## Facts

- The General Services Administration (GSA) issued a negotiated solicitation for irons and related items, requiring offerors to sign a “Certificate of Independent Price Determination.”
- The certificate represented, among other things, that the offeror’s prices were independently determined, had not been and would not be disclosed to competitors before award, and that no attempt had been made or would be made to induce anticompetitive bidding conduct.
- Nitin Shah, president of Omega Electronics, prepared and submitted an offer containing the signed certificate.
- Before submitting the offer, Shah contacted Jerome Kipper, a competitor, and proposed that they share bid information so they could split the award.
- After Kipper reported the proposal to GSA, Kipper—under GSA supervision—called Shah back and agreed to exchange bids by fax.
- Shah faxed Kipper a copy of his bid; Kipper faxed back fictitious pricing information.
- Shah was charged and convicted under 18 U.S.C. § 1001 for making a false statement to a federal agency based on the certification.

## Issues

1. Whether the evidence was sufficient to prove the certification was false and made with specific intent to deceive, given Shah’s claim it was only a promise about future conduct.
2. Whether the district court reversibly erred by refusing Shah’s requested theory-of-defense jury instruction concerning promises and § 1001 falsity.

## Decision

- The Fifth Circuit affirmed the conviction.
- The court held the evidence permitted a rational jury to find Shah’s certification false and made with specific intent to deceive GSA.
- The court held the district court did not err in refusing the requested defense instruction because the instructions given adequately covered the governing law and allowed Shah to argue his theory.

## Legal Principles

- To prove a violation of 18 U.S.C. § 1001, the government must show: (1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction.
- A certification in a government procurement may be treated as a statement of fact (including present intent), not merely a nonactionable future promise.
- A promise may constitute a false statement under § 1001 when, in context, it misrepresents the speaker’s present intent (e.g., the speaker has no intent to perform when the promise is made).
- Bid-related representations regarding independent price determination and non-disclosure to competitors before award are material because they bear on the integrity of the procurement decision.
- A defendant is entitled to a theory-of-defense instruction only if it correctly states the law, is not substantially covered by the charge, and is so important that omission seriously impairs the defense.

## Conclusion

The Fifth Circuit upheld Shah’s § 1001 conviction because the certification was reasonably construed as asserting present compliance and intent, and the record supported findings that Shah sought to exchange bids and disclosed his bid to a competitor before award, making the certification false and material; the jury instructions as a whole adequately presented the law and did not require Shah’s requested additional instruction.


United States v. Shah, 44 F.3d 285 (5th Cir. 1995)