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CHAPTER 1-FEDERAL CLAIMS COLLECTION

11
STANDARDS (GENERAL ACCOUNTING
OFFICE-DEPARTMENT OF JUSTICE)

Part 101 102 103 104 105

Scope of standards.
Standards for the administrative collection of claims.
Standards for the compromise of claims.
Standards for suspending or terminating collection action.
Referrals to GAO or for litigation.

а

PART 101-SCOPE OF STANDARDS Collection Act of 1966 will be reviewed

by the General Accounting Ofice as a Sec.

part of its audit of the agency's activities. 101.1 Prescription of standards. 101.2 Omissions not a defense.

§ 101.2 Omissions not a defense. 101.3 Fraud, antitrust, and tax claims excluded.

The standards set forth in this chap101.4 Compromise, waiver, or disposition

ter shall apply to the administrative under other statutes not precluded. handling of civil claims of the Federal 101.5 Conversion claims.

Government for money or property but 101.6 Subdivision of claims not authorized.

the failure of an agency to comply with 101.7 Required administrative proceedings.

any provision of this chapter shall not 101.8 Referral for litigation.

be available as a defense to any debtor. AUTHORITY: The provisions of this part 101 issued under sec. 3, 80 Stat. 309; 31 U.S.C.

§ 101.3 Fraud, antitrust, and tax claims 952.

excluded. SOURCE: The provisions of this part 101

The standards set forth in this chapter appear at 31 F.R. 18381, Oct. 15, 1966, unless do not apply to the handling of any otherwise noted.

claim as to which there is an indication

of fraud, the presentation of a false § 101.1 Prescription of standards.

claim, or misrepresentation on the part The regulations in this chapter, issued of the debtor or any other party having jointly by the Comptroller General of the an interest in the claim, or to any claim United States and the Attorney General based in whole or in part on conduct in of the United States under section 3 of violation of the antitrust laws. Only the the Federal Claims Collection Act of Department of Justice has authority to 1966, 80 Stat. 309, prescribe standards for compromise or terminate collection acthe administrative collection, compro- tion on such claims. However, matters mise, termination of agency collection submitted to the Department of Justice action, and the referral to the General for consideration without compliance Accounting Office, and to the Depart- with the regulations in this chapter bement of Justice for litigation, of civil cause there is an indication of fraud, the claims by the Federal Government for presentation of a false claim, or misrepmoney or property. Regulations pre- resentation on the part of the debtor or scribed by the head of an agency pur- any other party having an interest in the suant to section 3 of the Federal Claims claim, may be returned to the agency forwarding them for further handling in 101.7 Required administrative proaccordance with the regulations in this ceedings. chapter 1 it is determined that action

Nothing contained in this chapter is based upon the alleged fraud, false claim,

intended to require an agency to omit or or misrepresentation is not warranted. foreclose administrative proceedings reTax claims, as to which differing exemp

quired by contract or by law. tions, administrative consideration, enforcement considerations, and statutes

§ 101.8 Referral for litigation. apply, are also excluded from the cover- As used in this chapter referral for age of this chapter.

Litigation means referral to the Depart$ 101.4 Compromise, waiver, or dispo

ment of Justice for appropriate legal prosition under other statutes not pre

ceedings, unless the agency concerned cluded.

has statutory authority for handling its

own litigation. Nothing contained in this chapter is intended to preclude agency disposition of any claim under statutes other than

PART 102-STANDARDS FOR THE the Federal Claims Collection Act of 1966, ADMINISTRATIVE COLLECTION OF 80 Stat. 308, providing for the compro- CLAIMS mise, termination of collection action, or

Bec, waiver in whole or in part of such a

102.1 Aggressive agency collection action. claim. See, e.g., “The Federal Medical

102.2 Demand for paymont. Care Recovery Act,” 76 Stat. 593, 42 102.3 Collection by offset. U.S.C. 2651, et seq., and applicable regu- 102.4 Personal interview with debtor. lations, 28 CFR 43.1, et seq. The stand

102.5 Contact with debtor's employing ards set forth in this chapter should be

agency.

102.6 followed in the disposition of civil claims

Suspension or revocation of licenso by the Federal Government by compro

or eligibility.

102.7 Liquidation of collateral. mise or termination of collection action

102.8 Collection in installments. (other than by waiver pursuant to statu- 102.9 Exploration of compromiso. tory authority) under statutes other than 102.10 Interest. the Federal Claims Collection Act of 102.11 Documentation of adminstrativo 1966, 80 Stat. 308, to the extent such

collection action. other statutes or authorized regulations

102.12 Additional administrativo collection

action. issued pursuant thereto do not establish standards governing such matters.

AUTHORITY: The provisions of this part 102

issued under sec, 8, 80 Stat. 809; 81 U.S.O. § 101.5 Conversion claims.

952. The instructions contained in this

SOURCE: The provisions of this Part 102 apchapter are directed primarily to the re

pear at 31 F.R. 18881, Oct. 18, 1966, unless covery of money on behalf of the Gov- otherwise noted. ernment and the circumstances in which Government claims may be disposed of

$ 101.1 Aggressive agency

collection

action. for less than the full amount claimed. Nothing contained in this chapter is in- The head of an agency or his designee tended, however, to deter an agency from

shall take aggressive action, on a timely demanding the return of specific prop

basis with effective followup, to collect erty or from demanding, in the alter

all claims of the United States for money native, either the return of property or or property arising out of the activities the payment of its value.

of, or referred to, his agency in accordf 101.6 Subdivision of claims not au

ance with the standards set forth in this thorized.

chapter. However, nothing contained in

this chapter is intended to require the A debtor's liability arising from a par

General Accounting Office or the Deticular transaction or contract shall be

partment of Justice to duplicate collecconsidered as a single claim in determin

tion actions previously undertaken by ing whether the claim is one of less than

any other agency. $20,000, exclusive of interest, for the purpose of compromise or termination of col

$ 102.2 Demand for payment. lection action. Such a claim may not be

Appropriate written demands shall be subdivided to avoid the monetary ceiling made upon a debtor of the United States established by the Federal Claims Col- in terms which inform the debtor of the lection Act of 1966, 80 Stat. 308.

consequences of his failure to cooperate.

Three written demands, at 30-day intervals, will normally be made unless a response to the first or second demand indicates that further demand would be futile or unless prompt suit or attachment is required in anticipation of the departure of the debtor or debtors from the jurisdiction or his or their removal or transfer of assets, or the running of the statute of limitations. There should be no undue time lag in responding to any communication received from the debtor or debtors. § 102.3 Collection by offset.

Collections by offset will be undertaken administratively on claims which are liquidated or certain in amount in every instance in which this is feasible. Collections by offset from persons receiving pay or compensation from the Federal Government shall be effected over a period not greater than the period during which such pay or compensation is to be received. See 5 U.S.C. 5514. Collection by offset against a judgment obtained by the debtor against the United States shall be accomplished in accordance with the Act of March 3, 1875, 18 Stat. 481, as amended, 31 U.S.C. 227. Appropriate use should be made of the cooperative efforts of other agencies in effecting collections by offset, including utilization of the Army Holdup List, and all agencies are enjoined to cooperate in this endeavor. 8 102.4 Personal interview with debtor.

Agencies will undertake personal interviews with their debtors when this is feasible, having regard for the amounts involved and the proximity of agency represenatives to such debtors. & 102.5 Contact with debtor's employing

agency. When a debtor is employed by the Federal Government or is a member of the military establishment or the Coast Guard, and collection by offset cannot be accomplished in accordance with 5 U.S.C. 5514, the employing agency will be contacted for the purpose of arranging with the debtor for payment of the indebtedness by allotment or otherwise in accordance with section 206 of Executive Order 11222 of May 8, 1965, 3 CFR, 1965 Supp., p. 130 (30 F.R. 6469). § 102.6 Suspension or revocation of li

cense or eligibility. Agencies seeking the collection of statutory penalties, forfeitures, or debts provided for as an enforcement aid or for

compelling compliance will give serious consideration to the suspension or revocation of licenses or other privileges for any inexcusable, prolonged or repeated failure of a debtor to pay such a claim and the debtor will be so advised. Any agency making, guaranteeing, insuring, acquiring, or participating in loans will give serious consideration to suspending or disqualifying any lender, contractor, broker, borrower or other debtor from doing further business with it or engaging in programs sponsored by it if such a debtor fails to pay its debts to the Government within a reasonable time and the debtor will be so advised. The failure of any surety to honor its obligations in accordance with 6 U.S.C. 11 is to be reported to the Treasury Department at once. Notification that a surety's certificate of authority to do business with the Federal Government has been revoked or forfeited by the Treasury Department will be forwarded by that Department to all interested agencies.

102.7 Liquidation of collateral.

Agencies holding security or collateral which may be liquidated and the proceeds applied on debts due it through the exercise of a power of sale in the security instrument or a non-judicial foreclosure should do so by such procedures if the debtor fails to pay his debt within a reasonable time after demand, unless the cost of disposing of the collateral will be disproportionate to its value or special circumstances require judicial foreclosure. Collection from other sources, including liquidation of security or collateral, is not a prerequisite to requiring payment by a surety or insurance concern unless such action is expressly required by statute or contract. 8 102.8 Collection in installments.

Claims, with interest in accordance with $ 102.10 should be collected in full in one lump sum whenever this is possible. However, if the debtor is financially unable to pay the indebtedness in one lump sum, payment may be accepted in regular installments. The size and frequency of such installment payments should bear a reasonable relation to the size of the debt and the debtor's ability to pay. If possible the installment payments should be suficient in size and frequency to liquidate the Government's claim in not more than 3 years. Installment payments of less than $10 per month should be accepted in only the most unusual circumstances. An agency

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$ 102.12 Additional administrative col.

lection action. Nothing contained in this chapter is intended to preclude the utilization of any other administrative remedy which may be available.

holding an unsecured claim for administrative collection should attempt to obtain an executed confess-judgment note. comparable to the Department of Justice form USA-70a, from a debtor when the total amount of the deferred installments will exceed $750. Such notes may be sought when an unsecured obligation of a lesser amount is involved. Security for deferred payments, other than a confess-judgment note, may be accepted in appropriate cases. An agency may accept installment payments notwithstanding the refusal of a debtor to execute a confess-judgment note or to give other security, at the agency's option. § 102.9 Exploration of compromise.

Agencies will attempt to effect compromises (preferably during the course of personal interviews), of claims of $20,000 or less exclusive of interest, in accordance with the standards set forth in Part 103 of this chapter in all cases in which it can be ascertained that the debtor's financial ability will not permit payment of the claim in full, or in which the litigative risks or the costs of litigation dictate such action. § 102.10 Interest.

In cases in which prejudgment interest is not mandated by statute, contract or regulation, the agency may forego the collection of prejudgment interest as an inducement to voluntary payment. In such cases demand letters should inform the debtor that prejudgment interest will be collected if suit becomes necessary. When a debt is paid in installments and interest is collectedthe installment payments will first be applied to the payment of accrued interest and then to principal, in accordance with the socalled “U.S. Rule”, unless a different rule is prescribed by statute, contract or regulation. Prejudgment interest should not be demanded or collected on civil penalty and forfeiture claims unless the statute under which the claim arises authorizes the collection of such interest. See Rodgers v. United States, 332 U.S. 371. § 102.11 Documentation of administra.

tive collection action. All administrative collection action should be documented and the bases for compromise, or for termination or suspension of collection action, should be set out in detail. Such documentation should be retained in the appropriate claims file.

PART 103-STANDARDS FOR THE

COMPROMISE OF CLAIMS Sec. 103.1 Scope and application. 103.2 Inability to pay. 103.3 Litigative probabilities. 103.4 Cost of collecting claim. 103.5 Enforcement policy. 103.6 Joint and several liability. 103.7 Settlement for a combination of rea

sons. 103.8 Further review of compromise offers. 103.9 Restrictions.

AUTHORITY: The provisions of this part 103 issued under sec. 3, 80 Stat. 309; 31 U.S.C. 952.

SOURCE: The provisions of this part 103 appear at 31 F.R. 13382, Oct. 15, 1966, unless otherwise noted. § 103.1 Scope and application.

The standards set forth in this part apply to the compromise of claims, pursuant to section 3(b) of the Federal Claims Collection Act of 1966, 80 Stat. 309, which do not exceed $20,000 exclusive of interest. The head of an agency or his designee may exercise such compromise authority with respect to claims for money or property arising out of the activities of his agency prior to the referral of such claims to the General Accounting Office or to the Department of Justice for litigation. The Comptroller General or his designee may exercise such compromise authority with respect to claims referred to the General Accounting Office prior to their further referral for litigation. Only the Comptroller General or his designee may effect the compromise of a claim that arises out of an exception made by the General Accounting Office in the account of an accountable officer, including a claim against the payee, prior to its referral by that Office for litigation. § 103.2 Inability to pay.

A claim may be compromised pursuant to this part if the Government cannot collect the full amount because of (a) the debtor's inability to pay the full amount within a reasonable time, or (b) the refusal of the debtor to pay the

claim in full and the Government's inability to enforce collection in full within a reasonable time by enforced collection proceedings. In determining the debtor's inability to pay the following factors, among others, may be considered: Age and health of the debtor; present and potential income; inheritance prospects; the possibility that assets have been concealed or improperly transferred by the debtor; the availability of assets or income which may be realized upon by enforced collection proceedings. The agency will give consideration to the applicable exemptions available to the debtor under State and Federal law in determining the Government's ability to enforce collection. Uncertainty as to the price which collateral or other property will bring at forced sale may properly be considered in determining the Government's ability to enforce collection. A compromise effected under this section should be for an amount which bears a reasonable relation to the amount which can be recovered by enforced collection procedures, having regard for the exemptions available to the debtor and the time which collection will take. Compromises payable in installments are to be discouraged. However, if payment of a compromise by installments is necessary, an agreement for the reinstatement of the prior indebtedness less sums paid thereon and acceleration of the balance due upon default in the payment of any installment should be obtained, together with security in the manner set forth in $ 102.8 of this chapter, in every case in which this is possible. If the agency's files do not contain reasonably up-todate credit information as a basis for assessing a compromise proposal such information may be obtained from the individual debtor by obtaining a statement executed under penalty of perjury showing the debtor's assets and liabilities, income and expense. Forms such as Department of Justice form DJ-35 may be used for this purpose. Similar data may be obtained from corporate debtors by resort to balance sheets and such additional data as seems required. § 103.3 Litigative probabilities.

A claim may be compromised pursuant to this part if there is a real doubt concerning the Government's ability to prove its case in court for the full amount claimed either because of the legal issues involved or a bona fide dispute as to

the facts. The amount accepted in compromise in such cases should fairly reflect the probability of prevailing on the legal question involved, the probabilities with respect to full or partial recovery of a judgment having due regard to the availability of witnesses and other evidentiary support for the Government claim, and related pragmatic considerations. Proportionate weight should be given to the probable amount of court costs which may be assessed against the Government if it is unsuccessful in Utigation, having regard for the Utigative risks involved. Cf. 28 U.S.C. 2412, as amended by Public Law 89–507, 80 Stat. 308. $ 103.4 Cost of collecting claim.

A claim may be compromised pursuant to this part if the cost of collecting the claim does not justify the enforced collection of the full amount. The amount accepted in compromise in such cases may reflect an appropriate discount for the administrative and litigative costs of collection having regard for the time which it will take to effect collection. Cost of collecting may be a substantial factor in the settlement of small claims. The cost of collecting claims normally will not carry great weight in the settlement of large claims. § 103.5 Enforcement policy.

Statutory penalties, forfeitures, or debts established as an aid to enforcement and to compel compliance may be compromised pursuant to this part if the agency's enforcement policy in terms of deterrence and securing compliance, both present and future, will be adequately served by acceptance of the sum to be agreed upon. Mere accidental or technical violations may be dealt with less severly than willful and substantial violations. § 103.6 Joint and several liability.

When two or more debtors are jointly and severally liable collection action will not be withheld against one such debtor until the other or others pay their proportionate share. The agency should not attempt to allocate the burden of paying such claims as between the debtors but should proceed to liquidate the indebtedness as quickly as possible. Care should be taken that compromise with one such debtor does not release the agency's claim against the remaining debtors. The amount of a compro

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