Georgia Tech Procurement Assistance Center

Company and its owners charged with DBE fraud on 224 contracts dating back to 1995

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Two owners of Carl M. Weber Steel Service, Inc. (Weber Steel), of Kutztown, PA, were charged with one count of conspiracy to commit wire fraud, the Philadelphia U.S. Attorney’s Office announced June 16, 2015.

DBE Fraud HotlineThe conspiracy charge states that Dennis Weber, president of Weber Steel, and Dale Weber, vice president, engaged in a scheme to defraud the U.S. Department of Transportation through DOT’s Disadvantaged Business Enterprise program (DBE). Weber Steel, a bridge and highway construction contractor, was not a certified DBE, but set-up and utilized a sham DBE called Karen Construction Co., Inc. (Karen Construction) to obtain DBE subcontracts for bridge and highway construction.

From approximately April 1995 through November 2011, Karen Construction, posing as a DBE, obtained an estimated $18.7 million from approximately 224 federally-funded projects, when, in reality, it was controlled by Weber Steel, a non-DBE.

If convicted, defendants Dennis and Dale Weber each face a maximum sentence of five years in prison, two years of supervised release, a fine of up to $250,000, and a $100 special assessment.  Defendant Weber Steel faces a maximum sentence of five years of probation, a fine of up to $500,000, and a $100 special assessment.

The case was investigated by USDOT’s Office of Inspector General, the Federal Bureau of Investigation, and the U.S. Department of Labor’s Office of Inspector General/Office of Labor Racketeering and Fraud Investigations.

Source: https://www.fbi.gov/philadelphia/press-releases/2015/kutztown-steel-company-and-owners-charged-with-conspiracy

Augusta airport to hold contractor ‘meet-and-greet’ on May 27th

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On Wednesday, May 27, 2015, the Augusta Regional Airport is hosting a “Meet and Greet” for Disadvantaged Business Enterprises (DBEs) and four (4) prime contractors working on various airport construction projects.

Augusta Regional AirportThe prime contractors scheduled  to be present are:  Beams Contracting, Inc. Choate Construction, McKnight Construction Co., Inc., and Reeves Construction Co.  These prime contractors are looking for DBEs for possible subcontracting and teaming.  Specifically, they are looking for those in the construction arena and building trades such as but not limited to: building (commercial and industrial); electrical; mechanical (plumbing and HVAC); heavy construction; highway, railroad & airport construction; masonry; municipal utility; environmental; and specialties (landscaping, excavation, roofing, etc.).   Details will be shared at the event.

Additional information about the prime contractors can be found at the following links:

The event will be held from 3:00 to 4:00 pm at the Augusta Regional Airport, 1501 Aviation Way, Augusta, GA 30906.  For questions or additional information, please contact Risa A. Bingham, Finance Director/DBELO at 706-798-3236.

GA-based construction firm to pay $1 million to settle alleged DBE-related False Claims violations

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C.W. Matthews Contracting Company (C.W. Matthews), a Marietta, GA-based construction firm, has agreed to pay $1 million dollars to settle allegations that it violated the False Claims Act almost eight years ago by submitting false and misleading certifications to the Government regarding: 1) work performed on several federally funded highway construction projects; as well as 2) the company’s compliance with the U.S. Department of Transportation’s Disadvantaged Business Enterprise Program (DBE Program).

DBE ownership and controlThe agreement was announced by the U.S. Attorney’s Office of the Northern District of Georgia on Monday, April 13, 2015.

Additionally, C.W. Matthews has reached a separate settlement with the U.S. Federal Highway Administration, pursuant to which the company has agreed to: 1) adopt an ethics code and a corporate compliance program; 2) appoint a compliance officer; and 3) retain an independent monitor to assess its performance.

“To receive the tangible and intangible benefits that it contracts for, the United States expects companies that actively seek and obtain federally funded contracts to be diligent and forthright in fulfilling their contractual obligations to the Government,” said Acting U.S. Attorney John Horn.

The settlement concerns false certifications that C.W. Matthews provided the Government regarding its compliance with requirements associated with the DBE Program.  Pursuant to the DBE Program, federally funded construction contracts contain DBE clauses, which require that a specified percentage of the work be sub-contracted to firms meeting the statutory definition of a Disadvantaged Business Enterprise (DBE).

As a precondition to bidding, a contractor must acknowledge the project’s DBE goals, and then identify the DBE that it proposes to subcontract with if awarded the contract.  Additionally, DBE regulations (49 C.F.R. § 26.55) require “real and substantial” work performed by a “viable” and “independent” DBE firm, and state that “there cannot be a contrived arrangement for the purpose of meeting DBE goals.”  The DBE Program is intended to ensure that DBEs are able to compete for federal construction contracts.

Between 2006 and 2007, C.W. Matthews was awarded several highway construction contracts that contained DBE clauses.  In bidding on the contracts, C.W. Matthews promised to subcontract with a DBE firm called Longoria Trucking (Longoria) to satisfy the contracts’ DBE goals.  As work progressed, C.W. Matthews submitted the requisite DBE Reports to the Government, which: 1) described work Longoria had purportedly performed; and 2) quantified the monetary amounts purportedly paid to Longoria.

The Government’s investigation revealed that the DBE reports submitted by C.W. Matthews were false and misleading as, in truth, it was a non-DBE trucking firm called G.E. Robinson – not Longoria – that performed most of the work, and received most of the payments, described in the reports.  Indeed, the investigation revealed that G.E. Robinson used Longoria as a “front” to obtain, and receive payment under, the applicable contracts.  As a non-DBE firm, G.E. Robinson was ineligible to even bid on these subcontracts.  To circumvent this restriction, G.E. Robinson assumed the identify of, and controlled, Longoria, which did little work and was paid a small fee by G.E. Robinson for its complicity.

The investigation revealed C.W. Matthews either knew, or should have known, of the scheme between Longoria and G.E. Robinson.  However, despite this knowledge, C.W. Matthews continued issuing false and misleading certifications to the Government regarding Longoria’s role in the applicable highway projects.

In certifying that Longoria was performing work under the contracts, despite clear signs that the work was actually being performed by G.E. Robinson, C.W. Matthews, at minimum, was either reckless or deliberately indifferent.

Source: http://www.justice.gov/usao/gan/press/2015/04-13-15.html

FBI investigates TN road building giant for DBE fraud

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The FBI raided the offices of a Williamson County, Tennessee construction company as part of an ongoing investigation into nine Tennessee Department of Transportation and two Metro Nashville Airport Authority contracts.

The agents seized payroll records, contract files, work orders and computer hard drives from the College Grove offices of G&M Associates. Jones Brothers, one of the largest road contractors in the Southeast, and two of its affiliate companies are implicated in the investigation, according to a search warrant.

Jones Brothers and the two affiliated companies, Mountain States Contractors and Hot Mix Asphalt, were allegedly involved in a scheme to fraudulently land government contracts intended for companies that promise to subcontract a certain percentage of the work to women- or minority-owned small businesses, the search warrant documents state.

Keep reading this article at: http://www.tennessean.com/story/news/investigations/2015/03/14/fbi-investigates-tennessee-road-building-giant-fraud/70282674/

Construction company to pay $2.15 million, admits abuse of DC’s certified business enterprise program

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Forrester Construction Company has agreed to pay $2.15 million to the United States and implement internal reforms to resolve a criminal investigation into alleged fraud committed by the company in connection with the use of Certified Business Enterprises (CBEs) in the procurement of more than $145 million in District of Columbia government contracts. The internal reforms will be subject to independent review and reporting.

As part of the resolution, Forrester Construction admitted that it improperly entered into written letter agreements and “Action of Management Committee” memoranda with the CBE participants to joint ventures that were not disclosed to the District of Columbia during the contract procurement process. As a result, the company admitted, both Forrester Construction and the CBE partners failed to follow the required CBE rules and regulations.

The announcement concludes a two-year investigation into Forrester Construction, a firm based in Rockville, Md., as well as its CBE partners on the joint venture projects.

Under the terms of a non-prosecution agreement reached with the U.S. Attorney’s Office for the District of Columbia, Forrester Construction agreed to pay $2.15 million to the United States and accepted and acknowledged responsibility for its improper conduct, as described in a Statement of Facts. The company also agreed to undertake various remedial measures to ensure compliance with the requirements of the District of Columbia’s CBE program (or any such equivalent on federal government projects) and the U.S. Small Business Administration’s 8(a) program, insofar as the company undertakes projects involving CBEs or 8(a) companies in the future.

Both the District of Columbia’s CBE program and SBA’s 8(a) program are meant to help small, disadvantaged businesses access government procurement markets.

The remedial measures include the hiring or designation of a CBE and 8(a) Compliance Officer, as well as an Ethics Officer; the implementation of a comprehensive training program for all company personnel regarding compliance with the CBE and 8(a) programs; maintaining an effective compliance and ethics program, and continuing cooperation with law enforcement. Significantly, individual employees directly associated with the inappropriate conduct are no longer employed by the company.

Additionally, the company agreed to undertake community service intended to develop improvements in the CBE and 8(a) programs going forward. Forrester Construction agreed to offer workshops, either individually or in collaboration with an industry trade association, aimed at providing training with respect to the rules and regulations of the CBE and 8(a) programs, among other topics relating to the construction industry.

This case is the latest example of law enforcement efforts to protect the integrity of CBE programs. Michael A. Brown, a former member of the Council of the District of Columbia, pled guilty in 2013 to a federal bribery charge stemming from an undercover investigation in which he accepted $55,000 from FBI agents posing as employees of a company that purportedly wanted CBE approval and contracting opportunities. Brown is serving a 39-month prison term.

“By changing the terms of joint ventures with small disadvantaged businesses and not reporting them to the D.C. government, Forrester Construction circumvented the foundation of the CBE program and used their proceeds to increase their own bottom line,” said Assistant Director in Charge McCabe.

“These joint ventures principally served the interests of Forrester Construction Company to make money and to obtain contracting opportunities otherwise unavailable to them,” said SBA Inspector General Gustafson. “Joint ventures involving SBA program participants should be structured and executed to give the small business an opportunity to gain experience and technical knowledge and to further develop their business. I want to thank the U.S. Attorney’s Office for its leadership in reaching this agreement.”

According to the Statement of Facts agreed to by the company, between 2008 and 2009, Forrester Construction formed multiple joint ventures with CBEs for the purpose of bidding on construction contracts in the District of Columbia.

Three joint ventures formed by Forrester Construction and one of the CBEs, EEC of D.C., Inc., were awarded construction contracts from the District of Columbia. These contracts, including change order amounts, totaled approximately $64 million for construction of a new headquarters building for the Department of Employment Services; approximately $5.4 million for construction of a Senior Wellness Center in Ward 1, and approximately $56 million for the renovation and modernization of the existing Anacostia Senior High School building.

Forrester Construction also formed joint ventures with another CBE, and those joint ventures were also awarded construction contracts from the District of Columbia, which were, over a period of approximately three years, in an aggregated amount in excess of $20 million.

In each of these various projects, the joint venture formed by Forrester Construction and the respective CBE partner received the maximum amount of contracting preferences for which the CBE partner was eligible, which provided Forrester Construction and the respective CBE partner with a competitive advantage during the bidding process.

As part of its joint venture submissions to the District of Columbia Department of Small and Local Business Development (DSLBD), Forrester Construction and its respective CBE partner represented that the CBE partner would be the majority partner and maintain a 51% interest in the joint venture, entitling the CBE partner to 51% of the net operating profits of the joint venture. Each joint venture agreement also established a “Management Committee,” consisting of two representatives from the CBE partner and one representative from Forrester Construction, which provided the CBE partner with majority control of the joint venture.

After each joint venture for the projects was submitted to, and certified by, the DSLBD, however, Forrester Construction and the respective CBE partner signed a memorandum entitled “Action of Management Committee” or signed a letter agreement, which related to the operations of each joint venture. The memoranda and/or letter agreements effectively increased Forrester Construction’s control over the day-to-day operations of the projects and reduced the CBE partner’s share of the profits or losses in the projects—notwithstanding the requirements of the joint venture agreements and the CBE rules and regulations. Forrester Construction and the CBE partner did not disclose these “Action of Management Committee” memoranda or the letter agreements to the District of Columbia government during the procurement process.

The “Action of Management Committee” memoranda also revised the respective scope of work and services that Forrester Construction and the CBE partner would provide to certain of the projects. In each instance, the “Action of Management Committee” memorandum applicable to the particular project identified a small scope of work for the CBE partner to complete and provided that Forrester Construction would provide all remaining general conditions, subcontract work, and all other work required to fulfill the requirements of the project.

For example, with respect to the Anacostia Senior High School joint venture, the applicable “Action of Management Committee” memorandum provided that the scope of work for the CBE equated to approximately $2.75 million, while the scope of work for Forrester Construction equated to approximately $46 million. The “Action of Management Committee” memoranda also established a pre-determined profit for the joint venture that specifically excluded any profits earned or losses sustained by either Forrester Construction or the CBE partner for their respective scope of work. Moreover, Forrester Construction and the CBE partner agreed that only the pre-determined profit, exclusive of each partner’s individual “scope of work,” would be split in the proportions agreed to in the joint venture agreement (i.e., 51% for the CBE partner and 49% for Forrester Construction). All other profits or losses generated through an individual scope of work would belong to the respective entity.

All of the work was performed under the various contracts. However, as a result of the letter agreements and “Action of Management Committee” memoranda, the CBE participant for each of the projects did not maintain majority control of the projects and did not receive 51% of the profits or losses associated with the projects, as required by the joint venture agreements and in accordance with the CBE rules and regulations.

This investigation was conducted by the FBI’s Washington Field Office; the Criminal Investigation Unit of the U.S. Attorney’s Office for the District of Columbia; the District of Columbia’s Office of the Inspector General, and the SBA Office of Inspector General.

Source: http://www.fbi.gov/washingtondc/press-releases/2014/forrester-construction-company-agrees-to-pay-2.15-million-admits-abuse-of-certified-business-enterprise-program

Got DBE fraud skeletons?

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Every Halloween, the cute traditional images re-emerge from our closets and the attics.  Ghosts, gravestones, plastic pumpkins, and perhaps the most common of all – skeletons.  Given the recent heightened status of Disadvantaged Business Enterprises (DBE) fraud prosecutions, the massive civil penalties, the prevalence of hotlines, and increased incentives for whistle-blowers, any contractor who participates in DBE programs should use Halloween as an annual reminder to take a closer look to see if they have other skeletons in their corporate attics.

According to recent government reports and audits, DBE fraud investigations have been on the rise, in hopes of deterring widespread abuses in the programs.  According to a 2011 report from the DOT, between 2003 and 2008, the Office of Inspector General (OIG) investigations resulted in 49 indictments, 43 convictions, nearly $42 million in recovery and fines, and 419 months of jail sentences.  Moreover, from 2009 and 2010, the number of DOT investigations increased by almost 70 percent.  Based upon the headlines each month, the number of indictments keeps climbing, along with the civil and criminal penalties.

In view of these statistics and trends, one thing should be crystal clear. To the extent that DBE compliance may be a challenge, it is far better to discover the problems sooner, rather than later.

Keep reading this article at: http://www.jdsupra.com/legalnews/got-dbe-fraud-skeletons-32884/

DBE Fraud Hotline

SBA’s inspector general says agencies are overstating 8(a) and HUBZone contracting achievements

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On September 24, 2014, the Small Business Administration’s Office of Inspector General (OIG) issued Evaluation Report 14-18, Agencies are Overstating Small Disadvantaged Business and HUBZone Goaling Credit by Including Contracts Performed by Eligible Firms.  This report presents the results of an evaluation of select Section 8(a) Business Development Program and Historically Underutilized Business Zones (HUBZone) contract awards.

The OIG identified over $400 million in contract actions that were awarded to ineligible firms, which may have contributed to the overstatement of small business goaling dollars for the Small Disadvantaged Business and the HUBZone Business preference programs in FY 2013.  Besides reporting inaccurate information in Federal Procurement Data System-Next Generation (FPDS-NG), procuring agencies may have limited contracting opportunities for firms currently participating in the 8(a) or HUBZone programs.

Further, the OIG found that HUBZone and 8(a) certification information is not consistently transmitted to the Dynamic Small Business Search (DSBS) and the System for Award Management (SAM).  As a result, the affected small businesses are not getting the visibility in the DSBS database, especially the HUBZone firms, and as a result, may impact federal agencies in meeting their HUBZone procurement goals.

Additionally, the OIG also identified over $1.5 billion dollars in contract actions for which the firms were in the programs at the time of contract award, but in FY 2013 were no longer in the 8(a) or HUBZone programs.  Specifically, SBA regulations permit procuring agencies to claim Small Disadvantaged Business and HUBZone goaling credit on certain contract actions even after firms have left the program.  In the opinion of the OIG, the amount of dollars the SBA reports to Congress and the public as being performed by 8(a) and HUBZone firms in the Small Business Goaling Report is significantly impacted by the inclusion of contract actions performed by former program participants.

The OIG made two recommendations to SBA’s Associate Administrator for Government Contracting and Business Development intended to strengthen controls between SBA databases on certification data of 8(a) and HUBZone firms and information reported in FPDS-NG. The recommendations are:

  1. In coordination with the Office of Federal Procurement Policy and the General Services Administration, the SBA should strengthen controls between the SBA’s Dynamic Small Business Search Database and the System for Award Management to ensure accuracy of 8(a) and HUBZone certification data in FPDS-NG.
  2. The SBA should modify DSBS so that a firm’s profile and certification information for HUBZone and 8(a) status remains visible and accurate to agency contracting officers, or develop an alternate list to verify a firm’s status.

The OIG reports that SBA’s management has agreed to pursue both recommendations.

Defense department’s ‘sources sought’ for IT services underscores importance of an effective capabilities statement

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Market research undertaken last week by a unit of the Department of Defense places significant importance on small businesses having a written capabilities statement.

In fact, as the Defense Information Systems Agency (DISA) puts it, “It is vitally important that Small Businesses responding to this Sources Sought Notice do so with highly effective Capability Statements.”

The call for submittal of capabilities statements comes in DISA’s posting of a sources sought notice on FedBizOpps on September 11, 2014.  The purpose of the sources sought is to determine the availability and technical capability of small businesses to provide a wide range of information technology services to the U.S. Cyber Command, including assistance for offensive and defensive cyber operations.

The sources sought notice is a precursor to an anticipated indefinite delivery, indefinite quantity IT contract which will be open only to small businesses.  Small businesses are being sought to provide support for cyber planning, training knowledge, records management, science and technology research and development, and more than 30 cyber exercises a year.

The small businesses that DISA is seeking to identify include Small Disadvantaged Businesses, HUBZone Firms; Certified 8(a), Service-Disabled Veteran-Owned Small Businesses, and Woman Owned Small Business.

The primary place of performance will be at USCYBERCOM Government facilities within the Ft. George G. Meade, MD local area. Local area is any facility within a 50 mile radius of Ft. Meade, Maryland.

Responses to the sources sough are due not later than 4:00 pm Eastern Time on September 29, 2014.

DISA’s sources sought notice may be seen at: https://www.fbo.gov/index?s=opportunity&mode=form&id=63a08d1386b0426debf21c53cd8572db&tab=core&_cview=0.

For background information on the “sources sought” process, read: http://gtpac.org/2010/09/what-is-a-sources-sought-heres-the-answer

For general information on putting together a capabilities statement, read: http://gtpac.org/2010/05/what-is-a-capabilities-statement-and-why-should-i-have-one/

Clients of the Georgia Tech Procurement Assistance Center may ask their assigned counselor for a sample capabilities statement as well as for a review of their capabilities statement before submitting it in response to any sources sought notice.

 

CEO of fraudulent DBE firm sentenced to 51 months in prison

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Ernest G. Fink, Jr., 68, of Orwigsburg, Pennsylvania, the former Chief Operating Officer and co-owner of Schuylkill Products Inc., was sentenced in federal court in Harrisburg, Pennsylvania, on July 14, 2014 to 51 months’ imprisonment and ordered to pay fines totaling $25,100 for his role in a massive conspiracy to defraud the Disadvantaged Business Enterprise (DBE) program, announced Peter Smith, U.S. Attorney for the Middle District of Pennsylvania. Senior U.S. District Court Judge Sylvia H. Rambo directed that Fink report to prison no later than September 8, 2014.

In handing down the sentence, Judge Rambo stated “DBE fraud is pervasive in the construction industry, and persons so inclined to commit the same kind of fraud need to be aware that they face serious consequences from DBE fraud.”

According to the U.S. Department of Transportation (USDOT), this scheme, which lasted for over 15 years and involved over $136 million in government contracts in Pennsylvania alone, is the largest reported Disadvantaged Business Enterprise (DBE) fraud in the nation’s history.

On August 16, 2010, Fink pleaded guilty to conspiracy. Sentencing was deferred pending the resolution of the case against Joseph W. Nagle, SPI’s former president and co-owner.

In April 2012, after a four-week jury trial, a federal jury found Nagle guilty on 26 charges in the indictment, including conspiracy to defraud the USDOT and to commit wire and mail fraud, seven counts of wire fraud, six counts of mail fraud, conspiracy to commit money laundering and 11 counts of money laundering.

On June 30, 2014, Nagle was sentenced to 84 months’ imprisonment and ordered to pay fines totaling $27,600.

Fink was Vice-President, Chief Operating Officer and co- owner of Schuylkill Products Inc. (SPI) and its wholly-owned subsidiary CDS Engineers Inc. (CDS), until April 2009 when SPI was sold. SPI, based in Cressona, Pennsylvania, manufactured concrete bridge beams used on highway construction projects in Pennsylvania and surrounding states. CDS was SPI’s erection division and installed SPI’s bridge beams as well as other suppliers’ products on highways in Pennsylvania and surrounding states. The conspiracy defrauded USDOT, the Pennsylvania Department of Transportation (PennDOT) and the Southeastern Pennsylvania Transportation Authority (SEPTA) in connection with the federal government’s DBE program.

USDOT provides billions of dollars a year to states and municipalities for the construction and maintenance of highways and mass transit systems on the condition that small businesses, owned and operated by disadvantaged individuals, receive a fair share of these federal funds. In Pennsylvania, PennDOT and SEPTA receive these funds and requires contractors to award a percentage of their subcontracts to eligible DBE’s.

The USDOT Office of Inspector General has cautioned prime contractors and subcontractors not to engage in fraudulent DBE activity and encouraged them to report any suspected DBE fraud by contacting www.oig.dot.gov/hotline.

Fink and his co- conspirators executed the scheme by using a small Connecticut highway construction firm known as Marikina Construction Corporation as a front company to obtain these lucrative government contracts.

Marikina was owned by Romeo P. Cruz of West Haven, Connecticut, a naturalized American citizen born in the Philippines. Marikina was certified by PennDOT and SEPTA as a DBE. Although Marikina received the DBE contracts on paper, all the work was performed by SPI and CDS personnel, and SPI and CDS received all the profits. In exchange for letting SPI and CDS use its name, Marikina was paid a small fixed-fee, set by SPI.

SPI and CDS personnel pretended to be Marikina employees by using Marikina business cards, e-mail addresses, stationery, and signature stamps, as well as using magnetic placards and decals bearing the Marikina logo to cover up SPI and CDS logos on SPI and CDS vehicles.

Earlier this year, three other former executives associated with SPI, CDS and Marikina were sentenced for their roles in the scheme.

Romeo P. Cruz, the former owner of Marikina, was sentenced to 33 months’ imprisonment, must pay $119 million in restitution and serve two years’ supervised release.

Timothy G. Hubler, of Ashland, Pennsylvania, CDS’ former Vice-President in charge of field operations, was sentenced to 33 months’ imprisonment, pay $119 million in restitution and serve two years’ supervised release.

Dennis F. Campbell, of Orwigsburg, Pennsylvania, SPI’s former Vice-President in charge of sales and marketing was sentenced to 24 months’ imprisonment, $119 million in restitution and serve two years’ supervised release.

The investigation was conducted by the FBI, the U.S. Department of Transportation Inspector General’s Office, the U.S. Department of Labor Inspector General’s Office, and the Criminal Investigation Division of the IRS. Senior Litigation Counsel Bruce Brandler handled the prosecution.

Source: http://www.fbi.gov/philadelphia/press-releases/2014/former-chief-operating-officer-and-co-owner-of-schuylkill-products-sentenced-in-largest-disadvantaged-business-enterprise-fraud-in-nations-history

See earlier articles about this case at: http://gtpac.org/?p=5357 and at http://gtpac.org/?p=7555

Chicago construction firm pays $12 million to settle DBE contract fraud claims

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A Chicago-based construction company will pay the United States and the State of Illinois $12 million to resolve allegations of fraud on government programs designed to benefit women- and minority-owned sub-contractors under the terms of a civil settlement agreement announced May 1, 2014. The contractor, James McHugh Construction Co., Inc., allegedly failed to abide by federal and state requirements for the participation of disadvantaged business enterprises (DBEs) in contracts to perform seven construction projects involving roads, highways, and transit lines, funded by the federal and state governments between 2004 and 2011.

The federal and state governments claimed that McHugh violated the federal and Illinois False Claims Acts by making false statements and claims for payment to government agencies regarding McHugh’s compliance with federal and state requirements to include DBEs in the construction projects.

As a result of the $12 million settlement, the federal government will receive $7.2 million and the state government will receive $4.8 million. In a separate administrative settlement and compliance agreement, McHugh agreed to implement a corporate compliance program, appoint a compliance officer, and be subject to an independent monitor for three years, in exchange for the federal, state, and City of Chicago transportation agencies and contracting authorities’ agreement not to bar McHugh from future government contracts. This allows McHugh to continue pursuing and performing public works projects while ensuring that it remains compliant with DBE regulations.

“It was more costly in the long run for McHugh to avoid its obligations to hire women and minority-owned businesses than it would have been simply to comply with the requirements and retain disadvantaged businesses to actually participate in these public construction projects,” said Zachary T. Fardon, United States Attorney for the Northern District of Illinois. “It’s important that McHugh and other companies realize that compliance with these requirements is both a good business decision and the right thing to do,” he added.

The investigation revealed that McHugh Construction falsely used subcontractors to help secure bids for major public construction projects. Specifically, the company used women-owned small businesses to submit false claims to the state and federal governments for millions of dollars when in fact, those businesses never completed the level of work required by law.

The settlement arose from a lawsuit that was filed in 2008 by Ryan Keiser, who was a project manager for Perdel Contracting Corp. and Accurate Steel Installers, Inc. (ASI), at three of the McHugh construction sites. The lawsuit was filed under the qui tam or whistleblower provisions of the federal and state False Claims Acts.

The federal and state statutes permit private individuals to sue for “false claims” on behalf of the government and to share in any recovery. Mr. Keiser will receive 17 percent of the $12 million settlement or $2,040,000 ― $1,224,000 from the United States share, and $816,000 from Illinois’ portion of the settlement.

The federal and state governments contended that in bids for these contacts, in the final contracts, and in claims for payment, McHugh falsely stated that Perdel and ASI, which were both certified as DBE firms owned by Elizabeth Perino, would perform or had performed work on the projects in satisfaction of federal and state DBE participation requirements in the contracts. The governments contended that contrary to McHugh’s statements, Perdel and ASI often functioned merely as “pass-throughs,” performing little, if any, work that would qualify for participation credit under federal and state DBE requirements. Perino, who owned Perdel and ASI in Lockport, was charged with federal mail fraud in 2011, and the case remains pending.

According to the settlement agreement, the governments also contended that Perdel and ASI’s contracted work for McHugh often exceeded the companies’ capacity and experience. Although their projects with McHugh were substantially greater in size and scope than they had previously performed, Perdel and ASI’s expertise to perform larger and more complex projects did not change correspondingly. Rather than Perdel and ASI performing, managing, or supervising the work that McHugh represented they would, McHugh frequently managed union workers they each hired. In some cases, McHugh directed Perdel and ASI as to which union crews to hire.

McHugh, not Perdel or ASI, also selected certain suppliers on each of the contracts, determined the quantity and quality of those materials, negotiated the price, and often drafted a purchase order for Perdel or ASI to put on their letterhead, the governments contended.  That kind of conduct violates federal and state provisions that are designed to give a share of the actual work of government-funded construction projects to minority- and women-owned businesses.

The settlement is neither an admission of liability by McHugh nor a concession by the state and federal governments that their contentions are not well founded, and McHugh expressly denies the claims.

The settlement was reached on behalf of the U.S. Department of Transportation, the Illinois Department of Transportation, the Illinois State Toll Highway Authority, and the Regional Transportation Authority.

The separate three-year administrative monitoring settlement and compliance agreement was reached between McHugh and the Federal Transit Administration, the Federal Highway Administration, the U.S. and Illinois Transportation Departments and their procurement officers, and the City of Chicago. In exchange for the government entities’ agreement not to pursue any suspension or debarment action against McHugh for the covered conduct, McHugh agreed to implement a corporate compliance program and appoint a compliance officer who is knowledgeable about DBE programs. The company also agreed to retain an independent monitor to evaluate McHugh’s performance and submit periodic reports to the government agencies and officials, and to make six presentations to those agencies and officials to discuss and promote compliant policies and procedures for working with DBE firms.

Source: http://www.justice.gov/usao/iln/pr/chicago/2014/pr0501_01.html

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