Opinion

Culpepper v. Birmingham Jefferson County Transit Authority (BJCTA)

Court: District Court, N.D. Alabama
Filed: Feb 3, 2022
Cited by: 0 cases
Authority: More cited than 16.6%

calling the government’s payment of funds despite knowledge of a technical violation “strong evidence” that the violation was not material

How later courts described this case

calling the government’s payment of funds despite knowledge of a technical violation “strong evidence” that the violation was not material
“As between two competing interpretations, we must favor the ‘textually permissible interpretation that furthers rather than obstructs’ the statute’s purposes.”
“A reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

ex rel., STARR CULPEPPER and

O. TAMEKA WREN,

Plaintiffs/Relators,

Case No. 2:18-cv-00567-CLM

BIRMINGHAM JEFFERSON

COUNTY TRANSIT

AUTHORITY, et al.,

Defendants.

MEMORANDUM OPINION

As explained within, the court DENIES Relators’ motion for partial summary

judgment on the issue of materiality (doc. 126) and GRANTS IN PART and

DENIES IN PART the BJCTA and Murdock’s motion for summary judgment (doc.

124) and Strada and Watters’ motion for summary judgment (doc. 127). The parties

will try these counts to the jury:

• Count III: Implied False Certification Theory against all Defendants,

limited to Task Orders 7, 7a, 7b, 12, and 24;

• Count V: Conspiracy to imply false certifications against all

Defendants, limited to Task Orders 7, 7a, 7b, 12, and 24;

and,

• Count VI: Retaliation against Starr Culpepper.

The court will enter an order that dismisses all other counts with prejudice. The court

also DENIES as MOOT Relators’ motion to strike expert testimony (doc. 105).

BACKGROUND

At its core, this case is about whether the Birmingham Jefferson County

Transit Authority (BJCTA) had to tell the federal government that it was paying

federal grant monies to Strada Professional Services, LLC (Strada) for sole-source

contract work on the Bus Rapid Transit Project. A former BJCTA employee, Starr

Culpepper, and a former board member, O. Tameka Wren, claim that it did. So they

sued the BJCTA, Strada, and their executive directors at the time to recover the grant

money and penalize the Defendants on behalf of the United States, making them

“Relators,” a term the court uses to describe the plaintiffs.

That’s the simple description. But this is not a simple case. So the court dives

deeper into the law and facts below.

I. Strada’s plan for the Bus Rapid Transit

As its name implies, the BJCTA provides public transportation in the

Birmingham–Jefferson County area. The Bus Rapid Transit (BRT) Project is a

collaboration between the City of Birmingham and the BJCTA to update

Birmingham’s inner-city transit system by connecting 25 neighborhoods.

Strada is an engineering and consulting company. Starting in March 2015,

Strada worked with the City, the BJCTA, and others to develop a plan for the BRT

project. Two months later, Strada recommended that the City create a Program

Management Office and Program Management Team to coordinate all BRT Project

activities and recommended that the City hire Strada to serve as the Program

Manager. The City agreed.

In June 2015, the City—with Strada’s help—applied for a $20 million federal

grant for the BRT Project. The Federal Transit Authority (FTA) awarded the grant

to the City in October 2015. The next month, the City and Strada signed a Close Out

agreement for Strada’s work to date. Then in May 2016, the City and Strada signed

an agreement for Strada’s continued consulting services.

II. RFQ 15-17 & the Brooks Act

At the same time Strada was helping the City apply for the $20 million grant

(June 2015), the BJCTA issued a Request for Qualifications from firms that supply

engineering and technical consulting services. They titled it RFQ 15-17.

RFQ 15-17 instructed candidate firms how to apply. The last two instructions

said that RFQ 15-17 “shall be interpreted to be consistent with FTA Circular

4220.1F, Third Party Contracting Guidance,” and “the Best Practices Procurement

Manual published by the FTA.” (Doc. 125-2 at 15, Instructions 1.28 & 1.29).

Both FTA Circular 4220.1F and the Best Practices Manual require recipient

agencies like the BJCTA to procure architectural and engineering (A&E) services

“in accordance with the ‘qualifications-based procurement methods’ of the Brooks

Act.” (Doc. 131-3 at 318). So does the Master Agreement between the FTA and

federal grant recipients like the BJCTA. (Doc. 87-35 at 52).

The Brooks Act lays out a two-step procurement process for A&E services.

First, the grantee agency discusses “anticipated concepts” and “alternative methods

for furnishing services” (but not costs) with potential firms and selects “in order of

preference, at least 3 firms that the agency head considers most highly qualified to

provide the services required . . . based on criteria established and published by the

agency head.” 40 U.S.C. § 1103(c)-(d). In step two, the grantee agency then

negotiates the contract, including costs, as spelled out in 40 U.S.C. § 1104:

(a) In general.--The agency head shall negotiate a contract for

architectural and engineering services at compensation which the

agency head determines is fair and reasonable to the Federal

Government. In determining fair and reasonable compensation, the

agency head shall consider the scope, complexity, professional nature,

and estimated value of the services to be rendered.

(b) Order of negotiation.--The agency head shall attempt to negotiate

a contract, as provided in subsection (a), with the most highly qualified

firm selected under section 1103 of this title. If the agency head is

unable to negotiate a satisfactory contract with the firm, the agency

head shall formally terminate negotiations and then undertake

negotiations with the next most qualified of the selected firms,

continuing the process until an agreement is reached. If the agency head

is unable to negotiate a satisfactory contract with any of the selected

firms, the agency head shall select additional firms in order of their

competence and qualification and continue negotiations in accordance

with this section until an agreement is reached.

III. The BJCTA’s selection process

How one reads the “order of negotiation” part of § 1104 matters because the

BJCTA’s evaluators ranked Strada #3 among the five responses to RFQ 15-17:

Rank Firm Score

#1 Whitman, Requart & Assoc. (WRA) 386

#2 Wendel Architecture, P.C. (Wendel) 349

#3 Strada Professional Services LLC 334

The BJCTA’s director of grants and procurements, Brenda Perryman, asked the

BJCTA Board of Directors for permission to sign contracts with all three firms, not

just #1-ranked WRA. The Board passed Perryman’s proposed resolution on October

28, 2015. (Doc. 125-3 at 8). In it, the Board authorized Perryman to sign a contract

with each firm “to perform task order engineering and architectural (A&E) services

as needed for 1-year with (4) optional 1-year extensions; and not to exceed $30,000

per year.” (Id.) Strada executed the first contract on October 1, 2015—27 days before

the Board passed the resolution permitting Perryman to sign all three firms. WRA

and Wendel executed their contracts in early 2016.

IV. The task orders

The three contracts called for the BJCTA to assign specific tasks by “task

orders” with price being determined by the task orders. The parties agree that from

November 2015 through the Fall of 2017, Strada and the BJCTA agreed to “at least

thirty (30) task orders.” (Id.). The parties also agree that the BJCTA paid Strada for

three of these task orders with federal grant monies: Task Orders 7, 12, and 24.1

The agreement stops there. Relators say that the BJCTA did not negotiate or

assign any task orders under RFQ 15-17 to WRA or Wendel until 2019—long after

the BJCTA awarded Strada Task Orders 7, 12, and 24 (2016–17) and Relators filed

this lawsuit (2018). (Doc. 137 at 6, ¶¶ 19–20).

The BJCTA admits that “Strada received the bulk of the task orders issued

under RFQ 15-17” (doc. 135 at 15) but disputes Relators’ statement that WRA and

Wendel received no task orders from November 2015 through the Fall of 2017 by

pointing to this statement from the declaration of former BJCTA Executive Director

Frank Martin: “Wendel and WRA also received work from the BJCTA as qualified

A&E vendors under RFQ 15-17.” (Doc. 152 at 6, citing 125-1 at 7, ¶ 19).

But the BJCTA does not say when it first gave a task order to WRA or Wendel,

and Martin, as BJCTA’s Rule 30(b)(6) corporate representative, testified that he was

1 Task Order 7 had two parts that were paid with federal grant money: 7a and 7b.

unaware of any work that WRA performed under RFQ 15-17 and that he could not

“recall off the top of [his] head” if Wendel received a contract to do work under RFQ

15-17. (Doc. 125-7 at 67).

Nor does the BJCTA point to any evidence that it negotiated Task Orders 7,

12, or 24 with WRA, Wendel, or any firm other than Strada. To the contrary,

Defendant Murdock, who was BJCTA’s executive director at the time, testified that

Strada drafted Task Orders No. 7, 12, and 24. (Doc. 125-10 at 110–11, 135–57, 181–

84). Strada ended each task order with the sentence, “I authorize Strada Professional

Services LLC to provide the Scope of Work described herein.” (Docs. 87-10, 87-11,

87-12, 87-20, 87-23). Murdock testified that she could not recall negotiating the

price for these draft orders before the BJCTA accepted them and she signed them.

And during Murdock’s deposition, the BJCTA’s counsel stipulated that “beyond

RFQ 15-17, there were no additional public solicitations for Task Orders 1 through

30. . . . And there were no – there was never any RFPs issued.” (Doc. 125-10 at 17,

p. 57:4-20).

Based on the evidence submitted, counsel’s stipulation, and the BJCTA’s

argument about how the Brooks Act works (doc. 135 at 50–52), the court finds for

Rule 56 purposes only that the BJCTA did not negotiate Task Orders 7, 12, or 24

with any firm but Strada.

V. The False Claims Act

So far, the court has laid out the facts that Relators say prove that the BJCTA

violated the Brooks Act. But that gets us only half way because Relators did not file

their claims under the Brooks Act; they sued the Defendants for violating the False

Claims Act. So the court now discusses how the BJCTA’s certification and reporting

requirements interact with the alleged Brooks Act violations. And thanks to the FTA

using different online systems for certifying compliance and seeking payment of

funds—i.e., the ECHO and TrAMS systems—that discussion requires two parts.

1. ECHO / reimbursement: Three sources provided the federal funds that the

BJCTA used to pay Strada for Task Orders 7, 12, and 24: a grant that the FTA

awarded the BJCTA in February 2015 (95-X007) and two repurposed grants that the

FTA originally awarded the BJCTA in 2003 (03-0058) and 2008 (03-0077). The

BJCTA modified the budget descriptions for the repurposed grants to specifically

describe Task Orders 7 and 12. (Doc. 121-5 at 49–50, 79–81).

The Master Agreement between the FTA and the BJCTA required the BJCTA

to use the “Electronic Clearinghouse Operation Web System (ECHO-Web)” to

request the funds to pay Strada. (Doc. 87-35 at 28). The process was simple. The

BJTCA’s grant director—then Stephanie Walker—logged in to ECHO and filled out

these fields:

Payment Request

ECh Ole Vendor fart

TTS 0 SS) □□ earning on-air Trane

Tres Oral Paojee! Mautner Sahubiria

PO dolence lb current aa of om EST ihe previous Busine cay,

IAD Funes Scope Suda Po Balace Ragliti Arai Pishiitn Arai!

ra Fume □□ Groge Sule PO since Baquect drmaunl Ratuir Arrant

Fa foetuses Scope Sue PY ance Bequest Anau = Foeuin Ariraueil

Pr teleps Seog Bulls PO Balance Requent Aroual Pishutn Airreaiint

Fa Humbe Scope Sue Po fa bece Eequec frau Return Arreauat

#0 Wusaber Scope Sutle Po Balce Qiies | Aveaiedl Poth? Arrrailal

(Doc. 125-16 at 5).* Once Walker completed the fields, the ECHO system informed

her that her “payment request [had] been successfully submitted” and gave her a

confirmation number. (/d. at 7). Walker then printed a confirmation that showed her

as the “Requestor” and Executive Director Murdock as the “Approving Official.”

(Id. at 8-9, 12). The ECHO system did not require Walker to certify compliance with

federal statutes or FTA rules or regulations, nor did it require her to describe or make

any other representations about the goods and services that Strada provided.

2. TrAMS / certification: The BJCTA certified compliance with the Brooks

Act through the Transit Asset Management System (“TrAMS”). The FTA created

TrAMS to allow grant recipients to manage their applications and awards, and the

'The fields that require input are PO Number, Scope, Suffix, Request Amount, and Return

Amount. The ECHO system automatically populates the ECN, Date, Vendor Name, Sequence #,

and PO Balance fields. (Doc. 125-16 at 6—7).

Master Agreement required the BJCTA to use TrAMS “to submit its application for

an Award, reports, documents, or other information required by federal law,

regulations, or requirements.” (Doc. 87-35 at 28, 74).

The Master Agreement says that “when procuring architectural engineering

or related services with federal assistance appropriated . . . the Recipient agrees to

comply and assures that each of its Subrecipients will comply with 49 U.S.C. §

5325(b)[,]” which in turn requires compliance with the Brooks Act. (Doc. 87-35 at

52); see also 49 U.S.C. § 5323(n) (“[T]he Secretary shall publish annually a list of

all certifications required under this chapter.”). So, each year, one BJCTA employee

and one BJCTA attorney electronically submitted the requisite “Certifications &

Assurances” form through the TrAMS system, which included a certification that

the BJCTA conducted its procurements in accordance with federal law and

regulations, including the Brooks Act and FTA Circular 4220.1. (Doc. 125-1 at 118–

29).

VI. Lawsuit and FTA Inquiry

1. Relator Culpepper worked for the BJCTA from 2013 until she was fired in

April 2018. Culpepper says that she repeatedly complained to BJCTA employees

and executives that the BJCTA was violating the Brooks Act by awarding sole-

source contracts to Strada and that the BJCTA fired her because of her complaints.

The BJCTA says it fired Culpepper for misuse of a company credit card.

Relator Wren was the chairperson of the BJCTA Board of Directors from

October 2017 until January 2018. Relators Culpepper and Wren filed this lawsuit

under seal with the U.S. Attorney on April 9, 2018.

2. Soon after, the FTA started looking into Strada’s relationship with the City

and the BJCTA. In May 2018, the City told Strada about the inquiry and asked Strada

to stop all work for the City on the BRT Project. In December 2018, the FTA told

the City that it needed to pay back more than $260,000 in federal funds “due to the

fact that no documentation of a competitive procurement for professional services

was provided by the City of Birmingham,” even though “the City of Birmingham

has a procurement and contract administration which provides instruction on

conducting third-party procurements in accordance with the guidance of the FTA

Circular 4220.1F.” (Doc. 125-7 at 269–70). The City returned the grant money to

the government.

The same is not true for the BJCTA. In November 2018, the FTA asked the

BJCTA for confirmation that it had awarded Strada the task orders “in a manner that

complies with FTA Circular 4220 (i.e. that the contractor was selected through a fair

and open competitive process).” (Doc. 125-26 at 7). The BJCTA responded by

sending multiple documents, including RFQ 15-17, the evaluators’ affidavits, and

the BJCTA Board resolution that allowed the BJCTA to sign a contract with the top

three firms. FTA employees reviewed these and other BJCTA documents over the

next few months. Ultimately, the FTA did not impose any penalties or restrictions

on the BJCTA, nor did the FTA require the BJCTA to pay back any money.

STANDARD OF REVIEW

In considering cross-motions for summary judgment, the court views the facts

“in the light most favorable to the non-moving party on each motion.” See Chavez

v. Mercantile Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012). Summary

judgment is appropriate when there is no genuine dispute of material fact and the

moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A

genuine dispute of material fact exists when “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

ANALYSIS

I. Relators’ Motion to Strike (doc. 105)

Before the court jumps into the merits, Relators move to strike or limit the

testimony of BJCTA’s expert witness, Jack Collins, because they say he: (1) recites

legal standards and conclusions, (2) fails to show a specialized methodology that

could help a trier of fact, and (3) lacks the credentials and training necessary to give

expert testimony about A&E procurements. (Doc. 105). The court needn’t rule on

the motion now, however, because—regardless of the court’s decision about Collins’

testimony—the court would reach the same decision on the parties’ motions for

summary judgment. So the court will deny as moot the motion to strike. The Relators

can raise their issues with Collins’ report and testimony again in pretrial motions.

II. Motions for Summary Judgment (docs. 124, 126, 127)

The court now turns to the cross motions for summary judgment. Because

three issues permeate Counts I–V, the court starts by tackling them to simplify

review of the individual counts.

A. The Overarching Issues

Counts I–V allege various violations of the False Claims Act. To prevail on

an FCA claim, Relators must generally prove that the Defendants (1) made a false

statement, (2) with scienter, (3) that was material, and (4) caused the government to

pay out money or forfeit money due. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039,

1045 (11th Cir. 2015). Defendants make arguments on each element that cut across

Counts I–V. The court deals with them here.

1. Payment or Forfeiture of Federal Monies

Relators seek FCA-based penalties for all of the task orders performed by

Strada, not just the task orders that were paid with federal money. (Doc. 155 at 55).

But the “‘sine qua non of a False Claims Act violation’ is the submission of a false

claim to the government.” Urquilla-Diaz, 780 F.3d at 1045. Indeed, each of the four

provisions that Relators say the Defendants violated requires federal money in some

way. Counts I and III rely on 31 U.S.C. § 3729(a)(1)(A), which penalizes presenting

“a false or fraudulent claim,” a term later defined to present a “request or demand

. . . for money or property” from the federal government or a third-party who will

pay with federal funds. 31 U.S.C. § 3729(b)(2)(A). Counts II and III rely on §

3729(a)(1)(B), which penalizes making “a false record or statement material to a

false or fraudulent claim.” Count IV relies on 31 U.S.C. § 3729(a)(1)(G), which

penalizes the failure to pay money owed to the federal government. And Count V

relies on § 3729(a)(1)(C), which penalizes conspiring to commit one of the

previously mentioned sections.

Of the 30 task orders that Strada performed, Relators only present evidence

that Task Order Numbers 7, 7a, 7b, 12, and 24 were paid with federal money. So

only claims related to those task orders can be penalized under 31 U.S.C. § 3729(a).

The court will thus dismiss all counts to the extent that they seek to penalize Strada’s

procurement of Task Order Numbers 1–6, 8–11, 13–23, and 25–30.

2. Falsity & Scienter: The Brooks Act

Counts I–V hinge on the Defendants’ alleged violation of the Brooks Act. If

the Defendants complied with the Brooks Act and FTA Circular 4220.1, which

requires compliance with the Brooks Act, then Relators cannot prove false

statements or scienter, which is knowledge or reckless disregard of a false statement.

A. Falsity: Did the Defendants comply with the Brooks Act?

The Defendants argue that they complied with the Brooks Act because, once

the evaluation committee selected WRA, Wendel, and Strada as the “most highly

qualified” A&E firms under 40 U.S.C. § 1103, Murdock had “broad discretion” to

decide whether WRA, Wendel, or Strada was the “most highly qualified firm” for

each new task order under 40 U.S.C. § 1104. (Doc. 135 at 46–51). So the court

should grant summary judgment, they say, because “it is undisputed that Murdock

selected Strada for Task Order Nos. 7, 7a, 7b, 12, and 24 because she believed Strada

to be the ‘most highly qualified’ A/E firm for those particular task orders.” (Id.

quoting Doc. 125-13 at 5, ¶13). The court disagrees for factual, textual, and policy

reasons. The court takes them in that order.

1. Factual: The Defendants’ proposed fact 42 says, “[I]t is undisputed that

Murdock selected Strada for Task Orders 7, 7a, 7b, 12, and 24 because she believed

Strada to be the ‘most highly qualified’ A/E firm for those particular task orders.”

But Relators do dispute this fact:

42. Denied. Relators deny BJCTA’s assertion that Murdock ‘deemed’

Strada the most highly qualified firm for task orders 7, 12, and 24. It is

undisputed that no requests for proposals were done to make such a

determination. (See Frank Martin’s Deposition, Doc. 125-7; ECF 59;

pp. 222: 2–12; 224: 8–23; 225:1–6).

(Doc. 155 at 12, ¶ 42). They do so with reason. The BJCTA supports proposed fact

42 with a declaration that Murdock signed on the day that evidentiary submissions

were due, not her testimony.3 (Doc. 125-13 at 4). And to say that Murdock

personally “selected” Strada for the task orders “because she believed Strada to be

the most highly qualified” firm contradicts much of her testimony.

For example, saying that Murdock selected Strada based on her judgment of

Strada’s qualifications contradicts her deposition testimony that Strada wrote the

task orders, the Board approved them, and she signed them without negotiation.

(Doc. 125-10 at 110–11; 135–57, 181–84). It also flouts her testimony that the

3 The declaration still contains what looks like a law firm’s document and version number in the

bottom corner.

BJCTA would meet with Strada to discuss the scope of the next project, ask Strada

to draft a task order that carried it out, get back together to edit Strada’s draft, then

allow Strada to draft the final task order that authorized Strada to perform the task.4

(Doc. 125-10 at 10, pp. 29: 8–14, 31: 1–7).

Next, saying that Murdock selected Strada over WRA because she determined

Strada was “the most highly qualified” firm ignores Murdock’s testimony that the

BJCTA Board would not contract with WRA because WRA had fallen out of the

City’s graces—not because of their qualification. For example, here’s how Murdock

responded when Relators asked her why she “spoke directly with Edmond Watters,

the CEO of Strada and didn’t speak to Mr. Ritchey who was a principal at WR&A”:

A. Well I can speculate, but I know that’s not what you want. But

WRA, if you recall, I testified, that because their plan had not been

sanctioned by the City of Birmingham, we were not directed to work

with them. The board of directors made the decision to award the

contract for these specific task orders to Strada. So I’m sure that if I

was speaking with him, it was in reference to the award.

(Doc. 125-10 at 15, p. 51:18–52:3) (emphasis added). When Murdock said, “if you

recall,” she was referring to her earlier testimony that explained the falling out

between the City and WRA:

Q. My first question about these three agreements is this: If all of these

companies were selected to have on-call contracts in October of

2015, why is it that Strada’s contract was entered into with the

4 Each of the task orders ends with the sentence, “I authorize Strada Professional Services LLC

to provide the Scope of Work described herein.” (Docs. 87-10, 87-11, 87-12, 87-20, 87-23).

BCJTA in October of 2015, but the other two contracts were not

entered into until later in 2016? . . .

A. I can only speculate. I cannot remember the specifics. But, again, I’m

following FTA guidelines. Well, as I spoke to you earlier about the

collaboration with the FTA and the City of Birmingham on

supporting the – these – their money supporting these efforts, by this

time, WRA had fallen out of grace with the City of Birmingham,

because to get the TIGER grant, you had to put together a proposal

to, as I said, affect low income neighborhoods. WRA prior to the –

when I was chief of staff, and when they were being supported by the

MPO, they put together a proposal for – for the BRT that took the

route over the mountain. So the City of Birmingham was no longer –

their – their proposal, and what was required for the TIGER grant for

the BRT were now no longer in sync. I think at that time – I don’t

remember the exact timeline -- the City hired STRADA to put

together this plan, so by the time all of this, I’m sure, got to the Board

of Directors, that was why WRA was not probably moved -- given

most of the work, because the plans that had been approved were the

plans approved by the City of Birmingham that – I don’t know when

it could have happened – but were in conjunction with their directive

– their directions for STRADA and the city – city revitalization plan.

That’s what I speculate. I cannot say that that’s exactly what

happened. I do remember that there was a gap in time, because there

was lots of discussion in the board room regarding WRA and their

qualifications now. So again, all of that would be [bared] -- should

be [bared] out if you look at the board minute records.

(Doc. 125-9 at 24, p. 86:23–88:22). Murdock then refuted any suggestion that she

could have selected WRA to perform a Task Order despite the fall out over the

TIGER grant:

Q. All right. So put that to the side. You could – BJCTA still could have

entered into agreements with the WR&A on projects that were not

tied to the TIGER grant, correct?

A. That would have been a decision the Board would have made.

Q. Okay. No, it says – your agreement said that you can negotiate the

contracts. So you were involved in that process as well.

A. I would never make a decision that was counter to the Board’s —

are you saying that I could have just gone on and said, Okay, let’s

give money to WRA?

Q. I’m saying – first, I’m striking that as nonresponsive. Second, I’m

asking you – we just went over your agreement where it says you

negotiate the contracts and you provide oversight on those contracts.

The Board approves the contracts, but you negotiate them. So back

to you as the director –

A. No, sir, no, sir, no, sir, that’s – that’s not true.

(Doc. 125-9 at 32, pp. 118:21 – 119:21).

Plus, saying or insinuating that Murdock “selected” Strada against other firms

that the BJCTA considered for Task Orders 7, 12, or 24 contradicts the BJCTA

counsel’s stipulation that “beyond RFQ 15-17, there were no additional public

solicitations for Task Orders 1 through 30. . . . And there was never any RFPs

issued.” (Doc. 125-10 at 17, p. 57:4-20). Counsel made that stipulation to stop

Relators’ counsel from continuing to ask Murdock the question: “Was there any

public announcement or public solicitation that went out to A&E vendors prior to

the BJCTA awarding Task No. __”? (Id. at 16-17, pp. 56:20 – 57:1). This stipulation

matches the BJCTA corporate representative’s testimony that the BJCTA never

solicited work on RFQ 15-17 from any firm except Strada. (Doc. 125-7 at 58–59,

pp. 223:22–225:6).

To sum up, the court could strike the declaration and corresponding statement

of fact (¶42) because they “contradict[] previous deposition testimony and the party

submitting the [declaration] does not give any valid explanation for the

contradiction.” Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010).

But the court needn’t go that far because, at best for the Defendants, the declaration

creates a fact question whether Murdock contracted with Strada because she found

Strada the “most highly qualified firm” under 40 U.S.C. §1104(b). That reason alone

is sufficient to deny summary judgment on the falsity issue. It’s not the only one.

2. Text: Let’s assume that Murdock awarded Strada the task orders because

she determined that Strada was the “most highly qualified” firm to perform each

task. The Defendants still face the legal question whether Murdock could make that

decision without first negotiating with WRA or Wendel—i.e., the two firms that the

evaluation committee found to be the most and second most qualified A&E firms.

To answer that question, the court must “consider the entire text [of the Brooks

Act], in view of its structure and of the physical and logical relation of its many

parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts § 24, at 167 (2012); see also McNeil v. United States, 563 U.S. 816, 819 (2011)

(“As in all statutory construction cases, we begin with the language itself and the

specific context in which that language is used.”). So the court quotes both §§ 1103

and 1104 in full, highlighting the phrases that mention “qualified” firms:

40 U.S.C. § 1103. Selection procedure

(a) In General.--These procedures apply to the procurement of

architectural and engineering services by an agency head.

(b) Annual Statements.--The agency head shall encourage firms to

submit annually a statement of qualifications and performance data.

evaluate current statements of qualifications and performance data on

file with the agency, together with statements submitted by other firms

regarding the proposed project. The agency head shall conduct

discussions with at least 3 firms to consider anticipated concepts and

compare alternative methods for furnishing services.

(d) Selection.--From the firms with which discussions have been

conducted, the agency head shall select, in order of preference, at least

3 firms that the agency head considers most highly qualified to provide

the services required. Selection shall be based on criteria established

and published by the agency head.

40 U.S.C. § 1104. Negotiation of Contract