PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES ex rel. JOHN
OWENS,
Plaintiff-Appellant,
v. No. 09-1899
FIRST KUWAITI GENERAL TRADING &
CONTRACTING COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Senior District Judge.
(1:06-cv-01386-CMH-TRJ)
Argued: May 13, 2010
Decided: July 16, 2010
Before TRAXLER, Chief Judge, WILKINSON, Circuit
Judge, and Samuel G. WILSON, United States District
Judge for the Western District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Wilson
joined.
2 UNITED STATES v. FIRST KUWAITI GENERAL
COUNSEL
ARGUED: Victor Aronoff Kubli, KUBLI & ASSOCIATES,
PC, Vienna, Virginia, for Appellant. Andy Liu, CROWELL
& MORING, LLP, Washington, D.C., for Appellee. ON
BRIEF: Christian L. Simpson, KUBLI & ASSOCIATES,
PC, Vienna, Virginia, for Appellant. Richard L. Beizer, David
W. O’Brien, CROWELL & MORING, LLP, Washington,
D.C., for Appellee.
OPINION
WILKINSON, Circuit Judge:
Relator John Owens brought this qui tam suit under the
False Claims Act ("FCA"), 31 U.S.C. §§ 3729, et seq., against
First Kuwaiti construction firm, his former employer. He
alleged that the firm billed falsely for deficient work in con-
nection with construction of the U.S. embassy in Baghdad and
that it retaliated against him for actions taken in furtherance
of his FCA contentions. The district court granted summary
judgment to defendant.
The essence of Relator’s claim is that defendant failed to
live up to its contractual obligations. He produced no evi-
dence either of knowing misrepresentations on defendant’s
part or of having been mistreated for any actions taken on
behalf of his FCA claims. We therefore affirm the district
court’s judgment. Congress crafted the FCA to deal with
fraud, not ordinary contractual disputes. The FCA plays an
important role in safeguarding the integrity of federal con-
tracting, administering strong medicine in situations where
strong remedies are needed. Allowing it to be used in run-of-
the-mill contract disagreements and employee grievances
would burden, not help, the contracting process, thereby driv-
ing up costs for the government and, by extension, the Ameri-
can public.
UNITED STATES v. FIRST KUWAITI GENERAL 3
I.
In 2005, the State Department selected defendant, First
Kuwaiti General Trading & Contracting Company, to under-
take construction of a new U.S. Embassy on a sixty-five acre
site in Baghdad. The contracts awarded First Kuwaiti called
for the construction of more than twenty buildings, as well as
major components of the infrastructure at the embassy com-
pound. The parties represent the construction project to be the
largest the State Department had ever undertaken, and the
Department’s Bureau of Overseas Building Operations
("OBO") had more than one hundred of its own personnel on
site, including engineers, supervisors, project managers, and
construction workers. Altogether, the contracts totaled close
to $600 million. First Kuwaiti billed the State Department in
progress payment invoices, as contemplated by the contracts,
beginning in late 2005 and ending in September 2008.
First Kuwaiti hired John Owens as a general construction
foreman in November 2005, shortly after work had begun.
Owens’s primary responsibility, however, was to supervise
the construction of an office building that did not get under-
way until some time the following March. In the interim, he
was given a variety of assignments to perform at different
parts of the embassy site. Almost immediately, Owens says,
he was treated rudely by various people he encountered and
"got disrespected a lot." By June 2006, Owens had evidently
grown dissatisfied with the job and sent an email resigning his
position. He says he did so because of the lack of respect
shown toward him and because of his objection to the way the
company treated its third country national workers. At the
time, he was considering filing a mechanic’s lien, believing
that First Kuwaiti owed him "Salary and Iraq Pay."
In December 2006, Owens filed an FCA qui tam suit
against First Kuwaiti, alleging that the company had
defrauded the government by billing for defective work and
that it retaliated against him for investigating possible FCA
4 UNITED STATES v. FIRST KUWAITI GENERAL
wrongdoing. He claimed that he had witnessed a number of
"construction mistakes" at the embassy site, which he had
brought to the attention of First Kuwaiti employees. He also
included a breach of contract claim in which he alleged that
First Kuwaiti had wrongfully withheld pay from him.
Owens’s fraud allegations triggered the U.S. government’s
obligation to investigate his claims and to determine whether
to intervene in the case. See 31 U.S.C. § 3730(a). The govern-
ment commissioned an independent expert to look into the
matter, resulting in a document known as the Collins Report.
See Report of Johns & Bhatia Engineering Consultants, Ltd.
(Dec. 12, 2007) ("Collins Report"). Completed in December
2007, the Collins Report concluded that "the quality of work-
manship at the NEC Baghdad site is comparable to that found
in the United States for a similar size and type of project.
Defects found in the structure were minor and not unexpected
for a project of this size and they have been repaired." Id. at
10. First Kuwaiti, which had requested a final inspection of its
work in October 2007, was granted certificates of final accep-
tance from OBO in April 2008. Shortly afterwards, the gov-
ernment formally elected not to intervene in Owens’s suit.
In November 2008, Owens’s breach of contract claim was
dismissed with prejudice because of a forum selection clause.
His FCA false claims and false statements allegations were
dismissed without prejudice for failure to plead fraud with
particularity as required by Fed.R.Civ.P. 9(b). He filed an
amended complaint several weeks later. His amended com-
plaint leveled eight different allegations of fraud at First
Kuwaiti and contended that, as a result, the invoices and
accompanying documentation First Kuwaiti submitted to the
government constituted false claims or statements under the
FCA. He also repeated his earlier retaliation allegations. Fol-
lowing extensive discovery, First Kuwaiti moved for sum-
mary judgment. In responding to First Kuwaiti’s motion,
Owens abandoned four of his original allegations of fraud but
added several new ones on the basis of materials received in
UNITED STATES v. FIRST KUWAITI GENERAL 5
discovery. After a hearing, the district court granted First
Kuwaiti’s motion for summary judgment in its entirety. This
appeal followed.
II.
We review the grant of summary judgment de novo. Nader
v. Blair, 549 F.3d 953, 958 (4th Cir. 2008). Summary judg-
ment is appropriate if "there is no genuine issue as to any
material fact" and First Kuwaiti "is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). In making this determina-
tion, we must view all facts and reasonable inferences in the
light most favorable to Owens, the non-moving party. Battle
v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir. 2002).
The FCA provides that suit may be brought against anyone
who "knowingly presents" to the government "a false or
fraudulent claim for payment or approval." 31 U.S.C. §
3729(a)(1). It similarly allows suit against anyone who
"knowingly makes . . . a false record or statement material to
a false or fraudulent claim." Id. at § 3729(a)(1)(B).* In adopt-
ing the FCA, "the objective of Congress was broadly to pro-
tect the funds and property of the government." Rainwater v.
United States, 356 U.S. 590, 592 (1958).
The FCA’s scienter requirement does not demand "specific
intent to defraud" and can be satisfied by proving only "reck-
less disregard of the truth or falsity of the information." Id.
*The parties differ as to whether amendments to the FCA recently
enacted by Congress apply to the false statements portion of Owens’s suit.
See Fraud Enforcement and Recovery Act, Pub. L. No. 111-21, § 4, 123
Stat. 1617, 1621; compare Hopper v. Solvay Pharmaceuticals, Inc., 588
F.3d 1318, 1327 n.3 (11th Cir. 2009) with United States ex rel. Kirk v.
Schindler Elevator Corp., 601 F.3d 94, 113 (2d Cir. 2010). Because we
ultimately conclude that Owens’s claim fails in any event, we shall assume
that the amended version, under which Owens need not prove First
Kuwaiti sought "to get a false or fraudulent claim paid or approved,"
applies. 31 U.S.C. § 3729(a)(2).
6 UNITED STATES v. FIRST KUWAITI GENERAL
§ 3729(b). Congress, however, has made plain "‘its intention
that the act not punish honest mistakes or incorrect claims
submitted through mere negligence.’" United States ex rel.
Hochman v. Nackman, 145 F.3d 1069, 1073 (9th Cir. 1998)
(quoting S.Rep. No. 99-345, at 7 (1986)). This is because
"[t]he FCA is a fraud prevention statute." United States ex rel.
Lamers v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir.
1999); see also Allison Engine Co. v. United States ex rel.
Sanders, 553 U.S. 662, 128 S.Ct. 2123, 2130 (2008). It does
not allow a qui tam relator to "shoehorn what is, in essence,
a breach of contract action into a claim that is cognizable
under the False Claims Act." United States ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 373 (4th Cir.
2008).
To avoid summary judgment on his false claims and false
statements allegations, Owens must create a genuine issue of
fact showing: (1) that First Kuwaiti made a false statement or
engaged in a fraudulent course of conduct; (2) that such state-
ment or conduct was made or carried out with the requisite
scienter; (3) that the statement or conduct was material; and
(4) that the statement or conduct caused the government to
pay out money or to forfeit money due. See United States ex
rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d
908, 913 (4th Cir. 2003) (Harrison II). We discuss the appli-
cation of this standard to Owens’s various allegations seria-
tim, beginning with those related primarily to construction
defects raised in his amended complaint.
A.
1. Use of Concrete
Owens alleges that First Kuwaiti violated the FCA by bill-
ing for substandard concrete work. Owens points to the fact
that some of First Kuwaiti’s concrete work subsequently
needed to be repaired and to statements from First Kuwaiti’s
quality control personnel who expressed concern that concrete
UNITED STATES v. FIRST KUWAITI GENERAL 7
was occasionally arriving at job sites too far in advance of
when it was to be poured, which could negatively affect its
quality.
But such occurrences do not, at least in the context of the
record of this case, establish a false claim, much less a know-
ingly false one. As the Collins Report concluded, work on the
Baghdad site "was comparable to work performed in the
United States for typical similar type concrete structures" and
any problems with the concrete work were "minor and not
unexpected." Collins Report at 9. It would be remarkable if,
on a project of this magnitude and scale, there were not some
issues that quality control personnel would want to bring to
supervisors’ attention. That is after all what a quality control
department exists to do. It would be no less remarkable — on
a $600 million war-zone project which called for First
Kuwaiti to pour an estimated 130,000 cubic meters of
concrete—if there were not some construction work that
required subsequent remediation. In fact, the embassy con-
tracts anticipated the need to repair concrete problems and
provided a mechanism for doing so.
To support an FCA claim, there needs to be something
more than the usual back-and-forth communication between
the government and the contractor over this or that construc-
tion defect and this or that corrective measure. Such alto-
gether routine dialogue is a far cry from fraud. Here there is
ample evidence that, in the words of OBO Director General
Charles Williams, First Kuwaiti has never had "any shyness
on correcting what we bring to their attention." Nor is there
any suggestion that First Kuwaiti billed for work it knew to
be defective. As Williams put it, "They want to get it right.
They have tried very hard to get it right."
Furthermore, the site was full of OBO personnel and OBO
inspectors routinely examined and approved First Kuwaiti’s
work. Evidence that the government officials were aware of
any alleged defects and accepted First Kuwaiti’s work any-
8 UNITED STATES v. FIRST KUWAITI GENERAL
way "effectively negates the fraud or falsity required by the
FCA." United States ex rel. Becker v. Westinghouse Savannah
River Co., 305 F.3d 284, 289 (4th Cir. 2002) (quoting United
States ex rel. Durcholz v. FKW, Inc., 189 F.3d 542, 545 (7th
Cir. 1999)). OBO was extensively involved in First Kuwaiti’s
activities and signed off on "construction mistakes" Owens
alleges First Kuwaiti committed. It continued to express satis-
faction with First Kuwaiti’s work even after hiring an outside
expert to investigate his claims. In other words, the record
does not establish that the government was misled by First
Kuwaiti.
2. Rebar Sizing
Owens also alleged in his amended complaint that First
Kuwaiti at times used reinforcing steel rods in its concrete—
known as "rebar"—that were larger than building plans called
for. We do not think, however, that these allegations rise to
the level of a genuine dispute over material fact. The Collins
Report concluded it was "highly likely that the correct size
rebar were used during construction as the rebar was fabri-
cated based on approved shop drawings and each ‘concrete
pour’ was inspected and signed off [on] by representatives of
both First Kuwaiti and OBO." Collins Report at 3. Likewise,
the Director of Construction for OBO at the site stated that
"Mr. Owens’ allegations about use of the wrong size rebar are
not correct. First Kuwaiti was permitted under industry prac-
tices to use larger size rebar than was called for in design
plans. I was aware in Baghdad that First Kuwaiti on occasion
substituted larger size rebar. That substitution did not nega-
tively affect the structural integrity of concrete walls."
Owens offered nothing to contradict this evidence. All he
pointed to was his own conclusory statement that he had "wit-
nessed columns being poured with the wrong size metal
inside of them" and that he had seen concrete poured for
structures with fewer rebar loops than design plans called for.
He also disputed that the government had in fact inspected the
UNITED STATES v. FIRST KUWAITI GENERAL 9
rebar before each concrete pour. Given uncontroverted evi-
dence that the rebar practices he complains of were unproble-
matic in the sense of being contemplated under the contracts
or knowingly ratified and approved by OBO, Owens’s allega-
tion that First Kuwaiti used rebar larger than the contracts
specified are at most allegations over construction methodol-
ogy. What Owens’s allegations do not raise is an issue of tri-
able fact on the possibility that First Kuwaiti somehow
dissembled in billing for its concrete work and submitted
actionable false claims. Furthermore, Owens has pointed to no
evidence suggesting that First Kuwaiti was billing the govern-
ment for work it knew to be substandard or for work it knew
it had not done. Indeed, First Kuwaiti generally requested that
OBO inspect the rebar before its concrete pours, even if, as
Owens contends, such inspections did not always take place.
See Collins Report at 3.
3. Perimeter Wall Height
Owens alleged that the perimeter wall First Kuwaiti built
around the complex was not high enough in places. Again,
however, the State Department’s own inspection and investi-
gations found otherwise. In November 2007, OBO noted that
the perimeter wall height "has been verified by our accredita-
tion team that recently visited the site. . . . The bottom line is
that the Baghdad perimeter wall meets the design criteria."
The only evidence Owens offers is a finding expressed in
a preliminary draft of the Collins Report that the wall was less
than the required height in two places. See Collins Report at
1 (noting earlier finding). Not only was this assertion dis-
avowed in the final version, but at the time of the inspection
on which the preliminary draft was based, grading at the face
of the wall had not yet been completed. See id. As the draft
itself noted, the height of the wall could change once grading
was finished. With grading unfinished, it is difficult to say
whether height issues within the range that grading could
account for could possibly be said to be false. And even if it
10 UNITED STATES v. FIRST KUWAITI GENERAL
were true that First Kuwaiti had billed for a wall built to the
wrong height, there is no evidence it did so knowingly. To the
contrary, Owens conceded that First Kuwaiti "verified the
height of the perimeter wall every twenty meters" to ensure
that it met contractual requirements.
4. Security Items
First Kuwaiti was obligated to supply certain security
items, such as metal detectors, motion sensors, security cam-
eras, car inspection mirrors, and flashlights. Owens alleged
that First Kuwaiti supplied items that were the wrong brand
or poor quality. First Kuwaiti, however, offered uncontra-
dicted evidence that it obtained permission from OBO to pro-
vide the equipment that it did. The OBO official who served
as head of security for the embassy project explained that
"First Kuwaiti was permitted to supply this material from
local sources, and if any First Kuwaiti equipment broke or
was not functional, replacements were available. The small
security items that First Kuwaiti provided did not compromise
security."
In response, Owens contends that permission to provide the
items in question was not granted by the right OBO official.
First Kuwaiti disputes this, but even if it were true, it would
hardly lead to the conclusion that First Kuwaiti’s invoices
purported to bill for something other than what First Kuwaiti
delivered. Moreover, given the absence of any showing of bad
faith on First Kuwaiti’s part, there is no basis to conclude that
those invoices were knowingly false.
B.
We turn next to the additional allegations Owens made at
summary judgment, which related to the fire protection sys-
tem in one of the embassy buildings, certain billing issues,
and First Kuwaiti’s October 2007 request to OBO for a final
inspection of its work.
UNITED STATES v. FIRST KUWAITI GENERAL 11
1. Fire System
Owens points to evidence suggesting that First Kuwaiti’s
work in installing a fire protection system at the embassy was
substandard. This allegation fails for several reasons. To
begin with, his amended complaint did not mention the fire
system or anything like it, and it is well established that a
plaintiff may not raise new claims after discovery has begun
without amending his complaint. See Wahi v. Charleston Area
Medical Center, Inc., 562 F.3d 599, 617 (4th Cir. 2009) (cita-
tions omitted). Under the heightened pleading standard appli-
cable to fraud claims under Fed.R.Civ.P. 9(b), "an FCA
plaintiff must, at a minimum, describe the time, place, and
contents of the false representations, as well as the identity of
the person making the misrepresentation and what he obtained
thereby." Wilson, 525 F.3d at 379 (internal quotation marks
omitted).
Owens argues that since he satisfied Rule 9(b) with respect
to some of his allegations, he should now be free to make his
new claims. Rule 9(b), however, has not been given such a
limited scope. See Harrison II, 352 F.3d at 921-22 (rejecting
Rule 9(b) objection to "new allegations" only after concluding
that the complaint had indeed provided adequate notice and
that the claims were not premised on information obtained
through discovery); see also Puerto Rico Elec. Power Auth.
v. Action Refund, 515 F.3d 57, 63 n.4 (1st Cir. 2008); United
States ex rel. Walker v. R & F Properties, Inc., 433 F.3d
1349, 1359 n.5 (11th Cir. 2005); Koch v. Koch Industries,
Inc., 203 F.3d 1202, 1236-38 (10th Cir. 2000); Samuels v.
Wilder, 871 F.2d 1346, 1351 (7th Cir. 1989). Rule 9(b) plays
an especially important role in the context of FCA qui tam
actions. For one thing, the complaint must give the govern-
ment adequate information about the nature of the suit to
investigate and decide whether to intervene. See United States
ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220,
231 (1st Cir. 2004). For another, "a qui tam plaintiff, who has
suffered no injury in fact, may be particularly likely to file
12 UNITED STATES v. FIRST KUWAITI GENERAL
suit as a pretext to uncover unknown wrongs." Id. (internal
quotation marks omitted).
Even if allegations concerning the fire system could now be
raised, Owens produced no evidence that First Kuwaiti
engaged in some form of deceit. He points to an email
exchange that, he claims, supports the conclusion that First
Kuwaiti was attempting to conceal defects in the fire system
from OBO. But the email shows nothing of the kind. In it, a
First Kuwaiti supervisor agrees with a construction crew
working on an embassy building that they should "halt all the
fixation of works" in the building, replace ceiling tiles, and
"clean all shafts that have been fixed," because OBO inspec-
tors were coming the next day to test the fire system—the
point being that the fire inspection could not go forward if
other work in the building was going on.
This does not suggest fraud. The email did not propose
concealing any aspect of the fire system and it does not sug-
gest that First Kuwaiti knew of any deficiency in the fire sys-
tem. What is more, the supervisor who approved what Owens
would like to depict as a cover-up is the same man he contin-
ues to laud as one of "the finest people I have ever worked
with." Indeed, the fact that "fixation of works" was taking
place points, if anything, to the conclusion that the crew was
trying to ensure that its performance was satisfactory, not to
fob off defective work on the government. In short, the smok-
ing gun Owens claims to have uncovered shoots only blanks.
2. Progress Payment Computations
Next, we consider Owens’s contention that First Kuwaiti
overstated the amount of work it had performed in its progress
payment invoices. Owens did not include any allegations
about overstating construction progress in his complaint.
Although he did accuse First Kuwaiti of "overcharging" the
State Department, this was clearly in reference to the com-
plaint’s more specific allegations (many of which he later
UNITED STATES v. FIRST KUWAITI GENERAL 13
abandoned) about billing for work that was never performed,
that was deficient, or that had not been called for under the
contracts. Accordingly, his billing allegations could not now
be used to avoid summary judgment.
Even setting this objection aside, however, Owens identi-
fies no evidence that could support the conclusion that First
Kuwaiti violated the FCA by overstating its progress. The
progress payment invoices it submitted were only estimates.
Owens argues that they were for actual work completed, but
the only evidence he points to—the fact that the invoices con-
tained terms like "completed %" and did not use the word
estimate—does not speak to whether the invoices were esti-
mates or not. Other indications, however, are clear. Not only
are progress payments based on estimates the norm in the
construction context, but the embassy contracts incorporated
Federal Acquisition Regulation clause 52.232-5(b), which
provides that the "Government shall make progress payments
. . . on estimates of work accomplished which meets the stan-
dards of quality established under the contract, as approved by
the Contracting Officer." 48 C.F.R. § 52.232-5(b). The con-
tracts also provided that after request for payment was made,
"on the basis of an inspection of the work, [an OBO represen-
tative] shall make a determination as to the amount which, in
his/her opinion, is then due."
Estimates are not exempt from FCA scrutiny, of course, but
to qualify as knowingly false claims for FCA purposes, an
estimate must be made by one who either knows of no facts
that would support the estimate or has knowledge of facts that
preclude the estimate. Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 792 (4th Cir. 1999) (Harrison I).
Owens provided no such evidence. The fact that OBO later
revised some of the invoices downward is hardly dispositive.
OBO itself has stated that "rejecting an invoice does not nec-
essarily indicate that it was submitted fraudulently," giving as
an example a situation "where a contractor bills us for a prog-
ress payment but we do not agree with the percentage of the
14 UNITED STATES v. FIRST KUWAITI GENERAL
work completed." OBO Internal Mem. to General Charles E.
Williams, 1-2 (Aug. 2, 2005). Again, it is not surprising that
there would be some billing disagreements, particularly in a
project of this magnitude.
Owens also points to evidence indicating that First Kuwaiti
billed for design work without first getting government
approval of its designs, as required by the contract. But this
hardly amounts to billing for work that was "never" com-
pleted, as Owens maintains, and in any event, every allegation
of breach of contract does not constitute fraud. Owens also
alleges that First Kuwaiti overstated its progress reports under
one contract that had been modified to remove the construc-
tion of a warehouse and motor pool facility, which had origi-
nally been included in the contract. There is no dispute that
First Kuwaiti properly reduced its total bill for the contract to
deduct the value of the deleted project. Nonetheless, Owens
contends that First Kuwaiti submitted false bills because it did
not adjust the line items on which its progress payments were
based to reflect the fact that the project had been excised. It
is not clear, however, that this actually resulted in any prema-
turely accelerated claims. More to the point, Owens has not
offered evidence showing this to be anything more than negli-
gence on First Kuwaiti’s part. The error, if error there was,
was in plain view on the invoices. There was no deception
involved. At most there was an oversight that OBO and First
Kuwaiti alike committed.
3. Request for Final Inspection
Finally, we address one set of allegations particular to
Owens’s false statements count. On summary judgment,
Owens contended that First Kuwaiti’s request to OBO for a
final inspection of its work constituted an actionable false
statement, insofar as OBO later identified problems with the
fire system and embassy water treatment facilities. Once
again, however, this claim could not be used to avoid sum-
mary judgment, since neither the inspection request, nor the
UNITED STATES v. FIRST KUWAITI GENERAL 15
fire system, nor the water treatment plant was mentioned in
Owens’s amended complaint.
Moreover, on the merits, the allegations were unsupported.
We doubt seriously that an inspection request could be said to
constitute a false statement and at any rate there was no evi-
dence that any falsity was knowing. A contractor’s estimate
of his workmanship may indeed differ in its particulars from
that of the party that hired him. But the inspection process
provides an opportunity for the parties to sort their differences
out. What the request for inspection certified was that the
project was ready for inspection. It is too facile to suggest that
First Kuwaiti was warranting that the inspection it was
requesting would result in unqualified acceptance of every
aspect of its work on the embassy project.
Finally, Owens cannot point to a false claim to which this
allegedly false statement was material. A relator still "must
show that the government paid a false claim to prove a viola-
tion" of the false statement or record provision of the FCA.
Hopper, 588 F.3d at 1328; see also Harrison I, 176 F.3d at
785 ("[T]he False Claims Act at least requires the presence of
a claim—a call upon the government fisc—for liability to
attach."). For the reasons discussed, First Kuwaiti has not
been shown to have submitted any false claim. And, what is
more, the government had no intention of remunerating First
Kuwaiti as a result of the inspection request until it was satis-
fied with the results of the requested inspection.
C.
The sorts of allegations Owens makes are not ones that we
take lightly. But neither is their accuracy a conclusion that
may lightly be reached. To be entitled to a trial on his claims,
Owens was obliged to come forward with evidence that First
Kuwaiti knowingly made false representations. He largely
failed to show that First Kuwaiti’s claims and statements were
arguably false and he failed entirely to show that First
16 UNITED STATES v. FIRST KUWAITI GENERAL
Kuwaiti either had actual knowledge or recklessly disregarded
the possibility of its billing for work that was anything other
than was claimed. What Owens has presented are garden-
variety issues of contractual performance—in this case, under
a series of complex contracts pertaining to a construction
project of massive scale.
There is a difference between a false statement sufficient to
support a claim of fraud, on the one hand, and honest dis-
agreements, routine adjustments and corrections, and sincere
and comparatively minor oversights, on the other. "Bad math
is no fraud, proof of mistakes is not evidence that one is a
cheat, and the common failings of engineers and other scien-
tists are not culpable under the Act." Hagood v. Sonoma
County Water Agency, 81 F.3d 1465, 1478 (9th Cir. 1996)
(internal quotation marks omitted). Likewise, "[a]n FCA rela-
tor cannot base a fraud claim on nothing more than his own
interpretation of an imprecise contractual provision." Wilson,
525 F.3d at 378.
The FCA represents "Congress’ efforts to protect the Gov-
ernment from loss due to fraud." Allison Engine Co., Inc. v.
United States ex rel. Sanders, 553 U.S. 662, 128 S.Ct. 2123,
2130 (2008). The statute is intended to protect the treasury
against the claims of unscrupulous contractors, and it must be
construed in that light. S.Rep. No. 99-345, at 11 (1986). But
"it just as surely cannot be construed to include a run-of-the-
mill breach of contract action." Wilson, 525 F.3d at 378.
Allowing a remedy for fraud to be put to such use—
particularly when the party invoking it is an uninjured third
party—also drives up the costs of contracting for the govern-
ment. Worse still, it threatens to penalize good faith disagree-
ments over matters of commercial judgment. To push the
FCA beyond its proper boundaries is thus to invite the pros-
pect of pervasive litigation that would discourage many per-
fectly honest companies from wanting to do business with the
United States.
UNITED STATES v. FIRST KUWAITI GENERAL 17
In this case, Owens’s allegations of fraud must be viewed
in the context of the close working relationship between First
Kuwaiti and OBO throughout the construction of the embassy
compound. See Becker, 305 F.3d at 288-89. This is not a case
where a contractor was left to its own devices to complete a
government project with only its commercial conscience as its
guide. This was a project that the government was heavily
invested in—both because of its cost and because of the
importance of making sure the job was done right. The State
Department wanted an embassy that functioned well, and it
wanted, above all, for its personnel to be safe. Inspectors were
called in at every stage, government engineers were on site,
and Owens’s allegations were thoroughly investigated. The
government may rightly have issues with aspects of First
Kuwaiti’s performance. The merit of such complaints is not
for us to say. What is evident, however, is that Owens has not
shown anything rising to the level of an FCA violation on
First Kuwaiti’s part.
From the beginning, Owens’s allegations have been in a
state of metamorphosis. His original grievance was with the
way First Kuwaiti treated its workers—including himself—
and his plan was to sue to recover pay he felt he was owed.
These concerns soon gave way to one set of fraud allegations
that in due course was largely supplanted by another. The
impression—of a suit in search of a wrong, rather than a
wrong in search of a verdict—is borne out by the fact that
Owens has not produced any evidence of deceit on First
Kuwaiti’s part. Plaintiff’s strategy seems to be to throw as
many allegations as it can against the wall in the hope one of
them will stick, an approach at odds with the purposes of the
FCA. A litigant is not entitled to a trial simply by dint of
determination.
III.
We turn finally to Owens’s separate allegations that First
Kuwaiti retaliated against him for his efforts to investigate
18 UNITED STATES v. FIRST KUWAITI GENERAL
possible FCA wrongdoing. The FCA’s whistleblower provi-
sion provides a cause of action to any employee who is "dis-
criminated against" by his employer "because of lawful acts
. . . in furtherance of" an FCA suit. 31 U.S.C. § 3730(h). To
defeat summary judgment on his retaliation allegations,
Owens had to establish a genuine issue of fact showing (1)
that he took acts in furtherance of an FCA suit; (2) that First
Kuwaiti knew of those acts; and (3) that First Kuwaiti treated
him adversely because of these acts. See Zahodnick v. IBM
Corp., 135 F.3d 911, 914 (4th Cir. 1997). Here again, he
failed to make the necessary showing.
The district court held correctly that Owens had not pro-
duced evidence showing that he took any acts "in furtherance
of" an FCA suit during his time with First Kuwaiti—that is,
that he engaged in so-called "protected activity." See Eber-
hardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 866
(4th Cir. 1999). Owens claims that he was conducting an
investigation into possible fraud when he noted "construction
mistakes" to First Kuwaiti and OBO employees. See 31
U.S.C. § 3730(h). This, however, does not constitute FCA
protected activity. "Simply reporting his concern of a mis-
charging to the government to his supervisor does not suffice
to establish that [an employee] was acting ‘in furtherance of’
a qui tam action." Zahodnick, 135 F.3d at 914. A protected
activity need not indicate that an actual FCA suit was being
contemplated, but it must evince some attempt to expose pos-
sible fraud. "An employer is entitled to treat a suggestion for
improvement as what it purports to be rather than as a precur-
sor to litigation." Luckey v. Baxter Healthcare Corp., 183
F.3d 730, 733 (7th Cir. 1999). For activity to rise above the
level of ordinary critique and constitute a step in preparation
for an FCA claim, there must be some suggestion of impropri-
ety or illegality by the employer that the employee is attempt-
ing to uncover. The record contains none.
Any large enterprise depends on communication, so it is
hardly surprising that Owens at times reported problems he
UNITED STATES v. FIRST KUWAITI GENERAL 19
thought he saw on the site. That he did so does not, of itself,
indicate an investigation into possible wrongdoing. We may
assume that, like First Kuwaiti, Owens wanted the job done
right. As a professional, he was unwilling to countenance
work that he thought fell short of the standards that should be
met. A desire to see that a client gets its money’s worth is, or
at least ought to be, routine. As Owens himself put it, "When
I saw something that I thought was wrong . . . or if there were
mistakes made, yeah, it was my job title to point them out."
And in fact the record provides every indication that Owens
was not thinking about fraud and that his actions were entirely
quotidian. In announcing his resignation, for instance, he
praised various colleagues for their professionalism. And he
has candidly admitted that he probably would not have
brought his qui tam action if First Kuwaiti had paid him the
money he thought he was owed.
In addition, there is no evidence that First Kuwaiti treated
him adversely "because of" his actions. Owens claims that the
company retaliated against him by shifting him from assign-
ment to assignment. But he has not produced evidence to
show either that the company believed he was attempting to
uncover fraud or that such belief was the reason it changed his
assignments. Indeed, his own email of resignation stated that
during his time on the embassy project, he "did not make any
problems or complain because of my loyalty" to First
Kuwaiti. The innocent explanation for the treatment he
received is the plausible one: Owens was shifted around
because the project he was hired to work on was not yet ready
to begin. Owens also describes how an engineer on site "dis-
respected" him after he criticized the way some concrete was
being poured, telling him, in Owens’s words, "‘F you, I know
what I’m doing, blah, blah, blah . . .’" To suggest that a co-
worker’s taking umbrage at Owens’s criticism of his work is
sufficient to show that First Kuwaiti was attempting to punish
Owens for investigating fraud borders on the frivolous.
Whistleblowing in response to possible fraud, like fraud
itself, is a serious matter. In the case before us, however, the
20 UNITED STATES v. FIRST KUWAITI GENERAL
hallmarks of whistleblowing activity are missing. Owens evi-
dently is an employee with complaints—perhaps legitimate,
perhaps not—about the way he was treated at a far-away con-
struction site where all involved were working under difficult
conditions to accomplish difficult goals. Whatever other con-
clusions the record could support, it gives no indication
Owens was concerned about fraud while he was working for
First Kuwaiti or that the treatment he complains of was driven
by fear that he was laying the groundwork for a suit like this
one.
IV.
For the foregoing reasons, the district court did not err in
granting First Kuwaiti summary judgment. The judgment is
hereby
AFFIRMED.