MEMORANDUM OPINION AND ORDER

BARBARA M.G. LYNN, United States District Judge

Before the Court are three Motions to Dismiss, filed on October 11, 2002, by Defendant Johnson Controls, Inc. ("Johnson Controls"), Defendants Westinghouse Hanford Company and Viacom (together, "WHC"), and Defendant Northeast Energy Services Company ("NORESCO"). In a single document, Relator responded to the three Motions on October 31, 2002, and each of the Defendants replied to the Response on November 15, 2002.

I. Factual Background

Relator, Brian Barrett, is the sole proprietor of Industrial Energy Consulting ("Industrial"), alleged to be a potential contractor for certain energy-related government projects. Relator brought this qui tam action for alleged violations of the False Claims Act ("FCA"), the Sherman Act, and the 1986 Anti-Kickback Act, and also asserted various common law theories. The United States declined to intervene. Johnson Controls moves to dismiss the FCA action for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) or, in the alternative, for failure to plead fraud with particularity under Rule 9(b). NORESCO moves to dismiss the FCA claim for failure to state a claim under Rule 12(b)(6), or in the alternative, for failure to plead fraud with particularity under Rule 9(b). WHC moves to dismiss the FCA claim for failure to state a claim under Rule 12(b)(6) on statute of limitations grounds and, in the alternative, for failure to plead fraud with particularity under Rule 9(b). All three of these Defendants move to dismiss the Sherman Act cause of action and to dismiss the common law and Anti-Kickback Act claims for lack of standing. No motion to dismiss has been filed by Defendant ICF-Kaiser International, Inc. ("ICF-Kaiser"), nor has one been filed on behalf of the unnamed Defendants.

The Energy Policy Act of 1992 authorizes federal agencies to use energy savings performance contracts ("ESPCs") to reduce energy costs and meet federal energy goals. Department of Energy ("DOE") regulations require DOE to maintain a list of contractors qualified to perform ESPCs. A 1999 Executive Order revised the federal agency energy savings goals and defined an ESPC as a "contract that provides for the performance of services for the design, acquisition, financing, installation, testing, operation, and where appropriate, maintenance and repair, of an identified energy or water conservation measure or series of measures at one or more locations."

The first ESPC involved modernizing the steam systems at the plutonium production complex known as the Hanford Site. WHC, and its subcontractor, ICF-Kaiser, had operated and maintained the steam systems at the site. In 1995, DOE issued a request for proposals (RFP) for the Hanford Site ESPC. Johnson Controls was ultimately selected as the contractor. Prior to being awarded the Hanford Site ESPC, Johnson Controls, as a subcontractor, conducted a facilities study of the Hanford Site. The facilities study authored by Johnson Controls was included in the documents attached to the RFP for the Hanford Site ESPC.

In 1997, the Environmental Protection Agency ("EPA") issued an RFP for an ESPC for the EPA National Vehicle and Fuel Emission Laboratory ("EPA Site ESPC"). NORESCO was awarded the EPA Site ESPC.

DOE also developed a Super ESPC program, by which DOE preselects multiple contractors to serve a specific region. Federal agencies may negotiate with any contractor preselected by the DOE. Johnson Controls was preselected as one of the contractors for the Western Region Super ESPC.

An interested party may file a bid protest, or written objection, to an RFP or an award of a contract by the federal government. Relator, in the name of Industrial, filed a bid protest with the General Accounting Office, attacking the contents of the RFP issued by DOE in connection with the Western Region Super ESPC ("1997 Bid Protest").

II. False Claims Act

A. Overview of Allegations

Relator alleges that Defendants' conduct violates the FCA in three respects. First, Relator alleges that Defendants knowingly presented to the United States false or fraudulent claims for payment. Second, Relator contends that Defendants knowingly made or used, or caused to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the federal government. Third, Relator alleges that Defendants knowingly made, used, or caused to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the United States.

Relator's basic contention is that Defendants misrepresented, to various agencies of the federal government, that their services would result in "energy savings," as that term is defined in the Energy Policy Act of 1992. Thus, Relator alleges that Defendants are guilty of a type of bait and switch — the Defendants represented that their services would provide energy savings, but ultimately Defendants offered only energy construction services. According to Relator, the construction services provided little or no true energy savings to the government.

The Complaint accuses the Defendants of submitting false statements to the government, including (1) false technical data relating to electric power, water, fuels, steam, related pollution generation, transportation, disposal of wastes, equipment, maintenance, operations, demolition, disposal, general, administrative, or overhead expenses; (2) false financial data; and (3) false savings data.

According to Relator, these alleged false statements are evidenced by (1) proposals Defendants submitted in response to RFPs, (2) cost reports or reimbursement requests submitted by Defendants after being awarded government contracts, and (3) certifications Defendants made in connection with their proposals or other submissions as government contractors. Relator also alleges that solicitations and RFPs issued by the government contained false statements.

The Complaint provides generalized examples of Relator's allegations, which "[i]ncorporat[e], but [are] not limited to," the RFP for the Hanford Site RFP, the RFP for the Western Region Super ESPC, and the RFP for the EPA Site. Most of the examples of alleged false statements are not attributed to any individual or entity. Instead, Relator seems to be alleging that the specifications contained in the RFPs are false. For example, paragraph 81 of the Complaint states:

81. False Cost Data created by false, fictitious, and or misleading (artifices, devices, or schemes) energy accounting practices. For example, given a month's bill for electric power of approximately $60,000 with electric power peak demand of 2,880 kW, EPA attributes peak power cost of approximately $60,000/2,880 = $20.83 per kW[.] (See ¶ above where one expects such charges to be in the range of $4-$6/kW)

Other portions of the Complaint refer to "specifications" that are presumably contained in the RFPs. For example, paragraph 43 of the Complaint alleges the falsity of"a specification that approximately half of the steam produced [at the Hanford Site] was `lost' in the distribution system and that the efficiency of the system was therefore 50% at best." Johnson Controls and NORESCO both provide evidence linking Relator's accusations to statements made by the government, not Defendants.

B. Subject Matter Jurisdiction

The Court must address any doubts about its subject matter jurisdiction over the FCA cause of action before ruling on other grounds for dismissal presented in Defendants' Motions. Here, Johnson Controls is the only Defendant that has raised the issue of subject matter jurisdiction. However, if appropriate, this Court may raise the issue sua sponte as to the other Defendants.

If a defendant files a Rule 12(b)(1) motion without submitting evidence, that defendant has presented a facial attack on subject matter jurisdiction. Under this approach, a court need determine only whether the plaintiff has alleged sufficient facts to support subject matter jurisdiction. In this situation, a court presumes the allegations in a complaint to be true. However, if a defendant "submits affidavits, testimony, or other evidentiary materials" with the motion to dismiss, the attack is factual. In that case, a court does not presume the truth of the plaintiff's allegations, and the "plaintiff is obliged `to submit facts through some evidentiary method' to sustain his burden" of proving subject matter jurisdiction. Here, Johnson Controls submitted documentary evidence and has thus made a factual attack on the Court's subject matter jurisdiction. Because no other Defendant challenged subject matter jurisdiction, the Court will analyze its jurisdiction under both a facial and factual analysis.

In ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may evaluate "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Thus, unlike Rule 12(b)(6) motions to dismiss, for factual Rule 12(b)(1) motions, a court may make factual determinations.

Congress has limited the federal courts' subject matter jurisdiction over qui tam actions under the FCA:

No court shall have jurisdiction under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

The Fifth Circuit has adopted the following three-part test for analyzing whether a court has subject matter jurisdiction under this statute: (1) "whether there has been a `public disclosure' of allegations or transactions;" (2) "whether the qui tam action is `based upon' such publicly disclosed allegations;" and (3) "if so, whether the relator is the `original source' of the information." Thus, if the qui tam action is based upon publicly disclosed allegations or transactions, the Court has subject matter jurisdiction only if Relator is the original source of the information contained in the Complaint.

If the Relator sufficiently alleges that he is an original source, the Complaint is sufficient to withstand a facial attack on subject matter jurisdiction. To qualify as an original source, the Relator must be:

an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

Relator alleges that the government could not have known of the material facts in this case before January 1998, when Relator filed the final amendment to the 1997 Bid Protest of the RFP for the Western Region Super ESPC. This allegation satisfies the second prong of the original source requirement that he voluntarily provided that information to the government before filing this suit. While Relator fails to explicitly allege that he has direct and independent knowledge of the information on which the Complaint is based, the Court finds sufficient the allegation that the government could not have known the information had he not provided it. Thus, Relator has sufficiently alleged that he is an original source, and the Complaint thus survives a facial inquiry into the issue of subject matter jurisdiction.

Because the Court finds that Relator has alleged facts sufficient to withstand a facial attack on subject matter jurisdiction, the Court will turn to Johnson Controls' factual attack.

The first issue under the test for subject matter jurisdiction as to Johnson Controls is whether there has been a "public disclosure." The term "public disclosure" means "allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media." The plain language of the statute suggests that there are three sub-parts to the public disclosure prong: (1) public disclosure; (2) in a particular form specified in the statute, such as an administrative report or hearing; (3) of allegations or transactions. Johnson Controls contends that two RFPs issued by the government and Relator's 1997 Bid Protest constitute public disclosures of allegations or transactions.

RFPs. The Court must determine whether the RFPs issued in connection with the Hanford Site ESPC and the Western Region Super ESPC satisfy the public disclosure prong. The parties do not dispute that the RFPs could be considered administrative reports, since a federal agency issued them. Instead, the dispute between the parties relates to whether or not the RFPs were disclosed publicly. Relator argues that the RFPs were not publicly disclosed because they were only available to firms that were pre-qualified by the DOE to compete for ESPCs.

While the Fifth Circuit has not addressed the issue of when information is publicly disclosed, the Second Circuit has developed a workable test. That circuit has held that the statute requires only that the allegations or transactions have been placed in the "public domain," whether or not they were widely disseminated. Thus, under the Second Circuit's analysis, allegations or transactions are publicly disclosed once they are irretrievably released to members of the public who are not obligated to keep the information confidential.

The relevant facts vary as to the two RFPs at issue. Relator acknowledges that he was provided with the RFP for the Hanford Site ESPC, although his firm was allegedly not among the group to which the government made the RFP available. Johnson Controls presented a printout of an internet site containing an announcement by Commerce Business Daily of the RFP for the Hanford Site ESPC. The announcement lists the telephone number and address of the contract specialist who would provide a copy of the RFP. It is apparent that the RFP was disseminated to Johnson Controls, to Relator, and presumably to other bidders and potential bidders. There is no suggestion that the government required the RFP to be kept confidential, and the Court concludes that it was publicly disclosed.

Although Relator never states explicitly that he obtained a copy of the REP for the Western Region Super ESPC, Relator's pleading causes the Court to conclude he did. Johnson Controls provided a LexisNexis entry explaining that the DOE's Western Region Super ESPC solicitation (the RFP) would be available on the DOE website. That entry also states that a copy of a "draft solicitation" could be obtained by contacting the "Business Communications Center on the FedWorld Bulletin Board System" at the telephone number listed. In the absence of any conflicting evidence from the Relator, the Court concludes that the REP was publicly disclosed.

Having found the RFPs were publicly disclosed, the Court must next determine whether the disclosures were of "allegations or transactions." Fifth Circuit precedent acknowledges the existence of this element of the public disclosure prong, but does not elaborate further.

In Wang v. FMC Corporation, the Ninth Circuit explained its view of the "allegations or transactions" element:

Courts sometimes speak loosely of barring a qui tam suit based on `publicly disclosed information' . . . But the Act bars suits based on publicly disclosed `allegations or transactions,' not information. . . . The point is not mere semantics: the Act distinguishes between `allegations' and the `information on which the allegations are based.'. . . The Act appears to be invoking the common logical distinction between an assertion and its proof. Although not empty, this distinction rarely matters in applying the Act, because where the public knows of information proving an allegation, it necessarily knows of the allegation itself.

Other courts have held that the allegations or transactions element is satisfied when the public disclosure reveals either the allegation of fraud or the "elements of the underlying fraudulent transaction."

In United States ex rel. Springfield Terminal Railway Company v. Quinn, the D.C. Circuit held that the allegations or transactions element in the statute exists to effectuate the legislature's intention "to prohibit qui tam actions only when either the allegations of fraud or the critical elements of the fraudulent transaction themselves were in the public domain." Thus, the court held that the transactions element is satisfied when the public disclosure reveals the two elements of fraud — "a misrepresented state of facts and a true state of facts." In Springfield, the court held that publicly disclosed pay vouchers and telephone records did not reveal the two elements of fraud because neither suggested that the defendant had made a misrepresentation.

In United States ex rel. Dunleavy v. County of Delaware, the Third Circuit applied the holding of Springfield. In Dunleavy, the plaintiff alleged that the defendant received funds belonging to the government, failed to fulfill its obligation to repay those funds, and failed to disclose to the government that it possessed those funds. The defendant contended that several public disclosures revealed the alleged fraud. The Dunleavy court held that the allegations or transactions element would be satisfied by a disclosure that allows an inference of fraud. None of the disclosures at issue made a public allegation of fraud. Disclosures that the defendant received and retained the government's funds would be insufficient, for failure to reveal the defendant's obligation to inform the government of its possession of the funds. However, the allegation that the defendant made a report to the government in which it was obligated to account for the funds, but failed to do so, was sufficient to satisfy the allegation or transaction element as to the alleged fraud.

In this case, Relator alleges that Defendants made various misrepresentations in applying for government contracts and, after they were selected, in submitting claims for payment. With one exception, which is irrelevant to this issue, there is no evidence before the Court that the RFPs mention any of the Defendants. Thus, the RFPs do not satisfy the allegations or transactions element because the REPs do not raise an inference of fraud relating to Johnson Controls.

1997 Bid Protest. The Court must next determine whether Relator's 1997 Bid Protest satisfies the public disclosure prong under 31 U.S.C. § 3730 (e). Johnson Controls contends that the 1997 Bid Protest falls within the FCA's definition of public disclosure because it can be considered part of an administrative hearing before the DOE.

In Grayson v. Advanced Management Technology, Inc., the Fourth Circuit held that a protest filed with an administrative agency constitutes a public disclosure so long as the protest is not filed under seal and is available from the agency upon request. At issue in Grayson was the protest of unsuccessful bidders for a contract with the Federal Aviation Administration. The plaintiffs filed a qui tam action under the FCA, and the defendants argued that the Complaint was based upon the protest by the unsuccessful bidders. The court relied on prior cases holding that the term "civil hearing" in 31 U.S.C. § 3730 (e) encompasses the filing of a civil complaint. Thus, the court reasoned, the term "administrative hearing" in the statute encompasses the filing of an administrative complaint, or protest.

Although the Fifth Circuit has not addressed the issue of whether or not such a bid protest is a public disclosure under 31 U.S.C. § 3730 (e), the Fifth Circuit has held that disclosure of allegations in a civil complaint is a public disclosure in a "civil hearing" under 31 U.S.C. § 3730 (e). As the court reasoned in Grayson, this logic extends to the administrative protest at issue in this case. Because there is no evidence that the 1997 Bid Protest was filed under seal or unavailable to the public, it constitutes a public disclosure in an administrative hearing.

The remaining inquiry as to the 1997 Bid Protest is whether or not it disclosed allegations or transactions. The 1997 Bid Protest was submitted to the DOE by Relator on behalf of Industrial. It outlines Industrial's objections to the government's specifications in the REP for the Western Region Super ESPC. The 1997 Bid Protest criticized the government for its "apparent requirement that construction is the only allowable solution to meet the performance requirements of the government." In addition to addressing the requirements set out in the REP for the Western Region Super ESPC, the 1997 Bid Protest also mentions that the government's preference for construction was apparent in the REP for the Hanford Site ESPC. Attached to the 1997 Bid Protest are copies of three letters from Industrial to the DOE, each regarding a different site involved in the Western Region Super ESPC. The letters inform the DOE of what Industrial considered to be errors in the data used by the government in the REP for the Western Region Super ESPC.

The 1997 Bid Protest — including the attached letters — satisfies the allegations or transactions element if it creates an inference that Johnson Controls committed fraud. The Court cannot draw such an inference from the 1997 Bid Protest. The 1997 Bid Protest does not mention any of the Defendants. It objects to the government's specifications and/or factual data, but it does not suggest that the Defendants had anything to do with the specifications or factual data supplied by the government. Thus, the Court cannot conclude that the 1997 Bid Protest disclosed allegations or transactions related to Johnson Controls.

The Court recognizes, however, that many of the allegations in the Complaint may be derived from information in the REPs and the 1997 Bid Protest. Many of the specific allegations of false statements appear to be allegations that the government made false statements. Furthermore, many of the allegations against a specific Defendant appear to be that the Defendant adopted the government's allegedly false statements, rather than making false statements of its own. However, to the extent that Johnson Controls' Motion objects to these types of allegations in the Complaint, a Rule 12(b)(1) motion is not the proper vehicle for resolving such dispute.

The Court must deny Johnson Controls' Rule 12(b)(1) Motion because the Court cannot find that the REPs or the 1997 Bid Protest disclosed allegations or transactions of fraud by Johnson Controls.

B. Rule 12(b)(6) and Rule 9(b) Motions

NORESCO and WHC move pursuant to FRCP 12(b)(6) to dismiss, contending that Barrett has failed to state a claim against them under the FCA. NORESCO, WHC, and Johnson Controls move to dismiss under Rule 9(b), claiming that Relator's allegations of fraud are not pled with particularity.

A district court may not grant a rule 12(b)(6) motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thus the Court must view the facts in the light most favorable to Relator, take as true all allegations in the Complaint, and liberally construe the Complaint in favor of the Relator. However, the Court does not have to "accept as true conclusory allegations or unwarranted deductions of fact."

Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Plaintiffs bringing suit under the FCA "must fulfill the requirements of Rule 9(b)." "To plead fraud with particularity a plaintiff must include the `time, place and contents of the false representations, as well as the identity of the person making the misrepresentations and what [that person] obtained thereby.'" Rule 9(b) has several purposes: "to ensure that the defendant has sufficient information to formulate a defense by having notice of the conduct complained of; to protect defendants against frivolous suits; to eliminate fraud actions in which all the facts are learned after discovery; and to protect defendants from undeserved harm to their goodwill and reputation."

The Complaint contains general allegations against all Defendants. Relator contends that Defendants misrepresented that they would offer various government agencies alternatives to construction, such as "improvements, altered operations, maintenance, or technical services" when they planned to offer the government only energy solutions involving construction. Relator also alleges that each of the Defendants made, used, presented, or caused to be made, used, or presented one or more of types of false statements, representations, or certifications as listed in paragraphs 103-200 of the Complaint. Additionally, Relator alleges that these false statements were contained in (1) RFPs issued by various government agencies; (2) proposals Defendants submitted in response to the RFPs; (3) cost reports or reimbursement requests submitted by Defendants after being awarded various government contracts; and (4) certifications Defendants made in connection with their proposals or their conduct as government contractors. NORESCO. NORESCO was the winning bidder for the EPA Site ESPC. The only allegation in the Complaint against it by name states that "NORESCO based its costs and cost savings on fraudulently inflated energy and power delivered to the site." While Relator provides three examples of "false technical data" and four examples of "false cost data" related to the EPA Site ESPC, he does not claim that the false data originated with NORESCO. Instead, he refers to the REP for the EPA Site ESPC.

NORESCO contends that Relator fails to attribute any false statements to it. NORESCO logically views the allegations related to the EPA Site ESPC as challenges to the data in the REP issued by the EPA and/or to NORESCO's use of that data when making its bid and serving as the successful contractor. A page from the REP for the EPA Site ESPC reveals that the numbers on which Relator bases his allegations of false cost data come directly from the REP. One allegation complains of the EPA's accounting practices. However, Relator never attributes a specific false or fraudulent statement to NORESCO. Thus, NORESCO contends that Relator's only possible claim against it is that NORESCO's use of allegedly false or fraudulent data supplied to it by the government makes it liable under the FCA.

Such a claim, NORESCO argues, is not actionable under the FCA. NORESCO relies on United States ex rel. Durcholz v. FKW Inc., which held that "[i]f the government knows and approves of the particulars of a claim for payment before that claim is presented, the presenter cannot be said to have knowingly presented a fraudulent or false claim. In such a case, the government's knowledge effectively negates the fraud or falsity required by the FCA." In Durcholz, the government sought to hire a contractor to dredge a sedimentation pond at a military facility. The project needed to be completed quickly. To speed the process, a facility official instructed the contractor to submit invoices for excavation work, instead of for dredging work, which the officer knew was the work the contractor had actually completed. The plaintiff alleged that the contractor's compliance with such instructions violated the FCA. The Seventh Circuit disagreed and refused to hold the defendant "liable for defrauding the government by following the government's explicit directions."

The Fifth Circuit has accepted the principle that the government's prior knowledge of an allegedly false claim may negate the scienter element of an FCA claim, but has concluded it does not provide an automatic bar to suit under the FCA. In United States v. Southland Management Corp., the Fifth Circuit addressed the government knowledge defense in the context of a suit brought by the government, rather than in the context of a qui tam action. However, the Court seemed to suggest that in any case, application of the government knowledge defense is dependent on an analysis of the evidence.

The question this Court must decide is whether Durcholz has any application in light of Southland. In Southland, the Court refused to grant automatic absolution from FCA liability to a defendant merely because government representatives were aware of the circumstances which made the defendant's claim false when submitted. In Durcholz, the court addressed a situation in which the government not only knew of the circumstances that made the claim false, but also directed the defendant to submit the false claim. In the latter situation, the court held that "the government's knowledge is an effective bar to [the plaintiff's] claim," which in effect contended that the defendant "defrauded the government by following the government's explicit instructions." Thus, if the Durcholz principle applies in this Circuit, it does so only in the rare circumstance when the government effectively directs the defendant to make the statement alleged to be false.

NORESCO contends that the Complaint alleges only that NORESCO violated the FCA by following the directions provided by the government in the REP for the EPA Site ESPC. However, the Court cannot determine from the Complaint whether Relator contends that NORESCO violated the FCA through the use of false data supplied to it by the government, use of its own false data, or both. Albeit generally, Relator alleges that NORESCO made, used, or presented, or caused to be made, used, or presented false statements, representations, or certifications in applying for an ESPC, or in submitting claims to the government as the winning bidder for that ESPC, and that NORESCO did so knowingly, willingly, or intentionally. These allegations, coupled with the contention that NORESCO as the winning contractor for the EPA Site ESPC based its cost information on false data, are sufficient to state a claim under the FCA. Thus, the Court must deny NORESCO's Rule 12(b)(6) Motion.

Although the Court finds Relator's allegations against NORESCO sufficient to withstand a Rule 12(b)(6) attack, they do not satisfy Rule 9(b). "The conduct to which liability attaches in a [FCA] suit consists in part of false statements or claims for payment presented to the government. Because such statements or claims are among the circumstances constituting fraud in a [FCA] suit, these must be pled with particularity under Rule 9(b)." The allegation that "NORESCO based its costs and cost savings upon fraudulently inflated energy (kWh) and power (kW) delivered to the site" is insufficient. Relator fails to set forth the claim or statement in which NORESCO allegedly based information about its costs on fraudulent data. Relator's general allegations do not help him in this regard. Allegations that "lump all defendants together, failing to segregate the alleged wrongdoing of one from those of another," do not satisfy the requirements of Rule 9(b). Relator's claims against NORESCO fail to meet the specificity required by Rule 9(b), and the Court therefore grants NORESCO's Rule 9(b) Motion.

WHC. WHC and its subcontractor, ICF-Kaiser, operated the steam systems at the Hanford Site before Johnson Controls was awarded the Hanford Site ESPC. WHC moves to dismiss the FCA action under Rule 12(b)(6), and under Rule 9(b). The allegations in the Complaint specific to WHC are in paragraphs 65 and 66.

WHC contends that the face of the Complaint establishes that Relator's FCA claim against it is barred by the statute of limitations. A motion to dismiss for failure to state a claim is proper where the facts and dates in a complaint demonstrate that the claim is barred by limitations. The statute of limitations for Relator's FCA claim is as follows:

A civil action under section 3730 may not be brought —

(1) more than 6 years after the date on which the violation of section 3729 is committed, or

(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with the responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

Relator affirmatively pleads that WHC "fraudulently inflated energy and related costs" "prior to 1981." However, Relator also alleges that WHC's subcontractor, ICF-Kaiser, committed this same fraud "beginning in 1981 . . . until 1998." Relator apparently contends that WHC is liable for ICF-Kaiser's allegedly fraudulent acts. Although Relator's claims under the FCA require that a defendant act knowingly, it is conceivable that WHC knowingly violated the FCA through the actions of its subcontractor during a period not barred by limitations. For this reason, the Court must deny WHC's Motion to Dismiss the entire FCA claim against it.

However, to the extent that Relator contends that WHC violated the FCA by its own acts, not through those of ICF-Kaiser, such claims are dismissed. Relator pleads that the latest date on which such violations could have occurred is 1981. This action was filed on August 21, 2001. To determine the appropriate limitation period under 31 U.S.C. § 3731 (b), the Court must determine the date which is the later of(1) six years after the date on which the violation is committed, or (2) three years after the date on which facts material to the right of action should have reasonably been known to the appropriate state official, but not more than ten years after the date on which the violation is committed. Here, six years after the date on which the violation occurred is 1987. Even if the appropriate United States official only recently knew or should have known the facts material to the right of action, Relator has pled that the violation by WHC occurred well before ten years before he filed this suit. Thus, the relevant limitation period would end ten years after the violation by WHC, in 1991. Relator's claim against WHC, for conduct not involving ICF-Kaiser, is thus barred by the statute of limitations as a matter or law.

Additionally, Relator's claims against WHC are insufficient under Rule 9(b). As with Relator's claims against NORESCO, Relator fails to identify a particular claim or statement that violates the FCA and Relator's general allegations as against all Defendants are insufficient in this regard. WHC's Rule 9(b) Motion to Dismiss is therefore granted.

Johnson Controls. Johnson Controls also moves pursuant to Rule 9(b), contending that Relator's allegations are not sufficiently particular as to it. The general allegations Relator makes against all Defendants are not sufficient as to Johnson Controls. The Court will thus examine each of the allegations in which Relator specifically refers to Johnson Controls in order to determine whether Relator has satisfied Rule 9(b).

Relator's allegations referring to Johnson Controls are contained in paragraphs 51-56 and 62 of the Complaint. Paragraphs 51 and 55 seem to allege that Johnson Controls made false certifications that it did not have an unfair competitive advantage or conflict of interest when competing for the Hanford Site ESPC in light of the study that Johnson Controls earlier performed relating to the Hanford Site. These allegations do not describe at all, much less with specificity, the form in which Johnson Controls represented that it did not have an unfair competitive advantage or conflict of interest. Paragraphs 52-54 and 56 also contain allegations that Johnson Controls made false certifications to the government. However, these allegations fail for the same reason — Relator does not explain which of Johnson Controls' statements or claims contain such false certifications.

In paragraph 62, Relator may be contending that Johnson Controls presented the government with fraudulent energy cost data in order to obtain a contract under the Hanford Site ESPC. However, Relator never states that Johnson Controls made such representations to the government. Instead, Relator contends that the justification for awarding Johnson Controls the Hanford Site ESPC was "based upon fraudulent inflation of energy and energy cost data." This allegation is insufficient under Rule 9(b) because it does not specify any statement or claim by Johnson Controls which contained such a false representation.

Relator's allegations against Johnson Controls do not satisfy Rule 9(b), and the Court thus grants Johnson Controls' Rule 9(b) Motion.

III. Sherman Act

In addition to his qui tam action under the FCA, Relator asserts an antitrust claim. It is unclear whether Relator is pursuing a cause of action under one or more sections of the Sherman Act. Relator states that he "claim[s] relief under the Sherman Act for violations of 15 U.S.C. § 3 for damages caused to Relator's business." However, the Complaint also references 15 U.S.C. § 1-7. The Court will, therefore, generally analyze Relator's antitrust claims.

Johnson Controls moves to dismiss on the ground that Relator has failed to state an antitrust claim on which relief can be granted. NORESCO and WHC contend that Relator does not allege facts supporting his standing to assert the antitrust claims alleged.

A. Standing

In order to recover under the Sherman Act, private plaintiffs must have standing under the Clayton Act. The Clayton Act permits treble-damages recovery for "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." The Fifth Circuit has held that "[s]tanding to pursue an antitrust suit exists only if a plaintiff shows: (1) injury-in-fact, an injury to the plaintiff proximately caused by the defendants' conduct; (2) antitrust injury; and (3) proper plaintiff status."

Thus, in a case where damages are sought, the court must determine whether the plaintiff has alleged an injury-in-fact to his business or property and an antitrust injury, defined as "injury of the type the antitrust laws were designed to prevent and that flows from that which makes defendants' acts unlawful." Finally, the court must determine whether plaintiff is a "proper plaintiff," "examining such factors as (1) whether the plaintiff's injuries or their causal link to the defendant are speculative, (2) whether other parties have been more directly harmed, and (3) whether allowing this plaintiff to sue would risk multiple lawsuits, duplicative recoveries, or complex damage apportionment'"

This Court must first determine whether the allegations in the Complaint demonstrate an injury-in-fact to the Relator's business or property that was proximately caused by conduct of the Defendants. NORESCO. NORESCO contends that the Complaint fails to set forth facts demonstrating that NORESCO proximately caused Relator injury, because there is no allegation that Relator or Industrial competed, or attempted to compete, for the EPA Site ESPC awarded to NORESCO. Relator alleges that NORESCO conspired to eliminate competition for ESPCs. In Relator's Response to Defendants' Motions, Relator contends that the Complaint "alleges the `prequalification' criteria to which each [D]efendant, except [WHC], subscribe effectively limits competition for the contracts to firms who perform energy related construction activities to the exclusion of `altered operations, maintenance or technical services . . .'"

The Court assumes an antitrust violation for purposes of its standing inquiry, regardless of the sufficiency of the allegations. Thus, NORESCO's contention is that Relator does not have standing to bring suit against it unless he or Industrial participated, or attempted to participate, in the competition for the EPA Site ESPC. There is no such allegation in the Complaint. Nor is there any allegation in the Complaint that NORESCO's conduct affected Relator's bid or attempt to bid for any other ESPC.

The Court cannot assume facts that Relator has failed to allege. There is no allegation that NORESCO's alleged conduct proximately caused injury to Relator's business or property. For this reason, the Complaint fails to demonstrate Relator's standing to bring an antitrust cause of action against NORESCO.

WHC. WHC also contends that the Complaint fails to demonstrate facts showing that its alleged antitrust violation proximately caused injury to Relator's business or property. In Relator's Reply to the Defendants' Motions, Relator apparently contends that the allegations in paragraphs 211 and 212 of the Complaint are directed at WHC. These paragraphs accuse Defendants of "blacklist[ing] persons and firms who had filed one or more [p]rotests of [g]overnment contracts in unlawfully obtaining, directly or through agents, confidential personal and financial information" and by "exceeding their lawful access to federal computer databases." Without considering whether these or other allegations in the Complaint state a claim for antitrust violation, the Court must consider whether Relator has alleged an injury to his business or property stemming from such a violation by WHC.

Relator alleges that he competed for one or more unspecified ESPCs. The Complaint also makes allegations relating to payments Relator would have received had he been awarded the Hanford Site ESPC and other unspecified contracts. Additionally, the Complaint states that Relator filed a bid protest for the Western Region Super ESPC. However, these allegations are not sufficient for the Court to determine whether the alleged conduct of WHC had any impact on Relator's business or property. Relator does not claim that his or Industrial's efforts to obtain one or more government contracts were thwarted by WHC's allegedly anticompetitive conduct. Instead, the Complaint states general allegations of wrongdoing without connecting them to an injury affecting Relator's business or property. For this reason, the Court finds that Relator has failed to properly plead standing to bring an antitrust action against WHC.

B. Rule 12(b)(6)

Johnson Controls argues that the antitrust claim against it should be dismissed for failure to state a claim under the Sherman Act. The Court will address whether the Complaint states a claim under 15 U.S.C. § 1 and 3.

Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States. . . ." "The elements required to state a section 1 claim are: (1) the existence of a conspiracy (2) affecting interstate commerce (3) that imposes an unreasonable restraint of trade."

To satisfy the first element, a general allegation of conspiracy is insufficient. The Complaint must "contain charges of the defendants' conspiracy and factual allegations that would support such a claim." Paragraph 68 of the Complaint contains the only allegation of a conspiracy between Johnson Controls and another entity or individual. This paragraph alleges that Johnson Controls and unnamed Defendants conspired "to exclude offers of improvements, altered operations, maintenance, or technical services and or to restrain, reduce, and eliminate competition in the award of [ESPCs]. Relator seems to be contending that Johnson Controls conspired with an unknown persons or persons to exclude from the competition for ESPCs bidders who proposed energy solutions involving altered operations, maintenance, or technical services, as opposed to solutions involving construction. However, there are no factual allegations supportive of Relator's conspiracy charge. The Complaint fails to allege any facts revealing a relationship between Johnson Controls and any entity other than the government. The bare allegation of conspiracy between Johnson Controls and unnamed Defendants in paragraph 68 of the Complaint is insufficient under Rule 12(b)(6).

In Relator's Response to Defendants' Motion to dismiss, he argues that the Complaint sufficiently alleges a conspiracy by stating that Defendants subscribed to the government's prequalification scheme, which apparently required bidding entities to meet certain criteria. These allegations are insufficient. They contend only that Defendants complied with a government requirement, and thus do not properly allege a conspiracy. The Court therefore grants Johnson Controls' Motion to Dismiss as to 15 U.S.C. § 1.

Section 3 of the Sherman Act is limited to activity in the District of Columbia or a Territory of the United States or between the District of Columbia or a Territory and another entity, such as a State or foreign nation. Nowhere in the Complaint does Relator allege any violation in the District of Columbia or a Territory of the United States or between the District of Columbia or a Territory and any other entity. For this reason, Relator has failed to state a claim under 15 U.S.C. § 3.

IV. Common Law Claims and Claims under the Anti-Kickback Act

Relator acknowledges in his Response to the Defendants' Motions to Dismiss that he, as opposed to the government, has no right to bring claims under the common law, Counts 4, 5, 6, 7, 8, and 9, or the Anti-Kickback Act, Count 10. However, Relator requests that the Court allow these claims to stand until the United States moves to intervene, the parties complete settlement negotiations, or the parties begin trial. The Court denies this request and dismisses Counts 4-10 of the Complaint, which Relator has no standing to pursue.

V. Conclusion

As to Relator's claims under the FCA, the Court DENIES Johnson Controls' Rule 12(b)(1) Motion and NORESCO's Rule 12(b)(6) Motion; the Court GRANTS WHC's Rule 12(b)(6) Motion to Dismiss the claims against it not involving ICF-Kaiser and otherwise DENIES the Motion; and, the Court GRANTS NORESCO's, WHC's, and Johnson Controls' Rule 9(b) Motions. Relator's claims under the FCA against these three Defendants are dismissed without prejudice.

The Court dismisses, with prejudice, Relator's claim for violation of section 3 of the Sherman Act. Relator's section 1 antitrust claims against Johnson Controls, NORESCO, and WHC are dismissed without prejudice.

Relator's claims alleging violations of the common law and the Anti-Kickback Act are dismissed with prejudice.

Relator may amend his Complaint within twenty-one days of the date of this Order only to identify with specificity the date, form, content, and speaker of every statement or claim alleged to have been made by each Defendant which Relator claims to be false; to allege how he claims to have standing to assert antitrust violations; and to sufficiently allege each of the required elements of a claim under section 1 of the Sherman Act, including the existence of a conspiracy, that affects interstate commerce, and that imposes an unreasonable restraint of trade. Additionally, Relator shall notify the Court as to whether or not he is pursuing claims against Defendant ICF-Kaiser. Relator shall serve on each Defendant and file both a clean amended complaint and a red-lined version, noting each new and deleted allegation. Defendants may then respond with new motions to dismiss if they choose to do so, within twenty days of the filing of any amended complaint. The case is otherwise stayed while the Court considers any new complaint and motions to dismiss.

SO ORDERED.