DOJ involvement in whistleblower case turns up heat on Oracle

Federal cases alleging overpricing on IT products aren't unusual

WASHINGTON - The involvement of the U.S. Department of Justice in a whistleblower case against Oracle Corp., alleging that it overcharged government customers, significantly raises the legal stakes for the company.

When the DOJ gets involved in a whistleblower case, it means that it has found merit in the allegations. The government applies it resources in gathering additional evidence, effectively taking over the case.

It is not uncommon for IT vendors to get ensnared in accusations of contract overcharging. Their typical course of action is to move relatively quickly to resolve them.

EMC Corp., for instance, faced allegations from the Justice Department that it gave kickbacks and overpriced some products. In May, about a year after the government brought its charges, the company paid $87.5 million to settle the case while continuing to deny the allegations.

In 2008, IBM was suspended by the U.S. Environmental Protection Agency from seeking U.S. government work after it became the subject of an investigation into possible violation of procurement rules. The suspension, however, only lasted a week.

IBM moved quickly , said Ray Bjorklund, a vice president at consulting firm Federal Sources Inc. in McLean, Va. "I gave IBM a lot of credit for admitting that there was probably an issue to deal with and spending the time to deal with it," he said.

Large companies that take a constructive approach in responding to the government "are going to be more successful in the long run," said Bjorklund. The government "needs the offerings that many of those large companies provide because they've got a business to run."

U.S. agencies, including the Defense Department, spent $189 million in 2009 on Oracle products, and in 2008, $197 million, according to data on the USAspending.gov site.

The whistleblower lawsuit was filed by Paul Frascella in May 2007. He was a contract specialist at Oracle but no longer works for the company, his attorney, Christopher Mead, confirmed.

The lawsuit alleges that Oracle failed to disclose the discounts it offered to its most favored customers, resulting in overcharges to the federal government totaling tens of million dollars.

The lawsuit cites a number of examples of Oracle's providing discounts to customers, some of which go back a decade or more. In one comparison, the lawsuit says that the Chicago Mercantile Exchange (CME) was given a 65% discount on purchases that grew to 70% if its purchases exceeded $2 million. The lawsuit alleges that the federal government was entitled to a discount of 70% on its aggregate purchases as well, "because it was a far more significant aggregate purchaser of Oracle's products than CME."

"If Oracle was willing to retroactively amend previous contracts to allow commercial customers to take advantage of the deeper discount levels in the previous contracts, Oracle should have offered that same opportunity to each government agency," the lawsuit alleges.

Oracle was required to update the General Services Administration when commercial discounts were improved, and then extend the same improved discounts to government purchasers, according to a DOJ spokesperson.

Oracle declined comment on the government action. The case was filed in 2007 and unsealed in April.

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Patrick Thibodeau

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