, and the roles of second-tier subcontractors. Id.

On June 13, 2007, Triton and SRA submitted a proposal, 

called a Task Execution Plan (“TEP” or “task proposal”), to the 

DOD outlining their anticipated work on the contract. Id. ¶ 23. 

The TEP highlighted Mr. Keaveney’s role as “Technical Team 

Leader” and detailed the six discrete tasks to be performed. Id.

Defendants’ proposal was ultimately successful and SRA and 

Triton secured the task order. Id. ¶ 24. On May 6, 2008, 

Defendants submitted a “follow-on” TEP to the DOD to request 

additional funds for the second half of the contract’s base year 

and the following two option years. Id. ¶ 35. The 2008 TEP was 

largely similar to the 2007 TEP. Id. To keep the government 
6

apprised of their progress under the contract, Defendants 

submitted Monthly Status Reports (“MSRs”). Id. ¶ 59. In late 

2008, Defendants removed Mr. Keaveney, K2GS and Tiber Creek from 

the contract and replaced them with Triton employees. Id. ¶¶ 39-

42; 138.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal 

sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 

242 (D.C. Cir. 2002). The pleading must contain a “short and 

plain statement of the claim showing that the pleader is 

entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 

(2009). The pleading standard does not require detailed factual 

allegations, but should be “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. at 678. Naked 

assertions without factual enhancements or formulaic recitations 

of the elements of a cause of action will not suffice. Id.

Rather, to survive a motion to dismiss, a complaint “must 

contain sufficient factual matter . . . to ‘state a claim to 

relief that is plausible on its face.’” Id. Plausibility entails 

that the plaintiff has pled factual content that is not merely 

consistent with liability but allows the Court to draw a 

reasonable inference that the defendant is liable for the 

alleged misconduct. Id.
7

In considering a 12(b)(6) motion, the Court should 

liberally view the complaint in the plaintiff’s favor, accepting 

all factual allegations as true, and giving the plaintiff the 

benefit of all inferences that can be drawn therefrom. Redding 

v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal 

v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). 

A. Federal Rule of Civil Procedure 9(b)

Rule 9(b) requires that when alleging fraud, “the 

circumstances constituting fraud or mistake... be stated with 

particularity.” Fed. R. Civ. P. 9(b). Complaints brought under 

the False Claims Act are subject to Rule 9(b)’s heightened 

pleading requirements. See U.S. ex rel. Totten v. Bombardier, 

286 F.3d 542, 551-52(D.C. Cir. 2002)(“Every circuit to consider 

the issue has held that, because the False Claims Act is selfevidently an anti-fraud statute, complaints brought under it 

must comply with Rule 9(b).”). That said, a plaintiff “need not 

allege the existence of a request for payment with 

particularity...Rule 9(b) requires particularity only with 

respect to the circumstances constituting fraud[.]” U.S. ex rel. 

Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 27 

(D.D.C. 2010) (emphasis in original).

To meet this threshold, plaintiffs must “state the time, 

place and content of the false misrepresentations, the fact 
8

misrepresented and what was retained or given up as a 

consequence of the fraud.” U.S. ex rel. Williams v. Martin-Baker 

Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (internal 

citations omitted). Pleaders must also identify the individuals 

allegedly involved in the fraud. Id. The particularity 

requirement discourages nuisance suits, safeguards defendants 

from frivolous accusations, and guarantees that defendants 

receive sufficient information to allow them to prepare a 

response. U.S. ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385

(D.C. Cir. 1981).

Courts “must not rigidly apply the requirements of Rule 

9(b), but rather should analyze the Rule on a case by case 

basis.” U.S. ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 

(D.D.C. 2011). Courts should “hesitate to dismiss a complaint 

under Rule 9(b) if the court is satisfied (1) that the defendant 

has been made aware of the particular circumstances for which 

she will have to prepare a defense at trial, and (2) that 

plaintiff has substantial prediscovery evidence of those facts.” 

U.S. ex rel. Barrett v. Columbia/HCA Healthcare Corp., 251 F. 

Supp. 2d 28, 34 (D.D.C. 2003). A complaint “can pass muster 

under the Rule 12(b)(6) threshold yet fail to comply with the 

strictures of Rule 9(b).” Anderson v. USAA Cas. Ins. Co., 221 

F.R.D. 250, 252 n.3 (D.D.C. 2004). Thus Courts consider first 

whether the relator has pled the relevant claim, and then turn 
9

to whether the relator has “pled the circumstances of the fraud 

with particularity.” Folliard, 722 F. Supp. 2d at 28.

B. False Claims Act

The FCA, 31 U.S.C. §§ 3729–3733, imposes a civil penalty 

and treble damages on any individual who “knowingly presents, or 

causes to be presented, to an officer or employee of the United 

States Government...a false or fraudulent claim for payment or 

approval” or “a false record or statement to get a false or 

fraudulent claim paid or approved by the Government.” 31 U.S.C. 

§ 3729(a).1 The FCA defines “claims” to include “any request or 

demand, whether under a contract or otherwise, for money or 

property[.]” 31 U.S.C. § 3729(c). Under the statute, a private 

party, commonly called a “relator,” is empowered to bring a qui 

tam action on behalf of the government. The Government may elect 

to intervene in qui tam actions, but where it declines to do so 

(as in this case), the Relators may proceed and, if successful,

collect a large portion of any recovery. Martin v. Arc of Dist.

of Columbia, 541 F. Supp. 2d 77, 81 (D.D.C. 2008) (citing U.S.

 

1 On May 20, 2009, Congress amended the FCA in the Fraud Enforcement and 

Recovery Act of 2009 (“FERA”). The 2009 amendment, among other things,

slightly alters the language in the presentment provision. According to 

Congress, the amendment took “effect on the date of enactment of th[e] Act 

and shall apply to conduct on or after the date of enactment[.]” P.L. 111-21, 

§ 4 at 1625. Since the alleged conduct in this action occurred before May 

2009, the provision as amended by FERA does not apply here. See United States 

v. Toyobo Co., 811 F. Supp. 2d 37, 45 n.2 (D.D.C. 2011). All references in 

this opinion to § 3729(a) are to the pre-amendment version of the statute.
10

ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 

1254 (D.C. Cir. 2004)). False Claims may take a variety of 

forms, including: (1) presentment claims; (2) fraudulent 

inducement claims; and (3) false certification claims. Head, 798 

F. Supp. 2d at 195. A subcontractor may be liable under the 

statute “even when it did not itself present any false claims to 

the government if it engaged in a fraudulent scheme that induced 

the government to pay claims submitted by the contractor.” 

Toyobo, 811 F. Supp. 2d at 45.

III. ANALYSIS

Defendants make several arguments in support of their 

Motions to Dismiss: (1) Relators’ Amended Complaint is barred by 

the statute of limitations; (2) Relators’ Amended Complaint 

failed to comply with FCA pre-filing requirements; (3) Relators 

fail to state a claim for fraudulent inducement; (4) Relators 

fail to state a presentment claim for various phantom expenses, 

pass-through fees and purported kickback scheme; and (5) 

Relators fail to state a material false statement claim. Each 

argument will be addressed in turn. 

A. Relators claims in the Amended Complaint relate back 

to original complaint and thus are not barred by the 

statute of limitations.

Defendants first argue that the claims alleged in Relators’ 

Amended Complaint are barred by the FCA’s six year statute of 

limitations because the Relators’ Amended Complaint “advances
11

several new alleged false claims or false statements, i.e.

theories of liability, that are not encompassed within the 

original Complaint.” SRA Mot. Dismiss, ECF No. 35 at 8(citing to 

a purported eleven alleged new claims); Triton Mot. Dismiss, ECF 

No. 38 at 7-8. Relators maintain that the six Counts in the 

Amended Complaint “relate back to the original complaint, since 

the legal claims and the basic factual allegations are 

substantively identical to the original complaint . . . .” 

Relators’ Opp’n, ECF No. 42 at 41. 

The FCA precludes civil actions filed “more than 6 years after 

the date on which the violation . . . is committed.” 31 U.S.C. §

3731(b)(1). The alleged violations in this case occurred between

June 2007 and November 2008, while the Amended Complaint was 

filed more than six years later on August 19, 2015. See Am. 

Compl., ECF No. 32. However, under Rule 15(c)(1)(B), “an 

amendment to a pleading relates back to the date of the original 

pleading when . . . the amendment asserts a claim or defense 

that arose out of the conduct, transaction or occurrence set out 

– or attempted to be set out – in the original pleading.” Fed. 

R. Civ. P. 15(c)(1)(B). The Court of Appeals for the District of 

Columbia Circuit (“Court of Appeals”) has held that, in making

the determination of whether an amendment relates back to the 

date of the original complaint, courts should consider whether 

the allegations in the amended complaint relate to the same 
12

contract at issue in the original complaint. U.S. ex rel. Miller 

v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 882, 908

(D.C. Cir. 2010) (per curiam) (holding that amended claims 

related to two distinct contracts were not “fairly 

encompass[ed]” by the claims in original complaint, which were 

based on a third contract, were “unique and no two involved the 

same ‘conduct, transaction[], or occurrence.’”); see also J.B. 

Helmer, False Claims Act: Whistleblower Litigation at 618 (6th 

ed. 2012) (noting that a relator must often rush to file the 

initial complaint and that amendment provides the “opportunity 

to craft the allegations of the complaint more carefully” and 

should be construed to relate back under Rule 15 as long as the 

amended allegations “arise out of the conduct or occurrences set 

forth or attempted to be set forth in the initial complaint.”).

A review of the Amended Complaint confirms that the same six 

counts pled in the Amended Complaint are also pled in the 

original complaint. See Comparison of Amended Complaint against 

Original Complaint, ECF No. 35-3. Moreover, the changes reflect 

Relators’ effort to enhance the level of factual detail. See id. 

Relying on Miller, Defendants argue that the mere fact Relators’ 

complaints concern the same underlying contract is insufficient 

to invoke the relation back doctrine. SRA Mot. Dismiss, ECF No. 

35 at 9. However, Defendants’ argument is not persuasive. In 

Miller, the Court of Appeals considered whether claims based on 
13

two separate contracts properly related back to the claims 

initially pled that arose from a third contract. 608 F.3d at 

882. The Court of Appeals noted that the three contracts at 

issue were “similar only in that each was funded” by the same 

source and concerned work related to sewer systems, ultimately 

concluding that the “differences among [the contracts] are 

significant.” Id. at 881. By contrast, both the amended and 

original complaints here clearly address the same underlying 

contract and arise out of the same conduct. See SRA Mot. 

Dismiss, ECF No. 35 at 9 (conceding that “the connection to the 

subject task order” is a “commonality” between Relators’ 

complaints). Further, Defendants’ argument that the Amended 

Complaint advances several new “theoretical” bases of liability 

is inaccurate in light of the fact that the six counts provided 

in the original complaint remain the same. See id.; Am. Compl., 

¶ 121-150. The Court finds that Relators’ Amended Complaint 

“expand[s] upon or clarif[ies] facts previously alleged” and 

thus properly relates back to the original complaint. United 

States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002)(citing 6A 

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 

1504, at 84 (2d ed. 1990)). Because the Amended Complaint 

relates back to the original complaint, it was timely filed 

under Rule 15. 
14

B. Relators Amended Complaint complies with FCA prefiling procedures.

Defendants also argue that the Amended Complaint should be 

dismissed for failure to comply with 31 U.S.C. § 3730(b)(2), 

which requires all FCA complaints to be filed under seal. SRA 

Mot. Dismiss, ECF No. 35 at 9; Triton Mot. Dismiss, ECF No. 38 

at 7-8. Relators respond that the statutory requirement to file 

the Complaint under seal applies only to the original complaint, 

not the Amended Complaint. Relators’ Opp’n, ECF No. 42 at 42. 

Section 3730(b)(2) of the False Claims Act requires:

A copy of the complaint and written disclosure 

of substantially all material evidence and 

information the person possesses shall be 

served on the Government pursuant to Rule 

4(d)(4) of the Federal Rules of Civil 

Procedure. The complaint shall be filed in 

camera, shall remain under seal for at least 

60 days, and shall not be served on the 

defendant until the court so orders. The 

Government may elect to intervene and proceed 

with the action within 60 days after it 

receives both the complaint and the material 

evidence and information.

31 U.S.C. § 3730(b)(2) (emphasis added). The purpose of the 

sealing requirement is “designed to provide the government with 

an opportunity to ensure that a qui tam action [does] not 

inadvertently ‘tip off’ a defendant who was already the subject 

of a ‘sensitive’ criminal investigation.” Helmer, False Claims 

Act: Whistleblower Litigation at 619. 
15

Here, Relators properly filed the original complaint under 

seal. Compl., ECF No. 1. After the Court granted four extensions 

of time for the government to decide whether to intervene, it

declined to do so. See Notice of Election to Decline 

Intervention, ECF No. 14. After the government declined to 

intervene, the original complaint was unsealed. See Order to 

Unseal Complaint, ECF No. 15. In its order to unseal the 

original complaint, the Court also ordered that “[a]ll other 

matters occurring in this action...be filed publicly”. Id. Under 

these circumstances, the purpose of the sealing requirement was 

met. The cases cited by Defendants are inapposite because they 

involve situations where the original complaint was not filed 

under seal. See, e.g., Taitz v. Obama, 707 F. Supp. 2d 1, 4 

(D.D.C. 2010) (motion to dismiss FCA claims granted for failure 

to file original complaint under seal); Segelstrom v. Citibank, 

76 F. Supp. 3d 1, 14 (D.D.C. 2014) (same). Further, because the 

Court granted Relators leave to amend the original complaint 

after it had been unsealed, it would be unnecessary for the 

Amended Complaint to be filed under seal. See also U.S. ex rel.

Ubl v. IIF Data Solutions, No. 06-cv-0641, 2009 WL 1254704, at 

*4 (E.D. Va. May 5, 2009) (“In general, where the court already 

has unsealed the case and granted the relator leave to amend the 

complaint, the policy arguments supporting dismissal for failure 
16

to comply with the filing and service requirements no longer 

hold.”). 

C. Relators’ Fraudulent Inducement Claims

Fraudulent inducement actions arise out of “claim[s] 

submitted to the Government under a contract which was procured 

by fraud[.]” U.S. ex rel. Bettis v. Odebrecht Contractors of 

Cal., Inc., 393 F.3d 1321, 1326 (D.C. Cir. 2005). Contrary to 

presentment claims which rest on false demands for payment, 

“fraudulent inducement and false certification claims do not 

depend on the existence of such explicitly false payment 

requests.” Head, 798 F. Supp. 2d at 196. Instead, fraudulent 

inducement claims simply require an initial false representation 

to the government. See Bettis, 393 F.3d at 1328. 

To state a claim for fraudulent inducement, a plaintiff may 

allege that the defendant “made an initial misrepresentation 

about its capability to perform the contract in order to induce 

the government to enter into the contract[,] and...this original 

misrepresentation tainted every subsequent claim made in 

relation to the contract[.]” U.S. ex rel. Schwedt v. Planning 

Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995). Allegations 

that the government would not have entered into the contract 

absent a defendant’s false statements may also state a claim for 

fraudulent inducement under the FCA. United States v. Honeywell 

Int'l Inc., 798 F. Supp. 2d 12, 22 (D.D.C. 2011). 
17

Relators raise fraudulent inducement claims in Counts I and 

IV of the Amended Complaint. In Count I, Relators allege that 

Defendants engaged in a “bait and switch” in an effort to induce 

the government to enter into the contract. In particular, 

Relators allege that Defendants omitted key information from 

task proposals– i.e., the “bait” — only to later “substitute[] 

their own unqualified personnel to complete the remaining tasks 

under the contract” – i.e., the “switch”. Am. Compl., ECF No. 32 

¶ 2. Although a bait and switch is not a cognizable cause of 

action for purposes of the FCA, it is “well established that 

prong (a)(1)(B) of section 3729”, under which Relators bring 

their bait and switch claims, “encompasses a cause of action 

based on a theory of fraudulent inducement.” United States ex 

rel. Tran v. Computer Scis. Corp., 53 F. Supp. 3d 104, 117 

(D.D.C. 2014). In Count IV(a),2 Relators allege that Defendants 

knowingly concealed Triton’s insolvency in order to influence 

the government’s decision to award the contract to Defendants. 

Am. Compl., ECF No. 32 ¶ 139. Defendants contend, among other 

things, that Relators do not adequately allege a 

misrepresentation in the task proposals and fail to identify 

disclosure requirements regarding Triton’s financial status. SRA 

 

2 Count IV of the Amended Complaint, in effect, alleges claims for fraudulent 

inducement (pertaining to the disclosure of Triton’s insolvency) and material 

misrepresentation (relating to APRBS projections). For clarity, the Court has 

separated the claims into Count IV(a) and IV(b) respectively.
18

Mot. Dismiss, ECF No. 35 at 10-16, 42-43; Triton Mot. Dismiss, 

ECF No. 38 at 10-13, 29. Defendants challenge Relators’ 

allegations for failing to state a claim under Rule 12(b)(6) and 

for failure to plead with the requisite level of particularity 

under Rule 9(b). SRA Mot. Dismiss, ECF No. 35 at 10-20; Triton 

Reply, ECF No. 43 at 1-3. For the reasons stated below, Counts I 

and IV(a) will be DISMISSED.

1. Task Execution Proposals (Count I)

In Count I, Relators contend that Defendants’ task 

proposals “falsely stated or implied that [SRA and Triton] were 

the only two contractors attached to the subject contract, that 

Keaveney and K2GS’s credentials were their own, and that 

Keaveney was a Triton employee” which “enabled [SRA and Triton] 

to procure the subject contract[.]” Am. Compl., ECF No. 32 ¶ 26. 

To support their allegations, Relators provide a number of

details explaining how Defendants fraudulently induced the 

government to enter into the contract. Most relevant to their 

claim for fraudulent inducement, Relators allege, inter alia,

that Defendants: (1) attempted to pass off Relators experience 

as their own in the 2007 and 2008 TEPs, even though Mr. Keaveney 

was an independent subcontractor; and (2) failed to notify the 

government that they were using subcontractors.3 Id. ¶ 122.

 

3 In Count I, Relators also allege that Defendants failed to notify the 

government when they terminated Mr. Keaveney and K2GS and deliberately failed 
19

Relators allege that in order to initially secure the 

contract, Defendants intentionally omitted from their 2007 

proposal the identities of the subcontractors who were slated to 

complete “the vast majority of the work” yet “cit[ed] all their 

credentials.” Id. ¶ 24. Defendants also allegedly

“misrepresented Keaveney as a Triton employee” to “take credit 

for, and control of, the entire contract[.]” Id. According to 

Relators, Defendants employed such tactics in order to “falsely 

represent themselves...as the ‘only’ subject matter experts” so 

that Defendants could qualify as the government’s “single 

source” provider and obtain exclusive rights to future contracts 

within the same specialized field. Id. ¶ 26(g). To substantiate 

their allegations, Relators point to specific provisions of the 

2007 proposal which seemingly attribute Relators’ relevant 

subject-matter expertise to “Team Galaxy”, the group name for 

SRA and Triton, rather than to Mr. Keaveney himself. Id. ¶ 30 

(listing authored books on the contract’s subject matter as 

examples of “Team Galaxy’s Extensive Experience”); ¶ 31 

(alleging that the experience cited in pages 5-20 of the 

proposal “was devoted entirely to Keaveney’s experience, with 

two minor exceptions”). Relators allege that Defendants made 

 

to submit subcontractor projections after the contract’s base year. See Am. 

Compl., ECF No. 32 ¶ 122. Since both of these alleged failures would have 

occurred after performance on the contract began, it is not clear how these 

allegations are relevant to Relators’ claim that Defendants fraudulently 

induced the government to initially enter into the contract.
20

similar misrepresentations in their 2008 task proposal. Id. ¶ 

35. Relators also allege that the government would not have 

entered into the contract absent Defendants’ false statements. 

Id. ¶ 124(alleging that Defendants used misrepresentations “in 

order to obtain the contract”); ¶ 24 (alleging that Defendants’ 

citation of the subcontractors’ credentials in the 2007 TEP was 

“critical to securing the subject contract”); ¶ 26(c) (alleging 

that Defendants’ false statements “enabled Defendants to procure 

the subject contract, as well as any and all related and future 

contracts and task orders”); ¶ 125 (alleging that the statements 

regarding Mr. Keaveney’s role in Defendants’ TEPs and MSRs 

“would have had a natural tendency to influence DoD’s funding 

decisions, and thus were material”).

Defendants argue that Relators’ fraudulent inducement 

claims fail for a number of reasons, including because: (1) Mr. 

Keaveney and K2GS’s participation was clearly disclosed in the 

proposals; and (2) Relators rely on FAR clauses requiring 

subcontractor disclosure that were not in existence during the 

performance of the contract. SRA Mot. Dismiss, ECF No. 35 at 11-

18; Triton Mot. Dismiss, ECF No. 38 at 11-18. Triton separately

argues that Relators have also impermissibly grouped Triton (the 

subcontractor) together with SRA (the prime contractor) and 

failed to allege that Triton’s actions meet the requirements for 

subcontractor liability under the FCA. Triton Mot. Dismiss, ECF 
21

No. 38 at 10. Relators do not, as Defendants point out, directly 

respond to Defendants’ arguments but instead offer excerpts from

cases addressing the implied certification theory for FCA 

claims.4 See Relators’ Opp’n, ECF No. 42 at 18-20; SRA Reply, ECF 

No. 44 at 6 (“There is a glaring silence on these points in 

Plaintiffs’ Opposition”).

The Court finds that Relators’ fraudulent inducement claims 

fail for a number of reasons. First, Relators have failed to 

adequately plead the misrepresentation component of a fraudulent 

inducement claim. See Schwedt, 59 F.3d at 199 (reasoning that 

“an initial misrepresentation about [the defendant’s] capability 

to perform the contract” is an element of a fraudulent 

inducement claim). Relators’ claim that Defendants concealed the 

existence of Relators in the task proposals is directly 

contradicted by the proposals themselves, which Relators 

attached to their Amended Complaint. ECF No. 32-2.5 As 

highlighted by Defendants, Mr. Keaveney is “featured prominently 

 

4 The Court finds Relators’ recitation of implied certification cases to be 

inapposite for the purposes of their fraudulent inducement claims. While an 

implied certification theory of FCA liability rests on allegations that a 

“contractor withheld information about its noncompliance with material 

contractual requirements” – see Toyobo, 811 F. Supp. 2d at 45 - Relators here 

have not identified any relevant contractual requirements pertinent to 

Defendants. Further, implied certification cases generally concern an 

analysis of whether a “claim” is legally false, see id., but the task 

proposals at the center of Relators’ fraudulent inducement allegations are 

not “claims” for purposes of the FCA because they are not a “request or 

demand...for money or property[.]” 31 U.S.C. § 3729(c). 5 In determining whether a complaint fails to state a claim, courts “may 

consider...documents either attached to or incorporated in the complaint[.]” 

E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 

1997).
22

in the proposal.” SRA Mot. Dismiss, ECF No. 35 at 14. In the 

2007 proposal, for example, Defendants note that “Technical Team 

Leader, Kevin Keaveney” will serve “as the primary point of 

contact for execution.” Task Execution Plan, ECF No. 32-2 at 32. 

The proposals further note that “Keaveney, adds the value to 

[Defendants’] approach” and laud Mr. Keaveney’s “forward 

thinking” as an attribute that will “shape[]...[Keaveney’s] 

performance of these tasks[.]” Id. at 58. Indeed, the proposals 

are replete with descriptions of the tasks that “Technical Team 

Leader”, meaning Mr. Keaveney, will perform. See, e.g., id. at 

32 (“provide project oversight to both Project Lead and the 

Program Manager”); 35 (“use his SSTR experience to evaluate DoD 

progress”); 36 (“use [his] network of SSTR Subject Matter 

Experts (SMEs) to identify and evaluate each new task”), 39

(“create and present a SSTR briefing to the DoD”). Even the

Amended Complaint acknowledges that “the TEP set forth 

Keaveney’s role as the Technical Team Leader and Client 

Interface on all six discrete tasks...[and] also included all of

Keaveney’s qualifications and specialized knowledge[.]” Am. 

Compl., ECF No. 32 ¶ 23. Relators allege that Defendants coopted Mr. Keaveney’s subject matter expertise and passed it off 

as their own, but have appended to their complaint proposals

which provide detailed information of Mr. Keaveney’s 

qualifications and expertise. In light of the extensive 
23

references to Mr. Keaveney’s expertise and anticipated 

involvement in the 2007 and 2008 proposals, the Court finds 

Relators’ claims that Defendants made misrepresentations to the 

government by taking credit for Mr. Keaveney’s experience in the 

proposals to be implausible. See Iqbal, 556 U.S. at 677-78. 

Second, Relators repeatedly state, in conclusory fashion,

that Defendants impermissibly characterized Mr. Keaveney as a 

Triton employee in the 2007 and 2008 task proposals. See, e.g., 

Am. Compl., ECF No. 32 ¶¶ 2, 24, 26(g), 35, 46, 57, 122. 

Relators, however, do not cite specific provisions in the 

proposals that support their claim. See generally id. SRA 

correctly notes that the term “employee” appears but once in the 

2007 proposal and does not refer to Mr. Keaveney as an employee.

SRA Mot. Dismiss, ECF No. 35 at 13; Task Execution Plan, ECF No. 

32-2 at 54. Relators fail to allege any other facts that might

support their claim that Defendants impermissibly held Mr. 

Keaveney out as an official employee. See generally Am. Compl., 

ECF No. 32. To the extent that Relators’ argument is that, by 

not explicitly referring to Mr. Keaveney as an independent 

subcontractor in the task proposals, Defendants implied that Mr.

Keaveney was a Triton employee, Relators have failed to allege 

how this distinction fraudulently induced the government to 

enter into the contract. See Honeywell, 798 F. Supp. 2d at 22 

(reasoning that allegations that the government would not have 
24

entered into the contract absent a defendant’s false statements 

state a claim for fraudulent inducement under the FCA). As a 

result, the Court does not find Relators’ claim that Defendants 

fraudulently held out Mr. Keaveney as a Triton employee in order 

to induce the government to enter into the contract to be 

plausible. See Iqbal, 556 U.S. at 677-78.

Third, Relators have failed to allege how Defendants’ 

alleged failure to notify the government of the existence of the

subcontractors induced the government to enter into the 

contract. Relators, citing Federal Acquisition Regulations 

(“FAR”) 52.215-22 and 52.215-23.2, argue that subcontractor 

disclosure was required.6 See Am. Compl., ECF No. 32 ¶ 27.

Defendants argue that these provisions were not enacted until

2009, subsequent to the execution of the underlying contract in 

2003 and do not apply retroactively. SRA Mot. Dismiss, ECF No. 

35 at 15; see also 48 C.F.R. § 1.108(d)(“FAR changes apply to 

solicitations issued on or after the effective date of the 

change.”). Setting aside the issue of applicability of these FAR 

provisions, Relators here have failed to allege how Defendants’ 

alleged omission of the subcontractors’ identities induced the 

government to initially enter into the contract. See Honeywell, 

798 F. Supp. 2d at 22 (reasoning that allegations that the 

 

6 FAR 52.215-22 (48 C.F.R. § 52.215-22) and FAR 52.215-23.2 (48 C.F.R. § 

52.215-23) govern disclosure and notification requirements for subcontractor 

labor.
25

government would not have entered into the contract absent a 

defendant’s false statements state a claim for fraudulent 

inducement). Absent such allegations, Relators’ claims cannot 

survive.

For all of these reasons, the Court finds that the Amended 

Complaint does not state a FCA claim for fraudulent inducement 

in Count I pursuant to Rule 12(b)(6). Because Relators have 

failed to state a claim for fraudulent inducement under Rule 

12(b)(6), the Court does not need to reach whether they pled the 

circumstances of the fraud with the particularity required by 

Rule 9(b). Folliard, 722 F. Supp. 2d at 28. Further, since the 

Court concludes that Relators have failed to state a fraudulent 

inducement claim, there is no need to resolve Triton’s 

contention that Relators inappropriately grouped Triton with 

SRA. Accordingly, Count I is hereby DISMISSED as to both 

Defendants.

2. Triton’s Solvency (Count IV(a))

In further support of their fraudulent inducement claim, 

Relators allege that Defendants made false statements to the 

government by “knowingly concealing Triton’s insolvency and 

numerous outstanding debts and creditors” and by “assert[ing] 

that Triton was fully qualified to perform on the contract[.]”

Am. Compl., ECF No. 32 ¶ 139. According to Relators, this 

misrepresentation “le[d] the government to award the contract to 
26

Defendants[.]” Id. Relators cite a provision in the TEPs touting 

Defendants’ collective “financial stability” as direct evidence 

of the misrepresentation. Id. ¶¶ 112-114. Relators seem to 

suggest that Defendants had a duty to report Triton’s financial 

condition under (1) the Department of Defense National 

Industrial Security Program Operating Manual (“DSS NISPOM”), and 

(2) a provision in the subcontract between Triton and K2GS. Id.

¶ 111-12. 

Assuming Relators’ claims regarding Triton’s financial 

status to be true, the analysis turns on whether the alleged 

omission of Triton’s insolvency constitutes a 

“misrepresentation” for purposes of a fraudulent inducement 

claim. The Court finds that Relators have not adequately alleged 

a misrepresentation here. Rather than allege that the contract 

between the government and Defendants required the disclosure of 

subcontractors’ financial status, Relators conclusively state 

that disclosure was “required by DSS NISSPOM”. Am. Compl., ECF 

No. 32 ¶ 112. Relators do not explain why DSS NISSPOM requires 

the disclosure of subcontractors’ financial status, and, as 

highlighted by SRA, DSS NISSPOM is seemingly limited to 

classified contracts and inapplicable here. SRA Mot. Dismiss, 

ECF No. 35 at 42-43. Relators’ allegation amounts to a legal 

conclusion that the Court need not accept as true. Kowal v. MCI 

Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (“Nor must 
27

the court accept legal conclusions cast in the form of factual 

allegations” at the motion-to-dismiss stage). Furthermore, 

Relators fail to explain how an alleged violation of a provision 

in the contract between the first and second-tier subcontractors 

(i.e., Triton and K2GS) concerning disclosure forms the basis of 

a misrepresentation (allegedly made by SRA and Triton to the 

government) for purposes of a fraudulent inducement claim.

Relators provide a single example of an affirmative 

misrepresentation allegedly made by the Defendants concerning 

Triton’s solvency. According to Relators, a provision in 

Defendants’ task proposal stating that the “team was carefully 

brought together to provide the corporate size, proven technical 

capabilities, and financial stability required for the program 

duration and the breadth and depth of skills for qualified 

staffing” evidences a misrepresentation. Am. Compl., ECF No. 32

¶ 144 (emphasis added). The Court is not persuaded that this 

broad statement in Defendants’ joint task proposal is synonymous 

with an express misrepresentation of Triton’s solvency. In any 

event, Relators also fail to explain how this statement induced 

the government to enter into the contract. See Schwedt, 59 F.3d 

at 199 (reasoning that to state a fraudulent inducement claim, a 

plaintiff must plead that the defendant’s initial 

misrepresentation was made to induce the government to enter 

into the contract).
28

Because Defendants have failed to adequately allege that 

Defendants made a misrepresentation concerning Triton’s 

insolvency under Rule 12(b)(6), Count IV(a) is DISMISSED.7 Since 

Relators’ claims do not pass muster under Rule 12(b)(6), a Rule 

9(b) particularity analysis is unnecessary. See Folliard, 722 F. 

Supp. 2d at 28.

D. Relators’ Presentment Claims

To survive a motion to dismiss on a presentment claim, a 

plaintiff must allege that “(1) the defendant submitted a claim 

to the government, (2) the claim was false, and (3) the 

defendant knew the claim was false.” Folliard, 722 F. Supp. 2d 

at 26. Under the FCA, a claim may be considered false if it is 

either factually or legally false. United States v. Sci. 

Applications Int’l Corp., 555 F. Supp. 2d 40, 49 (D.D.C. 2008).

“A claim can be factually false if it invoices for services that 

were not rendered or incorrectly describes goods or services 

provided.” Toyobo, 811 F. Supp. 2d at 45 (internal quotations 

omitted). By contrast, a claim may be legally false if it 

falsely certifies “compliance with a particular statute, 

regulation, or contractual terms, where compliance is a 

prerequisite for payment.” Id. Such certification may be express 

or implied. Id. For the reasons provided below, the Court finds 

 

7 As explained infra, Count IV(b) will also be dismissed for failure to state 

a claim for material false misrepresentation.
29

that certain of Relators’ claims survive Defendants’ motions to 

dismiss, while others warrant dismissal. 

1. Overtime Pay and Other Claims (Count V)

Relators allege that Defendants: (1) submitted false 

invoices to the government which falsely represented the amount 

of overtime worked by various subcontractors; (2) submitted 

false invoices for travel expenses allegedly incurred by 

Defendants but in fact incurred by K2GS and other 

subcontractors; and (3) submitted false invoices for direct 

labor charges allegedly incurred by Defendants but that in fact 

were incurred by K2GS and other subcontractors. Am. Compl., ECF 

No. 32 ¶¶ 143-44. Defendants challenge Relators’ allegations for 

failing to state a claim under Rule 12(b)(6) and for failure to 

plead with the requisite level of particularity under Rule 9(b).

SRA Mot. Dismiss, ECF No. 35 at 28-31; Triton Mot. Dismiss, ECF 

No. 38 at 32-36.

(a) Overtime Expenses

Relators claim that Defendants billed the government for 

inflated overtime hours that two individuals——Mr. Song, an 

independent subcontractor and Ms. Baker,8 a Triton employee——did 

 

8 Relators do not provide identifying information for Ms. Baker. The Amended 

Complaint does not offer Ms. Baker’s first name and refers to her only as “a 

salaried Triton employee.” Am. Compl., ECF No. 32 ¶ 143.
30

not perform. Am. Compl., ECF No. 32 ¶ 65. According to Relators, 

over a five-month period of time, Defendants allegedly billed 

the government for “92.2 percent over and above what Mr. Song 

actually invoiced.” Id. ¶ 66. Defendants “simultaneously billed 

the government for unauthorized, unperformed overtime or 

inflated hours” for Ms. Baker “from November 14, 2007 through 

March 31, 2008.” Id. ¶ 65. While Relators state that they only 

have access to invoices during this time period, they suspect 

that Defendants also “billed the government for fictitious

overtime, inflated hours, or fictitious employees during the 

remaining months” of the two-year contract. Id. ¶ 66.

Defendants argue that Relators have pled a breach of 

contract claim, rather than a false claim pursuant to the FCA. 

SRA Mot. Dismiss, ECF No. 35 at 28; Triton Mot. Dismiss, ECF No. 

38 at 32. While it is axiomatic that qui tam plaintiffs have no 

standing to bring breach of contract claims under the FCA, see

U.S. ex rel. Bender v. N. Am. Telecomms., Inc., 750 F. Supp. 2d 

1, 10 (D.D.C. 2010), aff'd, 499 F. App'x 44 (D.C. Cir. 2013), 

Relators’ claims do not sound exclusively in contract. Rather 

than argue that certain labor was performed yet improperly 

categorized as “overtime”, Relators allege that Defendants 

presented false invoices containing plainly fictitious or 

artificially inflated labor. Am. Compl., ECF No. 32 ¶¶ 65-66. 

Such allegations fall squarely within the ambit of the FCA. See 
31

Head, 798 F. Supp. 2d at 197 n.13 (“Relator's allegation that 

the Government was billed for employee work that was not 

performed...are, in fact, paradigmatic FCA claims.”).

Defendants’ reliance on Bender for the proposition that the 

submission of unauthorized overtime bills present a breach of 

contract dispute, see SRA Mot. Dismiss, ECF No. 28-29, is 

misplaced because in that case, the defendants allegedly billed 

the government for labor that was actually performed but did not 

qualify for “overtime status” under the terms of the underlying

contract. See Bender, 750 F. Supp. 2d at 10. By contrast, 

Relators here allege that Defendants fraudulently billed the 

government for labor the subcontractors never worked. Am. 

Compl., ECF No. 32 ¶ 65.

Defendants further contend that Relators’ allegations are 

not plausible because a reading of the Amended Complaint 

“supports a more obvious explanation”, namely that “Triton’s 

invoices include total hours by labor category, not by 

individual.” SRA Mot. Dismiss, ECF No. 35 at 29 (emphasis in 

original); see also Triton Mot. Dismiss, ECF No. 38 at 32. In 

other words, Defendants assert that Mr. Song and Ms. Baker may 

have been billed under the same “Engineer Systems, Senior” labor 

category on Triton’s invoices and thus the hours billed 

represent a combined total of the hours worked by both 

individuals. SRA Mot. Dismiss, ECF No. 35 at 29-30. Discovery 
32

may yet reveal which interpretation of Triton’s invoices is 

correct, however; at this stage, Relators have adequately 

alleged a discrepancy between the overtime hours purportedly 

worked by the subcontractors and the hours ultimately invoiced 

by Triton to support a plausible basis for their claims.

Relators, then, have alleged all of the required elements of a 

presentment claim: that Triton submitted a claim, the invoice 

was false, and that Triton knew the claim was false. Am. Compl., 

ECF No. 32 ¶¶ 65-67 (describing “Triton’s fraud”), 143; 

Folliard, 722 F. Supp. at 26. Moreover, the Court finds that by 

identifying specific time periods during which the alleged fraud 

occurred and describing specific invoices containing the alleged 

misrepresentations, Relators have pled their allegations with 

sufficient particularity. Williams, 389 F.3d at 1256 (reasoning 

that pleaders must state the time, place, and content of the 

false misrepresentations to meet Rule 9(b)’s particularity 

requirement). Accordingly, Defendant Triton’s motion to dismiss 

Relators’ claims pertaining to overtime charges is DENIED.

Defendant SRA argues that Relators have failed to state a 

claim against SRA because Relators have not alleged that SRA, as 

opposed to Triton (the subcontractor), had knowledge that the 

claims were false. SRA Mot. Dismiss, ECF No. 35 at 40. The Court 

agrees. Relators admit that their allegations are derived from a 

comparison “of invoices prepared by the subcontractors...and 
33

Triton’s available invoices.” Am. Compl., ECF No. 32 ¶ 65. It 

logically follows that any purported inflation or fraudulent 

overbilling would have occurred at the subcontractor level, in 

other words, by Triton. At no point do Relators allege any 

improper actions taken by SRA with regard to billing for 

overtime charges. See, e.g., id. ¶ 67 (characterizing the 

overbilling scheme as “Triton’s fraud”). To survive a motion to 

dismiss, Relators must allege that SRA was aware of the claims’ 

falsity or acted in “deliberate ignorance or reckless disregard 

of the truth[.]” Folliard, 722 F. Supp. 2d at 33. Because 

Relators have failed to do so here, their claims against SRA 

concerning false overtime charges are hereby DISMISSED.

(b) Travel Expenses

Relators allege that Defendants “knowingly billed the 

government for business trips that were not taken 

by...authorized contractors.” Am. Compl., ECF No. 32 ¶ 86. 

Relators claim that Defendants themselves were not authorized to 

charge for travel expenses because, under the June 2007 TEPs,

only certain subcontractors (K2GS, Jim Song and Tiber Creek) 

were authorized to make such charges. Id. SRA argues that: (1) 

Relators fail to allege that SRA submitted a claim for travel 

that SRA knew or should have known to be false as required to 

state a presentment claim; (2) a contractor’s proposal for 
34

travel under a time and materials contract, such as the one at 

issue here, “is merely an estimate of the charges likely to be 

incurred[;]” and (3) an allegation that any travel taken was 

“unauthorized” presents a breach of contract claim which is not 

actionable under the FCA. SRA Mot. Dismiss, ECF No. 35 at 35. 

Triton likewise argues that Relators: (1) fail to assert that 

Triton, as the subcontractor, caused SRA to submit the 

purportedly fraudulent claims; (2) impermissibly assume that 

travel cost estimates were actually invoiced; and (3) fail to 

allege with particularity any false claim made by either 

Defendant. Triton Mot. Dismiss, ECF No. 38 at 35. In response, 

Relators do not address Defendants’ arguments, instead summarily 

alleging that Defendants “billed the government for travel for 

time periods in which none of the second-tier subcontractors had 

done any travel” and “falsely claimed to the government that all 

the travel funds for K2GS had been expended[.]” Relators’ Opp’n, 

ECF No. 42 at 10. In its Reply, SRA highlights Relators’ failure 

to respond to Defendants’ arguments. SRA Reply, ECF No. 44 at 7-

8 (“Plaintiffs have not responded how, even if true, these 

allegations rise above a standard breach of contract claim); id. 

(“Plaintiffs further fail to respond to SRA’s claim that the 

Complaint never alleges it was ever aware of billed but untaken 

travel by subcontractors[.]”); id. at 8 (“The Opposition 

provides no response.”).
35

Considering Relators’ claims against SRA and Triton, the 

Court finds that Relators have not met their burden under either 

Rule 12(b)(6) or Rule 9(b). Even assuming that the alleged 

invoicing of travel presents an FCA claim rather than a breach 

of contract dispute, Relators have not alleged that either SRA

or Triton had knowledge that the invoices they allegedly 

submitted were false. See Am. Compl., ECF No. 32 ¶¶ 86-87;

Folliard, 722 F. Supp. 2d at 26 (identifying knowledge as an 

element of an FCA presentment claim). As such, Relators’ claims 

fail to state a claim under Rule 12(b)(6).

Even if Relators’ claims could be construed as stating a 

claim under Rule 12(b)(6), their claim that Defendants 

misrepresented to the government that travel funds pertaining to 

K2GS had been expended would fail under Rule 9(b). Am. Compl., 

ECF No. 32 ¶ 87. Relators do not allege when the purported 

misrepresentations were made, who made the misrepresentation, 

and whether Triton or SRA, or both, were involved. See Williams, 

389 F.3d at 1256 (reasoning that Rule 9(b) requires to “state 

the time, place and content of the false misrepresentations, the 

fact misrepresented” and those allegedly involved in the fraud). 

As pointed out by SRA, Relators “have not identified a single 

instance in which SRA [or Triton] billed the government for the 

difference between the travel ceiling and K2GS’s incurred travel 

costs.” SRA Mot. Dismiss, ECF No. 35 at 36. Accordingly, 
36

Relators’ claims pertaining to unauthorized travel are hereby 

DISMISSED.

(c) Direct Labor Charges

Relators also make a number of claims regarding Defendants’

alleged misrepresentation of direct labor charges submitted to 

the government. Am. Compl., ECF No. 32 ¶¶ 68-76, 144. 

Specifically, Relators allege that Defendants “falsely claimed 

[direct] labor as ‘materials’ or other non-labor support, 

instead of as labor, or [that Defendants] claimed it as their 

own direct labor.” Id. ¶ 144. Relators further allege that 

Defendants failed to sufficiently describe direct labor charges 

on their invoices, which “made it impossible for the government 

to determine the tasks for which SRA actually provided direct 

labor.” Id. ¶¶ 72-76. SRA counters that the task proposal, which 

expressly included direct labor charge estimates, authorized SRA 

to charge for direct labor under the contract. SRA Mot. Dismiss, 

ECF No. 35 at 31-32. According to SRA, SRA “cannot be ‘illegally 

charging’ the government when it is providing the very services 

it proposed.” Id. Triton contends that “direct labor” is a term 

of art in government contracts that distinguishes between direct 

and indirect costs, and does not necessarily mean that the 

invoicing contractor was the entity that performed the labor.

Triton Mot. Dismiss, ECF No. 38 at 33. Likewise, Triton argues, 
37

the task proposals explicitly identified to the government that 

subcontractor labor costs would be invoiced to the government as 

direct costs. Id. Finally, both Defendants argue that Relators 

fail to provide any contractual, regulatory or statutory 

authority imposing obligations on a prime or subcontractor to 

provide a minimum level of detail on invoices. SRA Mot. Dismiss, 

ECF No. 35 at 32; Triton Mot. Dismiss, ECF No. 38 at 33.

Relators do not respond to Defendants’ arguments. See generally

Relators’ Opp’n, ECF No. 42 at 23-28; see also SRA Reply, ECF 

No. 44 at 7 (“Plaintiffs similarly fail to respond how SRA’s 

billing for work it was proposed to perform on a direct labor 

basis amounts to a false claim.”)

The Court finds that Relators fail to state a claim against 

SRA under the FCA because Relators fail to explain how the 

supposed sparsity of detail in SRA’s invoices constitutes a 

false claim. In light of Defendants’ assertion that the task 

proposals specifically identified and authorized the charging of 

subcontractor labor as a direct cost, a claim Relators do not 

rebut, see generally Relators’ Opp’n, ECF No. 42 at 23-28,

Relators do not explain how SRA’s alleged billing in accordance 

with the proposal amounts to a misrepresentation for purposes of 

the FCA. See Toyobo, 811 F. Supp. 2d at 45 (defining falsity to 

include “invoic[ing] for services that were not rendered”). The 

Court recognizes that a plaintiff may also demonstrate falsity 
38

by alleging that a claim “falsely certifies compliance with a 

particular statute, regulation or contractual terms, where 

compliance is a prerequisite for payment.” Id. However, as 

Defendants have pointed out, Relators have not identified any 

contractual, statutory or regulatory authority that require the 

level of detail Relators contend was necessary. Because Relators 

have not adequately alleged falsity under the FCA, the 

allegations against SRA regarding direct labor charges are 

hereby DISMISSED under Rule 12(b)(6). As such, the Court need 

not reach the question of particularity under Rule 9(b).

Folliard, 722 F. Supp. 2d at 28.

Relators’ claims against Triton must also be DISMISSED

because, in addition to the pleading defects already identified,

the Amended Complaint fails to allege Triton’s role in the 

alleged scheme to misrepresent direct labor charges submitted to 

the government. Relators only detail misrepresentations and 

omissions allegedly made by SRA, and, in conclusory fashion, 

insist that the scheme was conducted “in collusion with Triton.” 

See Am. Compl, ¶¶ 68-74. Such vague and conclusory allegations 

are not sufficient to state a claim under Rule 12(b)(6). Iqbal, 

556 U.S. at 678 (reasoning that “naked assertions devoid of 

further factual enhancement” are insufficient to state a claim

for relief).
39

2. Excessive Pass-Through Fees (Count II)

In Count II, Relators allege that Triton routinely charged 

the government excessive pass-through fees for work performed by 

its subcontractors. Am. Compl., ECF No. 32 ¶ 51. Relators allege 

that Triton agreed with Mr. Angello, a DOD representative, “to 

limit [Triton’s] pass-through fee[s] to 0.95 percent” of its 

subcontractors’ invoices, but that Triton actually charged the 

government 9.95 percent in pass-through fees for K2GS, “6.35 

percent in pass-through fees for Mr. Song, 3.89 percent to 6.73 

percent in pass-through fees for Tiber Creek, and 4.71 percent 

in pass-through fees for subcontractor travel.” Id. ¶¶ 20(3),

51-52. Relators further allege that by not disclosing the 

identity of the subcontractors in Defendants’ TEPs and MSRs, 

Triton concealed the inflated pass-through fees and SRA charged

pass-through fees “on 100 percent of all subcontractor labor, 

rather than just Triton’s work product alone.” Id. ¶ 52. As a 

result, Relators allege that both Triton and SRA “ma[de] a false 

claim on each of its invoices, and in virtually every entry on 

its invoices in which it sought reimbursement for work performed 

by [the subcontractors].” Id. ¶ 53. 

SRA and Triton argue that the FAR provisions cited by 

Relators that seemingly limit excessive pass-through charges are 

inapplicable because: (1) the provisions were not enacted at the 
40

time the contract was executed in 2003; (2) even if the FAR 

provisions had been enacted, they would not apply to Triton 

because Triton’s intended subcontracting did not exceed the predefined threshold; and (3) the alleged agreement with Mr. 

Angello is unenforceable. SRA Mot. Dismiss, ECF No. 35 at 21-24; 

Triton Mot. Dismiss, ECF No. 38 at 18-21. Triton further 

contends that Relators’ allegations based “upon information and 

belief” fail Rule 9(b)’s particularity requirement and that any 

obligations concerning pass-through fees “apply only to SRA as 

the entity with contractual privity with the government.” Triton 

Mot. Dismiss, ECF No. 38 at 18-19. Without responding to any of

Defendants’ other arguments, Relators reply that Congress 

expressly stipulated that the FAR regulations proscribing 

excessive pass-through fees would become effective three months 

before the 2007 task order in this case was let to Mr. Keaveney. 

Relators’ Opp’n, ECF No. 42 at 29-30.

Here, the Court finds that Relators have not stated a claim 

under Rule 12(b)(6). To state a presentment claim, Relators must 

allege, inter alia, that the claims submitted by Defendants were 

false. Folliard, 722 F. Supp. 2d at 26. Relators base their

falsity allegations on FAR provisions that Relators readily 

concede weren’t promulgated until October 2009, after 

performance on the task orders had been completed. See Relators’ 

Opp’n, ECF No. 42 at 29. In an effort to surmount this obstacle, 
41

Relators argue that Congress put DOD contractors on notice in

October 2006——eight months before Relators joined the task 

order——that the DOD would at some future point in time issue 

regulations concerning excessive pass-through fees that would 

apply to DOD contracts “awarded on or after May 1, 2007”. Id. at 

30. Ultimately, the regulations were not issued until October 

2009. Id. 

As highlighted by SRA and conceded by Relators, the 

underlying contract at issue in this case was awarded in 2003, 

four years before the effective date of the regulations 

governing pass-through fees that Relators contend should apply. 

See Am. Compl., ECF No. 32 ¶ 19 (“In 2003, the DoD awarded 

Galaxy Scientific Corporation (“Galaxy”) the DoD contract 

DAAB07-03-D-B011...to provide analytic services and software.”); 

SRA Reply, ECF No. 44 at 9. Not only does the Amended Complaint 

allege that DOD awarded contract DAAB07-03-D-B011 to Defendants 

in 2003, but the 2007 and 2008 task proposals also clearly list

the same contract number as the applicable one. See 2007 and 

2008 Task Execution Proposals, ECF No. 32-2 at 24, 60 

(identifying the applicable contract number as DAAB07-03-DB011); Am. Compl., ECF No. 32 ¶ 19. It stands to reason that 

Defendants could not have violated a law that did not exist at 

the time the contract was awarded. Therefore, the Court finds 

that Relators have failed to state a claim pursuant to Rule 
42

12(b)(6) because Relators’ claim that the pass-through fees 

submitted by Defendants were false is based on a DOD regulation 

that did not exist at the time the underlying contract was 

awarded. Because the regulation did not exist, the Court is 

unable to infer that the Defendants violated the FCA.9 See Iqbal, 

556 U.S. at 678 (“[T]he tenet that a court must accept as true 

all of the allegations contained in a complaint is inapplicable 

to legal conclusions.”).10 Accordingly, Count II of the Amended 

Complaint is hereby DISMISSED.

3. Kickback Payments (Count VI)

As best the Court can discern, Relators attempt to allege a 

kickback scheme. See generally Am. Compl., ECF No. 32 97-106. 

According to Relators, Defendants “misallocat[ed] funds so that 

charges actually incurred by a [second-tier] subcontractor... 

were instead recorded as charges incurred by Triton.” Id. ¶ 148. 

 

9 Relators’ argument that the charged pass-through fees violated the alleged 

oral agreement between Mr. Angello and Triton, see Am. Compl., ECF No. 32 ¶ 

51, presents a breach-of-contract dispute over which Relators have no 

standing. Bender, 750 F. Supp. 2d at 10. Nonetheless, even assuming that were 

not the case, Relators have failed to allege that SRA was a party to that 

agreement, was aware of its existence, or that the oral agreement was 

incorporated into the ultimate contract between Defendants and the 

government. In the absence of these allegations, Relators cannot demonstrate 

falsity as required to state a claim under the FCA. Folliard, 722 F. Supp. 2d 

at 26. 10 The Court can also dismiss Relators’ pass-through claims for failing to 

respond to any of Defendants’ arguments for why, even if the FAR provisions 

were enacted prior to the underlying contract, they do not apply to the 

instant case. Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 

2002)(“[W]hen a plaintiff files a response to a motion to dismiss but fails 

to address certain arguments made by the defendant, the court may treat those 

arguments as conceded, even when the result is dismissal of the entire 

case.”).
43

SRA then presented those charges to the government and once 

paid, Defendants “ke[pt] the funds through a kick-back scheme 

among themselves[.]” Id. Relators allege that Defendants, among 

other things, used a “particular coding system” in its invoices 

which “mea[nt] nothing to the government” to “give the 

appearance that all the labor had been performed by Triton” 

rather than by the second-tier subcontractors. Id. ¶ 97.

Defendants argue that Relators: (1) have not alleged how the 

supposed kickback scheme resulted in the submission of false 

claims or statements; and (2) fail to adequately plead a 

violation under the Anti-Kickback Act. SRA Mot. Dismiss, ECF No. 

35 at 40-41; Triton Mot. Dismiss, ECF No. 38 at 36-38. Relators 

make no attempt to respond to Defendants’ arguments. See 

generally Relators’ Opp’n, ECF No. 42 (making no mention of 

Relators’ kickback allegations).

As an initial matter, this Court may dismiss Relators’

kickback claim because Relators fail to respond to Defendants’ 

arguments. “[W]hen a plaintiff files a response to a motion to 

dismiss but fails to address certain arguments made by the 

defendant, the court may treat those arguments as conceded, even 

when the result is dismissal of the entire case.” Stephenson v. 

Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002). In any event, 

Relators’ kickback claim also fails under Rule 12(b)(6). As 

stated supra, to state a presentment claim, a plaintiff must 
44

allege that the defendant submitted a claim, the claim was 

false, and the defendant knew the claim was false. Folliard, 722 

F. Supp. 2d at 26. While the Amended Complaint broadly alleges 

the existence of a kickback scheme, at no point do Relators 

identify any underlying false claims for payment that were 

allegedly submitted by Defendants. See generally Am. Compl., ECF 

No. 32 ¶¶ 97-106. Moreover, Relators fail to demonstrate how the 

coding system allegedly implemented by Defendants rendered any 

invoices “false” for purposes of the FCA. Rather than allege 

that the Relators “incorrectly describe[d] goods or services 

provided”, see Toyobo, 811 F. Supp. 2d at 45, Relators concede 

that the coding was logically consistent. See Am. Compl., ECF 

No. 32 ¶ 97 (alleging that Defendants used “K2GS” for K2 Global 

Solutions and “TC” for Tiber Creek). The Amended Complaint 

therefore fails to “contain[] sufficient factual matter” from 

which the Court could “draw the reasonable inference” that 

Defendants violated the FCA. Iqbal, 556 U.S. at 678. 

Accordingly, Count VI is hereby DISMISSED.

A. Relators’ Material False Statement Claims

In addition to their presentment claims, Relators allege 

that Defendants submitted false statements to the government in 

furtherance of their false claims scheme and in violation of 31

U.S.C § 3729(a)(1)(B). To state a material false statement claim 

under the FCA, “a plaintiff must allege that (1) the defendant 
45

made or used a ‘record or statement;’ (2) the record or 

statement was false; (3) the defendant knew it was false; and 

(4) the record or statement was ‘material’ to a false or 

fraudulent claim.” U.S. ex rel. Hood v. Satory Global, Inc., 946 

F. Supp. 2d 69, 85 (D.D.C. 2013); see also U.S. ex rel. Ervin & 

Assocs., Inc. v. Hamilton Sec. Grp., Inc., 370 F. Supp. 2d 18, 

36 (D.D.C. 2005) (“The great weight of case law holds that the 

materiality of a false record or statement is an element of 

False Claims Act liability.”). “Material” means “having a 

natural tendency to influence, or be capable of influencing, the 

payment or receipt of money or property.” Tran, 53 F. Supp. 3d 

at 123. As explained below, the Court finds that Count III 

states a claim for relief but DISMISSES Count IV(b).

1. Monthly Status Reports (Count III)

In Count III, Relators allege that Defendants routinely

created false MSRs in order to obscure their fraudulent scheme. 

Am. Compl., ECF No. 32 ¶ 134. Defendants did so “to ensure that 

their MSRs were consistent with their TEPs and invoices,...pass 

government audit,...and to procure all related and subsequent 

contract proposals.” Id. Specifically, Relators allege that 

Defendants: (1) failed to disclose the actual status for task 

orders; (2) mislabeled expenditures as direct costs; (3) failed 

to identify and disclose labor costs, rates, and hours for its 
46

subcontractors; (4) declined to identify certain direct costs in 

its schedules; and (5) failed to identify the total small 

business participation on the contract. Id. ¶ 134.

Defendants point to a select few of the alleged false 

statements, asserting that they are not, in fact, false. See, 

e.g., SRA Mot. Dismiss, ECF No. 35 at 25; Triton Mot. Dismiss, 

ECF No. 38 at 23-24. Defendants also argue that the MSRs do not 

qualify as “claims” under the FCA and therefore liability cannot 

attach for any alleged inaccuracies contained therein. SRA 

Reply, ECF No. 44 at 7; Triton Mot. Dismiss, ECF No. 38 at 27. 

Relators do not respond to Defendants’ arguments. See Relators’ 

Opp’n, ECF No. 42 at 18-23.

Here, Count III survives Defendants’ challenges because the 

Amended Complaint alleges each element of a material false 

statement claim with particularity that Defendants made false 

statements to the government in the form of its MSR submissions. 

Relators append to the Amended Complaint specific MSRs submitted 

by Defendants in June and July 2008 and identify a litany of 

purported misrepresentations and omissions made by Defendants, 

including, inter alia, “removing newly identified risks and 

other critical remarks[,]...continuing to bill the government 

for tasks after they were completed[,]...billing the government 

for employees on tasks for which they performed no 
47

work[,]...replacing subcontractor names with those of 

Defendants’ employees[, and]... routinely falsifying and/or 

omitting K2GS contributions, disclaimers, risks and 

authorship[.]” Am. Compl., ECF No. 32 ¶ 60. Relators further 

allege that Defendants, to avoid detection, knowingly created 

the false MSRs to mirror the fraudulent task proposals and 

inflated invoices. Id. ¶59. Relators also allege that the 

misrepresentations were material. Id. ¶ 60. Thus, Relators have 

alleged each element of their material misrepresentation claim

and satisfied the requirements of Rule 12(b)(6). Moreover, the 

Court considers Relators’ citation to specific invoices and 

detailed recitation of the alleged misrepresentations in 

Defendants’ MSRs sufficient to meet their burden under Rule 9(b)

to allege their claims with particularity. 

Defendants’ arguments to the contrary are not persuasive. 

First, Defendant’s assertion that the information contained in 

the status reports are not truly false, presents a question of 

fact more appropriately resolved after discovery closes. Such 

“factual issues will not be resolved at the motion to dismiss 

stage of the litigation, where the plaintiff's factual 

allegations are accepted as true.” Toyobo, 811 F. Supp. 2d at 

48. Further, Defendants’ argument that MSRs are not “claims” for 

purpose of the FCA is misplaced. While the MSRs are, as their 

name suggests, “status reports” and not claims on the public 
48

fisc, the FCA clearly provides for liability for the submission 

of false statements material to a false or fraudulent claim. 

Ervin, 370 F. Supp. 2d at 36 (discussing the elements of a 

material false statements claim).

The Court finds that Relators have sufficiently alleged 

that the false statements in the MSRs were material to the 

claims submitted by Defendants under the contract. Am. Compl., 

ECF No. 32 ¶ 60. As such, Relators’ allegations state a material 

false statement claim under Rule 12(b)(6). Further, the Court 

finds that by identifying specific MSRs and describing, in 

detail, the misrepresentations contained therein, Relators have 

pled their allegations with sufficient particularity. Williams, 

389 F.3d at 1256 (reasoning that plaintiffs must plead the time, 

place, and content of the false misrepresentations to satisfy

Rule 9(b)’s particularity requirement). Defendants’ motions to 

dismiss with regard to Count III of the Amended Complaint are 

hereby DENIED.

2. ARPBS Projections (Count IV(b))

In Count IV(b), Relators allege that Defendants’ ARPBS

projections to the government “falsely stated the identity of 

the personnel who were to work on the contract.” Am. Compl., ECF 

No. 32 ¶ 138. According to Relators, Defendants “initially 

identif[ied] Triton employees as [subcontractor] employees” and 
49

then “subsequently remov[ed] the subcontractors (other than 

Triton), and list[ed] unqualified Triton employees in their 

place[.]” Id. Relators allege that “all prime contracts have a 

provision regarding ‘Personnel and Performance’” which mandates, 

inter alia, that subcontractors notify prime contractors of any 

need to substitute personnel. Id. ¶ 110. Defendants argue that 

Relators have not alleged how the alleged omission of the 

subcontractor employees was material to the government’s 

decision to make payments under the contract. SRA Mot. Dismiss, 

ECF No. 35 at 42; Triton Mot. Dismiss, ECF No. 38 at 30.

Relators do not directly respond to Defendants arguments but 

rather restate allegations from Amended Complaint that 

Defendants “misled DOD through removing information about the 

identity and work of the subcontractors.” Relators’ Opp’n, ECF 

No. 42 at 6.

The Court finds that Relators fail to state a material 

false statement claim relating to the ARPBS projections for two 

reasons: First, Relators concede that the replacement of 

personnel presents a breach of contract dispute, over which 

Relators have no standing. See Am. Compl., ECF No. 32 ¶ 110 

(“Defendants’ ‘bait-and-switch’ scheme regarding the ‘Personnel 

and Performance’ provision created an irreparable, material 

breach with the prime contract, as well as all subcontractors”); 

Bender, 750 F. Supp. 2d at 10. However, even assuming Relators 
50

did allege a false claim, they——as Defendants highlight——have 

failed to allege that the removal of subcontractor names from 

the ARPBS projections was material to the government’s decision 

to pay. See Ervin, 370 F. Supp. 2d at 36 (recognizing that the 

materiality of a false record or statement is an element of 

False Claims Act liability). As a result, Count IV(b) is hereby

DISMISSED under Rule 12(b)(6). Because the Court has determined 

that Relators have failed to state a claim under Rule 12(b)(6), 

further analysis for particularity under Rule 9(b) is 

unnecessary.

IV. CONCLUSION 

For the foregoing reasons, Defendants’ Motions to Dismiss

are GRANTED in part and DENIED in part. Count III against both 

Defendants shall proceed. Count V’s claim pertaining to alleged 

overtime charges shall also proceed but only against Triton. All 

remaining claims are DISMISSED. An appropriate Order accompanies 

this Memorandum Opinion, filed this same day. 

SO ORDERED. 

Emmet G. Sullivan

United States District Court

November 29, 2016.