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3344. For purposes of this part, the 1264.130 Determining the amount of pen ALJ shall be referred to as the presidalties and assessments.

ing officer. 1264.131 Location of hearing. 1264.132 Witnesses.

(b) Authority means the National 1264.133 Evidence.

Aeronautics and Space Administration 1264.134 The record.

(NASA). 1264.135 Post-hearing briefs.

(c) Authority head means the NASA 1264.136 Initial decision.

Administrator or Deputy Administra1264.137 Reconsideration of initial deci.

tor or designee. For purposes of this sion.

regulation, the NASA General Counsel 1264.138 Appeal to authority head. 1264.139 Stays ordered by the Department

or Deputy General Counsel is desig. of Justice.

nated legal counsel to the Authority 1264.140 Stay pending appeal.

head. 1264.141 Judicial review.

(d) Benefit means, in the context of 1264.142 Collection of civil penalties and statement, anything of value, includ. assessments.

ing but not limited to any advantage, 1264.143 Right to administrative offset. 1264.144 Deposit in Treasury of United

preference, privilege, license, permit, States.

favorable decision, ruling, status, or 1264.145 Compromise or settlement.

loan guarantee. 1264.146 Limitations.

(e) Claim means any request, APPENDIX A TO PART 1264-NOTICE TO CON- demand, or submission

SENT TO THE CHAIRPERSON, NASA BOARD (1) Made to the authority for propOF CONTRACT APPEALS (BCA), OR DESIG erty, services, or money (including NEE, AS PRESIDING OFFICER

money representing grants, loans, inAUTHORITY: 31 U.S.C. 3809, 42 U.S.C. surance, or benefits); 2473(c)(1).

(2) Made to a recipient of property, SOURCE: 52 FR 39498, Oct. 22, 1987, unless services, or money from the authority otherwise noted.

or to a party to a contract with the au

thority8 1264.100 Basis and purpose.

(i) For property or services if the (a) Basis. This part implements the United StatesProgram Fraud Civil Remedies Act of (A) Provided such property or serv1986, Pub. L. 99-509, sections 6101- ices; 6104, 100 Stat. 1874 (October 21, 1986), (B) Provided any portion of the to be codified at 31 U.S.C. 3801-3812. funds for the purchase of such proper31 U.S.C. 3809 of the statute requires ty or services; or each authority head to promulgate (C) Will reimburse such recipient or regulations necessary to implement party for the purchase of such properthe provisions of the statute.

ty or services; or (b) Purpose. This part does the fol. (ii) For the payment of money (inlowing:

cluding money representing grants, (1) Establishes administrative proce- loans, insurance, or benefits) if the dures for imposing civil penalties and United Statesassessments against persons who (A) Provided any portion of the make, submit, or present, or cause to money requested or demanded; or be made, submitted, or presented, (B) Will reimburse such recipient or false, fictitious, or fraudulent claims party for any portion of the money or written statements to authorities or paid on such request or demand; or to their agents; and

(iii) Made to the authority which (2) Specifies the hearing and appeal has the effect of decreasing an oblig&rights of persons subject to allegations tion to pay or account for property, of liability for such penalties and as services, or money. sessments.

(f) Complaint means the administra

tive complaint served by the reviewing 8 1264.101 Definitions.

official on the defendant under (a) ALJ means an Adiministrative $ 1264.106. Law Judge in the authority appointed (g) Consent hearing means that the pursuant to 5 U.S.C. 3105 or detailed authority and the defendant consent, to the authority pursuant to 5 U.S.C. as provided in 8 1264.106(c), that the

presiding officer be the Chairperson of amination process applicable to adthe NASA Board of Contract Appeals ministrative law judges; (BCA). The Chairperson may desig (2) Is appointed by the authority nate another administrative judge of head to conduct hearings under this the NASA BCA as presiding officer in part; a consent hearing.

(3) Is assigned to cases in rotation so (h) Defendant means any person al far as practicable; leged in a complaint under $ 1264.106 (4) May not perform duties inconto be liable for a civil penalty or as- sistent with the duties and responsibilsessment under $ 1264.102.

ities of a presiding officer; (i) Government means the United (5) Is entitled to pay prescribed by States Government.

the Office of Personnel Management (j) Individual means a natural independently of ratings and recomperson.

mendations made by the authority (k) Initial decision means the writ and in accordance with Chapter 51 of ten decision of the ALJ or presiding such Title and Subchapter III of officer required by $ 1264.109 or Chapter 53 of such Title; $ 1264.136, and includes a revised ini. (6) Is not subject to performance aptial decision issued following a remand praisal pursuant to Chapter 43 of such or a motion for reconsideration.

Title; and (1) Investigating official means the (7) May be removed, suspended, furNASA Inspector General, or designee loughed, or reduced in grade or pay who is serving in a position for which only for good cause established and the rate of basic pay is not less than determined by the Merit Systems Prothe minimum rate of basic pay for tection Board on the record after opgrade GS-16 under the General portunity for hearing by such Board. Schedule.

(q) Representative means an attor(m) Knows or has reason to know, ney who is in good standing of the bar means that a person with respect to a of any State, Territory, or possession claim or statement

of the United States, or of the District (1) Has actual knowledge that the of Columbia, or of the Commonwealth claim or statement is false, fictitious, of Puerto Rico. or fraudulent;

(r) Reviewing official means the (2) Acts in deliberate ignorance of NASA Associate Administrator for the truth or falsity of the claim or Management. For purposes of this regstatement; or

ulation, the Associate General Counsel (3) Acts in reckless disregard of the (General) or designee is designated truth or falsity of the claim or state legal counsel to the Reviewing official. ment.

(s) Statement means any representa(n) Makes, wherever it appears, shall tion, certification, affirmation, docuinclude the terms presents, submits, ment, record, or accounting or bookand causes to be made, presented, or keeping entry madesubmitted. As the context requires, (1) With respect to a claim or to making or made shall likewise include obtain the approval or payment of a the corresponding forms of such claim (including relating to eligibility terms.

to make a claim); or (0) Person means any individual, (2) With respect to (including relatpartnership, corporation, association, ing to eligibility for)or private organization, and includes (i) A contract with, or a bid or prothe plural of that term.

posal for a contract with; or (p) Presiding officer, except as pro (ii) A grant, loan, or benefit from the vided for pursuant to consent trial authority, or any State, political subnotice, means (if the authority is not division of a State, or other party, if subject to the provisions of Subchap- the United States Government proter II of Chapter 5, Title 5, U.S.C.) an vides any portion of the money or officer or employee of the authority property under such contract or for who

such grant, loan, or benefit, or if the (1) Is selected under Chapter 33 of Government will reimburse such Title 5 pursuant to the competitive ex- State, political subdivision, or party for any portion of the money or prop- sustained by the Government because erty under such contract or for such of such claim. grant, loan, or benefit.

(b) Statements. (1) Any person who (52 FR 39498, Oct. 22, 1987, as amended at

makes a written statement that54 FR 599, Jan. 9, 1989)

(i) The person knows or has reason

to know8 1264.102 Basis for civil penalties and as (A) Asserts a material fact which is sessments.

false, fictitious, or fraudulent; or (a) Claims. (1) Any person who

(B) Is false, fictitious, or fraudulent makes a claim that the person knows

because it omits a material fact that or has reason to know

the person making the statement has (i) Is false, fictitious, or fraudulent;

a duty to include in such statement; (ii) Includes or is supported by any

and written statement which asserts a ma

(ii) Contains or is accompanied by an terial fact which is false, fictitious, or

express certification or affirmation of

the truthfulness and accuracy of the fraudulent; (iii) Includes or is supported by any

contents of the statementwritten statement that

Shall be subject, in addition to any (A) Omits a material fact;

other remedy that may be prescribed (B) Is false, fictitious, or fraudulent by law, to a civil penalty of not more as a result of such omission; and

than $5,000 for each such statement. (C) Is a statement in which the

(2) Each written representation, cerperson making such statement has a

tification, or affirmation constitutes a duty to include such material fact; or separate statement. (iv) Is for payment for the provision

(3) A statement shall be considered of property or services which the made to the authority when such person has not provided as claimed

statement is actually made to an Shall be subject, in addition to any

agent, fiscal intermediary, or other other remedy that may be prescribed

entity, including any State or political

subdivision thereof, acting for or on by law, to a civil penalty of not more

behalf of the authority. than $5,000 for each such claim. (2) Each voucher, invoice, claim

(c) No proof of specific intent to deform, or other individual request or

fraud is required to establish liability demand for property, services, or

under this section.

(d) In any case in which it is determoney constitutes a separate claim. (3) A claim shall be considered made

mined that more than one person is to the authority, recipient, or party

liable for making a claim or statement when such claim is actually made to

under this section, each such person

may be held liable for a civil penalty an agent, fiscal intermediary, or other entity, including any State or political

under this section. subdivision thereof, acting for or on

(e) In any case in which it is deterbehalf of the authority, recipient, or

mined that more than one person is

liable for making a claim under this party. (4) Each claim for property, services,

section on which the Government has or money is subject to a civil penalty

made payment (including transferred

property or provided services), an asregardless of whether such property, services, or money is actually delivered

sessment may be imposed against any or paid.

such person or jointly and severally (5) If the Government has made any

against any combination of such per

sons. payment (including transferred property or provided services) on a claim, a (52 FR 39498, Oct. 22, 1987, as amended at person subject to a civil penalty under 54 FR 599, Jan. 9, 1989) paragraph (a)(1) of this section shall also be subject to an assessment of not

8 1264.103 Investigation. more than twice the amount of such (a) If an investigating official conclaim or that portion thereof that is cludes that a subpoena pursuant to determined to be in violation. Such as the authority conferred by 31 U.S.C. sessment shall be in lieu of damages 3804(a) is warranted

(1) The subpoena so issued shall (2) A statement specifying the evinotify the person to whom it is ad- dence that supports the allegations of dressed of the authority under which liability; the subpoena is issued and shall iden. (3) A description of the claims or tify the records or documents sought; statements upon which the allegations

(2) The subpoena may designate the of liability are based; person, to act on the investigating offi (4) An estimate of the amount of cial's behalf, to receive the documents

money or the value of property, serysought; and

ices, or other benefits requested or de(3) The person receiving such sub

manded in violation of 1264.102 of poena shall be required to tender to

this part; the investigating official or the person

(5) A statement of any exculpatory designated to receive the documents a

or mitigating circumstances that may certification that the documents

relate to the claims or statements sought have been produced, or that

known by the reviewing official or the such documents are not available and

investigating official; and the reasons therefor, or that such documents, suitably identified, have been

(6) A statement that there is a reawithheld based upon the assertion of

sonable prospect of collecting an apan identified privilege.

propriate amount of penalties and as(b) If the investigating official con

sessments. Such a statement may be cludes that an action under the Pro

based upon information then known gram Fraud Civil Remedies Act may

or an absence of any information indibe warranted, the investigating official

cating that the person may be unable shall submit a report containing the

to pay such an amount. findings and conclusions of such inves

8 1264.105 Prerequisites for issuing a comtigation to the reviewing official. (c) Nothing in this section shall pre

plaint. clude or limit the investigating offi- (a) The reviewing official may issue cial's discretion to refer allegations di- a complaint under $ 1264.106 only ifrectly to the Department of Justice (1) The Department of Justice apfor suit under the False Claims Act or proves the issuance of a complaint in a other civil relief, or to defer or post- written statement described in 31 pone a report of referral to the review U.S.C. 3803(b)(1); and ing official to avoid interference with (2) In the case of allegations of li. a criminal investigation or prosecu ability under $ 1264.102(a) with retion.

spect to a claim, the reviewing official (d) Nothing in this section modifies determines that, with respect to such any responsibility of the investigating claim or a group of related claims subofficial to report violations of criminal mitted at the same time such claim is law to the Attorney General.

submitted (as defined in paragraph (b) (52 FR 39498, Oct. 22, 1987, as amended at

of this section), the amount of money 54 FR 599, Jan. 9, 1989)

or the value of property or services de

manded or requested in violation of 8 1264.104 Review by the reviewing offi § 1264.102(a) does not exceed $150,000. cial.

(b) For the purposes of this section, (a) If, based on the report of the in a related group of claims submitted at vestigating official under the same time shall include only those § 1264.103(b), the reviewing official de claims arising from the same transactermines that there is adequate evi tion (e.g., grant, loan, application, or dence to believe that a person is liable contract) that are submitted simultaunder $ 1264.102 of this part, the re- neously as part of a single request, viewing official shall transmit to the demand, or submission. Attorney General a written notice of (c) Nothing in this section shall be the reviewing official's intention to construed to limit the reviewing offi. issue a complaint under $ 1264.106. cial's authority to join in a single com(b) Such notice shall include

plaint against a person claims that are (1) A statement of the reviewing of. unrelated or were not submitted sificial's reasons for issuing a complaint; multaneously, regardless of the amount of money or the value of prop (1) Affidavit of the individual servicerty or services demanded or request ing the complaint by delivery; ed.

(2) A United States Postal Service 8 1264.106

return receipt card acknowledging reComplaint.

ceipt; or (a) On or after the date the Depart (3) Written acknowledgment of rement of Justice approves the issuance

ceipt by the defendant or his/her repof a complaint in accordance with 31

resentative. U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the de

(52 FR 39498, Oct. 22, 1987, as amended at fendant, as provided in 8 1264.107.

54 FR 600, Jan. 9, 1989) (b) The complaint shall state

8 1264.108 Answer. (1) The allegations of liability against the defendant, including the (a) The defendant may request a statutory basis for liability, an identi hearing by filing an answer with the fication of the claims or statements reviewing official within 30 days of that are the basis for the alleged lic service of the complaint. An answer ability, and the reasons why liability shall be deemed to be a request for allegedly arises from such claims or hearing. statements;

(b) In the answer, the defendant(2) The maximum amount of penal

(1) Shall admit or deny each of the ties and assessments for which the de

allegations of liability made in the fendant may be held liable;

complaint; (3) Instructions for filing an answer

(2) Shall state any defense on which to request a hearing, including a spe

the defendant intends to rely; cific statement of the defendant's

(3) May state any reasons why the right to request a hearing by filing an

defendant contends that the penalties answer and to be represented by a rep

and assessments should be less than resentative; and (4) That failure to file an answer

the statutory maximum; and within 30 days of service of the com

(4) Shall state the name, address, plaint will result in the imposition of

and telephone number of the person the maximum amount of penalties and

authorized by the defendant to act as assessments without right to appeal as

defendant's representative, if any. provided in § 1264.109.

(c) If the defendant is unable to file (c) At the same time the defendant an answer meeting the requirements is served with the complaint, he or she of paragraph (b) of this section within shall also be served with a-.

the time provided, the defendant may, (1) Notice to Consent to the Chair- before the expiration of 30 days from person of the NASA Board of Contract service of the complaint, file with the Appeals (BCA), or Designee, as presid reviewing official a general answer de. ing officer;

nying liability and requesting a hear(2) Copy of this Part 1264 of 14 ing, and a request for an extension of CFR.

time within which to file an answer

meeting the requirements of para(52 FR 39498, Oct. 22, 1987, as amended at

graph (b) of this section. The review54 FR 599, Jan. 9, 1989)

ing official, as provided in § 1264.110, 8 1264.107 Service of complaint.

shall file promptly with the presiding

officer the complaint, the general (a) Service of a complaint must be made by certified or registered mail or

answer denying liability, and the reby delivery in any manner authorized

quest for an extension of time. For

good cause shown, the presiding offiby Rule 4(d) of the Federal Rules of Civil Procedure.

cer may grant the defendant up to 30 (b) Proof of service, stating the

additional days within which to file an name and address of the person on

answer meeting the requirements of whom the complaint was served, and

paragraph (b) of this section. the manner and date of service, may [52 FR 39498, Oct. 22, 1987, as amended at be made by

54 FR 600, Jan. 9, 1989)

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