Brent Berry v. Native American Services Corporation

USCA11 Case: 23-10600     Document: 48-1      Date Filed: 07/25/2024    Page: 1 of 42




                                                                [PUBLISH]
                                     In the
                 United States Court of Appeals
                          For the Eleventh Circuit

                            ____________________

                                  No. 23-10600
                            ____________________

        DENNIE GOSE,
                                                                   Plaintiff,
        BRENT BERRY,
        SEAN GOSE,
        as Personal Representative of the Estate of
        Deceased Relator Dennie Gose,
                                                       Plaintiffs-Appellants,
        versus
        NATIVE AMERICAN SERVICES CORPORATION,
        GREAT AMERICAN INSURANCE GROUP, INC.,
        d.b.a. Great American Insurance Company,


                                                      Defendants-Appellees.
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        2                         Opinion of the Court                       23-10600

                                ____________________

                    Appeal from the United States District Court
                         for the Middle District of Florida
                     D.C. Docket No. 8:16-cv-03411-SCB-AEP
                             ____________________

        Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.
        TJOFLAT, Circuit Judge:
                The federal government awards billions of dollars in con-
        tracts annually.1 Sometimes, the Government may award con-
        tracts to specific types of small businesses via set-aside programs.
        See 

; 

. One such program is the
        Minority Small Business and Capital Ownership Development Pro-
        gram—more commonly known as the 8(a) program. Under the
        8(a) program, contractors are subject to various requirements.
        One of those requirements is the obligation to notify the Small
        Business Administration (SBA) when contractors no longer satisfy
        the requisite ownership or control thresholds for inclusion in the
        program. 

(g).



        1 See A Snapshot of Government-wide Contracting for FY 2021, U.S. Gov’t Account-

        ability Off. (Aug. 25, 2022), https://perma.cc/VFR4-HJZE (“In Fiscal Year
        2021, the federal government spent $637 billion on contracts . . . .” (emphasis
        omitted)); Contractual Services and Supplies, USASpending, (Mar. 30, 2024),
        https://perma.cc/5PQN-SEY6 (reporting $462.7 billion obligated on govern-
        ment contracts as of March 30, 2024).
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        23-10600                 Opinion of the Court                              3

               In this appeal, we face several questions related to the 8(a)
        program but two are most important. First, whether a business
        that has graduated from the 8(a) program but is still bidding and
        performing work on 8(a) contracts is an 8(a) “participant” and
        therefore subject to the program’s ownership and control require-
        ments. And second, whether submitting bids and claims for pay-
        ment under those circumstances without notifying the SBA pre-
        sents an actionable claim under the False Claims Act (FCA).
               DWG & Associates, Inc.—an architecture and construction
        firm owned by Relators Dennie Gose and Brent Berry—was
        awarded several 8(a) contracts.2 Years later, DWG grew too large
        and graduated from the 8(a) program, although SBA regulations
        allowed it to continue fulfilling orders on 8(a) contracts it had al-
        ready been awarded. When DWG ran into financial troubles,
        Great American Insurance Company (GAIC)—the company that
        had issued surety bonds on DWG’s projects—and Native American
        Services Corporation (NASCO)—the company DWG partnered
        with to help complete its contracts—allegedly took control and
        majority ownership of DWG. Rather than notify the SBA to seek
        a waiver as required by the regulations, DWG (now under GAIC
        and NASCO’s control) kept bidding on jobs and submitting claims
        under the contracts.



        2 Although Sean Gose is listed in the case caption because he is the personal

        representative of Dennie Gose who passed away in November 2018 after the
        suit was filed, our “Gose” references mean Dennie Gose.
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        4                      Opinion of the Court                23-10600

                Relators filed a qui tam suit under the FCA, alleging that by
        doing so GAIC and NASCO used DWG to present false claims.
        The District Court granted GAIC’s and NASCO’s motions to dis-
        miss. It found, among other things, that because DWG graduated
        from the program, it was no longer an 8(a) participant and thus the
        control and ownership regulations no longer applied to DWG. Re-
        lators therefore failed to plead that any false claim was made.
               After careful review, and with the benefit of oral argument,
        we reverse. A business still bidding or performing work on 8(a)
        contracts remains a participant and is still subject to the program’s
        requirements. And, in some cases, when such a business submits
        bids without obtaining a waiver from the SBA and later submits
        claims for payment, that business has presented a false claim under
        the FCA.
                Our opinion proceeds in four parts. In Part I, we recount
        the factual and procedural history that brought the case to us. In
        Part II, we lay out the applicable legal standards. Part III analyzes
        the issues before us, paying special attention to the intricacies of
        the 8(a) program, defining the meaning of “participant,” and ex-
        plaining how a fraudulent inducement theory raises a cognizable
        false claim under the FCA. Part IV briefly concludes with instruc-
        tions for the District Court on remand.
                                  I. Background
               We begin by describing DWG’s foray into the 8(a) program,
        how DWG became involved with GAIC and NASCO, and the Dis-
        trict Court proceedings.
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        23-10600                  Opinion of the Court                                5

                  A. DWG is Formed and Admitted to the 8(a) Program
               After completing his military service and obtaining an archi-
        tectural license, Gose founded and incorporated DWG in 1995.
        DWG later acquired CDR Enterprises, which brought Berry to the
        company. Gose was DWG’s CEO and a 51% shareholder while
        Berry was DWG’s CFO and a 49% shareholder.
               In March 2004, DWG was admitted into the 8(a) program
        based on Gose’s disadvantaged status. 3 DWG then successfully bid
        on and was awarded several 8(a) set-aside Indefinite Delivery In-
        definite Quantity (IDIQ) contracts (both single and multiple
        awards) for construction and building design. 4 While DWG held
        these contracts, it competed among a pool of 8(a) contractors for
        task orders—i.e., “orders for the performance of tasks during the

        3 We define what disadvantaged means under the 8(a) program below.          See
        infra note 10.
        4 An IDIQ “contract provides for an indefinite quantity, within stated limits,

        of supplies or services during a fixed period. The Government places or-
        ders”—known as delivery orders for supplies or task orders for services—“for
        individual requirements.” 

(a); see also 

 § 2.101 (“Task or-
        der means an order for services placed against an established contract or with
        Government sources.”).
              “An agency usually awards within an IDIQ contract a pre-set base period
        of performance, with elective option years that the government may exercise
        if it chooses to extend the duration of the contract.” Dominick A. Fiorentino
        & Alexandra G. Neenan, Cong. Rsch. Serv., IF I 2558, Indefinite Delivery, Indef-
        inite Quantity Contracts 1 (2023). And IDIQs—which come in a variety of
        sub-types—may be awarded to a single contractor or to multiple contractors,
        who then compete over individual delivery or task orders. See 

(c) (noting a general preference for multiple award contracts).
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        6                         Opinion of the Court                      23-10600

        period of the contract”—on the multiple award contracts.
        

.
               As with most federal construction contracts, DWG was re-
        quired to obtain surety bonds to protect the Government’s inter-
        ests for DWG’s nonperformance.5 To comply with this require-
        ment, DWG obtained surety bonds for its task orders from GAIC.
        In exchange for the bonds, Gose, Berry, and their spouses entered
        into an indemnity agreement with GAIC in which they put up their
        personal assets as collateral.
               By early 2010, DWG had been so successful that it outgrew
        the 8(a) program’s size limits and therefore graduated. That meant
        that DWG could no longer compete for new 8(a) contracts. But
        because Gose still controlled and owned a majority share of DWG,
        as required by the regulations, DWG was eligible to bid on task
        orders under previously awarded 8(a) contracts.
                    B. GAIC and NASCO’s Alleged Takeover of DWG
                DWG’s success was short-lived. By June 2012, its financial
        situation deteriorated, and it was in danger of defaulting on its ex-
        isting contracts. If DWG defaulted, GAIC would have been liable
        for more than tens of millions of dollars in uncompleted projects.

        5 See 

(b) (“Before any contract of more than $100,000 is

        awarded for the construction, alteration, or repair of any public building or
        public work of the Federal Government, a person must furnish to the Govern-
        ment [performance and payment] bonds . . . .”); 

(a) (“[T]he
        Miller Act[] requires performance and payment bonds for any construction
        contract exceeding $150,000 . . . .”).
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        23-10600                Opinion of the Court                          7

        And—under the indemnity agreement—Gose, Berry, and their
        spouses were at risk of losing the assets they had pledged as collat-
        eral. When DWG notified GAIC about its financial condition,
        “GAIC froze DWG’s bonding program and refused to issue further
        bonds without third-party indemnification.” And without a surety,
        DWG could no longer bid on task orders.
                To thaw GAIC’s bonding restriction, DWG needed help. So
        Berry began negotiating with construction companies to assist
        DWG with its backlog of government contract work and to poten-
        tially partner on or acquire DWG’s future work within the 8(a) pro-
        gram’s limits. NASCO was one of those companies. Yet, by Au-
        gust 2012, GAIC instructed DWG to stop negotiations with any
        other potential partners besides NASCO.
                That’s when “GAIC and NASCO forced Gose out of the pic-
        ture.” According to Relators, GAIC and NASCO conspired to use
        their financial leverage over Gose to strong arm him into several
        agreements, one of which was on behalf of DWG. One of those
        agreements—a “Right of First Refusal and Option Agreement”—
        gave NASCO a right of first refusal to buy all of Gose’s shares of
        DWG and restricted Gose from selling less than all his shares. The
        second agreement—the Final Management and Advisory Services
        (MAS) Agreement—assigned 100% of all contract proceeds to
        GAIC and NASCO. 6


        6 Under the Final MAS Agreement, NASCO would receive 98% of all contract

        proceeds and GAIC would receive the remaining 2%.
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        8                        Opinion of the Court                     23-10600

               As a result, Gose alleged that he lost both control and 51%
        unconditional ownership of DWG. At some point, DWG’s attor-
        ney warned GAIC and NASCO that these agreements “potentially
        violated SBA regulations” because DWG’s 8(a) eligibility status
        hinged on Gose’s control and ownership. NASCO acknowledged
        this warning but pressed ahead with finalizing the agreements.
               With the agreements finalized, GAIC and NASCO took con-
        trol of DWG. Among other things, Relators alleged that:
        (1) NASCO directed Berry to notify Government contracting offic-
        ers, on behalf of DWG, that NASCO was now a “critical subcon-
        tractor”; (2) NASCO laid off DWG personnel and replaced them
        with NASCO employees; (3) GAIC suspended part of DWG’s tui-
        tion reimbursement program; (4) NASCO ordered and changed
        DWG’s cell phone policies; (5) NASCO terminated Berry’s em-
        ployment; (6) NASCO reduced Gose’s CEO salary to an amount
        lower than other employees; (7) NASCO took control of DWG’s
        document and record keeping; and (8) GAIC and NASCO decided
        which future task orders to bid on.
               But neither GAIC nor NASCO notified the SBA of the agree-
        ments or change in ownership and control, despite NASCO know-
        ing—as a former 8(a) contractor—that such an ownership or con-
        trol change required permission from the SBA. 7 Meanwhile, GAIC


        7 NASCO graduated from the 8(a) program in 2008. With the SBA’s approval,

        arrangements between graduated 8(a) contractors and current 8(a) contractors
        are allowed under the 8(a) Mentor-Protégé program. See 

.
        That program helps eligible small businesses (protégés) gain capacity and win
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        23-10600                  Opinion of the Court                                9

        and NASCO used DWG to bid on task orders and submit payment
        claims to the Government. The Government, unaware of the
        agreements, awarded DWG dozens of other task orders and paid
        DWG tens of millions of dollars—all of which went to GAIC and
        NASCO.
                               C. District Court Proceedings
              Relators then filed a qui tam complaint under the FCA to
        recover the payments. Their complaint pled six counts:
            • Counts I–II (the false presentment claims) alleged that GAIC
              and NASCO violated 

(a)(1)(A) by knowingly
              making or presenting, or causing to be made or presented,
              bids for task orders by DWG that they knew DWG was not
              eligible to receive because of its change of ownership and
              control;
            • Counts III–IV (the false statement claims) alleged that GAIC
              and NASCO violated 

(a)(1)(B) by knowingly
              making, using, or causing to be made or used false records
              or statements material to getting false claims paid; and
            • Counts V–VI (the conspiracy claims) alleged that GAIC and
              NASCO violated 

(a)(1)(C ) by conspiring to


        government contracts through partnerships with more experienced compa-
        nies (mentors). 

 § 125.9(a). But the SBA will not approve such a relationship
        if the mentor, among other things, “controls the managers of the protégé[]”
        or acquires “an equity interest [over] 40% in the protégé firm.” Id.
        § 12.59(b)(2), (d)(2).
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        10                    Opinion of the Court                23-10600

              submit and submitting bids through DWG, which they
              knew DWG was not eligible for.
               GAIC and NASCO moved to dismiss the complaint. The
        District Court granted GAIC’s and NASCO’s motions and dis-
        missed Realtors’ claims with prejudice.
                As for Counts I–II, the District Court found that Relators
        failed to state a false presentment claim, mainly because Relators
        failed to adequately allege the existence of a false claim. The Dis-
        trict Court reasoned that GAIC and NASCO were not required to
        seek a waiver because DWG had graduated from the 8(a) program
        when the agreements between GAIC, NASCO, and DWG were fi-
        nalized. DWG therefore was no longer a “participant” and not sub-
        ject to the regulation’s loss-of-control or mandatory termination
        requirements. The District Court continued that, even if DWG
        were subject to these requirements, the agreements between
        GAIC, NASCO, and DWG did not divest Gose of 51% uncondi-
        tional ownership. But the court did not otherwise address whether
        Gose had lost control of DWG.
                After noting that Relators’ complaint rested on a fraudulent
        inducement theory, the District Court reasoned that “[f]raudulent
        inducement with regard to bidding on a government contract, as
        distinguished from submitting a claim for payment under the con-
        tract, is not available as a cause of action under the FCA.” United
        States v. Native Am. Servs. Corp., No. 8:16-cv-3411-SCB-AEP,
        

, at *7 (M.D. Fla. Nov. 14, 2022). Alternatively,
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        23-10600                  Opinion of the Court                               11

        the court found that Relators failed to satisfy Rule 9(b)’s particular-
        ity requirement because they did not provide “information regard-
        ing (1) the bids that were supposedly fraudulent, and (2) the claims
        for payment supposedly at issue.” 

 8 Because Relators could
        show neither a fraudulent claim nor one that was presented, “they
        consequently [could not] prove . . . that the claim was presented
        with knowledge of its falsity.” 

.
               As to Counts III–IV, the District Court largely denied Rela-
        tors’ false statement claims for the same reasons. Namely, the
        court reasoned that Gose and Berry’s complaint did not plausibly,
        or particularly, state a claim.
               Finally, the District Court turned to Relators’ conspiracy
        claims in Counts V–VI. Like Counts III–IV, the court dismissed the
        conspiracy claims because there was no plausible false claim and
        because Relators failed to satisfy Rule 9(b).
                Relators moved for reconsideration. And the Government
        filed a Statement of Interest. The Government stated that the Dis-
        trict Court erred by: (1) concluding that the change in ownership
        and control provisions under the 8(a) program lapse when a com-
        pany graduates, and (2) finding that fraudulent inducement is not
        cognizable under the False Claims Act. The District Court, unper-
        suaded by Relators or the Government, denied the motion because


        8 As noted below, Federal Rule of Civil Procedure 9(b) requires that when “al-

        leging fraud or mistake, a party must state with particularity the circumstances
        constituting fraud or mistake.” See infra Part II & Section III.B.1.iv.
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        12                      Opinion of the Court                  23-10600

        Relators had not presented it with any clear error. And it held firm
        to its decision that because DWG had graduated it was no longer
        an 8(a) participant. Relators timely appealed.
                                II. Legal Standards
                 “We review de novo the district court’s grant of a motion to
        dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),
        accepting the allegations in the complaint as true and construing
        them in the light most favorable to the plaintiff.” Timson v.
        Sampson, 

 (11th Cir. 2008) (per curiam). “Gener-
        ally, ‘[t]o survive a motion to dismiss, a complaint need only pre-
        sent sufficient facts, accepted as true, to state a claim to relief that
        is plausible on its face.’” Marsteller ex rel. United States v. Tilton,
        

 (11th Cir. 2018) (alteration in original) (quota-
        tion marks omitted) (quoting Renfroe v. Nationstar Mortg., LLC, 

 (11th Cir. 2016)); see also Bell Atl. Corp. v. Twombly,
        

 (2007).
               “However, we also have stated clearly that, in a qui tam ac-
        tion, the enhanced pleading requirements of Rule 9(b) apply.”
        Marsteller, 

. “A False Claims Act complaint satisfies
        Rule 9(b) if it sets forth ‘“facts as to time, place, and substance of
        the defendant’s alleged fraud,” specifically “the details of the de-
        fendants’ allegedly fraudulent acts, when they occurred, and who
        engaged in them.”’” Hopper v. Solvay Pharms., Inc., 

 (11th Cir. 2009) (quoting United States ex rel. Clausen v. Lab’y
        Corp. of Am., 

 (11th Cir. 2002)).
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        23-10600                  Opinion of the Court                             13

                                     III. Discussion
               Relators argue that the District Court erred in two main
        ways. First, they contend their complaint plausibly and particularly
        established both their false presentment and false statement claims
        under 

(a)(1)(A)–(B). Second, Relators assert that
        their complaint sufficiently pled the existence of an FCA conspiracy
        under 

(a)(1)(C) between GAIC and NASCO. We
        agree and explain why in two parts. First, we detail how the 8(a)
        program works. Second, we describe why Relators’ claims were
        both plausible and satisfied Rule 9(b).
                                   A. The 8(a) Program
               As noted above, the 8(a) program is one of many congres-
        sionally developed programs aimed at helping small businesses win
        federal government contracts. See 

(j)(10), 637(a). It
        does so by giving those businesses preferential treatment when bid-
        ding on certain contracts. 

 § 637(a); 

.
               The SBA administers the 8(a) program and has promulgated
        implementing regulations. See 13 C.F.R. pt. 124. To be admitted to
        the 8(a) program, the SBA must certify that a business is both
        “small” and “disadvantaged.” See 

(j)(11)(E)–(F);
        

. A business is “small” if it meets the size stand-
        ards in 13 C.F.R. Part 121. 9 See 

. And a business

        9  The SBA maintains a table of small business size standards in
        

. Whether a business is small turns on the applicable North
        American Industry Classification System (NAICS) code and a business’s total
        annual income or number of employees. See 

 NAICS is the standard used
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        14                         Opinion of the Court                       23-10600

        is “disadvantaged” if at least 51% of the business is unconditionally
        owned and controlled by one or more individuals who are both so-
        cially and economically disadvantaged. 10 

(a)(4)(A)–
        (B); 

 to .106.
               Once “admitted to . . . the 8(a) BD program” a small busi-
        ness concern becomes a “participant.” 

. Partici-
        pants can then bid on federal contracts that are awarded outside
        Federal Acquisition Regulation (FAR) Subpart 6.1’s standard “full
        and open competition” process, like the IDIQ contracts here.11
        

; 

(a). Certification under the




        by federal statistical agencies to classify businesses in “collecting, analyzing,
        and publishing statistical data related to the U.S. business economy.” North
        American Industry Classification System, U.S. Census Bureau,
        https://perma.cc/LLJ9-E6X7 (last visited May 13, 2024). “The procuring
        agency contracting officer, or authorized representative, designates the proper
        NAICS code and corresponding size standard in a solicitation . . . which best
        describes the principal purpose of the product or service being acquired.”
        

(b).
        10 “Socially disadvantaged” persons are those “subjected to racial or ethnic

        prejudice or cultural bias within American society because of their identities
        as members of groups without regard to their individual qualities. The social
        disadvantage must stem from circumstances beyond their control.”
        

(a); 

(a)(5). “Economically disadvantaged”
        persons are those “whose ability to compete in the free enterprise system has
        been impaired due to diminished capital and credit opportunities as compared
        to others in the same or similar line of business who are not socially disadvan-
        taged.” 

(a); 

(a)(6)(A).
        11 See supra note 4.
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        23-10600                  Opinion of the Court                              15

        8(a) program typically lasts for nine years, at which time a partici-
        pant automatically exits or “graduates.” 

(a),
        124.302(a).
               But the nine-year term can be shortened by voluntary with-
        drawal, “early graduation (including voluntary early graduation),”
        or termination. 

(a). Early graduation, like what
        DWG experienced in 2010, can occur when a participant “exceeds
        the size standard corresponding to its primary NAICS code . . . for
        three successive program years.” 

 § 124.302(b). 12 Graduates be-
        come ineligible to bid on new 8(a) contracts but remain “obligated
        to complete previously awarded 8(a) contracts, including any
        priced options which may be exercised.” Id. § 124.304(f )(1)–(2).
        And with respect to IDIQ contracts, “[a] concern awarded a[n
        IDIQ] contract . . . that was set-aside exclusively for 8(a) Program
        Participants may generally continue to receive new [task] orders

        12 A participant can also graduate early if the SBA determines that:

           (1) The concern has successfully completed the 8(a) BD program by sub-
               stantially achieving the targets, objectives, and goals set forth in its
               business plan, and has demonstrated the ability to compete in the mar-
               ketplace without assistance under the 8(a) BD program; or
           (2) One or more of the disadvantaged owners upon whom the Partici-
               pant’s eligibility is based are no longer economically disadvantaged.
        

(a). And the “SBA may graduate a Participant prior to the
        expiration of its program term where excessive funds or other assets have been
        withdrawn from the Participant, causing SBA to determine that the Partici-
        pant has demonstrated the ability to compete in the marketplace without as-
        sistance under the 8(a) BD program.” 

 § 124.302(c) (citing 

(d)(3)).
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        16                         Opinion of the Court                        23-10600

        even if it has grown to be other than small or has exited the 8(a)
        BD program.” 

 § 124.503(i)(1)(iii); see also 

(d)
        (“An 8(a) contractor may continue to accept new orders under [an
        IDIQ] contract, even if it exits the 8(a) program, or becomes other
        than small for the NAICS code(s) assigned to the contract.”). 13


        13 Despite a participant’s ability and obligation to continue performing, agency

        contracting officers have discretion “to award an order only to a concern that
        is a current Participant in the 8(a) program at the time of the order.” 

(i)(1)(iii). “In such a case, the procuring agency will announce its in-
        tent to limit the award of the order to current 8(a) Participants and verify a
        contract holder’s 8(a) BD status prior to issuing the order.” Id.; see also 

        § 124.521(e)(1). And, if an 8(a) contract contains options to extend the initial
        ordering period past a contract’s base period, a contracting officer’s discretion
        to exercise those options to award more task orders depends, in part, on
        whether the participant has graduated or been terminated from the 8(a) pro-
        gram. See id. § 124.514(a)–(b). For 8(a) contracts “with durations of more than
        five years (including options), a contracting officer must verify in SAM.gov . . .
        whether a business concern continues to be an eligible 8(a) Participant no
        more than 120 days prior to the end of the fifth year of the contract.” Id.
        § 124.521(e)(2). “Where a concern fails to qualify or will no longer qualify as
        an eligible 8(a) Participant at any point during the 120 days prior to the end of
        the fifth year of the contract, the option shall not be exercised.” Id. (emphasis
        added).
            We take judicial notice that at least one of the contracts listed in Relators’
        complaint was solicited with a period of performance of one base year and
        four option years. See SABER - US Air Force Academy, SAM (May 5, 2009, 12:20
        PM), https://perma.cc/2CN3-VJJF (stating this information in the presolicita-
        tion to contract FA7000-09-D-0020). See Fed. R. Evid. 201(b); Terrebonne v.
        Blackburn, 

, 1000 n.4 (5th Cir. June 1981) (en banc) (“Absent some
        reason for mistrust, courts have not hesitated to take judicial notice of agency
        records and reports.”). And Relators’ complaint alleges that one contract—
        HSCG82-10-D-PMVA53—had a period of performance exceeding five years.
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        23-10600               Opinion of the Court                        17

                The SBA may also “terminate the participation of a concern
        in the 8(a) BD program prior to the expiration of the concern’s Pro-
        gram Term for good cause.” 

(a). The regula-
        tions provide several examples of good cause, but relevant here is
        § 124.303(a)(4). Section 124.303(a)(4) permits termination if the
        8(a) contractor fails to “obtain prior written approval from SBA for
        any changes in ownership or business structure, management[,] or
        control pursuant to §§ 124.105 and 124.106.”                See also
        

(a)(21)(A) (“[I]f the owner or owners upon whom
        eligibility was based relinquish ownership or control of such a con-
        cern, or enter into any agreement to relinquish such ownership or
        control, such contract or option shall be terminated for the conven-
        ience of the Government . . . .”).
                 And for good reason. The Small Business Act and its imple-
        menting regulations direct contracts awarded under set-aside pro-
        grams to “be performed by the concern that initially received such
        contract[s].” 

(a)(21)(A). That said, the SBA may
        waive the ownership or control requirements if “[t]he 8(a) contrac-
        tor . . . request[s] a waiver in writing prior to the change in owner-
        ship and control,” 

(c), that demonstrates partic-
        ular condition(s) exist.          See 

 § 124.515(b); 

(a)(21)(B). One significant condition is when:
              (5) It is necessary for the disadvantaged owners of the
                  itial 8(a) awardee to relinquish ownership of a ma-
                  jority of the voting stock of the concern in order
                  to raise equity capital, but only if—
USCA11 Case: 23-10600     Document: 48-1      Date Filed: 07/25/2024       Page: 18 of 42




        18                     Opinion of the Court                   23-10600

                  (i) The concern has graduated from the 8(a) BD
                      program;
                  (ii) The disadvantaged owners will maintain owner-
                       ship of the largest single outstanding block of
                       voting stock (including stock held by affiliated
                       parties); and
                  (iii) The disadvantaged owners will maintain control
                        of the daily business operations of the con-
                        cern.
        

(b)(5)        (emphasis     added);   

(a)(21)(B)(v).
                          B. Plausibility and Particularity
               Now that we have laid out the 8(a) program’s foundation,
        we can explain why Relators’ claims were both plausibly and par-
        ticularly pled. We start with Relators’ false presentment and false
        statement claims. And then we address Relators’ conspiracy
        claims.
                1. False Presentment and False Statement Claims
               “The FCA imposes liability on any person who ‘knowingly
        presents, or causes to be presented, a false or fraudulent claim for
        payment or approval; [or] knowingly makes, uses, or causes to be
        made or used, a false record or statement material to a false or
        fraudulent claim.’” United States ex rel. Phalp v. Lincare Holdings,
        Inc., 

 (11th Cir. 2017) (alteration in original)
        (quoting 

(a)(1)(A)–(B)). Both provisions share the
USCA11 Case: 23-10600        Document: 48-1        Date Filed: 07/25/2024        Page: 19 of 42




        23-10600                  Opinion of the Court                              19

        same elements: “the existence of a false claim or statement, the ma-
        teriality of that false claim or statement, and scienter.” Yates v. Pi-
        nellas Hematology & Oncology, P.A., 

 (11th Cir.
        2021). 14 Though the District Court referenced materiality and sci-
        enter, its focus was on the existence of a false claim or statement.
        So we concentrate our discussion there.
        i. Control and the Meaning of “Participant”
               The District Court’s ruling that Relators’ complaint failed to
        allege any falsity hinged on its finding that DWG was not an 8(a)
        participant. The court reasoned that DWG had graduated from
        the 8(a) program, and therefore “the control requirements of [13
        C.F.R.] § 124.106(a)(1) did not apply to DWG” at the time of its
        alleged takeover in 2012.              Native Am. Servs. Corp.,
        

, at *5. Relators contend that the plain language
        of § 124.515(a)(1) and § 15 U.S.C. 637(a)(21)(A), their context,
        structure, and regulatory and legislative histories, point to the op-
        posite conclusion: “participant” necessarily includes both gradu-
        ated and nongraduated businesses. GAIC and NASCO would have
        us adopt the District Court’s reading of “participant” along the
        same reasoning. That we cannot do. We agree with Relators that


        14 The key difference between a false presentment claim and a false statement

        claim is that false statement claims do “not demand proof that the defendant
        presented or caused to be presented a false claim to the government or that
        the defendant’s false record or statement itself was ever submitted to the gov-
        ernment.” Hopper v. Solvay Pharms., Inc., 

 (11th Cir. 2009)
        (interpreting the pre-2009 amendment version of the statute).
USCA11 Case: 23-10600      Document: 48-1      Date Filed: 07/25/2024     Page: 20 of 42




        20                     Opinion of the Court                  23-10600

        such a reading is incompatible with the plain meaning of both
        

 and 

(a)(21)(A).
                When interpreting “the meaning of a statute or regulation,
        ‘the first step is to determine whether the statutory language has a
        plain and unambiguous meaning by referring to the language itself,
        the specific context in which that language is used, and the broader
        context of the statute as a whole.’” SEC v. Levin, 

        (11th Cir. 2017) (quoting Bautista v. Star Cruises, 

        (11th Cir. 2005)). “If the statute’s [or regulation’s] meaning is plain
        and unambiguous, there is no need for further inquiry.” 

 (quot-
        ing CBS Broad. Inc. v. Echostar Commc’ns Corp., 

, 1300–
        01 (11th Cir. 2008)). “To determine the plain meaning of a statute
        or regulation, we do not look at one word or term in isolation, but
        rather look to the entire statutory or regulatory context.” 

               Under 

, “[p]articipant means a small busi-
        ness concern admitted to participate in the 8(a) BD program.” That
        definition has two components: (1) “small business concern” and
        (2) “admitted.” As explained above, “smallness” hinges on the ap-
        plicable NAICS code and the “number of employees or annual re-
        ceipts” of a business. See 

. And the regulations
        define “concern” as a “business entity organized for profit, with a
        place of business located in the United States, and which operates
        primarily within the United States or which makes a significant
        contribution to the U.S. economy through payment of taxes or use
        of American products, materials or labor.” 

 § 121.105. Simple
        enough.
USCA11 Case: 23-10600      Document: 48-1      Date Filed: 07/25/2024      Page: 21 of 42




        23-10600                Opinion of the Court                         21

               That leaves us with “admitted.” The regulations do not de-
        fine the term, but dictionaries provide some help. Webster’s de-
        fines “admitted” as “to allow entry (as to a place, fellowship, or
        privilege).” Admitted, Merriam-Webster’s Third New International
        Dictionary (3d ed. 1993). Similarly, the Oxford English Dictionary
        defines that term as “[t]o accept (a person) into any office, status,
        or privilege.” Admit, Oxford English Dictionary (2011). Of course,
        those definitions get us only so far as they “lack[] any temporal
        qualifier and [are] consistent with either current or past” admit-
        tance. See Robinson v. Shell Oil Co., 

 (1997). But no
        matter, the regulatory context, structure, and purpose provide a
        clear answer. See 

 at 342–43 (looking to context to determine
        whether “employee” under Title VII meant current or past em-
        ployee).
               And we need not look far to get that answer. For example,
        

(a) requires that “[a]n 8(a) contract . . . must be
        performed by the Participant that initially received it.” See also
        

(a)(21)(A). That requirement must be read in har-
        mony with the other requirement that “[a]fter the effective date of
        early graduation or termination, a Participant . . . . is obligated to
        complete previously awarded 8(a) contracts.”                  

(f)(1); see In re Shek, 

 (11th Cir. 2020) (“We
        must interpret statutes ‘harmoniously,’ reconciling separate sec-
        tions so that they are compatible and not contradictory.” (quoting
        Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
        of Legal Texts 180 (2012))); United States v. Marte, 

, 1341
USCA11 Case: 23-10600         Document: 48-1         Date Filed: 07/25/2024         Page: 22 of 42




        22                         Opinion of the Court                        23-10600

        (11th Cir. 2004) (“When a regulation implements a statute, the reg-
        ulation must be construed in light of the statute . . . .” (citations
        omitted)). Read together, “participant” must include 8(a) gradu-
        ates that continue to perform on contracts exclusively set-aside un-
        der the 8(a) program. 15
               Still not convinced? Hold still; the regulatory structure also
        points toward that conclusion. As we just mentioned, the regula-
        tions require 8(a) contracts to be performed by the participant that
        originally received it, absent a waiver. 

(a). The
        next subsection lists the five bases under which the SBA may waive
        this requirement, “if requested to do so by the 8(a) contractor.” 

        § 124.515(b). In that context, “participant” must include “8(a) con-
        tractors” that have graduated yet are still performing an 8(a) con-
        tract. It would be odd, if not absurd, for the set of entities eligible
        to receive waivers to be broader than the set of entities subject to
        regulatory requirement in the first place. See Lewis v. Barnhart,
        

 (11th Cir. 2002) (per curiam) (noting that courts
        will interpret statutes to avoid “absurdity of results” (quoting
        United States v. Weaver, 

, 1331 (11th Cir. 2001))).
               And that’s not all. The waiver’s substantive requirements
        bolster this interpretation. One of the five waiver bases permits a

        15 As the Government’s amicus brief points out, not every use of “participant”

        includes 8(a) graduates. Context is critical. See Env’t Def. v. Duke Energy Corp.,
        

 (2007). Sometimes “participant” refers only to nongraduated
        contractors. See, e.g., 

(a) (“A Participant may voluntarily
        withdraw from the 8(a) BD program at any time prior to the expiration of its
        program term.”).
USCA11 Case: 23-10600      Document: 48-1      Date Filed: 07/25/2024     Page: 23 of 42




        23-10600               Opinion of the Court                         23

        business to “relinquish ownership of a majority of the voting stock
        of the concern in order to raise capital, but only if [t]he concern has
        graduated from the 8(a) BD program.” 

 § 124.515(b)(5)(i); see also
        

(a)(21)(B)(v)(I). If graduates are not subject to the
        initial requirement in § 124.515(a), why would a graduate ever
        need such a waiver? They wouldn’t. So such an interpretation
        would render that waiver provision irrelevant. But it is well-estab-
        lished that “courts should avoid rendering other provisions of a reg-
        ulation superfluous or inoperative.” Glazer v. Reliance Standard Life
        Ins. Co., 

 (11th Cir. 2008).
               We also have a duty to read the SBA regulations in harmony
        with other regulations. See Epic Sys. Corp. v. Lewis, 

 (2018). That includes the FAR: the regulation that governs
        most federal acquisitions. See 

. Like the SBA reg-
        ulatory provisions, one provision in the FAR requires 8(a) contracts
        to be “terminated for convenience if the 8(a) contractor to which it
        was awarded transfers ownership or control of the firm . . . unless
        the Administrator of the SBA waives the requirement for contract
        termination.” 

 § 19.812(e). Nothing in that FAR provision dis-
        tinguishes 8(a) graduates from other participants, and we should
        not read the SBA regulation in a way that creates unnecessary con-
        flict.
               And we would be remiss not to consider “the stated purpose
        of the [SBA’s] regulation.” Washington v. Comm’r of Soc. Sec.,
        

 (11th Cir. 2018). The application of the change
USCA11 Case: 23-10600         Document: 48-1          Date Filed: 07/25/2024           Page: 24 of 42




        24                          Opinion of the Court                         23-10600

        in ownership and control regulations to 8(a) graduates is most con-
        sistent with the 8(a) program’s purpose: “to assist eligible small dis-
        advantaged business concerns compete in the American economy
        through business development.” 

; see also
        

(f) (listing Congressional findings related to this pur-
        pose). Can you imagine if 8(a) graduates—still bidding and per-
        forming on task orders under 8(a) contracts—were exempt from
        the requirement to report and seek approval for changes in owner-
        ship and control? That would seriously impair a core limitation on
        the businesses that can perform those contracts. Put differently,
        adopting GAIC and NASCO’s interpretation would permit ineligi-
        ble businesses to obtain 8(a) program benefits by assuming owner-
        ship of, or control over, 8(a) graduates with ongoing 8(a) con-
        tracts. 16 “We do not see how Congress [or the SBA] could have


        16 One more thing just for good measure—“the regulatory history lends sup-

        port for [our] interpretation.” SEC v. Levin, 

 (11th Cir. 2017);
        see also LSSi Data Corp. v. Comcast Phone, LLC, 

, 1117 n.4 (11th Cir.
        2012) (“A review of the industry’s ‘regulatory history helps to illuminate the
        proper interpretation and application’ of the Act.” (quoting Glob. Crossing Tel-
        ecomm., Inc. v. Metrophones Telecomm., Inc., 

 (2007))). The Com-
        mittee on Small Business recognized that 8(a) contractors may need to sell
        equity interests in their businesses to attract additional capital, but it also noted
        “a need to ensure that contract opportunities provided to develop small mi-
        nority businesses not be transferred to non-disadvantaged firms outside the
        program.” Committee on Small Business, 100th Cong., Summary of Major
        Provisions of 

“The Business Opportunity Development
        Reform Act of 1988” 5 (Comm. Print. 1988). Which is why “with some excep-
        tions, contracts transferred by 8(a) companies will be terminated for the con-
        venience of the government.” 

USCA11 Case: 23-10600        Document: 48-1         Date Filed: 07/25/2024         Page: 25 of 42




        23-10600                   Opinion of the Court                               25

        intended to create such a large and obvious loophole in one of the
        key regulatory innovations of the [8(a) program].” County of Maui
        v. Haw. Wildlife Fund, 

, 178–79 (2020). 17
                All these considerations compel one conclusion: in this con-
        text, “participant” includes both nongraduated and graduated con-
        cerns. The 8(a) program rules on control and unconditional own-
        ership therefore still applied to DWG while it performed on its ex-
        isting 8(a) contracts.
        ii. Ownership
                That leads us to the District Court’s alternative ruling that,
        even if the control and ownership requirements applied, Relators
        failed to plausibly allege that Gose lost unconditional ownership of
        DWG. Relators argue that the District Court’s alternative ruling is

        17 Nor are we convinced that the three decisions of SBA’s Office of Hearing

        and Appeals cited by GAIC and NASCO support a different interpretation.
        None of these decisions deal with whether a graduated 8(a) contractor with
        ongoing contracts is still a participant. Instead, two of the decisions reiterate
        that 8(a) graduates are not eligible for new contracts or subcontracts.
        See FTSI-Phelps JV, 

, 

, at *8 & n.3 (Aug. 19,
        2014) (noting that the procurement was a “total small-business set-aside, not a
        competitive 8(a) procurement” and even if it were the contractor “would not
        be eligible because it had graduated” before the offer deadline); Reality Techs.,
        Inc., 

, 

, at *2 n.2 (Nov. 21, 2012) (explaining
        that an 8(a) graduate is considered non-disadvantaged for purposes of regula-
        tory restrictions on subcontracting). And the other dealt with an SBA decision
        to graduate a contractor from the 8(a) Program early. David’s Custom Roofing
        & Painting, Inc., 

, 

 (Mar. 16, 2010) (dismiss-
        ing as moot an SBA size determination appeal because the contractor’s
        “nine-year program term [had already] expired”).
USCA11 Case: 23-10600        Document: 48-1         Date Filed: 07/25/2024         Page: 26 of 42




        26                         Opinion of the Court                       23-10600

        wrong for two reasons. First, they contend that even if the District
        Court’s ownership analysis was correct, its analysis is not enough
        to dismiss their claims because 

(a) applies to a
        change in ownership or a change in control. That is, either can trig-
        ger contract termination and the court made no ruling on the di-
        vesture of Gose’s control. 18 Second, they assert that the complaint
        plausibly pled loss of unconditional ownership, pointing to the
        Right of First Refusal and Option Agreement and the Final MAS
        Agreement, the latter of which assigned 100% of DWG’s revenue
        to GAIC and NASCO. GAIC and NASCO adopt the District
        Court’s analysis and provide no response to Relators’ first point.
        We agree with Relators.
               

(a) mandates termination for the conven-
        ience of the Government “if one or more of the individuals upon
        whom eligibility for the 8(a) BD program was based relinquishes
        or enters into any agreement to relinquish ownership or control of
        the Participant.” (emphasis added). And 

(a)(21)(A)
        provides the same. The loss of either unconditional ownership or
        control triggers mandatory termination, absent SBA approval of a


        18 Relators also argue that the complaint plausibly pled that Gose lost control

        of DWG because he: (1) was shut out of all significant decision-making and
        access to financial and contractual information; (2) lost control over DWG’s
        board of directors; and (3) earned a salary that was less than two other non-dis-
        advantaged individuals at DWG. “Because the [D]istrict [C]ourt did not ad-
        dress these issues, we decline to do so here in the first instance.” See MSP Re-
        covery Claims, Series LLC v. Metro. Gen. Ins. Co., 

 (11th Cir.
        2022).
USCA11 Case: 23-10600         Document: 48-1          Date Filed: 07/25/2024          Page: 27 of 42




        23-10600                    Opinion of the Court                                 27

        waiver. See Int’l Data Prods. Corp. v. United States, 

 (2005). GAIC and NASCO do not refute this. And the District
        Court implicitly recognized this by analyzing both Relators’ loss of
        control (i.e., that the loss-of-control provision did not apply) and
        ownership allegations. 19 Because neither the District Court nor
        GAIC and NASCO have articulated any other reasons for challeng-
        ing Relators’ allegations about control, and given our holding
        above that the provision applied, there is no dispute that Relators
        sufficiently pled that Gose lost the requisite control by November
        15, 2012. We therefore need not address whether Relators also
        plausibly pled loss of ownership. 20


        19 To put a finer point on this, the “or” in 

(a) and 

(a)(21)(A) must be disjunctive. As we and the Supreme Court have ex-
        plained, “[t]he ‘ordinary use’ of ‘or’ ‘is almost always disjunctive,’ and ‘the
        words it connects are to be given separate meanings.’” Santos v. Healthcare Rev. Re-
        covery Grp., 

, 1153 (11th Cir. 2024) (per curiam) (quoting United
        States v. Woods, 

 (2013)). True, “statutory context can overcome
        the ordinary, disjunctive meaning of ‘or.’” Encinco Motorcars, LLC v. Navarro,
        

 (2018); Pulsifer v. United States, 

, 730–31 (2024)
        (noting that statutory construction can depend on “text in its legal context”).
        But context here reinforces the ordinary disjunctive meaning. Consider that
        admission to the 8(a) program requires both unconditional ownership and
        control by “one or more socially and economically disadvantaged individu-
        als.” 

; 

 §§ 124.105 to .106. If both ownership and control
        are required for admission, loss of either warrants mandatory termination.
        Otherwise, as explained above, the purpose of the 8(a) program is easily
        thwarted. See supra Section III.B.1.i.
        20 Were we to address the ownership pleading issue it might be an alternative

        holding because it is unnecessary to decide this case. True, alternative hold-
        ings are permissible. Cf. Bravo v. United States, 

, 1162–63 (11th
USCA11 Case: 23-10600        Document: 48-1         Date Filed: 07/25/2024         Page: 28 of 42




        28                         Opinion of the Court                       23-10600

        iii. The Fraudulent Inducement Theory
                The District Court also dismissed Relators’ false present-
        ment and false statement claims because those claims turned on a
        flawed fraudulent inducement theory. Under the District Court’s
        rationale, for false presentment claims “[t]he falsity or fraudulent
        conduct must . . . be found in a claim for payment.” Native Am.
        Servs. Corp., 

, at *7. And for false statement
        claims, there must be some “connection between the alleged false
        record or statement and an actual claim made to the government.”
        

.
               Relators argue that this reasoning conflicts with decisions
        across the country—including the Supreme Court and our Court.
        Relators add that the FCA should be construed broadly as it was
        intended to cover all types of fraud that might result in loss to the
        Government, including fraudulent inducement. GAIC and
        NASCO again adopt the District Court’s reasoning. And, relying
        on the Supreme Court’s decision in Universal Health Services, Inc. v.
        United States ex rel. Escobar, 

 (2016), and our deci-
        sion in Clausen, they emphasize that Relators did not allege any af-
        firmative misrepresentations within the content of any task order


        Cir. 2008) (explaining that alterative holdings “are as binding as solitary hold-
        ings”); Hodges v. Att’y Gen., State of Fla., 

 (11th Cir. 2007)
        (reaching an alternative holding). But they are “often just a bad idea” because
        they overstep the judiciary’s role, increase the likelihood of arriving at an in-
        correct opinion, increase the perception of impartiality, and risk upsetting col-
        legiality. United States v. Files, 

 (11th Cir. 2023) (Newsom &
        Tjoflat, JJ., concurring).
USCA11 Case: 23-10600         Document: 48-1          Date Filed: 07/25/2024          Page: 29 of 42




        23-10600                    Opinion of the Court                                 29

        bids or payment claims. Relators have the more persuasive argu-
        ment.
                “The False Claims Act . . . is ‘the Government’s primary lit-
        igative tool for combating fraud’ against the Government.” United
        States v. Corp. Mgmt., Inc. v. United States, 

, 732 (5th Cir.
        2023) (quoting S. Rep. No. 99-345, at 2 (1986)). To be sure, the FCA
        “is not ‘an all-purpose antifraud statute,’ or a vehicle for punishing
        garden-variety breaches of contract or regulatory violations.” Es-
        cobar, 

 (quoting Allison Engine Co. v. United States ex
        rel. Sanders, 

 (2008)). But “Congress wrote [the
        FCA] expansively, meaning ‘to reach all types of fraud, without
        qualification, that might result in financial loss to the Govern-
        ment.’” Cook County v. United States ex rel. Chandler, 

 (2003) (quoting United States v. Neifert–White Co., 

 (1968)). The question then is whether the FCA encompasses
        the type of fraud alleged by Relators here. Binding precedent from
        the Supreme Court and our Court provide the answer: yes. 21


        21 Other circuits have gone so far as to recognize that “[t]he legislative history

        of the FCA also supports the conclusion that fraud-in-the-inducement is a rec-
        ognized theory of liability under the Act.” In re Baycol Prods. Litig.,
        

 (8th Cir. 2013). When it amended the FCA in 1986, “Con-
        gress noted that, under FCA case law, ‘each and every claim submitted under
        a contract . . . or other agreement which was originally obtained by means of
        false statements or other corrupt or fraudulent conduct, or in violation of any
        statute or applicable regulation, constitutes a false claim.’” United States ex rel.
        Bettis v. Odebrecht Contractors of Cal., Inc., 

 (D.C. Cir. 2005)
        (quoting S. Rep. No. 99-345, at 9 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266,
        5274).
USCA11 Case: 23-10600      Document: 48-1      Date Filed: 07/25/2024      Page: 30 of 42




        30                      Opinion of the Court                  23-10600

        See United States ex rel. Marcus v. Hess, 

, 543–44 (1943),
        superseded in part on other grounds as noted in Schindler Elevator Corp.
        v. United States ex rel. Kirk, 

 (2011); Marsteller, 880 F.3d
        at 1314–15.
               The Supreme Court recognized this type of fraudulent in-
        ducement theory in Hess. There, electrical contractors colluded to
        ensure there would be no price competition on Public Works Ad-
        ministration (P.W.A.) projects. Hess, 

. In upholding
        the jury verdict for the relators, the Supreme Court explained that
        the
               fraud did not spend itself with the execution of the
               contract. Its taint entered into every swollen estimate
               which was the basic cause for payment of every dollar
               paid by the P.W.A. into the joint fund for the benefit
               of respondents. The initial fraudulent action and every
               step thereafter taken, pressed ever to the ultimate goal—
               payment of government money to persons who had caused
               it to be defrauded.
        

 at 543–44 (emphasis added).
               We also recognized the viability of the fraudulent induce-
        ment theory in Marsteller, noting that the theory was derived from
        Hess. 880 F.3d at 1314–15. Marsteller centered on allegations that a
        helicopter manufacturer “omitted lower-dollar sales” when provid-
        ing pricing data to the Army during the bid processes and failed to
        disclose conflicts of interest that “might have caused the Army to
USCA11 Case: 23-10600          Document: 48-1           Date Filed: 07/25/2024           Page: 31 of 42




        23-10600                     Opinion of the Court                                  31

        accept an inflated contract price.” Id. at 1305, 1315. 22 Citing the
        same Hess passage above, we explained our understanding of the
        fraudulent inducement theory: “[t]he contractor’s ultimate claims
        for payment were ‘grounded in fraud’ when the Government paid
        them, even though the ‘fraud’ occurred prior to the execution of
        the contract itself.” Id. at 1314 (quoting Hess, 

). That
        is, the “subsequent claims [were] false ‘because of an original fraud
        (whether a certification or otherwise).’” 

 (quoting United States
        ex rel. Hendow v. Univ. of Phoenix, 

 (9th Cir.
        2006)). On that logic, we agreed “that the allegations of the rela-
        tors’ complaint could support multiple theories of fraud in the in-
        ducement.” 

 23


        22 The pricing data was “presumably [needed] to establish the commercial rea-

        sonableness of the price proposed in [the manufacturer’s] bid.” Marsteller for
        use & benefit of the United States v. Tilton, 

 (11th Cir. 2018).
        FAR 12.209 requires contracting officers to “establish price reasonableness”
        and advises them to “be aware of customary commercial terms and conditions
        when pricing commercial products.” 

. That often requires
        contracting officers to compare “proposed prices to historical prices paid,
        whether by the Government or other than the Government, for the same or
        similar items.” 

 § 15.404-1(b)(2)(ii); see also id. §§ 13.106-3(a)(2)(ii), 14.408-2.
        23 We are not alone in our understanding of Hess. See, e.g., Harrsion v. Westing-

        house Savannah River Co., 

, 787–88 (4th Cir. 1999) (summarizing
        FCA cases and noting that FCA “liability attached . . . because of the fraud sur-
        rounding the efforts to obtain the contract or benefits status, or the payment
        thereunder”); United States ex rel. Longi v. United States, 

 (5th
        Cir. 2009) (“Under a fraudulent inducement theory, although the Defendants’
        ‘subsequent claims for payment made under the contract were not literally
        false, [because] they derived from the original fraudulent misrepresentation,
        they, too, became actionable false claims.’” (alteration in original) (quoting
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        32                          Opinion of the Court                         23-10600

                In rendering our opinion in Marsteller, we also explored the
        effect of the Supreme Court’s opinion in Escobar because the rela-
        tors’ complaint separately alleged an implied false certification the-
        ory. 24 Id. at 1311. We found Escobar “helpful in assessing the rela-
        tors’ fraud in the inducement theory,” but we were careful to note



        United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 

 (5th Cir. 2007))); United States v. United Techs. Corp., 

 (6th
        Cir. 2010) (“Hess establishes that an invoice, which itself does not contain a
        falsity, may supply the premise for a false claim if submitted in connection
        with a fraudulently obtained contract.”); United States ex rel. Main v. Oakland
        City Univ., 

 (7th Cir. 2005) (implicitly recognizing a fraudulent
        inducement theory where a university lied in phase one of a two-phase appli-
        cation for grants, loans, and scholarships but was not paid until it submitted
        its phase two application); In re Baycol Prods. Litig., 

 (“[W]hen a
        relator alleges liability under a theory of fraud-in-the[-]inducement, claims for
        payment subsequently submitted under a contract initially induced by fraud
        do not have to be false or fraudulent in and of themselves in order to state a
        cause of action under the FCA.”); United States ex rel. Hendow v. Univ. of Phoenix,
        

 (9th Cir. 2006) (describing Hess and explaining that the
        fraudulent inducement theory is viable because “subsequent claims are false
        because of an original fraud”); United States ex rel. Cimino v. IBM Corp.,
        

 (D.C. Cir. 2021) (“Under longstanding Supreme Court prece-
        dent, a violation of the FCA occurs when a person fraudulently induces the
        government to enter a contract and later submits claims for payment under
        that contract.”).
        24 As the Supreme Court described it, according to the implied false certifica-

        tion theory,
                when a defendant submits a claim, it impliedly certifies com-
                pliance with all conditions of payment. But if that claim fails
                to disclose the defendant’s violation of a material statutory,
                regulatory, or contractual requirement, . . . the defendant has
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        23-10600                   Opinion of the Court                               33

        that it was “far from self-evident that . . . the court’s assessment of
        the implied certification theory should control [the] disposition of
        the fraudulent inducement theory. Each theory of liability rests on
        different factual allegations.” Id. at 1315. In the end, we remanded
        for two reasons. First, we remanded so that the district court could
        “consider whether to allow the plaintiffs to file a second amended
        complaint that conform[ed] its allegations to the requirements of
        Escobar.” Id. And second, after “conclud[ing] that the complaint
        did plead fraud in the inducement, . . . we . . . remand[ed] so that
        the district court c[ould] reexamine the allegations relating to that
        theory.” Id.
                Under Marsteller, Relators’ fraudulent inducement theory is
        actionable. Our discussion of the fraudulent inducement theory of
        FCA liability and the rationale that an “original fraud” renders fu-
        ture claims for payment false, was integral to the part of the deci-
        sion to remand to the district court to assess the allegations pertain-
        ing to the relators’ claims. We see no reason why this does not
        bind our decision here. See United States v. Gillis, 

 (11th Cir. 2019) (per curiam) (“The holding of a case com-
        prises both the result of the case and those portions of the opinion
        necessary to that result.” (quoting United States v. Caraballo-Mar-
        tinez, 

 (11th Cir. 2017))).


                made a misrepresentation that renders the claim ‘false or
                fraudulent’ under § 3729(a)(1)(A).
        Universal Health Servs., Inc. v. United States ex rel. Escobar, 

        (2016).
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        34                        Opinion of the Court                       23-10600

                GAIC and NASCO cannot sidestep Marsteller with Escobar or
        Clausen. To begin, if Escobar prohibited FCA claims based on a
        fraudulent inducement theory—like GAIC and NASCO suggest
        that it does—we would not have remanded in Marsteller to evaluate
        the fraudulent inducement claim. And it is unsurprising that we
        did so. Escobar dealt with the implied false-certification theory in
        which the relators alleged that a mental health facility submitted
        Medicaid reimbursement claims with misleading representations
        and omissions. 579 U.S. at 184–85. The essential element of the
        relators’ claim was an implied false statement in the claims for pay-
        ment. Fraudulent inducement was not at issue in the case. No part
        of the Supreme Court’s analysis supports the proposition that a
        fraudulent inducement claim is viable only if the fraudulent activity
        is found in the claim for payment.
                Likewise, GAIC and NASCO cannot rely on Clausen to save
        their argument. Of course, the “sine qua non of a False Claims Act
        violation” is the “submission of a claim.” Clausen, 

.
        Nothing in Marsteller displaces that requirement. What Marsteller
        tells us is that the alleged falsity does not have to appear in the claim
        itself and can instead be traced to the execution of the contract—
        or in this case, bidding on individual task orders. 25 In the end, GAIC
        and NASCO’s attempt to make an end run around Marsteller does
        not hold up under scrutiny.


        25 Under 

(w)(2)(A), a bid on a contract set aside for small busi-

        ness concerns is deemed to be an “affirmative, willful, and intentional certifi-
        cation of small business size and status.”
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        23-10600               Opinion of the Court                         35

               Contrary to the District Court’s characterization, Relators’
        claims do not seek to use the FCA as an all-purpose antifraud stat-
        ute. Relators seek to hold GAIC and NASCO accountable for al-
        leged fraudulent conduct that caused the Government to award
        multiple task orders and pay millions of dollars to DWG instead of
        legitimate 8(a) contractors. That is well within the FCA’s purview.
        iv. Particularity
                That brings us to the District Court’s final reason for dismiss-
        ing Relators’ false presentment and false statement claims: Relators
        failed to plead fraud with particularity because they did not specify
        which bids or claims were supposedly fraudulent. Relators argue
        that because these claims are based on a fraudulent inducement
        theory, pointing to specific bids or task orders would not have
        added any particularity. Rather, by alleging the precise actions and
        events that made the bidding fraudulent (i.e., Gose’s loss of own-
        ership and control) and the details of the specific task orders that
        DWG fraudulently bid on, Relators contend that they have satisfied
        Rule 9(b). Relators add that, even if the precise details about the
        bids and claims are required, the allegations in the complaint give
        GAIC and NASCO more than enough information to put them on
        notice of the specific claims against them to prepare a defense.
                GAIC and NASCO retort that the details Relators pled are
        of “no moment.” Again relying on the District Court’s reasoning,
        they contend Rule 9(b) requires details of the particular bids and
        claims. GAIC and NASCO further assert that even if the particu-
        larity focus should be on the fraudulent inducement allegations,
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        36                      Opinion of the Court                   23-10600

        Realtors still failed to satisfy Rule 9(b) because Relators offered no
        details about the alleged duty to disclose DWG’s ineligibility. Rela-
        tors have the better arguments.
                “[T]o satisfy Rule 9(b)’s heightened-pleading requirements,
        the relator must allege . . . particular facts about ‘the “who,”
        “what,” “where,” “when,” and “how” of fraudulent submissions to
        the government.’” Urquilla-Diaz v. Kaplan Univ., 

        (11th Cir. 2015) (citation omitted) (quoting Corsello v. Lincare, Inc.,
        

 (11th Cir. 2005) (per curiam)). “Rule 9(b) serves
        two purposes: ‘alerting defendants to the precise misconduct with
        which they are charged and protecting defendants against spurious
        charges of immoral and fraudulent behavior.’” United States ex rel.
        84Partners, LLC v. Nuflo, Inc., 

, 1360 (11th Cir. 2023)
        (quoting Clausen, 

). “This second purpose is ‘espe-
        cially important’ in [FCA] cases filed by relators; in such cases the
        rule ‘ensures that the relator’s strong financial incentive to bring an
        FCA claim . . . does not precipitate the filing of frivolous suits.’” 

        (omission in original) (quoting United States ex rel. Atkins v. McInteer,
        

 (11th Cir. 2006)).
               That said, “a court considering a motion to dismiss for fail-
        ure to plead fraud with particularity should always be careful to
        harmonize the directives of [R]ule 9(b) with the broader policy of
        notice pleading.” Friedlander v. Nims, 

, 813 n.3 (11th Cir.
        1985), abrogated on other grounds by Wagner v. Daewoo Heavy Indus.
        Am. Corp., 

 (11th Cir. 2002) (en banc). Which is why a
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        23-10600                   Opinion of the Court                                 37

        sister circuit has aptly explained that a court should “hesitate to dis-
        miss a complaint under Rule 9(b) if the court is satisfied (1) that the
        defendant has been made aware of the particular circumstances for
        which she will have to prepare a defense at trial, and (2) that plain-
        tiff has substantial prediscovery evidence of those facts.” Harrison
        v. Westinghouse Savannah River Co., 

 (4th Cir.
        1999). 26
                Relators’ complaint satisfies these requirements. At its core,
        this is a fraudulent inducement case.27 As the Eighth Circuit has
        explained, “a claim alleging fraud in the inducement of a govern-
        ment contract . . . focus[es] on the false or fraudulent statements
        which induced the government to enter into the contract at the
        outset.” In re Baycol Prods. Litig., 

 (8th Cir. 2013).
        When a relator alleges liability under a fraudulent inducement the-
        ory, “claims for payment subsequently submitted under a contract
        [or task order] initially induced by fraud do not have to be false or


        26 Requiring plaintiffs to have substantial prediscovery evidence of those facts

        prevents plaintiffs from “learn[ing] the complaint’s bare essentials through dis-
        covery and . . . needlessly harm[ing] a defendant’s goodwill and reputation by
        bringing a suit that is, at best, missing some of its core underpinnings, and, at
        worst, are baseless allegations used to extract settlements.” United States ex rel.
        Clausen v. Lab’y Corp. of Am., Inc., 

, 1313 n.24 (11th Cir. 2002).
        27 Although paragraph 208 of Relator’s complaint suggests a separate implied

        false certification theory, Relators did not press this theory in response to
        GAIC’s and NASCO’s motions to dismiss. To the extent that Relators attempt
        to revive this theory in their reply brief, that attempt comes too late. See NLRB
        v. Allied Med. Transp., Inc., 

 (11th Cir. 2015) (“Arguments
        made for the first time in the reply brief . . . are forfeited.”).
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        38                     Opinion of the Court                23-10600

        fraudulent in and of themselves in order to state a cause of action
        under the FCA.” Id.; see also Harrison, 

. Specifying
        individual bids or claims—which themselves may not contain false
        information—adds little, if any, particularity concerning “the cir-
        cumstances constituting fraud” here. Fed. R. Civ. P. 9(b);
        Cf. Clausen, 

 & n.21 (listing some types of infor-
        mation that might help a plaintiff plead a claim under the FCA with
        particularity but cautioning that Rule 9(b) “does not mandate all of
        this information for any . . . alleged claims”). Instead, these addi-
        tional and unnecessary details contravene Rule 8’s “short and plain
        statement” mandate.
                As to the alleged fraudulent conduct, Relators’ complaint
        sufficiently identifies the who, what, where, when, and how. The
        complaint identifies (1) who participated in the alleged fraud:
        GAIC and NASCO; (2) what the alleged fraudulent activity was:
        bidding on task orders and submitting claims while not disclosing
        DWG’s inability to bid or seeking a waiver under 

(a)–(b); (3) details about where the alleged fraud took
        place: e.g., specific task orders that GAIC and NASCO fraudulently
        bid under, the contract numbers, places of performance, award
        dates, and end dates, and so on; (4) when DWG became ineligible
        to bid thereby rendering any later bids or claims to be false: Novem-
        ber 15, 2012; and (5) how the alleged fraudulent activity occurred:
        GAIC and NASCO caused Gose to lose 51% unconditional owner-
        ship, control, or both, and that GAIC and NASCO were aware of
        the ramifications of this.
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        23-10600               Opinion of the Court                        39

                We fail to see how Relators’ allegations are not enough to
        state a claim for relief under a fraudulent inducement theory. Un-
        like other fraudulent inducement FCA cases in which the allega-
        tions have “fallen short,” here there is more than enough infor-
        mation to put GAIC and NASCO on notice of the specific claims
        against them and to allow them to prepare a defense. See, e.g.,
        Clausen, 

 & n.21. GAIC and NASCO know the de-
        tails of the alleged fraud, the precise contracts at issue, the places
        of performance, and the alleged date DWG became ineligible to
        bid. Nothing prevents GAIC and NASCO from reviewing the spe-
        cific bids, task orders, and payment claims associated with those
        contracts to prepare a defense. And Relators have substantial pre-
        discovery evidence of those facts, as shown by the detailed com-
        plaint and accompanying exhibits. We therefore conclude that Re-
        lators’ allegations comply with Rule 9(b).
                               2. Conspiracy Claims
                Finally, we arrive at the District Court’s dismissal of Rela-
        tors’ conspiracy claims. It did so because it found that Relators had
        failed to state a claim under § 3729(a)(1)(A)–(B) and failed to plead
        any conspiracy with particularity. Relators contend that their com-
        plaint pled conspiracy claims with particularity. They point to the
        complaint’s allegations about communications and meetings be-
        tween GAIC and NASCO to seize ownership and control over
        DWG and the Final MAS agreement, which memorialized the con-
        spiracy. Again, GAIC and NASCO rely on the District Court’s anal-
        ysis. As we have already explained, we disagree with the District
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        40                       Opinion of the Court                     23-10600

        Court’s conclusion on Relators’ § 3729(a)(1)(A)–(B) claims. So we
        limit our discussion here to why we agree with Relators that their
        conspiracy claims satisfy Rule 9(b).
              As well as imposing liability for presenting false claims and
        making false statements, the FCA makes liable any person who
        “conspires to commit a violation of ” the FCA. See 

(a)(1)(C). To state a claim for conspiracy under the FCA,
               the plaintiff must show “(1) that the defendant con-
               spired with one or more persons to get a false or
               fraudulent claim paid by the United States; (2) that
               one or more of the conspirators performed any act to
               effect the object of the conspiracy; and (3) that the
               United States suffered damages as a result of the false
               or fraudulent claim.”
        Corsello, 

 (quoting United States ex rel. Stinson v. Prov-
        ident Life & Accident Ins. Co., 

 (S.D. Fla. 1989))
        (interpreting the pre-amendment version of the statute). 28 And, as
        with other FCA claims, “a plaintiff alleging a conspiracy to commit
        fraud must ‘plead with particularity the conspiracy as well as the
        overt acts . . . taken in furtherance of the conspiracy.’” United States
        ex rel. Grubbs v. Kanneganti, 

 (5th Cir. 2009) (omis-
        sion in original) (quoting FC Inv. Grp. LC v. IFX Markets, Ltd.,

        28 As our Court has mentioned in an unpublished opinion, “it is not clear

        whether damages remain a required element under the new conspiracy pro-
        vision following the 2009 amendments.” United States v. HPC Healthcare, Inc.,
        

, 791 n.4 (11th Cir. 2018). We need not answer that question
        because Relators have pled that the United States suffered damages.
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        23-10600               Opinion of the Court                         41

        

 (D.C. Cir. 2008), overruled on other grounds by Er-
        win-Simpson v. AirAsia Berhad, 

 (D.C. Cir. 2021)).
               Relators’ complaint not only pleads these elements, but it
        does so with particularity by “alleg[ing] ‘facts as to time, place, and
        substance of [GAIC and NASCO’s] alleged fraud,’ [including] ‘the
        details of [GAIC and NASCO’s] allegedly fraudulent acts, when
        they occurred, and who engaged in them.’” Urquilla-Diaz, 

 (quoting Cooper v. Blue Cross & Blue Shield of Fla., Inc.,
        

, 567–68 (11th Cir. 1994) (per curiam)). Relators’ com-
        plaint alleges that through a series of emails (on August 3–6, 2012),
        phone calls (on August 6, 2012), and in-person meetings in Cincin-
        nati (on August 8, 2012, and September 23, 2012), GAIC and
        NASCO formed a conspiratorial agreement to seize ownership and
        control of DWG, even going so far as to name the executives who
        orchestrated the agreement. The complaint alleges that the con-
        spiracy was reduced to writing in the Final MAS Agreement, which
        was attached to the complaint. What’s more, the complaint also
        alleges that GAIC and NASCO: (1) agreed not to notify or seek a
        waiver from the SBA; (2) instructed DWG not to notify the SBA
        and (3) agreed to and did bid on future task orders under the 8(a)
        contracts, despite the lack of waiver.
               We are satisfied that Relators’ complaint adequately states a
        claim for conspiracy under the FCA and does so with the particu-
        larity Rule 9(b) requires. As with Relators’ false presentment and
        false statement claims, the complaint contains sufficient infor-
        mation on which GAIC and NASCO can prepare a defense. And,
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        42                    Opinion of the Court                23-10600

        like Relators’ other claims, they have substantial prediscovery evi-
        dence of those facts, as shown by the complaint and exhibits.
                                 IV. Conclusion
               We hold that, at this procedural stage, Relators’ complaint
        plausibly alleges false presentment, false statement, and conspiracy
        claims under 

(a)(1)(A)–(C) against GAIC and
        NASCO. We therefore reverse and remand this case to the District
        Court for further proceedings consistent with this opinion.
              REVERSED AND REMANDED.