False or fraudulent claims for payment or approval

(a)

Short title, purpose, and definitions. This section shall be known as and may be cited as the "Miami False Claims Ordinance."

The purpose of the Miami False Claims Ordinance is to deter persons from knowingly causing or assisting in causing the city to pay claims that are false, fraudulent, or inflated, to provide remedies for obtaining damages and civil penalties for the city when money is sought or obtained from the city by reason of a false claim. The provisions of this section are not exclusive, and the remedies provided for in this section shall be in addition to any other remedies provided for in any other law, available under common law, or otherwise. This section shall be liberally construed and applied to promote the public interest.

For the purposes of this section, the following terms, phrases, and words shall have the following meanings:

Bid takeoff means the final estimate, tabulation, or worksheet prepared by the contractor in anticipation of the bid submitted and which shall reflect the final bid price.

Certified claim means a claim made under oath by a person duly authorized by the claimant and shall contain a statement that:

(1)

The claim is made in good faith;

(2)

The claim's supporting data are accurate and complete to the best of the person's knowledge and belief;

(3)

The amount of the claim accurately reflects the amount that the claimant believes is due from the city; and

(4)

The certifying person is duly authorized by the claimant to certify the claim.

City means the City of Miami, its departments, officials, officers, employees, consultants, and agents. It shall also include any instrumentality, authority, agency, board, district, committee, or commission of the city including its members, officials, officers, employees, consultants, and agents.

Claim means any invoice, statement, request, reimbursement, demand, proceeding, lawsuit, complaint, or action under contract or otherwise for money, property, or services made to any employee, officer, or agent of the city, or to any contractor, grantee, or other recipient if any portion of the money, property, or services requested or demanded from, or provided by, the city; withholding any money, property, or services from the city; any costs incurred by the city in defense of any claim as defined herein.

Claimant means any person who brings, submits, files, maintains, or pursues a claim.

Extended overhead means the amount of a claim relating to an increase in overhead costs resulting from a delay in contract performance that is not compensated by a markup of direct costs.

Knowing or knowingly means that a person, with respect to information:

(1)

Has actual knowledge of the information;

(2)

Acts in deliberate ignorance of the truth or falsity of the information; or

(3)

Acts in reckless disregard of the truth or falsity of the information.

Original source means a person who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the city manager before filing an action under this section based on the information.

Overhead per diem means the amount calculated by dividing the total overhead costs set forth in the final bid takeoff by the number of days for substantial completion of the work set forth in the contract.

Person means any natural person, corporation, firm, association, organization, partnership, agency, limited liability company, business, trust, or any other group acting as a unit.

(b)

Certification of claims. Upon the request of the city, the person submitting a claim shall, within 30 days, including Saturdays, Sundays, and legal holidays, submit a certified claim as defined herein. Failure to provide the requested certification within the prescribed 30-day period shall constitute a forfeiture of the entire claim.

(c)

Liability for false claims.

(1)

The following action(s) shall constitute a violation of this section:

a.

Any person who knowingly, deliberately, and/or under the penalty of perjury presents or causes to be presented to the city a false or fraudulent claim for payment or approval;

b.

Any person who knowingly, deliberately, and/or under the penalty of perjury makes, uses, or causes to be made or used a false record or statement to get a false, fraudulent, or inflated claim paid or approved by the city;

c.

Any person who conspires to defraud the city by facilitating the payment of a false, fraudulent, or inflated claim allowed or paid by the city;

d.

Any person who delivers, with the intent to defraud the city, goods or services of a different quality or quantity than that specified in the applicable contract or specification;

e.

Any person who intentionally buys, or receives as a pledge of an obligation or debt, public property from an officer, employee, or agent of the city who the person knows may not lawfully sell or pledge the property; or

f.

Any person who knowingly, deliberately, and/or under the penalty of perjury makes, uses, or causes 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 city.

g.

Subject to the limitations and restrictions of § 768.295, Florida Statutes (F.S.), any person who knowingly, deliberately, and/or under the penalty of perjury makes, uses, or causes to be presented to the city, a judicial body, or a quasi-judicial body a false or fraudulent statement, charge, allegation, or testimony against the city, its departments, officials, officers, employees, or agents.

(2)

Any beneficiary of an inadvertent submission of a false claim to the city, who subsequently discovers the falsity of the claim, and who fails to disclose the falsity of the claim to the city within 30 days of discovering the error shall also be found to have submitted a false claim to the city.

(d)

Penalties.

(1)

Any person found to have submitted a false claim to the city shall:

a.

Be liable to the city for an amount equal to three times that part of the claim which is false, fraudulent, or inflated;

b.

Immediately, fully, and irrevocably forfeit the entire amount of the claim;

c.

Return to the city any and all funds disbursed and/or paid by the city on that part of the claim which is false, fraudulent, or inflated;

d.

Be liable to the city for all costs and fees (including, without limitation, reasonable legal, expert, and consulting fees) incurred by the city to review, initiate proceedings, defend, and/or evaluate the claim; and

e.

Be subject to debarment from city contracting for a period not to exceed five years. Additionally, any person who certified a claim later found to be false shall be subject to debarment from city contracting for a period not to exceed five years.

(2)

Liability under this section shall be joint and several for any act committed by two or more persons.

(3)

Any person who is found to have only violated subsection (c)(1)g. shall only be liable to the city for all costs and fees (including, without limitation, reasonable legal, expert, and consulting fees) incurred by the city to review, initiate proceedings, defend, and/or evaluate the violation.

(e)

Civil actions for false claims.

(1)

The city manager may investigate a violation under subsection (c) of the City Code. If the city manager finds that a person has violated or is violating subsection (c), he or she may, upon city commission approval, request that the city attorney bring a civil action against the person on behalf of the city.

(2)

A person may bring a civil action for a violation of subsection (c) for the person and for the city. Civil actions instituted under this subsection shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the city.

a.

The complaint shall be identified on its face as a qui tam action and shall be filed under seal in the circuit court of the Eleventh Judicial Circuit, in and for Miami-Dade County. Immediately upon filing of a complaint by a person, a copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the city manager by registered mail, return receipt requested. The city manager may elect, upon city commission approval, to proceed with the action, in lieu of the qui tam plaintiff, on behalf of the city, within 180 days after he or she receives both the complaint and the material evidence and information.

b.

The city manager, for good cause shown, may petition the court to extend the time during which the complaint remains under seal under subsection (e)(2)a. Any such motion may be supported by affidavits or other submissions in camera. The defendant is not required to respond to any complaint filed under this section until 20 days after the complaint is unsealed and served upon the defendant in accordance with law.

c.

Before the expiration of the 180-day period or any extensions obtained under subsection (e)(2)b., the city manager shall:

1.

Upon city commission approval, proceed with the action, in which case the action is conducted by the city attorney on behalf of the city; or

2.

Notify the court that the city declines to take over the action, in which case the person bringing the action has the right to conduct the action.

d.

When a person files an action under the Miami False Claims Ordinance, no person other than the city manager, upon city commission approval and on behalf of the city, may intervene or bring an action under the Miami False Claims Ordinance based on the facts underlying the pending action.

(f)

Rights of the parties in civil actions.

(1)

If the city manager, upon city commission approval and on behalf of the city, elects to proceed with the action, he or she has the primary responsibility for prosecuting the action and is not bound by any prior or subsequent act(s) of the person bringing the action. The city may also voluntarily dismiss the action notwithstanding the objections of the person bringing the action.

(2)

If the city manager and/or the city commission elects not to proceed with the action, the person bringing the action has the right to conduct the action. If the city manager and/or the city attorney so requests, he or she shall be served with copies of all pleadings and motions filed in the action and copies of all deposition transcripts. When the person bringing the action proceeds with the claim, the court may permit the city to take over the action on behalf of the city at a later date upon a showing of good cause.

(3)

Nothing in this section shall be construed to limit the authority of the city, or the qui tam plaintiff proceeding pursuant to subsection (e)(2), to compromise a claim brought in a complaint filed under the Miami False Claims Ordinance if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.

(g)

Awards to plaintiffs bringing civil actions.

(1)

If the city proceeds with and prevails in an action brought by a person under the Miami False Claims Ordinance, except as provided in subsection (g)(2), the court shall order the distribution to the person of ten percent of the proceeds recovered under any judgment obtained by the city in an action under subsection (b) or of the proceeds of any settlement of the claim.

(2)

If the city proceeds with an action which the court finds to be based primarily on disclosures of specific information, other than that provided by the Person initiating the action, relating to allegations or transactions in a criminal, civil, or administration hearing; a legislative or administrative action; a report, hearing, audit, or investigation by the city's independent auditor general; or from the news media, the court may award such sums as it considers appropriate, but in no case not more than five percent of the proceeds recovered under a judgment or received in settlement of a claim under this section taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation.

(3)

If the city does not proceed with an action under this section, the person bringing the action or settling the claim shall receive 25 percent of the proceeds recovered under a judgment rendered in an action or in settlement of a claim under the Miami False Claims Ordinance.

(4)

Any payment under this section to the person bringing the action shall be paid only out of the proceeds recovered from the defendant.

(5)

Whether or not the city proceeds with the action, if the court finds that the action was brought by a person who planned, initiated, or furthered the violation of subsection (c) upon which the action was brought, the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the city to continue the action.

(h)

Expenses, attorney's fees, and costs.

(1)

If the city initiates an action under the Miami False Claims Ordinance or assumes control of an action brought by a person under the Miami False Claims Ordinance and the city prevails in such action, the city shall be awarded its reasonable attorneys' fees, expenses, and costs.

(2)

If the court awards the person bringing the action under the Miami False Claims Ordinance, the person shall also be awarded an amount for reasonable attorneys' fees and costs. Payment for reasonable attorneys' fees and costs shall be made from the recovered proceeds before the distribution of any award.

(3)

If the city does not proceed with an action under the Miami False Claims Ordinance and the defendant is the prevailing party, the court shall award the defendant reasonable attorneys' fees and costs against the person bringing the action.

(4)

No liability shall be incurred by the city for any expenses, attorneys' fees, or other costs incurred by any person in bringing or defending an action under this section, except as otherwise specifically provided by law.

(i)

Exemptions to civil actions.

(1)

In no event may a person bring an action under the Miami False Claims Ordinance based upon allegations or transactions that are the subject of a civil action or an administrative proceeding in which the city is already a party.

(2)

No court shall have jurisdiction over an action brought under the Miami False Claims Ordinance based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing; in a legislative or administrative action; in a report, hearing, audit, or investigation by the city's independent auditor general; or from the news media unless the action is brought by the city or unless the person bringing the action is an original source of the information.

(3)

No court shall have jurisdiction over an action where the person bringing the action under the Miami False Claims Ordinance is:

a.

Acting as an attorney for the city; or

b.

An employee or former employee of the city, and the action is based, in whole or in part, upon information obtained in the course or scope of city employment.

(4)

No court shall have jurisdiction over an action where the person bringing the action under the Miami False Claims Ordinance obtained the information from an employee or former employee of the city.

(j)

Protection for participating employees. Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms or conditions of employment by his or her employer because of lawful acts done by the employee in furtherance of an action under the Miami False Claims Ordinance, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section shall have a cause of action under the State of Florida "Whistle-blower's Act," F.S. § 112.3187.

(k)

Burden of proof; presumption of false claim.

(1)

Whenever practicable, bid specifications for city contracts shall contain a requirement that the successful bidder maintain, as a condition precedent to submitting a claim against the city, a final bid takeoff. The final bid takeoff shall contain a line item for allocation of overhead costs.

(2)

Upon request from the city, a contractor making a claim against the city for delay or other damages shall submit, within 20 days of the city's request, a copy of the final bid takeoff, certified pursuant to this subsection. Failure to provide the requested certification shall constitute a forfeiture of the claim for delay or other damages. The certification shall be submitted under oath by a person duly authorized by the claimant and shall contain a statement that:

a.

The final bid takeoff was prepared contemporaneously with the bid and in anticipation of the bid for the project;

b.

The contractor relied on the final bid takeoff to prepare the bid and the original schedule of values; and

c.

The final bid takeoff has not been altered in any way.

(3)

Any claim for extended overhead costs that exceeds, on a per diem basis, more than ten percent of the overhead per diem contained in the final bid takeoff shall be presumed to be a false claim and the contractor shall have the burden of proving that any such claim for extended overhead is not false.

(l)

Innocent claimant affirmative defense. The provisions of the Miami False Claims Ordinance shall not apply if the claimant can demonstrate by a preponderance of the evidence each of the following facts:

(1)

The claimant submitted or caused to have submitted the claim to or against the city reasonably believing that such claim was free of any material misstatements, or any exaggerated, inflated, or unsubstantiated assertions or damages;

(2)

The claimant had no reasonable basis to doubt the truth, veracity, or accuracy of such claim at the time it was submitted;

(3)

Prior to submitting the claim, the claimant diligently investigated the facts underlying such claim and prepared the claim in a reasonable manner given all the relevant information available; and

(4)

When information indicating that any element, statement, or allegation in the claim was false or misleading first became available, such claimant, within five business days of discovering the falsity of the claim, took immediate steps to modify, correct, or withdraw such claim and provided the city with immediate notice thereof.

(Ord. No. 13786, § 2, 9-13-18)