Since the 1986 Amendments to the False Claims Act, close to 900 qui tam actions have been filed, however, less than 30% resulted in Department of Justice (DoJ) intervention. Most of the declinations, rightly or wrongly, have related to what DoJ determined to be a lack of merit or sometimes politics. Some of the conditions that usually lead to a declination by the DoJ involve:

1. Filing a complaint based solely on what the relator said.
2. A lack of substantiation or any type of preliminary investigation prior to filing.
3. A lack of understanding by attorneys of the complicated nature of the allegations and the government procurement process.
4. Not recognizing the correct fraud scheme.
5. A lack of understanding by attorneys of what information is necessary for DoJ to properly investigate and make an informed decision.
6. A poorly written complaint and disclosure statement.
7. A relator who is not credible.
8. Poor investigative techniques and investigative planning by the DoJ and/or government investigative agency.
9. Political pressures by the contracting federal department on the DoJ not to proceed.

A successful qui tam action starts with the proper screening of the whistleblower and the allegations. The initial interview of the whistleblower is important in order to properly evaluate his or her credibility. During this process, you want to obtain information about the whistleblower such as his or her background and motivation for wanting to blow the whistle on the potential defendant. In addition, you want to obtain a full description of the allegations, if there is a federal nexus, and how, or if, it fits with a false claims violation. Determining whether there is a potential false claims violation and what the actual fraud scheme is can be difficult if you do not have an understanding of the federal program or procurement process involved. If this is the case, than you will need to seek out an understanding of the federal process involved. Don't count on the whistleblower to always have that kind of detailed information regarding the procurement process or how the potential defendant falsely bills to the Government. You may want to seek the advice of consultants who have expertise of the federal procurement system.

In addition to the allegations, you need to determine the period of time the fraud took place, the period of time the whistleblower had direct knowledge of the fraud, the estimated damages or loss to the Government, and whether the fraud is still going on. Other important questions of the whistleblower should include information regarding the potential defendant, information that will help determine if the defendant is financially capable of paying on a judgment or settlement and whether there are any witnesses and/or documents available to help substantiate the allegations. If the whistleblower has records, it is very important to thoroughly review and understand all the records he or she has relating to the matter.

Once the initial information is obtained and evaluated, a decision is then made whether to proceed to the next step or not to purse the matter. If your decision is to proceed, then it is important to lay out a plan to substantiate the allegations to a degree that you are comfortable that a false claims violation has occurred and exactly what the scheme is before you file.

There is no hard and fast rule as to how much substantiation is needed in order to file. It depends on the complexity of the allegations, federal procurement process or program involved, and the extent and quality of information provided by the whistleblower. In general, a well documented case that provides some degree of substantiation that lends credibility to the allegations, and allows the government to properly investigate the matter, is necessary in order to give the DoJ enough information to make a determination whether to intervene.

A mistake made by some attorneys who are inexperienced in filing qui tam actions is to assume that information from the whistleblower alone, without any substantiation, is enough because the DoJ has the resources available to fully investigate the allegations. Under normal circumstances, the DoJ, and the government agencies who investigate the allegations, are strapped with heavy caseloads, many inexperienced investigators and declining personnel due to the recent reorganization of government. Since most government procurement fraud cases are complex and difficult to properly investigate ( it normally can take up to two or three years to fully investigate), it can be very difficult for the government investigative agency to determine the merits of a case within the relatively short period of time given them under the law. Thus, it is even more important to make sure you have enough substantiation of the allegations to give the Government the best chance of determining that your case has enough merit to intervene and fully investigate to a successful conclusion.