Government contracting has never been easy. But occasionally it is exciting, at least at the outset: Figuring out how to prepare the most competitive proposal and landing a significant contract are memorable achievements (assuming one survives the bid protest). The work also can be satisfying: Getting the customer what it needs, when it needs it, and doing this well can make a difference in peoples’ lives. Indeed, it may save lives, whether one is delivering health care services or military equipment. Patriotism is an underappreciated and real motivator for many contractors, often more so than profits, which — unbeknownst to the general public — are slim enough under the weight of this regulated industry. Now, though, they are taking all fun out of contracting.

Barely a week goes by without a report of another False Claims Act allegation based on an aggressive “implied certification” theory — an issue that will be addressed soon by theU.S. Supreme Court in Escobar — or a novel allegation turning what should be a contract disagreement into a fraud case. Plaintiffs attorneys and some in the U.S. Department of Justice hold the view that essentially perfect performance is the measure for contractors, with any imperfection being reckless. And recklessness is, after all, a standard for fraud under the FCA. This disregards, of course, the broad swaths of uncertainty involved in many government contracts and in all the complex ones. Navigating the thicket of Medicare rules, regulations, and guidance to the single “right” answer is virtually impossible. So is agreeing on the “only” correct interpretation of performance specifications for a major weapons or computer system, particularly after a run of constructive changes.

Originally published in Law360 on May 17, 2016.