« PreviousContinue »
make audits, examinations, excerpts, and transcriptS.
(2) Eacpiration of right of access. The rights of access in this section must not be limited to the required retention period but shall last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of Information Act (5 U.S.C. 552) does not apply to records unless required by Federal, State, or local law, grantees and subgrantees are not required to permit public access to their records.
(a) Remedies for mom.compliance. If a grantee or subgrantee materially fails to comply with any term of an award, whether Stated in a Federal Statute or regulation, an assurance, in a State plan or application, a notice of award, Or elsewhere, the awarding agency may take one or more of the following actions, as appropriate in the CirCumstances: (1) Temporarily withhold Cash payments pending correction of the defiCiency by the grantee Or Subgrantee Or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use of funds and matching Credit for) all or part of the cost of the activity or action not in compliance, (3) Wholly or partly suspend or terminate the Current award for the grantee’s Or subgrantee’s program, (4) Withhold further awards for the program, Or (5) Take other remedies that may be legally available. (b) Hearings, appeals. In taking an enforcement action, the awarding agency will provide the grantee or subgrantee an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or subgrantee is entitled under any Statute or regulation applicable to the action involved. (c) Effects of suspension and termimation. Costs of grantee or subgrantee resulting from obligations incurred by the grantee or subgrantee during a SuSpension or after termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice of Suspension Ortermination or subsequently. Other grant
ee or subgrantee costs during suspenSion Or after termination which are necessary and not reasonably avoidable are allowable if: (1) The costs result from obligations which were properly incurred by the grantee or subgrantee before the effective date of suspension or termination, are not in anticipation of it, and, in the C2S6 Of 3, termination, 3.1°8 noncancellable, and, (2) The costs would be allowable if the award were not suspended Or expired normally at the end of the funding period in which the termination takes effect. (d) Relationship to debarment and Suspension. The enforcement remedies identified in this section, including Suspension and termination, do not preclude grantee or subgrantee from being subject to “Debarment and Suspension” under E.O. 12549 (See §24.35).
$24.44 Termination for convenience.
Except as provided in §24.43 awards may be terminated in whole or in part only as follows:
(a) By the awarding agency with the Consent Of the grantee or Subgrantee in which case the two parties shall agree upon the termination Conditions, including the effective date and in the case of partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the awarding agency, Setting forth the reasons for Such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either $24.43 or paragraph (a) of this section.
Subport D–After-The-Gront Requirements
(a) General. The Federal agency will Close out the award when it determines that all applicable administrative actions and all required work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of the grant, the grantee must submit all financial, performance, and other reportS required as a condition of the grant. Upon request by the grantee, Federal agencies may extend this timeframe. These may include but are not limited to: (1) Final performance or progreSS report. (2) Financial Status Report (SF 269) or Outlay Report and Request for Reimbursement for ComStruction Programs (SF-271) (as applicable). (3) Final request for payment (SF-270) (if applicable). (4) Invention disclosure (if applicable). (5) Federally-owned property report:
In accordance with $24.32(f), a grantee must submit an inventory of all federally owned property (as distinct from property acquired with grant funds) for which it is a CCOuntable and request disposition instructions from the Federal agency of property no longer needed. (c) Cost adjustment. The Federal agency will, within 90 days after receipt of reports in paragraph (b) of this section, make upward or downward adjustments to the allowable costs. (d) Cash adjustments. (1) The Federal agency will make prompt payment to the grantee for allowable reimbursable COSt.S. (2) The grantee must immediately refund to the Federal agency any balance of unobligated (unencumbered) Cash advanced that is not authorized to be retained for use on other grantS.
$24.51 Later disallowances and adjustments.
The closeout of a grant does not affect: (a) The Federal agency’s right to disallow costs and recover funds On the basis of a later audit Or Other review; (b) The grantee’s obligation to return any funds due as a result of later refunds, corrections, or other transactions; (c) Records retention as required in §24.42; (d) Property management requirements in §§24.31 and 24.32; and (e) Audit requirements in $24.26.
$24.52 Collection of amounts due.
(a) Any funds paid to a grantee in exCeSS of the amount to which the grantee is finally determined to be entitled under the terms of the award conStitute a debt to the Federal Government. If not paid within a reasonable period after demand, the Federal agency may reduce the debt by:
(1) Making an adminstrative offset against other requests for reimbursement.S,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by Statutes Or regulations, the Federal agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Standards (4 CFR Chapter II). The date from which interest is Computed is not extended by litigation or the filing of any form of appeal.
Subport E–Entitlements [Reserved]
FRAUD CIVIL REMEDIES
Sec. 25.1 Basis and purpose. 25.2 Definitions. 25.3 Basis for Civil penalties and aSSessment;S. Investigation. Review by the reviewing official. Prerequisites for issuing a complaint. Complaint. 25.8 Service of Complaint. 25.9 Answer. 25.10 Default upon failure to file an answer. 25.11 Referral of complaint and answer to the ALJ. 25.12 Notice of hearing. 25.13 Parties to the hearing. 25.14 Separation of functions. 25.15 Ex parte ContactS. 25.16 Disqualification of reviewing official or ALJ. 25.17 Rights of parties. 25.18 Authority of the ALJ. 25.19 Prehearing Conferences. 25.20 Disclosure of document.S. 25.21 Discovery. 25.22 Exchange of witness listS, Statement S, and exhibitS. 25.23 Subpoena for attendance at hearing. 25.24 Protective Order. 25.25 FeeS.
25.4 25.5 25.6 25.7
25.26 25.27 25.28
Form, filing and Service of papers.
Computation of time.
25.30 The hearing and burden of proof.
25.31 Determining the amount of penalties and assessmentS.
25.32 Location of hearing.
25.35 The record.
25.36 Post-hearing briefs.
25.37 Initial decision.
25.38 Reconsideration of initial decision.
25.39 Appeal to authority head.
25.40 Stays ordered by the Department of Justice.
25.41 Stay pending appeal.
25.42 Judicial review.
25.43 Collection of Civil penalties and a SSeSSment.S.
25.44 Right to administrative offset.
25.45 Deposit in Treasury of United States.
25.46 Compromise or Settlement.
AUTHORITY: Secs. 6101–6104, Pub. L. 99–509, 100 Stat. 1874 (31 U.S.C. 3801–3812); Sec. 4, as annended, and Sec. 5, Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104–134, 110 Stat. 1321, 28 U.S.C. 2461 note.
SOURCE: 55 FR 47854, Nov. 16, 1990, unless Otherwise noted.
FRAUD CIVIL REMEDIES
$25.1 Basis and purpose.
(a) Basis. This part inplements the Program Fraud Civil Remedies Act of 1986, Public Law 99–509, Section 6101– 6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801–3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.
(b) Purpose. This part (1) establishes administrative procedures for imposing Civil penalties and assessments against persons who make, Submit, or present, or cause to be made, Submitted, or presented, false, fictitious, or fraudulent Claims Or written Statements to authorities or to their agents, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessment.S.
ALJ means an Administrative Law Judge in the authority appointed pur
Suant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344. Authority means the Department of Commerce. Authority head means the Secretary Of the Department of Commerce, or designee. Benefit means, except as the context Otherwise requires, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan guarantee. Claim means any request, demand, or Submission— (a) Made to the authority for property, Services, or money (including money representing grants, loans, inSurance, or benefits); (b) Made to a recipient of property, services, or money from the authority Or to a party to a contract with the authority— (1) For property or services if the United States— (i) Provided such property or serv1CeS; (ii) Provided any portion of the funds for the purchase of such property or Services; Or (iii) Will reimburse such recipient or party for the purchase of such property Or Services; Or (2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States— (i) Provided any portion of the money requested or demanded; or (ii) Will reimburse such recipient or party for any portion of the money paid On Such request or demand; or (C) Made to the authority which has the effect of decreasing an obligation to pay Or account for property, Services, Or money. Complaint means the administrative COmplaint served by the reviewing offiCial on the respondent under §25.7. Department means the Department of Commerce. Government means the United States GOvernment. Individual means a natural person. Initial decision means the written decision of the ALJ required by §§25.10 or 25.37, and includes a revised initial deCision issued following a remand or a motion for reconsideration.
Investigating official means the Inspector General of the Department of Commerce or an officer or employee of the Office of the Inspector General designated by the Inspector General and serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule. Knows or has reason to know, means that a person, with respect to a claim Or Statement— (a) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; (b) Acts in deliberative ignorance of the truth or falsity Of the claim or Statement; Or (c) Acts in reckless disregard Of the truth or falsity of the claim or statement. Makes, wherever it appears, shall include the terms presents, Submits, and causes to be made, presented, or Submitted. As the context requires, making or made, shall likewise include the Corresponding forms of such terms. Person means any individual, partnership, Corporation, a SSOCiation, Or private organization and includes the plural Of that term. Representative means any attorney who is a member in good Standing Of the bar of any State, Territory, or posSession of the United States Or Of the District of Columbia. Or the Commonwealth of Puerto Rico. Respondent means any person alleged in a complaint under §25.7 to be liable for a civil penalty or assessment under $25.3. Reviewing official means the General Counsel of the Department or his or her designee who is Serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule. Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made— (a) With respect to a claim or to Obtain the approval or payment of a claim (including relating to eligibility to make a claim); or (b) With respect to (including relating to eligibility for)—
(1) A contract with, or a bid or proposal for a contract with; or (2) A grant, loan, or benefit from,
the authority, or any State, political Subdivision of a State, or other party, if the United States Government provides any portion of the money or property under Such contract or for such grant, loan, or benefit, or if the Government will reimburse such State, political Subdivision, or party for any portion of the money Or property under Such contract or for Such grant, loan, Or benefit.
$25.3 Basis for civil penalties and assessments.
(a) Claim.S. (1) Any person who makes a claim that the person knows Or has reason to know— (i) Is false, fictitious, or fraudulent; (ii) Includes, or is Supported by, any written Statement, which asserts a material fact which is false, fictitious, or fraudulent; (iii) Includes, or is supported by, any written Statement that— (A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result. Of Such Omission; and (C) Is a statement in which the person making such statement has a duty to include such material fact; or (iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each Such claim made On Or before October 23, 1996, and Of not more than $5,500 for each Such claim made after October 23, 1996. (2) Each voucher, invoice, claim form, or other individual request Or demand for property, Services, or money Constitutes a separate claim. (3) A claim shall be considered made to the authority, recipient, Or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any State or political Subdivision thereof, acting for Or On behalf of the authority, recipient, or party. (4) Each claim for property, Services, or money is subject to a civil penalty regardless of whether such property, Services, or money is actually delivered or paid. (5) If the Government has made payment (including transferred property or provided Services) or a claim, a perSon Subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of the section. Such assessment shall be in lieu of damages sustained by the Government because of Such claim. (b) Statements. (1) Any person who makes a written statement that— (i) The person knows or has reason to know— (A) Asserts a material fact which is false, fictitious, or fraudulent; or (B) IS false, fictitious, or fraudulent because it onits a material fact that the person making the statement has a duty to include in Such statement; and (ii) Contains, or is accompanied by, an express Certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such statement made on or before October 23, 1996, and of not more than $5,500 for each such statement made after October 23, 1996. (2) Each written representation, certification, or affirmation constitutes a Separate Statement. (3) A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdiviSion thereof, acting for or on behalf of the authority. (c) NO proof of Specific intent to defraud is required to establish liability under this section. (d) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each Such person may be held liable for a civil penalty. (e) In any Case in which it is determined that more than one person is liable for making a claim under this Section on which the Government has made payment (including transferred
property or provide services), an asSeSSment may be imposed against any Such person or jointly and severally against any combination of such perSOIlS.
[55 FR 47854, Nov. 16, 1990, as amended at 61 FR 55094, Oct. 24, 1996]
(a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted— (1) The subpoena, so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought; (2) The investigating official may designate a person to act on his or her behalf to receive the documents Sought; and (3) The person receiving such subpoena Shall be required to tender to the investigating Official, or the person designated to receive the documents, a Certification that— (i) The documents sought have been produced; (ii) Such documents are not available and the reasons therefore; or (iii) Such documents, suitably identified, have been withheld based upon the a SSertion of an identified privilege. (b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be Warranted, the investigating official Shall Submit a report containing the findings and conclusions of such investigation to the reviewing official. (c) Nothing in this section shall preclude or limit an investigating offiCial’s discretion to refer allegations directly to the Department of Justice for Suit under the False Claims Act or other civil relief, or to defer or postpone a report Or referral to avoid interference with a criminal investigation Or prosecution. (d) Nothing in this section modifies any responsibility of an investigating Official to report violations of criminal law to the Attorney General.
$25.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under §25.4(b), the reviewing official determines that