subcontractor that is a subcontractor of a foreign country included on the list of countries that discriminate against U.S. firms published by the U.S.T.R. or that supplies any product for use on the Federal public works project under this contract that is produced or manufactured in a foreign country included on the list of countries that discriminate against U.S. firms published by the U.S.T.R., the Government Contracting Officer may direct, through higher-tier contractors, cancellation of this contract at no cost to the Government. (5) Definitions. The definitions pertaining to this clause are those that are set forth in 49 CFR 30.7-30.9. (6) The certification in paragraph (g)(1) of this clause is a material representation of fact upon which reliance was placed when making the award. If it is later determined that the Contractor knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Government Contracting Officer may direct, through higher-tier Contractors, cancellation of this subcontract at no cost to the Government. (7) The Contractor agrees to insert this clause, without modification, including this paragraph, in all solicitations and subcontracts under this clause. [end of clause] 830.17 Waivers. (a) The Secretary may waive the restrictions imposed by section 115 of the Airport Safety Act on the use of a product or service in a project if the Secretary determines that: (1) Application of the restriction to such product, service, or project would not be in the public interest; (2) Products or services of the same class or kind are not produced or offered in the United States, or in any foreign country that is not listed by the U.S.T.R. in sufficient and reasonable available quantities and of a satisfactory quality; or (3) Exclusion of such product or service from the project would increase the cost of the overall project contract by more than 20 percent. (b) The President or the Secretary may waive the restrictions imposed by section 109(a) of the Continuing Resolution with respect to an individual contract if the President or the Secretary determines that such action is necessary in the public interest, on a contract-by-contract basis. The Secretary may apply the factors listed in para graphs (a)(2) and (a)(3) of this section in determining whether a waiver is in the public interest. (c) The authority of the President or the Secretary to issue waivers may not be delegated. The Department shall publish notice of any waiver granted pursuant to this part by the President or the Secretary in the FEDERAL REGISTER within ten days. The notice shall describe in detail the contract involved, the specific reasons for granting the waiver, and how the waiver meets the criteria of this section. §30.19 Buy American Act. The restrictions of this part are in addition to any other restrictions contained in Federal law, including the Buy American Act, 41 U.S.C. 10a-10d, and Buy American provisions in legislation governing DOT provisions. Normal evaluation methods for implementing the provisions of the Buy American Act in contracts for the construction, alteration, or repair of public buildings or public works will be ap plied after determining the offeror's eligible for award on the basis of application of the provisions in this part. PART 31-PROGRAM FRAUD CIVIL REMEDIES Sec. 31.1 Basis and purpose. 31.2 Definitions. 31.3 Basis for civil penalties and assessments. 31.4 Investigation. 31.5 Review by the reviewing official. 31.6 Prerequisites for issuing a complaint. 31.7 Complaint. 31.8 Service of complaint. 31.9 Answer. 31.10 Default upon failure to answer. 31.11 Referral of complaint and answer to the ALJ. 31.12 Notice of hearing. 31.13 Parties to the hearing. 31.14 Separation of functions. 31.15 Ex parte contacts. 31.16 Disqualification of reviewing official or ALJ. 31.17 Rights of parties. 31.22 Exchange of witness lists, statements, and exhibits. 31.23 Subpoenas for attendance at hearing. 831.1 Basis and purpose. (a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 38013812. 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 the authority or to certain others, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments. $31.2 Definitions. ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344. Authority means the Department of Transportation. Authority head means the Assistant Secretary or Deputy Assistant Secretary for Budget and Programs, Department of Transportation. Benefit means, in the context of "statement," 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 services; (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 defendant under §31.7. Defendant means any person alleged in a complaint under §31.7 to be liable for a civil penalty or assessment under §31.3. Government means the United States Government. Individual means a natural person. Initial decision means the written decision of the ALJ required by §§ 31.10 or 31.37 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 Transportation or an officer or employee of the Office of 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 deliberate 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, association, or private organization, and includes the plural of that term. Representative means an 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. This definition is not intended to foreclose pro se appearances. An individual may appear for himself or herself, and a corporation or other entity may appear by an owner, officer, or employee of the corporation or entity. Reviewing official means the Deputy General Counsel of the Department of Transportation, or other officer or employee of the Department who is designated by the Deputy General Counsel and eligible under 31 U.S.C. 3801(a)(8). 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 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. $31.3 Basis for civil penalties and assessments. (a) Claims. (1) Except as provided in paragraph (c) of this section, 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. (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 any payment (including transferred property or provided services) on 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 this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim. (b) Statements. (1) Except as provided in paragraph (c) of this section, 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 omits 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. (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 under this section. (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 provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such per sons. $31.4 Investigation. (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 the documents sought have been produced, or that such documents are not available and the reasons therefor, or that such documents, suitably identified, have been withheld based upon the assertion 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 ailegations 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 the reviewing official 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. §31.5 Review by the reviewing official. (a) If, based on the report of the investigating official under §31.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under §31.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official's intention to issue a complaint under §31.7. (b) Such notice shall include_ (1) A statement of the reviewing official's reasons for issuing a complaint; (2) A statement specifying the evidence that supports the allegations of liability; (3) A description of the claims or statements upon which the allegations of liability are based; (4) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of §31.3 of this part; (5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and (6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments. §31.6 Prerequisites for issuing a complaint. (a) The reviewing official may issue a complaint under §31.7 only if— (1) The Department of Justice approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1), and (2) In the case of allegations of liability under §31.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demanded or requested in violation of §31.3(a) does not exceed $150,000. (b) For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission. (c) Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person's claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested. $31.7 Complaint. (a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in §31.8. (b) The complaint shall state(1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements; (2) The maximum amount of penalties and assessments for which the defendant may be held liable; (3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant's right to request a hearing by filing an answer and to be represented by a representative; and (4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in §31.10. (c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations. §31.8 Service of complaint. (a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service of a complaint is complete upon receipt. (b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by (1) Affidavit of the individual serving the complaint by delivery; (2) A United States Postal Service return receipt card acknowledging receipt; or |