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

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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. USCA11 Case: 23-10600 Document: 48-1 Date Filed: 07/25/2024 Page: 2 of 42

2 Opinion of the Court 23-10600

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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 15 U.S.C. § 637; 48 C.F.R. § 19.501. 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. 13 C.F.R. § 124.515(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). USCA11 Case: 23-10600 Document: 48-1 Date Filed: 07/25/2024 Page: 3 of 42

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 Am