Before referring a debt for collection by administrative offset, a creditor agency must provide each debtor with:
(a) a written notification of the nature and the amount of the debt, the intention of the agency to collect the debt through administrative offset, and an explanation of the debtor’s rights;
(b) an opportunity to inspect and copy the records of the agency;
(c) an opportunity for review within the agency; and
(d) an opportunity to enter into a written repayment agreement.
Can they offset my tax refund and then tell me after the fact?
Yes, after the debt has been referred for administrative offset and an offset is taken, the disbursing official conducting the offset must notify the debtor/payee that the offset has occurred (including the amount and type of payment that was used to pay the debt) and the identity of the creditor agency requesting the offset, including a contact name. The specific timing of the notice is not mandated for tax refund offsets.
What if I did not receive a notice at all?
Regardless of the type of payment, failure of the debtor to receive notice will not affect the legality of the offset (withholding).
We have had quite a few clients ask us how a defaulted SBA loan might affect their business dealings with the government. In this post we are going to look at this question from the perspective of a client who has one or more contracts with the federal government under which they receive payments for services rendered.
For example, a medical practice or surgical center might receive Medicare payments or a janitorial service might have a contract to clean the offices of certain federal buildings. Will defaulting on an SBA loan really affect any of those agreements? Yes.
Will I be barred from receiving government contracts?
Surprisingly, no, unless otherwise provided by law. Contracting officers shall not use the presence of the CCR debt flag indicator (see below) to exclude a contractor from receipt of the contract award or issuance or placement of an order. However, the government will take steps to ensure that delinquent funds are collected. And, they will be aggressive once they become aware of the delinquency.
Centralized Offset of Federal Payments
As we have just learned, you probably won’t lose your contract award because of defaulted SBA debt, but federal payments made to you are all but certain to be offset. When it is contemplated that the Government-wide commercial purchase card will be used as the method of payment, and the contract or order is above the micro-purchase threshold, contracting officers are required to verify whether the contractor has any delinquent debt subject to collection under the Treasury Offset Program (TOP). This check must be performed at the time of contract award or order placement.
Federal contracting officers are required to check the General Services Administration Central Contractor Registry (CCR) to determine whether a contractor owes a delinquent debt. When the Government contracts for goods or services and pays with a credit card, those payments are made to the card-issuing bank and cannot legally be intercepted for delinquent debts owed by the contractor.
The contracting officer, by law, may not authorize the Government-wide commercial purchase card as a method of payment during any period the CCR indicates that the contractor has delinquent debt subject to collection under the TOP. In such cases, payments under the contract shall be made in accordance with the clause at 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, or 52.232-34, Payment by Electronic Funds Transfer—Other Than Central Contractor Registration, as appropriate in order to assure that delinquent contractors are paid through a mechanism that can be offset or levied to collect the contractor’s debts.
The original law references CCR. What is SAM?
The CCR was the primary supplier database for the U.S. Federal government until July 30, 2012. On July 30, 2012, the CCR transitioned to the System for Award Management (SAM). SAM is now the Official U.S. Government system that consolidated the capabilities of CCR/FedReg, ORCA, and EPLS. For purposes of this post, all references to the original CCR process should now reflect SAM. If you had an entry in the CCR database, you now have an entry in SAM.
Owing unpaid federal debts can cause serious problems. If you would like more information on how the Treasury Offset Program (TOP) works, please contact the Perliski Law Group for a free initial consultation at (214) 446-3934 or use the Contact Us link at the top right of this page.