§ 3718. Contracts for collection services

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)Under conditions the head of an executive, judicial, or legislative agency considers appropriate, the head of the agency may enter into a contract with a person for collection service to recover indebtedness owed, or to locate or recover assets of, the United States Government. The head of an agency may not enter into a contract under the preceding sentence to locate or recover assets of the United States held by a State government or financial institution unless that agency has established procedures approved by the Secretary of the Treasury to identify and recover such assets. The contract shall provide that—

(1)the head of the agency retains the authority to resolve a dispute, compromise a claim, end collection action, and refer a matter to the Attorney General to bring a civil action; and

(2)the person is subject to—

(A)section 552a of title 5, to the extent provided in section 552a(m); and

(B)laws and regulations of the United States Government and State governments related to debt collection practices.

(A)The Attorney General may make contracts retaining private counsel to furnish legal services, including representation in negotiation, compromise, settlement, and litigation, in the case of any claim of indebtedness owed the United States. Each such contract shall include such terms and conditions as the Attorney General considers necessary and appropriate, including a provision specifying the amount of the fee to be paid to the private counsel under such contract or the method for calculating that fee. The amount of the fee payable for legal services furnished under any such contract may not exceed the fee that counsel engaged in the private practice of law in the area or areas where the legal services are furnished typically charge clients for furnishing legal services in the collection of claims of indebtedness, as determined by the Attorney General, considering the amount, age, and nature of the indebtedness and whether the debtor is an individual or a business entity. Nothing in this subparagraph shall relieve the Attorney General of the competition requirements set forth in division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.

(B)The Attorney General shall use his best efforts to enter into contracts under this paragraph with law firms owned and controlled by socially and economically disadvantaged individuals and law firms that are qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), so as to enable each agency to comply with paragraph (3).

(2)The head of an executive, judicial, or legislative agency may, subject to the approval of the Attorney General, refer to a private counsel retained under paragraph

(1)of this subsection claims of indebtedness owed the United States arising out of activities of that agency.

(3)Each agency shall use its best efforts to assure that not less than 10 percent of the amounts of all claims referred to private counsel by that agency under paragraph

(2)are referred to law firms owned and controlled by socially and economically disadvantaged individuals and law firms that are qualified HUBZone small business concerns. For purposes of this paragraph—

(A)the term “law firm owned and controlled by socially and economically disadvantaged individuals” means a law firm that meets the requirements set forth in clauses

(i)and

(ii)of section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)(i) and (ii)) and regulations issued under those clauses;

(B)“socially and economically disadvantaged individuals” shall be presumed to include these 1 groups and individuals described in the last paragraph of section 8(d)(3)(C) of the Small Business Act; and

(C)the term “qualified HUBZone small business concern” has the meaning given that term in section 31(b) of the Small Business Act.

(4)Notwithstanding sections 516, 518(b), 519, and 547(2) of title 28, a private counsel retained under paragraph

(1)of this subsection may represent the United States in litigation in connection with legal services furnished pursuant to the contract entered into with that counsel under paragraph

(1)of this subsection.

(5)A contract made with a private counsel under paragraph

(1)of this subsection shall include—

(A)a provision permitting the Attorney General to terminate either the contract or the private counsel’s representation of the United States in particular cases if the Attorney General finds that such action is for the convenience of the Government;

(B)a provision stating that the head of the executive or 2 legislative agency which refers a claim under the contract retains the authority to resolve a dispute regarding the claim, to compromise the claim, or to terminate a collection action on the claim; and

(C)a provision requiring the private counsel to transmit monthly to the Attorney General and the head of the executive or 2 legislative agency referring a claim under the contract a report on the services relating to the claim rendered under the contract during the month and the progress made during the month in collecting the claim under the contract.

(6)Notwithstanding the fourth sentence of section 803(6) of the Fair Debt Collection Practices Act (15 U.S.C. 1692a(6)), a private counsel performing legal services pursuant to a contract made under paragraph

(1)of this subsection shall be considered to be a debt collector for the purposes of such Act.

(7)Any counterclaim filed in any action to recover indebtedness owed the United States which is brought on behalf of the United States by private counsel retained under this subsection may not be asserted unless the counterclaim is served directly on the Attorney General or the United States Attorney for the judicial district in which, or embracing the place in which, the action is brought. Such service shall be made in accordance with the rules of procedure of the court in which the action is brought.

(c)The Attorney General shall transmit to the Congress an annual report on the activities of the Department of Justice to recover indebtedness owed the United States which was referred to the Department of Justice for collection. Each such report shall include a list, by agency, of—

(1)the total number and amounts of claims which were referred for legal services to the Department of Justice and to private counsel under subsection

(b)during the 1-year period covered by the report;

(2)the total number and amount of those claims referred for legal services to the Department of Justice which were collected or were not collected or otherwise resolved during the 1-year period covered by the report; and

(3)the total number and amount of those claims referred for legal services to private counsel under subsection (b)—

(A)which were collected or were not collected or otherwise resolved during the 1-year period covered by the report;

(B)which were not collected or otherwise resolved under a contract terminated by the Attorney General during the 1-year period covered by the report; and

(C)on which the Attorney General terminated the private counsel’s representation during the 1-year period covered by the report without terminating the contract with the private counsel under which the claims were referred.

(d)Notwithstanding section 3302(b) of this title, a contract under subsection

(a)or

(b)of this section may provide that a fee a person charges to recover indebtedness owed, or to locate or recover assets of, the United States Government is payable from the amount recovered.

(e)A contract under subsection

(a)or

(b)of this section is effective only to the extent and in the amount provided in an appropriation law. This limitation does not apply in the case of a contract that authorizes a person to collect a fee as provided in subsection

(d)of this section.

(f)This section does not apply to the collection of debts under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).

(g)In order to assist Congress in determining whether use of private counsel is a cost-effective method of collecting Government debts, the Attorney General shall, following consultation with the Government Accountability Office, maintain and make available to the Inspector General of the Department of Justice, statistical data relating to the comparative costs of debt collection by participating United States Attorneys’ Offices and by private counsel.

(Added Pub. L. 97–452, § 1(16)(A), Jan. 12, 1983, 96 Stat. 2473; amended Pub. L. 98–167, Nov. 29, 1983, 97 Stat. 1104; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99–578, § 1, Oct. 28, 1986, 100 Stat. 3305; Pub. L. 102–589, § 6, Nov. 10, 1992, 106 Stat. 5135; Pub. L. 103–272, § 4(f)(1)(M), July 5, 1994, 108 Stat. 1362; Pub. L. 104–134, title III, § 31001(c)(1), (l), (cc)(1), Apr. 26, 1996, 110 Stat. 1321–359, 1321–366, 1321–380; Pub. L. 105–135, title VI, § 604(e)(1), Dec. 2, 1997, 111 Stat. 2633;

Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–350, § 5(h)(6), Jan. 4, 2011, 124 Stat. 3849; Pub. L. 115–91, div. A, title XVII, § 1701(a)(4)(E), Dec. 12, 2017, 131 Stat. 1796.)

In subsections

(a)and (b), the word “Government” is added for consistency in the revised title and with other titles of the United States Code.

In subsection (a), before clause (1), the words “terms and” are omitted as surplus. The words “or organization” are omitted because of 1:1. In clause (1), the words “bring a civil action” are substituted for “initiate legal action” for consistency in the revised title and with other titles of the Code. In clause (2)(B), the words “including the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.)” are omitted as being included in “laws and regulations of the United States Government”.

In subsection (b), the words “the head of an agency” are omitted as surplus.

In subsection (c), the word “advanced” is omitted as surplus.

In subsection (d), the words “Notwithstanding the provisions of any other law governing the collection of claims owed the United States” and “unpaid or underpaid” are omitted as surplus.

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