Rule2026-01710
Civilian Board of Contract Appeals; Rules of Procedure of the Civilian Board of Contract Appeals; Implementation of the Administrative False Claims Act
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Published
January 28, 2026
Effective
February 27, 2026
Issuing agencies
General Services Administration
Abstract
The Civilian Board of Contract Appeals (Board) is issuing new rules of procedure to effectuate the new administrative scheme set forth in the Administrative False Claims Act of 2023, as amended by the National Defense Authorization Act for Fiscal Year 2025. The Board is issuing this final rule governing its administrative process for deciding claims brought by authorities, as defined by the Administrative False Claims Act (AFCA), seeking to impose civil penalties against persons who make, submit, or present false claims and statements to executive agencies of the United States of America.
Full Text
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<title>Federal Register, Volume 91 Issue 18 (Wednesday, January 28, 2026)</title>
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[Federal Register Volume 91, Number 18 (Wednesday, January 28, 2026)]
[Rules and Regulations]
[Pages 3797-3799]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01710]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 6107
[CBCA Case 2025-61-02; Docket No. GSA-CBCA-2025-0070; Sequence No. 1]
RIN 3090-AL16
Civilian Board of Contract Appeals; Rules of Procedure of the
Civilian Board of Contract Appeals; Implementation of the
Administrative False Claims Act
AGENCY: Civilian Board of Contract Appeals; General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: The Civilian Board of Contract Appeals (Board) is issuing new
rules of procedure to effectuate the new administrative scheme set
forth in the Administrative False Claims Act of 2023, as amended by the
National Defense Authorization Act for Fiscal Year 2025. The Board is
issuing this final rule governing its administrative process for
deciding claims brought by authorities, as defined by the
Administrative False Claims Act (AFCA), seeking to impose civil
penalties against persons who make, submit, or present false claims and
statements to executive agencies of the United States of America.
DATES: This final rule is effective on February 27, 2026.
FOR FURTHER INFORMATION CONTACT: Tara Mehrbach, Chief Counsel, Civilian
Board of Contract Appeals, at 202-606-8790 or <a href="/cdn-cgi/l/email-protection#c4b0a5b6a5eaa9a1acb6a6a5a7ac84a7a6a7a5eaa3abb2"><span class="__cf_email__" data-cfemail="ea9e8b988bc4878f8298888b8982aa8988898bc48d859c">[email protected]</span></a>.
For information pertaining to status or publication schedules, contact
the Regulatory Secretariat Division at 202-501-4755 or
<a href="/cdn-cgi/l/email-protection#14534755467173477177547367753a737b62"><span class="__cf_email__" data-cfemail="773024362512102412143710041659101801">[email protected]</span></a>. Please cite RIN 3090-AL16.
SUPPLEMENTARY INFORMATION:
I. Background
The Board was established within GSA by section 847 of the National
Defense Authorization Act for Fiscal Year 2006, Public Law 109-163.
Board members are administrative judges appointed by the Administrator
of General Services under 41 U.S.C. 7105(b)(2) with the concurrence of
the Office of Federal Procurement Policy.
On December 23, 2024, the National Defense Authorization Act (NDAA)
for Fiscal Year 2025 (FY 2025 NDAA) (Pub. L. 118-159) was signed into
law. The FY 2025 NDAA expands the Administrative False Claims Act of
2023 (AFCA), 31 U.S.C. 3801 et seq. This Act, previously known as the
Program Fraud Civil Remedies Act of 1986, offers an
[[Page 3798]]
administrative remedy for addressing false claims and statements made
to the United States that the Department of Justice opts not to
prosecute. The FY 2025 NDAA also amended the Contract Disputes Act
(CDA), 41 U.S.C. 7101-7109. The CDA amendment expanded the jurisdiction
of certain agency boards of contract appeals, including the Civilian
Board of Contract Appeals, to hear cases referred to the Board under
AFCA (41 U.S.C. 7105). The new statutory language requires the Board to
amend procedural regulations within 180 days of enactment of the FY
2025 NDAA (31 U.S.C. 3801 note).
AFCA provides an administrative process by which federal
authorities can seek recovery of relatively small dollar value false
claims (up to one million dollars) that the Department of Justice
elects not to pursue. The liability provisions of AFCA remain closely
modeled on those in the False Claims Act. The principal differences
between the False Claims Act and AFCA are that AFCA does not include a
qui tam enforcement mechanism, covers false written statements even in
the absence of a claim, and provides for administrative rather than
judicial resolution.
The Board's procedural rules, 48 CFR 6107, will govern the Board's
processing of cases under AFCA. Under AFCA, a reviewing authority may
seek, from the Attorney General or the Attorney General's delegate,
permission to pursue a civil fraud claim against a person. If
permission is granted, the reviewing official from the authority must
notify the person alleged to be liable of fraud of the allegations and
the amount of the alleged fraud. After adequate notice is provided to
the person alleged to be liable for civil fraud, the person has 30 days
to elect a hearing. If the person elects a hearing and the reviewing
official refers the matter to the Board, as authorized by 41 U.S.C.
7105(e)(1)(E), a Board member may serve as the presiding officer, as
defined by 31 U.S.C. 3801(a)(7)(C), to hear the referred administrative
fraud case. The Board member, serving as the presiding officer, would
commence an administrative hearing process unless the Board chair
refused to accept the referral.
The Board's rules set forth the procedures to be followed if a case
referral is made to the Board under AFCA and the Board accepts the
referral. The rules generally (Rule 703) provide procedural specificity
as to the hearings and determinations process set forth in 31 U.S.C.
3803. The rules establish that a case referral is effectuated by
transmission through the Clerk of the Board of a complaint, a copy of
the notice of referral that was provided to the respondent pursuant to
AFCA, and the answer, if any. (Rule 703(b), Rule 703(e)).
The rules state that one Board member will preside in each referred
case (Rule 703(a)(4)) and that the presiding Board member will set a
schedule, oversee any discovery, conduct conferences, hearings, and
other proceedings, and decide the merits of the case.
The rules provide for submission of an electronic evidence file,
including exculpatory information under 31 U.S.C. 3803(e)(2), and an
opportunity for objection to the admission of evidence (Rule 703(c),
Rule 703(f)). The rules state that a presiding Board member may in his
or her discretion receive any evidence to which no party objects, will
employ the Federal Rules of Evidence to resolve objections to the
admissibility of evidence (Rule 703(g)), and may dismiss a case without
reaching the merits in certain circumstances (Rule 703(h)). The rules
clarify that a party representative need not be an attorney (Rule
703(d)) and that a ruling issued by a presiding judge will be provided
to each party and, if resolved on the merits in whole or in part,
posted on the Board's website (Rule 703(l)). Rulings by the presiding
Board member are binding on the parties but are not precedential. (Rule
703(a)(4)).
II. Rules of Agency Procedure and Practice
Under the Administrative Procedure Act, rules of agency procedure
or practice are exempt from the act's notice and comment rulemaking
requirements. 5 U.S.C. 553(b)(A). As this rule constitutes the
procedures to be followed for referrals to the Board under AFCA and the
Board's practice requirements in these matters, the rule is exempt from
notice and comment requirements.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget's Office of Information and
Regulatory Affairs (OIRA) has determined that this rule is a
significant regulatory action and, therefore, it was reviewed under
section 6(b) of E.O. 12866.
IV. Executive Order 14192
This rule is not an E.O. 14192 regulatory action because it imposes
no more than de minimis cost.
V. Congressional Review Act
OIRA has determined that this rule does not meet the definition in
5 U.S.C. 804(2).
VI. Regulatory Flexibility Act
As this final rule is exempt from the Administrative Procedure
Act's public notice requirements pursuant to 5 U.S.C. 553(b)(A) (rules
of agency procedure or practice), a Regulatory Flexibility Analysis is
not required.
VII. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply
because this rule does not impose any new or modified information
collection requirements that require the approval of the Office of
Management and Budget.
VIII. Unfunded Mandates Reform Act of 1995
This rule will not impose a federal mandate that may result in the
expenditure by state, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year.
List of Subjects 48 CFR Part 6107
Administrative practice and procedure, Claims, Fraud.
Erica S. Beardsley,
Chair, Civilian Board of Contract Appeals, General Services
Administration.
For the reasons set forth in the preamble, GSA adds 48 CFR part
6107 to read as follows:
PART 6107--ADMINISTRATIVE FALSE CLAIMS ACT REFERRALS
Sec.
6107.701 Scope [Rule 701].
6107.702 Authority [Rule 702].
6107.703 Rules for AFCA referrals [Rule 703].
6107.704 Effective date [Rule 704].
Authority: 41 U.S.C. 7105(e)(1)(E).
6107.701 Scope [Rule 701].
The rules in this part establish procedures for any matter referred
to a member of the Board under the Administrative False Claims Act
(AFCA), 31 U.S.C. 3803(d).
[[Page 3799]]
6107.702 Authority [Rule 702].
The Board is authorized to issue these rules under section
5203(g)(3)of the National Defense Authorization Act for Fiscal Year
2025 (Pub. L. 118-159), 31 U.S.C. 3801 note, and the Contract Disputes
Act (CDA), 41 U.S.C. 7105(e)(1)(E).
6107.703 Rules for AFCA referrals [Rule 703].
The rules of procedure for referrals under the AFCA are the same as
the rules of procedure for CDA cases under part 6101 of this chapter,
including the definitions, with the following exceptions:
(a) Rule 1.
(1) Rule 1(a) (48 CFR 6101.1(a)) does not apply.
(2) The definitions in Rule 1(b) (48 CFR 6101.1(b)) of ``appeal;
appellant,'' ``appeal file,'' ``application; applicant,'' ``Board
judge; judge,'' ``case,'' ``party,'' ``petition; petitioner,'' and
``respondent'' do not apply.
(3) The following definitions apply.
Case. ``Case'' means a matter involving one or more alleged false
claims or statements by a ``person'' as defined in the AFCA that is
referred to a member of the Board under the AFCA.
Complainant. ``Complainant'' means an agency or agency component
whose authorized official refers a case to a Board member under the
AFCA.
Evidence file. ``Evidence file'' means the submissions to the Board
under Rule 703(c).
Party. ``Party'' means a complainant or a respondent.
Respondent. ``Respondent'' means a person or entity alleged by a
complainant to have made one or more false claims or statements.
(4) In place of Rule 1(d) (48 CFR 6101.1(d)), substitute the
following. One Board member will preside in each referred case. The
presiding Board member will set a schedule, oversee any discovery,
conduct conferences, hearings, and other proceedings, and decide the
merits. References to ``the Board'' in the rules of procedure for CDA
cases shall, as appropriate in context, mean the presiding Board
member, whose rulings are not precedential.
(b) Rule 2. In place of Rule 2 (48 CFR 6101.2), substitute the
following. A complainant may as authorized by law refer a case by
transmitting to the Board Chair, through the Clerk:
(1) the complaint;
(2) a copy of the notice of referral that was mailed or delivered
to the respondent pursuant to the AFCA; and
(3) the answer, if any. If there is no answer, a referral may
include a motion for a default decision. The Clerk will promptly notify
the parties of the Board Chair's acceptance or non-acceptance of a
referred case.
(c) Rule 4. In place of Rule 4 (48 CFR 6101.4), substitute the
following. As directed by the presiding Board member, the parties shall
submit an electronic evidence file organized substantially like an
electronic appeal file under Rule 4(b) for CDA cases. The evidence file
shall include without limitation any exculpatory information under 31
U.S.C. 3803(e)(2). Evidence file exhibits are part of the record of a
case under Rule 9(a) (48 CFR 6101.9(a)) unless a party objects to an
exhibit within the time set by the presiding Board member and the
presiding Board member sustains the objection.
(d) Rule 5. In place of Rule 5(a) (48 CFR 6101.5(a)), substitute
the following. A complainant may appear in a case through an attorney.
A respondent may appear through an attorney or, if an individual, may
appear for himself or herself. A corporation, trust, or association may
appear by one of its officers. A limited liability corporation,
partnership, or joint venture may appear by one of its members. Each
individual appearing on behalf of a party must have legal authority to
appear. An attorney appearing in a case shall file a notice of
appearance complying with Rule 5(b) (48 CFR 6101.5(b)).
(e) Rule 6. In place of Rule 6 (48 CFR 6101.6), substitute the
following. The complaint and the answer (if the complainant received
one) shall accompany a referral. The presiding Board member may accept
amended or supplemental pleadings as is consistent with due process.
(f) Rule 9. In Rule 9(a)(1)(i) (48 CFR 6101.9(a)(1)(i)), replace
``Rule 4 appeal file'' with ``Rule 703(c) evidence file.'' Rule
9(a)(2)(i) (48 CFR 6101.9(a)(2)(i)) does not apply.
(g) Rule 10. In place of Rule 10 (48 CFR 6101.10), substitute the
following. The presiding Board member may in his or her discretion
receive any evidence to which no party objects and will apply the
Federal Rules of Evidence to resolve objections to the admissibility of
evidence bearing on proof of fraud or falsity.
(h) Rule 12. In place of Rule 12 (48 CFR 6101.12), substitute the
following. The presiding Board member may dismiss a case without
reaching the merits:
(1) For lack of jurisdiction, or
(2) At the request of the complainant and with the approval of the
Board Chair. The presiding Board member may stay a case as is
consistent with due process.
(i) Rule 17. In Rule 17(a) (48 CFR 6101.17(a)), replace ``appeal
file'' with ``evidence file.''
(j) Rule 18. In Rule 18 (48 CFR 6101.18), replace ``judge'' with
``Board member.''
(k) Rule 21. In Rule 21(a) (48 CFR 6101.21(a)), replace ``judge''
with ``Board member.''
(l) Rule 25. In Rule 25(a) (48 CFR 6101.25(a)), replace the second
sentence with the following. The Board will send a copy of a decision
to each party, requesting confirmation of receipt (see Rule 1 (48 CFR
6101.1)), and will post on its website a decision that resolves all or
part of a case on the merits.
(m) Rules 28, 31, 51-53. Rules 28 (48 CFR 6101.28), 31 (48 CFR
6101.31), and 51 through 53 (48 CFR 6101.51-53) do not apply.
(n) Rule 55. Rule 55 (48 CFR 6101.55) does not apply. The effective
date is stated in Rule 704 (48 CFR 6107.704).
6107.704 Effective date [Rule 704].
The effective date of these rules is February 27, 2026.
[FR Doc. 2026-01710 Filed 1-27-26; 8:45 am]
BILLING CODE 6820-61-P
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