The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
Relator Brady Folliard initiated this qui tam suit pursuant to the Federal False Claims Act, 31 U.S.C. §§ 3729-3733 ("FCA"). Folliard's complaint alleged that eight named defendants listed for sale and sold products under government contracts from non-designated countries, in violation of the Trade Agreements Act, 19 U.S.C. §§ 2501-2581 ("TAA"). All eight defendants filed motions to dismiss, which the Court granted as to six of the eight defendants, but denied as to defendants Government Acquisitions, Inc. ("GAI") and Govplace. See generally July 19, 2011 Mem. Op. ; July 19, 2011 Order . The Court granted GAI and Govplace's motion to sever, retaining joint case management. See Sept. 27, 2011 Order . Subsequently each defendant moved for summary judgment. Folliard has filed motions to compel discovery, while each defendant has filed motions for protective orders. As explained below, each defendant's motion for summary judgment will be granted in part, plaintiff will be afforded the opportunity to amend his oppositions as to the remaining issues, and the parties' current discovery motions will be dismissed without prejudice.
This is a qui tam action in which Folliard alleges violations of the FCA by GAI and Govplace by listing for sale and for selling products in violation of the TAA.
A.Basis for the Complaint
Defendants are information technology providers who each supply products to United States government agencies under separate General Services Administration ("GSA") Multiple Awards Schedule Contracts ("GSA Schedule"). See Gov't Acquisitions Inc.'s Mem. P. & A. Supp. Mot. Summ. J.  ("GAI P. & A.") at 1; Def. Govplace's Mot. Summ. J.  ("Govplace MSJ") at 1, 5-6. These contracts are covered by the TAA, which bars the federal government, inter alia, from purchasing end-products that originate in non-designated countries. Corrected Second Am. Compl.  ("Compl.") ¶ 40. Federal Acquisition Regulation ("FAR")
52.225-5(a) lists designated countries for purposes of the TAA; the federal government is prohibited from purchasing products from any country not so listed.
Folliard alleges that GAI knowingly listed five products on its GSA Schedule as having originated in the United States when they allegedly originated in non-designated countries, and that GAI sold six products that originated in non-designated countries. Compl. ¶¶ 93-101. Folliard alleges that Govplace knowingly listed twenty-three products on its GSA schedule as having originated in the United States when they allegedly originated in non-designated countries, and that Govplace sold ten products that originated in non-designated countries.
Compl. ¶¶ 113-18. These listings and sales form the basis of Folliard's claims of violation of the FCA. Compl. ¶¶ 134-51.
The FCA, 31 U.S.C. § 3279 et seq., was amended by the Fraud Enforcement Recovery Act ("FERA") in 2009. See generally Pub. L. No. 111-21, 123 Stat. 1617 (2009). The FCA provisions relevant to this case involve (1) presenting fraudulent claims for payment and (2) knowingly making false statements or records to obtain payment. The presentment clause was renumbered from 31 U.S.C. § 3279(a)(1) to 31 U.S.C. § 3279(a)(1)(A) in FERA, which also removed language requiring that the claim be presented to an officer or employee of the government or armed forces. See Pub. L. 111-21 § 4(a). The false statement clause was renumbered from 31 U.S.C. § 3279(a)(2) to 31 U.S.C § 3279(a)(1)(B) in FERA, which changed the language from "false record or statement to get a false or fraudulent claim paid or approved by the government" to "statement material to a false or fraudulent claim." See id. The false statement clause was also made retroactive to June 28, 2008, while the presentment clause was effective the date of enactment. See id. § 4(f).
Because of the dates of the alleged infractions and the enactment of FERA, Folliard makes four claims against GAI and Govplace: (1) allegations under the pre-FERA presentment clause for acts prior to May 20, 2009 (Count I, Compl. ¶¶ 134-37), (2) allegations under the post-FERA presentment clause for acts after May 20, 2009 (Count II, Compl. ¶¶ 138-41), (3) allegations under the pre-FERA false statement clause for acts prior to June 7, 2008 (Count III, Compl. ¶¶ 142-46), and (4) allegations under the post-FERA false statement clause for acts after June 7, 2008 (Count IV, Compl. ¶¶ 147-51).
Folliard filed this qui tam action under seal in April 2007, alleging violations of the FCA. See generally Apr. 20, 2007 Compl. . Pursuant to 31 U.S.C. § 3730, the government was required to decide whether to intervene in this case, and in May 2010, finally determined that it would not. See Notice of Election to Decline Intervention . The case was unsealed on June 2010. See June 17, 2010 ...