The Law Firm of Piacentile, Stefanowski & Malherbe LLP

Set-Aside Contract Fraud and the Recent Trimark Settlement

On February 23, 2022, the DOJ reached a settlement that constitutes “the largest-ever False Claim Act recovery based on allegations of small business contracting fraud” against TriMark USA for improperly manipulating federal small business set aside contracts. The kitchen and food services equipment supplier agreed to pay a whopping $48.5 million to resolve these allegations. A former TriMark executive in charge of the company’s government business, Kimberley Rimsza, also agreed to pay an additional $100,000 as an individual civil penalty for her conduct in connection with the scheme.

These federal government contracts may be reserved, or “set aside,” for various categories of small businesses, such that only eligible small businesses in a particular socioeconomic category are eligible to bid on, received, and perform the contracts. For example, service-disabled, veteran-owned small businesses (SDVOSB), which these contracts are reserved for small businesses owned and operated by veterans of the US military.

As part of the Settlement Agreement, TriMark admitted that one of its subsidiaries identified federal set aside contracts opportunities for the small businesses to bid on using their set-aside status, dictated how to prepare their bids, what prices to propose, and ghostwrote emails to companies to send to government officials and make it appear as those small businesses were performing work that TriMark subsidiary was truly performing. These false statements fraudulently induce the government to award contracts to entities that do not meet the specific criteria to receive those contracts.

Whistleblowers play an important role in the government’s way of stopping these fraudulent schemes and help provide a level playing field for small businesses to compete to obtain government contracts. In this case, the Whistleblower will receive an award of 10.9 million.

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