[Congressional Record Volume 167, Number 138 (Tuesday, August 3, 2021)]
[Senate]
[Pages S5776-S5777]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2435. Mr. GRASSLEY (for himself and Mr. Leahy) submitted an 
amendment intended to be proposed to amendment SA 2137 proposed by Mr. 
Schumer (for Ms. Sinema (for herself, Mr. Portman, Mr. Manchin, Mr. 
Cassidy, Mrs. Shaheen, Ms. Collins, Mr. Tester, Ms. Murkowski, Mr. 
Warner, and Mr. Romney)) to the bill H.R. 3684, to authorize funds for 
Federal-aid highways, highway safety programs, and transit programs, 
and for other purposes; which was ordered to lie on the table; as 
follows:

        At the end of division G, insert the following:

                  TITLE XII--ANTI-FRAUD AMENDMENTS ACT

     SEC. 71201. SHORT TITLE.

       This title may be cited as the ``Anti-Fraud Amendments 
     Act''.

                  Subtitle A--False Claims Procedures

     SEC. 71201. FALSE CLAIMS PROCEDURE.

       (a) Proving Materiality.--Section 3729 of title 31, United 
     States Code, is amended by adding at the end the following:
       ``(e) Proving Materiality.--
       ``(1) In general.--In an action under this section, the 
     Government or relator may establish materiality by a 
     preponderance of the evidence.
       ``(2) Rebuttal.--A defendant may rebut evidence of 
     materiality under paragraph (1) only by clear and convincing 
     evidence that the Government regards the matter as 
     immaterial.''.
       (b) Costs.--Section 3731 of title 31, United States Code, 
     is amended by adding at the end the following:
       ``(f) If the Government elects not to intervene in an 
     action brought under section 3730(b), the court shall, upon a 
     motion by the Government, order the requesting party to pay 
     the Government's expenses, including costs and attorneys' 
     fees, for responding to the party's discovery requests, 
     unless the party can demonstrate that the information sought 
     is relevant and proportionate to the needs of the case.''.

     SEC. 71202. RIGHTS OF THE PARTIES TO QUI TAM ACTIONS.

       Section 3730(c)(2)(A) of title 31, United States Code, is 
     amended by inserting before the period at the end the 
     following: ``, at which the Government shall have the burden 
     of demonstrating reasons for dismissal, and the qui tam 
     plaintiff shall have the opportunity to show that the reasons 
     are fraudulent, arbitrary and capricious, or contrary to 
     law''.

     SEC. 71203. POST-EMPLOYMENT WHISTLEBLOWER RETALIATION.

       Section 3730(h)(1) of title 31, United States Code, is 
     amended by inserting ``current or former'' after ``Any''.

     SEC. 71204. GAO REPORT.

       Not later than 18 months after the date of enactment of 
     this Act, the Comptroller General of the United States shall 
     submit a report to Congress on the effectiveness of the False 
     Claims Act (31 U.S.C. 3729 et seq.) during the time period 
     beginning on the date of enactment of the False Claims 
     Amendments Act of 1986 (Public Law 99-562; 100 Stat. 3153) 
     and ending on the date of enactment of this Act, which shall 
     include--
       (1) a description of the benefits and challenges of 
     enforcement efforts under the False Claims Act (31 U.S.C. 
     3729 et seq.); and
       (2) information on the amounts recovered by the Government 
     under the False Claims Act since the date of enactment of the 
     False Claims Amendments Act of 1986 (Public Law 99-562; 100 
     Stat. 3153).

     SEC. 71205. APPLICABILITY.

       The amendments made by sections 71201, 71202, and 71203 of 
     this Act shall apply to any case under the False Claims Act 
     (31 U.S.C. 3729 et seq.) that is--
       (1) filed on or after the date of enactment of this Act; or
       (2) pending on the date of enactment of this Act.

                Subtitle B--Administrative False Claims

     SEC. 71211. 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).''.
       (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 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.--

[[Page S5777]]

       (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 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
       (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 
     subtitle and the amendments made by this subtitle; and
       (2) review and update existing regulations and procedures 
     of the authority to ensure compliance with this subtitle and 
     the amendments made by this subtitle.
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