99 S2429 RS: Administrative False Claims Act of 2021
U.S. Senate
2021-07-22
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
Calendar No. 162
117th CONGRESS
1st Session
S. 2429
IN THE SENATE OF THE UNITED STATES
July 22, 2021
Mr. Grassley (for himself, Mr. Durbin, Ms. Hassan, Mr. Lankford, Mr. Portman, Mr. Blumenthal, Mr. Leahy, and Mr. Kennedy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
November 1, 2021
Reported by Mr. Durbin, with amendments
Omit the part struck through and insert the part printed in italic
A BILL
To amend chapter 38 of title 31, United States Code, relating to civil remedies, and for other purposes.
1.

Short title
This Act may be cited as the “Administrative False Claims Act of 2021”.
2.

Administrative false claims
(a)

Change in short title
(1)

In general
Subtitle B of title VI of the Omnibus Budget Reconciliation Act of 1986 (Public Law 99–509; 100 Stat. 1934) is amended—
(A)
in the subtitle heading, by striking “Program Fraud Civil Remedies” and inserting “Administrative False Claims”; and
(B)
in section 6101 (31 U.S.C. 3801 note), by striking “Program Fraud Civil Remedies Act of 1986” and inserting “Administrative False Claims Act”.
(2)

References
Any reference to the Program Fraud Civil Remedies Act of 1986 in any provision of law, regulation, map, document, record, or other paper of the United States shall be deemed a reference to the Administrative False Claims Act.
(b)

Reverse false claims
Chapter 38 of title 31, United States Code, is amended—
(1)
in section 3801(a)(3), by amending subparagraph (C) to read as follows:
“(C)
made to an authority which has the effect of concealing or improperly avoiding or decreasing an obligation to pay or transmit property, services, or money to the authority,.”; and
(2)
in section 3802(a)(3)—
(A)
by striking “An assessment” and inserting “(A) Except as provided in subparagraph (B), an assessment”; and
(B)
by adding at the end the following:
“(B)
In the case of a claim described in section 3801(a)(3)(C), an assessment shall not be made under the second sentence of paragraph (1) in an amount that is more than double the value of the property, services, or money that was wrongfully withheld from the authority.”.
(c)

Increasing dollar amount of claims
Section 3803(c) of title 31, United States Code, is amended—
(1)
in paragraph (1), by striking “$150,000” each place that term appears and inserting “$1,000,000”; and
(2)
by adding at the end the following:
“(3)

Adjustment for inflation
The maximum amount in paragraph (1) shall be adjusted for inflation in the same manner and to the same extent as civil monetary penalties under the Federal Civil Penalties Inflation Adjustment Act (28 U.S.C. 2461 note).
(3)

Adjustment for inflation
The maximum amount in paragraph (1) shall be adjusted for inflation in the same manner and to the same extent as civil monetary penalties under the Federal Civil Penalties Inflation Adjustment Act (28 U.S.C. 2461 note).”.
(d)

Recovery of costs
Section 3806(g)(1) of title 31, United States Code, is amended to read as follows:
“(1)
(A)
Except as provided in paragraph (2)—
(i)
any amount collected under this chapter shall be credited first to reimburse the authority or other Federal entity that expended costs in support of the investigation or prosecution of the action, including any court or hearing costs; and
(ii)
amounts reimbursed under clause (i) shall—
(I)
be deposited in—
- (aa)
the appropriations account of the authority or other Federal entity from which the costs described in subparagraph (A) were obligated;
- (bb)
a similar appropriations account of the authority or other Federal entity; or
- (cc)
if the authority or other Federal entity expended nonappropriated funds, another appropriate account; and
(II)
remain available until expended.
(B)
Any amount remaining after reimbursements described in subparagraph (A) shall be deposited as miscellaneous receipts in the Treasury of the United States.”.
(e)

Semiannual reporting
Section 5(b) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—
(1)
in paragraph (4), by striking “and” at the end;
(2)
by redesignating paragraph (5) as paragraph (6); and
(3)
by inserting after paragraph (4) the following:
“(5)
information relating to cases under chapter 38 of title 31, United States, including—
(A)
the number of reports submitted by investigating officials to reviewing officials under section 3803(a)(1) of title 31, United States Code;
(B)
actions taken in response to reports described in subparagraph (A), which shall include statistical tables showing—
(i)
pending cases;
(ii)
resolved cases;
(iii)
the average length of time to resolve each case;
(iv)
the number of final agency decisions that were appealed to a district court of the United States or a higher court; and
(v)
if the total number of cases in a report is greater than 2—
(I)
the number of cases that were settled; and
(II)
the total penalty or assessment amount recovered in each case, including through a settlement or compromise; and
(C)
instances in which the reviewing official declined to proceed on a case reported by an investigating official; and”.
(f)

Increasing efficiency of DOJ processing
Title 31, United States Code, is amended—
(1)
in section 3803(j)—
(A)
by inserting “(1)” before “The reviewing”; and
(B)
by adding at the end the following:
“(2)
A reviewing official shall notify the Attorney General in writing not later than 30 days before entering into any agreement to compromise or settle allegations of liability under section 3802 of this title and before the date on which the reviewing official is permitted to refer allegations of liability to a presiding officer under subsection (b).”; and
(2)
in the table of sections for chapter 38, by striking the item relating to section 3812 and inserting the following:
“3812. Delegation authority.”; and
(2)(3)
in section 3812—
(A)
in the section heading, by striking “Prohibition against delegation” and inserting “Delegation authority”; and
(B)
by striking “, shall not be delegated to, or carried out by,” and inserting “may be delegated to”.
(g)

Revision of definition of hearing officials
(1)

In general
Chapter 38 of title 31, United States Code, is amended—
(A)
in section 3801(a)(7)—
(i)
in subparagraph (A), by striking “or” at the end;
(ii)
in subparagraph (B)(vii), by adding “or” at the end; and
(iii)
by adding at the end the following:
“(C)
a member of the board of contract appeals pursuant to section 7105 of title 41, if the authority does not employ an available presiding officer under subparagraph (A);”; and
(B)
in section 3803(d)(2)—
(i)
in subparagraph (A), by striking “and” at the end;
(ii)
in subparagraph (B)—
(I)
by striking “the presiding” and inserting “(i) in the case of a referral to a presiding officer described in subparagraph (A) or (B) of section 3801(a)(7), the presiding”;
(II)
in clause (i), as so designated, by striking the period at the end and inserting “; or”adding “or” at the end; and
(III)
by adding at the end the following:
“(ii)
in the case of a referral to a presiding officer described in subparagraph (C) of section 3801(a)(7)—
(I)
the reviewing official shall submit a copy of the notice required by under paragraph (1) and of the response of the person receiving such notice requesting a hearing—
- (aa)
to the board of contract appeals that has jurisdiction over matters arising from the agency of the reviewing official pursuant to section 7105(e)(1) of title 41; or
- (bb)
if the Chair of the board of contract appeals declines to accept the referral, to any other board of contract appeals; and
(II)
the reviewing official shall simultaneously mail, by registered or certified mail, or shall deliver, notice to the person alleged to be liable under section 3802 that the referral has been made to an agency board of contract appeals with an explanation as to where the person may obtain the relevant rules of procedure promulgated by the board.; and”; and
(iii)
by adding at the end the following:
“(C)
in the case of a hearing conducted by a presiding officer described in subparagraph (C) of section 3801(a)(7)—
(i)
the presiding officer shall conduct the hearing according to the rules and procedures promulgated by the board of contract appeals; and
(ii)
the hearing shall not be subject to the provisions in subsection (g)(2), (h), or (i).”.
(2)

Agency boards
Section 7105(e) of title 41, United States Code, is amended—
(A)
in paragraph (1), by adding at the end the following:
“(E)

Administrative False Claims Act
(i)

In general
The boards described in subparagraphs (B), (C), and (D) shall have jurisdiction to hear any case referred to a board of contract appeals under section 3803(d) of title 31.
(ii)

Declining referral
If the Chair of a board described in subparagraph (B), (C), or (D) determines that accepting a case under clause (i) would prevent adequate consideration of other cases being handled by the board, the Chair may decline to accept the referral.”; and
(B)
in paragraph (2), by inserting “or, in the event that a case is filed under chapter 38 of title 31, any relief that would be available to a litigant under that chapter” before the period at the end.
(3)

Regulations
Not later than 180 days after the date of enactment of this Act, each authority head, as defined in section 3801 of title 31, United States Code, and each board of contract appeals of a board described in subparagraphs (B), (C), and (D) of section 7105(e) of title 41, United States Code, shall amend procedures regarding proceedings as necessary to implement the amendments made by this subsection.
(h)

Revision of limitations
Section 3808 of title 31, United States Code, is amended by striking subsection (a) and inserting the following:
“(a)
A notice to the person alleged to be liable with respect to a claim or statement shall be mailed or delivered in accordance with section 3803(d)(1) of this title not later than the later of—
(1)
6 years after the date on which the violation of section 3802 of this title is committed; or
(2)
3 years after the date on which facts material to the action are known or reasonably should have been known by the authority head, but in no event more than 10 years after the date on which the violation is committed.”.
(i)

Definitions
Section 3801 of title 31, United States Code, is amended—
(1)
in subsection (a)—
(A)
in paragraph (8), by striking “and” at the end;
(B)
in paragraph (9), by striking the period at the end and inserting a semicolon; and
(C)
by adding at the end the following:
“(10)
material has the meaning given the term in section 3729(b) of this title; and
(11)
obligation has the meaning given the term in section 3729(b) of this title.”; and
(2)
by adding at the end the following:
“(d)
For purposes of subsection (a)(10), materiality shall be determined in the same manner as under section 3729 of this title.”.
(j)

Promulgation of regulations
Not later than 180 days after the date of enactment of this Act, each authority head, as defined in section 3801 of title 31, United States Code, shall—
(1)
promulgate regulations and procedures to carry out this Act and the amendments made by this Act; and
(2)
review and update existing regulations and procedures of the authority to ensure compliance with this Act and the amendments made by this Act.
November 1, 2021
Reported with amendments