How Small‐Dollar Fraud Provides the SBA Powerful Leverage though the SBA OIG’s Administrative False Claims Act (AFCA) Muscle That Can Cost SBA Lenders, Borrowers, and Guarantors Up To $1 Million
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On December 23, 2024, Congress super-charged an obscure statute—the Administrative False Claims Act (AFCA)—when it passed the FY 2025 National Defense Authorization Act. The amendments raise the cap on administrative cases from $150,000 to $1 million and broaden what counts as a “false claim,” empowering every federal inspector general—including the SBA Office of Inspector General (OIG)—to pursue loan-related fraud or malfeasance even when the Department of Justice (DOJ) says “no thanks.”
More importantly, it should be noted that SBA Administrator Kelly Loeffler published her "Day One Memo" confirming SBA plans to aggressively step up collection efforts and audit investigations for COVID loans disbursed due to the pandemic –which can lead to a number of AFCA actions in the near future.
As part of the Trump Administration’s policy to pursue SBA COVID Loan fraud specifically involving PPP and EIDL loans, legislation was introduced in Congress by Republicans to ensure that collections on loans made to small businesses borrowers and guarantors related to the COVID-19 pandemic will no longer be suspended.
Click the following link to learn more about the "Complete COVID Collections Act" that was introduced as a Senate bill and may become federal law in the future: COVID Collections Act
Feature: Where the case is heard
AFCA (as amended): Administrative hearing before a United States Administrative Law Judge (ALJ) at the SBA Office of Hearings & Appeals Court (OHA) or Board of Contract Appeals member
Civil FCA: Federal District Court
Feature: DOJ involvement
AFCA (as amended): DOJ must approve the filing but does not have to prosecute in Federal District Court
Civil FCA: DOJ (or a qui-tam relator) files the suit
Feature: Dollar threshold
AFCA (as amended): ≤ $1 million per case (indexed for inflation)
Civil FCA: No cap
Feature: Penalties
AFCA (as amended): Up to $5,000 per false claim/statement + double damages + investigation costs
Civil FCA: Up to ~$27,000 per claim + treble damages
Feature: Statute of limitations
AFCA (as amended): 6 years from violation or 3 years from discovery (max 10)
Civil FCA: 6–10 years depending on facts
Sources: 31 U.S.C. §§ 3801-3812; FY 2025 NDAA § 5203.
Hearing & Decision – After discovery and an evidentiary hearing,the presiding ALJ issues findings in a Decision and Order – which can involve the imposition of penalties or dismisses the case. Appeals go to the SBA Administrator and then to the Federal D.C. Circuit pursuant to rights and remedies under the Administrative Procedures Act (APA).
Player: 7(a) / CDC Lenders
Potential AFCA Violation: Certifying that collateral was properly perfected or liquidated in a commercially reasonable manner when it was not
Real-World Example: Filing an SBA Form 159 indicating all fees were disclosed when “packaging” fees were hidden
Player: Borrowers
Potential AFCA Violation: Overstating payroll in a PPP forgiveness application
Real-World Example: Claiming EIDL funds were used for working capital while diverting cash to personal real estate or other personal expenses
Player: Guarantors
Potential AFCA Violation: Concealing assets to avoid repayment (reverse false claim)
Real-World Example: Transferring property to a spouse after default but before Treasury offset; Lying about or omitting relevant financial information in financial statements (Form 770), Offer in Compromise(Form 1150) or other pertinent documents submitted under penalty of perjury
Player: Servicers / Purchasers
Potential AFCA Violation: Misreporting liquidation proceeds to maximize the SBA guarantee purchase
Real-World Example: Failing to remit auction proceeds and certifying “no recoveries available"
Because the amended AFCA now covers reverse false claims,hiding assets or under-reporting recoveries can trigger liability even when no new funds are sought. Source: (National Law Review)
For a single 7(a) guarantee purchase of $400,000 supported by four false certifications, exposure can exceed $900,000 before interest.
The AFCA’s $1 million ceiling and broader definitions mean SBA OIG no longer needs to wait for DOJ to chase many PPP, EIDL, Disaster, 7(a)or 504 fraud cases. Small-dollar no longer means small risk. A single inaccurate certification under penalty of perjury can invite an administrative lawsuit before the SBA OHA Court that freezes assets, garnishes Treasury payments, and tarnishes reputations.
If you are an SBA borrower, or guarantor facing an inquiry—contact the attorneys at SBA-Attorneys.com for a confidential Case Evaluation.
This article is provided for informational purposes only and does not constitute legal advice. Consult a qualified SBA-Attorney for advice regarding your individual situation.
Millions of Dollars in SBA Debts Resolved via Offer in Compromise and Negotiated Repayment Agreements without our Clients filing for Bankruptcy or Facing Home Foreclosure
Millions of Dollars in Treasury Debts Defended Against via AWG Hearings, Treasury Offset Program Resolution, Cross-servicing Disputes, Private Collection Agency Representation, Compromise Offers and Negotiated Repayment Agreements
Our Attorneys are Authorized by the Agency Practice Act to Represent Federal Debtors Nationwide before the SBA, The SBA Office of Hearings and Appeals, the Treasury Department, and the Bureau of Fiscal Service.
Our firm successfully resolved an SBA 7(a) loan default in the amount of $212,000 on behalf of an individual guarantor. The borrower’s business experienced a significant downturn in revenue and was unable to sustain operations, ultimately leading to closure and a remaining personal guaranty obligation.
After conducting a thorough financial review and preparing a comprehensive SBA Offer in Compromise (SBA OIC) submission, we negotiated directly with the SBA and lender to achieve a settlement of $50,000—approximately 24% of the outstanding balance. This favorable resolution released the guarantor from further personal liability and provided the opportunity to move forward free from the burden of enforced collection.
Clients executed personal and corporate guarantees for an SBA 7(a) loan from a Preferred Lender Provider (PLP). The borrower corporation defaulted on the loan exposing all collateral pledged by the Clients. The SBA subsequently acquired the loan balance from the PLP, including the right to collect against all guarantors. The SBA sent the Official Pre-Referral Notice to the guarantors giving them sixty (60) days to either pay the outstanding balance in full, negotiate a Repayment (Offer in Compromise (OIC) or Structured Workout (SW)), challenge their alleged guarantor liability or file a Request for Hearing (Appeals Petition) with the SBA Office of Hearings & Appeals.
Because the Clients were not financially eligible for an OIC, they opted for Structured Workout negotiations directly with the SBA before the debt was transferred to the Bureau of Fiscal Service, a division of the U.S. Department of Treasury for enforced collection.
The Firm was hired to negotiate a global Workout Agreement directly with the SBA to resolve the personal and corporate guarantees. After submitting the Structured Workout proposal, the assigned SBA Loan Specialist approved the requested terms in under ten (10) days without any lengthy back and forth negotiations.
The favorable terms of the Workout included an extended maturity at an affordable principal amount, along with a significantly reduced interest rate saving the Clients approximately $181,000 in administrative fees, penalties and interest (contract interest rate and Current Value of Funds Rate (CVFR)) as authorized by 31 U.S.C. § 3717(e) had the SBA loan been transferred to BFS.
Client’s small business obtained an SBA 7(a) loan for $750,000. She and her husband signed personal guarantees exposing all of their non-exempt income and assets. With just 18 months left on the maturity date and payment on the remaining balance, the Great Recession of 2008 hit, which ultimately caused the business to fail and default on the loan terms. The 7(a) lender accelerated and sent a demand for full payment of the remaining loan balance. The SBA lender’s note allowed for a default interest rate of about 7% per year. In response to the lender's aggressive collection action, Client's husband filed for Chapter 7 bankruptcy in an attempt to protect against their personal assets. However, his bankruptcy discharge did not relieve the Client's personal guarantee liability for the SBA debt. The SBA lender opted to pursue the SBA 7(a) Guaranty and subsequently assigned the loan and the right to enforce collection against the Client to the SBA. The Client then received the SBA Official 60-Day Notice. After conducting a Case Evaluation with her, she then hired the Firm to respond and negotiate on her behalf with just 34 days left before the impending referral to Treasury. The Client wanted to dispute the SBA’s alleged debt balance as stated in the 60-Day Notice by claiming the 7(a) lender failed to liquidate business collateral in a commercially reasonable manner - which if done properly - proceeds would have paid back the entire debt balance. However, due to time constraints, waivers contained in the SBA loan instruments, including the fact the Client was not able to inspect the SBA's records for investigation purposes before the remaining deadline, Client agreed to submit a Structured Workout for the alleged balance in response to the Official 60-Day Notice as she was not eligible for an Offer in Compromise (OIC) because of equity in non-exempt income and assets. After back and forth negotiations, the SBA Loan Specialist approved the Workout proposal, reducing the Client's purported liability by nearly $142,142.27 in accrued interest, and statutory collection fees. Without the Firm's intervention and subsequent approval of the Workout proposal, the Client's debt amount (with accrued interest, Treasury's statutory collection fee and Treasury's interest based on the Current Value of Funds Rate (CVFR) would have been nearly $291,030.
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