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pdfSubtitle C—Federal Property
Management Regulations
System (Continued)
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CHAPTER 102—FEDERAL MANAGEMENT
REGULATION
SUBCHAPTER A—GENERAL
Part
Page
102–1
102–2
102–3
102–4
General [Reserved]
Federal management regulation system .................
Federal Advisory Committee Management .............
Nondiscrimination in Federal financial assistance
programs [Reserved]
102–5
Home-to-work transportation .................................
102–6—102–30[Reserved]
7
11
36
SUBCHAPTER B—PERSONAL PROPERTY
102–31
102–32
102–33
102–34
102–35
102–36
102–37
102–38
102–39
General [Reserved]
Management of personal property [Reserved]
Management of government aircraft ......................
Motor vehicle management .....................................
Disposition of personal property .............................
Disposition of excess personal property ..................
Donation of surplus personal property ....................
Sale of personal property ........................................
Replacement of personal property pursuant to the
exchange/sale authority .......................................
102–40
Utilization and disposition of personal property
with special handling requirements .....................
102–41
Disposition of seized, forfeited, voluntarily abandoned, and unclaimed personal property ..............
102–42
Utilization, donation, and disposal of foreign gifts
and decorations ....................................................
102–43—102–70[Reserved]
41
71
84
87
110
143
157
162
186
195
SUBCHAPTER C—REAL PROPERTY
102–71
102–72
102–73
102–74
102–75
General ....................................................................
Delegation of authority ..........................................
Real estate acquisition ...........................................
Facility management ..............................................
Real property disposal ............................................
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204
209
214
227
250
41 CFR Ch. 102 (7–1–16 Edition)
Part
Page
102–76
Design and construction .........................................
102–77
Art-in-architecture .................................................
102–78
Historic preservation ..............................................
102–79
Assignment and utilization of space .......................
102–80
Safety and environmental management .................
102–81
Security ..................................................................
102–82
Utility services ........................................................
102–83
Location of space ....................................................
102–84
Annual real property inventories ............................
102–85
Pricing policy for occupancy in GSA space .............
102–86—102–115[Reserved]
311
316
317
320
325
332
333
334
340
343
SUBCHAPTER D—TRANSPORTATION
102–116 General [Reserved]
102–117 Transportation management ..................................
102–118 Transportation payment and audit .........................
102–119—102–140[Reserved]
358
376
SUBCHAPTER E—TRAVEL MANAGEMENT [RESERVED]
102–141 General [Reserved]
102–142—102–170[Reserved]
SUBCHAPTER F—TELECOMMUNICATIONS
102–171
102–172
General [Reserved]
Telecommunications management policy [Reserved]
102–173 Internet GOV Domain .............................................
102–174—102–190[Reserved]
404
SUBCHAPTER G—ADMINISTRATIVE PROGRAMS
102–191 General [Reserved]
102–192 Mail management ...................................................
102–193 Creation, maintenance, and use of records .............
102–194 Standard and optional forms management program
102–196 Federal facility ridesharing [Reserved]
102–197—102–199[Reserved]
SUBCHAPTERS H–Z [RESERVED]
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408
414
416
SUBCHAPTER A—GENERAL
102–2.120 How do I know whom to contact to
discuss the regulatory requirements of
programs addressed in the FMR?
102–2.125 What source of information can
my agency use to identify materials that
describe how to do business with GSA?
PART 102—GENERAL [RESERVED]
PART 102–2—FEDERAL MANAGEMENT REGULATION SYSTEM
Subpart A—Regulation System
Subpart B—Forms
GENERAL
102–2.130 Where are FMR forms prescribed?
102–2.135 How do agencies obtain forms prescribed by the FMR?
Sec.
102–2.5 What is the Federal Management
Regulation (FMR)?
102–2.10 What is the FMR’s purpose?
102–2.15 What is the authority for the FMR
system?
102–2.20 Which agencies are subject to the
FMR?
102–2.25 When are other agencies involved in
developing the FMR?
102–2.30 Where and in what formats is the
FMR published?
102–2.35 How is the FMR distributed?
102–2.40 May an agency issue implementing
and supplementing regulations for the
FMR?
Subpart C—Plain Language Regulatory
Style
102–2.140 What elements of plain language
appear in the FMR?
102–2.145 To what do pronouns refer when
used in the FMR?
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 64 FR 39085, July 21, 1999, unless
otherwise noted.
Subpart A—Regulation System
NUMBERING
GENERAL
102–2.45 How is the FMR numbered?
102–2.50 How do I number my agency’s implementing regulations?
102–2.55 How do I number my agency’s
supplementing regulations?
§ 102–2.5 What is the Federal Management Regulation (FMR)?
The Federal Management Regulation
(FMR) is the successor regulation to
the Federal Property Management
Regulations (FPMR). It contains updated regulatory policies originally
found in the FPMR. However, it does
not contain FPMR material that described how to do business with the
General
Services
Administration
(GSA). ‘‘How to’’ materials on this and
other subjects are available in customer service guides, handbooks, brochures and Internet websites provided
by GSA. (See § 102–2.125.)
DEVIATIONS
102–2.60 What is a deviation from the FMR?
102–2.65 When may agencies deviate from
the FMR?
102–2.70 What are individual and class deviations?
102–2.75 What timeframes apply to deviations?
102–2.80 What steps must an agency take to
deviate from the FMR?
102–2.85 What are the reasons for writing to
GSA about FMR deviations?
102–2.90 Where should my agency send its
correspondence on an FMR deviation?
102–2.95 What information must agencies include in their deviation letters to GSA?
102–2.100 Must agencies provide GSA with a
follow-up analysis of their experience in
deviating from the FMR?
102–2.105 What information must agencies
include in their follow-up analysis?
102–2.110 When must agencies provide their
follow-up analysis?
§ 102–2.10
What is the FMR’s purpose?
The FMR prescribes policies concerning property management and related administrative activities. GSA
issues the FMR to carry out the Administrator of General Services’ functional responsibilities, as established
by statutes, Executive orders, Presidential memoranda, Circulars and bulletins issued by the Office of Management and Budget (OMB), and other policy directives.
NON-REGULATORY MATERIAL
102–2.115 What kinds of non-regulatory material does GSA publish outside of the
FMR?
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§ 102–2.15
41 CFR Ch. 102 (7–1–16 Edition)
(a) FEDERAL REGISTER under the
‘‘Rules and Regulations’’ section.
(b) Loose-leaf. (See § 102–2.35.)
(c) Code of Federal Regulations
(CFR), which is an annual codification
of the general and permanent rules
published in the FEDERAL REGISTER.
The CFR is available on line and in a
bound-volume format.
(d) Electronically on the Internet.
§ 102–2.15 What is the authority for the
FMR system?
The Administrator of General Services prescribes and issues the FMR
under the authority of the Federal
Property and Administrative Services
Act of 1949, as amended, 40 U.S.C.
486(c), as well as other applicable Federal laws and authorities.
§ 102–2.20 Which agencies are subject
to the FMR?
The FMR applies to executive agencies unless otherwise extended to Federal agencies in various parts of this
chapter. The difference between the
two terms is that Federal agencies include executive agencies plus establishments in the legislative or judicial
branch of the Government. See paragraphs (a) and (b) of this section for the
definitions of each term.
(a) What is an executive agency? An executive agency is any executive department or independent establishment in
the executive branch of the Government, including any wholly-owned
Government corporation. (See 40 U.S.C.
472(a).)
(b) What is a Federal agency? A Federal agency is any executive agency or
any establishment in the legislative or
judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the
Capitol and any activities under that
person’s direction). (See 40 U.S.C.
472(b).)
§ 102–2.35
uted?
How is the FMR distrib-
(a) A liaison appointed by each agency provides GSA with their agency’s
distribution requirements of the looseleaf version of the FMR. Agencies must
submit GSA Form 2053, Agency Consolidated Requirements for GSA Regulations and Other External Issuances,
to—General Services Administration,
Office of Communications (X), 1800 F
Street, NW., Washington, DC 20405.
(b) Order FEDERAL REGISTER and
Code of Federal Regulations copies of
FMR material through your agency’s
authorizing officer.
§ 102–2.40 May an agency issue implementing and supplementing regulations for the FMR?
Yes, an agency may issue implementing regulations (see § 102–2.50) to
expand upon related FMR material and
supplementing regulations (see § 102–
2.55) to address subject material not
covered in the FMR. The Office of the
Federal Register assigns chapters in
Title 41 of the Code of Federal Regulations for agency publication of implementing and supplementing regulations.
§ 102–2.25 When are other agencies involved in developing the FMR?
Normally, GSA will ask agencies to
collaborate in developing parts of the
FMR.
NUMBERING
§ 102–2.30 Where and in what formats
is the FMR published?
Proposed rules are published in the
FEDERAL REGISTER. FMR bulletins are
published in looseleaf format. FMR interim and final rules are published in
the following formats—
§ 102–2.45
How is the FMR numbered?
(a) All FMR sections are designated
by three numbers. The following example illustrates the chapter (it’s always
102), part, and section designations:
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Federal Management Regulation
§ 102–2.85
(b) In the looseleaf version, the
month, year, and number of FMR
amendments appear at the bottom of
each page.
§ 102–2.70 What are
class deviations?
individual
and
An individual deviation is intended
to affect only one action. A class deviation is intended to affect more than
one action (e.g., multiple actions, the
actions of more than one agency, or individual agency actions that are expected to recur).
§ 102–2.50 How do I number my agency’s implementing regulations?
The first three-digit number represents the chapter number assigned to
your agency in Title 41 of the CFR. The
part and section numbers correspond to
FMR material. For example, if your
agency is assigned Chapter 130 in Title
41 of the CFR and you are implementing § 102–2.60 of the FMR, your implementing section would be numbered
§ 130–2.60.
§ 102–2.75 What timeframes apply to
deviations?
Timeframes vary based on the nature
of the deviation. However, deviations
cannot be open-ended. When consulting
with GSA about using an individual or
class deviation, you must set a timeframe for the deviation’s duration.
§ 102–2.55 How do I number my agency’s supplementing regulations?
§ 102–2.80 What steps must an agency
take to deviate from the FMR?
Since there is no corresponding FMR
material, number the supplementing
material ‘‘601’’ or higher. For example,
your agency’s supplementing regulations governing special services to
states might start with § 130–601.5.
(a) Consult informally with appropriate GSA program personnel to learn
more about how your agency can work
within the FMR’s requirements instead
of deviating from them. The consultation process may also highlight reasons
why an agency would not be permitted
to deviate from the FMR; e.g., statutory constraints.
(b) Formally request a deviation, if
consultations indicate that your agency needs one. The head of your agency
or a designated official should write to
GSA’s Regulatory Secretariat to the
attention of a GSA official in the program office that is likely to consider
the deviation. (See the FMR bulletin
that lists contacts in GSA’s program
offices and § 102–2.90.) The written request must fully explain the reasons
for the deviation, including the benefits that the agency expects to achieve.
DEVIATIONS
§ 102–2.60 What is a deviation from the
FMR?
A deviation from the FMR is an
agency action or policy that is inconsistent with the regulation. (The deviation policy for the FPMR is in 41 CFR
part 101–1.)
§ 102–2.65 When may agencies deviate
from the FMR?
Because, it consists primarily of set
policies and mandatory requirements,
deviation from the FMR should occur
infrequently. However, to address
unique circumstances or to test the effectiveness of potential policy changes,
agencies may be able to deviate from
the FMR after following the steps described in § 102–2.80.
§ 102–2.85 What are the reasons for
writing to GSA about FMR deviations?
The reasons for writing are to:
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ER21JY99.001
9
§ 102–2.90
41 CFR Ch. 102 (7–1–16 Edition)
(a) Explain your agency’s rationale
for the deviation. Before it can adequately comment on a potential deviation from the FMR, GSA must know
why it is needed. GSA will compare
your need against the applicable policies and regulations.
(b) Obtain clarification from GSA as
to whether statutes, Executive orders,
or other controlling policies, which
may not be evident in the regulation,
preclude deviating from the FMR for
the reasons stated.
(c) Establish a timeframe for using a
deviation.
(d) Identify potential changes to the
FMR.
(e) Identify the benefits and other results that the agency expects to
achieve.
§ 102–2.105 What
information
must
agencies include in their follow-up
analysis?
In your follow-up analysis, provide
information that may include, but
should not be limited to, specific actions taken or not taken as a result of
the deviation, outcomes, impacts, anticipated versus actual results, and the
advantages and disadvantages of taking an alternative course of action.
§ 102–2.90 Where should my agency
send its correspondence on an FMR
deviation?
Send correspondence to: General
Services Administration, Regulatory
Secretariat (MVRS), Office of Governmentwide Policy, 1800 F Street, NW,
Washington, DC 20405.
NON-REGULATORY MATERIAL
§ 102–2.110 When must agencies provide their follow-up letters?
(a) For an individual deviation, once
the action is complete.
(b) For a class deviation, at the end
of each twelve-month period from the
time you first took the deviation and
at the end of the deviation period.
§ 102–2.115 What kinds of non-regulatory material does GSA publish
outside of the FMR?
As GSA converts the FPMR to the
FMR, non-regulatory materials in the
FPMR, such as guidance, procedures,
standards, and information, that describe how to do business with GSA,
will become available in separate documents. These documents may include
customer service guides, handbooks,
brochures, Internet websites, and FMR
bulletins. GSA will eliminate non-regulatory material that is no longer needed.
§ 102–2.95 What
information
must
agencies include in their deviation
letters to GSA?
Agencies must include:
(a) The title and citation of the FMR
provision from which the agency wishes to deviate;
(b) The name and telephone number
of an agency contact who can discuss
the reason for the deviation;
(c) The reason for the deviation;
(d) A statement about the expected
benefits of using the deviation (to the
extent possible, expected benefits
should be stated in measurable terms);
(e) A statement about possible use of
the deviation in other agencies or Governmentwide; and
(f) The duration of the deviation.
§ 102–2.120 How do I know whom to
contact to discuss the regulatory requirements of programs addressed
in the FMR?
Periodically, GSA will issue for your
reference an FMR bulletin that lists
program contacts with whom agencies
can discuss regulatory requirements.
At a minimum, the list will contain organization names and telephone numbers for each program addressed in the
FMR.
§ 102–2.100 Must agencies provide GSA
with a follow-up analysis of their
experience in deviating from the
FMR?
Yes, agencies that deviate from the
FMR must also write to the relevant
GSA program office at the Regulatory
Secretariat’s address (see § 102–2.90) to
describe their experiences in using a
deviation.
§ 102–2.125 What source of information
can my agency use to identify materials that describe how to do business with GSA?
The FMR establishes policy; it does
not specify procedures for the acquisition of GSA services. However, as a
service to users during the transition
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Federal Management Regulation
Pt. 102–3
from the FPMR to the FMR and as
needed thereafter, GSA will issue FMR
bulletins to identify where to find information on how to do business with
GSA. References include customer
service guides, handbooks, brochures,
Internet websites, etc.
PART 102–3—FEDERAL ADVISORY
COMMITTEE MANAGEMENT
Subpart A—What Policies Apply to Advisory Committees Established Within the
Executive Branch?
Sec.
102–3.5 What does this subpart cover and
how does it apply?
102–3.10 What is the purpose of the Federal
Advisory Committee Act?
102–3.15 Who are the intended users of this
part?
102–3.20 How does this part meet the needs
of its audience?
102–3.25 What definitions apply to this part?
102–3.30 What policies govern the use of advisory committees?
102–3.35 What policies govern the use of subcommittees?
102–3.40 What types of committees or groups
are not covered by the Act and this part?
APPENDIX A TO SUBPART A OF PART 102–3—
KEY POINTS AND PRINCIPLES
Subpart B—Forms
§ 102–2.130 Where are FMR forms prescribed?
In any of its parts, the FMR may prescribe forms and the requirements for
using them.
§ 102–2.135 How do agencies obtain
forms prescribed by the FMR?
For copies of the forms prescribed by
in the FMR, do any of the following:
(a) Write to us at: General Services
Administration, National Forms and
Publications Center (7CPN), Warehouse
4, Dock No. 1, 501 West Felix Street,
Fort Worth, TX 76115.
(b)
Send
e-mail
messages
to:
NFPC@gsa-7FDepot.
(c) Visit our web site at: www.gsa.gov/
forms/forms.htm.
Subpart B—How Are Advisory Committees
Established, Renewed, Reestablished,
and Terminated?
102–3.45 What does this subpart cover and
how does it apply?
102–3.50 What are the authorities for establishing advisory committees?
102–3.55 What rules apply to the duration of
an advisory committee?
102–3.60 What procedures are required to establish, renew, or reestablish a discretionary advisory committee?
102–3.65 What are the public notification requirements for discretionary advisory
committees?
102–3.70 What are the charter filing requirements?
102–3.75 What information must be included
in the charter of an advisory committee?
102–3.80 How are minor charter amendments
accomplished?
102–3.85 How are major charter amendments
accomplished?
APPENDIX A TO SUBPART B OF PART 102–3—
KEY POINTS AND PRINCIPLES
Subpart C—Plain Language
Regulatory Style
§ 102–2.140 What elements of plain language appear in the FMR?
The FMR is written in a ‘‘plain language’’ regulatory style. This style is
easy to read and uses a question and
answer format directed at the reader,
active voice, shorter sentences, and,
where appropriate, personal pronouns.
§ 102–2.145 To what do pronouns refer
when used in the FMR?
Throughout its text, the FMR may
contain pronouns such as, but not limited to, we, you, and I. When pronouns
are used, each subchapter of the FMR
will indicate whether they refer to the
reader, an agency, GSA, or some other
entity. In general, pronouns refer to
who or what must perform a required
action.
Subpart C—How Are Advisory Committees
Managed?
102–3.90 What does this subpart cover and
how does it apply?
102–3.95 What principles apply to the management of advisory committees?
102–3.100 What are the responsibilities and
functions of GSA?
102–3.105 What are the responsibilities of an
agency head?
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§ 102–3.5
41 CFR Ch. 102 (7–1–16 Edition)
102–3.110 What are the responsibilities of a
chairperson of an independent Presidential advisory committee?
102–3.115 What are the responsibilities and
functions of an agency Committee Management Officer (CMO)?
102–3.120 What are the responsibilities and
functions of a Designated Federal Officer
(DFO)?
102–3.125 How should agencies consider the
roles of advisory committee members
and staff?
102–3.130 What policies apply to the appointment, and compensation or reimbursement of advisory committee members,
staff, and experts and consultants?
APPENDIX A TO SUBPART C OF PART 102–3—
KEY POINTS AND PRINCIPLES
Subpart A—What Policies Apply to
Advisory Committees Established Within the Executive
Branch?
§ 102–3.5 What does this subpart cover
and how does it apply?
This subpart provides the policy
framework that must be used by agency heads in applying the Federal Advisory Committee Act (FACA), as amended (or ‘‘the Act’’), 5 U.S.C., App., to advisory committees they establish and
operate. In addition to listing key definitions underlying the interpretation
of the Act, this subpart establishes the
scope and applicability of the Act, and
outlines specific exclusions from its
coverage.
Subpart D—Advisory Committee Meeting
and Recordkeeping Procedures
102–3.135 What does this subpart cover and
how does it apply?
102–3.140 What policies apply to advisory
committee meetings?
102–3.145 What policies apply to subcommittee meetings?
102–3.150 How are advisory committee meetings announced to the public?
102–3.155 How are advisory committee meetings closed to the public?
102–3.160 What activities of an advisory
committee are not subject to the notice
and open meeting requirements of the
Act?
102–3.165 How are advisory committee meetings documented?
102–3.170 How does an interested party obtain access to advisory committee
records?
102–3.175 What are the reporting and recordkeeping requirements for an advisory
committee?
APPENDIX A TO SUBPART D OF PART 102–3—
KEY POINTS AND PRINCIPLES
§ 102–3.10 What is the purpose of the
Federal Advisory Committee Act?
FACA governs the establishment, operation, and termination of advisory
committees
within
the
executive
branch of the Federal Government. The
Act defines what constitutes a Federal
advisory committee and provides general procedures for the executive
branch to follow for the operation of
these advisory committees. In addition, the Act is designed to assure that
the Congress and the public are kept
informed with respect to the number,
purpose, membership, activities, and
cost of advisory committees.
§ 102–3.15 Who are the intended users
of this part?
(a) The primary users of this Federal
Advisory Committee Management part
are:
(1) Executive branch officials and
others outside Government currently
involved with an established advisory
committee;
(2) Executive branch officials who
seek to establish or utilize an advisory
committee;
(3) Executive branch officials and
others outside Government who have
decided to pursue, or who are already
engaged in, a form of public involvement or consultation and want to
avoid inadvertently violating the Act;
and
(4) Field personnel of Federal agencies who are increasingly involved with
Subpart E—How Does This Subpart Apply to
Advice or Recommendations Provided
to Agencies by the National Academy
of Sciences or the National Academy
of Public Administration?
102–3.180 What does this subpart cover and
how does it apply?
102–3.185 What does this subpart require
agencies to do?
APPENDIX A TO SUBPART E OF PART 102–3—
KEY POINTS AND PRINCIPLES
AUTHORITY: Sec. 205(c), 63 Stat. 390 (40
U.S.C. 486(c)); sec. 7, 5 U.S.C., App.; and E.O.
12024, 3 CFR, 1977 Comp., p. 158.
SOURCE: At 66 FR 37733, July 19, 2001, unless
otherwise noted.
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Federal Management Regulation
§ 102–3.25
Advisory committee subject to the Act,
except as specifically exempted by the
Act or by other statutes, or as not covered by this part, means any committee, board, commission, council,
conference, panel, task force, or other
similar group, which is established by
statute, or established or utilized by
the President or by an agency official,
for the purpose of obtaining advice or
recommendations for the President or
on issues or policies within the scope of
an agency official’s responsibilities.
Agency has the same meaning as in 5
U.S.C. 551(1).
Committee
Management
Officer
(‘‘CMO’’), means the individual designated by the agency head to implement the provisions of section 8(b) of
the Act and any delegated responsibilities of the agency head under the Act.
Committee
Management
Secretariat
(‘‘Secretariat’’), means the organization
established pursuant to section 7(a) of
the Act, which is responsible for all
matters relating to advisory committees, and carries out the responsibilities of the Administrator under the
Act and Executive Order 12024 (3 CFR,
1977 Comp., p. 158).
Committee meeting means any gathering of advisory committee members
(whether in person or through electronic means) held with the approval of
an agency for the purpose of deliberating on the substantive matters
upon which the advisory committee
provides advice or recommendations.
Committee member means an individual who serves by appointment or
invitation on an advisory committee or
subcommittee.
Committee staff means any Federal
employee, private individual, or other
party (whether under contract or not)
who is not a committee member, and
who serves in a support capacity to an
advisory committee or subcommittee.
Designated Federal Officer (‘‘DFO’’),
means an individual designated by the
agency head, for each advisory committee for which the agency head is responsible, to implement the provisions
of sections 10(e) and (f) of the Act and
any advisory committee procedures of
the agency under the control and supervision of the CMO.
Discretionary
advisory
committee
means any advisory committee that is
the public as part of their efforts to increase collaboration and improve customer service.
(b) Other types of end-users of this
part include individuals and organizations outside of the executive branch
who seek to understand and interpret
the Act, or are seeking additional guidance.
§ 102–3.20 How does this part meet the
needs of its audience?
This Federal Advisory Committee
Management part meets the general
and specific needs of its audience by
addressing the following issues and related topics:
(a) Scope and applicability. This part
provides guidance on the threshold
issue of what constitutes an advisory
committee and clarifies the limits of
coverage by the Act for the benefit of
the intended users of this part.
(b) Policies and guidelines. This part
defines the policies, establishes minimum requirements, and provides guidance to Federal officers and agencies
for the establishment, operation, administration, and duration of advisory
committees subject to the Act. This includes reporting requirements that
keep Congress and the public informed
of the number, purpose, membership,
activities, benefits, and costs of these
advisory committees. These requirements form the basis for implementing
the Act at both the agency and Governmentwide levels.
(c) Examples and principles. This part
provides summary-level key points and
principles at the end of each subpart
that provide more clarification on the
role of Federal advisory committees in
the larger context of public involvement in Federal decisions and activities. This includes a discussion of the
applicability of the Act to different decisionmaking scenarios.
§ 102–3.25 What definitions apply to
this part?
The following definitions apply to
this Federal Advisory Committee Management part:
Act means the Federal Advisory Committee Act, as amended, 5 U.S.C., App.
Administrator means the Administrator of General Services.
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§ 102–3.30
41 CFR Ch. 102 (7–1–16 Edition)
established under the authority of an
agency head or authorized by statute.
An advisory committee referenced in
general (non-specific) authorizing language or Congressional committee report language is discretionary, and its
establishment or termination is within
the legal discretion of an agency head.
Independent Presidential advisory committee means any Presidential advisory
committee not assigned by the Congress in law, or by President or the
President’s delegate, to an agency for
administrative and other support.
Non-discretionary advisory committee
means any advisory committee either
required by statute or by Presidential
directive. A non-discretionary advisory
committee required by statute generally
is identified specifically in a statute by
name, purpose, or functions, and its establishment or termination is beyond
the legal discretion of an agency head.
Presidential advisory committee means
any advisory committee authorized by
the Congress or directed by the President to advise the President.
Subcommittee means a group, generally not subject to the Act, that reports to an advisory committee and
not directly to a Federal officer or
agency, whether or not its members
are drawn in whole or in part from the
parent advisory committee.
Utilized for the purposes of the Act,
does not have its ordinary meaning. A
committee that is not established by
the Federal Government is utilized
within the meaning of the Act when
the President or a Federal office or
agency exercises actual management
or control over its operation.
visory committee is needed may include whether:
(1) Advisory committee deliberations
will result in the creation or elimination of (or change in) regulations,
policies, or guidelines affecting agency
business;
(2) The advisory committee will
make recommendations resulting in
significant improvements in service or
reductions in cost; or
(3) The advisory committee’s recommendations will provide an important additional perspective or viewpoint affecting agency operations.
(b) Termination. An advisory committee must be terminated when:
(1) The stated objectives of the committee have been accomplished;
(2) The subject matter or work of the
committee has become obsolete by the
passing of time or the assumption of
the committee’s functions by another
entity;
(3) The agency determines that the
cost of operation is excessive in relation to the benefits accruing to the
Federal Government;
(4) In the case of a discretionary advisory committee, upon the expiration
of a period not to exceed two years, unless renewed;
(5) In the case of a non-discretionary
advisory committee required by Presidential directive, upon the expiration
of a period not to exceed two years, unless renewed by authority of the President; or
(6) In the case of a non-discretionary
advisory committee required by statute, upon the expiration of the time explicitly specified in the statute, or implied by operation of the statute.
(c) Balanced membership. An advisory
committee must be fairly balanced in
its membership in terms of the points
of view represented and the functions
to be performed.
(d) Open meetings. Advisory committee meetings must be open to the
public except where a closed or partially-closed meeting has been determined proper and consistent with the
exemption(s) of the Government in the
Sunshine Act, 5 U.S.C. 552b(c), as the
basis for closure.
(e) Advisory functions only. The function of advisory committees is advisory
§ 102–3.30 What policies govern the use
of advisory committees?
The policies to be followed by Federal departments and agencies in establishing and operating advisory committees consistent with the Act are as follows:
(a) Determination of need in the public
interest. A discretionary advisory committee may be established only when it
is essential to the conduct of agency
business and when the information to
be obtained is not already available
through another advisory committee
or source within the Federal Government. Reasons for deciding that an ad-
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Federal Management Regulation
§ 102–3.40
only, unless specifically provided by
statute or Presidential directive.
basis and not from the group as a
whole;
(f) Groups assembled to exchange facts
or information. Any group that meets
with a Federal official(s) for the purpose of exchanging facts or information;
(g) Intergovernmental committees. Any
committee composed wholly of fulltime or permanent part-time officers
or employees of the Federal Government and elected officers of State,
local and tribal governments (or their
designated employees with authority
to act on their behalf), acting in their
official capacities. However, the purpose of such a committee must be solely to exchange views, information, or
advice relating to the management or
implementation of Federal programs
established pursuant to statute, that
explicitly or inherently share intergovernmental responsibilities or administration (see guidelines issued by the Office of Management and Budget (OMB)
on section 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1534(b), OMB Memorandum M–95–20,
dated September 21, 1995, available
from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW., Washington, DC 20405–0002);
(h) Intragovernmental committees. Any
committee composed wholly of fulltime or permanent part-time officers
or employees of the Federal Government;
(i) Local civic groups. Any local civic
group whose primary function is that
of rendering a public service with respect to a Federal program;
(j) Groups established to advise State or
local officials. Any State or local committee, council, board, commission, or
similar group established to advise or
make recommendations to State or
local officials or agencies; and
(k) Operational committees. Any committee established to perform primarily operational as opposed to advisory functions. Operational functions
are those specifically authorized by
statute or Presidential directive, such
as making or implementing Government decisions or policy. A committee
designated operational may be covered
§ 102–3.35 What policies govern the use
of subcommittees?
(a) In general, the requirements of
the Act and the policies of this Federal
Advisory Committee Management part
do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency.
However, this section does not preclude
an agency from applying any provision
of the Act and this part to any subcommittee of an advisory committee in
any particular instance.
(b) The creation and operation of subcommittees must be approved by the
agency establishing the parent advisory committee.
§ 102–3.40 What types of committees or
groups are not covered by the Act
and this part?
The following are examples of committees or groups that are not covered
by the Act or this Federal Advisory
Committee Management part:
(a) Committees created by the National
Academy of Sciences (NAS) or the National Academy of Public Administration
(NAPA). Any committee created by
NAS or NAPA in accordance with section 15 of the Act, except as otherwise
covered by subpart E of this part;
(b) Advisory committees of the Central
Intelligence Agency and the Federal Reserve System. Any advisory committee
established or utilized by the Central
Intelligence Agency or the Federal Reserve System;
(c) Committees exempted by statute.
Any committee specifically exempted
from the Act by law;
(d) Committees not actually managed or
controlled by the executive branch. Any
committee or group created by nonFederal entities (such as a contractor
or private organization), provided that
these committees or groups are not actually managed or controlled by the
executive branch;
(e) Groups assembled to provide individual advice. Any group that meets
with a Federal official(s), including a
public meeting, where advice is sought
from the attendees on an individual
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Pt. 102–3, Subpt. A, App. A
41 CFR Ch. 102 (7–1–16 Edition)
by the Act if it becomes primarily advisory in nature. It is the responsibility of the administering agency to
determine whether a committee is pri-
marily operational. If so, it does not
fall under the requirements of the Act
and this part.
APPENDIX A TO SUBPART A OF PART 102–3—KEY POINTS AND PRINCIPLES
This appendix provides additional guidance in the form of answers to frequently asked
questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. FACA applies to advisory committees that
are either ‘‘established’’
or ‘‘utilized’’ by an
agency.
102–3.25, 102–
3.40(d), 102–
3.40(f)
1. A local citizens group wants to
meet with a Federal official(s) to
help improve the condition of a forest’s trails and quality of concessions. May the Government meet
with the group without chartering
the group under the Act?
2. May an agency official attend
meetings of external groups where
advice may be offered to the Government during the course of discussions?
3. May an agency official participate
in meetings of groups or organizations as a member without chartering the group under the Act?
4. Is the Act applicable to meetings
between agency officials and their
contractors, licensees, or other
‘‘private sector program partners?’’
A. The answer to questions 1, 2, and 3 is
yes, if the agency does not either ‘‘establish’’ or ‘‘utilize’’ (exercise ‘‘actual
management or control’’ over) the
group. (i) Although there is no precise
legal definition of ‘‘actual management
or control,’’ the following factors may
be used by an agency to determine
whether or not a group is ‘‘utilized’’
within the meaning of the Act: (a) Does
the agency manage or control the
group’s membership or otherwise determine its composition? (b) Does the
agency manage or control the group’s
agenda? (c) Does the agency fund the
group’s activities? (ii) Answering ‘‘yes’’
to any or all of questions 1, 2, or 3
does not automatically mean the group
is ‘‘utilized’’ within the meaning of the
Act. However, an agency may need to
reconsider the status of the group
under the Act if the relationship in
question essentially is indistinguishable
from an advisory committee established by the agency.
B. The answer to question 4 is no. Agencies often meet with contractors and licensees, individually and as a group,
to discuss specific matters involving a
contract’s solicitation, issuance, and
implementation, or an agency’s efforts
to ensure compliance with its regulations. Such interactions are not subject
to the Act because these groups are
not ‘‘established’’ or ‘‘utilized’’ for the
purpose of obtaining advice or recommendations.
II. The development of
consensus among all
or some of the
attendees at a public
meeting or similar
forum does not automatically invoke FACA.
102–3.25, 102–
3.40(d), 102–
3.40(f)
1. If, during a public meeting of the
‘‘town hall’’ type called by an agency, it appears that the audience is
achieving consensus, or a common point of view, is this an indication that the meeting is subject to
the Act and must be stopped?
A. No, the public meeting need not be
stopped. (i) A group must either be
‘‘established’’ or ‘‘utilized’’ by the executive branch in order for the Act to
apply. (ii) Public meetings represent a
chance for individuals to voice their
opinions and/or share information. In
that sense, agencies do not either ‘‘establish’’ the assemblage of individuals
as an advisory committee or ‘‘utilize’’
the attendees as an advisory committee because there are no elements
of either ‘‘management’’ or ‘‘control’’
present or intended.
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Federal Management Regulation
Key points and principles
Section(s)
Pt. 102–3, Subpt. A, App. A
Question(s)
Guidance
III. Meetings between a
Federal official(s) and a
collection of individuals
where advice is sought
from the attendees on
an individual basis are
not subject to the Act.
102–3.40(e)
1. May an agency official meet with a
number of persons collectively to
obtain their individual views without
violating the Act?
2. Does the concept of an ‘‘individual’’ apply only to ‘‘natural persons?’’
A. The answer to questions 1 and 2 is
yes. The Act applies only where a
group is established or utilized to provide advice or recommendations ‘‘as a
group.’’ (i) A mere assemblage or collection of individuals where the
attendees are providing individual advice is not acting ‘‘as a group’’ under
the Act. (ii) In this respect, ‘‘individual’’
is not limited to ‘‘natural persons.’’
Where the group consists of representatives of various existing organizations,
each representative individually may
provide advice on behalf of that person’s organization without violating the
Act, if those organizations themselves
are not ‘‘managed or controlled’’ by the
agency.
IV. Meetings between
Federal, State, local,
and tribal elected officials are not subject to
the Act.
102–3.40(g)
1. Is the exclusion from the Act covering elected officials of State,
local, and tribal governments acting in their official capacities also
applicable to associations of State
officials?
A. Yes. The scope of activities covered
by the exclusion from the Act for intergovernmental activities should be construed broadly to facilitate Federal/
State/local/tribal discussions on shared
intergovernmental program responsibilities or administration. Pursuant to a
Presidential delegation, the Office of
Management and Budget (OMB)
issued guidelines for this exemption,
authorized by section 204(b) of the Unfunded Mandates Reform Act of 1995,
2 U.S.C. 1534(b). (See OMB Memorandum M–95–20, dated September
21, 1995, published at 60 FR 50651
(September 29, 1995), and which is
available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street,
NW, Washington, DC 20405–0002).
V. Advisory committees
established under the
Act may perform advisory functions only, unless authorized to perform ‘‘operational’’ duties by the Congress or
by Presidential directive.
102–3.30(e),
102–3.40(k)
1. Are ‘‘operational committees’’ subject to the Act, even if they may
engage in some advisory activities?
A. No, so long as the operational functions performed by the committee constitute the ‘‘primary’’ mission of the
committee. Only committees established or utilized by the executive
branch in the interest of obtaining advice or recommendations are subject to
the Act. However, without specific authorization by the Congress or direction
by the President, Federal functions
(decisionmaking or operations) cannot
be delegated to, or assumed by, nonFederal individuals or entities.
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§ 102–3.45
Key points and principles
VI. Committees authorized by the Congress
in law or by Presidential directive to perform primarily ‘‘operational’’ functions are
not subject to the Act.
41 CFR Ch. 102 (7–1–16 Edition)
Section(s)
102–3.40(k)
Question(s)
Guidance
1. What characteristics are common
to ‘‘operational committees?’’
2. A committee created by the Congress by statute is responsible, for
example, for developing plans and
events to commemorate the contributions of wildlife to the enjoyment of the Nation’s parks. Part of
the committee’s role includes providing advice to certain Federal
agencies as may be necessary to
coordinate these events. Is this
committee subject to FACA?
A. In answer to question 1, non-advisory,
or ‘‘operational’’ committees generally
have the following characteristics: (i)
Specific functions and/or authorities
provided by the Congress in law or by
Presidential directive; (ii) The ability to
make and implement traditionally Governmental decisions; and (iii) The authority to perform specific tasks to implement a Federal program.
B. Agencies are responsible for determining whether or not a committee primarily provides advice or recommendations and is, therefore, subject to the
Act, or is primarily ‘‘operational’’ and
not covered by FACA.
C. The answer to question 2 is no. The
committee is not subject to the Act because: (i) Its functions are to plan and
implement specific tasks; (ii) The committee has been granted the express
authority by the Congress to perform
its statutorily required functions; and
(iii) Its incidental role of providing advice to other Federal agencies is secondary to its primarily operational role
of planning and implementing specific
tasks and performing statutory functions.
(b) Presidential authority. By Executive order of the President or other
Presidential
directive
(non-discretionary);
(c) Authorized by statute. By law
where the Congress authorizes, but
does not direct the President or an
agency to establish it (discretionary); or
(d) Agency authority. By an agency
under general authority in title 5 of
the United States Code or under other
general agency-authorizing statutes
(discretionary).
Subpart B—How Are Advisory
Committees Established, Renewed, Reestablished, and
Terminated?
§ 102–3.45 What does this subpart
cover and how does it apply?
Requirements for establishing and
terminating advisory committees vary
depending on the establishing entity
and the source of authority for the advisory committee. This subpart covers
the procedures associated with the establishment, renewal, reestablishment,
and termination of advisory committees. These procedures include consulting with the Secretariat, preparing
and filing an advisory committee charter, publishing notice in the FEDERAL
REGISTER, and amending an advisory
committee charter.
§ 102–3.55 What rules apply to the duration of an advisory committee?
(a) An advisory committee automatically terminates two years after its
date of establishment unless:
(1) The statutory authority used to
establish the advisory committee provides a different duration;
(2) The President or agency head determines that the advisory committee
has fulfilled the purpose for which it
was established and terminates the advisory committee earlier;
(3) The President or agency head determines that the advisory committee
is no longer carrying out the purpose
§ 102–3.50 What are the authorities for
establishing advisory committees?
FACA identifies four sources of authority for establishing an advisory
committee:
(a) Required by statute. By law where
the Congress establishes an advisory
committee, or specifically directs the
President or an agency to establish it
(non-discretionary);
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Federal Management Regulation
§ 102–3.70
for which it was established and terminates the advisory committee earlier;
or
(4) The President or agency head renews the committee not later than two
years after its date of establishment in
accordance with § 102–3.60. If an advisory committee needed by the President or an agency terminates because
it was not renewed in a timely manner,
or if the advisory committee has been
terminated under the provisions of
§ 102–3.30(b), it can be reestablished in
accordance with § 102–3.60.
(b) When an advisory committee terminates, the agency shall notify the
Secretariat of the effective date of the
termination.
committee, or other means such as a
public hearing; and
(3) Fairly balanced membership. A description of the agency’s plan to attain
fairly balanced membership. The plan
will ensure that, in the selection of
members for the advisory committee,
the agency will consider a cross-section
of those directly affected, interested,
and qualified, as appropriate to the nature and functions of the advisory committee. Advisory committees requiring
technical expertise should include persons with demonstrated professional or
personal qualifications and experience
relevant to the functions and tasks to
be performed.
§ 102–3.65 What are the public notification requirements for discretionary
advisory committees?
§ 102–3.60 What procedures are required to establish, renew, or reestablish a discretionary advisory
committee?
A notice to the public in the FEDERAL
REGISTER is required when a discretionary advisory committee is established, renewed, or reestablished.
(a) Procedure. Upon receiving notice
from the Secretariat that its review is
complete in accordance with § 102–
3.60(a), the agency must publish a notice in the FEDERAL REGISTER announcing that the advisory committee is
being established, renewed, or reestablished. For the establishment of a new
advisory committee, the notice also
must describe the nature and purpose
of the advisory committee and affirm
that the advisory committee is necessary and in the public interest.
(b) Time required for notices. Notices of
establishment and reestablishment of
advisory committees must appear at
least 15 calendar days before the charter is filed, except that the Secretariat
may approve less than 15 calendar days
when requested by the agency for good
cause. This requirement for advance
notice does not apply to advisory committee renewals, notices of which may
be published concurrently with the filing of the charter.
(a) Consult with the Secretariat. Before
establishing, renewing, or reestablishing a discretionary advisory committee and filing the charter as addressed later in § 102–3.70, the agency
head must consult with the Secretariat. As part of this consultation,
agency heads are encouraged to engage
in constructive dialogue with the Secretariat. With a full understanding of
the background and purpose behind the
proposed advisory committee, the Secretariat may share its knowledge and
experience with the agency on how best
to make use of the proposed advisory
committee, suggest alternate methods
of attaining its purpose that the agency may wish to consider, or inform the
agency of a pre-existing advisory committee performing similar functions.
(b) Include required information in the
consultation. Consultations covering
the establishment, renewal, and reestablishment of advisory committees
must, as a minimum, contain the following information:
(1) Explanation of need. An explanation stating why the advisory committee is essential to the conduct of
agency business and in the public interest;
(2) Lack of duplication of resources. An
explanation stating why the advisory
committee’s functions cannot be performed by the agency, another existing
§ 102–3.70 What are the charter filing
requirements?
No advisory committee may meet or
take any action until a charter has
been filed by the Committee Management Officer (CMO) designated in accordance with section 8(b) of the Act,
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§ 102–3.75
41 CFR Ch. 102 (7–1–16 Edition)
or by another agency official designated by the agency head.
(a) Requirement for discretionary advisory committees. To establish, renew, or
reestablish a discretionary advisory
committee, a charter must be filed
with:
(1) The agency head;
(2) The standing committees of the
Senate and the House of Representatives having legislative jurisdiction of
the agency, the date of filing with
which constitutes the official date of
establishment for the advisory committee;
(3) The Library of Congress, AngloAmerican Acquisitions Division, Government Documents Section, Federal
Advisory Committee Desk, 101 Independence Avenue, SE., Washington, DC
20540–4172; and
(4) The Secretariat, indicating the
date the charter was filed in accordance with paragraph (a)(2) of this section.
(b) Requirement for non-discretionary
advisory committees. Charter filing requirements for non-discretionary advisory committees are the same as those
in paragraph (a) of this section, except
the date of establishment for a Presidential advisory committee is the date
the charter is filed with the Secretariat.
(c) Requirement for subcommittees that
report directly to the Government. Subcommittees that report directly to a
Federal officer or agency must comply
with this subpart and include in a charter the information required by § 102–
3.75.
(3) The period of time necessary to
carry out the advisory committee’s
purpose(s);
(4) The agency or Federal officer to
whom the advisory committee reports;
(5) The agency responsible for providing the necessary support to the advisory committee;
(6) A description of the duties for
which the advisory committee is responsible and specification of the authority for any non-advisory functions;
(7) The estimated annual costs to operate the advisory committee in dollars and person years;
(8) The estimated number and frequency of the advisory committee’s
meetings;
(9) The planned termination date, if
less than two years from the date of establishment of the advisory committee;
(10) The name of the President’s delegate, agency, or organization responsible for fulfilling the reporting requirements of section 6(b) of the Act, if
appropriate; and
(11) The date the charter is filed in
accordance with § 102–3.70.
(b) The provisions of paragraphs
(a)(1) through (11) of this section apply
to all subcommittees that report directly to a Federal officer or agency.
§ 102–3.80 How are minor charter
amendments accomplished?
(a) Responsibility and limitation. The
agency head is responsible for amending the charter of an advisory committee. Amendments may be either
minor or major. The procedures for
making changes and filing amended
charters will depend upon the authority basis for the advisory committee.
Amending any existing advisory committee charter does not constitute renewal of the advisory committee under
§ 102–3.60.
(b) Procedures for minor amendments.
To make a minor amendment to an advisory committee charter, such as
changing the name of the advisory
committee or modifying the estimated
number or frequency of meetings, the
following procedures must be followed:
(1) Non-discretionary advisory committees. The agency head must ensure that
any minor technical changes made to
current charters are consistent with
§ 102–3.75 What information must be
included in the charter of an advisory committee?
(a) Purpose and contents of an advisory
committee charter. An advisory committee charter is intended to provide a
description of an advisory committee’s
mission, goals, and objectives. It also
provides a basis for evaluating an advisory committee’s progress and effectiveness. The charter must contain the
following information:
(1) The advisory committee’s official
designation;
(2) The objectives and the scope of
the advisory committee’s activity;
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the relevant authority. When the Congress by law, or the President by Executive order, changes the authorizing
language that has been the basis for establishing an advisory committee, the
agency head or the chairperson of an
independent
Presidential
advisory
committee must amend those sections
of the current charter affected by the
new statute or Executive order, and
file the amended charter as specified in
§ 102–3.70.
(2) Discretionary advisory committees.
The charter of a discretionary advisory
committee may be amended when an
agency head determines that technical
provisions of a filed charter are inaccurate, or specific provisions have
changed or become obsolete with the
passing of time, and that these amendments will not alter the advisory com-
mittee’s objectives and scope substantially. The agency must amend the
charter language as necessary and file
the amended charter as specified in
§ 102–3.70.
§ 102–3.85 How are major charter
amendments accomplished?
Procedures for making major amendments to advisory committee charters,
such as substantial changes in objectives and scope, duties, and estimated
costs, are the same as in § 102–3.80, except that for discretionary advisory
committees an agency must:
(a) Consult with the Secretariat on
the amended language, and explain the
purpose of the changes and why they
are necessary; and
(b) File the amended charter as specified in § 102–3.70.
APPENDIX A TO SUBPART B OF PART 102–3—KEY POINTS AND PRINCIPLES
This appendix provides additional guidance in the form of answers to frequently asked
questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. Agency heads must
consult with the Secretariat prior to establishing a discretionary
advisory committee.
102–3.60, 102–
3.115
1. Can an agency head delegate to
the Committee Management Officer (CMO) responsibility for consulting with the Secretariat regarding the establishment, renewal, or
reestablishment of discretionary
advisory committees?
A. Yes. Many administrative functions
performed to implement the Act may
be delegated. However, those functions related to approving the final establishment, renewal, or reestablishment of discretionary advisory committees are reserved for the agency head.
Each agency CMO should assure that
their internal processes for managing
advisory committees include appropriate certifications by the agency
head.
II. Agency heads are responsible for complying
with the Act, including
determining which discretionary advisory
committees should be
established and renewed.
102–3.60(a),
102–3.105
1. Who retains final authority for establishing or renewing a discretionary advisory committee?
A. Although agency heads retain final authority for establishing or renewing discretionary advisory committees, these
decisions should be consistent with
§ 102–3.105(e) and reflect consultation
with the Secretariat under § 102–
3.60(a).
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§ 102–3.90
Key points and principles
41 CFR Ch. 102 (7–1–16 Edition)
Question(s)
Guidance
III. An advisory committee must be fairly
balanced in its membership in terms of the
points of view represented and the functions to be performed.
102–3.30(c),
102–
3.60(b)(3)
Section(s)
1. What factors should be considered
in achieving a ‘‘balanced’’ advisory
committee membership?
A. The composition of an advisory committee’s membership will depend upon
several factors, including: (i) The advisory committee’s mission; (ii) The geographic, ethnic, social, economic, or
scientific impact of the advisory committee’s recommendations; (iii) The
types of specific perspectives required,
for example, such as those of consumers, technical experts, the public
at-large, academia, business, or other
sectors; (iv) The need to obtain divergent points of view on the issues before the advisory committee; and (v)
The relevance of State, local, or tribal
governments to the development of the
advisory committee’s recommendations.
IV. Charters for advisory
committees required by
statute must be filed
every two years regardless of the duration
provided in the statute.
102–3.70(b)
1. If an advisory committee’s duration
exceeds two years, must a charter
be filed with the Congress and
GSA every two years?
A. Yes. Section 14(b)(2) of the Act provides that: Any advisory committee established by an Act of Congress shall
file a charter upon the expiration of
each successive two-year period following the date of enactment of the Act
establishing such advisory committee.
an advisory committee’s tasks and the
more focused its activities are, the
higher the likelihood will be that the
advisory committee will fulfill its mission.
(c) Follow plans and procedures. Advisory committee members and their
agency sponsors should work together
to assure that a plan and necessary
procedures covering implementation
are in place to support an advisory
committee’s mission. In particular,
agencies should be clear regarding
what functions an advisory committee
can perform legally and those that it
cannot perform.
(d) Practice openness. In addition to
achieving the minimum standards of
public access established by the Act
and this part, agencies should seek to
be as inclusive as possible. For example, agencies may wish to explore the
use of the Internet to post advisory
committee
information
and
seek
broader input from the public.
(e) Seek feedback. Agencies continually should seek feedback from advisory committee members and the public regarding the effectiveness of the
advisory committee’s activities. At
regular intervals, agencies should communicate to the members how their advice has affected agency programs and
decisionmaking.
Subpart C—How Are Advisory
Committees Managed?
§ 102–3.90 What does this subpart
cover and how does it apply?
This subpart outlines specific responsibilities and functions to be carried
out by the General Services Administration (GSA), the agency head, the
Committee Management Officer (CMO),
and the Designated Federal Officer
(DFO) under the Act.
§ 102–3.95 What principles apply to the
management of advisory committees?
Agencies are encouraged to apply the
following principles to the management of their advisory committees:
(a) Provide adequate support. Before
establishing an advisory committee,
agencies should identify requirements
and assure that adequate resources are
available to support anticipated activities. Considerations related to support
include office space, necessary supplies
and equipment, Federal staff support,
and access to key decisionmakers.
(b) Focus on mission. Advisory committee members and staff should be
fully aware of the advisory committee’s mission, limitations, if any, on its
duties, and the agency’s goals and objectives. In general, the more specific
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Federal Management Regulation
§ 102–3.110
§ 102–3.100 What are the responsibilities and functions of GSA?
(a) Under section 7 of the Act, the
General Services Administration (GSA)
prepares regulations on Federal advisory committees to be prescribed by
the Administrator of General Services,
issues other administrative guidelines
and management controls for advisory
committees, and assists other agencies
in implementing and interpreting the
Act. Responsibility for these activities
has been delegated by the Administrator to the GSA Committee Management Secretariat.
(b) The Secretariat carries out its responsibilities by:
(1) Conducting an annual comprehensive review of Governmentwide advisory
committee
accomplishments,
costs, benefits, and other indicators to
measure performance;
(2) Developing and distributing Governmentwide training regarding the
Act and related statutes and principles;
(3) Supporting the Interagency Committee on Federal Advisory Committee
Management in its efforts to improve
compliance with the Act;
(4) Designing and maintaining a Governmentwide shared Internet-based
system to facilitate collection and use
of information required by the Act;
(5) Identifying performance measures
that may be used to evaluate advisory
committee accomplishments; and
(6) Providing recommendations for
transmittal by the Administrator to
the Congress and the President regarding proposals to improve accomplishment of the objectives of the Act.
lic, in whole or in part, in accordance
with the exemption(s) of the Government in the Sunshine Act, 5 U.S.C.
552b(c), as the basis for closure;
(e) Review, at least annually, the
need to continue each existing advisory
committee, consistent with the public
interest and the purpose or functions of
each advisory committee;
(f) Determine that rates of compensation for members (if they are paid for
their services) and staff of, and experts
and consultants to advisory committees are justified and that levels of
agency support are adequate;
(g) Develop procedures to assure that
the advice or recommendations of advisory committees will not be inappropriately influenced by the appointing
authority or by any special interest,
but will instead be the result of the advisory committee’s independent judgment;
(h) Assure that the interests and affiliations of advisory committee members are reviewed for conformance with
applicable conflict of interest statutes,
regulations issued by the U.S. Office of
Government Ethics (OGE) including
any supplemental agency requirements, and other Federal ethics rules;
(i) Designate a Designated Federal
Officer (DFO) for each advisory committee and its subcommittees; and
(j) Provide the opportunity for reasonable participation by the public in
advisory committee activities, subject
to § 102–3.140 and the agency’s guidelines.
§ 102–3.105 What are the responsibilities of an agency head?
The head of each agency that establishes or utilizes one or more advisory
committees must:
(a) Comply with the Act and this
Federal Advisory Committee Management part;
(b) Issue administrative guidelines
and management controls that apply
to all of the agency’s advisory committees subject to the Act;
(c) Designate a Committee Management Officer (CMO);
(d) Provide a written determination
stating the reasons for closing any advisory committee meeting to the pub-
§ 102–3.110 What are the responsibilities of a chairperson of an independent Presidential advisory committee?
The chairperson of an independent
Presidential advisory committee must:
(a) Comply with the Act and this
Federal Advisory Committee Management part;
(b) Consult with the Secretariat concerning the designation of a Committee Management Officer (CMO) and
Designated Federal Officer (DFO); and
(c) Consult with the Secretariat in
advance regarding any proposal to
close any meeting in whole or in part.
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§ 102–3.115
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–3.125 How should agencies consider the roles of advisory committee members and staff?
§ 102–3.115 What are the responsibilities and functions of an agency
Committee Management Officer
(CMO)?
FACA does not assign any specific responsibilities to members of advisory
committees and staff, although both
perform critical roles in achieving the
goals and objectives assigned to advisory committees. Agency heads, Committee Management Officers (CMOs),
and Designated Federal Officers (DFOs)
should consider the distinctions between these roles and how they relate
to each other in the development of
agency guidelines implementing the
Act and this Federal Advisory Committee Management part. In general,
these guidelines should reflect:
(a) Clear operating procedures. Clear
operating procedures should provide for
the conduct of advisory committee
meetings and other activities, and
specify the relationship among the advisory committee members, the DFO,
and advisory committee or agency
staff;
(b) Agency operating policies. In addition to compliance with the Act, advisory committee members and staff may
be required to adhere to additional
agency operating policies; and
(c) Other applicable statutes. Other
agency-specific statutes and regulations may affect the agency’s advisory
committees directly or indirectly.
Agencies should ensure that advisory
committee members and staff understand these requirements.
In addition to implementing the provisions of section 8(b) of the Act, the
CMO will carry out all responsibilities
delegated by the agency head. The
CMO also should ensure that sections
10(b), 12(a), and 13 of the Act are implemented by the agency to provide for
appropriate recordkeeping. Records to
be kept by the CMO include, but are
not limited to:
(a) Charter and membership documentation. A set of filed charters for each advisory committee and membership lists
for each advisory committee and subcommittee;
(b) Annual comprehensive review. Copies of the information provided as the
agency’s portion of the annual comprehensive review of Federal advisory
committees, prepared according to
§ 102–3.175(b);
(c) Agency guidelines. Agency guidelines maintained and updated on committee management operations and
procedures; and
(d) Closed meeting determinations.
Agency determinations to close or partially close advisory committee meetings required by § 102–3.105.
§ 102–3.120 What are the responsibilities and functions of a Designated
Federal Officer (DFO)?
The agency head or, in the case of an
independent
Presidential
advisory
committee, the Secretariat, must designate a Federal officer or employee
who must be either full-time or permanent part-time, to be the DFO for each
advisory committee and its subcommittees, who must:
(a) Approve or call the meeting of the
advisory committee or subcommittee;
(b) Approve the agenda, except that
this requirement does not apply to a
Presidential advisory committee;
(c) Attend the meetings;
(d) Adjourn any meeting when he or
she determines it to be in the public interest; and
(e) Chair the meeting when so directed by the agency head.
§ 102–3.130 What policies apply to the
appointment, and compensation or
reimbursement of advisory committee members, staff, and experts
and consultants?
In developing guidelines to implement the Act and this Federal Advisory Committee Management part at
the agency level, agency heads must
address the following issues concerning
advisory committee member and staff
appointments, and considerations with
respect to uniform fair rates of compensation for comparable services, or
expense reimbursement of members,
staff, and experts and consultants:
(a) Appointment and terms of advisory
committee members. Unless otherwise
provided by statute, Presidential directive, or other establishment authority,
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Federal Management Regulation
§ 102–3.130
advisory committee members serve at
the pleasure of the appointing or inviting authority. Membership terms are
at the sole discretion of the appointing
or inviting authority.
(b) Compensation guidelines. Each
agency head must establish uniform
compensation guidelines for members
and staff of, and experts and consultants to an advisory committee.
(c) Compensation of advisory committee
members not required. Nothing in this
subpart requires an agency head to provide compensation to any member of
an advisory committee, unless otherwise required by a specific statute.
(d) Compensation of advisory committee
members. When an agency has authority
to set pay administratively for advisory committee members, it may establish appropriate rates of pay (including any applicable locality pay authorized by the President’s Pay Agent
under 5 U.S.C. 5304(h)), not to exceed
the rate for level IV of the Executive
Schedule under 5 U.S.C. 5315, unless a
higher rate expressly is allowed by another statute. However, the agency
head personally must authorize a rate
of basic pay in excess of the maximum
rate of basic pay established for the
General Schedule under 5 U.S.C. 5332,
or alternative similar agency compensation system. This maximum rate
includes any applicable locality payment under 5 U.S.C. 5304. The agency
may pay advisory committee members
on either an hourly or a daily rate
basis. The agency may not provide additional compensation in any form,
such as bonuses or premium pay.
(e) Compensation of staff. When an
agency has authority to set pay administratively for advisory committee
staff, it may establish appropriate
rates of pay (including any applicable
locality pay authorized by the President’s Pay Agent under 5 U.S.C.
5304(h)), not to exceed the rate for level
IV of the Executive Schedule under 5
U.S.C. 5315, unless a higher rate expressly is allowed by another statute.
However, the agency head personally
must authorize a rate of basic pay in
excess of the maximum rate of basic
pay established for the General Schedule under 5 U.S.C. 5332, or alternative
similar agency compensation system.
This maximum rate includes any appli-
cable locality payment under 5 U.S.C.
5304. The agency must pay advisory
committee staff on an hourly rate
basis. The agency may provide additional compensation, such as bonuses
or premium pay, so long as aggregate
compensation paid in a calendar year
does not exceed the rate for level IV of
the Executive Schedule, with appropriate proration for a partial calendar
year.
(f) Other compensation considerations.
In establishing rates of pay for advisory committee members and staff, the
agency must comply with any applicable statutes, Executive orders, regulations, or administrative guidelines. In
determining an appropriate rate of
basic pay for advisory committee members and staff, an agency must give
consideration to the significance,
scope, and technical complexity of the
matters with which the advisory committee is concerned, and the qualifications required for the work involved.
The agency also should take into account the rates of pay applicable to
Federal employees who have duties
that are similar in terms of difficulty
and responsibility. An agency may establish rates of pay for advisory committee staff based on the pay these persons would receive if they were covered
by the General Schedule in 5 U.S.C.
Chapter 51 and Chapter 53, subchapter
III, or by an alternative similar agency
compensation system.
(g) Compensation of experts and consultants. Whether or not an agency has
other authority to appoint and compensate advisory committee members
or staff, it also may employ experts
and consultants under 5 U.S.C. 3109 to
perform work for an advisory committee. Compensation of experts and
consultants may not exceed the maximum rate of basic pay established for
the General Schedule under 5 U.S.C.
5332 (that is, the GS–15, step 10 rate, excluding locality pay or any other supplement), unless a higher rate expressly is allowed by another statute.
The appointment and compensation of
experts and consultants by an agency
must be in conformance with applicable regulations issued by the U. S. Office of Personnel Management (OPM)
(See 5 CFR part 304.).
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Pt. 102–3, Subpt. C, App. A
41 CFR Ch. 102 (7–1–16 Edition)
(h) Federal employees assigned to an
advisory committee. Any advisory committee member or staff person who is a
Federal employee when assigned duties
to an advisory committee remains covered during the assignment by the
compensation system that currently
applies to that employee, unless that
person’s current Federal appointment
is terminated. Any staff person who is
a Federal employee must serve with
the knowledge of the Designated Federal Officer (DFO) for the advisory
committee to which that person is assigned duties, and the approval of the
employee’s direct supervisor.
(i) Other appointment considerations.
An individual who is appointed as an
advisory committee member or staff
person immediately following termination of another Federal appointment
with a full-time work schedule may receive compensation at the rate applicable to the former appointment, if otherwise allowed by applicable law (without regard to the limitations on pay established in paragraphs (d) and (e) of
this section). Any advisory committee
staff person who is not a current Federal employee serving under an assignment must be appointed in accordance
with applicable agency procedures, and
in consultation with the DFO and the
members of the advisory committee involved.
(j) Gratuitous services. In the absence
of any special limitations applicable to
a specific agency, nothing in this subpart prevents an agency from accepting
the gratuitous services of an advisory
committee member or staff person who
is not a Federal employee, or expert or
consultant, who agrees in advance and
in writing to serve without compensation.
(k) Travel expenses. Advisory committee members and staff, while engaged in the performance of their duties away from their homes or regular
places of business, may be allowed reimbursement for travel expenses, including per diem in lieu of subsistence,
as authorized by 5 U.S.C. 5703, for persons employed intermittently in the
Government service.
(l) Services for advisory committee
members with disabilities. While performing advisory committee duties, an
advisory committee member with disabilities may be provided services by a
personal assistant for employees with
disabilities, if the member qualifies as
an individual with disabilities as provided in section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
791, and does not otherwise qualify for
assistance under 5 U.S.C. 3102 by reason
of being a Federal employee.
APPENDIX A TO SUBPART C OF PART 102–3—KEY POINTS AND PRINCIPLES
This appendix provides additional guidance in the form of answers to frequently asked
questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Key points and principles
I. FACA does not specify
the manner in which
advisory committee
members and staff
must be appointed
Section
102–3.105,
102–3.130(a)
Question(s)
Guidance
1. Does the appointment of an advisory committee member necessarily result in a lengthy process?
A. No. Each agency head may specify
those policies and procedures, consistent with the Act and this part, or
other specific authorizing statute, governing the appointment of advisory
committee members and staff.
B. Some factors that affect how long the
appointment process takes include: (i)
Solicitation of nominations; (ii) Conflict
of interest clearances; (iii) Security or
background evaluations; (iv) Availability
of candidates; and (v) Other statutory
or administrative requirements.
C. In addition, the extent to which agency
heads have delegated responsibility for
selecting members varies from agency
to agency and may become an important factor in the time it takes to finalize
the advisory committee’s membership.
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Federal Management Regulation
Key points and principles
II. Agency heads retain
the final authority for
selecting advisory committee members, unless otherwise provided
for by a specific statute
or Presidential directive
Section
102–3.130(a)
Pt. 102–3, Subpt. C, App. A
Question(s)
Guidance
1. Can an agency head select for
membership on an advisory committee from among nominations
submitted by an organization?
A. The answer to question 1 is yes. Organizations may propose for membership individuals to represent them on
an advisory committee. However, the
agency head establishing the advisory
committee, or other appointing authority, retains the final authority for selecting all members.
B. The answer to question 2 also is yes.
Alternates may represent an appointed
member with the approval of the establishing agency, where the agency head
is the appointing authority.
A. The answer to question 1 is yes. (i)
However, FACA limits compensation
for advisory committee members and
staff to the rate for level IV of the Executive Schedule, unless higher rates
expressly are allowed by other statutes. (ii) Although FACA provides for
compensation guidelines, the Act does
not require an agency to compensate
its advisory committee members.
B. The answer to question 2 is no. The
guidelines for compensating members
and staff are similar, but not identical.
For example, the differences are that:
(i) An agency ‘‘may’’ pay members on
either an hourly or a daily rate basis,
and ‘‘may not’’ provide additional compensation in any form, such as bonuses or premium pay; while (ii) An
agency ‘‘must’’ pay staff on an hourly
rate basis only, and ‘‘may’’ provide additional compensation, so long as aggregate compensation paid in a calendar year does not exceed the rate
for level IV of the Executive Schedule,
with appropriate proration for a partial
calendar year.
C. The answer to question 3 is yes.
Other work not part of the duties of advisory committee members or staff may
be performed by experts and consultants. For additional guidance on the
employment of experts and consultants, agencies should consult the applicable regulations issued by the U. S.
Office of Personnel Management
(OPM). (See 5 CFR part 304.)
2. If so, can different persons represent the organization at different
meetings?
III. An agency may compensate advisory committee members and
staff, and also employ
experts and consultants
102–3.130(d),
102–3.130(e),
102–3.130(g)
1. May members and staff be compensated for their service or duties
on an advisory committee?
2. Are the guidelines the same for
compensating both members and
staff?
3. May experts and consultants be
employed to perform other advisory committee work?
IV. Agency heads are responsible for ensuring
that the interests and
affiliations of advisory
committee members
are reviewed for conformance with applicable conflict of interest
statutes and other Federal ethics rules.
102–3.105(h)
1. Are all advisory committee members subject to conflict of interest
statutes and other Federal ethics
rules?
2. Who should be consulted for guidance on the proper application of
Federal ethics rules to advisory
committee members?
A. The answer to question 1 is no.
Whether an advisory committee member is subject to Federal ethics rules is
dependent on the member’s status.
The determination of a member’s status on an advisory committee is largely
a personnel classification matter for the
appointing agency. Most advisory committee members will serve either as a
‘‘representative’’ or a ‘‘special Government employee’’ (SGE), based on the
role the member will play. In general,
SGEs are covered by regulations
issued by the U. S. Office of Government Ethics (OGE) and certain conflict
of interest statutes, while representatives are not subject to these ethics requirements.
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§ 102–3.135
Key points and principles
41 CFR Ch. 102 (7–1–16 Edition)
Section
Question(s)
Guidance
B. The answer to question 2 is the agency’s Designated Agency Ethics Official
(DAEO), who should be consulted prior
to appointing members to an advisory
committee in order to apply Federal
ethics rules properly.
V. An agency head may
delegate responsibility
for appointing a Committee Management Officer (CMO) or Designated Federal Officer
(DFO); however, there
may be only one CMO
for each agency.
VI. FACA is the principal
statute pertaining to
advisory committees.
However, other statutes may impact their
use and operations.
102–3.105(c),
102–3.105(i)
102–3.125(c)
1. Must an agency’s CMO and each
advisory committee DFO be appointed by the agency head?
A. The answer to question 1 is no. The
agency head may delegate responsibility for appointing the CMO and
DFOs. However, these appointments,
including alternate selections, should
be documented consistent with the
agency’s policies and procedures.
2. May an agency have more than
one CMO?
B. The answer to question 2 also is no.
The functions of the CMO are specified
in the Act and include oversight responsibility for all advisory committees
within the agency. Accordingly, only
one CMO may be appointed to perform
these functions. The agency may, however, create additional positions, including those in its subcomponents,
which are subordinate to the CMO’s
agencywide responsibilities and functions.
1. Do other statutes or regulations affect the way an agency carries out
its advisory committee management program?
A. Yes. While the Act provides a general
framework for managing advisory committees Governmentwide, other factors
may affect how advisory committees
are managed. These include: (i) The
statutory or Presidential authority used
to establish an advisory committee; (ii)
A statutory limitation placed on an
agency regarding its annual expenditures for advisory committees; (iii)
Presidential or agency management directives; (iv) The applicability of conflict
of interest statutes and other Federal
ethics rules; (v) Agency regulations affecting advisory committees; and (vi)
Other requirements imposed by statute
or regulation on an agency or its programs, such as those governing the
employment of experts and consultants
or the management of Federal records.
Subpart D—Advisory Committee
Meeting and Recordkeeping
Procedures
§ 102–3.140 What policies apply to advisory committee meetings?
The agency head, or the chairperson
of an independent Presidential advisory committee, must ensure that:
(a) Each advisory committee meeting
is held at a reasonable time and in a
manner or place reasonably accessible
to the public, to include facilities that
are readily accessible to and usable by
persons with disabilities, consistent
with the goals of section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794;
(b) The meeting room or other forum
selected is sufficient to accommodate
§ 102–3.135 What does this subpart
cover and how does it apply?
This subpart establishes policies and
procedures relating to meetings and
other activities undertaken by advisory committees and their subcommittees. This subpart also outlines what
records must be kept by Federal agencies and what other documentation, including advisory committee minutes
and reports, must be prepared and
made available to the public.
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Federal Management Regulation
§ 102–3.160
advisory committee members, advisory
committee or agency staff, and a reasonable number of interested members
of the public;
(c) Any member of the public is permitted to file a written statement with
the advisory committee;
(d) Any member of the public may
speak to or otherwise address the advisory committee if the agency’s guidelines so permit; and
(e) Any advisory committee meeting
conducted in whole or part by a teleconference, videoconference, the Internet, or other electronic medium meets
the requirements of this subpart.
advisory committee may give less than
15 calendar days notice, provided that
the reasons for doing so are included in
the advisory committee meeting notice
published in the FEDERAL REGISTER.
§ 102–3.155 How are advisory committee meetings closed to the public?
To close all or part of an advisory
committee meeting, the Designated
Federal Officer (DFO) must:
(a) Obtain prior approval. Submit a request to the agency head, or in the case
of an independent Presidential advisory committee, the Secretariat, citing
the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C.
552b(c), that justify the closure. The request must provide the agency head or
the Secretariat sufficient time (generally, 30 calendar days) to review the
matter in order to make a determination before publication of the meeting
notice required by § 102–3.150.
(b) Seek General Counsel review. The
General Counsel of the agency or, in
the case of an independent Presidential
advisory committee, the General Counsel of GSA should review all requests
to close meetings.
(c) Obtain agency determination. If the
agency head, or in the case of an independent Presidential advisory committee, the Secretariat, finds that the
request is consistent with the provisions in the Government in the Sunshine Act and FACA, the appropriate
agency official must issue a determination that all or part of the meeting be
closed.
(d) Assure public access to determination. The agency head or the chairperson of an independent Presidential
advisory committee must make a copy
of the determination available to the
public upon request.
§ 102–3.145 What policies apply to subcommittee meetings?
If a subcommittee makes recommendations directly to a Federal officer or agency, or if its recommendations will be adopted by the parent advisory committee without further deliberations by the parent advisory committee, then the subcommittee’s meetings must be conducted in accordance
with all openness requirements of this
subpart.
§ 102–3.150 How are advisory committee meetings announced to the
public?
(a) A notice in the FEDERAL REGISTER
must be published at least 15 calendar
days prior to an advisory committee
meeting, which includes:
(1) The name of the advisory committee (or subcommittee, if applicable);
(2) The time, date, place, and purpose
of the meeting;
(3) A summary of the agenda, and/or
topics to be discussed;
(4) A statement whether all or part of
the meeting is open to the public or
closed; if the meeting is closed state
the reasons why, citing the specific exemption(s) of the Government in the
Sunshine Act, 5 U.S.C. 552b(c), as the
basis for closure; and
(5) The name and telephone number
of the Designated Federal Officer
(DFO) or other responsible agency official who may be contacted for additional information concerning the
meeting.
(b) In exceptional circumstances, the
agency or an independent Presidential
§ 102–3.160 What activities of an advisory committee are not subject to
the notice and open meeting requirements of the Act?
The following activities of an advisory committee are excluded from the
procedural requirements contained in
this subpart:
(a) Preparatory work. Meetings of two
or more advisory committee or subcommittee members convened solely to
gather information, conduct research,
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§ 102–3.165
41 CFR Ch. 102 (7–1–16 Edition)
or analyze relevant issues and facts in
preparation for a meeting of the advisory committee, or to draft position
papers for deliberation by the advisory
committee; and
(b) Administrative work. Meetings of
two or more advisory committee or
subcommittee members convened solely to discuss administrative matters of
the advisory committee or to receive
administrative information from a
Federal officer or agency.
prehend fully the work undertaken by
the advisory committee. Although advisory committee records may be withheld under the provisions of the Freedom of Information Act (FOIA), as
amended, if there is a reasonable expectation that the records sought fall within the exemptions contained in section
552(b) of FOIA, agencies may not require members of the public or other
interested parties to file requests for
non-exempt
advisory
committee
records under the request and review
process established by section 552(a)(3)
of FOIA.
§ 102–3.165 How are advisory committee meetings documented?
(a) The agency head or, in the case of
an independent Presidential advisory
committee, the chairperson must ensure that detailed minutes of each advisory committee meeting, including
one that is closed or partially closed to
the public, are kept. The chairperson of
each advisory committee must certify
the accuracy of all minutes of advisory
committee meetings.
(b) The minutes must include:
(1) The time, date, and place of the
advisory committee meeting;
(2) A list of the persons who were
present at the meeting, including advisory committee members and staff,
agency employees, and members of the
public who presented oral or written
statements;
(3) An accurate description of each
matter discussed and the resolution, if
any, made by the advisory committee
regarding such matter; and
(4) Copies of each report or other document received, issued, or approved by
the advisory committee at the meeting.
(c) The Designated Federal Officer
(DFO) must ensure that minutes are
certified within 90 calendar days of the
meeting to which they relate.
§ 102–3.175 What are the reporting and
recordkeeping requirements for an
advisory committee?
(a) Presidential advisory committee follow-up report. Within one year after a
Presidential advisory committee has
submitted a public report to the President, a follow-up report required by
section 6(b) of the Act must be prepared and transmitted to the Congress
detailing the disposition of the advisory committee’s recommendations.
The Secretariat shall assure that these
reports are prepared and transmitted
to the Congress as directed by the
President, either by the President’s
delegate, by the agency responsible for
providing support to a Presidential advisory committee, or by the responsible agency or organization designated
in the charter of the Presidential advisory committee pursuant to § 102–
3.75(a)(10). In performing this function,
GSA may solicit the assistance of the
President’s delegate, the Office of Management and Budget (OMB), or the responsible agency Committee Management Officer (CMO), as appropriate.
Reports shall be consistent with specific guidance provided periodically by
the Secretariat.
(b) Annual comprehensive review of
Federal advisory committees. To conduct
an annual comprehensive review of
each advisory committee as specified
in section 7(b) of the Act, GSA requires
Federal agencies to report information
on each advisory committee for which
a charter has been filed in accordance
with § 102–3.70, and which is in existence during any part of a Federal fiscal
year. Committee Management Officers
(CMOs), Designated Federal Officers
§ 102–3.170 How does an interested
party obtain access to advisory
committee records?
Timely access to advisory committee
records is an important element of the
public access requirements of the Act.
Section 10(b) of the Act provides for
the contemporaneous availability of
advisory committee records that, when
taken in conjunction with the ability
to attend committee meetings, provide
a meaningful opportunity to com-
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Pt. 102–3, Subpt. D, App. A
(DFOs), and other responsible agency
officials will provide this information
by data filed electronically with GSA
on a fiscal year basis, using a Governmentwide shared Internet-based system that GSA maintains. This information shall be consistent with specific guidance provided periodically by
the Secretariat. The preparation of
these electronic submissions by agencies has been assigned interagency report control number (IRCN) 0304–GSAAN.
(c) Annual report of closed or partiallyclosed meetings. In accordance with section 10(d) of the Act, advisory committees holding closed or partially-closed
meetings must issue reports at least
annually, setting forth a summary of
activities and such related matters as
would be informative to the public consistent with the policy of 5 U.S.C.
552(b).
(d) Advisory committee reports. Subject
to 5 U.S.C. 552, 8 copies of each report
made by an advisory committee, including any report of closed or partially-closed meetings as specified in
paragraph (c) of this section and, where
appropriate, background papers prepared by experts or consultants, must
be filed with the Library of Congress as
required by section 13 of the Act for
public inspection and use at the location specified § 102–3.70(a)(3).
(e) Advisory committee records. Official
records generated by or for an advisory
committee must be retained for the duration of the advisory committee. Upon
termination of the advisory committee, the records must be processed
in accordance with the Federal Records
Act (FRA), 44 U.S.C. Chapters 21, 29–33,
and regulations issued by the National
Archives and Records Administration
(NARA) (see 36 CFR parts 1220, 1222,
1228, and 1234), or in accordance with
the Presidential Records Act (PRA), 44
U.S.C. Chapter 22.
APPENDIX A TO SUBPART D OF PART 102–3—KEY POINTS AND PRINCIPLES
This appendix provides additional guidance in the form of answers to frequently asked
questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. With some exceptions,
advisory committee
meetings are open to
the public
102–3.140,
102–3.145(a),
102–3.155
1. Must all advisory committee and
subcommittee meetings be open to
the public?
A. No. Advisory committee meetings may
be closed when appropriate, in accordance with the exemption(s) for closure
contained in the Government in the
Sunshine Act, 5 U.S.C. 552b(c). (i)
Subcommittees that report to a parent
advisory committee, and not directly to
a Federal officer or agency, are not required to open their meetings to the
public or comply with the procedures in
the Act for announcing meetings. (ii)
However, agencies are cautioned to
avoid excluding the public from attending any meeting where a subcommittee
develops advice or recommendations
that are not expected to be reviewed
and considered by the parent advisory
committee before being submitted to a
Federal officer or agency. These exclusions may run counter to the provisions
of the Act requiring contemporaneous
access to the advisory committee deliberative process.
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Pt. 102–3, Subpt. D, App. A
Key points and principles
II. Notices must be published in the FEDERAL
REGISTER announcing
advisory committee
meetings
41 CFR Ch. 102 (7–1–16 Edition)
Section(s)
102–3.150
Question(s)
Guidance
1. Can agencies publish a single
FEDERAL REGISTER notice announcing multiple advisory committee
meetings?
A. Yes, agencies may publish a single
notice announcing multiple meetings so
long as these notices contain all of the
information required by § 102–3.150. (i)
‘‘Blanket notices’’ should not announce
meetings so far in advance as to prevent the public from adequately being
informed of an advisory committee’s
schedule. (ii) An agency’s Office of
General Counsel should be consulted
where these notices include meetings
that are either closed or partially closed
to the public.
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Federal Management Regulation
Key points and principles
III. Although certain advisory committee records
may be withheld under
the Freedom of Information Act (FOIA), as
amended, 5 U.S.C.
552, agencies may not
require the use of FOIA
procedures for records
available under section
10(b) of FACA
Section(s)
102–3.170
Pt. 102–3, Subpt. D, App. A
Question(s)
Guidance
1. May an agency require the use of
its internal FOIA procedures for access to advisory committee records
that are not exempt from release
under FOIA?
A. No. Section 10(b) of FACA provides
that: Subject to section 552 of title 5,
United States Code, the records, reports, transcripts, minutes, appendixes,
working papers, drafts, studies, agenda, or other documents which were
made available to or prepared for or by
each advisory committee shall be available for public inspection and copying
at a single location in the offices of the
advisory committee or the agency to
which the advisory committee reports
until the advisory committee ceases to
exist. (i) The purpose of section 10(b)
of the Act is to provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend advisory committee meetings, provide a
meaningful opportunity to comprehend
fully the work undertaken by the advisory committee. (ii) Although advisory
committee records may be withheld
under the provisions of FOIA if there is
a reasonable expectation that the
records sought fall within the exemptions contained in section 552(b) of
FOIA, agencies may not require members of the public or other interested
parties to file requests for non-exempt
advisory committee records under the
request and review process established by section 552(a)(3) of FOIA. (iii)
Records covered by the exemptions
set forth in section 552(b) of FOIA may
be withheld. An opinion of the Office of
Legal Counsel (OLC), U.S. Department
of Justice concludes that: FACA requires disclosure of written advisory
committee
documents,
including
predecisional materials such as drafts,
working papers, and studies. The disclosure exemption available to agencies under exemption 5 of FOIA for
predecisional documents and other
privileged materials is narrowly limited
in the context of FACA to privileged
‘‘inter-agency or intra-agency’’ documents prepared by an agency and
transmitted to an advisory committee.
The language of the FACA statute and
its legislative history support this restrictive application of exemption 5 to
requests for public access to advisory
committee documents. Moreover, since
an advisory committee is not itself an
agency, this construction is supported
by the express language of exemption
5 which applies only to inter-agency or
intra-agency materials. (iv) Agencies
first should determine, however, whether or not records being sought by the
public fall within the scope of FACA in
general, and section 10(b) of the Act in
particular, prior to applying the available exemptions under FOIA. (See
OLC Opinion 12 Op. O.L.C. 73, dated
April 29, 1988, which is available from
the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW., Washington, DC 20405–0002.)
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§ 102–3.180
Key points and principles
IV. Advisory committee
records must be managed in accordance
with the Federal
Records Act (FRA), 44
U.S.C. Chapters 21,
29–33, and regulations
issued by the National
Archives and Records
Administration (NARA)
(see 36 CFR parts
1220, 1222, 1228, and
1234), or the Presidential Records Act
(PRA), 44 U.S.C.
Chapter 22
41 CFR Ch. 102 (7–1–16 Edition)
Section(s)
102–175(e)
Question(s)
Guidance
1. How must advisory committee
records be treated and preserved?
A. In order to ensure proper records
management, the Committee Management Officer (CMO), Designated Federal Officer (DFO), or other representative of the advisory committee, in coordination with the agency’s Records
Management Officer, should clarify
upon the establishment of the advisory
committee whether its records will be
managed in accordance with the FRA
or the PRA.
B. Official records generated by or for an
advisory committee must be retained
for the duration of the advisory committee. Responsible agency officials
are encouraged to contact their agency’s Records Management Officer or
NARA as soon as possible after the
establishment of the advisory committee to receive guidance on how to
establish effective records management practices. Upon termination of the
advisory committee, the records must
be processed in accordance with the
FRA and regulations issued by NARA,
or in accordance with the PRA.
C. The CMO, DFO, or other representative of an advisory committee governed
by the FRA, in coordination with the
agency’s Records Management Officer,
must contact NARA in sufficient time to
review the process for submitting any
necessary disposition schedules of the
advisory committee’s records upon termination. In order to ensure the proper
disposition of the advisory committee’s
records, disposition schedules need to
be submitted to NARA no later than 6
months before the termination of the
advisory committee.
D. For Presidential advisory committees
governed by the PRA, the CMO, DFO,
or other representative of the advisory
committee should consult with the
White House Counsel on the preservation of any records subject to the PRA,
and may also confer with NARA officials.
advice or recommendations provided to
the agency by the National Academy of
Sciences (NAS) or the National Academy of Public Administration (NAPA),
if such advice or recommendations
were developed by use of a committee
created by either academy. For purposes of this subpart, NAS also includes the National Academy of Engineering, the Institute of Medicine, and
the National Research Council. Except
with respect to NAS committees that
were the subject of judicial actions
filed before December 17, 1997, no part
of the Act other than section 15 applies
to any committee created by NAS or
NAPA.
Subpart E—How Does This Subpart
Apply to Advice or Recommendations Provided to
Agencies by the National
Academy of Sciences or the
National Academy of Public
Administration?
§ 102–3.180 What does this subpart
cover and how does it apply?
This subpart provides guidance to
agencies on compliance with section 15
of the Act. Section 15 establishes requirements that apply only in connection with a funding or other written
agreement involving an agency’s use of
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Federal Management Regulation
Pt. 102–3, Subpt. E, App. A
tion, however, any committee created
and used by an academy in the development of any advice or recommendation
to be provided by the academy to an
agency must be subject to both actual
management and control by that academy and not by the agency.
(c) Funding agreements. Agencies may
enter into contracts, grants, and cooperative agreements with NAS or NAPA
that are consistent with the requirements of this subpart to obtain advice
or recommendations from such academy. These funding agreements require, and agencies may rely upon, a
written certification by an authorized
representative of the academy provided
to the agency upon delivery to the
agency of each report containing advice or recommendations required
under the agreement that:
(1) The academy has adopted policies
and procedures that comply with the
applicable requirements of section 15 of
the Act; and
(2) To the best of the authorized representative’s knowledge and belief,
these policies and procedures substantially have been complied with in performing the work required under the
agreement.
§ 102–3.185 What does this subpart require agencies to do?
(a) Section 15 requirements. An agency
may not use any advice or recommendation provided to an agency by
the National Academy of Sciences
(NAS) or the National Academy of Public Administration (NAPA) under an
agreement between the agency and an
academy, if such advice or recommendation was developed by use of a
committee created by either academy,
unless:
(1) The committee was not subject to
any actual management or control by
an agency or officer of the Federal
Government; and
(2) In the case of NAS, the academy
certifies that it has complied substantially with the requirements of section
15(b) of the Act; or
(3) In the case of NAPA, the academy
certifies that it has complied substantially with the requirements of sections 15(b) (1), (2), and (5) of the Act.
(b) No agency management or control.
Agencies must not manage or control
the specific procedures adopted by each
academy to comply with the requirements of section 15 of the Act that are
applicable to that academy. In addi-
APPENDIX A TO SUBPART E OF PART 102–3—KEY POINTS AND PRINCIPLES
This appendix provides additional guidance in the form of answers to frequently asked
questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Key points and principles
Section(s)
Question(s)
Guidance
I. Section 15 of the Act
allows the National
Academy of Sciences
(NAS) and the National
Academy of Public Administration (NAPA) to
adopt separate procedures for complying
with FACA
102–3.185(a)
1. May agencies rely upon an academy certification regarding compliance with section 15 of the Act if
different policies and procedures
are adopted by NAS and NAPA?
102–3.185(c)
1. Can an agency enter into a funding agreement with an academy
which provides for the preparation
of one or more academy reports
containing advice or recommendations to the agency, to be developed by the academy by use of a
committee created by the academy, without subjecting an academy to ‘‘actual management or
control’’ by the agency?
A. Yes. NAS and NAPA are completely
separate organizations. Each is independently chartered by the Congress
for different purposes, and Congress
has recognized that the two organizations are structured and operate differently. Agencies should defer to the
discretion of each academy to adopt
policies and procedures that will enable
it to comply substantially with the provisions of section 15 of the Act that
apply to that academy.
A. Yes, if the members of the committee
are selected by the academy and if the
committee’s meetings, deliberations,
and the preparation of reports are all
controlled by the academy. Under
these circumstances, neither the existence of the funding agreement nor the
fact that it contemplates use by the
academy of an academy committee
would constitute actual management or
control of the committee by the agency.
II. Section 15 of the Act
allows agencies to
enter into funding
agreements with NAS
and NAPA without the
academies’ committees
being ‘‘managed’’ or
‘‘controlled’’
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Pt. 102–5
41 CFR Ch. 102 (7–1–16 Edition)
102–5.105 May others accompany an employee using home-to-work transportation?
PART 102–4—NONDISCRIMINATION
IN FEDERAL FINANCIAL ASSISTANCE PROGRAMS [RESERVED]
Subpart C—Documenting and Reporting
Determinations
PART 102–5—HOME-TO-WORK
TRANSPORTATION
102–5.110 Must we report our determinations
outside of our agency?
102–5.115 When must we report our determinations?
102–5.120 What are our responsibilities for
documenting use of home-to-work transportation?
Subpart A—General
Sec.
102–5.5 Preamble.
102–5.10 What does this part cover?
102–5.15 Who is covered by this part?
102–5.20 Who is not covered by this part?
102–5.25 What additional guidance concerning home-to-work transportation
should Federal agencies issue?
102–5.30 What definitions apply to this part?
AUTHORITY:
1344(e)(1).
40
U.S.C.
§ 102–5.5
Preamble.
(a) The questions and associated answers in this part are regulatory in effect. Thus compliance with the written
text of this part is required by all to
whom it applies.
(b) The terms ‘‘we,’’ ‘‘I,’’ ‘‘our,’’
‘‘you,’’ and ‘‘your,’’ when used in this
part, mean you as a Federal agency, an
agency head, or an employee, as appropriate.
§ 102–5.10
What does this part cover?
This part covers the use of Government passenger carriers to transport
employees between their homes and
places of work.
§ 102–5.15
Who is covered by this part?
This part covers Federal agency employees in the executive, judicial, and
legislative branches of the Government, with the exception of employees
of the Senate, House of Representatives, Architect of the Capitol, and
government of the District of Columbia.
§ 102–5.20
part?
Who is not covered by this
This part does not cover:
(a) Employees who use a passenger
carrier in conjunction with official
travel, including temporary duty
(TDY) or relocation;
(b) Employees who are essential for
the safe and efficient performance of
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U.S.C.
Subpart A—General
102–5.35 Who is authorized home-to-work
transportation?
102–5.40 May the agency head delegate the
authority to make home-to-work determinations?
102–5.45 Should determinations be completed before an employee is provided
with home-to-work transportation?
102–5.50 May determinations be made in advance for employees who respond to unusual circumstances when they arise?
102–5.55 How do we prepare determinations?
102–5.60 How long are initial determinations
effective?
102–5.65 What procedures apply when the
need for home-to-work transportation
exceeds the initial period?
102–5.70 What considerations apply in making a determination to authorize hometo-work transportation for field work?
102–5.75 What circumstances do not establish a basis for authorizing home-to-work
transportation for field work?
102–5.80 What are some examples of positions that may involve field work?
102–5.85 What information should our determination for field work include if positions are identified rather than named
individuals?
102–5.90 Should an agency consider whether
to base a Government passenger carrier
at a Government facility near the employee’s home or work rather than authorize the employee home-to-work
transportation?
102–5.95 Is the comfort and/or convenience
of an employee considered sufficient justification to authorize home-to-work
transportation?
102–5.100 May we use home-to-work transportation for other than official purposes?
12:19 Sep 16, 2016
31
SOURCE: 65 FR 54966, Sept. 12, 2000, unless
otherwise noted.
Subpart B—Authorizing Home-to-Work
Transportation
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Federal Management Regulation
§ 102–5.30
intelligence, counterintelligence, protective services, or criminal law enforcement duties when designated in
writing as such by their agency head;
or
(c) Employees who use a passenger
carrier for transportation between
places of employment and mass transit
facilities (see, e.g., 41 CFR 102–34.210).
ment service must be provided, and
there is no other way to transport
those employees.)
Employee means a Federal officer or
employee of a Federal agency, including an officer or enlisted member of
the Armed Forces.
Federal agency means:
(1) A department (as defined in section 18 of the Act of August 2, 1946 (41
U.S.C. 5a));
(2) An executive department (as defined in 5 U.S.C. 101);
(3) A military department (as defined
in 5 U.S.C. 102);
(4) A Government corporation (as defined in 5 U.S.C. 103(1));
(5) A Government controlled corporation (as defined in 5 U.S.C. 103(2));
(6) A mixed-ownership Government
corporation (as defined in 31 U.S.C.
9101(2));
(7) Any establishment in the executive branch of the Government (including the Executive Office of the President);
(8) Any independent regulatory agency (including an independent regulatory agency specified in 44 U.S.C.
3502(10));
(9) The Smithsonian Institution;
(10) Any nonappropriated fund instrumentality of the United States; and
(11) The United States Postal Service.
Field work means official work requiring the employee’s presence at various locations other than his/her regular place of work. (Multiple stops
(itinerant-type travel) within the accepted local commuting area, limited
use beyond the local commuting area,
or transportation to remote locations
that are only accessible by Government-provided transportation are examples of field work.)
Home means the primary place where
an employee resides and from which
the employee commutes to his/her
place of work.
Home-to-work transportation means
the use of a Government passenger carrier to transport an employee between
his/her home and place of work.
Passenger carrier means a motor vehicle, aircraft, boat, ship, or other similar means of transportation that is
owned (including those that have come
into the possession of the Government
[65 FR 54966, Sept. 12, 2000, as amended at 75
FR 41995, July 20, 2010]
§ 102–5.25 What additional guidance
concerning home-to-work transportation should Federal agencies
issue?
Each Federal agency using Government passenger carriers to provide
home-to-work transportation for employees who are essential for the safe
and efficient performance of intelligence, counterintelligence, protective
services, or criminal law enforcement
duties should issue guidance concerning such use.
§ 102–5.30 What definitions apply to
this part?
The following definitions apply to
this part:
Agency head means the highest official of a Federal agency.
Clear and present danger means highly
unusual circumstances that present a
threat to the physical safety of the employee or their property when the danger is:
(1) Real; and
(2) Immediate or imminent, not
merely potential; and
(3) The use of a Government passenger carrier would provide protection
not otherwise available.
Compelling operational considerations
means those circumstances where
home-to-work transportation is essential to the conduct of official business
or would substantially increase a Federal agency’s efficiency and economy.
Emergency means circumstances that
exist whenever there is an immediate,
unforeseeable, temporary need to provide home-to-work transportation for
those employees necessary to the uninterrupted performance of the agency’s
mission. (An emergency may occur
where there is a major disruption of
available means of transportation to or
from a work site, an essential Govern-
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§ 102–5.35
41 CFR Ch. 102 (7–1–16 Edition)
by forfeiture or donation), leased, or
rented (non-TDY) by the United States
Government.
Work means any place within the accepted commuting area, as determined
by the Federal agency for the locality
involved, where an employee performs
his/her official duties.
(c) A compelling operational consideration.
NOTE TO § 102–5.50: Implementation of these
determinations is contingent upon one of the
three circumstances occurring. Thus, these
may be referred to as ‘‘contingency determinations.’’
§ 102–5.55 How do we prepare determinations?
Subpart B—Authorizing Home-toWork Transportation
Determinations must be in writing
and include the:
(a) Name and title of the employee
(or other identification, if confidential);
(b) Reason for authorizing home-towork transportation; and
(c) Anticipated duration of the authorization.
§ 102–5.35 Who is authorized home-towork transportation?
By statute, certain Federal officials
are authorized home-to-work transportation, as are employees who meet certain statutory criteria as determined
by their agency head. The Federal officials authorized by statute are the
President, the Vice-President, and
other principal Federal officials and
their designees, as provided in 31 U.S.C.
1344(b)(1) through (b)(7). Those employees engaged in field work, or faced with
a clear and present danger, an emergency, or a compelling operational consideration may be authorized home-towork transportation as determined by
their agency head. No other employees
are authorized home-to-work transportation.
§ 102–5.60 How long are initial determinations effective?
Initial determinations are effective
for no longer than:
(a) Two years for field work, updated
as necessary; and
(b) Fifteen days for other circumstances.
§ 102–5.65 What
procedures
apply
when the need for home-to-work
transportation exceeds the initial
period?
§ 102–5.40 May the agency head delegate the authority to make home-towork determinations?
The agency head may approve unlimited subsequent determinations, when
the need for home-to-work transportation exceeds the initial period, for no
longer than:
(a) Two years each for field work, updated as necessary; and
(b) Ninety calendar days each for
other circumstances.
No, the agency head may not delegate the authority to make home-towork determinations.
§ 102–5.45 Should determinations be
completed before an employee is
provided with home-to-work transportation?
§ 102–5.70 What considerations apply
in making a determination to authorize
home-to-work
transportation for field work?
Yes, determinations should be completed before an employee is provided
with home-to-work transportation unless it is impracticable to do so.
Agencies should consider the following when making a determination
to authorize home-to-work transportation for field work:
(a) The location of the employee’s
home in proximity to his/her work and
to the locations where non-TDY travel
is required; and
(b) The use of home-to-work transportation for field work should be authorized only to the extent that such
§ 102–5.50 May
determinations
be
made in advance for employees who
respond to unusual circumstances
when they arise?
Yes, determinations may be made in
advance when the Federal agency
wants to have employees ready to respond to:
(a) A clear and present danger;
(b) An emergency; or
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Federal Management Regulation
§ 102–5.105
for field work should include sufficient
information to satisfy an audit, if necessary. This information should include the job title, number, and operational level where the work is to be
performed (e.g., five recruiter personnel or, positions at the Detroit
Army Recruiting Battalion).
transportation will substantially increase the efficiency and economy of
the Government.
§ 102–5.75 What circumstances do not
establish a basis for authorizing
home-to-work transportation for
field work?
The following circumstances do not
establish a basis for authorizing hometo-work transportation for field work:
(a) When an employee assigned to
field work is not actually performing
field work.
(b) When the employee’s workday begins at his/her work; or
(c) When the employee normally
commutes to a fixed location, however
far removed from his/her official duty
station (for example, auditors or investigators assigned to a defense contractor plant).
NOTE TO § 102–5.85: An agency head may
elect to designate positions rather than individual names, especially in positions where
rapid turnover occurs.
§ 102–5.90 Should an agency consider
whether to base a Government passenger carrier at a Government facility near the employee’s home or
work rather than authorize the employee
home-to-work
transportation?
Yes, situations may arise where, for
cost or other reasons, it is in the Government’s interest to base a Government passenger carrier at a Government facility located near the employee’s home or work rather than authorize the employee home-to-work transportation.
NOTE TO § 102–5.75: For instances where an
employee is authorized home-to-work transportation under the field work provision, but
performs field work only on an intermittent
basis, the agency shall establish procedures
to ensure that a Government passenger carrier is used only when field work is actually
being performed. Although some employees’
daily work station is not located in a Government office, these employees are not performing field work. Like all Government employees, employees working in a ‘‘field office’’ are responsible for their own commuting costs.
§ 102–5.95 Is the comfort and/or convenience of an employee considered
sufficient justification to authorize
home-to-work transportation?
No, the comfort and/or convenience
of an employee is not considered sufficient justification to authorize hometo-work transportation.
§ 102–5.80 What are some examples of
positions that may involve field
work?
Examples of positions that may involve field work include, but are not
limited to:
(a) Quality assurance inspectors;
(b) Construction inspectors;
(c) Dairy inspectors;
(d) Mine inspectors;
(e) Meat inspectors; and
(f) Medical officers on outpatient
service.
§ 102–5.100 May we use home-to-work
transportation for other than official purposes?
No, you may not use home-to-work
transportation for other than official
purposes. However, if your agency has
prescribed rules for the incidental use
of Government vehicles (as provided in
31 U.S.C. note), you may use the vehicle in accordance with those rules in
connection with an existing home-towork authorization.
NOTE TO § 102–5.80: The assignment of an
employee to such a position does not, of
itself, entitle an employee to receive daily
home-to-work transportation.
§ 102–5.105 May others accompany an
employee
using
home-to-work
transportation?
Yes, an employee authorized hometo-work transportation may share
space in a Government passenger carrier with other individuals, provided
that the passenger carrier does not
travel additional distances as a result
§ 102–5.85 What information should
our determination for field work include if positions are identified
rather than named individuals?
If positions are identified rather than
named individuals, your determination
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§ 102–5.110
41 CFR Ch. 102 (7–1–16 Edition)
and such sharing is consistent with his/
her Federal agency’s policy. When a
Federal agency establishes its space
sharing policy, the Federal agency
should consider its potential liability
for and to those individuals. Home-towork transportation does not extend to
the employee’s spouse, other relatives,
or friends unless they travel with the
employee from the same point of departure to the same destination, and
this use is consistent with the Federal
agency’s policy.
days after approval. You may consolidate any subsequent determinations
into a single report and submit them
quarterly.
§ 102–5.120 What are our responsibilities for documenting use of hometo-work transportation?
Your
responsibilities
for
documenting use of home-to-work transportation are that you must maintain logs
or other records necessary to verify
that any home-to-work transportation
was for official purposes. Each agency
may decide the organizational level at
which the logs should be maintained
and kept. The logs or other records
should be easily accessible for audit
and should contain:
(a) Name and title of employee (or
other identification, if confidential)
using the passenger carrier;
(b) Name and title of person authorizing use;
(c) Passenger carrier identification;
(d) Date(s) home-to-work transportation is authorized;
(e) Location of residence;
(f) Duration; and
(g) Circumstances requiring home-towork transportation.
Subpart C—Documenting and
Reporting Determinations
§ 102–5.110 Must we report our determinations outside of our agency?
Yes, you must submit your determinations to the following Congressional Committees:
(a) Chairman, Committee on Governmental Affairs, United States Senate,
Suite SD–340, Dirksen Senate Office
Building, Washington, DC 20510–6250;
and
(b) Chairman, Committee on Governmental Reform, United States House of
Representatives, Suite 2157, Rayburn
House Office Building, Washington, DC
20515–6143.
§ 102–5.115 When must we report our
determinations?
You must report your determinations
to Congress no later than 60 calendar
PARTS 102–6—102–30 [RESERVED]
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SUBCHAPTER B—PERSONAL PROPERTY
OMB CIRCULAR A–76
PART 102–31—GENERAL
[RESERVED]
102–33.80 Must we comply with OMB Circular A–76 before we acquire Government
aircraft?
PART 102–32—MANAGEMENT OF
PERSONAL PROPERTY [RESERVED]
THE PROCESS FOR BUDGETING TO ACQUIRE
GOVERNMENT AIRCRAFT
PART 102–33—MANAGEMENT OF
GOVERNMENT AIRCRAFT
102–33.90 What is the process for budgeting
to acquire a Federal aircraft (including a
Federal aircraft transferred from another
executive agency)?
102–33.95 What is the process for budgeting
to acquire Commercial Aviation Services
(CAS)?
Subpart A—How These Rules Apply
GENERAL
Sec.
102–33.5 To whom do these rules apply?
102–33.6 How are the terms ‘‘we,’’ ‘‘you,’’
‘‘your,’’ and ‘‘our’’ used in this part?
102–33.10 May we request approval to deviate from these rules?
102–33.15 How does this part relate to Title
14 of the Code of Federal Regulations?
102–33.20 What definitions apply to this
part?
CONTRACTING TO ACQUIRE GOVERNMENT
AIRCRAFT
102–33.100 What are our responsibilities
when contracting to purchase or capital
lease a Federal aircraft or to award a
CAS contract?
102–33.105 What
minimum
requirements
must we put into our CAS contracts?
ACQUIRING AIRCRAFT PARTS
RESPONSIBILITIES
102–33.110 What are our responsibilities
when acquiring aircraft parts?
102–33.115 Are there requirements for acquiring military Flight Safety Critical
Aircraft Parts (FSCAP)?
102–33.120 Are there requirements for acquiring life-limited parts?
102–33.25 What are our responsibilities
under this part?
102–33.30 What are the duties of an agency’s
Senior Aviation Management Official
(SAMO)?
102–33.35 How can we get help in carrying
out our responsibilities?
102–33.40 What are some of GSA’s responsibilities for Federal aviation management?
Subpart C—Managing Government
Aircraft and Aircraft Parts
OVERVIEW
Subpart B—Acquiring Government Aircraft
and Aircraft Parts
102–33.125 If we use Federal aircraft, what
are our management responsibilities?
102–33.130 If we hire CAS, what are our management responsibilities?
102–33.135 Do we have to follow the direction in OMB Circular A–123, ‘‘Management’s Accountability and Control,’’ for
establishing management controls for
our aviation program?
OVERVIEW
102–33.50 Under what circumstances may we
acquire Government aircraft?
102–33.55 Are there restrictions on acquiring
Government aircraft?
102–33.60 What methods may we use to acquire Government aircraft?
102–33.65 What is the process for acquiring
Government aircraft?
ESTABLISHING FLIGHT PROGRAM STANDARDS
102–33.140 What are Flight Program Standards?
102–33.145 Why must we establish Flight
Program Standards?
102–33.150 What Federally-funded aviation
activities of executive agencies are exempt from establishing Flight Program
Standards under this part?
102–33.155 How must we establish Flight
Program Standards?
PLANNING TO ACQUIRE GOVERNMENT AIRCRAFT
102–33.70 What directives must we follow
when planning to acquire Government
aircraft?
102–33.75 What other guidance is available
to us in planning to acquire Government
aircraft?
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Pt. 102–33
41 CFR Ch. 102 (7–1–16 Edition)
MANAGEMENT/ADMINISTRATION
102–33.235 What documentation must we
maintain for life-limited parts and
FSCAP?
102–33.160 What standards must we establish
or require (contractually, where applicable) for management/administration of
our flight program?
Subpart D—Disposing or Replacing of
Government Aircraft and Aircraft Parts
OPERATIONS
OVERVIEW
102–33.165 What standards must we establish
or require (contractually, where applicable) for operation of our flight program?
102–33.240 What must we consider before disposing or replacing aircraft and aircraft
parts?
102–33.245 May we report as excess, or replace (i.e., by exchange/sale), both operational and non-operational aircraft?
102–33.250 May we declassify aircraft?
102–33.255 Must we document FSCAP or lifelimited parts installed on aircraft that
we will report as excess or replace?
102–33.260 When we report as excess, or replace, an aircraft (including a declassified aircraft), must we report the
change in inventory to the Federal Aviation
Interactive
Reporting
System
(FAIRS)?
MAINTENANCE
102–33.170 What standards must we establish
or require (contractually, where applicable) for maintenance of our Government
aircraft?
TRAINING
102–33.175 What standards must we establish
or require (contractually, where applicable) to train our flight program personnel?
SAFETY
REPORTING EXCESS FEDERAL AIRCRAFT
102–33.180 What standards should we establish or require (contractually, where applicable) for aviation safety management?
102–33.185 What standards should we establish or require (contractually, where applicable) for responding to aircraft accidents and incidents?
102–33.265 What must we do with aircraft
that are excess to our needs?
102–33.270 What is the process for reporting
an excess aircraft?
REPLACING AIRCRAFT THROUGH EXCHANGE/
SALE
102–33.275 What should we consider before
replacing our aircraft through an exchange/sale?
102–33.280 What are our options if we need a
replacement aircraft?
102–33.285 Do we need to include any special
disclaimers in our exchange/sale agreements for non-certificated aircraft or
aircraft that we have operated as public
aircraft (i.e., not in compliance with 14
CFR)?
102–33.295 May we exchange/sell an aircraft
through reimbursable transfer to another
executive agency or conduct a negotiated
sale at fixed price to a State Agency for
Surplus Property (SASP)?
ACCOUNTING FOR THE COSTS OF GOVERNMENT
AIRCRAFT
102–33.190 What are the aircraft operations
and ownership costs for which we must
account?
102–33.195 Do we need an automated system
to account for aircraft costs?
102–33.200 Must we periodically justify owning and operating Federal aircraft?
102–33.205 When we use our aircraft to support other executive agencies, must we
recover the operating costs?
ACCOUNTING FOR THE USE OF GOVERNMENT
AIRCRAFT
DISPOSING OF AIRCRAFT PARTS
102–33.210 How do we account for the use of
our Government aircraft?
102–33.215 May we use Government aircraft
to carry passengers?
102–33.220 What are the responsibilities of
our aviation program in justifying the
use of a Government aircraft to transport passengers?
102–33.300 What must we consider before disposing of aircraft parts?
102–33.305 May we report as excess, or replace, FSCAP and life-limited parts?
102–33.310 May we report as excess, or replace, unsalvageable aircraft parts?
102–33.315 What are the procedures for mutilating unsalvageable aircraft parts?
102–33.320 What must we do if we are unable
to perform required mutilation of aircraft parts?
102–33.325 What documentation must we furnish with excess, surplus, or replaced
parts when they are transferred, donated,
exchanged, or sold?
MANAGING AIRCRAFT PARTS
102–33.225 How must we manage aircraft
parts?
102–33.230 May we use military FSCAP on
non-military FAA-type certificated Government aircraft?
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Federal Management Regulation
§ 102–33.5
REPORTING EXCESS AIRCRAFT PARTS
FEDERAL AIRCRAFT COST AND UTILIZATION
DATA
102–33.330 What must we do with aircraft
parts that are excess to our needs?
102–33.335 What are the receiving agency’s
responsibilities in the transfer of aircraft
parts?
102–33.340 What are GSA’s responsibilities
in disposing of excess and surplus aircraft parts?
102–33.345 What are the responsibilities of a
State Agency for Surplus Property
(SASP) in the donation of Federal Government aircraft parts?
102–33.425 What Federal aircraft cost and
utilization data must we report?
102–33.430 Who must report Federal aircraft
cost and utilization data?
COMMERCIAL AVIATION SERVICES (CAS) COST
AND UTILIZATION DATA
102–33.435 What CAS cost and utilization
data must we report?
102–33.440 Who must report CAS cost and
utilization data?
REPLACING AIRCRAFT PARTS THROUGH
EXCHANGE/SALE
ACCIDENT AND INCIDENT DATA
102–33.445 What accident and incident data
must we report?
102–33.450 How must we report accident and
incident data?
102–33.350 What do we need to consider for
an exchange/sale of our aircraft parts?
102–33.355 May we exchange/sell aircraft
parts through a reimbursable transfer to
another executive agency or conduct a
negotiated sale at fixed price to a State
Agency for Surplus Property (SASP)?
102–33.360 What is the process for exchanging/selling aircraft parts for replacement?
102–33.365 Must we report exchange/sale of
parts to FAIRS?
COMMON AVIATION MANAGEMENT INFORMATION
STANDARD (C–AMIS)
102–33.455 What is C–AMIS?
102–33.460 What is our responsibility in relation to C–AMIS?
PERFORMANCE INDICATORS
102–33.465 What is a performance indicator?
102–33.470 Must we develop performance indicators?
102–33.475 What are some examples of performance indicators that we can use?
APPENDIX A TO PART 102–33—DISCLOSURE
FOR
CREWMEMBERS
AND
STATEMENT
QUALIFIED NON-CREWMEMBERS FLYING ON
BOARD GOVERNMENT AIRCRAFT OPERATED
AS PUBLIC AIRCRAFT
SPECIAL REQUIREMENTS FOR DISPOSING OF
FLIGHT SAFETY CRITICAL AIRCRAFT PARTS
(FSCAP) AND LIFE-LIMITED PARTS
102–33.370 What must we do to dispose of
military FSCAP and/or life-limited
parts?
102–33.375 What is a FSCAP Criticality
Code?
Subpart E—Reporting Information on
Government Aircraft
AUTHORITY: 40 U.S.C. 121(c); 31 U.S.C. 101 et
seq.; Reorganization Plan No. 2 of 1970, 35 FR
7959, 3 CFR, 1066–1970 Comp., p. 1070; Executive Order 11541, 35 FR 10737, 3 CFR, 1966–1970
Comp., p. 939; and OMB Circular No. A–126
(Revised May 22, 1992), 57 FR 22150.
OVERVIEW
102–33.380 Who must report information to
GSA on Government aircraft?
102–33.385 What Federally-funded aviation
activities of executive agencies are exempt from the requirement to report information to GSA on Government aircraft?
102–33.390 What information must we report
on Government aircraft?
SOURCE: 79 FR 77336, Dec. 23, 2014, unless
otherwise noted.
Subpart A—How These Rules
Apply
GENERAL
FEDERAL AVIATION INTERACTIVE REPORTING
SYSTEM (FAIRS)
102–33.395
102–33.400
102–33.405
§ 102–33.5 To whom do these rules
apply?
(a) The rules in this part apply to all
Federally-funded aviation activities of
executive branch agencies of the U.S.
Government who use Government aircraft to accomplish their official business, except for the exemptions listed
in paragraph (b) of this section.
(b) The rules in this part do not apply
to the following:
What is FAIRS?
How must we report to FAIRS?
When must we report to FAIRS?
FEDERAL INVENTORY DATA
102–33.410 What are Federal inventory data?
102–33.415 When may we declassify an aircraft and remove it from our Federal aircraft inventory?
102–33.420 How must we declassify an aircraft?
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§ 102–33.6
41 CFR Ch. 102 (7–1–16 Edition)
Acquisition date means the date that
the acquiring executive agency took
responsibility for the aircraft, e.g., received title (through purchase, exchange, or gift), signed a bailment
agreement with the Department of Defense (DOD), took physical custody, received a court order, put into operational status an aircraft that is newly
manufactured by the agency, or otherwise accepted physical transfer (e.g., in
the case of a borrowed aircraft).
Aircraft part means an individual
component or an assembly of components that is used on aircraft.
Armed Forces mean the Army, Navy,
Air Force, Marine Corps, and Coast
Guard, including their regular and Reserve components and members serving
without component status. For purposes of this Part, the National Guard
is also included in the Armed Forces.
Aviation life support equipment (ALSE)
means equipment that protects flight
crewmembers and others aboard an aircraft, assisting their safe escape, survival, and recovery during an accident
or other emergency.
Aviation Policy Division is a division
in the Office of Asset and Transportation Management, Office of Government-wide Policy, GSA. Contact the
staff via the Aircraft Management
Overview page at http://www.gsa.gov/
aviationpolicy.
Crewmember means a person assigned
to operate or assist in operating an aircraft during flight time. Crewmembers
perform duties directly related to the
operation of the aircraft (e.g., as pilots,
co-pilots, flight engineers, navigators)
or duties assisting in operation of the
aircraft (e.g., as flight directors, crew
chiefs, electronics technicians, mechanics). See also the terms and definitions for ‘‘Qualified non-crewmember’’
and ‘‘Passenger’’ in this section.
Criticality code means a single digit
code that DOD assigns to military
Flight Safety Critical Aircraft Parts
(FSCAP) (see §§ 102–33.115 and 102–
33.370).
Data plate means a fireproof plate
that is inscribed with certain information required by 14 CFR part 45 (or for
military surplus aircraft, as required
by Military Specifications), and secured to an aircraft, aircraft engine, or
propeller. The information must be
(1) The Armed Forces, except for:
(i) Section 102–33.25(e) and (g), which
concern responsibilities related to the
Interagency Committee for Aviation
Policy (ICAP); and
(ii) Subpart D of this part, ‘‘Disposing of Government Aircraft and Aircraft Parts.’’
(2) The President or Vice President
and their offices;
(3) Aircraft when an executive agency
provides Government-furnished avionics for commercially owned or privately owned aircraft for the purposes
of technology demonstration or testing; and
(4) Privately owned aircraft that
agency personnel use for official travel
(even though such use is Federallyfunded).
§ 102–33.6 How are the terms ‘‘we,’’
‘‘you,’’ ‘‘your,’’ and ‘‘our’’ used in this
part?
In this part, ‘‘we’’, ‘‘you’’, ‘‘your’’,
and ‘‘our’’ refer to agency aviation
managers or an executive agency.
§ 102–33.10 May we request approval
to deviate from these rules?
(a) You may request approval to deviate from the rules in this part. See
§§ 102–2.60 through 102–2.110 of this
chapter for guidance on requesting a
deviation. In most cases, GSA will respond to your written request within 30
days;
(b) GSA may not grant deviations
from the requirements of OMB Circular
A–126, ‘‘Improving the Management of
Government Aircraft;’’ and
(c) You should consult with GSA’s
Aviation Policy Division before you request a deviation.
§ 102–33.15 How does this part relate
to Title 14 of the Code of Federal
Regulations?
This part does not supersede any of
the regulations in 14 CFR Chapter I,
‘‘Federal Aviation Administration, Department of Transportation.’’
§ 102–33.20 What definitions apply to
this part?
The following definitions apply to
this part:
Acquire means to procure or otherwise obtain personal property, including by lease or rent.
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Federal Management Regulation
§ 102–33.20
marked by etching, stamping, engraving, or other approved method of fireproof marking. The plate must be attached in such a manner that it is not
likely to be defaced or removed during
normal service or lost or destroyed in
an accident. Data plates are required
only on certificated aircraft. However,
non-certificated aircraft may also have
data plates.
Declassify means to remove a lost, destroyed, or non-operational aircraft
from the Federal aircraft inventory.
Agencies may declassify only non-operational aircraft that they will retain
for ground use only. Agencies must declassify an aircraft following the rules
in §§ 102–33.415 and 102–33.420.
Disposal date means the date that the
disposing executive agency relinquishes responsibility for an aircraft,
for example, when the agency transfers
title in the case of an exchange/sale; returns the aircraft to the lessor or bailer; declassifies it (for FAIRS, declassification is considered a ‘‘disposal’’ action, even though the agency retains
the property); or relinquishes custody
to another agency (i.e., in the case of
excess (transferred) or surplus (donated
or sold) aircraft).
Donated aircraft means an aircraft
disposed of as surplus by GSA through
donation to a non-Federal government,
a tax-exempt nonprofit entity, or other
eligible recipient, following the rules
in part § 102–37 (some agencies, for example DOD, may have independent donation authority.)
Exchange means to replace personal
property by trade or trade-in with the
supplier of the replacement property.
Exchange/sale means to exchange or
sell non-excess, non-surplus personal
property and apply the exchange allowance or proceeds of sale in whole or in
part payment for the acquisition of
similar property. See 40 U.S.C. 503.
Exclusive use means a condition under
which an aircraft is operated for the
sole benefit of the U.S. Government.
Executive agency means any executive
department or independent establishment in the executive branch of the
United States Government, including
any wholly owned Government corporation. See 5 U.S.C. 105.
Federal Acquisition Service (FAS)
means a component of GSA. FAS is or-
ganized by geographical regions. The
FAS Property Management Division in
GSA’s Pacific Rim Region, 450 Golden
Gate Ave., San Francisco, CA 94102–
3434, has responsibility for disposing of
excess and surplus aircraft.
Federal aircraft means manned or unmanned aircraft that an executive
agency owns (i.e., holds title to) or borrows for any length of time. Federal
aircraft include—
(1) Bailed aircraft: Federal aircraft
that is owned by one executive agency,
but is in the custody of and operated
by another executive agency under an
agreement that may or may not include cost-reimbursement. Bailments
are executive agency to executive
agency agreements and involve only
aircraft, not services;
(2) Borrowed aircraft: Aircraft owned
by a non-executive agency and provided to an executive agency for use
without compensation. The executive
agency operates and maintains the aircraft;
(3) Forfeited aircraft: Aircraft acquired by the Government either by
summary process or by order of a court
of competent jurisdiction pursuant to
any law of the United States;
(4) Loaned aircraft: Federal aircraft
owned by an executive agency, but in
the custody of a non-executive agency
under an agreement that does not include compensation; and
(5) Owned aircraft: An aircraft for
which title or rights of title are vested
in an executive agency.
NOTE TO DEFINITION OF FEDERAL AIRCRAFT: When an executive agency loans
or bails an aircraft that meets the criteria for Federal aircraft, the loaned or
bailed aircraft is still considered a Federal aircraft in the owning agency’s inventory, except when DOD is the owning agency of a bailed aircraft. In that
case, the aircraft is recorded in the inventory of the bailee.
Federal Aviation Interactive Reporting
System (FAIRS) is a management information system operated by GSA to collect, maintain, analyze, and report information on Federal aircraft inventories and cost and usage of Federal
aircraft and CAS aircraft (and related
services) (see §§ 102–33.395 through 102–
33.440).
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§ 102–33.20
41 CFR Ch. 102 (7–1–16 Edition)
Flight Safety Critical Aircraft Part
(FSCAP) means any aircraft part, assembly, or installation containing a
critical characteristic whose failure,
malfunction, or absence could cause a
catastrophic failure resulting in loss or
serious damage to the aircraft or an
uncommanded engine shutdown resulting in an unsafe condition.
Full service contract means a contractual agreement through which an executive agency acquires an aircraft and
related aviation services (e.g., pilot,
crew, maintenance, catering) for exclusive use. Aircraft hired under full service contracts are commercial aviation
services (CAS), not Federal aircraft, regardless of the length of the contract.
Government aircraft means manned or
unmanned aircraft operated for the exclusive use of an executive agency.
Government aircraft include—
(1) Federal aircraft (see definition for
‘‘Federal aircraft’’ in this section); and
(2) Aircraft hired as commercial aviation services (CAS). CAS include—
(i) Leased aircraft for exclusive use
for an agreed upon period of time (The
acquiring executive agency operates
and maintains the aircraft);
(ii) Capital lease aircraft for which
the leasing agency holds an option to
take title;
(iii) Charter aircraft for hire under a
contractual agreement for one-time exclusive use that specifies performance
(The commercial source operates and
maintains a charter aircraft);
(iv) Rental aircraft obtained commercially under an agreement in which
the executive agency has exclusive use
for an agreed upon period of time (The
executive agency operates, but does
not maintain, a rental aircraft);
(v) Contracting for full services (i.e.,
aircraft and related aviation services
for exclusive use); or
(vi) Obtaining related aviation services (i.e., services but not aircraft) by
commercial contract, except those
services acquired to support a Federal
aircraft.
Governmental function means a Federally-funded activity that an executive
agency performs in compliance with its
statutory authorities.
Intelligence community means those
agencies identified in the National Security Act, 50 U.S.C. 401a(4).
Inter-service support agreement (ISSA)
means any agreement between two or
more executive agencies (including the
Department of Defense) in which one
agency consents to perform aviation
support services (e.g., providing an aircraft and other aviation services or
providing only services) for another
agency with or without cost-reimbursement. An executive agency-to-executive agency agreement that involves
only the use of an aircraft, not services, is a bailment, not an ISSA.
Life-limited part means any aircraft
part that has an established replacement time, inspection interval, or
other time-related procedure associated with it. For non-military parts,
the FAA specifies life-limited part airworthiness limitations in 14 CFR 21.50,
23.1529, 25.1529, 27.1529, 29.1529, 31.82,
33.4, and 35.5, and on product Type Certificate Data Sheets (TCDS). Letters
authorizing Technical Standards Orders (TSO) must also note or reference
mandatory replacement or inspection
of parts.
Military aircraft part means an aircraft part used on an aircraft that was
developed by the Armed Forces (whether or not it carries an FAA airworthiness certificate).
Non-operational aircraft means a Federal aircraft that is not safe for flight
and, in the owning executive agency’s
determination, cannot economically be
made safe for flight. This definition refers to the aircraft’s flight capability,
not its mission-support equipment capability. An aircraft that is temporarily out of service for maintenance or
repair and can economically be made
safe for flight is considered an operational aircraft.
Official Government business in relation to Government aircraft—
(1) Includes, but is not limited to—
(i) Carrying crewmembers, qualified
non-crewmembers, and cargo directly
required for or associated with performing Governmental functions (including travel-related Governmental
functions);
(ii) Carrying passengers authorized to
travel on Government aircraft (see
OMB Circular A–126); and
(iii) Training pilots and other aviation personnel.
(2) Does not include—
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Qualified non-crewmember means an
individual, other than a member of the
crew, aboard an aircraft—
(1) Operated by an United States
Government agency in the intelligence
community; or
(2) Whose presence is required to perform or is associated with performing
the Governmental function for which
the aircraft is being operated (Qualified non-crewmembers are not passengers).
Registration mark means the unique
identification mark that is assigned by
the FAA and displayed on U.S.-registered Government aircraft (except
Armed Forces aircraft). Foreign-registered aircraft hired as CAS will carry
their national registration markings.
Registration markings are commonly
referred to as tail numbers.
Related aviation services contract
means a commercial contractual agreement through which an executive agency hires aviation services only (not aircraft), e.g., pilot, crew, maintenance,
cleaning, dispatching, or catering.
Required use travel means use of a
Government aircraft for the travel of
an executive agency officer or employee where the use of the Government aircraft is required because of
bona fide communications or security
need of the agency or exceptional
scheduling requirements. Required use
travel must be approved as described in
OMB Circular A–126.
Risk analysis and management means a
systematic process for—
(1) Identifying risks and hazards associated with alternative courses of action involved in an aviation operation;
(2) Choosing from among these alternatives the course(s) of action that will
promote optimum aviation safety;
(3) Assessing the likelihood and predicted severity of an injurious mishap
within the various courses of action;
(4) Controlling and mitigating identified risks and hazards within the chosen course(s) of action; and
(5) Periodically reviewing the chosen
course(s) of action to identify possible
emerging risks and hazards.
Safe for flight means approved for
flight and refers to an aircraft, aircraft
engine, propeller, appliance, or part
that has been inspected and certified to
meet the requirements of applicable
(i) Using Government aircraft for
personal or political purposes, except
for required use travel and space available travel as defined in OMB Circular
A–126; or
(ii) Carrying passengers who are not
officially authorized to travel on Government aircraft.
Operational aircraft means a Federal
aircraft that is safe for flight or, in the
owning executive agency’s determination, can economically be made safe for
flight. This definition refers to the aircraft’s flight capability, not its mission-support capability. An aircraft
temporarily out of service for maintenance or repair is considered an operational aircraft.
Original
equipment
manufacturer
(OEM) means the person or company
who originally designed, engineered,
and manufactured, or who currently
holds the data rights to manufacture, a
specific aircraft or aircraft part. Parts
produced under a Parts Manufacturer
Approval (PMA) are not considered
OEM parts, even though they can be
acceptable replacement parts for OEM
parts.
Passenger means a person flying onboard a Government aircraft who is officially authorized to travel and who is
not a crewmember or qualified noncrewmember.
Performance indicator means a quantitative or qualitative term or value
for reporting organizational activities
and results, generally with respect to
achieving specific goals related to outcomes, outputs, efficiency, and inputs.
When applied to aircraft, performance
indicators typically measure the effectiveness and efficiency of the processes
involved with safely delivering aircraft
services.
Production approval holder (PAH)
means the person or company who
holds a Production Certificate (PC),
Approved Production Inspection System (APIS), Parts Manufacturer Approval (PMA), or Technical Standards
Orders Authorization (TSOA), issued
under provisions of 14 CFR part 21, Certification Procedures for Products and
Parts, and who controls the design,
manufacture, and quality of a specific
aircraft part.
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§ 102–33.20
41 CFR Ch. 102 (7–1–16 Edition)
regulations, specifications, or standards. When applied to an aircraft that
an executive agency operates under
FAA regulations, safe for flight means
‘‘airworthy,’’ i.e., the aircraft or related parts meet their design specifications and are in a condition, relative to
wear and deterioration, for safe operation. When applied to an aircraft that
an executive agency uses, but does not
operate under the FAA regulations,
safe for flight means a state of compliance with military specifications or
the executive agency’s own Flight Program Standards, and as approved, inspected, and certified by the agency.
Safety Management System (SMS)
means a formal, top-down business-like
approach to managing safety risk. It
includes systematic procedures, practices, and policies for the management
of safety, safety risk management,
safety policy, safety assurance, and
safety promotion. For more information on SMS, refer to FAA Advisory
Circular 120–92, ‘‘Safety Management
Systems for Aviation Service Providers.’’
Senior Aviation Management Official
(SAMO) means the person in an executive agency who is the agency’s primary member of the Interagency Committee for Aviation Policy (ICAP). This
person must be of appropriate grade
and position to represent the agency
and promote flight safety and adherence to standards.
Serviceable aircraft part means a part
that is safe for flight, can fulfill its
operational requirements, and is sufficiently documented to indicate that
the part conforms to applicable standards/specifications.
Suspected unapproved part means an
aircraft part, component, or material
that any person suspects of not meeting the requirements of an ‘‘approved
part.’’ Approved parts are those that
are produced in compliance with 14
CFR part 21, are maintained in compliance with 14 CFR parts 43 and 91, and
meet applicable design standards. A
part, component, or material may be
suspect because of its questionable finish, size, or color; improper (or lack of)
identification; incomplete or altered
paperwork; or any other questionable
indication. See detailed guidance in
FAA Advisory Circular 21–29, ‘‘Detect-
ing and Reporting Suspected Unapproved Parts,’’ available from the FAA
at http://www.faa.gov.
Traceable part means an aircraft part
whose manufacturer or production approval holder can be identified by documentation,
markings/characteristics
on the part, or packaging of the part.
Non-military parts are traceable if you
can establish that the parts were manufactured in accordance with or were
previously determined to be airworthy
under rules in 14 CFR parts 21 and 43.
Possible
sources
for
making
a
traceability determination could be
shipping tickets, bar codes, invoices,
parts marking (e.g., PMA, TSO), data
plates, serial/part numbers, manufacturing production numbers, maintenance records, work orders, etc.
Training means instruction for all
flight program personnel (to include
administrative, maintenance and dispatch personnel), which enables them
to qualify initially for their positions
and to maintain qualification for their
positions over time.
NOTE: This instruction can apply to either
public or civil missions as defined in the latest version of the FAA’s Advisory Circular
for Government aircraft operations.
Unmanned Aircraft Systems (UAS)
means an unmanned aircraft and its associated elements related to safe operations, which may include but not be
limited to control stations, data communications links, support equipment,
payloads, flight termination systems,
and launch/recovery equipment. The
unmanned aircraft (UA) is the flying
component of the system, flown by a
pilot via a ground control system, or
autonomously through the use of an
on-board computer, communication
links, and any additional equipment
necessary for the unmanned aircraft to
operate safely. The Federal Aviation
Administration issues either an Airworthiness Directive (AD) or a Certificate of Authorization (COA) for the entire system, not just the flying component of the system. Reporting of UAS
costs and flight hours is only required
if the accumulated costs for acquisition and operations meets the agency’s
threshold for capitalization, and the
UAS has a useful life of two years or
more.
Unsalvageable aircraft part means an
aircraft part that cannot be restored to
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Federal Management Regulation
§ 102–33.30
tation Safety Board (NTSB), but excludes executive agencies that only
hire aircraft occasionally for a specific
flight). It is suggested that an agency’s
SAMO have:
(1) Experience as a pilot or crew
member; or
(2) Management experience within an
aviation operations management/flight
program.
(f) Designate an official (by letter to
the Deputy Associate Administrator,
Office of Asset and Transportation
Management, Office of Governmentwide Policy, GSA) to certify the accuracy and completeness of information
reported by your agency through
FAIRS. (Armed Forces agencies, which
include the DOD and the U.S. Coast
Guard, are not required to report information to FAIRS.);
(g) Appoint representatives of the
agency as members of ICAP subcommittees and working groups;
(h) Ensure that your agency’s internal policies and procedures are consistent with the requirements of OMB
Circulars A–126, A–76 and A–11, Federal
Aviation Administration Advisory Circular 120–92, and this part; and
(i) Ensure that safety and other critical aviation program requirements are
satisfied. Executive agencies that only
hire aircraft occasionally for specific
flights, must either:
(1) Establish an aviation program
that complies with the requirements of
OMB Circular A–126; or
(2) Hire those aircraft through an
agency with a policy-compliant aviation program.
a condition that is safe for flight because of its age, its physical condition,
a non-repairable defect, insufficient
documentation, or its non-conformance
with applicable standards/specifications.
U.S. Government Aircraft Cost Accounting Guide (CAG) means guidance for the
accounting of Government aircraft
costs published by GSA and is based on
the cost guidance within OMB Circular
A–126, OMB Circular A–76, FAIRS, and
the U.S. Government Standard General
Ledger.
RESPONSIBILITIES
§ 102–33.25 What are our responsibilities under this part?
Under this part, your responsibilities
are to—
(a) Acquire, manage, and dispose of
Federal aircraft (see the definition of
‘‘Federal aircraft’’ in § 102–33.20) and acquire and manage Commercial Aviation Services (CAS) (see the definition
for ‘‘CAS’’ in paragraph (2) of the definition of ‘‘Government aircraft’’ in
§ 102–33.20) as safely, efficiently, and effectively as possible consistent with
the nature of your agency’s aviation
missions;
(b) Document and report the—
(1) Types and numbers of your Federal aircraft;
(2) Costs of acquiring and operating
Government aircraft;
(3) Amount of time that your agency
uses Government aircraft; and
(4) Accidents and incidents involving
Government aircraft;
(c) Ensure that your Government aircraft are used only to accomplish your
agency’s official Government business;
(d) Ensure that all passengers traveling on your agency’s Government aircraft are authorized to travel on such
aircraft (see OMB Circular A–126);
(e) Appoint (by letter to the Deputy
Associate Administrator, Office of
Asset and Transportation Management, Office of Government-wide Policy, GSA) a Senior Aviation Management Official (SAMO), who will be your
agency’s primary member of the ICAP
(this paragraph (e) applies to all executive agencies that use aircraft, including the Department of Defense (DOD),
the Federal Aviation Administration
(FAA), and the National Transpor-
§ 102–33.30 What are the duties of an
agency’s Senior Aviation Management Official (SAMO)?
The duties of an agency’s Senior
Aviation Management Official (SAMO)
are to—
(a) Represent the agency’s views to
the ICAP and vote on behalf of the
agency as needed;
(b) Contribute technical and operational policy expertise to ICAP deliberations and activities;
(c) Serve as the designated approving
official for FAIRS when the agency
elects to have one person serve as both
the SAMO and the designated official
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§ 102–33.35
41 CFR Ch. 102 (7–1–16 Edition)
for FAIRS (DOD will not have a designated official for FAIRS); and
(d) Appoint representatives of the
agency as members of ICAP subcommittees and working groups.
Subpart B—Acquiring Government
Aircraft and Aircraft Parts
OVERVIEW
§ 102–33.50 Under what circumstances
may we acquire Government aircraft?
(a) When you meet the requirements
for operating an in-house aviation program contained in OMB Circular A–76,
‘‘Performance of Commercial Activities’’ and OMB Circular A–11, ‘‘Preparation, Submission, and Execution of
the Budget,’’ Part 2, ‘‘Preparation and
Submission of Budget Estimates,’’ Section 25.5, ‘‘Summary of Requirements,’’
Table 1, which refers to the Business
Case for Acquisition and Maintenance
of Aircraft, and Section 51.18, ‘‘Budgeting for the acquisition of capital assets,’’ subparagraph (d) (Both circulars
are
available
at
http://
www.whitehouse.gov/omb), you may—
(1) Acquire Federal aircraft when—
(i) Aircraft are the optimum means
of supporting your agency’s official
business;
(ii) You do not have aircraft that can
support your agency’s official business
safely (e.g., in compliance with applicable safety standards and regulations)
and cost-effectively;
(iii) No commercial or other Governmental source is available to provide
aviation services safely (i.e., in compliance with applicable safety standards
and regulations) and cost-effectively;
and
(iv) Congress has specifically authorized your agency to purchase, lease, or
transfer aircraft and to maintain and
operate those aircraft (see 31 U.S.C.
1343);
(2) Acquire Commercial Aviation
Services (CAS) when—
(i) Aircraft are the optimum means
of supporting your agency’s official
business; and
(ii) Using commercial aircraft and
services is safe (i.e., conforms to applicable laws, safety standards, and regulations) and is more cost effective than
using Federal aircraft, aircraft from
any other Governmental source, or
scheduled air carriers.
(b) When acquiring aircraft, aircraft
selection must be based on need, a
strong business case, and life-cycle cost
§ 102–33.35 How can we get help in
carrying out our responsibilities?
To get help in carrying out your responsibilities under this part, you
may—
(a) Call or write to GSA’s Aviation
Policy Division (see definition in § 102–
33.20); or
(b) Find additional aviation program
management information on the Internet at http://www.gsa.gov/aviationpolicy.
§ 102–33.40 What are some of GSA’s responsibilities for Federal aviation
management?
Under OMB Circular A–126, ‘‘Improving the Management and Use of Government
Aircraft,’’
(http://
www.whitehouse.gov/omb) GSA’s chief
responsibilities for Federal aviation
management are to maintain—
(a) A single office to carry out Governmentwide responsibilities for Government aircraft management, and
publishing that policy;
(b) An interagency committee (i.e.,
the ICAP), whose members represent
the executive agencies that use Government aircraft to conduct their official business (including FAA and NTSB
specifically) and advise and consult
with GSA on developing policy for
managing Government aircraft;
(c) A management information system to collect, analyze, and report information on the inventory, cost,
usage, and safety of Government aircraft; and
(d) A set of performance indicators,
policy recommendations, and guidance
for the procurement, operation, and
safety and disposal of Government aircraft.
NOTE TO § 102–33.40: See OMB Circular A–126
(http://www.whitehouse.gov/omb) for a complete listing of GSA’s responsibilities related
to Federal aviation.
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§ 102–33.75
(m) Inter-service support agreements
with other executive agencies for aircraft and services.
analysis, which conform to OMB Circular A–11, ‘‘Preparation, Submission,
and Execution of the Budget,’’ Part 2,
‘‘Preparation and Submission of Budget Estimates,’’ Section 25.5, ‘‘Summary
of Requirements,’’ Table 1, which refers
to the Business Case for Acquisition
and Maintenance of Aircraft (available
at http://www.whitehouse.gov/omb).
§ 102–33.65 What is the process for acquiring Government aircraft?
Acquiring Government aircraft, as
described in §§ 102–33.70 through 102–
33.105, generally follows a three-step
process:
(a) Planning;
(b) Budgeting; and
(c) Contracting.
§ 102–33.55 Are there restrictions on
acquiring Government aircraft?
Yes, you may not acquire—
(a) More aircraft than you need to
carry out your official business;
(b) Aircraft of greater size or capacity than you need to perform your Governmental functions cost-effectively;
or
(c) Federal aircraft that Congress has
not authorized your agency to acquire
or Federal aircraft or commercial aircraft and services for which you have
not followed the requirements in OMB
Circulars A–76 and A–11 (available at
http://www.whitehouse.gov/omb).
PLANNING TO ACQUIRE GOVERNMENT
AIRCRAFT
§ 102–33.70 What directives must we
follow when planning to acquire
Government aircraft?
When planning to acquire Government aircraft, you must follow the requirements in—
(a) 31 U.S.C. 1343, ‘‘Buying and Leasing Passenger Motor Vehicles and Aircraft’’;
(b) OMB Circular A–126, ‘‘Improving
the Management and Use of Government
Aircraft’’
(http://
www.whitehouse.gov/omb);
(c) OMB Circular A–11, Part 2, Section 25.5, Table 1, Business Case for Acquisition and Maintenance of Aircraft
(http://www.whitehouse.gov/omb);
(d) OMB Circular A–76, ‘‘Performance
of Commercial Activities’’ (http://
www.whitehouse.gov/omb); and
(e) OMB Circular A–94, ‘‘Guidelines
and Discount Rates for Benefit-Cost
Analysis of Federal Programs’’ (http://
www.whitehouse.gov/omb).
§ 102–33.60 What methods may we use
to acquire Government aircraft?
Following the requirements of §§ 102–
33.50 and 102–33.55, you (or an internal
bureau or sub-agency within your
agency) may acquire Government aircraft by means including, but not limited to—
(a) Purchase;
(b) Borrowing from a non-Federal
source;
(c) Bailment from another executive
agency;
(d) Exchange/sale;
(e) Reimbursable transfer from another executive agency (see §§ 102–36.75
and 102–36.80);
(f) Transfer from another executive
agency as approved by GSA;
(g) Reassignment from one internal
bureau or subagency to another within
your agency;
(h) Transfer of previously forfeited
aircraft;
(i) Insurance replacement (i.e., receiving a replacement aircraft);
(j) Capital lease;
(k) Rent or charter;
(l) Contract for full services (i.e., aircraft plus crew and related aviation
services) from a commercial source; or
§ 102–33.75 What other guidance is
available to us in planning to acquire Government aircraft?
You can find guidance for acquisition
planning in:
(a) The ‘‘Aviation Planning Desk
Guide’’ (available at http://www.gsa.gov/
aviationpolicy) and
(b) OMB’s ‘‘Capital Programming
Guide,’’ which is a supplement to OMB
Circular
A–11
(http://
www.whitehouse.gov/omb).
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§ 102–33.80
41 CFR Ch. 102 (7–1–16 Edition)
OMB CIRCULAR A–76
CONTRACTING TO ACQUIRE GOVERNMENT
AIRCRAFT
§ 102–33.80 Must we comply with OMB
Circular A–76 before we acquire
Government aircraft?
§ 102–33.100 What are our responsibilities when contracting to purchase
or capital lease a Federal aircraft
or to award a CAS contract?
Yes, before you acquire Government
aircraft, you must comply with OMB
Circular
A–76
(http://
www.whitehouse.gov/omb). If you are acquiring Federal aircraft, you must ensure that the private sector cannot
provide Government aircraft or related
aviation services more cost-effectively
than you can provide Federal aircraft
and related services.
In contracting to purchase or capital
lease a Federal aircraft or to award a
CAS contract, you must follow the
Federal Acquisition Regulation (FAR)
(48 CFR Chapter 1) unless your agency
is exempt from following the FAR.
§ 102–33.105 What minimum requirements must we put into our CAS
contracts?
THE PROCESS FOR BUDGETING TO
ACQUIRE GOVERNMENT AIRCRAFT
At a minimum, your CAS contracts
and agreements must require that any
provider of CAS comply with—
(a) Civil standards in 14 CFR that are
applicable to the type of operation(s)
you are asking the contractor to conduct;
(b) Applicable military standards; or
(c) Your agency’s Flight Program
Standards (see §§ 102–33.140 through 102–
33.185 for the requirements for Flight
Program Standards).
§ 102–33.90 What is the process for
budgeting to acquire a Federal aircraft (including a Federal aircraft
transferred from another executive
agency)?
(a) The process for budgeting to acquire a Federal aircraft or to accept a
Federal aircraft transferred from another executive agency requires that
you have specific authority from Congress in your appropriation, as called
for in 31 U.S.C. 1343, to—
(1) Purchase, capital lease, or lease a
Federal aircraft and to operate and
maintain it; or
(2) Accept a Federal aircraft transferred from another executive agency
and to operate and maintain it.
(b) For complete information on
budgeting to own Federal aircraft (i.e.,
large purchase of a capital asset), see
OMB Circular A–11, Part 2, Sections
25.1 and 51.18. Also see §§ 102–33.70 and
102–33.75.
ACQUIRING AIRCRAFT PARTS
§ 102–33.110 What are our responsibilities when acquiring aircraft parts?
When acquiring aircraft parts, you
must:
(a) Acquire the parts cost-effectively
and acquire only what you need;
(b) Inspect and verify that all incoming parts are documented as safe for
flight prior to installation;
(c) Obtain all logbooks (if applicable)
and maintenance records (for guidance
on maintaining records for non-military parts, see Federal Aviation Administration (FAA) Advisory Circular
43–9C, ‘‘Maintenance Records,’’ which
is available from the FAA at http://
www.faa.gov);
(d) Plan for adequate storage and
protection; and
(e) Refer to FAA Advisory Circular
21–29C, Change (2), ‘‘Detecting and Reporting Suspected Unapproved Parts’’
(http://www.faa.gov).
§ 102–33.95 What is the process for
budgeting to acquire Commercial
Aviation Services (CAS)?
Except for leases and capital leases,
for which you must have specific Congressional authorization as required by
31 U.S.C. 1343, you may budget to fund
your CAS out of your agency’s operating budget. Also see §§ 102–33.70 and
102–33.75.
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§ 102–33.140
§ 102–33.115 Are there requirements
for acquiring military Flight Safety
Critical Aircraft Parts (FSCAP)?
Yes, when you acquire military
Flight Safety Critical Aircraft Parts
(FSCAP), you must—
(a) Accept FSCAP only when it is
documented or traceable to its original
equipment manufacturer. A part’s DOD
FSCAP Criticality Code should be
marked or tagged on the part or appear
on its invoice/transfer document (see
§ 102–33.375 for further explanation of
the FSCAP Criticality Codes); and
(b) Not install undocumented, but
traceable FSCAP until you have the
parts inspected and recertified by the
original equipment manufacturer or
other FAA-approved facility (see § 102–
33.370 on FSCAP and AC 20–142).
§ 102–33.130 If we hire CAS, what are
our management responsibilities?
If you hire CAS, you are responsible
for—
(a)
Establishing
agency-specific
Flight Program Standards, as defined
in §§ 102–33.140 through 102–33.185, as applicable, and requiring compliance
with these standards in your contracts
and agreements;
(b) Accounting for the cost of your
aircraft and services hired as CAS;
(c) Accounting for the use of your
aircraft hired as CAS; and
(d) Reporting the cost and usage data
for your CAS hires (for reporting requirements, see subpart E of this part).
§ 102–33.135 Do we have to follow OMB
Circular A–123, ‘‘Management Accountability and Control,’’ for establishing management controls for
our aviation program?
§ 102–33.120 Are there requirements
for acquiring life-limited parts?
Yes, when you acquire new or used
life-limited parts, you must—
(a) Identify and inspect the parts, ensuring that they have civil or militarycertified documentation; and
(b) Mutilate and dispose of any expired life-limited parts (see § 102–33.370
on handling life-limited parts).
Yes, you must follow OMB Circular
A–123, ‘‘Management’s Responsibility
for Accountability and Control’’ (http://
www.whitehouse.gov/omb), when establishing management controls for your
aviation program. The circular requires that you establish organizations, policies, and procedures to ensure that, among other things, your
aviation program achieves its intended
results and you use your resources consistently with your agency’s missions.
Subpart C—Managing Government Aircraft and Aircraft
Parts
OVERVIEW
ESTABLISHING FLIGHT PROGRAM
STANDARDS
§ 102–33.125 If we use Federal aircraft,
what are our management responsibilities?
If you use Federal aircraft, you are
responsible for—
(a)
Establishing
agency-specific
Flight Program Standards, as defined
in §§ 102–33.140 through 102–33.185;
(b) Accounting for the cost of acquiring, operating, and supporting your
aircraft;
(c) Accounting for the use of your
aircraft;
(d) Maintaining and accounting for
aircraft parts;
(e) Reporting inventory, cost, and
utilization data (for reporting requirements, see subpart E of this part); and
(f) Properly disposing of aircraft and
parts following §§ 102–33.240 through
102–33.375.
§ 102–33.140 What are Flight Program
Standards?
Flight Program Standards are the
minimum requirements that must be
incorporated into your flight programs
to ensure that your aircraft are operated safely, effectively, and efficiently.
These requirements must:
(a) Be specific to your agency’s aviation operations, including your CAS;
(b) Meet the requirements identified
in §§ 102–33.155 through 102–33.185.
(c) Meet or exceed applicable civil or
military rules (in particular 49 U.S.C.
40102(a)(37) and 40125), and applicable
FAA regulations); and
(d) Incorporate risk management
techniques when civil or military rules
do not apply.
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§ 102–33.145
41 CFR Ch. 102 (7–1–16 Edition)
(g) Reporting to FAIRS as required
by this part.
§ 102–33.145 Why must we establish
Flight Program Standards?
You must establish Flight Program
Standards because Title 14 of the Code
of Federal Regulations (14 CFR) may
not cover or address all aspects of your
agency’s flight program, such as noncertificated aircraft, high-risk operations, special personnel requirements,
etc.
MANAGEMENT/ADMINISTRATION
§ 102–33.160 What standards must we
establish or require (contractually,
where applicable) for management/
administration of our flight program?
For management/administration of
your flight program, you must establish or require (contractually, where
applicable)—
(a) A management structure responsible for the administration, operation,
safety, training, maintenance, and financial needs of your aviation operation (including establishing minimum
requirements for these items for any
commercial contracts); and
(b) Guidance describing the roles, responsibilities, and authorities of your
flight program personnel, e.g., managers, pilots and other crewmembers,
flight safety personnel, maintenance
personnel, administrative personnel
and dispatchers.
§ 102–33.150 What
Federally-funded
aviation activities of executive
agencies are exempt from establishing Flight Program Standards
under this part?
The following Federally-funded activities are exempt from establishing
Flight Program Standards under this
part:
(a) The Armed Forces (which includes
the U.S. Coast Guard);
(b) Agencies in the Intelligence Community; and
(c) Entities outside the executive
branch of the Federal Government
when using aircraft loaned to them by
an executive agency (that is, owned by
an executive agency, but operated by
and on behalf of the loanee) unless the
loanee—
(1) Uses the aircraft to conduct official Government business; or
(2) Is required to follow §§ 102–33.140
through 102–33.185 under a Memorandum of Agreement governing the
loan.
OPERATIONS
§ 102–33.165 What standards must we
establish or require (contractually,
where applicable) for operation of
our flight program?
For operation of your flight program,
you must establish or require (contractually, where applicable)—
(a) Basic qualifications and currency
requirements for your pilots and other
crewmembers, maintenance personnel,
administrative personnel and other
mission-related personnel;
(b) Limitations on duty time and
flight time for pilots and other crewmembers;
(c) Procedures to record and track
flight time, duty time, training of
crewmembers, and applicable medical
requirements;
(d) Compliance with owning-agency
or military safety of flight notices and
operational bulletins;
(e) Flight-following procedures to notify management and initiate search
and rescue operations for lost or
downed aircraft;
(f) Dissemination, as your agency determines appropriate, of a disclosure
statement to all crewmembers and
§ 102–33.155 How must we establish
Flight Program Standards?
To establish Flight Program Standards, you must write, publish (as appropriate), implement, and comply
with standards (specific to your agency), which establish or require (contractually, where applicable) policies
and procedures for—
(a) Management/administration of
your flight program (in this part,
‘‘flight program’’ includes CAS contracts);
(b) Operation of your flight program;
(c) Maintenance of your Government
aircraft;
(d) Training for your flight program
personnel;
(e) Safety of your flight program;
(f) Accident reporting and investigation as appropriate; and
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31
Federal Management Regulation
§ 102–33.175
qualified non-crewmembers who fly
aboard your agency’s Government aircraft (see Appendix A to this part);
(g) Creation of a manifest, at the origin of each flight, that contains the
full names of all persons on board for
each leg of flight, a point of contact for
each person, and phone numbers for the
points of contact;
(h) Documentation of any changes in
the manifest by leg, and retention of
manifests for two years from the time
of flight;
(i) Procedures for reconciling flight
manifests with persons actually on
board and a method to test those procedures periodically;
(j) At the origin of each flight, preparation of a complete weight and balance computation and a cargo-loading
manifest, and retention of this computation and manifest for 30 days from
the date of flight;
(k) Appropriate emergency procedures and equipment for specific missions;
(l) Procedures to ensure that required
Aviation Life Support Equipment
(ALSE) is inspected and serviceable;
and
(m) Procedures to implement a ‘‘risk
assessment’’ before each flight and/or
as frequently as necessary that include
such items as weather, crew rest, type
of flight (low level, Instrument Flight
Rules (IFR), night, etc.) crew makeup,
etc. This process should be accomplished in accordance with your agency’s operations, flight dispatch, or
flight following procedures/program.
(3) FAA-approved programs (i.e., following the applicable parts of 14 CFR);
(4) FAA-accepted programs (i.e.,
those following ICAP guides or similar
programs that have been accepted by
the FAA); or
(5) Your agency’s self-prescribed programs;
(c) Compliance with owning-agency
or military safety of flight notices,
FAA airworthiness directives, advisory
circulars and orders, or mandatory
manufacturers’ bulletins applicable to
the types of aircraft, engines, propellers, and appliances you operate;
(d) Procedures for operating aircraft
with inoperable instruments and equipment (i.e., Minimum Equipment Lists
and Configuration Deviation Lists);
(e) Technical support, including appropriate engineering documentation
and testing, for aircraft, powerplant,
propeller, or appliance repairs, modifications, or equipment installations;
(f) A quality control system for acquiring replacements, ensuring that
the parts you acquire are suitable replacement parts and have the documentation needed to determine that
they are safe for flight and are inspected and tested, as applicable;
(g) Procedures for recording and
tracking maintenance actions; inspections; and the flight hours, cycles, and
calendar times of life-limited parts and
FSCAP; and
(h) The use of alternative aviation
fuels in fleet aircraft to the maximum
extent possible consistent with the
availability of approved alternative
fuels and aircraft operating procedures
or manuals for those aircraft.
MAINTENANCE
§ 102–33.170 What standards must we
establish or require (contractually,
where applicable) for maintenance
of our Government aircraft?
TRAINING
§ 102–33.175 What standards must we
establish or require (contractually,
where applicable) to train our flight
program personnel?
For maintenance of your Government aircraft, you must establish or
require (contractually, where applicable)—
(a) Procedures to record and track
duty time and training of maintenance
personnel;
(b) Aircraft maintenance and inspection programs that comply with whichever is most applicable among—
(1) Programs for ex-military aircraft;
(2) Manufacturers’ programs;
You must establish or require (contractually, where applicable) the following standards to train your flight
program personnel—
(a) An instructional program to train
your flight program personnel, initially and on a recurrent basis, in their
roles, responsibilities, authorities, and
in the operational skills relevant to
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§ 102–33.180
41 CFR Ch. 102 (7–1–16 Edition)
(ii) A procedure or system for disseminating accident-prevention information;
(iii) Safety training;
(iv) An aviation safety awards program that includes applying for the annual Federal Aviation Awards as appropriate;
(v) An annual review to ensure compliance with the GSA Gold Standard
Program; and
(vi) A safety council or committee
(applies to Federal aircraft-owning
agencies);
(b) Procedures and processes for risk
analysis and risk management that
identify and mitigate hazards through
formal administrative and engineering
controls and provide recommendations
to senior level managers for managing
risk to an optimum level;
(c) Policies that require the use of
independent, unbiased inspectors to
verify compliance with the standards
called for in this;
(d) Procedures for reporting unsafe
operations to agency aviation safety
officers and senior aviation safety
managers without reprisal;
(e) A system to collect and report information on aircraft accidents and incidents (as required by 49 CFR part 830
and 41 CFR 102–33.445 and 102–33.450);
(f) Policies that identify clear standards for acceptable behavior; and
(g) A security program that includes—
(1) A designated security manager;
(2) A threat assessment process;
(3) Procedures for preventing and deterring unlawful acts;
(4) Procedures for responding to
threats and unlawful acts;
(5) Security training for personnel;
and
(6) Policies and procedures for a mail
security plan that meet the mail security requirements contained in FMR
102–192, ‘‘Mail Management,’’ Subpart
C, ‘‘Security Requirements for All
Agencies,’’ §§ 102–192.70 through 102–
192.80. Specifically, section 102–192.80
identifies topics that must be addressed in an agency’s mail security
plan, to include a plan to protect staff
the types of operations that you conduct. Flight program personnel may include, e.g., managers, pilots and other
crewmembers, flight safety personnel,
maintenance personnel, administrative
personnel and dispatchers; and
(b) An instructional program that
meets the specific requirements for
safety manager training identified in
§ 102–33.180(a).
SAFETY
§ 102–33.180 What standards should we
establish or require (contractually,
where applicable) for aviation safety management?
You should establish or require (contractually, where applicable) the following aviation safety management
standards:
(a) By June 30, 2015, a Safety Management System (SMS) that complies with
the FAA’s current Advisory Circular
that addresses Safety Management
Systems (SMS) or an equivalent internationally recognized SMS standard.
The SMS should include:
(1) Policies that define clear roles
and responsibilities for implementing
an SMS. This includes ensuring that
senior level management has the ultimate responsibility for your SMS. It
also includes appointing members of
management as qualified aviation safety managers and safety officers (i.e., individuals who are responsible for an
agency’s aviation safety program, regardless of title), who should be—
(i) Experienced as pilots, crewmembers, maintenance personnel, or
have experience in aviation management or aviation maintenance program
management; and
(ii) Graduated or certificated from an
aviation safety officer course provided
by a recognized training provider and
authority in aviation safety before appointment or within one year after appointment; and
(2) A program for preventing accidents, which includes—
(i) Measurable accident prevention
procedures (e.g., safety reviews, clear
roles and responsibilities, operations
and maintenance procedures, pilot and
mechanic proficiency evaluations, fire
drills, hazard analyses);
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Federal Management Regulation
§ 102–33.195
and all other occupants of agency
cilities from hazards that might be
livered in the mail, which would
clude an agency’s use of aircraft
mail delivery.
fadeinfor
ceased persons’ points of contact (listed on the manifest), and to the families
of injured or deceased crewmembers
and qualified non-crewmembers.
§ 102–33.185 What standards must we
establish or require (contractually,
where applicable) for responding to
aircraft accidents and incidents?
NOTE TO § 102–33.185: This part does not supersede any of the regulations in 49 CFR
parts 830 and 831. For definitions of terms
and complete regulatory guidance on notifying the NTSB and reporting aircraft accidents and incidents, see 49 CFR parts 830 and
831.
You must establish or require (contractually, where applicable) the following standards for responding to aircraft accidents and incidents:
(a) An aircraft accident/incident reporting policy to ensure that you will
comply with the National Transportation Safety Board’s (NTSB) regulations (located in 49 CFR parts 830 and
831), including notifying NTSB immediately when you have an aircraft accident or an incident as defined in 49
CFR 830.5. In addition, this policy must
contain a method of notifying the U.S.
General Services Administration of an
accident or incident that was reported
to the NTSB. Refer to §§ 102–33.445 and
102–33.450 for further information;
(b) An agency, bureau, or field level
accident/incident response plan, modeled on the NTSB’s ‘‘Federal Plan for
Aviation Accidents Involving Aircraft
Operated by or Chartered by Federal
Agencies,’’ and periodic disaster response exercises to test your plan. A
copy of the NTSB’s plan is available at
http://www.ntsb.gov. The plan should
also refer to or incorporate procedures
(as outlined in FAA Advisory Circular
120–92) to identify the potential for accidents or incidents;
(c) Procedures (see 49 CFR 831.11) for
participation as a party to NTSB accident or incident investigations involving aircraft that your agency either
owns or hires, and for conducting parallel investigations, as appropriate;
(d) Training in investigating accidents/incidents for your agency’s personnel who may be asked to participate
in NTSB investigations or to conduct a
parallel investigation; and
(e) Procedures for disseminating, in
the event of an aviation disaster that
involves one of your Government aircraft, information about eligibility for
benefits contained in the disclosure
statement in appendix A of this part to
anyone injured, to the injured or de-
ACCOUNTING FOR THE COSTS OF
GOVERNMENT AIRCRAFT
§ 102–33.190 What are the aircraft operations and ownership costs for
which we must account?
You must account for the operations
and ownership costs of your Government aircraft, including your Unmanned Aircraft Systems (UAS), as described in the ‘‘U.S. Government Aircraft Cost Accounting Guide’’ (CAG),
available
at
(http://www.gsa.gov/
aviationpolicy), which follows OMB Circular A–126 (http://www.whitehouse.gov/
omb). To account for aircraft costs, you
must do at least the following:
(a) Justify acquisitions to support
the agency’s aviation program;
(b) Justify the use of Government
aircraft in lieu of commercially available aircraft, and the use of one Government aircraft in lieu of another;
(c) Develop a variable cost rate for
each aircraft or aircraft type (i.e.,
make and model) in your inventory;
(d) Recover the costs of operating
Government aircraft;
(e) Determine the cost effectiveness
of various aspects of agency aircraft
programs; and
(f) Accumulate aircraft program
costs following the procedures defined
in the CAG, available at (http://
www.gsa.gov/aviationpolicy).
§ 102–33.195 Do we need an automated
system to account for aircraft costs?
(a) Yes, if you own Federal aircraft
or operate bailed aircraft, you must
maintain an automated system to account for aircraft costs by collecting
the cost data elements required by
FAIRS. The functional specifications
and data definitions for a FAIRS-compliant system are described in the
‘‘Common Aviation Management Information Standard’’ (C–AMIS), which is
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§ 102–33.200
41 CFR Ch. 102 (7–1–16 Edition)
ACCOUNTING FOR THE USE OF
GOVERNMENT AIRCRAFT
available from the Aviation Policy Division. See §§ 102–33.395, 102–33.405, and
102–33.410 for more information on
FAIRS, and §§ 102–33.455 and 102–33.460
for more information on C–AMIS.
(b) Agencies that use only CAS aircraft and do not have Federal aircraft
must keep records adequate for reporting information through FAIRS, but
are not required to have an automated
system. See §§ 102–33.435 and 102–33.440
for the information on CAS that you
must report through FAIRS.
§ 102–33.210 How do we account for
the use of our Government aircraft?
To account for the use of Government aircraft, including your Unmanned Aircraft Systems (UAS), you
must document all flights and keep
this documentation for two years after
the date of the flight. For each flight,
record the—
(a) Aircraft’s registration mark;
(b) Owner and operator (the owner
may not be the operator, as is the case
when a CAS aircraft, owned commercially, is operated by U.S. Government
personnel);
(c) Purpose of the flight (the Governmental function that the aircraft was
dispatched to perform);
(d) Departure and destination points;
(e) Flight date(s) and times;
(f) Manifest (see § 102–33.165(g) and
(h)); and
(g) Name(s) of the pilot(s) and crewmembers.
§ 102–33.200 Must we periodically justify owning and operating Federal
aircraft?
Yes, after you have held a Federal
aircraft for five years, you must:
(a) Justify owning and operating the
aircraft by reviewing your operations
and establishing that you have a continuing need for the aircraft, using the
procedures required in OMB Circular
A–76 and OMB Circular A–11, Part 7,
Appendix B, Budgetary treatment of
lease-purchases and leases of capital
assets; and
(b) Review the continuing need for
each of your aircraft and the cost-effectiveness of your aircraft operations
as directed by OMB Circulars A–11 and
A–76, every five years.
§ 102–33.215 May we use Government
aircraft to carry passengers?
Yes, you may use Government aircraft to carry passengers with the following restrictions:
(a) You may carry passengers only on
aircraft that you operate or require
contractually to be operated in accordance with the rules and requirements
in 14 CFR; and
(b) For certain kinds of travel, your
agency must justify passengers’ presence on Government aircraft. See OMB
Circular A–126 and the Federal Travel
Regulation (FTR) §§ 301–10.260 through
301–10.266, and 301–70.800 through 301–
70.808, and 301–70.910 (41 CFR 301–10.260
through 301–10.266, 301–70.800 through
301–70.808, and 301–70.910) for complete
information on authorizing travel and
analyzing costs before authorizing
travel on Government aircraft.
§ 102–33.205 When we use our aircraft
to support other executive agencies,
must we recover the operating
costs?
Yes, you must recover the following:
(a) Under 31 U.S.C. 1535 and other
statutes, you may be required to recover the costs of operating aircraft in
support of other agencies. Depending
on the statutory authorities under
which you acquired and operate your
aircraft, you will use either of the following two methods for establishing
the rates charged for using your aircraft:
(1) The variable cost recovery rate; or
(2) The full cost recovery rate.
(b) See the U.S. Government Aircraft
Cost Accounting Guide (CAG) (http://
www.gsa.gov/aviationpolicy),
for
the
definitions of ‘‘variable cost recovery
rate’’ and ‘‘full cost recovery rate.’’
§ 102–33.220 What are the responsibilities of our aviation program in justifying the use of a Government aircraft to transport passengers?
After receiving a request from your
agency, your aviation program’s responsibilities in justifying the use of a
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Federal Management Regulation
§ 102–33.240
Government aircraft to transport passengers are to your travel approving
authority:
(a) Cost estimates to assist in determining whether or not use of a Government aircraft to carry passengers is
justified. See OMB Circular A–126
(http://www.whitehouse.gov/omb)
for
more information on justifying travel
on Government aircraft. See also FTR
§§ 301–10.260 through 301–10.266, and 301–
70.800 through 301–70.808, and 301–70.910
(41 CFR 301–10.260 through 301–10.266,
301–70.800 through 301–70.808, and 301–
70.910) for guidance on estimating the
cost of using a Government aircraft.
The cost of using a Government aircraft is—
(1) The variable cost of using a Federal aircraft;
(2) The amount your agency will be
charged by a CAS provider; or
(3) The variable cost of using an aircraft owned by another agency as reported by the owning agency; and
(b) Information to assist in the analysis of alternatives to travel on Government aircraft. The information
must include the following:
(1) If no follow-on trip is scheduled,
all time required to position the aircraft to begin the trip and to return
the aircraft to its normal base of operations;
(2) If a follow-on trip requires repositioning, the cost for the repositioning
should be charged to the associated follow-on trip;
(3) If an aircraft supports a multi-leg
trip (a series of flights scheduled sequentially), the use of the aircraft for
the total trip may be justified by comparing the total variable cost of the entire trip to the commercial aircraft
cost (including charter) for all legs of
the trip; and
(4) The use of foreign aircraft as CAS
is authorized when the agency has determined that an equivalent level of
safety exists as compared to U.S. operations of a like kind. The safety of passengers shall be the overriding consideration for the selection of travel mode
when comparing foreign sources of
scheduled
CAS.
commercial
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and
MANAGING AIRCRAFT PARTS
§ 102–33.225 How must we manage aircraft parts?
You must manage your aircraft parts
by maintaining proper storage, protection, maintenance procedures, and
records for the parts throughout their
life cycles.
§ 102–33.230 May we use military
FSCAP on non-military FAA-type
certificated Government aircraft?
You may use dual-use military
FSCAP on non-military aircraft operated under restricted or standard airworthiness certificates if the parts are
inspected and approved for such installation by the FAA. See detailed guidance in FAA Advisory Circular 20–142,
Change (1), ‘‘Eligibility and Evaluation
of U.S. Military Surplus Flight Safety
Critical Aircraft Parts, Engines, and
Propellers’’ (http://www.faa.gov).
§ 102–33.235 What documentation must
we maintain for life-limited parts
and FSCAP?
For life-limited parts and FSCAP,
you must hold and update the documentation that accompanies these
parts for as long as you use or store
them. When you dispose of life-limited
parts or FSCAP, the up-to-date documentation must accompany the parts.
(See § 102–33.370.)
Subpart D—Disposing or Replacing of Government Aircraft
and Aircraft Parts
OVERVIEW
§ 102–33.240 What must we consider
before disposing or replacing aircraft and aircraft parts?
Before disposing of aircraft and aircraft parts, you must first determine if
the aircraft or parts are excess to your
agency’s mission or, if your aircraft or
parts are not excess, if you will need
replacements, as follows:
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§ 102–33.245
41 CFR Ch. 102 (7–1–16 Edition)
(a) If your aircraft/parts are . . .
And . . .
Then . . .
No longer needed to perform their mission(s) for your
agency, i.e., they are excess to your needs,
You do not need to replace
them,
You must report them to GSA as excess
property (see 41 CFR 102–36.45(e)).
(b) If your aircraft/parts are . . .
And . . .
Then . . .
No longer suitable, or capable of performing their mission(s) for your agency,
You do need to replace
them,
You may consider using the exchange/
sale authority (see 41 CFR part 102–
39).
§ 102–33.260 When we report as excess,
or replace, an aircraft (including a
declassified aircraft), must we report the change in inventory to the
Federal Aviation Interactive Reporting System (FAIRS)?
§ 102–33.245 May we report as excess,
or replace (i.e., by exchange/sale),
both operational and non-operational aircraft?
Yes, you may report as excess, or replace both operational and non-operational aircraft by following the rules
governing excess personal property and
exchange/sale (see 41 CFR parts 102–36
and 102–39, respectively).
§ 102–33.250
craft?
May
we
declassify
(a) Yes. When you report as excess or
replace an aircraft you must report the
change in inventory to FAIRS. For
more information see § 102–33.405.
(b) Within 14 calendar days of the
date you dispose of the aircraft, you
must report—
(1) The disposal method (e.g., reassignment, inter-agency transfer, donation, sale as surplus or scrap, declassification, or exchange/sale);
(2) The disposal date; and
(3) The identity and type of recipient
(e.g., State, educational institution, executive agency, commercial vendor).
air-
Yes, you may declassify aircraft (See
§§ 102–33.415 and 102–33.420).
(a) A declassified aircraft is no longer
considered an aircraft, but may be considered as a group of aircraft parts or
other property for ground use only.
(b) You must retain documentation
and traceability on all parts that are
intended for use as replacement parts
on other aircraft. You must carry such
‘‘aircraft parts or other property’’ on
your property records under the appropriate Federal Supply Classification
group(s) (e.g., miscellaneous property).
(c) For disposal of the property remaining after declassification of an
aircraft, you must follow the property
disposal regulations in 41 CFR parts
102–36, 102–37, 102–38 and 102–39.
REPORTING EXCESS FEDERAL AIRCRAFT
§ 102–33.265 What must we do with aircraft that are excess to our needs?
If aircraft are excess to your needs,
you must:
(a) Reassign the aircraft within your
agency if any of your sub-agencies can
use the aircraft; or
(b) Report the aircraft as excess property to GSA (see 41 CFR part 102–36) if
none of your sub-agencies can use the
aircraft.
§ 102–33.255 Must we document FSCAP
or life-limited parts installed on aircraft that we will report as excess
or replace?
§ 102–33.270 What is the process for reporting an excess aircraft?
To report an excess aircraft, you
must:
(a) Report electronically to GSA’s
Federal Disposal System GSAXcess®
(http://gsaxcess.gov). For information on
reporting excess property electronically, contact the Federal Acquisition
Service (FAS), Pacific Rim Region (Region 9) at (415) 522–2777; and
(b) Submit a Standard Form (SF) 120,
Report of Excess Personal Property
Yes, you must comply with the documentation procedures described in
§ 102–33.370 if your aircraft and/or engines contain FSCAP or life-limited
parts that you will report as excess or
replace.
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Federal Management Regulation
§ 102–33.285
with 14 CFR Chapter I, or other applicable standards, by obtaining all necessary FAA inspections or modifications.
The purchaser/recipient agrees that
the Government shall not be held liable
for personal injuries to, disabilities of,
or death of the purchaser/recipient, the
purchaser’s/recipient’s employees, or to
any other persons arising from or incident to the purchase of this aircraft,
its use, or disposition. You will hold
the Government harmless from any or
all debts, liabilities, judgments, costs,
demands, suits, actions, or claims of
any nature arising from or incident to
the purchase, use, or resale of this
item. This aircraft may have been operated outside the limitations of 14
CFR Chapter I, and some type of inspection may be needed to determine
its airworthiness prior to being flown.
You should be aware of the items below
prior to operating this aircraft.
• All civil and public aircraft must
have a valid registration issued by the
FAA as required by 14 CFR Chapter I.
• Civil aircraft must have a valid airworthiness certificate in order to operate in the U.S. airspace.
• In order for the aircraft to be eligible for a standard airworthiness certificate, the aircraft must conform to its
FAA Type Certificate.
• Aircraft not having a valid airworthiness certificate may be eligible
for a special FAA one-time flight permit to enable relocating the aircraft.
Relocation can be for a number of reasons, including storage, repair, inspection, or public display. Any one-time
flight approval is predicated on the aircraft being safe for flight.
• Individuals who purchase a surplus
military (foreign or domestic) or foreign aircraft not having any type of
FAA Type Certificate may be unable to
obtain any type of airworthiness certificate or special flight permit.
• An aircraft with good maintenance
and inspection records makes an airworthiness determination easier to ascertain. It is in your best interest to
contact the nearest FAA Flight Standards District Office and discuss your
responsibilities with respect to gaining
an airworthiness determination. The
location of your nearest FAA office
(see § 102–2.135), to: General Services
Administration, Federal Acquisition
Service, Pacific Rim Region, 450 Golden Gate Avenue, 4th Floor West, San
Francisco, CA, 94102–3434.
REPLACING AIRCRAFT THROUGH
EXCHANGE/SALE
§ 102–33.275 What should we consider
before
replacing
our
aircraft
through exchange/sale?
Before an exchange/sale of your aircraft, you should consider whether:
(a) You have a continuing need for
similar property and that the property
being exchanged or sold is not excess or
surplus; and
(b) The exchange/sale meets all other
requirements in 41 CFR part 102–39.
§ 102–33.280 What are our options if we
need a replacement aircraft?
If you need to replace an aircraft,
your options are—
(a) Negotiating and conducting an exchange transaction directly with an
aircraft provider and obtaining credit
toward the purchase of a replacement
aircraft, following the procurement
rules applicable to your agency; or
(b) Selling the aircraft and using the
proceeds to offset the cost of purchasing a replacement aircraft, following 41 CFR part 102–39. Sales Centers (SC) that are currently authorized
to conduct sales, as well as contact information for the GovSales Program
Manager, are available on the GovSales
Web site at http://www.gsa.gov/portal/
content/105020.
§ 102–33.285 Do we need to include any
special disclaimers in our exchange/
sale agreements for non-certificated
aircraft or aircraft that we have operated as public aircraft (i.e., not in
compliance with 14 CFR)?
Yes, when you exchange/sell non-certificated aircraft or aircraft maintained as public aircraft, you must ensure that the exchange/sale offerings
contain the following statement:
‘‘Warning to purchasers/recipients. The
aircraft you are purchasing or receiving in an exchange may not be in compliance with applicable Federal Aviation Administration (FAA) requirements. You are solely responsible for
bringing the aircraft into compliance
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§ 102–33.295
41 CFR Ch. 102 (7–1–16 Edition)
may be obtained from the FAA’s Web
site (http://www.faa.gov/).
• When the aircraft is purchased for
spare parts and the airframe is
scrapped, you should declassify the aircraft (see § 102–33.420 for more information), complete the back of the aircraft’s registration form and send it to:
The FAA Aircraft Registration Branch,
P.O. Box 25504, Oklahoma City, OK
73125–0504.’’
§ 102–33.315 What are the procedures
for mutilating unsalvageable aircraft parts?
When mutilating unsalvageable aircraft parts, you must—
(a) Destroy the data plates, remove
the serial/lot/part numbers, and cut,
crush, grind, melt, burn, or use other
means to prevent the parts from being
misidentified or used as serviceable
aircraft parts. Call your regional FAA
Flight Standards District Office for additional guidance;
(b) Ensure that an authorized official
of your agency witnesses and documents the mutilation; and
(c) Retain a signed certification and
statement of mutilation.
§ 102–33.295 May we exchange/sell an
aircraft
through
reimbursable
transfer to another executive agency or conduct a negotiated sale at
fixed price to a State Agency for
Surplus Property (SASP)?
Yes, you may exchange/sell an aircraft through reimbursable transfer to
another executive agency or conduct a
negotiated sale at fixed price to a State
Agency for Surplus Property (SASP)
(see § 102–39.55 for more information).
§ 102–33.320 What must we do if we are
unable to perform required mutilation of aircraft parts?
If you are unable to perform the required mutilation of aircraft parts, you
must turn the parts in to a Federal or
Federally-approved facility for mutilation and proper disposition. Ensure
that any contractor follows the provisions of § 102–33.315 for mutilating and
disposing of the parts.
NOTE TO § 102–33.295: Some agencies may
also have special congressional authorization to recover costs.
DISPOSING OF AIRCRAFT PARTS
§ 102–33.300 What must we consider
before disposing of aircraft parts?
§ 102–33.325 What documentation must
we furnish with excess, surplus or
replaced parts when they are transferred, donated, or exchanged/sold?
When you transfer, donate, or exchange/sell excess, surplus or replaced
parts, you must—
(a) Furnish all applicable labels,
tags, and historical and modification
records for serviceable aircraft parts;
(b)
Mark
mutilated
parts
as
unsalvageable (mutilated parts may be
sold only for scrap; see § 102–33.315); and
(c) Ensure that all available tags, labels, applicable historical data, lifehistories, and maintenance records accompany FSCAP and life-limited parts
and that FSCAP criticality codes (see
§ 102–33.375) are perpetuated on documentation (see § 102–33.330 for additional requirements).
Before disposing of aircraft parts,
you must first determine if they are
excess to your agency’s mission requirements or, if the aircraft parts are
not excess, if you will need replacements. The table in § 102–33.240 shows
the differences between excess and replacement parts.
§ 102–33.305 May we report as excess,
or replace, FSCAP and life-limited
parts?
Yes, you may report as excess, or replace, FSCAP and life-limited parts,
but they require special handling. See
the tables in § 102–33.370.
§ 102–33.310 May we report as excess,
or replace, unsalvageable aircraft
parts?
No,
you
may
not
report
unsalvageable aircraft parts as excess
or exchange/sale them for replacements.
You
must
mutilate
unsalvageable parts. You may sell the
mutilated parts only as scrap or report
that scrap to GSA for sale.
REPORTING EXCESS AIRCRAFT PARTS
§ 102–33.330 What must we do with aircraft parts that are excess to our
needs?
If aircraft parts are excess to your
needs, you must:
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Federal Management Regulation
§ 102–33.355
makes no representation as to a part’s
conformance with the FAA requirements.
(a) Reassign the aircraft parts within
your agency if any of your sub-agencies
can use the parts; or
(b) Report the excess parts to GSA,
using Standard Form (SF) 120, ‘‘Report
of Excess Personal Property’’ (see § 102–
2.135 for information to obtain this
form). When reporting excess FSCAP,
you must include the manufacturer’s
name, date of manufacture, part number, serial number, and the appropriate
Criticality Code on the SF 120. For information on reporting excess property, refer to http://gsaxcess.gov. (See 41
CFR part 102–36 regarding disposal of
excess property.)
§ 102–33.345 What are the responsibilities of a State Agency for Surplus
Property (SASP) in the donation of
Federal Government aircraft parts?
When a SASP accepts surplus Federal Government aircraft parts for donation, the SASP must:
(a) Review donation and transfer documents for completeness and accuracy,
and ensure that the certification in
§ 102–33.340 is included;
(b) Ensure that when the donee determines the part to be unsalvageable, the
donee mutilates the part following the
procedures in § 102–33.315; and
(c) Ensure that the donee retains,
maintains, and perpetuates all documentation for serviceable parts (parts
intended for flight use).
§ 102–33.335 What are the receiving
agency’s responsibilities in the
transfer of aircraft parts?
An agency that receives transferred
aircraft parts must:
(a) Verify that all applicable labels
and tags and historical and modification records accompany all serviceable
aircraft parts (i.e., parts that are intended for flight use) that you receive.
This requirement does not apply to
parts for ground use only. See the tables in § 102–33.370.
(b) Mutilate all transferred parts
that you discover to be unsalvageable,
and dispose of them properly, following
the procedures in § 102–33.315.
REPLACING AIRCRAFT PARTS THROUGH
EXCHANGE/SALE
§ 102–33.350 What do we need to consider for an exchange/sale of our
aircraft parts?
(a) When replacing aircraft parts
through exchange/sale you—
(1) Do not need approval from GSA;
and
(2) Must follow the provisions of this
subpart and part 102–39 of this chapter.
(b) Replacement parts do not have to
be for the same type or design of aircraft, but you must use the exchange
allowance or sales proceeds to purchase
aircraft parts to support your aviation
program which meet the ‘‘similarity’’
requirement in 41 CFR part 102–39.
§ 102–33.340 What are GSA’s responsibilities in disposing of excess and
surplus aircraft parts?
In disposing of excess aircraft parts,
the GSA FAS office in your region:
(a) Reviews your SF 120, Report of
Excess Personal Property (see § 102–
2.135 for information to obtain this
form) for completeness and accuracy
(of status, condition, and FSCAP and
demilitarization codes if applicable);
and
(b) Ensures that the following certification is included on disposal documents (e.g., transfer orders or purchasers’ receipts):
Because of the critical nature of the
failure of aircraft parts and the resulting potential safety threat, recipients
of aircraft parts must ensure that any
parts installed on an aircraft meet applicable Federal Aviation Administration (FAA) requirements and must obtain
required
certifications.
GSA
§ 102–33.355 May we exchange/sell aircraft parts through a reimbursable
transfer to another executive agency or conduct a negotiated sale at
fixed price to a State Agency for
Surplus Property (SASP)?
Yes, you may exchange/sell aircraft
parts through a reimbursable transfer
to another executive agency, or conduct a negotiated sale at fixed price to
a SASP (see § 102–39.55 for more information).
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§ 102–33.360
41 CFR Ch. 102 (7–1–16 Edition)
• All civil and public aircraft must
have a valid registration issued by the
FAA as required by 14 CFR Chapter I.
• Civil aircraft must have a valid airworthiness certificate in order to operate in U.S. airspace.
• In order for the aircraft to be eligible for a standard airworthiness certificate, the aircraft must conform to its
FAA Type Certificate.
• Aircraft not having a valid airworthiness certificate may be eligible
for a special FAA one-time flight permit to enable relocating the aircraft.
Relocation can be for a number of reasons, perhaps including storage, repair,
inspection, or public display. Any onetime flight approval is predicated on
the aircraft being safe for flight.
• Individuals who purchase a surplus
military (foreign or domestic) or foreign aircraft not having any type of
FAA Type Certificate may be unable to
obtain any type of airworthiness certificate or special flight permit.
• An aircraft with good maintenance
and inspection records makes an airworthiness determination easier to ascertain. It is in your best interest to
contact the nearest FAA Flight Standards District Office and discuss your
responsibilities with respect to gaining
an airworthiness determination. The
location of your nearest FAA office
may be obtained from the FAA’s Web
site (http://www.faa.gov/).’’
(b) Authorized SCs can conduct sales
of aircraft parts for you. SCs that are
currently authorized to conduct sales,
as well as contact information for the
GovSales Program Manager, are available on the GovSales Web site at http://
www.gsa.gov/portal/content/105020.
§ 102–33.360 What is the process for exchanging/selling aircraft parts for
replacement?
(a) You or your agent (i.e., another
Federal agency or an authorized Sales
Center) may transact an exchange/sale
directly with a non-Federal source, or
do a reimbursable transfer with another executive agency as long as you
or your agent—
(1) Follow the provisions in this part
and in 41 CFR part 102–39;
(2) Ensure that the applicable labels
and tags, historical data and modification records accompany the parts at
the time of sale, and that sales offerings on aircraft parts contain the following statement:
‘‘Warning to purchasers/recipients. The
aircraft parts you are purchasing or receiving in an exchange may not be in
compliance with applicable Federal
Aviation Administration (FAA) requirements. You are solely responsible
for bringing the aircraft into compliance with 14 CFR Chapter I, or other
applicable standards, by obtaining all
necessary FAA inspections or modifications.’’
(3) Ensure that the following certification is signed by the purchaser/recipient and received by the Government before releasing parts to the purchaser/recipient:
‘‘The purchaser/recipient agrees that
the Government shall not be held liable
for personal injuries to, disabilities of,
or death of the purchaser/recipient, the
purchaser’s/recipient’s employees, or to
any other persons arising from or incident to the purchase of these aircraft
parts, their use, or disposition. The
purchaser/recipient shall hold the Government harmless from any or all
debts, liabilities, judgments, costs, demands, suits, actions, or claims of any
nature arising from or incident to the
purchase, use, or resale of these aircraft parts.
These parts may have been used on
aircraft that were operated outside the
limitations of 14 CFR Chapter I, and
some type of inspection may be needed
to determine their airworthiness prior
to being used on a recipient aircraft.
You should be aware of the following
requirements prior to operating an aircraft with parts received from an exchange.
§ 102–33.365 Must we report exchange/
sale of parts to FAIRS?
No, you don’t have to report exchange/sale of parts to FAIRS. However, you must report the transactions
to GSA as part of your agency’s annual
report (see 41 CFR part 102–39 Subpart
C—Exchange/Sale Methods and Reports).
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Federal Management Regulation
§ 102–33.370
SPECIAL REQUIREMENTS FOR DISPOSING
OF FLIGHT SAFETY CRITICAL AIRCRAFT
PARTS (FSCAP) AND LIFE-LIMITED
PARTS
(a)
Table
1
for
disposing
of
uninstalled FSCAP and/or life-limited
parts follows:
§ 102–33.370 What must we do to dispose of military FSCAP and/or lifelimited parts?
To dispose of military FSCAP and/or
life-limited parts, you must use the following tables:
TABLE 1 FOR DISPOSING OF UNINSTALLED FSCAP AND/OR LIFE-LIMITED PARTS
(1) If an Uninstalled
FSCAP (i.e., not installed in an aircraft or
engine)—
(i) Is documented—
Then ...................
(ii) Is undocumented,
but traceable to its
original equipment
manufacturer (OEM)
or production approval holder
(PAH)—
Then ...................
(iii) Is undocumented
and untraceable,
you must mutilate it,
and—
Then ...................
(A) You may exchange/sale it or transfer it to another executive agency under
41 CFR parts 102–36 and 102–39;
(B) GSA may donate it for flight use under 41 CFR part 102–37 of this subchapter; or
(C) GSA may donate it for ground use only, after you mutilate and mark it,
‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must
certify that the part has been mutilated and marked before donation).
(A) You may exchange/sell it only to the OEM or PAH under 41 CFR part 102–
39;
(B) GSA may transfer or donate it for flight use, but only by making it a condition of the transfer or donation agreement that the recipient will have the part
inspected, repaired, and certified by the OEM or PAH before putting it into
service (Note: You must mark parts individually to ensure that the recipient
is aware of the part’s service status); or
(C) GSA may donate it for ground use only, after you mutilate and mark it,
‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must
certify that the part has been mutilated and marked before donation).
(A) GSA may transfer or donate it for ground use only, after you mark it,
‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must
certify that the part has been mutilated and marked before donation); or
(B) You may sell it only for scrap under §§ 102–33.310 and 102–33.315.
(2) If an uninstalled lifelimited part (i.e., not installed in an aircraft or
engine)—
(i) Is documented with
service life remaining—
(ii) Is documented with
no service life remaining, or undocumented, GSA may
not transfer it to another executive
agency for flight
use—
Then ...................
But ......................
(A) You may exchange/sale it or transfer it to another executive agency under
41 CFR parts 102–36 and 102–39;
(B) GSA may donate it for flight use under 41 CFR part 102–37; or
(C) GSA may donate it for ground use only, after you mutilate and mark it,
‘‘EXPIRED LIFE-LIMITED—NOT AIRWORTHY’’ (the State Agency for Surplus Property must certify that the part has been mutilated and marked before donation).
(A) GSA may transfer or donate it for ground use only, after you mutilate and
mark it, ‘‘EXPIRED LIFE-LIMITED—NOT AIRWORTHY’’ (the State Agency
for Surplus Property must certify that the part has been mutilated and
marked before donation); or
(B) You must mutilate it and may sell it only for scrap.
(b) Table 2 for disposing of installed
FSCAP and/or life-limited parts follows:
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§ 102–33.375
41 CFR Ch. 102 (7–1–16 Edition)
TABLE 2 FOR DISPOSING OF INSTALLED FSCAP AND/OR LIFE-LIMITED PARTS
(1) If a FSCAP and/or lifelimited part is installed in
an aircraft or an engine,
and it—
(i) Is documented with
service life remaining—
(ii) Is documented with
no service life remaining—
Then ...................
Then ...................
(A) You may exchange/sale the aircraft or engine, or GSA may transfer the aircraft or engine to another executive agency under 41 CFR parts 102–36 and
102–39;
(B) GSA may donate the aircraft or engine for flight use or ground use.
(A) You must remove and mutilate the part before you exchange/sale the aircraft or engine (see rules for disposing of uninstalled life-limited parts in
Table 1 of this section). (Note: If an aircraft or engine is exchanged/sold to
its OEM or PAH, you do not have to remove the expired life-limited part);
(B) You must remove and mutilate the part before GSA may transfer or donate
the aircraft or engine for flight use (see the rules for disposing of uninstalled
FSCAP in Table 1 of this section). (Note: An internal engine part may be left
installed, if you identify the part individually to ensure that the receiving
agency is aware of the part’s service status and, as a condition of the transfer or donation agreement, the receiving agency agrees to remove and mutilate the part before the engine is put into service. You must certify mutilation
for transfers, and the State Agency for Surplus Property must certify that the
part has been mutilated for donations); or
(C) GSA may donate the aircraft or engine for ground use only, after you remove the part, mutilate and mark it ‘‘EXPIRED LIFE-LIMITED—NOT AIRWORTHY.’’ (Note: An internal engine part may be left installed, if, as a condition of the donation agreement, the receiving agency agrees to remove
and mutilate the part and mark it, and the State Agency for Surplus Property
must certify that the part has been mutilated and marked).
(a) Is an executive agency of the
United States Government; and
(b) Owns, bails, borrows, loans,
leases, rents, charters, or contracts for
(or obtains by ISSA) Government aircraft.
§ 102–33.375 What is a FSCAP Criticality Code?
(a) A FSCAP Criticality Code is a
code assigned by DOD to indicate the
type of FSCAP: Code ‘‘F’’ indicates a
standard FSCAP; Code ‘‘E’’ indicates a
nuclear-hardened FSCAP.
(b) You must perpetuate a FSCAP
Criticality Code on all property records
and reports of excess. If the code is not
annotated on the transfer document
that you received when you acquired
the part, you may contact the appropriate military service or query DOD’s
Federal Logistics Information System
(FLIS) using the National Stock Number (NSN) or the part number (see
http://www.dlis.dla.mil/webflis). For assistance in subscribing to the FLIS
service, contact the WebFLIS Consumer Support Office, 1–877–352–2255.
§ 102–33.385 What
Federally-funded
aviation activities of executive
agencies are exempt from the requirement to report information to
GSA on Government aircraft?
The following Federally-funded activities are exempt from the requirement to report information to GSA on
Government aircraft:
(a) The Armed Forces (which includes
the U.S. Coast Guard); and
(b) Agencies in the Intelligence Community.
§ 102–33.390 What information must
we report on Government aircraft?
You must report the following information to GSA (for information regarding how to report this information,
see: https://gsa.inl.gov/fairs/):
(a) Inventory data on Federal aircraft, including your Unmanned Aircraft Systems (UAS), through FAIRS;
(b) Cost and utilization data on Federal aircraft, including your Unmanned
Aircraft Systems (UAS), through
FAIRS;
Subpart E—Reporting Information
on Government Aircraft
OVERVIEW
§ 102–33.380 Who must report information to GSA on Government aircraft?
You must report information to GSA
on Government aircraft if your agency—
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Federal Management Regulation
§ 102–33.420
(c) Cost and utilization data on CAS
aircraft and related aviation services
(see definition of ‘‘Government aircraft’’ for more on CAS), through
FAIRS;
(d) Accident and incident data (see
§ 102–33.445); and
(e) The results of standard competition studies in compliance with OMB
Circular A–76 to justify purchasing,
leasing, modernizing, replacing, or otherwise acquiring aircraft and related
aviation services.
aviationpolicy) contains the business
rules for using the system.
FEDERAL AVIATION INTERACTIVE
REPORTING SYSTEM (FAIRS)
(a) You must report any changes in
your Federal aircraft inventory within
14 calendar days of those changes.
(b) You must report cost and utilization data to FAIRS at the end of every
quarter of the fiscal year (December 31,
March 31, June 30, and September 30).
However, you may submit your information to FAIRS on a daily, weekly, or
monthly basis. To provide enough time
to calculate your cost and utilization
data, you may report any one quarter’s
cost and utilization in the following
quarter, as follows:
§ 102–33.400
FAIRS?
How must we report to
You must report to FAIRS electronically through a secure Web interface to
the FAIRS application on the Internet.
For additional information see https://
gsa.inl.gov/fairs/.
§ 102–33.405
FAIRS?
§ 102–33.395 What is FAIRS?
FAIRS is a management information
system operated by GSA to collect,
maintain, analyze, and report information on Federal aircraft inventories
and cost and usage of Federal aircraft
and CAS aircraft (and related aviation
services). Users access FAIRS through
a highly-secure Web site. The U.S. Government Aircraft Cost Accounting
Guide (CAG) (see http://www.gsa.gov/
When must we report to
Quarter
Submit
QTR 1—October 1–December 31 ...................................................................
QTR 2—January 1–March 31 ..........................................................................
QTR 3—April 1–June 30 .................................................................................
QTR 4—July 1–September 30 ........................................................................
FEDERAL INVENTORY DATA
Federal inventory for QTR 1.
Federal cost and utilization for previous QTR 4.
CAS cost and utilization for previous QTR 4.
Federal inventory for QTR 2.
Federal cost and utilization for QTR 1.
CAS cost and utilization for QTR 1.
Federal inventory for QTR 3.
Federal cost and utilization for QTR 2.
CAS cost and utilization for QTR 2.
Federal inventory for QTR 4.
Federal cost and utilization for QTR 3.
CAS cost and utilization for QTR 3.
sify it and remove it from your Federal
aircraft inventory. For further details,
see §§ 102–33.250 and 102–33.420. See
§§ 102–33.265 and 102–33.270 for reporting
excess Federal aircraft.
§ 102–33.410 What are Federal inventory data?
Federal inventory data includes:
(a) Information on each of the operational and non-operational Federal
aircraft that you own, bail, borrow, or
loan; and
(b) UAS as described in § 102–33.20.
§ 102–33.420 How must we declassify a
Federal aircraft?
To declassify a Federal aircraft, you
must—
(a) Send a letter to the Deputy Associate Administrator, Office of Asset
and Transportation Management, Office of Government-wide Policy, General Services Administration, 1800 F
§ 102–33.415 When may we declassify a
Federal aircraft and remove it from
our Federal aircraft inventory?
When an aircraft is lost or destroyed,
or is otherwise non-operational and
you want to retain it, you may declas-
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§ 102–33.425
41 CFR Ch. 102 (7–1–16 Edition)
ments, see the U.S. Government Aircraft Cost Accounting Guide (CAG),
which is available at http://www.gsa.gov/
aviationpolicy.
St. NW., Washington, DC 20405, that requests approval to declassify the aircraft and states that the aircraft is
non-operational (which includes lost or
destroyed). In this letter you must—
(1) Identify the Federal Supply Classification (FSC) group(s) that the declassified aircraft/parts will fall under,
if applicable;
(2) Describe the condition of the aircraft (crash-damaged, unrecoverable,
parts unavailable, etc.); and
(3) Include photographs as appropriate.
(b) Within 14 calendar days of receiving GSA’s approval to declassify the
aircraft, following 14 CFR 45.13, request
approval from your local FAA Flight
Standards District Office (FSDO) to remove the manufacturer’s data plate;
(c) Within 14 calendar days of receiving approval from FAA to remove the
data plate, inform GSA of FAA’s approval, send the data plate by courier
or registered mail to the FAA, as directed by your FSDO, and remove the
certificate of airworthiness and the aircraft’s registration form from the aircraft, complete the reverse side of the
registration form, and send both documents to The FAA Aircraft Registration Branch, P.O. Box 25504, Oklahoma
City, OK 73125–0504; and
(d) Update the FAIRS inventory
record to reflect disposal status and
update your personal property records,
deleting the declassified aircraft from
the aircraft category and adding it to
another Federal Supply Classification
group or groups, as appropriate.
§ 102–33.430 Who must report Federal
aircraft cost and utilization data?
(a) Executive agencies, except the
Armed Forces and agencies in the Intelligence Community, must report
Federal cost and utilization data on all
Federal aircraft; and
(b) Agencies should report Federal
cost and utilization data for loaned aircraft only if Federal money was expended on the aircraft.
COMMERCIAL AVIATION SERVICES (CAS)
COST AND UTILIZATION DATA
§ 102–33.435 What CAS cost and utilization data must we report?
You must report:
(a) The costs and flying hours for
each CAS aircraft you hire;
(b) The costs and contractual periods
for related aviation services that you
hire (by contract or through an Interservice support agreement (ISSA)).
NOTE TO § 102–33.435: You should not report
related aviation services that you hire commercially in support of Federal aircraft.
‘‘Federal’’ aircraft are by definition owned
aircraft. The agency that owns the aircraft
is responsible for capturing all cost and utilization data and is required to report this
data in GSA’s FAIRS. See the U.S. Government Aircraft Cost Accounting Guide (CAG),
which is available from GSA at http://
www.gsa.gov/aviationpolicy.
§ 102–33.440 Who must report CAS cost
and utilization data?
FEDERAL AIRCRAFT COST AND
UTILIZATION DATA
Executive
agencies,
except
the
Armed Forces and agencies in the Intelligence Community, must report
CAS cost and utilization data. You
must report CAS cost and utilization
data if your agency makes payments
to—
(a) Charter or rent aircraft;
(b) Lease or lease-purchase aircraft;
(c) Hire aircraft and related services
through an ISSA or a full service contract; or
(d) Obtain related aviation services
through an ISSA or by contract except
when you use the services in support of
Federal aircraft (see the Note at § 102–
33.435).
§ 102–33.425 What Federal aircraft cost
and utilization data must we report?
You must report certain costs for
each of your Federal aircraft (including your UAS) and the number of hours
that you flew each aircraft. In reporting the costs of your Federal aircraft,
you must report both the amounts you
paid as Federal costs, which are for
services the Government provides, and
the amounts you paid for commercial
aviation services (CAS) in support of
your Federal aviation program. For a
list and definitions of the Federal aircraft cost and utilization data ele-
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Federal Management Regulation
§ 102–33.475
ACCIDENT AND INCIDENT DATA
PERFORMANCE INDICATORS
§ 102–33.445 What accident and incident data must we report?
§ 102–33.465 What is a performance indicator?
You must report within 14 calendar
days to GSA, Aviation Policy Division,
1800 F St. NW., Washington, DC 20405,
all aviation accidents and incidents
that your agency is required to report
to the NTSB. You may also report
other incident information. GSA and
the ICAP will use the collected accident/incident information in conjunction with FAIRS’ data, such as flying
hours and missions, to calculate aviation safety statistics for the Federal
aviation community and to share safety lessons-learned.
In addition to the definition in § 102–
33.20, a performance indicator provides
information (either qualitative or
quantitative) on the extent to which
the actual outcome of a policy, program, or initiative achieves the
planned outcome.
§ 102–33.470 Must we develop performance indicators?
Yes, your agency must develop performance indicators in order to measure the degree to which key aviation
program objectives are achieved. It is
suggested that your performance indicators:
(a) Measure the contribution of the
aviation program toward the accomplishment of the agency’s mission;
(b) Support and justify aviation program budget requests; and
(c) Demonstrate the effectiveness and
efficiency of the aviation program’s
performance.
§ 102–33.450 How must we report accident and incident data?
You must report accident and incident data to GSA at http://www.gsa.gov/
aviationpolicy or call GSA’s Aviation
Policy Division and report the accident
or incident telephonically.
COMMON AVIATION MANAGEMENT
INFORMATION STANDARD (C–AMIS)
§ 102–33.455
§ 102–33.475 What are some examples
of performance indicators that an
agency can use?
What is C–AMIS?
The Common Aviation Management
Information Standard (C–AMIS) is a
guide to assist agencies in developing
or modernizing their internal aviation
management information systems. C–
AMIS includes standard specifications
and data definitions related to Federal
aviation operations. C–AMIS is jointly
written by the ICAP and GSA and
available from GSA’s Aviation Policy
Division.
Examples of performance indicators
include, but are not limited to, a percentage increase or decrease:
(a) Of operations scheduling effectiveness;
(b) Of repeat system discrepancies
over a specific period of time;
(c) In logistical response time for returned parts processing over a specified
period of time;
(d) In lost man-hours due to personnel injuries;
(e) In aircraft turn-around time;
(f) In fuel expenditures for a given
mission, location, or type/model/series
of aircraft;
(g) In aircraft availability or nonavailability rates;
(h) In full-mission-capable aircraft
over a specific time period;
(i) In non-airworthy maintenance;
(j) In maintenance costs per flying
hour; or
(k) In variable cost per passenger
mile.
§ 102–33.460 What is our responsibility
in relation to C–AMIS?
If you use a management information
system to provide data to FAIRS by
batch upload, you are responsible for
ensuring that your system is C–AMIScompliant (see § 102–33.195). For more
information on compliance with C–
AMIS, contact GSA’s Aviation Policy
Division at (202) 208–0519 or (202) 997–
7274.
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Pt. 102–33, App. A
41 CFR Ch. 102 (7–1–16 Edition)
Witness Specialists from the Federal Bureau
of Investigation (FBI) and/or the local U.S.
Attorney’s Office will keep you or your family informed about the status of the criminal
investigation(s) and provide you or your
family with information about rights and
services, such as crisis intervention, counseling and emotional support. State crime
victim compensation may be able to cover
crime-related expenses, such as medical
costs, mental health counseling, funeral and
burial costs, and lost wages or loss of support. The Office for Victims of Crime (an
agency of the Department of Justice) and the
U.S. Attorneys Office are authorized by the
Antiterrorism Act of 1996 to provide emergency financial assistance to State programs
for the benefit of victims of terrorist acts or
mass violence.
APPENDIX A TO PART 102–33—DISCLOSURE
STATEMENT
FOR
CREWMEMBERS AND QUALIFIED NON-CREWMEMBERS FLYING ON BOARD GOVERNMENT AIRCRAFT OPERATED AS PUBLIC AIRCRAFT
Generally, an aircraft used exclusively for
the U.S. Government may be considered a
‘‘public aircraft’’ as defined by Public Law
106–181 and 14 CFR Chapter I, provided it is
not a Government-owned aircraft transporting passengers or operating for commercial purposes. A public aircraft is not subject
to many Federal Aviation Regulations, including requirements relating to aircraft
certification, maintenance, and pilot certification. If the aircraft does not qualify as a
‘‘public aircraft’’, then it is a civil aircraft
and must comply with all Federal Aviation
Regulations applicable to civil aircraft. If
you have any questions concerning whether
a particular flight will be a public aircraft
operation or a civil aircraft operation, you
should contact the agency sponsor of that
flight.
FEDERAL EMPLOYEE
If you are injured or killed on the job during the performance of duty, including while
traveling or working aboard a Government
aircraft or other Government-owned or operated conveyance for official Government
business purposes, you and your family are
eligible to collect workers’ compensation
benefits under FECA. You and your family
may not file a personal injury or wrongful
death suit against the United States or its
employees. However, you may have cause of
action against potentially liable third parties.
RIGHTS AND BENEFITS
You have certain rights and benefits in the
unlikely event you are injured or killed
while working aboard a Government-owned
or operated aircraft. Federal employees and
some private citizens are eligible for workers’ compensation benefits under the Federal
Employees’ Compensation Act (FECA). When
FECA applies, it is the sole remedy. For
more information about FECA and its coverage, consult with your agency’s benefits
office or contact the Branch of Technical Assistance at the Department of Labor’s Office
of Workers’ Compensation Programs.
FAMILY MEMBER
You or your qualifying family member
must normally also choose between FECA
disability or death benefits, and those payable under your retirement system (either
the Civil Service Retirement System or the
Federal Employees Retirement System). You
may choose the benefit that is more favorable to you.
STATE OR FOREIGN LAWS
State or foreign laws may provide for product liability or ‘‘third party’’ causes of actions for personal injury or wrongful death.
If you have questions about a particular case
or believe you have a claim, you should consult with an attorney.
PRIVATE CITIZEN
Even if the Federal Government does not
regularly employ you, if you are rendering
personal service to the Federal Government
on a voluntary basis or for nominal pay, you
may be defined as a Federal employee for
purposes of FECA. If that is the case, you
and your family are eligible to receive workers’ compensation benefits under FECA, but
may not collect in a personal injury or
wrongful death lawsuit against the United
States or its employees. You and your family
may file suit against potentially liable third
parties. Before you board a Government aircraft, you may wish to consult with the department or agency sponsoring the flight to
clarify whether you are considered a Federal
employee.
If the agency determines that you are not
a ‘‘Federal employee,’’ you and your family
INSURANCE POLICIES
Some insurance policies may exclude coverage for injuries or death sustained while
working or traveling aboard a Government
or military aircraft or while within a combat
area. You may wish to check your policy or
consult with your insurance provider before
your flight. The insurance available to Federal employees through the Federal Employees Group Life Insurance Program does not
contain an exclusion of this type.
VICTIM RIGHTS
If you are the victim of an air disaster resulting from criminal activity, Victim and
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Federal Management Regulation
Pt. 102–34
will not be eligible to receive workers’ compensation benefits under FECA. If you are
onboard the aircraft for purposes of official
Government business, you may be eligible
for workers’ compensation benefits under
state law. If an accident occurs within the
United States, or its territories, its airspace,
or over the high seas, you and your family
may claim against the United States under
the Federal Tort Claims Act or Suits in Admiralty Act. If you are killed aboard a military aircraft, your family may be eligible to
receive compensation under the Military
Claims Act, or if you are an inhabitant of a
foreign country, under the Foreign Claims
Act.
102–34.75 Who is responsible for monitoring
our compliance with fuel economy standards for motor vehicles we obtain?
102–34.80 Where may we obtain help with
our motor vehicle acquisition plans?
Subpart C—Identifying and Registering
Motor Vehicles
MOTOR VEHICLE IDENTIFICATION
102–34.85 What motor vehicles require motor
vehicle identification?
102–34.90 What motor vehicle identification
must we display on Government motor
vehicles?
102–34.95 What motor vehicle identification
must the Department of Defense (DOD)
display on motor vehicles it owns, or
leases commercially?
102–34.100 Where is motor vehicle identification displayed?
102–34.105 Before we sell a motor vehicle,
what motor vehicle identification must
we remove?
NOTE TO APPENDIX A TO PART 102–33: This
disclosure statement is not all-inclusive.
You should contact your agency’s personnel
office, or if you are a private citizen, your
agency sponsor or point-of-contact for further assistance.
PART 102–34—MOTOR VEHICLE
MANAGEMENT
LICENSE PLATES
102–34.110 Must Government motor vehicles
use Government license plates?
102–34.115 Can official U.S. Government license plates be used on motor vehicles
not owned or leased by the Government?
102–34.120 Do we need to register Government motor vehicles?
102–34.125 Where may we obtain U.S. Government license plates?
102–34.130 How do we display U.S. Government license plates on Government
motor vehicles?
102–34.135 What do we do about a lost or stolen license plate?
102–34.140 What records do we need to keep
on U.S. Government license plates?
102–34.145 How are U.S. Government license
plates coded?
102–34.150 How can we get a new license
plate code designation?
Subpart A—General Provisions
Sec.
102–34.5 What does this part cover?
102–34.10 What are the governing authorities for this part?
102–34.15 Who must comply with these provisions?
102–34.20 What motor vehicles are not covered by this part?
102–34.25 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–34.30 How do we request a deviation
from the provisions of this part?
DEFINITIONS
102–34.35 What
part?
definitions
apply
to
this
IDENTIFICATION EXEMPTIONS
Subpart B—Obtaining Fuel Efficient Motor
Vehicles
102–34.155 What are the types of motor vehicle identification exemptions?
102–34.160 May we have a limited exemption
from displaying U.S. Government license
plates and other motor vehicle identification?
102–34.165 What information must the limited exemption certification contain?
102–34.170 For how long is a limited exemption valid?
102–34.175 What motor vehicles have an unlimited exemption from displaying U.S.
Government license plates and motor vehicle identification?
102–34.180 What agencies have a special exemption from displaying U.S. Government license plates and motor vehicle
identification on some of their vehicles?
102–34.40 Who must comply with motor vehicle fuel efficiency requirements?
102–34.45 How are passenger automobiles
classified?
102–34.50 What size motor vehicles may we
obtain?
102–34.55 Are there fleet average fuel economy standards we must meet?
102–34.60 How do we calculate the average
fuel economy for Government motor vehicles?
102–34.65 How may we request an exemption
from the fuel economy standards?
102–34.70 What do we do with completed calculations of our fleet vehicle acquisitions?
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§ 102–34.5
41 CFR Ch. 102 (7–1–16 Edition)
102–34.185 What license plates do we use on
motor vehicles that are exempt from
motor vehicle identification requirements?
102–34.190 What special requirements apply
to exempted motor vehicles using District of Columbia or State license plates?
102–34.195 Must we submit a report concerning motor vehicles exempted under
this subpart?
Subpart G—Motor Vehicle Crash Reporting
102–34.290 What forms do I use to report a
crash involving a domestic fleet motor
vehicle?
102–34.295 To whom do we send crash reports?
Subpart H—Disposal of Motor Vehicles
102–34.300 How do we dispose of a domestic
fleet motor vehicle?
102–34.305 What forms do we use to transfer
ownership when selling a motor vehicle?
102–34.310 How do we distribute the completed Standard Form 97?
Subpart D—Official Use of Government
Motor Vehicles
102–34.200 What is official use of Government motor vehicles?
102–34.205 May I use a Government motor
vehicle for transportation between my
residence and place of employment?
102–34.210 May I use a Government motor
vehicle for transportation between places
of employment and mass transit facilities?
102–34.215 May Government contractors use
Government motor vehicles?
102–34.220 What does GSA do if it learns of
unofficial use of a Government motor vehicle?
102–34.225 How are Federal employees disciplined for misuse of Government motor
vehicles?
102–34.230 How am I responsible for protecting Government motor vehicles?
102–34.235 Am I bound by State and local
traffic laws?
102–34.240 Who pays for parking fees?
102–34.245 Who pays for parking fines?
102–34.250 Do Federal employees in Government motor vehicles have to use all safety devices and follow all safety guidelines?
Subpart I—Motor Vehicle Fueling
102–34.315 How do we obtain fuel for Government motor vehicles?
102–34.320 What Government-issued charge
cards may I use to purchase fuel and
motor vehicle related services?
102–34.325 What type of fuel do I use in Government motor vehicles?
Subpart J—Federal Fleet Report
102–34.330 What is the Federal Fleet Report?
102–34.335 How do I submit information to
the General Services Administration
(GSA) for the Federal Fleet Report
(FFR)?
102–34.340 Do we need a fleet management
information system?
102–34.345 What records do we need to keep?
Subpart K—Forms
102–34.350 How do we obtain the forms prescribed in this part?
AUTHORITY: 40 U.S.C. 121(c); 40 U.S.C. 17503;
31 U.S.C. 1344; 49 U.S.C. 32917; E.O. 12375.
Subpart E—Replacement of Motor Vehicles
102–34.255 What are motor vehicle replacement standards?
102–34.260 May we replace a Governmentowned motor vehicle sooner?
102–34.265 May we keep a Governmentowned motor vehicle even though the
standard permits replacement?
102–34.270 How long must we keep a Government-owned motor vehicle?
SOURCE: 74 FR 11871, Mar. 20, 2009, unless
otherwise noted.
Subpart A—General Provisions
§ 102–34.5
What does this part cover?
This part governs the economical and
efficient management and control of
motor vehicles that the Government
owns, leases commercially or leases
through GSA Fleet. Agencies will incorporate appropriate provisions of
this part into contracts offering Government-furnished equipment in order
to ensure adequate control over the use
of motor vehicles.
Subpart F—Scheduled Maintenance of
Motor Vehicles
102–34.275 What kind of maintenance programs must we have?
102–34.280 What State inspections must we
have for Government motor vehicles?
102–34.285 Where can we obtain help in setting up a maintenance program?
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Federal Management Regulation
§ 102–34.35
Commercial design motor vehicle means
a motor vehicle procurable from regular production lines and designed for
use by the general public.
Commercial lease or lease commercially
means obtaining a motor vehicle by
contract or other arrangement from a
commercial source for 120 continuous
days or more. (Procedures for purchasing and leasing motor vehicles
through GSA can be found in 41 CFR
subpart 101–26.5).
Domestic fleet means all reportable
motor vehicles operated in any State,
Commonwealth, territory or possession
of the United States, and the District
of Columbia.
Foreign fleet means all reportable
motor vehicles operated in areas outside any State, Commonwealth, territory or possession of the United States,
and the District of Columbia.
Government motor vehicle means any
motor vehicle that the Government
owns or leases. This includes motor vehicles obtained through purchase, excess, forfeiture, commercial lease, or
GSA Fleet lease.
Government-owned
motor
vehicle
means any motor vehicle that the Government has obtained through purchase, excess, forfeiture, or otherwise
and for which the Government holds
title.
GSA Fleet lease means obtaining a
motor vehicle from the General Services Administration Fleet (GSA Fleet).
Law enforcement motor vehicle means a
light duty motor vehicle that is specifically approved in an agency’s appropriation act for use in apprehension,
surveillance, police or other law enforcement work or specifically designed for use in law enforcement. If
not identified in an agency’s appropriation language, a motor vehicle qualifies as a law enforcement motor vehicle only in the following cases:
(1) A passenger automobile having
heavy duty components for electrical,
cooling and suspension systems and at
least the next higher cubic inch displacement or more powerful engine
than is standard for the automobile
concerned;
(2) A light truck having emergency
warning lights and identified with
markings such as ‘‘police;’’
§ 102–34.10 What are the governing authorities for this part?
The authorities for the regulations in
this part are 40 U.S.C. 121(c), 40 U.S.C.
17503, 31 U.S.C. 1344, 49 U.S.C. 32917, and
E.O. 12375.
§ 102–34.15 Who must comply with
these provisions?
All executive agencies must comply
with the provisions of this part. The
legislative and judicial branches are
encouraged to follow these provisions.
§ 102–34.20 What motor vehicles are
not covered by this part?
Motor vehicles not covered by this
part are:
(a) Military design motor vehicles;
(b) Motor vehicles used for military
field training, combat, or tactical purposes;
(c) Motor vehicles used principally
within the confines of a regularly established military post, camp, or
depot; and
(d) Motor vehicles regularly used by
an agency to perform investigative,
law enforcement, or intelligence duties, if the head of the agency determines that exclusive control of the vehicle is essential for effective performance of duties, although such vehicles
are subject to subpart D and subpart J
of this part.
§ 102–34.25 To whom do ‘‘we’’, ‘‘you’’,
and their variants refer?
Unless otherwise indicated, use of
pronouns ‘‘we’’, ‘‘you’’, and their
variants throughout this part refer to
you as an executive agency, as your
agency’s fleet manager, or as a motor
vehicle user or operator, as appropriate.
§ 102–34.30 How do we request a deviation from the provisions of this
part?
Refer to §§ 102–2.60 through 102–2.110
of this chapter for information on how
to obtain a deviation from this part.
DEFINITIONS
§ 102–34.35 What definitions apply to
this part?
The following definitions apply to
this part:
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§ 102–34.40
41 CFR Ch. 102 (7–1–16 Edition)
(3) An unmarked motor vehicle certified by the agency head as essential
for the safe and efficient performance
of intelligence, counterintelligence,
protective, or other law enforcement
duties; or
(4) A forfeited motor vehicle seized
by a Federal agency that is subsequently used for the purpose of performing law enforcement activities.
Light duty motor vehicle means any
motor vehicle with a gross motor vehicle weight rating (GVWR) of 8,500
pounds or less.
Light truck means a motor vehicle on
a truck chassis with a gross motor vehicle weight rating (GVWR) of 8,500
pounds or less.
Military design motor vehicle means a
motor vehicle (excluding commercial
design motor vehicles) designed according to military specifications to directly support combat or tactical operations or training for such operations.
Motor vehicle means any vehicle, self
propelled or drawn by mechanical
power, designed and operated principally for highway transportation of
property or passengers, but does not include a military design motor vehicle
or vehicles not covered by this part
(see § 102–34.20).
Motor vehicle identification (also referred to as ‘‘motor vehicle markings’’)
means the legends ‘‘For Official Use
Only’’ and ‘‘U.S. Government’’ placed
on a motor vehicle plus other legends
readily identifying the department,
agency, establishment, corporation, or
service by which the motor vehicle is
used.
Motor vehicle markings (see definition
of ‘‘Motor vehicle identification’’ in
this section).
Motor vehicle purchase means buying
a motor vehicle from a commercial
source, usually a motor vehicle manufacturer or a motor vehicle manufacturer’s dealership. (Procedures for purchasing and leasing motor vehicles
through GSA can be found in 41 CFR
subpart 101–26.5.)
Motor vehicle rental means obtaining
a motor vehicle by contract or other
arrangement from a commercial source
for less than 120 continuous days.
Motor vehicles transferred from excess
means obtaining a motor vehicle re-
ported as excess and transferred with
or without cost.
Owning agency means the executive
agency that holds the vehicle title,
manufacturer’s Certificate of Origin, or
is the lessee of a commercial lease.
This term does not apply to agencies
that lease motor vehicles from the
GSA Fleet.
Passenger automobile means a sedan or
station wagon designed primarily to
transport people.
Reportable motor vehicles are any Government motor vehicles used by an executive agency or activity, including
those used by contractors. Also included are motor vehicles designed or
acquired for a specific or unique purpose, including motor vehicles that
serve as a platform or conveyance for
special equipment, such as a trailer.
Excluded are material handling equipment and construction equipment not
designed and used primarily for highway operation (e.g., if it must be
trailered or towed to be transported).
Using agency means an executive
agency that obtains motor vehicles
from the GSA Fleet, commercial firms
or another executive agency and does
not hold the vehicle title or manufacturer’s Certificate of Origin. However,
this does not include an executive
agency that obtains a motor vehicle by
motor vehicle rental.
[74 FR 11871, Mar. 20, 2009, as amended at 76
FR 76623, Dec. 8, 2011]
Subpart B—Obtaining Fuel Efficient
Motor Vehicles
§ 102–34.40 Who must comply with
motor vehicle fuel efficiency requirements?
(a) Executive agencies operating domestic fleets must comply with motor
vehicle fuel efficiency requirements for
such fleets.
(b) This subpart does not apply to
motor vehicles exempted by law or
other regulations, such as law enforcement or emergency rescue work and
foreign fleets. Other Federal agencies
are encouraged to comply so that maximum energy conservation benefits
may be realized in obtaining, operating, and managing Government
motor vehicles.
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Federal Management Regulation
§ 102–34.60
scribed in 49 U.S.C. 32902(b). The Department of Transportation publishes
the standards for light trucks and
amendments to the standards for passenger
automobiles
at
http://
www.dot.gov.
(b) These standards do not apply to
military design motor vehicles, law enforcement motor vehicles, or motor vehicles intended for emergency rescue.
§ 102–34.45 How are passenger automobiles classified?
Passenger automobiles are classified
in the following table:
Sedan class
Station wagon
class
I .............................
II ............................
III ...........................
IV ..........................
V ...........................
I ............................
II ...........................
III ..........................
IV ..........................
Limousine..
Descriptive name
Subcompact.
Compact.
Midsize.
Large.
§ 102–34.60 How do we calculate the
average fuel economy for Government motor vehicles?
§ 102–34.50 What size motor vehicles
may we obtain?
(a) You may only obtain the minimum size of motor vehicle necessary
to fulfill your agency’s mission in accordance with the following considerations:
(1) You must obtain motor vehicles
that achieve maximum fuel efficiency.
(2) Limit motor vehicle body size, engine size and optional equipment to
what is essential to meet your agency’s
mission.
(3) With the exception of motor vehicles used by the President and Vice
President and motor vehicles for security and highly essential needs, you
must obtain midsize (class III) or
smaller sedans.
(4) Obtain large (class IV) sedans only
when such motor vehicles are essential
to your agency’s mission.
(b) Agencies must establish and document a structured vehicle allocation
methodology to determine the appropriate size and number of motor vehicles (see FMR Bulletin B–9, located at
http://www.gsa.gov/bulletin, for guidance).
You must calculate the average fuel
economy for Government motor vehicles as follows:
(a) Because there are so many motor
vehicle configurations, you must take
an average of all light duty motor vehicles by category that your agency obtained and operated during the fiscal
year.
(b) This calculation is the sum of
such light duty motor vehicles divided
by the sum of the fractions representing the number of motor vehicles
of each category by model divided by
the unadjusted city/highway mile-pergallon ratings for that model. The
unadjusted city/highway mile-per-gallon ratings for each make and model
are published by the Environmental
Protection Agency (EPA) for each
model year and published at http://
www.fueleconomy.gov.
(c) An example follows:
Light trucks:
(i) 600 light trucks acquired in a specific
year. These are broken down into:
(A) 200 Six cylinder automatic transmission pick-up trucks, EPA rating: 24.3
mpg, plus
(B) 150 Six cylinder automatic transmission mini-vans, EPA rating: 24.8 mpg,
plus
(C) 150 Eight cylinder automatic transmission pick-up trucks, EPA rating: 20.4
mpg, plus
(D) 100 Eight cylinder automatic transmission cargo vans, EPA rating: 22.2 mpg.
§ 102–34.55 Are there fleet average fuel
economy standards we must meet?
(a) Yes. 49 U.S.C. 32917 and Executive
Order 12375 require that each executive
agency meet the fleet average fuel
economy standards in place as of January 1 of each fiscal year. The standards
for passenger automobiles are pre-
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§ 102–34.65
41 CFR Ch. 102 (7–1–16 Edition)
=
600
200 150 150 100
+
+
+
24.3 24.8 20.4 22.2
=
600
8.2305 + 6.0484 + 7.3530 + 4.5045
=
600
= 22.9565 (Rounded to nearest 0.1 mpg.)
26.1364
(ii) Fleet average fuel economy for light
trucks in this case is 23.0 mpg.
§ 102–34.75 Who is responsible for
monitoring our compliance with
fuel economy standards for motor
vehicles we obtain?
§ 102–34.65 How may we request an exemption from the fuel economy
standards?
Executive agencies are responsible
for monitoring their own compliance
with fuel economy standards for motor
vehicles they obtain.
You must submit a written request
for an exemption from the fuel economy standards to: Administrator, General Services Administration, ATTN:
Deputy Associate Administrator, Office
of Travel, Transportation and Asset
Management (MT), Washington, DC
20405.
(a) Your request for an exemption
must include all relevant information
necessary to permit review of the request that the vehicles be exempted
based on energy conservation, economy, efficiency, or service. Exemptions
may be sought for individual vehicles
or categories of vehicles.
(b) GSA will review the request and
advise you of the determination within
30 days of receipt. Light duty motor vehicles exempted under the provisions of
this section must not be included in
calculating your fleet average fuel
economy.
§ 102–34.80 Where may we obtain help
with our motor vehicle acquisition
plans?
For help with your motor vehicle acquisition plans, contact the: General
Services Administration, ATTN: MT,
Washington, DC 20405. E-mail: [email protected].
Subpart C—Identifying and
Registering Motor Vehicles
MOTOR VEHICLE IDENTIFICATION
§ 102–34.85 What motor vehicles require motor vehicle identification?
All Government motor vehicles must
display motor vehicle identification
unless exempted under § 102–34.160,
§ 102–34.175 or § 102–34.180.
§ 102–34.70 What do we do with completed calculations of our fleet vehicle acquisitions?
§ 102–34.90 What motor vehicle identification must we display on Government motor vehicles?
You must maintain the average fuel
economy data for each year’s vehicle
acquisitions on file at your agency
headquarters in accordance with the
National Archives and Records Administration, General Records Schedule 10,
Motor Vehicle and Aircraft Maintenance and Operations Records, Item 4,
Motor Vehicle Report Files. Exemption
requests and their disposition must
also be maintained with the average
fuel economy files.
Unless exempted under § 102–34.160,
§ 102–34.175 or § 102–34.180, Government
motor vehicles must display the following identification:
(a) ‘‘For Official Use Only’’;
(b) ‘‘U.S. Government’’; and
(c) Identification that readily identifies the agency owning the vehicle.
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ER20MR09.000
76
Federal Management Regulation
§ 102–34.130
§ 102–34.95 What motor vehicle identification must the Department of Defense (DOD) display on motor vehicles it owns or leases commercially?
§ 102–34.120 Do we need to register
Government motor vehicles?
If the Government motor vehicle displays U.S. Government license plates
and motor vehicle identification, you
do not need to register it in the jurisdiction where the vehicle is operated,
however, you must register it in the
Federal Government Motor Vehicle
Registration System. GSA Fleet may
register motor vehicles leased from
GSA Fleet. Motor vehicles that have
been exempted from the requirement
to display official U.S. Government license plates under section § 102–34.160,
§ 102–34.175 or § 102–34.180 must be registered and inspected in accordance
with the laws of the jurisdiction where
the motor vehicle is regularly operated.
Unless exempted under § 102–34.160,
§ 102–34.175 or § 102–34.180, the following
must appear on motor vehicles that the
DOD owns or leases commercially:
(a) ‘‘For Official Use Only’’; and
(b) An appropriate title for the DOD
component responsible for the vehicle.
§ 102–34.100 Where is motor vehicle
identification displayed?
Motor vehicle identification is displayed as follows:
(a) For most Government motor vehicles,
preferably on the official U.S. Government license plate. Some Government
motor vehicles may display motor vehicle identification on a decal in the
rear window, or centered on both front
doors if the vehicle is without a rear
window, or where identification on the
rear window would not be easily seen.
(b) For trailers, on both sides of the
front quarter of the trailer in a conspicuous location.
§ 102–34.125 Where may we obtain U.S.
Government license plates?
You may obtain U.S. Government license plates for domestic fleets—
(a) By contacting: U.S. Department
of Justice, UNICOR, Federal Prison Industries, Inc., 400 First Street, NW.,
Room 6010, Washington, DC 20534.
(b) For assistance with any issues involving license plates, contact the following office: General Services Administration, ATTN: MT, Washington, DC
20405. E-mail: [email protected].
NOTE TO § 102–34.100: Each agency or activity that uses decals to identify Government
motor vehicles is responsible for acquiring
its own decals and for replacing them when
necessary due to damage or wear.
§ 102–34.105 Before we sell a motor vehicle, what motor vehicle identification must we remove?
NOTE TO § 102–34.125: GSA has established a
Memorandum of Understanding (MOU) on behalf of all Federal agencies with Federal
Prison Industries (UNICOR) for the procurement of official U.S. Government license
plates. Each agency must execute an addendum to this MOU providing plate design and
specific ordering and payment information
before ordering license plates. Agency field
activities should contact their national level
Agency Fleet Manager for assistance.
You must remove all motor vehicle
identification before you transfer the
title or deliver the motor vehicle.
LICENSE PLATES
§ 102–34.110 Must Government motor
vehicles use Government license
plates?
§ 102–34.130 How do we display U.S.
Government license plates on Government motor vehicles?
Yes, you must use Government license plates on Government motor vehicles, with the exception of motor vehicles exempted under § 102–34.160, § 102–
34.175 or § 102–34.180.
(a) Display official U.S. Government
license plates on the front and rear of
all Government motor vehicles. The
exception is two-wheeled motor vehicles and trailers, which require rear license plates only.
(b) You must display U.S. Government license plates on the Government
motor vehicle to which the license
plates were assigned.
§ 102–34.115 Can official U.S. Government license plates be used on
motor vehicles not owned or leased
by the Government?
No, official U.S. Government license
plates may only be used on Government motor vehicles.
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§ 102–34.135
41 CFR Ch. 102 (7–1–16 Edition)
(c) Display the U.S. Government license plates until the Government
motor vehicle is removed from Government service or is transferred outside
the agency, or until the plates are
damaged and require replacement. U.S.
Government license plates shall only
be used for one Government motor vehicle and shall not be reissued to another Government motor vehicle.
(d) For motor vehicles owned or commercially leased by DOD, also follow
DOD regulations.
§ 102–34.150 How can we get a new license plate code designation?
To obtain a new license plate code
designation, write to the: General
Services Administration, ATTN: MT,
Washington, DC 20405. E-mail: [email protected].
IDENTIFICATION EXEMPTIONS
§ 102–34.155 What are the types of
motor vehicle identification exemptions?
The types of motor vehicle identification exemptions are:
(a) Limited exemption.
(b) Unlimited exemption.
(c) Special exemption.
§ 102–34.135 What do we do about a
lost or stolen license plate?
You must report the loss or theft of
license plates as follows:
(a) U.S. Government license plates. Report to your local security office (or
equivalent), local police, to GSA Fleet
when a GSA Fleet leased motor vehicle
is involved, and to the Federal Government Motor Vehicle Registration System.
(b) District of Columbia or State license
plates. Report to your local security office (or equivalent) and either the District of Columbia Department of Transportation, or the State Department of
Motor Vehicles, as appropriate.
§ 102–34.160 May we have a limited exemption from displaying U.S. Government license plates and other
motor vehicle identification?
Yes. The head of your agency or designee may authorize a limited exemption to the display of U.S. Government
license plates and motor vehicle identification upon written certification (see
§ 102–34.165). For motor vehicles leased
from the GSA Fleet, send an information copy of this certification to the:
General
Services
Administration,
ATTN: GSA Fleet (QMDB), 2200 Crystal
Drive, Arlington, VA 22202.
§ 102–34.140 What records do we need
to keep on U.S. Government license
plates?
§ 102–34.165 What information must
the limited exemption certification
contain?
You must keep a central record of all
U.S. Government license plates for
Government motor vehicles. The GSA
Fleet must also keep such a record for
GSA Fleet vehicles. The record must:
(a) Identify the motor vehicle to
which each set of plates is assigned;
and
(b) List lost, stolen, destroyed, and
voided license plate numbers.
The certification must state that
identifying the motor vehicle would
endanger the security of the vehicle occupants or otherwise compromise the
agency mission.
§ 102–34.170 For how long is a limited
exemption valid?
An exemption granted in accordance
with § 102–34.160 may last from one day
up to 3 years. If the requirement for exemption still exists beyond 3 years,
your agency must re-certify the continued exemption. For a motor vehicle
leased from the GSA Fleet, send a copy
of the re-certification to the: General
Services Administration, ATTN: GSA
Fleet (QMDB), 2200 Crystal Drive, Arlington, VA 22202.
§ 102–34.145 How are U.S. Government
license plates coded?
U.S. Government license plate numbers will be preceded by a letter code
that designates the owning agency for
the motor vehicle. The agency letter
codes are listed in GSA Bulletin FMR
Bulletin B–11. (FMR bulletins are located at http://www.gsa.gov/bulletin.)
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Federal Management Regulation
§ 102–34.210
istration, ATTN: GSA Fleet (QMDB),
2200 Crystal Drive, Arlington, VA 22202.
§ 102–34.175 What motor vehicles have
an unlimited exemption from displaying U.S. Government license
plates and motor vehicle identification?
Motor vehicles used primarily for investigative, law enforcement, intelligence, or security duties have an unlimited exemption from displaying U.S.
Government license plates and motor
vehicle identification when identifying
these motor vehicles would interfere
with those duties.
§ 102–34.195 Must we submit a report
concerning motor vehicles exempted under this subpart?
Yes. If asked, the head of each executive agency must submit a report concerning motor vehicles exempted under
this subpart. This report, which has
been assigned interagency report control number 1537–GSA–AR, should be
submitted to the: General Services Administration, ATTN: MT, Washington,
DC 20405. E-mail: [email protected].
§ 102–34.180 What agencies have a special exemption from displaying U.S.
Government license plates and
motor vehicle identification on
some of their vehicles?
Motor vehicles assigned for the use of
the President and the heads of executive departments specified in 5 U.S.C.
101 are exempt from the requirement to
display motor vehicle identification.
Subpart D—Official Use of
Government Motor Vehicles
§ 102–34.200 What is official use of
Government motor vehicles?
Official use of a Government motor
vehicle is using a Government motor
vehicle to perform your agency’s mission(s), as authorized by your agency.
§ 102–34.185 What license plates do we
use on motor vehicles that are exempt from motor vehicle identification requirements?
For motor vehicles that are exempt
from motor vehicle identification requirements, display the regular license
plates of the State, Commonwealth,
territory or possession of the United
States, or the District of Columbia,
where the motor vehicle is principally
operated (see § 102–34.120).
§ 102–34.205 May I use a Government
motor vehicle for transportation between my residence and place of
employment?
No, you may not use a Government
motor vehicle for transportation between your residence and place of employment unless your agency authorizes such use after making the necessary determination under 31 U.S.C.
1344 and part 102–5 of this title. Your
agency must keep a copy of the written
authorization within the agency and
monitor the use of these motor vehicles.
§ 102–34.190 What
special
requirements apply to exempted motor vehicles using District of Columbia or
State license plates?
Your agency head must designate an
official to authorize the District of Columbia (DC) or State motor vehicle department to issue DC license plates or
State license plates for motor vehicles
exempt from displaying U.S. Government license plates and motor vehicle
identification. The agency head must
provide the name and signature of that
official to the DC Department of Transportation annually, or to the equivalent State vehicle motor vehicle department, as required. Agencies must
pay DC and the States for these license
plates in accordance with DC or State
policy. Also, for motor vehicles leased
from the GSA Fleet, send a list of the
new plates to: General Services Admin-
§ 102–34.210 May I use a Government
motor vehicle for transportation between places of employment and
mass transit facilities?
Yes, you may use a Government
motor vehicle for transportation between places of employment and mass
transit facilities under the following
conditions:
(a) The head of your agency must
make a determination in writing, valid
for one year, that such use is appropriate and consistent with sound budget policy, and the determination must
be kept on file;
(b) There is no safe and reliable commercial or duplicative Federal mass
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§ 102–34.215
41 CFR Ch. 102 (7–1–16 Edition)
transportation service that serves the
same route on a regular basis;
(c) This transportation is made available, space provided, to other Federal
employees;
(d) Alternative fuel vehicles should
be used to the maximum extent practicable;
(e) This transportation should be provided in a manner that does not result
in any additional gross income for Federal income tax purposes; and
(f) Motor vehicle ridership levels
must be frequently monitored to ensure cost/benefit of providing and
maintaining this transportation.
§ 102–34.225 How are Federal employees disciplined for misuse of Government motor vehicles?
If an employee willfully uses, or authorizes the use of, a Government
motor vehicle for other than official
purposes, the employee is subject to
suspension of at least one month or, up
to and including, removal by the head
of the agency (31 U.S.C. 1349).
§ 102–34.230 How am I responsible for
protecting Government motor vehicles?
When a Government motor vehicle is
under your control, you must:
(a) Park or store the Government
motor vehicle in a manner that reasonably protects it from theft or damage;
and
(b) Lock the unattended Government
motor vehicle. (The only exception to
this requirement is when fire regulations or other directives prohibit locking motor vehicles in closed buildings
or enclosures.)
§ 102–34.215 May Government contractors use Government motor vehicles?
Yes, Government contractors may
use Government motor vehicles when
authorized in accordance with the Federal Acquisition Regulation (FAR),
GSA Fleet procedures, and the following conditions:
(a) Government motor vehicles are
used for official purposes only and solely in the performance of the contract;
(b) Government motor vehicles cannot be used for transportation between
residence and place of employment, unless authorized in accordance with 31
U.S.C. 1344 and part 102–5 of this chapter; and
(c) Contractors must:
(1) Establish and enforce suitable
penalties against employees who use,
or authorize the use of, Government
motor vehicles for unofficial purposes
or for other than in the performance of
the contract; and
(2) Pay any expenses or cost, without
Government reimbursement, for using
Government motor vehicles other than
in the performance of the contract.
§ 102–34.235 Am I bound by State and
local traffic laws?
Yes. You must obey all motor vehicle
traffic laws of the State and local jurisdiction, except when the duties of your
position require otherwise. You are
personally responsible if you violate
State or local traffic laws. If you are
fined or otherwise penalized for an offense you commit while performing
your official duties, but which was not
required as part of your official duties,
payment is your personal responsibility.
§ 102–34.240
fees?
Who
pays
§ 102–34.245
fines?
GSA reports the matter to the head
of your agency. The agency investigates and may, if appropriate, take
disciplinary action under 31 U.S.C. 1349
or may report the violation to the Attorney General for prosecution under
18 U.S.C. 641.
Who
pays
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for
parking
If you are fined for a parking violation while operating a Government
motor vehicle, you are responsible for
paying the fine and will not be reimbursed.
80
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parking
You must pay parking fees while operating a Government motor vehicle.
However, you can expect to be reimbursed for parking fees incurred while
performing official duties.
§ 102–34.220 What does GSA do if it
learns of unofficial use of a Government motor vehicle?
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Federal Management Regulation
§ 102–34.280
TABLE OF MINIMUM REPLACEMENT STANDARDS
§ 102–34.250 Do Federal employees in
Government motor vehicles have to
use all safety devices and follow all
safety guidelines?
Motor vehicle type
Years 1
Sedans/Station Wagons ....
Ambulances .......................
Buses:
Intercity .......................
City .............................
School ........................
Trucks:
Less than 12,500
pounds GVWR ........
12,500–23,999 pounds
GVWR .....................
24,000 pounds GVWR
and over ..................
4- or 6-wheel drive motor
vehicles ..........................
Yes, Federal employees in Government motor vehicles have to use all
provided safety devices including safety belts and follow all appropriate
motor vehicle manufacturer safety
guidelines.
Subpart E—Replacement of Motor
Vehicles
§ 102–34.255 What are motor vehicle
replacement standards?
Yes. The replacement standard is a
minimum only, and therefore, you may
keep a Government-owned motor vehicle longer than shown in § 102–34.270 if
the motor vehicle can be operated
without excessive maintenance costs or
substantial reduction in resale value.
50,000
7
60,000
9
80,000
6
40,000
§ 102–34.280 What State inspections
must we have for Government
motor vehicles?
You must have the following State
inspections for Government motor vehicles:
(a) Federally-mandated emissions inspections when required by the relevant State motor vehicle administration or State environmental department. Your agency must pay for these
inspections if the fee is not waived.
GSA Fleet will pay the cost of these inspections for motor vehicles leased
from GSA Fleet; or
§ 102–34.270 How long must we keep a
Government-owned motor vehicle?
You must keep a Government-owned
motor vehicle for at least the years or
miles shown in the following table, unless it is no longer needed and declared
excess:
81
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§ 102–34.275 What kind of maintenance
programs must we have?
You must have a scheduled maintenance program for each motor vehicle
you own or lease commercially. This
requirement applies to domestic fleets,
and is recommended for foreign fleets.
The GSA Fleet will develop maintenance programs for GSA Fleet vehicles.
The scheduled maintenance program
must:
(a) Meet Federal and State emissions
and safety standards;
(b) Meet manufacturer warranty requirements;
(c) Ensure the safe and economical
operating condition of the motor vehicle throughout its life; and
(d) Ensure that inspections and servicing occur as recommended by the
manufacturer or more often if local operating conditions require.
§ 102–34.265 May we keep a Government-owned motor vehicle even
though the standard permits replacement?
PO 00000
280,000
150,000
80,000
Subpart F—Scheduled
Maintenance of Motor Vehicles
Yes. You may replace a Governmentowned motor vehicle if it needs body or
mechanical repairs that exceed the fair
market value of the motor vehicle. Determine the fair market value by adding the current market value of the
motor vehicle plus any capitalized
motor vehicle additions (such as a utility body or liftgate) or repairs. Your
agency head or designee must review
the replacement in advance.
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standards are stated in both years and miles;
use whichever occurs first.
§ 102–34.260 May we replace a Government-owned motor vehicle sooner?
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60,000
60,000
1 Minimum
Motor vehicle replacement standards
specify the minimum number of years
in use or miles traveled at which an executive agency may replace a Government-owned motor vehicle (see § 102–
34.270).
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§ 102–34.285
41 CFR Ch. 102 (7–1–16 Edition)
(b) For motor vehicles that display
license plates issued by a State, Commonwealth, territory, or possession of
the United States, motor vehicle safety
inspections required by the relevant
motor vehicle administration. Your
agency must pay for these inspections
unless the fee is waived. Payment for
these inspections for motor vehicles
leased from GSA Fleet is the responsibility of the using agency. Government
motor vehicles that display official
U.S. Government license plates do not
require motor vehicle safety inspections.
Subpart H—Disposal of Motor
Vehicles
§ 102–34.300 How do we dispose of a
domestic fleet motor vehicle?
After meeting the replacement standards under subpart E of this part, you
may dispose of a Government-owned
domestic fleet motor vehicle. Detailed
instructions for the transfer of an excess motor vehicle to another Federal
agency can be found in part 102–36 of
this subchapter B, information for the
donation of surplus of motor vehicles
can be found in part 102–37 of this subchapter B, information for the sale of
motor vehicles can be found in part
102–38 of this subchapter B, and information on exchange/sale authority can
be found in part 102–39 of this subchapter B.
§ 102–34.285 Where can we obtain help
in setting up a maintenance program?
For help in setting up a maintenance
program, contact the: General Services
Administration, Attn: Motor Vehicle
Policy, Washington, DC 20405. E-mail:
[email protected].
§ 102–34.305 What forms do we use to
transfer ownership when selling a
motor vehicle?
Use the following forms to transfer
ownership:
(a) SF 97, The United States Government Certificate to Obtain Title to a
Motor Vehicle, if both of the following
apply:
(1) The motor vehicle will be retitled
by a State, Commonwealth, territory
or possession of the United States or
the District of Columbia; and
(2) The purchaser intends to operate
the motor vehicle on highways.
Subpart G—Motor Vehicle Crash
Reporting
§ 102–34.290 What forms do I use to report a crash involving a domestic
fleet motor vehicle?
Use the following forms to report a
domestic fleet crash. The forms should
be carried in any domestic fleet motor
vehicle.
(a) Standard Form (SF) 91, Motor Vehicle Accident Report. The motor vehicle
operator should complete this form at
the time and scene of the crash if possible, even if damage to the motor vehicle is not noticeable.
(b) SF 94, Statement of Witness. This
form should be completed by any witness to the crash.
§ 102–34.295 To whom
crash reports?
do
we
NOTE TO § 102–34.305(a)(2): Do not use SF 97
if the Government-owned motor vehicle is either not designed or not legal for operation
on highways. Examples are construction
equipment, farm machinery, and certain
military-design motor vehicles and motor
vehicles that are damaged beyond repair in
crashes and intended to be sold as salvage
only. Instead, use an appropriate bill of sale
or award document. Examples are Optional
Form 16, Sales Slip—Sale of Government
Personal Property, and SF 114C, Sale of Government Property-Bid and Award.
send
(b) SF 97 is optional for foreign fleet
motor vehicles because foreign governments may require the use of other
forms.
Send crash reports as follows:
(a) If the motor vehicle is owned or
commercially leased by your agency,
follow your internal agency directives.
(b) If the motor vehicle is leased from
GSA Fleet, report the crash to GSA in
accordance with subpart 101–39.4 of this
Title.
NOTE TO § 102–34.305: The original SF 97 is
printed on secure paper to identify readily
any attempt to alter the form. The form is
also pre-numbered to prevent duplicates.
State motor vehicle agencies may reject certificates showing erasures or strikeovers.
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Federal Management Regulation
§ 102–34.330
Government purchase card does not
collect motor vehicle data nor does it
deduct State sales and motor fuel
taxes.
§ 102–34.310 How do we distribute the
completed Standard Form 97?
SF 97 is a 4-part set printed on continuous-feed paper. Distribute the form
as follows:
(a) Original SF 97 to the purchaser or
donee;
(b) One copy to the owning agency;
(c) One copy to the contracting officer making the sale or transfer of the
motor vehicle; and
(d) One copy under owning agency directives.
NOTE TO § 102–34.320: OMB Circular A–123,
Appendix B, contains additional specific
guidance on the management, issuance, and
usage of Government charge cards. The Appendix B guidance consolidates and updates
current Governmentwide charge card program requirements and guidance issued by
the Office of Management and Budget, GSA,
Department of the Treasury, and other Federal agencies. Appendix B provides a single
document to incorporate changes, new guidance, or amendments to existing guidance,
and establishes minimum requirements and
suggested best practices for Government
charge card programs that may be supplemented by individual agency policy procedures.
Subpart I—Motor Vehicle Fueling
§ 102–34.315 How do we obtain fuel for
Government motor vehicles?
You may obtain fuel for Government
motor vehicles by using:
(a) A Government-issued charge card;
(b) A Government agency fueling facility; or
(c) Personal funds and obtaining reimbursement from your agency, if permitted by your agency. You must use
the method prescribed by GSA Fleet to
obtain fuel for vehicles leased from
GSA fleet.
§ 102–34.325 What type of fuel do I use
in Government motor vehicles?
(a) Use the minimum grade (octane
rating) of fuel recommended by the
motor vehicle manufacturer when fueling Government motor vehicles, unless
a higher grade of fuel is all that is
available locally.
(b) Use unleaded gasoline in all foreign fleet motor vehicles designed to
operate on gasoline unless:
(1) Such use would be in conflict with
country-to-country or multi-national
logistics agreements; or
(2) Such gasoline is not available locally.
(c) You must use alternative fuels in
alternative fuel motor vehicles to the
fullest extent possible as directed by
regulations issued by the Department
of Energy implementing the Energy
Policy Act and related Executive Orders.
§ 102–34.320 What Government-issued
charge cards may I use to purchase
fuel and motor vehicle related services?
(a) You may use a fleet charge card
specifically issued for this purpose.
These cards are designed to collect
motor vehicle data at the time of purchase. Where appropriate, State sales
and motor fuel taxes may be deducted
from fuel purchases by the fleet charge
card services contractor before your
agency is billed; otherwise you may
need to request reimbursement from
each State to which taxes were paid.
The GSA contractor issued fleet charge
card is the only Government-issued
charge card that may be used for GSA
Fleet motor vehicles. For further information on acquiring these fleet charge
cards and their use, contact the: General Services Administration, ATTN:
GSA SmartPay ® (QMB), 2200 Crystal
Drive, Arlington, VA 22202.
(b) You may use a Government purchase card if you do not have a fleet
charge card or if the use of such a Government purchase card is required by
your agency mission. However, the
Subpart J—Federal Fleet Report
§ 102–34.330 What is the Federal Fleet
Report?
The Federal Fleet Report (FFR) is an
annual summary of Federal fleet statistics based upon fleet composition at
the end of each fiscal year and vehicle
use and cost during the fiscal year. The
FFR is compiled by GSA from information submitted by Federal agencies.
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§ 102–34.335
41 CFR Ch. 102 (7–1–16 Edition)
ternal reporting requirements, including:
(1) Cost per mile;
(2) Fuel costs for each motor vehicle;
and
(3) Data required for FAST (see § 102–
34.335).
The FFR is designed to provide essential statistical data for worldwide Federal motor vehicle fleet operations. Review of the report assists Government
agencies, including GSA, in evaluating
the effectiveness of the operation and
management of individual fleets to determine whether vehicles are being utilized properly and to identify high cost
areas where fleet expenses can be reduced. The FFR is posted on GSA’s
Motor Vehicle Management Policy
Internet Web site (http://www.gsa.gov/
vehiclepolicy).
§ 102–34.345 What records do we need
to keep?
You are responsible for developing
and keeping adequate accounting and
reporting procedures for Government
motor vehicles. These will ensure accurate recording of inventory, cost, and
operational data needed to manage and
control motor vehicles, and will satisfy
reporting requirements. You must also
comply with the General Records
Schedules issued by the National Archives and Records Administration
(http://www.archives.gov).
§ 102–34.335 How do I submit information to the General Services Administration (GSA) for the Federal
Fleet Report (FFR)?
(a) Annually, agencies must submit
to GSA the information needed to
produce the FFR through the Federal
Automotive Statistical Tool (FAST),
an Internet-based reporting tool. To
find out how to submit motor vehicle
data to GSA through FAST, consult
the instructions from your agency fleet
manager and read the documentation
at http://fastweb.inel.gov/.
(b) Specific reporting categories, by
agency, included in the FFR are—
(1) Inventory;
(2) Acquisitions;
(3) Operating costs;
(4) Miles traveled; and
(5) Fuel used.
Subpart K—Forms
§ 102–34.350 How do we obtain the
forms prescribed in this part?
See § 102–2.135 of this chapter for how
to obtain forms prescribed in this part.
PART 102–35—DISPOSITION OF
PERSONAL PROPERTY
Sec.
102–35.5 What is the scope of the General
Services Administration’s regulations on
the disposal of personal property?
102–35.10 How are these regulations for the
disposal of personal property organized?
102–35.15 What are the goals of GSA’s personal property regulations?
102–35.20 What definitions apply to GSA’s
personal property regulations?
102–35.25 What management reports must
we provide?
102–35.30 What actions must I take or am I
authorized to take regardless of the property disposition method?
NOTE TO § 102–34.335: The FAST system is
also used by agency Fleet Managers to provide the Department of Energy with information required by the Energy Policy Act
and related Executive Orders. In addition,
the Office of Management and Budget (OMB)
requires agency Fleet Managers and budget
officers to submit annual agency motor vehicle budgeting information to OMB through
FAST (see OMB Circular A–11, Preparation,
Submission, and Execution of the Budget).
§ 102–34.340 Do we need a fleet management information system?
Yes, you must have a fleet management information system at the department or agency level that —
(a) Identifies and collects accurate
inventory, cost, and use data that covers the complete lifecycle of each
motor vehicle (acquisition, operation,
maintenance, and disposal); and
(b) Provides the information necessary to satisfy both internal and ex-
AUTHORITY: 40 U.S.C. 121(c).
SOURCE: 72 FR 10085, Mar. 7, 2007, unless
otherwise noted.
§ 102–35.5 What is the scope of the
General Services Administration’s
regulations on the disposal of personal property?
The General Services Administration’s personal property disposal regulations are contained in this part and
in parts 102–36 through 102–42 of this
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Federal Management Regulation
§ 102–35.20
subchapter B as well as in parts 101–42
and 101–45 of the Federal Property
Management Regulations (FPMR)(41
CFR parts 101–42 and 101–45). With two
exceptions, these regulations cover the
disposal of personal property under the
custody and control of executive agencies located in the United States, the
U.S. Virgin Islands, American Samoa,
Guam, Puerto Rico, the Northern Mariana Islands, the Federated States of
Micronesia, the Marshall Islands, and
Palau. The exceptions to this coverage
are part 102–39 of this subchapter B,
which applies to the replacement of all
property owned by executive agencies
worldwide using the exchange/sale authority, and §§ 102–36.380 through 102–
36.400, which apply to the disposal of
excess property located in countries
and areas not listed in this subpart,
i.e., foreign excess personal property.
The legislative and judicial branches
are encouraged to follow these provisions for property in their custody and
control.
§ 102–35.15 What are the goals of GSA’s
personal property regulations?
The goals of GSA’s personal property
regulations are to:
(a) Improve the identification and reporting of excess personal property;
(b) Maximize the use of excess property as the first source of supply to
minimize expenditures for the purchase
of new property, when practicable;
NOTE TO § 102–35.15(b): If there are competing requests among Federal agencies for
excess property, preference will be given to
agencies where the transfer will avoid a new
Federal procurement. A transfer to an agency where the agency will provide the property to a non-Federal entity for the non-Federal entity’s use will be secondary to Federal
use.
(c) Achieve maximum public benefit
from the use of Government property
through the donation of surplus personal property to State and local public agencies and other eligible non-Federal recipients;
(d) Obtain the optimum monetary return to the Government for surplus
personal property sold and personal
property sold under the exchange/sale
authority; and
(e) Reduce management and inventory costs by appropriate use of the
abandonment/destruction authority to
dispose of unneeded personal property
that has no commercial value or for
which the estimated cost of continued
care and handling would exceed the estimated sales proceeds (see FMR §§ 102–
36.305 through 102–36.330).
§ 102–35.10 How are these regulations
for the disposal of personal property organized?
The General Services Administration
(GSA) has divided its regulations for
the disposal of personal property into
the following program areas:
(a) Disposition of excess personal
property (part 102–36 of this subchapter
B).
(b) Donation of surplus personal
property (part 102–37 of this subchapter
B).
(c) Sale of surplus personal property
(part 102–38 of this subchapter B).
(d) Replacement of personal property
pursuant to the exchange/sale authority (part 102–39 of this subchapter B).
(e) Disposition of seized and forfeited,
voluntarily abandoned, and unclaimed
personal property (part 102–41 of this
subchapter B).
(f) Utilization, donation, and disposal
of foreign gifts and decorations (part
102–42 of this subchapter B).
(g) Utilization and disposal of hazardous materials and certain categories of property (part 101–42 of the
Federal Property Management Regulations (FPMR), 41 CFR part 101–42).
§ 102–35.20 What definitions apply to
GSA’s personal property regulations?
The following are definitions of, or
cross-references to, some key terms
that apply to GSA’s personal property
regulations in the FMR (CFR parts 102–
36 through 102–42). Other personal property terms are defined in the sections
or parts to which they primarily apply.
Accountable Personal Property includes nonexpendable personal property whose expected useful life is two
years or longer and whose acquisition
value, as determined by the agency,
warrants tracking in the agency’s
property records, including capitalized
and sensitive personal property.
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§ 102–35.25
41 CFR Ch. 102 (7–1–16 Edition)
Accountability means the ability to
account for personal property by providing a complete audit trail for property transactions from receipt to final
disposition.
Acquisition cost means the original
purchase price of an item.
Capitalized Personal Property includes
property that is entered on the agency’s general ledger records as a major
investment or asset. An agency must
determine its capitalization thresholds
as discussed in Financial Accounting
Standard Advisory Board (FASAB)
Statement of Federal Financial Accounting Standards No. 6 Accounting
for Property, Plant and Equipment,
Chapter 1, paragraph 13.
Control means the ongoing function
of maintaining physical oversight and
surveillance
of
personal
property
throughout its complete life cycle
using various property management
tools and techniques taking into account the environment in which the
property is located and its vulnerability to theft, waste, fraud, or abuse.
Excess personal property (see § 102–36.40
of this subchapter B).
Exchange/sale (see § 102–39.20 of this
subchapter B).
Executive agency (see § 102–36.40 of this
subchapter B).
Federal agency (see § 102–36.40 of this
subchapter B).
Foreign gifts and decorations (for the
definition of relevant terms, see § 102–
42.10 of this subchapter B).
Forfeited property (see § 102–41.20 of
this subchapter B).
Inventory includes a formal listing of
all accountable property items assigned to an agency, along with a formal process to verify the condition, location, and quantity of such items.
This term may also be used as a verb to
indicate the actions leading to the development of a listing. In this sense, an
inventory must be conducted using an
actual
physical
count,
electronic
means, and/or statistical methods.
National property management officer
means an official, designated in accordance with § 102–36.45(b) of this subchapter B, who is responsible for ensuring effective acquisition, use, and disposal of excess property within your
agency.
Personal property (see § 102–36.40 of
this subchapter B).
Property management means the system of acquiring, maintaining, using
and disposing of the personal property
of an organization or entity.
Seized property means personal property that has been confiscated by a
Federal agency, and whose care and
handling will be the responsibility of
that agency until final ownership is determined by the judicial process.
Sensitive Personal Property includes
all items, regardless of value, that require special control and accountability due to unusual rates of loss,
theft or misuse, or due to national security or export control considerations. Such property includes weapons, ammunition, explosives, information technology equipment with memory capability, cameras, and communications equipment. These classifications do not preclude agencies from
specifying additional personal property
classifications to effectively manage
their programs.
Surplus personal property (see § 102–
37.25 of this subchapter B).
Utilization means the identification,
reporting, and transfer of excess personal property among Federal agencies.
§ 102–35.25 What management reports
must we provide?
(a) There are three reports that must
be provided. The report summarizing
the property provided to non-Federal
recipients and the report summarizing
exchange/sale transactions (see §§ 102–
36.295 and 102–39.75 respectively of this
subchapter B) must be provided every
year (negative reports are required). In
addition, if you conduct negotiated
sales of surplus personal property valued over $5,000 in any year, you must
report this transaction in accordance
with § 102–38.115 (negative reports are
not required for this report).
(b) The General Services Administration (GSA) may request other reports
as authorized by 40 U.S.C. 506(a)(1)(A).
§ 102–35.30 What actions must I take or
am I authorized to take regardless
of the property disposition method?
Regardless of the disposition method
used:
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Federal Management Regulation
Pt. 102–36
Subpart B—Acquiring Excess Personal
Property For Our Agency
(a) You must maintain property in a
safe, secure, and cost-effective manner
until final disposition.
(b) You have authority to use the
abandonment/ destruction provisions
at any stage of the disposal process
(see §§ 102–36.305 through 102–36.330 and
§ 102–38.70 of this subchapter B).
(c) You must implement policies and
procedures to remove sensitive or classified information from property prior
to disposal. Agency-affixed markings
should be removed, if at all possible,
prior to personal property permanently
leaving your agency’s control.
(d) Government-owned personal property may only be used as authorized by
your agency. Title to Governmentowned personal property cannot be
transferred to a non-Federal entity unless through official procedures specifically authorized by law.
ACQUIRING EXCESS
102–36.60 Who is eligible to acquire excess
personal property as authorized by the
Property Act?
102–36.65 Why must we use excess personal
property instead of buying new property?
102–36.70 What must we consider when acquiring excess personal property?
102–36.75 Do we pay for excess personal
property we acquire from another federal
agency under a transfer?
102–36.80 How much do we pay for excess
personal property on a transfer with reimbursement?
102–36.85 Do we pay for personal property we
acquire when it is disposed of by another
agency under the exchange/sale authority, and how much do we pay?
SCREENING OF EXCESS
102–36.90 How do we find out what personal
property is available as excess?
102–36.95 How long is excess personal property available for screening?
102–36.100 When does the screening period
start for excess personal property?
102–36.105 Who is authorized to screen and
where do we go to screen excess personal
property on-site?
102–36.110 Do we need authorization to
screen excess personal property?
102–36.115 What information must we include in the authorization form for nonfederal persons to screen excess personal
property?
102–36.120 What are our responsibilities in
authorizing a non-federal individual to
screen excess personal property?
PART 102–36—DISPOSITION OF
EXCESS PERSONAL PROPERTY
Subpart A—General Provisions
Sec.
102–36.5 What is the governing authority for
this part?
102–36.10 What does this part cover?
102–36.15 Who must comply with the provisions of this part?
102–36.20 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–36.25 How do we request a deviation
from these requirements and who can approve it?
102–36.30 When is personal property excess?
102–36.35 What is the typical process for disposing of excess personal property?
PROCESSING TRANSFERS
102–36.125 How do we process a Standard
Form 122 (SF 122), Transfer Order Excess
Personal Property, through GSA?
102–36.130 What are our responsibilities in
processing transfer orders of excess personal property?
102–36.135 How much time do we have to
pick up excess personal property that has
been approved for transfer?
102–36.140 May we arrange to have the excess personal property shipped to its
final destination?
DEFINITIONS
102–36.40 What
part?
definitions
apply
to
this
RESPONSIBILITY
102–36.45 What are our responsibilities in
the management of excess personal property?
102–36.50 May we use a contractor to perform the functions of excess personal
property disposal?
102–36.55 What is GSA’s role in the disposition of excess personal property?
DIRECT TRANSFERS
102–36.145 May we obtain excess personal
property directly from another federal
agency without GSA approval?
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Pt. 102–36
41 CFR Ch. 102 (7–1–16 Edition)
102–36.235 What information do we provide
when reporting excess personal property?
102–36.240 What are the disposal condition
codes?
Subpart C—Acquiring Excess Personal
Property for Non-federal Recipients
102–36.150 For which non-federal activities
may we acquire excess personal property?
102–36.155 What are our responsibilities
when acquiring excess personal property
for use by a non-federal recipient?
102–36.160 What
additional
information
must we provide on the SF 122 when acquiring excess personal property for nonfederal recipients?
DISPOSING OF EXCESS PERSONAL PROPERTY
102–36.245 Are we accountable for the personal property that has been reported excess, and who is responsible for the care
and handling costs?
102–36.250 Does GSA ever take physical custody of excess personal property?
102–36.255 What options do we have when
unusual circumstances do not allow adequate time for disposal through GSA?
102–36.260 How do we promote the expeditious transfer of excess personal property?
102–36.265 What if there are competing requests for the same excess personal property?
102–36.270 What if a federal agency requests
personal property that is undergoing donation screening or in the sales process?
102–36.275 May we dispose of excess personal
property without GSA approval?
102–36.280 May we withdraw from the disposal process excess personal property
that we have reported to GSA?
NON-APPROPRIATED FUND ACTIVITIES
102–36.165 Do we retain title to excess personal property furnished to a non-appropriated fund activity within our agency?
102–36.170 May we transfer personal property owned by one of our non-appropriated fund activities?
CONTRACTORS
102–36.175 Are there restrictions to acquiring excess personal property for use by
our contractors?
COOPERATIVES
102–36.180 Is there any limitation/condition
to acquiring excess personal property for
use by cooperatives?
TRANSFERS WITH REIMBURSEMENT
PROJECT GRANTEES
102–36.285 May we charge for personal property transferred to another federal agency?
102–36.290 How much do we charge for excess
personal property on a transfer with reimbursement?
102–36.185 What are the requirements for acquiring excess personal property for use
by our grantees?
102–36.190 Must we always pay 25 percent of
the original acquisition cost when furnishing excess personal property to
project grantees?
102–36.195 What type of excess personal
property may we furnish to our project
grantees?
102–36.200 May we acquire excess personal
property for cannibalization purposes by
the grantee?
102–36.205 Is there a limit to how much excess personal property we may furnish to
our grantees?
REPORT OF DISPOSAL ACTIVITY
102–36.295 Is there any reporting requirement on the disposition of excess personal property?
102–36.300 How do we report the furnishing
of personal property to non-federal recipients?
ABANDONMENT/DESTRUCTION
102–36.305 May we abandon or destroy excess
personal property without reporting it to
GSA?
102–36.310 Who makes the determination to
abandon or destroy excess personal property?
102–36.315 Are there any restrictions to the
use of the abandonment/destruction authority?
102–36.320 May we transfer or donate excess
personal property that has been determined appropriate for abandonment/destruction without GSA approval?
102–36.325 What must be done before the
abandonment/destruction of excess personal property?
Subpart D—Disposition of Excess Personal
Property
102–36.210 Why must we report excess personal property to GSA?
REPORTING EXCESS PERSONAL PROPERTY
102–36.215 How do we report excess personal
property?
102–36.220 Must we report all excess personal property to GSA?
102–36.225 Must we report excess related personal property?
102–36.230 Where do we send the reports of
excess personal property?
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Federal Management Regulation
§ 102–36.5
102–36.330 Are there occasions when public
notice is not needed regarding abandonment/destruction of excess personal property?
HAZARDOUS PERSONAL PROPERTY
102–36.425 May we dispose of excess hazardous personal property?
MUNITIONS LIST ITEMS/COMMERCE CONTROL
LIST ITEMS (MLIS/CCLIS)
Subpart E—Personal Property Whose
Disposal Requires Special Handling
102–36.430 May we dispose of excess Munitions List Items (MLIs)/Commerce Control List Items (CCLIs)?
102–36.435 How do we identify Munitions
List Items (MLIs)/Commerce Control
List Items (CCLIs) requiring demilitarization?
102–36.335 Are there certain types of excess
personal property that must be disposed
of differently from normal disposal procedures?
AIRCRAFT AND AIRCRAFT PARTS
102–36.340 What must we do when disposing
of excess aircraft?
102–36.345 May we dispose of excess Flight
Safety Critical Aircraft Parts (FSCAP)?
102–36.350 How do we identify a FSCAP?
102–36.355 What are the FSCAP Criticality
Codes?
102–36.360 How do we dispose of aircraft
parts that are life-limited but have no
FSCAP designation?
PRINTING EQUIPMENT AND SUPPLIES
102–36.440 Are there special procedures for
reporting excess printing and binding
equipment and supplies?
RED CROSS PROPERTY
102–36.445 Do we report excess personal
property originally acquired from or
through the American National Red
Cross?
CANINES, LAW ENFORCEMENT
SHELF-LIFE ITEMS
102–36.365 May we transfer or donate canines that have been used in the performance of law enforcement duties?
102–36.450 Do we report excess shelf-life
items?
102–36.455 How do we report excess shelf-life
items?
102–36.460 Do we report excess medical shelflife items held for national emergency
purposes?
102–36.465 May we transfer or exchange excess medical shelf-life items with other
Federal agencies?
DISASTER RELIEF PROPERTY
102–36.370 Are there special requirements
concerning the use of excess personal
property for disaster relief?
FIREARMS
102–36.375 May we dispose of excess firearms?
VESSELS
FOREIGN EXCESS PERSONAL PROPERTY
102–36.470 What must we do when disposing
of excess vessels?
102–36.380 Who is responsible for disposing
of foreign excess personal property?
102–36.385 What are our responsibilities in
the disposal of foreign excess personal
property?
102–36.390 How may we dispose of foreign excess personal property?
102–36.395 How may GSA assist us in disposing of foreign excess personal property?
102–36.400 Who pays for the transportation
costs when foreign excess personal property is returned to the United States?
Subpart F—Miscellaneous Disposition
102–36.475 What is the authority for transfers under ‘‘Computers for Learning’’?
AUTHORITY: 40 U.S.C. 121(c).
SOURCE: 65 FR 31218, May 16, 2000, unless
otherwise noted.
Subpart A—General Provisions
§ 102–36.5 What is the governing authority for this part?
Section 121(c) of title 40, United
States Code, authorizes the Administrator of General Services to prescribe
regulations as he deems necessary to
carry out his functions under subtitle I
of title 40. Section 521 of title 40 authorizes the General Services Administration (GSA) to prescribe policies to
promote the maximum use of excess
GIFTS
102–36.405 May we keep gifts given to us
from the public?
102–36.410 How do we dispose of a gift in the
form of money or intangible personal
property?
102–36.415 How do we dispose of gifts other
than intangible personal property?
102–36.420 How do we dispose of gifts from
foreign governments or entities?
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§ 102–36.10
41 CFR Ch. 102 (7–1–16 Edition)
Government personal property by executive agencies.
possible transfer to eligible recipients,
including federal agencies for direct
use or for use by their contractors,
project grantees, or cooperative agreement recipients. All executive agencies
must, to the maximum extent practicable, fill requirements for personal
property by using existing agency
property or by obtaining excess property from other federal agencies in lieu
of new procurements.
(b) If GSA determines that there are
no federal requirements for your excess
personal property, it becomes surplus
property and is available for donation
to state and local public agencies and
other eligible non-federal activities.
Title 40 of the United States Code requires that surplus personal property
be distributed to eligible recipients by
an agency established by each State for
this purpose, the State Agency for Surplus Property.
(c) Surplus personal property not selected for donation is offered for sale to
the public by competitive offerings
such as sealed bid sales, spot bid sales,
or auctions. You may conduct or contract for the sale of your surplus personal property, or have GSA or another
executive agency conduct the sale on
behalf of your agency in accordance
with part 102–38 of this chapter. You
must inform GSA at the time the property is reported as excess if you do not
want GSA to conduct the sale for you.
(d) If a written determination is
made that the property has no commercial value or the estimated cost of
its continued care and handling would
exceed the estimated proceeds from its
sale, you may dispose of the property
by abandonment or destruction, or donate it to public bodies.
[71 FR 53571, Sept. 12, 2006]
§ 102–36.10 What does this part cover?
This part covers the acquisition,
transfer, and disposal, by executive
agencies, of excess personal property
located in the United States, the U.S.
Virgin Islands, American Samoa,
Guam, Puerto Rico, the Federated
States of Micronesia, the Marshall Islands, Palau, and the Northern Mariana Islands.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53571, Sept. 12, 2006]
§ 102–36.15 Who must comply with the
provisions of this part?
All executive agencies must comply
with the provisions of this part. The
legislative and judicial branches are
encouraged to report and transfer excess personal property and fill their
personal property requirements from
excess in accordance with these provisions.
§ 102–36.20 To whom do ‘‘we’’, ‘‘you’’,
and their variants refer?
Use of pronouns ‘‘we’’, ‘‘you’’, and
their variants throughout this part
refer to the agency.
§ 102–36.25 How do we request a deviation from these requirements and
who can approve it?
See §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of this part.
§ 102–36.30 When is personal property
excess?
Personal property is excess when it is
no longer needed by the activities
within your agency to carry out the
functions of official programs, as determined by the agency head or designee.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53571, Sept. 12, 2006]
DEFINITIONS
§ 102–36.40 What definitions apply to
this part?
The following definitions apply to
this part:
Commerce Control List Items (CCLIs)
are dual use (commercial/military)
items that are subject to export control by the Bureau of Export Administration, Department of Commerce.
These items have been identified in the
§ 102–36.35 What is the typical process
for disposing of excess personal
property?
(a) You must ensure personal property not needed by your activity is offered for use elsewhere within your
agency. If the property is no longer
needed by any activity within your
agency, your agency declares the property excess and reports it to GSA for
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Federal Management Regulation
§ 102–36.40
Executive agency means any executive
department or independent establishment in the executive branch of the
Government, including any wholly
owned government corporation.
Fair market value means the best estimate of the gross sales proceeds if the
property were to be sold in a public
sale.
Federal agency means any executive
agency or any establishment in the legislative or judicial branch of the government (except the Senate, the House
of Representatives, and the Architect
of the Capitol and any activities under
his/her direction).
Flight Safety Critical Aircraft Part
(FSCAP) is any aircraft part, assembly,
or installation containing a critical
characteristic whose failure, malfunction, or absence could cause a catastrophic failure resulting in engine
shut-down or loss or serious damage to
the aircraft resulting in an unsafe condition.
Foreign excess personal property is any
U.S. owned excess personal property located outside the United States (U.S.),
the U.S. Virgin Islands, American
Samoa, Guam, Puerto Rico, the Federated States of Micronesia, the Marshall Islands, Palau, and the Northern
Mariana Islands.
Grant means a type of assistance
award and a legal instrument which
permits a federal agency to transfer
money, property, services or other
things of value to a grantee when no
substantial involvement is anticipated
between the agency and the recipient
during the performance of the contemplated activity.
GSAXcess ® is GSA’s website for reporting, searching and selecting excess
personal property. For information on
using
GSAXcess ®,
access
http://
www.gsaxcess.gov.
Hazardous personal property means
property that is deemed a hazardous
material, chemical substance or mixture, or hazardous waste under the
Hazardous Materials Transportation
Act (HMTA) (49 U.S.C. 5101), the Resource Conservation and Recovery Act
(RCRA) (42 U.S.C. 6901–6981), or the
Toxic Substances Control Act (TSCA)
(15 U.S.C. 2601–2609).
Holding agency means the federal
agency having accountability for, and
U.S. Export Administration Regulations (15 CFR part 774) as export controlled for reasons of national security,
crime control, technology transfer, and
scarcity of materials.
Cooperative means the organization
or entity that has a cooperative agreement with a federal agency.
Cooperative agreement means a legal
instrument reflecting a relationship
between a federal agency and a nonfederal recipient, made in accordance
with the Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C.
6301–6308), under any or all of the following circumstances:
(1) The purpose of the relationship is
the transfer, between a federal agency
and a non-federal entity, of money,
property, services, or anything of value
to accomplish a public purpose authorized by law, rather than by purchase,
lease, or barter, for the direct benefit
or use of the federal government.
(2) Substantial involvement is anticipated between the federal agency and
the cooperative during the performance of the agreed upon activity.
(3) The cooperative is a state or local
government entity or any person or organization authorized to receive federal assistance or procurement contracts.
Demilitarization means, as defined by
the Department of Defense, the act of
destroying the military capabilities inherent in certain types of equipment or
material. Such destruction may include deep sea dumping, mutilation,
cutting, crushing, scrapping, melting,
burning, or alteration so as to prevent
the further use of the item for its originally intended purpose.
Excess personal property means any
personal property under the control of
any federal agency that is no longer required for that agency’s needs, as determined by the agency head or designee.
Exchange/sale property is property not
excess to the needs of the holding agency but eligible for replacement, which
is exchanged or sold under the provisions of part 102–39 of this chapter in
order to apply the exchange allowance
or proceeds of sale in whole or part
payment for replacement with a similar item.
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§ 102–36.40
41 CFR Ch. 102 (7–1–16 Edition)
Related personal property means any
personal property that is an integral
part of real property. It is:
(1) Related to, designed for, or specifically adapted to the functional capacity of the real property and removal
of this personal property would significantly diminish the economic value of
the real property; or
(2) Determined by the Administrator
of General Services to be related to the
real property.
Salvage means property that has
value greater than its basic material
content but for which repair or rehabilitation is clearly impractical and/or
uneconomical.
Scrap means property that has no
value except for its basic material content.
Screening period means the period in
which excess and surplus personal
property are made available for excess
transfer or surplus donation to eligible
recipients.
Shelf-life item is any item that deteriorates over time or has unstable
characteristics such that a storage period must be assigned to assure the
item is issued within that period to
provide satisfactory performance. Management of such items is governed by
part 101–27, subpart 27.2, of this title
and by DOD instructions, for executive
agencies and DOD respectively.
Surplus personal property (surplus)
means excess personal property no
longer required by the Federal agencies
as determined by GSA.
Surplus release date means the date
when federal screening has been completed and the excess property becomes
surplus.
Transfer with reimbursement means a
transfer of excess personal property between Federal agencies where the recipient is required to pay, i.e. reimburse the holding agency, for the property.
Unit cost means the original acquisition cost of a single item of property.
United States means all the 50 States
and the District of Columbia.
Vessels means ships, boats and craft
designed for navigation in and on the
water, propelled by oars or paddles,
sail, or power.
generally possession of, the property
involved.
Intangible personal property means
personal property in which the existence and value of the property is generally represented by a descriptive document rather than the property itself.
Some examples are patents, patent
rights, processes, techniques, inventions, copyrights, negotiable instruments, money orders, bonds, and shares
of stock.
Life-limited aircraft part is an aircraft
part that has a finite service life expressed in either total operating hours,
total cycles, and/or calendar time.
Line item means a single line entry,
on a reporting form or transfer order,
for items of property of the same type
having the same description, condition
code, and unit cost.
Munitions List Items (MLIs) are commodities (usually defense articles/defense services) listed in the International Traffic in Arms Regulation (22
CFR part 121), published by the U.S.
Department of State.
Nonappropriated fund activity means
an activity or entity that is not funded
by money appropriated from the general fund of the U.S. Treasury, such as
post exchanges, ship stores, military
officers’ clubs, veterans’ canteens, and
similar activities. Such property is not
federal property.
Personal property means any property, except real property. For purposes of this part, the term excludes
records of the federal government, and
naval vessels of the following categories: battleships, cruisers, aircraft
carriers, destroyers, and submarines.
Project grant means a grant made for
a specific purpose and with a specific
termination date.
Public agency means any State, political subdivision thereof, including any
unit of local government or economic
development district; any department,
agency, or instrumentality thereof, including instrumentalities created by
compact or other agreement between
States or political subdivisions; multijurisdictional substate districts established by or pursuant to State law; or
any Indian tribe, band, group, pueblo,
or community located on a State reservation.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53571, Sept. 12, 2006]
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Federal Management Regulation
§ 102–36.55
RESPONSIBILITY
assure maximum use, and develop and
maintain a system to prevent and detect nonuse, improper use, unauthorized disposal, or destruction of personal
property.
(e) When you no longer need personal
property to carry out the mission of
your program, you must:
(1) Offer the property for reassignment to other activities within your
agency.
(2) Promptly report excess personal
property to GSA when it is no longer
needed by any activity within your
agency for further reuse by eligible recipients.
(3) Continue the care and handling of
excess personal property while it goes
through the disposal process.
(4) Facilitate the timely transfer of
excess personal property to other federal agencies or authorized eligible recipients.
(5) Provide reasonable access to authorized personnel for inspection and
removal of excess personal property.
(6) Ensure that final disposition complies with applicable environmental,
health, safety, and national security
regulations.
§ 102–36.45 What are our responsibilities in the management of excess
personal property?
(a) Agency procurement policies
should require consideration of excess
personal property before authorizing
procurement of new personal property.
(b) You are encouraged to designate
national and regional property management officials to:
(1) Promote the use of available excess personal property to the maximum
extent practicable by your agency.
(2) Review and approve the acquisition and disposal of excess personal
property.
(3) Ensure that any agency implementing procedures comply with this
part.
(c) When acquiring excess personal
property, you must:
(1) Limit the quantity acquired to
that which is needed to adequately perform the function necessary to support
the mission of your agency.
(2) Establish controls over the processing of excess personal property
transfer orders.
(3) Facilitate the timely pickup of
acquired excess personal property from
the holding agency.
(d) While excess personal property
you have acquired is in your custody,
or the custody of your non-Federal recipients and the government retains
title, you and/or the non-Federal recipient must do the following:
(1) Establish and maintain a system
for property accountability.
(2) Protect the property against hazards including but not limited to fire,
theft, vandalism, and weather.
(3) Perform the care and handling of
personal property. ‘‘Care and handling’’
includes completing, repairing, converting, rehabilitating, operating, preserving, protecting, insuring, packing,
storing, handling, conserving, and
transporting excess and surplus personal property, and destroying or rendering innocuous property which is
dangerous to public health or safety.
(4) Maintain appropriate inventory
levels as set forth in part 101–27 of this
title.
(5) Continuously monitor the personal property under your control to
§ 102–36.50 May we use a contractor to
perform the functions of excess personal property disposal?
Yes, you may use service contracts
to perform disposal functions that are
not inherently governmental, such as
warehousing or custodial duties. You
are responsible for ensuring that the
contractor conforms with the requirements of Title 40 of the United States
Code and the Federal Management
Regulation (41 CFR chapter 102), and
any other applicable statutes and regulations when performing these functions.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53571, Sept. 12, 2006]
§ 102–36.55 What is GSA’s role in the
disposition of excess personal property?
In addition to developing and issuing
regulations for the management of excess personal property, GSA:
(a) Screens and offers available excess personal property to Federal agencies and eligible non-federal recipients.
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§ 102–36.60
41 CFR Ch. 102 (7–1–16 Edition)
(b) Approves and processes transfers
of excess personal property to eligible
activities.
(c) Determines the amount of reimbursement for transfers of excess personal property when appropriate.
(d) Conducts sales of surplus and exchange/sale personal property when requested by an agency.
(e) Maintains an automated system,
GSAXcess ®, to facilitate the reporting
and transferring of excess personal
property.
§ 102–36.70 What must we
when acquiring excess
property?
Consider the following when acquiring excess personal property:
(a) There must be an authorized requirement.
(b) The cost of acquiring and maintaining the excess personal property
(including packing, shipping, pickup,
and necessary repairs) does not exceed
the cost of purchasing and maintaining
new material.
(c) The sources of spare parts or repair/maintenance services to support
the acquired item are readily accessible.
(d) The supply of excess parts acquired must not exceed the life expectancy of the equipment supported.
(e) The excess personal property will
fulfill the required need with reasonable certainty without sacrificing mission or schedule.
(f) You must not acquire excess personal property with the intent to sell
or trade for other assets.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53571, Sept. 12, 2006]
Subpart B—Acquiring Excess
Personal Property For Our Agency
ACQUIRING EXCESS
§ 102–36.60 Who is eligible to acquire
excess personal property as authorized by the Property Act?
The following are eligible to acquire
excess personal property:
(a) Federal agencies (for their own
use or use by their authorized contractors, cooperatives, and project grantees).
(b) The Senate.
(c) The House of Representatives.
(d) The Architect of the Capitol and
any activities under his direction.
(e) The DC Government.
(f) Mixed-ownership government corporations as defined in 31 U.S.C. 9101.
§ 102–36.75 Do we pay for excess personal property we acquire from another federal agency under a transfer?
(a) No, except for the situations listed in paragraph (b) of this section, you
do not pay for the property. However,
you are responsible for shipping and
transportation costs. Where applicable,
you may also be required to pay packing, loading, and any costs directly related to the dismantling of the property when required for the purpose of
transporting the property.
(b) You may be required to reimburse
the holding agency for excess personal
property transferred to you (i.e., transfer with reimbursement) when:
(1) Reimbursement is directed by
GSA.
(2) The property was originally acquired with funds not appropriated
from the general fund of the Treasury
or appropriated therefrom but by law
reimbursable from assessment, tax, or
other revenue and the holding agency
requests reimbursement. It is executive
branch policy that working capital
fund property shall be transferred
without reimbursement.
§ 102–36.65 Why must we use excess
personal property instead of buying
new property?
Using excess personal property to the
maximum extent practicable maximizes the return on government dollars
spent and minimizes expenditures for
new procurement. Before purchasing
new property, check with the appropriate regional GSA Personal Property
Management
office
or
access
GSAXcess ® for any available excess
personal property that may be suitable
for your needs. You must use excess
personal property unless it would cause
serious hardship, be impractical, or impair your operations.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
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Federal Management Regulation
§ 102–36.100
(3) The property was acquired with
appropriated funds, but reimbursement
is required or authorized by law.
(4) You or the holding agency is the
U.S. Postal Service (USPS).
(5) You are acquiring excess personal
property for use by a project grantee
that is a public agency or a nonprofit
organization and exempt from taxation
under 26 U.S.C. 501.
(6) You or the holding agency is the
DC Government.
(7) You or the holding agency is a
wholly owned or mixed-ownership government corporation as defined in the
Government Corporation Control Act
(31 U.S.C. 9101–9110).
§ 102–36.85 Do we pay for personal
property we acquire when it is disposed of by another agency under
the exchange/sale authority, and
how much do we pay?
Yes, you must pay for personal property disposed of under the exchange/
sale authority, in the amount required
by the holding agency. The amount of
reimbursement is normally the fair
market value.
SCREENING OF EXCESS
§ 102–36.90 How do we find out what
personal property is available as excess?
You may use the following methods
to find out what excess personal property is available:
(a) Check GSAXcess ®, GSA’s website
for searching and selecting excess personal property. For information on
GSAXcess ®,
access
http://
www.gsaxcess.gov.
(b) Contact or submit want lists to
regional GSA Personal Property Management offices.
(c) Check any available holding agency websites.
(d) Conduct on-site screening at various federal facilities.
§ 102–36.80 How much do we pay for
excess personal property on a
transfer with reimbursement?
(a) You may be required to reimburse
the holding agency the fair market
value when the transfer involves any of
the
conditions
in
§ 102–36.75(b)(1)
through (b)(4).
(b) When acquiring excess personal
property for your project grantees
(§ 102–36.75(b)(5)), you are required to
deposit into the miscellaneous receipts
fund of the U.S. Treasury an amount
equal to 25 percent of the original acquisition cost of the property, except
for transfers under the conditions cited
in § 102–36.190.
(c) When you or the holding agency is
the DC Government or a wholly owned
or mixed-ownership Government corporation (§ 102–36.75(b)(6) or (b)(7)), you
are required to reimburse the holding
agency using fair value reimbursement.
Fair value reimbursement is 20 percent
of the original acquisition cost for new
or unused property (i.e., condition code
1), and zero percent for other personal
property. Where circumstances warrant, a higher fair value may be used if
the agencies concerned agree. Due to
special circumstances or the unusual
nature of the property, the holding
agency may use other criteria for establishing fair value if approved or directed by GSA. You must refer any disagreements to the appropriate regional
GSA Personal Property Management
office.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.95 How long is excess personal property available for screening?
The screening period for excess personal property is normally 21 calendar
days. GSA may extend or shorten the
screening period in coordination with
the holding agency. For screening
timeframes for government property in
the possession of contractors see the
Federal Acquisition Regulation (48
CFR part 45).
§ 102–36.100 When does the screening
period start for excess personal
property?
Screening starts when GSA receives
the report of excess personal property
(see § 102–36.230).
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§ 102–36.105
41 CFR Ch. 102 (7–1–16 Edition)
(a) Ensure that the non-federal
screener certifies that any and all
property requested will be used for authorized official purpose(s).
(b) Maintain a record of the authorized screeners under your authority, to
include names, addresses and telephone
numbers, and any additional identifying information such as driver’s license or social security numbers.
(c) Retrieve any expired or invalid
screener’s authorization forms.
§ 102–36.105 Who is authorized to
screen and where do we go to
screen excess personal property onsite?
You may authorize your agency employees, contractors, or non-federal recipients that you sponsor to screen excess personal property. You may visit
Defense Reutilization and Marketing
Offices (DRMOs) and DOD contractor
facilities to screen excess personal
property generated by the Department
of Defense. You may also inspect excess personal property at various civilian agency facilities throughout the
United States.
PROCESSING TRANSFERS
§ 102–36.125 How do we process a
Standard Form 122 (SF 122), Transfer Order Excess Personal Property,
through GSA?
§ 102–36.110 Do we need authorization
to screen excess personal property?
(a) Yes, when entering a federal facility, federal agency employees must
present a valid Federal ID. Non-federal
individuals will need proof of authorization from their sponsoring federal
agency in addition to a valid picture
identification.
(b) Entry on some federal and contractor facilities may require special
authorization from that facility. Persons wishing to screen excess personal
property on such a facility must obtain
approval from that agency. Contact
your regional GSA Personal Property
Management office for locations and
accessibility.
(a) You must first contact the appropriate regional GSA Personal Property
Management office to assure the property is available to you. Submit your
request on a SF 122, Transfer Order Excess Personal Property, to the region
in which the property is located. For
the types of property listed in the table
in paragraph (b) of this section, submit
the SF 122 to the corresponding GSA
regions. You may submit the SF 122
manually or transmit the required information
by
electronic
media
(GSAXcess ®) or any other transfer
form specified and approved by GSA.
(b) For the following types of property, you must submit the SF 122 to
the corresponding GSA regions:
§ 102–36.115 What information must
we include in the authorization
form for non-federal persons to
screen excess personal property?
(a) For non-federal persons to screen
excess personal property, you must
provide on the authorization form:
(1) The individual’s name and the organization he/she represents;
(2) The period of time and location(s)
in which screening will be conducted;
and
(3) The number and completion date
of the applicable contract, cooperative
agreement, or grant.
(b) An authorized official of your
agency must sign the authorization
form.
Type of property
Aircraft .................
Firearms ...............
Foreign Gifts ........
Forfeited Property
Standard Forms ...
Vessels, civilian ...
Vessels, DOD ......
GSA region
9 FBP
7 FP–8
FBP
3 FP
7 FMP
4 FD
3 FPD
Location
San Francisco, CA 94102.
Denver, CO 80225.
Washington, DC 20406.
Washington, DC 20407.
Ft. Worth, TX 76102.
Atlanta, GA 30365.
Philadelphia, PA 19107.
[65 FR 31218, May 16, 2000; 65 FR 33889, May
25, 2000, as amended at 71 FR 53572, Sept. 12,
2006]
§ 102–36.130 What are our responsibilities in processing transfer orders
of excess personal property?
Whether the excess is for your use or
for use by a non-federal recipient that
you sponsor, you must:
(a) Ensure that only authorized federal officials of your agency sign the
§ 102–36.120 What are our responsibilities in authorizing a non-federal
individual to screen excess personal
property?
You must do the following:
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Federal Management Regulation
§ 102–36.155
item limitation, provided you first contact the appropriate regional GSA Personal Property Management office for
verbal approval of a prearranged transfer. You must annotate the SF 122 with
the name of the GSA approving official
and the date of the verbal approval,
and provide a copy of the SF 122 to
GSA within 10 workdays from the date
of transaction.
(c) You are subject to the requirement to pay reimbursement for the excess personal property under a direct
transfer when any of the conditions in
§ 102–36.75(b) applies.
(d) You may obtain excess personal
property directly from another federal
agency without GSA approval when
that federal agency has statutory authority to dispose of such excess personal property and you are an eligible
recipient.
SF 122 prior to submission to GSA for
approval.
(b) Ensure that excess personal property approved for transfer is used for
authorized official purpose(s).
(c) Advise GSA of names of agency
officials that are authorized to approve
SF 122s, and notify GSA of any changes
in signatory authority.
§ 102–36.135 How much time do we
have to pick up excess personal
property that has been approved
for transfer?
Normally, you have 15 calendar days
from the date of GSA allocation to
pick up the excess personal property
for transfer, and you are responsible
for scheduling and coordinating the
property removal with the holding
agency. If additional removal time is
required, you are responsible for requesting such additional removal time.
[74 FR 41060, Aug. 14, 2009]
Subpart C—Acquiring Excess Personal Property for Non-Federal Recipients
§ 102–36.140 May we arrange to have
the
excess
personal
property
shipped to its final destination?
Yes, when the holding agency agrees
to provide assistance in preparing the
property for shipping. You may be required to pay the holding agency any
direct costs in preparing the property
for shipment. You must provide shipping instructions and the appropriate
fund code for billing purposes on the
SF 122.
§ 102–36.150 For which non-federal activities may we acquire excess personal property?
Under the Property Act you may acquire and furnish excess personal property for use by your non-appropriated
fund activities, contractors, cooperatives, and project grantees. You may
acquire and furnish excess personal
property for use by other eligible recipients only when you have specific
statutory authority to do so.
DIRECT TRANSFERS
§ 102–36.145 May we obtain excess personal property directly from another Federal agency without GSA
approval?
Yes, but only under the following situations:
(a) You may obtain excess personal
property that has not yet been reported to GSA, provided the total acquisition cost of the excess property
does not exceed $10,000 per line item.
You must ensure that a SF 122 is completed for the direct transfer and that
an authorized official of your agency
signs the SF 122. You must provide a
copy of the SF 122 to the appropriate
regional GSA office within 10 workdays
from the date of the transaction.
(b) You may obtain excess personal
property exceeding the $10,000 per line
§ 102–36.155 What are our responsibilities when acquiring excess personal property for use by a non-federal recipient?
When acquiring excess personal property for use by a non-federal recipient,
your authorized agency official must:
(a) Ensure the use of excess personal
property by the non-federal recipient is
authorized and complies with applicable federal regulations and agency
guidelines.
(b) Determine that the use of excess
personal property will reduce the costs
to the government and/or that it is in
the government’s best interest to furnish excess personal property.
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§ 102–36.160
41 CFR Ch. 102 (7–1–16 Edition)
(c) Review and approve transfer documents for excess personal property as
the sponsoring Federal agency.
(d) Ensure the non-federal recipient
is aware of his obligations under the
FMR and your agency regulations regarding the management of excess personal property.
(e) Ensure the non-federal recipient
does not stockpile the property but
places the property into use within a
reasonable period of time, and has a
system to prevent nonuse, improper
use, or unauthorized disposal or destruction of excess personal property
furnished.
(f) Establish provisions and procedures for property accountability and
disposition in situations when the government retains title.
(g) Report annually to GSA excess
personal property furnished to non-federal recipients during the year (see
§ 102–36.295).
§ 102–36.170 May we transfer personal
property owned by one of our nonappropriated fund activities?
Property purchased by a non-appropriated fund activity is not federal
property. A non-appropriated fund activity has the option of making its privately owned personal property available for transfer to a federal agency,
usually with reimbursement. If such
reimbursable personal property is not
transferred to another federal agency,
it may be offered for sale. Such property is not available for donation.
[65 FR 31218, May 16, 2000, as amended at 65
FR 33778, May 25, 2000]
CONTRACTORS
§ 102–36.175 Are there restrictions to
acquiring excess personal property
for use by our contractors?
Yes, you may acquire and furnish excess personal property for use by your
contractors subject to the criteria and
restrictions in the Federal Acquisition
Regulation (48 CFR part 45). When such
property is no longer needed by your
contractors or your agency, you must
dispose of the excess personal property
in accordance with the provisions of
this part.
§ 102–36.160 What additional information must we provide on the SF 122
when acquiring excess personal
property for non-federal recipients?
Annotate on the SF 122, the name of
the non-federal recipient and the contract, grant or agreement number,
when applicable, and the scheduled
completion/expiration date of the contract, grant or agreement. If the remaining time prior to the expiration
date is less than 60 calendar days, you
must certify that the contract, grant
or agreement will be extended or renewed or provide other written justification for the transfer.
COOPERATIVES
§ 102–36.180 Is there any limitation/
condition to acquiring excess personal property for use by cooperatives?
Yes, you must limit the total dollar
amount of property transfers (in terms
of original acquisition cost) to the dollar value of the cooperative agreement.
For any transfers in excess of such
amount, you must ensure that an official of your agency at a level higher
than the officer administering the
agreement approves the transfer. The
federal government retains title to
such property, except when provided by
specific statutory authority.
NON-APPROPRIATED FUND ACTIVITIES
§ 102–36.165 Do we retain title to excess personal property furnished to
a non-appropriated fund activity
within our agency?
Yes, title to excess personal property
furnished to a non-appropriated fund
activity remains with the Federal Government and you are accountable for
establishing controls over the use of
such excess property in accordance
with § 102–36.45(d). When such property
is no longer required by the non-appropriated fund activity, you must reuse
or dispose of the property in accordance with this part.
PROJECT GRANTEES
§ 102–36.185 What are the requirements for acquiring excess personal
property for use by our grantees?
You may furnish excess personal
property for use by your grantees only
when:
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Federal Management Regulation
§ 102–36.200
(a) The grantee holds a federally
sponsored project grant;
(b) The grantee is a public agency or
a nonprofit tax-exempt organization
under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501);
(c) The property is for use in connection with the grant; and
(d) You pay 25 percent of the original
acquisition cost of the excess personal
property, such funds to be deposited
into the miscellaneous receipts fund of
the U.S. Treasury. Exceptions to paying this 25 percent are provided in § 102–
36.190. Title to property vests in the
grantee when your agency pays 25 percent of the original acquisition cost.
(e) The property is scientific equipment transferred under section 11(e) of
the National Science Foundation (NSF)
Act of 1950, as amended (42 U.S.C.
1870(e)). GSA will limit such transfers
to property within Federal Supply
Classification (FSC) groups 12, 14, 43,
48, 58, 59, 65, 66, 67, 68 and 70. GSA may
approve transfers without reimbursement for property under other FSC
groups when NSF certifies the item is
a component of or related to a piece of
scientific equipment or is a difficultto-acquire item needed for scientific
research. Regardless of FSC, GSA will
not approve transfers of common-use
or general-purpose items without reimbursement. Title to such property
transfers to the grantee.
(f) The property is furnished in connection with grants to Indian tribes, as
defined in section 3(c) of the Indian Financing Act (24 U.S.C. 1452(c)). Title
passage is determined under the authorities of the administering agency.
§ 102–36.190 Must we always pay 25
percent of the original acquisition
cost when furnishing excess personal property to project grantees?
No, you may acquire excess personal
property for use by a project grantee
without paying the 25 percent fee when
any of the following conditions apply:
(a) The personal property was originally acquired from excess sources by
your agency and has been placed into
official use by your agency for at least
one year. The federal government retains title to such property.
(b) The property is furnished under
section 203 of the Department of Agriculture Organic Act of 1944 (16 U.S.C.
580a) through the U.S. Forest Service
in connection with cooperative state
forest fire control programs. The federal government retains title to such
property.
(c) The property is furnished by the
U.S. Department of Agriculture to
state or county extension services or
agricultural
research
cooperatives
under 40 U.S.C. 483(d)(2)(E). The federal
government retains title to such property.
(d) The property is not needed for donation under part 102–37 of this chapter, and is transferred under section 608
of the Foreign Assistance Act of 1961,
as amended (22 U.S.C. 2358). Title to
such property transfers to the grantee.
(You need not wait until after the donation screening period when furnishing excess personal property to recipients under the Agency for International Development (AID) Development Loan Program.)
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.195 What type of excess personal property may we furnish to
our project grantees?
You may furnish to your project
grantees any property, except for
consumable items, determined to be
necessary and usable for the purpose of
the grant. Consumable items are generally not transferable to project
grantees. GSA may approve transfers
of excess consumable items when adequate justification for the transfer accompanies such requests. For the purpose of this section, ‘‘consumable
items’’ are items which are intended
for one-time use and are actually consumed in that one time; e.g., drugs,
medicines, surgical dressings, cleaning
and preserving materials, and fuels.
§ 102–36.200 May we acquire excess
personal property for cannibalization purposes by the grantees?
Yes, subject to GSA approval, you
may acquire excess personal property
for cannibalization purposes. You may
be required to provide a supporting
statement that indicates disassembly
of the item for secondary use has
greater benefit than utilization of the
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§ 102–36.205
41 CFR Ch. 102 (7–1–16 Edition)
item in its existing form and cost savings to the government will result.
§ 102–36.205 Is there a limit to how
much excess personal property we
may furnish to our grantees?
Yes, you must monitor transfers of
excess personal property so the total
dollar amount of property transferred
(in original acquisition cost) does not
exceed the dollar value of the grant.
Any transfers above the grant amount
must be approved by an official at an
administrative level higher than the
officer administering the grant.
Subpart D—Disposition of Excess
Personal Property
§ 102–36.210 Why must we report excess personal property to GSA?
You must report excess personal
property to promote reuse by the government to enable federal agencies to
benefit from the continued use of property already paid for with taxpayers’
money, thus minimizing new procurement costs. Reporting excess personal
property to GSA helps assure that the
information on available excess personal property is accessible and disseminated to the widest range of reuse
customers.
in the custody of your contractors, cooperatives, or project grantees.
(b) You are not required to report the
following types of excess personal property to GSA for screening:
(1) Property determined appropriate
for abandonment/destruction (see § 102–
36.305).
(2) Non-appropriated fund property
(see § 102–36.165).
(3) Foreign excess personal property
(see § 102–36.380).
(4) Scrap, except aircraft in scrap
condition.
(5) Perishables, defined for the purposes of this section as any personal
property subject to spoilage or decay.
(6) Trading stamps and bonus goods.
(7) Hazardous waste.
(8) Controlled substances.
(9) Nuclear Regulatory Commissioncontrolled materials.
(10) Property dangerous to public
health and safety.
(11) Classified items or property determined to be sensitive for reasons of
national security.
(c) Refer to part 101–42 of this title
for additional guidance on the disposition of classes of property under paragraphs (b)(7) through (b)(11) of this section.
§ 102–36.225 Must we report excess related personal property?
REPORTING EXCESS PERSONAL
PROPERTY
§ 102–36.215 How do we report excess
personal property?
Report excess personal property as
follows:
(a) Electronically submit the data
elements required on the Standard
Form 120 (SF 120), Report of Excess
Personal Property, in a format specified and approved by GSA; or
(b) Submit a paper SF 120 to the regional GSA Personal Property Management office.
§ 102–36.220 Must we report all excess
personal property to GSA?
(a) Generally yes, regardless of the
condition code, except as authorized in
§ 102–36.145 for direct transfers or as exempted in paragraph (b) of this section.
Report all excess personal property, including excess personal property to
which the government holds title but is
Yes, you must report excess related
personal property to the Office of Real
Property, GSA, in accordance with
part 102–75 of this chapter.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.230 Where do we send the reports of excess personal property?
(a) You must direct electronic submissions of excess personal property to
GSAXcess ® maintained by the Property Management Division (FBP), GSA,
Washington, DC 20406.
(b) For paper submissions, you must
send the SF 120 to the regional GSA
Personal Property Management office
for the region in which the property is
located. For the categories of property
listed in § 102–36.125(b), forward the SF
120 to the corresponding regions.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
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Federal Management Regulation
§ 102–36.255
§ 102–36.235 What information do we
provide when reporting excess personal property?
(a) You must provide the following
data on excess personal property:
(1) The reporting agency and the
property location.
(2) A report number (6-digit activity
address code and 4-digit Julian date).
(3) 4-digit Federal Supply Class (use
National Stock Number whenever
available).
(4) Description of item, in sufficient
detail.
(5) Quantity and unit of issue.
(6) Disposal Condition Code (see § 102–
36.240).
(7) Original acquisition cost per unit
and total cost (use estimate if original
cost not available).
(8) Manufacturer, date of manufacture, part and serial number, when required by GSA.
(b) In addition, provide the following
information on your report of excess,
when applicable:
(1) Major parts/components that are
missing.
(2) If repairs are needed, the type of
repairs.
(3) Special requirements for handling, storage, or transportation.
(4) The required date of removal due
to moving or space restrictions.
(5) If reimbursement is required, the
authority under which the reimbursement is requested, the amount of reimbursement and the appropriate fund
code to which money is to be deposited.
(6) If you will conduct the sale of personal property that is not transferred
or donated.
§ 102–36.240 What are the disposal condition codes?
The disposal condition codes are contained in the following table:
Disposal
condition
code
1 ..........
4 ..........
Definition
New. Property which is in new condition
or unused condition and can be used immediately without modifications or repairs.
Usable. Property which shows some wear,
but can be used without significant repair.
Disposal
condition
code
7 ..........
X .........
S ..........
Definition
Repairable. Property which is unusable in
its current condition but can be economically repaired.
Salvage. Property which has value in excess of its basic material content, but
repair or rehabilitation is impractical
and/or uneconomical.
Scrap. Property which has no value except for its basic material content.
DISPOSING OF EXCESS PERSONAL
PROPERTY
§ 102–36.245 Are we accountable for
the personal property that has been
reported excess, and who is responsible for the care and handling
costs?
Yes, you are accountable for the excess personal property until the time it
is picked up by the designated recipient or its agent. You are responsible
for all care and handling charges while
the excess personal property is going
through the screening and disposal
process.
§ 102–36.250 Does GSA ever take physical custody of excess personal
property?
Generally you retain physical custody of the excess personal property
prior to its final disposition. Very rarely GSA may consider accepting physical custody of excess personal property. Under special circumstances,
GSA may take custody or may direct
the transfer of partial or total custody
to other executive agencies, with their
consent.
§ 102–36.255 What options do we have
when unusual circumstances do not
allow adequate time for disposal
through GSA?
Contact your regional GSA Personal
Property Management office for any
existing interagency agreements that
would allow you to turn in excess personal property to a federal facility.
You are responsible for any turn in
costs and all costs related to transporting the excess personal property to
these facilities.
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§ 102–36.260
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–36.260 How do we promote the
expeditious transfer of excess personal property?
the property under a donation or sales
action.
For expeditious transfer of excess
personal property you should:
(a) Provide complete and accurate
property descriptions and condition
codes on the report of excess to facilitate the selection of usable property by
potential users.
(b) Ensure that any available operating manual, parts list, diagram,
maintenance log, or other instructional publication is made available
with the property at the time of transfer.
(c) Advise the designated recipient of
any special requirements for dismantling, shipping/transportation.
(d) When the excess personal property is located at a facility due to be
closed, provide advance notice of the
scheduled date of closing, and ensure
there is sufficient time for screening
and removal of property.
§ 102–36.275 May we dispose of excess
personal property without GSA approval?
§ 102–36.265 What if there are competing requests for the same excess
personal property?
(a) GSA will generally approve transfers on a first-come, first-served basis.
When more than one federal agency requests the same item, and the quantity
available is not sufficient to meet the
demand of all interested agencies, GSA
will consider factors such as national
defense
requirements,
emergency
needs, avoiding the necessity of a new
procurement,
energy
conservation,
transportation costs, and retention of
title in the government. GSA will normally give preference to the agency
that will retain title in the Government.
(b) Requests for property for the purpose of cannibalization will normally
be subordinate to requests for use of
the property in its existing form.
§ 102–36.270 What if a federal agency
requests personal property that is
undergoing donation screening or
in the sales process?
Prior to final disposition, GSA will
consider requests from authorized federal activities for excess personal property undergoing donation screening or
in the sales process. Federal transfers
may be authorized prior to removal of
No, you may not dispose of excess
personal property without GSA approval except under the following limited situations:
(a) You may transfer to another federal agency excess personal property
that has not yet been reported to GSA,
under direct transfer procedures contained in § 102–36.145.
(b) You may dispose of excess personal property that is not required to
be reported to GSA (see § 102–36.220(b)).
(c) You may dispose of excess personal property without going through
GSA when such disposal is authorized
by law.
§ 102–36.280 May we withdraw from
the disposal process excess personal property that we have reported to GSA?
Yes, you may withdraw excess personal property from the disposal process, but only with the approval of GSA
and to satisfy an internal agency requirement. Property that has been approved for transfer or donation or offered for sale by GSA may be returned
to your control with proper justification.
TRANSFERS WITH REIMBURSEMENT
§ 102–36.285 May we charge for personal property transferred to another federal agency?
(a) When any one of the following
conditions applies, you may require
and retain reimbursement for the excess personal property from the recipient:
(1) Your agency has the statutory authority to require and retain reimbursement for the property.
(2) You are transferring the property
under the exchange/sale authority.
(3) You had originally acquired the
property with funds not appropriated
from the general fund of the Treasury
or appropriated therefrom but by law
reimbursable from assessment, tax, or
other revenue. It is current executive
branch policy that working capital
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Federal Management Regulation
§ 102–36.305
fund property shall be transferred
without reimbursement.
(4) You or the recipient is the U.S.
Postal Service.
(5) You or the recipient is the DC
Government.
(6) You or the recipient is a wholly
owned or mixed-ownership government
corporation.
(b) You may charge for direct costs
you incurred incident to the transfer,
such as packing, loading and shipping
of the property. The recipient is responsible for such charges unless you
waive the amount involved.
(c) You may not charge for overhead
or administrative expenses or the costs
for care and handling of the property
pending disposition.
§ 102–36.290 How much do we charge
for excess personal property on a
transfer with reimbursement?
(a) You may require reimbursement
in an amount up to the fair market
value of the property when the transfer
involves property meeting conditions
in § 102–36.285(a)(1) through (a)(4).
(b) When you or the recipient is the
DC Government or a wholly owned or
mixed-ownership Government corporation (§ 102–36.285(a)(5) and (a)(6)), you
may only require fair value reimbursement. Fair value reimbursement is 20
percent of the original acquisition cost
for new or unused property (i.e., condition code 1), and zero percent for other
personal property. A higher fair value
may be used if you and the recipient
agency agree. Due to special circumstances or the nature of the property, you may use other criteria for establishing fair value if approved or directed by GSA. You must refer any disagreements to the appropriate regional
GSA Personal Property Management
office.
REPORT OF DISPOSAL ACTIVITY
§ 102–36.295 Is there any reporting requirement on the disposition of excess personal property?
Yes, you must report annually to
GSA personal property furnished in
any manner in that year to any nonfederal recipients, with respect to property obtained as excess or as property
determined to be no longer required for
the purposes of the appropriation from
which it was purchased.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.300 How do we report the furnishing of personal property to
non-federal recipients?
(a) Submit your annual report of personal property furnished to non-federal
recipients, in letter form, to GSA, Office of Travel, Transportation, and
Asset Management (MT), 1800 F Street,
NW, Washington, DC 20405, within 90
calendar days after the close of each
fiscal year. The report must cover personal property disposed during the fiscal year in all areas within the United
States, the U.S. Virgin Islands, American Samoa, Guam, Puerto Rico, the
Federated States of Micronesia, the
Marshall Islands, Palau, and the Northern Mariana Islands. Negative reports
are required.
(b) The report (interagency report
control number 0154—GSA—AN) must
reference this part and contain the following:
(1) Names of the non-federal recipients.
(2) Status of the recipients (contractor, cooperative, project grantee,
etc.).
(3) Total original acquisition cost of
excess personal property furnished to
each type of recipient, by type of property (two-digit FSC groups).
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
ABANDONMENT/DESTRUCTION
§ 102–36.305 May we abandon or destroy excess personal property
without reporting it to GSA?
Yes, you may abandon or destroy excess personal property when you have
made a written determination that the
property has no commercial value or
the estimated cost of its continued
care and handling would exceed the estimated proceeds from its sale. An item
has no commercial value when it has
neither utility nor monetary value (either as an item or as scrap).
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§ 102–36.310
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–36.310 Who makes the determination to abandon or destroy excess personal property?
To abandon or destroy excess personal property, an authorized official
of your agency makes a written finding
that must be approved by a reviewing
official who is not directly accountable
for the property.
specified by your agency regulations
(such as publishing a notice in a local
newspaper, posting of signs in common
use facilities available to the public, or
providing bulletins on your website
through the internet). You must also
include in the notice an offer to sell in
accordance with part 102–38 of this
chapter.
§ 102–36.315 Are there any restrictions
to the use of the abandonment/destruction authority?
Yes, the following restrictions apply:
(a) You must not abandon or destroy
property in a manner which is detrimental or dangerous to public health
or safety. Additional guidelines for the
abandonment/destruction of hazardous
materials are prescribed in part 101–42
of this title.
(b) If you become aware of an interest from an entity in purchasing the
property, you must implement sales
procedures in lieu of abandonment/destruction.
§ 102–36.330 Are there occasions when
public notice is not needed regarding abandonment/destruction of excess personal property?
Yes, you are not required to provide
public notice when:
(a) The value of the property is so little or the cost of its care and handling,
pending abandonment/destruction, is so
great that its retention for advertising
for sale, even as scrap, is clearly not
economical;
(b) Abandonment or destruction is required because of health, safety, or security reasons; or
(c) When the original acquisition cost
of the item (estimated if unknown) is
less than $500.
§ 102–36.320 May we transfer or donate
excess personal property that has
been determined appropriate for
abandonment/destruction without
GSA approval?
In lieu of abandonment/destruction,
you may donate such excess personal
property only to a public body without
going through GSA. A public body is
any department, agency, special purpose district, or other instrumentality
of a state or local government; any Indian tribe; or any agency of the federal
government. If you become aware of an
interest from an eligible non-profit organization (see part 102–37 of this chapter) that is not a public body in acquiring the property, you must contact the
regional GSA Personal Property Management office and implement donation procedures in accordance with
part 102–37 of this chapter.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.325 What must be done before
the abandonment/destruction of excess personal property?
Except as provided in § 102–36.330, you
must provide public notice of intent to
abandon or destroy excess personal
property, in a format and timeframe
[65 FR 31218, May 16, 2000, as amended at 65
FR 34983, June 1, 2000]
Subpart
E—Personal
Property
Whose Disposal Requires Special Handling
§ 102–36.335 Are there certain types of
excess personal property that must
be disposed of differently from normal disposal procedures?
Yes, you must comply with the additional provisions in this subpart when
disposing of the types of personal property listed in this subpart.
AIRCRAFT AND AIRCRAFT PARTS
§ 102–36.340 What must we do when
disposing of excess aircraft?
(a) You must report to GSA all excess aircraft, regardless of condition or
dollar value, and provide the following
information on the SF 120:
(1) Manufacturer, date of manufacture, model, serial number.
(2) Major components missing from
the aircraft, such as engines, electronics.
(3) Whether or not the:
(i) Aircraft is operational;
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Federal Management Regulation
§ 102–36.355
(ii) Data plate is available;
(iii) Historical and maintenance
records are available;
(iv) Aircraft has been previously certificated by the Federal Aviation Administration (FAA) and/or has been
maintained to FAA airworthiness
standards;
(v) Aircraft was previously used for
non-flight purposes (i.e., ground training or static display), and has been subjected to extensive disassembly and reassembly procedures for ground training, or repeated burning for fire-fighting training purposes.
(4) For military aircraft, indicate
Category A, B, or C as designated by
the Department of Defense (DOD), as
follows:
Category
of aircraft
A .........
B ..........
C ..........
§ 102–36.345 May we dispose of excess
Flight Safety Critical Aircraft Parts
(FSCAP)?
Yes, you may dispose of excess
FSCAP, but first you must determine
whether the documentation available
is adequate to allow transfer, donation,
or sale of the part in accordance with
part 102–33, subpart D, of this chapter.
Otherwise, you must mutilate undocumented
FSCAP
that
has
no
traceability to its original equipment
manufacturer and dispose of it as
scrap. When reporting excess FSCAP,
annotate the manufacturer, date of
manufacture, part number, serial number, and the appropriate Criticality
Code on the SF 120, and ensure that all
available historical and maintenance
records accompany the part at the
time of issue.
Description
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
Aircraft authorized for sale and exchange
for commercial use.
Aircraft previously used for ground instruction and/or static display.
Aircraft that are combat configured as
determined by DOD.
NOTE TO § 102–36.340(a)(4): For additional information on military aircraft see Defense
Materiel Disposition Manual, DOD 4160.21-M,
accessible at www.drms.dla.mil under ‘‘Publications.’’
(b) When the designated transfer or
donation recipient’s intended use is for
non-flight purposes, you must remove
and return the data plate to GSA Property Management Branch (9FBP), San
Francisco, CA 94102–3434 prior to releasing the aircraft to the authorized
recipient. GSA will forward the data
plates to FAA.
(c) You must also submit a report of
the final disposition of the aircraft to
the Federal Aviation Interactive Reporting System (FAIRS) maintained by
the Office of Travel, Transportation,
and Asset Management (MT), GSA, 1800
F Street, NW, Washington, DC 20405.
For additional instructions on reporting to FAIRS, see part 102–33 of this
chapter.
§ 102–36.350 How
FSCAP?
do
The FSCAP Criticality Codes are
contained in the following table:
FSCAP
code
E ...........
Description
FSCAP specially designed to be or selected as being nuclear hardened.
Flight Safety Critical Aircraft Part.
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§ 102–36.355 What are the FSCAP Criticality Codes?
F ...........
12:19 Sep 16, 2016
identify
Any aircraft part designated as
FSCAP is assigned an alpha Criticality
Code, and the code is annotated on the
original transfer document when you
acquire the part. You must perpetuate
the appropriate FSCAP Criticality
Code on all personal property records.
You may contact the Federal agency or
Military service that originally owned
the part for assistance in making this
determination, or query DOD’s Federal
Logistics Information System (FLIS)
using the National Stock Number
(NSN) for the part. For assistance in
subscribing to the FLIS service contact
the FedLog Consumer Support Office,
800–351–4381.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
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§ 102–36.360
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–36.360 How do we dispose of aircraft parts that are life-limited but
have no FSCAP designation?
When disposing of life-limited aircraft parts that have no FSCAP designation, you must ensure that tags
and labels, historical data, and maintenance records accompany the part on
any transfers, donations or sales. For
additional information regarding the
disposal of life-limited parts with or
without tags or documentation, refer
to part 102–33 of this chapter.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
CANINES, LAW ENFORCEMENT
§ 102–36.365 May we transfer or donate
canines that have been used in the
performance of law enforcement
duties?
Yes, under 40 U.S.C. 555, when the canine is no longer needed for law enforcement duties, you may donate the
canine to an individual who has experience handling canines in the performance of those official duties.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
DISASTER RELIEF PROPERTY
§ 102–36.370 Are there special requirements concerning the use of excess
personal property for disaster relief?
Yes, upon declaration by the President of an emergency or a major disaster, you may loan excess personal
property to state and local governments, with or without compensation
and prior to reporting it as excess to
GSA, to alleviate suffering and damage
resulting from any emergency or major
disaster (Robert T. Stafford Disaster
Relief and Emergency Assistance Act
(42 U.S.C. 5121–5206) and Executive
Order 12148 (3 CFR, 1979 Comp., p. 412),
as amended). If the loan involves property that has already been reported excess to GSA, you may withdraw the
item from the disposal process subject
to approval by GSA. You may also
withdraw excess personal property for
use by your agency in providing assistance in disaster relief. You are still accountable for this property and your
agency is responsible for developing
agencywide procedures for recovery of
such property.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
FIREARMS
§ 102–36.375 May we dispose of excess
firearms?
Yes, unless you have specific statutory authority to do otherwise, excess
firearms may be transferred only to
those Federal agencies authorized to
acquire firearms for official use. GSA
may donate certain classes of surplus
firearms to State and local government
activities whose primary function is
the enforcement of applicable federal,
state, and/or local laws and whose compensated law enforcement officers have
the authority to apprehend and arrest.
Firearms not transferred or donated
must be destroyed and sold as scrap.
For additional guidance on the disposition of firearms refer to part 101–42 of
this title.
FOREIGN EXCESS PERSONAL PROPERTY
§ 102–36.380 Who is responsible for disposing of foreign excess personal
property?
Your agency is responsible for disposing of your foreign excess personal
property, as provided by chapter 7 of
title 40 of the United States Code.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.385 What are our responsibilities in the disposal of foreign excess personal property?
When disposing of foreign excess personal property you must:
(a) Determine whether it is in the interest of the U.S. Government to return foreign excess personal property
to the U.S. for further re-use or to dispose of the property overseas.
(b) Ensure that any disposal of property overseas conforms to the foreign
policy of the United States and the
terms and conditions of any applicable
Host Nation Agreement.
(c) Ensure that, when foreign excess
personal property is donated or sold
overseas, donation/sales conditions include a requirement for compliance
with U.S. Department of Commerce
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Federal Management Regulation
§ 102–36.415
and Department of Agriculture regulations when transporting any personal
property back to the U.S.
(d) Inform the U.S. State Department
of any disposal of property to any foreign governments or entities.
§ 102–36.390 How may we dispose of
foreign excess personal property?
To dispose of foreign excess personal
property, you may:
(a) Offer the property for re-use by
U.S. Federal agencies overseas;
(b) Return the property to the U.S.
for re-use by eligible recipients;
(c) Sell, exchange, lease, or transfer
such property for cash, credit, or other
property;
(d) Donate medical materials or supplies to nonprofit medical or health organizations, including those qualified
under sections 214(b) and 607 of the Foreign Assistance Act of 1961, as amended
(22 U.S.C. 2174, 2357); or
(e) Abandon, destroy or donate such
property when you determine that it
has no commercial value or the estimated cost of care and handling would
exceed the estimated proceeds from its
sale, in accordance with 40 U.S.C. 527.
Abandonment, destruction or donation
actions must also comply with the laws
of the country in which the property is
located.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.395 How may GSA assist us in
disposing of foreign excess personal
property?
You may request GSA’s assistance in
the screening of foreign excess personal
property for possible re-use by eligible
recipients within the U.S. GSA may,
after consultation with you, designate
property for return to the United
States for transfer or donation purposes.
§ 102–36.400 Who pays for the transportation costs when foreign excess
personal property is returned to the
United States?
When foreign excess property is to be
returned to the U.S. for the purpose of
an approved transfer or donation under
the provisions of 40 U.S.C. 521–529, 549,
and 551, the Federal agency, State
agency, or donee receiving the property
is responsible for all direct costs involved in the transfer, which include
packing, handling, crating, and transportation.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
GIFTS
§ 102–36.405 May we keep gifts given
to us from the public?
If your agency has gift retention authority, you may retain gifts from the
public. Otherwise, you must report
gifts you receive on a SF 120 to GSA.
You must report gifts received from a
foreign government in accordance with
part 102–42 of this chapter.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
§ 102–36.410 How do we dispose of a
gift in the form of money or intangible personal property?
Report intangible personal property
to GSA, Personal Property Management Division (FBP), Washington, DC
20406. You must not transfer or dispose
of this property without prior approval
of GSA. The Secretary of the Treasury
will dispose of money and negotiable
instruments such as bonds, notes, or
other securities under the authority of
31 U.S.C. 324.
§ 102–36.415 How do we dispose of gifts
other than intangible personal
property?
(a) When the gift is offered with the
condition that the property be sold and
the proceeds used to reduce the public
debt, report the gift to the regional
GSA Personal Property Management
office in which the property is located.
GSA will convert the gift to money
upon acceptance and deposit the proceeds into a special account of the U.S.
Treasury.
(b) When the gift is offered with no
conditions or restrictions, and your
agency has gift retention authority,
you may use the gift for an authorized
official purpose without reporting to
GSA. The property will then lose its
identity as a gift and you must account
for it in the same manner as Federal
personal property acquired from authorized sources. When the property is
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§ 102–36.420
41 CFR Ch. 102 (7–1–16 Edition)
no longer needed, you must report it as
excess personal property to GSA.
(c) When the gift is offered with no
conditions or restrictions, but your
agency does not have gift retention authority, you must report it to the regional GSA Personal Property Management office. GSA will offer the property for screening for possible transfer
to a federal agency or convert the gift
to money and deposit the funds with
U.S. Treasury. If your agency is interested in keeping the gift for an official
purpose, you must annotate your interest on the SF 120 and also submit a SF
122.
§ 102–36.435 How do we identify Munitions List Items (MLIs)/Commerce
Control List Items (CCLIs) requiring demilitarization?
You identify MLIs/CCLIs requiring
demilitarization by the demilitarization code that is assigned to each MLI
or CCLI. The code indicates the type
and scope of demilitarization and/or export controls that must be accomplished, when required, before issue to
any non-DOD activity. For a listing of
the codes and additional guidance on
DEMIL procedures see DOD Demilitarization and Trade Security Control
Manual, DOD 4160.21–M–1.
§ 102–36.420 How do we dispose of gifts
from foreign governments or entities?
PRINTING EQUIPMENT AND SUPPLIES
Report foreign gifts on a SF 120 to
GSA, Property Management Division
(FBP), Washington, DC 20406, for possible transfer, donation or sale in accordance with the provisions of part
102–42 of this chapter.
[71 FR 53572, Sept. 12, 2006]
HAZARDOUS PERSONAL PROPERTY
§ 102–36.425 May we dispose of excess
hazardous personal property?
Yes, but only in accordance with part
101–42 of this title. When reporting excess hazardous property to GSA, certify on the SF 120 that the property has
been packaged and labeled as required.
Annotate any special requirements for
handling, storage, or use, and provide a
description of the actual or potential
hazard.
MUNITIONS LIST ITEMS/COMMERCE
CONTROL LIST ITEMS (MLIS/CCLIS)
§ 102–36.430 May we dispose of excess
Munitions List Items (MLIs)/Commerce Control List Items (CCLIs)?
You may dispose of excess MLIs/
CCLIs only when you comply with the
additional disposal and demilitarization (DEMIL) requirements contained
in part 101–42 of this title. MLIs may
require demilitarization when issued to
any non-DoD entity, and will require
appropriate licensing when exported
from the U.S. CCLIs usually require export licensing when transported from
the U.S.
§ 102–36.440 Are there special procedures for reporting excess printing
and binding equipment and supplies?
Yes, in accordance with 44 U.S.C. 312,
you must submit reports of excess
printing and binding machinery, equipment, materials, and supplies to the
Public Printer, Government Printing
Office (GPO), Customer Service Manager, 732 North Capitol Street, NW,
Washington, DC 20401. If GPO has no
requirement for the property, you must
then submit the report to GSA.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
RED CROSS PROPERTY
§ 102–36.445 Do we report excess personal property originally acquired
from or through the American National Red Cross?
Yes, when reporting excess personal
property which was processed, produced, or donated by the American National Red Cross, note ‘‘RED CROSS
PROPERTY’’ on the SF 120 or report
document. GSA will offer to return this
property to the Red Cross if no other
federal agency has a need for it. If the
Red Cross has no requirement, the
property continues in the disposal
process and is available for donation.
SHELF-LIFE ITEMS
§ 102–36.450 Do we report excess shelflife items?
(a) When there are quantities on
hand, that would not be utilized by the
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§ 102–36.475
expiration date and cannot be returned
to the vendor for credit, you must report such expected overage as excess
for possible transfer and disposal to ensure maximum use prior to deterioration.
(b) You need not report expired shelflife items. You may dispose of property
with expired shelf-life by abandonment/
destruction in accordance with § 102–
36.305 and in compliance with Federal,
State, and local waste disposal and air
and water pollution control standards.
§ 102–36.455 How do we report excess
shelf-life items?
You must identify the property as
shelf-life items by ‘‘SL’’, indicate the
expiration date, whether the date is
the original or an extended date, and if
the date is further extendable. GSA
may adjust the screening period based
on re-use potential and the remaining
useful shelf life.
§ 102–36.460 Do we report excess medical shelf-life items held for national emergency purposes?
When the remaining shelf life of any
medical materials or supplies held for
national emergency purposes is of too
short a period to justify their continued retention, you should report such
property excess for possible transfer
and disposal. You must make such excess determinations at such time as to
ensure that sufficient time remains to
permit their use before their shelf-life
expires and the items are unfit for
human use. You must identify such
items with ‘‘MSL’’ and the expiration
date, and indicate any specialized storage requirements.
§ 102–36.465 May we transfer or exchange excess medical shelf-life
items with other federal agencies?
Yes, you may transfer or exchange
excess medical shelf-life items held for
national emergency purposes with any
other federal agency for other medical
materials or supplies, without GSA approval and without regard to part 102–
39 of this chapter. You and the transferee agency will agree to the terms
and prices. You may credit any proceeds derived from such transactions to
your agency’s current applicable appropriation and use the funds only for the
purchase of medical materials or supplies for national emergency purposes.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
VESSELS
§ 102–36.470 What must we do when
disposing of excess vessels?
(a) When you dispose of excess vessels, you must indicate on the SF 120
the following information:
(1) Whether the vessel has been inspected by the Coast Guard.
(2) Whether testing for hazardous materials has been done. And if so, the result of the testing, specifically the
presence or absence of PCB’s and asbestos and level of contamination.
(3) Whether hazardous materials
clean up is required, and when it will
be accomplished by your agency.
(b) In accordance with 40 U.S.C. 548,
the Federal Maritime Administration
(FMA), Department of Transportation,
is responsible for disposing of surplus
vessels determined to be merchant vessels or capable of conversion to merchant use and weighing 1,500 gross tons
or more. The SF 120 for such vessels
shall be forwarded to GSA for submission to FMA.
(c) Disposal instructions regarding
vessels in this part do not apply to battleships, cruisers, aircraft carriers, destroyers, or submarines.
[65 FR 31218, May 16, 2000, as amended at 71
FR 53572, Sept. 12, 2006]
Subpart F—Miscellaneous
Disposition
§ 102–36.475 What is the authority for
transfers under ‘‘Computers for
Learning’’?
(a) The Stevenson-Wydler Technology Innovation Act of 1980, as
amended (15 U.S.C. 3710(i)), authorizes
federal agencies to transfer excess education-related federal equipment to
educational institutions or nonprofit
organizations for educational and research activities. Executive Order 12999
(3 CFR, 1996 Comp., p. 180) requires, to
the extent permitted by law and where
appropriate, the transfer of computer
equipment for use by schools or nonprofit organizations.
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41 CFR Ch. 102 (7–1–16 Edition)
(b) Each federal agency is required to
identify a point of contact within the
agency to assist eligible recipients, and
to publicize the availability of such
property to eligible communities. Excess education-related equipment may
be transferred directly under established agency procedures, or reported
to GSA as excess for subsequent transfer to potential eligible recipients as
appropriate. You must include transfers under this authority in the annual
Non-federal Recipients Report (See
§ 102–36.295) to GSA.
(c) The ‘‘Computers for Learning’’
website has been developed to streamline the transfer of excess and surplus
Federal computer equipment to schools
and nonprofit educational organizations. For additional information
about this program access the ‘‘Computers for Learning’’ website, http://
www.computers.fed.gov.
PART 102–37—DONATION OF
SURPLUS PERSONAL PROPERTY
Subpart A—General Provisions
Sec.
102–37.5 What does this part cover?
102–37.10 What is the primary governing authority for this part?
102–37.15 Who must comply with the provisions of this part?
102–37.20 How do we request a deviation
from this part and who can approve it?
DEFINITIONS
102–37.25 What
part?
definitions
apply
to
this
102–37.70 How should a transferee account
for the receipt of a larger or smaller
number of items than approved by GSA
on the SF 123?
102–37.75 What should be included in a
shortage report?
102–37.80 What happens to surplus property
that isn’t transferred for donation?
102–37.85 Can surplus property being offered
for sale be withdrawn and approved for
donation?
Subpart B—General Services
Administration (GSA)
102–37.90 What are GSA’s responsibilities in
the donation of surplus property?
102–37.95 How will GSA resolve competing
requests?
102–37.100 What factors will GSA consider in
allocating
surplus
property
among
SASPs?
Subpart C—Holding Agency
102–37.110 What are a holding agency’s responsibilities in the donation of surplus
property?
102–37.115 May a holding agency be reimbursed for costs incurred incident to a
donation?
102–37.120 May a holding agency donate surplus property directly to eligible nonFederal recipients without going through
GSA?
102–37.125 What are some donations that do
not require GSA’s approval?
Subpart D—State Agency for Surplus
Property (SASP)
102–37.130 What are a SASP’s responsibilities in the donation of surplus property?
102–37.135 How does a SASP become eligible
to distribute surplus property to donees?
DONATION OVERVIEW
STATE PLAN OF OPERATION
102–37.30 When does property become available for donation?
102–37.35 Who handles the donation of surplus property?
102–37.40 What type of surplus property is
available for donation?
102–37.45 How long is property available for
donation screening?
102–37.50 What is the general process for requesting surplus property for donation?
102–37.55 Who pays for transportation and
other costs associated with a donation?
102–37.60 How much time does a transferee
have to pick up or remove surplus property from holding agency premises?
102–37.65 What happens to surplus property
that has been approved for transfer when
the prospective transferee decides it cannot use the property and declines to pick
it up?
102–37.140 What is a State plan of operation?
102–37.145 Who is responsible for developing,
certifying, and submitting the plan?
102–37.150 What must a State legislature include in the plan?
102–37.155 When does a plan take effect?
102–37.160 Must GSA approve amendments
or modifications to the plan?
102–37.165 Do plans or major amendments
require public notice?
102–37.170 What happens if a SASP does not
operate in accordance with its plan?
SCREENING AND REQUESTING PROPERTY
102–37.175 How does a SASP find out what
property is potentially available for donation?
102–37.180–102–102–37.185 [Reserved]
102–37.190 What records must a SASP maintain on authorized screeners?
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102–37.195 Does a SASP have to have a donee
in mind to request surplus property?
102–37.200 What certifications must a SASP
make when requesting surplus property
for donation?
102–37.205 What agreements must a SASP
make?
102–37.210 Must a SASP make a drug-free
workplace certification when requesting
surplus property for donation?
102–37.215 When must a SASP make a certification regarding lobbying?
JUSTIFYING SPECIAL TRANSFER REQUESTS
102–37.220 Are there special types of surplus
property that require written justification when submitting a transfer request?
102–37.225 What information or documentation must a SASP provide when requesting a surplus aircraft or vessel?
102–37.230 What must a letter of intent for
obtaining surplus aircraft or vessels include?
102–37.235 What type of information must a
SASP provide when requesting surplus
property for cannibalization?
102–37.240 How must a transfer request for
surplus firearms be justified?
CUSTODY, CARE, AND SAFEKEEPING
102–37.245 What must a SASP do to safeguard surplus property in its custody?
102–37.250 What actions must a SASP take
when it learns of damage to or loss of
surplus property in its custody?
102–37.255 Must a SASP insure surplus property against loss or damage?
DISTRIBUTION OF PROPERTY
102–37.260 How must a SASP document the
distribution of surplus property?
102–37.265 May a SASP distribute surplus
property to eligible donees of another
State?
102–37.270 May a SASP retain surplus property for its own use?
SERVICE AND HANDLING CHARGES
102–37.275 May a SASP accept personal
checks and non-official payment methods in payment of service charges?
102–37.280 How may a SASP use service
charge funds?
102–37.285 May a SASP use service charge
funds to support non-SASP State activities and programs?
DISPOSING OF UNDISTRIBUTED PROPERTY
102–37.290 What must a SASP do with surplus property it cannot donate?
102–37.295 Must GSA approve a transfer between SASPs?
102–37.300 What information must a SASP
provide GSA when reporting unneeded
usable property for disposal?
102–37.305 May a SASP act as GSA’s agent
in selling undistributed surplus property
(either as usable property or scrap)?
102–37.310 What must a proposal to sell undistributed surplus property include?
102–37.315 What costs may a SASP recover if
undistributed surplus property is retransferred or sold?
102–37.320 Under what conditions may a
SASP abandon or destroy undistributed
surplus property?
COOPERATIVE AGREEMENTS
102–37.325 With whom and for what purpose(s) may a SASP enter into a cooperative agreement?
102–37.330 Must the costs of providing support under a cooperative agreement be
reimbursed by the parties receiving such
support?
102–37.335 May a SASP enter into a cooperative agreement with another SASP?
102–37.340 When may a SASP terminate a
cooperative agreement?
AUDITS AND REVIEWS
102–37.345 When must a SASP be audited?
102–37.350 Does coverage under the single
audit process in OMB Circular A–133 exempt a SASP from other reviews of its
program?
102–37.355 What obligations does a SASP
have to ensure that donees meet Circular
A–133 requirements?
REPORTS
102–37.360 What reports must a SASP provide to GSA?
LIQUIDATING A SASP
102–37.365 What steps must a SASP take if
the State decides to liquidate the agency?
102–37.370 Do liquidation plans require public notice?
Subpart E—Donations to Public Agencies,
Service Educational Activities (SEAs),
and Eligible Nonprofit Organizations
102–37.375 How is the pronoun ‘‘you’’ used in
this subpart?
102–37.380 What is the statutory authority
for donations of surplus Federal property
made under this subpart?
DONEE ELIGIBILITY
102–37.385 Who determines if a prospective
donee applicant is eligible to receive surplus property under this subpart?
102–37.390 What basic criteria must an activity meet before a SASP can qualify it
for eligibility?
102–37.395 How can a SASP determine
whether an applicant meets any required
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approval, accreditation, or licensing requirements?
102–37.400 What type of eligibility information must a SASP maintain on donees?
102–37.405 How often must a SASP update
donee eligibility records?
102–37.410 What must a SASP do if a donee
fails to maintain its eligibility status?
102–37.415 What should a SASP do if an applicant appeals a negative eligibility decision?
CONDITIONAL ELIGIBILITY
102–37.420 May a SASP grant conditional
eligibility to applicants who would otherwise qualify as eligible donees, but are
unable to obtain approval, accreditation,
or licensing because they are newly organized or their facilities are not yet constructed?
102–37.425 May a SASP grant conditional
eligibility to a not-for-profit organization whose tax-exempt status is pending?
102–37.430 What property can a SASP make
available to a donee with conditional eligibility?
TERMS AND CONDITIONS OF DONATION
102–37.435 For what purposes may donees acquire and use surplus property?
102–37.440 May donees acquire property for
exchange?
102–37.445 What certifications must a donee
make before receiving property?
102–37.450 What agreements must a donee
make?
102–37.495 How must a SASP handle funds
derived from compliance actions?
RETURNS AND REIMBURSEMENT
102–37.500 May a donee receive reimbursement for its donation expenses when
unneeded property is returned to the
SASP?
102–37.505 How does a donee apply for and
receive reimbursement for unneeded
property returned to a SASP?
SPECIAL PROVISIONS PERTAINING TO SEAS
102–37.510 Are there special requirements
for donating property to SEAs?
102–37.515 Do SEAs have a priority over
other SASP donees for DOD property?
Subpart F—Donations to Public Airports
102–37.520 What is the authority for public
airport donations?
102–37.525 What should a holding agency do
if it wants a public airport to receive priority consideration for excess personal
property it has reported to GSA?
102–37.530 What are FAA’s responsibilities
in the donation of surplus property to
public airports?
102–37.535 What information must FAA provide to GSA on its administration of the
public airport donation program?
Subpart G—Donations to the American
National Red Cross
SPECIAL HANDLING OR USE CONDITIONS
102–37.455 On what categories of surplus
property has GSA imposed special handling conditions or use limitations?
102–37.460 What special terms and conditions apply to the donation of aircraft
and vessels?
RELEASE OF RESTRICTIONS
102–37.465 May a SASP modify or release
any of the terms and conditions of donation?
102–37.470 At what point may restrictions be
released on property that has been authorized for cannibalization?
102–37.475 What are the requirements for releasing restrictions on property being
considered for exchange?
COMPLIANCE AND UTILIZATION
102–37.480 What must a SASP do to ensure
that property is used for the purpose(s)
for which it was donated?
102–37.485 What actions must a SASP take
if a review or other information indicates
noncompliance with donation terms and
conditions?
102–37.490 When must a SASP coordinate
with GSA on compliance actions?
102–37.540 What is the authority for donations to the American National Red
Cross?
102–37.545 What type of property may the
American National Red Cross receive?
102–37.550 What steps must the American
National Red Cross take to acquire property?
102–37.555 What happens to property the
American National Red Cross does not
request?
Subpart H—Donations to Public Bodies in
Lieu of Abandonment/Destruction
102–37.560 What is a public body?
102–37.565 What is the authority for donations to public bodies?
102–37.570 What type of property may a
holding agency donate under this subpart?
102–37.575 Is there a special form for holding
agencies to process donations?
102–37.580 Who is responsible for costs associated with the donation?
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§ 102–37.25
Subpart I—Transfer of Vehicle Title to a
Donee
State agency for surplus
(SASP) or a public airport).
102–37.585 In transferring donated surplus
vehicles, what is the responsibility of the
holding agency?
102–37.590 In transferring donated surplus
vehicles, what is the responsibility of the
SASP?
102–37.595 When transferring donated surplus vehicles, what is the responsibility
of the donee?
102–37.600 When does title to a surplus donated vehicle change hands?
APPENDIX A TO PART 102–37—MISCELLANEOUS
DONATION STATUTES
APPENDIX B TO PART 102–37—ELEMENTS OF A
STATE PLAN OF OPERATION
APPENDIX C TO PART 102–37—GLOSSARY OF
TERMS FOR DETERMINING ELIGIBILITY OF
PUBLIC AGENCIES AND NONPROFIT ORGANIZATIONS
AUTHORITY: 40 U.S.C. 549 and 121(c).
SOURCE: 67 FR 2584, Jan. 18, 2002, unless
otherwise noted.
Subpart A—General Provisions
§ 102–37.5
What does this part cover?
This part covers the donation of surplus Federal personal property located
within a State, including foreign excess
personal property returned to a State
for handling as surplus property. For
purposes of this part, the term State
includes any of the 50 States, as well as
the District of Columbia, the U.S. Virgin Islands, Guam, American Samoa,
the Commonwealth of Puerto Rico, and
the Commonwealth of the Northern
Mariana Islands.
§ 102–37.10 What is the primary governing authority for this part?
Section 549 of title 40, United States
Code, gives the General Services Administration (GSA) discretionary authority to prescribe the necessary regulations for, and to execute the surplus
personal property donation program.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.15 Who must comply with the
provisions of this part?
You must comply with this part if
you are a holding agency or a recipient
of Federal surplus personal property
approved by GSA for donation (e.g., a
§ 102–37.20 How do we request a deviation from this part and who can
approve it?
See §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of this part.
DEFINITIONS
§ 102–37.25 What definitions apply to
this part?
The following definitions apply to
this part:
Allocation means the process by
which GSA identifies the SASP to receive surplus property on a fair and equitable basis, taking into account the
condition of the property as well as the
original acquisition cost of the property.
Cannibalization means to remove
serviceable parts from one item of
equipment in order to install them on
another item of equipment.
Donee means any of the following entities that receive Federal surplus personal property through a SASP:
(1) A service educational activity
(SEA).
(2) A public agency (as defined in appendix C of this part) which uses surplus personal property to carry out or
promote one or more public purposes.
(Public airports are an exception and
are only considered donees when they
elect to receive surplus property
through a SASP, but not when they
elect to receive surplus property
through the Federal Aviation Administration as discussed in subpart F of
this part.)
(3) An eligible nonprofit tax-exempt
educational or public health institution (including a provider of assistance
to homeless or impoverished families
or individuals).
(4) A State or local government agency, or a nonprofit organization or institution, that receives funds appropriated for a program for older individuals.
Holding agency means the executive
agency having accountability for, and
generally possession of, the property
involved.
Period of restriction means the period
of time for keeping donated property in
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§ 102–37.30
41 CFR Ch. 102 (7–1–16 Edition)
use for the purpose for which it was donated.
Screening means the process of physically inspecting property or reviewing
lists or reports of property to determine whether property is usable or
needed for donation purposes.
Service educational activity (SEA)
means any educational activity designated by the Secretary of Defense as
being of special interest to the armed
forces; e.g., maritime academies or
military, naval, Air Force, or Coast
Guard preparatory schools.
Standard Form (SF) 123, Transfer Order
Surplus Personal Property means the
document used to request and document the transfer of Federal surplus
personal property for donation purposes.
State means one of the 50 States, the
District of Columbia, the U.S. Virgin
Islands, Guam, American Samoa, the
Commonwealth of Puerto Rico, and the
Commonwealth of the Northern Mariana Islands.
State agency for surplus property
(SASP) means the agency designated
under State law to receive Federal surplus personal property for distribution
to eligible donees within the State as
provided for in 40 U.S.C. 549.
Surplus personal property (surplus
property) means excess personal property (as defined in § 102–36.40 of this
chapter) not required for the needs of
any Federal agency, as determined by
GSA.
Surplus release date means the date on
which Federal utilization screening of
excess personal property has been completed, and the property is available for
donation.
Transferee means a public airport receiving surplus property from a holding
agency through the Federal Aviation
Administration, or a SASP.
You, when used in subparts D and E
of this part, means SASP, unless otherwise specified.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006; 79 FR 64514, Oct. 30,
2014]
DONATION OVERVIEW
§ 102–37.30 When does property
come available for donation?
Excess personal property becomes
available for donation the day following the surplus release date. This is
the point at which the screening period
has been completed without transfer to
a Federal agency or other eligible recipient, and the GSA has determined
the property to be surplus.
§ 102–37.35 Who handles the donation
of surplus property?
(a) The SASPs handle the donation of
most surplus property to eligible
donees in their States in accordance
with this part.
(b) The GSA handles the donation of
surplus property to public airports
under a program administered by the
Federal
Aviation
Administration
(FAA) (see subpart F of this part). The
GSA may also donate to the American
National Red Cross surplus property
that was originally derived from or
through the Red Cross (see subpart G of
this part).
(c) Holding agencies may donate surplus property that they would otherwise abandon or destroy directly to
public bodies in accordance with subpart H of this part.
§ 102–37.40 What type of surplus property is available for donation?
All surplus property (including property held by working capital funds established under 10 U.S.C. 2208 or in
similar funds) is available for donation
to eligible recipients, except for property in the following categories:
(a) Agricultural commodities, food,
and cotton or woolen goods determined
from time to time by the Secretary of
Agriculture to be commodities requiring special handling with respect to
price support or stabilization.
(b) Property acquired with trust
funds (e.g., Social Security Trust
Funds).
(c) Non-appropriated fund property.
(d) Naval vessels of the following categories: Battleships, cruisers, aircraft
carriers, destroyers, and submarines.
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§ 102–37.65
(e) Vessels of 1500 gross tons or more
which the Maritime Administration determines to be merchant vessels or capable of conversion to merchant use.
(f) Records of the Federal Government.
(g) Property that requires reimbursement upon transfer (such as abandoned
or other unclaimed property that is
found on premises owned or leased by
the Government).
(h) Controlled substances.
(i) Items as may be specified from
time to time by the GSA Office of Governmentwide Policy.
§ 102–37.45 How long is property available for donation screening?
Entities authorized to participate in
the donation program may screen property, concurrently with Federal agencies, as soon as the property is reported
as excess up until the surplus release
date. The screening period is normally
21 calendar days, except as noted in
§ 102–36.95 of this chapter.
§ 102–37.50 What is the general process
for requesting surplus property for
donation?
The process for requesting surplus
property for donation varies, depending
on who is making the request.
(a) Donees should submit their requests for property directly to the appropriate SASP.
(b) SASPs and public airports should
submit their requests to the appropriate GSA regional office. Requests
must be submitted on a Standard Form
(SF) 123, Transfer Order Surplus Personal Property, or its electronic equivalent. Public airports must have FAA
certify their transfer requests prior to
submission to GSA for approval. GSA
may ask SASPs or public airports to
submit any additional information required to support and justify transfer
of the property.
(c) The American National Red Cross
should submit requests to GSA as described in subpart G of this part when
obtaining property under the authority
of 40 U.S.C. 551.
(d) Public bodies, when seeking to acquire property that is being abandoned
or destroyed, should follow rules and
procedures established by the donor
agency (see subpart H of this part).
[67 FR 2584, Jan. 18, 2002, as amended at 79
FR 64514, Oct. 30, 2014]
§ 102–37.55 Who pays for transportation and other costs associated
with a donation?
The receiving organization (the
transferee) is responsible for any packing,
shipping,
or
transportation
charges associated with the transfer of
surplus property for donation. Those
costs, in the case of SASPs, may be
passed on to donees that receive the
property.
§ 102–37.60 How much time does a
transferee have to pick up or remove surplus property from holding agency premises?
The transferee (or the transferee’s
agent) must remove property from the
holding agency premises within 15 calendar days after being notified that the
property is available for pickup, unless
otherwise coordinated with the holding
agency. If the transferee decides prior
to pickup or removal that it no longer
needs the property, it must notify the
GSA regional office that approved the
transfer request.
§ 102–37.65 What happens to surplus
property that has been approved
for transfer when the prospective
transferee decides it cannot use the
property and declines to pick it up?
When a prospective transferee decides it cannot use surplus property
that has already been approved for
transfer and declines to pick it up, the
GSA regional office will advise any
other SASP or public airport known to
be interested in the property to submit
a transfer request. If there is no transfer interest, GSA will release the property for other disposal.
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§ 102–37.70
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–37.70 How should a transferee account for the receipt of a larger or smaller
number of items than approved by GSA on the SF 123?
When the quantity of property received doesn’t agree with that approved by
GSA on the SF 123, the transferee should handle the overage or shortage as follows:
If . . .
And . . .
Then . . .
(a) More property is received
than was approved by GSA
for transfer.
The known or estimated acquisition cost of the line
item(s) involved is $500 or
more.
Submit a SF 123 for the difference to GSA (Identify the
property as an overage and
include the original transfer
order number.) 1
(b) Less property is received
than was approved by GSA
for transfer.
The acquisition cost of the
missing item(s) is $500 or
more.
Submit a shortage report to
GSA, with a copy to the
holding agency.1
(c) The known or estimated
acquisition cost of the property is less than $500
Annotate on your receiving
and inventory records, a description of the property, its
known or estimated acquisition cost, and the name of
the holding agency.
1 Submit the SF 123 or shortage report to the GSA approving office within 30 calendar days of the date of
transfer.
§ 102–37.75 What should be included in
a shortage report?
The shortage report should include:
(a) The name and address of the holding agency;
(b) All pertinent GSA and holding
agency control numbers, in addition to
the original transfer order number; and
(c) A description of each line item of
property, the condition code, the quantity and unit of issue, and the unit and
total acquisition cost.
§ 102–37.85 Can surplus property being
offered for sale be withdrawn and
approved for donation?
Yes, surplus property being offered
for sale may be withdrawn for donation
if approved by GSA. GSA will not approve requests for the withdrawal of
property that has been advertised or
listed on a sales offering if that withdrawal would be harmful to the overall
outcome of the sale. GSA will only
grant such requests prior to sales
award, since an award is binding.
§ 102–37.80 What happens to surplus
property that isn’t transferred for
donation?
Surplus property not transferred for
donation is generally offered for sale
under the provisions of part 102–38 of
this chapter. Under the appropriate circumstances (see § 102–36.305 of this
chapter), such property might be abandoned or destroyed.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
Subpart B—General Services
Administration (GSA)
§ 102–37.90 What are GSA’s responsibilities in the donation of surplus
property?
The General Services Administration
(GSA) is responsible for supervising
and directing the disposal of surplus
personal property. In addition to
issuing regulatory guidance for the donation of such property, GSA:
(a) Determines when property is surplus to the needs of the Government;
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Federal Management Regulation
§ 102–37.110
(b) Allocates and transfers surplus
property on a fair and equitable basis
to State agencies for surplus property
(SASPs) for further distribution to eligible donees;
(c) Oversees the care and handling of
surplus property while it is in the custody of a SASP;
(d) Approves all transfers of surplus
property to public airports, pursuant
to the appropriate determinations
made by the Federal Aviation Administration (see subpart F of this part);
(e) Donates to the American National
Red Cross property (generally blood
plasma and related medical materials)
originally provided by the Red Cross to
a Federal agency, but that has subsequently been determined surplus to
Federal needs (see subpart G of this
part);
(f) Approves, after consultation with
the holding agency, foreign excess personal property to be returned to the
United States for donation purposes;
(g) Coordinates and controls the level
of SASP and donee screening at Federal installations;
(h) Imposes appropriate conditions on
the donation of surplus property having characteristics that require special
handling or use limitations (see § 102–
37.455); and
(i) Keeps track of and reports on Federal donation programs (see § 102–
37.105).
§ 102–37.95 How will GSA resolve competing transfer requests?
In case of requests from two or more
SASPs, GSA will use the allocating criteria in § 102–37.100. When competing requests are received from public airports and SASPs, GSA will transfer
property fairly and equitably, based on
such factors as need, proposed use, and
interest of the holding agency in having the property donated to a specific
public airport.
§ 102–37.100 What factors will GSA
consider in allocating surplus property among SASPs?
GSA allocates property among the
SASPs on a fair and equitable basis
using the following factors:
(a) Extraordinary needs caused by
disasters or emergency situations.
(b) Requests from the Department of
Defense (DOD) for DOD-generated property to be allocated through a SASP
for donation to a specific service educational activity.
(c) Need and usability of property, as
reflected by requests from SASPs. GSA
will also give special consideration to
requests transmitted through the
SASPs by eligible donees for specific
items of property. (Requests for property to be used as is will be given preference over cannibalization requests.)
(d) States in greatest need of the
type of property to be allocated where
the need is evidenced by a letter of justification from the intended donee.
(e) Whether a SASP has already received similar property in the past, and
how much.
(f) Past performance of a SASP in effecting timely pickup or removal of
property approved for transfer and
making prompt distribution of property to eligible donees.
(g) The property’s condition and its
original acquisition cost.
(h) Relative neediness of each State
based on the State’s population and per
capita income.
Subpart C—Holding Agency
§ 102–37.110 What are a holding agency’s responsibilities in the donation
of surplus property?
Your donation responsibilities as a
holding agency begin when you determine that property is to be declared excess. You must then:
(a) Let GSA know if you have a donee
in mind for foreign gift items or airport property, as provided for in § 102–
37.525 and § 102–42.95(h) of this chapter;
(b) Cooperate with all entities authorized to participate in the donation
program and their authorized representatives in locating, screening, and
inspecting excess or surplus property
for possible donation;
(c) Set aside or hold surplus property
from further disposal upon notification
of a pending transfer for donation; (If
GSA does not notify you of a pending
transfer within 5 calendar days following the surplus release date, you
may proceed with the sale or other authorized disposal of the property.)
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§ 102–37.115
41 CFR Ch. 102 (7–1–16 Edition)
(d) Upon receipt of a GSA-approved
transfer document, promptly ship or
release property to the transferee (or
the transferee’s designated agent) in
accordance with pickup or shipping instructions on the transfer document;
(e) Notify the approving GSA regional office if surplus property to be
picked up is not removed within 15 calendar days after you notify the transferee (or its agent) of its availability.
(GSA will advise you of further disposal instructions.); and
(f) Perform and bear the cost of care
and handling of surplus property pending its disposal, except as provided in
§ 102–37.115.
[67 FR 2584, Jan. 18, 2002, as amended at 67
FR 78732, Dec. 26, 2002]
§ 102–37.115 May a holding agency be
reimbursed for costs incurred incident to a donation?
Yes, you, as a holding agency, may
charge the transferee for the direct
costs you incurred incident to a donation transfer, such as your packing,
handling, crating, and transportation
expenses. However, you may not include overhead or administrative costs
in these charges.
§ 102–37.120 May a holding agency donate surplus property directly to eligible non-Federal recipients without going through GSA?
Generally, a holding agency may not
donate surplus property directly to eligible non-Federal recipients without
going through GSA, except for the situations listed in § 102–37.125.
§ 102–37.125 What are some donations
that do not require GSA’s approval?
(a) Some donations of surplus property that do not require GSA’s approval are:
(1) Donations of condemned, obsolete,
or other specified material by a military department or the Coast Guard to
recipients eligible under 10 U.S.C. 2572,
10 U.S.C. 7306, 10 U.S.C. 7541, 10 U.S.C.
7545, and 14 U.S.C. 641a (see appendix A
of this part for details). However, such
property must first undergo excess
Federal and surplus donation screening
as required in this part and part 102–36
of this chapter;
(2) Donations by holding agencies to
public bodies under subpart H of this
part;
(3) Donations by the Small Business
Administration (SBA) to small disadvantaged businesses under 13 CFR
part 124 (although collaboration and
agreement between the SBA, SASPs,
and GSA is encouraged); and
(4) Donations by holding agencies of
law enforcement canines to their handlers under 40 U.S.C. 555.
(b) You may also donate property directly to eligible non-Federal recipients under other circumstances if you
have statutory authority to do so. All
such donations must be included on
your annual report to GSA under § 102–
36.300 of this chapter.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006; 79 FR 64514, Oct. 30,
2014]
Subpart D—State Agency for
Surplus Property (SASP)
§ 102–37.130 What are a SASP’s responsibilities in the donation of surplus
property?
As a SASP, your responsibilities in
the donation of surplus property are to:
(a) Determine whether or not an entity seeking to obtain surplus property
is eligible for donation as a:
(1) Public agency;
(2) Nonprofit educational or public
health institution; or
(3) Program for older individuals.
(b) Distribute surplus property fairly,
equitably, and promptly to eligible
donees in your State based on their relative needs and resources, and ability
to use the property, and as provided in
your State plan of operation.
(c) Enforce compliance with the
terms and conditions imposed on donated property.
§ 102–37.135 How does a SASP become
eligible to distribute surplus property to donees?
In order to receive transfers of surplus property, a SASP must:
(a) Have a GSA-approved State plan
of operation; and
(b) Provide the certifications and
agreements as set forth in §§ 102–37.200
and 102–37.205.
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Federal Management Regulation
§ 102–37.190
STATE PLAN OF OPERATION
§ 102–37.165 Do plans or major amendments require public notice?
§ 102–37.140 What is a State plan of operation?
A State plan of operation is a document developed under State law and
approved by GSA in which the State
sets forth a plan for the management
and administration of the SASP in the
donation of property.
§ 102–37.145 Who is responsible for developing, certifying, and submitting
the plan?
The State legislature must develop
the plan. The chief executive officer of
the State must submit the plan to the
Administrator of General Services for
acceptance and certify that the SASP
is authorized to:
(a) Acquire and distribute property
to eligible donees in the State;
(b) Enter into cooperative agreements; and
(c) Undertake other actions and provide other assurances as are required
by 40 U.S.C. 549(e) and set forth in the
plan.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.150 What must a State legislature include in the plan?
The State legislature must ensure
the plan conforms to the provisions of
40 U.S.C. 549(e) and includes the information and assurances set forth in Appendix B of this part. It may also include in the plan other provisions not
inconsistent with the purposes of title
40 of the United States Code and the requirements of this part.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.155
fect?
When does a plan take ef-
The plan takes effect on the date
GSA notifies the chief executive officer
of the State that the plan is approved.
§ 102–37.160 Must GSA approve amendments or modifications to the plan?
Yes, GSA must approve amendments
or modifications to the plan.
Yes, proposed plans and major
amendments to existing plans require
general notice to the public for comment. A State must publish a general
notice of the plan or amendment at
least 60 calendar days in advance of filing the proposal with GSA and provide
interested parties at least 30 calendar
days to submit comments before filing
the proposal.
§ 102–37.170 What happens if a SASP
does not operate in accordance
with its plan?
If a SASP does not operate in accordance with its plan, GSA may withhold
allocation and transfer of surplus property until the nonconformance is corrected.
SCREENING AND REQUESTING PROPERTY
§ 102–37.175 How does a SASP find out
what property is potentially available for donation?
(a) A SASP may conduct onsite
screening at various Federal facilities,
contact or submit want lists to GSA, or
use GSA’s or other agencies’ computerized inventory system to electronically
search for property that is potentially
available for donation (see § 102–36.90
for information on GSAXcess).
(b) For the SASP (or a SASP’s representative) to perform onsite screening, the screener must coordinate the
onsite visit and screening with the individual holding agency or organization. The screener should ascertain the
identification required and any special
procedures for access to the facility or
location.
[67 FR 2584, Jan. 18, 2002, as amended at 79
FR 64514, Oct. 30, 2014]
§§ 102–37.180—102–37.185
§ 102–37.190 What records must a
SASP maintain on authorized
screeners?
You must maintain a current record
of all individuals authorized to screen
for your SASP, including their names,
addresses, telephone numbers, qualifications to screen, and any additional
identifying information such as driver’s license or social security numbers.
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§ 102–37.195
41 CFR Ch. 102 (7–1–16 Edition)
In the case of donee screeners, you
should place such records in the
donee’s eligibility file and review for
currency each time a periodic review of
the donee’s file is undertaken.
§ 102–37.195 Does a SASP have to have
a donee in mind to request surplus
property?
Generally yes, you should have a
firm requirement or an anticipated demand for any property that you request.
§ 102–37.200 What certifications must a
SASP make when requesting surplus property for donation?
When requesting or applying for
property, you must certify that:
(a) You are the agency of the State
designated under State law that has
legal authority under 40 U.S.C. 549 and
GSA regulations, to receive property
for distribution within the State to eligible donees as defined in this part.
(b) No person with supervisory or
managerial duties in your State’s donation program is debarred, suspended,
ineligible, or voluntarily excluded from
participating in the donation program.
(c) The property is usable and needed
within the State by:
(1) A public agency for one or more
public purposes.
(2) An eligible nonprofit organization
or institution which is exempt from
taxation under section 501 of the Internal Revenue Code (26 U.S.C. 501), for
the purpose of education or public
health (including research for any such
purpose).
(3) An eligible nonprofit activity for
programs for older individuals.
(4) A service educational activity
(SEA), for DOD-generated property
only.
(d) When property is picked up by, or
shipped to, your SASP, you have adequate and available funds, facilities,
and personnel to provide accountability, warehousing, proper maintenance, and distribution of the property.
(e) When property is distributed by
your SASP to a donee, or when delivery is made directly from a holding
agency to a donee pursuant to a State
distribution document, you have determined that the donee acquiring the
property is eligible within the meaning
of the Property Act and GSA regula-
tions, and that the property is usable
and needed by the donee.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.205 What agreements must a
SASP make?
With respect to surplus property
picked up by or shipped to your SASP,
you must agree to the following:
(a) You will make prompt statewide
distribution of such property, on a fair
and equitable basis, to donees eligible
to acquire property under 40 U.S.C. 549
and GSA regulations. You will distribute property only after such eligible donees have properly executed the
appropriate certifications and agreements established by your SASP and/or
GSA.
(b) Title to the property remains in
the United States Government although you have taken possession of it.
Conditional title to the property will
pass to the eligible donee when the
donee executes the required certifications and agreements and takes possession of the property.
(c) You will:
(1) Promptly pay the cost of care,
handling, and shipping incident to taking possession of the property.
(2) During the time that title remains in the United States Government, be responsible as a bailee for the
property from the time it is released to
you or to the transportation agent you
have designated.
(3) In the event of any loss of or damage to any or all of the property during
transportation or storage at a place
other than a place under your control,
take the necessary action to obtain
restitution (fair market value) for the
Government. In the event of loss or
damage due to negligence or willful
misconduct on your part, repair, replace, or pay to the GSA the fair market value of any such property, or take
such other action as the GSA may direct.
(d) You may retain property to perform your donation program functions,
but only when authorized by GSA in
accordance with the provisions of a cooperative agreement entered into with
GSA.
(e) When acting under an interstate
cooperative distribution agreement
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Federal Management Regulation
§ 102–37.225
(see § 102–37.335) as an agent and authorized representative of an adjacent
State, you will:
(1) Make the certifications and agreements required in § 102–37.200 and this
section on behalf of the adjacent SASP.
(2) Require the donee to execute the
distribution documents of the State in
which the donee is located.
(3) Forward copies of the distribution
documents to the corresponding SASP.
(f) You will not discriminate on the
basis of race, color, national origin,
sex, age, or handicap in the distribution of property, and will comply with
GSA regulations on nondiscrimination
as set forth in parts 101–4, subparts 101–
6.2, and 101–8.3 of this title.
(g) You will not seek to hold the
United States Government liable for
consequential or incidental damages or
the personal injuries, disabilities, or
death to any person arising from the
transfer, donation, use, processing, or
final disposition of this property. The
Government’s liability in any event is
limited in scope to that provided for by
the Federal Tort Claims Act (28 U.S.C.
2671, et seq.).
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.210 Must a SASP make a drugfree workplace certification when
requesting surplus property for donation?
No, you must certify that you will
provide a drug-free workplace only as a
condition for retaining surplus property for SASP use. Drug-free workplace
certification requirements are found at
part 105–68, subpart 105–68.6, of this
title.
§ 102–37.215 When must a SASP make
a certification regarding lobbying?
You are subject to the anti-lobbying
certification and disclosure requirements in part 105–69 of this title when
all of the following conditions apply:
(a) You have entered into a cooperative agreement with GSA that provides
for your SASP to retain surplus property for use in performing donation
functions or any other cooperative
agreement.
(b) The cooperative agreement was
executed after December 23, 1989.
(c) The fair market value of the property requested under the cooperative
agreement is more than $100,000.
JUSTIFYING SPECIAL TRANSFER
REQUESTS
§ 102–37.220 Are there special types of
surplus property that require written justification when submitting a
transfer request?
Yes, a SASP must obtain written justification from the intended donee, and
submit it to GSA along with the transfer request, prior to allocation of:
(a) Aircraft and vessels covered by
§ 102–37.455;
(b) Items requested specifically for
cannibalization;
(c) Foreign gifts and decorations (see
part 102–42 of this chapter);
(d) Items containing 50 parts per million or greater of polychlorinated
biphenyl (see part 101–42 of this title);
(e) Firearms as described in part 101–
42 of this title; and
(f) Any item on which written justification will assist GSA in making allocation to States with the greatest
need.
§ 102–37.225 What information or documentation must a SASP provide
when requesting a surplus aircraft
or vessel?
(a) For each SF 123 that you submit
to GSA for transfer of a surplus aircraft or vessel covered by § 102–37.455
include:
(1) A letter of intent, signed and
dated by the authorized representative
of the proposed donee setting forth a
detailed plan of utilization for the
property (see § 102–37.230 for information a donee has to include in the letter of intent); and
(2) A letter, signed and dated by you,
confirming and certifying the applicant’s eligibility and containing an
evaluation of the applicant’s ability to
use the aircraft or vessel for the purpose stated in its letter of intent and
any other supplemental information
concerning the needs of the donee
which supports making the allocation.
(b) For each SF 123 that GSA approves, you must include:
(1) Your distribution document,
signed and dated by the authorized
donee representative; and
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§ 102–37.230
41 CFR Ch. 102 (7–1–16 Edition)
(2) A conditional transfer document,
signed by you and the intended donee,
and containing the special terms and
conditions prescribed by GSA.
§ 102–37.230 What must a letter of intent for obtaining surplus aircraft
or vessels include?
A letter of intent for obtaining surplus aircraft or vessels must provide:
(a) A description of the aircraft or
vessel requested. If the item is an aircraft, the description must include the
manufacturer, date of manufacture,
model, and serial number. If the item is
a vessel, it must include the type,
name, class, size, displacement, length,
beam, draft, lift capacity, and the hull
or registry number, if known;
(b) A detailed description of the
donee’s program and the number and
types of aircraft or vessels it currently
owns;
(c) A detailed description of how the
aircraft or vessel will be used, its purpose, how often and for how long. If an
aircraft is requested for flight purposes, the donee must specify a source
of pilot(s) and where the aircraft will
be housed. If an aircraft is requested
for cannibalization, the donee must
provide details of the cannibalization
process (time to complete the cannibalization process, how recovered parts
are to be used, method of accounting
for
usable
parts,
disposition
of
unsalvageable parts, etc.) If a vessel is
requested for waterway purposes, the
donee must specify a source of pilot(s)
and where the vessel will be docked. If
a vessel is requested for permanent
docking on water or land, the donee
must provide details of the process, including the time to complete the process; and
(d) Any supplemental information
(such as geographical area and population served, number of students enrolled in educational programs, etc.)
supporting the donee’s need for the aircraft or vessel.
§ 102–37.235 What type of information
must a SASP provide when requesting surplus property for cannibalization?
When a donee wants surplus property
to cannibalize, include the following
statement on the SF 123: ‘‘Line Item
Number(s)lllrequested for cannibal-
ization.’’. In addition to including this
statement, provide a detailed justification concerning the need for the components or accessories and an explanation of the effect removal will have
on the item. GSA will approve requests
for cannibalization only when it is
clear from the justification that disassembly of the item for use of its component parts will provide greater potential benefit than use of the item in
its existing form.
§ 102–37.240 How must a transfer request for surplus firearms be justified?
To justify a transfer request for surplus firearms, the requesting SASP
must obtain and submit to GSA a letter of intent from the intended donee
that provides:
(a) Identification of the donee applicant, including its legal name and complete address and the name, title, and
telephone number of its authorized representative;
(b) The number of compensated officers with the power to apprehend and
to arrest;
(c) A description of the firearm(s) requested;
(d) Details on the planned use of the
firearm(s); and
(e) The number and types of donated
firearms received during the previous
12 months through any other Federal
program.
CUSTODY, CARE, AND SAFEKEEPING
§ 102–37.245 What must a SASP do to
safeguard surplus property in its
custody?
To safeguard surplus property in
your custody, you must provide adequate protection of property in your
custody, including protection against
the hazards of fire, theft, vandalism,
and weather.
§ 102–37.250 What actions must a SASP
take when it learns of damage to or
loss of surplus property in its custody?
If you learn that surplus property in
your custody has been damaged or lost,
you must always notify GSA and notify
the appropriate law enforcement officials if a crime has been committed.
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Federal Management Regulation
§ 102–37.285
§ 102–37.255 Must a SASP insure surplus property against loss or damage?
No, you are not required to carry insurance on Federal surplus property in
your custody. However, if you elect to
carry insurance and the insured property is lost or damaged, you must submit a check made payable to GSA for
any insurance proceeds received in excess of your actual costs of acquiring
and rehabilitating the property prior
to its loss, damage, or destruction.
DISTRIBUTION OF PROPERTY
§ 102–37.260 How must a SASP document the distribution of surplus
property?
All SASPs must document the distribution of Federal surplus property
on forms that are prenumbered, provide for donees to indicate the primary
purposes for which they are acquiring
property, and include the:
(a) Certifications and agreements in
§§ 102–37.200 and 102–37.205; and
(b) Period of restriction during which
the donee must use the property for
the purpose for which it was acquired.
§ 102–37.265 May a SASP distribute
surplus property to eligible donees
of another State?
Yes, you may distribute surplus property to eligible donees of another
State, if you and the other SASP determine that such an arrangement will be
of mutual benefit to you and the
donees concerned. Where such determinations are made, an interstate distribution cooperative agreement must
be prepared as prescribed in § 102–37.335
and submitted to the appropriate GSA
regional office for approval. When acting under an interstate distribution cooperative agreement, you must:
(a) Require the donee recipient to
execute the distribution documents of
its home SASP; and
(b) Forward copies of executed distribution documents to the donee’s
home SASP.
§ 102–37.270 May a SASP retain surplus property for its own use?
Yes, you can retain surplus property
for use in operating the donation program, but only if you have a coopera-
tive agreement with GSA that allows
you to do so. You must obtain prior
GSA approval before using any surplus
property in the operation of the SASP.
Make your needs known by submitting
a listing of needed property to the appropriate GSA regional office for approval. GSA will review the list to ensure that it is of the type and quantity
of property that is reasonably needed
and useful in performing SASP operations. GSA will notify you within 30
calendar days whether you may retain
the property for use in your operations.
Title to any surplus property GSA approves for your retention will vest in
your SASP. You must maintain separate records for such property.
SERVICE AND HANDLING CHARGES
§ 102–37.275 May a SASP accept personal checks and non-official payment methods in payment of service charges?
No, service charge payments must
readily identify the donee institution
as the payer (or the name of the parent
organization when that organization
pays the operational expenses of the
donee). Personal checks, personal cashier checks, personal money orders, and
personal credit cards are not acceptable.
§ 102–37.280 How may a SASP use service charge funds?
Funds accumulated from service
charges may be deposited, invested, or
used in accordance with State law to:
(a) Cover direct and reasonable indirect costs of operating the SASP;
(b) Purchase necessary equipment for
the SASP;
(c) Maintain a reasonable working
capital reserve;
(d) Rehabilitate surplus property, including the purchase of replacement
parts;
(e) Acquire or improve office or distribution center facilities; or
(f) Pay for the costs of internal and
external audits.
§ 102–37.285 May a SASP use service
charge funds to support non-SASP
State activities and programs?
No, except as provided in § 102–37.495,
you must use funds collected from
service charges, or from other sources
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§ 102–37.290
41 CFR Ch. 102 (7–1–16 Edition)
such as proceeds from sale of undistributed property or funds collected from
compliance cases, solely for the operation of the SASP and the benefit of
participating donees.
DISPOSING OF UNDISTRIBUTED PROPERTY
§ 102–37.290 What must a SASP do
with surplus property it cannot donate?
(a) As soon as it becomes clear that
you cannot donate the surplus property, you should first determine whether or not the property is usable.
(1) If you determine that the undistributed surplus property is not usable,
you should seek GSA approval to abandon or destroy the property in accordance with § 102–37.320.
(2) If you determine that the undistributed surplus property is usable, you
should immediately offer it to other
SASPs. If other SASPs cannot use the
property, you should promptly report
it to GSA for redisposal (i.e., disposition through retransfer, sale, or other
means).
(b) Normally, any property not donated within a 1-year period should be
processed in this manner.
§ 102–37.295 Must GSA approve a
transfer between SASPs?
Yes, the requesting SASP must submit a SF 123, Transfer Order Surplus
Personal Property, to the GSA regional
office in which the releasing SASP is
located. GSA will approve or disapprove the request within 30 calendar
days of receipt of the transfer order.
§ 102–37.300 What information must a
SASP provide GSA when reporting
unneeded usable property for disposal?
When reporting unneeded usable
property that is not required for transfer to another SASP, provide GSA with
the:
(a) Best possible description of each
line item of property, its current condition code, quantity, unit and total acquisition cost, State serial number, demilitarization code, and any special
handling conditions;
(b) Date you received each line item
of property listed; and
(c) Certification of reimbursement
requested under § 102–37.315.
§ 102–37.305 May a SASP act as GSA’s
agent in selling undistributed surplus property (either as usable
property or scrap)?
Yes, you may act as GSA’s agent in
selling undistributed surplus property
(either as usable property or scrap) if
an established cooperative agreement
with GSA permits such an action. You
must notify GSA each time you propose to conduct a sale under the cooperative agreement. You may request
approval to conduct a sale when reporting the property to GSA for disposal
instructions. If no formal agreement
exists, you may submit such an agreement at that time for approval.
§ 102–37.310 What must a proposal to
sell undistributed surplus property
include?
(a) Your request to sell undistributed
surplus property must include:
(1) The proposed sale date;
(2) A listing of the property;
(3) Location of the sale;
(4) Method of sale; and
(5) Proposed advertising to be used.
(b) If the request is approved, the
GSA regional sales office will provide
the necessary forms and instructions
for you to use in conducting the sale.
§ 102–37.315 What costs may a SASP
recover if undistributed surplus
property is retransferred or sold?
(a) When undistributed surplus property is transferred to a Federal agency
or another SASP, or disposed of by
public sale, you are entitled to recoup:
(1) Direct costs you initially paid to
the Federal holding agency, including
but not limited to, packing, preparation for shipment, and loading. You
will not be reimbursed for actions following receipt of the property, including unloading, moving, repairing, preserving, or storage.
(2) Transportation costs you incurred, but were not reimbursed by a
donee, for initially moving the property from the Federal holding agency
to your distribution facility or other
point of receipt. You must document
and certify the amount of reimbursement requested for these costs.
(b)
Reimbursable
arrangements
should be made prior to transfer of the
property. In the case of a Federal
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Federal Management Regulation
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transfer, GSA will secure agreement of
the Federal agency to reimburse your
authorized costs, and annotate the
amount of reimbursement on the transfer document. You must coordinate and
make arrangements for reimbursement
when property is transferred to another SASP. If you and the receiving
SASP cannot agree on an appropriate
reimbursement charge, GSA will determine appropriate reimbursement. The
receiving SASP must annotate the reimbursement amount on the transfer
document prior to its being forwarded
to GSA for approval.
(c) When undistributed property is
disposed of by public sale, GSA must
approve the amount of sales proceeds
you may receive to cover your costs.
Generally, this will not exceed 50 percent of the total sales proceeds.
§ 102–37.320 Under what conditions
may a SASP abandon or destroy undistributed surplus property?
(a) You may abandon or destroy undistributed surplus property when you
have made a written finding that the
property has no commercial value or
the estimated cost of its continued
care and handling would exceed the estimated proceeds from its sale. The
abandonment or destruction finding
must be sent to the appropriate GSA
regional office for approval. You must
include in the finding:
(1) The basis for the abandonment or
destruction;
(2) A detailed description of the property, its condition, and total acquisition cost;
(3) The proposed method of destruction (burning, burying, etc.) or the
abandonment location;
(4) A statement confirming that the
proposed abandonment or destruction
will not be detrimental or dangerous to
public health or safety and will not infringe on the rights of other persons;
and
(5) The signature of the SASP director requesting approval for the abandonment or destruction.
(b) GSA will notify you within 30 calendar days whether you may abandon
or destroy the property. GSA will provide alternate disposition instructions
if it disapproves your request for abandonment or destruction. If GSA doesn’t
reply to you within 30 calendar days of
notification, the property may be abandoned or destroyed.
COOPERATIVE AGREEMENTS
§ 102–37.325 With whom and for what
purpose(s) may a SASP enter into a
cooperative agreement?
Section 549(f) of title 40, United
States Code allows GSA, or Federal
agencies designated by GSA, to enter
into cooperative agreements with
SASPs to carry out the surplus property donation program. Such agreements allow GSA, or the designated
Federal agencies, to use the SASP’s
property, facilities, personnel, or services or to furnish such resources to the
SASP. For example:
(a) Regional GSA personal property
management offices, or designated
Federal agencies, may enter into a cooperative agreement to assist a SASP
in distributing surplus property for donation. Assistance may include:
(1) Furnishing the SASP with available GSA or agency office space and related support such as office furniture
and information technology equipment
needed to screen and process property
for donation.
(2) Permitting the SASP to retain
items of surplus property transferred
to the SASP that are needed by the
SASP in performing its donation functions (see § 102–37.270).
(b) Regional GSA personal property
management offices may help the
SASP to enter into agreements with
other GSA or Federal activities for the
use of Federal telecommunications
service or federally-owned real property and related personal property.
(c) A SASP may enter into a cooperative agreement with GSA to conduct
sales of undistributed property on behalf of GSA (see § 102–37.305).
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.330 Must the costs of providing support under a cooperative
agreement be reimbursed by the
parties receiving such support?
The parties to a cooperative agreement must decide among themselves
the extent to which the costs of the
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§ 102–37.335
41 CFR Ch. 102 (7–1–16 Edition)
services they provide must be reimbursed. Their decision should be reflected in the cooperative agreement
itself. As a general rule, the Economy
Act (31 U.S.C. 1535) would require a
Federal agency receiving services from
a SASP to reimburse the SASP for
those services. Since SASPs are not
Federal agencies, the Economy Act
would not require them to reimburse
Federal agencies for services provided
by such agencies. In this situation, the
Federal agencies would have to determine whether or not their own authorities would permit them to provide services to SASPs without reimbursement.
If a Federal agency is reimbursed by a
SASP for services provided under a cooperative agreement, it must credit
that payment to the fund or appropriation that incurred the related costs.
§ 102–37.335 May a SASP enter into a
cooperative agreement with another SASP?
Yes, with GSA’s concurrence and
where authorized by State law, a SASP
may enter into an agreement with an
adjacent State to act as its agent and
authorized representative in disposing
of surplus Federal property. Interstate
cooperative agreements may be considered when donees, because of their geographic proximity to the property distribution centers of the adjoining
State, could be more efficiently and
economically serviced by surplus property facilities in the adjacent State.
You and the other SASP must agree to
the payment or reimbursement of service charges by the donee and you also
must agree to the requirements of
§ 102–37.205(e).
§ 102–37.340 When may a SASP terminate a cooperative agreement?
You may terminate a cooperative
agreement with GSA 60-calendar days
after providing GSA with written notice. For other cooperative agreements
with other authorized parties, you or
the other party may terminate the
agreement as mutually agreed. You
must promptly notify GSA when such
other agreements are terminated.
AUDITS AND REVIEWS
§ 102–37.345 When must a SASP be audited?
For each year in which a SASP receives $500,000 or more a year in surplus property or other Federal assistance, it must be audited in accordance
with the Single Audit Act (31 U.S.C.
7501–7507) as implemented by Office of
Management and Budget (OMB) Circular A–133, ‘‘Audits of States, Local
Governments, and Non-Profit Organizations’’ (for availability see 5 CFR
1310.3). GSA’s donation program should
be identified by Catalog of Federal Domestic Assistance number 39.003 when
completing the required schedule of
Federal assistance.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.350 Does coverage under the
single audit process in OMB Circular A–133 exempt a SASP from
other reviews of its program?
No, although SASPs are covered
under the single audit process in OMB
Circular A–133, from time to time the
Government
Accountability
Office
(GAO), GSA, or other authorized Federal activities may audit or review the
operations of a SASP. GSA will notify
the chief executive officer of the State
of the reasons for a GSA audit. When
requested, you must make available financial records and all other records of
the SASP for inspection by representatives of GSA, GAO, or other authorized
Federal activities.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.355 What obligations does a
SASP have to ensure that donees
meet Circular A–133 requirements?
SASPs, if they donate $500,000 or
more in Federal property to a donee in
a fiscal year, must ensure that the
donee has an audit performed in accordance with Circular A–133. If a
donee receives less than $500,000 in donated property, the SASP is not expected to assume responsibility for ensuring the donee meets audit requirements, beyond making sure the donee
is aware that the requirements do
exist. It is the donee’s responsibility to
identify and determine the amount of
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Federal assistance it has received and
to arrange for audit coverage.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
REPORTS
§ 102–37.360 What reports must a SASP
provide to GSA?
(a) Quarterly report on donations. Submit a GSA Form 3040, State Agency
Monthly Donation Report of Surplus
Personal Property, to the appropriate
GSA regional office by the 25th day of
the month following the quarter being
reported. (OMB Control Number 3090–
0112 has been assigned to this form.)
Forms and instructions for completing
the form are available from your servicing GSA office.
(b) Additional reports. Make other reports GSA may require to carry out its
discretionary authority to transfer surplus personal property for donation and
to report to the Congress on the status
and progress of the donation program.
LIQUIDATING A SASP
§ 102–37.365 What steps must a SASP
take if the State decides to liquidate the agency?
Before suspending operations, a
SASP must submit to GSA a liquidation plan that includes:
(a) Reasons for the liquidation;
(b) A schedule for liquidating the
agency and the estimated date of termination;
(c) Method of disposing of property
on hand under the requirements of this
part;
(d) Method of disposing of the agency’s physical and financial assets;
(e) Retention of all available records
of the SASP for a 2-year period following liquidation; and
(f) Designation of another governmental entity to serve as the agency’s
successor in function until continuing
obligations on property donated prior
to the closing of the agency are fulfilled.
§ 102–37.370 Do liquidation plans require public notice?
Yes, a liquidation plan constitutes a
major amendment of a SASP’s plan of
operation and, as such, requires public
notice.
Subpart E—Donations to Public
Agencies,
Service
Educational Activities (SEAs), and
Eligible Nonprofit Organizations
§ 102–37.375 How is the pronoun ‘‘you’’
used in this subpart?
The pronoun ‘‘you,’’ when used in
this subpart, refers to the State agency
for surplus property (SASP).
§ 102–37.380 What is the statutory authority for donations of surplus
Federal property made under this
subpart?
The following statutes provide the
authority to donate surplus Federal
property to different types of recipients:
(a) Section 549(d) of title 40, United
States Code authorizes surplus property under the control of the Department of Defense (DOD) to be donated,
through SASPs, to educational activities which are of special interest to the
armed services (referred to in this part
102–37 as service educational activities
or SEAs).
(b) Section 549(c)(3) of title 40, United
States Code authorizes SASPs to donate surplus property to public agencies and to nonprofit educational or
public health institutions, such as:
(1) Medical institutions.
(2) Hospitals.
(3) Clinics.
(4) Health centers.
(5) Drug abuse or alcohol treatment
centers.
(6) Providers of assistance to homeless individuals.
(7) Providers of assistance to impoverished families and individuals.
(8) Schools.
(9) Colleges.
(10) Universities.
(11) Schools for the mentally disabled.
(12) Schools for the physically disabled.
(13) Child care centers.
(14) Radio and television stations licensed by the Federal Communications
Commission as educational radio or
educational television stations.
(15) Museums attended by the public.
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§ 102–37.385
41 CFR Ch. 102 (7–1–16 Edition)
(16) Libraries, serving free all residents of a community, district, State
or region.
(17) Historic light stations as defined
under section 308(e)(2) of the National
Historic Preservation Act (16 U.S.C.
470w–7(e)(2)), including a historic light
station conveyed under subsection (b)
of that section, notwithstanding the
number of hours that the historic light
station is open to the public.
(c) Section 213 of the Older Americans Act of 1965, as amended (42 U.S.C.
3020d), authorizes donations of surplus
property to State or local government
agencies, or nonprofit organizations or
institutions, that receive Federal funding to conduct programs for older individuals.
(d) Section 549(c)(3)(C) of title 40,
United States Code authorizes SASPs
to donate property to veterans organizations, for purposes of providing services to veterans (as defined in section
101 of title 38). Eligible veterans organizations are those whose:
(1) Membership comprises substantially veterans; and
(2) Representatives are recognized by
the Secretary of Veterans Affairs under
section 5902 of title 38.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006; 72 FR 12572, Mar. 16,
2007; 79 FR 64514, Oct. 30, 2014]
DONEE ELIGIBILITY
§ 102–37.385 Who determines if a prospective donee applicant is eligible
to receive surplus property under
this subpart?
(a) For most public and nonprofit activities, the SASP determines if an applicant is eligible to receive property
as a public agency, a nonprofit educational or public health institution,
or for a program for older individuals.
A SASP may request GSA assistance
or guidance in making such determinations.
(b) For applicants that offer courses
of instruction devoted to the military
arts and sciences, the Defense Department will determine eligibility to receive surplus property through the
SASP as a service educational activity
or SEA.
§ 102–37.390 What basic criteria must
an applicant meet before a SASP
can qualify it for eligibility?
To qualify for donation program eligibility through a SASP, an applicant
must:
(a) Conform to the definition of one
of the categories of eligible entities
listed in § 102–37.380 (see appendix C of
this part for definitions);
(b) Demonstrate that it meets any
approval, accreditation, or licensing
requirements for operation of its program;
(c) Prove that it is a public agency or
a nonprofit and tax-exempt organization under section 501 of the Internal
Revenue Code;
(d) Certify that it is not debarred,
suspended, or excluded from any Federal program, including procurement
programs; and
(e) Operate in compliance with applicable Federal nondiscrimination statutes.
§ 102–37.395 How can a SASP determine whether an applicant meets
any required approval, accreditation, or licensing requirements?
A SASP may accept the following
documentation as evidence that an applicant has met established standards
for the operation of its educational or
health program:
(a) A certificate or letter from a nationally recognized accrediting agency
affirming the applicant meets the
agency’s standards and requirements.
(b) The applicant’s appearance on a
list with other similarly approved or
accredited institutions or programs
when that list is published by a State,
regional, or national accrediting authority.
(c) Letters from State or local authorities (such as a board of health or
a board of education) stating that the
applicant meets the standards prescribed for approved or accredited institutions and organizations.
(d) In the case of educational activities, letters from three accredited or
State-approved institutions that students from the applicant institution
have been and are being accepted.
(e) In the case of public health institutions, licensing may be accepted as
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Federal Management Regulation
§ 102–37.430
evidence of approval, provided the licensing authority prescribes the medical requirements and standards for the
professional and technical services of
the institution.
(f) The awarding of research grants
to the institution by a recognized authority such as the National Institutes
of Health, the National Institute of
Education, or by similar national advisory council or organization.
§ 102–37.400 What type of eligibility information must a SASP maintain on
donees?
In general, you must maintain the
records required by your State plan to
document donee eligibility (see appendix B of this part). For SEAs, you must
maintain separate records that include:
(a) Documentation verifying that the
activity has been designated as eligible
by DOD to receive surplus DOD property.
(b) A statement designating one or
more donee representative(s) to act for
the SEA in acquiring property.
(c) A listing of the types of property
that are needed or have been authorized by DOD for use in the SEA’s program.
§ 102–37.405 How often must a SASP
update donee eligibility records?
You must update donee eligibility
records as needed, but no less than
every 3 years, to ensure that all documentation supporting the donee’s eligibility is current and accurate. Annually, you must update files for nonprofit organizations whose eligibility
depends on annual appropriations, annual licensing, or annual certification.
Particular care must be taken to ensure that all records relating to the authority of donee representatives to receive and receipt for property, or to
screen property at Federal facilities,
are current.
§ 102–37.410 What must a SASP do if a
donee fails to maintain its eligibility status?
If you determine that a donee has
failed to maintain its eligibility status,
you must terminate distribution of
property to that donee, recover any usable property still under Federal restriction (as outlined in § 102–37.465),
and take any other required compliance actions.
§ 102–37.415 What should a SASP do if
an applicant appeals a negative eligibility determination?
If an applicant appeals a negative eligibility determination, forward complete documentation on the appeal request, including your comments and
recommendations, to the applicable
GSA regional office for review and coordination with GSA headquarters.
GSA’s decision will be final.
CONDITIONAL ELIGIBILITY
§ 102–37.420 May a SASP grant conditional eligibility to applicants who
would otherwise qualify as eligible
donees, but have been unable to obtain approval, accreditation, or licensing because they are newly organized or their facilities are not
yet constructed?
You may grant conditional eligibility
to such an applicant provided it submits a statement from any required approving, accrediting, or licensing authority confirming it will be approved,
accredited, or licensed. Conditional eligibility may be granted for a limited
and reasonable time, not to exceed one
year.
[67 FR 2584, Jan. 18, 2002, as amended at 79
FR 64514, Oct. 30, 2014]
§ 102–37.425 May a SASP grant conditional eligibility to a not-for-profit
organization whose tax-exempt status is pending?
No, under no circumstances may you
grant conditional eligibility prior to
receiving from the applicant a copy of
a letter of determination by the Internal Revenue Service stating that the
applicant is exempt from Federal taxation under section 501 of the Internal
Revenue Code.
§ 102–37.430 What property can a SASP
make available to a donee with conditional eligibility?
You may only make available surplus
property that the donee can use immediately. You may not make available
property that will only be used at a
later date, for example, after the construction of the donee’s facility has
been completed. If property is provided
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§ 102–37.435
41 CFR Ch. 102 (7–1–16 Edition)
to the donee with conditional eligibility, and the conditional eligibility
lapses (see § 102–37.420), the property
must be returned to the SASP for redistribution or disposal.
[67 FR 2584, Jan. 18, 2002, as amended at 79
FR 64514, Oct. 30, 2014]
TERMS AND CONDITIONS OF DONATION
§ 102–37.435 For what purposes may
donees acquire and use surplus
property?
A donee may acquire and use surplus
property only for the following authorized purposes:
(a) Public purposes. A public agency
that acquires surplus property through
a SASP must use such property to
carry out or to promote one or more
public purposes for the people it serves.
(b) Educational and public health purposes, including related research. A nonprofit educational or public health institution must use surplus property for
education or public health, including
research for either purpose and assistance to the homeless or impoverished.
While this does not preclude the use of
donated surplus property for a related
or subsidiary purpose incident to the
institution’s overall program, the property may not be used for a nonrelated
or commercial purpose.
(c) Programs for older individuals. An
entity that conducts a program for
older individuals must use donated surplus property to provide services that
are necessary for the general welfare of
older individuals, such as social services, transportation services, nutrition
services, legal services, and multipurpose senior centers.
§ 102–37.440 May donees acquire property for exchange?
No, a donee may not acquire property
with the intent to sell or trade it for
other assets.
§ 102–37.445 What certifications must a
donee make before receiving property?
Prior to a SASP releasing property
to a donee, the donee must certify
that:
(a) It is a public agency or a nonprofit organization meeting the re-
quirements of the Property Act and/or
regulations of GSA;
(b) It is acquiring the property for its
own use and will use the property for
authorized purposes;
(c) Funds are available to pay all
costs and charges incident to the donation;
(d) It will comply with the nondiscrimination
regulations
issued
under title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d–2000d–4), section
122 of title 40, United States Code, section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794), as amended, title IX
of the Education Amendments of 1972
(20 U.S.C. 1681–1688), as amended, and
section 303 of the Age Discrimination
Act of 1975 (42 U.S.C. 6101–6107); and
(e) It isn’t currently debarred, suspended, declared ineligible, or otherwise excluded from receiving the property.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.450 What agreements must a
donee make?
Before a SASP may release property
to a donee, the donee must agree to the
following conditions:
(a) The property is acquired on an
‘‘as is, where is’’ basis, without warranty of any kind, and it will hold the
Government harmless from any or all
debts, liabilities, judgments, costs, demands, suits, actions, or claims of any
nature arising from or incident to the
donation of the property, its use, or
final disposition.
(b) It will return to the SASP, at its
own expense, any donated property:
(1) That is not placed in use for the
purposes for which it was donated
within 1 year of donation; or
(2) Which ceases to be used for such
purposes within 1 year after being
placed in use.
(c) It will comply with the terms and
conditions imposed by the SASP on the
use of any item of property having a
unit acquisition cost of $5,000 or more
and any passenger motor vehicle or
other donated item. (Not applicable to
SEAs.)
(d) It agrees that, upon execution of
the SASP distribution document, it
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§ 102–37.455
has conditional title only to the property during the applicable period of restriction. Full title to the property will
vest in the donee only after the donee
has met all of the requirements of this
part.
(e) It will comply with conditions imposed by GSA, if any, requiring special
handling or use limitations on donated
property.
(f) It will use the property for an authorized purpose during the period of
restriction.
(g) It will obtain permission from the
SASP before selling, trading, leasing,
loaning, bailing, cannibalizing, encumbering or otherwise disposing of property during the period of restriction, or
removing it permanently for use outside the State.
(h) It will report to the SASP on the
use, condition, and location of donated
property, and on other pertinent matters as the SASP may require from
time to time.
(i) If an insured loss of the property
occurs during the period of restriction,
GSA or the SASP (depending on which
agency has imposed the restriction)
will be entitled to reimbursement out
of the insurance proceeds of an amount
equal to the unamortized portion of the
fair market value of the damaged or
destroyed item.
SPECIAL HANDLING OR USE CONDITIONS
§ 102–37.455 On what categories of surplus property has GSA imposed special handling conditions or use limitations?
GSA has imposed special handling or
processing requirements on the property discussed in this section. GSA
may, on a case-by-case basis, prescribe
additional restrictions for handling or
using these items or prescribe special
processing requirements on items in
addition to those listed in this section.
(a) Aircraft and vessels. The requirements of this section apply to the donation of any fixed- or rotary-wing aircraft and donable vessels that are 50
feet or more in length, having a unit
acquisition cost of $5,000 or more, regardless of the purpose for which donated. Such aircraft or vessels may be
donated to public agencies and eligible
nonprofit activities provided the aircraft or vessel is not classified for rea-
sons of national security and any lethal characteristics are removed. The
following table provides locations of
other policies and procedures governing aircraft and vessels:
For. . .
See. . .
(1) Policies and procedures governing
the donation of aircraft parts.
Part 102–33,
subpart D,
of this
chapter.
(2) Documentation needed by GSA to
process requests for aircraft or vessels.
§ 102–
37.225.
(3) Special terms, conditions, and restrictions imposed on aircraft and
vessels.
§ 102–
37.460.
(4) Guidelines on preparing letters of
intent for aircraft or vessels.
§ 102–
37.230.
(b) Alcohol. (1) When tax-free or specially denatured alcohol is requested
for donation, the donee must have a
special permit issued by the Assistant
Regional Commissioner of the appropriate regional office, Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF), Department of the Justice, in
order to acquire the property. Include
the ATF use-permit number on the SF
123, Transfer Order Surplus Personal
Property.
(2) You may not store tax-free or specially denatured alcohol in SASP facilities. You must make arrangements
for this property to be shipped or
transported directly from the holding
agency to the designated donee.
(c) Hazardous materials, firearms, and
property with unsafe or dangerous characteristics. For hazardous materials,
firearms, and property with unsafe or
dangerous characteristics, see part 101–
42 of this title.
(d) Franked and penalty mail envelopes
and official letterhead. Franked and penalty mail envelopes and official letterhead may not be donated without the
SASP certifying that all Federal Government markings will be obliterated
before use.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
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31
§ 102–37.460
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–37.460 What special terms and
conditions apply to the donation of
aircraft and vessels?
The following special terms and conditions apply to the donation of aircraft and vessels:
(a) There must be a period of restriction which will expire after the aircraft
or vessel has been used for the purpose
stated in the letter of intent (see § 102–
37.230) for a period of 5 years, except
that the period of restriction for a
combat-configured aircraft is in perpetuity.
(b) The donee of an aircraft must
apply to the FAA for registration of an
aircraft intended for flight use within
30 calendar days of receipt of the aircraft. The donee of a vessel must, within 30 calendar days of receipt of the
vessel, apply for documentation of the
vessel under applicable Federal, State,
and local laws and must record each
document with the U.S. Coast Guard at
the port of documentation. The donee’s
application for registration or documentation must include a fully executed copy of the conditional transfer
document and a copy of its letter of intent. The donee must provide the SASP
and GSA with a copy of the FAA registration (and a copy of its FAA Standard Airworthiness Certificate if the aircraft is to be flown as a civil aircraft)
or Coast Guard documentation.
(c) The aircraft or vessel must be
used solely in accordance with the executed conditional transfer document
and the plan of utilization set forth in
the donee’s letter of intent, unless the
donee has amended the letter, and it
has been approved in writing by the
SASP and GSA and a copy of the
amendment recorded with FAA or the
U.S. Coast Guard, as applicable.
(d) In the event any of the terms and
conditions imposed by the conditional
transfer document are breached, title
may revert to the Government. GSA
may require the donee to return the
aircraft or vessel or pay for any unauthorized disposal, transaction, or use.
(e) If, during the period of restriction, the aircraft or vessel is no longer
needed by the donee, the donee must
promptly notify the SASP and request
disposal instructions. A SASP may not
issue disposal instructions without the
prior written concurrence of GSA.
(f) Military aircraft previously used
for ground instruction and/or static
display (Category B aircraft, as designated by DOD) or that are combatconfigured (Category C aircraft) may
not be donated for flight purposes.
(g) For all aircraft donated for nonflight use, the donee must, within 30
calendar days of receipt of the aircraft,
turn over to the SASP the remaining
aircraft historical records (except the
records of the major components/life
limited parts; e.g., engines, transmissions, rotor blades, etc., necessary
to substantiate their reuse). The SASP
in turn must transmit the records to
GSA for forwarding to the FAA.
RELEASE OF RESTRICTIONS
§ 102–37.465 May a SASP modify or release any of the terms and conditions of donation?
You may alter or grant releases from
State-imposed restrictions, provided
your State plan of operation sets forth
the standards by which such actions
will be taken. You may not grant releases from, or amendments or corrections to:
(a) The terms and conditions you are
required by the Property Act to impose
on the use of passenger motor vehicles
and any item of property having a unit
acquisition cost of $5,000 or more.
(b) Any special handling condition or
use limitation imposed by GSA, except
with the prior written approval of
GSA.
(c) The statutory requirement that
usable property be returned by the
donee to the SASP if the property has
not been placed in use for the purposes
for which it was donated within 1 year
of donation or ceases to be used by the
donee for those purposes within 1 year
of being placed in use, except that:
(1) You may grant authority to the
donee to cannibalize property items
subject to this requirement when you
determine that such action will result
in increased use of the property and
that the proposed action meets the
standards prescribed in your plan of operation.
(2) You may, with the written concurrence of GSA, grant donees:
(i) A time extension to place property
into use if the delay in putting the
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31
Federal Management Regulation
§ 102–37.485
property into use was beyond the control and without the fault or negligence of the donee.
(ii) Authority to trade in one donated
item for one like item having similar
use potential.
§ 102–37.470 At what point may restrictions be released on property that
has been authorized for cannibalization?
Property authorized for cannibalization must remain under the period of
restriction imposed by the transfer/distribution document until the proposed
cannibalization is completed. Components resulting from the cannibalization, which have a unit acquisition
cost of $5,000 or more, must remain
under the restrictions imposed by the
transfer/distribution document. Components with a unit acquisition cost of
less than $5,000 may be released upon
cannibalization from the additional restrictions imposed by the State. However, these components must continue
to be used or be otherwise disposed of
in accordance with this part.
§ 102–37.475 What are the requirements for releasing restrictions on
property being considered for exchange?
GSA must consent to the exchange of
donated property under Federal restrictions or special handling conditions. The donee must have used the
donated item for its acquired purpose
for a minimum of 6 months prior to
being considered for exchange, and it
must be demonstrated that the exchange will result in increased utilization value to the donee. As a condition
of approval of the exchange, the item
being exchanged must have remained
in compliance with the terms and conditions of the donation. Otherwise,
§ 102–37.485 applies. The item acquired
by the donee must be:
(a) Made subject to the period of restriction remaining on the item exchanged; and
(b) Of equal or greater value than the
item exchanged.
COMPLIANCE AND UTILIZATION
§ 102–37.480 What must a SASP do to
ensure that property is used for the
purpose(s) for which it was donated?
You must conduct utilization reviews, as provided in your plan of operation, to ensure that donees are using
surplus property during the period of
restriction for the purposes for which
it was donated. You must fully document your efforts and report all instances of noncompliance (misuse or
mishandling of property) to GSA.
§ 102–37.485 What actions must a SASP
take if a review or other information indicates noncompliance with
donation terms and conditions?
If a review or other information indicates noncompliance with donation
terms and conditions, you must:
(a) Promptly investigate any suspected failure to comply with the conditions of donated property;
(b) Notify GSA immediately where
there is evidence or allegation of fraud,
wrongdoing by a screener, or nonuse,
misuse, or unauthorized disposal or destruction of donated property;
(c) Temporarily defer any further donations of property to any donee to be
investigated for noncompliance allegations until such time as the investigation has been completed and:
(1) A determination made that the allegations are unfounded and the
deferment is removed.
(2) The allegations are substantiated
and the donee is proposed for suspension or debarment; and
(d) Take steps to correct the noncompliance or otherwise enforce the
conditions imposed on use of the property if a donee is found to be in noncompliance. Enforcement of compliance may involve:
(1) Ensuring the property is used by
the present donee for the purpose for
which it was donated.
(2) Recovering the property from the
donee for:
(i) Redistribution to another donee
within the State;
(ii) Transfer through GSA to another
SASP; or
(iii) Transfer through GSA to a Federal agency.
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§ 102–37.490
41 CFR Ch. 102 (7–1–16 Edition)
(3) Recovering fair market value or
the proceeds of disposal in cases of unauthorized disposal or destruction.
(4) Recovering fair rental value for
property in cases where the property
has been loaned or leased to an ineligible user or used for an unauthorized
purpose.
(5) Disposing of by public sale property no longer suitable, usable, or necessary for donation.
§ 102–37.490 When must a SASP coordinate with GSA on compliance actions?
You must coordinate with GSA before selling or demanding payment of
the fair market or fair rental value of
donated property that is:
(a) Subject to any special handling
condition or use limitation imposed by
GSA (see § 102–37.455); or
(b) Not properly used within 1 year of
donation or which ceases to be properly
used within 1 year of being placed in
use.
§ 102–37.495 How must a SASP handle
funds derived from compliance actions?
You must handle funds derived from
compliance actions as follows:
(a) Enforcement of Federal restrictions.
You must promptly remit to GSA any
funds derived from the enforcement of
compliance involving a violation of
any Federal restriction, for deposit in
the Treasury of the United States. You
must also submit any supporting documentation indicating the source of the
funds and essential background information.
(b) Enforcement of State restrictions.
You may retain any funds derived from
a compliance action involving violation of any State-imposed restriction
and use such funds as provided in your
State plan of operation.
RETURNS AND REIMBURSEMENT
§ 102–37.500 May a donee receive reimbursement for its donation expenses when unneeded property is
returned to the SASP?
When a donee returns unneeded property to a SASP, the donee may be reimbursed for all or part of the initial
cost of any repairs required to make
the property usable if:
(a) The property is transferred to a
Federal agency or sold for the benefit
of the U.S. Government;
(b) No breach of the terms and conditions of donation has occurred; and
(c) GSA authorizes the reimbursement.
§ 102–37.505 How does a donee apply
for and receive reimbursement for
unneeded property returned to a
SASP?
If the donee has incurred repair expenses for property it is returning to a
SASP and wishes to be reimbursed for
them, it will inform the SASP of this.
The SASP will recommend for GSA approval a reimbursement amount, taking into consideration the benefit the
donee has received from the use of the
property and making appropriate deductions for that use.
(a) If this property is subsequently
transferred to a Federal agency, the receiving agency will be required to reimburse the donee as a condition of the
transfer.
(b) If the property is sold, the donee
will be reimbursed from the sales proceeds.
SPECIAL PROVISIONS PERTAINING TO
SEAS
§ 102–37.510 Are there special requirements for donating property to
SEAs?
Yes, only DOD-generated property
may be donated to SEAs. When donating DOD property to an eligible SEA,
SASPs must observe any restrictions
the sponsoring Military Service may
have imposed on the types of property
the SEA may receive.
§ 102–37.515 Do SEAs have a priority
over other SASP donees for DOD
property?
Yes, SEAs have a priority over other
SASP donees for DOD property, but
only if DOD requests GSA to allocate
surplus DOD property through a SASP
for donation to a specific SEA. In such
cases, DOD would be expected to clearly identify the items in question and
briefly justify the request.
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Federal Management Regulation
§ 102–37.545
Subpart F—Donations to Public
Airports
§ 102–37.520 What is the authority for
public airport donations?
The authority for public airport donations is 49 U.S.C. 47151. 49 U.S.C.
47151 authorizes executive agencies to
give priority consideration to requests
from a public airport (as defined in 49
U.S.C. 47102) for the donation of surplus
property if the Department of Transportation (DOT) considers the property
appropriate for airport purposes and
GSA approves the donation.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.525 What should a holding
agency do if it wants a public airport to receive priority consideration for excess personal property
it has reported to GSA?
A holding agency interested in giving
priority consideration to a public airport should annotate its reporting document to make GSA aware of this interest. In an addendum to the document, include the name of the requesting airport, specific property requested, and a brief description of how
the airport intends to use the property.
§ 102–37.530 What are FAA’s responsibilities in the donation of surplus
property to public airports?
In the donation of surplus property
to public airports, the Federal Aviation
Administration (FAA), acting under
delegation from the DOT, is responsible
for:
(a) Determining the property requirements of any State, political subdivision of a State, or tax-supported organization for public airport use;
(b) Setting eligibility requirements
for public airports and making determinations of eligibility;
(c) Certifying that property listed on
a transfer request is desirable or necessary for public airport use;
(d) Advising GSA of FAA officials authorized to certify transfer requests
and notifying GSA of any changes in
signatory authority;
(e) Determining and enforcing compliance with the terms and conditions
under which surplus personal property
is transferred for public airport use;
and
(f) Authorizing public airports to
visit holding agencies for the purpose
of screening and selecting property for
transfer. This responsibility includes:
(1) Issuing a screening pass or letter
of authorization to only those persons
who are qualified to screen.
(2) Maintaining a current record (to
include names, addresses, and telephone numbers, and additional identifying information such as driver’s license or social security numbers) of
screeners operating under FAA authority and making such records available
to GSA upon request.
(3) Recovering any expired or invalid
screener authorizations.
§ 102–37.535 What information must
FAA provide to GSA on its administration of the public airport donation program?
So that GSA has information on
which to base its discretionary authority to approve the donation of surplus
personal property, FAA must:
(a) Provide copies of internal instructions that outline the scope of FAA’s
oversight program for enforcing compliance with the terms and conditions
of transfer; and
(b) Report any compliance actions involving donations to public airports.
Subpart G—Donations to the
American National Red Cross
§ 102–37.540 What is the authority for
donations to the American National
Red Cross?
Section 551 of title 40, United States
Code authorizes GSA to donate to the
Red Cross, for charitable use, such
property as was originally derived from
or through the Red Cross.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.545 What type of property
may the American National Red
Cross receive?
The Red Cross may receive surplus
gamma globulin, dried plasma, albumin, antihemophilic globulin, fibrin
foam, surgical dressings, or other products or materials it processed, produced, or donated to a Federal agency.
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§ 102–37.550
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–37.550 What steps must the
American National Red Cross take
to acquire surplus property?
Upon receipt of information from
GSA regarding the availability of surplus property for donation, the Red
Cross will:
(a) Have 21 calendar days to inspect
the property or request it without inspection; and
(b) Be responsible for picking up
property donated to it or arranging and
paying for its shipment.
§ 102–37.555 What happens to property
the American National Red Cross
does not request?
Property the Red Cross declines to
request will be offered to SASPs for
distribution to eligible donees. If such
property is transferred, GSA will require the SASP to ensure that all Red
Cross labels or other Red Cross identifications are obliterated or removed
from the property before it is used.
Subpart H—Donations to Public
Bodies in Lieu of Abandonment/Destruction
§ 102–37.560
may not donate property that requires
destruction for health, safety, or security reasons. When disposing of hazardous materials and other dangerous
property, a holding agency must comply with all applicable laws and regulations and any special disposal requirements in part 101–42 of this title.
§ 102–37.575 Is there a special form for
holding agencies to process donations?
There is no special form for holding
agencies to process donations. A holding agency may use any document that
meets its agency’s needs for maintaining an audit trail of the transaction.
§ 102–37.580 Who is responsible for
costs associated with the donation?
The recipient public body is responsible for paying the disposal costs incident to the donation, such as packing,
preparation for shipment, demilitarization (as defined in § 102–36.40 of this
chapter), loading, and transportation
to its site.
Subpart I—Transfer of Vehicle Title
to a Donee
What is a public body?
A public body is any department,
agency, special purpose district, or
other instrumentality of a State or
local government; any Indian tribe; or
any agency of the Federal Government.
§ 102–37.565 What is the authority for
donations to public bodies?
Section 527 of title 40, United States
Code authorizes the abandonment, destruction, or donation to public bodies
of property which has no commercial
value or for which the estimated cost
of continued care and handling would
exceed the estimated proceeds from its
sale.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006]
§ 102–37.570 What type of property
may a holding agency donate under
this subpart?
Only that property a holding agency
has made a written determination to
abandon or destroy (see process in part
102–36 of this chapter) may be donated
under this subpart. A holding agency
SOURCE: 79 FR 64514, Oct. 30, 2014, unless
otherwise noted.
§ 102–37.585 In transferring donated
surplus vehicles, what is the responsibility of the holding agency?
(a) The holding agency is responsible
for preparing Standard Form 97, The
United States Government Certificate to
Obtain Title to a Vehicle (SF 97) upon
notification by GSA that a donee has
been identified. The SF 97 may be prepared by GSA if mutually agreed upon
by the holding agency and GSA. The
holding agency is designated as the
‘‘transferor.’’
(b) If the holding agency authorizes
or requires any other entity, including
a contractor or grantee, to complete
this SF 97, the holding agency must
first ensure compliance with the Paperwork Reduction Act.
(c) The SF 97 is a serially numbered,
controlled form, stock number 7540–00–
634–4047, which can be obtained by executive agencies from GSA Global Supply
or
online
at
www.gsaglobalsupply.gsa.gov.
Proper
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Federal Management Regulation
Pt. 102–37, App. B
precautions shall be exercised by the
agency to prevent blank copies of the
SF 97 from being obtained by unauthorized persons.
§ 102–37.590 In transferring donated
surplus vehicles, what is the responsibility of the SASP?
The SASP is responsible for facilitating the transfer of the surplus vehicle to the donee in accordance with
this part. The SASP should not sign
the SF 97 as ‘‘transferee’’ unless the
SASP is the donee.
§ 102–37.595 When
transferring
donated surplus vehicles, what is the
responsibility of the donee?
The donee is responsible for processing the SF 97 in accordance with
state licensing and titling authorities.
The donee signs the SF 97 as ‘‘transferee’’ upon receipt of the surplus
motor vehicle. The donee is responsible
for notifying the SASP if a SF 97 is not
provided by the Government.
§ 102–37.600 When does title to a surplus donated vehicle change hands?
Title to the vehicle rests with the
holding agency until the SF 97 is
signed by the donee upon receipt of the
surplus motor vehicle. (If applicable
under the terms of the donation, the
title will be conditional until the end
of the period of restriction).
APPENDIX A TO PART 102–37—
MISCELLANEOUS DONATION STATUTES
The following is a listing of statutes which
authorize donations which do not require
GSA’s approval:
Statute: 10 U.S.C. 2572.
Donor Agency: Any military department
(Army, Navy, and Air Force) or the Coast
Guard.
Type of Property: Books, manuscripts,
works of art, historical artifacts, drawings,
plans, models, and condemned or obsolete
combat material.
Eligible Recipients: Municipal corporations;
soldiers’ monument associations; museums,
historical societies, or historical institutions
of a State or foreign nation; incorporated
museums that are operated and maintained
for educational purposes only and the charters of which denies them the right to operate for profit; posts of the Veterans of Foreign Wars of the United States or of the
American Legion or a unit of any other recognized war veterans’ association; local or
national units of any war veterans’ association of a foreign nation which is recognized
by the national government of that nation or
a principal subdivision of that nation; and
posts of the Sons of Veterans Reserve.
Statute: 10 U.S.C. 7306.
Donor Agency: Department of the Navy.
Type of Property: Any vessel stricken from
the Naval Vessel Register or any captured
vessel in the possession of the Navy.
Eligible Recipients: States, Commonwealths,
or possessions of the United States; the District of Columbia; and not-for-profit or nonprofit entities.
Statute: 10 U.S.C. 7541.
Donor Agency: Department of the Navy.
Type of Property: Obsolete material not
needed for naval purposes.
Eligible Recipients: Sea scouts of the Boy
Scouts of America; Naval Sea Cadet Corps;
and the Young Marines of the Marine Corps
League.
Statute: 10 U.S.C. 7545.
Donor Agency: Department of the Navy.
Type of Property: Captured, condemned, or
obsolete ordnance material, books, manuscripts, works of art, drawings, plans, and
models; other condemned or obsolete material, trophies, and flags; and other material
of historic interest not needed by the Navy.
Eligible Recipients: States, territories, commonwealths, or possessions of the United
States, or political subdivisions or municipal
corporations thereof; the District of Columbia; libraries; historical societies; educational institutions whose graduates or students fought in World War I or World War II;
soldiers’ monument associations; State museums; museums operated and maintained
for educational purposes only, whose charter
denies it the right to operate for profit; posts
of the Veterans of Foreign Wars of the
United States; American Legion posts; recognized war veterans’ associations; or posts
of the Sons of Veterans Reserve.
Statute: 14 U.S.C. 641(a).
Donor Agency: Coast Guard.
Type of Property: Obsolete or other material not needed for the Coast Guard.
Eligible Recipients: Coast Guard Auxiliary;
sea scout service of the Boy Scouts of America; and public bodies or private organizations not organized for profit.
APPENDIX B TO PART 102–37—ELEMENTS OF A STATE PLAN OF OPERATION
The following is the information and assurances that must be included in a SASP’s plan
of operation:
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Pt. 102–37, App. B
41 CFR Ch. 102 (7–1–16 Edition)
STATE PLAN REQUIREMENTS
Regarding . . .
The plan must . . .
(a) Designation of a SASP ..............
(1) Name the State agency that will be responsible for administering the plan.
(2) Describe the responsibilities vested in the agency which must include the authorities to
acquire, warehouse and distribute surplus property to eligible donees, carry out other requirements of the State plan, and provide details concerning the organization of the
agency, including supervision, staffing, structure, and physical facilities.
(3) Indicate the organizational status of the agency within the State governmental structure
and the title of the State official who directly supervises the State agent.
(b) Operational authority .................
Include copies of existing State statutes and/or executive orders relative to the operational
authority of the SASP. Where express statutory authority does not exist or is ambiguous, or where authority exists by virtue of executive order, the plan must include also
the opinion of the State’s Attorney General regarding the existence of such authority.
(c) Inventory control and accounting
system.
(1) Require the SASP to use a management control and accounting system that effectively
governs the utilization, inventory control, accountability, and disposal of property.
(2) Provide a detailed explanation of the inventory control and accounting system that the
SASP will use.
(3) Provide that property retained by the SASP to perform its functions be maintained on
separate records from those of donable property.
(d) Return of donated property .......
(1) Require the SASP to provide for the return of donated property from the donee, at the
donee’s expense, if the property is still usable as determined by the SASP; and
(i) The donee has not placed the property into use for the purpose for which it was donated within 1 year of donation; or
(ii) The donee ceases to use the property within 1 year after placing it in use.
(2) Specify that return of property can be accomplished by:
(i) Physical return to the SASP facility, if required by the SASP.
(ii) Retransfer directly to another donee, SASP, or
Federal agency, as required by the SASP.
(iii) Disposal (by sale or other means) as directed by the SASP.
(3) Set forth procedures to accomplish property returns to the SASP, retransfers to other
organizations, or disposition by sale, abandonment, or destruction.
(e) Financing and service charges
(1) Set forth the means and methods for financing the SASP. When the State authorizes
the SASP to assess and collect service charges from participating donees to cover direct and reasonable indirect costs of its activities, the method of establishing the
charges must be set forth in the plan.
(2) Affirm that service charges, if assessed, are fair and equitable and based on services
performed (or paid for) by the SASP, such as screening, packing, crating, removal, and
transportation. When the SASP provides minimal services in connection with the acquisition of property, except for document processing and other administrative actions, the
State plan must provide for minimal charges to be assessed in such cases and include
the bases of computation.
(3) Provide that property made available to nonprofit providers of assistance to homeless
individuals be distributed at a nominal cost for care and handling of the property.
(4) Set forth how funds accumulated from service charges, or from other sources such as
sales or compliance proceeds are to be used for the operation of the SASP and the
benefit of participating donees.
(5) Affirm, if service charge funds are to be deposited or invested, that such deposits or investments are permitted by State law and set forth the types of depositories and/or investments contemplated.
(6) Cite State authority to use service charges to acquire or improve SASP facilities and
set forth disposition to be made of any financial assets realized upon the sale or other
disposal of the facilities.
(7) Indicate if the SASP intends to maintain a working capital reserve. If one is to be maintained, the plan should provide the provisions and limitations for it.
(8) State if refunds of service charges are to be made to donees when there is an excess
in the SASP’s working capital reserve and provide details of how such refunds are to be
made, such as a reduction in service charges or a cash refund, prorated in an equitable
manner.
(f) Terms and conditions on donated property.
(1) Require the SASP to identify terms and conditions that will be imposed on the donee
for any item of donated property with a unit acquisition cost of $5,000 or more and any
passenger motor vehicle.
(2) Provide that the SASP may impose reasonable terms and conditions on the use of
other donated property. If the SASP elects to impose additional terms and conditions, it
should list them in the plan. If the SASP wishes to provide for amending, modifying, or
releasing any terms or conditions it has elected to impose, it must state in the plan the
standards it will use to grant such amendments, modifications or releases.
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Federal Management Regulation
Pt. 102–37, App. B
STATE PLAN REQUIREMENTS—Continued
Regarding . . .
The plan must . . .
(3) Provide that the SASP will impose on the donation of property, regardless of unit acquisition cost, such conditions involving special handling or use limitations as GSA may
determine necessary because of the characteristics of the property.
(g) Nonutilized
property.
or
undistributed
Provide that, subject to GSA approval, property in the possession of the SASP which
donees in the State cannot use will be disposed of by:
(1) Transfer to another SASP or Federal agency.
(2) Sale.
(3) Abandonment or destruction.
(4) Other arrangements.
(h) Fair and equitable distribution ...
(1) Provide that the SASP will make fair and equitable distribution of property to eligible
donees in the State based on their relative needs and resources and ability to use the
property.
(2) Set forth the policies and detailed procedures for effecting a prompt, fair, and equitable
distribution.
(3) Require that the SASP, insofar as practicable, select property requested by eligible
donees and, if requested by the donee, arrange for shipment of the property directly to
the donee.
(i) Eligibility ......................................
(1) Set forth procedures for the SASP to determine the eligibility of applicants for the donation of surplus personal property.
(2) Provide for donee eligibility records to include at a minimum:
(i) Legal name and address of the donee.
(ii) Status of the donee as a public agency or as an eligible nonprofit activity.
(iii) Details on the scope of the donee’s program.
(iv) Proof of tax exemption under section 501 of the Internal Revenue Code if the donee is
nonprofit.
(v) Proof that the donee is approved, accredited, licensed, or meets any other legal requirement for operation of its program(s).
(vi) Financial information.
(vii) Written authorization by the donee’s governing body or chief administrative officer
designating at least one person to act for the donee in acquiring property.
(viii) Assurance that the donee will comply with GSA’s regulations on nondiscrimination.
(ix) Types of property needed.
(j) Compliance and utilization ..........
(1) Provide that the SASP conduct utilization reviews for donee compliance with the terms,
conditions, reservations, and restrictions imposed by GSA and the SASP on property
having a unit acquisition cost of $5,000 or more and any passenger motor vehicle.
(2) Provide for the reviews to include a survey of donee compliance with any special handling conditions or use limitations imposed on items of property by GSA.
(3) Set forth the proposed frequency of such reviews and provide adequate assurances
that the SASP will take effective action to correct noncompliance or otherwise enforce
such terms, conditions, reservations, and restrictions.
(4) Require the SASP to prepare reports on utilization reviews and compliance actions and
provide assurance that the SASP will initiate appropriate investigations of alleged fraud
in the acquisition of donated property or misuse of such property.
(k) Consultation with advisory bod- (1) Provide for consultation with advisory bodies and public and private groups which can
ies and public and private groups.
assist the SASP in determining the relative needs and resources of donees, the proposed utilization of surplus property by eligible donees, and how distribution of surplus
property can be effected to fill existing needs of donees.
(2) Provide details of how the SASP will accomplish such consultation.
(l) Audit ............................................
(1) Provide for periodic internal audits of the operations and financial affairs of the SASP.
(2) Provide for compliance with the external audit requirements of Office of Management
and Budget Circular No. A–133, ‘‘Audits of States, Local Governments, and Non-Profit
Organizations’’ (available at www.whitehouse.gov/OMB), and make provisions for the
SASP to furnish GSA with:
(i) Two copies of any audit report made pursuant to the Circular, or with two copies of
those sections that pertain to the Federal donation program.
(ii) An outline of all corrective actions and scheduled completion dates for the actions.
(3) Provide for cooperation in GSA or Comptroller General conducted audits.
(m) Cooperative agreements ..........
If the SASP wishes to enter into, renew, or revise cooperative agreements with GSA or
other Federal agencies:
(1) Affirm the SASP’s intentions to enter into cooperative agreements.
(2) Cite the authority for entering into such agreements.
(n) Liquidation .................................
Provide for the SASP to submit a liquidation plan prior to termination of the SASP activities if the State decides to dissolve the SASP.
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Pt. 102–37, App. C
41 CFR Ch. 102 (7–1–16 Edition)
STATE PLAN REQUIREMENTS—Continued
Regarding . . .
The plan must . . .
(o) Forms .........................................
Include copies of distribution documents used by the SASP.
(p) Records .....................................
Affirm that all official records of the SASP will be retained for a minimum of 3 years, except that:
(1) Records involving property subject to restrictions for more than 2 years must be kept 1
year beyond the specified period of restriction.
(2) Records involving property with perpetual restriction must be retained in perpetuity.
(3) Records involving property in noncompliance status must be retained for at least 1
year after the noncompliance case is closed.
APPENDIX C TO PART 102–37—GLOSSARY
OF TERMS FOR DETERMINING ELIGIBILITY OF PUBLIC AGENCIES AND
NONPROFIT ORGANIZATIONS
The following is a glossary of terms for determining eligibility of public agencies and
nonprofit organizations:
Accreditation means the status of public
recognition that an accrediting agency
grants to an institution or program that
meets the agency’s standards and requirements.
Accredited means approval by a recognized
accrediting board or association on a regional, State, or national level, such as a
State board of education or health; the
American Hospital Association; a regional or
national accrediting association for universities, colleges, or secondary schools; or another recognized accrediting association.
Approved means recognition and approval
by the State department of education, State
department of health, or other appropriate
authority where no recognized accrediting
board, association, or other authority exists
for the purpose of making an accreditation.
For an educational institution or an educational program, approval must relate to
academic or instructional standards established by the appropriate authority. For a
public health institution or program, approval must relate to the medical requirements and standards for the professional and
technical services of the institution established by the appropriate authority.
Child care center means a public or nonprofit facility where educational, social,
health, and nutritional services are provided
to children through age 14 (or as prescribed
by State law) and that is approved or licensed by the State or other appropriate authority as a child day care center or child
care center.
Clinic means an approved public or nonprofit facility organized and operated for the
primary purpose of providing outpatient public health services and includes customary
related services such as laboratories and
treatment rooms.
College means an approved or accredited
public or nonprofit institution of higher
learning offering organized study courses
and credits leading to a baccalaureate or
higher degree.
Conservation means a program or programs
carried out or promoted by a public agency
for public purposes involving directly or indirectly the protection, maintenance, development, and restoration of the natural resources of a given political area. These resources include but are not limited to the
air, land, forests, water, rivers, streams,
lakes and ponds, minerals, and animals, fish
and other wildlife.
Drug abuse or alcohol treatment center means
a clinic or medical institution that provides
for the diagnosis, treatment, or rehabilitation of alcoholics or drug addicts. These centers must have on their staffs, or available
on a regular visiting basis, qualified professionals in the fields of medicine, psychology,
psychiatry, or rehabilitation.
Economic development means a program(s)
carried out or promoted by a public agency
for public purposes to improve the opportunities of a given political area for the establishment or expansion of industrial, commercial, or agricultural plants or facilities and
which otherwise assist in the creation of
long-term employment opportunities in the
area or primarily benefit the unemployed or
those with low incomes.
Education means a program(s) to develop
and promote the training, general knowledge, or academic, technical, and vocational
skills and cultural attainments of individuals in a community or given political area.
Public educational programs may include
public school systems and supporting facilities such as centralized administrative or
service facilities.
Educational institution means an approved,
accredited, or licensed public or nonprofit institution, facility, entity, or organization
conducting educational programs or research
for educational purposes, such as a child care
center, school, college, university, school for
the mentally or physically disabled, or an
educational radio or television station.
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Federal Management Regulation
Pt. 102–37, App. C
Educational radio or television station means
a public or nonprofit radio or television station licensed by the Federal Communications Commission and operated exclusively
for noncommercial educational purposes.
Health center means an approved public or
nonprofit facility that provides public health
services, including related facilities such as
diagnostic and laboratory facilities and clinics.
Historic light station means a historic light
station as defined under section 308(e)(2) of
the National Historic Preservation Act 16
U.S.C. 470w–7(e)2), including a historic light
station conveyed under subsection (b) of that
section, notwithstanding the number of
hours that the historic light station is open
to the public.
Homeless individual means:
(1) An individual who lacks a fixed, regular, and adequate nighttime residence, or
who has a primary nighttime residence that
is:
(i) A supervised publicly or privately operated shelter designed to provide temporary
living accommodations (including welfare
hotels, congregate shelters, and transitional
housing for the mentally ill);
(ii) An institution that provides a temporary residence for individuals intended to
be institutionalized; or
(iii) A public or private place not designed
for, or ordinarily used as, a regular sleeping
accommodation for human beings.
(2) For purposes of this part, the term
homeless individual does not include any individual imprisoned or otherwise detained pursuant to an Act of the Congress or a State
law.
Hospital means an approved or accredited
public or nonprofit institution providing
public health services primarily for inpatient medical or surgical care of the sick and
injured and includes related facilities such
as laboratories, outpatient departments,
training facilities, and staff offices.
Library means a public or nonprofit facility
providing library services free to all residents of a community, district, State, or region.
Licensed means recognition and approval
by the appropriate State or local authority
approving institutions or programs in specialized areas. Licensing generally relates to
established minimum public standards of
safety, sanitation, staffing, and equipment
as they relate to the construction, maintenance, and operation of a health or educational facility, rather than to the academic, instructional, or medical standards
for these institutions.
Medical institution means an approved, accredited, or licensed public or nonprofit institution, facility, or organization whose primary function is the furnishing of public
health and medical services to the public or
promoting public health through the conduct
of research, experiments, training, or demonstrations related to cause, prevention, and
methods of diagnosis and treatment of diseases and injuries. The term includes, but is
not limited to, hospitals, clinics, alcohol and
drug abuse treatment centers, public health
or treatment centers, research and health
centers, geriatric centers, laboratories, medical schools, dental schools, nursing schools,
and similar institutions. The term does not
include institutions primarily engaged in
domiciliary care, although a separate medical facility within such a domiciliary institution may qualify as a medical institution.
Museum means a public or nonprofit institution that is organized on a permanent
basis for essentially educational or aesthetic
purposes and which, using a professional
staff, owns or uses tangible objects, either
animate or inanimate; cares for these objects; and exhibits them to the public on a
regular basis (at least 1000 hours a year). As
used in this part, the term museum includes,
but is not limited to, the following institutions if they satisfy all other provisions of
this definition: Aquariums and zoological
parks; botanical gardens and arboretums; nature centers; museums relating to art, history (including historic buildings), natural
history, science, and technology; and planetariums. For the purposes of this definition,
an institution uses a professional staff if it
employs at least one fulltime staff member
or the equivalent, whether paid or unpaid,
primarily engaged in the acquisition, care,
or public exhibition of objects owned or used
by the institution. This definition of museum
does not include any institution that exhibits objects to the public if the display or use
of the objects is only incidental to the primary function of the institution.
Nationally recognized accrediting agency
means an accrediting agency that the Department of Education recognizes under 34
CFR part 600. (For a list of accrediting agencies, see the Department’s web site at http://
www.ed.gov/admins/finaid/accred)
Nonprofit means not organized for profit
and exempt from Federal income tax under
section 501 of the Internal Revenue Code (26
U.S.C. 501).
Parks and recreation means a program(s)
carried out or promoted by a public agency
for public purposes that involve directly or
indirectly the acquisition, development, improvement, maintenance, and protection of
park and recreational facilities for the residents of a given political area.
Program for older individuals means a program conducted by a State or local government agency or nonprofit activity that receives funds appropriated for services or programs for older individuals under the Older
Americans Act of 1965, as amended, under
title IV or title XX of the Social Security
Act (42 U.S.C. 601 et seq.), or under titles VIII
and X of the Economic Opportunity Act of
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Pt. 102–37, App. C
41 CFR Ch. 102 (7–1–16 Edition)
1964 (42 U.S.C. 2991 et seq.) and the Community Services Block Grant Act (42 U.S.C. 9901
et seq.).
Provider of assistance to homeless individuals
means a public agency or a nonprofit institution or organization that operates a program
which provides assistance such as food, shelter, or other services to homeless individuals.
Provider of assistance to impoverished families
and individuals means a public or nonprofit
organization whose primary function is to
provide money, goods, or services to families
or individuals whose annual incomes are
below the poverty line (as defined in section
673 of the Community Services Block Grant
Act) (42 U.S.C. 9902). Providers include food
banks, self-help housing groups, and organizations providing services such as the following: Health care; medical transportation;
scholarships and tuition assistance; tutoring
and literacy instruction; job training and
placement; employment counseling; child
care assistance; meals or other nutritional
support; clothing distribution; home construction or repairs; utility or rental assistance; and legal counsel.
Public agency means any State; political
subdivision thereof, including any unit of
local government or economic development
district; any department, agency, or instrumentality thereof, including instrumentalities created by compact or other agreement
between States or political subdivisions;
multijurisdictional substate districts established by or pursuant to State law; or any Indian tribe, band, group, pueblo, or community located on a State reservation.
Public health means a program(s) to promote, maintain, and conserve the public’s
health by providing health services to individuals and/or by conducting research, investigations, examinations, training, and demonstrations. Public health services may include but are not limited to the control of
communicable diseases, immunization, maternal and child health programs, sanitary
engineering, sewage treatment and disposal,
sanitation inspection and supervision, water
purification and distribution, air pollution
control, garbage and trash disposal, and the
control and elimination of disease-carrying
animals and insects.
Public health institution means an approved,
accredited, or licensed public or nonprofit institution, facility, or organization conducting a public health program(s) such as a
hospital, clinic, health center, or medical institution, including research for such programs, the services of which are available to
the public.
Public purpose means a program(s) carried
out by a public agency that is legally authorized in accordance with the laws of the
State or political subdivision thereof and for
which public funds may be expended. Public
purposes include but are not limited to pro-
grams such as conservation, economic development, education, parks and recreation,
public health, public safety, programs of assistance to the homeless or impoverished,
and programs for older individuals.
Public safety means a program(s) carried
out or promoted by a public agency for public purposes involving, directly or indirectly,
the protection, safety, law enforcement activities, and criminal justice system of a
given political area. Public safety programs
may include, but are not limited to those
carried out by:
(1) Public police departments.
(2) Sheriffs’ offices.
(3) The courts.
(4) Penal and correctional institutions (including juvenile facilities).
(5) State and local civil defense organizations.
(6) Fire departments and rescue squads (including volunteer fire departments and rescue squads supported in whole or in part
with public funds).
School (except schools for the mentally or
physically disabled) means a public or nonprofit approved or accredited organizational
entity devoted primarily to approved academic, vocational, or professional study and
instruction, that operates primarily for educational purposes on a full-time basis for a
minimum school year and employs a fulltime staff of qualified instructors.
School for the mentally or physically disabled
means a facility or institution operated primarily to provide specialized instruction to
students of limited mental or physical capacity. It must be public or nonprofit and
must operate on a full-time basis for the
equivalent of a minimum school year prescribed for public school instruction for the
mentally or physically disabled, have a staff
of qualified instructors, and demonstrate
that the facility meets the health and safety
standards of the State or local government.
University means a public or nonprofit approved or accredited institution for instruction and study in the higher branches of
learning and empowered to confer degrees in
special departments or colleges.
Veterans Organizations means organizations
eligible to receive Federal surplus property
for purposes of providing services to veterans
under 40 U.S.C. 549(c)(3)(C). Eligible veterans
organizations are those whose (1) membership comprises substantially veterans (as defined under 38 U.S.C. 101); and (2) representatives are recognized by the Secretary of Veterans Affairs under 38 U.S.C. 5902. The Department of Veterans Affairs maintains a
searchable Web site of recognized organizations. The address is http://www.va.gov/ogc/
apps/accreditation/index.asp.
[67 FR 2584, Jan. 18, 2002, as amended at 71
FR 23868, Apr. 25, 2006; 72 FR 12572, Mar. 16,
2007; 79 FR 64515, Oct. 30, 2014]
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31
Federal Management Regulation
Pt. 102–38
PART 102–38—SALE OF PERSONAL
PROPERTY
Subpart A—General Provisions
Sec.
102–38.5 What does this part cover?
102–38.10 What is the governing authority
for this part?
102–38.15 Who must comply with these sales
provisions?
102–38.20 Must an executive agency follow
the regulations of this part when selling
all personal property?
102–38.25 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–38.30 How does an executive agency request a deviation from the provisions of
this part?
DEFINITIONS
102–38.35 What
part?
definitions
apply
to
ADVERTISING
102–38.130 Must we publicly advertise sales
of Federal personal property?
102–38.135 What constitutes a public advertisement?
102–38.140 What must we include in the public notice on sale of personal property?
PRE-SALE ACTIVITIES
102–38.145 Must we allow for inspection of
the personal property to be sold?
102–38.150 How long is the inspection period?
this
RESPONSIBILITIES
102–38.40 Who may sell personal property?
102–38.45 What are an executive agency’s responsibilities in selling personal property?
102–38.50 What must we do when an executive agency suspects violations of 40
U.S.C. 559, fraud, bribery, or criminal
collusion in connection with the disposal
of personal property?
102–38.55 What must we do when selling personal property?
102–38.60 Who is responsible for the costs of
care and handling of the personal property before it is sold?
102–38.65 What if we are or the holding agency is notified of a Federal requirement
for surplus personal property before the
sale is complete?
102–38.70 May the holding agency abandon
or destroy personal property either prior
to or after trying to sell it?
Subpart B—Sales Process
METHODS OF SALE
102–38.75 How may we sell personal property?
102–38.80 Which method of sale should we
use?
COMPETITIVE SALES
102–38.85
102–38.90
102–38.95
102–38.110 Who approves our determinations
to conduct negotiated sales?
102–38.115 What are the specific reporting
requirements for negotiated sales?
102–38.120 When may we conduct negotiated
sales of personal property at fixed prices
(fixed price sale)?
102–38.125 May we sell personal property at
fixed prices to State agencies?
What is a sealed bid sale?
What is a spot bid sale?
What is an auction?
OFFER TO SELL
102–38.155 What is an offer to sell?
102–38.160 What must be included in the
offer to sell?
102–38.165 Are the terms and conditions in
the offer to sell binding?
Subpart C—Bids
BUYER ELIGIBILITY
102–38.170 May we sell Federal personal
property to anyone?
102–38.175 How do we find out if a person or
entity has been suspended or debarred
from doing business with the Government?
102–38.180 May we sell Federal personal
property to a Federal employee?
102–38.185 May we sell Federal personal
property to State or local governments?
ACCEPTANCE OF BIDS
102–38.190 What is considered a responsive
bid?
102–38.195 Must bidders use authorized bid
forms?
102–38.200 Who may accept bids?
102–38.205 Must we accept all bids?
102–38.210 What happens when bids have
been rejected?
102–38.215 When may we disclose the bid results to the public?
102–38.220 What must we do when the highest bids received have the same bid
amount?
102–38.225 What are the additional requirements in the bid process?
BID DEPOSITS
NEGOTIATED SALES
102–38.100 What is a negotiated sale?
102–38.105 Under what conditions may we
negotiate sales of personal property?
102–38.230 Is a bid deposit required to buy
personal property?
102–38.235 What types of payment may we
accept as bid deposits?
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31
§ 102–38.5
41 CFR Ch. 102 (7–1–16 Edition)
102–38.240 What happens to the deposit bond
if the bidder defaults or wants to withdraw his/her bid?
ANTITRUST REQUIREMENTS
102–38.325 What are the requirements pertaining to antitrust laws?
LATE BIDS
102–38.245 Do we consider late bids for
award?
102–38.250 How do we handle late bids that
are not considered?
MODIFICATION OR WITHDRAWAL OF BIDS
102–38.255 May we allow a bidder to modify
or withdraw a bid?
Subpart F—Reporting Requirements
102–38.330 Are there any reports that we
must submit to the General Services Administration?
102–38.335 Is there any additional personal
property sales information that we must
submit to the General Services Administration?
Subpart G—Provisions for State and Local
Governments
MISTAKES IN BIDS
102–38.260 Who makes the administrative
determinations regarding mistakes in
bids?
102–38.265 Must we keep records on administrative determinations?
102–38.270 May a bidder protest the determinations made on sales of personal
property?
Subpart D—Completion of Sale
AWARDS
102–38.275 To whom do we award the sales
contract?
102–38.280 What happens when there is no
award?
102–38.340 How may we sell personal property to State and local governments?
102–38.345 Do we have to withdraw personal
property advertised for public sale if a
State Agency for Surplus Property wants
to buy it?
102–38.350 Are there special provisions for
State and local governments regarding
negotiated sales?
102–38.355 Do the regulations of this part
apply to State Agencies for Surplus
Property (SASPs) when conducting
sales?
Subpart H—Implementation of the Federal
Asset Sales Program
TRANSFER OF TITLE
102–38.285 How do we transfer title from the
Government to the buyer for personal
property sold?
PAYMENTS
102–38.290 What types of payment may we
accept?
DISPOSITION OF PROCEEDS
102–38.295 May we retain sales proceeds?
102–38.300 What happens to sales proceeds
that neither we nor the holding agency
are authorized to retain, or that are unused?
102–38.360 What must an executive agency
do to implement the eFAS program?
102–38.365 Is a holding agency required to
report property in ‘‘scrap’’ condition to
its selected SC?
102–38.370 What does a holding agency do
with property which cannot be sold by its
SC?
AUTHORITY: 40 U.S.C. 545 and 40 U.S.C.
121(c).
SOURCE: 68 FR 51421, Aug. 26, 2003, unless
otherwise noted.
Subpart A—General Provisions
DISPUTES
102–38.305 How do we handle disputes involved in the sale of Federal personal
property?
102–38.310 Are we required to use the Disputes clause in the sale of personal property?
102–38.315 Are we required to use Alternative Disputes Resolution for sales contracts?
Subpart E—Other Governing Statutes
102–38.320 Are there other statutory requirements governing the sale of Federal personal property?
§ 102–38.5
What does this part cover?
This part prescribes the policies governing the sale of Federal personal
property, including—
(a) Surplus personal property that
has completed all required Federal and/
or donation screening; and
(b) Personal property to be sold
under the exchange/sale authority.
NOTE TO § 102–38.5: You must follow additional guidelines in 41 CFR parts 101–42 and
101–45 of the Federal Property Management
Regulations (FPMR) for the sale of personal
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Federal Management Regulation
§ 102–38.35
property that has special handling requirements or property containing hazardous materials. Additional requirements for the sale
of aircraft and aircraft parts are provided in
part 102–33 of this chapter.
§ 102–38.10 What is the governing authority for this part?
The authority for the regulations in
this part governing the sale of Federal
personal property is 40 U.S.C. 541
through 548, 571, 573 and 574.
§ 102–38.15 Who must comply
these sales provisions?
with
All executive agencies must comply
with the provisions of this part. The
legislative and judicial branches are
encouraged to follow these provisions.
§ 102–38.20 Must an executive agency
follow the regulations of this part
when selling all personal property?
Generally, yes, an executive agency
must follow the regulations of this part
when selling all personal property;
however—
(a) Materials acquired for the national stockpile or supplemental stockpile, or materials or equipment acquired under section 303 of the Defense
Production Act of 1950, as amended (50
U.S.C. App. 2093) are excepted from this
part;
(b) The Maritime Administration,
Department of Transportation, has jurisdiction over the disposal of vessels
of 1,500 gross tons or more and determined by the Secretary to be merchant
vessels or capable of conversion to
merchant use;
(c) Sales made by the Secretary of
Defense pursuant to 10 U.S.C. 2576 (Sale
of Surplus Military Equipment to
State and Local Law Enforcement and
Firefighting Agencies) are exempt from
these provisions;
(d) Foreign excess personal property
is exempt from these provisions; and
(e) Agency sales procedures which are
mandated or authorized under laws
other than Title 40 United States Code
are exempt from this part.
[73 FR 20802, Apr. 17, 2008]
§ 102–38.25 To whom do ‘‘we’’, ‘‘you’’,
and their variants refer?
Unless otherwise indicated, use of
pronouns ‘‘we’’, ‘‘you’’, and their
variants throughout this part refer to
the Sales Center responsible for the
sale of the property.
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20802, Apr. 17, 2008]
§ 102–38.30 How does an executive
agency request a deviation from the
provisions of this part?
Refer to §§ 102–2.60 through 102–2.110
of this chapter for information on how
to obtain a deviation from this part.
However, waivers which are distinct
from the standard deviation process
and specific to the requirements of the
Federal Asset Sales (eFAS) initiative
milestones (see subpart H of this part)
are addressed in § 102–38.360.
[73 FR 20802, Apr. 17, 2008]
DEFINITIONS
§ 102–38.35 What definitions apply to
this part?
The following definitions apply to
this part:
Bid means a response to an offer to
sell that, if accepted, would bind the
bidder to the terms and conditions of
the contract (including the bid price).
Bidder means any entity that is responding to or has responded to an
offer to sell.
Estimated fair market value means the
selling agency’s best estimate of what
the property would be sold for if offered
for public sale.
Federal Asset Sales (eFAS) refers to
the e-Government initiative to improve the way the Federal Government
manages and sells its real and personal
property assets. Under this initiative,
only an agency designated as a Sales
Center (SC) may sell Federal property,
unless a waiver has been granted by
the eFAS Planning Office in accordance
with § 102–38.360. The eFAS initiative is
governed and given direction by the
eFAS Executive Steering Committee
(ESC), with GSA as the managing partner agency.
Federal Asset Sales Planning Office
(eFAS Planning Office) refers to the office within GSA assigned responsibility
for managing the eFAS initiative.
Holding Agency refers to the agency
in possession of personal property eligible for sale under this part.
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§ 102–38.40
41 CFR Ch. 102 (7–1–16 Edition)
Identical bids means bids for the same
item of property having the same total
price.
Migration Plan refers to the document
a holding agency prepares to summarize its choice of SC(s) and its plan for
migrating agency sales to the SC(s).
The format for this document is determined by the eFAS ESC.
Personal property means any property, except real property. For purposes of this part, the term excludes
records of the Federal Government,
and naval vessels of the following categories:
(1) Battleships;
(2) Cruisers;
(3) Aircraft carriers;
(4) Destroyers; and
(5) Submarines.
Sales Center (SC) means an agency
that has been nominated, designated,
and approved by the eFAS ESC and the
Office of Management and Budget
(OMB) as an official sales solution for
Federal property. The criteria for becoming an SC, the selection process,
and the ongoing SC requirements for
posting property for sale to the eFAS
portal and reporting sales activity and
performance data are established by
the eFAS ESC and can be obtained
from the eFAS Planning Office at GSA.
The eFAS Planning Office may be contacted
via
e-mail
at
[email protected]. SCs may
utilize (and should consider) private
sector entities as well as Government
activities and are expected to provide
exemplary asset management solutions
in one or more of the following areas:
on-line sales; off-line sales; and salesrelated value added services. SCs will
enter into agreements with holding
agencies to sell property belonging to
these holding agencies. A holding agency may employ the services of multiple
SCs to maximize efficiencies.
State Agency for Surplus Property
(SASP) means the agency designated
under State law to receive Federal surplus personal property for distribution
to eligible donees within the State as
provided for in 40 U.S.C. 549.
State or local government means a
State, territory, possession, political
subdivision thereof, or tax-supported
agency therein.
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20802, Apr. 17, 2008]
RESPONSIBILITIES
§ 102–38.40 Who may sell personal
property?
An executive agency may sell personal property (including on behalf of
another agency when so requested)
only if it is a designated Sales Center
(SC), or if the agency has received a
waiver from the eFAS Planning Office.
An SC may engage contractor support
to sell personal property. Only a duly
authorized agency official may execute
the sale award documents and bind the
United States.
[73 FR 20802, Apr. 17, 2008]
§ 102–38.45 What are an executive
agency’s responsibilities in selling
personal property?
An executive agency’s responsibilities in selling personal property are
to—
(a) Ensure the sale complies with the
provisions of Title 40 of the U.S. Code,
the regulations of this part, and any
other applicable laws;
(b) Issue internal guidance to promote uniformity of sales procedures;
(c) Assure that officials designated to
conduct and finalize sales are adequately trained;
(d) Be accountable for the care and
handling of the personal property prior
to its removal by the buyer; and
(e) Adjust your property and financial records to reflect the final disposition.
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20803, Apr. 17, 2008]
§ 102–38.50 What must we do when an
executive agency suspects violations of 40 U.S.C. 559, fraud, bribery, or criminal collusion in connection with the disposal of personal
property?
If an executive agency suspects violations of 40 U.S.C. 559, fraud, bribery, or
criminal collusion in connection with
the disposal of personal property, the
agency must—
(a) Refer the violations to the Inspector General of your agency and/or the
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Federal Management Regulation
§ 102–38.75
Attorney General, Department of Justice, Washington, DC 20530, for further
investigation. You must cooperate
with and provide evidence concerning
the suspected violation or crime to the
investigating agency assuming jurisdiction of the matter; and
(b) Submit to the General Services
Administration (GSA), Property Management Division (FBP), 1800 F Street,
NW., Washington, DC 20406, a report of
any compliance investigations concerning such violations. The report
must contain information concerning
the noncompliance, including the corrective action taken or contemplated,
and, for cases referred to the Department of Justice, a copy of the transmittal letter. A copy of each report
must be submitted also to GSA, Personal Property Management Policy Division (MTP), 1800 F Street, NW.,
Washington, DC 20405.
§ 102–38.65 What if we are or the holding agency is notified of a Federal
requirement for surplus personal
property before the sale is complete?
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20803, Apr. 17, 2008]
(a) Yes, the holding agency may
abandon or destroy personal property
either prior to or after trying to sell it,
but only when an authorized agency official has made a written determination that—
(1) The personal property has no commercial value; or
(2) The estimated cost of continued
care and handling would exceed the estimated sales proceeds.
(b) In addition to the provisions in
paragraph (a) of this section, see the
regulations at §§ 102–36.305 through 102–
36.330 of this subchapter B that are applicable to the abandonment or destruction of personal property in general, and excess personal property in
particular.
§ 102–38.55 What must we do when
selling personal property?
When selling personal property, you
must ensure that—
(a) All sales are made after publicly
advertising for bids, except as provided
for negotiated sales in §§ 102–38.100
through 102–38.125; and
(b) Advertising for bids must permit
full and free competition consistent
with the value and nature of the property involved.
§ 102–38.60 Who is responsible for the
costs of care and handling of the
personal property before it is sold?
The holding agency is responsible for
the care and handling costs of the personal property until it is removed by
the buyer, the buyer’s designee, or an
SC. The holding agency may request
the SC to perform care and handling
services in accordance with their
agreement. When specified in the terms
and conditions of sale, the SC may
charge the buyer costs for storage
when the buyer is delinquent in removing the property. The amount so
charged may only be retained by the
holding agency performing the care
and handling in accordance with § 102–
38.295.
[73 FR 20803, Apr. 17, 2008]
Federal agencies have first claim to
excess or surplus personal property reported to the General Services Administration. When a bona fide need for the
property exists and is expressed by a
Federal agency, and when no like
item(s) are located elsewhere, you or
the holding agency must make the
property available for transfer to the
maximum extent practicable and prior
to transfer of title to the property.
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20803, Apr. 17, 2008]
§ 102–38.70 May the holding agency
abandon or destroy personal property either prior to or after trying
to sell it?
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20803, Apr. 17, 2008]
Subpart B—Sales Process
METHODS OF SALE
§ 102–38.75 How may we sell personal
property?
(a) You will sell personal property
upon such terms and conditions as the
head of your agency or designee deems
proper to promote the fairness, openness, and timeliness necessary for the
sale to be conducted in a manner most
advantageous to the Government.
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§ 102–38.80
41 CFR Ch. 102 (7–1–16 Edition)
When you are selling property on behalf of another agency, you must consult with the holding agency to determine any special or unique sales terms
and conditions. You must also document the required terms and conditions of each sale, including, but not
limited to, the following terms and
conditions, as applicable:
(1) Inspection.
(2) Condition and location of property.
(3) Eligibility of bidders.
(4) Consideration of bids.
(5) Bid deposits and payments.
(6) Submission of bids.
(7) Bid price determination.
(8) Title.
(9) Delivery, loading, and removal of
property.
(10) Default, returns, or refunds.
(11) Modifications, withdrawals, or
late bids.
(12) Requirements to comply with applicable laws and regulations. 41 CFR
part 101–42 contains useful guidance addressing many of these requirements.
You should also contact your agency’s
Office of General Counsel or environmental office to identify applicable
Federal, State, or local environmental
laws and regulations.
(13) Certificate of independent price
determinations.
(14) Covenant against contingent
fees.
(15) Limitation on Government’s liability.
(16) Award of contract.
(b) Standard government forms (e.g.,
Standard Form 114 series) may be used
to document terms and conditions of
the sale.
(c) When conducting and completing
a sale through electronic media, the required terms and conditions must be
included in your electronic sales documentation.
[68 FR 51421, Aug. 26, 2003, as amended at 73
FR 20803, Apr. 17, 2008]
§ 102–38.80 Which method of sale
should we use?
(a) You may use any method of sale
provided the sale is publicly advertised
and the personal property is sold with
full and open competition. Exceptions
to the requirement for competitive
bids for negotiated sales (including
fixed price sales) are contained in
§§ 102–38.100 through 102–38.125. You
must select the method of sale that
will bring maximum return at minimum cost, considering factors such
as—
(1) Type and quantity of property;
(2) Location of property;
(3) Potential market;
(4) Cost to prepare and conduct the
sale;
(5) Available facilities; and
(6) Sales experience of the selling activity.
(b) Methods of sale may include
sealed bid sales, spot bid sales, auctions, or negotiated sales and may be
conducted at a physical location or
through any electronic media that is
publicly accessible.
COMPETITIVE SALES
§ 102–38.85
What is a sealed bid sale?
A sealed bid sale is a sale in which
bid prices are kept confidential until
bid opening. Bids are submitted either
electronically or in writing according
to formats specified by the selling
agency, and all bids are held for public
disclosure at a designated time and
place.
§ 102–38.90
What is a spot bid sale?
A spot bid sale is a sale where immediately following the offering of the
item or lot of property, bids are examined, and awards are made or bids rejected on the spot. Bids are either submitted electronically or in writing according to formats specified by the
selling agency, and must not be disclosed prior to announcement of award.
§ 102–38.95
What is an auction?
An auction is a sale where the bid
amounts of different bidders are disclosed as they are submitted, providing
bidders the option to increase their
bids if they choose. Bids are submitted
electronically and/or by those physically present at the sale. Normally,
the bidder with the highest bid at the
close of each bidding process is awarded the property.
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Federal Management Regulation
§ 102–38.120
NEGOTIATED SALES
§ 102–38.100
What is a negotiated sale?
A negotiated sale is a sale where the
selling price is arrived at between the
seller and the buyer, subject to obtaining such competition as is feasible
under the circumstances.
§ 102–38.105 Under what conditions
may we negotiate sales of personal
property?
You may negotiate sales of personal
property when—
(a) The personal property has an estimated fair market value that does not
exceed $15,000;
(b) The disposal will be to a State,
territory, possession, political subdivision thereof, or tax-supported agency
therein, and the estimated fair market
value of the property and other satisfactory terms of disposal are obtained
by negotiation;
(c) Bid prices after advertising are
not reasonable and re-advertising
would serve no useful purpose;
(d) Public exigency does not permit
any delay such as that caused by the
time required to advertise a sale;
(e) The sale promotes public health,
safety, or national security;
(f) The sale is in the public interest
under a national emergency declared
by the President or the Congress. This
authority may be used only with specific lot(s) of property or for categories
determined by the Administrator of
General Services for a designated period but not in excess of three months;
(g) Selling the property competitively would have an adverse impact on
the national economy, provided that
the estimated fair market value of the
property and other satisfactory terms
of disposal can be obtained by negotiation, e.g., sale of large quantities of an
agricultural product that impact domestic markets; or
(h) Otherwise authorized by Title 40
of the U.S. Code or other law.
§ 102–38.110 Who approves our determinations to conduct negotiated
sales?
The head of your agency (or his/her
designee) must approve all negotiated
sales of personal property.
§ 102–38.115 What are the specific reporting requirements for negotiated
sales?
For negotiated sales of personal property, you must—
(a) In accordance with 40 U.S.C.
545(e), and in advance of the sale, submit to the oversight committees for
the General Services Administration
(GSA) in the Senate and House, explanatory statements for each sale by negotiation of any personal property with
an estimated fair market value in excess of $15,000. You must maintain copies of the explanatory statements in
your disposal files. No statement is
needed for negotiated sales at fixed
price or for any sale made without advertising when authorized by law other
than 40 U.S.C. 545; and
(b) Report annually to GSA, Personal
Property Management Policy Division
(MTP), 1800 F Street, NW., Washington,
DC, 20405, within 60 calendar days after
the close of each fiscal year, a listing
and description of all negotiated sales
of personal property with an estimated
fair market value in excess of $5,000.
You may submit the report electronically or manually (see § 102–38.330).
§ 102–38.120 When may we conduct negotiated sales of personal property
at fixed prices (fixed price sale)?
You may conduct negotiated sales of
personal property at fixed prices (fixed
price sale) under this section when:
(a) The items are authorized to be
sold at fixed price by the Administrator of General Services, as reflected
in GSA Bulletin FMR B–10 (located at
http://www.gsa.gov/fmrbulletin). You may
also contact the GSA Office of Travel,
Transportation, and Asset Management (MT) at the address listed in
§ 102–38.115 to determine which items
are on this list of authorized items;
(b) The head of your agency, or designee, determines in writing that such
sales serve the best interest of the Government. When you are selling property on behalf of a holding agency, you
must consult with the holding agency
in determining whether a fixed price
sale meets this criterion; and
(c) You must publicize such sales to
the extent consistent with the value
and nature of the property involved,
and the prices established must reflect
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§ 102–38.125
41 CFR Ch. 102 (7–1–16 Edition)
the estimated fair market value of the
property. Property is sold on a firstcome, first-served basis. You or the
holding agency may also establish additional terms and conditions that
must be met by the successful purchaser in accordance with § 102–38.75.
(d) Method of sale (i.e., spot bid,
sealed bid, auction);
(e) Selling agency; and
(f) Who to contact for additional information.
[73 FR 20803, Apr. 17, 2008]
§ 102–38.145 Must we allow for inspection of the personal property to be
sold?
Yes, you must allow for an electronic
or physical inspection of the personal
property to be sold. You must allow
prospective bidders sufficient time for
inspection. If inspection is restricted to
electronic inspections only, due to unusual circumstances prohibiting physical inspection, you must notify your
General Services Administration Regional Personal Property Office in
writing, with the circumstances surrounding this restriction at least 3
days prior to the start of the screening
period.
§ 102–38.125 May we sell personal
property at fixed prices to State
agencies?
Yes, before offering to the public, you
may offer the property at fixed prices
(through the State Agencies for Surplus Property) to any States, territories, possessions, political subdivisions thereof, or tax-supported agencies therein, which have expressed an
interest in obtaining the property. For
additional information, see subpart G
of this part.
ADVERTISING
§ 102–38.130 Must we publicly advertise sales of Federal personal property?
Yes, you must provide public notice
of your sale of personal property to
permit full and open competition.
§ 102–38.135 What constitutes a public
advertisement?
Announcement of the sale using any
media that reaches the public and is
appropriate to the type and value of
personal property to be sold is considered public advertising. You may also
distribute mailings or flyers of your
offer to sell to prospective purchasers
on mailing lists. Public notice should
be made far enough in advance of the
sale to ensure adequate notice, and to
target your advertising efforts toward
the market that will provide the best
return at the lowest cost.
§ 102–38.140 What must we include in
the public notice on sale of personal property?
In the public notice, you must provide information necessary for potential buyers to participate in the sale,
such as—
(a) Date, time and location of sale;
(b) General categories of property
being offered for sale;
(c) Inspection period;
PRE-SALE ACTIVITIES
§ 102–38.150 How long is the inspection
period?
The length of the inspection period
allowed depends upon whether the inspection is done electronically or physically. You should also consider such
factors as the circumstances of sale,
volume of property, type of property,
location of the property, and accessibility of the sales facility. Normally,
you should provide at least 7 calendar
days to ensure potential buyers have
the opportunity to perform needed inspections.
OFFER TO SELL
§ 102–38.155 What is an offer to sell?
An offer to sell is a notice listing the
terms and conditions for bidding on an
upcoming sale of personal property,
where prospective purchasers are advised of the requirements for a responsive bid and the contractual obligations once a bid is accepted.
§ 102–38.160 What must be included in
the offer to sell?
The offer to sell must include—
(a) Sale date and time;
(b) Method of sale;
(c) Description of property being offered for sale;
(d) Selling agency;
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Federal Management Regulation
§ 102–38.205
(e) Location of property;
(f) Time and place for receipt of bids;
(g) Acceptable forms of bid deposits
and payments; and
(h) Terms and conditions of sale, including any specific restrictions and
limitations.
§ 102–38.165 Are the terms and conditions in the offer to sell binding?
Yes, the terms and conditions in the
offer to sell are normally incorporated
into the sales contract, and therefore
binding upon both the buyer and the
seller once a bid is accepted.
Subpart C—Bids
BUYER ELIGIBILITY
§ 102–38.170 May we sell Federal personal property to anyone?
Generally, you may sell Federal personal property to anyone of legal age.
However, certain persons or entities
are debarred or suspended from purchasing Federal property. You must
not enter into a contract with such a
person or entity unless your agency
head or designee responsible for the
disposal action determines that there
is a compelling reason for such an action.
§ 102–38.175 How do we find out if a
person or entity has been suspended or debarred from doing
business with the Government?
Refer to the List of Parties Excluded
from Federal Procurement and Nonprocurement Programs to ensure you
do not solicit from or award contracts
to these persons or entities. The list is
available through subscription from
the U.S. Government Printing Office,
or electronically on the Internet at
http://epls.arnet.gov. For policies, procedures, and requirements for debarring/
suspending a person or entity from the
purchase of Federal personal property,
follow the procedures in the Federal
Acquisition Regulation (FAR) subpart
9.4 (48 CFR part 9, subpart 9.4).
[68 FR 51421, Aug. 26, 2003; 68 FR 53219, Sept.
9, 2003]
§ 102–38.180 May we sell Federal personal property to a Federal employee?
Yes, you may sell Federal personal
property to any Federal employee
whose agency does not prohibit their
employees from purchasing such property. However, unless allowed by Federal or agency regulations, employees
having nonpublic information regarding property offered for sale may not
participate in that sale (see 5 CFR
2635.703). For purposes of this section,
the term ‘‘Federal employee’’ also applies to an immediate member of the
employee’s household.
§ 102–38.185 May we sell Federal personal property to State or local governments?
Yes, you may sell Federal personal
property to State or local governments. Additional guidelines on sales
to State or local governments are contained in subpart G of this part.
ACCEPTANCE OF BIDS
§ 102–38.190 What is considered a responsive bid?
A responsive bid is a bid that complies with the terms and conditions of
the sales offering, and satisfies the requirements as to the method and timeliness of the submission. Only responsive bids may be considered for award.
§ 102–38.195 Must bidders use authorized bid forms?
No, bidders do not have to use authorized bid forms; however if a bidder
uses his/her own bid form to submit a
bid, the bid may be considered only if—
(a) The bidder accepts all the terms
and conditions of the offer to sell; and
(b) Award of the bid would result in a
binding contract.
§ 102–38.200 Who may accept bids?
Authorized agency representatives
may accept bids for your agency. These
individuals should meet your agency’s
requirements for approval of Government contracts.
§ 102–38.205 Must we accept all bids?
No, the Government reserves the
right to accept or reject any or all bids.
You may reject any or all bids when
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§ 102–38.210
41 CFR Ch. 102 (7–1–16 Edition)
such action is advantageous to the
Government, or when it is in the public
interest to do so.
§ 102–38.210 What happens when bids
have been rejected?
You may re-offer items for which all
bids have been rejected at the same
sale, if possible, or another sale.
§ 102–38.215 When may we disclose the
bid results to the public?
You may disclose bid results to the
public after the sales award of any
item or lot of property. On occasions
when there is open bidding, usually at
a spot bid sale or auction, all bids are
disclosed as they are submitted. No information other than names may be
disclosed regarding the bidder(s).
§ 102–38.220 What must we do when
the highest bids received have the
same bid amount?
When the highest bids received have
the same bid amount, you must consider other factors of the sale (e.g.,
timely removal of the property, terms
of payment, etc.) that would make one
offer more advantageous to the Government. However, if you are unable to
make a determination based on available information, and the Government
has an acceptable offer, you may reoffer the property for sale, or you may
utilize random tiebreakers to avoid the
expense of reselling the property.
§ 102–38.225 What are the additional
requirements in the bid process?
All sales except fixed price sales
must contain a certification of independent price determination. If there is
suspicion of false certification or an indication of collusion, you must refer
the matter to the Department of Justice or your agency’s Office of the Inspector General.
BID DEPOSITS
§ 102–38.230 Is a bid deposit required
to buy personal property?
No, a bid deposit is not required to
buy personal property. However, should
you require a bid deposit to protect the
Government’s interest, a deposit of 20
percent of the total amount of the bid
is generally considered reasonable.
§ 102–38.235 What types of payment
may we accept as bid deposits?
In addition to the acceptable types of
payments in § 102–38.290, you may also
accept a deposit bond. A deposit bond
may be used in lieu of cash or other acceptable form of deposit when permitted by the offer to sell, such as the
Standard Form (SF) 150, Deposit
Bond—Individual Invitation, Sale of
Government Personal Property, SF 151,
Deposit Bond—Annual, Sale of Government Personal Property, and SF 28, Affidavit of Individual Surety. For information on how to obtain these forms,
see § 102–2.135 of subchapter A.
§ 102–38.240 What happens to the deposit bond if the bidder defaults or
wants to withdraw his/her bid?
(a) When a bid deposit is secured by a
deposit bond and the bidder defaults,
you must issue a notice of default to
the bidder and the surety company.
(b) When a bid deposit is secured by a
deposit bond and the bidder wants to
withdraw his/her bid, you should return
the deposit bond to the bidder.
LATE BIDS
§ 102–38.245 Do we consider late bids
for award?
Consider late bids for award only
when the bids were delivered timely to
the address specified and your agency
caused the delay in delivering the bids
to the official designated to accept the
bids.
§ 102–38.250 How do we handle late
bids that are not considered?
Late bids that are not considered
must be returned to the bidder promptly. You must not disclose information
contained in returned bids.
MODIFICATION OR WITHDRAWAL OF BIDS
§ 102–38.255 May we allow a bidder to
modify or withdraw a bid?
(a) Yes, a bidder may modify or withdraw a bid prior to the start of the sale
or the time set for the opening of the
bids. After the start of the sale, or the
time set for opening the bids, the bidder will not be allowed to withdraw his/
her bid.
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§ 102–38.295
(b) You may consider late modifications to an otherwise successful bid at
any time, but only when it makes the
terms of the bid more favorable to the
Government.
MISTAKES IN BIDS
§ 102–38.260 Who makes the administrative determinations regarding
mistakes in bids?
The administrative procedures for
handling mistakes in bids are contained in FAR 14.407, Mistakes in Bids
(48 CFR 14.407). Your agency head, or
his/her designee, may delegate the authority to make administrative decisions regarding mistakes in bids to a
central authority, or a limited number
of authorities in your agency, who
must not re-delegate this authority.
§ 102–38.265 Must we keep records on
administrative determinations?
Yes, you must—
(a) Maintain records of all administrative determinations made, to include the pertinent facts and the action taken in each case. A copy of the
determination must be attached to its
corresponding contract; and
(b) Provide a signed copy of any related determination with the copy of
the contract you file with the Comptroller General when requested.
§ 102–38.270 May a bidder protest the
determinations made on sales of
personal property?
Yes, protests regarding the validity
or the determinations made on the sale
of personal property may be submitted
to the Comptroller General.
Subpart D—Completion of Sale
AWARDS
§ 102–38.275 To whom do we award the
sales contract?
You must award the sales contract to
the bidder with the highest responsive
bid, unless a determination is made to
reject the bid under § 102–38.205.
stroy it pursuant to § 102–36.305 of this
subchapter B.
TRANSFER OF TITLE
§ 102–38.285 How do we transfer title
from the Government to the buyer
for personal property sold?
(a) Generally, no specific form or format is designated for transferring title
from the Government to the buyer for
personal property sold. For internal
control and accountability, you must
execute a bill of sale or another document as evidence of transfer of title or
any other interest in Government personal property. You must also ensure
that the buyer submits any additional
certifications to comply with specific
conditions and restrictions of the sale.
(b) For sales of vehicles, you must
issue to the purchaser a Standard
Form (SF) 97, the United States Government Certificate to Obtain Title to
a Vehicle, or a SF 97A, the United
States Government Certificate to Obtain a Non-Repairable or Salvage Certificate, as appropriate, as evidence of
transfer of title. For information on
how to obtain these forms, see § 102–
2.135 of this chapter.
PAYMENTS
§ 102–38.290 What types of payment
may we accept?
You must adopt a payment policy
that protects the Government against
fraud. Acceptable payments include,
but are not limited to, the following:
(a) U.S. currency or any form of credit instrument made payable on demand
in U.S. currency, e.g., cashier’s check,
money order. Promissory notes and
postdated credit instruments are not
acceptable.
(b) Irrevocable commercial letters of
credit issued by a United States bank
payable to the Treasurer of the United
States or to the Government agency
conducting the sale.
(c) Credit or debit cards.
DISPOSITION OF PROCEEDS
§ 102–38.280 What happens when there
is no award?
When there is no award made, you
may sell the personal property at another sale, or you may abandon or de-
§ 102–38.295
ceeds?
May we retain sales pro-
(a) You may retain that portion of
the sales proceeds, in accordance with
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§ 102–38.300
41 CFR Ch. 102 (7–1–16 Edition)
your agreement with the holding agency, equal to your direct costs and reasonably related indirect costs (including your share of the Governmentwide
costs to support the eFAS Internet portal and Governmentwide reporting requirements) incurred in selling personal property.
(b) A holding agency may retain that
portion of the sales proceeds equal to
its costs of care and handling directly
related to the sale of personal property
by the SC (e.g., shipment to the SC,
storage pending sale, and inspection by
prospective buyers).
(c) After accounting for amounts retained under paragraphs (a) and (b) of
this section, as applicable, a holding
agency may retain the balance of proceeds from the sale of its agency’s personal property when—
(1) It has the statutory authority to
retain all proceeds from sales of personal property;
(2) The property sold was acquired
with non-appropriated funds as defined
in § 102–36.40 of this subchapter B;
(3) The property sold was surplus
Government property that was in the
custody of a contractor or subcontractor, and the contract or subcontract provisions authorize the proceeds of sale to be credited to the price
or cost of the contract or subcontract;
(4) The property was sold to obtain
replacement property under the exchange/sale authority pursuant to part
102–39 of this subchapter B; or
(5) The property sold was related to
waste prevention and recycling programs, under the authority of Section
607 of Public Law 107–67 (Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, Pub. L. 107–
67, 115 Stat. 514). Consult your General
Counsel or Chief Financial Officer for
guidance on use of this authority.
DISPUTES
§ 102–38.305 How do we handle disputes involved in the sale of Federal personal property?
First contact your Office of General
Counsel. Further guidance can be found
in the Contract Disputes Act of 1978, as
amended (41 U.S.C. 601–613), and the
Federal Acquisition Regulation (FAR)
at 48 CFR part 33.
§ 102–38.310 Are we required to use
the Disputes clause in the sale of
personal property?
Yes, you must ensure the Disputes
clause contained in Federal Acquisition Regulation (FAR) 52.233–1 (48 CFR
part 52) is included in all offers to sell
and contracts for the sale of personal
property.
§ 102–38.315 Are we required to use Alternative Disputes Resolution for
sales contracts?
No, you are not required to use Alternative Disputes Resolution (ADR) for
sales contracts. However, you are encouraged to use ADR procedures in accordance with the authority and the
requirements of the Alternative Disputes Resolution Act of 1998 (28 U.S.C.
651–658).
Subpart E—Other Governing
Statutes
§ 102–38.320 Are there other statutory
requirements governing the sale of
Federal personal property?
Yes, in addition to Title 40 of the
U.S. Code the sale of Federal personal
property is governed by other statutory requirements, such as the Debt
Collection Improvement Act of 1996
(Public Law 104–134, sec. 31001, 110 Stat.
1321–358) and antitrust requirements
that are discussed in § 102–38.325.
ANTITRUST REQUIREMENTS
[73 FR 20803, Apr. 17, 2008]
§ 102–38.300 What happens to sales
proceeds that neither we nor the
holding agency are authorized to
retain, or that are unused?
Any sales proceeds that are not retained pursuant to the authorities in
§ 102–38.295 must be deposited as miscellaneous receipts in the U.S. Treasury.
§ 102–38.325 What are the requirements pertaining to antitrust laws?
When the sale of personal property
has an estimated fair market value of
$3 million or more or if the sale involves a patent, process, technique, or
invention, you must notify the Attorney General of the Department of Justice (DOJ) and get DOJ’s opinion as to
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Federal Management Regulation
§ 102–38.350
whether the sale would give the buyer
an unfair advantage in the marketplace and violate any antitrust laws.
Include in the notification the description and location of the property,
method of sale and proposed selling
price, and information on the proposed
purchaser and intended use of the property. You must not complete the sale
until you have received confirmation
from the Attorney General that the
proposed transaction would not violate
any antitrust laws.
[68 FR 51421, Aug. 26, 2003; 68 FR 53219, Sept.
9, 2003]
Subpart F—Reporting
Requirements
§ 102–38.330 Are there any reports that
we must submit to the General
Services Administration?
Yes, there are two sales reports you
must submit to the General Services
Administration (GSA), Personal Property Management Policy Division
(MTP), 1800 F Street, NW., Washington,
DC 20405—
(a) Negotiated sales report. Within 60
calendar days after the close of each
fiscal year, you must provide GSA with
a listing and description of all negotiated sales with an estimated fair
market value in excess of $5,000 (see
§ 102–38.115). For each negotiated sale
that meets this criterion, provide the
following:
(1) Description of the property (including quantity and condition).
(2) Acquisition cost and date (if not
known, estimate and so indicate).
(3) Estimated fair market value (including date of estimate and name of
estimator).
(4) Name and address of purchaser.
(5) Date of sale.
(6) Gross and net sales proceeds.
(7) Justification for conducting a negotiated sale.
(b) Exchange/sale report. Within 90 calendar days after the close of each fiscal
year, you must provide a summary report to GSA of transactions conducted
under the exchange/sale authority
under part 102–39 of this subchapter B
(see § 102–39.75).
§ 102–38.335 Is there any additional
personal property sales information
that we must submit to the General
Services Administration?
Yes, you must report to the General
Services
Administration’s
(GSA’s)
Asset Disposition Management System
(ADMS), once that capability is established, any sales information that GSA
deems necessary.
Subpart G—Provisions for State
and Local Governments
§ 102–38.340 How may we sell personal
property to State and local governments?
You may sell Government personal
property to State and local governments through—
(a) Competitive sale to the public;
(b) Negotiated sale, through the appropriate State Agency for Surplus
Property (SASP); or
(c) Negotiated sale at fixed price
(fixed price sale), through the appropriate SASP. (This method of sale can
be used prior to a competitive sale to
the public, if desired.)
§ 102–38.345 Do we have to withdraw
personal property advertised for
public sale if a State Agency for
Surplus Property wants to buy it?
No, you are not required to withdraw
the item from public sale if the property has been advertised.
§ 102–38.350 Are there special provisions for State and local governments regarding negotiated sales?
Yes, you must waive the requirement
for bid deposits and payment prior to
removal of the property. However, payment must be made within 30 calendar
days after purchase. If payment is not
made within 30 days, you may charge
simple interest at the rate established
by the Secretary of the Treasury as
provided in section 12 of the Contract
Disputes Act of 1978 (41 U.S.C. 611),
from the date of written demand for
payment.
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§ 102–38.355
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–38.355 Do the regulations of this
part apply to State Agencies for
Surplus Property (SASPs) when
conducting sales?
Yes, State Agencies for Surplus Property (SASPs) must follow the regulations in this part when conducting
sales on behalf of the General Services
Administration of Government personal property in their custody.
Subpart H—Implementation of the
Federal Asset Sales Program
SOURCE: 73 FR 20803, Apr. 17, 2008, unless
otherwise noted.
§ 102–38.360 What must an executive
agency do to implement the eFAS
program?
(a) An executive agency must review
the effectiveness of all sales solutions,
and compare them to the effectiveness
(e.g., cost, level of service, and value
added services) of the eFAS SCs. Agencies should give full consideration to
sales solutions utilizing private sector
entities, including small businesses,
that are more effective than the solutions provided by any eFAS-approved
SC. If the agency decides that there are
more effective sales solutions than
those solutions offered by the eFAS
SCs, the agency must request a waiver
from the milestones using the procedures and forms provided by the eFAS
Planning Office. Waivers will be approved by the eFAS Planning Office
upon presentation of a business case
showing that complying with an eFAS
milestone is either impracticable or inefficient. Waiver approval will be coordinated with GSA’s Office of Travel,
Transportation, and Asset Management. Contact the eFAS Planning Office at [email protected] to
obtain these procedures and forms.
(b) An approved waiver for meeting
one of the eFAS milestones does not
automatically waive all milestone requirements. For example, if an agency
receives a waiver to the migration
milestone, the agency must still (1)
post asset information on the eFAS
Web site and (2) provide post-sales data
to the eFAS Planning Office in accordance with the content and format requirements developed by the eFAS
ESC, unless waivers to these mile-
stones are also requested and approved.
Waivers to the eFAS milestones will
not be permanent. Upon expiration of
the waiver to the migration milestone,
an agency must either migrate to an
approved SC, or serve as a fully functioning SC, as soon as practicable. See
the definition of a ‘‘Sales Center’’ at
§ 102–38.35 for an overview of how agency sales solutions become SCs.
(c) An agency which receives a waiver from the eFAS milestones must
comply with subparts A through G of
this part as if it were an SC.
(d) An executive agency must comply
with all eFAS milestones approved by
OMB including those regarding the
completion of an agency-wide sales migration plan, the reporting of pre- and
post-sales data, and the migration to
approved SCs unless a waiver has been
submitted by the agency and approved
by the eFAS Planning Office. The
eFAS milestones are available for
viewing
at
http://www.gsa.gov/
govsalesmilestones.
§ 102–38.365 Is a holding agency required to report property in ‘‘scrap’’
condition to its selected SC?
No. Property which has no value except for its basic material content
(scrap material) may be disposed of by
the holding agency by sale or as otherwise provided in § 102–38.70. However,
the holding agency should consult the
SC(s) selected by the holding agency as
to the feasibility of selling the scrap
material. Agencies selling scrap property under authority of this subpart
are still required to report sales
metrics in accordance with eFAS ESCapproved format and content.
§ 102–38.370 What does a holding agency do with property which cannot
be sold by its SC?
All reasonable efforts must be afforded the SC to sell the property. If
the property remains unsold after the
time frame agreed to between the SC
and the holding agency, the holding
agency may dispose of the property by
sale or as otherwise provided in § 102–
38.70. The lack of public interest in
buying the property is evidence that
the sales proceeds would be minimal.
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Federal Management Regulation
§ 102–39.20
Agencies selling property under
thority of this subpart are still
quired to report sales metrics in
cordance with eFAS ESC-approved
mat and content.
aureacfor-
PART 102–39—REPLACEMENT OF
PERSONAL PROPERTY PURSUANT
TO THE EXCHANGE/SALE AUTHORITY
Subpart A—General
Subpart A—General
§ 102–39.5 What is the exchange/sale
authority?
The exchange/sale authority is a
statutory provision, (40 U.S.C. 503),
which states in part: ‘‘In acquiring personal property, an executive agency
may exchange or sell similar items and
may apply the exchange allowance or
proceeds of sale in whole or in part
payment for the property acquired.’’
[73 FR 50880, Aug. 29, 2008]
Sec.
102–39.5 What is the exchange/sale authority?
102–39.10 What does this part cover?
102–39.15 How are the terms ‘‘I’’ and ‘‘you’’
used in this part?
102–39.20 What definitions apply to this
part?
102–39.25 Which exchange/sale provisions are
subject to deviation?
102–39.30 How do I request a deviation from
this part?
Subpart B—Exchange/Sale Considerations
102–39.35 When should I consider using the
exchange/sale authority?
102–39.40 Why should I consider using the
exchange/sale authority?
102–39.45 When should I not use the exchange/sale authority?
102–39.50 How do I determine whether to do
an exchange or a sale?
102–39.55 When should I offer property I am
exchanging or selling under the exchange/sale authority to other Federal
agencies or State Agencies for Surplus
Property (SASP)?
102–39.60 What restrictions and prohibitions
apply to the exchange/sale of personal
property?
102–39.65 What conditions apply to the exchange/sale of personal property?
Subpart C—Exchange/Sale Methods and
Reports
102–39.70 What are the exchange methods?
102–39.75 What are the sales methods?
102–39.80 What are the accounting requirements for the proceeds of sale?
102–39.85 What information am I required to
report?
AUTHORITY: 40 U.S.C. 121(c); 40 U.S.C. 503.
SOURCE: 66 FR 48614, Sept. 21, 2001, unless
otherwise noted.
§ 102–39.10
What does this part cover?
This part covers the exchange/sale
authority, and applies to all personal
property owned by executive agencies
worldwide. For the exchange/sale of
aircraft parts and hazardous materials,
you must meet the requirements in
this part and in parts 101–33 and 101–42
of this title.
[66 FR 48614, Sept. 21, 2001, as amended at 69
FR 11539, Mar. 11, 2004]
§ 102–39.15 How are the terms ‘‘I’’ and
‘‘you’’ used in this part?
Use of pronouns ‘‘I’’ and ‘‘you’’
throughout this part refer to executive
agencies.
[66 FR 48614, Sept. 21, 2001. Redesignated at
73 FR 50880, Aug. 29, 2008]
§ 102–39.20 What definitions apply to
this part?
The following definitions apply to
this part:
Acquire means to procure or otherwise obtain personal property, including by lease (sometimes known as
rent).
Combat material means arms, ammunition, and implements of war listed in
the U.S. munitions list (22 CFR part
121).
Excess property means any personal
property under the control of any Federal agency that is no longer required
for that agency’s needs or responsibilities, as determined by the agency head
or designee.
Exchange means to replace personal
property by trade or trade-in with the
supplier of the replacement property.
Exchange/sale means to exchange or
sell non-excess, non-surplus personal
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§ 102–39.25
41 CFR Ch. 102 (7–1–16 Edition)
property and apply the exchange allowance or proceeds of sale in whole or in
part payment for the acquisition of
similar property.
Executive agency means any executive
department or independent establishment in the executive branch of the
Government, including any wholly
owned Government corporation.
Federal agency means any executive
agency or any establishment in the legislative or judicial branch of the Government (except the Senate, the House
of Representatives, and the Architect
of the Capitol and any activities under
his/her direction).
Historic item means property having
added value for display purposes because its historical significance is
greater than its fair market value for
continued use. Items that are commonly available and remain in use for
their intended purpose, such as military aircraft still in use by active or
reserve units, are not historic items.
Replacement means the process of acquiring personal property to be used in
place of personal property that is still
needed but:
(1) No longer adequately performs the
tasks for which it is used; or
(2) Does not meet the agency’s need
as well as the personal property to be
acquired.
Service Life Extension Program (SLEP)
means the modification of a personal
property item undertaken to extend
the life of the item beyond that which
was previously planned. SLEPs extend
capital asset life by retrofit, major
modification, remanufacturing, betterment, or enhancement.
Similar means the acquired item(s)
and replaced item(s):
(1) Are identical; or
(2) Fall within a single Federal Supply Classification (FSC) Group of property (includes any and all forms of
property within a single FSC Group);
or
(3) Are parts or containers for similar
end items; or
(4) Are designed or constructed for
the same purpose (includes any and all
forms of property regardless of the FSC
Group to which they are assigned).
Surplus property means excess personal property not required for the
needs of any Federal agency, as deter-
mined by GSA under part 102–37 of this
chapter.
[66 FR 48614, Sept. 21, 2001, as amended at 73
FR 50880, Aug. 29, 2008]
§ 102–39.25 Which exchange/sale provisions are subject to deviation?
All of the provisions in this part are
subject to deviation (upon presentation
of adequate justification) except those
mandated by statute. See the link on
‘‘Exchange/Sale’’
at
www.gsa.gov/
personalpropertypolicy for additional information on requesting deviations
from this part.
[73 FR 50880, Aug. 29, 2008]
§ 102–39.30 How do I request a deviation from this part?
See part 102–2 of this chapter (41 CFR
part 102–2) to request a deviation from
the requirements of this part.
[73 FR 50880, Aug. 29, 2008]
Subpart B—Exchange/Sale
Considerations
§ 102–39.35 When should I consider
using the exchange/sale authority?
You should consider using the exchange/sale authority when replacing
personal property.
[73 FR 50880, Aug. 29, 2008]
§ 102–39.40 Why should I consider
using the exchange/sale authority?
You should consider using the exchange/sale authority to reduce the
cost of replacement personal property.
When you have personal property that
is wearing out or obsolete and must be
replaced, you should consider either exchanging or selling that property and
using the exchange allowance or sales
proceeds to offset the cost of the replacement personal property. Conversely, if you choose not to replace
the property using the exchange/sale
authority, you may declare it as excess
and dispose of it through the normal
disposal process as addressed in part
102–36 of this chapter. Keep in mind,
however, that any net proceeds from
the eventual sale of that property as
surplus generally must be forwarded to
the miscellaneous receipts account at
the United States Treasury and thus
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Federal Management Regulation
§ 102–39.60
would not be available to you. You
may use the exchange/sale authority in
the acquisition of personal property
even if the acquisition is under a services contract, as long as the property
acquired under the services contract is
similar to the property exchanged or
sold (e.g., for a SLEP, exchange allowances or sales proceeds would be available for replacement of similar items,
but not for services).
[73 FR 50880, Aug. 29, 2008]
§ 102–39.45 When should I not use the
exchange/sale authority?
You should not use the exchange/sale
authority if the exchange allowance or
estimated sales proceeds for the property will be unreasonably low. You
must either abandon or destroy such
property, or declare the property excess, in accordance with part 102–36 of
this chapter. Further, you must not
use the exchange/sale authority if the
transaction(s) would violate any other
applicable statute or regulation.
[66 FR 48614, Sept. 21, 2001, as amended at 69
FR 11539, Mar. 11, 2004. Redesignated at 73 FR
50880, Aug. 29, 2008]
§ 102–39.50 How do I determine whether to do an exchange or a sale?
You must determine whether an exchange or sale will provide the greater
return for the Government. When estimating the return under each method,
consider all related administrative and
overhead costs.
[66 FR 48614, Sept. 21, 2001. Redesignated at
73 FR 50880, Aug. 29, 2008]
§ 102–39.55 When should I offer property I am exchanging or selling
under the exchange/sale authority
to other Federal agencies or State
Agencies for Surplus Property
(SASP)?
If you have property to replace which
is eligible for exchange/sale, you should
first, to the maximum extent practicable, solicit:
(a) Federal agencies known to use or
distribute such property. If a Federal
agency is interested in acquiring and
paying for the property, you should arrange for a reimbursable transfer. Reimbursable transfers may also be conducted with the Senate, the House of
Representatives, the Architect of the
Capitol and any activities under the
Architect’s direction, the District of
Columbia, and mixed-ownership Government corporations. When conducting a reimbursable transfer, you
must:
(1) Do so under terms mutually
agreeable to you and the recipient.
(2) Not require reimbursement of an
amount greater than the estimated fair
market value of the transferred property.
(3) Apply the transfer proceeds in
whole or part payment for property acquired to replace the transferred property; and
(b) State Agencies for Surplus Property (SASPs) known to have an interest in acquiring such property. If a
SASP is interested in acquiring the
property, you should consider selling it
to the SASP by negotiated sale at fixed
price under the conditions specified at
§ 102–38.125 of this title. The sales proceeds must be applied in whole or part
payment for property acquired to replace the transferred property.
[66 FR 48614, Sept. 21, 2001, as amended at 69
FR 11539, Mar. 11, 2004. Redesignated at 73 FR
50880, Aug. 29, 2008]
§ 102–39.60 What restrictions and prohibitions apply to the exchange/sale
of personal property?
Unless a deviation is requested of and
approved by GSA as addressed in part
102–2 of this chapter and the provisions
of §§ 102–39.25 and 102–39.30, you must
not use the exchange/sale authority
for:
(a) The following FSC groups of personal property:
10 Weapons.
11 Nuclear ordnance.
42 Firefighting, rescue, and safety
equipment.
44 Nuclear reactors (FSC Class 4470
only).
51 Hand tools.
54 Prefabricated structure and scaffolding (FSC Class 5410 Prefabricated
and Portable Buildings, FSC Class 5411
Rigid Wall Shelters, and FSC Class 5419
Collective Modular Support System
only).
68 Chemicals and chemical products,
except medicinal chemicals.
84 Clothing, individual equipment,
and insignia.
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§ 102–39.65
41 CFR Ch. 102 (7–1–16 Edition)
NOTE TO § 102–39.60(a): Under no circumstances will deviations be granted for
FSC Class 1005, Guns through 30mm. Deviations are not required for Department of
Defense (DoD) property in FSC Groups 10 (for
classes other than FSC Class 1005), 12 and 14
for which the applicable DoD demilitarization requirements, and any other applicable
regulations and statutes are met.
(b) Materials in the National Defense
Stockpile (50 U.S.C. 98–98h) or the Defense Production Act inventory (50
U.S.C. App. 2093).
(c) Nuclear Regulatory Commissioncontrolled materials unless you meet
the requirements of § 101–42.1102–4 of
this title.
(d) Controlled substances, unless you
meet the requirements of § 101–42.1102–3
of this title.
(e) Property with a condition code of
scrap, as defined at FMR 102–36.40, except:
(1) Property that had utility and
value at the point in time when a determination was made to use the exchange/sale authority;
(2) Property that was otherwise eligible for exchange/sale, but was coded as
scrap due to damage (e.g., accident or
natural disaster); or
(3) Scrap gold for fine gold.
(f) Property that was originally acquired as excess or forfeited property
or from another source other than new
procurement, unless such property has
been in official use by the acquiring
agency for at least 1 year. You may exchange or sell forfeited property in official use for less than 1 year if the
head of your agency determines that a
continuing valid requirement exists,
but the specific item in use no longer
meets that requirement, and that exchange or sale meets all other requirements of this part.
(g) Property that is dangerous to
public health or safety without first
rendering such property innocuous or
providing for adequate safeguards as
part of the exchange/sale.
(h) Combat material without demilitarizing it or obtaining a demilitarization waiver or other necessary clearances from the Department of Defense
Demilitarization Office.
(i) Flight Safety Critical Aircraft
Parts (FSCAP) and Critical Safety
Items (CSI) unless you meet the provisions of § 102–33.370 of this title.
(j) Acquisition of unauthorized replacement property.
(k) Acquisition of replacement property that violates any:
(1) Restriction on procurement of a
commodity or commodities;
(2) Replacement policy or standard
prescribed by the President, the Congress, or the Administrator of General
Services; or
(3) Contractual obligation.
(l) Vessels subject to 40 U.S.C. 548.
(m) Aircraft and aircraft parts, unless there is full compliance with all
exchange/sale provisions in part 102–33
of this chapter (41 CFR part 102–33).
[66 FR 48614, Sept. 21, 2001; 66 FR 51095, Oct.
5, 2001, as amended at 69 FR 11539, Mar. 11,
2004; 71 FR 20900, Apr. 24, 2006. Redesignated
at 73 FR 50880, Aug. 29, 2008; 75 FR 24820, May
6, 2010; 76 FR 67372, Nov. 1, 2011]
§ 102–39.65 What conditions apply to
the exchange/sale of personal property?
You may use the exchange/sale authority only if you meet all of the following conditions:
(a) The property exchanged or sold is
similar to the property acquired;
(b) The property exchanged or sold is
not excess or surplus and you have a
continuing need for similar property;
(c) The property exchanged or sold
was not acquired for the principal purpose of exchange or sale;
(d) When replacing personal property,
the exchange allowance or sales proceeds from the disposition of that property may only be used to offset the
cost of the replacement property, not
services; and
(e) Except for transactions involving
books and periodicals in your libraries,
you document the basic facts associated with each exchange/sale transaction. At a minimum, the documentation must include:
(1) The FSC Group of the items exchanged or sold, and the items acquired;
(2) The number of items exchanged or
sold, and the number of items acquired;
(3) The acquisition cost and exchange
allowance or net sales proceeds of the
items exchanged or sold, and the acquisition cost of the items acquired;
(4) The date of the transaction(s);
(5) The parties involved; and
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Federal Management Regulation
§ 102–39.85
(6) A statement that the transactions
comply with the requirements of this
part 102–39.
NOTE TO § 102–39.65: In acquiring items for
historical preservation or display at Federal
museums, you may exchange historic items
in the museum property account without regard to the FSC group, provided the exchange transaction is documented and certified by the head of your agency to be in the
best interests of the Government and all
other provisions of this part are met. The
documentation must contain a determination that the item exchanged and the item
acquired are historic items.
[73 FR 50881, Aug. 29, 2008]
Subpart C—Exchange/Sale
Methods and Reports
§ 102–39.70 What are the exchange
methods?
Exchange of property may be accomplished by either of the following methods:
(a) The supplier (e.g., a Government
agency, commercial or private organization, or an individual) delivers the
replacement property to one of your
organizational units and removes the
property being replaced from that same
organizational unit.
(b) The supplier delivers the replacement property to one of your organizational units and removes the property
being replaced from a different organizational unit.
[66 FR 48614, Sept. 21, 2001. Redesignated at
73 FR 50880, Aug. 29, 2008]
§ 102–39.75 What are the sales methods?
(a) You must use the methods, terms,
and conditions of sale, and the forms
prescribed in part 102–38 of this title, in
the sale of property being replaced, except for the provisions of §§ 102–38.100
through 102–38.115 of this title regarding negotiated sales. Section 3709, Revised Statutes (41 U.S.C. 5), specifies
the following conditions under which
property being replaced can be sold by
negotiation, subject to obtaining such
competition as is feasible:
(1) The reasonable value involved in
the contract does not exceed $500; or
(2) Otherwise authorized by law.
(b) You may sell property being replaced by negotiation at fixed prices in
accordance with the provisions of § 102–
38.120 and 102–38.125 of this title.
[66 FR 48614, Sept. 21, 2001, as amended at 69
FR 11539, Mar. 11, 2004. Redesignated at 73 FR
50880, Aug. 29, 2008]
§ 102–39.80 What are the accounting
requirements for exchange allowances or proceeds of sale?
You must account for exchange allowances or proceeds of sale in accordance with the general finance and accounting rules applicable to you. Except as otherwise authorized by law, all
exchange allowances or proceeds of
sale under this part will be available
during the fiscal year in which the
property was exchanged or sold and for
one fiscal year thereafter for the purchase of replacement property. Any
proceeds of sale not applied to replacement purchases during this time must
be deposited in the United States
Treasury as miscellaneous receipts.
[73 FR 50881, Aug. 29, 2008, as amended at 75
FR 24820, May 6, 2010]
§ 102–39.85 What information am I required to report?
(a) You must submit, within 90 calendar days after the close of each fiscal
year, a summary report in a format of
your choice on the exchange/sale transactions made under this part during
the fiscal year (except for transactions
involving books and periodicals in your
libraries). The report must include:
(1) A list by Federal Supply Classification Group of property sold under
this part showing the:
(i) Number of items sold;
(ii) Acquisition cost; and
(iii) Net proceeds.
(2) A list by Federal Supply Classification Group of property exchanged
under this part showing the:
(i) Number of items exchanged;
(ii) Acquisition cost; and
(iii) Exchange allowance.
(b) Submit your report electronically
or by mail to the General Services Administration, Office of Travel, Transportation and Asset Management (MT),
1800 F Street, NW., Washington, DC
20405.
(c) Report control number: 1528–GSAAN.
(d) If you make no transactions
under this part during a fiscal year,
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Pt. 102–40
41 CFR Ch. 102 (7–1–16 Edition)
you must submit a report stating that
no transactions occurred.
[66 FR 48614, Sept. 21, 2001, as amended at 71
FR 20900, Apr. 24, 2006. Redesignated at 73 FR
50880, Aug. 29, 2008]
PART 102–40—UTILIZATION AND
DISPOSITION
OF
PERSONAL
PROPERTY WITH SPECIAL HANDLING REQUIREMENTS
Subpart A—General Provisions
Sec.
102–40.5 What does this part cover?
102–40.10 What is the governing authority
for this part?
102–40.15 Who must comply with the provisions in this part?
102–40.20 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–40.25 How do we request a deviation
from these requirements and who can approve it?
DEFINITIONS
102–40.30 What
part?
definitions
apply
to
this
Subpart B—Responsibilities
102–40.35 What types of personal property
require special handling?
102–40.40 What are our responsibilities concerning personal property requiring special handling?
102–40.45 What must we do when we have
identified personal property with special
handling requirements?
102–40.50 What must we do when we no
longer need personal property with special handling requirements?
102–40.55 Do we report all excess personal
property with special handling requirements to GSA?
102–40.60 May we reassign hazardous materials?
102–40.65 Who is responsible for the custody
of hazardous materials and property requiring special handling?
102–40.70 Who is responsible for the care and
handling of hazardous materials and
property requiring special handling?
Subpart C—Transfer and Donation of Personal Property With Special Handling
Requirements
102–40.75 What must we do when reporting
excess personal property with special
handling requirements?
102–40.80 Is personal property requiring special handling available for transfer or donation?
102–40.85 Is donee certification required for
the donation of personal property requiring special handling?
102–40.90 Must we establish additional requirements for the inspection of personal
property with special handling requirements?
102–40.95 Who pays for the costs incident to
the transfer of personal property with
special handling requirements?
Subpart D—Sale of Personal Property With
Special Handling Requirements
102–40.100 May we sell personal property
with special handling requirements?
102–40.105 May we use any sales method to
sell personal property that requires special handling?
102–40.110 What must we include in the sales
terms and conditions when selling personal property with special handling requirements?
102–40.115 Are certifications required from
the purchaser when selling personal
property with special handling requirements?
102–40.120 What precautions must we take
during the sales process for personal
property requiring special handling?
102–40.125 May we dispose of personal property requiring special handling by abandonment or destruction?
Subpart E—Categories of Personal Property
With Special Handling Requirements
102–40.130 What categories of personal property require special handling?
102–40.135 How do we manage acid-contaminated and explosive-contaminated property?
102–40.140 How do we handle all-terrain vehicles (ATVs)?
102–40.145 How do we handle ammunition
and ammunition components?
102–40.150 How do we handle animals and
plants?
102–40.155 How do we handle asbestos?
102–40.160 How do we handle controlled substances?
102–40.165 How
do
we
handle
drugs,
biologicals, and reagents other than controlled substances?
102–40.170 How do we handle electronic products?
102–40.175 How do we handle firearms?
102–40.180 How do we handle hazardous materials?
102–40.185 How do we handle lead-containing
paints and items bearing lead-containing
paint?
102–40.190 How do we handle medical devices?
102–40.195 How do we handle Munitions List
Items (MLIs)?
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Federal Management Regulation
§ 102–40.30
102–40.200 How do we handle Commerce Control List Items (CCLIs)?
102–40.205 How do we handle national stockpile material?
102–40.210 How do we handle Nuclear Regulatory Commission-controlled materials?
102–40.215 How do we handle ozone depleting
substances (ODSs)?
102–40.220 How do we handle polychlorinated
biphenyls (PCBs)?
102–40.225 How do we handle precious metals?
102–40.230 How do we handle universal
waste(s) (UWs)?
102–40.235 How do we handle motor vehicles
not suitable for highway use?
§ 102–40.15 Who must comply with the
provisions in this part?
All executive agencies must comply
with the provisions of this part unless
authorized by specific, separate statutory authority to do otherwise. Also,
pursuant to 40 U.S.C. 549(b)(1), state
agencies for surplus property (SASPs)
must comply with the provisions of
this part related to the donation of surplus property with special handling requirements. Legislative and judicial
agencies are encouraged to follow these
provisions.
APPENDIX A TO PART 102–40—FEDERAL SUPPLY CLASSES (FSC) COMPOSED PREDOMINANTLY OF HAZARDOUS ITEMS
APPENDIX B TO PART 102–40—FEDERAL SUPPLY CLASSES AND GROUPS WHICH CONTAIN
A SIGNIFICANT NUMBER OF HAZARDOUS
ITEMS
§ 102–40.20 To whom do ‘‘we,’’ ‘‘you,’’
and their variants refer?
The pronouns ‘‘we,’’ ‘‘you,’’ and their
variants throughout this part refer to
the executive agency, or other entity
using these regulations, unless otherwise indicated.
AUTHORITY: 40 U.S.C. 121(c).
SOURCE: 80 FR 7353, Feb. 10, 2015, unless
otherwise noted.
Subpart A—General Provisions
§ 102–40.5
What does this part cover?
This part provides guidance regarding the utilization, transfer, donation,
sale, and other disposal of Government
personal property with special handling requirements (i.e., hazardous materials, dangerous property, etc.) located in the United States, the District
of Columbia, the U.S. Virgin Islands,
American Samoa, Guam, Puerto Rico,
the Northern Mariana Islands, Federated States of Micronesia, the Marshall Islands, and Palau. For guidance
regarding the disposal of personal property located outside of these areas, see
§§ 102–36.380 through 102–36.400 of this
subchapter; however, the disposal of
personal property located outside of
these areas should conform to the provisions in this part, whenever feasible,
in the interest of promoting safety, security, and environmental stewardship.
§ 102–40.10 What is the governing authority for this part?
40 U.S.C. 121(c) authorizes the Administrator of General Services to prescribe regulations necessary to perform
functions under this part.
§ 102–40.25 How do we request a deviation from these requirements and
who can approve it?
See §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of this part.
DEFINITIONS
§ 102–40.30 What definitions apply to
this part?
The following definitions apply to
this part:
Acid-contaminated
property
means
property that may cause burns or toxicosis when improperly handled due to
acid residues adhering to or trapped
within the material.
Ammunition as defined in 18 U.S.C.
921(a)(17), means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any
firearm.
Ammunition components means the individual parts of ammunition, including cartridge cases, primers, bullets/
projectiles, and propellant powder.
Biologicals means hazardous materials associated with the products and
operations of applied biology and/or
biochemistry, especially serums, vaccines, etc., produced from microorganisms.
Certified electronic product means any
electronic product which bears the
manufacturer’s certification label or
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§ 102–40.30
41 CFR Ch. 102 (7–1–16 Edition)
tag (21 CFR 1010.2) indicating that the
product meets applicable radiation
safety performance standards prescribed by the Food and Drug Administration (FDA) under 21 CFR part 1020.
Commerce Control List Item (CCLI)
means property identified on the Commerce Control List (15 CFR part 774,
supp. 1) subject to export controls
under the Export Administration Act
of 1979, as amended (50 App. U.S.C. 2401–
2420) and implemented by the Export
Administration Regulations (15 CFR
part 730). Items may be placed on the
list for reasons including, but not limited to, technology transfer, scarcity of
materials, crime control, and national
security.
Controlled substances means—
(1) Any narcotic, depressant, stimulant, or hallucinogenic drug, or any
other drug or substance included in
Schedules I, II, III, IV, or V of section
202 of the Controlled Substances Act
(21 U.S.C. 812), except exempt chemical
preparations and mixtures and excluded substances contained in 21 CFR
part 1308; or
(2) Any other drug or substance that
the Attorney General determines to be
subject to control under Subchapter I
of the Controlled Substances Act (21
U.S.C. 801, et seq.); or
(3) Any other drug or substance that
by international treaty, convention, or
protocol is to be controlled by the
United States.
Demilitarization means, as defined by
the Department of Defense (DOD) in
the Defense Material Disposition Manual, DOD 4160.21–M, to be the act of destroying the military offensive or defensive advantages inherent in certain
types of equipment or material. The
term includes mutilation, dumping at
sea, scrapping, melting, burning, or alteration designed to prevent the further use of this equipment and material for its originally intended military
or lethal purpose and applies equally to
material in unserviceable or serviceable condition that has been screened
through an Inventory Control Point
and declared excess or foreign excess.
Electronic Product means any item
powered by electricity that has logic
circuitry enabling the item to perform
its intended function.
Explosive-contaminated property means
property that may ignite or explode
when exposed to shock, flame, sparks,
or other high temperature sources due
to residual explosive material in joints,
angles, cracks, or around bolts.
Extremely hazardous material means
property hazardous to the extent that
it generally requires special handling
such as licensing and training of handlers, protective clothing, and special
containers and storage. Because of its
extreme
flammability,
toxicity,
corrosivity or other perilous qualities,
it could constitute an immediate danger or threat to life and property and
which usually have specialized uses
under controlled conditions. It is also
material which have been determined
by the holding agency to endanger public health and safety or the environment if released to the general public.
Firearm, as defined in 18 U.S.C.
921(a)(3), means:
(1) Any weapon (including a starter
gun) which will or is designed to or
may readily be converted to expel a
projectile by the action of an explosive;
(2) The frame or receiver of any such
weapon;
(3) Any firearm muffler or firearm silencer; or
(4) Any destructive device. Such term
does not include an antique firearm.
Hazardous material means property
that is deemed a hazardous material,
chemical substance or mixture, or hazardous waste under the Federal hazardous materials transportation law (49
U.S.C. 5101, et seq.), the Resource Conservation and Recovery Act (RCRA) (42
U.S.C. 6901, et seq.), or the Toxic Substances Control Act (TSCA) (15 U.S.C.
2601, et seq.). Generally, hazardous materials have one or more of the following
characteristics:
(1) Are carcinogens (according to Occupational Safety and Health Administration (OSHA) regulations at 29 CFR
part 1910), toxic or highly toxic agents,
reproductive
toxins,
irritants,
corrosives, hepatotoxins, nephrotoxins,
neurotoxins, agents that act on the
hematopoietic system, and agents that
damage the lungs, skin, eyes, or mucous membranes;
(2) Are combustible liquids, compressed gases, explosives, flammable
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Federal Management Regulation
§ 102–40.30
liquids, flammable solids, organic peroxides, oxidizers, pyrophorics, unstable
(reactive) or water-reactive;
(3) Are radioactive to the extent it
requires special handling;
(4) Identify hazards on associated
SDS, MSDS, or HMIS documentation;
(5) Possess special characteristics
which, in the opinion of the holding
agency, could be hazardous to health,
safety, or the environment if improperly handled, stored, transported, disposed of, or otherwise improperly used.
(6) Materials that, in the course of
normal handling, use or storage, may
produce or release dusts, gases, fumes,
vapors, mists or smoke having any of
the above characteristics.
Hazardous waste means those materials or substances, the handling and
disposal of which are governed by 40
CFR part 261. Hazardous materials generally become hazardous wastes when
they are no longer suitable for their intended or valid alternate purpose, or
for resource recovery. Some solid (nonhazardous) wastes are predetermined
hazardous wastes upon generation (40
CFR part 261, subpart D); some are determined hazardous wastes when they
exhibit ignitability, corrosivity, reactivity, or extraction procedure toxicity. Hazardous materials having an
expired shelf life should be reclassified
as hazardous waste if required by Federal and/or state environmental laws or
regulations. Before reclassification,
the shelf life may be extended if supported by results of tests and recertification performed by authorized personnel in accordance with applicable
regulations.
Lead-containing paint means paint or
other similar surface coating material
containing lead or lead compounds in
excess of 0.06 percent of the weight of
the total nonvolatile content of the
paint or the weight of the dried paint
film.
Medical device means any health-care
product that does not achieve its principal intended purposes by chemical
action in or on the body or by being
metabolized. Medical devices are categorized in the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301, et seq.). Potential hazards of these devices include
chemical and heavy metal hazards, and
biohazards.
Munitions List Item (MLI) means property and related technical data designated as defense articles and defense
services pursuant to sections 2778 and
2794(7) of the Arms Export Control Act
(22 U.S.C. 2778 and 2794(7)).
Noncertified Electronic Product means
any electronic product for which there
is an applicable radiation safety performance standard prescribed or hereafter prescribed by the FDA under 21
CFR part 1020, and which the manufacturer has not certified as meeting such
standard. The non-certification may be
due to either:
(1) Manufacture of the product before
the effective date of the standard; or
(2) The product was exempted from
the applicable standard and is so labeled.
Nuclear Regulatory Commission-Controlled Material means material subject
to the controls of the Nuclear Regulatory Commission (NRC) pursuant to
the Energy Reorganization Act of 1974.
The materials are defined as follows:
(1) Byproduct material. Any radioactive material (except special nuclear
material) yielded in or made radioactive by exposure to the radiation, incident to the process of producing or
utilizing special nuclear material. (See
10 CFR part 30).
(2) Source material. Uranium or thorium, or any combination thereof, in
any physical or chemical form or ores
which contain by weight, one-twentieth of one percent (0.05%) or more of
uranium, thorium, or any combination
thereof. Source material does not include special nuclear material. (See 10
CFR part 40).
(3) Special nuclear material. Plutonium, uranium 233, uranium enriched
in the isotope 233 or in the isotope 235,
any other materials which the NRC,
pursuant to the Atomic Energy Act of
1954 (42 U.S.C. 2011, et seq.), including
any amendments thereto, determined
to be special nuclear material, or any
material artificially enriched by any of
the foregoing, but does not include
source material. (See 10 CFR part 70).
Perishable means an item subject to
rapid deterioration, spoilage or death,
when removed from special storage
conditions or care, such as fresh food,
animals, and plants.
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§ 102–40.35
41 CFR Ch. 102 (7–1–16 Edition)
Precious metal means gold, silver, and
platinum group metals (platinum, palladium, iridium, rhodium, osmium, and
ruthenium).
Radiation Safety Performance Standards. Certain electronic items or components emitting hazardous electronic
radiation are subject to performance
standards (21 CFR part 1020). You must
follow FDA policies related to acquisition, use, and disposal of items identified by the FDA or other authority for
which performance standards are established. See 21 CFR 1000.15 for examples of electronic items that are required to follow radiation safety performance standards. Several types of
electronic radiation (and examples of
items that may emit that type of radiation)
include:
ionizing
electromagnetic radiation (television receivers); ultraviolet electromagnetic radiation (tanning and therapeutic lamps);
infrared
and
microwave
electromagnetic radiation (certain alarm systems); and, laser emissions (certain
cauterizing, burning, and welding devices).
Reagent means any hazardous material used to detect or measure another
substance or to convert one substance
into another by means of the reactions
it causes.
Safety Data Sheet (SDS) means the
documentation, as required by 29 CFR
1910.1200, identifying the potential hazards associated with the specific category of product or property. Sources
of SDS information may be the manufacturer, distributor, or the procuring
agency. Related documentation, such
as a Material Safety Data Sheet
(MSDS) may also provide information
on hazards associated with assets handled under this part.
Universal Waste(s) mean(s) any of the
following hazardous waste that is/are
managed under the universal waste requirements of 40 CFR part 273:
(1) Batteries as described in 40 CFR
273.2;
(2) Pesticides as described in 40 CFR
273.3;
(3) Mercury-containing equipment
(including thermostats) as described in
40 CFR 273.4 and as defined at 40 CFR
273.9; and
(4) Light bulbs containing mercury
(such as fluorescent bulbs) as described
in 40 CFR 273.5.
Subpart B—Responsibilities
§ 102–40.35 What types of personal
property require special handling?
Personal property requiring special
handling includes property containing
hazardous materials or property which
exhibits dangerous characteristics such
that improper use, storage, transportation or disposal may lead to potential safety, health, environmental, economic, or national security risks. In
many situations, the use, storage,
transportation or disposal of these
items is governed by Federal, state,
and local laws. Personal property requiring special handling may also include animals and plants which may
perish if not handled appropriately, as
well as perishable products that may
lose their utility if not handled appropriately.
§ 102–40.40 What are our responsibilities concerning personal property
requiring special handling?
You are responsible for—
(a) Identifying and accounting for
property with special handling requirements;
(b) Complying with applicable Federal, state, and local laws and regulations concerning the handling, storage,
labeling, use, and final disposition of
such property;
(c) Ensuring adequate storage and
safeguarding of such property, e.g., secured or limited access storage areas,
warning signs, and protective clothing
and equipment; and
(d) Transporting materials requiring
special handling in accordance with
Department of Transportation (DOT),
EPA, state and local regulations.
§ 102–40.45 What must we do when we
have identified personal property
with special handling requirements?
You must properly mark, tag, or
label personal property with special
handling requirements in accordance
with applicable Federal law, including
the Occupational Safety and Health
Administration requirements (29 CFR
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§ 102–40.60
1910.1200), regarding the actual or potential hazard associated with the
property, and ensure that such information is maintained and perpetuated
in the official agency property records.
Labeling requirements for substances
that are excluded from the requirements of 29 CFR 1910.1200 are found in
the references listed in 29 CFR
1910.1200(b)(5) and (6).
§ 102–40.50 What must we do when we
no longer need personal property
with special handling requirements?
Except for the items listed in § 102–
40.55, you must report excess personal
property with special handling requirements that you no longer need to GSA
for Federal and donation screening (see
§ 102–36.215 of this subchapter for how
to report excess personal property to
GSA). The report to GSA must clearly
identify property requiring special
handling, and all related hazards, precautions, and handling requirements
related to this property. You must dispose of property not required to be reported to GSA in accordance with applicable Federal, state, and local laws
and regulations, and your agency procedures. See § 102–40.125 for policy regarding disposal of property requiring
special handling by abandonment or
destruction. Disposal must be accomplished so as to preserve as much as
possible, any civilian utility or commercial value of the property.
§ 102–40.55 Do we report all excess
personal property with special handling requirements to GSA?
No. Because of their characteristics,
certain items are not subject to the
usual disposal procedures. You are not
required to report to GSA excess personal property with special handling
requirements in any of the following
categories listed below.
(a) Extremely hazardous personal property. You must dispose of extremely
hazardous personal property not reported to GSA in accordance with applicable demilitarization requirements,
EPA regulations, state and local laws
or regulations, and other Federal laws,
regulations or guidelines. However, if
time and circumstances permit, this
material may be reported to GSA to
optimize use of this already-acquired
material. When an item that is determined to be extremely hazardous property becomes excess, the holding agency should notify the appropriate GSA
regional personal property office,
which will determine if the property
should be reported using Report of Excess Personal Property, Standard Form
(SF) 120 or another method. At a minimum, you must identify the item, and
describe the actual or potential hazard(s) associated with the handling,
storage, or use of the item(s). This GSA
regional office will determine the utilization, donation, sales or other disposal requirements, and provide appropriate guidance to the holding agency.
(b) Hazardous wastes. You must dispose of hazardous wastes not reported
to GSA in accordance with applicable
demilitarization requirements, EPA
regulations, state and local laws or
regulations, and other Federal laws,
regulations or guidelines.
(c) Perishables. You may dispose of
perishables with no further utility by
abandonment or destruction when it is
not detrimental to public health or
safety (see the abandonment/destruction provisions in § 102–40.125 and in
part 102–36 of this subchapter). Although there is no requirement to report perishables to GSA if their spoilage is imminent (see § 102–36.220), perishables that have a longer time before
spoilage and are clearly able to be used
may be reported to GSA in accordance
with part 102–36. When reporting perishables to GSA, you should annotate
the Report for Excess Personal Property, SF 120 or electronic reporting
form to show whether there is a specific expiration date for the perishable
item and whether such date is an original or extended date.
(d) EPA research and cleanup materials. The EPA, under its independent
authority, may transfer accountability
for hazardous materials deemed by
EPA to be research materials to Federal, state, and local agencies, research
institutions, or commercial businesses
to conduct research or to clean-up a
contaminated site.
§ 102–40.60 May we reassign hazardous
materials?
Yes, when hazardous materials are
reassigned within an executive agency,
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102–40.65
41 CFR Ch. 102 (7–1–16 Edition)
information on the actual or potential
hazard must be included in the documentation effecting the reassignment,
and the recipient organization must
perpetuate in the inventory or control
records visibility of the nature of the
actual or potential hazard.
Subpart C—Transfer and Donation
of Personal Property With Special Handling Requirements
102–40.65 Who is responsible for the
custody of hazardous materials and
property requiring special handling?
You must include with your report of
excess personal property a complete
description of the characteristics of the
property, use or disposal restrictions,
and the actual or potential hazard(s)
associated with the use, handling, or
storage of the item. You should include
a Safety Data Sheet (SDS), Material
Safety Data Sheet (MSDS), or Hazardous Material Information System
(HMIS) record (or equivalent) if available. The physical item which requires
special handling must also be marked
so as to identify its special characteristic(s).
The holding agency is responsible for
the custody of hazardous materials and
property requiring special handling.
Custody of these items may be transferred in whole or in part to another
Federal agency with that receiving
agency’s consent.
§ 102–40.70 Who is responsible for the
care and handling of hazardous materials and property requiring special handling?
(a) The holding agency is responsible
for the care and handling of hazardous
materials and property requiring special handling until the time the property has:
(1) Completed the disposal process;
and
(2) Been transferred, donated, sold or
destroyed, as authorized by this part.
The nature of this material may require extra precautions, processes or
equipment, thereby increasing the cost
of care and handling. The costs associated with performing care and handling
may be charged to the Federal agency
or donation recipient in accordance
with § 102–40.95.
(b) When transferring personal property to another federal agency, failure
to disclose hazards or special handling
requirements may result in the transferring agency being liable for additional costs incurred by the recipient
agency, when authorized by applicable
law and policy.
§ 102–40.75 What must we do when reporting excess personal property
with special handling requirements?
§ 102–40.80 Is personal property requiring special handling available
for transfer or donation?
Generally, yes, with the exceptions
contained in this part, personal property requiring special handling is
available for transfer or donation in accordance with parts 102–36 and 102–37 of
this subchapter, respectively. Surplus
personal property identified as hazardous material not required for transfer as excess personal property to Federal agencies should normally be made
available for donation. However, state
agencies should not acquire hazardous
materials without first ensuring that
there are known eligible donees for
such property. Moreover, all transfer
and donation documents must include
a complete description of the actual or
potential hazard(s) associated with the
handling, storage, use, or disposal of
the item. Also, any continuing restrictions or instructions must be clearly
identified on these documents.
§ 102–40.85 Is donee certification required for the donation of personal
property requiring special handling?
Yes, the transfer document must contain a full description of the actual or
potential hazard(s) and restriction(s)
associated with the handling, storage,
use, transportation or disposal of the
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Federal Management Regulation
§ 102–40.105
item. GSA will not approve a donation
to a State Agency for Surplus Property
(SASP) unless an eligible donee has
been identified. This subpart does not
prohibit a SASP from bringing an item
requiring special handling into its
warehouse or other place of storage,
provided that this storage is of a temporary nature, that the storage arrangement is agreeable to all parties
involved in the donation, and that the
storage location has the necessary facilities, gear, and trained personnel to
handle, store, protect, and transport
the property. In addition, the following
certification (or an equivalent) must be
signed by the donee:
I (We), the undersigned, hereby certify that
the donee has knowledge and understanding
of the nature of the property hereby donated
which requires special handling, and will
comply with all applicable Federal, state,
and local laws, ordinances, and regulations
with respect to the care, handling, storage,
shipment, and disposal of the property. The
donee agrees and certifies that the United
States shall not be liable for personal injuries to, disabilities of, or death of the donee
or the donee’s employees, or any other person arising from or incident to the donation
of the property, its use, or its final disposition. Additionally, the donee agrees and certifies to hold the United States harmless
from and shall indemnify the United States
against any or all debts, liabilities, judgments, costs, demands, suits, actions, or
claims of any nature arising from or incident
to the donation of the property, its use, or
final disposition.
lllllllllllllllllllllll
Name and title of Donee (print or type)
lllllllllllllllllllllll
Signature of Donee
§ 102–40.90 Must we establish additional requirements for the inspection of personal property with special handling requirements?
Yes, you are responsible for establishing appropriate safeguards and providing instructions for personal protection to screeners who are inspecting
property with special handling requirements. Also, it is the responsibility of
the state agency and/or donee to comply with DOT regulations (49 CFR parts
171 through 177) when transporting hazardous material. Any costs incident to
repacking or recontainment will be
borne by the state agency and/or donee.
Also, state agencies and/or donees will
comply with EPA’s Resource Conservation and Recovery Act (40 CFR parts
261 through 265) including its application to transporters, storers, users, and
permitting of hazardous wastes.
§ 102–40.95 Who pays for the costs incident to the transfer of personal
property with special handling requirements?
You may charge the Federal agency
or the SASP any costs you incur in
packing, preparing for shipment, and
transporting property with special handling requirements (see parts 102–36
and 102–37 of this subchapter).
Subpart D—Sale of Personal Property With Special Handling Requirements
§ 102–40.100 May we sell personal
property with special handling requirements?
Generally, yes, you may sell personal
property with special handling requirements through an authorized Sales
Center, provided that the property has
been reported in accordance with subpart B and C of this part, when you:
(a) Comply with applicable Federal,
state, and local laws and regulations,
including part 102–38 of this subchapter; and
(b) Follow applicable precautions including but not limited to proper packaging of the property, labeling with appropriate warning signs, and allowing
for inspection of the property with
proper safeguards.
§ 102–40.105 May we use any sales
method to sell personal property
that requires special handling?
Yes, unless specifically restricted as
to sales methods by provisions in subpart E of this part, you may use any of
the sales methods provided in part 102–
38 of this subchapter, but you must:
(a) Advertise and conduct sales of
such property separately from other
sales;
(b) Store and display such property
in a safe and controlled manner as required by applicable statutes and/or
regulations;
(c) Indicate if the property is being
sold only for scrap, and/or if there are
any use requirements or restrictions;
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§ 102–40.110
41 CFR Ch. 102 (7–1–16 Edition)
(d) Comply with the requirements of
other Federal, state, and local laws and
regulations; and
(e) Conduct the sale through an agency authorized to sell Federal property
in accordance with part 102–38 of this
subchapter.
§ 102–40.110 What must we include in
the sales terms and conditions
when selling personal property
with special handling requirements?
In addition to the recommended sales
terms and conditions contained in part
102–38 of this subchapter, when selling
personal property with special handling requirements you must include
the following in the sales terms and
conditions:
(a) A full description of the actual or
potential hazard(s) associated with
handling, storage, or use of the item,
as well as any use requirements, restrictions, or limitations;
(b) An SDS, MSDS, or HMIS when
available;
(c) A certification, executed by a
duly authorized agency official, that
the item is appropriately labeled and
packaged in accordance with applicable
regulatory and statutory requirements;
(d) Any additional requirements the
purchaser must comply with prior to
removal, e.g., demilitarization on-site;
(e) The necessary steps the purchaser
must take in the handling and transportation of the property when the
property is sold; and
(f) A statement that it is the purchaser’s responsibility to comply with
all applicable Federal, state, local, and
export laws and regulations to ensure
the proper registration, licensing, possession, transportation, and subsequent
use, resale or disposal of the property.
You must use the following certification (or an equivalent certification)
when offering for sale an item requiring special handling. Failure to sign
the certification may result in the bid
being rejected as nonresponsive:
The undersigned bidder hereby certifies
that if awarded a contract under this invitation for bids, the bidder will comply with all
applicable Federal, state, and local laws, ordinances, and regulations with respect to the
care, handling, storage, shipment, resale, export, or other use of the material hereby purchased. The bidder will hold the United
States harmless from and indemnify the
United States against any or all debts, liabilities, judgments, costs, demands, suits, actions, or other claims of any nature arising
from or incident to the handling, use, storage, shipment, resale, export, or other disposition of the items purchased.
lllllllllllllllllllllll
Name of bidder (print or type)
lllllllllllllllllllllll
Signature of bidder
§ 102–40.115 Are
certifications
required from the purchaser when
selling personal property with special handling requirements?
Yes, in addition to receiving a certification that the purchaser will comply with all Federal, state, and local
laws and regulations with respect to
the care, handling, storage, shipment,
and disposal of personal property with
special handling requirements (see certification at § 102–40.110), you must obtain from the purchaser a certification
that the purchaser will comply with
any additional requirements associated
with the property, such as demilitarization, export controls on CCLI, or
mutilation requirements for flight
safety critical aircraft parts. These additional requirements may be imposed
by any law, regulation, or policy.
§ 102–40.120 What precautions must we
take during the sales process for
personal property requiring special
handling?
(a) It is your responsibility to prepare items with special handling requirements for sale, provide all necessary information to ensure that prospective bidders are informed of hazards and special processing requirements, and identify precautions that
bidders should take to protect themselves while inspecting, packing or
moving items with special handling requirements. You must make any safety
gear or equipment needed during the
sales process available to prospective
bidders and others involved in the inspection, packing or moving of these
items.
(b) Unless authorized by the appropriate GSA regional office, you must
not sell extremely hazardous property
unless the property is rendered innocuous or adequate safeguards are provided. Such property must be rendered
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Federal Management Regulation
§ 102–40.140
innocuous in a manner so as to preserve the utility or commercial value
of the property.
§ 102–40.125 May we dispose of personal property requiring special
handling by abandonment or destruction?
Yes, you may dispose of personal
property requiring special handling by
abandonment or destruction. However,
in addition to the requirements for the
abandonment or destruction of property in §§ 102–36.305 through 102–36.330 of
this subchapter, you must also satisfy
applicable Federal, state, and local
waste disposal and air and water pollution control standards, laws, and regulations. You must ensure that such
property, including empty hazardous
material containers, not be abandoned
until made safe, demilitarized, reduced
to scrap, or otherwise made innocuous.
You should also preserve, as much as
possible, any civilian utility or commercial value of the property (see § 102–
40.50.) National security classified
items must be declassified or destroyed
in accordance with holding agency regulations.
Subpart E—Categories of Personal
Property With Special Handling Requirements
§ 102–40.130 What categories of personal property require special handling?
Many categories of personal property
have special handling requirements in
compliance with applicable Federal,
state, and local regulations and ordinances for their handling, transportation, storage, disposal and use. See
appendix A to this part for a listing of
Federal Supply Classifications (FSCs)
containing predominately hazardous
items and appendix B to this part for a
listing of FSCs containing a significant
number of hazardous items. See §§ 102–
40.130 through 102–40.235 for special
handling instructions for some categories of property for which Federal
property managers are likely to have
responsibility.
§ 102–40.135 How do we manage acidcontaminated and explosive-contaminated property?
(a) Acid-contaminated or explosivecontaminated property is considered
extremely hazardous property and is
not reported to GSA for subsequent
transfer or donation. However, you
should notify GSA of this property in
accordance with § 102–40.55. If the property is not transferred or donated, you
may dispose of such property by sale,
in accordance with subpart D of this
part and with the condition that the
purchaser sufficiently decontaminates
the property to the degree that it is no
longer extremely hazardous. Also, such
property must be properly labeled in
accordance with § 102–40.45 and should
not be abandoned. When destroyed,
such destruction should be accomplished under § 102–40.125.
(b) When selling acid or explosive
contaminated property, the sales terms
and sales documentation must both include the following certification, or an
equivalent certification, which must be
signed by the successful bidder.
It is hereby certified that the undersigned
purchaser will comply with all the applicable
Federal, state, and local laws, ordinances
and regulations with respect to the care,
handling, storage, and shipment, resale, export, and other use of the materials, hereby
purchased, and that he/she is a user of, or
dealer in, said materials. This certification
is made in accordance with and subject to
the penalties of Title 18, Section 1001, the
United States Code, Crime and Criminal Procedures.
lllllllllllllllllllllll
Name of purchaser (print or type)
lllllllllllllllllllllll
Signature of purchaser
§ 102–40.140 How do we handle all-terrain vehicles (ATVs)?
(a) Three-wheeled and four-wheeled
all-terrain vehicles (ATVs) can be exchanged with a dealer under the provisions of part 102–39 of this subchapter.
Three-wheeled ATVs not exchanged
must be mutilated in a manner to prevent operational use and may be sold
only as salvage or scrap. Four-wheeled
ATVs not exchanged may be offered for
transfer and donation only when documented in accordance with §§ 102–40.75
and 102–40.80. In addition, any transfer
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§ 102–40.145
41 CFR Ch. 102 (7–1–16 Edition)
or donation documentation for fourwheeled ATVs must require the recipient to acknowledge that the recipient
will follow regulations and guidelines
published by the Consumer Product
Safety Commission related to these
items, including age recommendations,
restrictions on usage, and operator
training. Four-wheeled ATVs not exchanged, transferred, or donated may
be offered for sale as either salvage or
scrap only after they have been mutilated in a manner to prevent operational use. Four-wheeled ATVs must
not be released to the public after
donee use, nor may they be released to
the public after Federal use if the
ATVs are not donated.
(b) A donation transfer document
must contain a full description of the
actual or potential hazard(s) and restriction(s) associated with the handling, storage, use, transportation or
disposal of the item. In addition, the
following certification (or an equivalent) must be signed by the donee:
I (We), the undersigned, hereby certify that
the donee has knowledge and understanding
of the nature of the property hereby donated
which requires special handling, and will
comply with all applicable Federal, state,
and local laws, ordinances, and regulations
with respect to the care, handling, storage,
shipment, and disposal of the property. The
donee agrees and certifies that the United
States shall not be liable for personal injuries to, disabilities of, or death of the donee
or the donee’s employees, or any other person arising from or incident to the donation
of the property, its use, or its final disposition. Additionally, the donee agrees and certifies to hold the United States harmless
from and shall indemnify the United States
against any or all debts, liabilities, judgments, costs, demands, suits, actions, or
claims of any nature arising from or incident
to the donation of the property, its use, or
final disposition.
lllllllllllllllllllllll
Name and title of Donee (print or type)
lllllllllllllllllllllll
Signature of Donee
§ 102–40.145 How do we handle ammunition and ammunition components?
(a) Report usable ammunition to
GSA for possible transfer to a Federal
agency. You must not donate surplus
ammunition, but you may donate surplus ammunition components to eligi-
ble donation recipients. You may sell
non-expended ammunition and ammunition components (expended and nonexpended) only to companies licensed
to perform manufacturing/remanufacturing processes under the provisions
of 18 U.S.C. 923 or other Federal law or
regulation or to companies allowed to
purchase
ammunition
components
under local and state laws. If the ammunition is regulated pursuant to the
National Firearms Act (NFA) or any
other Federal regulation, then the ammunition can only be disposed of in accordance with applicable regulation.
Ammunition greater than .50 caliber
can, in some instances, be regulated
under the NFA. You must follow any
demilitarization requirements. When
selling ammunition and ammunition
components, the sales terms and sales
documentation must both include the
following certification, or an equivalent certification, which must be
signed by the successful bidder:
Item No. llcontains ammunition or ammunition components offered for sale in this
invitation. The undersigned certifies that he/
she will comply with all applicable local,
state, and Federal laws and regulations concerning ammunition or ammunition components.
If the item being sold is scrap ammunition,
the undersigned certifies that he/she is licensed to perform manufacturing/remanufacturing under the provisions of 18 U.S.C. 923
or other Federal law or regulation.
If the item being sold is a scrap ammunition component, the undersigned certifies
that these scrap ammunition components
will not be used for the original manufactured purpose.
lllllllllllllllllllllll
License issuing authority and license num
ber
lllllllllllllllllllllll
Name of bidder (print or type)
lllllllllllllllllllllll
Signature of bidder
(b) In addition to sales as described
in paragraph (a) of this section, expended ammunition cartridge cases
may also be transferred or donated
when the recipient certifies that the
spent brass will be reloaded and used
only for law enforcement purposes. If
there is no Federal or state donation
interest in the cases, and a sale of the
scrap is not feasible, cartridge cases
may be disposed of using abandonment
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Federal Management Regulation
§ 102–40.155
or destruction procedures under § 102–
40.125. The recipient must certify that
the expended cartridge cases will not
be used for the original manufactured
purpose.
(c) The transportation of primers or
propellant powder is governed by 49
CFR parts 171 through 180.
§ 102–40.150 How do we handle animals and plants?
(a) Whenever possible, you should report live animals and plants to GSA for
transfer, donation or sale. They are,
however, considered perishables and
may be disposed of by abandonment or
destruction procedures in accordance
with the authority contained in § 102–
40.125. Abandonment or destruction
procedures may be used for animals
other than those specifically addressed
below, where warranted for humane
purposes.
(b) Unfit horses and mules may be
humanely euthanized or put out to pasture in accordance with 40 U.S.C. 1308
and agency policies. Transfers of unfit
horses or mules to Federal agencies
must be conducted in accordance with
part 102–36 of this subchapter. In the
event that a transfer of these animals
can be made to a humane organization,
the transfer may be conducted under
procedures contained in part 102–37 of
this subchapter.
(c) Under 40 U.S.C. 555, you may
transfer canines formerly used in the
performance of law enforcement duties
to an individual experienced in handling canines in the performance of
those duties, in accordance with agency policy and procedures. For example,
the ‘‘individual’’ may be the current
handler of that canine or a previous
handler.
§ 102–40.155 How do we handle asbestos?
(a) Items with asbestos content must
be handled in accordance with the EPA
regulations found at 40 CFR part 61,
subpart M. Further information on
laws and regulations related to asbestos may be found at www.epa.gov/asbestos.
(b) Report to GSA excess personal
property containing nonfriable asbestos, as defined in 40 CFR 61.141, for subsequent transfer, donation or sale in
accordance with parts 102–36 through
102–38 of this subchapter. Nonfriable asbestos materials cannot:
(1) When dry, be crumbled, pulverized, or reduced to powder by hand
pressure; or
(2) Contain asbestos which is bonded
or otherwise rendered unavailable for
release into the atmosphere through
normal usage. All disposal documentation related to personal property containing nonfriable asbestos, such as exchange/sale, reporting, transfer, donation, and sales documents, must include a warning statement that the
item may contain asbestos and must
not be cut, crushed, sanded, disassembled or otherwise altered. The property
must also be labeled or marked with
such warning statements.
(c) You must use a warning such as
the following on the documentation reporting or requesting the exchange/
sale, transfer, donation or sale of an
item containing asbestos:
WARNING
This property contains asbestos. Inhaling
asbestos fibers may cause cancer. Do not release fibers by cutting, crushing, sanding,
disassembling, or otherwise altering this
property. End users and new owners, if transferred, should be warned. OSHA standards
for personnel protection are codified at 29
CFR 1910.1001. EPA disposal standards are
codified at 40 CFR part 61. State and local
authorities may have additional restrictions
on the disposal of items containing asbestos.
(d) Property containing asbestos
should be labeled with a warning such
as the following:
WARNING
This property contains asbestos. Inhaling
asbestos fibers may cause cancer. Do not release fibers by cutting, crushing, sanding,
disassembling, or otherwise altering this
property.
(e) Nonfriable asbestos that is not
transferred, donated, or sold may be
abandoned as provided in § 102–40.125
and part 102–36 of this subchapter. If
destroyed by burial, items containing
friable or nonfriable asbestos must be
disposed of by burial at a site that
meets the requirements of 40 CFR
61.154.
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§ 102–40.160
41 CFR Ch. 102 (7–1–16 Edition)
(f) Friable asbestos materials that
contain more than one percent asbestos by weight and can, by hand pressure, be crumbled, pulverized, or reduced to powder, thus allowing for potential release of asbestos fibers into
the air. Property containing friable asbestos normally is not to be transferred, donated or sold. Notwithstanding these provisions, holding
agencies, on a case-by-case basis, may
request approval from GSA Central Office, with consultation from the EPA,
to transfer, donate or sell such property if in the judgment of the holding
agency, special circumstances warrant
such action.
(g) Excess personal property known
to contain friable asbestos shall neither be reported to GSA nor transferred among Federal agencies excepted as noted in paragraph (f) of this
section.
(h) Surplus property containing friable asbestos is to be neither donated
nor sold. Such property is disposed of
under paragraph (i) of this section.
(i) Excess and surplus property containing friable asbestos is to be disposed of by burial in a site that meets
the EPA requirements of 40 CFR 61.156.
Holding agencies should contact the
nearest office of the EPA for assistance
with regard to the disposal of materials
containing asbestos, with the exception
of DOD, who should contact the Defense Logistics Agency (DLA).
§ 102–40.160 How do we handle controlled substances?
(a) You are not required to report excess controlled substances to GSA, but
you should make reasonable efforts to
transfer them to Federal agencies in
accordance with Drug Enforcement Administration (DEA) regulations (21
CFR part 1307). The recipient agency
must certify that it is authorized to
procure the particular controlled substance and provide the registration
number on the Certificate of Registration, issued by the DEA. See the transfer procedures in FMR part 102–36 (41
CFR part 102–36).
(b) You must not donate controlled
substances.
(c) In accordance with sales procedures specified in part 102–38 of this
subchapter, and under the conditions
specified in this paragraph, you may
sell controlled substances by sealed bid
only, to bidders who have registered
with the DEA to manufacture, distribute, or dispense of the particular
controlled substance. As a condition of
sale,
the
bidder
must
submit
verification of DEA registration. Prior
to finalizing the sale, you must obtain
confirmation from the DEA of the bidder’s status as a registered manufacturer, distributor or dispenser of controlled substances.
(1) The invitation for bids for controlled substances must list only controlled substances and must only be
distributed to bidders who are registered with the DEA, Department of
Justice, to manufacture, distribute or
dispense of the controlled substances
being sold. In addition, the following
statement, or an equivalent statement,
must be included in the sales terms and
conditions when selling controlled substances:
The bidder shall complete, sign, and return
with his/her bid, the certificate as contained
in this invitation. No award will be made or
sale consummated until after this agency
has obtained from the Drug Enforcement Administration,
Department
of
Justice,
verification that the bidder is registered to
manufacture, distribute, or dispense those
controlled substances which are the subject
of the award.
(2) The following certification, or an
equivalent certification, must be made
a part of the invitation for bids and
contract to be completed and signed by
the bidder and returned with the bid.
Failure to sign the certification may
result in the bid being rejected as nonresponsive:
The undersigned bidder certifies that he/
she is Registered with the Drug Enforcement
Administration, Department of Justice, as a
manufacturer, distributor, or dispenser of
the controlled substances for which a bid is
submitted and the registration number is:
ll.
This certification is made in accordance
with and subject to the penalties of Title 18,
Section 1001, United States Code, Crime and
Criminal procedures.
lllllllllllllllllllllll
Name of bidder (print or type)
lllllllllllllllllllllll
Signature of bidder
lllllllllllllllllllllll
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Federal Management Regulation
§ 102–40.165
Address of bidder (print or type)
(d) As a condition precedent to making an award for the sale of surplus
controlled substances, holding agencies
should follow procedures provided by
the DEA in 21 CFR part 1310.
(e) You must not abandon controlled
substances. You must destroy controlled substances in such a manner as
to ensure total destruction to preclude
any further use, and ensure such destruction is in compliance with DEA
regulations, 21 CFR part 1307, or other
procedures approved by DEA, and coordinate with local air and water pollution control authorities when required.
Destruction must be witnessed and certified by two employees of your agency, unless DEA directs otherwise. The
following certification, or an equivalent certification, must be used to document the destruction of controlled
substances:
(b) Drugs, biologicals, and reagents
other than controlled substances must
be clearly identified when they are
unfit for human use. As a general rule,
you must destroy drugs, biologicals,
and reagents unfit for human use, with
destruction performed by an agency
employee and witnessed and certified
by two additional representatives of
your agency. Similarly, destruction of
this property held by a SASP or donee
must be destroyed by a SASP employee
and witnessed by two additional SASP
employees. Destruction shall be coordinated with local air and water pollution control authorities, when required. However, you may report such
property to GSA for subsequent transfer or donation for the purpose of animal experimental use when the property is unfit due to expired shelf life.
The following certification, or an
equivalent certification, must be used
and retained by the Federal agency or
SASP to document the destruction of
drugs, biologicals, and reagents:
We, the undersigned, have witnessed the
destruction of the (controlled substance(s))
described herein and in the manner of destruction and on the date stated herein:
Certification of destruction of: lll
We, the undersigned, have witnessed the
destruction of the (drugs, biologicals, and reagents) described in the foregoing certification in the manner of destruction and on
the date stated herein:
lllllllllllllllllllllll
Manner in which destruction was performed
Certification of destruction of: lll
lllllllllllllllllllllll
City, State, Zip code
lllllllllllllllllllllll
Date
lllllllllllllllllllllll
Witness
lllllllllllllllllllllll
Date
lllllllllllllllllllllll
Witness
lllllllllllllllllllllll
Date
§ 102–40.165 How do we handle drugs,
biologicals, and reagents other than
controlled substances?
(a) Drugs, biologicals, and reagents
other than controlled substances may
be transferred to another Federal agency for official purposes under procedures specified in part 102–36 of this
subchapter. For donation of drugs,
biologicals, or reagents other than controlled substances, follow the procedures in part 102–37 of this subchapter,
and paragraph (c) of this section.
lllllllllllllllllllllll
Manner in which destruction was performed
lllllllllllllllllllllll
Date
lllllllllllllllllllllll
Witness
lllllllllllllllllllllll
Date
lllllllllllllllllllllll
Witness
lllllllllllllllllllllll
Date
(c) When donating drugs, biologicals,
or reagents other than controlled substances, the SASP shall obtain a certification from the donee indicating
that the items donated will be safeguarded, dispensed, and administered
under competent supervision and in accordance with Federal, state, and local
laws and regulations. Surplus drugs,
biologicals, and reagents requested for
donation by state agencies will not be
transported by the state agency or
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§ 102–40.170
41 CFR Ch. 102 (7–1–16 Edition)
stored in its warehouse prior to distribution to donees. Arrangements will
be made by the state agency for the
donee to make direct pickup at the
holding agency after approval by GSA
and after notification by the holding
agency that the property is ready for
pickup. Additionally, Transfer Order
Surplus Personal Property, SF 123 from
a state agency requesting surplus
drugs, biologicals, and reagents for donation will not be processed or approved by GSA until it has been determined by the GSA donation representative that the specific donee is legally
licensed to administer, dispense, store,
or distribute such property. A copy of
the donee’s license, registration, or
other legal authorization to administer, dispense, store, or distribute such
property should be attached and made
a part of the SF 123. The administration or use of drugs, biologicals, and reagents must be in compliance with the
Federal Food, Drug, and Cosmetic Act,
as amended (21 U.S.C. 301, et seq.).
(d) The sale of any unexpired drugs,
biologicals, or reagents must be in accordance with rules published by the
Food and Drug Administration (FDA).
You may sell drugs, biologicals, and reagents other than controlled substances, only to those entities legally
qualified to engage in the sale, manufacture or distribution of such items
and a certification or evidence of licensing must accompany the bids. An
entity is legally qualified when a Federal agency (e.g., the Department of
Health and Human Services, the DEA,
or the Department of Agriculture) or
state agency having legal or regulatory
oversight over that commodity has approved the entity to engage in the designated activity.
(1) When selling drugs, biologicals,
and reagents other than controlled substances, the following condition of sale
(or an equivalent condition of sale)
must be used:
The bidder shall complete, sign, and return
with his/her bid the certification as contained in this invitation. No award will be
made or sale consummated until after this
agency has determined that the bidder is legally licensed to engage in the manufacture,
sale, or distribution of drugs.
(2) The following certification, or an
equivalent certification, must be made
a part of the invitation for bids (and
contract), to be completed and signed
by the bidder, and returned with the
bid with a copy of his/her license. Failure to sign the certification may result
in the bid being rejected as nonresponsive.
The undersigned bidder certifies that he/
she is legally licensed to engage in the manufacture, sale, or distribution of drugs, and
proof of his/her license to deal in such materials is furnished with this bid. This certification is made in accordance with and subject to the penalties of Title 18, Section 1001,
United States Code, Crime and Criminal procedures.
lllllllllllllllllllllll
Name of bidder (print or type)
lllllllllllllllllllllll
Signature of bidder
lllllllllllllllllllllll
Address of bidder (print or type)
lllllllllllllllllllllll
City, State, Zip code
§ 102–40.170 How do we handle electronic products?
(a) Additional guidance regarding the
disposal and reporting of Federal electronic products is found under FMR
part 102–36 (41 CFR part 102–36).
(b) Excess electronic products, certified and noncertified, meeting radiation safety performance standards or
electronic products which are not required to meet such performance
standards must be reported to GSA for
transfer to Federal agencies in accordance with part 102–36 of this subchapter
and may be donated or sold in accordance with parts 102–37 and 102–38 of this
subchapter, respectively.
(c) Excess electronic products NOT
meeting radiation safety performance
standards must be reported to GSA for
transfer to Federal agencies in accordance with FMR part 102–36 (41 CFR part
102–36) and may be donated or sold in
accordance with parts 102–37 and 102–38
of this subchapter, respectively. The
report to GSA, and any subsequent
transfer, donation, or sales documents,
must include a statement that the
items are not in compliance with applicable radiation safety performance
standards and specify the standard
which is not being met. Additionally,
the recipient must acknowledge that
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Federal Management Regulation
§ 102–40.170
they are aware of the potential danger
in handling or using such items.
(d) Donation documentation for
items not meeting radiation safety performance standards must contain the
following certification, or an equivalent certification, signed by the donee
before release:
I (We), the undersigned, hereby certify that
the donee has knowledge and understanding
of the potential danger in using the product
without a radiation test to determine the acceptability for use and/or modification to
bring it into compliance with the radiation
safety performance standards prescribed for
the item under 21 CFR parts 1010 through
1050, and agrees to accept the item from the
holding agency for donation under those conditions. The undersigned further agrees that
the Government shall not be liable for personal injuries to, disabilities of, or death of
the donee or the donee’s employees, or any
other person arising from or incident to the
donation of the item, its use, or its final disposition. The undersigned also agrees to hold
the Government harmless from any or all
debts, liabilities, judgments, costs, demands,
suits, actions, or claims of any nature arising from or incident to the donation of the
item, its use, or its final disposition.
lllllllllllllllllllllll
Name of Donee (print or type)
lllllllllllllllllllllll
Signature of Donee
(e) Sales documents listing electronic
products not meeting safety performance standards must also clearly warn
purchasers that the items may not be
in compliance with FDA radiation safety performance standards prescribed
pursuant to 21 CFR parts 1010 through
1050 and that the purchaser assumes all
risks associated with the use or resale
of the items. The following type of
warning will be placed on the sales documentation:
WARNING
Purchasers are warned that the item purchased herewith may not be in compliance
with Food and Drug Administration radiation safety performance standards prescribed pursuant to 21 CFR parts 1010
through 1050, and use may result in personal
injury unless modified. The purchaser agrees
that the United States shall not be liable for
personal injuries to, disabilities of, or death
of the purchaser, the purchaser’s employees,
or to any other persons arising from or incident to the purchase of this item, its use, or
disposition. The purchaser shall hold the
United States harmless from and shall in-
demnify the United States against any or all
debts, liabilities, judgments, costs, demands,
suits, actions, or claims of any nature arising from or incident to the purchase, use or
resale of this item. The purchaser agrees to
notify any subsequent purchaser of this
property of the potential for personal injury
in using this item without a radiation survey
to determine the acceptability for use and/or
modification to bring it into compliance
with the radiation safety performance standards prescribed for the item under 21 CFR
parts 1010 through 1050, unless authorized by
21 CFR 1002.4 to have the dealer or distributor hold and preserve.
(f) You must dispose of all electronic
products in accordance with all Federal
and state laws, including the Solid
Waste Disposal Act (42 U.S.C. 6901, et
seq.) and Executive Order 13423,
Strengthening Federal Environmental,
Energy, and Transportation Management. You should also be aware of the
prohibitions and liabilities contained
in 42 U.S.C. 9607.
(g) When donating or selling electronic products, the sales terms and
sales documentation, or donation document, must include the following certification, or an equivalent certification, which must be signed by the
donee or successful bidder:
It is hereby certified that the undersigned
purchaser or donee will comply with all the
applicable Federal, state, and local laws, ordinances and regulations with respect to the
care, handling, storage, disposal, and shipment, resale, export, or other use of the electronic products, hereby purchased or donated, and that he/she is a user of, or dealer
in, said products. This certification is made
in accordance with and subject to the penalties of Title 18, Section 1001, the United
States Code, Crime and Criminal Procedures.
When recycling electronic products, purchaser or donee should use any national
standards, best management practices, or existing certification programs for recyclers in
addition to Federal, state, and local laws, ordinances and regulations. In the absence of
national standards, best management practices, or a national certification program for
recyclers, the purchaser/donee should use
‘‘EPA’s Guidelines for Materials Management’’ found at http://www.epa.gov/epawaste/
index.htm
lllllllllllllllllllllll
Name of purchaser or donee (print or type)
lllllllllllllllllllllll
Signature of purchaser or donee
(h) Additionally, noncertified and
certified electronic products must be
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31
§ 102–40.175
41 CFR Ch. 102 (7–1–16 Edition)
abandoned under
§ 102–40.125.
the
provisions
of
§ 102–40.175 How do we handle firearms?
(a) You must submit reports and
transfer documents on excess firearms
to GSA (8QSC), Denver, CO 80225–0506.
GSA will approve transfers of firearms
only to those Federal agencies authorized to acquire firearms for official use,
and may require additional written justification from the requesting agency.
(b) GSA may donate only surplus
hand guns, rifles, shotguns, and individual light automatic weapons previously used by the Federal Government, with less than .50 caliber in Federal Supply Classification (FSC) 1005,
and rifle and shoulder fired grenade
launchers in FSC 1010, with a disposal
condition code of 4 or better (see condition codes in § 102–36.240 of this subchapter). Only eligible law enforcement
entities whose primary function is the
enforcement of applicable Federal,
state, and/or local laws, and whose
compensated law enforcement officers
have powers to apprehend and arrest,
may obtain these donated firearms for
law enforcement purposes.
(c)(1) For purposes of donation under
paragraph (b) of this section, each
Transfer Order Surplus Personal Property SF 123 must be accompanied by a
conditional transfer document, signed
by both the intended donee agency and
the SASP, which includes the special
terms, conditions, restrictions, and
other forms or information required for
the transfer of the donated firearms.
Restrictions on donated firearms are
perpetual and may not be amended by
the SASP without prior written approval from GSA. Donated firearms
must be released or shipped directly
from the Federal donor agency to the
designated donee.
(2) If the firearms to be donated are
subject to the National Firearms Act,
26 U.S.C. Chapter 53, (e.g., machineguns, silencers, short-barrel rifles,
short-barrel shotguns, firearms over .50
caliber or with a bore diameter of more
than 1⁄2 inch, and destructive devices)
the SF 123 must be accompanied by an
ATF Form 10, Application for Registration of Firearms Acquired by Certain
Governmental Entities, completed by
the donee agency as specified in 27 CFR
479.104. Upon approval of the donation
by the SASP, the Form 10 shall be forwarded in accordance with the form’s
instructions. The Chief, National Firearms Act Branch, shall notify the
donee agency of ATF registration of
the donated firearms by returning the
approved Form 10 to the donee agency.
The donee agency shall provide a copy
of the approved Form 10 to the SASP
who shall retain a copy of the approved
Form 10 and attach it to the SF 123.
Firearms shall not be released for shipment until the ATF Form 10 has been
approved by the ATF and a copy provided to the SASP. The registration of
any firearms on ATF Form 10 is for official use only and subsequent transfers
will be approved only to other Governmental entities for official use and in
accordance with paragraph (e)(2) of this
section. If you have questions concerning whether particular firearms
are subject to the National Firearms
Act, contact the Firearms Technology
Industry Services Branch, ATF, at (304)
616–4300 or [email protected].
(d)
When
authorized
by
circumstances described in paragraphs
(e), (f), (g), or (i) of this section, the destruction of firearms must be performed by an entity authorized by your
agency head or designee. The destruction must be witnessed by two additional agency employees authorized by
the agency head or designee.
(e)(1) When the approved donee agency no longer needs the donated firearms, the donee agency must notify
the SASP. The SASP may, with GSA
approval and in accordance with paragraph (e)(2) of this section, reassign
firearms to another donee agency within the state or to a donee agency in another state through the appropriate
SASP. In such a case, transfer of the
firearms must be between eligible
donee agencies only. No SASP is eligible to take custody of the firearms. If
the firearms are not sought for reassignment, the donee agency and a representative from the SASP, or designee, must witness destruction of the
firearms and complete and sign a certificate of destruction, which will be
maintained by the SASP. If firearms
subject to the National Firearms Act
are destroyed, the SASP shall notify
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31
Federal Management Regulation
§ 102–40.180
the Chief, National Firearms Act
Branch, ATF, so the destruction can be
noted in the National Firearms Registration and Transfer Record.
(2) If the firearms sought for reassignment are subject to the National
Firearms Act, the firearms must be
transferred in accordance with 27 CFR
479.90. This regulation requires that
the donor agency submit an ATF Form
5, Application for Tax Exempt Transfer
and Registration of Firearm, which
must be approved prior to transfer of
the firearms. Donor agencies wishing
to reassign firearms subject to the National Firearms Act shall submit a
completed ATF Form 5 to the SASP
along with the request to reassign the
firearms to another donee agency. The
SASP shall forward the ATF Form 5 to
the Chief, National Firearms Act
Branch. If transfer is approved by the
ATF, the donor agency will receive a
copy of the Form 5, with approval
noted thereon, from the Chief, National
Firearms Act Branch, ATF. The donor
agency shall provide a copy of the approved Form 5 to the SASP at which
time the reassignment shall be approved.
(f) You must not abandon firearms.
You must destroy unneeded firearms
by crushing, cutting, breaking, or deforming each firearm in a manner to
ensure that each firearm is rendered
completely inoperative and incapable
of being made operable for any purpose
except the recovery of basic material
content. Destruction of firearms must
be performed as stated in paragraphs
(d) and (e) of this section.
(g) You must not dispose of functional or repairable firearms under an
exchange/sale transaction or by sale.
Surplus firearms may be sold only for
scrap after total destruction as described in paragraph (f) of this section
to ensure that the firearms are rendered completely inoperative and to
preclude their being made operative.
Such sale shall be conducted under
part 102–38 of this subchapter.
(h)(1) Except as provided in paragraph (h)(2) of this section, firearms received as foreign gifts may be offered
for transfer to Federal agencies or sold
to the gift recipient in accordance with
part 102–42 of this subchapter. If sold to
the gift recipient, a certification
signed by the gift recipient certifying
compliance with all Federal, state, and
local laws regarding purchase and possession of firearms must be received by
the gift recipient’s agency and the
agency conducting the sale prior to the
sale and release of such firearm to the
gift recipient.
(2) Firearms subject to the National
Firearms Act, 26 U.S.C. Chapter 53 that
are received as foreign gifts cannot be
lawfully transferred to an individual
gift recipient. These firearms must remain the property of the United States
or may be transferred to a donee agency in accordance with paragraphs (b)
and (c) of this section. In addition, all
firearms must also be transferred,
shipped, received, and possessed in accordance with the Gun Control Act of
1968. Persons having questions concerning compliance with the Gun Control Act should contact the nearest
ATF field office.
(i) Firearms that are forfeited, voluntarily abandoned, or unclaimed as described in 40 U.S.C. 1306 and 40 U.S.C.
552, must be reported to GSA for disposal in accordance with § 102–41.195 of
this subchapter. GSA will direct the
disposition of these firearms under this
section.
§ 102–40.180 How do we handle hazardous materials?
(a) You may use any of the following
methods for the identification of hazardous materials:
(1) As part of the process under current acquisition standards, manufacturers must provide SDSs or similar
documentation to identify potential
hazards. SDSs are also prescribed by
OSHA under 29 CFR part 1910.
(2) An automated database maintained by GSA Federal Acquisition
Service contains MSDSs for all GSAprocured hazardous materials. To request an MSDS, you may send an email
to [email protected], or call, Toll Free:
866–588–7659, DSN: 465–5097, or Commercial: 816–926–5097.
(3) A collection of hazard-related information in DOD’s HMIS provides
transportation and disposal information.
(4) Appendix A to this part contains a
list of the Federal Supply Classes
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31
§ 102–40.185
41 CFR Ch. 102 (7–1–16 Edition)
(FSC) of property that are composed
predominantly of hazardous items.
(5) When information is not available
under paragraphs (a)(1), (2), (3), or (4) of
this section, contact the manufacturer,
the procuring agency, or your technical staff for assistance in obtaining
the SDS, MSDS, or HMIS information.
(b) You must verify items with an expired shelf life or reclassify them as
hazardous wastes when required by
Federal, state, or local environmental
laws or regulations. If the item has
been determined hazardous, the owning
Federal agency must document the accountable inventory record accordingly. If the item has not been appropriately labeled by the manufacturer
or distributor, the owning agency must
appropriately label, mark, or tag the
item in accordance with OSHA requirements (29 CFR 1919.1200) regarding the
actual potential hazard associated with
the handling, storage, or use of the
item.
(c) For transportation of hazardous
materials, see 49 CFR parts 171 through
180.
(d) For disposal of hazardous materials, see §§ 102–40.35 through 102–40.125.
(e) Unless authorized by GSA, extremely hazardous property may not be
sold unless it is rendered innocuous,
mutilated or otherwise made safe. You
should, however, render such property
innocuous in a manner so as to preserve the maximum utility or commercial value of the property when possible.
§ 102–40.185 How do we handle leadcontaining paints and items bearing
lead-containing paint?
(a) You may transfer, donate or sell
such items in compliance with restrictions and requirements found in the
Consumer Product Safety Commission
regulations set forth in 16 CFR part
1303. The transfer, donation or sales
documents must clearly describe these
leaded items and why they require special handling, and identify the danger
inherent in the use or disposal of such
paint and items bearing lead-containing paint. You must not abandon
such items or their containers. You
must destroy them in a way that will
prohibit future acquisition and use,
and in a manner authorized by law and
regulation. Any removal (stripping) of
lead paint incident to disposal must be
accomplished in conformance with
Federal
regulations
and
industry
guidelines such as those promulgated
by the EPA (http://www.epa.gov) or
OSHA (http://www.osha.gov).
(b) If disposal of the items described
in paragraph (a) of this section is allowable, the following must be placed
on the items:
(1) The following warning:
WARNING
Contains Lead. Dried Film of This Paint May
be Harmful if Eaten or Chewed.
(2) The following additional statement or
its practical equivalent on their labels:
Do not apply on toys and other children’s
articles, furniture or interior surfaces of any
dwelling or facility which may be occupied
or used by children. Do not apply on exterior
surfaces of dwelling units, such as window
sills, porches, stairs or railings, to which
children may be commonly exposed.
KEEP OUT OF REACH OF CHILDREN
(c) Donation documentation (including the SF 123) must contain the following certification, or an equivalent
certification:
The property requested herein shall be
used only as specified in 16 CFR part 1303 and
in no case shall be in contact with children.
I, the undersigned, agree the United States
shall not be liable for personal injuries to,
disabilities of or death of the donee’s employees, or any other person arising from or
incident to the donation of this property, its
use or its final disposition; and to hold the
United States harmless from, and shall indemnify the United States against, any or
all debts, liabilities, judgments, costs, demands, suits, actions or claims of any nature
arising from or incident to the donation of
this property, its use or its final disposition.
lllllllllllllllllllllll
Name of donee (print or type)
lllllllllllllllllllllll
Signature of donee
(d) When selling lead-containing
paint or items bearing lead-containing
paint, the sales terms and sales documentation must include this certification, or an equivalent certification.
Failure to sign the certification where
it appears as a sales term may result in
the bid being rejected as nonresponsive:
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31
Federal Management Regulation
§ 102–40.200
I, the undersigned, certify that I have read
and fully comprehend the aforementioned
terms and conditions of this sale. I shall
comply with the applicable Consumer Product Safety Commission regulations set forth
in 16 CFR part 1303 if I am the successful bidder. I further agree the United States shall
not be liable for personal injuries to, disabilities of, or death of any persons arising from
or incident to the sale of this property, its
uses or its final disposition; and to hold the
United States harmless from, and shall indemnify the United States against, any or
all debts, liabilities, judgments, costs, demands, suits, actions, or claims of any nature arising from or incident to the sale of
this property, its use, or its final disposition.
lllllllllllllllllllllll
Name of bidder (print or type)
lllllllllllllllllllllll
Signature of bidder
§ 102–40.190 How do we handle medical devices?
(a) Medical devices are subject to the
laws and regulations administered by
FDA. Provisions of the governing statute, the Federal Food, Drug, and Cosmetic Act, appear in 21 U.S.C. 301, et
seq. FDA regulations covering medical
devices are found in 21 CFR chapter I,
subpart H. The Act prohibits the movement in interstate commerce of medical devices that are adulterated or
misbranded (21 U.S.C. 331). The Act authorizes FDA to initiate civil proceedings to seize or enjoin the distribution of such items (21 U.S.C. 334), and
to report any violations to a U.S. Attorney for prosecution, after such individual is given notice and a hearing (21
U.S.C. 335).
(b) Prescription devices are subject
to additional Federal, state, local, and
other applicable laws. Federal law requires that prescription devices be in
the possession of either: Persons lawfully engaged in the manufacture,
transportation, storage, or wholesale
or retail distribution of such device; or,
practitioners licensed by their states.
Federal law also requires that prescription devices be sold only to, or on the
prescription or order of, a licensed
practitioner for use in the course of his
or her professional practice, and that
the devices are labeled in a specific
manner.
(c) Non-Federal recipients must certify in writing that such property will
be used, resold or transported in con-
formance with FDA regulations. Any
proposed destruction of medical equipment must be coordinated with local
health and sanitation officials.
§ 102–40.195 How do we handle Munitions List Items (MLIs)?
(a) Munitions List Items (MLIs) are
listed in 22 CFR part 121. A system of
demilitarization codes identifies the
extent of alteration or destruction necessary when transferring or selling
MLIs. The appropriate code is normally
assigned to items when they enter the
supply system of the Department of
Defense (DOD) or a civilian agency.
Refer to DOD 4160.21–M–1 (Change No.
1) for a complete description of the
DOD program and the requirements to
be followed for property owned, procured by or under the control of DOD.
The DOD manual is available from the
Defense Logistics Agency, 8725 John J.
Kingman Road, Fort Belvoir, VA 22060.
If your agency uses another system of
identifying items requiring demilitarization, you must provide a detailed
description of that system to the General Services Administration, Mail
Code MA, 1800 F Street NW., Washington, DC 20405, Attn: Director, Personal Property Policy.
(b) When disposing of MLIs, you must
perpetuate
these
demilitarization
codes; alert those to whom you are
transferring or selling property that
the item may require demilitarization;
and perform any required demilitarization, or provide any documentation or
certifications in accordance with the
DOD demilitarization manual, DOD
4160.21–M–1 (Change No. 1), or other
agency policy manual if the MLIs are
not governed by the DOD demilitarization manual.
(c) Disposal of MLIs will follow the
provisions of parts 102–36, 102–37, and
102–38 of this subchapter unless different disposal procedures are required
by law or your agency regulation
issued in support of 22 U.S.C. 2778.
§ 102–40.200 How do we handle Commerce Control List Items (CCLIs)?
(a) CCLIs are subject to the controls
of 15 CFR parts 738 and 774. Export licenses are required for transfer of
items to the countries listed in 15 CFR
part 738, supp. 1. CCLIs may also be
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31
§ 102–40.205
41 CFR Ch. 102 (7–1–16 Edition)
identified by the demilitarization code
assigned to the item in the DOD supply
system.
(b) When disposing of CCLIs, you
must notify the recipient that the item
may be subject to Department of Commerce export licensing requirements
when transported out of the U.S., for
reasons of national security, crime
control, technology transfer, and scarcity of materials. Furthermore:
(1) The recipient must be informed
that this notification must pass to all
subsequent recipients of the item.
(2) When being sold, completed enduse certificates are required of all bidders. An end-use certificate is a statement signed by a prospective recipient
indicating the intended designation
and disposition of CCLIs to be acquired, and acknowledging U.S. export
licensing requirements.
(3) All disposal activity must conform to the requirements of 15 CFR,
chapter VII, subchapter C.
§ 102–40.205 How do we handle national stockpile material?
In accordance with 40 U.S.C. 113(e)(6),
materials acquired for the national
stockpile, the supplemental stockpile,
or materials or equipment acquired
under section 303 of the Defense Production Act of 1950, as amended (50
App. U.S.C. 2093), are not covered by
the Federal Management Regulation.
The disposal of these assets is governed
by 50 U.S.C. 98d, 98e, and 98f.
§ 102–40.210 How do we handle Nuclear Regulatory Commission-controlled materials?
The Nuclear Regulatory Commission
(NRC) has exclusive control over licensing, use, transfer, and disposition
of NRC-controlled materials. Direct all
inquiries to the U.S. Nuclear Regulatory Commission, Washington, DC
20555.
§ 102–40.215 How do we handle ozone
depleting substances (ODSs)?
Handle ODSs in accordance with Federal and state laws and regulations.
Prior to disposal of ODSs removed or
reclaimed from facilities or equipment,
including disposal as part of a contract, trade or donation, coordinate
with the Defense Ozone Depleting Sub-
stances Reserve Program Office to determine if the recovered ODS is a critical requirement for DOD missions. Direct inquiries to the Defense Ozone Depleting Substances Reserve Program
Office, Defense Supply Center, Richmond,
Virginia;
email:
[email protected]; phone: (804)
279–3064. Additional guidance is available from EPA at: http://www.epa.gov/
ozone/title6/608/608fact.html#overview.
§ 102–40.220 How do we handle polychlorinated biphenyls (PCBs)?
(a) In accordance with EPA regulations (40 CFR 761.1 and 761.3), property
defined by EPA as excluded polychlorinated biphenyl (PCB) products
may be transferred, donated or sold in
accordance with parts 102–36, 102–37, or
102–38 of this subchapter. For additional guidance on PCB classifications
and other Federal restrictions, contact:
Director, National Program Chemicals
Division (NPCD), (7404), Office of Pollution Prevention and Toxics, 1200 Pennsylvania Avenue NW., Washington, DC
or visit the EPA’s Web site at: http://
www.epa.gov/waste/hazard/tsd/pcbs/
index.htm. You should also contact
state regulatory agencies since some
states regulate at a stricter level than
the Federal Government.
(b) Property defined by the EPA in 40
CFR 761.3 as either a PCB item or PCB
must be labeled or marked with a
warning statement that the item contains PCB and must be handled and disposed of in accordance with EPA regulations (40 CFR part 761), DOT regulations (49 CFR parts 171 through 180),
and applicable state laws.
(1) PCB items and PCBs may be
transferred or donated, provided:
(i) The items are intact, non-leaking,
and totally enclosed.
(ii) All transfers orders or transfer
documents must cite the specific provision in 40 CFR part 761 that permits
continued use of the item, and contains
a certification that the property has
been inspected by the transferee and
complies with all the use, inspection,
labeling, and other provisions of 40
CFR part 761.
(iii) The recipient must annotate its
property accountability records to reflect the nature and extent of the PCB
content and must provide the specific
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Federal Management Regulation
§ 102–40.225
authorization covering the use of this
item from 40 CFR part 761. If tests are
conducted to ascertain the nature and
extent of PCB contamination, the recipient must furnish the GSA regional
office with a copy of the test results.
This information will be perpetuated
on any notification or release document when the agency disposes of the
property.
(iv) If PCBs or PCB items are donated
to service educational activities or to
public airports, the Department of Defense and the Federal Aviation Administration, respectively, must obtain the
warning and certification as described
in paragraph (e) of this section.
(v) The recipient certifies to you that
the item will be handled and disposed
of in accordance with EPA regulation
40 CFR part 761, DOT regulations 49
CFR parts 171 through 180, and other
applicable Federal and state laws.
(2) PCB and PCB items not transferred or donated must be destroyed or
otherwise disposed of under EPA regulations and applicable state laws. You
must not sell any PCB or PCB item unless 40 CFR part 761 authorizes the sale
and continued use of the specific item.
(c) You must not transfer, donate, or
sell items with an unknown level of
concentrations of PCBs.
(d) Property containing PCBs and
PCB items should be labeled with a
warning such as the following:
Caution—This item contains PCBs (polychlorinated biphenyls), a toxic environmental contaminant requiring special handling and disposal in accordance with the
U.S. Environmental Protection Agency regulations (40 CFR part 761), applicable state
laws, and 41 CFR 102–40.215. For proper disposal information, contact the nearest EPA
office. For transportation requirements, see
49 CFR parts 171 through 180.
(e) The SASP must have the following certification, or an equivalent
certification, on all transfer paperwork
where PCBs are involved.
WARNING AND CERTIFICATION
The undersigned donee is aware that the
item(s) listed as containing polychlorinated
biphenyls (PCBs), a toxic environmental contaminant, require(s) special handling and
disposal in accordance with U.S. Environmental Protection Agency regulation (40
CFR part 761) and U.S. Department of Transportation regulations codified in 49 CFR
parts 171 through 180. The donee certifies
that this item (or these items) will be handled and disposed of in accordance with applicable Federal statutes and regulations and
applicable state laws. This certification is
made in accordance with and subject to the
penalties of Title 18, Section 1001, the United
States Code, Crime and Criminal Procedures.
lllllllllllllllllllllll
Name and title of donee (print or type)
lllllllllllllllllllllll
Signature of donee
§ 102–40.225 How do we handle precious metals?
(a) You must identify activities in
your organization that generate precious metals; recover precious metals
created from work processes, such as
photographic film developing, and
identify equipment or materials containing recoverable precious metals;
and adequately control precious metals
in your custody. Federal civil agencies
may participate in the DOD Precious
Metal Recovery Program (PMRP) in
accordance with this subpart, and have
an Inter-Agency Service Agreement
(ISA) in effect between the Defense Logistics Agency (DLA) and individual
Federal civil agencies. You may acquire recovered fine precious metals as
Government Furnished Material or for
other authorized uses by submitting a
request to the Commander, Defense
Supply Center, Philadelphia (DSCP),
700 Robbins Avenue, Philadelphia,
Pennsylvania 19111–5096.
(b) Precious metals will be sold in accordance with this subpart and part
102–38 of this subchapter.
(c) Sales of precious metals will be
processed as follows:
(1) Require a bid deposit appropriate
to the circumstances of the sale;
(2) Certify all forms of bid deposit
and payments; and
(3) Include in the invitation for bids
only precious and semiprecious materials as may be available for sale at
that time.
(d) Each agency generating scrap precious metals and also having a continuing need for fine precious metals
may arrange for the acceptance of
scrap precious metals for fine precious
metals with a private contractor or the
DLA.
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§ 102–40.230
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–40.230 How do we handle universal waste(s) (UWs)?
When disposing of universal waste,
follow the instructions on the Web
sites below, which contain descriptions
of the commodities addressed, as well
as the handling and disposal requirements from the relevant sections of 40
CFR part 273:
(a) Batteries. http://www.epa.gov/osw/
hazard/wastetypes/universal/batteries.htm;
(b)
Pesticides.
http://www.epa.gov/
epawaste/hazard/wastetypes/universal/pesticides.htm;
(c)
Mercury-containing
equipment.
http://www.epa.gov/epawaste/hazard/
wastetypes/universal/mce.htm; and
(d) Mercury-containing light bulbs
(such as fluorescent bulbs). http://
www.epa.gov/osw/hazard/wastetypes/universal/lamps/index.htm.
§ 102–40.235 How do we handle motor
vehicles not suitable for highway
use?
Refer to subpart H of part 102–34 of
this subchapter for the general policies
regarding disposal of motor vehicles.
Some Government-owned motor vehi-
cles might receive such extensive damage as a result of an accident, event or
other activity, that they are no longer
suitable for utilization, donation, or
sale for highway use. Such vehicles
may only be donated or sold for salvage
or scrap. Prior to disposal of damaged
motor vehicles, you must evaluate
known damage to determine their suitability for continued highway use.
When a determination is made that a
vehicle is unfit for continued highway
use, you must include such information
in the property record and subsequent
reports. When selling such vehicles,
provide an appropriate warning statement in the solicitation regarding vehicle condition that the vehicle cannot
be titled for highway use. See § 102–
34.305 of this subchapter (note to § 102–
34.305(a)(2)) if the vehicle is not designed or not legal for operation on
highways.
APPENDIX A TO PART 102–40—FEDERAL
SUPPLY CLASSES (FSC) COMPOSED
PREDOMINANTLY
OF
HAZARDOUS
ITEMS
FSC
6810
6820
6830
6840
6850
7930
8010
8030
8040
9110
9130
9135
9140
9150
9160
Nomenclature
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
.....................................
Chemicals.
Dyes.
Gases: Compressed & liquefied.
Pest control agents & disinfectants.
Misc. chemical specialties.
Cleaning & polishing compounds & preparations.
Paints, dopes, varnishes, & related products.
Preservative & sealing compounds.
Adhesives.
Fuels, solid.
Liquid propellants & fuels, petroleum base.
Liquid propellant fuels & oxidizers, chemical base.
Fuel oils.
Oils & greases: cutting, lubricating, & hydraulic.
Misc. waxes, oils, & fats.
APPENDIX B TO PART 102–40—FEDERAL
SUPPLY CLASSES AND GROUPS WHICH
CONTAIN A SIGNIFICANT NUMBER OF
HAZARDOUS ITEMS
Material Safety Data Sheet (or equivalent)
should accompany the item even though the
Federal Supply Class or Group is not listed
in this table.
NOTE: If an item is determined to be hazardous material as defined in § 102–40.30, a
Federal supply class/
group
Title
1370 ..........................
1375 ..........................
2520 ..........................
Pyrotechnics ............................................
Demolition materials ................................
Vehicular power transmission components.
Examples of hazardous materials requiring identification
Warning fuse, fire starter.
Explosive device.
Items containing asbestos.
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Federal Management Regulation
Pt. 102–40, App. B
Federal supply class/
group
Title
2530 ..........................
Vehicular brake, steering, axle, wheel,
and track components.
Vehicular furniture and accessories ........
Tire rebuilding and tire and tube repair
materials.
Engines, turbines, and components ........
Engine accessories .................................
Mechanical power transmission equipment.
Metalworking machinery ..........................
2540 ..........................
2640 ..........................
Group 28 ...................
Group 29 ...................
Group 30 ...................
Group 34 ...................
3433 ..........................
Examples of hazardous materials requiring identification
4240 ..........................
Gas welding, heat cutting, and metalizing equipment.
Miscellaneous welding, soldering, and
brazing supplies and accessories.
Printing, duplication, and bookbinding
equipment.
Gas generating and dispensing systems,
fixed or mobile.
Foundry machinery, related equipment
and supplies.
Safety and rescue equipment .................
5610 ..........................
Mineral construction materials, bulk ........
5660 ..........................
5910 ..........................
Wallboard, building paper, and thermal
insulation materials.
Radio and television communication
equipment, except airborne.
Sound recording and reproducing equipment.
Capacitors ...............................................
5915
5920
5925
5930
5935
5950
5960
..........................
..........................
..........................
..........................
..........................
..........................
..........................
Filters and networks ................................
Fuses and lighting arresters ....................
Circuit breakers .......................................
Switches ..................................................
Connectors, electrical ..............................
Coils and transformers ............................
Electron tubes and associated hardware
5965 ..........................
6135 ..........................
Headsets, handsets, microphones, and
speakers.
Electrical insulators and insulating materials.
Electrical hardware and supplies ............
Antennas, waveguides, and related
equipment.
Miscellaneous electrical and oxide electronic components.
Electric wire and power and distribution
equipment.
Transformers: Distribution and power
station.
Batteries, primary ....................................
6140 ..........................
Batteries, secondary ................................
6145 ..........................
6220 ..........................
6230 ..........................
6505 ..........................
6508 ..........................
Wire and cable, electrical ........................
Electric vehicular lights and fixtures ........
Electric portable and hand lighting equipment.
Electric lamps ..........................................
Nonelectrical lighting fixtures ..................
Miscellaneous signal and security detection systems.
Drugs, biologicals, and official reagents
Medicated cosmetics and toiletries .........
6510 ..........................
Surgical dressing materials .....................
3439 ..........................
3610 ..........................
3655 ..........................
3680 ..........................
5820 ..........................
5835 ..........................
5970 ..........................
5975 ..........................
5985 ..........................
5999 ..........................
Group 61 ...................
6120 ..........................
6240 ..........................
6260 ..........................
6350 ..........................
Items containing asbestos.
Items containing asbestos.
Items containing flammable or toxic compounds.
Engine valves containing metallic sodium.
Engine valves containing metallic sodium.
Equipment containing hazardous hydraulic fluid, including
PCBs.
Equipment containing hazardous hydraulic fluids, including
PCBs.
Compressed gases.
Hazardous items such as cleaners, acids, flux, and supplies
that contain or produce hazardous fumes.
Flammable or toxic lithographic solutions.
Items that produce hazardous fumes.
Flammable or toxic casting compounds.
Items which involve oxygen, compressed gases, or contain
emitting charges.
Hazardous items such as cutback asphalt, deck and floor
covering, deck and surface underlay compound, sealing
compound, flight deck compound.
Asbestos cloth which has loose fibers or particles that may
become airborne and materials containing formaldehyde.
Circuit cooler items that contain gases that are regarded as
hazardous to the earth’s ozone layer.
Recording tape cleaners that contain hazardous cleaning
fluids.
Items that contain polychlorinated biphenyls (PCBs) or sulfuric acid.
Items that contain polychlorinated biphenyls (PCBs).
Items containing radioactive material.
Items containing radioactive material.
Items containing radioactive material.
Kits that contain flammable chemicals.
Items containing polychlorinated biphenyls (PCBs).
Tubes that contain radioactive isotopes and require warning
labels and magnetron tubes, which require special precautions when being prepared for air shipment.
Items containing magnetic material.
Items containing flammable solvents.
Items containing asbestos.
Kits that contain flammable chemicals.
Contact plates that contain beryllium.
Power factor capacitors containing PCBs.
Transformers containing PCBs.
Lead-acid, lithium, and mercury batteries and alkaline (with
electrolyte).
Items that are wet or moist containing corrosive or other hazardous compounds.
Insulated wire containing asbestos.
Items that contain mercury.
Items that contain wet batteries.
Items that contain mercury.
Items that contain mercury.
Items that contain wet batteries or radioactive material.
Hazardous items as defined in Sec. 102–40.30.
Hazardous items as defined in Sec. 102–40.30, subject to
DOT Hazardous Materials Regulations.
Items containing flammable solvents.
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Pt. 102–41
41 CFR Ch. 102 (7–1–16 Edition)
Federal supply class/
group
Title
6520 ..........................
Dental instruments, equipment, and supplies.
X-ray equipment and supplies: medical,
dental, veterinary.
Electrical and electronic properties
measuring and testing instruments.
Laboratory equipment and supplies ........
6525 ..........................
6625 ..........................
6640 ..........................
6685 ..........................
Examples of hazardous materials requiring identification
6740 ..........................
6750 ..........................
Pressure, temperature, and humidity
measuring and controlling instruments.
Photographic ...........................................
Photographic supplies .............................
6780 ..........................
Photographic sets, kits, and outfits .........
7360 ..........................
Sets, kits, and outfits; food preparation
and serving.
Office supplies .........................................
7510 ..........................
8405
8410
8415
8465
8510
..........................
..........................
..........................
..........................
..........................
Items containing flammable solvents, mercury or asbestos.
Items containing hazardous chemicals, solvents.
Items containing radioactive materials.
Items containing flammable compounds, mercury or asbestos.
Items containing mercury or compressed gases.
Items containing radioactive compounds.
Items containing hazardous chemicals, solvents, thinners,
and cements.
Items containing hazardous chemicals, solvents, thinners,
and cements.
Items containing compressed gases such as fire extinguishers.
Hazardous items, such as thinners, cleaning fluids, flammable inks, and varnishes.
Maintenance kits containing flammable solvents.
Maintenance kits containing flammable solvents.
Maintenance kits containing flammable solvents.
Maintenance kits containing flammable solvents.
Shipping containers and pressurized containers with flammable or nonflammable propellants.
Shipping containers and pressurized containers with flammable or nonflammable propellants.
Items containing weed and pest control or other harmful ingredients or because of their composition, are hazardous.
Items containing flammable solvents or asbestos.
Outerwear, men’s ....................................
Outerwear, women’s ...............................
Clothing, special purpose ........................
Individual equipment ...............................
Perfumes, toilet preparations, and powders.
Toilet soap, shaving preparations, and
dentifrices.
Fertilizers .................................................
8520 ..........................
8720 ..........................
9390 ..........................
Miscellaneous fabricated nonmetallic
materials.
Smokers’ articles and matches ...............
Memorials; cemeteries and mortuary
equipment and supplies.
9920 ..........................
9930 ..........................
Lighter fuel and matches only.
Items containing formaldehyde or its solutions.
abandoned, or unclaimed personal property not retained for official use?
PART 102–41—DISPOSITION OF
SEIZED, FORFEITED, VOLUNTARILY
ABANDONED, AND UNCLAIMED
PERSONAL PROPERTY
Sec.
Subpart A—General Provisions
102–41.5 What does this part cover?
102–41.10 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–41.15 How do we request a deviation
from these requirements and who can approve it?
DEFINITIONS
102–41.20 What
part?
definitions
apply
to
this
RESPONSIBILITY
102–41.25 Who retains custody and is responsible for the reporting, care, and handling of property covered by this part?
102–41.30 What is GSA’s role in the disposition of property covered by this part?
102–41.35 Do we report to GSA all seized personal property subject to judicial forfeiture as well as forfeited, voluntarily
Subpart B—Seized or Forfeited Personal
Property
102–41.40 How is personal property forfeited?
102–41.45 May we place seized personal property into official use before the forfeiture
process is completed?
102–41.50 May we retain forfeited personal
property for official use?
102–41.55 Where do we send the reports for
seized or forfeited personal property?
102–41.60 Are there special requirements in
reporting seized or forfeited personal
property to GSA?
102–41.65 What happens to forfeited personal
property that is transferred or retained
for official use?
102–41.70 Are transfers of forfeited personal
property reimbursable?
102–41.75 May we retain the proceeds from
the sale of forfeited personal property?
Subpart C—Voluntarily Abandoned
Personal Property
102–41.80 When is personal property voluntarily abandoned?
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Federal Management Regulation
§ 102–41.5
102–41.85 What choices do I have for retaining or disposing of voluntarily abandoned
personal property?
102–41.90 What happens to voluntarily abandoned personal property retained for official use?
102–41.95 Where do we send the reports for
voluntarily abandoned personal property?
102–41.100 What information do we provide
when reporting voluntarily abandoned
personal property to GSA?
102–41.105 What happens to voluntarily
abandoned personal property when reported to GSA?
102–41.110 Are transfers of voluntarily abandoned personal property reimbursable?
102–41.115 May we retain the proceeds received from the sale of voluntarily abandoned personal property?
Subpart D—Unclaimed Personal Property
102–41.120 How long must we hold unclaimed
personal property before disposition?
102–41.125 What choices do I have for retaining or disposing of unclaimed personal
property?
102–41.130 What must we do when we retain
unclaimed personal property for official
use?
102–41.135 How much reimbursement do we
pay the former owner when he or she
files a claim for unclaimed personal
property that we no longer have?
102–41.140 When do we report to GSA unclaimed personal property not retained
for official use?
102–41.145 Where do we send the reports for
unclaimed personal property?
102–41.150 What special information do we
provide on reports of unclaimed personal
property?
102–41.155 Is unclaimed personal property
available for transfer to another Federal
agency?
102–41.160 May we retain the reimbursement
from transfers of unclaimed personal
property?
102–41.165 May we require reimbursement
for the costs incurred in the transfer of
unclaimed personal property?
102–41.170 Is unclaimed personal property
available for donation?
102–41.175 May we sell unclaimed personal
property?
102–41.180 May we retain the proceeds from
the sale of unclaimed personal property?
Subpart E—Personal Property Requiring
Special Handling
102–41.185 Are there certain types of forfeited, voluntarily abandoned, or unclaimed property that must be handled
differently than other property addressed
in this part?
FIREARMS
102–41.190 May we retain forfeited, voluntarily abandoned, or unclaimed firearms
for official use?
102–41.195 How do we dispose of forfeited,
voluntarily abandoned, or unclaimed
firearms not retained for official use?
102–41.200 Are there special disposal provisions for firearms that are seized and forfeited for a violation of the National
Firearms Act?
FORFEITED DISTILLED SPIRITS, WINE, AND
BEER
102–41.205 Do we report all forfeited distilled
spirits, wine, and beer to GSA for disposal?
DRUG PARAPHERNALIA
102–41.210 What are some examples of drug
paraphernalia?
102–41.215 Do we report to GSA all forfeited,
voluntarily abandoned, or unclaimed
drug paraphernalia not required for official use?
102–41.220 Is drug paraphernalia forfeited
under 21 U.S.C. 863 available for transfer
to other Federal agencies or donation
through a State agency for surplus property (SASP)?
102–41.225 Are there special provisions to reporting and transferring drug paraphernalia forfeited under 21 U.S.C. 863?
102–41.230 May SASPs pick up or store donated drug paraphernalia in their distribution centers?
102–41.235 May we sell forfeited drug paraphernalia?
AUTHORITY: 40 U.S.C. 121(c).
SOURCE: 71 FR 41370, July 21, 2006, unless
otherwise noted.
Subpart A—General Provisions
§ 102–41.5 What does this part cover?
(a) This part covers the disposition of
seized, forfeited, voluntarily abandoned, and unclaimed personal property under the custody of any Federal
agency located in the United States,
the U.S. Virgin Islands, American
Samoa, Guam, the Commonwealth of
Puerto Rico, the Northern Mariana Islands, the Federated States of Micronesia, the Marshall Islands, and Palau.
Disposition of such personal property
located elsewhere must be in accordance with holding agency regulations.
Please see § 102–36.380 of this subchapter B regarding the disposal of foreign excess. The General Services Administration (GSA) does not normally
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§ 102–41.10
41 CFR Ch. 102 (7–1–16 Edition)
accept responsibility for disposal of
property located outside the United
States and its territories. Additional
guidance on disposition of seized, forfeited, voluntarily abandoned, and unclaimed personal property that requires special handling (e.g., firearms,
hazardous materials) is contained in
part 101–42 of this title. Additional
guidance on the disposition of firearms
(as scrap only), distilled spirits, wine,
beer, and drug paraphernalia is provided in subpart E of this part.
(b) These regulations do not include
disposal of seized, forfeited, voluntarily
abandoned, and unclaimed personal
property covered under authorities
outside of the following statutes:
(1) 40 U.S.C. 552, Abandoned or Unclaimed Property on Government
Premises.
(2) 40 U.S.C. 1306, Disposition of
Abandoned or Forfeited Property.
(3) 26 U.S.C. 5688, Forfeited Distilled
Spirits, Wines, and Beer.
(4) 26 U.S.C. 5872, Forfeited Firearms.
(5) 21 U.S.C. 863, Drug Paraphernalia.
§ 102–41.10 To whom do ‘‘we’’, ‘‘you’’,
and their variants refer?
Use of pronouns ‘‘we’’, ‘‘you’’, and
their variants throughout this part
refer to the agency having custody of
the personal property.
§ 102–41.15 How do we request a deviation from these requirements and
who can approve it?
See §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of this part.
DEFINITIONS
§ 102–41.20 What definitions apply to
this part?
The following definitions apply to
this part:
Beer means an alcoholic beverage
made from malted cereal grain, flavored with hops, and brewed by slow
fermentation.
Distilled spirits, as defined in the Federal Alcohol Administration Act (27
U.S.C. 211), means ethyl alcohol; hydrated oxide of ethyl; or spirits of wine,
whiskey, rum, brandy, gin, and other
distilled spirits, including all dilutions
and mixtures thereof, for non-industrial use.
Drug paraphernalia means any equipment, product, or material primarily
intended or designed for use in manufacturing, compounding, converting,
concealing, processing, preparing, or
introducing into the human body a
controlled substance in violation of the
Controlled Substances Act (see 21
U.S.C. 863). It includes items primarily
for use in injecting, ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil,
PCP, or amphetamines into the human
body.
Eleemosynary institution means any
nonprofit health or medical institution
that is organized and operated for charitable purposes.
Firearms means any weapon, silencer,
or destructive device designed to, or
readily convertible to, expel a projectile by the action of an explosive, as
defined in the Internal Revenue Code
(26 U.S.C. 5845). Excludes antique firearms as defined in 26 U.S.C. 5845(g).
Forfeited property means personal
property that the Government has acquired ownership of through a summary process or court order pursuant
to any law of the United States.
Seized property means personal property that has been confiscated by a
Federal agency, and whose care and
handling will be the responsibility of
the agency until final ownership is determined by the judicial process.
Unclaimed property means personal
property unknowingly abandoned and
found on premises owned or leased by
the Government, i.e., lost and found
property.
Voluntarily abandoned property means
personal property abandoned to any
Federal agency in a way that immediately vests title to the property in
the Government. There must be written or circumstantial evidence that the
property was intentionally and voluntarily abandoned. This evidence should
be clear that the property was not simply lost by the owner.
Wine means the fermented juice of a
plant product, as defined in 27 U.S.C.
211.
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Federal Management Regulation
§ 102–41.35
RESPONSIBILITY
§ 102–41.25 Who retains custody and is
responsible for the reporting, care,
and handling of property covered
by this part?
You, the holding agency, normally
retain physical custody of the property
and are responsible for its care and
handling pending final disposition.
With the exception of property listed in
§ 102–41.35, you must report promptly to
the GSA forfeited, voluntarily abandoned, or unclaimed personal property
not being retained for official use and
seized property on which proceedings
for forfeiture by court decree are being
started or have begun. In general, the
procedures for reporting such property
parallel those for reporting excess personal property under part 102–36 of this
subchapter B.
§ 102–41.30 What is GSA’s role in the
disposition of property covered by
this part?
(a) Seized property subject to court proceedings for forfeiture. (1) If the seizing
agency files a request for the property
for its official use, the GSA Region 3/
National Capital Region will apply to
the court for an order to turn the property over to the agency should forfeiture be decreed. If no such request
has been filed, GSA will determine
whether retention of the property for
Federal official use is in the Government’s best interest, and, if so, will
apply to the court to order delivery of
the property to—
(i) Any other Federal agency that requests it; or
(ii) The seizing agency to be retained
for a reasonable time in case the property may later become necessary to
any agency for official use.
(2) In the event that the property is
not ordered by competent authority to
be forfeited to the United States, it
may be returned to the claimant.
(b) Forfeited, voluntarily abandoned, or
unclaimed property. When forfeited, voluntarily abandoned, or unclaimed property is reported to GSA for disposal,
GSA will direct its disposition by—
(1) Transfer to another Federal agency;
(2) Donation to an eligible recipient,
if the property is not needed by a Federal agency and there are no require-
ments for reimbursement to satisfy the
claims of owners, lien holders, or other
lawful claimants;
(3) Sale; or
(4) Abandonment and destruction in
accordance with § 102–36.305 of this subchapter B.
§ 102–41.35 Do we report to GSA all
seized personal property subject to
judicial forfeiture as well as forfeited, voluntarily abandoned, or
unclaimed personal property not
retained for official use?
Yes, send GSA reports of excess (see
§ 102–36.125 of this subchapter B) for all
seized personal property subject to judicial forfeiture as well as forfeited,
voluntarily abandoned, or unclaimed
personal property not required for official use, except the following, whose
disposition is covered under other statutes and authorities:
(a) Forfeited firearms or munitions
of war seized by the Department of
Commerce and transferred to the Department of Defense (DOD) pursuant to
22 U.S.C. 401.
(b) Forfeited firearms directly transferable to DOD by law.
(c) Seeds, plants, or misbranded
packages seized by the Department of
Agriculture.
(d) Game animals and equipment
(other than vessels, including cargo)
seized by the Department of the Interior.
(e) Files of papers and undeliverable
mail in the custody of the United
States Postal Service.
(f) Articles in the custody of the Department of Commerce Patent and
Trademark Office that are in violation
of laws governing trademarks or patents.
(g) Unclaimed and voluntarily abandoned personal property subject to
laws and regulations of the U.S. Customs and Border Protection, Department of Homeland Security.
(h) Property seized in payment of or
as security for debts arising under the
internal revenue laws.
(i) Lost, abandoned, or unclaimed
personal property the Coast Guard or
the military services are authorized to
dispose of under 10 U.S.C. 2575.
(j) Property of deceased veterans left
on a Government facility subject to 38
U.S.C. 8501.
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§ 102–41.40
41 CFR Ch. 102 (7–1–16 Edition)
(k) Controlled substances reportable
to the Drug Enforcement Administration, Department of Justice, Washington, DC 20537.
(l) Forfeited, condemned, or voluntarily abandoned tobacco, snuff, cigars,
or cigarettes which, if offered for sale,
will not bring a price equal to the internal revenue tax due and payable
thereon; and which is subject to destruction or delivery without payment
of any tax to any hospital maintained
by the Federal Government for the use
of present or former members of the
military.
(m) Property determined appropriate
for abandonment/destruction (see § 102–
36.305 of this subchapter B).
(n) Personal property where handling
and disposal is governed by specific
legislative authority notwithstanding
Title 40 of the United States Code.
Subpart B—Seized or Forfeited
Personal Property
§ 102–41.40 How is personal property
forfeited?
Personal property that has been
seized by a Federal agency may be forfeited through court decree (judicial
forfeiture) or administratively forfeited if the agency has specific authority without going through the courts.
§ 102–41.45 May we place seized personal property into official use before the forfeiture process is completed?
No, property under seizure and pending forfeiture cannot be placed into official use until a final determination is
made to vest title in the Government.
§ 102–41.50 May we retain forfeited
personal property for official use?
Yes, you may retain for official use
personal property forfeited to your
agency, except for property you are required by law to sell. Retention of
large sedans and limousines for official
use is only authorized under the provisions of part 102–34 of this subchapter
B. Except for the items noted in § 102–
41.35, report to GSA all forfeited personal property not being retained for
official use.
§ 102–41.55 Where do we send the reports for seized or forfeited personal property?
(a) Except for the items noted in
paragraph (b) of this section, report
seized or forfeited personal property
not retained for official use to the General Services Administration, Property
Management Branch (3FPD), Washington, DC 20407.
(b) Report aircraft, firearms, and vessels to the regional GSA Property Management Branch office specified in
§ 102–36.125 of this subchapter B.
§ 102–41.60 Are there special requirements in reporting seized or forfeited personal property to GSA?
Yes, in addition to the information
required in § 102–36.235 of this subchapter B for reporting excess, you
must indicate—
(a) Whether the property—
(1) Was forfeited in a judicial proceeding or administratively (without
going through a court);
(2) Is subject to pending court proceedings for forfeiture, and, if so, the
name of the defendant, the place and
judicial district of the court from
which the decree will be issued, and
whether you wish to retain the property for official use;
(b) The report or case number under
which the property is listed; and
(c) The existence or probability of a
lien, or other accrued or accruing
charges, and the amount involved.
§ 102–41.65 What happens to forfeited
personal property that is transferred or retained for official use?
Except for drug paraphernalia (see
§§ 102–41.210 through 102–41.235), forfeited personal property retained for
official use or transferred to another
Federal agency under this subpart
loses its identity as forfeited property.
When no longer required for official
use, you must report it to GSA as excess for disposal in accordance with
part 102–36 of this subchapter B. You
must follow the additional provisions
of subpart E of this part and part 101–
42 of Chapter 101, Federal Property
Management Regulations in this title
when disposing of firearms, distilled
spirits, wine, beer, and drug paraphernalia.
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§ 102–41.100
§ 102–41.70 Are transfers of forfeited
personal property reimbursable?
Recipient agencies do not pay for the
property. However, you may charge the
recipient agency all costs you incurred
in storing, packing, loading, preparing
for shipment, and transporting the
property. If there are commercial
charges incident to forfeiture prior to
the transfer, the recipient agency must
pay these charges when billed by the
commercial organization. Any payment due to lien holders or other lawful claimants under a judicial forfeiture must be made in accordance
with provisions of the court decree.
§ 102–41.75 May we retain the proceeds
from the sale of forfeited personal
property?
No, you must deposit the sales proceeds in the U.S. Treasury as miscellaneous receipts, unless otherwise directed by court decree or specifically
authorized by statute.
Subpart C—Voluntarily
Abandoned Personal Property
§ 102–41.80 When is personal property
voluntarily abandoned?
Personal property is voluntarily
abandoned when the owner of the property intentionally and voluntarily
gives up title to such property and title
vests in the Government. The receiving
agency ordinarily documents receipt of
the property to evidence its voluntary
relinquishment. Evidence of the voluntary abandonment may be circumstantial.
§ 102–41.85 What choices do I have for
retaining or disposing of voluntarily abandoned personal property?
You may either retain or dispose of
voluntarily abandoned personal property based on the following circumstances:
(a) If your agency has a need for the
property, you may retain it for official
use, except for large sedans and limousines which may only be retained for
official use as authorized under part
102–34 of this subchapter B. See § 102–
41.90 for how retained property must be
handled.
(b) If your agency doesn’t need the
property, you should determine whether it may be abandoned or destroyed in
accordance with the provisions at FMR
102–36.305 through 102–36.330. Furthermore, in addition to the circumstances
when property may be abandoned or
destroyed without public notice at
FMR 102–36.330, voluntarily abandoned
property may also be abandoned or destroyed without public notice when the
estimated resale value of the property
is less than $500.
(c) If the property is not retained for
official use or abandoned or destroyed,
you must report it to GSA as excess in
accordance with § 102–41.95.
§ 102–41.90 What happens to voluntarily abandoned personal property
retained for official use?
Voluntarily
abandoned
personal
property retained for official use or
transferred to another Federal agency
under this subpart loses its identity as
voluntarily abandoned property. When
no longer required for official use, you
must report it to GSA as excess, or
abandon/destroy the property, in accordance with part 102–36 of this subchapter B.
§ 102–41.95 Where do we send the reports for voluntarily abandoned
personal property?
Except for aircraft, firearms, and vessels, report voluntarily abandoned personal property to the regional GSA
Property Management Branch office
for the region in which the property is
located. Report aircraft, firearms, and
vessels to the regional GSA Property
Management Branch office specified in
§ 102–36.125 of this subchapter B.
§ 102–41.100 What information do we
provide when reporting voluntarily
abandoned personal property to
GSA?
When reporting voluntarily abandoned personal property to GSA, you
must provide a description and location of the property, and annotate that
the property was voluntarily abandoned.
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§ 102–41.105
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–41.105 What happens to voluntarily abandoned personal property
when reported to GSA?
Voluntarily
abandoned
personal
property reported to GSA will be made
available for transfer, donation, sale,
or abandonment/destruction in accordance with parts 102–36, 102–37, 102–38,
and §§ 102–36.305 through 102–36.330 of
this subchapter B, respectively. You
must follow the additional provisions
of §§ 102–41.190 through 102–41.235 and
part 101–42 of Chapter 101, Federal
Property Management Regulations in
this title when disposing of firearms
and other property requiring special
handling.
§ 102–41.110 Are transfers of voluntarily abandoned personal property
reimbursable?
No, all transfers of voluntarily abandoned personal property will be without reimbursement. However, you may
charge the recipient agency all costs
you incurred in storing, packing, loading, preparing for shipment, and transporting the property.
§ 102–41.115 May we retain the proceeds received from the sale of voluntarily abandoned personal property?
No, you must deposit the sales proceeds in the U.S. Treasury as miscellaneous receipts unless your agency has
specific statutory authority to do otherwise.
Subpart D—Unclaimed Personal
Property
§ 102–41.120 How long must we hold
unclaimed personal property before
disposition?
You must generally hold unclaimed
personal property for 30 calendar days
from the date it was found. Unless the
previous owner files a claim, title to
the property vests in the Government
after 30 days, and you may retain or
dispose of the property in accordance
with this part. However, see the following sections for handling of unclaimed personal property under specific circumstances.
§ 102–41.125 What choices do I have for
retaining or disposing of unclaimed
personal property?
You may either retain or dispose of
unclaimed abandoned personal property based on the following circumstances:
(a) If your agency has a need for the
property, you may retain it for official
use if you have held the unclaimed
property for 30 calendar days and the
former owner has not filed a claim.
After 30 days, title vests in the Government and you may retain the unclaimed property for official use. Large
sedans and limousines which may only
be retained for official use as authorized under part 102–34 of this subchapter B. See § 102–41.130 for how retained property must be handled.
(b) If your agency doesn’t need the
property, you should determine whether it may be immediately abandoned or
destroyed in accordance with the provisions at FMR 102–36.305 through 102–
36.330. You are not required to hold unclaimed property for 30 days, if you decide to abandon or destroy it. Title to
the property immediately vests in the
Government in these circumstances. In
addition to the circumstances when
property may be abandoned or destroyed without public notice at FMR
102–36.330, unclaimed personal property
may also be abandoned or destroyed
without public notice when the estimated resale value of the property is
less than $500. See § 102–41.135 for procedures to be followed if a claim is filed.
(c) If the property is not retained for
official use or abandoned or destroyed,
you must report it to GSA as excess in
accordance with § 102–41.140.
§ 102–41.130 What must we do when we
retain unclaimed personal property
for official use?
(a) You must maintain records of unclaimed personal property retained for
official use for 3 years after title vests
in the Government to permit identification of the property should the
former owner file a claim for the property. You must also deposit funds received from disposal of such property
in a special account to cover any valid
claim filed within this 3-year period.
(b) When you no longer need the unclaimed property which you have
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Federal Management Regulation
§ 102–41.175
placed in official use, report it as excess in the same manner as other excess property under part 102–36 of this
subchapter B.
§ 102–41.135 How much reimbursement
do we pay the former owner when
he or she files a claim for unclaimed personal property that we
no longer have?
If the property was sold, reimbursement of the property to the former
owner must not exceed any proceeds
from the disposal of such property, less
the costs of the Government’s care and
handling of the property. If the property was abandoned or destroyed in accordance with § 102–41.125, or otherwise
used or transferred, reimbursement of
the property to the former owner must
not exceed the estimated resale value
of the property at the time of the vesting of the property with the Government, less costs incident to the care
and handling of the property, as determined by the General Services Administration, Office of Travel, Transportation, and Asset Management (MT),
Washington DC, 20405.
§ 102–41.140 When do we report to GSA
unclaimed personal property not
retained for official use?
After you have held the property for
30 calendar days and no one has filed a
claim for it, the title to the property
vests in the Government. If you decide
not to retain the property for official
use, report it as excess to GSA in accordance with part 102–36 of this subchapter B.
§ 102–41.145 Where do we send the reports for unclaimed personal property?
Except for the items noted in § 102–
36.125 of this subchapter B, report unclaimed personal property to the regional GSA Property Management
Branch office for the region in which
the property is located.
§ 102–41.150 What special information
do we provide on reports of unclaimed personal property?
On reports of unclaimed personal
property, you must provide the report
or case number assigned by your agency, property description and location,
and indicate the property as unclaimed
and the estimated fair market value.
§ 102–41.155 Is
unclaimed
personal
property available for transfer to
another Federal agency?
Yes, unclaimed personal property is
available for transfer to another Federal agency, but only after 30 calendar
days from the date of finding such
property and no claim has been filed by
the former owner, and with fair market
value reimbursement from the recipient agency. The transferred property
then loses its identity as unclaimed
property and becomes property of the
Government, and when no longer needed it must be reported excess in accordance with part 102–36 of this subchapter
B.
§ 102–41.160 May we retain the reimbursement from transfers of unclaimed personal property?
No, you must deposit the reimbursement from transfers of unclaimed personal property in a special account for
a period of 3 years pending a claim
from the former owner. After 3 years,
you must deposit these funds into miscellaneous receipts of the U.S. Treasury unless your agency has statutory
authority to do otherwise.
§ 102–41.165 May we require reimbursement for the costs incurred in
the transfer of unclaimed personal
property?
Yes, you may require reimbursement
from the recipient agency of any direct
costs you incur in the transfer of the
unclaimed property (e.g., storage,
packing, preparation for shipping, loading, and transportation).
§ 102–41.170 Is
unclaimed
personal
property available for donation?
No, unclaimed personal property is
not available for donation because reimbursement at fair market value is
required.
§ 102–41.175 May we sell unclaimed
personal property?
Yes, you may sell unclaimed personal
property after title vests in the Government (as provided for in § 102–41.120)
and when there is no Federal interest.
You may sell unclaimed personal property subject to the same terms and
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§ 102–41.180
41 CFR Ch. 102 (7–1–16 Edition)
conditions as applicable to surplus personal property and in accordance with
part 102–38 of this subchapter B.
§ 102–41.200 Are there special disposal
provisions for firearms that are
seized and forfeited for a violation
of the National Firearms Act?
§ 102–41.180 May we retain the proceeds from the sale of unclaimed
personal property?
Yes, firearms seized and forfeited for
a violation of the National Firearms
Act (26 U.S.C. 5801—5872) are subject to
the disposal provisions of 26 U.S.C.
5872(b). When there is no contrary judgment or action under such forfeiture,
GSA will direct the disposition of the
firearms. GSA may—
(a) Authorize retention for official
use by the Treasury Department;
(b) Transfer to an executive agency
for use by it; or
(c) Order the firearms destroyed.
No, you must deposit proceeds from
the sale of unclaimed personal property
in a special account to be maintained
for a period of 3 years pending a possible claim by the former owner. After
the 3-year period, you must deposit the
funds in the U.S. Treasury as miscellaneous receipts or in such other agency
accounts when specifically authorized
by statute.
FORFEITED DISTILLED SPIRITS, WINE,
AND BEER
Subpart E—Personal Property
Requiring Special Handling
§ 102–41.185 Are there certain types of
forfeited, voluntarily abandoned, or
unclaimed property that must be
handled differently than other
property addressed in this part?
Yes, you must comply with the additional provisions in this subpart when
disposing of the types of property listed here.
FIREARMS
§ 102–41.190 May we retain forfeited,
voluntarily abandoned, or unclaimed firearms for official use?
Generally, no; you may retain forfeited, voluntarily abandoned, or unclaimed firearms only when you are
statutorily authorized to use firearms
for official purposes.
§ 102–41.195 How do we dispose of forfeited, voluntarily abandoned, or
unclaimed firearms not retained for
official use?
Report forfeited, voluntarily abandoned, or unclaimed firearms not retained for official use to the General
Services
Administration,
Property
Management Branch (7FP–8), Denver,
CO 80225–0506 for disposal in accordance
with § 101–42.1102–10 of the Federal
Property Management Regulations in
this title.
§ 102–41.205 Do we report all forfeited
distilled spirits, wine, and beer to
GSA for disposal?
(a) Yes, except do not report distilled
spirits, wine, and beer not fit for
human consumption or for medicinal,
scientific, or mechanical purposes.
When reporting, indicate quantities
and kinds, proof rating, and condition
for shipping. GSA (3FPD) may transfer
such property to another Federal agency for official purposes, or donate it to
eligible eleemosynary institutions for
medicinal purposes only.
(b) Forfeited distilled spirits, wine,
and beer that are not retained for official use by the seizing agency or transferred or donated to eligible recipients
by GSA must be destroyed. You must
document the destruction with a
record of the time and location, property description, and quantities destroyed.
DRUG PARAPHERNALIA
§ 102–41.210 What are some examples
of drug paraphernalia?
Some examples of drug paraphernalia
are—
(a) Metal, wooden, acrylic, glass,
stone, plastic or ceramic pipes with or
without screens, permanent screens,
hashish heads, or punctured metal
bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
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Pt. 102–42
(e) Roach clips (objects used to hold
burning material, such as a marijuana
cigarette, that has become too small or
too short to be held in the hand);
(f) Miniature spoons with level capacities of one-tenth cubic centimeter or
less;
(g) Chamber pipes;
(h) Carburetor pipes;
(i) Electric pipes;
(j) Air-driven pipes;
(k) Chillums;
(l) Bongs;
(m) Ice pipes or chillers;
(n) Wired cigarette papers; or
(o) Cocaine freebase kits.
§ 102–41.215 Do we report to GSA all
forfeited, voluntarily abandoned, or
unclaimed drug paraphernalia not
required for official use?
No, only report drug paraphernalia
that has been seized and forfeited for a
violation of 21 U.S.C. 863. Unless statutorily authorized to do otherwise, destroy all other forfeited, voluntarily
abandoned, or unclaimed drug paraphernalia. You must ensure the destruction is performed in the presence
of two witnesses (employees of your
agency), and retain in your records a
signed certification of destruction.
§ 102–41.220 Is drug paraphernalia forfeited under 21 U.S.C. 863 available
for transfer to other Federal agencies or donation through a State
Agency
for
Surplus
Property
(SASP)?
Yes, but GSA will only transfer or
donate forfeited drug paraphernalia for
law enforcement or educational purposes and only for use by Federal,
State, or local authorities. Federal or
State Agencies for Surplus Property
(SASP) requests for such items must be
processed through the General Services
Administration, Property Management
Branch (3FPD), Washington, DC 20407.
The recipient must certify on the
transfer document that the drug paraphernalia will be used for law enforcement or educational purposes only.
§ 102–41.225 Are there special provisions to reporting and transferring
drug paraphernalia forfeited under
21 U.S.C. 863?
Yes, you must ensure that such drug
paraphernalia does not lose its identity
as forfeited property. Reports of excess
and transfer documents for such drug
paraphernalia must include the annotation that the property was seized and
forfeited under 21 U.S.C. 863.
§ 102–41.230 May SASPs pick up or
store donated drug paraphernalia
in their distribution centers?
No, you must release donated drug
paraphernalia directly to the donee as
designated on the transfer document.
§ 102–41.235 May we sell forfeited drug
paraphernalia?
No, you must destroy any forfeited
drug paraphernalia not needed for
transfer or donation and document the
destruction as specified in § 102–41.215.
PART 102–42—UTILIZATION, DONATION, AND DISPOSAL OF FOREIGN GIFTS AND DECORATIONS
Subpart A—General Provisions
Sec.
102–42.5
What does this part cover?
DEFINITIONS
102–42.10 What
part?
definitions
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CARE, HANDLING AND DISPOSITION
102–42.15 Under what circumstances may an
employee retain a foreign gift or decoration?
102–42.20 What is the typical disposition
process for gifts and decorations that
employees are not authorized to retain?
102–42.25 Who retains custody of gifts and
decorations pending disposal?
102–42.30 Who is responsible for the security, care and handling, and delivery of
gifts and decorations to GSA, and all
costs associated with such functions?
102–42.35 Can the employing agency be reimbursed for transfers of gifts and decorations?
APPRAISALS
102–42.40 When is a commercial necessary?
102–42.45 What is my agency’s responsibility
for establishing procedures for obtaining
an appraisal?
102–42.50 What types of appraisals may my
agency consider?
102–42.55 What does the employing agency
do with the appraisal?
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§ 102–42.5
41 CFR Ch. 102 (7–1–16 Edition)
SPECIAL DISPOSALS
Subpart A—General Provisions
102–42.60 Who is responsible for gifts and
decorations received by Senators and
Senate employees?
102–42.65 What happens if the Commission
on Art and Antiquities does not dispose
of a gift or decoration?
102–42.70 Who handles gifts and decorations
received by the President or Vice President or a member of their family?
102–42.75 How are gifts containing hazardous
materials handled?
§ 102–42.5 What does this part cover?
This part covers the acceptance and
disposition of gifts of more than minimal value and decorations from foreign
governments under 5 U.S.C. 7342. If you
receive gifts other than from a foreign
government, you should refer to § 102–
36.405 of this subchapter B.
Subpart B—Utilization of Foreign Gifts and
Decorations
DEFINITIONS
102–42.80 To whom do ‘‘we’’, ‘‘you’’, and
their variants refer?
102–42.85 What gifts or decorations must we
report to GSA?
102–42.90 What is the requirement for reporting gifts or decorations that were retained for official use but are no longer
needed?
102–42.95 How do we report gifts and decorations as excess personal property?
102–42.100 How can we obtain an excess gift
or decoration from another agency?
102–42.105 What special information must be
included on the transfer request (SF 122)?
102–42.110 How must we justify a transfer request?
102–42.115 What must we do when the transferred gifts and decorations are no longer
required for official use?
Subpart C—Donation of Foreign Gifts and
Decorations
102–42.120 When may gifts or decorations be
donated to State agencies?
102–42.125 How is donation of gifts or decorations accomplished?
102–42.130 Are there special requirements
for the donation of gifts and decorations?
Subpart D—Sale or Destruction of Foreign
Gifts and Decorations
102–42.135 Whose approval must be obtained
before a foreign gift or decoration is offered for public sale?
102–42.140 How is a sale of a foreign gift or
decoration to an employee conducted?
102–42.145 When is public sale of a foreign
gift or decoration authorized?
102–42.150 What happens to proceeds from
sales?
102–42.155 Can foreign gifts or decorations
be destroyed?
AUTHORITY: 40 U.S.C. 121(c); sec. 515, 5
U.S.C. 7342 (91 Stat. 862).
SOURCE: 65 FR 45539, July 24, 2000, unless
otherwise noted.
[71 FR 28778, May 18, 2006]
§ 102–42.10 What definitions apply to
this part?
The following definitions apply to
this part:
Decoration means an order, device,
medal, badge, insignia, emblem, or
award offered by or received from a foreign government.
Employee means:
(1) An employee as defined by 5
U.S.C. 2105 and an officer or employee
of the United States Postal Service or
of the Postal Rate Commission;
(2) An expert or consultant who is
under contract under 5 U.S.C. 3109 with
the United States or any agency, department, or establishment thereof, including, in the case of an organization
performing services under that section,
any individual involved in the performance of such services;
(3) An individual employed by or occupying an office or position in the
government of a territory or possession
of the United States or the government
of the District of Columbia;
(4) A member of a uniformed service
as specified in 10 U.S.C 101;
(5) The President and the Vice President;
(6) A Member of Congress as defined
by 5 U.S.C. 2106 (except the Vice President) and any Delegate to the Congress; and
(7) The spouse of an individual described in paragraphs (1) through (6) of
this definition of employee (unless this
individual and his or her spouse are
separated) or a dependent (within the
meaning of section 152 of the Internal
Revenue Code of 1986 (26 U.S.C. 152)) of
this individual, other than a spouse or
dependent who is an employee under
paragraphs (1) through (6) of this definition of employee.
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§ 102–42.20
Employing agency means:
(1) The department, agency, office, or
other entity in which an employee is
employed, for other legislative branch
employees and for all executive branch
employees;
(2) The Committee on Standards of
Official Conduct of the House of Representatives, for Members and employees of the House of Representatives, except that those responsibilities specified in 5 U.S.C. 7342(c)(2)(A), (e)(1), and
(g)(2)(B) must be carried out by the
Clerk of the House;
(3) The Select Committee on Ethics
of the Senate, for Senators and employees of the Senate, except that
those responsibilities (other than responsibilities involving approval of the
employing agency) specified in 5 U.S.C.
7342(c)(2), (d), and (g)(2)(B) must be carried out by the Secretary of the Senate; and
(4) The Administrative Offices of the
United States Courts, for judges and
judicial branch employees.
Foreign government means:
(1) Any unit of foreign government,
including any national, State, local,
and municipal government and their
foreign equivalents;
(2) Any international or multinational organization whose membership is composed of any unit of a foreign government; and
(3) Any agent or representative of
any such foreign government unit or
organization while acting as such.
Gift means a monetary or non-monetary present (other than a decoration)
offered by or received from a foreign
government. A monetary gift includes
anything that may commonly be used
in a financial transaction, such as cash
or currency, checks, money orders,
bonds, shares of stock, and other securities and negotiable financial instruments.
Minimal value means a retail value in
the United States at the time of acceptance that is at or below the dollar
value established by GSA and published in a Federal Management Regulation (FMR) Bulletin at www.gsa.gov/
personalpropertypolicy.
(1) GSA will adjust the definition of
minimal value every three years, in
consultation with the Secretary of
State, to reflect changes in the Con-
sumer Price Index for the immediately
preceding 3-year period.
(2) An employing agency may, by regulation, specify a lower value than this
Government-wide value for its agency
employees.
Spouse means any individual who is
lawfully married (unless legally separated), including an individual married
to a person of the same sex who was legally married in a state or other jurisdiction (including a foreign country),
that recognizes such marriages, regardless of whether or not the individual’s
state of residency recognizes such marriages. The term spouse does not include individuals in a formal relationship recognized by a state, which is
other than lawful marriage; it also
does not include individuals in a marriage in a jurisdiction outside the
United States that is not recognized as
a lawful marriage under United States
law.
[65 FR 45539, July 24, 2000, as amended at 68
FR 56496, Sept. 4, 2002; 70 FR 2318, Jan. 12,
2005; 71 FR 28778, May 18, 2006; 73 FR 7475,
Feb. 8, 2008; 76 FR 30551, May 26, 2011; 79 FR
18477, Apr. 2, 2014; 80 FR 21190, Apr. 17, 2015]
CARE, HANDLING AND DISPOSITION
§ 102–42.15 Under what circumstances
may an employee retain a foreign
gift or decoration?
Employees, with the approval of
their employing agencies, may accept
and retain:
(a) Gifts of minimal value received as
souvenirs or marks of courtesy. When a
gift of more than minimal value is accepted, the gift becomes the property
of the U.S. Government, not the employee, and must be reported.
(b) Decorations that have been offered or awarded for outstanding or unusually meritorious performance. If the
employing agency disapproves retention of the decoration by the employee,
the decoration becomes the property of
the U.S. Government.
§ 102–42.20 What is the typical disposition process for gifts and decorations that employees are not authorized to retain?
(a) Non-monetary gifts or decorations.
When an employee receives a non-monetary gift above the minimal value or a
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§ 102–42.25
41 CFR Ch. 102 (7–1–16 Edition)
decoration that he/she is not authorized to retain:
(1) The employee must report the gift
or decoration to his/her employing
agency within 60 days after accepting
it.
(2) The employing agency determines
if it will keep the gift or decoration for
official use.
(3) If it does not return the gift or
decoration to the donor or keep it for
official use, the employing agency reports it as excess personal property to
GSA for Federal utilization screening
under § 102–42.95.
(4) If GSA does not transfer the gift
or decoration during Federal utilization screening, the employee may purchase the gift or decoration (see § 102–
42.140).
(5) If the employee declines to purchase the gift or decoration, and there
is no Federal requirement for either,
GSA may offer it for donation through
State Agencies for Surplus Property
(SASP) under part 102–37 of this subchapter B.
(6) If no SASP requests the gift or
decoration for donation, GSA may offer
it for public sale, with the approval of
the Secretary of State, or will authorize the destruction of the gift or decoration under part 102–38 of this subchapter B.
(b) Monetary gifts. When an employee
receives a monetary gift above the
minimal value:
(1) The employee must report the gift
to his/her employing agency within 60
days after accepting it.
(2) The employing agency must:
(i) Report a monetary gift with possible historic or numismatic (i.e., collectible) value to GSA; or
(ii) Deposit a monetary gift that has
no historic or numismatic value with
the Department of the Treasury.
[65 FR 45539, July 24, 2000, as amended at 71
FR 28778, May 18, 2006]
§ 102–42.25 Who retains custody of
gifts and decorations pending disposal?
(a) The employing agency retains
custody of gifts and decorations that
employees have expressed an interest
in purchasing.
(b) GSA will accept physical custody
of gifts above the minimal value, which
employees decline to purchase, or decorations that are not retained for official use or returned to donors.
NOTE TO § 102–42.25(b): GSA will not accept
physical custody of foreign gifts of firearms.
Firearms reported by the agency as excess
must be disposed of in accordance with part
101–42 of this title.
§ 102–42.30 Who is responsible for the
security, care and handling, and delivery of gifts and decorations to
GSA, and all costs associated with
such functions?
The employing agency is responsible
for the security, care and handling, and
delivery of gifts and decorations to
GSA, and all costs associated with such
functions.
§ 102–42.35 Can the employing agency
be reimbursed for transfers of gifts
and decorations?
No, all transfers of gifts and decorations to Federal agencies or donation
through SASPs will be without reimbursement. However, the employing
agency may require the receiving agency to pay all or part of the direct costs
incurred by the employing agency in
packing, preparation for shipment,
loading, and transportation.
APPRAISALS
§ 102–42.40 When is an appraisal necessary?
An appraisal is necessary when—
(a) An employee indicates an interest
in purchasing a gift or decoration. In
this situation, the appraisal must be
obtained before the gift or decoration
is reported to GSA for screening (see
102–42.20); or
(b) GSA requires the employing agency to obtain an appraisal of a gift or
decoration that the agency has retained for official use and no longer
needs before accepting the agency’s report of the item as excess personal
property; or
(c) The policy of one’s own agency requires it, pursuant to 5 U.S.C. 7342(g).
NOTE TO § 102–42.40 PARAGRAPHS (a) AND (b):
Refer to § 102–42.50 for how appraisals under
these two situations are handled.
[74 FR 2396, Jan. 15, 2009]
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Federal Management Regulation
§ 102–42.85
§ 102–42.45 What is my agency’s responsibility for establishing procedures for obtaining an appraisal?
The employing agency is responsible
for establishing its own procedure for
obtaining an appraisal that represents
the value of the gift in the United
States. This applies to all gifts, even
when the recipient wishes to retain
and/or purchase the gift. Appraisals are
required for gifts that are personalized
(e.g., Books signed by the author, Gifts
personally labeled).
[74 FR 2396, Jan. 15, 2009]
§ 102–42.50 What types of appraisals
may my agency consider?
Your agency may allow—
(a) Written commercial appraisals
conducted by an appraisal firm or trade
organization; and
(b) Retail value appraisals where the
value of the gift may be ascertained by
reviewing current and reliable non-discounted retail catalogs, retail price
lists, or retail Web site valuations.
[74 FR 2396, Jan. 15, 2009]
§ 102–42.55 What does the employing
agency do with the appraisal?
When an appraisal is necessary under
§ 102–42.40, the employing agency must
include the appraisal with the Standard Form (SF) 120, Report of Excess
Personal Property, and send it to GSA
in accordance with the requirements of
§ 102–42.95. By attaching the appraisal,
the employing agency is certifying
that the value cited is the retail value/
appraised value of the item in the
United States in U.S. dollars on the
date set forth on the appraisal.
bers and employees of the House of
Representatives.
§ 102–42.65 What happens if the Commission on Art and Antiquities does
not dispose of a gift or decoration?
If the Commission on Art and Antiquities does not dispose of a gift or decoration, then it must be reported to
GSA for disposal. If GSA does not dispose of a gift or decoration within one
year of the Commission’s reporting,
the Commission may:
(a) Request that GSA return the gift
or decoration and dispose of it itself; or
(b) Continue to allow GSA to dispose
of the gift or decoration in accordance
with this part.
§ 102–42.70 Who handles gifts and
decorations received by the President or Vice President or a member
of their family?
The National Archives and Records
Administration normally handles gifts
and decorations received by the President and Vice President or a member of
the President’s or Vice President’s
family.
[71 FR 28778, May 18, 2006]
§ 102–42.75 How are gifts containing
hazardous materials handled?
Gifts containing hazardous materials
are handled in accordance with the requirements and provisions of this part
and part 101–42 of this title.
Subpart B—Utilization of Foreign
Gifts and Decorations
§ 102–42.80 To whom do ‘‘we’’, ‘‘you’’,
and their variants refer?
Use of pronouns ‘‘we’’, ‘‘you’’, and
their variants throughout this subpart
refers to the employing agency.
[74 FR 2396, Jan. 15, 2009]
SPECIAL DISPOSALS
§ 102–42.60 Who is responsible for gifts
and decorations received by Senators and Senate employees?
Gifts and decorations received by
Senators and Senate employees are deposited with the Secretary of the Senate for disposal by the Commission on
Art and Antiquities of the United
States Senate under 5 U.S.C. 7342(e)(2).
GSA is responsible for disposing of
gifts or decorations received by Mem-
§ 102–42.85 What gifts or decorations
must we report to GSA?
You must report to GSA gifts of
more than minimal value, except for
monetary gifts that have no historic or
numismatic value (see § 102–42.20), or
decorations the employee is not authorized to retain that are:
(a) Not being retained for official use
or have not been returned to the donor;
or
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§ 102–42.90
41 CFR Ch. 102 (7–1–16 Edition)
(b) Received by a Senator or a Senate
employee and not disposed of by the
Commission on Art and Antiquities of
the United States Senate.
§ 102–42.90 What is the requirement
for reporting gifts or decorations
that were retained for official use
but are no longer needed?
Non-monetary gifts or decorations
that were retained for official use must
be reported to GSA as excess property
within 30 days after termination of the
official use.
§ 102–42.95 How do we report gifts and
decorations as excess personal
property?
You must complete a Standard Form
(SF) 120, Report of Excess Personal
Property, and send it to the General
Services Administration, Utilization
and
Donation
Program
Division
(QSCA), Washington, DC 20406. Conspicuously mark the SF 120, ‘‘FOREIGN
GIFTS
AND/OR
DECORATIONS’’, and include the following information:
Entry
Description
(a) Identity of Employee.
Give the name and position of the employee.
(b) Description of Item
Give a full description of the gift or decoration, including the title
of the decoration.
(c) Identity of Foreign
Government.
Give the identity of the foreign government (if known) and the
name and position of the individual who presented the gift or
decoration.
(d) Date of Acceptance
Give the date the gift or decoration was accepted by the employee.
(e) Appraised Value .....
Give the appraised value in United States dollars of the gift or
decoration, including the cost of the appraisal. (The employing
agency must obtain a commercial appraisal before the gift is offered for sale to the employee.)
(f) Current Location of
Item.
Give the current location of the gift or decoration.
(g) Employing Agency
Contact Person.
Give the name, address, and telephone number of the accountable
official in the employing agency.
(h) Purchase Interest
or Donation Recommendation.
Indicate whether the employee wants to buy the gift, or whether
the employee wants the gift or decoration donated to an eligible
donee through GSA’s surplus donation program. Document this
interest in a letter outlining any special significance of the gift
or decoration to the proposed donee. Also provide the mailing address and telephone number of both the employee and the proposed donee.
(i) Administration .......
Give the Administration in which the gift or decoration was received (for example, Clinton Administration).
(j) Multiple Items ........
Identify each gift or decoration as a separate line item. Report
multiple gift items that make up a set (for example, a tea set, a
necklace and matching earrings) as a single line item.
[65 FR 45539, July 24, 2000, as amended at 74
FR 2396, Jan. 15, 2009]
§ 102–42.100 How can we obtain an excess gift or decoration from another
agency?
complete a Standard Form (SF) 122,
Transfer Order Excess Personal Property, or any other transfer order form
approved by GSA, for the desired
item(s) and submit the form to the
To obtain an excess gift or decoration from another agency, you would
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Federal Management Regulation
§ 102–42.130
General Services Administration, Property Management Division (FBP),
Washington, DC 20406.
§ 102–42.105 What special information
must be included on the SF 122?
Conspicuously mark the SF 122,
‘‘FOREIGN GIFTS AND/OR DECORATIONS’’, and include all information
furnished by the employing agency as
specified in § 102–42.95. Also, include on
the form the following statement: ‘‘At
such time as these items are no longer
required, they will be reported to the
General Services Administration, Property Management Division (FBP),
Washington, DC 20406, and will be identified as foreign gift items and crossreferenced to this transfer order number.’’
§ 102–42.110 How must we justify a
transfer request?
You may only request excess gifts
and decorations for public display or
other bona fide agency use and not for
the personal benefit of any individual.
GSA may require that transfer orders
be supported by justifications for the
intended display or official use of requested gifts and decorations. Jewelry
and watches that are transferred for official display must be displayed with
adequate provisions for security.
§ 102–42.115 What must we do when
the transferred gifts and decorations are no longer required for official use?
When transferred gifts and decorations are no longer required for official
use, report these gifts and decorations
to the GSA as excess property on a SF
120, including the original transfer
order number or a copy of the original
transfer order.
Subpart C—Donation of Foreign
Gifts and Decorations
§ 102–42.120 When may gifts or decorations be donated to State agencies?
If there is no Federal requirement for
the gifts or decorations, and if gifts
were not sold to the employee, GSA
may make the gifts or decorations
available for donation to State agen-
cies under this subpart and part 102–37
of this subchapter B.
[65 FR 45539, July 24, 2000, as amended at 71
FR 28778, May 18, 2006]
§ 102–42.125 How is donation of gifts
or decorations accomplished?
The State Agencies for Surplus Property (SASP) must initiate the process
on behalf of a prospective donee (e.g.,
units of State or local governments
and eligible non-profit organizations)
by:
(a) Completing a Standard Form (SF)
123, Transfer Order Surplus Personal
Property, and submitting it to General
Services
Administration,
Property
Management Division (FBP), Washington, DC 20406. Conspicuously mark
the SF 123 with the words, ‘‘FOREIGN
GIFTS AND/OR DECORATIONS.’’
(b) Attaching an original and two
copies of a letter of intent to each SF
123 submitted to GSA. An authorized
representative of the proposed donee
must sign and date the letter, setting
forth a detailed plan for use of the
property. The letter of intent must
provide the following information:
(1) Identifying the donee applicant,
including its legal name and complete
address, its status as a public agency
or as an eligible nonprofit tax-exempt
activity, and the name, title, and telephone number of its authorized representative;
(2) A description of the gift or decoration requested, including the gift’s
commercially appraised value or estimated fair market value if no commercial appraisal was performed; and
(3) Details on the planned use of the
gift or decoration, including where and
how it will be used and how it will be
safeguarded.
§ 102–42.130 Are there special requirements for the donation of gifts and
decorations?
Yes, GSA imposes special handling
and use limitations on the donation of
gifts and decorations. The SASP distribution document must contain or incorporate by reference the following:
(a) The donee must display or use the
gift or decoration in accordance with
its GSA-approved letter of intent.
(b) There must be a period of restriction which will expire after the gift or
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§ 102–42.135
41 CFR Ch. 102 (7–1–16 Edition)
decoration has been used for the purpose stated in the letter of intent for a
period of 10 years, except that GSA
may restrict the use of the gift or decoration for such other period when the
inherent character of the property justifies such action.
(c) The donee must allow the right of
access to the donee’s premises at reasonable times for inspection of the gift
or decoration by duly authorized representatives of the SASP or the U.S.
Government.
(d) During the period of restriction,
the donee must not:
(1) Sell, trade, lease, lend, bail, encumber, cannibalize or dismantle for
parts, or otherwise dispose of the property;
(2) Remove it permanently for use
outside the State;
(3) Transfer title to the gift or decoration directly or indirectly; or
(4) Do or allow anything to be done
that would contribute to the gift or
decoration being seized, attached, lost,
stolen, damaged, or destroyed.
(e) If the gift or decoration is no
longer suitable, usable, or needed by
the donee for the stated purpose of donation during the period of restriction,
the donee must promptly notify the
General Services Administration, Property Management Division (FBP),
Washington, DC 20406, through the
SASP, and upon demand by GSA, title
and right to possession of the gift or
decoration reverts to the U.S. Government. In this event, the donee must
comply with transfer or disposition instructions furnished by GSA through
the SASP, and pay the costs of transportation, handling, and reasonable insurance during transportation.
(f) The donee must comply with all
additional conditions covering the handling and use of any gift or decoration
imposed by GSA.
(g) If the donee fails to comply with
the conditions or limitations during
the period of restriction, the SASP
may demand return of the gift or decoration and, upon such demand, title
and right to possession of the gift or
decoration reverts to the U.S. Government. In this event, the donee must return the gift or decoration in accordance with instructions furnished by the
SASP, with costs of transportation,
handling, and reasonable insurance
during transportation to be paid by the
donee or as directed by the SASP.
(h) If the gift or decoration is lost,
stolen, or cannot legally be recovered
or returned for any other reason, the
donee must pay to the U.S. Government the fair market value of the gift
or decoration at the time of its loss,
theft, or at the time that it became unrecoverable as determined by GSA. If
the gift or decoration is damaged or destroyed, the SASP may require the
donee to:
(1) Return the item and pay the difference between its former fair market
value and its current fair market
value; or
(2) Pay the fair market value, as determined by GSA, of the item had it
not been damaged or destroyed.
Subpart D—Sale or Destruction of
Foreign Gifts and Decorations
§ 102–42.135 Whose approval must be
obtained before a foreign gift or
decoration is offered for public
sale?
The Secretary of State or the Secretary’s designee must approve any
sale of foreign gifts or decorations (except sale of foreign gifts to the employee, that is approved in this part).
§ 102–42.140 How is a sale of a foreign
gift or decoration to an employee
conducted?
Foreign gifts and decorations must
be offered first through negotiated
sales to the employee who has indicated an interest in purchasing the
item. The sale price must be the commercially appraised value of the gift.
Sales must be conducted and documented in accordance with part 102–38
of this subchapter B.
[68 FR 56496, Sept. 4, 2003, as amended at 71
FR 28778, May 18, 2006]
§ 102–42.145 When is public sale of a
foreign gift or decoration authorized?
A public sale is authorized if a foreign gift or decoration:
(a) Survives Federal utilization
screening;
(b) Is not purchased by the employee;
(c) Survives donation screening; and
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Federal Management Regulation
§ 102–42.155
(d) Is approved by the Secretary of
State or designee.
§ 102–42.150 What happens to proceeds
from sales?
The proceeds from the sale of foreign
gifts or decorations must be deposited
in the Treasury as miscellaneous receipts, unless otherwise authorized.
§ 102–42.155 Can foreign gifts or decorations be destroyed?
Yes, foreign gifts or decorations that
are not sold under this part may be destroyed and disposed of as scrap or for
their material content under part 102–
38 of this subchapter B.
[65 FR 45539, July 24, 2000, as amended at 71
FR 28778, May 18, 2006]
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SUBCHAPTER C—REAL PROPERTY
(j) Security.
(k) Utility services.
(l) Location of space.
PART 102–71—GENERAL
Sec.
102–71.5 What is the scope and philosophy of
the General Services Administration’s
(GSA) real property policies?
102–71.10 How are these policies organized?
102–71.15 [Reserved]
102–71.20 What definitions apply to GSA’s
real property policies?
102–71.25 Who must comply with GSA’s real
property policies?
102–71.30 How must these real property policies be implemented?
102–71.35 Are agencies allowed to deviate
from GSA’s real property policies?
AUTHORITY: 40 U.S.C. 121(c).
SOURCE: 70 FR 67786, Nov. 8, 2005, unless
otherwise noted.
§ 102–71.5 What is the scope and philosophy of the General Services Administration’s (GSA) real property
policies?
GSA’s real property policies contained in this part and parts 102–72
through 102–82 of this chapter apply to
Federal agencies, including GSA’s Public Buildings Service (PBS), operating
under, or subject to, the authorities of
the Administrator of General Services.
These policies cover the acquisition,
management, utilization, and disposal
of real property by Federal agencies
that initiate and have decision-making
authority over actions for real property services. The detailed guidance
implementing these policies is contained in separate customer service
guides.
§ 102–71.10 How are these policies organized?
GSA has divided its real property
policies into the following functional
areas:
(a) Delegation of authority.
(b) Real estate acquisition.
(c) Facility management.
(d) Real property disposal.
(e) Design and construction.
(f) Art-in-architecture.
(g) Historic preservation.
(h) Assignment and utilization of
space.
(i) Safety and environmental management.
§ 102–71.15
[Reserved]
§ 102–71.20 What definitions apply to
GSA’s real property policies?
The following definitions apply to
GSA’s real property policies:
Airport means any area of land or
water that is used, or intended for use,
for the landing and takeoff of aircraft,
and any appurtenant areas that are
used, or intended for use, for airport
buildings or other airport facilities or
rights-of-way, together with all airport
buildings and facilities located thereon.
Alteration means remodeling, improving, extending, or making other
changes to a facility, exclusive of
maintenance repairs that are preventive in nature. The term includes planning, engineering, architectural work,
and other similar actions.
Carpool means a group of two or more
people regularly using a motor vehicle
for transportation to and from work on
a continuing basis.
Commercial activities, within the
meaning of subpart D, part 102–74 of
this chapter, are activities undertaken
for the primary purpose of producing a
profit for the benefit of an individual
or organization organized for profit.
(Activities where commercial aspects
are incidental to the primary purpose
of expression of ideas or advocacy of
causes are not commercial activities
for purposes of this part.)
Cultural activities include, but are not
limited to, films, dramatics, dances,
musical presentations, and fine art exhibits, whether or not these activities
are intended to make a profit.
Decontamination means the complete
removal or destruction by flashing of
explosive powders; the neutralizing and
cleaning-out of acid and corrosive materials; the removal, destruction, or
neutralizing of toxic, hazardous or infectious substances; and the complete
removal and destruction by burning or
detonation of live ammunition from
contaminated areas and buildings.
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Federal Management Regulation
§ 102–71.20
Designated Official is the highest
ranking official of the primary occupant agency of a Federal facility, or,
alternatively, a designee selected by
mutual agreement of occupant agency
officials.
Disabled employee means an employee
who has a severe, permanent impairment that for all practical purposes
precludes the use of public transportation, or an employee who is unable to
operate a car as a result of permanent
impairment who is driven to work by
another. Priority may require certification by an agency medical unit, including the Department of Veterans
Affairs or the Public Health Service.
Disposal agency means the Executive
agency designated by the Administrator of General Services to dispose of
surplus real or personal property.
Educational activities mean activities
such as (but not limited to) the operation of schools, libraries, day care
centers, laboratories, and lecture or
demonstration facilities.
Emergency includes bombings and
bomb threats, civil disturbances, fires,
explosions, electrical failures, loss of
water pressure, chemical and gas leaks,
medical emergencies, hurricanes, tornadoes, floods, and earthquakes. The
term does not apply to civil defense
matters such as potential or actual
enemy attacks that are addressed by
the U.S. Department of Homeland Security.
Executive means a Government employee with management responsibilities who, in the judgment of the employing agency head or his/her designee, requires preferential assignment
of parking privileges.
Executive agency means an Executive
department specified in section 101 of
title 5; a military department specified
in section 102 of such title; an independent establishment as defined in
section 104(1) of such title; and a wholly owned Government corporation fully
subject to the provisions of chapter 91
of title 31.
Federal agency means any Executive
agency or any establishment in the legislative or judicial branch of the Government (except the Senate, the House
of Representatives, and the Architect
of the Capitol and any activities under
his or her direction).
Federal agency buildings manager
means the buildings manager employed
by GSA or a Federal agency that has
been delegated real property management and operation authority from
GSA.
Federal Government real property services provider means any Federal Government entity operating under, or
subject to, the authorities of the Administrator of General Services that
provides real property services to Federal agencies. This definition also includes private sector firms under contract with Federal agencies that deliver real property services to Federal
agencies. This definition excludes any
entity operating under, or subject to,
authorities other than those of the Administrator of General Services.
Flame-resistant means meeting performance standards as described by the
National Fire Protection Association
(NFPA Standard No. 701). Fabrics labeled with the Underwriters Laboratories Inc., classification marking for
flammability are deemed to be flame
resistant for purposes of this part.
Foot-candle is the illumination on a
surface one square foot in area on
which there is a uniformly distributed
flux of one lumen, or the illuminance
produced on a surface all points of
which are at a distance of one foot
from a directionally uniform point
source of one candela.
GSA means the U.S. General Services
Administration, acting by or through
the Administrator of General Services,
or a designated official to whom functions under this part have been delegated by the Administrator of General
Services.
Highest and best use means the most
likely use to which a property can be
put, which will produce the highest
monetary return from the property,
promote its maximum value, or serve a
public or institutional purpose. The
highest and best use determination
must be based on the property’s economic potential, qualitative values (social and environmental) inherent in the
property itself, and other utilization
factors controlling or directly affecting
land use (e.g., zoning, physical characteristics, private and public uses in the
vicinity, neighboring improvements,
utility services, access, roads, location,
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§ 102–71.20
41 CFR Ch. 102 (7–1–16 Edition)
and environmental and historical considerations). Projected highest and best
use should not be remote, speculative,
or conjectural.
Indefinite quantity contract (commonly referred to as term contract) provides for the furnishing of an indefinite
quantity, within stated limits, of specific property or services during a specified contract period, with deliveries to
be scheduled by the timely placement
of orders with the contractor by activities designated either specifically or by
class.
Industrial property means any real
property and related personal property
that has been used or that is suitable
to be used for manufacturing, fabricating, or processing of products; mining operations; construction or repair
of ships and other waterborne carriers;
power transmission facilities; railroad
facilities; and pipeline facilities for
transporting petroleum or gas.
Landholding agency means the Federal agency that has accountability for
the property involved. For the purposes
of
this
definition,
accountability
means that the Federal agency reports
the real property on its financial statements and inventory records.
Landing area means any land or combination of water and land, together
with improvements thereon and necessary operational equipment used in
connection therewith, which is used for
landing, takeoff, and parking of aircraft. The term includes, but is not
limited to, runways, strips, taxiways,
and parking aprons.
Life cycle cost is the total cost of owning, operating, and maintaining a
building over its useful life, including
its fuel and energy costs, determined
on the basis of a systematic evaluation
and comparison of alternative building
systems; except that in the case of
leased buildings, the life cycle cost
shall be calculated over the effective
remaining term of the lease.
Limited combustible means rigid materials or assemblies that have fire hazard ratings not exceeding 25 for flame
spread and 150 for smoke development
when tested in accordance with the
American Society for Testing and Materials, Test E 84, Surface Burning
Characteristics of Building Materials.
Maintenance, for the purposes of part
102–75, entitled ‘‘Real Property Disposal,’’ of this chapter, means the upkeep of property only to the extent
necessary to offset serious deterioration; also such operation of utilities,
including water supply and sewerage
systems, heating, plumbing, and airconditioning equipment, as may be
necessary for fire protection, the needs
of interim tenants, and personnel employed at the site, and the requirements for preserving certain types of
equipment. For the purposes of part
102–74, entitled ‘‘Facility Management,’’ of this chapter, maintenance
means preservation by inspection, adjustment, lubrication, cleaning, and
the making of minor repairs. Ordinary
maintenance means routine recurring
work that is incidental to everyday operations; preventive maintenance means
work programmed at scheduled intervals.
Management means the safeguarding
of the Government’s interest in property, in an efficient and economical
manner consistent with the best business practices.
Nationally recognized standards encompasses any standard or modification thereof that—
(1) Has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby those interested and
affected by it have reached substantial
agreement on its adoption; or
(2) Was formulated through consultation by appropriate Federal agencies in
a manner that afforded an opportunity
for diverse views to be considered.
No commercial value means real property, including related personal property, which has no reasonable prospect
of producing any disposal revenues.
Nonprofit organization means an organization identified in 26 U.S.C. 501(c).
Normally
furnished
commercially
means consistent with the level of
services provided by a commercial
building operator for space of comparable quality and housing tenants
with comparable requirements. Service
levels are based on the effort required
to service space for a five-day week,
one eight-hour shift schedule.
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Federal Management Regulation
§ 102–71.20
Occupancy Emergency Organization
means the emergency response organization comprised of employees of Federal agencies designated to perform the
requirements established by the Occupant Emergency Plan.
Occupant agency means an organization that is assigned space in a facility
under GSA’s custody and control.
Occupant Emergency Plan means procedures developed to protect life and
property in a specific federally occupied space under stipulated emergency
conditions.
Occupant Emergency Program means a
short-term emergency response program. It establishes procedures for
safeguarding lives and property during
emergencies in particular facilities.
Postal vehicle means a Governmentowned vehicle used for the transportation of mail, or a privately owned vehicle used under contract with the U.S.
Postal Service for the transportation
of mail.
Protection means the provisions of
adequate measures for prevention and
extinguishment of fires, special inspections to determine and eliminate fire
and other hazards, and necessary
guards to protect property against
thievery, vandalism, and unauthorized
entry.
Public area means any area of a building under the control and custody of
GSA that is ordinarily open to members of the public, including lobbies,
courtyards,
auditoriums,
meeting
rooms, and other such areas not assigned to a lessee or occupant agency.
Public body means any State of the
United States, the District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, or any political subdivision, agency, or instrumentality of
the foregoing.
Public building means:
(1) Any building that is suitable for
office and/or storage space for the use
of one or more Federal agencies or
mixed-ownership corporations, such as
Federal office buildings, post offices,
customhouses, courthouses, border inspection facilities, warehouses, and any
such building designated by the President. It also includes buildings of this
sort that are acquired by the Federal
Government under the Administrator’s
installment-purchase, lease-purchase,
and purchase-contract authorities.
(2) Public building does not include
buildings:
(i) On the public domain.
(ii) In foreign countries.
(iii) On Indian and native Eskimo
properties held in trust by the United
States.
(iv) On lands used in connection with
Federal programs for agricultural, recreational, and conservation purposes.
(v) On or used in connection with
river, harbor, flood control, reclamation or power projects, or for chemical
manufacturing
or
development
projects, or for nuclear production, research, or development projects.
(vi) On or used in connection with
housing and residential projects.
(vii) On military installations.
(viii) On Department of Veterans Affairs installations used for hospital or
domiciliary purposes.
(ix) Excluded by the President.
Real property means:
(1) Any interest in land, together
with the improvements, structures,
and fixtures located thereon (including
prefabricated movable structures, such
as Butler-type storage warehouses and
Quonset huts, and house trailers with
or without undercarriages), and appurtenances thereto, under the control of
any Federal agency, except—
(i) The public domain;
(ii) Lands reserved or dedicated for
national forest or national park purposes;
(iii) Minerals in lands or portions of
lands withdrawn or reserved from the
public domain that the Secretary of
the Interior determines are suitable for
disposition under the public land mining and mineral leasing laws;
(iv) Lands withdrawn or reserved
from the public domain but not including lands or portions of lands so withdrawn or reserved that the Secretary of
the Interior, with the concurrence of
the Administrator of General Services,
determines are not suitable for return
to the public domain for disposition
under the general public land laws because such lands are substantially
changed in character by improvements
or otherwise; and
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§ 102–71.20
41 CFR Ch. 102 (7–1–16 Edition)
(v) Crops when designated by such
agency for disposition by severance and
removal from the land.
(2) Improvements of any kind, structures, and fixtures under the control of
any Federal agency when designated by
such agency for disposition without the
underlying land (including such as may
be located on the public domain, on
lands withdrawn or reserved from the
public domain, on lands reserved or
dedicated for national forest or national park purposes, or on lands that
are not owned by the United States)
excluding, however, prefabricated movable structures, such as Butler-type
storage warehouses and Quonset huts,
and house trailers (with or without
undercarriages).
(3) Standing timber and embedded
gravel, sand, or stone under the control
of any Federal agency, whether designated by such agency for disposition
with the land or by severance and removal from the land, excluding timber
felled, and gravel, sand, or stone excavated by or for the Government prior
to disposition.
Recognized labor organization means a
labor organization recognized under
title VII of the Civil Service Reform
Act of 1978 (Pub. L. 95–454), as amended,
governing labor-management relations.
Recreational activities include, but are
not limited to, the operations of gymnasiums and related facilities.
Regional Officer, within the meaning
of part 102–74, subpart D of this chapter, means the Federal official designated to supervise the implementation of the occasional use provisions of
40 U.S.C. 581(h)(2). The Federal official
may be an employee of GSA or a Federal agency that has delegated authority from GSA to supervise the implementation of the occasional use provisions of 40 U.S.C. 581(h)(2).
Related personal property means any
personal property—
(1) That is an integral part of real
property or is related to, designed for,
or specially adapted to the functional
or productive capacity of the real property and the removal of which would
significantly diminish the economic
value of the real property (normally
common use items, including but not
limited to general-purpose furniture,
utensils, office machines, office sup-
plies, or general-purpose vehicles, are
not considered to be related personal
property); or
(2) That is determined by the Administrator of General Services to be related to the real property.
Repairs means those additions or
changes that are necessary for the protection and maintenance of property to
deter or prevent excessive or rapid deterioration or obsolescence, and to restore property damaged by storm,
flood, fire, accident, or earthquake.
Ridesharing means the sharing of the
commute to and from work by two or
more people, on a continuing basis, regardless of their relationship to each
other, in any mode of transportation,
including, but not limited to, carpools,
vanpools, buspools, and mass transit.
State means the fifty States, political
subdivisions thereof, the District of Columbia, the Commonwealths of Puerto
Rico and Guam, and the territories and
possessions of the United States.
Unit price agreement provides for the
furnishing of an indefinite quantity,
within stated limits, of specific property or services at a specified price,
during a specified contract period, with
deliveries to be scheduled by the timely placement of orders upon the lessor
by activities designated either specifically or by class.
Unusual hours means work hours that
are frequently required to be varied
and do not coincide with any regular
work schedule. This category includes
time worked by individuals who regularly or frequently work significantly
more than 8 hours per day. Unusual
hours does not include time worked by
shift workers, by those on alternate
work schedules, and by those granted
exceptions to the normal work schedule (e.g., flex-time).
Upon approval from GSA means when
an agency either has a delegation of
authority document from the Administrator of General Services or written
approval from the Administrator or
his/her designee before proceeding with
a specified action.
Vanpool means a group of at least 8
persons using a passenger van or a
commuter bus designed to carry 10 or
more passengers. Such a vehicle must
be used for transportation to and from
work in a single daily round trip.
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Federal Management Regulation
Pt. 102–72
Zonal allocations means the allocation of parking spaces on the basis of
zones established by GSA in conjunction with occupant agencies. In metropolitan areas where this method is
used, all agencies located in a designated zone will compete for available
parking in accordance with instructions issued by GSA. In establishing
this procedure, GSA will consult with
all affected agencies.
§ 102–71.25 Who must comply
GSA’s real property policies?
with
Federal agencies operating under, or
subject to, the authorities of the Administrator of General Services must
comply with these policies.
§ 102–71.30 How must these real property policies be implemented?
Each Federal Government real property services provider must provide
services that are in accord with the
policies presented in parts 102–71
through 102–82 of this chapter. Also,
Federal agencies must make the provisions of any contract with private sector real property services providers
conform to the policies in parts 102–71
through 102–82 of this chapter.
§ 102–71.35 Are agencies allowed to deviate from GSA’s real property policies?
Yes, see §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of these real
property policies.
PART 102–72—DELEGATION OF
AUTHORITY
Subpart A—General Provisions
Sec.
102–72.5 What is the scope of this part?
102–72.10 What basic policy governs delegation of authority to Federal agencies?
Subpart B—Delegation of Authority
102–72.15 What criteria must a delegation
meet?
102–72.20 Are there limitations on this delegation of authority?
102–72.25 What are the different types of delegations of authority?
102–72.30 What are the different types of delegations related to real estate leasing?
102–72.35 What are the requirements for obtaining an Administrative Contracting
Officer (ACO) delegation from GSA?
102–72.40 What are facility management delegations?
102–72.45 What are the different types of delegations related to facility management?
102–72.50 What are Executive agencies’ responsibilities under a delegation of real
property management and operation authority from GSA?
102–72.55 What are the requirements for obtaining a delegation of real property
management and operation authority
from GSA?
102–72.60 What are Executive agencies’ responsibilities under a delegation of individual repair and alteration project authority from GSA?
102–72.65 What are the requirements for obtaining a delegation of individual repair
and alteration project authority from
GSA?
102–72.66 Do Executive agencies have a delegation of authority to perform ancillary
repair and alteration projects in federally owned buildings under the jurisdiction, custody or control of GSA?
102–72.67 What work is covered under an ancillary repair and alteration delegation?
102–72.68 What preconditions must be satisfied before an Executive agency may exercise the delegated authority to perform
an individual ancillary repair and alteration project?
102–72.69 What additional terms and conditions apply to an Executive agencies’ delegation of ancillary repair and alteration
authority?
102–72.70 What are Executive agencies’ responsibilities under a delegation of lease
management authority (contracting officer representative authority) from GSA?
102–72.75 What are the requirements for obtaining a delegation of lease management authority (contracting officer representative authority) from GSA?
102–72.80 What are Executive agencies’ responsibilities under a disposal of real
property delegation of authority from
GSA?
102–72.85 What are the requirements for obtaining a disposal of real property delegation of authority from GSA?
102–72.90 What are Executive agencies’ responsibilities under a security delegation
of authority from GSA?
102–72.95 What are the requirements for obtaining a security delegation of authority from GSA?
102–72.100 What are Executive agencies’ responsibilities under a utility service delegation of authority from GSA?
102–72.105 What are the requirements for obtaining a utility services delegation of
authority from GSA?
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31
§ 102–72.5
41 CFR Ch. 102 (7–1–16 Edition)
AUTHORITY: 40 U.S.C. 121(c), (d) and (e).
SOURCE: 70 FR 67789, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–72.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–72.10 What basic policy governs
delegation of authority to Federal
agencies?
The Administrator of General Services may delegate and may authorize
successive redelegations of the real
property authority vested in the Administrator to any Federal agency.
Subpart B—Delegation of
Authority
§ 102–72.15 What criteria must a delegation meet?
Delegations must be in the Government’s best interest, which means that
GSA must evaluate such factors as
whether a delegation would be cost effective for the Government in the delivery of space.
§ 102–72.20 Are there limitations on
this delegation of authority?
Federal agencies must exercise delegated real property authority and functions according to the parameters described in each delegation of authority
document, and Federal agencies may
only exercise the authority of the Administrator that is specifically provided within the delegation of authority document.
§ 102–72.25 What are the different
types of delegations of authority?
The basic types of GSA Delegations
of Authority are—
(a) Delegation of Leasing Authority;
(b) Delegation of Real Property Management and Operation Authority;
(c) Delegation of Individual Repair
and Alteration Project Authority;
(d) Delegation of Lease Management
Authority (Contracting Office Representative Authority);
(e) Delegation of Administrative Contracting Officer (ACO) Authority;
(f) Delegation of Real Property Disposal Authority;
(g) Security Delegation of Authority;
and
(h) Utility Services Delegation of Authority.
§ 102–72.30 What are the different
types of delegations related to real
estate leasing?
Delegations related to real estate
leasing include the following:
(a) Categorical space delegations and
agency special purpose space delegations (see § 102–73.140 of this title).
(b) The Administrator of General
Services has issued a standing delegation of authority (under a program
known as ‘‘Can’t Beat GSA Leasing’’)
to the heads of all Federal agencies to
accomplish all functions relating to
leasing of up to 19,999 rentable square
feet of general purpose space for terms
of up to 20 years and below prospectus
level requirements, regardless of geographic location. This delegation includes some conditions Federal agencies must meet when conducting the
procurement themselves, such as training in lease contracting and reporting
data to GSA.
(c) An ACO delegation, in addition to
lease management authority, provides
Federal agencies with limited contracting officer authority to perform
such duties as paying and withholding
lessor rent and modifying lease provisions that do not change the lease term
length or the amount of space under
lease.
[70 FR 67789, Nov. 8, 2005, as amended at 73
FR 2167, Jan. 14, 2008]
§ 102–72.35 What are the requirements
for obtaining an Administrative
Contracting Officer (ACO) delegation from GSA?
When Federal agencies do not exercise the delegation of authority for
general purpose space mentioned in
§ 102–72.30(b) of this part, GSA may consider granting an ACO delegation when
Federal agencies—
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Federal Management Regulation
§ 102–72.67
(a) Occupy at least 90 percent of the
building’s GSA-controlled space, or
Federal agencies have the written concurrence of 100 percent of rent-paying
occupants covered under the lease; and
(b) Have the technical capability to
perform the leasing function.
§ 102–72.40 What are facility management delegations?
Facility management delegations
give Executive agencies authority to
operate and manage buildings day to
day, to perform individual repair and
alteration projects, and manage real
property leases.
§ 102–72.45 What are the different
types of delegations related to facility management?
The principal types of delegations involved in the management of facilities
are—
(a) Real property management and
operation authority;
(b) Individual repair and alteration
project authority; and
(c) Lease management authority
(contracting officer representative authority).
§ 102–72.50 What are Executive agencies’ responsibilities under a delegation of real property management
and operation authority from GSA?
With this delegation, Executive agencies have the authority to operate and
manage buildings day to day. Delegated functions may include building
operations, maintenance, recurring repairs, minor alterations, historic preservation, concessions, and energy management of specified buildings subject
to the conditions in the delegation document.
§ 102–72.55 What are the requirements
for obtaining a delegation of real
property management and operation authority from GSA?
An Executive agency may be delegated real property management and
operation authority when it—
(a) Occupies at least 90 percent of the
space in the Government-controlled facility, or has the concurrence of 100
percent of the rent-paying occupants to
perform these functions; and
(b) Demonstrates that it can perform
the delegated real property management and operation responsibilities.
§ 102–72.60 What are Executive agencies’ responsibilities under a delegation of individual repair and alteration project authority from
GSA?
With this delegation of authority,
Executive agencies have the responsibility to perform individual repair and
alterations projects. Executive agencies are delegated repair and alterations authority for reimbursable
space alteration projects up to the simplified acquisition threshold, as specified in the GSA Customer Guide to
Real Property.
§ 102–72.65 What are the requirements
for obtaining a delegation of individual repair and alteration project
authority from GSA?
Executive agencies may be delegated
repair and alterations authority for
other individual alteration projects
when they demonstrate the ability to
perform the delegated repair and alterations responsibilities and when such a
delegation promotes efficiency and
economy.
§ 102–72.66 Do
Executive
agencies
have a delegation of authority to
perform ancillary repair and alteration projects in federally owned
buildings under the jurisdiction,
custody or control of GSA?
Yes. Executive agencies, as defined in
§ 102–71.20, are hereby delegated the authority to perform ancillary repair and
alteration work in federally owned
buildings under the jurisdiction, custody or control of GSA in accordance
with the terms, conditions and limitations set forth in §§ 102–72.67 through
102–72.69.
[74 FR 12273, Mar. 24, 2009]
§ 102–72.67 What work is covered
under an ancillary repair and alteration delegation?
(a) For purposes of this delegation,
ancillary repair and alteration projects
are those—
(1) Where an Executive agency has
placed an order from a vendor under a
GSA Multiple Award Schedule and ancillary repair and alteration services
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§ 102–72.68
41 CFR Ch. 102 (7–1–16 Edition)
also are available from that same vendor as a Special Item Number (SIN);
(2) Where the ancillary repair and alteration work to be performed is associated solely with the repair, alteration, delivery, or installation of products or services also purchased under
the same GSA Multiple Award Schedule;
(3) That are routine and non-complex
in nature, such as routine painting or
carpeting, simple hanging of drywall,
basic electrical or plumbing work,
landscaping, and similar non-complex
services; and
(4) That are necessary to be performed to use, execute or implement
successfully the products or services
purchased from the GSA Multiple
Award Schedule.
(b) Ancillary repair and alteration
projects do not include—
(1) Major or new construction of
buildings, roads, parking lots, and
other facilities;
(2) Complex repair and alteration of
entire facilities or significant portions
of facilities; or
(3) Architectural and engineering
services procured pursuant to 40 U.S.C.
1101–1104.
[74 FR 12273, Mar. 24, 2009]
§ 102–72.68 What preconditions must
be satisfied before an Executive
agency may exercise the delegated
authority to perform an individual
ancillary repair and alteration
project?
The preconditions that must be satisfied before an Executive agency may
perform ancillary repair and alteration
work are as follows:
(a) The ordering agency must order
both the products or services and the
ancillary repair and alteration services
under the same GSA Multiple Award
Schedule from the same vendor;
(b) The value of the ancillary repair
and alteration work must be less than
or equal to $100,000 (for work estimated
to exceed $100,000, the Executive agency must contact the GSA Assistant Regional Administrator, Public Buildings
Service, in the region where the work
is to be performed to request a specific
delegation);
(c) All terms and conditions applicable to the acquisition of ancillary re-
pair and alteration work as required by
the GSA Multiple Award Schedule ordering procedures must be satisfied;
(d) The ancillary repair and alteration work must not be in a facility
leased by GSA or in any other leased
facility acquired under a lease delegation from GSA; and
(e) As soon as reasonably practicable,
the Executive agency must provide the
building manager with a detailed scope
of work, including cost estimates, and
schedule for the project, and such other
information as may be reasonably requested by the building manager, so
the building manager can determine
whether or not the proposed work is
reasonably expected to have an adverse
effect on the operation and management of the building, the building’s
structural,
mechanical,
electrical,
plumbing, or heating and air conditioning systems, the building’s aesthetic or historic features, or the space
or property of any other tenant in the
building. The Executive agency must
obtain written approval from the building manager prior to placing an order
for any ancillary repair and alteration
work.
[74 FR 12273, Mar. 24, 2009]
§ 102–72.69 What additional terms and
conditions apply to an Executive
agencies’ delegation of ancillary repair and alteration authority?
(a) Before commencing any ancillary
repair and alteration work, the Executive agency shall deliver, or cause its
contractor to deliver, to the building
manager evidence that the contractor
has obtained at least $5,000,000 comprehensive general public liability and
property damage insurance policies to
cover claims arising from or relating
to the contractor’s operations that
cause damage to persons or property;
such insurance shall name the United
States as an additional insured.
(b) The Executive agency shall agree
that GSA has no responsibility or liability, either directly or indirectly,
for any contractual claims or disputes
that arise out of or relate to the performance of ancillary repair and alteration work, except to the extent such
claim or dispute arises out of or relates
to the wrongful acts or negligence of
GSA’s agents or employees.
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Federal Management Regulation
§ 102–72.85
(c) The Executive agency shall agree
to administer and defend any claims
and actions, and shall be responsible
for the payment of any judgments rendered or settlements agreed to, in connection with contract claims or other
causes of action arising out of or relating to the performance of the ancillary
repair and alteration work.
(d) For buildings under GSA’s custody and control, GSA shall have the
right, but not the obligation, to review
the work from time to time to ascertain that it is being performed in accordance with the approved project requirements, schedules, plans, drawings,
specifications, and other related construction documents. The Executive
agency shall promptly correct, or cause
to be corrected, any non-conforming
work or property damage identified by
GSA, including damage to the space or
property of any other tenant in the
building, at no cost or expense to GSA.
(e) The Executive agency shall remain liable and financially responsible
to GSA for any and all personal or
property damage caused, in whole or in
part, by the acts or omissions of the
Executive agency, its employees,
agents, and contractors.
(f) If the cost or expense to GSA to
operate the facility is increased as a result of the ancillary repair and alteration project, the Executive agency
shall be responsible for any such costs
or expenses.
(g) Disputes between the Executive
agency and GSA arising out of the ancillary repair and alteration work will,
to the maximum extent practicable, be
resolved informally at the working
level. In the event a dispute cannot be
resolved informally, the matter shall
be referred to GSA’s Public Buildings
Service. The Executive agency agrees
that, in the event GSA’s Public Buildings Service and the Executive agency
fail to resolve the dispute, they shall
refer it for resolution to the Administrator of General Services, whose decision shall be binding.
[74 FR 12273, Mar. 24, 2009]
§ 102–72.70 What are Executive agencies’ responsibilities under a delegation of lease management authority (contracting officer representative authority) from GSA?
When an Executive agency does not
exercise the delegation of authority
mentioned in § 102–72.30(b) to lease general purpose space itself, it may be delegated, upon request, lease management authority to manage the administration of one or more lease contracts
awarded by GSA.
§ 102–72.75 What are the requirements
for obtaining a delegation of lease
management authority (contracting
officer representative authority)
from GSA?
An Executive agency may be delegated lease management authority
when it—
(a) Occupies at least 90 percent of the
building’s GSA-controlled space or has
the written concurrence of 100 percent
of rent-paying occupants covered under
the lease to perform this function; and
(b) Demonstrates the ability to perform the delegated lease management
responsibilities.
§ 102–72.80 What are Executive agencies’ responsibilities under a disposal of real property delegation of
authority from GSA?
With this delegation, Executive agencies have the authority to utilize and
dispose of excess or surplus real and related personal property and to grant
approvals and make determinations,
subject to the conditions in the delegation document.
§ 102–72.85 What are the requirements
for obtaining a disposal of real
property delegation of authority
from GSA?
While disposal delegations to Executive agencies are infrequent, GSA may
delegate authority to them based on
situations involving certain low-value
properties and when they can demonstrate that they have the technical
expertise to perform the disposition
functions. GSA may grant special delegations of authority to Executive agencies for the utilization and disposal of
certain real property through the procedures set forth in part 102–75, subpart
F of this chapter.
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§ 102–72.90
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–72.90 What are Executive agencies’ responsibilities under a security delegation of authority from
GSA?
Law enforcement and related security functions were transferred to the
Department of Homeland Security
upon its establishment in 2002. The
Homeland Security Act authorizes the
Secretary of Homeland Security, in
consultation with the Administrator of
General Services, to issue regulations
necessary for the protection and administration of property owned or occupied by the Federal Government and
persons on the property. Notwithstanding the foregoing, GSA retained
all powers, functions and authorities
necessary for the operation, maintenance, and protection of buildings and
grounds owned and occupied by the
Federal Government and under the jurisdiction, custody, or control of GSA.
§ 102–72.95 What are the requirements
for obtaining a security delegation
of authority from GSA?
An Executive agency may request a
security delegation from GSA by submitting a written request with the detailed basis for the requested delegation to the Assistant Regional Administrator, PBS, in the region where the
building is located. A request for multiple buildings in multiple regions
should be directed to the Commissioner
of PBS. The delegation may be granted
where the requesting agency demonstrates a compelling need for the
delegated authority and the delegation
is not inconsistent with the authorities
of any other law enforcement agency.
§ 102–72.100 What are Executive agencies’ responsibilities under a utility
service delegation of authority from
GSA?
With this delegation, Executive agencies have the authority to negotiate
and execute utility services contracts
for periods over one year but not exceeding ten years for their use and benefit. Agencies also have the authority
to intervene in utility rate proceedings
to represent the consumer interests of
the Federal Government, if so provided
in the delegation of authority.
§ 102–72.105 What are the requirements for obtaining a utility services delegation of authority from
GSA?
Executive agencies may be delegated
utility services authority when they
have the technical expertise and adequate staffing.
PART 102–73—REAL ESTATE
ACQUISITION
Subpart A—General Provisions
Sec.
102–73.5 What is the scope of this part?
102–73.10 What is the basic real estate acquisition policy?
102–73.15 What real estate acquisition and
related services may Federal agencies
provide?
UNITED STATES POSTAL SERVICE-CONTROLLED
SPACE
102–73.20 Are Federal agencies required to
give priority consideration to space in
buildings under the custody and control
of the United States Postal Service in
fulfilling Federal agency space needs?
LOCATING FEDERAL FACILITIES
102–73.25 What policies must Executive
agencies comply with in locating Federal
facilities?
HISTORIC PRESERVATION
102–73.30 What historic preservation provisions must Federal agencies comply with
prior to acquiring, constructing, or leasing space?
PROSPECTUS REQUIREMENTS
102–73.35 Is a prospectus required for all acquisition, construction, or alteration
projects?
102–73.40 What happens if the dollar value of
the project exceeds the prospectus
threshold?
Subpart B—Acquisition by Lease
102–73.45 When may Federal agencies consider leases of privately owned land and
buildings to satisfy their space needs?
102–73.50 Are Federal agencies that possess
independent statutory authority to acquire leased space subject to requirements of this part?
102–73.55 On what basis must Federal agencies acquire leases?
102–73.60 With whom may Federal agencies
enter into lease agreements?
102–73.65 Are there any limitations on leasing certain types of space?
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Pt. 102–73
102–73.70 Are Executive agencies required to
acquire leased space by negotiation?
102–73.75 What functions must Federal agencies perform with regard to leasing building space?
102–73.80 Who is authorized to contact lessors, offerors, or potential offerors concerning space leased or to be leased?
102–73.85 Can agencies with independent
statutory authority to lease space have
GSA perform the leasing functions?
102–73.90 What contingent fee policy must
Federal agencies apply to the acquisition
of real property by lease?
102–73.95 How are Federal agencies required
to assist GSA?
COMPETITION IN CONTRACTING ACT OF 1984
102–73.100 Is the Competition in Contracting
Act of 1984, as amended (CICA), applicable to lease acquisition?
NATIONAL ENVIRONMENTAL POLICY ACT OF
1969 (NEPA)
102–73.105 What policies must Federal agencies follow to implement the requirements of NEPA when acquiring real
property by lease?
LEASE CONSTRUCTION
102–73.110 What rules must Executive agencies follow when acquiring leasehold interests in buildings constructed for Federal Government use?
PRICE PREFERENCE FOR HISTORIC PROPERTIES
102–73.115 Must Federal agencies offer a
price preference to space in historic
properties when acquiring leased space?
102–73.120 How much of a price preference
must Federal agencies give when acquiring leased space using the lowest price
technically acceptable source selection
process?
102–73.125 How much of a price preference
must Federal agencies give when acquiring leased space using the best value
tradeoff source selection process?
LEASES WITH PURCHASE OPTIONS
102–73.130 When may Federal agencies consider acquiring leases with purchase options?
CATEGORICAL SPACE DELEGATIONS
102–73.145 What is a categorical space delegation?
102–73.150 What is the policy for categorical
space delegations?
102–73.155 What types of space can Federal
agencies acquire with a categorical space
delegation?
SPECIAL PURPOSE SPACE DELEGATIONS
102–73.160 What is an agency special purpose
space delegation?
102–73.165 What is the policy for agency special purpose space delegations?
102–73.170 What types of special purpose
space may the Department of Agriculture lease?
102–73.175 What types of special purpose
space may the Department of Commerce
lease?
102–73.180 What types of special purpose
space may the Department of Defense
lease?
102–73.185 What types of special purpose
space may the Department of Energy
lease?
102–73.190 What types of special purpose
space may the Federal Communications
Commission lease?
102–73.195 What types of special purpose
space may the Department of Health and
Human Services lease?
102–73.196 What types of special purpose
space may the Department of Homeland
Security lease?
102–73.200 What types of special purpose
space may the Department of the Interior lease?
102–73.205 What types of special purpose
space may the Department of Justice
lease?
102–73.210 What types of special purpose
space may the Office of Thrift Supervision lease?
102–73.215 What types of special purpose
space may the Department of Transportation lease?
102–73.220 What types of special purpose
space may the Department of the Treasury lease?
102–73.225 What types of special purpose
space may the Department of Veterans
Affairs lease?
LIMITATIONS ON THE USE OF DELEGATED
AUTHORITY
SCORING RULES
102–73.135 What scoring rules must Federal
agencies follow when considering leases
and leases with purchase options?
DELEGATIONS OF LEASING AUTHORITY
102–73.140 When may agencies that do not
possess independent leasing authority
lease space?
102–73.230 When must Federal agencies submit a prospectus to lease real property?
102–73.235 What is the maximum lease term
that a Federal agency may agree to when
it has been delegated lease acquisition
authority from GSA?
102–73.240 What policy must Federal agencies follow to acquire official parking
spaces?
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§ 102–73.5
41 CFR Ch. 102 (7–1–16 Edition)
Subpart C—Acquisition by Purchase or
Condemnation
Subpart A—General Provisions
§ 102–73.5
part?
BUILDINGS
What is the scope of this
102–73.245 When may Federal agencies consider purchase of buildings?
102–73.250 Are agencies required to adhere
to the policies for locating Federal facilities when purchasing buildings?
102–73.255 What factors must Executive
agencies consider when purchasing sites?
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
LAND
§ 102–73.10 What is the basic real estate acquisition policy?
102–73.260 What land acquisition policy
must Federal agencies follow?
102–73.265 What actions must Federal agencies take to facilitate land acquisition?
JUST COMPENSATION
102–73.270 Are Federal agencies required to
provide the owner with a written statement of the amount established as just
compensation?
102–73.275 What specific information must
be included in the summary statement
for the owner that explains the basis for
just compensation?
102–73.280 Where can Federal agencies find
guidance on how to appraise the value of
properties being acquired by the Federal
Government?
102–73.285 [Reserved]
102–73.290 Are there any prohibitions when a
Federal agency pays ‘‘just compensation’’ to a tenant?
When seeking to acquire space, Federal agencies should first seek space in
Government-owned and Governmentleased buildings. If suitable Government-controlled space is unavailable,
Federal agencies must acquire real estate and related services in an efficient
and cost effective manner.
§ 102–73.15 What real estate acquisition and related services may Federal agencies provide?
Federal agencies, upon approval from
GSA, may provide real estate acquisition and related services, including
leasing (with or without purchase options), building and/or site purchase,
condemnation, and relocation assistance. For information on the design
and construction of Federal facilities,
see part 102–76 of this chapter.
EXPENSES INCIDENTAL TO PROPERTY
TRANSFER
102–73.295 What property transfer expenses
must Federal agencies cover when acquiring real property?
LITIGATION EXPENSES
102–73.300 Are Federal agencies required to
pay for litigation expenses incurred by a
property owner because of a condemnation proceeding?
RELOCATION ASSISTANCE POLICY
102–73.305 What relocation assistance policy
must Federal agencies follow?
AUTHORITY: 40 U.S.C. 121(c); Sec. 3(c), Reorganization Plan No. 18 of 1950 (40 U.S.C. 301
note); Sec. 1–201(b), E.O. 12072, 43 FR 36869, 3
CFR, 1978 Comp., p. 213.
SOURCE: 70 FR 67791, Nov. 8, 2005, unless
otherwise noted.
UNITED STATES POSTAL SERVICECONTROLLED SPACE
§ 102–73.20 Are Federal agencies required to give priority consideration to space in buildings under
the custody and control of the
United States Postal Service in fulfilling Federal agency space needs?
Yes, after considering the availability of GSA-controlled space and determining that no such space is available to meet its needs, Federal agencies must extend priority consideration
to available space in buildings under
the custody and control of the United
States Postal Service (USPS) in fulfilling Federal agency space needs, as
specified in the ‘‘Agreement Between
General Services Administration and
the United States Postal Service Covering Real and Personal Property Relationships and Associated Services,’’
dated July 1985.
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Federal Management Regulation
§ 102–73.55
LOCATING FEDERAL FACILITIES
§ 102–73.25 What policies must Executive agencies comply with in locating Federal facilities?
Executive agencies must comply with
the location policies in this part and
part 102–83 of this chapter.
HISTORIC PRESERVATION
§ 102–73.30 What historic preservation
provisions must Federal agencies
comply with prior to acquiring,
constructing, or leasing space?
Prior to acquiring, constructing, or
leasing space, Federal agencies must
comply with the provisions of section
110(a) of the National Historic Preservation Act of 1966, as amended (16
U.S.C. 470h–2(a)), regarding the use of
historic properties. Federal agencies
can find guidance on protecting, enhancing, and preserving historic and
cultural property in part 102–78 of this
chapter.
PROSPECTUS REQUIREMENTS
§ 102–73.35 Is a prospectus required
for all acquisition, construction, or
alteration projects?
No, a prospectus is not required if the
dollar value of a project does not exceed the prospectus threshold. 40 U.S.C.
3307 establishes a prospectus threshold,
applicable to Federal agencies operating under, or subject to, the authorities of the Administrator of General
Services, for the construction, alteration, purchase, and acquisition of any
building to be used as a public building,
and establishes a prospectus threshold
to lease any space for use for public
purposes. The current prospectus
threshold value for each fiscal year can
be accessed by entering GSA’s Web site
at http://www.gsa.gov and then inserting
‘‘prospectus thresholds’’ in the search
mechanism in the upper right-hand
corner of the page.
§ 102–73.40 What happens if the dollar
value of the project exceeds the
prospectus threshold?
Projects require approval by the Senate and the House of Representatives if
the dollar value of a project exceeds
the prospectus threshold. To obtain
this approval, the Administrator of
General Services will transmit the proposed prospectuses to Congress for consideration by the Senate and the House
of Representatives. Furthermore, as indicated in § 102–72.30(b), the general
purpose lease delegation authority is
restricted to below the prospectus
threshold, and therefore, GSA must
conduct all lease acquisitions over the
threshold.
Subpart B—Acquisition by Lease
§ 102–73.45 When may Federal agencies consider leases of privately
owned land and buildings to satisfy
their space needs?
Federal agencies may consider leases
of privately owned land and buildings
only when needs cannot be met satisfactorily in Government-controlled
space and one or more of the following
conditions exist:
(a) Leasing is more advantageous to
the Government than constructing a
new building, or more advantageous
than altering an existing Federal building.
(b) New construction or alteration is
unwarranted because demand for space
in the community is insufficient, or is
indefinite in scope or duration.
(c) Federal agencies cannot provide
for the completion of a new building
within a reasonable time.
§ 102–73.50 Are Federal agencies that
possess independent statutory authority to acquire leased space subject to requirements of this part?
No, Federal agencies possessing independent statutory authority to acquire
leased space are not subject to GSA authority and, therefore, may not be subject to the requirements of this part.
However, lease prospectus approval requirements of 40 U.S.C. Section 3307
may still apply appropriations to lease
of space for public purposes under an
agency’s independent leasing authority.
§ 102–73.55 On what basis must Federal agencies acquire leases?
Federal agencies must acquire leases
on the most favorable basis to the Federal Government, with due consideration to maintenance and operational
efficiency, and at charges consistent
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§ 102–73.60
41 CFR Ch. 102 (7–1–16 Edition)
with prevailing market rates for comparable facilities in the community.
§ 102–73.60 With whom may Federal
agencies enter into lease agreements?
Federal agencies, upon approval from
GSA, may enter into lease agreements
with any person, partnership, corporation, or other public or private entity,
provided that such lease agreements do
not bind the Government for periods in
excess of twenty years (40 U.S.C.
585(a)). Federal agencies may not enter
into lease agreements with persons
who are barred from contracting with
the Federal Government (e.g., Members
of Congress or debarred or suspended
contractors).
§ 102–73.65 Are there any limitations
on leasing certain types of space?
Yes, the limitations on leasing certain types of space are as follows:
(a) In general, Federal agencies may
not lease any space to accommodate
computer and telecommunications operations; secure or sensitive activities
related to the national defense or security; or a permanent courtroom, judicial chamber, or administrative office
for any United States court, if the average annual net rental cost of leasing
such space would exceed the prospectus
threshold (40 U.S.C. 3307(f)(1)).
(b) However, Federal agencies may
lease such space if the Administrator
of General Services first determines
that leasing such space is necessary to
meet requirements that cannot be met
in public buildings, and then submits
such determination to the Committee
on Environment and Public Works of
the Senate and the Committee on
Transportation and Infrastructure of
the House of Representatives in accordance with 40 U.S.C. 3307(f)(2).
§ 102–73.70 Are Executive agencies required to acquire leased space by
negotiation?
Yes, Executive agencies must acquire
leased space by negotiation, except
where the sealed bid procedure is required by the Competition in Contracting Act, as amended (CICA) (41
U.S.C. 253(a)).
§ 102–73.75 What functions must Federal agencies perform with regard
to leasing building space?
Federal agencies, upon approval from
GSA, must perform all functions of
leasing building space, and land incidental thereto, for their use except as
provided in this subpart.
§ 102–73.80 Who is authorized to contact lessor, offerors, or potential
offerors concerning space leased or
to be leased?
No one, except the Contracting Officer or his or her designee, may contact
lessors, offerors, or potential offerors
concerning space leased or to be leased
for the purpose of making oral or written representation or commitments or
agreements with respect to the terms
of occupancy of particular space, tenant improvements, alterations and repairs, or payment for overtime services.
§ 102–73.85 Can agencies with independent statutory authority to lease
space have GSA perform the leasing
functions?
Yes, upon request, GSA may perform,
on a reimbursable basis, all functions
of leasing building space, and land incidental thereto, for Federal agencies
possessing independent statutory authority to lease space. However, GSA
reserves the right to accept or reject
reimbursable leasing service requests
on a case-by-case basis.
§ 102–73.90 What contingent fee policy
must Federal agencies apply to the
acquisition of real property by
lease?
Federal agencies must apply the contingent fee policies in 48 CFR 3.4 to all
negotiated and sealed bid contracts for
the acquisition of real property by
lease. Federal agencies must appropriately adapt the representations and
covenants required by that subpart for
use in leases of real property for Government use.
§ 102–73.95 How are Federal agencies
required to assist GSA?
The heads of Federal agencies must—
(a) Cooperate with and assist the Administrator of General Services in carrying out his responsibilities respecting office buildings and space;
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§ 102–73.120
(b) Take measures to give GSA early
notice of new or changing space requirements;
(c) Seek to economize their requirements for space; and
(d) Continuously review their needs
for space in and near the District of Columbia, taking into account the feasibility of decentralizing services or activities that can be carried on elsewhere without excessive costs or significant loss of efficiency.
COMPETITION IN CONTRACTING ACT OF
1984
§ 102–73.100 Is the Competition in Contracting Act of 1984, as amended
(CICA), applicable to lease acquisition?
Yes, Executive agencies must obtain
full and open competition among suitable locations meeting minimum Government requirements, except as otherwise provided by CICA, 41 U.S.C. 253.
NATIONAL ENVIRONMENTAL POLICY ACT
OF 1969 (NEPA)
§ 102–73.105 What policies must Federal agencies follow to implement
the requirements of NEPA when acquiring real property by lease?
Federal agencies must follow the
NEPA policies identified in §§ 102–76.40
and 102–76.45 of this chapter.
LEASE CONSTRUCTION
§ 102–73.110 What rules must Executive agencies follow when acquiring
leasehold interests in buildings constructed for Federal Government
use?
When acquiring leasehold interests in
buildings to be constructed for Federal
Government use, Executive agencies
must—
(a) Establish detailed building specifications before agreeing to a contract
that will result in the construction of a
building;
(b) Use competitive procedures;
(c) Inspect every building during construction to ensure that the building
complies with the Government’s specifications;
(d) Evaluate every building after
completion of construction to determine that the building complies with
the Government’s specifications; and
(e) Ensure that any contract that
will result in the construction of a
building contains provisions permitting the Government to reduce the rent
during any period when the building
does not comply with the Government’s specifications.
PRICE PREFERENCE FOR HISTORIC
PROPERTIES
§ 102–73.115 Must Federal agencies
offer a price preference to space in
historic properties when acquiring
leased space?
Yes, Federal agencies must give a
price preference to space in historic
properties when acquiring leased space
using either the lowest price technically acceptable or the best value
tradeoff source selection processes.
§ 102–73.120 How much of a price preference must Federal agencies give
when acquiring leased space using
the lowest price technically acceptable source selection process?
Federal agencies must give a price
evaluation preference to space in historic properties as follows:
(a) First to suitable historic properties within historic districts, a 10
percent price preference.
(b) If no suitable historic property
within an historic district is offered, or
the 10 percent preference does not result in such property being the lowest
price technically acceptable offer, the
Government will give a 2.5 percent
price preference to suitable non-historic developed or undeveloped sites
within historic districts.
(c) If no suitable non-historic developed or undeveloped site within an historic district is offered, or the 2.5 percent preference does not result in such
property being the lowest price technically acceptable offer, the Government will give a 10 percent price preference to suitable historic properties
outside of historic districts.
(d) Finally, if no suitable historic
property outside of historic districts is
offered, no historic price preference
will be given to any property offered.
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§ 102–73.125
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–73.125 How much of a price preference must Federal agencies give
when acquiring leased space using
the best value tradeoff source selection process?
When award will be based on the best
value tradeoff source selection process,
which permits tradeoffs among price
and non-price factors, the Government
will give a price evaluation preference
to historic properties as follows:
(a) First to suitable historic properties within historic districts, a 10
percent price preference.
(b) If no suitable historic property
within an historic district is offered or
remains in the competition, the Government will give a 2.5 percent price
preference to suitable non-historic developed or undeveloped sites within
historic districts.
(c) If no suitable non-historic developed or undeveloped site within an historic district is offered or remains in
the competition, the Government will
give a 10 percent price preference to
suitable historic properties outside of
historic districts.
(d) Finally, if no suitable historic
property outside of historic districts is
offered, no historic price preference
will be given to any property offered.
LEASES WITH PURCHASE OPTIONS
§ 102–73.130 When may Federal agencies consider acquiring leases with
purchase options?
Agencies may consider leasing with a
purchase option at or below fair market value, consistent with the leasepurchase scoring rules, when one or
more of the following conditions exist:
(a) The purchase option offers economic and other advantages to the
Government and is consistent with the
Government’s goals.
(b) The Government is the sole or
major tenant of the building, and has a
long-term need for the property.
(c) Leasing with a purchase option is
otherwise in the best interest of the
Government.
SCORING RULES
§ 102–73.135 What scoring rules must
Federal agencies follow when considering leases and leases with purchase options?
All Federal agencies must follow the
budget scorekeeping rules for leases,
capital leases, and lease-purchases
identified in appendices A and B of
OMB Circular A–11. (For availability,
see 5 CFR 1310.3.)
DELEGATIONS OF LEASING AUTHORITY
§ 102–73.140 When may agencies that
do not possess independent leasing
authority lease space?
Federal agencies may perform for
themselves all functions necessary to
acquire leased space in buildings and
land incidental thereto when—
(a) The authority may be delegated
(see § 102–72.30) on the different types of
delegations related to real estate leasing);
(b) The space may be leased for no
rental, or for a nominal consideration
of $1 per annum, and is limited to
terms not to exceed 1 year;
(c) Authority has been requested by
an Executive agency and a specific delegation has been granted by the Administrator of General Services;
(d) A categorical delegation has been
granted by the Administrator of General Services for space to accommodate
particular types of agency activities,
such as military recruiting offices or
space for certain county level agricultural activities (see § 102–73.155 for a
listing of categorical delegations); or
(e) The required space is found by the
Administrator of General Services to
be wholly or predominantly utilized for
the special purposes of the agency to
occupy such space and is not generally
suitable for use by other agencies. Federal agencies must obtain prior approval from the GSA regional office
having jurisdiction for the proposed
leasing action, before initiating a leasing action involving 2,500 or more
square feet of such special purpose
space. GSA’s approval must be based
upon a finding that there is no vacant
Government-owned or leased space
available that will meet the agency’s
requirements. Agency special purpose
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§ 102–73.170
space delegations can be found in §§ 102–
73.170 through 102–73.225.
CATEGORICAL SPACE DELEGATIONS
§ 102–73.145 What is a categorical
space delegation?
A categorical space delegation is a
standing delegation of authority from
the Administrator of General Services
to a Federal agency to acquire a type
of space identified in § 102–73.155, subject to limitations in this part.
§ 102–73.150 What is the policy for categorical space delegations?
Subject to the limitations cited in
§§ 102–73.230 through 102–73.240, all Federal agencies are authorized to acquire
the types of space listed in § 102–73.155
and, except where otherwise noted,
may lease space for terms, including
all options, of up to 20 years.
§ 102–73.155 What types of space can
Federal agencies acquire with a
categorical space delegation?
Federal agencies can use categorical
space delegations to acquire—
(a) Space to house antennas, repeaters, or transmission equipment;
(b) Depots, including, but not limited
to, stockpiling depots and torpedo net
depots;
(c) Docks, piers, and mooring facilities (including closed storage space required in combination with such facilities);
(d) Fumigation areas;
(e) Garage space (may be leased only
on a fiscal year basis);
(f) Greenhouses;
(g) Hangars and other airport operating facilities including, but not limited to, flight preparation space, aircraft storage areas, and repair shops;
(h) Hospitals, including medical clinics;
(i) Housing (temporary), including
hotels (does not include quarters obtained pursuant to temporary duty
travel or employee relocation);
(j) Laundries;
(k) Quarantine facilities for plants,
birds, and other animals;
(l) Ranger stations, i.e., facilities
that typically include small offices
staffed by one or more uniformed employees, and may include sleeping/family quarters, parking areas, garages,
and storage space. Office space within
ranger stations is minimal and does
not comprise a majority of the space.
(May also be referred to as guard stations, information centers, or kiosks);
(m) Recruiting space for the armed
forces (lease terms, including all options, limited to 5 years);
(n) Schools directly related to the
special purpose function(s) of an agency;
(o) Specialized storage/depot facilities, such as cold storage; self-storage
units; and lumber, oil, gasoline, shipbuilding materials, and pesticide materials/equipment storage (general purpose warehouse type storage facilities
not included); and
(p) Space for short-term use (such as
conferences and meetings, judicial proceedings, and emergency situations).
SPECIAL PURPOSE SPACE DELEGATIONS
§ 102–73.160 What is an agency special
purpose space delegation?
An agency special purpose space delegation is a standing delegation of authority from the Administrator of General Services to specific Federal agencies to lease their own special purpose
space (identified in §§ 102–73.170 through
102–73.225), subject to limitations in
this part.
§ 102–73.165 What is the policy for
agency special purpose space delegations?
Subject to the limitations on annual
rental amounts, lease terms, and leases
on parking spaces cited in §§ 102–73.230
through 102–73.240, the agencies listed
below are authorized to acquire special
purpose space associated with that
agency and, except where otherwise
noted, may lease such space for terms,
including all options, of up to 20 years.
The agencies and types of space subject
to special purpose space delegations
are specified in §§ 102–73.170 through
102–73.225.
§ 102–73.170 What types of special purpose space may the Department of
Agriculture lease?
The Department of Agriculture is
delegated the authority to lease the
following types of special purpose
space:
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§ 102–73.175
41 CFR Ch. 102 (7–1–16 Edition)
(a) Cotton classing laboratories
(lease terms, including all options, limited to 5 years).
(b) Land (if unimproved, may be
leased only on a fiscal year basis).
(c) Miscellaneous storage by cubic
foot or weight basis.
(d) Office space when required to be
located in or adjacent to stockyards,
produce markets, produce terminals,
airports, and other ports (lease terms,
including all options, limited to 5
years).
(e) Space for agricultural commodities stored in licensed warehouses and
utilized under warehouse contracts.
(f) Space utilized in cooperation with
State and local governments or their
instrumentalities (extension services)
where the cooperating State or local
government occupies a portion of the
space and pays a portion of the rent.
§ 102–73.175 What types of special purpose space may the Department of
Commerce lease?
The Department of Commerce is delegated authority to lease the following
types of special purpose space:
(a) Space required by the Census Bureau in connection with conducting the
decennial census (lease terms, including all options, limited to 5 years).
(b) Laboratories for testing materials, classified or ordnance devices,
calibration of instruments, and atmospheric and oceanic research (lease
terms, including all options, limited to
5 years).
(c) Maritime training stations.
(d) Radio stations.
(e) Land (if unimproved, may be
leased only on a fiscal year basis).
(f) National Weather Service meteorological facilities.
§ 102–73.180 What types of special purpose space may the Department of
Defense lease?
The Department of Defense is delegated authority to lease the following
types of special purpose space:
(a) Air Force—Civil Air Patrol Liaison Offices and land incidental thereto
when required for use incidental to, in
conjunction with, and in close proximity to airports, including aircraft
and warning stations (if unimproved,
land may be leased only on a fiscal
year basis; for space, lease terms, including all options, limited to 5 years).
(b) Armories.
(c) Film library in the vicinity of
Washington, DC.
(d) Mess halls.
(e) Ports of embarkation and debarkation.
(f) Post exchanges.
(g) Postal Concentration Center,
Long Island City, NY.
(h) Recreation centers.
(i) Reserve training space.
(j) Service clubs.
(k) Testing laboratories (lease terms,
including all options, limited to 5
years).
§ 102–73.185 What types of special purpose space may the Department of
Energy lease?
The Department of Energy, as the
successor to the Atomic Energy Commission, is delegated authority to lease
facilities housing the special purpose
or special location activities of the old
Atomic Energy Commission.
§ 102–73.190 What types of special purpose space may the Federal Communications Commission lease?
The Federal Communications Commission is delegated authority to lease
monitoring station sites.
§ 102–73.195 What types of special purpose space may the Department of
Health and Human Services lease?
The Department of Health and
Human Services is delegated authority
to lease laboratories (lease terms, including all options, limited to 5 years).
§ 102–73.196 What types of special purpose space may the Department of
Homeland Security lease?
The Department of Homeland Security is delegated authority to lease
whatever space its organizational units
or components had authority to lease
prior to the creation of the Department
of Homeland Security, including—
(a) Border patrol offices similar in
character and utilization to police stations, involving the handling of prisoners, firearms, and motor vehicles, regardless of location (lease terms, including all options limited to 5 years);
(b) Space for the U.S. Coast Guard
oceanic unit, Woods Hole, MA; and
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Federal Management Regulation
§ 102–73.230
(c) Space for the U.S. Coast Guard
port security activities.
§ 102–73.200 What types of special purpose space may the Department of
the Interior lease?
The Department of the Interior is
delegated authority to lease the following types of special purpose space:
(a) Space in buildings and land incidental thereto used by field crews of
the Bureau of Reclamation, Bureau of
Land Management, and the Geological
Survey in areas where no other Government agencies are quartered (unimproved land may be leased only on a
fiscal year basis).
(b) National Parks/Monuments Visitors Centers consisting primarily of
special purpose space (e.g., visitor reception, information, and rest room facilities) and not general office or administrative space.
§ 102–73.205 What types of special purpose space may the Department of
Justice lease?
The Department of the Justice is delegated authority to lease the following
types of special purpose space:
(a) U.S. marshals office in any Alaska location (lease terms, including all
options, limited to 5 years).
(b) Space used for storage and maintenance of surveillance vehicles and
seized property (lease terms, including
all options, limited to 5 years).
(c) Space used for review and custody
of records and other evidentiary materials (lease terms, including all options, limited to 5 years).
(d) Space used for trial preparation
where space is not available in Federal
buildings, Federal courthouses, USPS
facilities, or GSA-leased buildings
(lease terms limited to not more than 1
year).
§ 102–73.215 What types of special purpose space may the Department of
Transportation lease?
The Department of Transportation is
delegated authority to lease the following types of special purpose space
(or real property):
(a) Land for the Federal Aviation Administration (FAA) at airports (unimproved land may be leased only on a
fiscal year basis).
(b) General purpose office space not
exceeding 10,000 square feet for the
FAA at airports in buildings under the
jurisdiction of public or private airport
authorities (lease terms, including all
options, limited to 5 years).
§ 102–73.220 What types of special purpose space may the Department of
the Treasury lease?
The Department of the Treasury is
delegated authority to lease the following types of special purpose space:
(a) Space and land incidental thereto
for the use of the Comptroller of the
Currency, as well as the operation,
maintenance and custody thereof (if
unimproved, land may be leased only
on a fiscal year basis; lease term for
space, including all options, limited to
5 years).
(b) Aerostat radar facilities necessary for U.S. Custom Service mission
activities.
§ 102–73.225 What types of special purpose space may the Department of
Veterans Affairs lease?
The Department of Veterans Affairs
is delegated authority to lease the following types of special purpose space:
(a) Guidance and training centers located at schools and colleges.
(b) Space used for veterans hospitals,
including outpatient and medical-related clinics, such as drug, mental
health, and alcohol.
§ 102–73.210 What types of special purpose space may the Office of Thrift
Supervision lease?
LIMITATIONS ON THE USE OF DELEGATED
AUTHORITY
The Office of Thrift Supervision is
delegated authority to lease space for
field offices of Examining Divisions required to be located within Office of
Thrift Supervision buildings or immediately adjoining or adjacent to such
buildings (lease terms, including all options, limited to 5 years).
§ 102–73.230 When must Federal agencies submit a prospectus to lease
real property?
In accordance with 40 U.S.C. 3307,
Federal agencies must submit a prospectus to the Administrator of General Services for leases involving a net
annual rental, excluding services and
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§ 102–73.235
41 CFR Ch. 102 (7–1–16 Edition)
utilities, in excess
threshold provided
Agencies must be
spectus thresholds
change each year.
of the prospectus
in 40 U.S.C. 3307.
aware that proare indexed and
§ 102–73.235 What is the maximum
lease term that a Federal agency
may agree to when it has been delegated lease acquisition authority
from GSA?
Pursuant to GSA’s authority to enter
into lease agreements contained in 40
U.S.C. 585(a)(2), agencies delegated the
authorities outlined herein may enter
into leases for the term specified in the
delegation. In those cases where agency special purposes space delegations
include the authority to acquire unimproved land, the land may be leased
only on a fiscal year basis.
§ 102–73.240 What policy must Federal
agencies follow to acquire official
parking spaces?
Federal agencies that need parking
must utilize available Governmentowned or leased facilities. Federal
agencies must make inquiries regarding availability of such Governmentcontrolled space to GSA regional offices and document such inquiries. If
no suitable Government-controlled facilities are available, an agency may
use its own procurement authority to
acquire parking by service contract.
Subpart C—Acquisition by
Purchase or Condemnation
BUILDINGS
§ 102–73.245 When may Federal agencies consider purchase of buildings?
A Federal agency may consider purchase of buildings on a case-by-case
basis if it has landholding authority
and when one or more of the following
conditions exist:
(a) It is economically more beneficial
to own and manage the property.
(b) There is a long-term need for the
property.
(c) The property is an existing building, or a building nearing completion,
that can be purchased and occupied
within a reasonable time.
(d) When otherwise in the best interests of the Government.
§ 102–73.250 Are agencies required to
adhere to the policies for locating
Federal facilities when purchasing
buildings?
Yes, when purchasing buildings,
agencies must comply with the location policies in this part and part 102–
83 of this chapter.
§ 102–73.255 What factors must Executive agencies consider when purchasing sites?
Agencies must locate proposed Federal buildings on sites that are most
advantageous to the United States. Executive agencies must consider factors
such as whether the site will contribute to economy and efficiency in
the construction, maintenance, and operation of the individual building, and
how the proposed site relates to the
Government’s total space needs in the
community. Prior to acquiring, constructing, or leasing buildings (or sites
for such buildings), Federal agencies
must use, to the maximum extent feasible, historic properties available to
the agency. In site selections, Executive agencies must consider Executive
Order 12072 (August 16, 1978, 43 FR
36869) and Executive Order 13006 (40
U.S.C. 3306 note). In addition, Executive agencies must consider all of the
following:
(a) Maximum utilization of Government-owned land (including excess
land) whenever it is adequate, economically adaptable to requirements
and properly located, where such use is
consistent with the provisions of part
102–75, subpart B, of this chapter.
(b) A site adjacent to or in the proximity of an existing Federal building
that is well located and is to be retained for long-term occupancy.
(c) The environmental condition of
proposed sites prior to purchase. The
sites must be free from contamination,
unless it is otherwise determined to be
in the best interests of the Government
to purchase a contaminated site (e.g.,
reuse of a site under an established
‘‘Brownfields’’ program).
(d) Purchase options to secure the future availability of a site.
(e) All applicable location policies in
this part and part 102–83 of this chapter.
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Federal Management Regulation
§ 102–73.280
LAND
JUST COMPENSATION
§ 102–73.260 What land acquisition policy must Federal agencies follow?
§ 102–73.270 Are Federal agencies required to provide the owner with a
written statement of the amount established as just compensation?
Yes, Federal agencies must provide
the owner with a written statement of
this amount and summarize the basis
for it. When it is appropriate, Federal
agencies must separately state the just
compensation for the property to be acquired and damages to the remaining
real property.
Federal agencies must follow the
land acquisition policy in the Uniform
Relocation Assistance and Real Property Acquisition Policies Act, as
amended, 42 U.S.C. 4651–4655, which—
(a) Encourages and expedites the acquisition of real property by agreements with owners;
(b) Avoids litigation, including condemnation actions, where possible and
relieves congestion in the courts;
(c) Provides for consistent treatment
of owners; and
(d) Promotes public confidence in
Federal land acquisition practices.
§ 102–73.265 What actions must Federal agencies take to facilitate land
acquisition?
To facilitate land acquisition, Federal agencies must, among other
things—
(a) Appraise the real property before
starting negotiations and give the
owner (or the owner’s representative)
the opportunity to accompany the appraiser during the inspection;
(b) Establish an amount estimated to
be the just compensation before starting negotiations and promptly offer to
acquire the property for this full
amount;
(c) Try to negotiate with owners on
the price;
(d) Pay the agreed purchase price to
the property owner, or in the case of a
condemnation, deposit payment in the
registry of the court, for the benefit of
the owner, before requiring the owner
to surrender the property; and
(e) Provide property owners (and occupants) at least 90 days’ notice of displacement before requiring anyone to
move. If a Federal agency permits the
owner to keep possession for a short
time after acquiring the owner’s property, Federal agencies must not charge
rent in excess of the property’s fair
rental value to a short-term occupier.
§ 102–73.275 What specific information
must be included in the summary
statement for the owner that explains the basis for just compensation?
The summary statement must—
(a) Identify the real property and the
estate or interest the Federal agency is
acquiring;
(b) Identify the buildings, structures,
and other improvements the Federal
agency considers part of the real property for which just compensation is
being offered;
(c) State that the Federal agency
based the estimate of just compensation on the Government’s estimate of
the property’s fair market value. If
only part of a property or less than a
full interest is being acquired, Federal
agencies must explain how they determined the just compensation for it; and
(d) State that the Government’s estimate of just compensation is at least
as much as the property’s approved appraisal value.
§ 102–73.280 Where can Federal agencies find guidance on how to appraise the value of properties being
acquired by the Federal Government?
The Interagency Land Acquisition
Conference has developed, promulgated, and adopted the Uniform Appraisal Standards for Federal Land Acquisitions, sometimes referred to as
the ‘‘Yellow Book.’’ The Interagency
Land Acquisition Conference, established on November 27, 1968, by invitation of the Attorney General, is a voluntary organization composed of the
many Federal agencies engaged in the
acquisition of real estate for public
uses. The ‘‘Yellow Book’’ is published
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§ 102–73.285
41 CFR Ch. 102 (7–1–16 Edition)
by the Appraisal Institute in cooperation with the U.S. Department of Justice and is available in hard copy or on
the Department of Justice’s internet
Web site at http://www.usdoj.gov/enrd/
land-ack/.
(d) Whenever possible, directly pay
the costs identified in this section, so
property owners will not have to pay
them and then seek reimbursement
from the Government.
LITIGATION EXPENSES
§ 102–73.285
[Reserved]
§ 102–73.290 Are there any prohibitions when a Federal agency pays
‘‘just compensation’’ to a tenant?
Yes, Federal agencies must not—
(a) Duplicate any payment to the
tenant otherwise authorized by law;
and
(b) Pay a tenant unless the landowner disclaims all interests in the
tenant’s improvements. In consideration for any such payment, the tenant
must assign, transfer, and release to
the Federal agency all of its right,
title, and interest in the improvements. The tenant may reject such
payment under this subpart and obtain
payment for its property interests according to other sections of applicable
law.
EXPENSES INCIDENTAL TO PROPERTY
TRANSFER
§ 102–73.300 Are Federal agencies required to pay for litigation expenses incurred by a property
owner because of a condemnation
proceeding?
Federal agencies must pay reasonable expenses for attorneys, appraisals,
and engineering fees that a property
owner incurs because of a condemnation proceeding, if any of the following
are true:
(a) The court’s final judgment is that
the Federal agency cannot acquire the
real property by condemnation.
(b) The Federal agency abandons the
condemnation proceeding other than
under an agreed-on settlement.
(c) The court renders a judgment in
the property owner’s favor in an inverse condemnation proceeding or the
Federal agency agrees to settle such
proceeding.
RELOCATION ASSISTANCE POLICY
§ 102–73.295 What property transfer
expenses must Federal agencies
cover when acquiring real property?
§ 102–73.305 What relocation assistance policy must Federal agencies
follow?
Federal agencies must—
(a) Reimburse property owners for all
reasonable expenses actually incurred
for recording fees, transfer taxes, documentary stamps, evidence of title,
boundary surveys, legal descriptions of
the real property, and similar expenses
needed to convey the property to the
Federal Government;
(b) Reimburse property owners for all
reasonable expenses actually incurred
for penalty costs and other charges to
prepay any existing, recorded mortgage
that a property owner entered into in
good faith and that encumbers the real
property;
(c) Reimburse property owners for all
reasonable expenses actually incurred
for the prorated part of any prepaid
real property taxes that cover the period after the Federal Government gets
title to the property or effective possession of it, whichever is earlier; and
Federal agencies, upon approval from
GSA, must provide appropriate relocation assistance under the Uniform Relocation Assistance and Real Property
Acquisition Policies Act, as amended,
42 U.S.C. 4651–4655, to eligible owners
and tenants of property purchased for
use by Federal agencies in accordance
with the implementing regulations
found in 49 CFR part 24. Appropriate
relocation assistance means that the
Federal agency must pay the displaced
person for actual—
(a) Reasonable moving expenses (in
moving himself, his family, and business);
(b) Direct losses of tangible personal
property as a result of moving or discontinuing a business;
(c) Reasonable expenses in searching
for a replacement business or farm; and
(d) Reasonable expenses necessary to
reestablish a displaced farm, nonprofit
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Federal Management Regulation
Pt. 102–74
organization, or small business at its
new site, but not to exceed $10,000.
PART 102–74—FACILITY
MANAGEMENT
Subpart A—General Provisions
Sec.
102–74.5 What is the scope of this part?
102–74.10 What is the basic facility management policy?
Subpart B—Facility Management
102–74.15 What are the facility management
responsibilities of occupant agencies?
OCCUPANCY SERVICES
102–74.20 What are occupancy services?
102–74.25 What responsibilities do Executive
agencies have regarding occupancy services?
102–74.30 What standard in providing occupancy services must Executive agencies
follow?
102–74.35 What building services must Executive agencies provide?
CONCESSION SERVICES
102–74.40 What are concession services?
102–74.45 When must Federal agencies provide concession services?
102–74.50 Are Federal agencies required to
give blind vendors priority in operating
vending facilities?
102–74.55 Are vending facilities authorized
under the Randolph-Sheppard Act operated by permit or contract?
102–74.60 Are Federal agencies required to
give blind vendors priority in operating
cafeterias?
102–74.65 Are cafeterias authorized under
the Randolph-Sheppard Act operated by
permit or contract?
102–74.70 Are commercial vendors and nonprofit organizations required to operate
vending facilities by permit or contractual arrangement?
102–74.75 May Federal agencies sell tobacco
products in vending machines in Government-owned and leased space?
102–74.80–102–74.95 [Reserved]
CONSERVATION PROGRAM
102–74.100
What are conservation programs?
ASSET SERVICES
102–74.105 What are asset services?
102–74.110 What asset services must Executive agencies provide?
102–74.115 What standard in providing asset
services must Executive agencies follow?
102–74.120 Is a prospectus required to be submitted before emergency alterations can
be performed?
102–74.125 Are prospectuses required for reimbursable alteration projects?
102–74.130 When a prospectus is required,
can GSA prepare a prospectus for a reimbursable alteration project?
102–74.135 Who selects construction and alteration projects that are to be performed?
102–74.140 On what basis does the Administrator select construction and alteration
projects?
102–74.145 What information must a Federal
agency submit to GSA after the agency
has identified a need for construction or
alteration of a public building?
102–74.150 Who submits prospectuses for the
construction or alteration of public
buildings to the Congressional committees?
ENERGY CONSERVATION
102–74.155 What energy conservation policy
must Federal agencies follow in the management of facilities?
102–74.160 What actions must Federal agencies take to promote energy conservation?
102–74.165 What energy standards must Federal agencies follow for existing facilities?
102–74.170 May exceptions to the energy
conservation policies in this subpart be
granted?
102–74.175 Are Government-leased buildings
required to conform with the policies in
this subpart?
102–74.180 What illumination levels must
Federal agencies maintain on Federal facilities?
102–74.185 What heating and cooling policy
must Federal agencies follow in Federal
facilities?
102–74.190 Are portable heaters, fans, and
other such devices allowed in Government-controlled facilities?
102–74.195 What ventilation policy must
Federal agencies follow?
102–74.200 What information are Federal
agencies required to report to the Department of Energy (DOE)?
RIDESHARING
102–74.205 What Federal facility ridesharing
policy must Executive agencies follow?
102–74.210 What steps must Executive agencies take to promote ridesharing at Federal facilities?
102–74.215–102–74.225 [Reserved]
OCCUPANT EMERGENCY PROGRAM
102–74.230 Who is responsible for establishing an occupant emergency program?
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Pt. 102–74
41 CFR Ch. 102 (7–1–16 Edition)
102–74.235 Are occupant agencies required to
cooperate with the Designated Official in
the implementation of the emergency
plans and the staffing of the emergency
organization?
102–74.240 What are Federal agencies’ occupant emergency responsibilities?
102–74.245 Who makes the decision to activate the Occupant Emergency Organization?
102–74.250 What information must the Designated Official use to make a decision
to activate the Occupant Emergency Organization?
102–74.255 How must occupant evacuation or
relocation be accomplished when there is
immediate danger to persons or property,
such as fire, explosion, or the discovery
of an explosive device (not including a
bomb threat)?
102–74.260 What action must the Designated
Official initiate when there is advance
notice of an emergency?
102–74.335 Who is responsible for furnishing
and installing signs concerning smoking
restrictions in the building, and in and
around building entrance doorways and
air intake ducts?
102–74.340 Who is responsible for monitoring
and controlling areas designated for
smoking by an agency head and for identifying those areas with proper signage?
102–74.345 Does the smoking policy in this
part apply to the judicial branch?
102–74.350 Are agencies required to meet
their obligations under the Federal Service Labor-Management Relations Act
where there is an exclusive representative for the employees prior to implementing this smoking policy?
102–74.351 If a state or local government has
a smoke-free ordinance that is more
strict than the smoking policy for Federal facilities, does the state or local law
or Federal policy control?
PARKING FACILITIES
102–74.355 With what accident and fire prevention standards must Federal facilities
comply?
102–74.360 What are the specific accident
and fire prevention responsibilities of occupant agencies?
102–74.265 Who must provide for the regulation and policing of parking facilities?
102–74.270 Are vehicles required to display
parking permits in parking facilities?
102–74.275 May Federal agencies authorize
lessors or parking management contractors to manage, regulate, and police
parking facilities?
102–74.280 Are privately owned vehicles converted for propane carburetion permitted
in underground parking facilities?
102–74.285 How must Federal agencies assign
priority to parking spaces in controlled
areas?
102–74.290 May Federal agencies allow employees to use parking spaces not required for official needs?
102–74.295 Who determines the number of
employee parking spaces for each facility?
102–74.300 How must space available for employee parking be allocated among occupant agencies?
102–74.305 How must Federal agencies assign
available parking spaces to their employees?
102–74.310 What measures must Federal
agencies take to improve the utilization
of parking facilities?
SMOKING
102–74.315 What is the smoking policy for interior space in Federal facilities?
102–74.320 Are there any exceptions to the
smoking policy for interior space in Federal facilities?
102–74.325 Are designated smoking areas authorized in interior space?
102–74.330 What smoking restrictions apply
to outside areas under Executive branch
control?
ACCIDENT AND FIRE PREVENTION
Subpart C—Conduct on Federal Property
APPLICABILITY
102–74.365
To whom does this subpart apply?
INSPECTION
102–74.370 What items are subject to inspection by Federal agencies?
ADMISSION TO PROPERTY
102–74.375 What is the policy on admitting
persons to Government property?
PRESERVATION OF PROPERTY
102–74.380 What is the policy concerning the
preservation of property?
CONFORMITY WITH SIGNS AND DIRECTIONS
102–74.385 What is the policy concerning
conformity with official signs and directions?
DISTURBANCES
102–74.390 What is the policy concerning disturbances?
GAMBLING
102–74.395 What is the policy concerning
gambling?
NARCOTICS AND OTHER DRUGS
102–74.400 What is the policy concerning the
possession and use of narcotics and other
drugs?
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Pt. 102–74
ALCOHOLIC BEVERAGES
102–74.405 What is the policy concerning the
use of alcoholic beverages?
SOLICITING, VENDING AND DEBT COLLECTION
102–74.410 What is the policy concerning soliciting, vending and debt collection?
POSTING AND DISTRIBUTING MATERIALS
102–74.415 What is the policy for posting and
distributing materials?
PHOTOGRAPHS FOR NEWS, ADVERTISING OR
COMMERCIAL PURPOSES
102–74.420 What is the policy concerning
photographs for news, advertising or
commercial purposes?
DOGS AND OTHER ANIMALS
102–74.425 What is the policy concerning
dogs and other animals on Federal property?
apply for a permit from a Federal agency?
102–74.470 What information must persons
or organizations submit so that Federal
agencies may consider their application
for a permit?
102–74.475 If an applicant proposes to use a
public area to solicit funds, is the applicant required to make a certification?
PERMITS
102–74.480 How many days does a Federal
agency have to issue a permit following
receipt of a completed application?
102–74.485 Is there any limitation on the
length of time of a permit?
102–74.490 What if more than one permit is
requested for the same area and time?
102–74.495 If a permit involves demonstrations or activities that may lead to civil
disturbances, what action must a Federal
agency take before approving such a permit application?
BREASTFEEDING
102–74.426 May a woman breastfeed her child
in a Federal building or on Federal property?
VEHICULAR AND PEDESTRIAN TRAFFIC
102–74.430 What is the policy concerning vehicular and pedestrian traffic on Federal
property?
EXPLOSIVES
102–74.435 What is the policy concerning explosives on Federal property?
WEAPONS
102–74.440 What is the policy concerning
weapons on Federal property?
NONDISCRIMINATION
102–74.445 What is the policy concerning discrimination on Federal property?
DISAPPROVAL OF APPLICATIONS OR
CANCELLATION OF PERMITS
102–74.500 Can Federal agencies disapprove
permit applications or cancel issued permits?
102–74.505 What action must Federal agencies take after disapproving an application or canceling an issued permit?
APPEALS
102–74.510 How may the disapproval of a permit application or cancellation of an
issued permit be appealed?
102–74.515 Will the affected person or organization and the Federal agency buildings
manager have an opportunity to state
their positions on the issues?
102–74.520 How much time does the Regional
Officer have to affirm or reverse the Federal agency buildings manager’s decision
after receiving the notification of appeal
from the affected person or organization?
PENALTIES
SCHEDULE OF USE
102–74.450 What are the penalties for violating any rule or regulation in this subpart?
IMPACT ON OTHER LAWS OR REGULATIONS
102–74.455 What impact do the rules and regulations in this subpart have on other
laws or regulations?
HOURS OF USE
102–74.530
When may public areas be used?
SERVICES AND COSTS
Subpart D—Occasional Use of Public
Buildings
102–74.460
102–74.525 May Federal agencies reserve
time periods for the use of public areas
for official Government business or for
maintenance, repair, and construction?
What is the scope of this subpart?
APPLICATION FOR PERMIT
102–74.465 Is a person or organization that
wishes to use a public area required to
102–74.535 What items may Federal agencies
provide to permittees free of charge?
102–74.540 What are the items for which permittees must reimburse Federal agencies?
102–74.545 May permittees make alterations
to the public areas?
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§ 102–74.5
41 CFR Ch. 102 (7–1–16 Edition)
102–74.550 What items are permittees responsible for furnishing?
CONDUCT
102–74.555 What rules of conduct must all
permittees observe while on Federal
property?
NON-AFFILIATION WITH THE GOVERNMENT
102–74.560 May Federal agencies advise the
public of the presence of any permittees
and their non-affiliation with the Federal Government?
Subpart E—Installing, Repairing, and
Replacing Sidewalks
102–74.565 What is the scope of this subpart?
102–74.570 Are State and local governments
required to fund the cost of installing,
repairing, and replacing sidewalks?
102–74.575 How do Federal agencies arrange
for work on sidewalks?
102–74.580 Who decides when to replace a
sidewalk?
Subpart F—Telework
102–74.585 What Federal facility telework
policy must Executive agencies follow?
102–74.590 What steps must agencies take to
implement these laws and policies?
102–74.595 How can agencies obtain guidance, assistance, and oversight regarding
alternative
workplace
arrangements
from GSA?
102–74.600 Should Federal agencies utilize
telework centers?
APPENDIX TO PART 102–74—RULES AND REGULATIONS GOVERNING CONDUCT ON FEDERAL
PROPERTY
AUTHORITY: 40 U.S.C. 121(c); Executive
Order 12191, 45 FR 7997, 3 CFR, 1980 Comp., p
138.
SOURCE: 70 FR 67798, Nov. 8, 2005, unless
otherwise noted.
provides for quality space and services
consistent with their operational needs
and accomplishes overall Government
objectives. The management, operation
and maintenance of buildings and
building systems must—
(a) Be cost effective and energy efficient;
(b) Be adequate to meet the agencies’
missions;
(c) Meet nationally recognized standards; and
(d) Be at an appropriate level to
maintain and preserve the physical
plant assets, consistent with available
funding.
Subpart B—Facility Management
§ 102–74.15 What are the facility management responsibilities of occupant agencies?
Occupants of facilities under the custody and control of Federal agencies
must—
(a) Cooperate to the fullest extent
with all pertinent facility procedures
and regulations;
(b) Promptly report all crimes and
suspicious circumstances occurring on
Federally controlled property first to
the regional Federal Protective Service, and as appropriate, the local responding law enforcement authority;
(c) Provide training to employees regarding protection and responses to
emergency situations; and
(d) Make recommendations for improving the effectiveness of protection
in Federal facilities.
OCCUPANCY SERVICES
Subpart A—General Provisions
§ 102–74.5 What is the scope of this
part?
The real property policies contained
in this part apply to Federal agencies,
including the GSA’s Public Buildings
Service (PBS), operating under, or subject to, the authorities of the Administrator of General Services.
§ 102–74.10 What is the basic facility
management policy?
Executive agencies must manage, operate and maintain Government-owned
and leased buildings in a manner that
§ 102–74.20
ices?
What are occupancy serv-
Occupancy services are—
(a) Building services (see § 102–74.35);
(b) Concession services (see § 102–
74.40); and
(c) Conservation programs (see § 102–
74.100).
§ 102–74.25 What responsibilities do
Executive agencies have regarding
occupancy services?
Executive agencies, upon approval
from GSA, must manage, administer
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Federal Management Regulation
§ 102–74.60
and enforce the requirements of agreements (such as Memoranda of Understanding) and contracts that provide
for the delivery of occupancy services.
§ 102–74.30 What standard in providing occupancy services must Executive agencies follow?
Executive agencies must provide occupancy services that substantially
conform to nationally recognized
standards. As needed, Executive agencies may adopt other standards for
buildings and services in Federally
controlled facilities to conform to statutory requirements and to implement
cost-reduction efforts.
§ 102–74.35 What
building
services
must Executive agencies provide?
Executive agencies, upon approval
from GSA, must provide—
(a) Building services such as custodial, solid waste management (including recycling), heating and cooling,
landscaping and grounds maintenance,
tenant alterations, minor repairs,
building maintenance, integrated pest
management, signage, parking, and
snow removal, at appropriate levels to
support Federal agency missions; and
(b) Arrangements for raising and lowering the United States flags at appropriate times. In addition, agencies
must display P.O.W. and M.I.A. flags at
locations specified in 36 U.S.C. 902 on
P.O.W./M.I.A. flag display days.
CONCESSION SERVICES
of existing commercial services is insufficient to meet Federal agency
needs. Prior to establishing concessions, Federal agencies must ensure
that—
(a) The proposed concession will be
established and operated in conformance with applicable policies, safety,
health and sanitation codes, laws, regulations, etc., and will not contravene
the terms of any lease or other contractual arrangement; and
(b) Sufficient funds are legally available to cover all costs for which the
Government may be responsible.
§ 102–74.50 Are Federal agencies required to give blind vendors priority in operating vending facilities?
With certain exceptions, the Randolph-Sheppard Act (20 U.S.C. 107 et
seq.) requires that blind persons licensed by a State licensing agency
under the provisions of the RandolphSheppard Act be authorized to operate
vending facilities on Federal property,
including leased buildings. The Department of Education (ED) is responsible
for the administration of the Randolph-Sheppard Act as set forth at 34
CFR part 395. The ED designates individual State licensing agencies with
program administration responsibility.
The Randolph-Sheppard Act and its implementing regulations require that
Federal property managers give priority to and notify the State licensing
agencies in writing of any opportunity.
§ 102–74.40 What are concession services?
Concession services are any food or
snack services provided by a RandolphSheppard Act vendor, commercial contractor or nonprofit organization (see
definition in § 102–71.20 of this chapter),
in vending facilities such as—
(a) Vending machines;
(b) Sundry facilities;
(c) Prepackaged facilities;
(d) Snack bars; and
(e) Cafeterias.
§ 102–74.55 Are vending facilities authorized under the RandolphSheppard Act operated by permit or
contract?
Vending facilities are authorized by
permit. As set forth in 34 CFR part 395,
the Federal property manager approves
and signs State licensing agency permits that authorize States to license
blind vendors to operate vending facilities (including vending machines) on
Federal property.
§ 102–74.45 When must Federal agencies provide concession services?
Federal agencies, upon approval from
GSA, must provide concession services
where building population supports
such services and when the availability
§ 102–74.60 Are Federal agencies required to give blind vendors priority in operating cafeterias?
Yes. Federal agencies are required to
give Randolph-Sheppard vendors priority in the operation of cafeterias
when the State licensing agency is in
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§ 102–74.65
41 CFR Ch. 102 (7–1–16 Edition)
the competitive range as set forth at 34
CFR part 395.
ASSET SERVICES
§ 102–74.105
§ 102–74.65 Are cafeterias authorized
under the Randolph-Sheppard Act
operated by permit or contract?
They are operated by contract. As set
forth at 34 CFR part 395, the Federal
property manager contracts with the
State licensing agency to license blind
vendors to operate cafeterias on Federal property.
§ 102–74.70 Are commercial vendors
and nonprofit organizations required to operate vending facilities
by permit or contractual arrangement?
Commercial vendors and nonprofit
organizations must operate vending facilities, including cafeterias, under a
contractual arrangement with Federal
agencies.
§ 102–74.75 May Federal agencies sell
tobacco products in vending machines in Government-owned and
leased space?
No. Section 636 of Public Law 104–52
prohibits the sale of tobacco products
in vending machines in Governmentowned and leased space. The Administrator of GSA or the head of an Agency
may designate areas not subject to the
prohibition, if minors are prohibited
and reports are made to the appropriate committees of Congress.
§§ 102–74.80—102–74.95
[Reserved]
are
§ 102–74.110 What asset services must
Executive agencies provide?
Executive agencies, upon approval
from GSA, must provide asset services
such as repairs (in addition to those
minor repairs identified in § 102–
74.35(a)), alterations, and modernizations for real property assets. For repairs and alterations projects for which
the estimated cost exceeds the prospectus threshold, Federal agencies
must follow the prospectus submission
and approval policy identified in this
part and part 102–73 of this chapter.
§ 102–74.115 What standard in providing asset services must Executive agencies follow?
Executive agencies must provide
asset services that maintain continuity
of Government operations, continue efficient building operations, extend the
useful life of buildings and related
building systems, and provide a quality
workplace environment that enhances
employee productivity.
§ 102–74.120 Is a prospectus required
to be submitted before emergency
alterations can be performed?
CONSERVATION PROGRAMS
§ 102–74.100 What
programs?
What are asset services?
Asset services include repairs (other
than those minor repairs identified in
§ 102–74.35(a)), alterations and modernizations for real property assets.
Typically, these are the types of repairs and alterations necessary to preserve or enhance the value of the real
property asset.
conservation
Conservation programs are programs
that improve energy and water efficiency and promote the use of solar
and other renewable energy. These programs must promote and maintain an
effective source reduction activity (reducing consumption of resources such
as energy, water, and paper), resource
recovery activity (obtaining materials
from the waste stream that can be recycled into new products), and reuse
activity (reusing same product before
disposition, such as reusing unneeded
memos for scratch paper).
No. A prospectus does not need to be
submitted before emergency alterations are performed, but GSA must
submit a prospectus as soon as possible
after the emergency. Federal agencies
must immediately alter a building if
the alteration protects people, buildings, or equipment, saves lives, and/or
avoids further property damage. Federal agencies can take these actions in
an emergency before GSA submits a
prospectus on the alterations to the
Senate Committee on Environment and
Public Works and the House Committee on Transportation and Infrastructure.
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Federal Management Regulation
§ 102–74.170
§ 102–74.125 Are prospectuses required
for
reimbursable
alteration
projects?
A project that is to be financed in
whole or in part from funds appropriated to the requesting agency may
be performed without a prospectus if—
(a) Payment is made from agency appropriations that are not subject to 40
U.S.C. 3307; and
(b) GSA’s portion of the cost, if any,
does not exceed the prospectus threshold.
§ 102–74.130 When a prospectus is required, can GSA prepare a prospectus for a reimbursable alteration project?
Yes, if requested by a Federal agency, GSA will prepare a prospectus for a
reimbursable alteration project.
§ 102–74.135 Who selects construction
and alteration projects that are to
be performed?
The Administrator of General Services selects construction and alteration
projects to be performed.
§ 102–74.140 On what basis does the
Administrator select construction
and alteration projects?
The Administrator selects projects
based on a continuing investigation
and survey of the public building needs
of the Federal Government. These
projects must be equitably distributed
throughout the United States, with due
consideration given to each project’s
comparative urgency.
§ 102–74.145 What information must a
Federal agency submit to GSA after
the agency has identified a need for
construction or alteration of a public building?
Federal agencies identifying a need
for construction or alteration of a public building must provide information,
such as a description of the work, location, estimated maximum cost, and
justification to the Administrator of
General Services.
§ 102–74.150 Who submits prospectuses
for the construction or alteration of
public buildings to the Congressional committees?
The Administrator of General Services must submit prospectuses for pub-
lic building construction or alteration
projects to the Senate Committee on
Environment and Public Works and the
House Committee on Transportation
and Infrastructure for approval.
ENERGY CONSERVATION
§ 102–74.155 What energy conservation
policy must Federal agencies follow
in the management of facilities?
Federal agencies must—
(a) Comply with the energy conservation guidelines in 10 CFR part 436 (Federal Energy Management and Planning
Programs); and
(b) Observe the energy conservation
policies cited in this part.
§ 102–74.160 What actions must Federal agencies take to promote energy conservation?
Federal agencies must—
(a) Turn off lights and equipment
when not needed;
(b) Not block or impede ventilation;
and
(c) Keep windows and other building
accesses closed during the heating and
cooling seasons.
§ 102–74.165 What energy standards
must Federal agencies follow for existing facilities?
Existing Federal facilities must meet
the energy standards prescribed by the
American Society of Heating, Refrigerating, and Air Conditioning Engineers and the Illuminating Engineering
Society
of
North
American
in
ASHRAE/IES Standard 90A–1980, as
amended by the Department of Energy.
Federal agencies must apply these energy standards where they can be
achieved through life cycle, cost effective actions.
§ 102–74.170 May exceptions to the energy conservation policies in this
subpart be granted?
Yes, the Federal agency buildings
manager may grant exceptions to the
foregoing policies in this subpart to enable agencies to accomplish their missions more effectively and efficiently.
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§ 102–74.175
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–74.175 Are
Government-leased
buildings required to conform with
the policies in this subpart?
Yes, all new lease contracts must be
in conformance with the policies prescribed in this subpart. Federal agencies must administer existing lease
contracts in accordance with these
policies to the maximum extent feasible.
§ 102–74.180 What illumination levels
must Federal agencies maintain on
Federal facilities?
Except where special circumstances
exist, Federal agencies must maintain
illumination levels at—
(a) 50 foot-candles at work station
surfaces, measured at a height of 30
inches above floor level, during working hours (for visually difficult or critical tasks, additional lighting may be
authorized by the Federal agency
buildings manager);
(b) 30 foot-candles in work areas during working hours, measured at 30
inches above floor level;
(c) 10 foot-candles, but not less than
1 foot-candle, in non-work areas, during working hours (normally this will
require levels of 5 foot-candles at elevator boarding areas, minimum of 1
foot-candle at the middle of corridors
and stairwells as measured at the
walking surface, 1 foot-candle at the
middle of corridors and stairwells as
measured at the walking surface, and
10 foot-candles in storage areas); and
(d) Levels essential for safety and security purposes, including exit signs
and exterior lights.
§ 102–74.185 What heating and cooling
policy must Federal agencies follow
in Federal facilities?
Within the limitations of the building systems, Federal agencies must—
(a) Operate heating and cooling systems in the most overall energy efficient and economical manner;
(b) Maintain temperatures to maximize customer satisfaction by conforming to local commercial equivalent temperature levels and operating
practices;
(c) Set heating temperatures no higher than 55 degrees Fahrenheit during
non-working hours;
(d) Not provide air-conditioning during non-working hours, except as necessary to return space temperatures to
a suitable level for the beginning of
working hours;
(e) Not permit reheating, humidification and simultaneous heating and
cooling; and
(f) Operate building systems as necessary during extreme weather conditions to protect the physical condition
of the building.
§ 102–74.190 Are portable heaters, fans
and other such devices allowed in
Government-controlled facilities?
Federal agencies are prohibited from
operating portable heaters, fans, and
other such devices in Government-controlled facilities unless authorized by
the Federal agency buildings manager.
§ 102–74.195 What ventilation policy
must Federal agencies follow?
During working hours in periods of
heating and cooling, Federal agencies
must provide ventilation in accordance
with ASHRAE Standard 62, Ventilation
for Acceptable Indoor Air Quality,
where physically practical. Where not
physically practical, Federal agencies
must provide the maximum allowable
amount of ventilation during periods of
heating and cooling and pursue opportunities to increase ventilation up to
current standards. ASHRAE Standard
62 is available from ASHRAE Publications Sales, 1791 Tullie Circle NE, Atlanta, GA 30329–2305.
§ 102–74.200 What information are Federal agencies required to report to
the Department of Energy (DOE)?
Federal agencies, upon approval of
GSA, must report to the DOE the energy consumption in buildings, facilities, vehicles, and equipment within 45
calendar days after the end of each
quarter as specified in the DOE Federal
Energy Usage Report DOE F 6200.2 Instructions.
RIDESHARING
§ 102–74.205 What Federal facility ridesharing policy must Executive
agencies follow?
(a) In accordance with Executive
Order 12191, ‘‘Federal Facility Ridesharing Program’’ (3 CFR, 1980 Comp.,
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Federal Management Regulation
§ 102–74.240
p. 138), Executive agencies must actively promote the use of ridesharing
(carpools, vanpools, privately leased
buses, public transportation, and other
multi-occupancy modes of travel) by
personnel working at Federal facilities
to conserve energy, reduce congestion,
improve air quality, and provide an economical way for Federal employees to
commute to work.
(b) In accordance with the Federal
Employees Clean Air Incentives Act
(Public Law 103–172), the Federal Government is required to take steps to
improve the air quality, and to reduce
traffic congestion by providing for the
establishment of programs that encourage Federal employees to commute to work by means other than single-occupancy motor vehicles.
(c) In accordance with the Transportation Equity Act for the 21st Century
(Public Law 105–178), employers, including the Federal Government, are to
offer employees transportation fringe
benefits.
§ 102–74.210 What steps must Executive agencies take to promote ridesharing at Federal facilities?
(a) Under Executive Order 12191,
‘‘Federal Facility Ridesharing Program,’’ agencies shall—
(1) Establish an annual ridesharing
goal for each facility; and
(2) Cooperate with State and local
ridesharing agencies where such agencies exist.
(b) Under the Federal Employees
Clean Air Incentives Act (Public Law
103–172), agencies shall—
(1) Issue transit passes or similar
vouchers to exchange for transit
passes;
(2) Furnish space, facilities, and services to bicyclists;
(3) Provide non-monetary incentives
as provided by other provisions of law
or other authority; and
(4) Submit biennially to GSA (as directed in House of Representatives Report 103–356, dated November 10, 1993) a
report that covers—
(i) Agency programs offered under
Public law 103–172;
(ii) Description of each program;
(iii) Extent of employee participation
in, and costs to the Government associated with, each program;
(iv) Assessment of environmental or
other benefits realized from these programs; and
(v) Other matters that may be appropriate under Public Law 103–172.
(c) In accordance with the Transportation Equity Act for the 21st Century,
agencies may (in lieu of or in combination with other commuter benefits)
provide fringe benefits to qualified
commuters, at no cost, by giving them
a monthly pretax payroll deduction to
support and encourage the use of mass
transportation systems.
§§ 102–74.215—102–74.225
OCCUPANT EMERGENCY PROGRAM
§ 102–74.230 Who is responsible for establishing an occupant emergency
program?
The Designated Official (as defined in
§ 102–71.20 of this chapter) is responsible
for developing, implementing and
maintaining an Occupant Emergency
Plan (as defined in § 102–71.20 of this
chapter). The Designated Official’s responsibilities
include
establishing,
staffing and training an Occupant
Emergency Organization with agency
employees. Federal agencies, upon approval from GSA, must assist in the establishment and maintenance of such
plans and organizations.
§ 102–74.235 Are occupant agencies required to cooperate with the Designated Official in the implementation of the emergency plans and the
staffing of the emergency organization?
Yes, all occupant agencies of a facility must fully cooperate with the Designated Official in the implementation
of the emergency plans and the staffing
of the emergency organization.
§ 102–74.240 What are Federal agencies’ occupant emergency responsibilities?
Federal agencies, upon approval from
GSA, must—
(a) Provide emergency program policy guidance;
(b) Review plans and organizations
annually;
(c) Assist in training of personnel;
(d) Otherwise provide for the proper
administration of Occupant Emergency
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§ 102–74.245
41 CFR Ch. 102 (7–1–16 Edition)
Programs (as defined in § 102–71.20 of
this chapter);
(e) Solicit the assistance of the lessor
in the establishment and implementation of plans in leased space; and
(f) Assist the Occupant Emergency
Organization (as defined in § 102–71.20 of
this chapter) by providing technical
personnel qualified in the operation of
utility systems and protective equipment.
§ 102–74.245 Who makes the decision to
activate the Occupant Emergency
Organization?
The decision to activate the Occupant Emergency Organization must be
made by the Designated Official, or by
the designated alternate official. After
normal duty hours, the senior Federal
official present must represent the Designated Official or his/her alternates
and must initiate action to cope with
emergencies in accordance with the
plans.
§ 102–74.250 What information must
the Designated Official use to make
a decision to activate the Occupant
Emergency Organization?
The Designated Official must make a
decision to activate the Occupant
Emergency Organization based upon
the best available information, including—
(a) An understanding of local tensions;
(b) The sensitivity of target agency(ies);
(c) Previous experience with similar
situations;
(d) Advice from the Federal agency
buildings manager;
(e) Advice from the appropriate Federal law enforcement official; and
(f) Advice from Federal, State, and
local law enforcement agencies.
§ 102–74.255 How must occupant evacuation or relocation be accomplished when there is immediate
danger to persons or property, such
as fire, explosion or the discovery
of an explosive device (not including a bomb threat)?
The Designated Official must initiate
action to evacuate or relocate occupants in accordance with the plan by
sounding the fire alarm system or by
other appropriate means when there is
immediate danger to persons or property, such as fire, explosion or the discovery of an explosive device (not including a bomb threat).
§ 102–74.260 What action must the Designated Official initiate when there
is advance notice of an emergency?
The Designated Official must initiate
appropriate action according to the
plan when there is advance notice of an
emergency.
PARKING FACILITIES
§ 102–74.265 Who must provide for the
regulation and policing of parking
facilities?
Federal agencies, upon approval from
GSA, must provide for any necessary
regulation and policing of parking facilities, which may include—
(a) The issuance of traffic rules and
regulations;
(b) The installation of signs and
markings for traffic control (Signs and
markings must conform with the Manual on Uniform Traffic Control Devices
published by the Department of Transportation);
(c) The issuance of citations for parking violations; and
(d) The immobilization or removal of
illegally parked vehicles.
§ 102–74.270 Are vehicles required to
display parking permits in parking
facilities?
When the use of parking space is controlled as in § 102–74.265, all privately
owned vehicles other than those authorized to use designated visitor or
service areas must display a parking
permit. This requirement may be
waived in parking facilities where the
number of available spaces regularly
exceeds the demand for such spaces.
§ 102–74.275 May Federal agencies authorize lessors or parking management contractors to manage, regulate and police parking facilities?
Yes, Federal agencies, upon approval
from GSA, may authorize lessors or
parking management contractors to
manage, regulate and police parking
facilities.
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Federal Management Regulation
§ 102–74.305
§ 102–74.280 Are privately owned vehicles
converted
for
propane
carburetion permitted in underground parking facilities?
§ 102–74.290 May
Federal
agencies
allow employees to use parking
spaces not required for official
needs?
Federal agencies must not permit
privately owned vehicles converted for
propane carburetion to enter underground parking facilities unless the
owner provides to the occupant agency
and the Federal agency buildings manager the installer’s certification that
the installation methods and equipment comply with National Fire Protection Association (NFPA) Standard
No. 58.
Yes, Federal agencies may allow employees to use parking spaces not required for official needs.
§ 102–74.285 How must Federal agencies assign priority to parking
spaces in controlled areas?
Federal agencies must reserve official parking spaces, in the following
order of priority, for—
(a) Official postal vehicles at buildings containing the U.S. Postal Service’s mailing operations;
(b) Federally owned vehicles used to
apprehend criminals, fight fires and
handle other emergencies;
(c) Private vehicles owned by Members of Congress (but not their staffs);
(d) Private vehicles owned by Federal
judges (appointed under Article III of
the Constitution), which may be
parked in those spaces assigned for the
use of the Court, with priority for them
set by the Administrative Office of the
U.S. Courts;
(e) Other Federally owned and leased
vehicles, including those in motor
pools or assigned for general use;
(f) Service vehicles, vehicles used in
child care center operations, and vehicles of patrons and visitors (Federal
agencies must allocate parking for disabled visitors whenever an agency’s
mission requires visitor parking); and
(g) Private vehicles owned by employees, using spaces not needed for official business.
However, in major metropolitan
areas, Federal agencies may determine
that allocations by zone would make
parking more efficient or equitable,
taking into account the priority for official parking set forth in this section.
§ 102–74.295 Who determines the number of employee parking spaces for
each facility?
The Federal agency buildings manager must determine the total number
of spaces available for employee parking. Typically, Federal agencies must
make a separate determination for
each parking facility. However, in
major metropolitan areas, Federal
agencies may determine that allocations by zone would make parking
more efficient or more equitably available.
§ 102–74.300 How must space available
for employee parking be allocated
among occupant agencies?
The Federal agency buildings manager must allocate space available for
employee parking among occupant
agencies on an equitable basis, such as
by allocating such parking in proportion to each agency’s share of building
space, office space or total employee
population, as appropriate. In certain
cases, Federal agencies may allow a
third party, such as a board composed
of representatives of agencies sharing
space, to determine proper parking allocations among the occupant agencies.
§ 102–74.305 How must Federal agencies assign available parking spaces
to their employees?
Federal agencies must assign available parking spaces to their employees
using the following order of priority:
(a) Severely disabled employees (see
definition in § 102–71.20 of this chapter).
(b) Executive personnel and persons
who work unusual hours.
(c) Vanpool/carpool vehicles.
(d) Privately owned vehicles of occupant agency employees that are regularly used for Government business at
least 12 days per month and that qualify for reimbursement of mileage and
travel expenses under Government
travel regulations.
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§ 102–74.310
41 CFR Ch. 102 (7–1–16 Edition)
(e) Other privately owned vehicles of
employees, on a space-available basis.
(In locations where parking allocations
are made on a zonal basis, GSA and affected agencies may cooperate to issue
additional rules, as appropriate.)
§ 102–74.310 What measures must Federal agencies take to improve the
utilization of parking facilities?
Federal agencies must take all feasible measures to improve the utilization of parking facilities, including—
(a) The conducting of surveys and
studies;
(b) The periodic review of parking
space allocations;
(c) The dissemination of parking information to occupant agencies;
(d) The implementation of parking
incentives that promote ridesharing;
(e) The use of stack parking practices, where appropriate; and
(f) The employment of parking management
contractors
and
concessionaires, where appropriate.
SMOKING
§ 102–74.315 What is the smoking policy for interior space in Federal facilities?
Pursuant to Executive Order 13058,
‘‘Protecting Federal Employees and
the Public From Exposure to Tobacco
Smoke in the Federal Workplace’’ (3
CFR, 1997 Comp., p. 216), it is the policy
of the executive branch to establish a
smoke-free environment for Federal
employees and members of the public
visiting or using Federal facilities. The
smoking of tobacco products is prohibited in all interior space owned, rented
or leased by the executive branch of
the Federal Government.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.320 Are there any exceptions
to the smoking policy for interior
space in Federal facilities?
Yes, the smoking policy does not
apply in—
(a) Any residential accommodation
for persons voluntarily or involuntarily residing, on a temporary or longterm basis, in a building owned, leased
or rented by the Federal Government;
(b) Portions of Federally owned
buildings leased, rented or otherwise
provided in their entirety to non-Federal parties;
(c) Places of employment in the private sector or in other non-Federal
Governmental units that serve as the
permanent or intermittent duty station of one or more Federal employees;
and
(d) Instances where an agency head
establishes limited and narrow exceptions that are necessary to accomplish
agency missions. Such exceptions must
be in writing, approved by the agency
head and, to the fullest extent possible,
provide protection of nonsmokers from
exposure to environmental tobacco
smoke. Authority to establish such exceptions may not be delegated.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.325 Are designated smoking
areas authorized in interior space?
No, unless specifically established by
an agency head as provided by § 102–
74.320(d). A previous exception for designated smoking areas is being eliminated. All designated interior smoking
areas will be closed effective June 19,
2009. This six-month phase-in period is
designed to establish a fixed but reasonable time for implementing this
policy change. This phase-in period
will provide agencies with time to comply with their obligations under the
Federal Service Labor-Management
Relations Act, as amended, 5 U.S.C. Ch.
71, Labor-Management Relations, in
those circumstances where there is an
exclusive union representative for the
employees.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.330 What smoking restrictions
apply to outside areas under Executive branch control?
Effective June 19, 2009, smoking is
prohibited in courtyards and within
twenty-five (25) feet of doorways and
air intake ducts on outdoor space
under the jurisdiction, custody or control of GSA. This six-month phase-in
period is designed to establish a fixed
but reasonable time for implementing
this policy change. This phase-in period will provide agencies with time to
comply with their obligations under
the Federal Service Labor-Management Relations Act, as amended, 5
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Federal Management Regulation
§ 102–74.360
U.S.C. Ch. 71, Labor-Management Relations, in those circumstances where
there is an exclusive union representative for the employees.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.335 Who is responsible for furnishing and installing signs concerning smoking restrictions in the
building, and in and around building entrance doorways and air intake ducts?
Federal agency building managers
are responsible for furnishing and installing suitable, uniform signs in the
building, and in and around building
entrance doorways and air intake
ducts, reading ‘‘No Smoking,’’ ‘‘No
Smoking Except in Designated Areas,’’
‘‘No Smoking Within 25 Feet of Doorway,’’ or ‘‘No Smoking Within 25 Feet
of Air Duct,’’ as applicable.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.340 Who is responsible for
monitoring and controlling areas
designated for smoking by an agency head and for identifying those
areas with proper signage?
Agency heads are responsible for
monitoring and controlling areas designated by them under § 102–74.320(d)
for smoking and identifying these
areas with proper signage. Suitable,
uniform signs reading ‘‘Designated
Smoking Area’’ must be furnished and
installed by the occupant agency.
§ 102–74.350 Are agencies required to
meet their obligations under the
Federal Service Labor-Management
Relations Act where there is an exclusive representative for the employees prior to implementing this
smoking policy?
Yes. Where there is an exclusive representative for the employees, Federal
agencies must meet their obligations
under the Federal Service Labor-Management Relations Act, 5 U.S.C. Ch. 71,
Labor-Management Relations, prior to
implementing this section. In all other
cases, agencies may consult directly
with employees.
[73 FR 77518, Dec. 19, 2008]
§ 102–74.351 If a state or local government has a smoke-free ordinance
that is more strict than the smoking
policy for Federal facilities, does
the state or local law or Federal
policy control?
The answer depends on whether the
facility is Federally owned or privately
owned. If the facility is Federally
owned, then Federal preemption principles apply and the Federal policy
controls. If the facility is privately
owned, then Federal tenants are subject to the provisions of the state or
local ordinance, even in the Federally
leased space, if the state or local restrictions are more stringent than the
Federal policy.
[73 FR 77518, Dec. 19, 2008]
ACCIDENT AND FIRE PREVENTION
[73 FR 77518, Dec. 19, 2008]
§ 102–74.345 Does the smoking policy
in this part apply to the judicial
branch?
This smoking policy applies to the
judicial branch when it occupies space
in buildings controlled by the executive branch. Furthermore, the Federal
Chief Judge in a local jurisdiction may
be deemed to be comparable to an
agency head and may establish exceptions for Federal jurors and others as
provided in § 102–74.320(d).
[73 FR 77518, Dec. 19, 2008]
§ 102–74.355 With what accident and
fire prevention standards must Federal facilities comply?
To the maximum extent feasible,
Federal agencies must manage facilities in accordance with the accident
and fire prevention requirements identified in § 102–80.80 of this chapter.
§ 102–74.360 What are the specific accident and fire prevention responsibilities of occupant agencies?
Each occupant agency must—
(a) Participate in at least one fire
drill per year;
(b) Maintain a neat and orderly facility to minimize the risk of accidental
injuries and fires;
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§ 102–74.365
41 CFR Ch. 102 (7–1–16 Edition)
(c) Keep all exits, accesses to exits
and accesses to emergency equipment
clear at all times;
(d) Not bring hazardous, explosive or
combustible materials into buildings
unless authorized by appropriate agency officials and by GSA and unless protective arrangements determined necessary by GSA have been provided;
(e) Use only draperies, curtains or
other hanging materials that are made
of non-combustible or flame-resistant
fabric;
(f) Use only freestanding partitions
and space dividers that are limited
combustible, and fabric coverings that
are flame resistant;
(g) Cooperate with GSA to develop
and maintain fire prevention programs
that provide the maximum safety for
the occupants;
(h) Train employees to use protective
equipment and educate employees to
take appropriate fire safety precautions in their work;
(i) Keep facilities in the safest condition practicable, and conduct periodic
inspections in accordance with Executive Order 12196 and 29 CFR part 1960;
(j) Immediately report accidents involving personal injury or property
damage, which result from building
system or maintenance deficiencies, to
the Federal agency building manager;
and
(k) Appoint a safety, health and fire
protection liaison to represent the occupant agency with GSA.
Subpart C—Conduct on Federal
Property
APPLICABILITY
§ 102–74.365 To whom does this subpart apply?
The rules in this subpart apply to all
property under the authority of GSA
and to all persons entering in or on
such property. Each occupant agency
shall be responsible for the observance
of these rules and regulations. Federal
agencies must post the notice in the
Appendix to this part at each public
entrance to each Federal facility.
INSPECTION
§ 102–74.370 What items are subject to
inspection by Federal agencies?
Federal agencies may, at their discretion, inspect packages, briefcases
and other containers in the immediate
possession of visitors, employees or
other persons arriving on, working at,
visiting, or departing from Federal
property. Federal agencies may conduct a full search of a person and the
vehicle the person is driving or occupying upon his or her arrest.
ADMISSION TO PROPERTY
§ 102–74.375 What is the policy on admitting persons to Government
property?
Federal agencies must—
(a) Except as otherwise permitted,
close property to the public during
other than normal working hours. In
those instances where a Federal agency
has approved the after-normal-working-hours use of buildings or portions
thereof for activities authorized by
subpart D of this part, Federal agencies
must not close the property (or affected portions thereof) to the public;
(b) Close property to the public during working hours only when situations require this action to provide for
the orderly conduct of Government
business. The designated official under
the Occupant Emergency Program may
make such decision only after consultation with the buildings manager
and the highest ranking representative
of the law enforcement organization responsible for protection of the property
or the area. The designated official is
defined in § 102–71.20 of this chapter as
the highest ranking official of the primary occupant agency, or the alternate highest ranking official or designee selected by mutual agreement by
other occupant agency officials; and
(c) When property or a portion thereof is closed to the public, restrict admission to the property, or the affected
portion, to authorized persons who
must register upon entry to the property and must, when requested, display
Government or other identifying credentials to Federal police officers or
other authorized individuals when entering, leaving or while on the property. Failure to comply with any of the
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Federal Management Regulation
§ 102–74.405
applicable provisions is a violation of
these regulations.
PRESERVATION OF PROPERTY
§ 102–74.380 What is the policy concerning the preservation of property?
All persons entering in or on Federal
property are prohibited from—
(a) Improperly disposing of rubbish
on property;
(b) Willfully destroying or damaging
property;
(c) Stealing property;
(d) Creating any hazard on property
to persons or things; or
(e) Throwing articles of any kind
from or at a building or climbing upon
statues, fountains or any part of the
building.
CONFORMITY WITH SIGNS AND
DIRECTIONS
§ 102–74.385 What is the policy concerning conformity with official
signs and directions?
Persons in and on property must at
all times comply with official signs of
a prohibitory, regulatory or directory
nature and with the lawful direction of
Federal police officers and other authorized individuals.
DISTURBANCES
§ 102–74.390 What is the policy concerning disturbances?
All persons entering in or on Federal
property are prohibited from loitering,
exhibiting disorderly conduct or exhibiting other conduct on property that—
(a) Creates loud or unusual noise or a
nuisance;
(b) Unreasonably obstructs the usual
use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or
parking lots;
(c) Otherwise impedes or disrupts the
performance of official duties by Government employees; or
(d) Prevents the general public from
obtaining the administrative services
provided on the property in a timely
manner.
GAMBLING
§ 102–74.395 What is the policy concerning gambling?
(a) Except for the vending or exchange of chances by licensed blind operators of vending facilities for any
lottery set forth in a State law and authorized by section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107 et
seq.), all persons entering in or on Federal property are prohibited from—
(1) Participating in games for money
or other personal property;
(2) Operating gambling devices;
(3) Conducting a lottery or pool; or
(4) Selling or purchasing numbers
tickets.
(b) This provision is not intended to
prohibit prize drawings for personal
property at otherwise permitted functions on Federal property, provided
that the game or drawing does not constitute gambling per se. Gambling per
se means a game of chance where the
participant risks something of value
for the chance to gain or win a prize.
NARCOTICS AND OTHER DRUGS
§ 102–74.400 What is the policy concerning the possession and use of
narcotics and other drugs?
Except in cases where the drug is
being used as prescribed for a patient
by a licensed physician, all persons entering in or on Federal property are
prohibited from—
(a) Being under the influence, using
or possessing any narcotic drugs,
hallucinogens,
marijuana,
barbiturates, or amphetamines; or
(b) Operating a motor vehicle on the
property while under the influence of
alcoholic beverages, narcotic drugs,
hallucinogens,
marijuana,
barbiturates, or amphetamines.
ALCOHOLIC BEVERAGES
§ 102–74.405 What is the policy concerning the use of alcoholic beverages?
Except where the head of the responsible agency or his or her designee has
granted an exemption in writing for
the appropriate official use of alcoholic
beverages, all persons entering in or on
Federal property are prohibited from
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§ 102–74.410
41 CFR Ch. 102 (7–1–16 Edition)
being under the influence or using alcoholic beverages. The head of the responsible agency or his or her designee
must provide a copy of all exemptions
granted to the buildings manager and
the highest ranking representative of
the law enforcement organization, or
other authorized officials, responsible
for the security of the property.
SOLICITING, VENDING AND DEBT
COLLECTION
§ 102–74.410 What is the policy concerning soliciting, vending and debt
collection?
All persons entering in or on Federal
property are prohibited from soliciting
alms (including money and non-monetary items) or commercial or political
donations, vending merchandise of all
kinds, displaying or distributing commercial advertising, or collecting private debts, except for—
(a) National or local drives for funds
for welfare, health or other purposes as
authorized by 5 CFR part 950, entitled
‘‘Solicitation Of Federal Civilian And
Uniformed Service Personnel For Contributions To Private Voluntary Organizations,’’ and sponsored or approved
by the occupant agencies;
(b) Concessions or personal notices
posted by employees on authorized bulletin boards;
(c) Solicitation of labor organization
membership or dues authorized by occupant agencies under the Civil Service
Reform Act of 1978 (Pub. L. 95–454);
(d) Lessee, or its agents and employees, with respect to space leased for
commercial, cultural, educational, or
recreational use under 40 U.S.C. 581(h).
Public areas of GSA-controlled property may be used for other activities in
accordance with subpart D of this part;
(e) Collection of non-monetary items
that are sponsored or approved by the
occupant agencies; and
(f) Commercial activities sponsored
by recognized Federal employee associations and on-site child care centers.
(a) Distributing free samples of tobacco products in or around Federal
buildings, as mandated by Section 636
of Public Law 104–52;
(b) Posting or affixing materials,
such as pamphlets, handbills, or flyers,
on bulletin boards or elsewhere on
GSA-controlled property, except as authorized in § 102–74.410, or when these
displays are conducted as part of authorized Government activities; and
(c) Distributing materials, such as
pamphlets, handbills or flyers, unless
conducted as part of authorized Government activities. This prohibition
does not apply to public areas of the
property as defined in § 102–71.20 of this
chapter. However, any person or organization proposing to distribute materials in a public area under this section
must first obtain a permit from the
building manager as specified in subpart D of this part. Any such person or
organization must distribute materials
only in accordance with the provisions
of subpart D of this part. Failure to
comply with those provisions is a violation of these regulations.
PHOTOGRAPHS FOR NEWS, ADVERTISING
OR COMMERCIAL PURPOSES
§ 102–74.420 What is the policy concerning photographs for news, advertising or commercial purposes?
Except where security regulations,
rules, orders, or directives apply or a
Federal court order or rule prohibits it,
persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only
with the permission of the occupying
agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with
written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news
purposes.
DOGS AND OTHER ANIMALS
POSTING AND DISTRIBUTING MATERIALS
§ 102–74.415 What is the policy for
posting and distributing materials?
All persons entering in or on Federal
property are prohibited from—
§ 102–74.425 What is the policy concerning dogs and other animals on
Federal property?
No person may bring dogs or other
animals on Federal property for other
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Federal Management Regulation
§ 102–74.450
than official purposes. However, a disabled person may bring a seeing-eye
dog, a guide dog, or other animal assisting or being trained to assist that
individual.
BREASTFEEDING
§ 102–74.426 May a woman breastfeed
her child in a Federal building or
on Federal property?
Yes. Public Law 108–199, Section 629,
Division F, Title VI (January 23, 2004),
provides that a woman may breastfeed
her child at any location in a Federal
building or on Federal property, if the
woman and her child are otherwise authorized to be present at the location.
VEHICULAR AND PEDESTRIAN TRAFFIC
§ 102–74.430 What is the policy concerning vehicular and pedestrian
traffic on Federal property?
All vehicle drivers entering or while
on Federal property—
(a) Must drive in a careful and safe
manner at all times;
(b) Must comply with the signals and
directions of Federal police officers or
other authorized individuals;
(c) Must comply with all posted traffic signs;
(d) Must comply with any additional
posted traffic directives approved by
the GSA Regional Administrator,
which will have the same force and effect as these regulations;
(e) Are prohibited from blocking entrances, driveways, walks, loading
platforms, or fire hydrants; and
(f) Are prohibited from parking on
Federal property without a permit.
Parking without authority, parking in
unauthorized locations or in locations
reserved for other persons, or parking
contrary to the direction of posted
signs is prohibited. Vehicles parked in
violation, where warning signs are
posted, are subject to removal at the
owner’s risk and expense. Federal agencies may take as proof that a motor vehicle was parked in violation of these
regulations or directives as prima facie
evidence that the registered owner was
responsible for the violation.
EXPLOSIVES
§ 102–74.435 What is the policy concerning explosives on Federal property?
No person entering or while on Federal property may carry or possess explosives, or items intended to be used
to fabricate an explosive or incendiary
device, either openly or concealed, except for official purposes.
WEAPONS
§ 102–74.440 What is the policy concerning weapons on Federal property?
Federal law prohibits the possession
of firearms or other dangerous weapons
in Federal facilities and Federal court
facilities by all persons not specifically
authorized by 18 U.S.C. 930. Violators
will be subject to fine and/or imprisonment for periods up to five (5) years.
NONDISCRIMINATION
§ 102–74.445 What is the policy concerning discrimination on Federal
property?
Federal agencies must not discriminate by segregation or otherwise
against any person or persons because
of race, creed, religion, age, sex, color,
disability, or national origin in furnishing or by refusing to furnish to
such person or persons the use of any
facility of a public nature, including
all services, privileges, accommodations, and activities provided on the
property.
PENALTIES
§ 102–74.450 What are the penalties for
violating any rule or regulation in
this subpart?
A person found guilty of violating
any rule or regulation in this subpart
while on any property under the charge
and control of GSA shall be fined under
title 18 of the United States Code, imprisoned for not more than 30 days, or
both.
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§ 102–74.455
41 CFR Ch. 102 (7–1–16 Edition)
IMPACT ON OTHER LAWS OR
REGULATIONS
§ 102–74.455 What impact do the rules
and regulations in this subpart
have on other laws or regulations?
No rule or regulation in this subpart
may be construed to nullify any other
Federal laws or regulations or any
State and local laws and regulations
applicable to any area in which the
property is situated (40 U.S.C. 121 (c)).
Subpart D—Occasional Use of
Public Buildings
§ 102–74.460 What is the scope of this
subpart?
This subpart establishes rules and
regulations for the occasional use of
public areas of public buildings for cultural, educational and recreational activities as provided by 40 U.S.C.
581(h)(2).
APPLICATION FOR PERMIT
§ 102–74.465 Is a person or organization that wishes to use a public
area required to apply for a permit
from a Federal agency?
Yes, any person or organization wishing to use a public area must file an application for a permit from the Federal
agency buildings manager.
§ 102–74.470 What information must
persons or organizations submit so
that Federal agencies may consider
their application for a permit?
Applicants must submit the following information:
(a) Their full names, mailing addresses, and telephone numbers.
(b) The organization sponsoring the
proposed activity.
(c) The individual(s) responsible for
supervising the activity.
(d) Documentation showing that the
applicant has authority to represent
the sponsoring organization.
(e) A description of the proposed activity, including the dates and times
during which it is to be conducted and
the number of persons to be involved.
§ 102–74.475 If an applicant proposes
to use a public area to solicit funds,
is the applicant required to make a
certification?
Yes, if an applicant proposes to use a
public area to solicit funds, the applicant must certify, in writing, that—
(a) The applicant is a representative
of and will be soliciting funds for the
sole benefit of a religion or religious
group; or
(b) The applicant’s organization has
received an official ruling of tax-exempt status from the Internal Revenue
Service under 26 U.S.C. 501; or, alternatively, that an application for such a
ruling is still pending.
PERMITS
§ 102–74.480 How many days does a
Federal agency have to issue a permit following receipt of a completed
application?
Federal agencies must issue permits
within 10 working days following the
receipt of the completed applications,
unless the permit is disapproved in accordance with § 102–74.500.
§ 102–74.485 Is there any limitation on
the length of time of a permit?
Yes, a permit may not be issued for a
period of time in excess of 30 calendar
days, unless specifically approved by
the Regional Officer (as defined in
§ 102–71.20 of this chapter). After the expiration of a permit, Federal agencies
may issue a new permit upon submission of a new application. In such a
case, applicants may incorporate by
reference all required information filed
with the prior application.
§ 102–74.490 What if more than one
permit is requested for the same
area and time?
Federal agencies will issue permits
on a first-come, first-served, basis
when more than one permit is requested for the same area and times.
§ 102–74.495 If a permit involves demonstrations or activities that may
lead to civil disturbances, what action must a Federal agency take before approving such a permit application?
Before approving a permit application, Federal agencies must coordinate
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Federal Management Regulation
§ 102–74.530
with their law enforcement organization if a permit involves demonstrations or activities that may lead to
civil disturbances.
in § 102–71.20 of this chapter), in writing, of the intent to appeal within 5
calendar days of the notification of disapproval or cancellation.
DISAPPROVAL OF APPLICATIONS OR
CANCELLATION OF PERMITS
§ 102–74.515 Will the affected person or
organization and the Federal agency buildings manager have an opportunity to state their positions on
the issues?
Yes, during the appeal process, the
affected person or organization and the
Federal agency buildings manager will
have an opportunity to state their positions on the issues, both verbally and
in writing.
§ 102–74.500 Can Federal agencies disapprove permit applications or cancel issued permits?
Yes, Federal agencies may disapprove
any permit application or cancel an
issued permit if—
(a) The applicant has failed to submit
all information required under §§ 102–
74.470 and 102–74.475, or has falsified
such information;
(b) The proposed use is a commercial
activity as defined in § 102–71.20 of this
chapter;
(c) The proposed use interferes with
access to the public area, disrupts official Government business, interferes
with approved uses of the property by
tenants or by the public, or damages
any property;
(d) The proposed use is intended to
influence or impede any pending judicial proceeding;
(e) The proposed use is obscene within the meaning of obscenity as defined
in 18 U.S.C. 1461–65; or
(f) The proposed use violates the prohibition against political solicitations
in 18 U.S.C. 607.
§ 102–74.505 What action must Federal
agencies take after disapproving an
application or canceling an issued
permit?
Upon disapproving an application or
canceling a permit, Federal agencies
must promptly—
(a) Notify the applicant or permittee
of the reasons for the action; and
(b) Inform the applicant or permittee
of his/her appeal rights under § 102–
74.510.
APPEALS
§ 102–74.510 How may the disapproval
of a permit application or cancellation of an issued permit be appealed?
A person or organization may appeal
the disapproval of an application or
cancellation of an issued permit by notifying the Regional Officer (as defined
§ 102–74.520 How much time does the
Regional Officer have to affirm or
reverse the Federal agency buildings manager’s decision after receiving the notification of appeal
from the affected person or organization?
The Regional Officer must affirm or
reverse the Federal agency buildings
manager’s decision, based on the information submitted, within 10 calendar
days of the date on which the Regional
Officer received notification of the appeal. If the decision is not rendered
within 10 days, the application will be
considered to be approved or the permit validly issued. The Regional Officer will promptly notify the applicant
or permittee and the buildings manager of the decision and the reasons
therefor.
SCHEDULE OF USE
§ 102–74.525 May Federal agencies reserve time periods for the use of
public areas for official Government business or for maintenance,
repair and construction?
Yes, Federal agencies may reserve
certain time periods for use of public
areas—
(a) For official Government business;
or
(b) For maintenance, repair, and construction.
HOURS OF USE
§ 102–74.530 When may public areas be
used?
Permittees may use public areas during or after regular working hours of
Federal agencies, provided that such
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§ 102–74.535
41 CFR Ch. 102 (7–1–16 Edition)
uses will not interfere with Government business. When public areas are
used by permittees after normal working hours, Federal agencies must lock,
barricade or identify by signs, as appropriate, all adjacent areas not approved for such use to restrict permittees’ activities to approved areas.
SERVICES AND COSTS
§ 102–74.535 What items may Federal
agencies provide to permittees free
of charge?
Federal agencies may provide to permittees at no cost—
(a) Space; and
(b) Services normally provided at the
building in question during normal
hours of building operation, such as security, cleaning, heating, ventilation,
and air-conditioning. The Regional Officer must approve an applicant’s request to provide its own services, such
as security and cleaning, prior to permit approval.
§ 102–74.540 What are the items for
which permittees must reimburse
Federal agencies?
Permittees must reimburse Federal
agencies for services over and above
those normally provided during normal
business hours. Federal agencies may
provide the services free of charge if
the cost is insignificant and if it is in
the public interest.
§ 102–74.545 May permittees make alterations to the public areas?
Permittees must not make alterations to public areas, except with the
prior written approval of the Federal
agency buildings manager. Federal
agencies must not approve such alterations unless the Federal agency determines that the proposed alterations to
a building should be made to encourage
and aid in the proposed use. Permittees
making alterations must ensure the
safety of users and prevent damage to
property.
§ 102–74.550 What items are permittees
responsible for furnishing?
Permittees are responsible for furnishing items such as tickets, audiovisual equipment, and other items that
are necessary for the proposed use.
CONDUCT
§ 102–74.555 What rules of conduct
must all permittees observe while
on Federal property?
Permittees are subject to all rules
and regulations governing conduct on
Federal property as set forth in subpart C of this part. In addition, a permittee must—
(a) Not misrepresent his or her identity to the public;
(b) Not conduct any activities in a
misleading or fraudulent manner;
(c) Not discriminate on the basis of
race, creed, religion, age, color, disability, sex, or national origin in conducting activities;
(d) Not distribute any item, nor post
or otherwise affix any item, for which
prior written approval under § 102–74.415
has not been obtained;
(e) Not leave leaflets or other materials unattended on the property;
(f) Not engage in activities that
would interfere with the preferences afforded blind licensees under the Randolph-Sheppard Act (20 U.S.C. 107); and
(g) Display identification badges
while on Federal property, if engaging
in the solicitation of funds as authorized by § 102–74.475. Each badge must indicate the permittee’s name, address,
telephone number, and organization.
NON-AFFILIATION WITH THE
GOVERNMENT
§ 102–74.560 May Federal agencies advise the public of the presence of
any permittees and their non-affiliation with the Federal Government?
Yes, Federal agencies reserve the
right to advise the public through signs
or announcements of the presence of
any permittees and of their non-affiliation with the Federal Government.
Subpart E—Installing, Repairing,
and Replacing Sidewalks
§ 102–74.565 What is the scope of this
subpart?
In accordance with 40 U.S.C. 589, Federal agencies must comply with the
real property policies in this subpart
governing the installation, repair and
replacement of sidewalks around buildings,
installations,
properties,
or
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Federal Management Regulation
§ 102–74.590
grounds under the control of Executive
agencies and owned by the United
States.
§ 102–74.570 Are State and local governments required to fund the cost
of installing, repairing, and replacing sidewalks?
No, the Federal Government must
fund the cost of installing, repairing,
and replacing sidewalks. Funds appropriated to the agency for installation,
repair, and maintenance, generally,
must be available for expenditure to
accomplish the purposes of this subpart.
§ 102–74.575 How do Federal agencies
arrange for work on sidewalks?
Upon approval from GSA, Federal
agencies may—
(a) Authorize the appropriate State
or local government to install, repair
and replace sidewalks, or arrange for
this work, and reimburse them for this
work; or
(b) Contract or otherwise arrange and
pay directly for installing, repairing
and/or replacing sidewalks.
§ 102–74.580 Who decides when to replace a sidewalk?
Federal agencies, giving due consideration to State and local standards
and specifications for sidewalks, decide
when to install, repair or replace a
sidewalk. However, Federal agencies
may prescribe other standards and
specifications for sidewalks whenever
necessary to achieve architectural harmony and maintain facility security.
Subpart F—Telework
§ 102–74.585 What
Federal
facility
telework policy must Executive
agencies follow?
Executive agencies must follow these
telework policies:
(a) In accordance with Section 359 of
Public Law 106–346, each Executive
agency must establish a policy under
which eligible employees of the agency
may participate in telecommuting to
the maximum extent possible without
diminished
employee
performance.
Public 106–346 became effective on October 23, 2000, and required the Director
of the Office of Personnel Management
(OPM) to ensure the application and
implementation of Section 359 to 25
percent of the Federal workforce by
April 2001, and to an additional 25 percent of such workforce each year thereafter. Thus, the law provides that its
requirements must be applied to 100
percent of the Federal workforce by
April 2004.
(b) In accordance with 40 U.S.C. 587,
when considering whether to acquire
any space, quarters, buildings, or other
facilities for use by employees of any
Executive agency, the head of that
agency shall consider whether the need
for the facilities can be met using alternative workplace arrangements.
§ 102–74.590 What steps must agencies
take to implement these laws and
policies?
(a) As interpreted by OPM Memorandum to agencies (February 9, 2001),
Public Law 106–346 instructs Federal
agencies to—
(1) Review telework barriers, act to
remove them, and increase actual participation;
(2) Establish eligibility criteria; and
(3) Subject to any applicable agency
policies or bargaining obligations,
allow employees who meet the criteria
and want to participate the opportunity if they are satisfactory performers.
(b) 40 U.S.C. 587 requires agencies
considering the acquisition of facilities
for use by Federal employees to consider whether the facility need can be
met using alternative workplace arrangements, such as telecommuting,
hoteling, virtual offices, and other distributive work arrangements. If the
agency needs assistance in this investigation and/or subsequent application
of alternative workplace arrangements, GSA will provide guidance, assistance, and oversight, as needed, regarding establishment and operation of
alternative workplace arrangements.
(c) Agencies evaluating alternative
workplace arrangements should also
make these evaluations in coordination
with Integrated Workplace policies and
strategies. See § 102–79.110.
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§ 102–74.595
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–74.595 How can agencies obtain
guidance, assistance, and oversight
regarding alternative workplace arrangements from GSA?
Agencies may request assistance
from the GSA/PBS regional office responsible for providing space in the geographic area under consideration.
§ 102–74.600 Should Federal agencies
utilize telework centers?
Yes. In accordance with Public Law
107–217 (August 21, 2002), each of the following departments and agencies, in
each fiscal year, must make at least
$50,000 available from amounts provided for salaries and expenses for carrying out a flexiplace work telecommuting program (i.e., to pay telework
center program user fees):
(a) Department of Agriculture.
(b) Department of Commerce.
(c) Department of Defense.
(d) Department of Education.
(e) Department of Energy.
(f) Department of Health and Human
Services.
(g) Department of Housing and Urban
Development.
(h) Department of the Interior.
(i) Department of Justice.
(j) Department of Labor.
(k) Department of State.
(l) Department of Transportation.
(m) Department of the Treasury.
(n) Department of Veterans Affairs.
(o) Environmental Protection Agency.
(p) General Services Administration.
(q) Office of Personnel Management.
(r) Small Business Administration.
(s) Social Security Administration.
(t) United States Postal Service.
APPENDIX TO PART 102–74—RULES AND
REGULATIONS GOVERNING CONDUCT
ON FEDERAL PROPERTY
FEDERAL MANAGEMENT REGULATIONS
TITLE 41, CODE OF FEDERAL REGULATIONS,
PART 102–74, SUBPART C
Applicability (41 CFR 102–74.365). The rules
in this subpart apply to all property under
the authority of the U.S. General Services
Administration and to all persons entering
in or on such property. Each occupant agency shall be responsible for the observance of
these rules and regulations. Federal agencies
must post the notice in the Appendix to part
102–74 at each public entrance to each Federal facility.
Inspection (41 CFR 102–74.370). Federal agencies may, at their discretion, inspect packages, briefcases and other containers in the
immediate possession of visitors, employees
or other persons arriving on, working at, visiting, or departing from Federal property.
Federal agencies may conduct a full search
of a person and the vehicle the person is
driving or occupying upon his or her arrest.
Admission to Property (41 CFR 102–74.375).
Federal agencies must—
(a) Except as otherwise permitted, close
property to the public during other than normal working hours. In those instances where
a Federal agency has approved the after-normal-working-hours use of buildings or portions thereof for activities authorized by
subpart D of this part, Federal agencies must
not close the property (or affected portions
thereof) to the public;
(b) Close property to the public during
working hours only when situations require
this action to provide for the orderly conduct of Government business. The designated
official under the Occupant Emergency Program may make such decision only after
consultation with the buildings manager and
the highest ranking representative of the
law enforcement organization responsible for
protection of the property or the area. The
designated official is defined in § 102–71.20 of
this chapter as the highest ranking official
of the primary occupant agency, or the alternate highest ranking official or designee selected by mutual agreement by other occupant agency officials; and
(c) When property or a portion thereof is
closed to the public, restrict admission to
the property, or the affected portion, to authorized persons who must register upon
entry to the property and must, when requested, display Government or other identifying credentials to Federal police officers or
other authorized individuals when entering,
leaving or while on the property. Failure to
comply with any of the applicable provisions
is a violation of these regulations.
Preservation of Property (41 CFR 102–74.380).
All persons entering in or on Federal property are prohibited from—
(a) Improperly disposing of rubbish on
property;
(b) Willfully destroying or damaging property;
(c) Stealing property;
(d) Creating any hazard on property to persons or things; and
(e) Throwing articles of any kind from or
at a building or the climbing upon statues,
fountains or any part of the building.
Conformity with Signs and Directions (41 CFR
102–74.385). Persons in and on property must
at all times comply with official signs of a
prohibitory, regulatory or directory nature
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Federal Management Regulation
Pt. 102–74, App.
and with the lawful direction of Federal police officers and other authorized individuals.
Disturbances (41 CFR 102–74.390). All persons
entering in or on Federal property are prohibited from loitering, exhibiting disorderly
conduct or exhibiting other conduct on property that—
(a) Creates loud or unusual noise or a nuisance;
(b) Unreasonably obstructs the usual use of
entrances, foyers, lobbies, corridors, offices,
elevators, stairways, or parking lots;
(c) Otherwise impedes or disrupts the performance of official duties by Government
employees; or
(d) Prevents the general public from obtaining the administrative services provided
on the property in a timely manner.
Gambling (41 CFR 102–74.395). Except for the
vending or exchange of chances by licensed
blind operators of vending facilities for any
lottery set forth in a State law and authorized by section 2(a)(5) of the RandolphSheppard Act (20 U.S.C. 107 et seq.), all persons entering in or on Federal property are
prohibited from—
(a) Participating in games for money or
other personal property;
(b) Operating gambling devices;
(c) Conducting a lottery or pool; or
(d) Selling or purchasing numbers tickets.
Narcotics and Other Drugs (41 CFR 102–
74.400). Except in cases where the drug is
being used as prescribed for a patient by a licensed physician, all persons entering in or
on Federal property are prohibited from—
(a) Being under the influence, using or possessing any narcotic drugs, hallucinogens,
marijuana, barbiturates, or amphetamines;
or
(b) Operating a motor vehicle on the property while under the influence of alcoholic
beverages, narcotic drugs, hallucinogens,
marijuana, barbiturates, or amphetamines.
Alcoholic Beverages (41 CFR 102–74.405). Except where the head of the responsible agency or his or her designee has granted an exemption in writing for the appropriate official use of alcoholic beverages, all persons
entering in or on Federal property are prohibited from being under the influence or
using alcoholic beverages. The head of the
responsible agency or his or her designee
must provide a copy of all exemptions granted to the buildings manager and the highest
ranking representative of the law enforcement organization, or other authorized officials, responsible for the security of the
property.
Soliciting, Vending and Debt Collection (41
CFR 102–74.410). All persons entering in or on
Federal property are prohibited from soliciting alms (including money and non-monetary items) or commercial or political donations; vending merchandise of all kinds; displaying or distributing commercial adver-
tising, or collecting private debts, except
for—
(a) National or local drives for funds for
welfare, health or other purposes as authorized by 5 CFR part 950, entitled ‘‘Solicitation
of Federal Civilian And Uniformed Service
Personnel For Contributions To Private Voluntary Organizations,’’ and sponsored or approved by the occupant agencies;
(b) Concessions or personal notices posted
by employees on authorized bulletin boards;
(c) Solicitation of labor organization membership or dues authorized by occupant agencies under the Civil Service Reform Act of
1978 (Public Law 95–454);
(d) Lessee, or its agents and employees,
with respect to space leased for commercial,
cultural, educational, or recreational use
under the Public Buildings Cooperative Use
Act of 1976 (40 U.S.C. 581(h)). Public areas of
GSA-controlled property may be used for
other activities in accordance with subpart
D of this part;
(e) Collection of non-monetary items that
are sponsored or approved by the occupant
agencies; and
(f) Commercial activities sponsored by recognized Federal employee associations and
on-site child care centers.
Posting and Distributing Materials (41 CFR
102–74.415). All persons entering in or on Federal property are prohibited from—
(a) Distributing free samples of tobacco
products in or around Federal buildings,
under Public Law 104–52, Section 636;
(b) Posting or affixing materials, such as
pamphlets, handbills, or flyers, on bulletin
boards or elsewhere on GSA-controlled property, except as authorized in § 102–74.410, or
when these displays are conducted as part of
authorized Government activities; and
(c) Distributing materials, such as pamphlets, handbills, or flyers, unless conducted
as part of authorized Government activities.
This prohibition does not apply to public
areas of the property as defined in § 102–71.20
of this chapter. However, any person or organization proposing to distribute materials in
a public area under this section must first
obtain a permit from the building manager
as specified in subpart D of this part. Any
such person or organization must distribute
materials only in accordance with the provisions of subpart D of this part. Failure to
comply with those provisions is a violation
of these regulations.
Photographs for News, Advertising, or Commercial Purposes (41 CFR 102–74.420). Except
where security regulations, rules, orders, or
directives apply or a Federal court order or
rule prohibits it, persons entering in or on
Federal property may take photographs of—
(a) Space occupied by a tenant agency for
non-commercial purposes only with the permission of the occupying agency concerned;
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41 CFR Ch. 102 (7–1–16 Edition)
(b) Space occupied by a tenant agency for
commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.
Dogs and Other Animals (41 CFR 102–74.425).
No person may bring dogs or other animals
on Federal property for other than official
purposes. However, a disabled person may
bring a seeing-eye dog, a guide dog, or other
animal assisting or being trained to assist
that individual.
Breastfeeding (41 CFR 102–74.426). Public
Law 108–199, Section 629, Division F, Title VI
(January 23, 2004), provides that a woman
may breastfeed her child at any location in
a Federal building or on Federal property, if
the woman and her child are otherwise authorized to be present at the location.
Vehicular and Pedestrian Traffic (41 CFR
102–74.430). All vehicle drivers entering or
while on Federal property—
(a) Must drive in a careful and safe manner
at all times;
(b) Must comply with the signals and directions of Federal police officers or other authorized individuals;
(c) Must comply with all posted traffic
signs;
(d) Must comply with any additional posted traffic directives approved by the GSA Regional Administrator, which will have the
same force and effect as these regulations;
(e) Are prohibited from blocking entrances,
driveways, walks, loading platforms, or fire
hydrants; and
(f) Are prohibited from parking on Federal
property without a permit. Parking without
authority, parking in unauthorized locations
or in locations reserved for other persons, or
parking contrary to the direction of posted
signs is prohibited. Vehicles parked in violation, where warning signs are posted, are
subject to removal at the owner’s risk and
expense. Federal agencies may take as proof
that a motor vehicle was parked in violation
of these regulations or directives as prima
facie evidence that the registered owner was
responsible for the violation.
Explosives (41 CFR 102–74.435). No person entering or while on property may carry or
possess explosives, or items intended to be
used to fabricate an explosive or incendiary
device, either openly or concealed, except for
official purposes.
Weapons (41 CFR 102–74.440). Federal law
prohibits the possession of firearms or other
dangerous weapons in Federal facilities and
Federal court facilities by all persons not
specifically authorized by Title 18, United
States Code, Section 930. Violators will be
subject to fine and/or imprisonment for periods up to five (5) years.
Nondiscrimination (41 CFR 102–74.445). Federal agencies must not discriminate by segregation or otherwise against any person or
persons because of race, creed, religion, age,
sex, color, disability, or national origin in
furnishing or by refusing to furnish to such
person or persons the use of any facility of a
public nature, including all services, privileges, accommodations, and activities provided on the property.
Penalties (41 CFR 102–74.450). A person found
guilty of violating any rule or regulation in
subpart C of this part while on any property
under the charge and control of the U.S.
General Services Administration shall be
fined under title 18 of the United States
Code, imprisoned for not more than 30 days,
or both.
Impact on Other Laws or Regulations (41 CFR
102–74.455). No rule or regulation in this subpart may be construed to nullify any other
Federal laws or regulations or any State and
local laws and regulations applicable to any
area in which the property is situated (40
U.S.C. 121 (c)).
WARNING—WEAPONS PROHIBITED
Federal law prohibits the possession of
firearms or other dangerous weapons in Federal facilities and Federal court facilities by
all persons not specifically authorized by
Title 18, United States Code, Section 930.
Violators will be subject to fine and/or imprisonment for periods up to five (5) years.
PART 102–75—REAL PROPERTY
DISPOSAL
Subpart A—General Provisions
Sec.
102–75.5 What is the scope of this part?
102–75.10 What basic real property disposal
policy governs disposal agencies?
REAL PROPERTY DISPOSAL SERVICES
102–75.15 What real property disposal services must disposal agencies provide under
a delegation of authority from GSA?
102–75.20 How can Federal agencies with
independent disposal authority obtain related disposal services?
Subpart B—Utilization of Excess Real
Property
102–75.25 What are landholding agencies’ responsibilities concerning the utilization
of excess property?
102–75.30 What are disposal agencies’ responsibilities concerning the utilization
of excess property?
102–75.35 [Reserved]
STANDARDS
102–75.40 What are the standards that each
Executive agency must use to identify
unneeded Federal real property?
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102–75.45 What does the term ‘‘Not utilized’’
mean?
102–75.50 What does the term ‘‘Underutilized’’ mean?
102–75.55 What does the term ‘‘Not being put
to optimum use’’ mean?
GUIDELINES
102–75.60 What are landholding agencies’ responsibilities concerning real property
surveys?
102–75.65 Why is it important for Executive
agencies to notify the disposal agency of
its real property needs?
102–75.70 Are their any exceptions to this
notification policy?
102–75.75 What is the most important consideration in evaluating a proposed
transfer of excess real property?
102–75.80 What are an Executive agency’s responsibilities before requesting a transfer of excess real property?
102–75.85 Can disposal agencies transfer excess real property to agencies for programs that appear to be scheduled for
substantial curtailment or termination?
102–75.90 How is excess real property needed
for office, storage, and related purposes
normally transferred to the requesting
agency?
102–75.95 Can Federal agencies that normally do not require real property (other
than for office, storage, and related purposes) or that may not have statutory
authority to acquire such property, obtain the use of excess real property?
LAND WITHDRAWN OR RESERVED FROM THE
PUBLIC DOMAIN
102–75.100 When an agency holds land withdrawn or reserved from the public domain and determines that it no longer
needs this land, what must it do?
102–75.105 What responsibility does the Department of the Interior have if it determines that minerals in the land are unsuitable for disposition under the public
land mining and mineral leasing laws?
TRANSFERS UNDER OTHER LAWS
102–75.110 Can transfers of real property be
made under authority of laws other than
those codified in Title 40 of the United
States Code?
REPORTING OF EXCESS REAL PROPERTY
102–75.115 Must reports of excess real property and related personal property be
prepared on specific forms?
102–75.120 Is there any other information
that needs to accompany (or be submitted with) the Report of Excess Real
Property (Standard Form 118)?
TITLE REPORT
102–75.125 What information must agencies
include in the title report?
102–75.130 If hazardous substance activity
took place on the property, what specific
information must an agency include on
the title report?
102–75.135 If no hazardous substance activity
took place on the property, what specific
information must an agency include in
the title report?
OTHER NECESSARY INFORMATION
102–75.140 In addition to the title report,
and all necessary environmental information and certifications, what information must an Executive agency transmit
with the Report of Excess Real Property
(Standard Form 118)?
EXAMINATION FOR ACCEPTABILITY
102–75.145 Is GSA required to review each
report of excess?
102–75.150 What happens when GSA determines that the report of excess is adequate?
102–75.155 What happens if GSA determines
that the report of excess is insufficient?
DESIGNATION AS PERSONAL PROPERTY
102–75.160 Should
prefabricated
movable
structures be designated real or personal
property for disposition purposes?
102–75.165 Should related personal property
be designated real or personal property
for disposition purposes?
102–75.170 What happens to the related personal property in a structure scheduled
for demolition?
TRANSFERS
102–75.175 What are GSA’s responsibilities
regarding transfer requests?
102–75.180 May landholding agencies transfer excess real property without notifying GSA?
102–75.185 In those instances where landholding agencies may transfer excess real
property without notifying GSA, which
policies must they follow?
102–75.190 What amount must the transferee
agency pay for the transfer of excess real
property?
102–75.195 If the transferor agency is a wholly owned Government corporation, what
amount must the transferee agency pay?
102–75.200 What amount must the transferee
agency pay if property is being transferred for the purpose of upgrading the
transferee agency’s facilities?
102–75.205 Are transfers ever made without
reimbursement by the transferee agency?
102–75.210 What must a transferee agency
include in its request for an exception
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41 CFR Ch. 102 (7–1–16 Edition)
from the 100 percent reimbursement requirement?
102–75.215 Who must endorse requests for exception to the 100 percent reimbursement
requirement?
102–75.220 Where should an agency send a request for exception to the 100 percent reimbursement requirement?
102–75.225 Who must review and approve a
request for exception from the 100 percent reimbursement requirement?
102–75.230 Who is responsible for property
protection and maintenance costs while
the request for exception is being reviewed?
102–75.235 May disposal agencies transfer excess property to the Senate, the House of
Representatives, and the Architect of the
Capitol?
TEMPORARY UTILIZATION
102–75.240 May excess real property be temporarily assigned/reassigned?
NON-FEDERAL INTERIM USE OF EXCESS
PROPERTY
Chapter 5 of Subtitle I of Title 40 of the
United States Code?
CREDIT DISPOSALS
102–75.295 What is the policy on extending
credit in connection with the disposal of
surplus property?
DESIGNATION OF DISPOSAL AGENCIES
102–75.296 When may a landholding agency
other than GSA be the disposal agency
for real and related personal property?
102–75.297 Are there any exceptions to when
landholding agencies may serve as the
disposal agency?
102–75.298 Can agencies request that GSA be
the disposal agency for real property and
real property interests described in § 102–
75.296?
102–75.299 What are landholding agencies’
responsibilities if GSA conducts the disposal?
APPRAISAL
102–75.245 When can landholding agencies
grant rights for non-Federal interim use
of excess property reported to GSA?
Subpart C—Surplus Real Property Disposal
102–75.250 What general policy must the disposal agency follow concerning the disposal of surplus property?
102–75.255 What are disposal agencies’ specific responsibilities concerning the disposal of surplus property?
102–75.260 When may the disposal agency
dispose of surplus real property by exchange for privately owned property?
102–75.265 Are conveyance documents required to identify all agreements and
representations concerning property restrictions and conditions?
102–75.300 Are appraisals required for all
real property disposal transactions?
102–75.305 What type of appraisal value
must be obtained for real property disposal transactions?
102–75.310 Who must agencies use to appraise the real property?
102–75.315 Are appraisers authorized to consider the effect of historic covenants on
the fair market value?
102–75.320 Does appraisal information need
to be kept confidential?
INSPECTION
102–75.325 What responsibility does the landholding agency have to provide persons
the opportunity to inspect available surplus property?
SUBMISSION OF OFFERS TO PURCHASE OR
LEASE
APPLICABILITY OF ANTITRUST LAWS
102–75.270 Must antitrust laws be considered
when disposing of property?
102–75.275 Who determines whether the proposed disposal would create or maintain
a situation inconsistent with antitrust
laws?
102–75.280 What information concerning a
proposed disposal must a disposal agency
provide to the Attorney General to determine the applicability of antitrust laws?
102–75.285 Can a disposal agency dispose of
real property to a private interest specified in § 102–75.270 before advice is received from the Attorney General?
DISPOSALS UNDER OTHER LAWS
102–75.290 Can disposals of real property be
made under authority of laws other than
102–75.330 What form must all offers to purchase or lease be in?
PROVISIONS RELATING TO ASBESTOS
102–75.335 Where asbestos is identified, what
information must the disposal agency incorporate into the offer to purchase and
the conveyance document?
PROVISIONS RELATING TO HAZARDOUS
SUBSTANCE ACTIVITY
102–75.340 Where hazardous substance activity has been identified on property proposed for disposal, what information
must the disposal agency incorporate
into the offer to purchase and the conveyance document?
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102–75.345 What is different about the statements in the offer to purchase and conveyance document if the sale is to a potentially responsible party with respect
to the hazardous substance activity?
PUBLIC BENEFIT CONVEYANCES
102–75.350 What are disposal agencies’ responsibilities concerning public benefit
conveyances?
102–75.351 May the disposal agency waive
screening for public benefit conveyances?
102–75.355 What clause must be in the offer
to purchase and the conveyance documents for public benefit conveyances?
102–75.360 What wording must be in the nondiscrimination clause that is required in
the offer to purchase and the conveyance
document?
POWER TRANSMISSION LINES
102–75.365 Do disposal agencies have to notify State entities and Government agencies that a surplus power transmission
line and right-of-way is available?
102–75.370 May a State, or any political subdivision thereof, certify to a disposal
agency that it needs a surplus power
transmission line and the right-of-way
acquired for its construction to meet the
requirements of a public or cooperative
power project?
102–75.375 What happens once a State, or political subdivision, certifies that it needs
a surplus power transmission line and
the right-of-way acquired for its construction to meet the requirements of a
public or cooperative power project?
102–75.380 May power transmission lines and
rights-of-way be disposed of in other
ways?
PROPERTY FOR PUBLIC AIRPORTS
102–75.385 Do disposal agencies have the responsibility to notify eligible public
agencies that airport property has been
determined to be surplus?
102–75.390 What does the term ‘‘surplus airport property’’ mean?
102–75.395 May surplus airport property be
conveyed or disposed of to a State, political subdivision, municipality, or taxsupported institution for a public airport?
102–75.400 Is industrial property located on
an airport also considered to be ‘‘airport
property’’?
102–75.405 What responsibilities does the
Federal Aviation Administration (FAA)
have after receiving a copy of the notice
(and a copy of the Report of Excess Real
Property (Standard Form 118)) given to
eligible public agencies that there is surplus airport property?
102–75.410 What action must the disposal
agency take after an eligible public agen-
cy has submitted a plan of use and application to acquire property for a public
airport?
102–75.415 What happens after the disposal
agency receives the FAA’s recommendation for disposal of the property for a
public airport?
102–75.420 What happens if the FAA informs
the disposal agency that it does not recommend disposal of the property for a
public airport?
102–75.425 Who has sole responsibility for
enforcing compliance with the terms and
conditions of disposal for property disposed of for use as a public airport?
102–75.430 What happens if property conveyed for use as a public airport is revested in the United States?
102–75.435 Does the Airport and Airway Development Act of 1970, as amended (Airport Act of 1970) apply to the transfer of
airports to State and local agencies?
PROPERTY FOR USE AS HISTORIC MONUMENTS
102–75.440 Who must disposal agencies notify that surplus property is available for
historic monument use?
102–75.445 Who can convey surplus real and
related personal property for historic
monument use?
102–75.450 What type of property is suitable
or desirable for use as a historic monument?
102–75.455 May historic monuments be used
for revenue-producing activities?
102–75.460 What information must disposal
agencies furnish eligible public agencies?
102–75.465 What information must eligible
public agencies interested in acquiring
real property for use as a historic monument submit to the appropriate regional
or field offices of the National Park
Service (NPS) of the Department of the
Interior (DOI)?
102–75.470 What action must NPS take after
an eligible public agency has submitted
an application for conveyance of surplus
property for use as a historic monument?
102–75.475 What happens after the disposal
agency receives the Secretary of the Interior’s determination for disposal of the
surplus property for a historic monument and compatible revenue-producing
activities?
102–75.480 Who has the responsibility for enforcing compliance with the terms and
conditions of disposal for surplus property conveyed for use as a historic monument?
102–75.485 What happens if property that
was conveyed for use as a historic monument is revested in the United States?
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PROPERTY FOR EDUCATIONAL AND PUBLIC
HEALTH PURPOSES
102–75.490 Who must notify eligible public
agencies that surplus real property for
educational and public health purposes is
available?
102–75.495 May the Department of Education
(ED) or the Department of Health and
Human Services (HHS) notify nonprofit
organizations that surplus real property
and related personal property is available for educational and public health
purposes?
102–75.500 Which Federal agencies may the
head of the disposal agency (or his or her
designee) assign for disposal surplus real
property to be used for educational and
public health purposes?
102–75.505 Is the request for educational or
public health use of a property by an eligible nonprofit institution contingent
upon the disposal agency’s approval?
102–75.510 When must the Department of
Education and the Department of Health
and Human Services notify the disposal
agency that an eligible applicant is interested in acquiring the property?
102–75.515 What action must the disposal
agency take after an eligible public agency has submitted a plan of use for property for an educational or public health
requirement?
102–75.520 What must the Department of
Education or the Department of Health
and Human Services address in the assignment recommendation that is submitted to the disposal agency?
102–75.525 What responsibilities do landholding agencies have concerning properties to be used for educational and public health purposes?
102–75.530 What happens if the Department
of Education or the Department of
Health and Human Services does not approve any applications for conveyance of
the property for educational or public
health purposes?
102–75.535 What responsibilities does the Department of Education or the Department of Health and Human Services have
after receiving the disposal agency’s assignment letter?
102–75.540 Who is responsible for enforcing
compliance with the terms and conditions of the transfer for educational or
public health purposes?
102–75.545 What happens if property that
was transferred to meet an educational
or public health requirement is revested
in the United States for noncompliance
with the terms of sale, or other cause?
PROPERTY FOR PROVIDING SELF-HELP
HOUSING OR HOUSING ASSISTANCE
102–75.550 What does ‘‘self-help housing or
housing assistance’’ mean?
102–75.555 Which Federal agency receives
the property assigned for self-help housing or housing assistance for low-income
individuals or families?
102–75.560 Who notifies eligible public agencies that real property to be used for selfhelp housing or housing assistance purposes is available?
102–75.565 Is the requirement for self-help
housing or housing assistance use of the
property by an eligible public agency or
nonprofit organization contingent upon
the disposal agency’s approval of an assignment recommendation from the Department of Housing and Urban Development (HUD)?
102–75.570 What happens if the disposal
agency does not approve the assignment
recommendation?
102–75.575 Who notifies nonprofit organizations that surplus real property and related personal property to be used for
self-help housing or housing assistance
purposes is available?
102–75.580 When must HUD notify the disposal agency that an eligible applicant is
interested in acquiring the property?
102–75.585 What action must the disposal
agency take after an eligible public agency has submitted a plan of use for property for a self-help housing or housing
assistance requirement?
102–75.590 What does the assignment recommendation contain?
102–75.595 What responsibilities do landholding agencies have concerning properties to be used for self-help housing or
housing assistance use?
102–75.600 What happens if HUD does not approve any applications for self-help housing or housing assistance use?
102–75.605 What responsibilities does HUD
have after receiving the disposal agency’s assignment letter?
102–75.610 Who is responsible for enforcing
compliance with the terms and conditions of the transfer of the property for
self-help housing or housing assistance
use?
102–75.615 Who is responsible for enforcing
compliance with the terms and conditions of property transferred under section 414(a) of the 1969 HUD Act?
102–75.620 What happens if property that
was transferred to meet a self-help housing or housing assistance use requirement is found to be in noncompliance
with the terms of sale?
PROPERTY FOR USE AS PUBLIC PARK OR
RECREATION AREAS
102–75.625 Which Federal agency is assigned
surplus real property for public park or
recreation purposes?
102–75.630 Who must disposal agencies notify that real property for public park or
recreation purposes is available?
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102–75.635 What information must the Department of the Interior (DOI) furnish eligible public agencies?
102–75.640 When must DOI notify the disposal agency that an eligible applicant is
interested in acquiring the property?
102–75.645 What responsibilities do landholding agencies have concerning properties to be used for public park or recreation purposes?
102–75.650 When must DOI request assignment of the property?
102–75.655 What does the assignment recommendation contain?
102–75.660 What happens if DOI does not approve any applications or does not submit an assignment recommendation?
102–75.665 What happens after the disposal
agency receives the assignment recommendation from DOI?
102–75.670 What responsibilities does DOI
have after receiving the disposal agency’s assignment letter?
102–75.675 What responsibilities does the
grantee or recipient of the property have
in accomplishing or completing the
transfer?
102–75.680 What information must be included in the deed of conveyance of any
surplus property transferred for public
park or recreation purposes?
102–75.685 Who is responsible for enforcing
compliance with the terms and conditions of the transfer of property used for
public park or recreation purposes?
102–75.690 What happens if property that
was transferred for use as a public park
or recreation area is revested in the
United States by reason of noncompliance with the terms or conditions of disposal, or for other cause?
PROPERTY FOR DISPLACED PERSONS
102–75.695 Who can receive surplus real
property for the purpose of providing replacement housing for persons who are to
be displaced by Federal or Federally assisted projects?
102–75.700 Which Federal agencies may solicit applications from eligible State
agencies interested in acquiring the
property to provide replacement housing
for persons being displaced by Federal or
Federally assisted projects?
102–75.705 When must the Federal agency
notify the disposal agency that an eligible State agency is interested in acquiring the property under section 218?
102–75.710 What responsibilities do landholding and disposal agencies have concerning properties used for providing replacement housing for persons who will
be displaced by Federal or Federally assisted projects?
102–75.715 When can a Federal agency request transfer of the property to the selected State agency?
102–75.720 Is there a specific or preferred format for the transfer request and who
should receive it?
102–75.725 What does the transfer request
contain?
102–75.730 What happens if a Federal agency
does not submit a transfer request to the
disposal agency for property to be used
for replacement housing for persons who
will be displaced by Federal or Federally
assisted projects?
102–75.735 What happens after the disposal
agency receives the transfer request from
the Federal agency?
102–75.740 Does the State agency have any
responsibilities in helping to accomplish
the transfer of the property?
102–75.745 What happens if the property
transfer request is not approved by the
disposal agency?
PROPERTY FOR CORRECTIONAL FACILITY, LAW
ENFORCEMENT, OR EMERGENCY MANAGEMENT RESPONSE PURPOSES
102–75.750 Who is eligible to receive surplus
real and related personal property for
correctional facility, law enforcement, or
emergency management response purposes?
102–75.755 Which Federal agencies must the
disposal agency notify concerning the
availability of surplus properties for correctional facility, law enforcement, or
emergency management response purposes?
102–75.760 Who must the Office of Justice
Programs (OJP) and the Federal Emergency Management Agency (FEMA) notify that surplus real property is available for correctional facility, law enforcement, or emergency management
response purposes?
102–75.765 What does the term ‘‘law enforcement’’ mean?
102–75.770 Is the disposal agency required to
approve a determination by the Department of Justice (DOJ) that identifies surplus property for correctional facility
use or for law enforcement use?
102–75.775 Is the disposal agency required to
approve a determination by FEMA that
identifies surplus property for emergency
management response use?
102–75.780 When must DOJ or FEMA notify
the disposal agency that an eligible applicant is interested in acquiring the
property?
102–75.785 What specifically must DOJ or
FEMA address in the assignment request
or recommendation that is submitted to
the disposal agency?
102–75.790 What responsibilities do landholding agencies and disposal agencies
have concerning properties to be used for
correctional facility, law enforcement, or
emergency management response purposes?
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102–75.795 What happens after the disposal
agency receives the assignment request
by DOJ or FEMA?
102–75.800 What information must be included in the deed of conveyance?
102–75.805 Who is responsible for enforcing
compliance with the terms and conditions of the transfer of the property used
for correctional facility, law enforcement, or emergency management response purposes?
102–75.810 What responsibilities do OJP or
FEMA have if they discover any information indicating a change in use of a
transferred property?
102–75.815 What happens if property conveyed for correctional facility, law enforcement, or emergency management
response purposes is found to be in noncompliance with the terms of the conveyance documents?
PROPERTY FOR PORT FACILITY USE
102–75.820 Which Federal agency is eligible
to receive surplus real and related personal property for the development or
operation of a port facility?
102–75.825 Who must the disposal agency notify when surplus real and related personal property is available for port facility use?
102–75.830 What does the surplus notice contain?
102–75.835 When must DOT notify the disposal agency that an eligible applicant is
interested in acquiring the property?
102–75.840 What action must the disposal
agency take after an eligible public agency has submitted a plan of use for and an
application to acquire a port facility
property?
102–75.845 What must DOT address in the assignment recommendation submitted to
the disposal agency?
102–75.850 What responsibilities do landholding agencies have concerning properties to be used in the development or
operation of a port facility?
102–75.855 What happens if DOT does not
submit an assignment recommendation?
102–75.860 What happens after the disposal
agency receives the assignment recommendation from DOT?
102–75.865 What responsibilities does DOT
have after receiving the disposal agency’s assignment letter?
102–75.870 Who is responsible for enforcing
compliance with the terms and conditions of the port facility conveyance?
102–75.875 What happens in the case of repossession by the United States under a
reversion of title for noncompliance with
the terms or conditions of conveyance?
NEGOTIATED SALES
102–75.880 When may Executive agencies
conduct negotiated sales?
102–75.885 What are the disposal agency’s responsibilities
concerning
negotiated
sales?
102–75.890 What clause must be in the offer
to purchase and conveyance documents
for negotiated sales to public agencies?
102–75.895 What wording must generally be
in the excess profits clause that is required in the offer to purchase and in the
conveyance document?
102–75.900 What is a negotiated sale for economic development purposes?
EXPLANATORY STATEMENTS FOR NEGOTIATED
SALES
102–75.905 When must the disposal agency
prepare an explanatory statement?
102–75.910 Are there any exceptions to this
policy of preparing explanatory statements?
102–75.915 Do disposal agencies need to retain a copy of the explanatory statement?
102–75.920 Where is the explanatory statement sent?
102–75.925 Is GSA required to furnish the
disposal agency with the explanatory
statement’s transmittal letter sent to
Congress?
102–75.930 What happens if there is no objection by an appropriate committee or subcommittee of Congress concerning the
proposed negotiated sale?
PUBLIC SALES
102–75.935 What are disposal agencies’ responsibilities concerning public sales?
DISPOSING OF EASEMENTS
102–75.936 When can an agency dispose of an
easement?
102–75.937 Can an easement be released or
disposed of at no cost?
102–75.938 May the easement and the land
that benefited from the easement (dominant estate) be disposed of separately?
GRANTING EASEMENTS
102–75.939 When can agencies grant easements?
102–75.940 Can agencies grant easements at
no cost?
102–75.941 Does an agency retain responsibility for the easement?
102–75.942 What must agencies consider
when granting easements?
102–75.943 What happens if granting an easement will reduce the value of the property?
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Pt. 102–75
NON-FEDERAL INTERIM USE OF SURPLUS
PROPERTY
DETERMINATIONS
102–75.944 Can landholding agencies outlease
surplus real property for non-Federal interim use?
Subpart D—Management of Excess and
Surplus Real Property
102–75.945 What is GSA’s policy concerning
the physical care, handling, protection,
and maintenance of excess and surplus
real property and related personal property?
TAXES AND OTHER OBLIGATIONS
102–75.950 Who has the responsibility for
paying
property-related
obligations
pending transfer or disposal of the property?
DECONTAMINATION
102–75.955 Who is responsible for decontaminating excess and surplus real property?
IMPROVEMENTS OR ALTERATIONS
102–75.960 May landholding agencies make
improvements or alterations to excess or
surplus property in those cases where
disposal is otherwise not feasible?
PROTECTION AND MAINTENANCE
102–75.965 Who must perform the protection
and maintenance of excess and surplus
real property pending transfer to another
Federal agency or disposal?
102–75.970 How long is the landholding agency responsible for the expense of protection and maintenance of excess and surplus real property pending its transfer or
disposal?
102–75.975 What happens if the property is
not conveyed or disposed of during this
time frame?
102–75.980 Who is responsible for protection
and maintenance expenses if there is no
written agreement or no Congressional
appropriation to the disposal agency?
ASSISTANCE IN
DISPOSITION
102–75.985 Is the landholding agency required to assist the disposal agency in
the disposition process?
Subpart E—Abandonment, Destruction, or
Donation to Public Bodies
102–75.990 May Federal agencies abandon,
destroy, or donate to public bodies real
property?
DANGEROUS PROPERTY
102–75.995 May Federal agencies dispose of
dangerous property?
102–75.1000 How is the decision made to
abandon, destroy, or donate property?
102–75.1005 Who can make the determination within the Federal agency on whether a property can be abandoned, destroyed, or donated?
102–75.1010 When is a reviewing authority
required to approve the determination
concerning a property that is to be abandoned, destroyed, or donated?
RESTRICTIONS
102–75.1015 Are there any restrictions on
Federal agencies concerning property donations to public bodies?
DISPOSAL COSTS
102–75.1020 Are public bodies ever required
to pay the disposal costs associated with
donated property?
ABANDONMENT AND DESTRUCTION
102–75.1025 When can a Federal agency abandon or destroy improvements on land or
related personal property in lieu of donating it to a public body?
102–75.1030 May Federal agencies abandon or
destroy property in any manner they decide?
102–75.1035 Are there any restrictions on
Federal agencies concerning the abandonment or destruction of improvements
on land or related personal property?
102–75.1040 May Federal agencies abandon or
destroy improvements on land or related
personal property before public notice is
given of such proposed abandonment or
destruction?
102–75.1045 Are there exceptions to the policy that requires public notice be given
before Federal agencies abandon or destroy improvements on land or related
personal property?
102–75.1050 Is there any property for which
this subpart does not apply?
Subpart F—Delegations
DELEGATION TO THE DEPARTMENT OF DEFENSE
(DOD)
102–75.1055 What is the policy governing delegations of real property disposal authority to the Secretary of Defense?
102–75.1060 What must the Secretary of Defense do before determining that DoDcontrolled excess real property and related personal property is not required
for the needs of any Federal agency and
prior to disposal?
102–75.1065 When using a delegation of real
property disposal authority under this
subpart, is DoD required to report excess
property to GSA?
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41 CFR Ch. 102 (7–1–16 Edition)
102–75.1070 Can this delegation of authority
to the Secretary of Defense be redelegated?
DELEGATION TO THE DEPARTMENT OF
AGRICULTURE (USDA)
102–75.1075 What is the policy governing delegations of real property disposal authority to the Secretary of Agriculture?
102–75.1080 What must the Secretary of Agriculture do before determining that
USDA-controlled excess real property
and related personal property is not required for the needs of any Federal agency and prior to disposal?
102–75.1085 When using a delegation of real
property disposal authority under this
subpart, is the USDA required to report
excess property to GSA?
102–75.1090 Can this delegation of authority
to the Secretary of Agriculture be redelegated?
gift of real property for a particular defense purpose?
102–75.1145 What action must the Federal
agency receiving an offer of a conditional
gift take?
102–75.1150 What happens to the gift if GSA
determines it to be acceptable?
102–75.1155 May an acceptable gift of property be converted to money?
Subpart H—Use of Federal Real Property to
Assist the Homeless
DEFINITIONS
102–75.1160 What definitions apply to this
subpart?
APPLICABILITY
102–75.1165 What is the applicability of this
subpart?
COLLECTING THE INFORMATION
102–75.1170 How will information be collected?
DELEGATION TO THE DEPARTMENT OF THE
INTERIOR
102–75.1095 What is the policy governing delegations of authority to the Secretary of
the Interior?
102–75.1100 Can this delegation of authority
to the Secretary of the Interior be redelegated?
102–75.1105 What other responsibilities does
the Secretary of the Interior have under
this delegation of authority?
SUITABILITY DETERMINATION
102–75.1175 Who issues the suitability determination?
REAL PROPERTY REPORTED EXCESS TO GSA
102–75.1180 For the purposes of this subpart,
what is the policy concerning real property reported excess to GSA?
SUITABILITY CRITERIA
NATIVE AMERICAN-RELATED DELEGATIONS
102–75.1110 What is the policy governing delegations of authority to the Secretary of
the Interior, the Secretary of Health and
Human Services, and the Secretary of
Education for property used in the administration of any Native American-related functions?
102–75.1115 Are there any limitations or restrictions on this delegation of authority?
102–75.1120 Does the property have to be
Federally screened?
102–75.1125 Can the transfer/retransfer under
this delegation be at no cost or without
consideration?
102–75.1130 What action must the Secretary
requesting the transfer take where funds
were not programmed and appropriated
for acquisition of the property?
102–75.1135 May this delegation of authority
to the Secretary of the Interior, the Secretary of Health and Human Services,
and the Secretary of Education be redelegated?
Subpart G—Conditional Gifts of Real
Property to Further the Defense Effort
102–75.1185
What are suitability criteria?
DETERMINATION OF AVAILABILITY
102–75.1190 What is the policy concerning
determination of availability statements?
PUBLIC NOTICE OF DETERMINATION
102–75.1195 What is the policy concerning
making public the notice of determination?
APPLICATION PROCESS
102–75.1200 How may representatives of the
homeless apply for the use of properties
to assist the homeless?
ACTION ON APPROVED APPLICATIONS
102–75.1205 What action must be taken on
approved applications?
UNSUITABLE PROPERTIES
102–75.1210 What action must be taken on
properties determined unsuitable for
homeless assistance?
NO APPLICATIONS APPROVED
102–75.1140 What is the policy governing the
acceptance or rejection of a conditional
102–75.1215 What action must be taken if
there is no expression of interest?
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Federal Management Regulation
§ 102–75.20
Subpart I—Screening Excess Federal Real
Property
102–75.1220 How do landholding agencies find
out if excess Federal real property is
available?
102–75.1225 What details are provided in the
‘‘Notice of Availability’’?
102–75.1230 How long does an agency have to
indicate its interest in the property?
102–75.1235 Where should an agency send its
written response to the ‘‘Notice of Availability’’?
102–75.1240 Who, from the interested landholding agency, should submit the written response to GSA’s ‘‘Notice of Availability’’?
102–75.1245 What happens after the landholding agency properly responds to a
‘‘Notice of Availability’’?
102–75.1250 What if the agency is not quite
sure it wants the property and needs
more time to decide?
102–75.1255 What happens when more than
one agency has a valid interest in the
property?
102–75.1260 Does
GSA
conduct
Federal
screening on every property reported as
excess real property?
102–75.1265 Are extensions granted to the
Federal screening and response timeframes?
102–75.1270 How does an agency request a
transfer of Federal real property?
102–75.1275 Does a requesting agency have to
pay for excess real property?
102–75.1280 What happens if the property has
already been declared surplus and an
agency discovers a need for it?
102–75.1285 How does GSA transfer excess
real property to the requesting agency?
102–75.1290 What happens if the landholding
agency requesting the property does not
promptly accept custody and accountability?
AUTHORITY: 40 U.S.C. 121(c), 521–523, 541–559;
E.O. 12512, 50 FR 18453, 3 CFR, 1985 Comp., p.
340.
SOURCE: 70 FR 67811, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–75.5 What is the scope of this
part?
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services. Federal
agencies with authority to dispose of
real property under Subchapter III of
Chapter 5 of Title 40 of the United
States Code will be referred to as ‘‘disposal agencies’’ in this part. Except in
rare instances where GSA delegates
disposal authority to a Federal agency,
the ‘‘disposal agency’’ as used in this
part refers to GSA.
§ 102–75.10 What basic real property
disposal policy governs disposal
agencies?
Disposal agencies must provide, in a
timely, efficient, and cost effective
manner, the full range of real estate
services necessary to support their real
property utilization and disposal needs.
Landholding agencies must survey the
real property under their custody or
control to identify property that is not
utilized, underutilized, or not being put
to optimum use. Disposal agencies
must have adequate procedures in
place to promote the effective utilization and disposal of such real property.
REAL PROPERTY DISPOSAL SERVICES
§ 102–75.15 What real property disposal services must agencies provide under a delegation of authority from GSA?
Disposal agencies must provide real
property disposal services for real property assets under their custody and
control, such as the utilization of excess property, surveys, and the disposal
of surplus property, which includes
public benefit conveyances, negotiated
sales, public sales, related disposal
services, and appraisals.
§ 102–75.20 How can Federal agencies
with independent disposal authority obtain related disposal services?
Federal agencies with independent
disposal authority are encouraged to
obtain utilization, disposal, and related
services from those agencies with expertise in real property disposal, such
as GSA, as allowed by 31 U.S.C. 1535
(the Economy Act), so that they can
remain focused on their core mission.
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§ 102–75.25
41 CFR Ch. 102 (7–1–16 Edition)
Subpart B—Utilization of Excess
Real Property
countable Executive agency, or occupied in caretaker status only.
§ 102–75.25 What are landholding agencies’ responsibilities concerning the
utilization of excess property?
Landholding agencies’ responsibilities concerning the utilization of excess property are to—
(a) Achieve maximum use of their
real property, in terms of economy and
efficiency, to minimize expenditures
for the purchase of real property;
(b) Increase the identification and reporting of their excess real property;
and
(c) Fulfill its needs for real property,
so far as practicable, by utilization of
real property determined excess by
other agencies, pursuant to the provision of this part, before it purchases
non-Federal real property.
§ 102–75.50 What does the term ‘‘Underutilized’’ mean?
§ 102–75.30 What are disposal agencies’
responsibilities concerning the utilization of excess property?
Disposal agencies’ responsibilities
concerning the utilization of excess
property are to—
(a) Provide for the transfer of excess
real property among Federal agencies,
to mixed-ownership Government corporations, and to the municipal government of the District of Columbia;
and
(b) Resolve conflicting requests for
transferring real property that the involved agencies cannot resolve.
§ 102–75.35
Underutilized means an entire property or portion thereof, with or without improvements, which is used—
(a) Irregularly or intermittently by
the accountable Executive agency for
current program purposes of that agency; or
(b) For current program purposes
that can be satisfied with only a portion of the property.
§ 102–75.55 What does the term ‘‘Not
being put to optimum use’’ mean?
Not being put to optimum use means
an entire property or portion thereof,
with
or
without
improvements,
which—
(a) Even though used for current program purposes, the nature, value, or location of the property is such that it
could be utilized for a different and significantly higher and better purpose; or
(b) The costs of occupying are substantially higher than other suitable
properties that could be made available
through transfer, purchase, or lease
with total net savings to the Government, after considering property values, costs of moving, occupancy, operational efficiency, environmental effects, regional planning, and employee
morale.
GUIDELINES
[Reserved]
STANDARDS
§ 102–75.40 What are the standards
that each Executive agency must
use to identify unneeded Federal
real property?
Each Executive agency must identify
unneeded Federal property using the
following standards:
(a) Not utilized.
(b) Underutilized.
(c) Not being put to optimum use.
§ 102–75.45 What does the term ‘‘Not
utilized’’ mean?
Not utilized means an entire property or portion thereof, with or without improvements, not occupied for
current program purposes of the ac-
§ 102–75.60 What are landholding agencies’ responsibilities concerning
real property surveys?
A landholding agency’s responsibilities concerning real property utilization surveys are to—
(a) Survey real property under its
control (i.e., property reported on its
financial statements) at least annually
to identify property that is not utilized, underutilized, or not being put to
optimum use. When other needs for the
property are identified or recognized,
the agency must determine whether
continuation of the current use or another use would better serve the public
interest, considering both the Federal
agency’s needs and the property’s location. In conducting annual reviews of
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their property holdings, the GSA Customer Guide to Real Property Disposal
can provide guidelines for Executive
agencies to consider in identifying
unneeded Federal real property;
(b) Maintain its inventory of real
property at the absolute minimum consistent with economical and efficient
conduct of the affairs of the agency;
and
(c) Promptly report to GSA real
property that it has determined to be
excess.
sion or congressional action. Additionally, a proposed transfer must not substantially increase the level of an
agency’s existing programs beyond
that which has been contemplated in
the President’s budget or by the Congress.
(Note: See Subpart I—Screening of
Excess Federal Real Property (§§ 102–
75.1220 through 102–75.1290) for information on screening and transfer requests.)
§ 102–75.65 Why is it important for Executive agencies to notify the disposal agency of its real property
needs?
It is important that each Executive
agency notify the disposal agency of its
real property needs to determine
whether the excess or surplus property
of another agency is available that
would meet its need and prevent the
unnecessary purchase or lease of real
property.
§ 102–75.80 What are an Executive
agency’s responsibilities before requesting a transfer of excess real
property?
§ 102–75.70 Are there any exceptions to
this notification policy?
Yes, Executive agencies are not required to notify the disposal agency
when an agency’s proposed acquisition
of real property is dictated by such factors as exact geographical location, topography, engineering, or similar characteristics that limit the possible use
of other available property. For example, Executive agencies are not required to notify disposal agencies concerning the acquisition of real property
for a dam site, reservoir area, or the
construction of a generating plant or a
substation, since specific lands are
needed, which limit the possible use of
other available property. Therefore, no
useful purpose would be served by notifying the disposal agency.
§ 102–75.75 What is the most important
consideration in evaluating a proposed transfer of excess real property?
In every case of a proposed transfer
of excess real property, the most important consideration is the validity
and appropriateness of the requirement
upon which the proposal is based. Also,
a proposed transfer must not establish
a new program that has never been reflected in any previous budget submis-
Before requesting a transfer of excess
real property, an Executive agency
must—
(a) Screen its own property holdings
to determine whether the new requirement can be met through improved utilization of existing real property; however, the utilization must be for purposes that are consistent with the
highest and best use of the property
under consideration;
(b) Review all real property under its
accountability that has been permitted
or outleased and terminate the permit
or lease for any property, or portion
thereof, suitable for the proposed need,
if termination is not prohibited by the
terms of the permit or lease;
(c) Utilize property that is or can be
made available under § 102–75.80(a) or
(b) for the proposed need in lieu of requesting a transfer of excess real property and reassign the property, when
appropriate;
(d) Confirm that the appraised fair
market value of the excess real property proposed for transfer will not substantially exceed the probable purchase price of other real property that
would be suitable for the intended purpose;
(e) Limit the size and quantity of excess real property to be transferred to
the actual requirements and separate,
if possible, other portions of the excess
installation for possible disposal to
other agencies or to the public; and
(f) Consider the design, layout, geographic location, age, state of repair,
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§ 102–75.85
41 CFR Ch. 102 (7–1–16 Edition)
and expected maintenance costs of excess real property proposed for transfer; agencies must be able to demonstrate that the transfer will be more
economical over a sustained period of
time than the acquisition of a new facility specifically planned for the purpose.
§ 102–75.85 Can
disposal
agencies
transfer excess real property to
agencies for programs that appear
to be scheduled for substantial curtailment or termination?
Yes, but only on a temporary basis
with the condition that the property
will be released for further Federal utilization or disposal as surplus property
at an agreed upon time when the transfer is arranged.
§ 102–75.90 How is excess real property
needed for office, storage, and related purposes normally transferred to the requesting agency?
GSA may temporarily assign or direct the use of such excess real property to the requesting agency. See
§ 102–75.240.
§ 102–75.95 Can Federal agencies that
normally do not require real property (other than for office, storage,
and related purposes) or that may
not have statutory authority to acquire such property, obtain the use
of excess real property?
Yes, GSA can authorize the use of excess real property for an approved program. See § 102–75.240.
LAND WITHDRAWN OR RESERVED FROM
THE PUBLIC DOMAIN
§ 102–75.100 When an agency holds
land withdrawn or reserved from
the public domain and determines
that it no longer needs this land,
what must it do?
An agency holding unneeded land
withdrawn or reserved from the public
domain must submit to the appropriate
GSA Regional Office a Report of Excess
Real Property (Standard Form 118),
with appropriate Schedules A, B, and
C, only when—
(a) It has filed a notice of intention
to relinquish with the Department of
the Interior (43 CFR part 2372 et seq.)
and sent a copy of the notice to the appropriate GSA Regional Office;
(b) The Department of the Interior
has notified the agency that the Secretary of the Interior has determined
that the lands are not suitable for return to the public domain for disposition under the general public land laws
because the lands are substantially
changed in character by improvements
or otherwise; and
(c) The Department of the Interior
provides a report identifying whether
or not any other agency claims primary, joint, or secondary jurisdiction
over the lands and whether its records
show that the lands are encumbered by
rights or privileges under the public
land laws.
§ 102–75.105 What responsibility does
the Department of the Interior have
if it determines that minerals in the
land are unsuitable for disposition
under the public land mining and
mineral leasing laws?
In such cases, the Department of the
Interior must—
(a) Notify the appropriate GSA Regional Office of such a determination;
and
(b) Authorize the landholding agency
to identify in the Standard Form 118
any minerals in the land that the Department of the Interior determines to
be unsuitable for disposition under the
public land mining and mineral leasing
laws.
TRANSFERS UNDER OTHER LAWS
§ 102–75.110 Can transfers of real
property be made under authority
of laws other than those codified in
Title 40 of the United States Code?
Yes, the provisions of this section
shall not apply to transfers of real
property authorized to be made by 40
U.S.C. 113(e) or by any special statute
that directs or requires an Executive
agency to transfer or convey specifically described real property in accordance with the provisions of that statute. Transfers of real property must be
made only under the authority of Title
40 of the United States Code, unless the
independent authority granted to such
agency specifically exempts the authority from the requirements of Title
40.
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Federal Management Regulation
§ 102–75.125
REPORTING OF EXCESS REAL PROPERTY
§ 102–75.115 Must reports of excess
real property and related personal
property be prepared on specific
forms?
Yes, landholding agencies must prepare reports of excess real property and
related personal property on—
(a) Standard Form 118, Report of Excess Real Property, and accompanying
Standard Form 118a, Buildings Structures, Utilities, and Miscellaneous Facilities, Schedule A;
(b) Standard Form 118b, Land, Schedule B; and
(c) Standard Form 118c, Related Personal Property, Schedule C.
§ 102–75.120 Is there any other information that needs to accompany (or
be submitted with) the Report of
Excess Real Property (Standard
Form 118)?
Yes, in all cases where Governmentowned land is reported excess, Executive agencies must include a title report, prepared or approved by a qualified employee of the landholding agency, documenting the Government’s
title to the property.
TITLE REPORT
§ 102–75.125 What information must
agencies include in the title report?
When completing the title report,
agencies must include—
(a) The description of the property;
(b) The date title vested in the
United States;
(c) All exceptions, reservations, conditions, and restrictions, relating to
the title;
(d) Detailed information concerning
any action, thing, or circumstance that
occurred from the date the United
States acquired the property to the
date of the report that in any way affected or may have affected the United
States’ right, title, or interest in and
to the real property (including copies
of legal comments or opinions discussing the manner in which and the
extent to which such right, title, or interest may have been affected). In the
absence of any such action, thing, or
circumstance, a statement to that effect must be made a part of the report;
(e) The status of civil and criminal
jurisdiction over the land that is peculiar to the property by reason of it
being Government-owned land. In the
absence of any special circumstances, a
statement to that effect must be made
a part of the report;
(f) Detailed information regarding
any known flood hazards or flooding of
the property, and, if the property is located in a flood-plain or on wetlands, a
listing of restricted uses (along with
the citations) identified in Federal,
State, or local regulations as required
by Executive Orders 11988 and 11990 of
May 24, 1977;
(g) The specific identification and description of fixtures and related personal property that have possible historic or artistic value;
(h) The historical significance of the
property and whether the property is
listed, is eligible for, or has been nominated for listing in the National Register of Historic Places or is in proximity to a property listed in the National Register. If the landholding
agency is aware of any effort by the
public to have the property listed in
the National Register, it must also include this information;
(i) A description of the type, location, and condition of asbestos incorporated in the construction, repair, or
alteration of any building or improvement on the property (e.g., fire-proofing, pipe insulation, etc.) and a description of any asbestos control measures
taken for the property. Agencies must
also provide to GSA any available indication of costs and/or time necessary
to remove all or any portion of the asbestos-containing materials. Agencies
are not required to conduct any specific studies and/or tests to obtain this
information. (The provisions of this
subpart do not apply to asbestos on
Federal property that is subject to section 120(h) of the Superfund Amendments and Reauthorization Act of 1986,
Public Law 99–499);
(j) A statement indicating whether or
not lead-based paint is present on the
property. Additionally, if the property
is target housing (all housing except
housing for the elderly or persons with
disabilities or any zero bedroom dwelling) constructed prior to 1978, provide a
risk assessment and paint inspection
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§ 102–75.130
41 CFR Ch. 102 (7–1–16 Edition)
report that details all lead-based paint
hazards; and
(k) A statement indicating whether
or not, during the time the property
was owned by the United States, any
hazardous substance activity, as defined by regulations issued by the U.S.
Environmental
Protection
Agency
(EPA) at 40 CFR part 373, took place on
the property. Hazardous substance activity includes situations where any
hazardous substance was stored for one
year or more, known to have been released, or disposed of on the property.
Agencies reporting such property must
review the regulations issued by EPA
at 40 CFR part 373 for details on the information required and must comply
with these requirements. In addition,
agencies reporting such property shall
review and comply with the regulations for the utilization and disposal of
hazardous materials and certain categories of property set forth at 41 CFR
part 101–42.
§ 102–75.130 If hazardous substance activity took place on the property,
what specific information must an
agency include in the title report?
If hazardous substance activity took
place on the property, the reporting
agency must include information on
the type and quantity of such hazardous substance and the time at
which such storage, release, or disposal
took place. The reporting agency must
also advise the disposal agency if all
remedial action necessary to protect
human health and the environment
with respect to any such hazardous
substance activity was taken before
the date the property was reported excess. If such action was not taken, the
reporting agency must advise the disposal agency when such action will be
completed or how the agency expects
to comply with the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) in the disposal. See §§ 102–75.340 and 102–75.345.
The (reporting agency) has determined, in
accordance with regulations issued by EPA
at 40 CFR part 373, that there is no evidence
indicating that hazardous substance activity
took place on the property during the time
the property was owned by the United
States.
OTHER NECESSARY INFORMATION
§ 102–75.140 In addition to the title report, and all necessary environmental information and certifications, what information must an
Executive agency transmit with the
Report of Excess Real Property
(Standard Form 118)?
Executive agencies must provide—
(a) A legible, reproducible copy of all
instruments in possession of the agency that affect the United States’ right,
title, or interest in the property reported or the use and operation of such
property (including agreements covering and licenses to use, any patents,
processes, techniques, or inventions). If
it is impracticable to transmit the abstracts of title and related title evidence, agencies must provide the name
and address of the custodian of such
documents in the title report referred
to in § 102–75.120;
(b) Any appraisal reports indicating
or providing the fair market value or
the fair annual rental of the property,
if requested by the disposal agency;
and
(c) A certification by a responsible
person that the property does or does
not contain polychlorinated biphenyl
(PCB) transformers or other equipment
regulated by EPA under 40 CFR part
761, if requested by the disposal agency.
If the property does contain any equipment subject to EPA regulation under
40 CFR part 761, the certification must
include the landholding agency’s assurance that each piece of equipment is
now and will continue to be in compliance with the EPA regulations until
disposal of the property.
EXAMINATION FOR ACCEPTABILITY
§ 102–75.135 If no hazardous substance
activity took place on the property,
what specific information must an
agency include in the title report?
If no hazardous substance activity
took place, the reporting agency must
include the following statement:
§ 102–75.145 Is GSA required to review
each report of excess?
Yes, GSA must review each report of
excess to ascertain whether the report
was prepared according to the provisions of this part. GSA must notify the
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§ 102–75.175
landholding agency, in writing, whether the report is acceptable or other information is needed within 15 calendar
days after receipt of the report.
§ 102–75.150 What happens when GSA
determines that the report of excess
is adequate?
When GSA determines that a report
is adequate, GSA will accept the report
and inform the landholding agency of
the acceptance date. However, the
landholding agency must, upon request, promptly furnish any additional
information or documents relating to
the property required by GSA to accomplish a transfer or a disposal.
§ 102–75.155 What happens if GSA determines that the report of excess is
insufficient?
Where GSA determines that a report
is insufficient, GSA will return the report and inform the landholding agency of the facts and circumstances that
make the report insufficient. The landholding agency must promptly take appropriate action to submit an acceptable report to GSA. If the landholding
agency is unable to submit an acceptable report, the property will no longer
be considered as excess property and
the disposal agency will cease activity
for the disposal of the property. However, GSA may accept the report of excess on a conditional basis and identify
what deficiencies in the report must be
corrected in order for the report to
gain full acceptance.
DESIGNATION AS PERSONAL PROPERTY
§ 102–75.160 Should
prefabricated
movable structures be designated
real or personal property for disposition purposes?
Prefabricated movable structures
such as Butler-type storage warehouses, Quonset huts, and house trailers (with or without undercarriages)
reported to GSA along with the land on
which they are located may, at GSA’s
discretion, be designated for disposition as personal property for off-site
use or as real property for disposal
with the land.
§ 102–75.165 Should related personal
property be designated real or personal property for disposition purposes?
Related personal property may, at
the disposal agency’s discretion, be
designated as personal property for disposal purposes. However, for fine artwork and sculptures, GSA’s policy is
that artwork specifically created for a
Federal building is considered as a fixture of the building. This also applies
to sculptures created for a Federal
building or a public park. Disposal
agencies must follow the policies and
guidance for disposal of artwork and
sculptures developed by the GSA Office
of the Chief Architect, Center for Design Excellence and the Arts, and the
Bulletin dated March 26, 1934, entitled
‘‘Legal Title to Works Produced under
the Public Works of Art Project.’’
§ 102–75.170 What happens to the related personal property in a structure scheduled for demolition?
When a structure is to be demolished,
any fixtures or related personal property therein may, at the disposal agency’s discretion, be designated for disposition as personal property where a
ready disposition can be made of these
items. As indicated in § 102–75.165, particular consideration should be given
to designating items having possible
historical or artistic value as personal
property.
TRANSFERS
§ 102–75.175 What are GSA’s responsibilities regarding transfer requests?
Before property can be transferred
among Federal agencies, to mixed-ownership Government corporations, and
to the municipal government of the
District of Columbia, GSA must determine that—
(a) The transfer is in the best interest of the Government;
(b) The requesting agency is the appropriate agency to hold the property;
and
(c) The proposed land use will maximize use of the real property, in terms
of economy and efficiency, to minimize
expenditures for the purchase of real
property.
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§ 102–75.180
41 CFR Ch. 102 (7–1–16 Edition)
(Note: See Subpart I—Screening of
Excess Federal Real Property (§§ 102–
75.1220 through 102–75.1290) for information on screening and transfer requests.)
§ 102–75.180 May landholding agencies
transfer excess real property without notifying GSA?
Landholding agencies may, without
notifying GSA, transfer excess real
property that they use, occupy, or control under a lease, permit, license,
easement,
or
similar
instrument
when—
(a) The lease or other instrument is
subject to termination by the grantor
or owner of the premises within nine
months;
(b) The remaining term of the lease
or other instrument, including renewal
rights, will provide for less than nine
months of use and occupancy; or
(c) The lease or other instrument
provides for use and occupancy of space
for office, storage, and related facilities, which does not exceed a total of
2,500 square feet.
§ 102–75.185 In those instances where
landholding agencies may transfer
excess real property without notifying GSA, which policies must they
follow?
In those instances, landholding agencies must transfer property following
the policies in this subpart.
§ 102–75.190 What amount must the
transferee agency pay for the transfer of excess real property?
The transferee agency must pay an
amount equal to the property’s fair
market value (determined by the Administrator)—
(a) Where the transferor agency has
requested the net proceeds of the transfer pursuant to 40 U.S.C. 574; or
(b) Where either the transferor or
transferee agency (or organizational
unit affected) is subject to the Government Corporation Control Act (31
U.S.C. 841), is a mixed-ownership Government corporation, or the municipal
government of the District of Columbia.
§ 102–75.195 If the transferor agency is
a wholly owned Government corporation, what amount must the
transferee agency pay?
As may be agreed upon by GSA and
the corporation, the transferee agency
must pay an amount equal to—
(a) The estimated fair market value
of the property; or
(b) The corporation’s book value of
the property.
§ 102–75.200 What amount must the
transferee agency pay if property is
being transferred for the purpose of
upgrading the transferee agency’s
facilities?
Where the transfer is for the purpose
of upgrading facilities (i.e., for the purpose of replacing other property of the
transferee agency, which because of the
location, nature, or condition thereof,
is less efficient for use), the transferee
must pay an amount equal to the difference between the fair market value
of the property to be replaced and the
fair market value of the property requested, as determined by the Administrator.
§ 102–75.205 Are transfers ever made
without reimbursement by the
transferee agency?
Transfers may be made without reimbursement by the transferee agency
only if—
(a) Congress has specifically authorized the transfer without reimbursement, or
(b) The Administrator, with the approval of the Director of the Office of
Management and Budget (OMB), has
approved a request for an exception
from the 100 percent reimbursement requirement.
§ 102–75.210 What must a transferee
agency include in its request for an
exception from the 100 percent reimbursement requirement?
The request must include an explanation of how granting the exception
would further essential agency program objectives and at the same time
be consistent with Executive Order
12512, Federal Real Property Management, dated April 29, 1985. The transferee agency must attach the explanation to the Request for Transfer of
Excess Real and Related Personal
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§ 102–75.245
Property (GSA Form 1334) prior to submitting the form to GSA. The unavailability of funds alone is not sufficient
to justify an exception.
§ 102–75.215 Who must endorse requests for exception to the 100 percent reimbursement requirement?
Agency heads must endorse requests
for exceptions to the 100 percent reimbursement requirement.
§ 102–75.220 Where should an agency
send a request for exception to the
100 percent reimbursement requirement?
Agencies must submit all requests
for exception from the 100 percent reimbursement requirement to the appropriate GSA regional property disposal office.
§ 102–75.225 Who must review and approve a request for exception from
the 100 percent reimbursement requirement?
The Administrator must review all
requests for exception from the 100 percent reimbursement requirement. If
the Administrator approves the request, it is then submitted to OMB for
final concurrence. If OMB approves the
request, then GSA may complete the
transfer.
§ 102–75.230 Who is responsible for
property protection and maintenance costs while the request for
exception is being reviewed?
The agency requesting the property
will assume responsibility for protection and maintenance costs not more
than 40 days from the date of the Administrator’s letter to OMB requesting
concurrence for an exception to the 100
percent reimbursement requirement. If
the request is denied, the requesting
agency may pay the fair market value
for the property or withdraw its request. If the request is withdrawn, responsibility for protection and maintenance cost will return to the landholding agency at that time.
§ 102–75.235 May
disposal
agencies
transfer excess property to the Senate, the House of Representatives,
and the Architect of the Capitol?
Yes, disposal agencies may transfer
excess property to the Senate, the
House of Representatives, and the Architect of the Capitol and any activities under his or her direction, pursuant to the provisions of 40 U.S.C. 113(d).
The amount of reimbursement for such
transfer must be the same as would be
required for a transfer of excess property to an Executive agency under
similar circumstances.
TEMPORARY UTILIZATION
§ 102–75.240 May excess real property
be
temporarily
assigned/reassigned?
Yes, whenever GSA determines that
it is more advantageous to assign property temporarily rather than permanently, it may do so. If the space is for
office, storage, or related facilities,
GSA will determine the length of the
assignment/reassignment. Agencies are
required to reimburse the landholding
agency (or GSA, if GSA has become responsible for seeking an appropriation
for protection and maintenance expenses) (see § 102–75.970) for protection
and maintenance expenses. GSA may
also temporarily assign/reassign excess
real property for uses other than storage, office or related facilities. In such
cases, the agency receiving the temporary assignment may be required to
pay a rental or users charge based upon
the fair market value of the property,
as determined by GSA. If the property
will be required by the agency for a period of more than 1 year, it may be
transferred on a conditional basis, with
an understanding that the property
will be reported excess at an agreed
upon time (see § 102–75.85). The requesting agency is responsible for protection
and maintenance expenses.
NON-FEDERAL INTERIM USE OF EXCESS
PROPERTY
§ 102–75.245 When can landholding
agencies grant rights for non-Federal interim use of excess property
reported to GSA?
Landholding agencies, upon approval
from GSA, may grant rights for nonFederal interim use of excess property
reported to GSA, when it is determined
that such excess property is not required for the needs of any Federal
agency and when the interim use will
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§ 102–75.250
41 CFR Ch. 102 (7–1–16 Edition)
not impair the ability to dispose of the
property.
Subpart C—Surplus Real Property
Disposal
§ 102–75.250 What general policy must
the disposal agency follow concerning the disposal of surplus
property?
The disposal agency must dispose of
surplus real property—
(a) In the most economical manner
consistent with the best interests of
the Government; and
(b) Ordinarily for cash, consistent
with the best interests of the Government.
§ 102–75.255 What are disposal agencies’ specific responsibilities concerning the disposal of surplus
property?
The disposal agency must determine
that there is no further Federal need or
requirement for the excess real property and the property is surplus to the
needs of the Federal Government. After
reaching this determination, the disposal agency must expeditiously make
the surplus property available for acquisition by State and local governmental units and non-profit institutions (see § 102–75.350) or for sale by
public advertising, negotiation, or
other disposal action. The disposal
agency must consider the availability
of real property for public purposes on
a case-by-case basis, based on highest
and best use and estimated fair market
value. Where hazardous substance activity is identified, see §§ 102–75.340 and
102–75.345 for required information that
the disposal agency must incorporate
into the offer to purchase and conveyance document.
§ 102–75.260 When may the disposal
agency dispose of surplus real property by exchange for privately
owned property?
The disposal agency may dispose of
surplus real property by exchange for
privately owned property for property
management considerations such as
boundary realignment or for providing
access. The disposal agency may also
dispose of surplus real property by exchange for privately owned property
where authorized by law, when the re-
questing Federal agency receives approval from the Office of Management
and Budget and the appropriate oversight committees, and where the transaction offers substantial economic or
unique program advantages not otherwise obtainable by any other acquisition method.
§ 102–75.265 Are
conveyance
documents required to identify all
agreements and representations
concerning property restrictions
and conditions?
Yes, conveyance documents must
identify all agreements and representations concerning restrictions and conditions affecting the property’s future
use, maintenance, or transfer.
APPLICABILITY OF ANTITRUST LAWS
§ 102–75.270 Must antitrust laws be
considered when disposing of property?
Yes, antitrust laws must be considered in any case in which there is contemplated a disposal to any private interest of—
(a) Real and related personal property that has an estimated fair market
value of $3 million or more; or
(b) Patents, processes, techniques, or
inventions, irrespective of cost.
§ 102–75.275 Who determines whether
the proposed disposal would create
or maintain a situation inconsistent
with antitrust laws?
The Attorney General determines
whether the proposed disposal would
create or maintain a situation inconsistent with antitrust laws.
§ 102–75.280 What information concerning a proposed disposal must a
disposal agency provide to the Attorney General to determine the applicability of antitrust laws?
The disposal agency must promptly
provide the Attorney General with notice of any such proposed disposal and
the probable terms or conditions, as required by 40 U.S.C. 559. If notice is
given by any disposal agency other
than GSA, a copy of the notice must
also be provided simultaneously to the
GSA Regional Office in which the property is located. Upon request, a disposal agency must furnish information
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§ 102–75.297
that the Attorney General believes to
be necessary in determining whether
the proposed disposition or any other
disposition of surplus real property violates or would violate any of the antitrust laws.
§ 102–75.285 Can a disposal agency dispose of real property to a private
interest specified in § 102–75.270 before advice is received from the Attorney General?
No, advice from the Attorney General must be received before disposing
of real property.
DISPOSALS UNDER OTHER LAWS
§ 102–75.290 Can disposals of real
property be made under authority
of laws other than Chapter 5 of
Subtitle I of Title 40 of the United
States Code?
Except for disposals specifically authorized by special legislation, disposals of real property must be made
only under the authority of Chapter 5
of Subtitle I of Title 40 of the United
States Code. However, the Administrator of General Services can evaluate, on a case-by-case basis, the disposal provisions of any other law to determine consistency with the authority
conferred by Title 40. The provisions of
this section do not apply to disposals of
real property authorized to be made by
40 U.S.C. 113 or by any special statute
that directs or requires an Executive
agency named in the law to transfer or
convey specifically described real property in accordance with the provisions
of that statute.
CREDIT DISPOSALS
§ 102–75.295 What is the policy on extending credit in connection with
the disposal of surplus property?
The disposal agency—
(a) May extend credit in connection
with any disposal of surplus property
when it determines that credit terms
are necessary to avoid reducing the salability of the property and potential
obtainable price and, when below market rates are extended, confer with the
Office of Management and Budget to
determine if the Federal Credit Reform
Act of 1990 is applicable to the transaction;
(b) Must administer and manage the
credit disposal and any related security;
(c) May enforce, adjust, or settle any
right of the Government with respect
to extending credit in a manner and
with terms that are in the best interests of the Government; and
(d) Must include provisions in the
conveyance documents that obligate
the purchaser, where a sale is made
upon credit, to obtain the disposal
agency’s prior written approval before
reselling or leasing the property. The
purchaser’s credit obligations to the
United States must be fulfilled before
the disposal agency may approve the
resale of the property.
DESIGNATION OF DISPOSAL AGENCIES
§ 102–75.296 When may a landholding
agency other than GSA be the disposal agency for real and related
personal property?
A landholding agency may be the disposal agency for real and related personal property when—
(a) The agency has statutory authority to dispose of real and related personal property;
(b) The agency has delegated authority from GSA to dispose of real and related personal property; or
(c) The agency is disposing of—
(1) Leases, licenses, permits, easements, and other similar real estate interests held by agencies in non-Government-owned real property;
(2)
Government-owned
improvements, including fixtures, structures,
and other improvements of any kind as
long as the underlying land is not
being disposed; or
(3) Standing timber, embedded gravel, sand, stone, and underground water,
without the underlying land.
§ 102–75.297 Are there any exceptions
to when landholding agencies can
serve as the disposal agency?
Yes, landholding agencies may not
serve as the disposal agency when—
(a) Either the landholding agency or
GSA determines that the Government’s
best interests are served by disposing
of leases, licenses, permits, easements
and similar real estate interests together with other property owned or
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§ 102–75.298
41 CFR Ch. 102 (7–1–16 Edition)
controlled by the Government that has
been or will be reported to GSA, or
(b) Government-owned machinery
and equipment being used by a contractor-operator will be sold to a contractor-operator.
§ 102–75.298 Can agencies request that
GSA be the disposal agency for real
property and real property interests described in § 102–75.296?
Yes. If requested, GSA, at its discretion, may be the disposal agency for
such real property and real property
interests.
§ 102–75.299 What
are
landholding
agencies’ responsibilities if GSA
conducts the disposal?
Landholding agencies are and remain
responsible for all rental/lease payments until the lease expires or is terminated. Landholding agencies are responsible for paying any restoration or
other direct costs incurred by the Government associated with termination
of a lease, and for paying any demolition and removal costs not offset by
the sale of the property. (See also § 102–
75.965.)
APPRAISAL
§ 102–75.300 Are appraisals required
for all real property disposal transactions?
Generally, yes, appraisals are required for all real property disposal
transactions, except when—
(a) An appraisal will serve no useful
purpose (e.g., legislation authorizes
conveyance without monetary consideration or at a fixed price). This exception does not apply to negotiated sales
to public agencies intending to use the
property for a public purpose not covered by any of the special disposal provisions in subpart C of this part; or
(b) The estimated fair market value
of property to be offered on a competitive sale basis does not exceed $300,000.
§ 102–75.305 What type of appraisal
value must be obtained for real
property disposal transactions?
For all real property transactions requiring appraisals, agencies must obtain, as appropriate, an appraisal of either the fair market value or the fair
annual rental value of the property
available for disposal.
§ 102–75.310 Who must agencies use to
appraise the real property?
Agencies must use only experienced
and qualified real estate appraisers familiar with the types of property to be
appraised when conducting the appraisal. When an appraisal is required
for negotiation purposes, the same
standard applies. However, agencies
may authorize other methods of obtaining an estimate of the fair market
value or the fair annual rental when
the cost of obtaining that data from a
contract appraiser would be out of proportion to the expected recoverable
value of the property.
§ 102–75.315 Are appraisers authorized
to consider the effect of historic
covenants on the fair market value?
Yes, appraisers are authorized to consider the effect of historic covenants on
the fair market value, if the property
is in or eligible for listing in the National Register of Historic Places.
§ 102–75.320 Does appraisal information need to be kept confidential?
Yes, appraisals, appraisal reports, appraisal analyses, and other predecisional appraisal documents are
confidential and can only be used by
authorized Government personnel who
can substantiate the need to know this
information. Appraisal information
must not be divulged prior to the delivery and acceptance of the deed. Any
persons engaged to collect or evaluate
appraisal information must certify
that—
(a) They have no direct or indirect
interest in the property; and
(b) The report was prepared and submitted without bias or influence.
INSPECTION
§ 102–75.325 What responsibility does
the landholding agency have to provide persons the opportunity to inspect available surplus property?
Landholding agencies should provide
all persons interested in acquiring
available surplus property with the opportunity to make a complete inspection of the property, including any
available inventory records, plans,
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Federal Management Regulation
§ 102–75.335
specifications, and engineering reports
that relate to the property. These inspections are subject to any necessary
national security restrictions and are
subject to the disposal agency’s rules.
(See §§ 102–75.335 and 102–75.985.)
SUBMISSION OF OFFERS TO PURCHASE OR
LEASE
§ 102–75.330 What form must all offers
to purchase or lease be in?
All offers to purchase or lease must
be in writing, accompanied by any required earnest money deposit, using
the form prescribed by the disposal
agency. In addition to the financial
terms upon which the offer is predicated, the offer must set forth the willingness of the offeror to abide by the
terms, conditions, reservations, and restrictions upon which the property is
offered, and must contain such other
information as the disposal agency
may request.
PROVISIONS RELATING TO ASBESTOS
§ 102–75.335 Where asbestos is identified, what information must the disposal agency incorporate into the
offer to purchase and the conveyance document?
Where the existence of asbestos on
the property has been brought to the
attention of the disposal agency by the
Report of Excess Real Property (Standard Form 118) information provided
(see § 102–75.125), the disposal agency
must incorporate this information (less
any cost or time estimates to remove
the asbestos-containing materials) into
any offer to purchase and conveyance
document and include the following
wording:
Notice of the Presence of Asbestos—Warning!
(a) The Purchaser is warned that the property offered for sale contains asbestos-containing materials. Unprotected or unregulated exposures to asbestos in product manufacturing, shipyard, and building construction workplaces have been associated with
asbestos-related diseases. Both the U.S. Occupational Safety and Health Administration (OSHA) and the U.S. Environmental
Protection Agency (EPA) regulate asbestos
because of the potential hazards associated
with exposure to airborne asbestos fibers.
Both OSHA and EPA have determined that
such exposure increases the risk of asbestos-
related diseases, which include certain cancers and which can result in disability or
death.
(b) Bidders (offerors) are invited, urged and
cautioned to inspect the property to be sold
prior to submitting a bid (offer). More particularly, bidders (offerors) are invited,
urged and cautioned to inspect the property
as to its asbestos content and condition and
any hazardous or environmental conditions
relating thereto. The disposal agency will assist bidders (offerors) in obtaining any authorization(s) that may be required in order
to carry out any such inspection(s). Bidders
(offerors) shall be deemed to have relied solely on their own judgment in assessing the
overall condition of all or any portion of the
property including, without limitation, any
asbestos hazards or concerns.
(c) No warranties either express or implied
are given with regard to the condition of the
property including, without limitation,
whether the property does or does not contain asbestos or is or is not safe for a particular purpose. The failure of any bidder (offeror) to inspect, or to be fully informed as
to the condition of all or any portion of the
property offered, will not constitute grounds
for any claim or demand for adjustment or
withdrawal of a bid or offer after its opening
or tender.
(d) The description of the property set
forth in the Invitation for Bids (Offer to Purchase) and any other information provided
therein with respect to said property is based
on the best information available to the disposal agency and is believed to be correct,
but an error or omission, including, but not
limited to, the omission of any information
available to the agency having custody over
the property and/or any other Federal agency, shall not constitute grounds or reason for
nonperformance of the contract of sale, or
any claim by the Purchaser against the Government including, without limitation, any
claim for allowance, refund, or deduction
from the purchase price.
(e) The Government assumes no liability
for damages for personal injury, illness, disability, or death, to the Purchaser, or to the
Purchaser’s successors, assigns, employees,
invitees, or any other person subject to Purchaser’s control or direction, or to any other
person, including members of the general
public, arising from or incident to the purchase, transportation, removal, handling,
use, disposition, or other activity causing or
leading to contact of any kind whatsoever
with asbestos on the property that is the
subject of this sale, whether the Purchaser,
its successors or assigns has or have properly
warned or failed properly to warn the individual(s) injured.
(f) The Purchaser further agrees that, in
its use and occupancy of the property, it will
comply with all Federal, State, and local
laws relating to asbestos.
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§ 102–75.340
41 CFR Ch. 102 (7–1–16 Edition)
PROVISIONS RELATING TO HAZARDOUS
SUBSTANCE ACTIVITY
§ 102–75.340 Where
hazardous
substance activity has been identified
on property proposed for disposal,
what information must the disposal
agency incorporate into the offer to
purchase and the conveyance document?
Where the existence of hazardous
substance activity has been brought to
the attention of the disposal agency by
the Report of Excess Real Property
(Standard Form 118) information provided (see §§ 102–75.125 and 102–75.130),
the disposal agency must incorporate
this information into any offer to purchase and conveyance document. In
any offer to purchase and conveyance
document, disposal agencies, generally,
must also address the following (specific recommended language that addresses the following issues can be
found in the GSA Customer Guide to
Real Property Disposal):
(a) Notice of all hazardous substance
activity identified as a result of a complete search of agency records by the
landholding agency.
(b) A statement, certified by a responsible landholding agency official in
the Report of Excess Real Property,
that all remedial actions necessary to
protect human health and the environment with regard to such hazardous
substance activity have been taken
(this is not required in the offer to purchase or conveyance document in the
case of a transfer of property under the
authority of section 120(h)(3)(C) of
CERCLA, or the Early Transfer Authority, or a conveyance to a ‘‘potentially responsible party’’, as defined by
CERCLA (see 102–75.345)).
(c) A commitment, on behalf of the
United States, to return to correct any
hazardous condition discovered after
the conveyance that results from hazardous substance activity prior to the
date of conveyance.
(d) A reservation by the United
States of a right of access in order to
accomplish any further remedial actions required in the future.
§ 102–75.345 What is different about
the statements in the offer to purchase and conveyance document if
the sale is to a potentially responsible party with respect to the hazardous substance activity?
In the case where the purchaser or
grantee is a potentially responsible
party (PRP) with respect to hazardous
substance activity on the property
under consideration, the United States
is no longer under a general obligation
to certify that the property has been
successfully remediated, or to commit
to return to the property to address
contamination that is discovered in the
future. Therefore, the statements of responsibility and commitments on behalf of the United States referenced in
§ 102–75.340 should not be used. Instead,
language should be included in the
offer to purchase and conveyance document that is consistent with any agreement that has been reached between
the landholding agency and the PRP
with regard to prior hazardous substance activity.
PUBLIC BENEFIT CONVEYANCES
§ 102–75.350 What are disposal agencies’ responsibilities concerning
public benefit conveyances?
Based on a highest and best use analysis, disposal agencies may make surplus real property available to State
and local governments and certain nonprofit institutions or organizations at
up to 100 percent public benefit discount for public benefit purposes. Some
examples of such purposes are education, health, park and recreation, the
homeless, historic monuments, public
airports, highways, correctional facilities, ports, and wildlife conservation.
The implementing regulations for
these conveyances are found in this
subpart.
§ 102–75.351 May the disposal agency
waive screening for public benefit
conveyances?
All properties, consistent with the
highest and best use analysis, will normally be screened for public benefit
uses. However, the disposal agency
may waive public benefit screening,
with the exception of the mandatory
McKinney-Vento homeless screening,
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Federal Management Regulation
§ 102–75.380
for specific property disposal considerations, e.g., when a property has been
reported excess for exchange purposes.
§ 102–75.355 What clause must be in
the offer to purchase and the conveyance documents for public benefit conveyances?
Executive agencies must include in
the offer to purchase and conveyance
documents
the
non-discrimination
clause in § 102–75.360 for public benefit
conveyances.
§ 102–75.360 What wording must be in
the non-discrimination clause that
is required in the offer to purchase
and in the conveyance document?
The wording of the non-discrimination clause must be as follows:
The Grantee covenants for itself, its heirs,
successors, and assigns and every successor
in interest to the property hereby conveyed,
or any part thereof, that the said Grantee
and such heirs, successors, and assigns shall
not discriminate upon the basis of race,
creed, color, religion, sex, disability, age, or
national origin in the use, occupancy, sale,
or lease of the property, or in their employment practices conducted thereon. This covenant shall not apply, however, to the lease
or rental of a room or rooms within a family
dwelling unit; nor shall it apply with respect
to religion to premises used primarily for religious purposes. The United States of America shall be deemed a beneficiary of this covenant without regard to whether it remains
the owner of any land or interest therein in
the locality of the property hereby conveyed
and shall have the sole right to enforce this
covenant in any court of competent jurisdiction.
POWER TRANSMISSION LINES
§ 102–75.365 Do disposal agencies have
to notify State entities and Government agencies that a surplus power
transmission line and right-of-way
is available?
Yes, disposal agencies must notify
State entities and Government agencies of the availability of a surplus
power transmission line and right-ofway.
§ 102–75.370 May a State, or any political subdivision thereof, certify to a
disposal agency that it needs a surplus power transmission line and
the right-of-way acquired for its
construction to meet the requirements of a public or cooperative
power project?
Yes, section 13(d) of the Surplus
Property Act of 1944 (50 U.S.C. App.
1622(d)) allows any State or political
subdivision, or any State or Government agency or instrumentality to certify to the disposal agency that a surplus power transmission line and the
right-of-way acquired for its construction is needed to meet the requirements of a public or cooperative power
project.
§ 102–75.375 What happens once a
State, or political subdivision, certifies that it needs a surplus power
transmission line and the right-ofway acquired for its construction to
meet the requirements of a public
or cooperative power project?
Generally, once a State or political
subdivision certifies that it needs a
surplus power transmission line and
the right-of-way, the disposal agency
may sell the property to the state, or
political subdivision thereof, at the
fair market value. However, if a sale of
a surplus transmission line cannot be
accomplished because of the price to be
charged, or other reasons, and the certification by the State or political subdivision is not withdrawn, the disposal
agency must report the facts involved
to the Administrator of General Services, to determine what further action
will or should be taken to dispose of
the property.
§ 102–75.380 May power transmission
lines and rights-of-way be disposed
of in other ways?
Yes, power transmission lines and
rights-of-way not disposed of by sale
for fair market value may be disposed
of following other applicable provisions
of this part, including, if appropriate,
reclassification by the disposal agency.
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§ 102–75.385
41 CFR Ch. 102 (7–1–16 Edition)
PROPERTY FOR PUBLIC AIRPORTS
§ 102–75.385 Do disposal agencies have
the responsibility to notify eligible
public agencies that airport property has been determined to be surplus?
Yes, the disposal agency must notify
eligible public agencies that property
currently used as or suitable for use as
a public airport under the Surplus
Property Act of 1944, as amended, has
been determined to be surplus. A copy
of the landholding agency’s Report of
Excess Real Property (Standard Form
118, with accompanying schedules)
must be transmitted with the copy of
the surplus property notice sent to the
appropriate regional office of the Federal Aviation Administration (FAA).
The FAA must furnish an application
form and instructions for the preparation of an application to eligible public
agencies upon request.
§ 102–75.390 What does the term ‘‘surplus airport property’’ mean?
For the purposes of this part, surplus
airport property is any surplus real
property including improvements and
personal property included as a part of
the operating unit that the Administrator of FAA deems is—
(a) Essential, suitable, or desirable
for the development, improvement, operation, or maintenance of a public airport, as defined in the Federal Airport
Act, as amended (49 U.S.C. 1101); or
(b) Reasonably necessary to fulfill
the immediate and foreseeable future
requirements of the grantee for the development, improvement, operation, or
maintenance of a public airport, including property needed to develop
sources of revenue from non-aviation
businesses at a public airport. Approval
for non-aviation revenue-producing
areas may only be given for such areas
as are anticipated to generate net proceeds that do not exceed expected deficits for operation of the aviation area
applied for at the airport.
§ 102–75.395 May surplus airport property be conveyed or disposed of to a
State, political subdivision, municipality, or tax-supported institution
for a public airport?
Yes, section 13(g) of the Surplus
Property Act of 1944 (49 U.S.C. § 47151)
authorizes the disposal agency to convey or dispose of surplus airport property to a State, political subdivision,
municipality, or tax-supported institution for use as a public airport.
§ 102–75.400 Is industrial property located on an airport also considered
to be ‘‘airport property’’?
No, if the Administrator of General
Services determines that a property’s
highest and best use is industrial, then
the property must be classified as such
for disposal without regard to the public benefit conveyance provisions of
this subpart.
§ 102–75.405 What responsibilities does
the Federal Aviation Administration (FAA) have after receiving a
copy of the notice (and a copy of
the Report of Excess Real Property
(Standard Form 118)) given to eligible public agencies that there is
surplus airport property?
As soon as possible after receiving
the copy of the surplus notice, the FAA
must inform the disposal agency of its
determination. Then, the FAA must
provide assistance to any eligible public agency known to have a need for
the property for a public airport, so
that the public agency may develop a
comprehensive and coordinated plan of
use and procurement for the property.
§ 102–75.410 What action must the disposal agency take after an eligible
public agency has submitted a plan
of use and application to acquire
property for a public airport?
After an eligible public agency submits a plan of use and application, the
disposal agency must transmit two
copies of the plan and two copies of the
application to the appropriate FAA regional office. The FAA must promptly
submit a recommendation to the disposal agency for disposal of the property for a public airport or must inform the disposal agency that no such
recommendation will be submitted.
§ 102–75.415 What happens after the
disposal agency receives the FAA’s
recommendation for disposal of the
property for a public airport?
The head of the disposal agency, or
his or her designee, may convey property approved by the FAA for use as a
public airport to the eligible public
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Federal Management Regulation
§ 102–75.445
agency, subject to the provisions of the
Surplus Property Act of 1944, as
amended.
§ 102–75.420 What happens if the FAA
informs the disposal agency that it
does not recommend disposal of the
property for a public airport?
Any airport property that the FAA
does not recommend for disposal as a
public airport must be disposed of in
accordance with other applicable provisions of this part. However, the disposal agency must first notify the
landholding agency of its inability to
dispose of the property for use as a
public airport. In addition, the disposal
agency must allow the landholding
agency 30 days to withdraw the property from surplus or to waive any future interest in the property for public
airport use.
§ 102–75.425 Who has sole responsibility for enforcing compliance with
the terms and conditions of disposal for property disposed of for
use as a public airport?
The Administrator of the FAA has
the sole responsibility for enforcing
compliance with the terms and conditions of disposals to be used as a public
airport. The FAA is also responsible for
reforming, correcting, or amending any
disposal instruments; granting releases; and any action necessary for recapturing the property, using the provisions of 49 U.S.C. 47101 et seq.
§ 102–75.430 What happens if property
conveyed for use as a public airport
is revested in the United States?
If property that was conveyed for use
as a public airport is revested in the
United States for noncompliance with
the terms of the disposal, or other
cause, the Administrator of the FAA
must be accountable for the property
and must report the property to GSA
as excess property following the provisions of this part.
§ 102–75.435 Does the Airport and Airway Development Act of 1970, as
amended (Airport Act of 1970),
apply to the transfer of airports to
State and local agencies?
No, the Airport and Airway Development Act of 1970, as amended (49 U.S.C.
47101–47131) (Airport Act of 1970), does
not apply to the transfer of airports to
State and local agencies. The transfer
of airports to State and local agencies
may be made only under section 13(g)
of the Surplus Property Act of 1944 (49
U.S.C. 47151–47153). Only property that
the landholding agency determines
cannot be reported excess to GSA for
disposal under Title 40, but nevertheless may be made available for use by
a State or local public body as a public
airport without being inconsistent
with the Federal program of the landholding agency, may be conveyed under
the Airport Act of 1970. In the latter instance, the Airport Act of 1970 may be
used to transfer non-excess land for
airport development purposes provided
it does not constitute an entire airport.
An entire, existing and established airport can only be disposed of to a State
or eligible local government under section 13(g) of the Surplus Property Act
of 1944.
PROPERTY FOR USE AS HISTORIC
MONUMENTS
§ 102–75.440 Who must disposal agencies notify that surplus property is
available for historic monument
use?
Disposal agencies must notify State
and area wide clearinghouses and eligible public agencies that property that
may be conveyed for use as a historic
monument has been determined to be
surplus. A copy of the landholding
agency’s Report of Excess Real Property (Standard Form 118) with accompanying schedules must be transmitted
with the copy of each notice that is
sent to the appropriate regional or
field offices of the National Park Service (NPS) of the Department of the Interior (DOI).
§ 102–75.445 Who can convey surplus
real and related personal property
for historic monument use?
A disposal agency may convey surplus real and related personal property
for use as a historic monument, without monetary consideration, to any
State, political subdivision, instrumentality thereof, or municipality, for the
benefit of the public, provided the Secretary of the Interior has determined
that the property is suitable and desirable for such use.
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§ 102–75.450
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–75.450 What type of property is
suitable or desirable for use as a
historic monument?
Only property conforming with the
recommendation of the Advisory Board
on National Parks, Historic Sites,
Buildings, and Monuments shall be determined to be suitable or desirable for
use as a historic monument.
§ 102–75.455 May historic monuments
be used for revenue-producing activities?
The disposal agency may authorize
the use of historic monuments conveyed under 40 U.S.C. 550(h) or the Surplus Property Act of 1944, as amended,
for revenue-producing activities, if the
Secretary of the Interior—
(a) Determines that the activities,
described in the applicant’s proposed
program of use, are compatible with
the use of the property for historic
monument purposes;
(b) Approves the grantee’s plan for
repair, rehabilitation, restoration, and
maintenance of the property;
(c) Approves the grantee’s plan for financing the repair, rehabilitation, restoration, and maintenance of the property. DOI must not approve the plan
unless it provides that all income in
excess of costs of repair, rehabilitation,
restoration, maintenance, and a specified reasonable profit or payment that
may accrue to a lessor, sublessor, or
developer in connection with the management, operation, or development of
the property for revenue producing activities, is used by the grantee, lessor,
sublessor, or developer, only for public
historic preservation, park, or recreational purposes; and
(d) Examines and approves the grantee’s accounting and financial procedures for recording and reporting on
revenue-producing activities.
§ 102–75.460 What information must
disposal agencies furnish eligible
public agencies?
Upon request, the disposal agency
must furnish eligible public agencies
with adequate preliminary property information and, with the landholding
agency’s cooperation, provide assistance to enable public agencies to obtain adequate property information.
§ 102–75.465 What information must eligible public agencies interested in
acquiring real property for use as a
historic monument submit to the
appropriate regional or field offices
of the National Park Service (NPS)
of the Department of the Interior
(DOI)?
Eligible public agencies must submit
the original and two copies of the completed application to acquire real property for use as a historic monument to
the appropriate regional or field offices
of NPS, which will forward one copy of
the application to the appropriate regional office of the disposal agency.
§ 102–75.470 What action must NPS
take after an eligible public agency
has submitted an application for
conveyance of surplus property for
use as a historic monument?
NPS must promptly—
(a) Submit the Secretary of the Interior’s determination to the disposal
agency; or
(b) Inform the disposal agency that
no such recommendation will be submitted.
§ 102–75.475 What happens after the
disposal agency receives the Secretary of the Interior’s determination for disposal of the surplus
property for a historic monument
and compatible revenue-producing
activities?
The head of the disposal agency or
his or her designee may convey to an
eligible public agency surplus property
determined by the Secretary of the Interior to be suitable and desirable for
use as a historic monument for the
benefit of the public and for compatible
revenue-producing activities subject to
the provisions of 40 U.S.C. 550(h).
§ 102–75.480 Who has the responsibility
for enforcing compliance with the
terms and conditions of disposal for
surplus property conveyed for use
as a historic monument?
The Secretary of the Interior has the
responsibility for enforcing compliance
with the terms and conditions of such
a disposal. DOI is also responsible for
reforming, correcting, or amending any
disposal instrument; granting releases;
and any action necessary for recapturing the property using the provisions of 40 U.S.C. 550(b). The actions
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Federal Management Regulation
§ 102–75.500
are subject to the approval of the head
of the disposal agency.
§ 102–75.485 What happens if property
that was conveyed for use as a historic monument is revested in the
United States?
In such a case, DOI must notify the
appropriate GSA Public Buildings
Service (PBS) Regional Office immediately by letter when title to the historic property is to be revested in the
United States for noncompliance with
the terms and conditions of disposal or
for other cause. The notification must
cite the legal and administrative actions that DOI must take to obtain full
title and possession of the property. In
addition, it must include an adequate
description of the property, including
any improvements constructed since
the original conveyance to the grantee.
After receiving a statement from DOI
that title to the property is proposed
for revesting, GSA will review the
statement and determine if title should
be revested. If GSA, in consultation
with DOI, determines that the property
should be revested, DOI must submit a
Report of Excess Real Property, Standard Form 118 to GSA. GSA will review
and act upon the Standard Form 118, if
acceptable. However, the grantee must
provide protection and maintenance of
the property until the title reverts to
the Federal Government, including the
period of the notice of intent to revert.
Such protection and maintenance
must, at a minimum, conform to the
standards prescribed in the GSA Customer Guide to Real Property Disposal.
PROPERTY FOR EDUCATIONAL AND
PUBLIC HEALTH PURPOSES
§ 102–75.490 Who must notify eligible
public agencies that surplus real
property for educational and public
health purposes is available?
The disposal agency must notify eligible public agencies that surplus property is available for educational and/or
public health purposes. The notice
must require that any plans for an educational or public health use, resulting
from the development of the comprehensive and coordinated plan of use
and procurement for the property,
must be coordinated with the Department of Education (ED) or the Depart-
ment of Health and Human Services
(HHS), as appropriate. The notice must
also let eligible public agencies know
where to obtain the applications, instructions for preparing them, and
where to submit the application. The
requirement for educational or public
health use of the property by an eligible public agency is contingent upon
the disposal agency’s approval, under
§ 102–75.515, of a recommendation for assignment of Federal surplus real property received from ED or HHS. Further, any subsequent transfer is subject
to the approval of the head of the disposal agency as stipulated under 40
U.S.C. 550(c) or (d) and referenced in
§ 102–75.535.
§ 102–75.495 May the Department of
Education (ED) or the Department
of Health and Human Services
(HHS) notify nonprofit organizations that surplus real property and
related personal property is available for educational and public
health purposes?
Yes, ED or HHS may notify eligible
non-profit institutions that such property has been determined to be surplus.
Notices to eligible non-profit institutions must require eligible non-profit
institutions to coordinate any request
for educational or public health use of
the property with the appropriate public agency responsible for developing
and submitting a comprehensive and
coordinated plan of use and procurement for the property.
§ 102–75.500 Which Federal agencies
may the head of the disposal agency
(or his or her designee) assign for
disposal surplus real property to be
used for educational and public
health purposes?
The head of the disposal agency or
his designee may—
(a) Assign to the Secretary of ED for
disposal under 40 U.S.C. 550(c) surplus
real property, including buildings, fixtures, and equipment, as recommended
by the Secretary as being needed for
school, classroom, or other educational
use; or
(b) Assign to the Secretary of HHS
for disposal under 40 U.S.C. 550 (d) such
surplus real property, including buildings, fixtures, and equipment situated
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§ 102–75.505
41 CFR Ch. 102 (7–1–16 Edition)
thereon, as recommended by the Secretary as being needed for use in the
protection of public health, including
research.
§ 102–75.505 Is the request for educational or public health use of a
property by an eligible nonprofit institution contingent upon the disposal agency’s approval?
Yes, eligible non-profit organizations
will only receive surplus real property
for an educational or public health use
if the disposal agency approves or
grants the assignment request from either ED or HHS. The disposal agency
will also consider other uses for available surplus real property, taking into
account the highest and best use determination. Any subsequent transfer is
subject to the approval of the head of
the disposal agency as stipulated under
40 U.S.C. 550(c) or (d) and referenced in
this part.
§ 102–75.510 When must the Department of Education and the Department of Health and Human Services
notify the disposal agency that an
eligible applicant is interested in
acquiring the property?
ED and HHS must notify the disposal
agency if it has an eligible applicant
interested in acquiring the property
within 30 calendar days after the date
of the surplus notice. Then, after the
30-day period expires, ED or HHS has 30
calendar days to review and approve an
application and request assignment of
the property, or inform the disposal
agency that no assignment request will
be forthcoming.
§ 102–75.515 What action must the disposal agency take after an eligible
public agency has submitted a plan
of use for property for an educational or public health requirement?
When an eligible public agency submits a plan of use for property for an
educational or public health requirement, the disposal agency must transmit two copies of the plan to the regional office of ED or HHS, as appropriate. The ED or HHS must submit to
the disposal agency, within 30 calendar
days after the date the plan is transmitted, a recommendation for assignment of the property to the Secretary
of ED or HHS, as appropriate, or must
inform the disposal agency, within the
30–calendar day period, that a recommendation will not be made for assignment of the property to ED or
HHS. If, after considering other uses
for the property, the disposal agency
approves the assignment recommendation from ED or HHS, it must assign
the property by letter or other document to the Secretary of ED or HHS,
as appropriate. The disposal agency
must furnish to the landholding agency
a copy of the assignment, unless the
landholding agency is also the disposal
agency. If the recommendation is disapproved, the disposal agency must
likewise notify the appropriate Department.
§ 102–75.520 What must the Department of Education or the Department of Health and Human Services
address in the assignment recommendation that is submitted to
the disposal agency?
Any assignment recommendation
that ED or HHS submits to the disposal
agency must provide complete information concerning the educational or
public health use, including—
(a) Identification of the property;
(b) The name of the applicant and the
size and nature of its program;
(c) The specific use planned;
(d) The intended public benefit allowance;
(e) The estimate of the value upon
which such proposed allowance is
based; and
(f) An explanation if the acreage or
value of the property exceeds the
standards established by the Secretary.
§ 102–75.525 What responsibilities do
landholding agencies have concerning properties to be used for
educational and public health purposes?
Landholding agencies must cooperate
to the fullest extent possible with representatives of ED or HHS in their inspection of such property and in furnishing information relating to the
property.
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Federal Management Regulation
§ 102–75.550
§ 102–75.530 What happens if the Department of Education or the Department of Health and Human
Services does not approve any applications for conveyance of the
property for educational or public
health purposes?
In the absence of an approved application from ED or HHS to convey the
property for educational or public
health purposes, which must be received within the 30 calendar day time
limit, the disposal agency will proceed
with other disposal actions.
§ 102–75.535 What responsibilities does
the Department of Education or the
Department of Health and Human
Services have after receiving the
disposal agency’s assignment letter?
After receiving the disposal agency’s
assignment letter, ED or HHS must
furnish the disposal agency with a Notice of Proposed Transfer within 30 calendar days. If the disposal agency approves the proposed transfer within 30
days of receiving the Notice of Proposed Transfer, ED or HHS may prepare the transfer documents and proceed with the transfer. ED or HHS
must take all necessary actions to accomplish the transfer within 15–calendar days beginning when the disposal
agency approves the transfer. ED or
HHS must furnish the disposal agency
two conformed copies of deeds, leases
or other instruments conveying the
property under 40 U.S.C. 550(c) or (d)
and all related documents containing
restrictions or conditions regulating
the future use, maintenance or transfer
of the property.
§ 102–75.540 Who is responsible for enforcing compliance with the terms
and conditions of the transfer for
educational or public health purposes?
ED or HHS, as appropriate, is responsible for enforcing compliance with the
terms and conditions of transfer. ED or
HHS is also responsible for reforming,
correcting, or amending any transfer
instruments; granting releases; and for
taking any necessary actions for recapturing the property using or following
the provisions of 40 U.S.C. 550(b). These
actions are subject to the approval of
the head of the disposal agency. ED or
HHS must notify the disposal agency of
its intent to take any actions to recapture the property. The notice must
identify the property affected, describe
in detail the proposed action, and state
the reasons for the proposed action.
§ 102–75.545 What happens if property
that was transferred to meet an
educational or public health requirement is revested in the United
States for noncompliance with the
terms of sale, or other cause?
In each case of repossession under a
terminated lease or reversion of title
for noncompliance with the terms or
conditions of sale or other cause, ED or
HHS must, prior to repossession or reversion of title, provide the appropriate
GSA regional property disposal office
with an accurate description of the real
and related personal property involved
using the Report of Excess Real Property (Standard Form 118), and the appropriate schedules. After receiving a
statement from ED or HHS that the
property is proposed for revesting, GSA
will review the statement and determine if title should be revested. If
GSA, in conjunction with ED or HHS,
determines that the property should be
revested, ED or HHS must submit a
Standard Form 118 to GSA. GSA will
review and act upon the Standard
Form 118, if acceptable. However, the
grantee must provide protection and
maintenance for the property until the
title reverts to the Federal Government, including the period of any notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to
Real Property Disposal.
PROPERTY FOR PROVIDING SELF-HELP
HOUSING OR HOUSING ASSISTANCE
§ 102–75.550 What does ‘‘self-help housing or housing assistance’’ mean?
Property for self-help housing or
housing assistance (which is separate
from the program under Title V of the
McKinney-Vento Homeless Assistance
Act covered in subpart H of this part)
is property for low-income housing opportunities through the construction,
rehabilitation, or refurbishment of
housing, under terms that require
that—
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§ 102–75.555
41 CFR Ch. 102 (7–1–16 Edition)
(a) Any individual or family receiving housing or housing assistance must
contribute a significant amount of
labor toward the construction, rehabilitation, or refurbishment; and
(b) Dwellings constructed, rehabilitated, or refurbished must be quality
dwellings that comply with local building and safety codes and standards and
must be available at prices below prevailing market prices.
§ 102–75.555 Which Federal agency receives the property assigned for
self-help housing or housing assistance for low-income individuals or
families?
The head of the disposal agency, or
designee, may assign, at his/her discretion, surplus real property, including
buildings, fixtures, and equipment to
the Secretary of the Department of
Housing
and
Urban
Development
(HUD).
§ 102–75.560 Who notifies eligible public agencies that real property to be
used for self-help housing or housing assistance purposes is available?
The disposal agency must notify eligible public agencies that surplus property is available. The notice must require that any plans for self-help housing or housing assistance use resulting
from the development of the comprehensive and coordinated plan of use
and procurement for the property must
be coordinated with HUD. Eligible public agencies may obtain an application
form and instructions for preparing
and submitting the application from
HUD.
§ 102–75.565 Is the requirement for
self-help housing or housing assistance use of the property by an eligible public agency or non-profit organization contingent upon the disposal agency’s approval of an assignment recommendation from the
Department of Housing and Urban
Development (HUD)?
Yes, the requirement for self-help
housing or housing assistance use of
the property by an eligible public agency or nonprofit organization is contingent upon the disposal agency’s approval under § 102–75.585 of HUD’s assignment
recommendation/request.
Any subsequent transfer is subject to
the approval of the head of the disposal
agency as stipulated under 40 U.S.C.
550(f) and referenced in § 102–75.605.
§ 102–75.570 What happens if the disposal agency does not approve the
assignment recommendation?
If the recommendation is not approved, the disposal agency must also
notify the Secretary of HUD and then
may proceed with other disposal action.
§ 102–75.575 Who notifies non-profit organizations that surplus real property and related personal property
to be used for self-help housing or
housing assistance purposes is
available?
HUD notifies eligible non-profit organizations, following guidance in the
GSA Customer Guide to Real Property
Disposal. Such notices must require eligible nonprofit organizations to—
(a) Coordinate any requirement for
self-help housing or housing assistance
use of the property with the appropriate public agency; and
(b) Declare to the disposal agency an
intent to develop and submit a comprehensive and coordinated plan of use
and procurement for the property.
§ 102–75.580 When must HUD notify
the disposal agency that an eligible
applicant is interested in acquiring
the property?
HUD must notify the disposal agency
within 30 calendar days after the date
of the surplus notice. Then, after the
30-day period expires, HUD has 30 calendar days to review and approve an
application and request assignment or
inform the disposal agency that no assignment request is forthcoming.
§ 102–75.585 What action must the disposal agency take after an eligible
public agency has submitted a plan
of use for property for a self-help
housing or housing assistance requirement?
When an eligible public agency submits a plan of use for property for a
self-help housing or housing assistance
requirement, the disposal agency must
transmit two copies of the plan to the
appropriate HUD regional office. HUD
must submit to the disposal agency,
within 30 calendar days after the date
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Federal Management Regulation
§ 102–75.615
the plan is transmitted, a recommendation for assignment of the property to
the Secretary of HUD, or must inform
the disposal agency, within the 30–calendar day period, that a recommendation will not be made for assignment of
the property to HUD. If, after considering other uses for the property, the
disposal agency approves the assignment recommendation from HUD, it
must assign the property by letter or
other document to the Secretary of
HUD. The disposal agency must furnish
to the landholding agency a copy of the
assignment, unless the landholding
agency is also the disposal agency. If
the disposal agency disapproves the
recommendation, the disposal agency
must likewise notify the Secretary of
HUD.
§ 102–75.590 What does the assignment
recommendation contain?
Any assignment recommendation
that HUD submits to the disposal agency must set forth complete information
concerning the self-help housing or
housing assistance use, including—
(a) Identification of the property;
(b) Name of the applicant and the
size and nature of its program;
(c) Specific use planned;
(d) Intended public benefit allowance;
(e) Estimate of the value upon which
such proposed allowance is based; and
(f) An explanation, if the acreage or
value of the property exceeds the
standards established by the Secretary.
§ 102–75.595 What responsibilities do
landholding agencies have concerning properties to be used for
self-help housing or housing assistance use?
Landholding agencies must cooperate
to the fullest extent possible with HUD
representatives in their inspection of
such property and in furnishing information relating to such property.
§ 102–75.600 What happens if HUD
does not approve any applications
for self-help housing or housing assistance use?
In the absence of an approved application from HUD for self-help housing
or housing assistance use, which must
be received within the 30–calendar day
time limit specified therein, the dis-
posal agency must proceed with other
disposal action.
§ 102–75.605 What responsibilities does
HUD have after receiving the disposal agency’s assignment letter?
After receiving the disposal agency’s
assignment letter, HUD must furnish
the disposal agency with a Notice of
Proposed Transfer within 30 calendar
days. If the disposal agency approves
the proposed transfer within 30 calendar days of receiving the Notice of
Proposed Transfer, HUD may prepare
the transfer documents and proceed
with the transfer. HUD must take all
necessary actions to accomplish the
transfer within 15 calendar days beginning when the disposal agency approves the transfer. HUD must furnish
the disposal agency two conformed copies of deeds, leases or other instruments conveying the property under 40
U.S.C. 550(f) and all related documents
containing restrictions or conditions
regulating the future use, maintenance
or transfer of the property.
§ 102–75.610 Who is responsible for enforcing compliance with the terms
and conditions of the transfer of
the property for self-help housing
or housing assistance use?
HUD is responsible for enforcing
compliance with the terms and conditions of transfer. HUD is also responsible for reforming, correcting, or
amending any transfer instrument;
granting releases; and for taking any
necessary actions for recapturing the
property using the provisions of 40
U.S.C. 550(b). These actions are subject
to the approval of the head of the disposal agency. HUD must notify the
head of the disposal agency of its intent to take action to recapture the
property. The notice must identify the
property affected, describe in detail the
proposed action, and state the reasons
for the proposed action.
§ 102–75.615 Who is responsible for enforcing compliance with the terms
and conditions of property transferred under section 414(a) of the
1969 HUD Act?
HUD maintains responsibility for
properties previously conveyed under
section 414(a) of the 1969 HUD Act.
Property transferred to an entity other
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§ 102–75.620
41 CFR Ch. 102 (7–1–16 Edition)
than a public body and used for any
purpose other than that for which it
was sold or leased within a 30-year period must revert to the United States.
If the property was leased, then the
lease terminates. The appropriate Secretary (HUD or Department of Agriculture) and the Administrator of GSA
can approve the new use of the property after the first 20 years of the original 30-year period has expired.
§ 102–75.620 What happens if property
that was transferred to meet a selfhelp housing or housing assistance
use requirement is found to be in
noncompliance with the terms of
sale?
In each case of repossession under a
terminated lease or reversion of title
for noncompliance with the terms or
conditions of sale or other cause, HUD
(or USDA for property conveyed
through the former Farmers Home Administration program under section
414(a) of the 1969 HUD Act) must, prior
to repossession or reversion of title,
provide the appropriate GSA regional
office with an accurate description of
the real and related personal property
involved using the Report of Excess
Real Property (Standard Form 118),
and the appropriate schedules. After
receiving a statement from HUD (or
USDA) that title to the property is
proposed for revesting, GSA will review
the statement and determine if title
should be revested. If GSA, in conjunction with HUD (or USDA), determines
that the property should be revested,
HUD (or USDA) must submit a Standard Form 118 to GSA. GSA will review
and act upon the Standard Form 118, if
acceptable. However, the grantee must
provide protection and maintenance for
the property until the title reverts to
the Federal Government, including the
period of any notice of intent to revert.
Such protection and maintenance
must, at a minimum, conform to the
standards prescribed in the GSA Customer Guide to Real Property Disposal.
PROPERTY FOR USE AS PUBLIC PARK OR
RECREATION AREAS
§ 102–75.625 Which Federal agency is
assigned surplus real property for
public park or recreation purposes?
The head of the disposal agency or
his or her designee is authorized to assign to the Secretary of the Interior for
disposal under 40 U.S.C. 550(e), surplus
real property, including buildings, fixtures, and equipment as recommended
by the Secretary as being needed for
use as a public park or recreation area
for conveyance to a State, political
subdivision, instrumentalities, or municipality.
§ 102–75.630 Who must disposal agencies notify that real property for
public park or recreation purposes
is available?
The disposal agency must notify established State, regional, or metropolitan clearinghouses and eligible public
agencies that surplus property is available for use as a public park or recreation area. The disposal agency must
transmit the landholding agency’s Report of Excess Real Property (Standard
Form 118, with accompanying schedules) with the copy of each notice sent
to a regional or field office of the National Park Service (NPS) of the Department of the Interior (DOI).
§ 102–75.635 What information must
the Department of the Interior
(DOI) furnish eligible public agencies?
Upon request, DOI must furnish eligible public agencies with an application
form to acquire property for permanent
use as a public park or recreation area
and preparation instructions for the
application.
§ 102–75.640 When must DOI notify the
disposal agency that an eligible applicant is interested in acquiring
the property?
DOI must notify the disposal agency
if it has an eligible applicant interested in acquiring the property within
30 calendar days from the date of the
surplus notice.
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Federal Management Regulation
§ 102–75.675
§ 102–75.645 What responsibilities do
landholding agencies have concerning properties to be used for
public park or recreation purposes?
Landholding agencies must cooperate
to the fullest extent possible with DOI
representatives in their inspection of
the property and in furnishing information relating to the property.
§ 102–75.650 When must DOI request
assignment of the property?
Within 30 calendar days after the expiration of the 30–calendar day period
specified in § 102–75.640, DOI must submit to the disposal agency an assignment recommendation along with a
copy of the application or inform the
disposal agency that a recommendation will not be made for assignment of
the property.
§ 102–75.655 What does the assignment
recommendation contain?
Any recommendation submitted by
DOI must provide complete information concerning the plans for use of the
property as a public park or recreation
area, including—
(a) Identification of the property;
(b) The name of the applicant;
(c) The specific use planned; and
(d) The intended public benefit allowance.
§ 102–75.660 What happens if DOI does
not approve any applications or
does not submit an assignment recommendation?
If DOI does not approve any applications or does not submit an assignment
recommendation to convey the property for public park or recreation purposes, the disposal agency must proceed with other disposal action.
§ 102–75.665 What happens after the
disposal agency receives the assignment recommendation from DOI?
If, after considering other uses for
the property, the disposal agency approves the assignment recommendation from DOI, it must assign the property by letter or other document to the
Secretary of the Interior. The disposal
agency must furnish to the landholding
agency a copy of the assignment, unless the landholding agency is also the
disposal agency. If the recommenda-
tion is disapproved, the disposal agency
must likewise notify the Secretary.
§ 102–75.670 What responsibilities does
DOI have after receiving the disposal agency’s assignment letter?
After receiving the disposal agency’s
assignment letter, the Secretary of the
Interior must provide the disposal
agency with a Notice of Proposed
Transfer within 30 calendar days. If the
disposal agency approves the proposed
transfer within 30 calendar days, the
Secretary may proceed with the transfer. DOI must take all necessary actions to accomplish the transfer within
15 calendar days after the expiration of
the 30–calendar day period provided for
the disposal agency to consider the notice. DOI may place the applicant in
possession of the property as soon as
practicable to minimize the Government’s expense of protection and maintenance of the property. As of the date
the applicant takes possession of the
property, or the date it is conveyed,
whichever occurs first, the applicant
must assume responsibility for care
and handling and all risks of loss or
damage to the property, and has all obligations and liabilities of ownership.
DOI must furnish the disposal agency
two conformed copies of deeds, leases,
or other instruments conveying property under 40 U.S.C. 550(e) and related
documents containing reservations, restrictions, or conditions regulating the
future use, maintenance or transfer of
the property.
§ 102–75.675 What responsibilities does
the grantee or recipient of the
property have in accomplishing or
completing the transfer?
Where appropriate, the disposal agency may make the assignment subject
to DOI requiring the grantee or recipient to bear the cost of any out-of-pocket expenses necessary to accomplish
the transfer, such as for surveys, fencing, security of the remaining property, or otherwise.
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§ 102–75.680
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–75.680 What information must be
included in the deed of conveyance
of any surplus property transferred
for public park or recreation purposes?
The deed of conveyance of any surplus real property transferred for public park and recreation purposes under
40 U.S.C. 550(e) must require that the
property be used and maintained for
the purpose for which it was conveyed
in perpetuity. In the event that the
property ceases to be used or maintained for that purpose, all or any portion of such property will in its existing condition, at the option of the
United States, revert to the United
States. The deed of conveyance may
contain additional terms, reservations,
restrictions, and conditions determined
by the Secretary of the Interior to be
necessary to safeguard the interests of
the United States.
§ 102–75.685 Who is responsible for enforcing compliance with the terms
and conditions of the transfer of
property used for public park or
recreation purposes?
The Secretary of the Interior is responsible for enforcing compliance
with the terms and conditions of transfer. The Secretary of the Interior is
also responsible for reforming, correcting, or amending any transfer instrument; granting releases; and for recapturing any property following the
provisions of 40 U.S.C. 550(b). These actions are subject to the approval of the
head of the disposal agency. DOI must
notify the head of the disposal agency
of its intent to take or recapture the
property. The notice must identify the
property affected and describe in detail
the proposed action, including the reasons for the proposed action.
§ 102–75.690 What happens if property
that was transferred for use as a
public park or recreation area is revested in the United States by reason of noncompliance with the
terms or conditions of disposal, or
for other cause?
DOI must notify the appropriate GSA
regional office immediately by letter
when title to property transferred for
use as a public park or recreation area
is to be revested in the United States
for noncompliance with the terms or
conditions of disposal or for other
cause. The notification must cite the
legal and administrative actions that
DOI must take to obtain full title and
possession of the property. In addition,
it must include an adequate description of the property, using the Report
of Excess Real Property (Standard
Form 118) and the appropriate schedules. After receiving notice from DOI
that title to the property is proposed
for revesting, GSA will review the
statement and determine if title should
be revested. If GSA, in consultation
with DOI, determines that the property
should be revested, DOI must submit a
Standard Form 118 to GSA. GSA will
review and act upon the Standard
Form 118, if acceptable. However, the
grantee must provide protection and
maintenance for the property until the
title reverts to the Federal Government, including the period of any notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to
Real Property Disposal.
PROPERTY FOR DISPLACED PERSONS
§ 102–75.695 Who can receive surplus
real property for the purpose of
providing replacement housing for
persons who are to be displaced by
Federal
or
Federally
assisted
projects?
Section 218 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended, 42 U.S.C. 4638 (the Relocation
Act), authorizes the disposal agency to
transfer surplus real property to a
State agency to provide replacement
housing under title II of the Relocation
Act for persons who are or will be displaced by Federal or Federally assisted
projects.
§ 102–75.700 Which Federal agencies
may solicit applications from eligible State agencies interested in acquiring the property to provide replacement housing for persons
being displaced by Federal or Federally assisted projects?
After receiving the surplus notice,
any Federal agency needing property
for replacement housing for displaced
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Federal Management Regulation
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persons may solicit applications from
eligible State agencies.
§ 102–75.705 When must the Federal
agency notify the disposal agency
that an eligible State agency is interested in acquiring the property
under section 218?
Federal agencies must notify the disposal agency within 30 calendar days
after the date of the surplus notice, if
an eligible State agency is interested
in acquiring the property under section
218 of the Relocation Act.
§ 102–75.710 What responsibilities do
landholding and disposal agencies
have concerning properties used
for providing replacement housing
for persons who will be displaced
by Federal or Federally assisted
projects?
Both landholding and disposal agencies must cooperate, to the fullest extent possible, with Federal and State
agency representatives in their inspection of the property and in furnishing
information relating to the property.
§ 102–75.715 When can a Federal agency request transfer of the property
to the selected State agency?
Federal agencies must advise the disposal agency and request transfer of
the property to the selected State
agency within 30 calendar days after
the expiration of the 30–calendar day
period specified in § 102–75.705.
§ 102–75.720 Is there a specific or preferred format for the transfer request and who should receive it?
Any request submitted by a Federal
agency must be in the form of a letter
addressed to the appropriate GSA Public Buildings Service (PBS) regional
property disposal office.
§ 102–75.725 What does the transfer request contain?
Any transfer request must include—
(a) Identification of the property by
name, location, and control number;
(b) The name and address of the specific State agency and a copy of the
State agency’s application or proposal;
(c) A certification by the appropriate
Federal agency official that the property is required to house displaced persons authorized by section 218; that all
other options authorized under title II
of the Relocation Act have been explored and replacement housing cannot
be found or made available through
those channels; and that the Federal or
Federally assisted project cannot be
accomplished unless the property is
made available for replacement housing;
(d) Any special terms and conditions
that the Federal agency deems necessary to include in conveyance instruments to ensure that the property is
used for the intended purpose;
(e) The name and proposed location
of the Federal or Federally assisted
project that is creating the requirement;
(f) Purpose of the project;
(g) Citation of enabling legislation or
authorization for the project, when appropriate;
(h) A detailed outline of steps taken
to obtain replacement housing for displaced persons as authorized under
title II of the Relocation Act; and
(i) Details of the arrangements that
have been made to construct replacement housing on the surplus property
and to ensure that displaced persons
will be provided housing in the development.
§ 102–75.730 What happens if a Federal
agency does not submit a transfer
request to the disposal agency for
property to be used for replacement
housing for persons who will be displaced by Federal or Federally assisted projects?
If the disposal agency does not receive a request for assignment or
transfer of the property under § 102–
75.715, then the disposal agency must
proceed with other appropriate disposal
actions.
§ 102–75.735 What happens after the
disposal agency receives the transfer request from the Federal agency?
If, after considering other uses for
the property, the disposal agency determines that the property should be
made available for replacement housing under section 218, it must transfer
the property to the designated State
agency on such terms and conditions as
will protect the United States’ interests, including the payment or the
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§ 102–75.740
41 CFR Ch. 102 (7–1–16 Edition)
agreement to pay to the United States
all amounts received by the State
agency from any sale, lease, or other
disposition of the property for such
housing. The sale, lease, or other disposition of the property by the State
agency must be at the fair market
value as approved by the disposal agency, unless a compelling justification is
offered for disposal of the property at
less than fair market value. Disposal of
the property at less than fair market
value must also be approved by the disposal agency.
§ 102–75.740 Does the State agency
have any responsibilities in helping
to accomplish the transfer of the
property?
Yes, the State agency is required to
bear the costs of any out-of-pocket expenses necessary to accomplish the
transfer, such as costs of surveys, fencing, or security of the remaining property.
§ 102–75.745 What happens if the property transfer request is not approved by the disposal agency?
If the request is not approved, the
disposal agency must notify the Federal agency requesting the transfer.
The disposal agency must furnish a
copy of the notice of disapproval to the
landholding agency.
PROPERTY FOR CORRECTIONAL FACILITY,
LAW ENFORCEMENT, OR EMERGENCY
MANAGEMENT RESPONSE PURPOSES
§ 102–75.750 Who is eligible to receive
surplus real and related personal
property for correctional facility,
law enforcement, or emergency
management response purposes?
Under 40 U.S.C. 553, the head of the
disposal agency or designee may, in his
or her discretion, convey, without
monetary consideration, to any State,
or to those governmental bodies named
in the section; or to any political subdivision or instrumentality, surplus
real and related personal property for—
(a) Correctional facility purposes, if
the Attorney General has determined
that the property is required for such
purposes and has approved an appropriate program or project for the care
or rehabilitation of criminal offenders;
(b) Law enforcement purposes, if the
Attorney General has determined that
the property is required for such purposes; or
(c) Emergency management response
purposes, including fire and rescue
services, if the Director of the Federal
Emergency
Management
Agency
(FEMA) has determined that the property is required for such purposes.
§ 102–75.755 Which Federal agencies
must the disposal agency notify
concerning the availability of surplus properties for correctional facility, law enforcement, or emergency management response purposes?
The disposal agency must provide
prompt notification to the Office of
Justice Programs (OJP), Department
of Justice (DOJ), and FEMA that surplus property is available. The disposal
agency’s notice or notification must
include a copy of the landholding agency’s Report of Excess Real Property
(Standard Form 118), with accompanying schedules.
§ 102–75.760 Who must the Office of
Justice Programs (OJP) and the
Federal Emergency Management
Agency (FEMA) notify that surplus
real property is available for correctional facility, law enforcement,
or emergency management response purposes?
OJP or FEMA must send notices of
availability to the appropriate State
and local public agencies. The notices
must state that OJP or FEMA, as appropriate, must coordinate and approve
any planning involved in developing a
comprehensive and coordinated plan of
use and procurement for the property
for correctional facility, law enforcement, or emergency management response use. The notice must also state
that public agencies may obtain application forms and preparation instructions from OJP or FEMA.
§ 102–75.765 What does the term ‘‘law
enforcement’’ mean?
The OJP defines ‘‘law enforcement’’
as ‘‘any activity involving the control
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Federal Management Regulation
§ 102–75.795
or reduction of crime and juvenile delinquency, or enforcement of the criminal law, including investigative activities such as laboratory functions as
well as training.’’
§ 102–75.770 Is the disposal agency required to approve a determination
by the Department of Justice (DOJ)
that identifies surplus property for
correctional facility use or for law
enforcement use?
Yes, the disposal agency must approve a determination, under § 102–
75.795, by DOJ that identifies surplus
property required for correctional facility use or for law enforcement use
before an eligible public agency can obtain such property for correctional facility or law enforcement use.
§ 102–75.775 Is the disposal agency required to approve a determination
by FEMA that identifies surplus
property for emergency management response use?
Yes, the disposal agency must approve a determination, under § 102–
75.795, by FEMA that identifies surplus
property required for emergency management response use before an eligible
public agency can obtain such property
for emergency management response
use.
§ 102–75.780 When must DOJ or FEMA
notify the disposal agency that an
eligible applicant is interested in
acquiring the property?
OJP or FEMA must notify the disposal agency within 30 calendar days
after the date of the surplus notice, if
there is an eligible applicant interested
in acquiring the property. After that
30–calendar day period expires, OJP or
FEMA then has another 30 days to review and approve an appropriate program and notify the disposal agency of
the need for the property. If no application is approved, then OJP or FEMA
must notify the disposal agency that
there is no requirement for the property within the 30–calendar day period
allotted for review and approval.
§ 102–75.785 What specifically must
DOJ or FEMA address in the assignment request or recommendation that is submitted to the disposal agency?
Any determination that DOJ or
FEMA submits to the disposal agency
must provide complete information
concerning the correctional facility,
law enforcement, or emergency management response use, including—
(a) Identification of the property;
(b) Certification that the property is
required for correctional facility, law
enforcement, or emergency management response use;
(c) A copy of the approved application that defines the proposed plan of
use; and
(d) The environmental impact of the
proposed correctional facility, law enforcement, or emergency management
response use.
§ 102–75.790 What responsibilities do
landholding agencies and disposal
agencies have concerning properties to be used for correctional facility, law enforcement, or emergency management response purposes?
Both landholding and disposal agencies must cooperate to the fullest extent possible with Federal and State
agency representatives in their inspection of such property and in furnishing
information relating to the property.
§ 102–75.795 What happens after the
disposal agency receives the assignment request by DOJ or FEMA?
If, after considering other uses for
the property, the disposal agency approves the assignment request by DOJ
or FEMA, the disposal agency must
convey the property to the appropriate
grantee. The disposal agency must proceed with other disposal action if it
does not approve the assignment request, if DOJ or FEMA does not submit
an assignment request, or if the disposal agency does not receive the determination within the 30 calendar
days specified in § 102–75.780. The disposal agency must notify OJP or
FEMA 15 days prior to any announcement of a determination to either approve or disapprove an application for
correctional, law enforcement, or
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§ 102–75.800
41 CFR Ch. 102 (7–1–16 Edition)
emergency management response purposes and must furnish to OJP or
FEMA a copy of the conveyance documents.
§ 102–75.800 What information must be
included in the deed of conveyance?
The deed of conveyance of any surplus real property transferred under
the provisions of 40 U.S.C. 553 must
provide that all property be used and
maintained for the purpose for which it
was conveyed in perpetuity. If the
property ceases to be used or maintained for that purpose, all or any portion of the property must, at the option of the United States, revert to the
United States in its existing condition.
The deed of conveyance may contain
additional terms, reservations, restrictions, and conditions the Administrator of General Services determines
to be necessary to safeguard the United
States’ interests.
§ 102–75.805 Who is responsible for enforcing compliance with the terms
and conditions of the transfer of
the property used for correctional
facility, law enforcement, or emergency management response purposes?
The Administrator of General Services is responsible for enforcing compliance with the terms and conditions of
disposals of property to be used for correctional facility, law enforcement, or
emergency management response purposes. GSA is also responsible for reforming, correcting, or amending any
disposal instrument; granting releases;
and any action necessary for recapturing the property following the provisions of 40 U.S.C. 553(e).
§ 102–75.810 What responsibilities do
OJP or FEMA have if they discover
any
information
indicating
a
change in use of a transferred property?
Upon discovery of any information
indicating a change in use, OJP or
FEMA must—
(a) Notify GSA; and
(b) Upon request, make a redetermination of continued appropriateness
of the use of a transferred property.
§ 102–75.815 What happens if property
conveyed for correctional facility,
law enforcement, or emergency
management response purposes is
found to be in noncompliance with
the terms of the conveyance documents?
OJP or FEMA must, prior to the repossession, provide the appropriate
GSA regional property disposal office
with an accurate description of the real
and related personal property involved.
OJP or FEMA must use the Report of
Excess Real Property (Standard Form
118), and the appropriate schedules for
this purpose. After receiving a statement from OJP or FEMA that the title
to the property is proposed for revesting, GSA will review the statement
and determine if title should be revested. If GSA, in consultation with
OJP or FEMA, determines that the
property should be revested, OJP or
FEMA must submit a Standard Form
118 to GSA. GSA will review and act
upon the Standard Form 118, if acceptable. However, the grantee must provide protection and maintenance for
the property until the title reverts to
the Federal Government, including the
period following any notice of intent to
revert. Such protection and maintenance must, at a minimum, conform to
the standards prescribed in the GSA
Customer Guide to Real Property Disposal.
PROPERTY FOR PORT FACILITY USE
§ 102–75.820 Which Federal agency is
eligible to receive surplus real and
related personal property for the
development or operation of a port
facility?
Under 40 U.S.C. 554, the Administrator of General Services, the Secretary of the Department of Defense (in
the case of property located at a military installation closed or realigned
pursuant to a base closure law), or
their designee, may assign to the Secretary of the Department of Transportation (DOT) for conveyance, without
monetary consideration, to any State,
or to governmental bodies, any political subdivision, municipality, or instrumentality, surplus real and related
personal property, including buildings,
fixtures, and equipment situated on the
property, that DOT recommends as
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Federal Management Regulation
§ 102–75.850
being needed for the development or
operation of a port facility.
§ 102–75.825 Who must the disposal
agency notify when surplus real
and related personal property is
available for port facility use?
The disposal agency must notify established State, regional or metropolitan clearinghouses and eligible public
agencies that surplus real property is
available for the development or operation of a port facility. The disposal
agency must transmit a copy of the notice to DOT and a copy of the landholding agency’s Report of Excess Real
Property (Standard Form 118 and supporting schedules).
§ 102–75.830 What does the surplus notice contain?
Surplus notices to eligible public
agencies must state—
(a) That public agencies must coordinate any planning involved in the development of the comprehensive and
coordinated plan of use and procurement of property, with DOT, the Secretary of Labor, and the Secretary of
Commerce;
(b) That any party interested in acquiring the property for use as a port
facility must contact the Department
of Transportation, Maritime Administration, for the application and instructions;
(c) That the disposal agency must approve a recommendation from DOT before it can assign the property to DOT
(see § 102–75.905); and
(d) That any subsequent conveyance
is subject to the approval of the head of
the disposal agency as stipulated under
40 U.S.C. 554 and referenced in § 102–
75.865.
§ 102–75.835 When must DOT notify
the disposal agency that an eligible
applicant is interested in acquiring
the property?
DOT must notify the disposal agency
within 30 calendar days after the date
of the surplus notice if there is an eligible applicant interested in acquiring
the property. After that 30–calendar
day period expires, DOT then has another 30 calendar days to review and
approve applications and notify the
disposal agency of the need for the
property. If no application is approved,
then DOT must notify the disposal
agency that there is no requirement for
the property within the same 30–calendar day period allotted for review
and approval.
§ 102–75.840 What action must the disposal agency take after an eligible
public agency has submitted a plan
of use for and an application to acquire a port facility property?
Whenever an eligible public agency
has submitted a plan of use for a port
facility requirement, the disposal agency must transmit two copies of the
plan to DOT. DOT must either submit
to the disposal agency, within 30 calendar days after the date the plan is
transmitted, a recommendation for assignment of the property to DOT, or inform the disposal agency, within the
30–calendar day period, that a recommendation will not be made for assignment of the property to DOT.
§ 102–75.845 What must DOT address
in the assignment recommendation
submitted to the disposal agency?
Any assignment recommendation
that DOT submits to the disposal agency must provide complete information
concerning the contemplated port facility use, including—
(a) An identification of the property;
(b) An identification of the applicant;
(c) A copy of the approved application, which defines the proposed plan of
use of the property;
(d) A statement that DOT’s determination (that the property is located
in an area of serious economic disruption) was made in consultation with
the Secretary of Labor;
(e) A statement that DOT approved
the economic development plan, associated with the plan of use of the property, in consultation with the Secretary of Commerce; and
(f) A copy of the explanatory statement,
required
under
40
U.S.C.
554(c)(2)(C).
§ 102–75.850 What responsibilities do
landholding agencies have concerning properties to be used in the
development or operation of a port
facility?
Landholding agencies must cooperate
to the fullest extent possible with DOT
representatives and the Secretary of
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§ 102–75.855
41 CFR Ch. 102 (7–1–16 Edition)
Commerce in their inspection of such
property, and with the Secretary of
Labor in affirming that the property is
in an area of serious economic disruption, and in furnishing any information
relating to such property.
§ 102–75.855 What happens if DOT does
not submit an assignment recommendation?
If DOT does not submit an assignment recommendation or if it is not received within 30 calendar days, the disposal agency must proceed with other
disposal action.
§ 102–75.860 What happens after the
disposal agency receives the assignment recommendation from DOT?
If, after considering other uses for
the property, the disposal agency approves the assignment recommendation from DOT, the disposal agency
must assign the property by letter or
other document to DOT. If the disposal
agency disapproves the recommendation, the disposal agency must likewise
notify DOT. The disposal agency must
furnish to the landholding agency a
copy of the assignment, unless the
landholding agency is also the disposal
agency.
§ 102–75.865 What responsibilities does
DOT have after receiving the disposal agency’s assignment letter?
After receiving the assignment letter
from the disposal agency, DOT must
provide the disposal agency with a Notice of Proposed Transfer within 30 calendar days after the date of the assignment letter. If the disposal agency approves the proposed transfer within 30
calendar days of the receipt of the Notice of Proposed Transfer, DOT may
prepare the conveyance documents and
proceed with the conveyance. DOT
must take all necessary actions to accomplish the conveyance within 15 calendar days after the expiration of the
30–calendar day period provided for the
disposal agency to consider the notice.
DOT must furnish the disposal agency
two conformed copies of the instruments conveying property and all related documents containing restrictions or conditions regulating the future use, maintenance, or transfer of
the property.
§ 102–75.870 Who is responsible for enforcing compliance with the terms
and conditions of the port facility
conveyance?
DOT is responsible for enforcing compliance with the terms and conditions
of conveyance, including reforming,
correcting, or amending any instrument of conveyance; granting releases;
and taking any necessary actions to recapture the property following the provisions of 40 U.S.C. 554(f). Any of these
actions are subject to the approval of
the head of the disposal agency. DOT
must notify the head of the disposal
agency of its intent to take any proposed action, identify the property affected, and describe in detail the proposed action, including the reasons for
the proposed action.
§ 102–75.875 What happens in the case
of repossession by the United States
under a reversion of title for noncompliance with the terms or conditions of conveyance?
In each case of a repossession by the
United States, DOT must, at or prior to
reversion of title, provide the appropriate GSA regional property disposal
office, with a Report of Excess Real
Property (Standard Form 118) and accompanying schedules. After receiving
a statement from DOT that title to the
property is proposed for revesting, GSA
will review the statement and determine if title should be revested. If
GSA, in consultation with DOT, determines that the property should be revested, DOT must submit a Standard
Form 118 to GSA. GSA will review and
act upon the Standard Form 118, if acceptable. However, the grantee must
provide protection and maintenance for
the property until the title reverts to
the Federal Government, including the
period following the notice of intent to
revert. Such protection and maintenance must, at a minimum, conform to
the standards prescribed in the GSA
Customer Guide to Real Property Disposal.
NEGOTIATED SALES
§ 102–75.880 When
may
Executive
agencies conduct negotiated sales?
Executive agencies may conduct negotiated sales only when—
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Federal Management Regulation
§ 102–75.895
(a) The estimated fair market value
of the property does not exceed $15,000;
(b) Bid prices after advertising are
unreasonable (for all or part of the
property) or were not independently arrived at in open competition;
(c) The character or condition of the
property or unusual circumstances
make it impractical to advertise for
competitive bids and the fair market
value of the property and other satisfactory terms of disposal are obtainable by negotiation;
(d) The disposals will be to States,
the Commonwealth of Puerto Rico,
possessions, political subdivisions, or
tax-supported agencies therein, and the
estimated fair market value of the
property and other satisfactory terms
of disposal are obtainable by negotiation. Negotiated sales to public bodies
can only be conducted if a public benefit, which would not be realized from
a competitive sale, will result from the
negotiated sale; or
(e) Negotiation is otherwise authorized by Chapter 5 of Subtitle I of Title
40 of the United States Code or other
law, such as disposals of power transmission lines for public or cooperative
power projects.
§ 102–75.885 What are the disposal
agency’s responsibilities concerning
negotiated sales?
The disposal agency must—
(a) Obtain such competition as is feasible in all negotiations of disposals
and contracts for disposal of surplus
property; and
(b) Prepare and transmit an explanatory statement if the fair market value
of the property exceeds $100,000, identifying the circumstances of each disposal by negotiation for any real property specified in 40 U.S.C. 545(e), to the
appropriate committees of the Congress in advance of such disposal.
§ 102–75.890 What clause must be in
the offer to purchase and conveyance documents for negotiated
sales to public agencies?
Disposal agencies must include in the
offer to purchase and conveyance documents an excess profits clause, which
usually runs for 3 years, to eliminate
the potential for windfall profits to
public agencies. This clause states
that, if the purchaser should sell or
enter into agreements to sell the property within 3 years from the date of
title transfer by the Federal Government, all proceeds in excess of the purchaser’s costs will be remitted to the
Federal Government.
§ 102–75.895 What wording must generally be in the excess profits
clause that is required in the offer
to purchase and in the conveyance
document?
The wording of the excess profits
clause should generally be as follows:
Excess Profits Covenant for Negotiated
Sales to Public Bodies
(a) This covenant shall run with the land
for a period of 3 years from the date of conveyance. With respect to the property described in this deed, if at any time within a
3-year period from the date of transfer of
title by the Grantor, the Grantee, or its successors or assigns, shall sell or enter into
agreements to sell the property, either in a
single transaction or in a series of transactions, it is covenanted and agreed that all
proceeds received or to be received in excess
of the Grantee’s or a subsequent seller’s actual allowable costs will be remitted to the
Grantor. In the event of a sale of less than
the entire property, actual allowable costs
will be apportioned to the property based on
a fair and reasonable determination by the
Grantor.
(b) For purposes of this covenant, the
Grantee’s or a subsequent seller’s allowable
costs shall include the following:
(1) The purchase price of the real property.
(2) The direct costs actually incurred and
paid for improvements that serve only the
property, including road construction, storm
and sanitary sewer construction, other public facilities or utility construction, building
rehabilitation and demolition, landscaping,
grading, and other site or public improvements.
(3) The direct costs actually incurred and
paid for design and engineering services with
respect to the improvements described in
(b)(2) of this section.
(4) The finance charges actually incurred
and paid in conjunction with loans obtained
to meet any of the allowable costs enumerated above.
(c) None of the allowable costs described in
paragraph (b) of this section will be deductible if defrayed by Federal grants or if used
as matching funds to secure Federal grants.
(d) To verify compliance with the terms
and conditions of this covenant, the Grantee,
or its successors or assigns, shall submit an
annual report for each of the subsequent 3
years to the Grantor on the anniversary date
of this deed. Each report will identify the
property involved in this transaction and
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§ 102–75.900
41 CFR Ch. 102 (7–1–16 Edition)
will contain such of the following items of
information as are applicable at the time of
submission:
(1) A statement indicating whether or not
a resale has been made.
(2) A description of each portion of the
property that has been resold.
(3) The sale price of each such resold portion.
(4) The identity of each purchaser.
(5) The proposed land use.
(6) An enumeration of any allowable costs
incurred and paid that would offset any realized profit.
(e) The Grantor may monitor the property
and inspect records related thereto to ensure
compliance with the terms and conditions of
this covenant and may take any actions that
it deems reasonable and prudent to recover
any excess profits realized through the resale
of the property.
§ 102–75.900 What is a negotiated sale
for economic development purposes?
A negotiated sale for economic development purposes means that the public
body purchasing the property will develop or make substantial improvements to the property with the intention of reselling or leasing the property
in parcels to users to advance the community’s economic benefit. This type
of negotiated sale is acceptable where
the expected public benefits to the
community are greater than the anticipated proceeds derived from a competitive public sale.
EXPLANATORY STATEMENTS FOR
NEGOTIATED SALES
§ 102–75.905 When must the disposal
agency prepare an explanatory
statement?
The disposal agency must prepare an
explanatory statement of the circumstances of each of the following
proposed disposals by negotiation:
(a) Any real property that has an estimated fair market value in excess of
$100,000, except that any real property
disposed of by lease or exchange is subject only to paragraphs (b) through (d)
of this section.
(b) Any real property disposed of by
lease for a term of 5 years or less, if the
estimated fair annual rent is in excess
of $100,000 for any of such years.
(c) Any real property disposed of by
lease for a term of more than 5 years,
if the total estimated rent over the
term of the lease is in excess of
$100,000.
(d) Any real property or real and related personal property disposed of by
exchange, regardless of value, or any
property disposed in which any part of
the consideration is real property.
§ 102–75.910 Are there any exceptions
to this policy of preparing explanatory statements?
Yes, the disposal agency is not required to prepare an explanatory statement for property authorized to be disposed of without advertising by any
provision of law other than 40 U.S.C.
545.
§ 102–75.915 Do disposal agencies need
to retain a copy of the explanatory
statement?
Yes, disposal agencies must retain a
copy of the explanatory statement in
their files.
§ 102–75.920 Where is the explanatory
statement sent?
Disposal agencies must submit each
explanatory statement to the Administrator of General Services for review
and transmittal by letter from the Administrator of General Services to the
Senate Committee on Governmental
Affairs and the House Committee on
Government Reform and any other appropriate committees of the Senate
and House of Representatives. Disposal
agencies must include in the submission to the Administrator of General
Services any supporting data that may
be relevant and necessary for evaluating the proposed action.
§ 102–75.925 Is GSA required to furnish
the disposal agency with the explanatory statement’s transmittal
letter sent to Congress?
Yes, GSA must furnish copies of its
transmittal letters to the committees
of the Congress (see § 102–75.920) to the
disposal agency.
§ 102–75.930 What happens if there is
no objection by an appropriate
committee or subcommittee of Congress concerning the proposed negotiated sale?
If there is no objection, the disposal
agency may consummate the sale on or
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Federal Management Regulation
§ 102–75.943
after 35 days from the date the Administrator of General Services transmitted the explanatory statement to
the committees. If there is an objection, the disposal agency must resolve
objections with the appropriate Congressional committee or subcommittee
before consummating the sale.
PUBLIC SALES
§ 102–75.938 May the easement and the
land that benefited from the easement (dominant estate) be disposed
of separately?
Yes. If the easement is no longer
needed in connection with the dominant estate, it may be disposed of separately to the owner of the servient estate. However, if the dominant estate
is also surplus, the easement should be
disposed of with the dominant estate.
§ 102–75.935 What are disposal agencies’ responsibilities concerning
public sales?
GRANTING EASEMENTS
Disposal agencies must make available by competitive public sale any
surplus property that is not disposed of
by public benefit discount conveyance
or by negotiated sale. Awards must be
made to the responsible bidder whose
bid will be most advantageous to the
Government, price and other factors
considered.
§ 102–75.939 When can agencies grant
easements?
DISPOSING OF EASEMENTS
Yes. Easements may be granted with
or without monetary or other consideration, including any interest in real
property.
§ 102–75.936 When can an agency dispose of an easement?
When the use, occupancy or control
of an easement is no longer needed,
agencies may release the easement to
the owner of the land subject to the
easement (servient estate).
§ 102–75.937 Can an easement be released or disposed of at no cost?
Yes. However, agencies must consider
the Government’s cost of acquiring the
easement and other factors when determining if the easement will be disposed
of with or without monetary or other
consideration. If the easement was acquired at substantial consideration,
agencies must—
(a) Determine the easement’s fair
market value (estimate the fair market value of the fee land without the
easement and with the easement then
compute the difference or compute the
damage the easement caused to the fee
land); and
(b) Negotiate the highest obtainable
price with the owner of the servient estate to release the easement.
Agencies may grant easements in,
on, or over Government-owned real
property upon determining that the
easement will not adversely impact the
Government’s interests.
§ 102–75.940 Can agencies grant easements at no cost?
§ 102–75.941 Does an agency retain responsibility for the easement?
Agencies may relinquish legislative
jurisdiction as deemed necessary and
desirable to the State where the real
property containing the easement is located.
§ 102–75.942 What must agencies consider when granting easements?
Agencies must—
(a) Determine the easement’s fair
market value; and
(b) Determine the remaining property’s reduced or enhanced value because of the easement.
§ 102–75.943 What happens if granting
an easement will reduce the value
of the property?
If the easement will reduce the property’s value, agencies must grant the
easement for the amount by which the
property’s fair market value is decreased unless the agency determines
that the Government’s best interests
are served by granting the easement at
either reduced or without monetary or
other consideration.
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§ 102–75.944
41 CFR Ch. 102 (7–1–16 Edition)
NON-FEDERAL INTERIM USE OF SURPLUS
PROPERTY
related obligations pending transfer or
disposal of the property.
§ 102–75.944 Can landholding agencies
outlease surplus real property for
non-Federal interim use?
Yes, landholding agencies who possess independent authority to outlease
property may allow organizations to
use surplus real property awaiting disposal using either a lease or permit,
only when—
(a) The lease or permit does not exceed one year and is revocable with not
more than a 30-day notice by the disposal agency;
(b) The use and occupancy will not
interfere with, delay, or impede the
disposal of the property; and
(c) The agency executing the agreement is responsible for the servicing of
such property.
DECONTAMINATION
Subpart D—Management of
Excess and Surplus Real Property
§ 102–75.945 What is GSA’s policy concerning the physical care, handling,
protection, and maintenance of excess and surplus real property and
related personal property?
GSA’s policy is to—
(a) Manage excess and surplus real
property, including related personal
property, by providing only those minimum services necessary to preserve
the Government’s interest and realizable value of the property considered;
(b) Place excess and surplus real
property in productive use through interim utilization, provided, that such
temporary use and occupancy do not
interfere with, delay, or impede its
transfer to a Federal agency or disposal; and
(c) Render safe or destroy aspects of
excess and surplus real property that
are dangerous to the public health or
safety.
TAXES AND OTHER OBLIGATIONS
§ 102–75.950 Who has the responsibility
for paying property-related obligations pending transfer or disposal
of the property?
Except as otherwise provided in § 10275.230, the landholding agency is still
responsible for any and all operational
costs and expenses or other property-
§ 102–75.955 Who is responsible for decontaminating excess and surplus
real property?
The landholding agency is responsible for all expenses to the Government and for the supervision of the decontamination of excess and surplus
real property that has been contaminated with hazardous materials of any
sort. Extreme care must be exercised in
the decontamination, management,
and disposal of contaminated property
in order to prevent such properties
from becoming a hazard to the general
public. The landholding agency must
inform the disposal agency of any and
all hazards involved relative to such
property to protect the general public
from hazards and to limit the Government’s liability resulting from disposal
or mishandling of hazardous materials.
IMPROVEMENTS OR ALTERATIONS
§ 102–75.960 May landholding agencies
make improvements or alterations
to excess or surplus property in
those cases where disposal is otherwise not feasible?
Yes, landholding agencies may make
improvements or alterations that involve rehabilitation, reconditioning,
conversion, completion, additions, and
replacements in excess or surplus
structures, utilities, installations, and
land improvements, in those cases
where disposal cannot be accomplished
without such improvements or alterations. However, agencies must not
enter into commitments concerning
improvements or alterations without
GSA’s prior approval.
PROTECTION AND MAINTENANCE
§ 102–75.965 Who must perform the
protection and maintenance of excess and surplus real property
pending transfer to another Federal
agency or disposal?
The landholding agency remains responsible and accountable for excess
and surplus real property, including related personal property, and must perform the protection and maintenance
of such property pending transfer to
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Federal Management Regulation
§ 102–75.990
another Federal agency or disposal.
Guidelines for protection and maintenance of excess and surplus real property are in the GSA Customer Guide to
Real Property Disposal. The landholding agency is responsible for complying with the requirements of the
National Oil and Hazardous Substances
Pollution Contingency Plan and initiating or cooperating with others in the
actions prescribed for the prevention,
containment, or remedy of hazardous
conditions.
§ 102–75.970 How long is the landholding agency responsible for the
expense of protection and maintenance of excess and surplus real
property pending its transfer or
disposal?
Generally, the landholding agency is
responsible for the cost of protection
and maintenance of excess or surplus
property until the property is transferred or disposed, but not more than
15 months. However, the landholding
agency is responsible for providing and
funding protection and maintenance
during any delay beyond that 15 month
period, if the landholding agency—
(a) Requests deferral of the disposal
beyond the 15 month period;
(b) Continues to occupy the property
beyond the 15 month period to the detriment of orderly disposal; or
(c) Otherwise takes actions that result in a delay in the disposition beyond the 15 months.
§ 102–75.975 What happens if the property is not conveyed or disposed of
during this time frame?
If the property is not transferred to a
Federal agency or disposed of during
the 15-month period mentioned in § 102–
75.970, then the disposal agency must
pay or reimburse the landholding agency for protection and maintenance expenses incurred from the expiration
date of said time period to final disposal, unless—
(a) There is no written agreement between the landholding agency and the
disposal agency specifying the maximum amount of protection and maintenance expenses for which the disposal
agency is responsible;
(b) The disposal agency’s appropriation, as authorized by Congress, does
not contain a provision to allow for
payment and/or reimbursement of protection and maintenance expenses; or
(c) The delay is caused by an Executive agency’s request for an exception
from the 100 percent reimbursement requirement specified in § 102–75.205. In
this latter case, the requesting agency
becomes responsible for protection and
maintenance expenses incurred because
of the delay.
§ 102–75.980 Who is responsible for
protection and maintenance expenses if there is no written agreement or no Congressional appropriation to the disposal agency?
If there is no written agreement (between the landholding agency and the
disposal agency) or no Congressional
appropriation to the disposal agency,
the landholding agency is responsible
for all protection and maintenance expenses, without any right of contribution or reimbursement from the disposal agency.
ASSISTANCE IN DISPOSITION
§ 102–75.985 Is the landholding agency
required to assist the disposal agency in the disposition process?
Yes, the landholding agency must cooperate with the disposal agency in
showing the property to prospective
transferees or purchasers. Unless extraordinary expenses are incurred in
showing the property, the landholding
agency must absorb the entire cost of
such actions.
Subpart E—Abandonment, Destruction, or Donation to Public Bodies
§ 102–75.990 May
Federal
agencies
abandon, destroy, or donate to public bodies real property?
Yes, subject to the restrictions in
this subpart, any Federal agency having control of real property that has no
commercial value or for which the estimated cost of continued care and handling exceeds the estimated proceeds
from its sale, may—
(a) Abandon or destroy Governmentowned improvements and related personal property located on privatelyowned land;
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§ 102–75.995
41 CFR Ch. 102 (7–1–16 Edition)
(b) Destroy Government-owned improvements and related personal property located on Government-owned
land (abandonment of such property is
not authorized); or
(c) Donate to public bodies any Government-owned real property (land and/
or improvements and related personal
property), or interests therein.
DANGEROUS PROPERTY
§ 102–75.995 May Federal agencies dispose of dangerous property?
No, property that is dangerous to
public health or safety must be made
harmless or have adequate safeguards
in place before it can be abandoned, destroyed, or donated to public bodies.
DETERMINATIONS
§ 102–75.1000 How is the decision
made to abandon, destroy, or donate property?
No property shall be abandoned, destroyed, or donated by a Federal agency under § 102–75.990, unless a duly authorized official of that agency determines, in writing, that—
(a) The property has no commercial
value; or
(b) The estimated cost of its continued care and handling exceeds the estimated proceeds from its sale.
§ 102–75.1005 Who can make the determination within the Federal agency
on whether a property can be abandoned, destroyed, or donated?
Only a duly authorized official of
that agency not directly accountable
for the subject property can make the
determination.
§ 102–75.1010 When is a reviewing authority required to approve the determination concerning a property
that is to be abandoned, destroyed,
or donated?
A reviewing authority must approve
determinations made under § 102–75.1000
before any such disposal, whenever all
the property proposed to be disposed of
by a Federal agency has a current estimated fair market value of more than
$50,000.
RESTRICTIONS
§ 102–75.1015 Are there any restrictions on Federal agencies concerning property donations to public bodies?
Yes, Federal agencies must obtain
prior concurrence of GSA before donating to public bodies—
(a) Improvements on land or related
personal property having a current estimated fair market value in excess of
$250,000; and
(b) Land, regardless of cost.
DISPOSAL COSTS
§ 102–75.1020 Are public bodies ever
required to pay the disposal costs
associated with donated property?
Yes, any public body receiving donated improvements on land or related
personal property must pay the disposal costs associated with the donation, such as dismantling, removal, and
the cleaning up of the premises.
ABANDONMENT AND DESTRUCTION
§ 102–75.1025 When can a Federal
agency abandon or destroy improvements on land or related personal property in lieu of donating it
to a public body?
A Federal agency may not abandon
or destroy improvements on land or related personal property unless a duly
authorized official of that agency finds,
in writing, that donating the property
is not feasible. This written finding is
in addition to the determination prescribed in §§ 102–75.1000, 102–75.1005, and
102–75.1010. If donating the property becomes feasible at any time prior to actually abandoning or destroying the
property, the Federal agency must donate it.
§ 102–75.1030 May Federal agencies
abandon or destroy property in any
manner they decide?
No, Federal agencies may not abandon or destroy property in a manner
that is detrimental or dangerous to
public health or safety or that will infringe on the rights of other persons.
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Federal Management Regulation
§ 102–75.1065
§ 102–75.1035 Are there any restrictions on Federal agencies concerning the abandonment or destruction of improvements on land
or related personal property?
Yes, GSA must concur in an agency’s
abandonment or destruction of improvements on land or related personal
property prior to abandoning or destroying such improvements on land or
related personal property—
(a) That are of permanent type construction; or
(b) The retention of which would enhance the value of the underlying land,
if it were to be made available for sale
or lease.
§ 102–75.1040 May Federal agencies
abandon or destroy improvements
on land or related personal property before public notice is given of
such proposed abandonment or destruction?
Except as provided in § 102–75.1045, a
Federal agency must not abandon or
destroy improvements on land or related personal property until after it
has given public notice of the proposed
abandonment or destruction. This notice must be given in the area in which
the property is located, must contain a
general description of the property to
be abandoned or destroyed, and must
include an offering of the property for
sale. A copy of the notice must be
given to the GSA regional property disposal office for the region in which the
property is located.
§ 102–75.1045 Are there exceptions to
the policy that requires public notice be given before Federal agencies abandon or destroy improvements on land or related personal
property?
Yes, property can be abandoned or
destroyed without public notice if—
(a) Its value is so low or the cost of
its care and handling so great that retaining the property to post public notice is clearly not economical;
(b) Health, safety, or security considerations require its immediate abandonment or destruction; or
(c) The assigned mission of the agency might be jeopardized by the delay,
and a duly authorized Federal agency
official finds in writing, with respect to
paragraph (a), (b), or (c) of this section,
and a reviewing authority approves
this finding. The finding must be in addition to the determinations prescribed
in §§ 102–75.1000, 102–75.1005, 102–75.1010,
and 102–75.1025.
§ 102–75.1050 Is there any property for
which this subpart does not apply?
Yes, this subpart does not apply to
surplus property assigned for disposal
to educational or public health institutions pursuant to 40 U.S.C. 550(c) or (d).
Subpart F—Delegations
DELEGATION TO THE DEPARTMENT OF
DEFENSE (DOD)
§ 102–75.1055 What is the policy governing delegations of real property
disposal authority to the Secretary
of Defense?
GSA delegates to the Secretary of
Defense the authority to determine
that Federal agencies do not need Department of Defense controlled excess
real property and related personal
property having a total estimated fair
market value, including all the component units of the property, of less than
$50,000; and to dispose of the property
by means deemed most advantageous
to the United States.
§ 102–75.1060 What must the Secretary
of Defense do before determining
that DoD-controlled excess real
property and related personal property is not required for the needs of
any Federal agency and prior to
disposal?
The Secretary must conduct a Federal screening to determine that there
is no further Federal need or requirement for the property.
§ 102–75.1065 When using a delegation
of real property disposal authority
under this subpart, is DoD required
to report excess property to GSA?
No, although the authority in this
delegation must be used following the
provisions of Chapter 5 of Subtitle I of
Title 40 of the United States Code and
its implementing regulations.
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§ 102–75.1070
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–75.1070 Can this delegation of
authority to the Secretary of Defense be redelegated?
Yes, the Secretary of Defense may redelegate the authority delegated in
§ 102–75.1055 to any officer or employee
of the Department of Defense.
DELEGATION TO THE DEPARTMENT OF
AGRICULTURE (USDA)
§ 102–75.1075 What is the policy governing delegations of real property
disposal authority to the Secretary
of Agriculture?
GSA delegates authority to the Secretary of Agriculture to determine that
Federal agencies do not need USDAcontrolled excess real property and related personal property having a total
estimated fair market value, including
all the component units of the property, of less than $50,000; and to dispose
of the property by means deemed most
advantageous to the United States.
§ 102–75.1080 What must the Secretary
of Agriculture do before determining that USDA-controlled excess
real property and related personal
property is not required for the
needs of any Federal agency and
prior to disposal?
The Secretary must conduct a Federal screening to determine that there
is no further Federal need or requirement for the property.
§ 102–75.1085 When using a delegation
of real property disposal authority
under this subpart, is USDA required to report excess property to
GSA?
No, although the authority in this
delegation must be used following the
provisions of Chapter 5 of Subtitle I of
Title 40 of the United States Code and
its implementing regulations.
§ 102–75.1090 Can this delegation of
authority to the Secretary of Agriculture be redelegated?
Yes, the Secretary of Agriculture
may redelegate authority delegated in
§ 102–75.1075 to any officer or employee
of the Department of Agriculture.
DELEGATION TO THE DEPARTMENT OF
THE INTERIOR
§ 102–75.1095 What is the policy governing delegations of authority to
the Secretary of the Interior?
GSA delegates authority to the Secretary of the Interior to—
(a) Maintain custody, control, and
accountability for mineral resources
in, on, or under Federal real property
that the Administrator or his designee
occasionally designates as currently
utilized, excess, or surplus to the Government’s needs;
(b) Dispose of mineral resources by
lease and to administer those leases
that are made; and
(c) Determine that Federal agencies
do not need Department of the Interior
controlled excess real property and related personal property with an estimated fair market value, including all
components of the property, of less
than $50,000; and to dispose of the property by means most advantageous to
the United States.
§ 102–75.1100 Can this delegation of
authority to the Secretary of the Interior be redelegated?
Yes, the Secretary of the Interior
may redelegate this authority to any
officer, official, or employee of the Department of the Interior.
§ 102–75.1105 What other responsibilities does the Secretary of the Interior have under this delegation of
authority?
Under this authority, the Secretary
of the Interior is responsible for—
(a) Maintaining proper inventory
records, as head of the landholding
agency;
(b) Monitoring the minerals as necessary, as head of the landholding
agency, to prevent unauthorized mining or removal of the minerals;
(c) Securing any appraisals deemed
necessary by the Secretary;
(d) Coordinating with all surface
landowners, Federal or otherwise, to
prevent unnecessary interference with
the surface use;
(e) Restoring damaged or disturbed
lands after removal of the mineral deposits;
(f) Notifying the Administrator of
General Services when the disposal of
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Federal Management Regulation
§ 102–75.1130
all marketable mineral deposits is
complete;
(g) Complying with the applicable environmental laws and regulations, including the National Environmental
Policy Act of 1969, as amended (42
U.S.C. 4321 et seq.); and the implementing regulations issued by the
Council on Environmental Quality (40
CFR part 1500); section 106 of the National Historic Preservation Act of
1966, as amended (16 U.S.C. 470f); and
the Coastal Zone Management Act of
1972 (16 U.S.C. 1451 et seq.) and the Department of Commerce implementing
regulations (15 CFR parts 923 and 930);
(h) Forwarding promptly to the Administrator of General Services copies
of any agreements executed under this
authority; and
(i) Providing the Administrator of
General Services with an annual accounting of the proceeds received from
leases executed under this authority.
§ 102–75.1115 Are there any limitations
or restrictions on this delegation of
authority?
NATIVE AMERICAN-RELATED
DELEGATIONS
§ 102–75.1125 Can
the
transfer/retransfer under this delegation be at
no cost or without consideration?
§ 102–75.1110 What is the policy governing delegations of authority to
the Secretary of the Interior, the
Secretary of Health and Human
Services, and the Secretary of Education for property used in the administration of any Native American-related functions?
GSA delegates authority to the Secretary of the Interior, the Secretary of
Health and Human Services, and the
Secretary of Education to transfer and
to retransfer to each other, upon request, any of the property of each
agency that is being used and will continue to be used in the administration
of any functions relating to the Native
Americans. The term property, as used
in this delegation, includes real property and such personal property as the
Secretary making the transfer or retransfer determines to be related personal property. The Departments must
exercise the authority conferred in this
section following applicable GSA regulations issued pursuant to the provisions of Chapter 5 of Subtitle I of Title
40 of the United States Code.
This authority must be used only in
connection with property that the appropriate Secretary determines—
(a) Comprises a functional unit;
(b) Is located within the United
States; and
(c) Has an acquisition cost of $100,000
or less, provided that the transfer or
retransfer does not include property
situated in any area that is recognized
as an urban area or place as identified
by the most recent decennial census.
§ 102–75.1120 Does the property have
to be Federally screened?
No, screening is not required because
it would accomplish no useful purpose,
since the property subject to transfer
or retransfer will continue to be used
in the administration of any functions
relating to Native Americans.
Yes, transfers/retransfers under this
delegation can be at no cost or without
consideration, except—
(a) Where funds programmed and appropriated for acquisition of the property are available to the Secretary requesting the transfer or retransfer; or
(b) Whenever reimbursement at fair
market value is required by subpart B
of this part (entitled ‘‘Utilization of
Excess Real Property’’).
§ 102–75.1130 What action must the
Secretary requesting the transfer
take where funds were not programmed and appropriated for acquisition of the property?
The Secretary requesting the transfer or retransfer must certify in writing that no funds are available to acquire the property. The Secretary
transferring or retransferring the property may make any determination necessary that would otherwise be made
by GSA to carry out the authority contained in this delegation.
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§ 102–75.1135
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–75.1135 May this delegation of
authority to the Secretary of the Interior, the Secretary of Health and
Human Services, and the Secretary
of Education be redelegated?
Yes, the Secretary of the Interior,
the Secretary of Health and Human
Services, and the Secretary of Education may redelegate any of the authority contained in this delegation to
any officers or employees of their respective departments.
Subpart G—Conditional Gifts of
Real Property to Further the
Defense Effort
§ 102–75.1140 What is the policy governing the acceptance or rejection
of a conditional gift of real property
for a particular defense purpose?
Any Federal agency receiving an
offer of a conditional gift of real property for a particular defense purpose
within the purview of Chapter 582–Public Law 537 (July 27, 1954) must notify
the appropriate GSA regional property
disposal office and must submit to GSA
a recommendation indicating whether
the Government should accept or reject
the gift. Nothing in this subpart shall
be construed as applicable to the acceptance of gifts under the provisions
of other laws. Following receipt of such
notification and recommendation, GSA
must—
(a) Consult with the interested agencies before it may accept or reject such
conditional gifts of real property on behalf of the United States or before it
transfers such conditional gifts of real
property to an agency; and
(b) Advise the donor and the agencies
concerned of the action taken with respect to acceptance or rejection of the
conditional gift and of its final disposition.
§ 102–75.1145 What action must the
Federal agency receiving an offer of
a conditional gift take?
Prior to notifying the appropriate
GSA regional property disposal office,
the receiving Federal agency must acknowledge receipt of the offer in writing and advise the donor that the offer
will be referred to the appropriate GSA
regional property disposal office. The
receiving agency must not indicate ac-
ceptance or rejection of the gift on behalf of the United States at this time.
The receiving agency must provide a
copy of the acknowledgment with the
notification and recommendation to
the GSA regional property disposal office.
§ 102–75.1150 What happens to the gift
if GSA determines it to be acceptable?
When GSA determines that the gift is
acceptable and can be accepted and
used in the form in which it was offered, GSA must designate an agency
and transfer the gift without reimbursement to this agency to use as the
donor intended.
§ 102–75.1155 May an acceptable gift of
property be converted to money?
GSA can determine whether or not a
gift of property can and should be converted to money. After conversion,
GSA must deposit the funds with the
Treasury Department for transfer to an
appropriate account that will best effectuate the intent of the donor, in accordance with Treasury Department
procedures.
Subpart H—Use of Federal Real
Property to Assist the Homeless
DEFINITIONS
§ 102–75.1160 What definitions apply to
this subpart?
Applicant means any representative
of the homeless that has submitted an
application to the Department of
Health and Human Services to obtain
use of a particular suitable property to
assist the homeless.
Checklist or property checklist means
the form developed by HUD for use by
landholding agencies to report the information to be used by HUD in making determinations of suitability.
Classification means a property’s designation as unutilized, underutilized,
excess, or surplus.
Day means one calendar day, including weekends and holidays.
Eligible organization means a State,
unit of local government, or a private,
non-profit organization that provides
assistance to the homeless, and that is
authorized by its charter or by State
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§ 102–75.1160
law to enter into an agreement with
the Federal Government for use of real
property for the purposes of this subpart. Representatives of the homeless
interested in receiving a deed for a particular piece of surplus Federal property must be section 501(c)(3) tax exempt.
Excess property means any property
under the control of any Executive
agency that is not required for the
agency’s needs or the discharge of its
responsibilities, as determined by the
head of the agency pursuant to 40
U.S.C. 524.
GSA means the United States General Services Administration.
HHS means the United States Department of Health and Human Services.
Homeless means—
(1) An individual or family that lacks
a fixed, regular, and adequate nighttime residence; or
(2) An individual or family that has a
primary nighttime residence that is—
(i) A supervised publicly or privately
operated shelter designed to provide
temporary living accommodations (including welfare hotels, congregate
shelters, and transitional housing for
the mentally ill);
(ii) An institution that provides a
temporary residence for individuals intended to be institutionalized; or
(iii) A public or private place not designed for, or ordinarily used as, a regular
sleeping
accommodation
for
human beings. This term does not include any individual imprisoned or otherwise detained under an Act of Congress or a State law.
HUD means the United States Department of Housing and Urban Development.
ICH means the Interagency Council
on the Homeless.
Landholding agency means a Federal
department or agency with statutory
authority to control real property.
Lease means an agreement between
either HHS for surplus property, or
landholding agencies in the case of
non-excess properties or properties subject to the Base Closure and Realignment Act (Pub. L. 100–526, 10 U.S.C.
2687), and the applicant, giving rise to
the relationship of lessor and lessee for
the use of Federal real property for a
term of at least one year under the
conditions set forth in the lease document.
Non-profit organization means an organization, no part of the net earnings
of which inures to the benefit of any
member, founder, contributor, or individual; that has a voluntary board;
that has an accounting system or has
designated an entity that will maintain a functioning accounting system
for the organization in accordance with
generally accepted accounting procedures;
and
that
practices
nondiscrimination in the provision of assistance.
Permit means a license granted by a
landholding agency to use unutilized or
underutilized property for a specific
amount of time under terms and conditions determined by the landholding
agency.
Property means real property consisting of vacant land or buildings, or a
portion thereof, that is excess, surplus,
or designated as unutilized or underutilized in surveys by the heads of landholding agencies conducted pursuant to
40 U.S.C. 524.
Regional Homeless Coordinator means
a regional coordinator of the Interagency Council on the Homeless.
Representative of the Homeless means a
State or local government agency, or
private non-profit organization that
provides, or proposes to provide, services to the homeless.
Screen means the process by which
GSA surveys Federal agencies, or
State, local and non-profit entities, to
determine if any such entity has an interest in using excess Federal property
to carry out a particular agency mission or a specific public use.
State Homeless Coordinator means a
State contact person designated by a
State to receive and disseminate information and communications received
from the Interagency Council on the
Homeless in accordance with the
McKinney-Vento Homeless Assistance
Act of 1987, as amended (42 U.S.C.
11320).
Suitable property means that HUD has
determined that a particular property
satisfies the criteria listed in § 102–
75.1185.
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§ 102–75.1165
41 CFR Ch. 102 (7–1–16 Edition)
Surplus property means any excess
real property not required by any Federal landholding agency for its needs or
the discharge of its responsibilities, as
determined by the Administrator of
GSA.
Underutilized means an entire property or portion thereof, with or without improvements, which is used only
at irregular periods or intermittently
by the accountable landholding agency
for current program purposes of that
agency, or which is used for current
program purposes that can be satisfied
with only a portion of the property.
Unsuitable property means that HUD
has determined that a particular property does not satisfy the criteria in
§ 102–75.1185.
Unutilized property means an entire
property or portion thereof, with or
without improvements, not occupied
for current program purposes for the
accountable Executive agency or occupied in caretaker status only.
APPLICABILITY
§ 102–75.1165 What is the applicability
of this subpart?
(a) This part applies to Federal real
property that has been designated by
Federal landholding agencies as unutilized, underutilized, excess, or surplus,
and is, therefore, subject to the provisions of title V of the McKinney-Vento
Homeless Assistance Act, as amended
(42 U.S.C. 11411).
(b) The following categories of properties are not subject to this subpart
(regardless of whether they may be unutilized or underutilized):
(1) Machinery and equipment.
(2) Government-owned, contractoroperated machinery, equipment, land,
and other facilities reported excess for
sale only to the using contractor and
subject to a continuing military requirement.
(3) Properties subject to special legislation directing a particular action.
(4) Properties subject to a court
order.
(5) Property not subject to survey requirements of Executive Order 12512
(April 29, 1985).
(6) Mineral rights interests.
(7) Air Space interests.
(8) Indian Reservation land subject to
40 U.S.C. 523.
(9) Property interests subject to reversion.
(10) Easements.
(11) Property purchased in whole or
in part with Federal funds, if title to
the property is not held by a Federal
landholding agency as defined in this
part.
COLLECTING THE INFORMATION
§ 102–75.1170 How will information be
collected?
(a) Canvass of landholding agencies. On
a quarterly basis, HUD will canvass
landholding agencies to collect information about property described as unutilized, underutilized, excess, or surplus in surveys conducted by the agencies under 40 U.S.C. 524, Executive
Order 12512, and subpart H of this part.
Each canvass will collect information
on properties not previously reported
and about property reported previously
the status or classification of which
has changed or for which any of the information reported on the property
checklist has changed.
(1) HUD will request descriptive information on properties sufficient to
make a reasonable determination,
under the criteria described below, of
the suitability of a property for use as
a facility to assist the homeless.
(2) HUD will direct landholding agencies to respond to requests for information within 25 days of receipt of such
requests.
(b) Agency annual report. By December 31 of each year, each landholding
agency must notify HUD regarding the
current availability status and classification of each property controlled by
the agency that—
(1) Was included in a list of suitable
properties published that year by HUD;
and
(2) Remains available for application
for use to assist the homeless, or has
become available for application during that year.
(c) GSA inventory. HUD will collect
information, in the same manner as described in paragraph (a) of this section,
from GSA regarding property that is in
GSA’s current inventory of excess or
surplus property.
(d) Change in status. If the information provided on the property checklist
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Federal Management Regulation
§ 102–75.1175
changes subsequent to HUD’s determination of suitability, and the property remains unutilized, underutilized,
excess or surplus, the landholding
agency must submit a revised property
checklist in response to the next quarterly canvass. HUD will make a new
determination of suitability and, if it
differs from the previous determination, republish the property information in the FEDERAL REGISTER. For example, property determined unsuitable
for national security concerns may no
longer be subject to security restrictions, or property determined suitable
may subsequently be found to be contaminated.
SUITABILITY DETERMINATION
§ 102–75.1175 Who issues
ability determination?
the
suit-
(a) Suitability determination. Within 30
days after the receipt of information
from landholding agencies regarding
properties that were reported pursuant
to the canvass described in § 102–
75.1170(a), HUD will determine, under
criteria set forth in § 102–75.1185, which
properties are suitable for use as facilities to assist the homeless and report
its determination to the landholding
agency. Properties that are under
lease, contract, license, or agreement
by which a Federal agency retains a
real property interest or which are
scheduled to become unutilized or underutilized will be reviewed for suitability no earlier than six months prior
to the expected date when the property
will become unutilized or underutilized, except that properties subject to
the Base Closure and Realignment Act
may be reviewed up to eighteen months
prior to the expected date when the
property will become unutilized or underutilized.
(b) Scope of suitability. HUD will determine the suitability of a property
for use as a facility to assist the homeless without regard to any particular
use.
(c) Environmental information. HUD
will evaluate the environmental information contained in property checklists forwarded to HUD by the landholding agencies solely for the purpose
of determining suitability of properties
under the criteria in § 102–75.1185.
(d) Written record of suitability determination. HUD will assign an identification number to each property reviewed
for suitability. HUD will maintain a
written public record of the following:
(1) The suitability determination for
a particular piece of property, and the
reasons for that determination; and
(2) The landholding agency’s response
to the determination pursuant to the
requirements of § 102–75.1190(a).
(e) Property determined unsuitable.
Property that is reviewed by HUD
under this section and that is determined unsuitable for use to assist the
homeless may not be made available
for any other purpose for 20 days after
publication in the FEDERAL REGISTER
of a notice of unsuitability to allow for
review of the determination at the request of a representative of the homeless.
(f)
Procedures
for
appealing
unsuitability determinations. (1) To request review of a determination of
unsuitability, a representative of the
homeless must contact HUD within 20
days of publication of notice in the
FEDERAL REGISTER that a property is
unsuitable. Requests may be submitted
to HUD in writing or by calling 1–800–
927–7588 (Toll Free). Written requests
must be received no later than 20 days
after notice of unsuitability is published in the FEDERAL REGISTER.
(2) Requests for review of a determination of unsuitability may be made
only by representatives of the homeless, as defined in § 102–75.1160.
(3) The request for review must specify the grounds on which it is based,
i.e., that HUD has improperly applied
the criteria or that HUD has relied on
incorrect or incomplete information in
making the determination (e.g., that
property is in a floodplain but not in a
floodway).
(4) Upon receipt of a request to review a determination of unsuitability,
HUD will notify the landholding agency that such a request has been made,
request that the agency respond with
any information pertinent to the review, and advise the agency that it
should refrain from initiating disposal
procedures until HUD has completed
its
reconsideration
regarding
unsuitability.
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§ 102–75.1180
41 CFR Ch. 102 (7–1–16 Edition)
(i) HUD will act on all requests for
review within 30 days of receipt of the
landholding agency’s response and will
notify the representative of the homeless and the landholding agency in
writing of its decision.
(ii) If a property is determined suitable as a result of the review, HUD will
request the landholding agency’s determination of availability pursuant to
§ 102–75.1190(a), upon receipt of which
HUD will promptly publish the determination in the FEDERAL REGISTER. If
the determination of unsuitability
stands, HUD will inform the representative of the homeless of its decision.
REAL PROPERTY REPORTED EXCESS TO
GSA
§ 102–75.1180 For the purposes of this
subpart, what is the policy concerning real property reported excess to GSA?
(a) Each landholding agency must
submit a report to GSA of properties it
determines excess. Each landholding
agency must also provide a copy of
HUD’s suitability determination, if
any, including HUD’s identification
number for the property.
(b) If a landholding agency reports a
property to GSA that has been reviewed by HUD for homeless assistance
suitability and HUD determined the
property suitable, GSA will screen the
property pursuant to § 102–75.1180(g) and
will advise HUD of the availability of
the property for use by the homeless as
provided in § 102–75.1180(e). In lieu of
the above, GSA may submit a new
checklist to HUD and follow the procedures in § 102–75.1180(c) through § 102–
75.1180(g).
(c) If a landholding agency reports a
property to GSA that has not been reviewed by HUD for homeless assistance
suitability, GSA will complete a property checklist, based on information
provided by the landholding agency,
and will forward this checklist to HUD
for a suitability determination. This
checklist will reflect any change in
classification, i.e., from unutilized or
underutilized to excess.
(d) Within 30 days after GSA’s submission, HUD will advise GSA of the
suitability determination.
(e) When GSA receives a letter from
HUD listing suitable excess properties
in GSA’s inventory, GSA will transmit
to HUD within 45 days a response that
includes the following for each identified property:
(1) A statement that there is no other
compelling Federal need for the property and, therefore, the property will
be determined surplus; or
(2) A statement that there is further
and compelling Federal need for the
property (including a full explanation
of such need) and that, therefore, the
property is not presently available for
use to assist the homeless.
(f) When an excess property is determined suitable and available and notice is published in the FEDERAL REGISTER, GSA will concurrently notify
HHS, HUD, State and local government
units, known homeless assistance providers that have expressed interest in
the particular property, and other organizations, as appropriate, concerning
suitable properties.
(g) Upon submission of a Report of
Excess to GSA, GSA may screen the
property for Federal use. In addition,
GSA may screen State and local governmental units and eligible non-profit
organizations to determine interest in
the property in accordance with current regulations. (See GSA Customer
Guide to Real Property Disposal.)
(h) The landholding agency will retain custody and accountability and
will protect and maintain any property
that is reported excess to GSA as provided in § 102–75.965.
SUITABILITY CRITERIA
§ 102–75.1185
teria?
What are suitability cri-
(a) All properties, buildings, and land
will be determined suitable unless a
property’s characteristics include one
or more of the following conditions:
(1) National security concerns. A property located in an area to which the
general public is denied access in the
interest of national security (e.g.,
where a special pass or security clearance is a condition of entry to the
property) will be determined unsuitable. Where alternative access can be
provided for the public without compromising national security, the property will not be determined unsuitable
on this basis.
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Federal Management Regulation
§ 102–75.1195
(2) Property containing flammable or
explosive materials. A property located
within 2,000 feet of an industrial, commercial, or Federal facility handling
flammable or explosive material (excluding underground storage) will be
determined unsuitable. Above ground
containers with a capacity of 100 gallons or less, or larger containers that
provide the heating or power source for
the property, and that meet local safety, operation, and permitting standards, will not affect whether a particular property is determined suitable
or unsuitable. Underground storage,
gasoline stations, and tank trucks are
not included in this category, and their
presence will not be the basis of an
unsuitability
determination
unless
there is evidence of a threat to personal safety as provided in paragraph
(a)(5) of this section.
(3) Runway clear zone and military airfield clear zone. A property located
within an airport runway clear zone or
military airfield clear zone will be determined unsuitable.
(4) Floodway. A property located in
the floodway of a 100-year floodplain
will be determined unsuitable. If the
floodway has been contained or corrected, or if only an incidental portion
of the property not affecting the use of
the remainder of the property is in the
floodway, the property will not be determined unsuitable.
(5) Documented deficiencies. A property with a documented and extensive
condition(s) that represents a clear
threat to personal physical safety will
be determined unsuitable. Such conditions may include, but are not limited
to, contamination, structural damage,
extensive deterioration, friable asbestos, PCBs, natural hazardous substances such as radon, periodic flooding, sinkholes, or earth slides.
(6) Inaccessible. A property that is inaccessible will be determined unsuitable. An inaccessible property is one
that is not accessible by road (including property on small off-shore islands)
or is land locked (e.g., can be reached
only by crossing private property and
there is no established right or means
of entry).
(b) [Reserved]
DETERMINATION OF AVAILABILITY
§ 102–75.1190 What is the policy concerning determination of availability statements?
(a) Within 45 days after receipt of a
letter from HUD pursuant to § 102–
75.1170(a), each landholding agency
must transmit to HUD a statement of
one of the following:
(1) In the case of unutilized or underutilized property—
(i) An intention to declare the property excess;
(ii) An intention to make the property available for use to assist the
homeless; or
(iii) The reasons why the property
cannot be declared excess or made
available for use to assist the homeless. The reasons given must be different than those listed as suitability
criteria in § 102–75.1185.
(2) In the case of excess property that
had previously been reported to GSA—
(i) A statement that there is no compelling Federal need for the property
and that, therefore, the property will
be determined surplus; or
(ii) A statement that there is a further and compelling Federal need for
the property (including a full explanation of such need) and that, therefore, the property is not presently
available for use to assist the homeless.
(b) [Reserved]
PUBLIC NOTICE OF DETERMINATION
§ 102–75.1195 What is the policy concerning making public the notice of
determination?
(a) No later than 15 days after the
last–45 day period has elapsed for receiving responses from the landholding
agencies regarding availability, HUD
will publish in the FEDERAL REGISTER a
list of all properties reviewed, including a description of the property, its
address, and classification. The following designations will be made:
(1) Properties that are suitable and
available.
(2) Properties that are suitable and
unavailable.
(3) Properties that are suitable and
to be declared excess.
(4) Properties that are unsuitable.
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§ 102–75.1200
41 CFR Ch. 102 (7–1–16 Edition)
(b) Information about specific properties can be obtained by contacting
HUD at the following toll free number:
1–800–927–7588.
(c) HUD will transmit to the ICH a
copy of the list of all properties published in the FEDERAL REGISTER. The
ICH will immediately distribute to all
state and regional homeless coordinators area-relevant portions of the list.
The ICH will encourage the state and
regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each
year, HUD will publish in the FEDERAL
REGISTER a list of all properties reported pursuant to § 102–75.1170(b).
(e) HUD will publish an annual list of
properties determined suitable, but
that agencies reported unavailable, including the reasons such properties are
not available.
(f) Copies of the lists published in the
FEDERAL REGISTER will be available for
review by the public in the HUD headquarters building library (room 8141);
area-relevant portions of the lists will
be available in the HUD regional offices and in major field offices.
APPLICATION PROCESS
§ 102–75.1200 How may representatives
of the homeless apply for the use of
properties to assist the homeless?
(a) Holding period. (1) Properties published as available for application for
use to assist the homeless shall not be
available for any other purpose for a
period of 60 days beginning on the date
of publication. Any representative of
the homeless interested in any underutilized, unutilized, excess or surplus
Federal property for use as a facility to
assist the homeless must send to HHS
a written expression of interest in that
property within 60 days after the property has been published in the FEDERAL
REGISTER.
(2) If a written expression of interest
to apply for suitable property for use
to assist the homeless is received by
HHS within the 60-day holding period,
such property may not be made available for any other purpose until the
date HHS or the appropriate landholding agency has completed action
on the application submitted pursuant
to that expression of interest.
(3) The expression of interest should
identify the specific property, briefly
describe the proposed use, the name of
the organization, and indicate whether
it is a public body or a private, nonprofit organization. The expression of
interest must be sent to the Division of
Health Facilities Planning (DHFP) of
the Department of Health and Human
Services at the following address: Director, Division of Health Facilities
Planning, Public Health Service, Room
17A–10, Parklawn Building, 5600 Fishers
Lane, Rockville, Maryland 20857. HHS
will notify the landholding agency (for
unutilized and underutilized properties) or GSA (for excess and surplus
properties) when an expression of interest has been received for a particular
property.
(4) An expression of interest may be
sent to HHS any time after the 60-day
holding period has expired. In such a
case, an application submitted pursuant to this expression of interest may
be approved for use by the homeless
if—
(i) No application or written expression of interest has been made under
any law for use of the property for any
purpose; and
(ii) In the case of excess or surplus
property, GSA has not received a bona
fide offer to purchase that property or
advertised for the sale of the property
by public auction.
(b) Application requirements. Upon receipt of an expression of interest,
DHFP will send an application packet
to the interested entity. The application packet requires the applicant to
provide certain information, including
the following:
(1) Description of the applicant organization. The applicant must document
that it satisfies the definition of a
‘‘representative of the homeless,’’ as
specified in § 102–75.1160. The applicant
must document its authority to hold
real property. Private, non-profit organizations applying for deeds must document that they are section 501(c)(3)
tax-exempt.
(2) Description of the property desired.
The applicant must describe the property desired and indicate that any
modifications made to the property
will conform to local use restrictions,
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Federal Management Regulation
§ 102–75.1200
except for, in the case of leasing the
property, local zoning regulations.
(3) Description of the proposed program.
The applicant must fully describe the
proposed program and demonstrate
how the program will address the needs
of the homeless population to be assisted. The applicant must fully describe what modifications will be made
to the property before the program becomes operational.
(4) Ability to finance and operate the
proposed program. The applicant must
specifically describe all anticipated
costs and sources of funding for the
proposed program. The applicant must
indicate that it can assume care, custody, and maintenance of the property
and that it has the necessary funds or
the ability to obtain such funds to
carry out the approved program of use
for the property.
(5) Compliance with non-discrimination
requirements. Each applicant and lessee
under this part must certify in writing
that it will comply with the requirements of the Fair Housing Act (42
U.S.C. 3601–3619) and implementing regulations; and as applicable, Executive
Order 11063 (Equal Opportunity in
Housing) and implementing regulations; Title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000d to d–4) (Nondiscrimination in Federally-Assisted
Programs) and implementing regulations; the prohibitions against discrimination on the basis of age under
the Age Discrimination Act of 1975 (42
U.S.C. 6101–6107) and implementing regulations; and the prohibitions against
otherwise qualified individuals with
handicaps under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and implementing regulations. The applicant must state that it will not discriminate on the basis of race, color,
national origin, religion, sex, age, familial status, or disability in the use of
the property, and will maintain the required records to demonstrate compliance with Federal laws.
(6) Insurance. The applicant must certify that it will insure the property
against loss, damage, or destruction in
accordance with the requirements of 45
CFR § 12.9.
(7) Historic preservation. Where applicable, the applicant must provide information that will enable HHS to
comply with Federal historic preservation requirements.
(8) Environmental information. The applicant must provide sufficient information to allow HHS to analyze the potential impact of the applicant’s proposal on the environment, in accordance with the instructions provided
with the application packet. HHS will
assist applicants in obtaining any pertinent environmental information in
the possession of HUD, GSA, or the
landholding agency.
(9) Local government notification. The
applicant must indicate that it has informed, in writing, the applicable unit
of general local government responsible for providing sewer, water, police,
and fire services of its proposed program.
(10) Zoning and local use restrictions.
The applicant must indicate that it
will comply with all local use restrictions, including local building code requirements. Any applicant applying for
a lease or permit for a particular property is not required to comply with
local zoning requirements. Any applicant applying for a deed of a particular
property, pursuant to § 102–75.1200(b)(3),
must comply with local zoning requirements, as specified in 45 CFR part 12.
(c) Scope of evaluations. Due to the
short time frame imposed for evaluating applications, HHS’ evaluation
will, generally, be limited to the information contained in the application.
(d) Deadline. Completed applications
must be received by DHFP, at the
above address, within 90 days after an
expression of interest is received from
a particular applicant for that property. Upon written request from the
applicant, HHS may grant extensions,
provided that the appropriate landholding agency concurs with the extension. Because each applicant will have
a different deadline based on the date
the applicant submitted an expression
of interest, applicants should contact
the individual landholding agency to
confirm that a particular property remains available prior to submitting an
application.
(e) Evaluations. (1) Upon receipt of an
application, HHS will review it for
completeness and, if incomplete, may
return it or ask the applicant to furnish any missing or additional required
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§ 102–75.1205
41 CFR Ch. 102 (7–1–16 Edition)
information prior to final evaluation of
the application.
(2) HHS will evaluate each completed
application within 25 days of receipt
and will promptly advise the applicant
of its decision. Applications are evaluated on a first-come, first-serve basis.
HHS will notify all organizations that
have submitted expressions of interest
for a particular property regarding
whether the first application received
for that property has been approved or
disapproved. All applications will be
reviewed on the basis of the following
elements, which are listed in descending order of priority, except that paragraphs (e)(2)(iv) and (e)(2)(v) of this section are of equal importance:
(i) Services offered. The extent and
range of proposed services, such as
meals, shelter, job training, and counseling.
(ii) Need. The demand for the program and the degree to which the
available property will be fully utilized.
(iii) Implementation time. The amount
of time necessary for the proposed program to become operational.
(iv) Experience. Demonstrated prior
success in operating similar programs
and recommendations attesting to that
fact by Federal, State, and local authorities.
(v) Financial ability. The adequacy of
funding that will likely be available to
run the program fully and properly and
to operate the facility.
(3) Additional evaluation factors may
be added as deemed necessary by HHS.
If additional factors are added, the application packet will be revised to include a description of these additional
factors.
(4) If HHS receives one or more competing applications for a property within 5 days of the first application, HHS
will evaluate all completed applications simultaneously. HHS will rank
approved applications based on the elements listed in § 102–75.1200(e)(2) and
notify the landholding agency, or GSA,
as appropriate, of the relative ranks.
ACTION ON APPROVED APPLICATIONS
§ 102–75.1205 What action must be
taken on approved applications?
(a) Unutilized and underutilized properties. (1) When HHS approves an application, it will so notify the applicant
and forward a copy of the application
to the landholding agency. The landholding agency will execute the lease,
or permit document, as appropriate, in
consultation with the applicant.
(2) The landholding agency maintains
the discretion to decide the following:
(i) The length of time the property
will be available. (Leases and permits
will be for a period of at least one year,
unless the applicant requests a shorter
term.)
(ii) Whether to grant use of the property pursuant to a lease or permit.
(iii) The terms and conditions of the
lease or permit document.
(b) Excess and surplus properties. (1)
When HHS approves an application, it
will so notify the applicant and request
that GSA assign the property to HHS
for leasing. Upon receipt of the assignment, HHS will execute a lease in accordance with the procedures and requirements set out in 45 CFR part 12.
In accordance with § 102–75.965, custody
and accountability of the property will
remain throughout the lease term with
the agency that initially reported the
property as excess.
(2) Prior to assignment to HHS, GSA
may consider other Federal uses and
other important national needs; however, in deciding the disposition of surplus real property, GSA will generally
give priority of consideration to uses
to assist the homeless. GSA may consider any competing request for the
property made under 40 U.S.C. 550 (education, health, public park or recreation, and historic monument uses)
that is so meritorious and compelling
that it outweighs the needs of the
homeless, and HHS may likewise consider any competing request made
under 40 U.S.C. 550(c) or (d) (education
and health uses).
(3) Whenever GSA or HHS decides in
favor of a competing request over a request for property for homeless assistance use as provided in paragraph (b)(2)
of this section, the agency making the
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Federal Management Regulation
§ 102–75.1225
decision will transmit to the appropriate committees of the Congress an
explanatory statement that details the
need satisfied by conveyance of the
surplus property, and the reasons for
determining that such need was so
meritorious and compelling as to outweigh the needs of the homeless.
(4) Deeds. Surplus property may be
conveyed to representatives of the
homeless pursuant to 40 U.S.C. 550, and
section 501(f) of the McKinney-Vento
Homeless Assistance Act, as amended,
42 U.S.C. 11411. Representatives of the
homeless must complete the application packet pursuant to the requirements of § 102–75.1200 and in accordance
with the requirements of 45 CFR part
12.
(c) Completion of lease term and reversion of title. Lessees and grantees will
be responsible for the protection and
maintenance of the property during the
time that they possess the property.
Upon termination of the lease term or
reversion of title to the Federal Government, the lessee or grantee will be
responsible for removing any improvements made to the property and will be
responsible for restoration of the property. If such improvements are not removed, they will become the property
of the Federal Government. GSA or the
landholding agency, as appropriate,
will assume responsibility for protection and maintenance of a property
when the lease terminates or title reverts.
UNSUITABLE PROPERTIES
§ 102–75.1210 What action must be
taken on properties determined unsuitable for homeless assistance?
The landholding agency will defer,
for 20 days after the date that notice of
a property is published in the FEDERAL
REGISTER, action to dispose of properties determined unsuitable for homeless assistance. HUD will inform landholding agencies or GSA, if a representative of the homeless files an appeal of unsuitability pursuant to § 102–
75.1175(f)(4). HUD will advise the agency that it should refrain from initiating disposal procedures until HUD
has completed its reconsideration process regarding unsuitability. Thereafter,
or if no appeal has been filed after 20
days, GSA or the appropriate land-
holding agency may proceed with disposal action in accordance with applicable law.
NO APPLICATIONS APPROVED
§ 102–75.1215 What action must be
taken if there is no expression of interest?
(a) At the end of the 60-day holding
period described in § 102–75.1200(a), HHS
will notify GSA, or the landholding
agency, as appropriate, if an expression
of interest has been received for a particular property. Where there is no expression of interest, GSA or the landholding agency, as appropriate, will
proceed with disposal in accordance
with applicable law.
(b) Upon advice from HHS that all
applications have been disapproved, or
if no completed applications or requests for extensions have been received by HHS within 90 days from the
date of the last expression of interest,
disposal may proceed in accordance
with applicable law.
Subpart I—Screening of Federal
Real Property
§ 102–75.1220 How
do
landholding
agencies find out if excess Federal
real property is available?
If agencies report excess real and related personal property to GSA, GSA
conducts a ‘‘Federal screening’’ for the
property. Federal screening consists of
developing a ‘‘Notice of Availability’’
and circulating the ‘‘Notice’’ among all
Federal landholding agencies for a
maximum of 30 days.
§ 102–75.1225 What details are provided in the ‘‘Notice of Availability’’?
The ‘‘Notice of Availability’’ describes the physical characteristics of
the property; it also provides information on location, hazards or restrictions, contact information, and a date
by which an interested Federal agency
must respond in writing to indicate a
definite or potential need for the property.
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§ 102–75.1230
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–75.1230 How long does an agency
have to indicate its interest in the
property?
§ 102–75.1255 What
happens
when
more than one agency has a valid
interest in the property?
Generally, agencies have 30 days to
express written interest in the property. However, sometimes GSA has
cause to conduct an expedited screening of the real property and the time
allotted for responding is less than 30
days. The Notice of Availability always
contains a ‘‘respond by’’ date.
GSA will attempt to facilitate an equitable solution between the agencies
involved. However, the Administrator
has final decision making authority in
determining which requirement aligns
with the Federal Government’s best interests.
§ 102–75.1235 Where should an agency
send its written response to the
‘‘Notice of Availability’’?
Look for the contact information
provided in the Notice of Availability.
Most likely, an agency will be directed
to contact one of GSA’s regional offices.
§ 102–75.1240 Who, from the interested
landholding agency, should submit
the written response to GSA’s ‘‘Notice of Availability’’?
An authorized official of the landholding agency must sign the written
response to the Notice of Availability.
An ‘‘authorized official’’ is one who is
responsible for acquisition and/or disposal decisions (e.g., head of the agency
or official designee).
§ 102–75.1245 What happens after the
landholding agency properly responds to a ‘‘Notice of Availability’’?
The landholding agency has 60 days
(from the expiration date of the ‘‘Notice of Availability’’) to submit a formal transfer request for the property.
Absent a formal request for transfer
within the prescribed 60 days, GSA
may, at its discretion, pursue other
disposal options.
§ 102–75.1250 What if the agency is not
quite sure it wants the property
and needs more time to decide?
If the written response to the ‘‘Notice of Availability’’ indicates a potential need, then the agency has an additional 30 days (from the expiration date
of the ‘‘Notice of Availability’’) to determine whether or not its has a definite requirement for the property, and
then 60 days to submit a transfer request.
§ 102–75.1260 Does GSA conduct Federal screening on every property reported as excess real property?
No. GSA may waive the Federal
screening for excess real property when
it determines that doing so is in the
best interest of the Federal Government.
Below is a sample list of some of the
factors GSA may consider when making the decision to waive Federal
screening. This list is a representative
sample and is not all-inclusive:
(a) There is a known Federal need;
(b) The property is located within the
boundaries of tribal lands;
(c) The property has known disposal
limitations precluding further Federal
use (e.g., title and/or utilization restrictions; reported excess specifically
for participation in the Relocation Program; reported excess for transfer to
the current operating contractor who
will continue production according to
the terms of the disposal documents;
directed for disposal by law or special
legislation);
(d) The property will be transferred
to a ‘‘potentially responsible party’’
(PRP) that stored, released, or disposed
of hazardous substances at the Government-owned facility;
(e) The property is an easement;
(f) The excess property is actually a
leasehold interest where there are Government-owned improvements with
substantial value and cannot be easily
removed;
(g) Government-owned improvements
on Government-owned land, where the
land is neither excess nor expected to
become excess; or
(h) Screening for public benefit uses,
except for the McKinney-Vento homeless screening, for specific property disposal considerations (see § 102–75.351).
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Federal Management Regulation
Pt. 102–76
§ 102–75.1265 Are extensions granted
to the Federal screening and response timeframes?
Generally, no. GSA believes the timeframes are sufficient for agencies to
make a decision and respond. Requests
for extensions must be strongly justified and approved by the appropriate
GSA Regional Administrator. For example, agencies may request an extension of time to submit their formal
transfer request if they are not
promptly provided GSA’s estimate of
FMV after submission of the initial expression of interest. Agencies requesting extensions must also submit an
agreement accepting responsibility for
providing and funding protection and
maintenance for the requested property during the period of the extension
until the property is transferred to the
requesting agency or the requesting
agency notifies GSA that it is no
longer interested in the property. This
assumption of protection and maintenance responsibility also applies to extensions associated with a requesting
agency’s request for an exception from
the 100 percent reimbursement requirement (see § 102–75.205).
§ 102–75.1270 How does an agency request a transfer of Federal real
property?
Agencies must use GSA Form 1334,
Request for Transfer of Excess Real
and Related Personal Property.
§ 102–75.1275 Does a requesting agency
have to pay for excess real property?
Yes. GSA is required by law to obtain
full fair market value (as determined
by the Administrator) for all real property (see § 102–75.190), except when a
transfer without reimbursement has
been authorized (see § 102–75.205). GSA,
upon receipt of a valid expression of interest, will promptly provide each interested landholding agency with an
estimate of fair market value for the
property. GSA may transfer property
without reimbursement, if directed to
do so by law or special legislation and
for the following purposes:
(a) Migratory Bird Management
under Pub. L. 80–537, as amended by
Pub. L. 92–432.
(b) Wildlife Conservation under Pub.
L. 80–537.
(c) Federal Correctional facilities.
(d) Joint Surveillance System.
§ 102–75.1280 What happens if the
property has already been declared
surplus and an agency discovers a
need for it?
GSA can redesignate surplus property as excess property, if the agency
requests the property for use in direct
support of its mission and GSA is satisfied that this transfer would be in the
best interests of the Federal Government.
§ 102–75.1285 How does GSA transfer
excess real property to the requesting agency?
GSA transfers the property via letter
assigning
‘‘custody
and
accountability’’ for the property to the requesting agency. Title to the property
is held in the name of the United
States; however, the requesting agency
becomes the landholding agency and is
responsible for providing and funding
protection and maintenance for the
property.
§ 102–75.1290 What happens if the
landholding agency requesting the
property does not promptly accept
custody and accountability?
(a) The requesting agency must assume protection and maintenance responsibilities for the property within 30
days of the date of the letter assigning
custody and accountability for the
property.
(b) After notifying the requesting
agency, GSA may, at its discretion,
pursue other disposal options.
PART 102–76—DESIGN AND
CONSTRUCTION
Subpart A—General Provisions
Sec.
102–76.5 What is the scope of this part?
102–76.10 What basic design and construction policy governs Federal agencies?
Subpart B—Design and Construction
102–76.15 What are design and construction
services?
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§ 102–76.5
41 CFR Ch. 102 (7–1–16 Edition)
102–76.20 What issues must Federal agencies
consider in providing site planning and
landscape design services?
102–76.25 What standards must Federal
agencies meet in providing architectural
and interior design services?
102–76.30 What seismic safety standards
must Federal agencies follow in the design and construction of Federal facilities?
under 40 U.S.C. 581 and 583); 42 U.S.C. 4152;
E.O. 12411, 48 FR 13391, 3 CFR, 1983 Comp., p.
155; E.O. 12512, 50 FR 18453, 3 CFR, 1985
Comp., p. 340.
SOURCE: 70 FR 67845, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–76.5
part?
NATIONAL ENVIRONMENTAL POLICY ACT OF
1969
102–76.35 What is the purpose of the National Environmental Policy Act of 1969,
as amended (NEPA)?
102–76.40 To which real property actions
does NEPA apply?
102–76.45 What procedures must Federal
agencies follow to implement the requirements of NEPA?
SUSTAINABLE DEVELOPMENT
102–76.50 What is sustainable development?
102–76.55 What
sustainable
development
principles must Federal agencies apply
to the siting, design, and construction of
new facilities?
Subpart C—Architectural Barriers Act
102–76.60 To which facilities does the Architectural Barriers Act Apply?
102–76.65 What standards must facilities
subject to the Architectural Barriers Act
meet?
102–76.70 When are the costs of alterations
to provide an accessible path of travel to
an altered area containing a primary
function disproportionate to the costs of
the overall alterations for facilities subject to the standards in § 102–76.65(a)?
102–76.75 What costs are included in the
costs of alterations to provide an accessible path of travel to an altered area
containing a primary function for facilities subject to the standards in § 102–
76.65(a)?
102–76.80 What is required if the costs of alterations to provide an accessible path of
travel to an altered area containing a
primary function are disproportionate to
the costs of the overall alterations for facilities subject to the standards in § 102–
76.65(a)?
102–76.85 What is a primary function area
for purposes of providing an accessible
route in leased facilities subject to the
standards in § 102–76.65(a)?
102–76.90 Who has the authority to waive or
modify the standards in § 102–76.65(a)?
102–76.95 What recordkeeping responsibilities do Federal agencies have?
AUTHORITY: 40 U.S.C. 121(c) (in furtherance
of the Administrator’s authorities under 40
U.S.C. 3301–3315 and elsewhere as included
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services. The accessibility standards in subpart C of this
part apply to Federal agencies and
other entities whose facilities are subject to the Architectural Barriers Act.
[70 FR 67845, Nov. 8, 2005, as amended at 72
FR 5943, Feb. 8, 2007]
§ 102–76.10 What basic design and construction policy governs Federal
agencies?
Federal agencies, upon approval from
GSA, are bound by the following basic
design and construction policies:
(a) Provide the highest quality services for designing and constructing new
Federal facilities and for repairing and
altering existing Federal facilities.
These services must be timely, efficient, and cost effective.
(b) Use a distinguished architectural
style and form in Federal facilities
that reflects the dignity, enterprise,
vigor and stability of the Federal Government.
(c) Follow nationally recognized
model building codes and other applicable nationally recognized codes that
govern Federal construction to the
maximum extent feasible and consider
local building code requirements. (See
40 U.S.C. 3310 and 3312.)
(d) Design Federal buildings to have
a long life expectancy and accommodate periodic changes due to renovations.
(e) Make buildings cost effective, energy efficient, and accessible to and usable by the physically disabled.
(f) Provide for building service equipment that is accessible for maintenance, repair, or replacement without
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Federal Management Regulation
§ 102–76.35
significantly
disturbing
occupied
space.
(g) Consider ease of operation when
selecting mechanical and electrical
equipment.
(h) Agencies must follow the prospectus submission and approval policy
identified in §§ 102–73.35 and 102–73.40 of
this chapter.
(g) Consider the vulnerability of the
facility as well as the security needs of
the occupying agencies, consistent
with the Interagency Security Committee standards and guidelines.
Subpart B—Design and
Construction
Federal agencies must design distinctive and high quality Federal facilities
that meet all of the following standards:
(a) Reflect the local architecture in
buildings through the use of building
form, materials, colors, or detail. Express a quality of permanence in the
building interior similar to the building exterior.
(b) Provide individuals with disabilities ready access to, and use of, the facilities in accordance with the standards in § 102–76.65.
(c) Use metric specifications in construction where the metric system is
the accepted industry standard, and to
the extent that such usage is economically feasible and practical.
(d) Provide for the design of security
systems to protect Federal workers
and visitors and to safeguard facilities
against criminal activity and/or terrorist activity. Security design must
support the continuity of Government
operations during civil disturbances,
natural disasters and other emergency
situations.
(e) Design and construct facilities
that meet or exceed the energy performance standards applicable to Federal buildings in 10 CFR part 435.
§ 102–76.15 What are design and construction services?
Design and construction services
are—
(a) Site planning and landscape design;
(b) Architectural and interior design;
and
(c) Engineering systems design.
§ 102–76.20 What issues must Federal
agencies consider in providing site
planning and landscape design
services?
In providing site planning and design
services, Federal agencies must—
(a) Make the site planning and landscape design a direct extension of the
building design;
(b) Make a positive contribution to
the surrounding landscape;
(c) Consider requirements (other than
procedural requirements) of local zoning laws and laws relating to setbacks,
height, historic preservation, and aesthetic qualities of a building;
(d) Identify areas for future building
expansion in the architectural and site
design concept for all buildings where
an expansion need is identified to exist;
(e) Create a landscape design that is
a pleasant, dynamic experience for occupants and visitors to Federal facilities and, where appropriate, encourage
public access to and stimulate pedestrian traffic around the facilities. Coordinate the landscape design with the
architectural characteristics of the
building;
(f) Comply with the requirements of
the National Environmental Policy Act
of 1969, as amended, 42 U.S.C. 4321 et
seq., and the National Historic Preservation Act of 1966, as amended, 16
U.S.C. 470 et seq., for each project; and
§ 102–76.25 What standards must Federal agencies meet in providing architectural and interior design
services?
§ 102–76.30 What seismic safety standards must Federal agencies follow
in the design and construction of
Federal facilities?
Federal agencies must follow the
seismic safety standards identified in
§ 102–80.45 of this chapter.
NATIONAL ENVIRONMENTAL POLICY ACT
OF 1969
§ 102–76.35 What is the purpose of the
National Environmental Policy Act
of 1969, as amended (NEPA)?
The purpose of NEPA is to—
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§ 102–76.40
41 CFR Ch. 102 (7–1–16 Edition)
(a) Declare a national policy which
will encourage productive and enjoyable harmony between man and his environment;
(b) Promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate
the health and welfare of man;
(c) Enrich the understanding of the
ecological systems and natural resources important to the Nation; and
(d) Establish a Council on Environmental Quality (CEQ).
§ 102–76.40 To which real property actions does NEPA apply?
NEPA applies to actions that may
have an impact on the quality of the
human environment, including leasing,
acquiring, developing, managing and
disposing of real property.
§ 102–76.45 What procedures must Federal agencies follow to implement
the requirements of NEPA?
Federal agencies must follow the procedures identified in the Council on
Environmental Quality’s NEPA implementing regulations, 40 CFR 1500–1508.
In addition, Federal agencies must follow the standards that they have promulgated to implement CEQ’s regulations.
SUSTAINABLE DEVELOPMENT
§ 102–76.50 What is sustainable development?
Sustainable development means integrating the decision-making process
across the organization, so that every
decision is made to promote the greatest long-term benefits. It means eliminating the concept of waste and building on natural processes and energy
flows and cycles; and recognizing the
interrelationship of our actions with
the natural world.
§ 102–76.55 What sustainable development principles must Federal agencies apply to the siting, design, and
construction of new facilities?
In keeping with the objectives of Executive Order 13123, ‘‘Greening of the
Government Through Efficient Energy
Management,’’ and Executive Order
13101, ‘‘Greening of the Government
Through Waste Prevention, Recycling,
and Federal Acquisition,’’ Federal
agencies must apply sustainable development principles to the siting, design,
and construction of new facilities,
which include—
(a) Optimizing site potential;
(b) Minimizing non-renewable energy
consumption;
(c) Using environmentally preferable
products;
(d) Protecting and conserving water;
(e) Enhancing indoor environmental
quality; and
(f) Optimizing operational and maintenance practices.
Subpart C—Architectural Barriers
Act
§ 102–76.60 To which facilities does the
Architectural Barriers Act apply?
(a) The Architectural Barriers Act
applies to any facility that is intended
for use by the public or that may result
in the employment or residence therein
of individuals with disabilities, which
is to be—
(1) Constructed or altered by, or on
behalf of, the United States;
(2) Leased in whole or in part by the
United States;
(3) Financed in whole or in part by a
grant or loan made by the United
States, if the building or facility is
subject to standards for design, construction, or alteration issued under
the authority of the law authorizing
such a grant or loan; or
(4) Constructed under the authority
of the National Capital Transportation
Act of 1960, the National Capital Transportation Act of 1965, or Title III of the
Washington Metropolitan Area Transit
Regulation Compact.
(b) The Architectural Barriers Act
does not apply to any privately owned
residential facility unless leased by the
Government for subsidized housing programs, and any facility on a military
reservation designed and constructed
primarily for use by able bodied military personnel.
§ 102–76.65 What standards must facilities subject to the Architectural
Barriers Act meet?
(a) GSA adopts Appendices C and D
to 36 CFR part 1191 (ABA Chapters 1
and 2, and Chapters 3 through 10) as the
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Federal Management Regulation
§ 102–76.75
Architectural Barriers Act Accessibility Standard (ABAAS). Facilities
subject to the Architectural Barriers
Act (other than facilities described in
paragraphs (b) and (c) of this section)
must comply with ABAAS as set forth
below:
(1) For construction or alteration of
facilities subject to the Architectural
Barriers Act (other than Federal leaseconstruction and other lease actions
described in paragraphs (a)(2) and (3),
respectively, of this section), compliance with ABAAS is required if the
construction or alteration commenced
after May 8, 2006. If the construction or
alteration of such a facility commenced on or before May 8, 2006, compliance with the Uniform Federal Accessibility Standards (UFAS) is required.
(2) For Federal lease-construction actions subject to the Architectural Barriers Act, where the Government expressly requires new construction to
meet its needs, compliance with
ABAAS is required for all such leases
awarded on or after June 30, 2006.
UFAS compliance is required for all
such leases awarded before June 30,
2006.
(3) For all other lease actions subject
to the Architectural Barriers Act
(other than those described in paragraph (a)(2) of this section), compliance
with ABAAS is required for all such
leases awarded pursuant to solicitations issued after February 6, 2007.
UFAS compliance is required for all
such leases awarded pursuant to solicitations issued on or before February 6,
2007.
(b) Residential facilities subject to
the Architectural Barriers Act must
meet the standards prescribed by the
Department of Housing and Urban Development.
(c) Department of Defense and United
States Postal Service facilities subject
to the Architectural Barriers Act must
meet the standards prescribed by those
agencies.
[70 FR 67845, Nov. 8, 2005, as amended at 71
FR 52499, Sept. 6, 2006; 72 FR 5943, Feb. 8,
2007]
§ 102–76.70 When are the costs of alterations to provide an accessible path
of travel to an altered area containing a primary function disproportionate to the costs of the
overall alterations for facilities subject to the standards in § 102–
76.65(a)?
For facilities subject to the standards in § 102–76.65(a), the costs of alterations to provide an accessible path of
travel to an altered area containing a
primary function are disproportionate
to the costs of the overall alterations
when they exceed 20 percent of the
costs of the alterations to the primary
function area. If a series of small alterations are made to areas containing a
primary function and the costs of any
of the alterations considered individually would not result in providing an
accessible path of travel to the altered
areas, the total costs of the alterations
made within the three year period after
the initial alteration must be considered when determining whether the
costs of alterations to provide an accessible path of travel to the altered
areas are disproportionate. Facilities
for which new leases are entered into
must comply with F202.6 of the Architectural Barriers Act Accessibility
Standard without regard to whether
the costs of alterations to comply with
F202.6 are disproportionate to the costs
of the overall alterations.
§ 102–76.75 What costs are included in
the costs of alterations to provide
an accessible path of travel to an altered area containing a primary
function for facilities subject to the
standards in § 102–76.65(a)?
For facilities subject to the standards in § 102–76.65(a), the costs of alterations to provide an accessible path of
travel to an altered area containing a
primary function include the costs associated with—
(a) Providing an accessible route to
connect the altered area and site arrival points, including but not limited
to interior and exterior ramps, elevators and lifts, and curb ramps;
(b) Making entrances serving the altered area accessible, including but not
limited to widening doorways and installing accessible hardware;
(c) Making restrooms serving the altered area accessible, including, but
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§ 102–76.80
41 CFR Ch. 102 (7–1–16 Edition)
not limited to, enlarging toilet stalls,
installing grab bars and accessible faucet controls, and insulating pipes under
lavatories;
(d) Making public telephones serving
the altered area accessible, including,
but not limited to, placing telephones
at an accessible height, and installing
amplification devices and TTYs;
(e) Making drinking fountains serving the altered area accessible; and
(f) Making parking spaces serving the
altered area accessible.
§ 102–76.80 What is required if the
costs of alterations to provide an
accessible path of travel to an altered area containing a primary
function are disproportionate to the
costs of the overall alterations for
facilities subject to the standards in
§ 102–76.65(a)?
For facilities subject to the standards in § 102–76.65(a), if the costs of alterations to provide an accessible path
of travel to an altered area containing
a primary function are disproportionate to the costs of the overall alterations, the path of travel must be
made accessible to the extent possible
without exceeding 20 percent of the
costs of the alterations to the primary
function area. Priority should be given
to those elements that will provide the
greatest access in the following order:
(a) An accessible route and an accessible entrance;
(b) At least one accessible restroom
for each sex or a single unisex restroom;
(c) Accessible telephones;
(d) Accessible drinking fountains;
and
(e) Accessible parking spaces.
§ 102–76.85 What is a primary function
area for purposes of providing an
accessible route in leased facilities
subject to the standards in § 102–
76.65(a)?
For purposes of providing an accessible route in leased facilities subject
to the standards in § 102–76.65(a), a primary function area is an area that contains a major activity for which the
leased facility is intended. Primary
function areas include areas where
services are provided to customers or
the public, and offices and other work
areas in which the activities of the
Federal agency using the leased facility are carried out.
§ 102–76.90 Who has the authority to
waive or modify the standards in
§ 102–76.65(a)?
The Administrator of General Services has the authority to waive or modify the standards in § 102–76.65(a) on a
case-by-case basis if the agency head or
GSA department head submits a request for waiver or modification and
the Administrator determines that the
waiver or modification is clearly necessary.
§ 102–76.95 What recordkeeping responsibilities do Federal agencies
have?
(a) The head of each Federal agency
must ensure that documentation is
maintained on each contract, grant or
loan for the design, construction or alteration of a facility and on each lease
for a facility subject to the standards
in § 102–76.65(a) containing one of the
following statements:
(1) The standards have been or will be
incorporated in the design, the construction or the alteration.
(2) The grant or loan has been or will
be made subject to a requirement that
the standards will be incorporated in
the design, the construction or the alteration.
(3) The leased facility meets the
standards, or has been or will be altered to meet the standards.
(4) The standards have been waived
or modified by the Administrator of
General Services, and a copy of the
waiver or modification is included with
the statement.
(b) If a determination is made that a
facility is not subject to the standards
in § 102–76.65(a) because the Architectural Barriers Act does not apply to
the facility, the head of the Federal
agency must ensure that documentation is maintained to justify the determination.
PART 102–77—ART-INARCHITECTURE
Subpart A—General Provisions
Sec.
102–77.5
What is the scope of this part?
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Federal Management Regulation
Pt. 102–78
102–77.10 What basic Art-in-Architecture
policy governs Federal agencies?
termined by the Administrator of General Services.
Subpart B—Art-in-Architecture
§ 102–77.20 With whom should Federal
agencies collaborate with when
commissioning and selecting art for
Federal buildings?
To the maximum extent practicable,
Federal agencies should seek the support and involvement of local citizens
in selecting appropriate artwork. Federal agencies should collaborate with
the artist and community to produce
works of art that reflect the cultural,
intellectual, and historic interests and
values of a community. In addition,
Federal agencies should work collaboratively with the architect of the
building and art professionals, when
commissioning and selecting art for
Federal buildings. Federal agencies
should commission artwork that is diverse in style and media.
102–77.15 Who funds the Art-in-Architecture
efforts?
102–77.20 With whom should Federal agencies collaborate when commissioning and
selecting art for Federal buildings?
102–77.25 Do Federal agencies have responsibilities to provide national visibility
for Art-in-Architecture?
AUTHORITY: 40 U.S.C. 121 and 3306.
SOURCE: 70 FR 67847, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–77.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–77.10 What basic Art-in-Architecture policy governs Federal agencies?
Federal agencies must incorporate
fine arts as an integral part of the
total building concept when designing
new Federal buildings, and when making substantial repairs and alterations
to existing Federal buildings, as appropriate. The selected fine arts, including
painting, sculpture, and artistic work
in other media, must reflect the national cultural heritage and emphasize
the work of living American artists.
Subpart B—Art-in-Architecture
§ 102–77.15 Who funds the Art-in-Architecture efforts?
To the extent not prohibited by law,
Federal agencies must fund the Art-inArchitecture efforts by allocating a
portion of the estimated cost of constructing or purchasing new Federal
buildings, or of completing major repairs and alterations of existing buildings. Funding for qualifying projects,
including new construction, building
purchases, other building acquisition,
or prospectus-level repair and alteration projects, must be in a range de-
§ 102–77.25 Do Federal agencies have
responsibilities to provide national
visibility for Art-in-Architecture?
Yes, Federal agencies should provide
Art-in-Architecture that receives appropriate national and local visibility
to facilitate participation by a large
and diverse group of artists representing a wide variety of types of
artwork.
PART 102–78—HISTORIC
PRESERVATION
Subpart A—General Provisions
Sec.
102–78.5 What is the scope of this part?
102–78.10 What basic historic preservation
policy governs Federal agencies?
Subpart B—Historic Preservation
102–78.15 What are historic properties?
102–78.20 Are Federal agencies required to
identify historic properties?
102–78.25 What is an undertaking?
102–78.30 Who are consulting parties?
102–78.35 Are Federal agencies required to
involve consulting parties in their historic preservation activities?
102–78.40 What responsibilities do Federal
agencies have when an undertaking adversely affects an historic or cultural
property?
102–78.45 What are Federal agencies’ responsibilities concerning nomination of properties to the National Register?
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§ 102–78.5
41 CFR Ch. 102 (7–1–16 Edition)
102–78.50 What historic preservation services must Federal agencies provide?
102–78.55 For which properties must Federal
agencies provide historic preservation
services?
102–78.60 When leasing space, are Federal
agencies able to give preference to space
in historic properties or districts?
102–78.65 What are Federal agencies’ historic preservation responsibilities when
disposing of real property under their
control?
102–78.70 What are an agency’s historic preservation responsibilities when disposing
of another Federal agency’s real property?
AUTHORITY: 16 U.S.C. 470h–2; 40 U.S.C. 121(c)
and 581.
SOURCE: 70 FR 67848, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–78.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services. The policies
in this part are in furtherance of GSA’s
preservation program under section 110
of the National Historic Preservation
Act of 1966, as amended (16 U.S.C. 470)
and apply to properties under the jurisdiction or control of the Administrator
and to any Federal agencies operating,
maintaining or protecting such properties under a delegation of authority
from the Administrator.
§ 102–78.10 What basic historic preservation policy governs Federal agencies?
To protect, enhance and preserve historic and cultural property under their
control, Federal agencies must consider the effects of their undertakings
on historic and cultural properties and
give the Advisory Council on Historic
Preservation (Advisory Council), the
State Historic Preservation Officer
(SHPO), and other consulting parties a
reasonable opportunity to comment regarding the proposed undertakings.
Subpart B—Historic Preservation
§ 102–78.15 What are historic properties?
Historic properties are those that are
included in, or eligible for inclusion in,
the National Register of Historic
Places (National Register) as more specifically defined at 36 CFR 800.16.
§ 102–78.20 Are Federal agencies required to identify historic properties?
Yes, Federal agencies must identify
all National Register or National Register-eligible historic properties under
their control. In addition, Federal
agencies must apply National Register
Criteria (36 CFR part 63) to properties
that have not been previously evaluated for National Register eligibility
and that may be affected by the undertakings of Federally sponsored activities.
§ 102–78.25 What is an undertaking?
The term undertaking means a
project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal agency,
including those—
(a) Carried out by or on behalf of the
agency;
(b) Carried out with Federal financial
assistance; or
(c) Requiring a Federal permit, license, or approval.
§ 102–78.30 Who are consulting parties?
As more particularly described in 36
CFR 800.2(c), consulting parties are
those parties having consultative roles
in the Section 106 process (i.e., Section
106 of the National Historic Preservation Act), which requires Federal agencies to take into account the effects of
their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such
undertakings. Specifically, consulting
parties include the State Historic Preservation Officer; the Tribal Historic
Preservation Officer; Indian tribes and
Native Hawaiian organizations; representatives of local governments; applicants for Federal assistance, permits, licenses, and other approvals;
other individuals and organizations
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Federal Management Regulation
§ 102–78.65
with a demonstrated interest in the undertaking; and the Advisory Council (if
it elects to participate in the consultation).
§ 102–78.35 Are Federal agencies required to involve consulting parties
in their historic preservation activities?
Yes, Federal agencies must solicit information from consulting parties to
carry out their responsibilities under
historic and cultural preservation laws
and regulations. Federal agencies must
invite the participation of consulting
parties through their normal public notification processes.
§ 102–78.40 What responsibilities do
Federal agencies have when an undertaking adversely affects a historic or cultural property?
Federal agencies must not perform
an undertaking that could alter, destroy, or modify an historic or cultural
property until they have consulted
with the SHPO and the Advisory Council. Federal agencies must minimize all
adverse impacts of their undertakings
on historic or cultural properties to
the extent that it is feasible and prudent to do so. Federal agencies must
follow the specific guidance on the protection of historic and cultural properties in 36 CFR part 800.
§ 102–78.45 What are Federal agencies’
responsibilities concerning nomination of properties to the National
Register?
Federal agencies must nominate to
the National Register all properties
under their control determined eligible
for inclusion in the National Register.
§ 102–78.50 What historic preservation
services must Federal agencies provide?
Federal agencies must provide the
following historic preservation services:
(a) Prepare a Historic Building Preservation Plan for each National Register or National Register-eligible
property under their control. When approved by consulting parties, such
plans become a binding management
plan for the property.
(b) Investigate for historic and cultural factors all proposed sites for direct and leased construction.
§ 102–78.55 For which properties must
Federal agencies assume historic
preservation responsibilities?
Federal agencies must assume historic preservation responsibilities for
real property assets under their custody and control. Federal agencies occupying space in buildings under the
custody and control of other Federal
agencies must obtain approval from
the agency having custody and control
of the building.
§ 102–78.60 When leasing space, are
Federal agencies able to give preference to space in historic properties or districts?
Yes, Executive Order 13006 requires
Federal agencies that have a mission
requirement to locate in an urban area
to give first consideration to space in
historic buildings and districts inside
central business areas. Agencies may
give a price preference of up to 10 percent to space in historic buildings and
districts, in accordance with §§ 102–
73.120 and 102–73.125 of this chapter.
§ 102–78.65 What are Federal agencies’
historic preservation responsibilities when disposing of real property under their control?
Federal agencies must—
(a) To the extent practicable, establish and implement alternatives for
historic properties, including adaptive
use, that are not needed for current or
projected agency purposes. Agencies
are required to get the Secretary of the
Interior’s approval of the plans of
transferees of surplus Federally-owned
historic properties; and
(b) Review all proposed excess actions to identify any properties listed
in or eligible for listing in the National
Register. Federal agencies must not
perform disposal actions that could result in the alteration, destruction, or
modification of an historic or cultural
property until Federal agencies have
consulted with the SHPO and the Advisory Council.
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§ 102–78.70
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–78.70 What are an agency’s historic preservation responsibilities
when disposing of another Federal
agency’s real property?
Federal agencies must not accept
property declared excess by another
Federal agency nor act as an agent for
transfer or sale of such properties until
the holding agency provides evidence
that the Federal agency has met its
National Historic Preservation Act responsibilities.
PART 102–79—ASSIGNMENT AND
UTILIZATION OF SPACE
Subpart A—General Provisions
Sec.
102–79.5 What is the scope of this part?
102–79.10 What basic assignment and utilization of space policy governs an Executive
agency?
Subpart B—Assignment and Utilization of
Space
102–79.15 What objectives must an Executive
agency strive to meet in providing assignment and utilization of space services?
ASSIGNMENT OF SPACE
102–79.20 What standard must Executive
agencies promote when assigning space?
CHILD CARE
102–79.25 May Federal agencies allot space
in Federal buildings for the provision of
child care services?
102–79.55 Is there a general hierarchy of consideration that agencies must follow in
their utilization of space?
102–79.60 Are agencies required to use historic properties available to the agency?
OUTLEASING
102–79.65 May Executive agencies outlease
space on major public access levels,
courtyards and rooftops of public buildings?
SITING ANTENNAS ON FEDERAL PROPERTY
102–79.70 May Executive agencies assess fees
against other Executive agencies for antenna placements and supporting services?
102–79.75 May Executive agencies assess fees
for antenna placements against public
service organizations for antenna site
outleases on major pedestrian access levels, courtyards, and rooftops of public
buildings?
102–79.80 May Executive agencies assess fees
for antenna placements against telecommunication service providers for antenna site outleases on major pedestrian
access levels, courtyards, and rooftops of
public buildings?
102–79.85 What policy must Executive agencies follow concerning the placement of
commercial antennas on Federal property?
102–79.90 What criteria must Executive
agencies consider when evaluating antenna siting requests?
102–79.95 Who is responsible for the costs associated with providing access to antenna sites?
102–79.100 What must Federal agencies do
with antenna siting fees that they collect?
INTEGRATED WORKPLACE
FITNESS CENTERS
102–79.30 May Federal agencies allot space
in Federal buildings for establishing fitness centers?
102–79.35 What elements must Federal agencies address in their planning effort for
establishing fitness programs?
FEDERAL CREDIT UNIONS
102–79.105 What is the Integrated Workplace?
102–79.110 What Integrated Workplace policy must Federal agencies strive to promote?
102–79.111 Where may Executive agencies
find additional information on Integrated Workplace concepts?
PUBLIC ACCESS DEFIBRILLATION PROGRAMS
102–79.40 Can Federal agencies allot space in
Federal buildings to Federal credit
unions?
102–79.45 What type of services may Federal
agencies provide without charge to Federal credit unions?
102–79.115 What guidelines must an agency
follow if it elects to establish a public access defibrillation program in a Federal
facility?
UTILIZATION OF SPACE
AUTHORITY: 40 U.S.C. 121(c); E.O. 12411, 48
FR 13391, 3 CFR, 1983 Comp., p. 155; and E.O.
12512, 50 FR 18453, 3 CFR, 1985 Comp., p. 340.
102–79.50 What standard must Executive
agencies promote in their utilization of
space?
SOURCE: 70 FR 67849, Nov. 8, 2005, unless
otherwise noted.
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Federal Management Regulation
§ 102–79.35
CHILD CARE
Subpart A—General Provisions
§ 102–79.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–79.10 What basic assignment and
utilization of space policy governs
an Executive agency?
Executive agencies must provide a
quality workplace environment that
supports program operations, preserves
the value of real property assets, meets
the needs of the occupant agencies, and
provides child care and physical fitness
facilities in the workplace when adequately justified. An Executive agency
must promote maximum utilization of
Federal workspace, consistent with
mission requirements, to maximize its
value to the Government.
§ 102–79.25 May Federal agencies allot
space in Federal buildings for the
provision of child care services?
Yes, in accordance with 40 U.S.C. 590,
Federal agencies can allot space in
Federal buildings to individuals or entities who will provide child care services to Federal employees if such—
(a) Space is available;
(b) Agency determines that such
space will be used to provide child care
services to children of whom at least 50
percent have one parent or guardian
who is a Federal Government employee; and
(c) Agency determines that such individual or entity will give priority for
available child care services in such
space to Federal employees.
FITNESS CENTERS
§ 102–79.30 May Federal agencies allot
space in Federal buildings for establishing fitness centers?
Yes, in accordance with 5 U.S.C. 7901,
Federal agencies can allot space in
Federal buildings for establishing fitness programs.
Subpart B—Assignment and
Utilization of Space
§ 102–79.15 What objectives must an
Executive agency strive to meet in
providing assignment and utilization of space services?
Executive agencies must provide assignment and utilization services that
will maximize the value of Federal real
property resources and improve the
productivity of the workers housed
therein.
ASSIGNMENT OF SPACE
§ 102–79.20 What standard must Executive agencies promote when assigning space?
Executive agencies must promote the
optimum use of space for each assignment at an economical cost to the Government, provide quality workspace
that is delivered and occupied in a
timely manner, and assign space based
on mission requirements.
§ 102–79.35 What elements must Federal agencies address in their planning effort for establishing fitness
programs?
Federal agencies must address the
following elements in their planning
effort for establishing fitness programs:
(a) A survey indicating employee interest in the program.
(b) A three-to five-year implementation plan demonstrating long-term
commitment to physical fitness/health
for employees.
(c) A health related orientation, including screening procedures, individualized exercise programs, identification of high-risk individuals, and appropriate follow-up activities.
(d) Identification of a person skilled
in prescribing exercise to direct the fitness program.
(e) An approach that will consider
key health behavior related to degenerative disease, including smoking and
nutrition.
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§ 102–79.40
41 CFR Ch. 102 (7–1–16 Edition)
(f) A modest facility that includes
only the essentials necessary to conduct a program involving cardiovascular and muscular endurance,
strength activities, and flexibility.
(g) Provision for equal opportunities
for men and women, and all employees,
regardless of grade level.
FEDERAL CREDIT UNIONS
§ 102–79.40 Can Federal agencies allot
space in Federal buildings to Federal credit unions?
Yes, in accordance with 12 U.S.C.
1770, Federal agencies may allot space
in Federal buildings to Federal credit
unions without charge for rent or services if—
(a) At least 95 percent of the membership of the credit union to be served by
the allotment of space is composed of
persons who either are presently Federal employees or were Federal employees at the time of admission into
the credit union, and members of their
families; and
(b) Space is available.
§ 102–79.45 What type of services may
Federal agencies provide without
charge to Federal credit unions?
Federal agencies may provide without charge to Federal credit union
services such as—
(a) Lighting;
(b) Heating and cooling;
(c) Electricity;
(d) Office furniture;
(e) Office machines and equipment;
(f) Telephone service (including installation of lines and equipment and
other expenses associated with telephone service); and
(g) Security systems (including installation and other expenses associated with security systems).
UTILIZATION OF SPACE
§ 102–79.50 What standard must Executive agencies promote in their utilization of space?
Executive agencies, when acquiring
or utilizing Federally owned or leased
space under Title 40 of the United
States Code, must promote efficient
utilization of space. Where there is no
Federal agency space need, Executive
agencies must make every effort to
maximize the productive use of vacant
space through the issuance of permits,
licenses or leases to non-Federal entities to the extent authorized by law.
(For vacant property determined excess to agency needs, refer to part 10275, Real Property Disposal.)
§ 102–79.55 Is there a general hierarchy of consideration that agencies must follow in their utilization
of space?
Yes, Federal agencies must—
(a) First utilize space in Governmentowned and Government-leased buildings; and
(b) If there is no suitable space in
Government-owned and Governmentleased buildings, utilize space in buildings under the custody and control of
the U.S. Postal Service; and
(c) If there is no suitable space in
buildings under the custody and control of the U.S. Postal Service, agencies may acquire real estate by lease,
purchase, or construction, as specified
in part 102–73 of this chapter.
§ 102–79.60 Are agencies required to
use historic properties available to
the agency?
Yes, Federal agencies must assume
responsibility for the preservation of
the historic properties they own or
control. Prior to acquiring, constructing or leasing buildings, agencies
must use, to the maximum extent feasible, historic properties already owned
or leased by the agency (16 U.S.C. 470h–
2).
OUTLEASING
§ 102–79.65 May Executive agencies
outlease space on major public access levels, courtyards and rooftops
of public buildings?
Yes. Authority to execute such
outleases may be delegated by the Administrator based on authorities provided by the Public Buildings Cooperative Use Act (40 U.S.C. § 581(h)), the
proceeds of which are to be deposited
into GSA’s Federal Buildings Fund.
Using such authority, Executive agencies, upon approval from GSA, may—
(a) Enter into leases of space on
major public access levels, courtyards
and rooftops of any public building
with persons, firms, or organizations
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Federal Management Regulation
§ 102–79.85
engaged in commercial, cultural, educational, or recreational activities (as
defined in 40 U.S.C. 3306);
(b) Establish rental rates for such
leased space equivalent to the prevailing commercial rate for comparable space devoted to a similar purpose in the vicinity of the building; and
(c) Use leases that contain terms and
conditions that the Administrator
deems necessary to promote competition and protect the public interest.
SITING ANTENNAS ON FEDERAL
PROPERTY
§ 102–79.70 May Executive agencies assess fees against other Executive
agencies for antenna placements
and supporting services?
Yes. Executive agencies, upon approval from GSA, may assess fees for
placement of antennas and supporting
services against other agencies (that
own these antennas) under 40 U.S.C.
586(c) and 40 U.S.C. 121(e). Unless a differing rate has been approved by the
Administrator, such fees or charges
must approximate commercial charges
for comparable space and services (i.e.,
market rates). The proceeds from such
charges or fees must be credited to the
appropriation or fund initially charged
for providing the space or services. Any
amounts in excess of actual operating
and maintenance costs must be credited to miscellaneous receipts unless
otherwise provided by law. The charges
or fees assessed by the Administrator
for the placement of antennas and supporting services in GSA-controlled
space are generally credited to GSA’s
Federal Buildings Fund.
§ 102–79.75 May Executive agencies assess fees for antenna placements
against public service organizations
for antenna site outleases on major
pedestrian access levels, courtyards, and rooftops of public buildings?
Yes. Executive agencies in GSA-controlled space, upon approval from GSA,
may assess fees for antenna placements
against public service organizations
under 40 U.S.C. 581(h) and 40 U.S.C.
121(e). Such fees or rental rates must
be equivalent to the prevailing commercial rate for comparable space devoted to commercial antenna place-
ments in the vicinity of the public
building and the proceeds from such
charges or fees must be credited to
GSA’s Federal Buildings Fund.
§ 102–79.80 May Executive agencies assess fees for antenna placements
against telecommunication service
providers for antenna site outleases
on major pedestrian access levels,
courtyards, and rooftops of public
buildings?
Yes. GSA, or other Executive agencies, upon approval from GSA, may
charge fees based on market value to
telecommunication service providers
for antenna placements in public buildings. Market value should be equivalent to the prevailing commercial rate
for comparable space for commercial
antenna placements in the vicinity of
the public building. Such fees must be
credited to GSA’s Federal Buildings
Fund.
§ 102–79.85 What policy must Executive agencies follow concerning the
placement of commercial antennas
on Federal property?
Executive agencies will make antenna sites available on a fair, reasonable, and nondiscriminatory basis. Collocation of antennas should be encouraged where there are multiple antenna
siting requests for the same location.
In cases where this is not feasible and
space availability precludes accommodating all antenna siting applicants,
competitive procedures may be used.
This should be done in accordance with
applicable Federal, State and local
laws and regulations, and consistent
with national security concerns. In
making antenna sites available, agencies must avoid electromagnetic intermodulations and interferences. To the
maximum extent practicable, when
placing antennas for the provision of
telecommunication services to the
Federal Government, agencies should
use redundant and physically separate
entry points into the building and
physically diverse local network facilities in accordance with guidance issued
by the Office of Management and Budget.
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§ 102–79.90
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–79.90 What criteria must Executive agencies consider when evaluating antenna siting requests?
When evaluating antenna siting requests, Executive agencies must consider issues such as—
(a) Public health and safety with respect to the antenna installation and
maintenance;
(b) Aesthetics;
(c) Effects on historic districts, sites,
buildings, monuments, structures, or
other objects pursuant to the National
Historic Preservation Act of 1966, as
amended, and implementing regulations;
(d) Protection of natural and cultural
resources (e.g., National Parks and
Wilderness areas, National Wildlife
Refuge systems);
(e) Compliance with the appropriate
level of review and documentation as
necessary under the National Environmental Policy Act of 1969, as amended,
and implementing regulations of each
Federal department and agency responsible for the antenna siting project,
and the Federal Aviation Administration, the National Telecommunications
and Information Administration, and
other relevant departments and agencies;
(f) Compliance with the Federal Communications
Commission’s
(FCC)
guidelines for radiofrequency exposure,
ET Docket No. 93–62, entitled ‘‘Guidelines for Evaluating the Environmental
Effects of Radiofrequency Radiation,’’
issued August 1, 1996, and any other
order on reconsideration relating to radiofrequency guidelines and their enforcement. These are updated guidelines for meeting health concerns that
reflect the latest scientific knowledge
in this area, and are supported by Federal health and safety agencies such as
the Environmental Protection Agency
and the Food and Drug Administration;
and
(g) Any requirements of the Federal
agency managing the facility, FCC,
Federal Aviation Administration, National Telecommunications and Information Administration, and other relevant departments and agencies. To
the maximum extent practicable, when
placing antennas for the provision of
telecommunication services to the
Federal Government, agencies should
use redundant and physically separate
entry points into the building and
physically diverse local network facilities in accordance with guidance issued
by the Office of Management and Budget. In addition, the National Capital
Planning Commission should be consulted for siting requests within the
Washington, D.C. metropolitan area.
§ 102–79.95 Who is responsible for the
costs associated with providing access to antenna sites?
The telecommunications service provider is responsible for any reasonable
costs to Federal agencies associated
with providing access to antenna sites,
including obtaining appropriate clearance of provider personnel for access to
buildings or land deemed to be security
sensitive as is done with service contractor personnel. OMB Circular A–25,
entitled ‘‘User Charges,’’ revised July
8, 1993, provides guidelines that agencies should use to assess fees for Government services and for the sale or
use of Government property or resources. For antenna sites on non-GSA
property, see also the Department of
Commerce Report on ‘‘Improving
Rights-of-Way
Management
Across
Federal Lands: A Roadmap for Greater
Broadband Deployment’’ (April 2004)
beginning at page 26. Under 40 U.S.C.
1314, GSA is covered in granting easements and permits to support the installation of antennas and cabling
across raw land in support of constructing new and improving existing
telecommunication
infrastructures
provided that such installation does
not negatively impact on the Government.
§ 102–79.100 What must Federal agencies do with antenna siting fees
that they collect?
The account into which an antenna
siting fee is to be deposited depends on
the authority under which the antenna
site is made available and the fee assessed. For GSA-controlled property
outleased under 40 U.S.C. 581(h) or section 412 of Division H of public law 108–
447, the fee is to be deposited into
GSA’s Federal Building Fund. For surplus property outleased under 40 U.S.C.
543, the fee is to be deposited in accordance with the provisions of Subchapter
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IV of Chapter 5 of Subtitle I of Title 40
of the United States Code. For siting
fees collected under other statutory
authorities, the fees might be deposited
into miscellaneous receipts, an account
of the landholding agency, or as otherwise provided by law. Federal agencies
should consult with their agency’s
legal advisors before depositing antenna proceed from sites on agencycontrolled Federal property.
INTEGRATED WORKPLACE
§ 102–79.105 What is the Integrated
Workplace?
The Integrated Workplace, developed
by the GSA Office of Governmentwide
Policy, is a comprehensive, multidisciplinary approach to developing workspace and work strategies that best
support an organization’s strategic
business goals and work processes, and
have the flexibility to accommodate
the changing needs of the occupants
and the organization. Integrated Workplace concepts support the objectives
of Executive Order 13327, ‘‘Federal Real
Property Asset Management,’’ which
calls for the enhancement of Federal
agency productivity through an improved working environment.
§ 102–79.110 What Integrated Workplace policy must Federal agencies
strive to promote?
Federal agencies must strive to design work places that—
(a) Are developed using sustainable
development concepts (see § 102–76.55);
(b) Align with the organization’s mission and strategic plan;
(c) Serve the needs and work practices of the occupants;
(d) Can be quickly and inexpensively
adjusted by the user to maximize his or
her productivity and satisfaction;
(e) Are comfortable, efficient, and
technologically advanced and allow
people to accomplish their work in the
most efficient way;
(f) Meet the office’s needs and can
justify its cost through the benefits
gained;
(g) Are developed with an integrated
building systems approach;
(h) Are based on a life cycle cost
analysis that considers both facility
and human capital costs over a substantial time period; and
(i) Support alternative workplace arrangements, including telecommuting,
hoteling, virtual offices, and other distributive work arrangements (see part
102–74, subpart F—Telework).
§ 102–79.111 Where
may
Executive
agencies find additional information on Integrated Workplace concepts?
The GSA Office of Governmentwide
Policy provides additional guidance in
its publication entitled ‘‘Innovative
Workplace Strategies.’’
PUBLIC ACCESS DEFIBRILLATION
PROGRAMS
§ 102–79.115 What guidelines must an
agency follow if it elects to establish a public access defibrillation
program in a Federal facility?
Federal agencies electing to establish
a public access defibrillation program
in a Federal facility must follow the
guidelines, entitled ‘‘Guidelines for
Public Access Defibrillation Programs
in Federal Facilities,’’ which can be obtained from the Office of Governmentwide Policy, Office of Real Property
(MP), General Services Administration, 1800 F Street, NW, Washington,
DC 20405.
PART 102–80—SAFETY AND
ENVIRONMENTAL MANAGEMENT
Subpart A—General Provisions
Sec.
102–80.5 What is the scope of this part?
102–80.10 What are the basic safety and environmental management policies for real
property?
Subpart B—Safety and Environmental
Management
ASBESTOS
102–80.15 What are Federal agencies’ responsibilities concerning the assessment and
management of asbestos?
RADON
102–80.20 What are Federal agencies’ responsibilities concerning the abatement of
radon?
INDOOR AIR QUALITY
102–80.25 What are Federal agencies’ responsibilities concerning the management of
indoor air quality?
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§ 102–80.5
41 CFR Ch. 102 (7–1–16 Edition)
LEAD
102–80.30 What are Federal agencies’ responsibilities concerning lead?
102–80.95 Is the Fire Administration Authorization Act of 1992 applicable to all Federal agencies?
HAZARDOUS MATERIALS AND WASTES
AUTOMATIC SPRINKLER SYSTEMS
102–80.35 What are Federal agencies’ responsibilities concerning the monitoring of
hazardous materials and wastes?
102–80.100 What
performance
objective
should an automatic sprinkler system be
capable of meeting?
UNDERGROUND STORAGE TANKS
EQUIVALENT LEVEL OF SAFETY ANALYSIS
102–80.40 What are Federal agencies’ responsibilities concerning the management of
underground storage tanks?
102–80.105 What information must be included in an equivalent level of safety
analysis?
102–80.110 What must an equivalent level of
safety analysis indicate?
102–80.115 Is there more than one option for
establishing that an equivalent level of
safety exists?
102–80.120 What analytical and empirical
tools should be used to support the life
safety equivalency evaluation?
102–80.125 Who has the responsibility for determining the acceptability of each
equivalent level of safety analysis?
102–80.130 Who must perform the equivalent
level of safety analysis?
102–80.135 Who is a qualified fire protection
engineer?
SEISMIC SAFETY
102–80.45 What are Federal agencies’ responsibilities concerning seismic safety in
Federal facilities?
RISKS AND RISK REDUCTION STRATEGIES
102–80.50 Are Federal agencies responsible
for identifying/estimating risks and for
appropriate risk reduction strategies?
102–80.55 Are Federal agencies responsible
for managing the execution of risk reduction projects?
FACILITY ASSESSMENTS
102–80.60 Are Federal agencies responsible
for performing facility assessments?
INCIDENT INVESTIGATION
102–80.65 What are Federal agencies’ responsibilities concerning the investigation of
incidents, such as fires, accidents, injuries, and environmental incidents?
ROOM OF ORIGIN
102–80.140 What is meant by ‘‘room of origin’’?
FLASHOVER
102–80.145
What is meant by ‘‘flashover’’?
RESPONSIBILITY FOR INFORMING TENANTS
REASONABLE WORST CASE FIRE SCENARIO
102–80.70 Are Federal agencies responsible
for informing their tenants of the condition and management of their facility
safety and environment?
102–80.150 What is meant by ‘‘reasonable
worst case fire scenario’’?
ASSESSMENT OF ENVIRONMENTAL ISSUES
SOURCE: 70 FR 67852, Nov. 8, 2005, unless
otherwise noted.
102–80.75 Who assesses environmental issues
in Federal construction and lease construction projects?
Subpart C—Accident and Fire Prevention
102–80.80 With what general accident and
fire prevention policy must Federal
agencies comply?
STATE AND LOCAL CODES
102–80.85 Are Federally owned and leased
buildings exempt from State and local
code requirements in fire protection?
FIRE ADMINISTRATION AUTHORIZATION ACT OF
1992
102–80.90 Is the Fire Administration Authorization Act of 1992 (Pub. L. 102–522) relevant to fire protection engineering?
AUTHORITY: 40 U.S.C. 121(c) and 581–593.
Subpart A—General Provisions
§ 102–80.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services. The responsibilities for safety and environmental
management under this part are intended to apply to GSA or those Federal agencies operating in GSA space
pursuant to a GSA delegation of authority.
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Federal Management Regulation
§ 102–80.30
§ 102–80.10 What are the basic safety
and environmental management
policies for real property?
The basic safety and environmental
management policies for real property
are that Federal agencies must—
(a) Provide for a safe and healthful
work environment for Federal employees and the visiting public;
(b) Protect Federal real and personal
property;
(c) Promote mission continuity;
(d) Provide reasonable safeguards for
emergency forces if an incident occurs;
(e) Assess risk;
(f) Make decision makers aware of
risks; and
(g) Act promptly and appropriately
in response to risk.
Subpart B—Safety and
Environmental Management
ASBESTOS
§ 102–80.15 What are Federal agencies’
responsibilities concerning the assessment and management of asbestos?
Federal agencies have the following
responsibilities concerning the assessment and management of asbestos:
(a) Inspect and assess buildings for
the presence and condition of asbestoscontaining materials. Space to be
leased must be free of all asbestos containing materials, except undamaged
asbestos flooring in the space or
undamaged boiler or pipe insulation
outside the space, in which case an asbestos management program conforming to U.S. Environmental Protection Agency (EPA) guidance must be
implemented.
(b) Manage in-place asbestos that is
in good condition and not likely to be
disturbed.
(c) Abate damaged asbestos and asbestos likely to be disturbed. Federal
agencies must perform a pre-alteration
asbestos assessment for activities that
may disturb asbestos.
(d) Not use asbestos in new construction, renovation/modernization or repair of their owned or leased space. Unless approved by GSA, Federal agencies
must not obtain space with asbestos
through purchase, exchange, transfer,
or lease, except as identified in paragraph (a) of this section.
(e) Communicate all written and oral
asbestos information about the leased
space to tenants.
RADON
§ 102–80.20 What are Federal agencies’
responsibilities
concerning
the
abatement of radon?
Federal agencies have the following
responsibilities concerning the abatement of radon in space when radon levels exceed current EPA standards:
(a) Retest abated areas and make lessors retest, as required, abated areas to
adhere to EPA standards.
(b) Test non-public water sources (in
remote areas for projects such as border stations) for radon according to
EPA guidance. Radon levels that exceed current applicable EPA standards
must be mitigated. Federal agencies
must retest, as required, to adhere to
EPA standards.
INDOOR AIR QUALITY
§ 102–80.25 What are Federal agencies’
responsibilities
concerning
the
management of indoor air quality?
Federal agencies must assess indoor
air quality of buildings as part of their
safety and environmental facility assessments. Federal agencies must respond to tenant complaints on air quality and take appropriate corrective action where air quality does not meet
applicable standards.
LEAD
§ 102–80.30 What are Federal agencies’
responsibilities concerning lead?
Federal agencies have the following
responsibilities concerning lead in
buildings:
(a) Test space for lead-based paint in
renovation projects that require sanding, welding or scraping painted surfaces.
(b) Not remove lead based paint from
surfaces in good condition.
(c) Test all painted surfaces for lead
in proposed or existing child care centers.
(d) Abate lead-based paint found in
accordance with U.S. Department of
Housing and Urban Development (HUD)
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§ 102–80.35
41 CFR Ch. 102 (7–1–16 Edition)
Lead-Based Paint Guidelines, available
by writing to HUD USER, P.O. Box
6091, Rockville, MD 20850.
(e) Test potable water for lead in all
drinking water outlets.
(f) Take corrective action when lead
levels exceed the HUD Guidelines.
HAZARDOUS MATERIALS AND WASTES
§ 102–80.35 What are Federal agencies’
responsibilities
concerning
the
monitoring of hazardous materials
and wastes?
Federal
agencies’
responsibilities
concerning the monitoring of hazardous materials and wastes are as follows:
(a) Monitor the transport, use, and
disposition of hazardous materials and
waste in buildings to provide for compliance with GSA, Occupational Safety
and Health Administration (OSHA),
Department of Transportation, EPA,
and applicable State and local requirements. In addition to those operating
in GSA space pursuant to a delegation
of authority, tenants in GSA space
must comply with these requirements.
(b) In leased space, include in all
agreements with the lessor requirements that hazardous materials stored
in leased space are kept and maintained according to applicable Federal,
State, and local environmental regulations.
UNDERGROUND STORAGE TANKS
§ 102–80.40 What are Federal agencies’
responsibilities
concerning
the
management of underground storage tanks?
Federal agencies have the following
responsibilities concerning the management of underground storage tanks
in real property:
(a) Register, manage and close underground storage tanks, including heating oil and fuel oil tanks, in accordance
with GSA, EPA, and applicable State
and local requirements.
(b) Require the party responsible for
tanks they use but do not own to follow these requirements and to be responsible for the cost of compliance.
SEISMIC SAFETY
§ 102–80.45 What are Federal agencies’
responsibilities concerning seismic
safety in Federal facilities?
Federal agencies must follow the
standards issued by the Interagency
Committee on Seismic Safety in Construction (ICSSC) as the minimum
level acceptable for use by Federal
agencies in assessing the seismic safety
of their owned and leased buildings and
in mitigating unacceptable seismic
risks in those buildings.
RISKS AND RISK REDUCTION STRATEGIES
§ 102–80.50 Are Federal agencies responsible for identifying/estimating
risks and for appropriate risk reduction strategies?
Yes, Federal agencies must identify
and estimate safety and environmental
management risks and appropriate risk
reduction strategies for buildings. Federal agencies occupying as well as operating buildings must identify any
safety and environmental management
risks and report or correct the situation, as appropriate. Federal agencies
must use the applicable national codes
and standards as a guide for their
building operations.
§ 102–80.55 Are Federal agencies responsible for managing the execution of risk reduction projects?
Yes, Federal agencies must manage
the execution of risk reduction projects
in buildings they operate. Federal
agencies must identify and take appropriate action to eliminate hazards and
regulatory noncompliance.
FACILITY ASSESSMENTS
§ 102–80.60 Are Federal agencies responsible for performing facility assessments?
Yes, Federal agencies must evaluate
facilities to comply with GSA’s safety
and environmental program and applicable Federal, State and local environmental laws and regulations. Federal
agencies should conduct these evaluations in accordance with schedules that
are compatible with repair and alteration and leasing operations.
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Federal Management Regulation
§ 102–80.90
INCIDENT INVESTIGATION
§ 102–80.65 What are Federal agencies’
responsibilities concerning the investigation of incidents, such as
fires, accidents, injuries, and environmental incidents?
Federal agencies have the following
responsibilities concerning the investigation of incidents, such as fires, accidents, injuries, and environmental incidents in buildings they operate:
(a) Investigate all incidents regardless of severity.
(b) Form Boards of Investigation for
incidents resulting in serious injury,
death, or significant property losses.
RESPONSIBILITY FOR INFORMING
TENANTS
§ 102–80.70 Are Federal agencies responsible for informing their tenants of the condition and management of their facility safety and environment?
Yes, Federal agencies must inform
their tenants of the condition and management of their facility safety and environment. Agencies operating GSA
buildings must report any significant
facility safety or environmental concerns to GSA.
ASSESSMENT OF ENVIRONMENTAL ISSUES
§ 102–80.75 Who
assesses
environmental issues in Federal construction
and
lease
construction
projects?
Federal agencies must assess required environmental issues throughout planning and project development
so that the environmental impacts of a
project are considered during the decision making process.
agement criteria identified in this
part;
(b) Not expose occupants and visitors
to unnecessary risks;
(c) Provide safeguards that minimize
personal harm, property damage, and
impairment of Governmental operations, and that allow emergency
forces to accomplish their missions effectively;
(d) Follow accepted fire prevention
practices in operating and managing
buildings;
(e) To the maximum extent feasible,
comply with one of the nationally recognized model building codes and with
other nationally-recognized codes in
their construction or alteration of each
building in accordance with 40 U.S.C.
3312; and
(f) Use the applicable national codes
and standards as a guide for their
building operations.
STATE AND LOCAL CODES
§ 102–80.85 Are Federally owned and
leased buildings exempt from State
and local code requirements in fire
protection?
Federally owned buildings are generally exempt from State and local
code requirements in fire protection;
however, in accordance with 40 U.S.C.
3312, each building constructed or altered by a Federal agency must be constructed or altered, to the maximum
extent feasible, in compliance with one
of the nationally recognized model
building codes and with other nationally recognized codes. Leased buildings
are subject to local code requirements
and inspection.
FIRE ADMINISTRATION AUTHORIZATION
ACT OF 1992
Subpart C—Accident and Fire
Prevention
§ 102–80.80 With what general accident
and fire prevention policy must
Federal agencies comply?
Federal agencies must—
(a) Comply with the occupational
safety and health standards established
in the Occupational Safety and Health
Act of 1970 (Pub. L. 91–596); Executive
Order 12196; 29 CFR part 1960; and applicable safety and environmental man-
§ 102–80.90 Is the Fire Administration
Authorization Act of 1992 (Public
Law 102–522) relevant to fire protection engineering?
Yes, the Fire Administration Authorization Act of 1992 (Pub. L. 102–522) requires sprinklers or an equivalent level
of safety in certain types of Federal
employee office buildings, Federal employee housing units, and Federally assisted housing units (15 U.S.C. 2227).
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§ 102–80.95
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–80.95 Is the Fire Administration
Authorization Act of 1992 applicable to all Federal agencies?
Yes, the Fire Administration Authorization Act applies to all Federal agencies and all Federally owned and leased
buildings in the United States.
AUTOMATIC SPRINKLER SYSTEMS
§ 102–80.100 What performance objective should an automatic sprinkler
system be capable of meeting?
The performance objective of the
automatic sprinkler system is that it
must be capable of protecting human
lives. Sprinklers should be capable of
controlling the spread of fire and its effects beyond the room of origin. A
functioning sprinkler system should
activate prior to the onset of flashover.
EQUIVALENT LEVEL OF SAFETY
ANALYSIS
§ 102–80.105 What information must be
included in an equivalent level of
safety analysis?
The equivalent level of life safety
evaluation is to be performed by a
qualified fire protection engineer. The
analysis should include a narrative discussion of the features of the building
structure, function, operational support systems and occupant activities
that impact fire protection and life
safety. Each analysis should describe
potential reasonable worst case fire
scenarios and their impact on the
building occupants and structure. Specific issues that must be addressed include rate of fire growth, type and location of fuel items, space layout,
building construction, openings and
ventilation, suppression capability, detection time, occupant notification, occupant reaction time, occupant mobility, and means of egress.
§ 102–80.110 What must an equivalent
level of safety analysis indicate?
To be acceptable, the analysis must
indicate that the existing and/or proposed safety systems in the building
provide a period of time equal to or
greater than the amount of time available for escape in a similar building
complying with the Fire Administration Authorization Act. In conducting
these analyses, the capability, ade-
quacy, and reliability of all building
systems impacting fire growth, occupant knowledge of the fire, and time
required to reach a safety area will
have to be examined. In particular, the
impact of sprinklers on the development of hazardous conditions in the
area of interest will have to be assessed.
§ 102–80.115 Is there more than one option for establishing that an equivalent level of safety exists?
Yes, the following are three options
for establishing that an equivalent
level of safety exists:
(a) In the first option, the margin of
safety provided by various alternatives
is compared to that obtained for a code
complying building with complete
sprinkler protection. The margin of
safety is the difference between the
available safe egress time and the required safe egress time. Available safe
egress time is the time available for
evacuation of occupants to an area of
safety prior to the onset of untenable
conditions in occupied areas or the
egress pathways. The required safe
egress time is the time required by occupants to move from their positions
at the start of the fire to areas of safety. Available safe egress times would
be developed based on analysis of a
number of assumed reasonable worst
case fire scenarios including assessment of a code complying fully
sprinklered building. Additional analysis would be used to determine the expected required safe egress times for
the various scenarios. If the margin of
safety plus an appropriate safety factor
is greater for an alternative than for
the fully sprinklered building, then the
alternative should provide an equivalent level of safety.
(b) A second alternative is applicable
for typical office and residential scenarios. In these situations, complete
sprinkler protection can be expected to
prevent flashover in the room of fire
origin, limit fire size to no more than
1 megawatt (950 Btu/sec), and prevent
flames from leaving the room of origin.
The times required for each of these
conditions to occur in the area of interest must be determined. The shortest
of these three times would become the
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Federal Management Regulation
§ 102–80.140
time available for escape. The difference between the minimum time
available for escape and the time required for evacuation of building occupants would be the target margin of
safety. Various alternative protection
strategies would have to be evaluated
to determine their impact on the times
at which hazardous conditions developed in the spaces of interest and the
times required for egress. If a combination of fire protection systems provides
a margin of safety equal to or greater
than the target margin of safety, then
the combination could be judged to
provide an equivalent level of safety.
(c) As a third option, other technical
analysis procedures, as approved by the
responsible agency head, can be used to
show equivalency.
§ 102–80.120 What analytical and empirical tools should be used to support the life safety equivalency
evaluation?
Analytical and empirical tools, including fire models and grading schedules such as the Fire Safety Evaluation
System (Alternative Approaches to
Life Safety, NEPA 101A) should be used
to support the life safety equivalency
evaluation. If fire modeling is used as
part of an analysis, an assessment of
the predictive capabilities of the fire
models must be included. This assessment should be conducted in accordance with the American Society for
Testing and Materials Standard Guide
for Evaluating the Predictive Capability of Fire Models (ASTM E 1355).
§ 102–80.125 Who has the responsibility
for determining the acceptability of
each equivalent level of safety analysis?
The head of the agency responsible
for physical improvements in the facility or providing Federal assistance or a
designated representative will determine the acceptability of each equivalent level of safety analysis. The determination of acceptability must include
a review of the fire protection engineer’s qualifications, the appropriateness of the fire scenarios for the facility, and the reasonableness of the assumed maximum probable loss. Agencies should maintain a record of each
accepted equivalent level of safety
analysis and provide copies to fire de-
partments or other local authorities
for use in developing pre-fire plans.
§ 102–80.130 Who must perform the
equivalent level of safety analysis?
A qualified fire protection engineer
must perform the equivalent level of
safety analysis.
§ 102–80.135 Who is a qualified fire
protection engineer?
A qualified fire protection engineer is
defined as an individual with a thorough knowledge and understanding of
the principles of physics and chemistry
governing fire growth, spread, and suppression, meeting one of the following
criteria:
(a) An engineer having an undergraduate or graduate degree from a college or university offering a course of
study in fire protection or fire safety
engineering, plus a minimum of 4 years
work experience in fire protection engineering.
(b) A professional engineer (P.E. or
similar designation) registered in Fire
Protection Engineering.
(c) A professional engineer (P.E. or
similar designation) registered in a related engineering discipline and holding Member grade status in the International Society of Fire Protection Engineers.
ROOM OF ORIGIN
§ 102–80.140 What is meant by ‘‘room of
origin’’?
Room of origin means an area of a
building where a fire can be expected
to start. Typically, the size of the area
will be determined by the walls, floor,
and ceiling surrounding the space.
However, this could lead to unacceptably large areas in the case of open
plan office space or similar arrangements. Therefore, the maximum allowable fire area should be limited to 200
m2 (2000 ft2), including intervening
spaces. In the case of residential units,
an entire apartment occupied by one
tenant could be considered as the room
of origin to the extent it did not exceed
the 200 m2 (2000 ft2) limitation.
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§ 102–80.145
41 CFR Ch. 102 (7–1–16 Edition)
AUTHORITY: 40 U.S.C. 121(c), 581–593, and
1315.
FLASHOVER
§ 102–80.145 What
is
meant
by
‘‘flashover’’?
Flashover means fire conditions in a
confined area where the upper gas
layer temperature reaches 600 °C (1100
°F) and the heat flux at floor level exceeds 20 kW/m2 (1.8 Btu/ft2/sec).
REASONABLE WORST CASE FIRE
SCENARIO
§ 102–80.150 What is meant by ‘‘reasonable worst case fire scenario’’?
Reasonable worst case fire scenario
means a combination of an ignition
source, fuel items, and a building location likely to produce a fire that would
have a significant adverse impact on
the building and its occupants. The development of reasonable worst case
scenarios must include consideration of
types and forms of fuels present (e.g.,
furniture, trash, paper, chemicals), potential fire ignition locations (e.g.,
bedroom, office, closet, corridor), occupant capabilities (e.g., awake, intoxicated, mentally or physically impaired), numbers of occupants, detection and suppression system adequacy
and reliability, and fire department capabilities. A quantitative analysis of
the probability of occurrence of each
scenario and combination of events
will be necessary.
PART 102–81—SECURITY
Subpart A—General Provisions
Sec.
102–81.5 What is the scope of this part?
102–81.10 What basic security policy governs
Federal agencies?
Subpart B—Security
102–81.15 Who is responsible for upgrading
and maintaining security standards in
each existing Federally owned and leased
facility?
102–81.20 Are the security standards for new
Federally owned and leased facilities the
same as the standards for existing Federally owned and leased facilities?
102–81.25 Do the Interagency Security Committee Security Design Criteria apply to
all new Federally owned and leased facilities?
102–81.30 What information must job applicants at child care centers reveal?
SOURCE: 70 FR 67856, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–81.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–81.10 What basic security policy
governs Federal agencies?
Federal agencies on Federal property
under the charge and control of the Administrator and having a security delegation of authority from the Secretary
of the Department of Homeland Security must provide for the security and
protection of the real estate they occupy, including the protection of persons within the property.
Subpart B—Security
§ 102–81.15 Who is responsible for upgrading and maintaining security
standards in each existing Federally owned and leased facility?
In a June 28, 1995, Presidential Policy
Memorandum for Executive Departments and Agencies, entitled ‘‘Upgrading Security at Federal Facilities’’ (see
the Weekly Compilation of Presidential Documents, vol. 31, p. 1148), the
President directed that Executive
agencies must, where feasible, upgrade
and maintain security in facilities they
own or lease under their own authority
to the minimum standards specified in
the Department of Justice’s June 28,
1995, study entitled ‘‘Vulnerability Assessment of Federal Facilities.’’ The
study may be obtained by writing to
the Superintendent of Documents, P.O.
Box 371954, Pittsburgh, PA 15250–7954.
§ 102–81.20 Are the security standards
for new Federally owned and leased
facilities the same as the standards
for existing Federally owned and
leased facilities?
No, the minimum standards specified
in the Department of Justice’s June 28,
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1995, study entitled ‘‘Vulnerability Assessment of Federal Facilities’’ identifies the minimum-security standards
that agencies must adhere to for all existing owned and leased Federal facilities. As specified in § 102–81.25, new Federally owned and leased facilities must
be designed to meet the standards identified in the document entitled ‘‘Interagency Security Committee Security
Design Criteria for New Federal Office
Buildings and Major Modernization
Projects,’’ dated May 28, 2001. The security design criteria for new facilities
takes into consideration technology
developments, new cost consideration,
the experience of practitioners applying the criteria, and the need to balance security requirements with public
building environments that remain
lively, open, and accessible.
§ 102–81.25 Do the Interagency Security Committee Security Design Criteria apply to all new Federally
owned and leased facilities?
No, the Interagency Security Committee Security Design Criteria—
(a) Apply to new construction of general purpose office buildings and new or
lease-construction of courthouses occupied by Federal employees in the
United States and not under the jurisdiction and/or control of the Department of Defense. The criteria also
apply to lease-construction projects
being submitted to Congress for appropriations or authorization. Where prudent and appropriate, the criteria
apply to major modernization projects;
and
(b) Do not apply to airports, prisons,
hospitals, clinics, and ports of entry, or
to unique facilities such as those classified by the Department of Justice
Vulnerability Assessment Study as
Level V. Nor will the criteria overrule
existing Federal laws and statutes, and
other agency standards that have been
developed for special facilities, such as
border stations and child care centers.
§ 102–81.30 What information must job
applicants at child care centers reveal?
Anyone who applies for employment
(including volunteer positions) at a
child care facility, located on Federally controlled property (including
Federally leased property), must reveal
any arrests and convictions on the job
application. Employment at a child
care facility means any position that
involves work with minor children,
such as a teacher, daycare worker, or
school administrator.
PART 102–82—UTILITY SERVICES
Subpart A—General Provisions
Sec.
102–82.5 What is the scope of this part?
102–82.10 What basic utility services policy
govern Executive agencies?
Subpart B—Utility Services
102–82.15 What utility services must Executive agencies provide?
102–82.20 What are Executive agencies’ rate
intervention responsibilities?
102–82.25 What are Executive agencies’ responsibilities concerning the procurement of utility services?
AUTHORITY: 40 U.S.C. 121(c) and 501.
SOURCE: 70 FR 67856, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–82.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–82.10 What basic utility services
policy govern Executive agencies?
Executive agencies procuring, managing or supplying utility services
under Title 40 of the United States
Code must provide or procure services
that promote economy and efficiency
with due regard to the mission responsibilities of the agencies concerned.
Subpart B—Utility Services
§ 102–82.15 What utility services must
Executive agencies provide?
Executive agencies must negotiate
with public utilities to procure utility
services and, where appropriate, provide rate intervention services in proceedings (see §§ 102–72.100 and 102–72.105
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§ 102–82.20
41 CFR Ch. 102 (7–1–16 Edition)
of this chapter) before Federal and
State utility regulatory bodies.
Subpart B—Location of Space
§ 102–82.20 What are Executive agencies’ rate intervention responsibilities?
Where the consumer interests of the
Federal Government will be significantly affected and upon receiving a
delegation of authority from GSA, Executive agencies must provide representation in proceedings involving
utility services before Federal and
State regulatory bodies. Specifically,
these responsibilities include instituting formal or informal action before
Federal and State regulatory bodies to
contest the level, structure, or applicability of rates or service terms of utility suppliers. The Secretary of Defense
is independently authorized to take
such actions without a delegation from
GSA, when the Secretary determines
such actions to be in the best interests
of national security.
102–83.20 What is a delineated area?
102–83.25 Who is responsible for identifying
the delineated area within which a Federal agency wishes to locate specific activities?
102–83.30 In addition to its mission and program requirements, are there any other
issues that Federal agencies must consider in identifying the delineated area?
102–83.35 Are Executive agencies required to
consider whether the central business
area will provide for adequate competition when acquiring leased space?
102–83.40 Who must approve the final delineated area?
102–83.45 Where may Executive agencies
find guidance on appealing GSA’s decisions and recommendations concerning
delineated areas?
§ 102–82.25 What are Executive agencies’ responsibilities concerning the
procurement of utility services?
Executive agencies, operating under
a utility services delegation from GSA,
or the Secretary of Defense, when the
Secretary determines it to be in the
best interests of national security,
must provide for the procurement of
utility services (such as commodities
and utility rebate programs), as required, and must procure from sources
of supply that are the most advantageous to the Federal Government in
terms of economy, efficiency, reliability, or quality of service. Executive
agencies, upon receiving a delegation
of authority from GSA, may enter into
contracts for utility services for periods not exceeding ten years (40 U.S.C.
501(b)(1)(B)).
PART 102–83—LOCATION OF
SPACE
Subpart A—General Provisions
Sec.
102–83.5 What is the scope of this part?
102–83.10 What basic location of space policy
governs an Executive agency?
102–83.15 Is there a general hierarchy of consideration that agencies must follow in
their utilization of space?
DELINEATED AREA
RURAL AREAS
102–83.50 What is the Rural Development
Act of 1972?
102–83.55 What is a rural area?
102–83.60 What is an urbanized area?
102–83.65 Are Executive agencies required to
give first priority to the location of new
offices and other facilities in rural areas?
URBAN AREAS
102–83.70 What is Executive Order 12072?
102–83.75 What is Executive Order 13006?
102–83.80 What is an urban area?
102–83.85 What is a central business area?
102–83.90 Do Executive Orders 12072 and
13006 apply to rural areas?
102–83.95 After an agency has identified that
its geographic service area and delineated area are in an urban area, what is
the next step for an agency?
102–83.100 Why must agencies consider
available space in properties under the
custody and control of the U.S. Postal
Service?
102–83.105 What happens if there is no available space in non-historic buildings
under the custody and control of the U.S.
Postal Service?
102–83.110 When an agency’s mission and
program requirements call for the location in an urban area, are Executive
agencies required to give first consideration to central business areas?
102–83.115 What is a central city?
102–83.120 What happens if an agency has a
need to be in a specific urban area that is
not a central city in a metropolitan
area?
PREFERENCE TO HISTORIC PROPERTIES
102–83.125 Are Executive agencies required
to give preference to historic properties
when acquiring leased space?
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§ 102–83.40
APPLICATION OF SOCIOECONOMIC
CONSIDERATIONS
102–83.130 When must agencies consider the
impact of a location decision on low- and
moderate-income employees?
102–83.135 With whom must agencies consult
in determining the availability of lowand moderate-income housing?
APPENDIX TO PART 102–83—MEMORANDUM OF
UNDERSTANDING BETWEEN THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND THE GENERAL SERVICES ADMINISTRATION CONCERNING LOW- AND MODERATE-INCOME HOUSING
AUTHORITY: 40 U.S.C. 121(c); E.O. 12072; and
E.O. 13006.
SOURCE: 70 FR 67857, Nov. 8, 2005, unless
otherwise noted.
Subpart A—General Provisions
§ 102–83.5
part?
What is the scope of this
The real property policies contained
in this part apply to Federal agencies,
including GSA’s Public Buildings Service (PBS), operating under, or subject
to, the authorities of the Administrator of General Services.
§ 102–83.10 What basic location of
space policy governs an Executive
agency?
Each Executive agency is responsible
for identifying its geographic service
area and the delineated area within
which it wishes to locate specific activities, consistent with its mission
and program requirements, and in accordance with all applicable statutes,
regulations and policies.
§ 102–83.15 Is there a general hierarchy of consideration that agencies must follow in their utilization
of space?
Yes, Federal agencies must follow
the hierarchy of consideration identified in § 102–79.55 of this chapter.
Subpart B—Location of Space
DELINEATED AREA
§ 102–83.20
What is a delineated area?
Delineated area means the specific
boundaries within which space will be
obtained to satisfy an agency space requirement.
§ 102–83.25 Who is responsible for
identifying the delineated area
within which a Federal agency
wishes to locate specific activities?
Each Federal agency is responsible
for identifying the delineated area
within which it wishes to locate specific activities, consistent with its mission and program requirements, and in
accordance with all applicable laws,
regulations, and Executive Orders.
§ 102–83.30 In addition to its mission
and program requirements, are
there any other issues that Federal
agencies must consider in identifying the delineated area?
Yes, Federal agencies must also consider real estate, labor, and other operational costs and applicable local incentives, when identifying the delineated area.
§ 102–83.35 Are Executive agencies required to consider whether the central business area will provide for
adequate competition when acquiring leased space?
In accordance with the Competition
in Contracting Act of 1984, as amended
(41 U.S.C. 253(a)), Executive agencies
must consider whether restricting the
delineated area for obtaining leased
space to the central business area
(CBA) will provide for adequate competition when acquiring leased space.
Where an Executive agency determines
that the delineated area must be expanded beyond the CBA to provide adequate competition, the agency may expand the delineated area in consultation with local officials. Executive
agencies must continue to include the
CBA in such expanded areas.
§ 102–83.40 Who must approve the final
delineated area?
Federal agencies conducting the procurement must approve the final delineated area for site acquisitions and
lease actions and must confirm that
the final delineated area complies with
the requirements of all applicable laws,
regulations, and Executive Orders.
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§ 102–83.45
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–83.45 Where may Executive agencies find guidance on appealing
GSA’s decisions and recommendations concerning delineated areas?
GSA’s PBS provides guidance in its
Customer Guide to Real Property on
the process for appealing GSA’s decisions and recommendations concerning
delineated areas.
RURAL AREAS
§ 102–83.50 What is the Rural Development Act of 1972?
The Rural Development Act of 1972,
as amended (7 U.S.C. 2204b–1), directs
Federal agencies to develop policies
and procedures to give first priority to
the location of new offices and other
Federal facilities in rural areas. The
intent of the Rural Development Act is
to revitalize and develop rural areas
and to help foster a balance between
rural and urban America.
§ 102–83.55
What is a rural area?
As defined in 7 U.S.C. 1991(a)(13)(A),
rural area means any area other than—
(a) A city or town that has a population of greater than 50,000 inhabitants; and
(b) The urbanized area contiguous
and adjacent to such a city or town.
§ 102–83.60
What is an urbanized area?
An urbanized area is a statistical geographic area defined by the Census
Bureau, consisting of a central place(s)
and adjacent densely settled territory
that together contain at least 50,000
people, generally with an overall population density of at least 1,000 people
per square mile.
§ 102–83.65 Are Executive agencies required to give first priority to the
location of new offices and other facilities in rural areas?
Yes, Executive agencies must give
first priority to the location of new offices and other facilities in rural areas
in accordance with the Rural Development Act (7 U.S.C. 2204b–1), unless
their mission or program requirements
call for locations in an urban area.
First priority to the location of new offices and other facilities in rural areas
must be given in accordance with the
hierarchy specified in § 102–79.55 of this
chapter.
URBAN AREAS
§ 102–83.70
12072?
What is Executive Order
Executive Order 12072, entitled ‘‘Federal Space Management,’’ requires all
Executive agencies that have a mission
requirement to locate in an urban area
to give first consideration to locating
Federal facilities in central business
areas, and/or adjacent areas of similar
character, to use them to make downtowns attractive places to work, conserve existing resources, and encourage
redevelopment. It also directs Executive agencies to consider opportunities
for locating cultural, educational, recreational, or commercial activities
within the proposed facility.
§ 102–83.75
13006?
What is Executive Order
Executive Order 13006, entitled ‘‘Locating Federal Facilities on Historic
Properties in Our Nation’s Central Cities,’’ requires all Executive agencies
that have a mission requirement to locate in an urban area to give first consideration to locating Federal facilities
in historic buildings and districts within central business areas. It also directs Executive agencies to remove
regulatory barriers, review their policies, and build new partnerships with
the goal of enhancing participation in
the National Historic Preservation program.
§ 102–83.80
What is an urban area?
Urban area means any metropolitan
area (MA) as defined by the Office of
Management and Budget (OMB) in
OMB Bulletin No. 99–04, or succeeding
OMB Bulletin, that does not meet the
definition of rural area in § 102–83.55.
§ 102–83.85
area?
What is a central business
Central business area (CBA) means
the centralized community business
area and adjacent areas of similar
character, including other specific
areas that may be recommended by
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§ 102–83.110
local officials in accordance with Executive Order 12072. The CBAs are designated by local government and not
by Federal agencies.
§ 102–83.90 Do Executive Orders 12072
and 13006 apply to rural areas?
No, Executive Orders 12072 and 13006
only apply to agencies looking for
space in urban areas.
§ 102–83.95 After an agency has identified that its geographic service area
and delineated area are in an urban
area, what is the next step for an
agency?
After an agency identifies its geographic service area and delineated
area within which it wishes to locate
specific activities are in an urban area
(i.e., determined that the agency’s mission requirements dictate a need to locate its facility in an urban area), Federal agencies must seek space in historic properties already under agency
control, in accordance with section 110
of the National Historic Preservation
Act. The National Historic Preservation Act provides that prior to purchasing, constructing or leasing new
space, Federal agencies must—
(a) Consider agency-controlled historic properties within historic districts inside CBAs when locating Federal operations, in accordance with Executive Order 13006 (which, by reference, also incorporates the requirements in Executive Order 12072 and the
Rural Development Act of 1972);
(b) Then consider agency-controlled
developed or undeveloped sites within
historic districts, if no suitable agencycontrolled historic property specified
in paragraph (a) of this section is available;
(c) Then consider agency-controlled
historic properties outside of historic
districts, if no suitable agency-controlled site exists within a historic district as specified in paragraph (b) of
this section;
(d) Then consider non-historic agency-controlled properties, if no suitable
agency-controlled historic properties
outside of historic districts exist as
specified in paragraph (c) of this section;
(e) Then consider historic properties
under the custody and control of the
U.S. Postal Service, if there is no avail-
able space in non-historic agency-controlled properties specified in paragraph (d) of this section.
(f) Then consider non-historic properties under the custody and control of
the U.S. Postal Service, if there is no
available space in historic properties
under the custody and control of the
U.S. Postal Service specified in paragraph (e) of this section.
§ 102–83.100 Why must agencies consider available space in properties
under the custody and control of
the U.S. Postal Service?
See § 102–73.20 of this chapter.
§ 102–83.105 What happens if there is
no available space in non-historic
buildings under the custody and
control of the U.S. Postal Service?
If no suitable space in non-historic
buildings under the custody and control of the U.S. Postal Service is available, agencies may then acquire real
estate by purchase, lease, or construction, in accordance with FMR part 102–
73.
§ 102–83.110 When an agency’s mission
and program requirements call for
the location in an urban area, are
Executive agencies required to give
first consideration to central business areas?
Yes, if an agency has a specific location need to be in an urban area, then
Executive Orders 12072 and 13006 require that agencies should give first
consideration to locating in a historic
building in a historic district in the
CBA of a central city of the appropriate metropolitan area. If no such
space is available, agencies must give
consideration to locating in a non-historic building in a historic district in
the CBA of a central city of the appropriate metropolitan area. If no such
space is available, agencies must give
consideration to locating in a historic
building outside of a historic district in
the CBA of a central city of the appropriate metropolitan area. If no such
space is available, agencies should give
consideration to locating in a non-historic building outside of a historic district in the CBA of a central city of the
appropriate metropolitan area.
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§ 102–83.115
§ 102–83.115
41 CFR Ch. 102 (7–1–16 Edition)
What is a central city?
Central cities are those central cities
defined by OMB in OMB Bulletin No.
99–04, or succeeding OMB Bulletin.
§ 102–83.120 What happens if an agency has a need to be in a specific
urban area that is not a central city
in a metropolitan area?
If an agency has a need to be in a specific urban area that is not a central
city in a metropolitan area, then the
agency must give first consideration to
locating in a historic building in a historic district in the CBA of the appropriate metropolitan area. If no such
space is available, agencies must give
consideration to locating in a non-historic building in a historic district in
the CBA of the appropriate metropolitan area. If no such space is available,
agencies must give consideration to locating in a historic building outside of
a historic district in the CBA of the appropriate metropolitan area. If no such
space is available, agencies should give
consideration to locating in a non-historic building outside of a historic district in the CBA of the appropriate
metropolitan area.
PREFERENCE TO HISTORIC PROPERTIES
§ 102–83.125 Are Executive agencies required to give preference to historic properties when acquiring
leased space?
Yes, Federal agencies must give a
price preference when acquiring space
using either the lowest price technically acceptable or the best value
tradeoff source selection process. See
part 102–73 of this chapter for additional guidance.
APPLICATION OF SOCIOECONOMIC
CONSIDERATIONS
§ 102–83.130 When must agencies consider the impact of location decisions on low- and moderate-income
employees?
Federal agencies proposing locations
for Federal construction or major lease
actions involving the relocation of a
major work force must consider the
impact on employees with low and
moderate incomes.
§ 102–83.135 With whom must agencies
consult in determining the availability of low- and moderate-income
housing?
Federal agencies must consult with
the U.S. Department of Housing and
Urban Development (HUD) in accordance with the Memorandum of Understanding (MOU) between HUD and
GSA. The text of the HUD-GSA MOU is
located in the appendix to this part.
APPENDIX
TO
PART 102–83—MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND
THE GENERAL SERVICES ADMINISTRATION
CONCERNING LOW- AND
MODERATE-INCOME HOUSING
Purpose. The purpose of the memorandum
of understanding is to provide an effective,
systematic arrangement under which the
Federal Government, acting through HUD
and GSA, will fulfill its responsibilities
under law, and as a major employer, in accordance with the concepts of good management, to assure for its employees the availability of low- and moderate-income housing
without discrimination because of race,
color, religion, or national origin, and to
consider the need for development and redevelopment of areas and the development of
new communities and the impact on improving social and economic conditions in the
area, whenever Federal Government facilities locate or relocate at new sites, and to
use its resources and authority to aid in the
achievement of these objectives.
1. Title VIII of the Civil Rights Act of 1968
(42 U.S.C. 3601) states, in section 801, that ‘‘It
is the policy of the United States to provide,
within constitutional limitations, for fair
housing throughout the United States.’’ Section 808(a) places the authority and responsibility for administering the Act in the Secretary of Housing and Urban Development.
Section 808(d) requires all Executive departments and agencies to administer their programs and activities relating to housing and
urban development in a manner affirmatively to further the purposes of title VIII
(fair housing) and to cooperate with the Secretary to further such purposes. Section
808(e)(5) provides that the Secretary of HUD
shall administer the programs and activities
relating to housing and urban development
in a manner affirmatively to further the
policies of title VIII.
2. Section 2 of the Housing Act of 1949 (42
U.S.C. 1441) declares the national policy of
‘‘* * * the realization as soon as feasible of
the goal of a decent home and a suitable living environment for every American family
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* * *.’’ This goal was reaffirmed in the Housing and Urban Development Act of 1968 (sections 2 and 1601; 12 U.S.C. 1701t and 42 U.S.C.
1441a).
3. By virtue of the Public Buildings Act of
1959, as amended; the Federal Property and
Administrative Services Act of 1949, as
amended; and Reorganization Plan No. 18 of
1950, the Administrator of General Services
is given certain authority and responsibility
in connection with planning, developing, and
constructing
Government-owned
public
buildings for housing Federal agencies, and
for acquiring leased space for Federal agency
use.
4. Executive Order 11512, February 27, 1970,
sets forth the policies by which the Administrator of General Services and the heads of
Executive agencies will be guided in the acquisition of both federally owned and leased
office buildings and space.
5. While Executive Order No. 11512 provides
that material consideration will be given to
the efficient performance of the missions and
programs of the Executive agencies and the
nature and functions of the facilities involved, there are six other guidelines set
forth, including:
• The need for development and redevelopment of areas and the development of new
communities, and the impact a selection will
have on improving social and economic conditions in the area; and
• The availability of adequate low- and
moderate-income housing, adequate access
from other areas of the urban center, and
adequacy of parking.
6. General Services Administration (GSA)
recognizes its responsibility, in all its determinations with respect to the construction
of Federal buildings and the acquisition of
leased space, to consider to the maximum
possible extent the availability of low- and
moderate-income housing without discrimination because of race, color, religion, or national origin, in accordance with its duty affirmatively to further the purposes of title
VIII of the Civil Rights Act of 1968 and with
the authorities referred to in paragraph 2
above, and the guidelines referred to in paragraph 5 above, and consistent with the authorities cited in paragraphs 3 and 4 above.
In connection with the foregoing statement,
it is recognized that all the guidelines must
be considered in each case, with the ultimate
decision to be made by the Administrator of
General Services upon his determination
that such decision will improve the management and administration of governmental
activities and services, and will foster the
programs and policies of the Federal Government.
7. In addition to its fair housing responsibilities, the responsibilities of HUD include
assisting in the development of the Nation’s
housing supply through programs of mortgage insurance, home ownership and rental
housing assistance, rent supplements, below
market interest rates, and low-rent public
housing. Additional HUD program responsibilities which relate or impinge upon housing and community development include
comprehensive planning assistance, metropolitan area planning coordination, new
communities, relocation, urban renewal,
model cities, rehabilitation loans and grants,
neighborhood facilities grants, water and
sewer grants, open space, public facilities
loans, Operation BREAKTHROUGH, code enforcement, workable programs, and others.
8. In view of its responsibilities described
in paragraphs 1 and 7 above, HUD possesses
the necessary expertise to investigate, determine, and report to GSA on the availability
of low- and moderate-income housing on a
nondiscriminatory basis and to make findings as to such availability with respect to
proposed locations for a federally-constructed building or leased space which
would be consistent with such reports. HUD
also possesses the necessary expertise to advise GSA and other Federal agencies with respect to actions which would increase the
availability of low- and moderate-income
housing on a nondiscriminatory basis, once a
site has been selected for a federally-constructed building or a lease executed for
space, as well as to assist in increasing the
availability of such housing through its own
programs such as those described in paragraph 7 above.
9. HUD and GSA agree that:
(a) GSA will pursue the achievement of
low- and moderate-income housing objectives and fair housing objectives, in accordance with its responsibilities recognized in
paragraph 6 above, in all determinations,
tentative and final, with respect to the location of both federally constructed buildings
and leased buildings and space, and will
make all reasonable efforts to make this policy known to all persons, organizations,
agencies and others concerned with federally
owned and leased buildings and space in a
manner which will aid in achieving such objectives.
(b) In view of the importance to the
achievement of the objectives of this memorandum of agreement of the initial selection
of a city or delineation of a general area for
location of public buildings or leased space,
GSA will provide the earliest possible notice
to HUD of information with respect to such
decisions so that HUD can carry out its responsibilities under this memorandum of
agreement as effectively as possible.
(c) Government-owned Public Buildings
Projects. (1) In the planning for each new public buildings project under the Public Buildings Act of 1959, during the survey preliminary to the preparation and submission of a
project development report, representatives
of the regional office of GSA in which the
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Pt. 102–84
41 CFR Ch. 102 (7–1–16 Edition)
project is proposed will consult with, and receive advice from, the regional office of
HUD, and local planning and housing authorities concerning the present and planned
availability of low- and moderate-income
housing on a nondiscriminatory basis in the
area where the project is to be located. Such
advice will constitute the principal basis for
GSA’s consideration of the availability of
such housing in accordance with paragraphs
6 and 9(a). A copy of the prospectus for each
project which is authorized by the Committees on Public Works of the Congress in accordance with the requirements of section
7(a) of the Public Buildings Act of 1959, will
be provided to HUD.
(2) When a site investigation for an authorized public buildings project is conducted by
regional representatives of GSA to identify a
site on which the public building will be constructed, a representative from the regional
office of HUD will participate in the site investigation for the purposes of providing a
report on the availability of low- and moderate-income housing on a nondiscriminatory basis in the area of the investigation. Such report will constitute the principal basis for GSA’s consideration of the
availability of such housing in accordance
with paragraphs 6 and 9(a).
(d) Major lease actions having a significant
socioeconomic impact on a community: At
the time GSA and the agencies who will occupy the space have tentatively delineated
the general area in which the leased space
must be located in order that the agencies
may effectively perform their missions and
programs, the regional representative of
HUD will be consulted by the regional representative of GSA who is responsible for the
leasing action to obtain advice from HUD
concerning the availability of low- and moderate-income housing on a nondiscriminatory basis to the delineated area. Such
advice will constitute the principal basis for
GSA’s consideration of the availability of
such housing in accordance with paragraphs
6 and 9(a). Copies of lease-construction
prospectuses approved by the Committees on
Public Works of the Congress in conformity
with the provisions of the Independent Offices and Department of Housing and Urban
Development appropriation acts, will be provided to HUD.
(e) GSA and HUD will each issue internal
operating procedures to implement this
memorandum of understanding within a reasonable time after its execution. These procedures shall recognize the right of HUD, in
the event of a disagreement between HUD
and GSA representatives at the area or regional level, to bring such disagreement to
the attention of GSA officials at headquarters in sufficient time to assure full consideration of HUD’s views, prior to the making of a determination by GSA.
(f) In the event a decision is made by GSA
as to the location of a federally constructed
building or leased space, and HUD has made
findings, expressed in the advice given or a
report made to GSA, that the availability to
such location of low- and moderate-income
housing on a nondiscriminatory basis is inadequate, the GSA shall provide the DHUD
with a written explanation why the location
was selected.
(g) Whenever the advice or report provided
by HUD in accordance with paragraph 9(c)(1),
9(c)(2), or 9(d) with respect to an area or site
indicates that the supply of low-and moderate-income housing on a nondiscriminatory basis is inadequate to meet the needs
of the personnel of the agency involved, GSA
and HUD will develop an affirmative action
plan designed to insure that an adequate
supply of such housing will be available before the building or space is to be occupied or
within a period of 6 months thereafter. The
plan should provide for commitments from
the community involved to initiate and
carry out all feasible efforts to obtain a sufficient quantity of low- and moderate-income housing available to the agency’s personnel on a nondiscriminatory basis with
adequate access to the location of the building or space. It should include commitments
by the local officials having the authority to
remove obstacles to the provision of such
housing, when such obstacles exist, and to
take effective steps to assure its provision.
The plan should also set forth the steps proposed by the agency to develop and implement a counseling and referral service to
seek out and assist its personnel to obtain
such housing. As part of any plan during, as
well as after its development, HUD agrees to
give priority consideration to applications
for assistance under its housing programs for
the housing proposed to be provided in accordance with the plan.
10. This memorandum will be reviewed at
the end of one year, and modified to incorporate any provision necessary to improve
its effectiveness in light of actual experience.
PART 102–84—ANNUAL REAL
PROPERTY INVENTORIES
Sec.
102–84.5 What is the scope of this part?
102–84.10 What is the purpose of the Annual
Real Property Inventory program?
102–84.15 Why must I provide information
for the Annual Real Property Inventory?
102–84.20 Where should I obtain the data required to be reported for the Annual Real
Property Inventory?
102–84.25 Is it necessary for my agency to
designate an official to serve as the point
of contact for the real property inventories?
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31
Federal Management Regulation
§ 102–84.25
102–84.30 Is it necessary for my agency to
certify the accuracy of its real property
inventory submission?
102–84.35 Which agencies must submit a report for inclusion in the Annual Real
Property Inventory?
102–84.40 What types of real property must I
report for the Annual Real Property Inventory?
102–84.45 What types of real property are excluded from reporting for the Annual
Real Property Inventory?
102–84.50 May the GSA Form 1166 be used to
report information?
102–84.55 When are the Annual Real Property Inventory Reports due?
AUTHORITY: 40 U.S.C. 121(c)
SOURCE: 73 FR 2167, Jan. 14, 2008, unless
otherwise noted.
§ 102–84.5 What is the scope of this
part?
GSA’s policies contained in this part
apply to all Federal agencies. This part
prescribes guidance that all Federal
agencies must follow in preparing and
submitting annual real property inventory information for real property
owned, leased or otherwise managed by
the United States. Detailed guidance
implementing these policies is contained in the annual Guidance for Real
Property Inventory Reporting, issued by
the Federal Real Property Council and
published by GSA.
§ 102–84.10 What is the purpose of the
Annual Real Property Inventory
program?
The purpose of the Annual Real Property Inventory program is to:
(a) Promote efficient and economical
use of Federal real property assets.
(b) Increase the level of agency accountability for asset management.
(c)
Allow
for
comparing
and
benchmarking across various types of
real property assets.
(d) Give decision makers the accurate, reliable data needed to make
asset management decisions, including
disposing of unneeded federal assets.
§ 102–84.15 Why must I provide information for the Annual Real Property Inventory?
You must provide information for the
Annual Real Property Inventory because:
(a) The Senate Committee on Appropriations requests that the Govern-
ment maintain an Annual Real Property Inventory.
(b) Executive Order 12411, Government Work Space Management Reforms, dated March 29, 1983 (48 FR
13391, 3 CFR, 1983 Comp., p. 155), requires that Executive agencies:
(1) Produce and maintain a total inventory of work space and related furnishings and declare excess to the Administrator of General Services all
such holdings that are not necessary to
satisfy existing or known and verified
planned programs; and
(2) Establish information systems,
implement inventory controls and conduct surveys, in accordance with procedures established by the Administrator
of General Services, so that a governmentwide reporting system may be developed.
(c) Executive Order 13327, Federal
Real Property Asset Management, dated
February 4, 2004, requires that the Administrator of General Services, in
consultation with the Federal Real
Property Council, establish and maintain a single, comprehensive and descriptive database of all real property
under the custody and control of all executive branch agencies, except when
otherwise required for reasons of national security. The Executive Order
authorizes the Administrator to collect
from each Executive agency such descriptive information, except for classified information, as the Administrator
considers will best describe the nature,
use, and extent of the real property
holdings of the Federal Government.
§ 102–84.20 Where should I obtain the
data required to be reported for the
Annual Real Property Inventory?
You should obtain data reported for
the Annual Real Property Inventory
from the most accurate real property
asset management and financial management records maintained by your
agency.
§ 102–84.25 Is it necessary for my agency to designate an official to serve
as the point of contact for the real
property inventories?
Yes. You must designate an official
to serve as your agency’s point of contact for the Annual Real Property Inventories. We recommend that you designate the same point of contact for
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§ 102–84.30
41 CFR Ch. 102 (7–1–16 Edition)
the Federally-owned and leased real
property inventory, although separate
points of contact are permitted. You
must advise the General Services Administration, Office of Governmentwide Policy, Office of Real Property
(MP), 1800 F Street, NW., Washington,
DC 20405, in writing, of the name(s) of
these representative(s) and any subsequent changes.
§ 102–84.30 Is it necessary for my agency to certify the accuracy of its real
property inventory submission?
Yes. Your agency’s official designated in accordance with § 102–84.25
must certify the accuracy of the real
property information submitted to
GSA.
§ 102–84.35 Which agencies must submit a report for inclusion in the Annual Real Property Inventory?
Each agency that has jurisdiction,
custody, control, or otherwise manages
Federal real property or enters into
leases, is responsible for submitting
the real property inventory information. Additional information on the responsibility for reporting inventory
data is contained in the annual Guidance for Real Property Inventory Reporting.
§ 102–84.40 What types of real property
must I report for the Annual Real
Property Inventory?
You must report for the Annual Real
Property Inventory all land, buildings,
and other structures and facilities
owned by the United States (including
wholly-owned Federal Government corporations) throughout the world, all
real property leased by the United
States from private individuals, organizations, and municipal, county,
State, and foreign governments, and all
real property otherwise managed by
the United States where the ownership
interest is held by a State or foreign
government. Property to be reported
includes, but is not limited to:
(a) Real property acquired by purchase, construction, donation, eminent
domain proceedings, or any other
method;
(b) Real property in which the Government has a long-term interest considered by the reporting agency as
being equivalent to ownership. This
would include land acquired by treaty
or long-term lease (e.g., 99-year lease),
and that your agency considers equivalent to Federally-owned land;
(c) Buildings or other structures and
facilities owned by or leased to the
Government, whether or not located on
Government-owned land;
(d) Excess and surplus real property;
(e) Leased real property (including
leased land, leased buildings, leased
other structures and facilities, or any
combination thereof);
(f) Real property leased rent free or
for a nominal rental rate, if the real
property is considered significant by
the reporting agency; and
(g) Real property where title is held
by a State or foreign government, but
rights for use have been granted to a
Federal entity in an arrangement other
than a leasehold.
§ 102–84.45 What types of real property
are excluded from reporting for the
Annual Real Property Inventory?
The following real property assets
are excluded from Executive Order
13327 and reporting is optional:
(a) Land easements or rights-of-way
held by the Federal Government.
(b) Public domain land (including
lands withdrawn for military purposes)
or land reserved or dedicated for national forest, national park, or national wildlife refuge purposes, except
for improvements on those lands.
(c) Land held in trust or restrictedfee status for individual Indians or Indian tribes.
(d) Land, and interests in land, that
are withheld from the scope of Executive Order 13327 by agency heads for
reasons of national security, foreign
policy or public safety.
§ 102–84.50 May the GSA Form 1166 be
used to report information?
No. Agencies must submit information in accordance with the electronic
format outlined in the annual reporting instructions by either submitting
an XML file in a predetermined format
or by entering the data manually into
the online Federal Real Property Profile system. For more information on
format requirements, or any other information and guidance on the Annual
Real Property Inventory, contact
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31
Federal Management Regulation
Pt. 102–85
GSA’s Office of Governmentwide Policy, Office of Real Property (MP), 1800
F Street, NW., Washington, DC 20405,
or by telephone at (202) 501–0856.
§ 102–84.55 When are the Annual Real
Property Inventory reports due?
You must prepare the Annual Real
Property Inventory information prescribed in § 102–84.50 as of the last day
of each fiscal year. This information
must be submitted electronically to
the General Services Administration,
Office of Governmentwide Policy, Office of Real Property (MP), 1800 F
Street, NW., Washington, DC 20405, no
later than December 15 of each year.
PART 102–85—PRICING POLICY
FOR OCCUPANCY IN GSA SPACE
Subpart A—Pricing Policy—General
Sec.
102–85.5 By what authority is the pricing
policy in this part prescribed?
102–85.10 What is the scope of this part?
102–85.15 What are the basic policies for
charging Rent for space and services?
102–85.20 What does an Occupancy Agreement (OA) do?
102–85.25 What is the basic principle governing OAs?
102–85.30 Are there special rules for certain
Federal customers?
102–85.35 What definitions apply to this
part?
102–85.40 What are the major components of
the pricing policy?
Subpart B—Occupancy Agreement
102–85.45 When is an Occupancy Agreement
required?
102–85.50 When does availability of funding
have to be certified?
102–85.55 What are the terms and conditions
included in an OA?
102–85.60 Who can execute an OA?
102–85.65 How does an OA obligate the customer agency?
102–85.70 Are the standard OA terms appropriate for non-cancelable space?
102–85.75 When can space assignments be
terminated?
102–85.80 Who is financially responsible for
expenses resulting from tenant non-performance?
102–85.85 What if a customer agency participates in a consolidation?
Subpart C—Tenant Improvement
Allowance
102–85.90 What is a tenant improvement allowance?
102–85.95 Who pays for the TI allowance?
102–85.100 How does a customer agency pay
for tenant improvements?
102–85.105 How does an agency pay for customer alterations that exceed the TI allowance?
102–85.110 Can the allowance amount be
changed?
Subpart D—Rent Charges
102–85.115 How is the Rent determined?
102–85.120 What is ‘‘shell Rent’’?
102–85.125 What alternate methods may be
used to establish Rent in Federally
owned space?
102–85.130 How are exemptions from Rent
granted?
102–85.135 What if space and services are
provided by other executive agencies?
102–85.140 How are changes in Rent reflected
in OAs?
102–85.145 When are customer agencies responsible for Rent charges?
102–85.150 How will Rent charges be reflected on the customer agency’s Rent
bill?
102–85.155 What does a customer agency do
if it does not agree with a Rent bill?
102–85.160 How does a customer agency
know how much to budget for Rent?
Subpart E—Standard Levels of Service
102–85.165 What are standard levels of service?
102–85.170 Can flexitime and other alternative work schedules cost the customer
agency more?
102–85.175 Are the standard level services for
cleaning, mechanical operation, and
maintenance identified in an OA?
102–85.180 Can there be other standard services?
102–85.185 Can space be exempted from the
standard levels of service?
102–85.190 Can GSA Rent be adjusted when
standard levels of service are performed
by other customer agencies?
Subpart F—Special Services
102–85.195
ices?
Does GSA provide special serv-
Subpart G—Continued Occupancy,
Relocation and Forced Moves
102–85.200 Can customer agencies continue
occupancy of space or must they relocate
at the end of an OA?
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§ 102–85.5
41 CFR Ch. 102 (7–1–16 Edition)
102–85.205 What happens if a customer agency continues occupancy after the expiration of an OA?
102–85.210 What if a customer agency has to
relocate?
102–85.215 What if another customer agency
forces a GSA customer to move?
102–85.220 Can a customer agency forced to
relocate waive the reimbursements?
102–85.225 What are the funding responsibilities for relocations resulting from emergencies?
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 66 FR 23169, May 8, 2001, unless
otherwise noted.
Subpart A—Pricing Policy—
General
§ 102–85.5 By what authority is the
pricing policy in this part prescribed?
(a) General authority is granted in
the Federal Property and Administrative Services Act of 1949, as amended,
Sec. 205(c) and 210(j), 63 Stat. 390 and 86
Stat. 219; (40 U.S.C. 486(c) and 40 U.S.C.
490(j), respectively).
(b) This part implements the applicable provisions of Federal law, including, but not limited to, the:
(1) Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as
amended;
(2) Act of July 1, 1898 (40 U.S.C. 285);
(3) Act of April 28, 1902 (40 U.S.C. 19);
(4) Act of August 27, 1935 (40 U.S.C.
304c);
(5) Public Buildings Act of 1959, as
amended (40 U.S.C. 601–619);
(6) Public Buildings Amendments of
1972, Pub. L. 92–313, (86 Stat. 219);
(7) Rural Development Act of 1972,
Pub. L. 92–419, (86 Stat. 674);
(8) Reorganization Plan No. 18 of 1950
(40 U.S.C. 490 note);
(9) Title VIII of the Civil Rights Act
of 1968 (42 U.S.C. 3601 et seq.);
(10) National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4321
et seq.);
(11) Intergovernmental Cooperation
Act of 1968 and the Federal Urban Land
Use Act (42 U.S.C. 4201–4244; 40 U.S.C.
531–535);
(12) Public Buildings Cooperative Use
Act of 1976, as amended (40 U.S.C.
490(a)(16)–(19), 601a and 612a);
(13) Public Buildings Amendments of
1988, Pub. L. 100–678, (102 Stat. 4049);
(14) National Historic Preservation
Act of 1966 as amended (16 U.S.C. 461 et
seq.);
(15) Executive Order 12072 of August
16, 1978 (43 FR 36869);
(16) Executive Order 12411 of March
29, 1983 (48 FR 13391);
(17) Executive Order 12512 of April 29,
1985 (50 FR 18453);
(18) Executive Order 13005 of May 21,
1996 (61 FR 26069); and
(19) Executive Order 13006 of May 21,
1996 (61 FR 26071).
§ 102–85.10
part?
What is the scope of this
(a) This part describes GSA policy
and principles for the assignment and
occupancy of space under its control
and the rights and obligations of GSA
and the customer agencies that request
or occupy such space pursuant to GSA
Occupancy Agreements (OA).
(b) Space managed by agencies under
delegation of authority from GSA is
subject to the provisions of this part.
(c) This part is not applicable to:
(1) Licenses, permits or leases with
non-Federal entities under the Public
Buildings Cooperative Use Act (40
U.S.C. 490(a)(16–19)); or
(2) The disposal of surplus lease space
under section 210(h)(2) of the Federal
Property and Administrative Services
Act of 1949, as amended (40 U.S.C.
490(h)(2)).
§ 102–85.15 What are the basic policies
for charging Rent for space and
services?
(a) GSA will charge for space and
services furnished by GSA (unless otherwise exempted by the Administrator
of General Services) a Rent charge
which will approximate commercial
charges for comparable space and services. Rent for all assignments for GSAcontrolled space will be priced according to the principles of the pricing policy in this part. These principles are
reflected in the following elements of
GSA Rent charges:
(1) ‘‘Shell’’ Rent based on approximate commercial charges for comparable space and services for Federally owned space (accomplished using
appraisal procedures);
(2) Rent based on actual cost of the
lease, including the costs (if any) of
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Federal Management Regulation
§ 102–85.35
services not provided by the lessor,
plus a GSA fee;
(3) Amortization of any tenant improvement allowance used;
(4) Any applicable real estate taxes,
operating costs, parking, security and
joint use fees; and
(5) For certain projects involving new
construction or major renovation of
Federally-owned buildings, a return on
investment pricing approach if an appraisal-determined rental value does
not provide a minimum return (OMB
discount rate for calculating the
present value of yearly costs plus 2%)
on the cost of the prospective capital
investment. Each specific use of Return on Investment (ROI) pricing must
be approved by OMB and duly recorded
in an Occupancy Agreement (OA) with
the customer agency. Once the ROI
methodology is employed to establish
Rent for a capital investment, the ROI
method must be retained for the duration of the OA term.
(b) Special services not included in
the standard levels of service may be
provided by GSA on a reimbursable
basis. GSA may also furnish alterations on a reimbursable basis in buildings where GSA is responsible for alterations only.
(c) The financial terms and conditions under which GSA assigns, and a
customer agency occupies, each block
of GSA-controlled space, shall be documented in a written OA.
§ 102–85.20 What does an Occupancy
Agreement (OA) do?
An OA defines GSA’s relationship
with each customer agency and:
(a) Establishes specific financial
terms, provisions, rights, and obligations of GSA and its customer for each
space assignment;
(b) Minimizes exposure to future unknown costs for both GSA and customer agencies;
(c) Stabilizes Rent payments to the
extent reasonable and desired by customers; and
(d) Allows tailoring of space and related services to meet customer agency
needs.
§ 102–85.25 What is the basic principle
governing OAs?
The basic principle governing OAs is
to adopt the private sector practice of
capturing in a written document the
business terms to which GSA and a
customer agency agree concerning individual space assignments.
§ 102–85.30 Are there special rules for
certain Federal customers?
Yes, in lieu of OAs, GSA is able to
enter into agreements with customer
agencies that reflect the parties particular needs. For example, the space
and services provided to the U.S. House
of Representatives and the U.S. Senate
are governed by existing memoranda of
agreement (MOA). When there are conflicts between the provisions of this
part and MOAs, the MOAs prevail.
§ 102–85.35 What definitions apply to
this part?
The following definitions apply to
this part:
Accept space or acceptance of space
means a commitment from an agency
to occupy specified GSA-controlled
space.
Agency-controlled
and/or
operated
space means:
(1) Space that is owned, leased, or
otherwise controlled or operated by
Federal agencies under any authority
other than the Federal Property and
Administrative Services Act of 1949, as
amended; and
(2) it also includes agency-acquired
space for which acquisition authority
has been delegated or otherwise granted to the agency by GSA. It does not
include space covered by an OA.
Assign or assignment is defined in the
definition for space assignment.
Building shell means the complete enveloping structure, the base-building
systems, and the finished common
areas (building common and floor common) of a building that bound the tenant areas.
Customer agency means any department, agency, or independent establishment in the Federal Government,
including any wholly-owned corporation; any executive agency or any establishment in the legislative or judicial branch of the Government (except
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§ 102–85.35
41 CFR Ch. 102 (7–1–16 Edition)
the Senate, the House of Representatives, and the Architect of the Capitol,
and any activities under his direction).
Emergency relocation is a customer
move that results from an extraordinary event such as a fire, natural disaster, or immediate threat to the
health and safety of occupants that
renders a current space assignment unusable and requires that it be vacated,
permanently or temporarily.
Federal Buildings Fund means the
fund into which Rent charges and other
revenues are deposited, and collections
cited in section 210(j) of the Federal
Property and Administrative Services
Act of 1949, as amended (U.S.C. 490(j)),
and from which monies are available
for expenditures for real property management and related activities in such
amounts as are specified in annual appropriations acts without regard to fiscal year limitations.
Federally controlled space means
workspace for which the United States
Government has a right of occupancy
by ownership, by lease, or by any other
means, such as by contract, barter, license, easement, permit, requisition, or
condemnation. Such workspace excludes space owned or leased by private
sector entities performing work on
Government contracts.
Federally owned space means space,
the title to which is vested in the
United States Government or which
will vest automatically according to an
existing agreement.
Forced move means the involuntary
physical relocation, from one space assignment to another, of a customer
agency housed in GSA-controlled space
initiated by another customer agency
or by GSA, before the expiration of a
lease or an OA term. (See also the definition of GSA-initiated move.)
General use space means all types of
space other than ‘‘warehouse,’’ ‘‘parking,’’ or ‘‘unique’’ space, as defined
elsewhere in this part. Examples of
general use space are:
(1) Office and office-related space
such as file areas, libraries, meeting
rooms, computer rooms, mail rooms,
training and conference, automated
data processing operations, courtrooms, and judicial chambers; and
(2) Storage space that contains different quality and finishes from gen-
eral use space, but that is within a
building where predominantly general
use space is located.
GSA-controlled space means Federally
controlled space under the custody or
control of GSA. It includes space for
which GSA has delegated operational,
maintenance, or protection authority
to the customer agency.
GSA-delegated space (or GSA delegated
building) means GSA-controlled space
for which GSA has delegated operational, maintenance or protection authority to the customer agency.
GSA-initiated move means any relocation action in GSA-controlled space
that:
(1) Is involuntary to the customer
agency and required to be effective
prior to the expiration of an effective
OA, or in the case of leased space, prior
to the expiration of the lease; or
(2) Is an emergency relocation initiated by GSA.
Initial space alteration (ISA). See definition of ‘‘tenant improvement.’’
Initial space layout means the specific
placement of workstations, furniture
and equipment within new space assignments.
Inventory means a summary or
itemized list of the real property, and
associated descriptive information,
that is under the control of a Federal
agency.
Joint-use space means common space
within a Federally controlled facility,
not specifically assigned to any one
agency, and available for use by multiple agencies, such as cafeterias, auditoriums, conference rooms, credit
unions, visitor parking spaces, snack
bars, certain wellness/physical fitness
facilities, and child care centers.
Leased space means space for which
the United States Government has a
right of use and occupancy by virtue of
having acquired a leasehold interest.
Non-cancelable space means space
that, due to its layout, design, location, or other characteristics, is unlikely to be needed by another GSA
customer agency. Typical conditions
that might cause space to be defined as
non-cancelable are:
(1) Special space construction features;
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Federal Management Regulation
§ 102–85.35
(2) Lack of any realistic Federal need
for the space other than by the requesting agency; and
(3) Remote location or unusual term
(short or long) desired by the agency.
Occupancy Agreement (OA) means a
written agreement descriptive of the financial terms and conditions under
which GSA assigns, and a customer
agency occupies, the GSA-controlled
space identified therein.
Parking or parking space means surface land, structures, or areas within
structures designed and designated for
the purpose of parking vehicles.
Personnel means the peak number of
persons to be housed during a single
shift,
regardless
of
how
many
workstations are provided for them. In
addition to permanent employees of
the agency, personnel includes temporaries, part-time, seasonal, and contractual employees, budgeted vacancies, and employees of other agencies
and organizations who are housed in a
space assignment.
Portfolio leases mean long term or
‘‘master’’ leases, usually negotiated to
house several agencies whose individual term requirements differ from
the terms of the underlying GSA lease
with the lessor, and from each other.
These may also be leases housing single agencies, but which entail for GSA
responsibilities (burdens and benefits)
which mimic an ownership position, or
equity rights, even though no equity
interest or ownership liability exists.
An example of the latter would be long
term renewal options on a lease which,
in order to enjoy, involve substantial
capital outlays by GSA to improve the
building infrastructure. In both these
cases, GSA is assuming risks or capital
expenditures outside of the conventions of single transactions or occupancies. Accordingly, for a portfolio lease,
it is not appropriate merely to pass
through to the customer agency(ies)
the rental rate of the underlying GSA
lease. Portfolio leases are treated for
pricing purposes as owned space, with
Rent set by appraisal.
Predominant use means the use to
which the greatest portion of a location is put. Predominant use is determined by the Public Buildings Service
(PBS), GSA, and will typically result
in the designation of a location as one
of four types of space—General Use,
Warehouse, Unique, or Parking—even
though some smaller portions of the
space may be used for one or more of
the other types of uses.
Rent means the amounts charged by
GSA for space and related services to
the customer agencies with tenancy in
GSA-controlled
space.
The
word
‘‘Rent’’ is capitalized to differentiate it
from the contract ‘‘rent’’ that GSA
pays lessors.
Rentable square footage means the
amount of space as defined in ‘‘Building Owners and Managers Association
(BOMA)/American National Standards
Institute (ANSI) Standard Z65.1–1996.’’
The BOMA/ANSI standard also defines
‘‘gross,’’ ‘‘office area,’’ ‘‘floor common,’’ and ‘‘building common’’ areas.
Any references to these terms in this
part refer to the BOMA/ANSI standard
definitions. This standard has been
adopted in accordance with GSA’s interest in conforming its practices to
nationally recognized industry standards to the extent possible.
NOTE TO THE DEFINITION
SQUARE FOOTAGE: Rentable
OF RENTABLE
square footage
generally includes square footage of areas
occupied by customers plus a prorated share
of floor common areas such as elevator lobbies, building corridors, public restrooms,
utility closets, and machine rooms. Rentable
square footage also includes a prorated share
of building common areas located throughout the building. Examples of building common space include ground floor entrance
lobby, enclosed atrium, loading dock, and
mail room.
Request for space or space request
means a written or electronically submitted document or an oral request,
within which an agency’s space needs
are summarized. A request for space is
requisite for development of an OA.
Thus, it must be submitted to GSA by
a duly authorized official of the customer agency, and it must be accompanied by documentation of the customer agency’s ability to fund payment of required Rent charges.
Return on Investment (ROI) pricing is
one possible methodology used to establish a Rent rate for certain owned
space. Typically, ROI pricing is a Rent
rate that ensures GSA a reasonable return on its cost to acquire and improve
the asset. ROI pricing may be used
where no other comparable commercial
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§ 102–85.35
41 CFR Ch. 102 (7–1–16 Edition)
space is available or no other appraisal
method would be appropriate. It may
also be used in cases in which an appraisal-based rental rate will not meet
GSA’s minimum return requirements
for the planned level of investment.
Security fees mean Rent charges for
building services provided by GSA’s
Federal Protective Service. Security
fees are comprised of basic and building specific charges.
(a) A basic security fee is assessed in
all PBS-controlled properties where
the Federal Protective Service (FPS)
provides security services. The rate is
set annually on a per-square-foot basis.
The charge includes the following services:
(1) General law enforcement on PBScontrolled property;
(2) Physical security assessments;
(3) Crime prevention and awareness
training;
(4) Advice and assistance to building
security committees;
(5) Intelligence sharing program;
(6) Criminal investigation;
(7) Assistance and coordination in
Occupancy Emergency Plan development;
(8) Coordination of mobilization and
response to terrorist threat or civil disturbance;
(9) Program administration for security guard contracts; and
(10) Megacenter operations for monitoring building perimeter alarms and
dispatching appropriate law enforcement response.
(b) The building specific security
charge is comprised of two elements:
Operating expenses and amortized capital costs. Building specific charges,
whether operating expenses or capital
costs, are distributed overall federal
users by building or facility in direct
proportion to each customer agency’s
percentage of federal occupancy. As
with joint use charges, the distribution
of building-specific charges among customer agencies is not re-adjusted for
vacancy.
Space means a defined area within a
building and/or parcel of land. (Personal property and furniture are not
included.)
Space allocation standard (SAS) means
a standard agreed upon by GSA and a
customer agency, written in terms that
permit nationwide or regional application, that is used as a basis for establishing that agency’s space requirements. An SAS may describe special
GSA and customer agency funding responsibilities, although such responsibilities will be covered in OAs for
space assignments. An SAS may also
be developed between GSA and customer agencies on a regional level to
standardize or simplify transactions,
provided that the terms of a regional
SAS are consistent with the terms of
that agency’s national SAS and the
terms of this part.
Space
assignment
or
assignments
means a transaction between GSA and
a customer agency that results in a
customer agency’s right to occupy certain GSA-controlled space, usually in
return for customer agency payment(s)
to GSA for use of the space. Space assignment rights, obligations, and responsibilities not covered in this part,
or in the customer guides, are formalized in an OA.
Space planning means the process of
using recognized professional techniques of planning, layout and interior
design to determine the best internal
location and the most efficient configuration for satisfying agency space
needs.
Space program of requirements means a
summary statement of an agency’s
space needs. These requirements will
generally include information about location, square footage, construction requirements, and duration of the agency’s space need. They may be identified
in any format mutually agreeable to
GSA and the agency.
Special space means space which has
unusual architectural/construction features, requires the installation of special equipment, or requires disproportionately high or low costs to construct, maintain and/or operate as
compared to office or storage space.
Special space generally refers to space
which has construction features, finishes, services, utilities, or other additional costs beyond those specified in
the customer general allowance (e.g.,
courtrooms, laboratories).
Standard level of service. See § 102–
85.165 for the definition of standard
level of service.
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Federal Management Regulation
§ 102–85.50
Telecommunications means electronic
processing of information, either voice
or data or both, over a wide variety of
media, (e.g., copper wire, microwave,
fiber optics, radio frequencies), between individuals or offices within a
building (e.g., local area networks), between buildings, and between cities.
Tenant improvement (TI) means a finished component of an interior block of
space. Tenant improvements represent
additions to or alterations of the building shell that adapt the workspace to
the specific uses of the customer. If
made at initial occupancy, the TIs are
known as initial space alterations or
ISAs.
Tenant improvement (TI) allowance
means the dollar amount, including design, labor, materials, contractor costs
(if contractors are used), management,
and inspection, that GSA will spend to
construct, alter, and finish space for
customer occupancy (excluding personal property and furniture, which are
customer agency responsibilities) at
initial occupancy. The dollar amounts
for the allowances are different for
each agency and bureau to accommodate agencies’ different mission needs.
The dollar amounts also may vary by
locations reflecting different costs in
different markets. The PBS bill will
only reflect the actual amount the customers spend, not the allowance. The
amount of the TI allowance is determined by GSA. Agencies can request
that GSA revise the TI allowance
amount by project or categorically for
an entire bureau. The cost of replacement of tenant improvements is borne
by the customer agency.
Unique space means space for which
there is no commercial market comparable (e.g., border stations).
Warehouse or warehouse space means
space contained in a structure primarily intended for the housing of
files, records, equipment, or other personal property, and is not primarily intended for housing personnel and office
operations. Warehouse space generally
is designed and constructed to lower
specifications than office buildings,
with features such as exposed ceilings,
unfinished perimeter and few dividing
partitions. Warehouse space also is
usually heated to a lesser degree but
not air-conditioned, and is cleaned to
lesser standards than office space.
Workspace means Federally controlled space in buildings and structures (permanent, semi-permanent, or
temporary) that provides an acceptable
environment for the performance of
agency mission requirements by employees or by other persons occupying
it.
§ 102–85.40 What are the major components of the pricing policy?
The major components of the pricing
policy are:
(a) An OA between a customer agency and GSA;
(b) Tenant improvement allowance;
and
(c) The establishment of Rent the
agency pays to GSA based on the OA
for:
(1) Leased space, a pass-through to
the customer agency of the underlying
GSA lease contract costs, and a PBS
fee; or
(2) GSA-owned space, Rent determined by appraisal.
Subpart B—Occupancy
Agreement
§ 102–85.45 When is an
Agreement required?
An Occupancy Agreement (OA) is required for each customer agency’s
space assignment. The OA must be
agreed to by GSA and the customer
agency prior to GSA’s commitment of
funds for occupancy and formal assignment of space.
§ 102–85.50 When does availability of
funding have to be certified?
The customer agency must sign an
OA prior to GSA’s making any major
contractual commitments associated
with the space request. Typically, this
should occur at the earliest possible
opportunity-i.e., when funds become
available. However, in no event shall
certification occur later than just prior
to the award of the contract to a design architect in the case of Federal
construction or renovation in Federally owned space or prior to the award
of a lease. This serves as a customer
agency’s funding commitment unless
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§ 102–85.55
41 CFR Ch. 102 (7–1–16 Edition)
certification is provided on another
document.
§ 102–85.55 What are the terms and
conditions included in an OA?
The terms and conditions are modeled after commercial practice. They
are intended to reflect a full mutual
understanding of the financial terms
and agreement of the parties. The OA
describes the actual space and services
to be provided and all associated actual
costs to the customer during the term
of occupancy. The OA does not include
any general provisions or terms contained in this part. OAs typically describe the following, depending on
whether the space is leased or Federally owned:
(a) Assigned square footage;
(b) Shell Rent and term of occupancy;
(c) Amortized amount of customer allowance used;
(d) Operating costs and escalations;
(e) One time charges; e.g., lump sum
payments by the customer;
(f) Real estate tax and escalations;
(g) Parking and escalations;
(h) Additional/reduced services;
(i) Security services and associated
Rent;
(j) Joint use space and associated
Rent;
(k) PBS fee;
(l) Customer rights and provisions for
occupancy after OA expiration;
(m) Cancellation provisions if different from this part or the customer
service guides;
(n) Any special circumstances associated with the occupancy, such as environmental responsibilities, unusual use
restrictions, or agreements with local
authorities;
(o) Emergency relocations;
(p) Clauses specific to the agreement;
(q) Other Rent, e.g., charges for antenna sites, land;
(r) Agency standard clauses; and
(s) General clauses defining the obligations of both parties.
§ 102–85.60 Who can execute an OA?
Authorized GSA and customer agency officials who can commit or obligate
the funds of their respective agencies
can execute an OA. Higher level signatories may be appropriate from both
agencies for space assignments in
owned or leased space, that are unusual
in size, location, duration, public interest, or other factors. Each agency decides its appropriate signatory level.
§ 102–85.65 How does an OA obligate
the customer agency?
An OA obligates the executing customer agency to fund the current-year
Rent obligation owed GSA, as well as
to reimburse GSA for any other bona
fide obligations that GSA may have incurred on behalf of the customer agency. Although the OA is an interagency
agreement, memorializing the understanding of GSA and its customer
agency, the OA may not be construed
as obligating future year customer
agency funds until they are legally
available. A multi-year OA commitment assumes the customer agency
will seek the necessary funding
through budget and appropriations
processes.
§ 102–85.70 Are the standard OA terms
appropriate
for
non-cancelable
space?
Yes, most of the standard terms
apply; however, the right to cancel
upon a 4-month (120 day) notice is not
available. See § 102–85.35 for the definition of non-cancelable space.
§ 102–85.75 When can space
ments be terminated?
(a) Customer agencies can terminate
any space assignments, except those
designated as non-cancelable, with the
following stipulations:
(1) The agency must give GSA written notice at least four months prior to
termination.
(2) The agency is responsible for reimbursing GSA for the unpaid balance
of the cost of tenant improvements,
generally prior to GSA releasing the
agency from the space assignment. In
the event the customer agency received a rent concession (e.g., free
rent) at the inception of the assignment as part of the consideration for
the entire lease term, then the amount
of the concession applicable to the remaining term must be repaid to GSA.
(3) If the space to be vacated is ready
for occupancy by another customer and
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Federal Management Regulation
§ 102–85.110
marketable, GSA accepts the termination of assignment.
(4) If the agency has vacated all of
the space and removed all personal
property and equipment from the space
by the cancellation date in the written
notice, the agency will be released effective that date from further Rent
payments.
(5) An agency may terminate a GSA
space assignment with less than a fourmonth advance written notice to GSA,
if:
(i) Either GSA or the terminating
agency has identified another agency
customer for the assigned space and
that substitute agency wants and is
able to fully assume the Rent payments due from the terminating agency; and
(ii) The terminating agency continues to pay Rent until the new agency starts paying Rent.
(b) GSA can terminate space assignments according to GSA regulations
for emergency or forced moves.
(c) OAs terminate automatically at
expiration.
§ 102–85.80 Who is financially responsible for expenses resulting from
tenant non-performance?
The customer agencies are financially responsible for expenses incurred
by the Government as a result of any
failure on their part to fulfill a commitment outlined in an OA or other
written agreements in advance of, or in
addition to, the OA. Customer agencies
are also financially responsible for revised design costs and any additional
costs resulting from changes to space
requirements or space layouts made by
the agency after a lease, alteration, design, or construction contract has been
awarded by GSA.
§ 102–85.85 What if a customer agency
participates in a consolidation?
If an agency agrees to participate in
a consolidation upon expiration of an
OA, the relocation expenses will be addressed in the new OA negotiated by
GSA and the customer agency. The
customer agency generally pays such
costs.
Subpart C—Tenant Improvement
Allowance
§ 102–85.90 What is a tenant improvement allowance?
A tenant improvement (TI) allowance
enables the customer agency to design,
configure and build out space to support its program operations. It is based
on local market construction costs and
the specific bureau’s historical use of
space. (See also the definition at § 102–
85.35.)
§ 102–85.95 Who pays for the TI allowance?
The customer agency pays for the
amount of the tenant improvement allowance actually used.
§ 102–85.100 How does a customer
agency pay for tenant improvements?
To pay for the installation of tenant
improvements, the customer agency
may spend an amount not to exceed
the tenant allowance. The amount
spent by the customer agency for TIs is
amortized over a period of time specified in the OA, not to exceed the useful
life of the improvements. This amortization payment is in addition to the
shell rent and services.
§ 102–85.105 How does an agency pay
for customer alterations that exceed the TI allowance?
Amounts exceeding the TI allowance
are paid in a one-time lump sum and
are not amortized over the term of the
occupancy. The agency certifies lump
sum funds are available prior to GSA
proceeding with the work.
§ 102–85.110 Can
the
allowance
amount be changed?
The GSA schedule of allowances for
new assignments is adjusted annually
for design and construction cost
changes. As the need arises, GSA may
adjust an agency or bureau’s TI allowance. GSA may also adjust a TI allowance for a specific project, if conditions
warrant. This decision is solely GSA’s.
In addition, the customer agency may
waive any part or all of its
customization allowance in the case of
a new space assignment. In the case of
backfill space (also known as relet
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§ 102–85.115
41 CFR Ch. 102 (7–1–16 Edition)
space), the customer agency can also
waive any part or all of the tenant general allowance, if the customer agency
will use the existing tenant improvements, with or without modifications.
Subpart D—Rent Charges
§ 102–85.115 How is the Rent determined?
Unless an exemption is granted under
the authority of the Administrator of
General Services, the Rent charged approximates commercial charges for
comparable space and space-related
services as follows:
(a) Generally, Rent for Federally
owned space provided by GSA is based
on market appraisals of fully serviced
rental values for the predominant use
to which space in a building is put; e.g.,
general use, warehouse use, and parking use. In cases where market appraisals are not practical; e.g., in cases involving unique space or when market
comparables are not available, GSA
may establish Rent on the basis of alternate commercial practices. See the
discussion of alternate valuation methods in § 102–85.125. Amortization of tenant improvements, parking fees, and
security charges are calculated separately and added to the appraised shell
Rent to establish the Rent charge. Customer agencies also pay for a pro rata
share of joint use space.
(b) Generally, Rent for space leased
by GSA is based on the actual cost of
the lease, including the costs (if any) of
services not provided by the lessor,
plus a GSA fee, and security charges
and parking (if not in the lease).
(1) The Rent is based on the terms
and conditions of the OA, starting with
the shell Rent.
(2) In addition to the shell Rent, the
Rent includes amortization of TI allowances used, real estate taxes, operating
costs, extra services, parking, GSA fee
for its services, and charges for security, joint-use, and other applicable
rental charges (e.g., antenna site, land,
wareyard).
§ 102–85.120 What is shell Rent?
Shell Rent is that portion of GSA
Rent charged for the building envelope
and land. (See § 102–85.35 for the definition of building shell.)
§ 102–85.125 What alternate methods
may be used to establish Rent in
Federally-owned space?
Alternate methods of establishing
Rent are based on private sector models. They include, but are not limited
to:
(a) Return on investment (ROI) approach or a similar cost recovery method used when market comparables are
not available and/or GSA must ‘‘build
to suit’’ to fulfill customer agency requirements; e.g., border stations; and
(b) Rent schedules for the right to
use rooftops and other floor areas not
suitable for workspace; e.g., antenna
sites and signage.
§ 102–85.130 How are exemptions from
Rent granted?
Exemptions from Rent are rare. However, the Administrator of General
Services may exempt any GSA customer from Rent after a determination
that application of Rent would not be
feasible or practical. Customer agency
requests for exemptions must be addressed to the Administrator of General Services and submitted in accordance with GSA Order PBS 4210.1, ‘‘Rent
Exemption Procedures,’’ dated December 20, 1991, or in accordance with any
superseding GSA order. A copy of the
order may be obtained from the Office
of Portfolio Management, General
Services Administration, 1800 F Street,
NW., Washington, DC 20405.
§ 102–85.135 What if space and services
are provided by other executive
agencies?
Any executive agency other than
GSA providing space and services is authorized to charge the occupant for the
space and services at rates approved by
the Administrator of General Services
and the Director of the Office of Management and Budget. If space and services are of the type provided by the Administrator of General Services, the
executive agency providing the space
and services must credit the monies derived from any fees or charges to the
appropriation or fund initially charged
for providing the space or services, as
prescribed by Subsection 210(k) of the
Federal Property and Administrative
Services Act of 1949, as amended (40
U.S.C. 490(k)).
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Federal Management Regulation
§ 102–85.155
§ 102–85.140 How are changes in Rent
reflected in OAs?
(a) If Rent changes in ways that are
identified in the OA, then no change to
the OA is required. Typically, OAs
state that certain components of Rent
are subject to annual escalation; e.g.,
operating expenses, real estate taxes,
parking charges, the basic security
charge, and building-specific security
operating and amortized capital expenses which do not entail a change in
service level. Also, in Federally-owned
space, OAs state that the shell rent is
re-marked to market every five years.
In leased space, the OA will identify
any programmed changes in the lease
contract rent (such as pre-set increases
or steps in the contract rent rate) that
will translate into a change in the customer agency’s Rent. Changes in Rent
specified in OAs will serve as notice to
agencies of future Rent changes for
budgeting purposes. For a discussion of
budgeting for Rent, see § 102–85.160.
(b) Changes to Rent other than those
identified in paragraph (a) of this section typically require an amended OA.
There are many events that might occasion a change in Rent, and an amended OA, such as:
(1) An agency expands or contracts at
an existing location;
(2) PBS agrees to fund additional tenant improvements that are then amortized over the remaining OA term, or
over an extended OA term;
(3) Upon physical re-measurement,
the true square footage of the space assignment is found to be different from
the square footage of record;
(4) The amount of joint use space in
the building changes;
(5) The level of building-specific security services changes; or
(6) PBS undertakes new capital expenditures for new or enhanced security countermeasures.
§ 102–85.145 When are customer agencies responsible for Rent charges?
(a) When a customer agency occupies
cancelable space, it is responsible for
Rent charges until:
(1) The date of release specified in
the OA, or until the date space is actually vacated, whichever occurs later; or
(2) Four months after having provided GSA written notice of release; or
(3) The date space is actually vacated, whenever occupancy extends beyond the date agreed upon under either
paragraph (a)(1) or (2) of this section.
(b) When a customer agency releases
non-cancelable space, it is responsible
for all attributable Rent and other
space charges until the OA expires.
This responsibility is mitigated to the
extent that GSA is able to assign the
space to another user or dispose of it.
(See § 102–85.65 How does an OA obligate
the customer agency?)
(c) When a customer agency commits
to occupy space in an OA or other binding document, but never occupies that
space, that agency is responsible for:
(1) Non-cancelable space: Rent payments due for the space until the OA
expires, unless GSA can mitigate; or
(2) All other space: Either GSA’s
space charges for 4 months plus the
cost of tenant improvements or GSA’s
actual costs, whichever is less.
§ 102–85.150 How will Rent charges be
reflected on the customer agency’s
Rent bill?
Rent charges are billed monthly, in
arrears, based on an annual rate which
is divided by 12. Billing commences the
first month in which the agency occupies the space for more than half of the
month, and ends in the last month the
agency occupies the space.
§ 102–85.155 What does a customer
agency do if it does not agree with
a Rent bill?
(a) If a customer agency does not
agree with the way GSA has determined its Rent obligation (e.g., the
agency does not agree with GSA’s
space classification, appraised Rent, or
the allocation of space), the agency
may appeal its Rent bill to GSA.
(b) GSA will not increase or otherwise change Rent for any assignment,
except as agreed in an OA, in the case
of errors, or when the OA is amended.
However, customer agencies may at
any time request a regional review of
the measurement, classification, service levels provided, or charges assessed
that pertain to the space assignment
without resorting to formal procedures. Such requests do not constitute
appeals and should be directed to the
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§ 102–85.160
41 CFR Ch. 102 (7–1–16 Edition)
appropriate GSA Regional Administrator.
(c) If a customer agency still wants
to pursue a formal appeal of Rent
charges, they may do so, but with the
following limitations:
(1) Terms, including rates, to which
the parties agree in an OA are not appealable;
(2) In leased space, the contract rent
passed through from the underlying
lease cannot be appealed;
(3) In GSA-owned space, when the
fully-serviced shell Rent is established
through appraisal, the appraised rate
must exceed comparable commercial
square foot rates by 20 percent. When
shell Rent in owned space is established on the basis of ROI at the inception of an OA, and the customer agency
executes the OA, then the ROI rate
cannot later be appealed. Other components of Rent that are established on
the basis of actual cost—eg., amortization of TIs and building specific security charges—also cannot be appealed.
(4) Additionally, the customer agency
is required to compare its assigned
space with other space in the surrounding community that:
(i) Is available in similar size block
of space in a comparable location;
(ii) Is comparable in quality to the
space provided by GSA;
(iii) Provides similar service levels as
part of the charges;
(iv) Contains similar contractual
terms, conditions, and escalations
clauses; and
(v) Represents a lease transaction
completed at a similar point in time.
(5) Data from at least three comparable locations will be necessary to
demonstrate a market trend sufficient
to warrant revising an appraised Rent
charge.
(d) A customer agency filing an appeal for a particular location or building must develop documentation supporting the appeal and file the appeal
with the appropriate Regional Administrator. The GSA regional office will
verify all pertinent information and
documentation supporting the appeal.
The GSA Regional Administrator will
accept or deny the appeal and will notify the appealing agency of his or her
ruling.
(e) A further appeal may be filed by
the customer agency’s headquarters
level officials with the Commissioner,
Public Buildings Service, if equitable
resolution has not been obtained from
the initial appeal. A head of a customer
agency may further appeal to the Administrator of the General Services.
Documentation of the procedures followed for prior resolution must accompany an appeal to the Administrator.
Decisions made by the Administrator
are final.
(f) Adjustments of Rent resulting
from reviews and appeals will be effective in the month that the agency submitted a properly documented appeal.
Adjustments in Rent made under this
section remain in effect for the remainder of the 5-year period in which the
charges cited in the OA were applicable.
§ 102–85.160 How does a customer
agency know how much to budget
for Rent?
GSA normally provides customer
agencies an estimate of Rent increases
approximately 2 months prior to the
agencies’ Office of Management and
Budget (OMB) submission for the fiscal
year in which GSA will charge Rent.
This gives the affected customer agencies an opportunity to budget for an increase or decrease. However, GSA must
obtain the concurrence of OMB for
such changes prior to notifying customer agencies. In the event GSA is
unable to provide timely notice of a future Rent increase, customer agencies
are nonetheless obligated to pay the increased Rent amount. For existing assignments in owned buildings, GSA
charges for fully serviced shell Rent, in
aggregate, shall not exceed the bureau
level budget estimates provided to the
customer agencies annually. This provision does not apply to:
(a) New assignments;
(b) Changes in current assignments;
(c) Leased space;
(d) New tenant improvement amortization;
(e) Building specific security costs;
and
(f) New amortization of capital expenditures under ROI pricing due to
changes in scope of proposed projects
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Federal Management Regulation
§ 102–85.195
or repair and/or replacement of building components
Subpart E—Standard Levels of
Service
§ 102–85.165 What are standard levels
of service?
(a) The standard levels of service covered by GSA Rent are comparable to
those furnished in commercial practice. They are based on the effort required to service the customer agency’s
space for a 5-day week (Monday to Friday), one-shift regular work schedule.
GSA will provide adequate building
startup services, before the beginning
of the customer’s regular one-shift
work schedule, and shutdown services
after the end of this schedule.
(b) Without additional charge, GSA
customers may use their assigned
space and supporting automatic elevator systems, lights and small office and
business machines including personal
computers on an incidental basis, unless specified otherwise in the OA.
§ 102–85.170 Can flexitime and other
alternative work schedules cost the
customer agency more?
Yes, GSA customers who extend their
regular work schedule by a system of
flexible hours shall reimburse GSA for
its approximate cost of the additional
services required.
§ 102–85.175 Are the standard level
services for cleaning, mechanical
operation, and maintenance identified in an OA?
Unless specified otherwise in the OA,
standard level services for cleaning,
mechanical operation, and maintenance shall be provided in accordance
with the GSA standard level of services
as defined in § 102–85.165, and in the
PBS Customer Guide to Real Property.
A copy of the guide may be obtained
from the General Services Administration, Office of Business Performance
(PX), 1800 F Street, NW., Washington,
DC 20405.
§ 102–85.180 Can there be other standard services?
GSA may provide additional services
to its customers at the levels and times
deemed by the Administrator of Gen-
eral Services to be necessary for efficient operations and proper servicing
of space under the assignment responsibility of GSA.
§ 102–85.185 Can space be exempted
from the standard levels of service
Yes, customer agencies may be excused from paying for standard service
levels for space assignments when:
(a) In GSA-delegated space, the customer agency provides for these services itself and thus pays Rent minus
charges for these services; or
(b) In rare instances, standard service
levels may be waived by the Administrator of General Services in instances
where charging for such standard services would not be feasible or practical,
e.g., in assignments of limited square
footage or functional use.
§ 102–85.190 Can GSA Rent be adjusted
when standard levels of service are
performed by other customer agencies?
Customer agencies that arrange and
pay separately for the costs of standard
level services normally covered by GSA
Rent will receive a Rent credit or other
type of reimbursement by GSA for the
amount GSA would have charged for
such services. The type of reimbursement is at GSA’s discretion. The reimbursement is limited to the amount included for the services in GSA Rent.
Approval to perform or contract for
such services must be obtained in advance by the customer agency from the
appropriate GSA regional office.
Subpart F—Special Services
§ 102–85.195 Does GSA provide special
services?
Yes, GSA provides special services on
a cost-reimbursable basis:
(a) In GSA-controlled space, GSA
may provide for special services that
cannot be separated from the building
or space costs (inseparable services,
such as utilities, which are not individually metered). GSA’s estimate of the
special service cost is the basis for the
bill amount. The bill amount for separable special services is either based on
a previously agreed upon fixed price or
the actual cost, including a fee for
GSA’s services.
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§ 102–85.200
41 CFR Ch. 102 (7–1–16 Edition)
(b) GSA can also provide special services to other Federal agencies in agency-controlled and operated space on a
cost-reimbursable basis.
Subpart
G—Continued
Occupancy,
Relocation
and
Forced Moves
§ 102–85.200 Can customer agencies
continue occupancy of space or
must they relocate at the end of an
OA?
The answer is contingent upon
whether the customer agency is in Federally owned or leased space.
(a) Unless stated otherwise in the
OA, a customer agency within a GSA
controlled, Federally owned building
has automatic occupancy rights at the
end of the OA term for occupied space.
However, a new OA must be negotiated.
(b) In leased space, the OA generally
reflects the provisions of the underlying lease and will specify whether or
not renewal options are available. If
the OA does not include a renewal option, customer agencies should assume
relocation would be necessary upon OA
expiration, and budget for it. Further,
renewal options are not, in themselves,
a guarantee of continued occupancy at
that location. In some cases, the renewal rate is substantially above market or the option was not part of the
initial price evaluation for the occupancy. In such cases, GSA may be required to run a competition for the replacement lease, and a relocation may
ensue. Nonetheless, it is also possible
that GSA may execute a succeeding
lease with the incumbent lessor, in
which case there is no move.
(c) GSA and customer agencies
should initiate discussions at least 18–
20 months in advance of OA expiration
to address an action for the replacement or continued occupancy of the existing space assignment. This allows
both agencies time to budget for the
work and the cost.
§ 102–85.205 What happens if a customer agency continues occupancy
after the expiration of an OA?
A mutual goal of GSA and its customers is to have current OAs in place
for all space assignments. However,
provisions are necessary to cover the
GSA and customer relationship if an
OA expires prior to execution of a mutually desired succeeding agreement.
Because the risks, liabilities, and consequences of a customer’s continued
occupancy depend on whether the assigned space is leased or Federally
owned, different provisions in the following table apply:
HOLDOVER TENANCY—CUSTOMER AGENCY RESPONSIBILITIES IN THE EVENT OF TENANT
DELAY IN VACATING SPACE
In leased space
In federally owned space
To pay those costs associated with lease contract,
GSA fee, and damages/
claims, arising from
changes in GSA contract
costs which are caused by
the tenant’s delay.
To pay Rent as determined
by GSA’s pricing policy, as
described in this part, and
those added costs to GSA
(claims, damages,
changes, etc.) resulting
from the tenant-caused
delay.
§ 102–85.210 What if a customer agency
has to relocate?
If the agency or GSA determines relocation is necessary at the expiration
of an OA for either Federally owned or
leased space, the customer agency is
responsible for all costs associated
with relocation at that time.
§ 102–85.215 What if another customer
agency forces a GSA customer to
move?
If a GSA customer agency, or GSA,
forces the relocation of another GSA
customer agency prior to the expiration of the customer’s OA, the ‘‘forcing’’ agency is responsible:
(a) For all reasonable costs associated with the relocation of the agency
being ‘‘forced’’ to move, including architectural-engineering design, move
coordination and physical relocation,
telecommunications and ADP equipment relocation and installation;
(b) To GSA for all of the relocated
agency’s unpaid tenant improvements,
if any; and
(c) To the customer agency for the
undepreciated amount of any lump sum
payment that was already made by the
agency for alterations.
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Federal Management Regulation
§ 102–85.225
§ 102–85.220 Can a customer agency
forced to relocate waive the reimbursements?
Yes, a customer agency forced to relocate can waive some or all of the reimbursements from the forcing agency
that are prescribed in § 102–85.215. However, a relocated customer agency cannot waive the requirement for the forcing customer agency to reimburse GSA
for unpaid tenant improvements. If
GSA is the ‘‘forcing’’ agency, it is responsible for the same costs as any
other forcing customer agency.
§ 102–85.225 What are the funding responsibilities for relocations resulting from emergencies?
(a) In emergencies, swift remedies,
including the possible relocation of a
customer agency to alternate space,
are required. The remedies may include
requests for funding authorizations
from OMB and Congress. GSA may
serve as the central coordinator of such
remedies.
(b) Funding responsibility will vary
by situation. If a customer agency is
only temporarily displaced from its
space, GSA typically covers the cost of
temporary set-up in a provisional location. If the agency is obliged to relocate permanently, an OA will be prepared which will address all terms of
the occupancy. In such cases, new tenant improvements will be constructed
which can be amortized over the life of
a new occupancy term, and a new Rent
rate will be developed.
PARTS 102–86—102–92 [RESERVED]
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SUBCHAPTER D—TRANSPORTATION
goods or other related transportation
services?
PART 102–116—GENERAL
[RESERVED]
Subpart C—Business Rules To Consider Before Shipping Freight or Household
Goods
PART 102–117—TRANSPORTATION
MANAGEMENT
Subpart A—General
Sec.
102–117.5 What is transportation management?
102–117.10 What is the scope of this part?
102–117.15 To whom does this part apply?
102–117.20 Are any agencies exempt from
this part?
102–117.25 What definitions apply to this
part?
Subpart B—Acquiring Transportation or
Related Services
102–117.30 What choices do I have when acquiring transportation or related services?
102–117.35 What are the advantages and disadvantages to using GSA’s tender of
service?
102–117.40 When is it advantageous for me to
use another agency’s contract or rate
tender for transportation services?
102–117.45 What other factors must I consider when using another agency’s contract or rate tender?
102–117.50 What are the advantages and disadvantages of contracting directly with a
TSP under FAR?
102–117.55 What are the advantages and disadvantages of using a rate tender?
102–117.60 What is the importance of the
terms and conditions in a rate tender or
other transportation document?
102–117.65 What terms and conditions must
all rate tenders or contracts include?
102–117.70 Where do I find more information
on terms and conditions?
102–117.75 How do I reference the rate tender
on transportation documents?
102–117.80 How are rate tenders filed?
102–117.85 What is the difference between a
Government bill of lading (GBL) and a
bill of lading?
102–117.90 May I use a U.S. Government bill
of lading (GBL) to acquire freight, household goods or other related transportation services?
102–117.95 What transportation documents
must I use to acquire freight, household
102–117.100 What business rules must I consider before acquiring transportation or
related services?
102–117.105 What does best value mean when
routing a shipment?
102–117.110 What is satisfactory service?
102–117.115 How do I calculate total delivery
costs?
102–117.120 To what extent must I equally
distribute orders for transportation and
related services among TSPs?
102–117.125 How detailed must I describe
property for shipment when communicating to a TSP?
102–117.130 Must I select TSPs who use alternative fuels?
Subpart D—Restrictions That Affect International Transportation of Freight and
Household Goods
102–117.135 What are the international
transportation restrictions?
102–117.140 What is cargo preference?
102–117.145 What are coastwise laws?
102–117.150 What do I need to know about
coastwise laws?
102–117.155 Where do I go for further information about coastwise laws?
Subpart E—Shipping Freight
102–117.160 What is freight?
102–117.165 What shipping process must I use
for freight?
102–117.170 What reference materials are
available to ship freight?
102–117.175 What factors do I consider to determine the mode of transportation?
102–117.180 What transportation documents
must I use to ship freight?
102–117.185 Where must I send a copy of the
transportation documents?
102–117.190 Where do I file a claim for loss or
damage to property?
102–117.195 Are there time limits affecting
filing of a claim?
Subpart F—Shipping Hazardous Material
(HAZMAT)
102–117.200 What is HAZMAT?
102–117.205 What are the restrictions for
transporting HAZMAT?
102–117.210 Where can I get guidance on
transporting HAZMAT?
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Federal Management Regulation
Pt. 102–117
Subpart G—Shipping Household Goods
102–117.215 What
are
household
goods
(HHG)?
102–117.220 What choices do I have to ship
HHG?
102–117.225 What is the difference between a
contract or rate tender and a commuted
rate system?
102–117.230 Must I compare costs between a
contract or rate tender and the commuted rate system before choosing which
method to use?
102–117.235 How do I get a cost comparison?
102–117.240 What is my agency’s financial
responsibility to an employee who chooses to move all or part of his/her HHG
under the commuted rate system?
102–117.245 What is my responsibility in providing guidance to an employee who
wishes to use the commuted rate system?
102–117.250 What are my responsibilities
after shipping the household goods?
102–117.255 What actions may I take if the
TSP’s performance is not satisfactory?
102–117.260 What are my responsibilities to
employees regarding the TSP’s liability
for loss or damage claims?
102–117.265 Are there time limits that affect
filing a claim with a TSP for loss or damage?
Subpart H—Performance Measures
102–117.270 What are agency performance
measures for transportation?
Subpart J—Representation Before
Regulatory Body Proceedings
102–117.320 What is a transportation regulatory body proceeding?
102–117.325 May my agency appear on its
own behalf before a transportation regulatory body proceeding?
102–117.330 When, or under what circumstances, would GSA delegate authority to an agency to appear on its own behalf before a transportation regulatory
body proceeding?
102–117.335 How does my agency ask for a
delegation to represent itself in a regulatory body proceeding?
102–117.340 What other types of assistance
may GSA provide agencies in dealing
with regulatory bodies?
Subpart K—Transportation Reporting
102–117.345 What is the Federal Interagency
Transportation System (FITS)?
102–117.350 Do I have to report?
102–117.355 Why should I report?
102–117.356 What information should I report?
102–117.360 How do I submit information to
GSA through FITS?
Subpart L—Governmentwide
Transportation Policy Council (GTPC)
102–117.361 What is the Governmentwide
Transportation Policy Council (GTPC)?
102–117.362 Where can I get more information about the GTPC?
Subpart M—Recommendations for Authorization and Qualifications to Acquire
Transportation Using a Rate Tender
Subpart I—Transportation Service Provider
(TSP) Performance
102–117.275 What performance must I expect
from a TSP?
102–117.280 What aspects of the TSP’s performance are important to measure?
102–117.285 What are my choices if a TSP’s
performance is not satisfactory?
102–117.290 What is the difference between
temporary nonuse, suspension and debarment?
102–117.295 Who makes the decisions on temporary nonuse, suspension and debarment?
102–117.300 Do the decisions on temporary
nonuse, suspension and debarment go beyond the agency?
102–117.305 Where do I go for information on
the process for suspending or debarring a
TSP?
102–117.310 What records must I keep on
temporary nonuse, suspension or debarment of a TSP?
102–117.315 Who must I notify on suspension
or debarment of a TSP?
102–117.365 What are the responsibilities of a
Transportation Officer?
102–117.370 Should I have a Transportation
Officer warrant to acquire transportation
services using a rate tender?
102–117.375 Are there instances where a
Transportation Officer warrant is not
necessary to acquire transportation services?
102–117.380 What should be contained in a
Transportation Officer warrant to acquire transportation services?
102–117.385 Is there a standard format for a
Transportation Officer warrant?
102–117.390 What are the recommended
Transportation Officer training and/or
experience levels?
102–117.395 Should I continue my training to
maintain my warrant?
102–117.400 How should my warrant be documented?
AUTHORITY: 31 U.S.C. 3726; 40 U.S.C. 121(c);
40 U.S.C. 501, et seq.; 46 U.S.C. 55305; 49 U.S.C.
40118.
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§ 102–117.5
41 CFR Ch. 102 (7–1–16 Edition)
SOURCE: 65 FR 60061, Oct. 6, 2000, unless
otherwise noted.
Subpart A—General
§ 102–117.5 What
is
transportation
management?
Transportation management is agency oversight of the physical movement
of commodities, household goods (HHG)
and other freight from one location to
another by a transportation service
provider (TSP).
§ 102–117.10 What is the scope of this
part?
This part addresses shipping freight
and
household
goods
worldwide.
Freight is property or goods transported as cargo. Household goods are
not Government property, but are employees’ personal property entrusted to
the Government for shipment.
§ 102–117.15 To whom does this part
apply?
This part applies to all agencies and
wholly-owned Government corporations as defined in 5 U.S.C. 101, et seq.
and 31 U.S.C. 9101(3), except as otherwise expressly provided.
[79 FR 33476, June 11, 2014]
§ 102–117.20 Are any agencies exempt
from this part?
(a) The Department of Defense is exempted from this part by an agreement
under the Federal Property and Administrative Services Act of 1949, as
amended (40 U.S.C. 481 et seq.), except
for the rules to debar or suspend a TSP
under the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4).
(b) Subpart D of this part, covering
household goods, does not apply to the
uniformed service members, under
Title 37 of the United States Code,
‘‘Pay and Allowances of the Uniformed
Services,’’ including the uniformed
service members serving in civilian
agencies such as the U.S. Coast Guard,
National Oceanic and Atmospheric Administration and the Public Health
Service.
§ 102–117.25 What definitions apply to
this part?
The following definitions apply to
this part:
Accessorial charges means charges
that are applied to the base tariff rate
or base contract of carriage rate. Examples of accessorial charges are:
(1)
Bunkers,
destination/delivery,
container surcharges, and currency exchange for international shipments.
(2) Inside delivery, redelivery, re-consignment, and demurrage or detention
for freight.
(3) Packing, unpacking, appliance
servicing, blocking and bracing, and
special handling for household goods.
Agency means an executive department or independent establishment in
the executive branch of the Government, and a wholly owned Government
corporation.
Bill of lading, sometimes referred to
as a commercial bill of lading (but includes GBLs), is the document used as
a receipt of goods and documentary
evidence of title.
Cargo preference is the legal requirement for all, or a portion of all, oceanborne cargo to be transported on U.S.
flag vessels.
Commuted rate system is the system
under which an agency may allow its
employees to make their own household goods shipping arrangements, and
apply for reimbursement.
Consignee is the person or agent to
whom freight or household goods are
delivered.
Consignor, also referred to as the
shipper, is the person or firm that ships
freight or household goods to a consignee.
Contract of carriage is a contract between the TSP and the agency to
transport freight or household goods.
Debarment is an action to exclude a
TSP, for a period of time, from providing services under a rate tender or
any contract under the Federal Acquisition Regulation (48 CFR part 9, subpart 9.406).
Demurrage is the penalty charge to an
agency for delaying the agreed time to
load or unload shipments by rail or
ocean TSPs.
Detention is the penalty charge to an
agency for delaying the agreed time to
load or unload shipments by truck
TSPs. It is also a penalty charge in
some ocean shipping contracts of carriage that take effect after the demurrage time ends.
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Federal Management Regulation
§ 102–117.25
Electronic commerce is an electronic
technique for carrying out business
transactions (ordering and paying for
goods and services), including electronic mail or messaging, Internet
technology, electronic bulletin boards,
charge cards, electronic funds transfers, and electronic data interchange.
Foreign flag vessel is any vessel of foreign registry including vessels owned
by U.S. citizens but registered in a foreign country.
Freight is property or goods transported as cargo.
Government bill of lading (GBL) is the
transportation document used as a receipt of goods, evidence of title, and a
contract of carriage for Government
international shipments.
Governmentwide Transportation Policy
Council (GTPC) is an interagency forum
to help GSA formulate policy. It provides agencies managing transportation programs a forum to exchange
information and ideas to solve common
problems. For further information on
this council, see web site: http://
www.policyworks.gov/transportation.
Hazardous material (HAZMAT) is a
substance or material the Secretary of
Transportation determines to be an unreasonable risk to health, safety, and
property when transported in commerce, and labels as hazardous under
section 5103 of the Federal Hazardous
Materials Transportation Law (49
U.S.C. 5103 et seq.). When transported
internationally hazardous material
may be classified as ‘‘Dangerous
Goods.’’ All such freight must be
marked in accordance with applicable
regulations and the carrier must be notified in advance.
Household goods (HHG) are the personal effects of Government employees
and their dependents.
Line-Haul is the movement of freight
between cities excluding pickup and
delivery service.
Mode is a method of transportation,
such as rail, motor, air, water, or pipeline.
Rate schedule is a list of freight rates,
taxes, and charges assessed against
non-household goods cargo.
Rate tender is an offer a TSP sends to
an agency, containing service rates and
charges.
Receipt is a written or electronic acknowledgment by the consignee or TSP
as to when and where a shipment was
received.
Release/declared value is stated in dollars and is considered the assigned
value of the cargo for reimbursement
purposes, not necessarily the actual
value of the cargo. Released value may
be more or less than the actual value of
the cargo. The released value is the
maximum amount that could be recovered by the agency in the event of loss
or damage for the shipments of freight
and household goods. The statement of
released value must be shown on any
applicable tariff, tender, or other document covering the shipment.
Reparation is a payment to or from
an agency to correct an improper
transportation billing involving a TSP.
Improper routing, overcharges or duplicate payments may cause such improper billing. This is different from a
payment to settle a claim for loss and
damage.
Suspension is an action taken by an
agency to disqualify a TSP from receiving orders for certain services
under a contract or rate tender (48 CFR
part 9, subpart 9.407).
Third Party Logistics (3PL) is an entity that provides multiple logistics
services for use by customers. Among
the transportation services that 3PLs
generally provide are integration
transportation, warehousing, crossdocking, inventory management, packaging, and freight forwarding.
Transportation document is any executed agreement for transportation
service, such as bill of lading, Government bill of lading (GBL), Government
travel request (GTR) or transportation
ticket.
Transportation Officer (TO) is a person
authorized, in accordance with this
part, to select transportation service
providers using rate tenders. Duties
may include, but are not limited to, selecting Third Party Logistics (3PL) or
Transportation
Service
Providers
(TSP), and issuing bills of lading.
Transportation Officer Warrant is an
agency-issued document that authorizes a Transportation Officer (TO) to
procure transportation services using
rate tenders, which may include, but
are not limited to, selecting Third
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§ 102–117.30
41 CFR Ch. 102 (7–1–16 Edition)
Party Logistics (3PL) or Transportation Service Providers (TSP), issuing
bills of lading, and otherwise performing the duties of a TO.
Transportation service provider (TSP) is
any party, person, agent or carrier that
provides freight or passenger transportation and related services to an agency. For a freight shipment this would
include packers, truckers and storers.
For passenger transportation this
would include airlines, travel agents
and travel management centers.
U.S. flag air carrier is an air carrier
holding a certificate issued by the
United States under 49 U.S.C. 41102 (49
U.S.C. 40118, 48 CFR part 47, subpart
47.4).
U.S. flag vessel is a commercial vessel,
registered and operated under the laws
of the U.S., owned and operated by U.S.
citizens, and used in commercial trade
of the United States.
and optimum service that result from a
larger volume of business;
(2) Use a uniform tender of service;
(3) Obtain assistance with loss and
damage claims; and
(4) Use GSA’s Transportation management and operations expertise.
(b) It is a disadvantage to use GSA’s
tender of service when:
(1) You want an agreement that is
binding for a longer term than the GSA
tender of service;
(2) You have sufficient time to follow
FAR contracting procedures and are in
position to make volume or shipment
commitments under a FAR contract;
(3) You do not want to pay for the
GSA administrative service charge as a
participant in the GSA rate tender programs; and
(4) Rates are not cost effective, as determined by the agency.
[65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26,
2000, as amended at 75 FR 51393, Aug. 20, 2010;
79 FR 55365, Sept. 16, 2014]
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
Subpart B—Acquiring
Transportation or Related Services
§ 102–117.40 When is it advantageous
for me to use another agency’s contract or rate tender for transportation services?
§ 102–117.30 What choices do I have
when acquiring transportation or
related services?
When you acquire transportation or
related services you may:
(a) Use the GSA tender of service;
(b) Use another agency’s contract or
rate tender with a TSP only if allowed
by the terms of that agreement or if
the Administrator of General Services
delegates authority to another agency
to enter an agreement available to
other Executive agencies;
(c) Contract directly with a TSP
using the acquisition procedures under
the Federal Acquisition Regulation
(FAR) (48 CFR chapter 1); or
(d) Negotiate a rate tender under a
Federal transportation procurement
statute, 49 U.S.C. 10721 or 13712.
§ 102–117.35 What are the advantages
and disadvantages of using GSA’s
tender of service?
(a) It is an advantage to use GSA’s
tender of service when you want to:
(1) Use GSA’s authority to negotiate
on behalf of the Federal Government
and take advantage of the lower rates
It is advantageous to use another
agency’s contract or rate tender for
transportation services when the contract or rate tender offers better or
equal value than otherwise available to
you.
§ 102–117.45 What other factors must I
consider when using another agency’s contract or rate tender?
When using another agency’s contract or rate tender, you must:
(a) Assure that the contract or rate
tender meets any special requirements
unique to your agency;
(b) Pay any other charges imposed by
the other agency for external use of
their contract or rate tender;
(c) Ensure the terms of the other
agency’s contract or rate tender allow
you to use it; and
(d) Ensure that the agency offering
this service has the authority or a delegation of authority from GSA to offer
such services to your agency.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
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Federal Management Regulation
§ 102–117.65
§ 102–117.50 What are the advantages
and disadvantages of contracting
directly with a TSP under the FAR?
(a) The FAR is an advantage to use
when:
(1) You ship consistent volumes in
consistent traffic lanes;
(2) You have sufficient time to follow
FAR contracting procedures; and
(3) Your contract office is able to
handle the requirement.
(b) The FAR may be a disadvantage
when you:
(1) Cannot prepare and execute a
FAR contract within your time frame;
(2) Have recurring shipments between
designated places, but do not expect
sufficient volume to obtain favorable
rates; or
(3) Do not have the manpower to
monitor quality control and administer
a contract.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
§ 102–117.55 What are the advantages
and disadvantages of using a rate
tender?
(a) Using a rate tender is an advantage when you:
(1) Have a shipment that must be
made within too short a time frame to
identify or solicit for a suitable contract;
(2) Have shipments recurring between
designated places, but do not expect
sufficient volume to obtain favorable
rates; or
(3) Are not in a position to make a
definite volume and shipment commitment under a FAR contract.
(b) Using a rate tender may be a disadvantage when:
(1) You have sufficient time to use
the FAR and this would achieve better
results;
(2) You require transportation service for which no rate tender currently
exists; or
(3) A TSP may revoke or terminate
the tender on short notice.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
§ 102–117.60 What is the importance of
terms and conditions in a rate tender or other transportation document?
Terms and conditions are important
to protect the Government’s interest
and establish the performance and
standards expected of the TSP. It is
important to remember that terms and
conditions are:
(a) Negotiated between the agency
and the TSP before movement of any
item; and
(b) Included in all contracts and rate
tenders listing the services the TSP is
offering to perform at the cost presented in the rate tender or other
transportation document.
NOTE TO § 102–117.60: You must reference
the negotiated contract or rate tender on all
transportation documents. For further information see § 102–117.65.
§ 102–117.65 What terms and conditions must all rate tenders or contracts include?
All rate tenders and contracts must
include, at a minimum, the following
terms and conditions:
(a) Charges cannot be prepaid.
(b) Charges are not paid at time of
delivery.
(c) Interest shall accrue from the
voucher payment date on overcharges
made and shall be paid at the same
rate in effect on that date as published
by the Secretary of the Treasury according to the Debt Collection Act of
1982, 31 U.S.C. 3717.
(d) To qualify for the rates specified
in a rate tender filed under the provisions of the Federal transportation
procurement statutes (49 U.S.C. 10721
or 13712), property must be shipped by
or for the Government and the rate
tender must indicate the Government
is either the consignor or the consignee
and include the following statement:
Transportation is for the (agency name)
and the total charges paid to the transportation service provider by the consignor or
consignee are for the benefit of the Government.
(e) When using a rate tender for
transportation under a cost-reimbursable contract, include the following
statement in the rate tender:
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§ 102–117.70
41 CFR Ch. 102 (7–1–16 Edition)
Transportation is for the (agency name),
and the actual total transportation charges
paid to the transportation service provider
by the consignor or consignee are to be reimbursed by the Government pursuant to cost
reimbursable contract (number). This may
be confirmed by contacting the agency representative at (name, address and telephone
number).
(f) Other terms and conditions that
may be specific to your agency or the
TSP such as specialized packaging requirements or HAZMAT. For further
information see the ‘‘U.S. Government
Freight Transportation Handbook,’’
available by contacting:
General Services Administration, Office of
Travel and Transportation Services, Transportation Audit Division (QMCA), 2200
Crystal Drive, Room 300, Arlington, VA
22202, http://www.gsa.gov/transaudits.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
§ 102–117.70 Where do I find more information on terms and conditions?
You may find more information
about terms and conditions in part 102–
118 of this chapter, or the ‘‘U.S. Government Freight Transportation Handbook’’ (see § 102–117.65(f)).
§ 102–117.75 How do I reference the
rate tender on transportation documents?
To ensure proper reference of a rate
tender on all shipments, you must
show the applicable rate tender number
and carrier identification on all transportation documents, such as, section
13712 quotation, ‘‘ABC Transportation
Company, Tender Number * * *’’.
§ 102–117.80
filed?
How
are
rate
tenders
(a) The TSP must file an electronic
rate tender with your agency. Details
of what must be included when submitting electronic tenders is located in
§ 102–118.260(b) of this subchapter.
(b) You must send two copies of the
rate tender to—General Services Administration, Federal Supply Service,
Audit Division (FBA), 1800 F Street,
NW.,
Washington,
DC
20405,
www.gsa.gov/transaudits.
[69 FR 57618, Sept. 24, 2004]
§ 102–117.85 What is the difference between a Government bill of lading
(GBL) and a bill of lading?
(a) A Government bill of lading
(GBL), Optional Forms 1103 or 1203, is a
controlled document that conveys specific terms and conditions to protect
the Government interest and serves as
the contract of carriage.
(b) A GBL is used only for international shipments.
(c) A bill of lading, sometimes referred to as a commercial bill of lading,
establishes the terms of contract between a shipper and TSP. It serves as a
receipt of goods, a contract of carriage,
and documentary evidence of title.
(d) Use a bill of lading for Government shipments if the specific terms
and conditions of a GBL are included in
any contract or rate tender (see § 102–
117.65) and the bill of lading makes reference to that contract or rate tender
(see § 102–117.75 and the ‘‘U.S. Government Freight Transportation Handbook’’).
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51393, Aug. 20, 2010]
§ 102–117.90 May I use a U.S. Government bill of lading (GBL) to acquire
freight, household goods or other
related transportation services?
You may use the Government bill of
lading (GBL) only for international
shipments (including domestic offshore
shipments).
[75 FR 31393, Aug. 20, 2010]
§ 102–117.95 What transportation documents must I use to acquire freight,
household goods or other related
transportation services?
(a) Bills of lading and purchase orders are the transportation documents
you use to acquire freight, household
goods shipments, and other transportation services. Terms and conditions
in § 102–117.65 and the ‘‘U.S. Government Freight Transportation Handbook’’ are still required. For further information on payment methods, see
part 102–118 of this chapter (41 CFR
part 102–118).
(b) Government bills of lading (GBLs)
are optional transportation documents
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31
Federal Management Regulation
§ 102–117.120
for international shipments (including
domestic offshore shipments).
[75 FR 31394, Aug. 20, 2010]
Subpart C—Business Rules To Consider Before Shipping Freight
or Household Goods
§ 102–117.100 What business rules must
I consider before acquiring transportation or related services?
When acquiring transportation or related services you must:
(a) Use the mode or individual transportation service provider (TSP) that
provides the overall best value to the
agency. For more information, see
§§ 102–117.105 through 102–117.130;
(b) Demonstrate no preferential
treatment to any TSP when arranging
for transportation services except on
international shipments. Preference on
international shipments must be given
to United States registered commercial
vessels and aircraft;
(c) Ensure that small businesses receive equal opportunity to compete for
all business they can perform to the
maximum extent possible, consistent
with the agency’s interest (see 48 CFR
part 19);
(d) Encourage minority-owned businesses and women-owned businesses, to
compete for all business they can perform to the maximum extent possible,
consistent with the agency’s interest
(see 48 CFR part 19);
(e) Review the need for insurance.
Generally, the Government is self-insured; however, there are instances
when the Government will purchase insurance coverage for Government property. An example may be cargo insurance for international air cargo shipments to cover losses over those allowed under the International Air
Transport Association (IATA) or for
ocean freight shipments; and
(f) Consider the added requirements
on international transportation found
in subpart D of this part.
§ 102–117.105 What does best value
mean when routing a shipment?
Best value to your agency when routing a shipment means using the mode
or individual TSP that provides satisfactory service with the best combina-
tion of service factors and price that
meets the agency’s requirements. A
lower price may not be the best value
if the service offered fails to meet the
requirements of the shipment.
[75 FR 51394, Aug. 20, 2010]
§ 102–117.110 What is satisfactory service?
You should consider the following
factors in assessing whether a TSP offers satisfactory service:
(a) Availability and suitability of the
TSP’s equipment;
(b) Adequacy of shipping and receiving facilities at origin and destination;
(c) Adequacy of pickup and/or delivery service;
(d) Availability of accessorial and
special services;
(e) Estimated time in transit;
(f) Record of past performance of the
TSP, including accuracy of billing and
past performance record with Government agencies;
(g) Capability of warehouse equipment and storage space;
(h) Experience of company, management, and personnel to perform the requirements;
(i) The TSP’s safety record; and
(j) The TSP’s loss and damage record,
including claims resolution.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
§ 102–117.115 How do I calculate total
delivery costs?
You calculate total delivery costs for
a shipment by considering all costs related to the shipping or receiving process, such as packing, blocking, bracing,
drayage, loading and unloading, and
transporting. Surcharges such as fuel,
currency exchange, war risk insurance,
and other surcharges should also be
factored into the costs.
[75 FR 51394, Aug. 20, 2010]
§ 102–117.120 To what extent must I
equally distribute orders for transportation and related services
among TSPs?
You must assure that small businesses, socially or economically disadvantaged and women-owned TSPs
have equal opportunity to provide the
transportation or related services.
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§ 102–117.125
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–117.125 How detailed must I describe property for shipment when
communicating to a TSP?
You must describe property in
enough detail for the TSP to determine
the type of equipment or any special
precautions necessary to move the
shipment.
Details
might
include
weight, volume, measurements, routing, hazardous cargo, or special handling designations.
§ 102–117.130 Must I select TSPs who
use alternative fuels?
No, but, whenever possible, you are
encouraged to select TSPs that use alternative fuel vehicles and equipment,
under policy in the Clean Air Act
Amendments of 1990 (42 U.S.C. 7612) or
the Energy Policy Act of 1992 (42 U.S.C.
13212).
Subpart D—Restrictions That Affect
International Transportation of
Freight
and
Household
Goods
§ 102–117.135 What are the international
transportation
restrictions?
Several statutes mandate the use of
U.S. flag carriers for international
shipments, such as 49 U.S.C. 40118, commonly referred to as the ‘‘Fly America
Act’’, and 46 U.S.C. 55305, the Cargo
Preference Act of 1954, as amended. The
principal restrictions are as follows:
(a) Air cargo: The use of foreign-flag
air carriers when funded by the U.S.
Government should be rare. International movement of cargo by air is
subject to the Fly America Act, 49
U.S.C. 40118, which requires the use of
U.S. flag air carrier service for all air
cargo movements funded by the U.S.
Government, including cargo shipped
by contractors, grantees, and others at
Government expense, except when one
of the following exceptions applies:
(1) The transportation is provided
under a bilateral or multilateral air
transportation agreement to which the
U.S. Government and the government
of a foreign country are parties, and
which the Department of Transportation has determined meets the requirements of the Fly America Act.
(i) Information on bilateral or multilateral air transport agreements im-
pacting U.S. Government procured
transportation can be accessed at
http://www.state.gov/e/eb/tra/ata/
index.htm; and
(ii) If determined appropriate, GSA
may periodically issue FMR Bulletins
providing further guidance on bilateral
or multilateral air transportation
agreements impacting U.S. Government procured transportation. These
bulletins may be accessed at http://
www.gsa.gov/bulletins;
(2) When the costs of transportation
are reimbursed in full by a third party,
such as a foreign government, an international agency, or other organization;
or
(3) Use of a foreign air carrier is determined to be a matter of necessity by
your agency, on a case-by-case basis,
when:
(i) No U.S. flag air carrier can provide the specific air transportation
needed;
(ii) No U.S. flag air carrier can meet
the time requirements in cases of
emergency;
(iii) There is a lack of or inadequate
U.S. flag air carrier aircraft;
(iv) There is an unreasonable risk to
safety when using a U.S. flag carrier
aircraft (e.g., terrorist threats). Written approval of the use of foreign air
carrier service based on an unreasonable risk to safety must be approved by
your agency on a case-by-case basis
and must be supported by a travel advisory notice issued by the Federal Aviation Administration, Department of
State, or the Transportation Security
Administration; or
(v) No U.S. flag air carrier can accomplish the agency’s mission.
(b) Ocean cargo: International movement of property by water is subject to
the Cargo Preference Act of 1954, as
amended, 46 U.S.C. 55305, and the implementing regulations found at 46
CFR Part 381, which require the use of
a U.S. flag carrier for 50% of the tonnage shipped by each Department or
Agency when service is available. The
Maritime Administration (MARAD)
monitors agency compliance with
these laws. All Departments or Agencies
shipping
Government-impelled
cargo must comply with the provisions
of 46 CFR 381.3. For further information contact MARAD, Tel: 1–800–996–
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Federal Management Regulation
§ 102–117.170
2723, Email: [email protected]. For
further information on international
ocean
shipping,
go
to:
http://
www.marad.dot.gov/cargopreference.
[79 FR 33476, June 11, 2014]
§ 102–117.140
erence?
What
is
cargo
pref-
Cargo preference is the statutory requirement that all, or a portion of all,
ocean-borne cargo that moves internationally be transported on U.S. flag
vessels. Deviations or waivers from the
cargo preference laws must be approved
by:
Department of Transportation, Maritime Administration, Office of Cargo Preference,
1200 New Jersey Ave., SE., Washington, DC
20590, http://marad.dot.gov/. Tel. 1–800–987–
3524. E-mail: [email protected].
[65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26,
2000, as amended at 75 FR 51394, Aug. 20, 2010]
§ 102–117.145
What are coastwise laws?
Coastwise laws refer to laws governing shipment of freight, household
goods and passengers by water between
points in the United States or its territories. The purpose of these laws is to
assure reliable shipping service and the
existence of a maritime capability in
times of war or national emergency
(see section 27 of the Merchant Marine
Act of 1920, 46 App. U.S.C. 883, 19 CFR
4.80).
§ 102–117.150 What do I need to know
about coastwise laws?
You need to know that:
(a) Goods transported entirely or
partly by water between U.S. points,
either directly or via a foreign port,
must travel in U.S. flag vessels that
have a coastwise endorsement;
(b) There are exceptions and limits
for the U.S. Island territories and possessions in the Atlantic and Pacific
Oceans (see § 102–117.155); and
(c) The Secretary of the Treasury is
empowered to impose monetary penalties against agencies that violate the
coastwise laws.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
§ 102–117.155 Where do I go for further
information about coastwise laws?
You may refer to 46 App. U.S.C. 883,
19 CFR 4.80, DOT MARAD (800–987–3524
or [email protected]), the U.S.
Coast Guard or U.S. Customs Service
for further information on exceptions
to the coastwise laws.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
Subpart E—Shipping Freight
§ 102–117.160
What is freight?
Freight is property or goods transported as cargo.
§ 102–117.165 What shipping
must I use for freight?
Use the following shipping process
for freight:
(a) For domestic shipments you
must:
(1) Identify what you are shipping;
(2) Decide if the cargo is HAZMAT,
classified, or sensitive that may require special handling or placards;
(3) Decide mode;
(4) Check for applicable contracts or
rate tenders within your agency or
other agencies, including GSA;
(5) Select the most efficient and economical TSP that gives the best value;
(6) Prepare shipping documents; and
(7) Schedule pickup, declare released
value and ensure prompt delivery with
a fully executed receipt, and oversee
shipment.
(b) For international shipments you
must follow all the domestic procedures and, in addition, comply with the
cargo preference laws. For specific information, see subpart D of this part.
§ 102–117.170 What reference materials
are available to ship freight?
(a) The following is a partial list of
handbooks and guides available from
GSA:
(1) U.S. Government Freight Transportation Handbook;
(2) Limited Authority to Use Commercial Forms and Procedures;
(3) Submission of Transportation
Documents; and
(4) Things to be Aware of When Routing or Receiving Freight Shipments.
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31
§ 102–117.175
41 CFR Ch. 102 (7–1–16 Edition)
(b) For the list in paragraph (a) of
the section and other reference materials, contact:
(1) General Services Administration,
Federal Supply Service, Audit Division
(FBA), 1800 F Street, NW. Washington,
DC 20405, www.gsa.gov/transaudits; or
(2) General Services Administration,
Federal Supply Service, 1500 Bannister
Road, Kansas City, MO 64131, http://
www.kc.gsa.gov/fsstt.
[65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26,
2000, as amended at 69 FR 57618, Sept. 24,
2004]
§ 102–117.175 What factors do I consider to determine the mode of
transportation?
Your shipping urgency and any special handling requirements determine
which mode of transportation you select. Each mode has unique requirements for documentation, liability,
size,
weight
and
delivery
time.
HAZMAT, radioactive, and other specialized cargo may require special permits and may limit your choices.
§ 102–117.180 What transportation documents must I use to ship freight?
To ship freight:
(a) By land (domestic shipments), use
a bill of lading;
(b) By land (international shipments), you may, but are not required
to, use the optional GBL;
(c) By ocean, use an ocean bill of lading, when suitable, along with the
GBL. You only need an ocean bill of
lading for door-to-door movements; and
(d) By air, use a bill of lading.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
§ 102–117.185 Where must I send a
copy of the transportation documents?
(a) You must forward an original
copy of all transportation documents
to:
General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
charges, must be sent to MARAD within 30 days of vessel loading.
§ 102–117.190 Where do I file a claim
for loss or damage to property?
You must file a claim for loss or
damage to property with the TSP.
§ 102–117.195 Are there time limits affecting filing of a claim?
Yes, several statutes limit the time
for administrative or judicial action
against a TSP. Refer to part 102–118 of
this chapter for more information and
the time limit tables.
Subpart F—Shipping Hazardous
Material (HAZMAT)
§ 102–117.200
What is HAZMAT?
HAZMAT is a substance or material
the Secretary of Transportation determines to be an unreasonable risk to
health, safety and property when
transported in commerce. Therefore,
there are restrictions on transporting
HAZMAT (49 U.S.C. 5103 et seq.).
§ 102–117.205 What are the restrictions
for transporting HAZMAT?
Agencies that ship HAZMAT are subject to the Environmental Protection
Agency and the Department of Transportation regulations, as well as applicable State and local government rules
and regulations.
§ 102–117.210 Where can I get guidance
on transporting HAZMAT?
The Secretary of Transportation prescribes regulations for the safe transportation of HAZMAT in intrastate,
interstate, and foreign commerce in 49
CFR parts 171 through 180. The Environmental Protection Agency also prescribes regulations on transporting
HAZMAT in 40 CFR parts 260 through
266. You may also call the HAZMAT information hotline at 1–800–467–4922
(Washington, DC area, call 202–366–
4488).
(b) For all property shipments subject to the cargo preference laws (see
§ 102–117.140), a copy of the ocean carrier’s bill of lading, showing all freight
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31
Federal Management Regulation
§ 102–117.235
Subpart G—Shipping Household
Goods
§ 102–117.215 What
goods (HHG)?
are
household
Household goods (HHG) are the personal effects of Government employees
and their dependents.
§ 102–117.220 What choices do I have
to ship HHG?
(a) You may choose to ship HHG by:
(1) Using the commuted rate system;
(2) GSA’s Centralized Household
Goods Traffic Management Program
(CHAMP);
(3) Contracting directly with a TSP,
(including a relocation company that
offers transportation services) using
the acquisition procedures under the
Federal Acquisition Regulation (FAR)
(see § 102–117.35);
(4) Using another agency’s contract
with a TSP (see §§ 102–117.40 and 102–
117.45);
(5) Using a rate tender under the Federal transportation procurement statutes (49 U.S.C. 10721 or 13712) (see § 102–
117.35).
(b) As an alternative to the choices
in paragraph (a) of this section, you
may request the Department of State
to assist with shipments of HHG moving to, from, and between foreign countries or international shipments originating in the continental United
States. The nearest U.S. Embassy or
Consulate may assist with arrangements
of
movements
originating
abroad. For further information contact:
§ 102–117.225 What is the difference
between a contract or a rate tender
and a commuted rate system?
(a) Under a contract or a rate tender,
the agency prepares the bill of lading
and books the shipment. The agency is
the shipper and pays the TSP the applicable charges. If loss or damage occurs,
the agency may either file a claim on
behalf of the employee directly with
the TSP, or help the employee in filing
a claim against the TSP.
(b) Under the commuted rate system
an employee arranges for shipping HHG
and is reimbursed by the agency for the
resulting costs. Use this method only
within the continental United States
(not Hawaii or Alaska).
(c) Rate table information and the
commuted rate schedule can be found
at www.gsa.gov/relocationpolicy or the
appropriate office designated in your
agency.
[65 FR 60061, Oct. 6, 2000, as amended at 78 FR
75485, Dec. 12, 2013]
§ 102–117.230 Must I compare costs between a contract or a rate tender
and the commuted rate system before choosing which method to use?
Yes, you must compare the cost between a contract or a rate tender, and
the commuted rate system before you
make a decision.
NOTE TO § 102–117–220: Agencies must use
the commuted rate system for civilian employees who transfer between points inside
the continental United States unless it is
evident from the cost comparison that the
Government will incur a savings ($100 or
more) using another choice listed. The use of
household goods rate tenders is not authorized when household goods are shipped under
the commuted rate system.
§ 102–117.235 How do I get a cost comparison?
(a) You may calculate a cost comparison internally according to 41 CFR
302–8.3.
(b) You may request GSA to perform
the cost comparison if you participate
in the CHAMP program by sending
GSA the following information as far
in advance as possible (preferably 30
calendar days):
(1) Name of employee;
(2) Origin city, county and State;
(3) Destination city, county, and
State;
(4) Date of household goods pick up;
(5) Estimated weight of shipments;
(6) Number of days storage-in-transit
(if applicable); and
(7) Other relevant data.
(c) For more information on cost
comparisons contact:
[65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26,
2000]
General Services Administration
Federal Supply Service
Department of State
Transportation Operations
2201 C Street, NW.
Washington, DC 20520
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§ 102–117.240
41 CFR Ch. 102 (7–1–16 Edition)
1500 Bannister Road
Kansas City, MO 64131
http://www.kc.gsa.gov/fsstt
turn will complete the form and forward it to:
NOTE TO § 102–117.235(c): GSA may charge
an administrative fee for agencies not participating in the CHAMP program.
§ 102–117.240 What is my agency’s financial responsibility to an employee who chooses to move all or
part of his/her HHG under the commuted rate system?
(a) Your agency is responsible for reimbursing the employee what it would
cost the Government to ship the employee’s HHG by the most cost-effective means available or the employee’s
actual moving expenses, whichever is
less.
(b) The employee is liable for the additional cost when the cost of transportation arranged by the employee is
more than what it would cost the Government.
NOTE TO § 102–117.240: For information on
how to ship household goods, refer to the
Federal Travel Regulation, 41 CFR part 302–
7, Transportation and Temporary Storage of
Household Goods and Professional Books,
Papers, and Equipment (PBP&E).
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
§ 102–117.245 What is my responsibility
in providing guidance to an employee who wishes to use the commuted rate system?
You must counsel employees that
they may be liable for all costs above
the amount reimbursed by the agency
if they select a TSP that charges more
than provided under the Commuted
Rate Schedule.
§ 102–117.250 What are my responsibilities after shipping the household
goods?
(a) Each agency should develop an
evaluation survey for the employee to
complete following the move.
(b) Under the CHAMP program, you
must counsel employees to fill out
their portion of the GSA Form 3080,
Household Goods Carrier Evaluation
Report. This form reports the quality
of the TSP’s performance. After completing the appropriate sections of this
form, the employee must send it to the
bill of lading issuing officer who in
General Services Administration
National Customer Service Center
1500 Bannister Rd.
Kansas City, MO 64131
http://www.kc.gsa.gov/fsstt
[65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26,
2000]
§ 102–117.255 What actions may I take
if the TSP’s performance is not satisfactory?
If the TSP’s performance is not satisfactory, you may place a TSP in temporary nonuse, suspended status, or
debarred status. For more information
on doing this, see subpart I of this part
and the FAR (48 CFR 9.406–3 and 9.407–
3).
§ 102–117.260 What are my responsibilities to employees regarding the
TSP’s liability for loss or damage
claims?
Regarding the TSP’s liability for loss
or damage claims, you must:
(a) Advise employees on the limits of
the TSP’s liability for loss of and damage to their HHG so the employee may
evaluate the need for added insurance;
(b) Inform the employee about the
procedures to file claims for loss and
damage to HHG with the TSP; and
(c) Counsel employees, who have a
loss or damage to their HHG that exceeds the amount recovered from a
TSP, on procedures for filing a claim
against the Government for the difference. Agencies may compensate employees up to $40,000 on claims for loss
and damage under 31 U.S.C. 3721, 3723
(41 CFR 302–8.2(f)).
§ 102–117.265 Are there time limits
that affect filing a claim with a TSP
for loss or damage?
Yes, several statutes limit the time
for filing claims or taking other administrative or judicial action against
a TSP. Refer to part 102–118 of this
chapter for information on claims.
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Federal Management Regulation
§ 102–117.290
Subpart H—Performance
Measures
(c) Percentage of claims received in a
given period;
(d) Percentage of returns received ontime;
(e) Percentage of shipments rejected;
(f) Percentage of billing improprieties;
(g) Average response time on tracing
shipments;
(h) TSP’s safety record (accidents,
losses, damages or misdirected shipments) as a percentage of all shipments;
(i) TSP’s driving record (accidents,
traffic tickets and driving complaints)
as a percentage of shipments; and
(j) Percentage of customer satisfaction reports on carrier performance.
§ 102–117.270 What are agency performance measures for transportation?
(a) Agency performance measures are
indicators of how you are supporting
your customers and doing your job. By
tracking performance measures you
can report specific accomplishments
and your success in supporting the
agency mission. The Government Performance and Results Act (GPRA) of
1993 (31 U.S.C. 1115) requires agencies to
develop business plans and set up program performance measures.
(b) Examples of performance measurements in transportation would include how well you:
(1) Increase the use of electronic
commerce;
(2) Adopt industry best practices and
services to meet your agency requirements;
(3) Use TSPs with a track record of
successful past performance or proven
superior ability;
(4) Take advantage of competition in
moving agency freight and household
goods;
(5) Assure that delivery of freight and
household goods is on time against
measured criteria; and
(6) Create simplified procedures to be
responsive and adaptive to the customer needs and concerns.
Subpart I—Transportation Service
Provider (TSP) Performance
§ 102–117.275 What performance must I
expect from a TSP?
You must expect the TSP to provide
consistent and satisfactory service to
meet your agency transportation
needs.
§ 102–117.280 What aspects of the
TSP’s performance are important to
measure?
Important TSP performance measures may include, but are not limited
to the:
(a) TSP’s percentage of on-time deliveries;
(b) Percentage of shipments that include overcharges or undercharges;
§ 102–117.285 What are my choices if a
TSP’s performance is not satisfactory?
You may choose to place a TSP in
temporary nonuse, suspension, or debarment if performance is unsatisfactory.
§ 102–117.290 What is the difference
between temporary nonuse, suspension and debarment?
(a) Temporary nonuse is limited to
your agency and initiated by the agency transportation officers for a period
not to exceed 90 days for:
(1) Willful violations of the terms of
the rate tender;
(2) Persistent or willful failure to
meet requested packing and pickup
service;
(3) Failure to meet required delivery
dates;
(4) Violation of Department of Transportation (DOT) hazardous material
regulations;
(5) Mishandling of freight, damaged
or missing transportation seals, improper loading, blocking, packing or
bracing of property;
(6) Improper routing of property;
(7) Subjecting your shipments to unlawful seizure or detention by failing
to pay debts;
(8) Operating without legal authority;
(9) Failure to settle claims according
to Government regulations; or
(10) Repeated failure to comply with
regulations of DOT, Surface Transportation Board, State or local governments or other Government agencies.
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§ 102–117.295
41 CFR Ch. 102 (7–1–16 Edition)
(b) Suspension is disqualifying a TSP
from receiving orders for certain services under a contract or rate tender
pending an investigation or legal proceeding. A TSP may be suspended on
adequate evidence of:
(1) Fraud or a criminal offense in
connection with obtaining, attempting
to obtain, or performing a contract for
transportation;
(2) Violation of Federal or State antitrust statutes;
(3) Embezzlement, theft, forgery,
bribery, falsification or destruction of
records, making false statements, or
receiving stolen property; and
(4) Any other offense indicating a
lack of business integrity or business
honesty that seriously and directly affects the present responsibility of the
TSP as a transporter of the Government’s property or the HHG of its employees relocated for the Government.
(c) Debarment means action taken to
exclude a contractor from contracting
with all Federal agencies. The seriousness of the TSP’s acts or omissions and
the mitigating factors must be considered in making any debarment decisions. A TSP may be debarred for the
following reasons:
(1) Failure of a TSP to take the necessary corrective actions within the period of temporary nonuse; or
(2) Conviction of or civil judgment
for any of the causes for suspension.
§ 102–117.295 Who makes the decisions
on temporary nonuse, suspension
and debarment?
(a) The transportation officer may
place a TSP in temporary nonuse for a
period not to exceed 90 days.
(b) The serious nature of suspension
and debarment requires that these
sanctions be imposed only in the public
interest for the Government’s protection and not for purposes of punishment. Only the agency head or his/her
designee may suspend or debar a TSP.
§ 102–117.300 Do the decisions on temporary nonuse, suspension and debarment go beyond the agency?
(a) Temporary nonuse does not go beyond the agency.
(b) Decisions on suspended or
debarred TSPs do go beyond the agency
and are available to the general public
on the Excluded Parties Lists System
(EPLS) maintained by GSA at http://
www.epls.gov.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
§ 102–117.305 Where do I go for information on the process for suspending or debarring a TSP?
Refer to the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4) for
policies and procedures governing suspension and debarment of a TSP.
§ 102–117.310 What records must I
keep on temporary nonuse, suspension or debarment of a TSP?
(a) You must set up a program consistent with your agency’s internal
record retention procedures to document the placement of TSPs in a nonuse, suspended or debarred status.
(b) For temporary nonuse, your
records must contain the following information:
(1) Name, address, and Standard Carrier Alpha Code and Taxpayer Identification Number of each TSP placed in
temporary nonuse status;
(2) The duration of the temporary
nonuse status;
(3) The cause for imposing temporary
nonuse, and the facts showing the existence of such a cause;
(4) Information and arguments in opposition to the temporary nonuse period sent by the TSP or its representative; and
(5) The reviewing official’s determination about keeping or removing
temporary nonuse status.
(c) For suspended or debarred TSPs,
your records must include the same information as paragraph (b) of this section and you must:
(1) Assure your agency does not
award contracts to a suspended or
debarred TSP; and
(2) Notify GSA (see § 102–117.315).
§ 102–117.315 Whom must I notify on
suspension or debarment of a TSP?
Agencies must report electronically
any suspension or debarment actions
to the Excluded Parties List System:
http://www.epls.gov in accordance with
the provisions of 48 CFR 9.404(c).
[75 FR 51394, Aug. 20, 2010]
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Federal Management Regulation
§ 102–117.350
Subpart J—Representation Before
Regulatory Body Proceedings
§ 102–117.340 What other types of assistance may GSA provide agencies
in dealing with regulatory bodies?
§ 102–117.320 What is a transportation
regulatory body proceeding?
A transportation regulatory body
proceeding is a hearing before a transportation governing entity, such as a
State public utility commission, the
Surface Transportation Board, or the
Federal Maritime Commission. The
proceeding may be at the Federal or
State level depending on the activity
regulated.
(a) GSA has oversight of all public
utilities used by the Federal Government including transportation. There
are specific regulatory requirements a
TSP must meet at the State level, such
as the requirement to obtain a certificate of public convenience and necessity.
(b) GSA has a list of TSPs, which
meet certain criteria regarding insurance and safety, approved by DOT. You
must furnish GSA with an affidavit to
determine if the TSP meets the basic
qualification to protect the Government’s interest. As an oversight mandate, GSA coordinates this function.
For further information contact:
§ 102–117.325 May my agency appear
on its own behalf before a transportation regulatory body proceeding?
Generally, no executive agency may
appear on its own behalf in any proceeding before a transportation regulatory body, unless the Administrator
of General Services delegates the authority to the agency. The statutory
authority for the Administrator of
General Services to participate in regulatory proceedings on behalf of all
Federal agencies is in section 201(a)(4)
of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 481(a)(4)).
§ 102–117.330 When, or under what circumstances, would GSA delegate
authority to an agency to appear on
its own behalf before a transportation regulatory body proceeding?
GSA will delegate authority when it
does not have the expertise, or when it
is outside of GSA’s purview, to make a
determination on an issue such as a
protest of rates, routings or excessive
charges.
§ 102–117.335 How does my agency ask
for a delegation to represent itself
in a regulatory body proceeding?
You must send your request for delegation with enough detail to explain
the circumstances surrounding the
need for delegation of authority for
representation to:
General Services Administration
Office of Travel, Transportation and Asset
Management (MT)
1800 F Street, NW.
Washington, DC 20405
General Services Administration, Office of
Travel and Transportation Services, Center
for
Transportation
Management
(QMCC), 2200 Crystal Drive, Rm. #3042, Arlington, VA 20406.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
Subpart K—Transportation
Reporting
SOURCE: 80 FR 57102, Sept. 22, 2015, unless
otherwise noted.
§ 102–117.345 What is the Federal
Interagency Transportation System
(FITS)?
The Federal Interagency Transportation System (FITS) is a Web-based
tool used to capture an agency’s transaction level transportation data for
freight and cargo, including household
goods (HHG), procured either through
contract or tender that is otherwise
not currently reported by agencies to
GSA in compliance with 31 U.S.C. 3726,
as well as agency transportation management information.
§ 102–117.350
Do I have to report?
No; however all agencies are strongly
encouraged to report for the preceding
fiscal year through FITS by October 31.
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51394, Aug. 20, 2010]
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§ 102–117.355
§ 102–117.355
41 CFR Ch. 102 (7–1–16 Edition)
Why should I report?
(a) Reporting your agency’s prior fiscal year transaction level transportation data for freight and cargo, including HHG, procured either through
contract or tender, as well as your
transportation management information will enable GSA to:
(1) Assess the magnitude and key
characteristics of transportation within the Government (e.g., how much
agencies spend; what type of commodity is shipped; most used lanes,
etc.); and
(2) Analyze and recommend changes
to Governmentwide policies, standards,
practices, and procedures to improve
Government transportation management.
(b) Agencies that choose to report
may identify opportunities within
their organization to improve transportation management program performance as a result of the data analytics.
§ 102–117.356
I report?
What information should
You should report your agency’s
prior fiscal year transaction level
transportation data for freight and
cargo, including HHG, and transportation
management
information.
Transportation data that currently is
otherwise provided to GSA in compliance with 31 U.S.C. 3726 is not requested. Transaction level transportation data submitted by agencies will
remain confidential. Transportation
management information should also
be reported and should include related
environmental information, agency
points of contact, and transportation
officer warrant and training data.
§ 102–117.360 How do I submit information to GSA through FITS?
GSA will post a Federal Management
Regulation bulletin at http://gsa.gov/
fmrbulletin, which will detail the FITS
submission process, including specific
data requested, and provide information concerning available FITS training.
Subpart
L—Governmentwide
Transportation Policy Council
(GTPC)
§ 102–117.361 What is the Governmentwide Transportation Policy Council
(GTPC)?
The Office of Governmentwide Policy
sponsors a Governmentwide Transportation Policy Council (GTPC) to help
agencies establish, improve, and maintain effective transportation management policies, practices and procedures. The council:
(a) Collaborates with private and
public stakeholders to develop valid
performance measures and promote solutions that lead to effective results;
and
(b) Provides assistance to your agency with the requirement to report your
transportation activity to GSA (see
§ 102–117.345).
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51395, Aug. 20, 2010. Redesignated at 80 FR
57102, Sept. 22, 2015]
§ 102–117.362 Where can I get more information about the GTPC?
For more information
GTPC, contact:
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General Services Administration
Office of Travel, Transportation and Asset
Management (MT)
1800 F Street, NW.
Washington, DC 20405
http://www.policyworks.gov/transportation
[65 FR 60061, Oct. 6, 2000, as amended at 75 FR
51395, Aug. 20, 2010. Redesignated at 80 FR
57102, Sept. 22, 2015]
Subpart M—Recommendations for
Authorization and Qualifications to Acquire Transportation
Using a Rate Tender
SOURCE: 79 FR 55365, Sept. 16, 2014, unless
otherwise noted.
§ 102–117.365 What are the responsibilities of a Transportation Officer?
A Transportation Officer’s (TO) responsibilities may include:
(a) Negotiating rates;
(b) Signing bills of lading (BOL);
(c) Approving additional accessorial
charges;
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Federal Management Regulation
§ 102–117.390
(d) Selecting and procuring services
of a TSP;
(e) Selecting and procuring services
of a 3PL;
(f) Serving as a transportation subject matter expert to a Contracting Officer (CO); and/or
(g) Other roles/responsibilities, such
as serving as a certifying official for
BOL or as a disbursement official.
§ 102–117.370 Should I have a Transportation Officer warrant to acquire transportation services using
a rate tender?
Yes, it is recommended that you have
a written document, such as a warrant,
issued by the head of your agency or
their designee, which expressly allows
you to acquire transportation services
for using approved non-Federal Acquisition Regulation (FAR) acquisition
methods for specified transportation
services, and states a dollar limit or
range for the warrant authority.
§ 102–117.375 Are
there
instances
where a Transportation Officer
warrant is not necessary to acquire
transportation services?
Yes, a Transportation Officer warrant is not necessary to:
(a) Ship packages through a contract
under the GSA Schedules program, including any Blanket Purchase Agreement, as these are FAR-based contracts;
(b) Ship packages or other materials
through any other FAR-based contract;
or
(c) Send items through the United
States Postal Service.
§ 102–117.380 What should be contained in a Transportation Officer
warrant to acquire transportation
services?
The warrant for authority to acquire
transportation services for freight and
cargo, including HHGs, issued by the
agency head or their designee should:
(a) State that you have sufficient experience (any combination of Federal,
public, and/or commercial) and/or
training in transportation services, including any relevant acquisition or certifying officer training, that qualifies
you to acquire the transportation services needed by your agency;
(b) List the maximum dollar limit, if
any, and any other limits, such as the
types of services that you may acquire;
(c) State your agency’s necessary
conditions to maintain the warrant;
and
(d) Include an expiration date for the
warrant, recommended not to exceed
three years from the date of issuance.
§ 102–117.385 Is there a standard format for a Transportation Officer
warrant?
No. GSA can provide your agency
with a suggested format. Agencies
could also model the Transportation
Officer warrant after the Contracting
Officer warrant, or they may establish
their own format.
§ 102–117.390 What
are
the
recommended Transportation Officer
training and/or experience levels?
(a) The following are suggested agency transportation officer training and/
or experience baselines:
(1) For a Basic (Level 1) Transportation Officer Warrant:
(i) Twenty-four (24) hours of training
in Federal transportation; or
(ii) Two (2) years of Federal, public,
and/or commercial experience in acquiring transportation through rate
tenders.
(2) For an Experienced (Level 2)
Transportation Officer Warrant:
(i) Thirty-two (32) hours of training
in transportation, including twenty
(20) hours of training in Federal transportation; or
(ii) Three (3) years of Federal, public,
and/or commercial experience in acquiring transportation through rate
tenders.
(3) For a Senior (Level 3) Transportation Officer Warrant:
(i) Sixty (60) hours of training in
transportation, including forty (40)
hours of training in Federal transportation; or
(ii) Five (5) years of Federal, public,
and/or commercial experience in acquiring transportation through rate
tenders.
(b) GSA created an online eLearning
Transportation Officer training site to
provide a standard Governmentwide
body of transportation knowledge
available to all agencies. This Webbased eLearning site is available at
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§ 102–117.395
41 CFR Ch. 102 (7–1–16 Edition)
http://
transportationofficer.golearnportal.org/.
§ 102–117.395 Should I continue my
training to maintain my warrant?
Yes, you should continue your training. Your agency will determine the
continuing education that applies specifically to your warrant. It is recommended that at least twelve (12)
hours of transportation training per
year be completed in order to maintain
a Transportation Officer warrant.
§ 102–117.400 How should my warrant
be documented?
The head of your agency or their designee should state, in writing, that you
have the recommended training and/or
experience suggested by § 102–117.390.
You should retain a copy of this Transportation Officer warrant. Agency
heads or their designee(s) may amend,
suspend, or terminate warrants in accordance with agency policies and/or
procedures.
PART 102–118—TRANSPORTATION
PAYMENT AND AUDIT
Subpart A—General
INTRODUCTION
Sec.
102–118.5 What is the purpose of this part?
102–118.10 What is a transportation audit?
102–118.15 What is a transportation payment?
102–118.20 Who is subject to this part?
102–118.25 Does GSA still require my agency
to submit its overall transportation policies for approval?
102–118.30 Are
Government
corporations
bound by this part?
DEFINITIONS
102–118.35
part?
What definitions apply to this
Subpart B—Ordering and Paying for
Transportation and Transportation Services
102–118.40 How does my agency order transportation and transportation services?
102–118.45 How does a transportation service
provider (TSP) bill my agency for transportation and transportation services?
102–118.50 How does my agency pay for
transportation services?
102–118.55 What administrative procedures
must my agency establish for payment of
freight, household goods, or other transportation services?
102–118.60 To what extent must my agency
use electronic commerce?
102–118.65 Can my agency receive electronic
billing for payment of transportation
services?
102–118.70 Must my agency make all payments via electronic funds transfer?
102–118.75 What if my agency or the TSP
does not have an account with a financial institution or approved payment
agent?
102–118.80 Who is responsible for keeping my
agency’s electronic commerce transportation billing records?
102–118.85 Can my agency use a Government
contractor issued charge card to pay for
transportation services?
102–118.90 If my agency orders transportation and/or transportation services
with a Government contractor issued
charge card or charge account citation,
is this subject to prepayment audit?
102–118.91 May my agency authorize the use
of cash?
102–118.92 How does my agency handle receipts, tickets or other records of cash
payments?
102–118.95 What forms can my agency use to
pay transportation bills?
102–118.100 What must my agency ensure is
on each SF 1113?
102–118.105 Where can I find the rules governing the use of a Government Bill of
Lading?
102–118.110 Where can I find the rules governing the use of a Government Transportation Request?
102–118.115 Must my agency use a GBL?
102–118.120 Must my agency use a GTR?
102–118.125 What if my agency uses a TD
other than a GBL?
102–118.130 Must my agency use a GBL for
express, courier, or small package shipments?
102–118.135 Where are the mandatory terms
and conditions governing the use of bills
of lading?
102–118.140 What are the major mandatory
terms and conditions governing the use
of GBLs and bills of lading?
102–118.145 Where are the mandatory terms
and conditions governing the use of passenger transportation documents?
102–118.150 What are the major mandatory
terms and conditions governing the use
of passenger transportation documents?
102–118.155 How does my agency handle supplemental billings from the TSP after
payment of the original bill?
102–118.160 Who is liable if my agency
makes an overpayment on a transportation bill?
102–118.165 What must my agency do if it
finds an error on a TSP bill?
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Federal Management Regulation
Pt. 102–118
102–118.170 Will GSA continue to maintain a
centralized numbering system for Government transportation documents?
Subpart C—Use of Government Billing
Documents
TERMS AND CONDITIONS GOVERNING ACCEPTANCE AND USE OF A GOVERNMENT BILL OF
LADING (GBL) OR GOVERNMENT TRANSPORTATION REQUEST (GTR) (UNTIL FORM RETIREMENT)
102–118.185 When buying freight transportation, must my agency reference the applicable contract or tender on the bill of
lading (including GBLs)?
102–118.190 When buying passenger transportation, must my agency reference the applicable contract?
102–118.195 What documents must a transportation service provider (TSP) send to
receive payment for a transportation
billing?
102–118.200 Can a TSP demand advance payment for the transportation charges submitted on a bill of lading (including
GBL)?
102–118.205 May my agency pay a subcontractor or agent functioning as a warehouseman for the TSP providing service
under the bill of lading?
102–118.210 May my agency use bills of lading other than the GBL for a transportation shipment?
102–118.215 May my agency pay a TSP any
extra fees to pay for the preparation and
use of the GBL or GTR?
102–118.220 If a transportation debt is owed
to my agency by a TSP because of loss or
damage to property, does my agency report it to GSA?
102–118.225 What constitutes final receipt of
shipment?
102–118.230 What if my agency creates or
eliminates a field office approved to prepare transportation documents?
AGENCY RESPONSIBILITIES WHEN USING GOVERNMENT BILLS OF LADING (GBLS) OR GOVERNMENT
TRANSPORTATION
REQUESTS
(GTRS)
102–118.235 Must my agency keep physical
control and accountability of the GBL
and GTR forms or GBL and GTR numbers?
102–118.240 How does my agency get GBL
and GTR forms?
102–118.245 How does my agency get an assigned set of GBL or GTR numbers?
102–118.250 Who is accountable for the
issuance and use of GBL and GTR forms?
102–118.255 Are GBL and GTR forms numbered and used sequentially?
QUOTATIONS, TENDERS OR CONTRACTS
102–118.260 Must my
quotations, tenders,
TSP to GSA?
102–118.260 Must my
quotations, tenders,
TSP to GSA?
agency send all
or contracts with a
agency send all
or contracts with a
Subpart D—Prepayment Audits of
Transportation Services
AGENCY REQUIREMENTS FOR PREPAYMENT
AUDITS
102–118.265 What is a prepayment audit?
102–118.270 Must my agency establish a prepayment audit program?
102–118.275 What must my agency consider
when designing and implementing a prepayment audit program?
102–118.280 What advantages does the prepayment audit offer my agency?
102–118.285 What options for performing a
prepayment audit does my agency have?
102–118.290 Must every electronic and paper
transportation bill undergo a prepayment audit?
102–118.295 What are the limited exceptions
to every bill undergoing a prepayment
audit?
102–118.300 How does my agency fund its
prepayment audit program?
102–118.305 Must my agency notify the TSP
of any adjustment to the TSP’s bill?
102–118.310 Must my agency prepayment
audit program establish appeal procedures whereby a TSP may appeal any reduction in the amount billed?
102–118.315 What must my agency do if the
TSP disputes the findings and my agency
cannot resolve the dispute?
102–118.320 What information must be on
transportation bills which have completed my agency’s prepayment audit?
MAINTAINING AN APPROVED PROGRAM
102–118.325 Must I get approval for my agency’s prepayment audit program?
102–118.330 What are the elements of an acceptable prepayment audit program?
102–118.335 What does the GSA Audit Division consider when verifying an agency
prepayment audit program?
102–118.340 How does my agency contact the
GSA Audit Division?
102–118.345 If my agency chooses to change
an approved prepayment audit program,
does the program need to be re-approved?
LIABILITY FOR CERTIFYING AND DISBURSING
OFFICERS
102–118.350 Does establishing a prepayment
audit system or program change the responsibilities of the certifying officers?
102–118.355 Does a prepayment audit waiver,
change any liabilities of the certifying
officer?
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Pt. 102–118
41 CFR Ch. 102 (7–1–16 Edition)
102–118.360 What relief from liability is
available for the certifying official under
a postpayment audit?
102–118.365 Do the requirements of a prepayment audit change the disbursing official’s liability for overpayment?
102–118.370 Where does relief from prepayment audit liability for certifying, accountable, and disbursing officers reside
in my agency?
WAIVERS FROM MANDATORY PREPAYMENT
AUDIT
102–118.375 Who has the authority to grant a
waiver of the prepayment audit requirement?
102–118.380 How does my agency apply for a
waiver from the prepayment audit requirement?
102–118.385 What must a waiver request include?
102–118.390 On what basis does GSA grant a
waiver to the prepayment audit requirement?
102–118.395 How long will GSA take to respond to a waiver request?
102–118.400 Must my agency renew a waiver
of the prepayment audit requirements?
102–118.405 Are my agency’s prepayment audited transportation bills subject to periodic postpayment audit oversight from
the GSA Audit Division?
SUSPENSION OF AGENCY PREPAYMENT AUDIT
PROGRAMS
102–118.410 Can GSA suspend my agency’s
prepayment audit program?
Subpart E—Postpayment Transportation
Audits
102–118.415 Will the widespread mandatory
use of prepayment audits eliminate
postpayment audits?
102–118.420 Can the Administrator of General Services waive the postpayment auditing provisions of this subpart?
102–118.425 Is my agency allowed to perform
a postpayment audit on our transportation bills?
102–118.430 What information must be on my
agency’s transportation bills submitted
for a postpayment audit?
102–118.435 What procedures does GSA use to
perform a postpayment audit?
102–118.440 What are the postpayment audit
responsibilities and roles of the GSA
Audit Division?
102–118.445 Must my agency pay for a
postpayment audit when using the GSA
Audit Division?
Subpart F—Claims and Appeal Procedures
GENERAL AGENCY INFORMATION FOR ALL
CLAIMS
102–118.450 Can a TSP file a transportation
claim against my agency?
102–118.445 What is the time limit for a TSP
to file a transportation claim against my
agency?
102–118.460 What is the time limit for my
agency to file a court claim with a TSP
for freight charges, reparations, and loss
or damage to the property?
102–118.465 Must my agency pay interest on
a disputed amount claimed by a TSP?
102–118.470 Are there statutory time limits
for a TSP on filing an administrative
claim with the GSA Audit Division?
102–118.475 Does interest apply after certification of payment of claims?
102–118.480 How does my agency settle disputes with a TSP?
102–118.485 Is there a time limit for my
agency to issue a decision on disputed
claims?
102–118.490 What if my agency fails to settle
a dispute within 30 days?
102–118.495 May my agency appeal a decision
by the Civilian Board of Contract Appeals (CBCA)?
102–118.500 How does my agency handle a
voluntary refund submitted by a TSP?
102–118.505 Must my agency send a voluntary refund to the Treasurer of the
United States?
102–118.510 Can my agency revise or alter a
GSA Form 7931, Certificate of Settlement?
102–118.515 Does my agency have any recourse not to pay a Certificate of Settlement?
102–118.520 Who is responsible for determining the standards for collection, compromise, termination, or suspension of
collection action on any outstanding
debts to my agency?
102–118.525 What are my agency’s responsibilities for verifying the correct
amount of transportation charges?
102–118.530 Will GSA instruct my agency’s
disbursing offices to offset unpaid TSP
billings?
102–118.535 Are there principles governing
my agency’s TSP debt collection procedures?
102–118.540 Who has the authority to audit,
settle accounts, and/or start collection
action for all transportation services
provided for my agency?
TRANSPORTATION SERVICE PROVIDER (TSP)
FILING REQUIREMENTS
102–118.545 What information must a TSP
claim include?
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Federal Management Regulation
§ 102–118.20
102–118.550 How does a TSP file an administrative claim using EDI or other electronic means?
102–118.555 Can a TSP file a supplemental
administrative claim?
102–118.560 What is the required format that
a TSP must use to file an administrative
claim?
102–118.565 What documentation is required
when filing an administrative claim?
TRANSPORTATION SERVICE PROVIDER (TSP)
AND AGENCY APPEAL PROCEDURES FOR PREPAYMENT AUDITS
102–118.570 If my agency denies the TSP’s
challenge to the Statement of Difference,
may the TSP appeal?
102–118.575 If a TSP disagrees with the decision of my agency, can the TSP appeal?
102–118.580 May a TSP appeal a prepayment
audit decision of the GSA Audit Division?
102–118.585 May a TSP appeal a prepayment
audit decision of the CBCA?
102–118.590 May my agency appeal a prepayment audit decision of the GSA Audit Division?
102–118.595 May my agency appeal a prepayment audit decision by the CBCA?
TRANSPORTATION SERVICE PROVIDER (TSP)
AND AGENCY APPEAL PROCEDURES FOR
POSTPAYMENT AUDITS
102–118.600 When a TSP disagrees with a Notice of Overcharge resulting from a
postpayment audit, what are the appeal
procedures?
102–118.605 What if a TSP disagrees with the
Notice of Indebtedness?
102–118.610 Is a TSP notified when GSA allows a claim?
102–118.615 Will GSA notify a TSP if they
internally offset a payment?
102–118.620 How will a TSP know if the GSA
Audit Division disallows a claim?
102–118.625 Can a TSP request a reconsideration of a settlement action by the GSA
Audit Division?
102–118.630 How must a TSP refund amounts
due to GSA?
102–118.635 Can the Government charge interest on an amount due from a TSP?
102–118.640 If a TSP fails to pay or to appeal
an overcharge, what actions will GSA
pursue to collect the debt?
102–118.645 Can a TSP file an administrative
claim on collection actions?
102–118.650 Can a TSP request a review of a
settlement action by the Administrator
of General Services?
102–118.655 Are there time limits on a TSP
request for an administrative review by
the Civilian Board of Contract Appeals
(CBCA)?
102–118.660 May
a
TSP
appeal
a
postpayment audit decision of the CBCA?
102–118.665 May
postpayment
CBCA?
my agency appeal a
audit decision by the
TRANSPORTATION SERVICE PROVIDER (TSP)
NON-PAYMENT OF A CLAIM
102–118.670 If a TSP cannot immediately pay
a debt, can they make other arrangements for payment?
102–118.675 What recourse does my agency
have if a TSP does not pay a transportation debt?
AUTHORITY: 31 U.S.C. 3726; and 40 U.S.C. 481,
et seq.
SOURCE: 65 FR 24569, Apr. 26, 2000, unless
otherwise noted.
Subpart A—General
INTRODUCTION
§ 102–118.5
part?
What is the purpose of this
The purpose of this part is to interpret statutes and other policies that
assure that payment and payment
mechanisms for agency transportation
services are uniform and appropriate.
This part communicates the policies
clearly to agencies and transportation
service providers (TSPs). (See § 102–
118.35 for the definition of TSP.)
§ 102–118.10
audit?
What is a transportation
A transportation audit is a thorough
review and validation of transportation
related bills. The audit must examine
the validity, propriety, and conformity
of the charges with tariffs, quotations,
agreements, or tenders, as appropriate.
Each agency must ensure that its internal transportation audit procedures
prevent duplicate payments and only
allow payment for authorized services,
and that the TSP’s bill is complete
with required documentation.
§ 102–118.15 What is a transportation
payment?
A transportation payment is a payment made by an agency to a TSP for
the movement of goods or people and/or
transportation related services.
§ 102–118.20
part?
Who
is
subject
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All agencies and TSPs defined in
§ 102–118.35 are subject to this part.
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§ 102–118.25
41 CFR Ch. 102 (7–1–16 Edition)
Your agency is required to incorporate
this part into its internal regulations.
§ 102–118.25 Does GSA still require my
agency to submit its overall transportation policies for approval?
GSA no longer requires your agency
to submit its overall transportation
policies for approval. However, as
noted in § 102–118.325, agencies must
submit their prepayment audit plans
for approval. In addition, GSA may
from time to time request to examine
your agency’s transportation policies
to verify the correct performance of
the prepayment audit of your agency’s
transportation bills.
§ 102–118.30 Are Government corporations bound by this part?
No, Government corporations are not
bound by this part. However, they may
choose to use it if they wish.
DEFINITIONS
§ 102–118.35 What definitions apply to
this part?
The following definitions apply to
this part:
Agency, as used in this part, means a
department, agency, or instrumentality of the United States Government.
Agency claim means any demand by
an agency upon a TSP for the payment
of overcharges, ordinary debts, fines,
penalties, administrative fees, special
charges, and interest.
Bill of lading, sometimes referred to
as a commercial bill of lading (but includes GBLs), is the document used as
a receipt of goods, and documentary
evidence of title. It is also a contract of
carriage when movement is under 49
U.S.C. 10721 and 49 U.S.C. 13712.
Cash means cash, personal checks,
personal charge cards, and travelers
checks. Cash may only be used to pay
for transportation expenses in extremely limited cases where government payment mechanisms are not
available or acceptable.
Document reference number means the
unique number on a bill of lading, Government Bill of Lading, Government
Transportation Request, or transportation ticket, used to track the movement of shipments and individuals.
EDI signature means a discrete authentication code which serves in place
of a paper signature and binds parties
to the terms and conditions of a contract in electronic communication.
Electronic commerce means electronic
techniques for performing business
transactions (ordering, billing, and
paying for goods and services), including electronic mail or messaging,
Internet technology, electronic bulletin boards, charge cards, electronic
funds transfers, and electronic data
interchange.
Electronic data interchange means
electronic techniques for carrying out
transportation transactions using electronic transmissions of the information between computers instead of
paper documents. These electronic
transmissions must use established and
published formats and codes as authorized by the applicable Federal Information Processing Standards.
Electronic funds transfer means any
transfer of funds, other than transactions initiated by cash, check, or
similar paper instrument, that is initiated through an electronic terminal,
telephone, computer, or magnetic tape,
for the purpose of ordering, instructing, or authorizing a financial institution to debit or credit an account. The
term includes Automated Clearinghouse transfers, Fed Wire transfers,
and transfers made at automatic teller
machines and point of sale terminals.
Government bill of lading (GBL) is the
transportation document used as a receipt of goods, evidence of title, and a
contract of carriage for Government
international shipments.
Government contractor-issued charge
card means both an individually billed
travel card, which the individual is required to pay, and a centrally billed account for paying travel expenses, which
the agency is required to pay.
Government Transportation Request
(GTR) means Optional Form 1169, the
Government document used to buy
transportation services. The document
normally obligates the Government to
pay for the transportation services provided.
Offset means agency use of money
owed by the agency to a transportation
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Federal Management Regulation
§ 102–118.35
service provider (TSP) to cover a previous debt incurred to the agency by
the TSP.
Ordinary debt means an amount that
a TSP owes an agency other than for
the repayment of an overcharge. Ordinary debts include, but are not limited
to, payments for transportation services ordered and not provided (including unused transportation tickets), duplicate payments, and amounts for
which a TSP is liable because of loss
and/or damage to property it transported.
Overcharge means those charges for
transportation and travel services that
exceed those applicable under the contract for carriage. This also includes
charges more than those applicable
under rates, fares and charges established pursuant to section 13712 and
10721 of the Revised Interstate Commerce Act, as amended (49 U.S.C. 13712
and 10721), or other equivalent contract, arrangement or exemption from
regulation.
Postpayment audit means an audit of
transportation billing documents after
payment to decide their validity, propriety, and conformity with tariffs,
quotations, agreements, or tenders.
This process may also include subsequent adjustments and collections actions taken against a TSP by the Government.
Prepayment audit means an audit of
transportation billing documents before payment to determine their validity, propriety, and conformity with
tariffs, quotations, agreements, or
tenders.
Privately Owned Personal Property
Government Bill of Lading, Optional
Form 1203, means the agency transportation document used as a receipt of
goods, evidence of title, and generally
a contract of carriage. It is only available for the transportation of household goods. Use of this form is mandatory for Department of Defense, but optional for other agencies.
Rate authority means the document
that establishes the legal charges for a
transportation shipment. Charges included in a rate authority are those
rates, fares, and charges for transportation and related services contained
in tariffs, tenders, and other equivalent
documents.
Released value is stated in dollars and
is considered the assigned value of the
cargo for reimbursement purposes, not
necessarily the actual value of the
cargo. Released value may be more or
less than the actual value of the cargo.
The released value is the maximum
amount that could be recovered by the
agency in the event of loss or damage
for the shipments of freight and household goods. In return, when negotiating
for rates and the released value is proposed to be less than the actual value
of the cargo, the TSP should offer a
rate lower than other rates for shipping cargo at full value. The statement
of released value may be shown on any
applicable tariff, tender, contract,
transportation document or other documents covering the shipment.
Reparation means the payment involving a TSP to or from an agency of
an improper transportation billing as
determined by a postpayment audit.
Improper routing, overcharges, or duplicate payments may cause such improper billing. This is different from
payments to settle a claim for loss and
damage to items shipped under those
rates.
Standard carrier alpha code (SCAC)
means an unique four-letter code assigned to each TSP by the National
Motor Freight Traffic Association, Inc.
Statement of difference means a statement issued by an agency or its designated audit contractor during a prepayment audit when they determine
that a TSP has billed the agency for
more than the proper amount for the
services. This statement tells the TSP
on the invoice, the amount allowed and
the basis for the proper charges. The
statement also cites the applicable
rate references and other data relied on
for support. The agency issues a separate statement of difference for each
transportation transaction.
Statement of difference rebuttal means
a document used by the agency to respond to a TSP’s claim about an improper reduction made against the
TSP’s original bill by the paying agency.
Supplemental bill means a bill for
services that the TSP submits to the
agency for additional payment after reimbursement for the original bill. The
need to submit a supplemental bill
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§ 102–118.40
41 CFR Ch. 102 (7–1–16 Edition)
may occur due to an incorrect first bill
or due to charges which were not included on the original bill.
Taxpayer identification number (TIN)
means the number required by the Internal Revenue Service to be used by
the TSP in reporting income tax or
other returns. For a TSP, the TIN is an
employer identification number.
Transportation document (TD) means
any executed agreement for transportation service, such as a bill of lading
(including a Government Bill of Lading), a Government Transportation Request, or transportation ticket.
Transportation service means service
involved in the physical movement
(from one location to another) of products, people, household goods, and any
other objects by a TSP for an agency
as well as activities directly relating
to or supporting that movement. Examples of this are storage, crating, or
connecting appliances.
Transportation service provider (TSP)
means any party, person, agent, or carrier that provides freight or passenger
transportation and related services to
an agency. For a freight shipment this
would include packers, truckers, and
storers. For passenger transportation
this would include airlines, travel
agents and travel management centers.
Transportation service provider claim
means any demand by the TSP for
amounts not included in the original
bill that the TSP believes an agency
owes them. This includes amounts deducted or offset by an agency; amounts
previously refunded by the TSP, which
they now believe they are owed; and
any subsequent bills from the TSP resulting from a transaction that was
pre- or postpayment audited by the
GSA Audit Division.
Virtual GBL (VGBL) means the use of
a unique GBL number on a commercial
document, which binds the TSP to the
terms and conditions of a GBL.
NOTE TO § 102–118.35: 49 U.S.C. 13102, et seq.,
defines additional transportation terms not
listed in this section.
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57618, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
Subpart B—Ordering and Paying
for Transportation and Transportation Services
§ 102–118.40 How does my agency
order transportation and transportation services?
Your agency orders:
(a) Transportation of freight and
household goods and related transportation services (e.g., packaging, storage) with a Government contractorissued charge card, purchase order (or
electronic equivalent), or a Government bill of lading for international
shipments (including domestic overseas shipments). In extremely limited
cases, cash can be used where government payment mechanisms are not
available or acceptable.
(b) Transportation of people through
the purchase of transportation tickets
with a Government issued charge card
(or centrally billed travel account citation), Government issued individual
travel charge card, personal charge
card, cash (in accordance with Department of the Treasury regulations), or
in limited prescribed situations, a Government
Transportation
Request
(GTR). See the ‘‘U.S. Government Passenger
Transportation—Handbook,’’
obtainable from:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 66
FR 48812, Sept. 24, 2001; 69 FR 57618, Sept. 24,
2004; 74 FR 30475, June 26, 2009]
§ 102–118.45 How does a transportation service provider (TSP) bill my agency for
transportation and transportation services?
The manner in which your agency orders transportation and transportation
services determines the manner in which a TSP bills for service. This is shown
in the following table:
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Federal Management Regulation
§ 102–118.65
TRANSPORTATION SERVICE PROVIDER BILLING
(a) Ordering method
(b) Billing method
(1)(i) Government issued agency charge card, ..........
(1) Bill from charge card company (may be electronic).
(ii) Centrally billed travel account citation.
(2)(i) Purchase order, ..................................................
(ii) Bill of lading,
(iii) Government Bill of Lading,
(iv) Government Transportation Request.
(2) Bill from TSP (may be electronic).
(3)(i) Contractor issued individual travel charge card
(ii) Personal charge card,
(iii) Personal cash.
(3) Voucher from employee (may be electronic).
§ 102–118.50 How does my agency pay
for transportation services?
Your agency may pay for transportation services in three ways:
(a) Electronic funds transfer (EFT) (31
U.S.C. 3332, et). Your agency is required
by statute to make all payments by
EFT unless your agency receives a
waiver from the Department of the
Treasury.
(b) Check. For those situations where
EFT is not possible and the Department of the Treasury has issued a
waiver, your agency may make payments by check.
(c) Cash. In very unusual circumstances and as a last option, your
agency payments may be made in cash
in accordance with Department of the
Treasury regulations (31 CFR part 208).
§ 102–118.55 What administrative procedures must my agency establish
for payment of freight, household
goods, or other transportation services?
Your agency must establish administrative procedures which assure that
the following conditions are met:
(a) The negotiated price is fair and
reasonable;
(b) A document of agreement signifying acceptance of the arrangements
with terms and conditions is filed with
the participating agency by the TSP;
(c) The terms and conditions are included in all transportation agreements and referenced on all transportation documents (TDs);
(d) Bills are only paid to the TSP
providing service under the bill of lad-
ing to your agency and may not be
waived;
(e) All fees paid are accounted for in
the aggregate delivery costs;
(f) All payments are subject to applicable statutory limitations;
(g) Procedures (such as an unique
numbering system) are established to
prevent and detect duplicate payments,
properly account for expenditures and
discrepancy notices;
(h) All transactions are verified with
any indebtedness list. On charge card
transactions, your agency must consult any indebtedness list if the charge
card contract provisions allow for it;
and
(i) Procedures are established to
process any unused tickets.
§ 102–118.60 To what extent must my
agency use electronic commerce?
Your agency must use electronic
commerce in all areas of your transportation program. This includes the use
of electronic systems and forms for ordering, receiving bills and paying for
transportation
and
transportation
services.
[69 FR 57618, Sept. 24, 2004]
§ 102–118.65 Can my agency receive
electronic billing for payment of
transportation services?
Yes, when mutually agreeable to the
agency and the GSA Audit Division,
your agency is encouraged to use electronic billing for the procurement and
billing of transportation services.
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§ 102–118.70
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–118.70 Must my agency make all
payments via electronic funds
transfer?
Yes, under 31 U.S.C. 3332, et seq., your
agency must make all payments for
goods and services via EFT (this includes goods and services ordered using
charge cards).
§ 102–118.75 What if my agency or the
TSP does not have an account with
a financial institution or approved
payment agent?
Under 31 U.S.C. 3332, et seq., your
agency must obtain an account with a
financial institution or approved payment agent in order to meet the statutory requirements to make all Federal
payments via EFT unless your agency
receives a waiver from the Department
of the Treasury. To obtain a waiver,
your agency must contact:
The Commissioner
Financial Management Service
Department of the Treasury
401 Fourteenth Street, SW.
Washington, DC 20227
http://www.fms.treas.gov/
§ 102–118.80 Who is responsible for
keeping my agency’s electronic
commerce transportation billing
records?
Your agency’s internal financial regulations will identify responsibility for
recordkeeping. In addition, the GSA
Audit Division keeps a central repository of electronic transportation billing records for legal and auditing purposes. Therefore, your agency must forward all relevant electronic transportation billing documents to:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
or task order. In these circumstances
your agency will receive a bill for these
services from the charge card company.
§ 102–118.90 If my agency orders transportation
and/or
transportation
services with a Government contractor issued charge card or
charge account citation, is this subject to prepayment audit?
Generally, no transportation or
transportation services ordered with a
Government contractor issued charge
card or charge account citation can be
prepayment audited because the bank
or charge card contractor pays the TSP
directly, before your agency receives a
bill that can be audited from the
charge card company. However, if your
agency contracts with the charge card
or charge account provider to provide
for a prepayment audit, then, as long
as your agency is not liable for paying
the bank for improper charges (as determined by the prepayment audit
verification process), a prepayment
audit can be used. As with all prepayment audit programs, the charge card
prepayment audit must be approved by
the GSA Audit Division prior to implementation. If the charge card contract
does not provide for a prepayment
audit, your agency must submit the
transportation line items on the charge
card to the GSA Audit Division for a
postpayment audit.
§ 102–118.91 May my agency authorize
the use of cash?
Yes, in limited circumstances, a Government employee can use cash where
government payment mechanisms are
not available or acceptable.
[69 FR 57618, Sept. 24, 2004]
§ 102–118.92 How does my agency handle receipts, tickets or other
records of cash payments?
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.85 Can my agency use a Government contractor issued charge
card to pay for transportation services?
Yes, your agency may use a Government contractor issued charge card to
purchase transportation services if permitted under the charge card contract
Your agency must ensure that its
employees keep the original receipts
for transportation purchases over $75.00
made with cash. If it is impractical to
furnish receipts in any instance as required by this subtitle, the failure to
do so must be fully explained on the
travel voucher. Mere inconvenience in
the matter of taking receipts will not
be considered. These receipts must be
saved for a possible postpayment audit
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Federal Management Regulation
§ 102–118.120
by the GSA Audit Division. If your
agency requires the filing of paper receipts, then you must do so. For transportation purchases over $75.00, your
agency must ensure that copies of all
original papers are retained at your
agency. Copies of tickets from a TSP
must be sent to—General Services Administration, Transportation Audit Division (QMCA), Crystal Plaza 4, Room
300, 2200 Crystal Drive, Arlington, VA
22202, www.gsa.gov/transaudits.
[69 FR 57618, Sept. 24, 2004, as amended at 74
FR 30475, June 26, 2009]
§ 102–118.95 What forms can my agency use to pay transportation bills?
Your agency must use commercial
payment practices and forms to the
maximum extent possible; however,
when viewed necessary by your agency,
your agency may use the following
Government forms to pay transportation bills:
(a) Standard Form (SF) 1113, Public
Voucher for Transportation Charges,
and SF 1113–A, Memorandum Copy;
(b) Optional Form (OF) 1103, Government Bill of Lading and OF 1103A
Memorandum Copy (used for movement of things, both privately owned
and Government property for official
uses);
(c) OF 1169, Government Transportation Request (used to pay for tickets
to move people); and
(d) OF 1203, Privately Owned Personal Property Government Bill of
Lading, and OF 1203A, Memorandum
Copy (used by the Department of Defense to move private property for official transfers).
NOTE TO § 102–118.95: By March 31, 2002, your
agency may no longer use the GBLs (OF 1103
and OF 1203) for domestic shipments. After
September 30, 2000, your agency should minimize the use of GTRs (OF 1169).
[65 FR 24569, Apr. 26, 2000, as amended at 66
FR 48812, Sept. 24, 2001]
§ 102–118.100 What must my agency
ensure is on each SF 1113?
Your agency must ensure during its
prepayment audit of a TSP bill that
the TSP filled out the Public Vouchers,
SF 1113, completely including the taxpayer identification number (TIN), and
standard carrier alpha code (SCAC). An
SF 1113 must accompany all billings.
§ 102–118.105 Where can I find the
rules governing the use of a Government Bill of Lading?
The
‘‘U.S.
Government
Freight
Transportation—Handbook’’ contains
information on how to prepare this
GBL form. To get a copy of this handbook, you may write to: General Services Administration, Transportation
Audit Division (QMCA), Crystal Plaza
4, Room 300, 2200 Crystal Drive, Arlington, VA 22202, www.gsa.gov/transaudits.
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.110 Where can I find the
rules governing the use of a Government Transportation Request?
The ‘‘U.S. Government Passenger
Transportation—Handbook’’ contains
information on how to prepare this
GTR form. To get a copy of this handbook, you may write to:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004: 74 FR 30475, June 26,
2009]
§ 102–118.115
GBL?
Must my agency use a
No, your agency is not required to
use a GBL and must use commercial
payment practices to the maximum extent possible. Effective March 31, 2002,
your agency must phase out the use of
the Optional Forms 1103 and 1203 for
domestic shipments. After this date,
your agency may use the GBL solely
for international shipments.
[65 FR 24569, Apr. 26, 2000, as amended at 66
FR 48812, Sept. 24, 2001]
§ 102–118.120
GTR?
Must my agency use a
No, your agency is not required to
use a GTR. Your agency must adopt
commercial practices and eliminate
GTR use to the maximum extent possible.
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§ 102–118.125
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–118.125 What if my agency uses a
TD other than a GBL?
If your agency uses any other TD for
shipping under its account, the requisite and the named safeguards must
be in place (i.e., terms and conditions
found herein and in the ‘‘U.S. Government Freight Transportation—Handbook,’’ appropriate numbering, etc.).
§ 102–118.130 Must my agency use a
GBL for express, courier, or small
package shipments?
No, however, in using commercial
forms all shipments must be subject to
the terms and conditions set forth for
use of a bill of lading for the Government. Any other non-conflicting applicable contracts or agreements between
the TSP and an agency involving buying transportation services for Government traffic remain binding. This purchase does not require a SF 1113. When
you are using GSA’s schedule for small
package express delivery, the terms
and conditions of that contract are
binding.
§ 102–118.135 Where are the mandatory terms and conditions governing the use of bills of lading?
The mandatory terms and conditions
governing the use of bills of lading are
contained in this part and the ‘‘U.S.
Government Freight Transportation
Handbook.’’
§ 102–118.140 What are the major mandatory terms and conditions governing the use of GBLs and bills of
lading?
The mandatory terms and conditions
governing the use of GBLs and bills of
lading are:
(a) Unless otherwise permitted by
statute and approved by the agency,
the TSP may not demand prepayment
or collect charges from the consignee.
The TSP, providing service under the
bill of lading, must present a legible
copy of the bill of lading or an original,
properly certified GBL attached to
Standard Form (SF) 1113, Public
Voucher for Transportation Charges, to
the paying office for payment;
(b) The shipment must be made at
the restricted or limited valuation
specified in the tariff or classification
or limited contract, arrangement or ex-
emption at or under which the lowest
rate is available, unless indicated on
the GBL or bill of lading. (This is commonly referred to as an alternation of
rates);
(c) Receipt for the shipment is subject to the consignee’s annotation of
loss, damage, or shrinkage on the delivering TSP’s documents and the consignee’s copy of the same documents. If
loss or damage is discovered after delivery or receipt of the shipment, the
consignee must promptly notify the
nearest office of the last delivering
TSP and extend to the TSP the privilege of examining the shipment;
(d) The rules and conditions governing commercial shipments for the
time period within which notice must
be given to the TSP, or a claim must
be filed, or suit must be instituted,
shall not apply if the shipment is lost,
damaged or undergoes shrinkage in
transit. Only with the written concurrence of the Government official responsible for making the shipment is
the deletion of this item considered to
valid;
(e) Interest shall accrue from the
voucher payment date on the overcharges made and shall be paid at the
same rate in effect on that date as published by the Secretary of the Treasury
pursuant to the Debt Collection Act of
1982 31 U.S.C. 3717); and
(f) Additional mandatory terms and
conditions are in this part and the
‘‘U.S. Government Freight Transportation—Handbook.’’
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57619, Sept. 24, 2004]
§ 102–118.145 Where are the mandatory terms and conditions governing the use of passenger transportation documents?
The mandatory terms and conditions
governing the use of passenger transportation documents are contained in
this part and the ‘‘U.S. Government
Passenger
Transportation—Handbook.’’
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Federal Management Regulation
§ 102–118.170
§ 102–118.150 What are the major mandatory terms and conditions governing the use of passenger transportation documents?
The mandatory terms and conditions
governing the use of passenger transportation documents are:
(a) Government travel must be via
the lowest cost available, that meets
travel requirements; e.g., Government
contract, fare, through, excursion, or
reduced one way or round trip fare.
This should be done by entering the
term ‘‘lowest coach’’ on the Government travel document if the specific
fare basis is not known;
(b) The U.S. Government is not responsible for charges exceeding those
applicable to the type, class, or character authorized in transportation documents;
(c) The U.S. Government contractorissued charge card must be used to the
maximum extent possible to procure
passenger transportation tickets. GTRs
must be used minimally;
(d) Government passenger transportation documents must be in accordance with Federal Travel Regulation
Chapters 300 and 301 (41 CFR chapters
300 and 301), and the ‘‘U.S. Government
Passenger
Transportation—Handbook’’;
(e) Interest shall accrue from the
voucher payment date on overcharges
made hereunder and shall be paid at
the same rate in effect on that date as
published by the Secretary of the
Treasury pursuant to the Debt Collection Act of 1982;
(f) The TSP must insert on the TD
any known dates on which travel commenced;
(g) The issuing official or traveler, by
signature, certifies that the requested
transportation is for official business;
(h) The TSP must not honor any request containing erasures or alterations unless the TD contains the authentic, valid initials of the issuing official; and
(i) Additional mandatory terms and
conditions are in this part and the ‘‘U.
S. Government Passenger Transportation—Handbook.’’
§ 102–118.155 How does my agency
handle supplemental billings from
the TSP after payment of the original bill?
Your agency must process, review,
and verify supplemental billings using
the same procedures as on an original
billing. If the TSP disputes the findings, your agency must attempt to resolve the disputed amount.
§ 102–118.160 Who is liable if my agency makes an overpayment on a
transportation bill?
If the agency conducts prepayment
audits of its transportation bills, agency transportation certifying and disbursing officers are liable for any overpayments made. If GSA has granted a
waiver to the prepayment audit requirement and the agency performs a
postpayment audit (31 U.S.C. 3528 and
31 U.S.C. 3322) neither the certifying
nor disbursing officers are liable for
the reasons listed in these two cited
statutes.
§ 102–118.165 What must my agency do
if it finds an error on a TSP bill?
Your agency must advise the TSP via
statement of difference of any adjustment that you make either electronically or in writing within 7 days of receipt of the bill, as required by the
Prompt Payment Act (31 U.S.C. 3901, et
seq.). This notice must include the
TSP’s taxpayer identification number,
standard carrier alpha code, bill number and document reference number,
agency name, amount requested by the
TSP, amount paid, payment voucher
number, complete tender or tariff authority, the applicable rate authority
and the complete fiscal authority including the appropriation.
§ 102–118.170 Will GSA continue to
maintain a centralized numbering
system for Government transportation documents?
Yes, GSA will maintain a numbering
system for GBLs and GTRs. For commercial TDs, each agency must create
a unique numbering system to account
for and prevent duplicate numbers. The
GSA Audit Division must approve this
system. Write to:
General Services Administration
Transportation Audit Division (QMCA)
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§ 102–118.185
41 CFR Ch. 102 (7–1–16 Edition)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
Subpart C—Use of Government
Billing Documents
TERMS AND CONDITIONS GOVERNING ACCEPTANCE AND USE OF A GOVERNMENT
BILL OF LADING (GBL) OR GOVERNMENT
TRANSPORTATION
REQUEST
(GTR) (UNTIL FORM RETIREMENT)
§ 102–118.185 When
buying
freight
transportation, must my agency reference the applicable contract or
tender on the bill of lading (including a GBL)?
Yes, your agency must reference the
applicable contract or tender when
buying transportation on a bill of lading (including GBLs). However, the referenced information on a GBL or bill of
lading does not limit an audit of
charges.
§ 102–118.190 When buying passenger
transportation must my agency reference the applicable contract?
Yes, when buying passenger transportation, your agency must reference the
applicable contract on a GTR or passenger transportation document (e.g.,
ticket).
§ 102–118.195 What documents must a
transportation
service
provider
(TSP) send to receive payment for a
transportation billing?
For shipments bought on a TD, the
TSP must submit an original properly
certified GBL, PPGBL, or bill of lading
attached to an SF 1113, Public Voucher
for Transportation Charges. The TSP
must submit this package and all supporting documents to the agency paying office.
§ 102–118.200 Can a TSP demand advance payment for the transportation charges submitted on a bill
of lading (including GBL)?
No, a TSP cannot demand advance
payment for transportation charges
submitted on a bill of lading (including
GBL), unless authorized by law.
§ 102–118.205 May my agency pay a
subcontractor or agent functioning
as a warehouseman for the TSP
providing service under the bill of
lading?
No, your agency may only pay the
TSP with whom it has a contract. The
bill of lading will list the TSP with
whom the Government has a contract.
§ 102–118.210 May my agency use bills
of lading other than the GBL for a
transportation shipment?
Yes, as long as the mandatory terms
and conditions contained in this part
(as also stated on a GBL) apply. The
TSP must agree in writing to the mandatory terms and conditions (also
found in the ‘‘U.S. Government Freight
Transportation Handbook’’) contained
in this part.
§ 102–118.215 May my agency pay a
TSP any extra fees to pay for the
preparation and use of the GBL or
GTR?
No, your agency must not pay any
additional charges for the preparation
and use of the GBL or GTR. Your agency may not pay a TSP a higher rate
than comparable under commercial
procedures for transportation bought
on a GBL or GTR.
§ 102–118.220 If a transportation debt
is owed to my agency by a TSP because of loss or damage to property,
does my agency report it to GSA?
No, if your agency has administratively determined that a TSP owes a
debt resulting from loss or damage, follow your agency regulations.
§ 102–118.225 What constitutes final receipt of shipment?
Final receipt of the shipment occurs
when the consignee or a TSP acting on
behalf of the consignee with the agency’s permission, fully signs and dates
both the delivering TSP’s documents
and the consignee’s copy of the same
documents indicating delivery and/or
explaining any delay, loss, damage, or
shrinkage of shipment.
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31
Federal Management Regulation
§ 102–118.260
§ 102–118.230 What if my agency creates or eliminates a field office approved to prepare transportation
documents?
Your agency must tell the GSA Audit
Division whenever it approves a new or
existing agency field office to prepare
transportation documents or when an
agency field office is no longer authorized to do so. This notice must show
the name, field office location of the
bureau or office, and the date on which
your agency granted or canceled its authority to schedule payments for transportation service.
AGENCY RESPONSIBILITIES WHEN USING
GOVERNMENT BILLS OF LADING (GBLS)
OR GOVERNMENT TRANSPORTATION REQUESTS (GTRS)
§ 102–118.235 Must my agency keep
physical control and accountability
of the GBL and GTR forms or GBL
and GTR numbers?
Yes, your agency is responsible for
the physical control and accountability
of the GBL and GTR stock and must
have procedures in place and available
for inspection by GSA. Your agency
must consider these Government transportation documents to be the same as
money.
§ 102–118.240 How does my agency get
GBL and GTR forms?
Your agency can get GBL and GTR
forms, in either blank or prenumbered
formats, from:
General Services Administration
Federal Acquisition Service
Inventory Management Branch (QSDACDB–
WS)
819 Taylor Street, Room 6A00
Fort Worth, TX 76102
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.245 How does my agency get
an assigned set of GBL or GTR
numbers?
If your agency does not use
prenumbered GBL and GTR forms, you
may get an assigned set of numbers
from:
General Services Administration
Federal Acquisition Service
Inventory Management Branch (QSDACDB–
WS)
819 Taylor Street, Room 6A00
Fort Worth, TX 76102
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.250 Who is accountable for
the issuance and use of GBL and
GTR forms?
Agencies and employees are responsible for the issuance and use of GBL
and GTR forms and are accountable for
their disposition.
§ 102–118.255 Are GBL and GTR forms
numbered and used sequentially?
Yes, GBL and GTR forms are always
sequentially numbered when printed
and/or used. No other numbering of the
forms, including additions or changes
to the prefixes or additions of suffixes,
is permitted.
QUOTATIONS, TENDERS OR CONTRACTS
§ 102–118.260 Must my agency send all
quotations, tenders, or contracts
with a TSP to GSA?
(a) Yes, your agency must send copies of each quotation, tender, or contract of special rates, fares, charges, or
concessions with TSPs including those
authorized by 49 U.S.C. 10721 and 13712,
upon execution to—General Services
Administration, Transportation Audit
Division (QMCA), Crystal Plaza 4,
Room 300, 2200 Crystal Drive, Arlington, VA 22202, www.gsa.gov/transaudits.
(b) Tenders must be submitted electronically, following the instructions
provided by the requesting agency. The
following information must be submitted with the tender:
(1) Issuing TSP, Bureau, Agency or
Conference.
(2) Tender number.
(3) Standard Carrier Alpha Code
(SCAC).
(4) TSP Tax Identification Number
(TIN).
(5) Issue date.
(6) Effective date.
(7) Expiration date.
(8) Origin and destination.
(9) Freight Classification and/or commodity description (including origin
and destination).
(10) Rate or charge for line haul
rates.
(11) Minimum weights.
(12) Route(s).
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§ 102–118.265
41 CFR Ch. 102 (7–1–16 Edition)
(13) Accessorial services description(s) with rate or charge and governing publication.
(14) TSP operating authority.
(c) The TSP must include a statement that the TSP will adhere and
agree to the following general terms
and conditions. The services provided
in this tender will be performed in accordance with applicable Federal,
State and municipal laws and regulations, including Federal Management
Regulation parts 102–117 and 102–118 (41
CFR parts 102–117 and 102–118), and the
TSP(s) hold(s) the required operating
authority to transport the commodity
from, to, or between the places specified in the authorized certificates, permits or temporary operating authorities.
(d) The TSP shall bill the United
States Government on Standard Form
(SF) 1113, Public Voucher for Transportation Charges, appropriately completed and supported. The TSP(s) will
send bills to the ‘‘Bill Charges To’’ address on the face of the bill of lading or
agency-ordering document.
(e) The Optional Form (OF) 280, Uniform Tender of Rates and/or Charges
for Transportation Services, includes
all the provisions of paragraph (c) of
this section and is another option to
file a tender with the Government.
[69 FR 57619, Sept. 24, 2004, as amended at 74
FR 30475, June 26, 2009]
Subpart D—Prepayment Audits of
Transportation Services
AGENCY REQUIREMENTS FOR
PREPAYMENT AUDITS
§ 102–118.265
audit?
What is a prepayment
A prepayment audit is a review of a
transportation service provider (TSP)
bill that occurs prior to your agency
making payment to a TSP. This review
compares the charges on the bill
against the charge permitted under the
contract, rate tender, or other agreement under which the TSP provided
the transportation and/or transportation related services.
§ 102–118.270 Must my agency establish a prepayment audit program?
Yes, under 31 U.S.C. 3726, your agency
is required to establish a prepayment
audit program. Your agency must send
a preliminary copy of your prepayment
audit program to: General Services Administration, Office of Travel, Transportation and Asset Management (MT),
1800 F Street, NW., Washington, DC
20405.
[74 FR 30476, June 26, 2009]
§ 102–118.275 What must my agency
consider when designing and implementing a prepayment audit program?
(a) As shown in § 102–118.45, the manner in which your agency orders transportation services determines how and
by whom the bill for those services will
be presented. Each method of ordering
transportation
and
transportation
services may require a different kind of
prepayment audit.
Your agency’s prepayment audit program must consider all of the methods
that you use to order and pay for transportation services. With each method
of ordering transportation services,
your agency should ensure that each
TSP bill or employee travel voucher
contains enough information for the
prepayment audit to determine which
contract or rate tender is used and that
the type and quantity of any additional
services are clearly delineated.
(b) For transportation payments
made through cost reimbursable contracts, the agency must include a
statement in the contract that the contractor shall submit to the address
identified for prepayment audit, transportation documents which show that
the United States will assume freight
charges that were paid by the contractor.
(c) Cost reimbursable contractors
shall only submit for audit bills of lading with freight shipment charges exceeding $100.00. Bills under $100.00 shall
be retained on-site by the contractor
and made available for on-site audits.
[69 FR 57619, Sept. 24, 2004]
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Federal Management Regulation
§ 102–118.315
§ 102–118.280 What advantages does
the prepayment audit offer my
agency?
Prepayment auditing will allow your
agency to detect and eliminate billing
errors before payment and will eliminate the time and cost of recovering
agency overpayments.
§ 102–118.285 What options for performing a prepayment audit does
my agency have?
Your agency may perform a prepayment audit by:
(a) Creating an internal prepayment
audit program;
(b) Contracting directly with a prepayment audit service provider; or
(c) Using the services of a prepayment audit contractor under GSA’s
multiple award schedule covering audit
and financial management services.
NOTE TO § 102–118.285: Either of the choices
in paragraph (a), (b) or (c) of this section
might include contracts with charge card
companies that provide prepayment audit
services.
§ 102–118.290 Must every electronic
and paper transportation bill undergo a prepayment audit?
Yes, all transportation bills and payments must undergo a prepayment
audit unless your agency’s prepayment
audit program uses a statistical sampling technique of the bills or the Administrator of General Services grants
a specific waiver from the prepayment
audit requirement. If your agency
chooses to use statistical sampling, all
bills must be at or below the Comptroller General specified limit of
$2,500.00 (31 U.S.C. 3521(b) and U.S. Government Accountability Office Policy
and Procedures Manual Chapter 7, obtainable from:
U.S. Government Accountability Office
P.O. Box 6015
Gaithersburg, MD 20884–6015
http://www.gao.gov
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.295 What are the limited exceptions to every bill undergoing a
prepayment audit?
The limited exceptions to bills undergoing a prepayment audit are those
bills subject to a waiver from GSA
(which may include bills determined to
be below your agency’s threshold). The
waiver to prepayment audit requirements may be for bills, mode or modes
of transportation or for an agency or
subagency.
§ 102–118.300 How does my agency
fund its prepayment audit program?
Your agency must pay for the prepayment audit from those funds appropriated for transportation services.
§ 102–118.305 Must my agency notify
the TSP of any adjustment to the
TSP’s bill?
Yes, your agency must notify the
TSP of any adjustment to the TSP’s
bill either electronically or in writing
within 7 days of receipt of the bill. This
notice must refer to the TSP’s bill
number, agency name, taxpayer identification number, standard carrier alpha
code, document reference number,
amount billed, amount paid, payment
voucher number, complete tender or
tariff authority, including item or section number.
§ 102–118.310 Must my agency prepayment audit program establish appeal procedures whereby a TSP
may appeal any reduction in the
amount billed?
Yes, your agency must establish an
appeal process that directs TSP appeals to an agency official who is able
to provide adequate consideration and
review of the circumstances of the
claim. Your agency must complete the
review of the appeal within 30 days.
§ 102–118.315 What must my agency do
if the TSP disputes the findings and
my agency cannot resolve the dispute?
(a) If your agency is unable to resolve
the disputed amount with the TSP,
your agency should forward all relevant documents including a complete
billing history, and the appropriation
or fund charged, to: General Services
Administration, Transportation Audit
Division (QMCA), Crystal Plaza 4,
Room 300, 2200 Crystal Drive, Arlington, VA 22202, www.gsa.gov/transaudits.
(b) The GSA Audit Division will review the appeal of an agency’s final,
full or partial denial of a claim and
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§ 102–118.320
41 CFR Ch. 102 (7–1–16 Edition)
issue a decision. A TSP must submit
claims within 3 years under the guidelines established in § 102–118.460.
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.320 What information must
be on transportation bills that have
completed my agency’s prepayment
audit?
(a) The following information must
be annotated on all transportation bills
that have completed a prepayment
audit:
(1) The date received from a TSP;
(2) A TSP’s bill number;
(3) Your agency name;
(4) A Document Reference Number
(DRN);
(5) The amount billed;
(6) The amount paid;
(7) The payment voucher number;
(8) Complete tender or tariff authority, including item or section number;
(9) The TSP’s taxpayer identification
number (TIN);
(10) The TSP’s standard carrier alpha
code (SCAC);
(11) The auditor’s authorization code
or initials; and
(12) A copy of any statement of difference sent to the TSP.
(b) Your agency can find added guidance in the ‘‘U.S. Government Freight
Transportation—Handbook,’’
obtainable from:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
MAINTAINING AN APPROVED PROGRAM
§ 102–118.325 Must I get approval for
my agency’s prepayment audit program?
Yes, your agency must get approval
for your prepayment audit program.
The highest level budget or financial
official of each agency, such as the
Chief Financial Officer, initially approves your agency’s prepayment audit
program. After internal agency approval, your agency submits the plan
in writing to the GSA Audit Division
for final approval.
§ 102–118.330 What are the elements of
an acceptable prepayment audit
program?
An acceptable prepayment audit program must:
(a) Verify all transportation bills
against filed rates and charges before
payment;
(b) Comply with the Prompt Payment Act (31 U.S.C. 3901, et seq.);
(c) Allow for your agency to establish
minimum dollar thresholds for transportation bills subject to audit;
(d) Require your agency’s paying office to offset, if directed by GSA’s
Audit Division, debts from amounts
owed to the TSP within the 3 years as
per 31 U.S.C. 3726(b);
(e) Be approved by the GSA Audit Division. After the initial approval, the
agency may be subject to periodic program review and reapproval;
(f) Complete accurate audits of transportation bills and notify the TSP of
any adjustment within 7 calendar days
of receipt;
(g) Create accurate notices to the
TSPs that describe in detail the reasons for any full or partial rejection of
the stated charges on the invoice. An
accurate notice must include the TSP’s
invoice number, the billed amount,
TIN, standard carrier alpha code, the
charges calculated by the agency, and
the specific reasons including applicable rate authority for the rejection;
(h) Forward documentation monthly
to the GSA Audit Division, which will
store paid transportation bills under
the General Records Schedule 9, Travel
and Transportation (36 CFR Chapter
XII, 1228.22) which requires keeping
records for 3 years. GSA will arrange
for storage of any document requiring
special handling (e.g., bankruptcy,
court case, etc.). These bills will be retained pursuant to 44 U.S.C. 3309 until
claims have been settled;
(i) Establish procedures in which
transportation bills not subject to prepayment audit (i.e., bills for unused
tickets and charge card billings) are
handled separately and forwarded to
the GSA Audit Division; and
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Federal Management Regulation
§ 102–118.375
(j) Implement a unique agency numbering system to handle commercial
paper and practices (see § 102–118.55).
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57619, Sept. 24, 2004]
§ 102–118.335 What does the GSA Audit
Division consider when verifying
an agency prepayment audit program?
The GSA Audit Division bases
verification of agency prepayment
audit programs on objective cost-savings, paperwork reductions, current
audit standards and other positive improvements, as well as adherence to
the guidelines listed in this part.
§ 102–118.340 How does my agency
contact the GSA Audit Division?
Your agency may contact the GSA
Audit Division by writing to: General
Services Administration, Transportation Audit Division (QMCA), Crystal
Plaza 4, Room 300, 2200 Crystal Drive,
Arlington, VA 22202, www.gsa.gov/
transaudits.
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.345 If my agency chooses to
change an approved prepayment
audit program, does the program
need to be reapproved?
Yes, you must receive approval of
any changes in your agency’s prepayment audit program from the GSA
Audit Division.
LIABILITY FOR CERTIFYING AND
DISBURSING OFFICERS
§ 102–118.350 Does establishing a prepayment audit system or program
change the responsibilities of the
certifying officers?
Yes, in a prepayment audit environment, an official certifying a transportation voucher is held liable for
verifying transportation rates, freight
classifications, and other information
provided on a transportation billing instrument or transportation request undergoing a prepayment audit (31 U.S.C.
3528).
§ 102–118.355 Does a prepayment audit
waiver change any liabilities of the
certifying officer?
Yes, a certifying official is not personally liable for verifying transportation rates, freight classifications, or
other information provided on a GBL
or passenger transportation request
when the Administrator of General
Services or designee waives the prepayment audit requirement and your agency uses postpayment audits.
§ 102–118.360 What relief from liability
is available for the certifying official under a postpayment audit?
The agency counsel relieves a certifying official from liability for overpayments in cases where postpayment
is the approved method of auditing
and:
(a) The overpayment occurred solely
because the administrative review before payment did not verify transportation rates; and
(b) The overpayment was the result
of using improper transportation rates
or freight classifications or the failure
to deduct the correct amount under a
land grant law or agreement.
§ 102–118.365 Do the requirements of a
prepayment audit change the disbursing official’s liability for overpayment?
Yes, the disbursing official has a liability for overpayments on all transportation bills subject to prepayment
audit (31 U.S.C. 3322).
§ 102–118.370 Where does relief from
prepayment audit liability for certifying, accountable, and disbursing
officers reside in my agency?
Your agency’s counsel has the authority to relieve liability and give advance opinions on liability issues to
certifying, accountable, and disbursing
officers (31 U.S.C. 3527).
WAIVERS FROM MANDATORY
PREPAYMENT AUDIT
§ 102–118.375 Who has the authority to
grant a waiver of the prepayment
audit requirement?
Only the Administrator of General
Services or designee has the authority
to grant waivers from the prepayment
audit requirement.
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§ 102–118.380
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–118.380 How does my agency
apply for a waiver from a prepayment audit of requirement?
Your agency must submit a request
for a waiver from the requirement to
perform a prepayment in writing to:
General Services Administration
Office of Travel, Transportation and Asset
Management (MT)
1800 F Street, NW.
Washington, DC 20405
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.385 What must a waiver request include?
A waiver request must explain in detail how the use of a prepayment audit
increases costs over a postpayment
audit, decreases efficiency, involves a
relevant public interest, adversely affects the agency’s mission, or is not
feasible for the agency. A waiver request must identify the mode or modes
of transportation, agency or subagency
to which the waiver would apply.
§ 102–118.390 On what basis does GSA
grant a waiver to the prepayment
audit requirement?
GSA issues waivers to the prepayment audit requirement based on:
(a) Cost-effectiveness;
(b) Government efficiency;
(c) Public interest; or
(d) Other factors the Administrator
of General Services considers appropriate.
§ 102–118.395 How long will GSA take
to respond to a waiver request?
GSA will respond to a written waiver
request within 30 days from the receipt
of the request.
§ 102–118.400 Must my agency renew a
waiver of the prepayment audit requirements?
Yes, your agency waiver to the prepayment audit requirement will not exceed 2 years. Your agency must reapply
to ensure the circumstances at the
time of approval still apply.
§ 102–118.405 Are my agency’s prepayment audited transportation bills
subject to periodic postpayment
audit oversight from the GSA Audit
Division?
Yes, two years or more after starting
prepayment audits, the GSA Audit Division (depending on its evaluation of
the results) may subject your agency’s
prepayment audited transportation
bills to periodic postpayment audit
oversight
rather
than
blanket
postpayment audits. The GSA Audit
Division will then prepare a report analyzing the success of your agency’s prepayment audit program. This report
will be on file at GSA and available for
your review.
SUSPENSION OF AGENCY PREPAYMENT
AUDIT PROGRAMS
§ 102–118.410 Can GSA suspend my
agency’s prepayment audit program?
(a) Yes, the Director of the GSA
Audit Division may suspend your agency’s prepayment audit program based
on his or her determination of a systematic or frequent failure of the program to:
(1) Conduct an accurate prepayment
audit of your agency’s transportation
bills;
(2) Abide by the terms of the Prompt
Payment Act;
(3) Adjudicate TSP claims disputing
prepayment audit positions of the
agency regularly within 30 days of receipt;
(4) Follow Comptroller General decisions, Civilian Board of Contract Appeals decisions, the Federal Management Regulation and GSA instructions
or precedents about substantive and
procedure matters; and/or
(5) Provide information and data or
to cooperate with on-site inspections
necessary to conduct a quality assurance review.
(b) A systematic or a multitude of individual failures will result in suspension. A suspension of an agency’s prepayment audit program may be in
whole or in part for failure to conduct
proper prepayment audits.
[65 FR 24569, Apr. 26, 2000, as amended at 78
FR 71529, Nov. 29, 2013]
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31
Federal Management Regulation
§ 102–118.440
Subpart E—Postpayment
Transportation Audits
chased under the Federal Acquisition
Regulation), item or section number;
(i) The TSP’s taxpayer identification
number; and
(j) The TSP’s standard carrier alpha
code (SCAC).
§ 102–118.415 Will the widespread mandatory use of prepayment audits
eliminate postpayment audits?
No, the mandatory use of prepayment
audits
will
not
eliminate
postpayment audits because:
(a) Postpayment audits will continue
for those areas which do not lend themselves to the prepayment audit; and
(b) The GSA Audit Division will continue to review and survey the progress
of the prepayment audit by performing
a postpayment audit on the bills. The
GSA Audit Division has a Congressionally mandated responsibility under 31
U.S.C. 3726 to perform oversight on
transportation bill payments. During
the early startup period for prepayment audits, transportation bills are
subject to a possible postpayment
audit to discover the effectiveness of
the prepayment audit process.
§ 102–118.420 Can the Administrator of
General
Services
waive
the
postpayment auditing provisions of
this subpart?
Yes, in certain circumstances, the
Administrator of General Services or
designee may waive the postpayment
audit oversight requirements of this
subpart on a case by case basis.
§ 102–118.425 Is my agency allowed to
perform a postpayment audit on
our transportation bills?
No, your agency must forward all
transportation bills to GSA for a
postpayment audit regardless of any
waiver allowing for postpayment audit.
§ 102–118.430 What information must
be on my agency’s transportation
bills submitted for a postpayment
audit?
Your agency must annotate all of its
transportation bills submitted for
postpayment audit with:
(a) The date received from a TSP;
(b) A TSP’s bill number;
(c) Your agency name;
(d) A Document Reference Number;
(e) The amount requested;
(f) The amount paid;
(g) The payment voucher number;
(h) Complete tender or tariff authority, including contract price (if pur-
§ 102–118.435 What procedures does
GSA use to perform a postpayment
audit?
When GSA performs a postpayment
audit, the GSA Audit Division has the
delegated authority to implement the
following procedures:
(a) Audit selected TSP bills after
payment;
(b) Audit selected TSP bills before
payment as needed to protect the Government’s interest (i.e., bankruptcy,
fraud);
(c) Examine, settle, and adjust accounts involving payment for transportation and related services for the account of agencies;
(d) Adjudicate and settle transportation claims by and against agencies;
(e) Offset an overcharge by any TSP
from an amount subsequently found to
be due that TSP;
(f) Issue a Notice of Overcharge stating that a TSP owes a debt to the agency. This notice states the amount paid,
the basis for the proper charge for the
document reference number, and cites
applicable tariff or tender along with
other data relied on to support the
overcharge. A separate Notice of Overcharge is prepared and mailed for each
bill; and
(g) Issue a GSA Notice of Indebtedness when a TSP owes an ordinary debt
to an agency. This notice states the
basis for the debt, the TSP’s rights, interest, penalty, and other results of
nonpayment. The debt is due immediately and subject to interest charges,
penalties, and administrative cost
under 31 U.S.C. 3717.
§ 102–118.440 What
are
the
postpayment audit responsibilities
and roles of the GSA Audit Division?
When the GSA Audit Division performs a postpayment audit for your
agency, GSA will:
(a) Examine and analyze payments to
discover their validity, relevance and
conformity with tariffs, quotations,
contracts, agreements or tenders and
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31
§ 102–118.445
41 CFR Ch. 102 (7–1–16 Edition)
make adjustments to protect the interest of an agency;
(b) Examine, adjudicate, and settle
transportation claims by and against
the agency;
(c) Collect from TSPs by refund,
setoff, offset or other means, the
amounts determined to be due the
agency;
(d) Adjust, terminate or suspend
debts due on TSP overcharges;
(e) Prepare reports to the Attorney
General of the United States with recommendations about the legal and
technical bases available for use in
prosecuting or defending suits by or
against an agency and provide technical, fiscal, and factual data from relevant records;
(f) Provide transportation specialists
and lawyers to serve as expert witnesses, assist in pretrial conferences,
draft pleadings, orders, and briefs, and
participate as requested in connection
with transportation suits by or against
an agency;
(g) Review agency policies, programs,
and procedures to determine their adequacy and effectiveness in the audit of
freight or passenger transportation
payments, and review related fiscal and
transportation practices;
(h) Furnish information on rates,
fares, routes, and related technical
data upon request;
(i) Tell an agency of irregular shipping routing practices, inadequate
commodity
descriptions,
excessive
transportation cost authorizations, and
unsound principles employed in traffic
and transportation management; and
(j) Confer with individual TSPs or related groups and associations presenting specific modes of transportation to resolve mutual problems concerning technical and accounting matters and acquainting them with agency
requirements.
§ 102–118.445 Must my agency pay for
a postpayment audit when using
the GSA Audit Division?
No, the expenses of postpayment
audit contract administration and
audit-related functions are financed
from overpayments collected from the
TSP’s bills previously paid by the
agency and similar type of refunds.
Subpart F—Claims and Appeal
Procedures
GENERAL AGENCY INFORMATION FOR ALL
CLAIMS
§ 102–118.450 Can a TSP file a transportation claim against my agency?
Yes, a TSP may file a transportation
claim against your agency under 31
U.S.C. 3726 for:
(a) Amounts owed but not included in
the original billing;
(b) Amounts deducted or set off by an
agency that are disputed by the TSP;
(c) Requests by a TSP for amounts
previously refunded in error by that
TSP; and/or
(d) Unpaid original bills requiring direct settlement by GSA, including
those subject to doubt about the suitability of payment (mainly bankruptcy
or fraud).
§ 102–118.455 What is the time limit for
a TSP to file a transportation claim
against my agency?
The time limits on a TSP transportation claim against the Government
differ by mode as shown in the following table:
TIME LIMITS ON ACTIONS TAKEN BY TSP
Mode
Freight
charges
Statute
(a) Air Domestic ..........
(b) Air International .....
(c) Freight Forwarders
(subject to the IC
Act).
(d) Motor .....................
(e) Rail ........................
(f) Water (subject to
the IC Act).
(g) Water (not subject
to the IC Act).
(h) TSPs exempt from
regulation.
6 years .....
6 years .....
3 years .....
28 U.S.C. 2401, 2501.
28 U.S.C. 2401, 2501.
49 U.S.C. 14705(f).
3 years .....
3 years .....
3 years .....
49 U.S.C. 14705(f).
49 U.S.C. 14705(f).
49 U.S.C. 14705(f).
2 years .....
46 U.S.C. 745.
6 years .....
28 U.S.C. 2401, 2501.
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31
Federal Management Regulation
§ 102–118.475
§ 102–118.460 What is the time limit for my agency to file a court claim with a TSP
for freight charges, reparations, and loss or damage to the property?
Statutory time limits vary depending on the mode and the service involved and
may involve freight charges. The following tables list the time limits:
(A) TIME LIMITS ON ACTIONS TAKEN BY THE FEDERAL GOVERNMENT AGAINST TSPS
Mode
Freight charges
Reparations
Loss and damage
(1) Rail .............................
3 years ...........................
49 U.S.C. 11705 ............
3 years ...........................
49 U.S.C. 11705 ............
6 years.
28 U.S.C. 2415.
(2) Motor ..........................
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
6 years.
28 U.S.C. 2415.
(3) Freight Forwarders
subject to the IC Act.
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
6 years.
28 U.S.C. 2415.
(4) Water (subject to the
IC Act).
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
3 years ...........................
49 U.S.C. .......................
14705(f) .........................
6 years.
28 U.S.C. 2415.
(5) Water (not subject to
the IC Act).
6 years 28 U.S.C. 2415
2 years 46 U.S.C. 821 ..
1 year.
46 U.S.C.
1303(6) (if subject to
Carriage of Goods by
Sear Act, 46 U.S.C.
1300–1315).
(6) Domestic Air ...............
6 years ...........................
28 U.S.C. 2415 ..............
........................................
6 years.
28 U.S.C. 2415.
(7) International Air ..........
6 years ...........................
28 U.S.C. 2415 ..............
........................................
2 years.
49 U.S.C. 40105.
(B) TIME LIMITS ON ACTIONS TAKEN BY THE FEDERAL GOVERNMENT AGAINST TSPS EXEMPT FROM
REGULATION
Mode
Freight
Reparations
(1) All ...............................
6 years ...........................
28 U.S.C. 2415 ..............
........................................
§ 102–118.465 Must my agency pay interest on a disputed amount
claimed by a TSP?
No, interest penalties under the
Prompt Payment Act, (31 U.S.C. 3901, et
seq.), are not required when payment is
delayed because of a dispute between
an agency and a TSP.
§ 102–118.470 Are there statutory time
limits for a TSP on filing an administrative claim with the GSA Audit
Division?
Yes, an administrative claim must be
received by the GSA Audit Division or
its designee (the agency where the
Loss and damage
6 years.
28 U.S.C. 2415.
claim arose) within 3 years beginning
the day after the latest of the following
dates (except in time of war):
(a) Accrual of the cause of action;
(b) Payment of charges for the transportation involved;
(c) Subsequent refund for overpayment of those charges; or
(d) Deductions made to a TSP claim
by the Government under 31 U.S.C.
3726.
§ 102–118.475 Does interest apply after
certification of payment of claims?
Yes, interest under the Prompt Payment Act (31 U.S.C. 3901, et seq.) begins
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31
§ 102–118.480
41 CFR Ch. 102 (7–1–16 Edition)
30 days after certification for payment
by GSA.
Code: CC
1800 F Street, NW.
Washington, DC 20405
www.gsa.gov/transaudits
§ 102–118.480 How does my agency settle disputes with a TSP?
As a part of the prepayment audit
program, your agency must have a plan
to resolve disputes with a TSP. This
program must allow a TSP to appeal
payment decisions made by your agency.
(b) Once a Notice of Overcharge is
issued by the GSA Audit Division, then
any refund is no longer considered voluntary and the agency must forward
the refund to the GSA Audit Division.
§ 102–118.485 Is there a time limit for
my agency to issue a decision on
disputed claims?
Yes, your agency must issue a ruling
on a disputed claim within 30 days of
receipt of the claim.
§ 102–118.505 Must my agency send a
voluntary refund to the Treasurer
of the United States?
§ 102–118.490 What if my agency fails
to settle a dispute within 30 days?
(a) If your agency fails to settle a dispute within 30 days, the TSP may appeal to:
General Services Administration
Federal Supply Service
Audit Division (FBA)
Code: CC 1800 F Street, NW.
Washington, DC 20405
www.gsa.gov/transaudits
(b) If the TSP disagrees with the administrative settlement by the Audit
Division, the TSP may appeal to the
Civilian Board of Contract Appeals.
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 78 FR 71529, Nov. 29,
2013]
§ 102–118.495 May my agency appeal a
decision by the Civilian Board of
Contract Appeals (CBCA)?
No, your agency may not appeal a decision made by the CBCA.
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.500 How does my agency
handle a voluntary refund submitted by a TSP?
(a) An agency must report all voluntary refunds to the GSA Audit Division (so that no Notice of Overcharge
or financial offset occurs), unless other
arrangements are made (e.g., charge
card refunds, etc.). These reports must
be addressed to:
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004]
No, your agency may keep and use
voluntary refunds submitted by a TSP,
if the refund was made prior to a Notice of Overcharge issued by the GSA
Audit Division.
§ 102–118.510 Can my agency revise or
alter a GSA Form 7931, Certificate
of Settlement?
Generally, no, an agency must not
revise or alter amounts on a GSA Form
7931. The only change an agency can
make to a GSA Form 7931 is to change
the agency financial data to a correct
cite. Any GSA Form 7931 that cannot
be paid (e.g., an amount previously
paid), must be immediately returned to
the GSA Audit Division with an explanation.
§ 102–118.515 Does my agency have
any recourse not to pay a Certificate of Settlement?
No, a Certificate of Settlement is the
final administrative action.
§ 102–118.520 Who is responsible for
determining the standards for collection, compromise, termination,
or suspension of collection action
on any outstanding debts to my
agency?
Under the Federal Claims Collection
Act of 1966, as amended (31 U.S.C. 3711,
et seq.), the Comptroller General and
the Attorney General have joint responsibility for issuing standards for
your agency.
General Services Administration
Federal Supply Service
Audit Division (FBA)
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31
Federal Management Regulation
§ 102–118.560
§ 102–118.525 What are my agency’s responsibilities for verifying the correct amount of transportation
charges?
Your agency’s employees are responsible for diligently verifying the correct amount of transportation charges
prior to payment (31 U.S.C. 3527).
§ 102–118.530 Will GSA instruct my
agency’s disbursing offices to offset
unpaid TSP billings?
Yes, GSA will instruct one or more of
your agency’s disbursing offices to deduct the amount due from an unpaid
TSP’s bill. A 3-year limitation applies
on the deduction of overcharges from
amounts due a TSP (31 U.S.C. 3726) and
a 10-year limitation applies on the deduction of ordinary debts (31 U.S.C.
3716).
§ 102–118.535 Are there principles governing my agency’s TSP debt collection procedures?
Yes, the principles governing your
agency collection procedures for reporting debts to the General Accounting Office (GAO) or the Department of
Justice are found in 4 CFR parts 101
through 105 and in the GAO Policy and
Procedures Manual for Guidance of
Federal Agencies. The manual may be
obtained by writing:
Superintendent of Documents
Government Printing Office
Washington, DC 20402
http://www.access.gpo.gov/
§ 102–118.540 Who has the authority to
audit, settle accounts, and/or start
collection action for all transportation services provided for my
agency?
The Director of the GSA Audit Division has the authority and responsibility to audit and settle all transportation related accounts (31 U.S.C. 3726).
The reason for this is that he or she
has access to Governmentwide data on
a TSP’s payments and billings with the
Government. Your agency has the responsibility to correctly pay individual
transportation claims.
TRANSPORTATION SERVICE PROVIDER
(TSP) FILING REQUIREMENTS
§ 102–118.545 What information must a
TSP claim include?
Transportation
service
provider
(TSP) claims received by GSA or its
designee must include one of the following:
(a) The signature of an individual or
party legally entitled to receive payment for services on behalf of the TSP;
(b) The signature of the TSP’s agent
or attorney accompanied by a duly executed power of attorney or other documentary evidence of the agent’s or attorney’s right to act for the TSP; or
(c) An electronic signature, when mutually agreed upon.
§ 102–118.550 How does a TSP file an
administrative claim using EDI or
other electronic means?
The medium and precise format of
data for an administrative claim filed
electronically must be approved in advance by the GSA Audit Division. GSA
will use an authenticating EDI signature to certify receipt of the claim.
The data on the claim must contain
proof of the delivery of goods, and an
itemized bill reflecting the services
provided, with the lowest charges
available for service. The TSP must be
able to locate, identify, and reproduce
the records in readable form without
loss of clarity.
§ 102–118.555 Can a TSP file a supplemental administrative claim?
Yes, a TSP may file a supplemental
administrative claim. Each supplemental claim must cover charges relating to one paid transportation document.
§ 102–118.560 What is the required format that a TSP must use to file an
administrative claim?
A TSP must bill for charges claimed
on a SF 1113, Public Voucher for Transportation Charges, in the manner prescribed in the ‘‘U.S. Government
Freight Transportation—Handbook’’ or
the
‘‘U.S.
Government
Passenger
Transportation—Handbook.’’ To get a
copy of these handbooks, you may
write to:
General Services Administration
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§ 102–118.565
41 CFR Ch. 102 (7–1–16 Edition)
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.565 What documentation is
required when filing an administrative claim?
An administrative claim must be accompanied by the transportation document, payment record, reports and information available to GSA and/or to
the agency involved and the written
and documentary records submitted by
the
TSP.
Oral
presentations
supplementing the written record are
not acceptable.
TRANSPORTATION SERVICE PROVIDER
(TSP) AND AGENCY APPEAL PROCEDURES FOR PREPAYMENT AUDITS
§ 102–118.570 If my agency denies the
TSP’s challenge to the statement of
difference, may the TSP appeal?
Yes, the TSP may appeal if your
agency denies its challenge to the
statement of difference. However, the
appeal must be handled at a higher
level in your agency.
§ 102–118.575 If a TSP disagrees with
the decision of my agency, can the
TSP appeal?
Yes, the TSP may file a claim with
the GSA Audit Division, which will review the TSP’s appeal of your agency’s
final full or partial denial of a claim.
The TSP may also appeal to the GSA
Audit Division if your agency has not
responded to a challenge within 30
days.
§ 102–118.580 May a TSP appeal a prepayment audit decision of the GSA
Audit Division?
Yes, the TSP may appeal to the Civilian Board of Contract Appeals
(CBCA) under guidelines established in
this subpart F, or file a claim with the
United States Court of Federal Claims.
The TSP’s request for review must be
received by the CBCA in writing within
6 months (not including times of war)
from the date the settlement action
was taken or within the periods of lim-
itation specified in 31 U.S.C. 3726, as
amended, whichever is later. The TSP
must address requests:
(a) By United States Postal Service
to: Civilian Board of Contract Appeals
(CBCA), 1800 F Street NW., Washington, DC 20405;
(b) In person or by courier to: Civilian Board of Contract Appeals, 6th
floor, 1800 M Street NW., Washington,
DC 20036;
(c) By facsimile (FAX) to: 202–606–
0019; or
(d)
By
electronic
mail
to:
[email protected].
[78 FR 71529, Nov. 29, 2013]
§ 102–118.585 May a TSP appeal a prepayment audit decision of the
CBCA?
No, a ruling by the CBCA is the final
administrative remedy available and
the TSP has no statutory right of appeal. This subpart governs administrative actions only and does not affect
any of the TSP’s rights. A TSP may
still pursue a legal remedy through the
courts.
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.590 May my agency appeal a
prepayment audit decision of the
GSA Audit Division?
No, your agency may not appeal. A
GSA Audit Division decision is administratively final for your agency.
§ 102–118.595 May my agency appeal a
prepayment audit decision by the
CBCA?
No, your agency may not appeal a
prepayment audit decision. Your agency must follow the ruling of the CBCA.
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
TRANSPORTATION SERVICE PROVIDER
(TSP) AND AGENCY APPEAL PROCEDURES FOR POSTPAYMENT AUDITS
§ 102–118.600 When a TSP disagrees
with a Notice of Overcharge resulting from a postpayment audit, what
are the appeal procedures?
A TSP who disagrees with the Notice
of Overcharge may submit a written request for reconsideration to the GSA
Audit Division at:
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31
Federal Management Regulation
§ 102–118.640
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
§ 102–118.630 How must a TSP refund
amounts due to GSA?
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.605 What if a TSP disagrees
with the Notice of Indebtedness?
If a TSP disagrees with an ordinary
debt, as shown on a Notice of Indebtedness, it may:
(a) Inspect and copy the agency’s
records related to the claim;
(b) Seek administrative review by
the GSA Audit Division of the claim
decision; and/or
(c) Enter a written agreement for the
payment of the claims.
§ 102–118.610 Is a TSP notified when
GSA allows a claim?
Yes, the GSA Audit Division will acknowledge each payable claim using
GSA Form 7931, Certificate of Settlement. The certificate will give a complete explanation of any amount that
is disallowed. GSA will forward the certificate to the agency whose funds are
to be charged for processing and payment.
§ 102–118.615 Will GSA notify a TSP if
they internally offset a payment?
Yes, the GSA Audit Division will inform the TSP if they internally offset
a payment.
§ 102–118.620 How will a TSP know if
the GSA Audit Division disallows a
claim?
The GSA Audit Division will furnish
a GSA Form 7932, Settlement Certificate, to the TSP explaining the disallowance.
§ 102–118.625 Can a TSP request a reconsideration of a settlement action
by the GSA Audit Division?
Yes, a TSP desiring a reconsideration
of a settlement action may request a
review by the Administrator of General
Services.
(a) TSPs must promptly refund
amounts due to GSA, preferably by
EFT. If an EFT is not used, checks
must be made payable to ‘‘General
Services Administration’’, including
the document reference number, TSP
name, bill number(s), taxpayer identification number and standard carrier
alpha code, then mailed to:
General Services Administration
P.O. Box 93746
Chicago, IL 60673
(b) If an EFT address is needed,
please contact the GSA Audit Division
at:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
NOTE TO § 102–118.630: Amounts collected by
GSA are returned to the Treasurer of the
United States (31 U.S.C. 3726).
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.635 Can
the
Government
charge interest on an amount due
from a TSP?
Yes, the Government can charge interest on an amount due from a TSP.
This procedure is provided for under
the Debt Collection Act (31 U.S.C. 3717),
the Federal Claims Collection Standards (4 CFR parts 101 through 105), and
41 CFR part 105–55.
§ 102–118.640 If a TSP fails to pay or to
appeal an overcharge, what actions
will GSA pursue to collect the debt?
GSA will pursue debt collection
through one of the following methods:
(a) When an indebted TSP files a
claim, GSA will apply all or any portion of the amount it determines to be
due the TSP, to the outstanding balance owed by the TSP, under the Federal Claims Collection Standards (4
CFR parts 101 through 105) and 41 CFR
part 105–55;
(b) When the action outlined in paragraph (a) of this section cannot be
taken by GSA, GSA will instruct one
or more Government disbursing offices
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31
§ 102–118.645
41 CFR Ch. 102 (7–1–16 Edition)
to deduct the amount due to the agency from an unpaid TSP’s bill. A 3-year
limitation applies on the deduction of
overcharges from amounts due a TSP
(31 U.S.C. 3726) and a 10-year limitation
applies on the deduction of ordinary
debt (31 U.S.C. 3716);
(c) When collection cannot be accomplished through either of the procedures in paragraph (a) or (b) of this section, GSA normally sends two additional demand letters to the indebted
TSP requesting payment of the amount
due within a specified time. Lacking a
satisfactory response, GSA may place a
complete stop order against amounts
otherwise payable to the indebted TSP
by adding the name of that TSP to the
Department of the Army ‘‘List of Contractors Indebted to the United
States’’; and/or
(d) When collection actions, as stated
in paragraphs (a) through (c) of this
section are unsuccessful, GSA may report the debt to the Department of
Justice for collection, litigation, and
related proceedings, as prescribed in 4
CFR parts 101 through 105.
§ 102–118.645 Can a TSP file an administrative claim on collection actions?
Yes, a TSP may file an administrative claim involving collection actions
resulting from the transportation audit
performed by the GSA directly with
the GSA Audit Division. Any claims
submitted to GSA will be considered
‘‘disputed claims’’ under section 4(b) of
the Prompt Payment Act (31 U.S.C.
3901, et seq.). The TSP must file all
other transportation claims with the
agency out of whose activities they
arose. If this is not feasible (e.g., where
the responsible agency cannot be determined or is no longer in existence)
claims may be sent to the GSA Audit
Division for forwarding to the responsible agency or for direct settlement by
the GSA Audit Division. Claims for
GSA processing must be addressed to:
General Services Administration
Transportation Audit Division (QMCA)
Crystal Plaza 4, Room 300
2200 Crystal Drive
Arlington, VA 22202
www.gsa.gov/transaudits
[65 FR 24569, Apr. 26, 2000, as amended at 69
FR 57620, Sept. 24, 2004; 74 FR 30475, June 26,
2009]
§ 102–118.650 Can a TSP request a review of a settlement action by the
Administrator of General Services?
Yes, a TSP desiring a review of a settlement action taken by the Administrator of General Services may request
a review by the Civilian Board of Contract Appeals (CBCA) or file a claim
with the United States Court of Federal Claims (28 U.S.C. 1491).
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
§ 102–118.655 Are there time limits on
a TSP request for an administrative
review by the Civilian Board of
Contract Appeals (CBCA)?
Yes, the CBCA must receive a request
for review from the TSP within six
months (not including times of war)
from the date the settlement action
was taken or within the periods of limitation specified in 31 U.S.C. 3726, as
amended, whichever is later. Address
requests:
(a) By United States Postal Service
to: Civilian Board of Contract Appeals
(CBCA), 1800 F Street NW., Washington, DC 20405;
(b) In person or by courier to: Civilian Board of Contract Appeals, 6th
floor, 1800 M Street NW., Washington,
DC 20036;
(c) By facsimile (FAX) to: 202–606–
0019; or
(d)
By
electronic
mail
to:
[email protected].
[78 FR 71529, Nov. 29, 2013]
§ 102–118.660 May a TSP appeal a
postpayment audit decision of the
CBCA?
No, a ruling by the CBCA is the final
administrative remedy and the TSP
has no statutory right of appeal. This
subpart governs administrative actions
only and does not affect any rights of
the TSPs. A TSP may still pursue a
legal remedy through the courts.
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
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31
Federal Management Regulation
§ 102–118.675
§ 102–118.665 May my agency appeal a
postpayment audit decision by the
CBCA?
No, your agency may not appeal a
postpayment audit decision and must
follow the ruling of the CBCA.
[65 FR 24569, Apr. 26, 2000, as amended at 74
FR 30476, June 26, 2009]
TRANSPORTATION SERVICE PROVIDER
(TSP) NON-PAYMENT OF A CLAIM
§ 102–118.670 If a TSP cannot immediately pay a debt, can they make
other arrangements for payment?
Yes, if a TSP is unable to pay the
debt promptly, the Director of the GSA
Audit Division has the discretion to
enter into alternative arrangements
for payment.
§ 102–118.675 What recourse does my
agency have if a TSP does not pay a
transportation debt?
If a TSP does not pay a transportation debt, GSA may refer delinquent
debts to consumer reporting agencies
and Federal agencies including the Department of the Treasury and Department of Justice.
PARTS 102–119—102–140
[RESERVED]
SUBCHAPTER E—TRAVEL MANAGEMENT [RESERVED]
PART 102–141—GENERAL
[RESERVED]
[RESERVED]
PARTS 102–142—102–170
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SUBCHAPTER F—TELECOMMUNICATIONS
PART 102–171—GENERAL
[RESERVED]
Subpart A—General
PART
102–172—TELECOMMUNICATIONS MANAGEMENT POLICY
[RESERVED]
PART 102–173—INTERNET GOV
DOMAIN
Subpart A—General
Sec.
102–173.5 What is Internet GOV Domain?
102–173.10 What is the authority or jurisdiction of the Internet GOV Domain?
102–173.15 What is the scope of this part?
102–173.20 To whom does this part apply?
102–173.25 What definitions apply to this
part?
Subpart B—Registration
102–173.30 Who may register in the dot-gov
domain?
102–173.35 Who authorizes domain names?
102–173.40 Who is my Chief Information Officer (CIO)?
102–173.45 Is there a registration charge for
domain names?
102–173.50 What is the naming convention
for States?
102–173.55 What is the naming convention
for Cities and Townships?
102–173.60 What is the naming convention
for Counties or Parishes?
102–173.65 What is the naming convention
for Native Sovereign Nations?
102–173.70 Where do I register my dot-gov
domain name?
102–173.75 How long does the process take?
102–173.80 How will I know if my request is
approved?
102–173.85 How long will my application be
held, pending approval by the Chief Information Officer (CIO)?
102–173.90 Are there any special restrictions
on the use and registration canonical, or
category names like recreation.gov?
102–173.95 Are there any restrictions on the
use of the dot-gov domain name?
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 68 FR 15090, Mar. 28, 2003, unless
otherwise noted.
§ 102–173.5
main?
What is Internet GOV Do-
Internet GOV Domain refers to the
Internet top-level domain ‘‘dot-gov’’
operated by the General Services Administration for the registration of
U.S.
government-related
domain
names. In general, these names reflect
the organization names in the Federal
Government and non-Federal government entities in the United States.
These names are now being used to promote government services and increase
the ease of finding these services.
§ 102–173.10 What is the authority or
jurisdiction of the Internet GOV Domain?
Jurisdiction of the Internet GOV
(dot-gov) domain was delegated to the
General Services Administration in
1997 by the Federal Networking Council
with guidance in the form of Internet
Engineering Task Force (IETF) Informational RFC 2146, which can be obtained on the Internet at: http://
www.ietf.org/rfc/rfc2146.txt?number
=
2146.
§ 102–173.15
part?
What is the scope of this
This part addresses the registration
of second-level domain names used in
the Internet GOV Domain. This registration process assures that the assigned domain names are unique worldwide.
§ 102–173.20
apply?
To whom does this part
This part applies to Federal, State,
and local governments, and Native
Sovereign Nations. You do not need to
register domain names with the General Services Administration if you
will be using some other top-level domain registration, such as dot-us, dotorg, or dot-net.
§ 102–173.25 What definitions apply to
this part?
The following definitions apply to
this part:
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Federal Management Regulation
§ 102–173.45
Domain is a region of jurisdiction on
the Internet for naming assignment.
The General Services Administration
(GSA) is responsible for registrations
in the dot-gov domain.
Domain name is a name assigned to an
Internet server. This is the name that
you request from GSA. Typically, you
would apply this name to a domain
name server. A domain name locates
the organization or other entity on the
Internet. The dot gov part of the domain name reflects the purpose of the
organization or entity. This part is
called the Top-Level Domain name.
The Second-Level Domain name to the
left of the dot gov maps to a readable
version of the Internet address. The
Domain Name server has a registry of
Internet Protocol (IP) address numbers
that relate to the readable text name.
Domain name server is the computer
that provides pointers from the domain
name to the actual computers.
Dot-gov refers to domain names ending with a ‘‘.gov’’ suffix. The Internet
GOV domain is another way of expressing the collection of dot-gov domain
names.
Native Sovereign Nations (NSN) are
federally recognized tribes.
Subpart B—Registration
§ 102–173.30 Who may register in the
dot-gov domain?
Registration in the dot-gov domain is
available to official governmental organizations in the United States including Federal, State, and local governments, and Native Sovereign Nations.
§ 102–173.35
names?
Who
authorizes
domain
Domain names must be authorized by
the Chief Information Officer (CIO) of
the requesting or sponsoring governmental organization. For Federal departments and agencies, the General
Services Administration (GSA) will accept authorization from the CIO of the
department or agency. For independent
Federal government agencies, boards,
and commissions, GSA will accept authorization from the highest-ranking
Information Technology Official. For
State and local governments, GSA will
accept authorization from appropriate
State or local officials, see § 102–173.40.
For Native Sovereign Nations, GSA
will only accept authorization from the
Bureau of Indian Affairs, Department
of the Interior. In most cases, GSA will
not make determinations on the appropriateness of the selected domain
names, but reserves the right to not assign domain names on a case-by-case
basis. Non-Federal government domain
names must follow the naming conventions described in §§ 102–173.50 through
102–173.65. For other government entities, CIO’s may delegate this authority
by notification to GSA.
§ 102–173.40 Who is my Chief Information Officer (CIO)?
Your Chief Information Officer (CIO)
may vary according to the branch of
government. For the Federal Government, the General Services Administration (GSA) recognizes the cabinet
level CIOs listed at http://www.cio.gov.
For States, GSA will accept authorization from the Office of the Governor or
highest-ranking
Information
Technology (IT) official. Other officials include the Mayor (for city or town),
County Commissioner (for counties) or
highest ranking IT official. Native Sovereign Nations (NSN) must receive authorization from the Bureau of Indian
Affairs. CIOs may delegate this authority by notification to GSA.
§ 102–173.45 Is there a registration
charge for domain names?
The General Services Administration
(GSA) reserves the right to charge for
domain names in order to recover cost
of operations. For current registration
charges, please visit the GSA Web site
at http://www.nic.gov. GSA does not
currently charge a fee. GSA has the authority to employ a system of collection that includes a one-time setup fee
for new registrations, which will not
exceed $1000, depending on the level of
assistance that may be provided by
GSA, and a recurring annual charge
that will not exceed $500 for all dot-gov
domains. The fees are based on anticipated costs for operating the registration service.
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§ 102–173.50
41 CFR Ch. 102 (7–1–16 Edition)
§ 102–173.50 What is the naming convention for States?
(a) To register any second-level domain within dot-gov, State government
entities must register the full State
name or clearly indicate the State
postal code within the name. Examples
of acceptable names include virginia.gov,
tennesseeanytime.gov,
wa.gov,
nmparks.gov,
mysc.gov,
emaryland.gov, and ne-taxes.gov. However—
(1) Use of the State postal code
should not be embedded within a single
word in a way that obscures the postal
code. For example, Indiana (IN) should
not register for win.gov, or independence.gov; and
(2) Where potential conflicts arise between postal codes and existing domain
names, States are encouraged to register URL’s that contain the full State
name.
(b) There is no limit to the number of
domain names for which a State may
register.
(c) States are encouraged to make
second-level domains available for
third-level registration by local governments and State Government departments and programs. For example,
the State of North Carolina could register NC.GOV as a second-level domain
and develop a system of registration
for their local governments. The State
would be free to develop policy on how
the local government should be registered under NC.GOV. One possibility
might be to spell out the city, thus Raleigh.NC.gov could be a resulting domain name.
§ 102–173.55 What is the naming convention for Cities and Townships?
(a) To register any second-level domain within dot-gov, City (town) governments must register the domain
name with the city (town) name or abbreviation, and clear reference to the
State in which the city (town) is located. However—
(1) Use of the State postal code
should not be embedded within a single
word in a way that obscures the postal
code; and
(2) Inclusion of the word city or town
within the domain name is optional
and may be used at the discretion of
the local government.
(b)(1) The preferred format for city
governments is to denote the State
postal code after the city name, optionally separated by a dash. Examples of
preferred domain names include—
(i) Chicago-il.gov;
(ii) Cityofcharleston-sc.gov;
(iii) Charleston-wv.gov;
(iv) Townofdumfries-va.gov; and
(v) Detroitmi.gov.
(2) GSA reserves the right to make
exceptions to the naming conventions
described in this subpart on a case-bycase basis in unique and compelling
cases.
(c) If third-level domain naming is
used, GSA reserves the right to offer
exceptions to the third-level domain
naming conventions described in this
section on a case-by-case basis in
unique and compelling cases.
§ 102–173.60 What is the naming convention for Counties or Parishes?
(a) To register any second-level domain within dot-gov, County or Parish
governments must register the County’s or Parish’s name or abbreviation,
the word ‘‘county’’ or ‘‘parish’’ (because many counties have the same
name as cities within the same State),
and a reference to the State in which
the county or parish is located. However, the use of the State postal code
should not be embedded within a single
word in a way that obscures the postal
code.
(b) The preferred format for county
or parish governments is to denote the
State postal code after the county or
parish, optionally separated by a dash.
Examples of preferred domain names
include—
(1) Richmondcounty-ga.gov;
(2) Pwc-county-va.gov; and
(3) Countyofdorchestor-sc.gov.
(c) If third-level domain naming is
available from the State government,
counties or parishes are encouraged to
register for a domain name under a
State’s registered second-level (e.g.,
richmondcounty.ga.gov).
§ 102–173.65 What is the naming convention for Native Sovereign Nations?
To register any second-level domain
in dot-gov, Native Sovereign Nations
(NSN) may register any second-level
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Federal Management Regulation
§ 102–173.95
domain name provided that it contains
the registering NSN name followed by
a suffix of ‘‘-NSN.gov’’ (case insensitive).
§ 102–173.70 Where do I register my
dot-gov domain name?
Registration is an online process at
the General Services Administration’s
Web site at http://www.nic.gov. At the
Network Information Site, you will
find the instructions and online registration forms for registering your domain name. To register your domain
name you will need to provide information such as your desired domain name,
sponsoring organization, points of contact, and at least two name server addresses.
§ 102–173.75 How long does the process
take?
The process can be completed within
48 hours if all information received is
complete and accurate. Most requests
take up to thirty (30) days because the
registrar is waiting for Chief Information Officer (CIO) approval.
§ 102–173.80 How will I know if my request is approved?
A registration confirmation notice is
sent within one business day after you
register your domain name, informing
you that your registration information
was received. If all of your information
is accurate and complete, a second notice will be sent to you within one
business day, informing you that all of
your information is in order. If you are
ineligible, or if the information provided is incorrect or incomplete, your
registration will be rejected and a notice will be sent to you stating the reason for rejection. Registration requests
will be activated within two business
days after receiving valid authorization from the appropriate Chief Information Officer (CIO). Once your do-
main name has been activated, a notice
will be sent to you.
§ 102–173.85 How long will my application be held, pending approval by
the
Chief
Information
Officer
(CIO)?
Registrations will be held in reserve
status for sixty (60) days pending Chief
Information Officer (CIO) authorization from your sponsoring organization.
§ 102–173.90 Are there any special restrictions on the use and registration of canonical, or category
names like recreation.gov?
Yes, canonical names registration request must provide access coverage for
the areas conveyed by the name. So the
URL recreation.gov would not be approved for the state of Maryland, but
the URL recreationMD.gov would be
approved if it provides statewide coverage. The logic of the names adds
value to the dot gov domain. GSA reserves the right deny use of canonical
names that do not provide appropriate
coverage and to arbitrate these issues.
§ 102–173.95 Are there any restrictions
on the use of the dot-gov domain
name?
The General Services Administration
approves domain names for a specific
term of time, generally two years unless otherwise stated, and under conditions of use. General conditions of registration and are posted at the registration Web site at http://www.nic.gov
and may be modified over time. Organizations that operate web sites that
are not in compliance with the conditions of use may have their domain
name terminated.
PARTS 102–174—102–190
[RESERVED]
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SUBCHAPTER G—ADMINISTRATIVE PROGRAMS
PERFORMANCE MEASUREMENT REQUIREMENTS
FOR ALL AGENCIES
PART 102–191—GENERAL
[RESERVED]
102–192.110 At what levels in our agency
must we have performance measures?
102–192.115 Why must we use performance
measures?
PART 102–192—MAIL
MANAGEMENT
AGENCY MAIL MANAGER REQUIREMENTS
Subpart A—Introduction to This Part
Sec.
102–192.5 What does this part cover?
102–192.10 What authority governs this part?
102–192.15 How are ‘‘I,’’ ‘‘you,’’ ‘‘me,’’ ‘‘we,’’
and ‘‘us’’ used in this part?
102–192.20 How are ‘‘must’’ and ‘‘should’’
used in this part?
102–192.25 Does this part apply to me?
102–192.30 To what types of mail and materials does this part apply?
102–192.35 What definitions apply to this
part?
102–192.40 Where can we obtain more information about the classes of mail?
102–192.45 How can we request a deviation
from these requirements, and who can
approve it?
102–192.120 Must we have an agency mail
manager?
102–192.125 What is the appropriate managerial level for an agency mail manager?
102–192.130 What are your general responsibilities as an agency mail manager?
Subpart C—GSA’s Responsibilities and
Services
102–192.135 What are GSA’s responsibilities
in mail management?
102–192.140 What types of support does GSA
offer to Federal agency mail management programs?
AUTHORITY: 44 U.S.C. 2901–2904.
SOURCE: 79 FR 33478, June 11, 2014, unless
otherwise noted.
Subpart B—Agency Requirements
Subpart A—Introduction to this
Part
FINANCIAL REQUIREMENTS FOR ALL AGENCIES
102–192.50 What payment processes are we
required to use?
102–192.55 Why must we use these payment
processes?
102–192.60 How do we implement these payment processes?
102–192.65 What features must our finance
systems have to keep track of mail expenditures?
SECURITY REQUIREMENTS FOR ALL AGENCIES
102–192.70 What security policies and plans
must we have?
102–192.75 Why must we have written security policies and plans?
102–192.80 How do we develop written security policies and plans?
REPORTING REQUIREMENTS
102–192.85 Who must report to GSA annually?
102–192.90 What must we include in our annual mail management report to GSA?
102–192.95 Why does GSA require annual
mail management reports?
102–192.100 How do we submit our annual
mail management report to GSA?
102–192.105 When must we submit our annual mail management report to GSA?
§ 102–192.5 What does this part cover?
This part prescribes policy and requirements for the effective, economical, and secure management of incoming, internal, and outgoing mail and
materials in Federal agencies.
§ 102–192.10 What authority governs
this part?
This part is governed by section 2 of
Public Law 94–575, the Federal Records
Management Amendments of 1976 (44
U.S.C. 2901–2904, as amended), that requires the Administrator of General
Services to provide guidance and assistance to Federal agencies to ensure
economical and effective records management and defines the processing of
mail by Federal agencies as a records
management activity.
§ 102–192.15 How are ‘‘I,’’ ‘‘you,’’ ‘‘me,’’
‘‘we,’’ and ‘‘us’’ used in this part?
In this part, ‘‘I,’’ ‘‘me,’’ and ‘‘you’’
refer to the agency mail manager, a
person working in a Federal mail operation, or the agency itself. Where the
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Federal Management Regulation
§ 102–192.35
context does not make it entirely clear
which is meant, the meaning is spelled
out the first time a pronoun is used in
the section. ‘‘We,’’ ‘‘us,’’ and ‘‘you’’ in
the plural refer to your Federal agency.
§ 102–192.20 How are ‘‘must’’ and
‘‘should’’ used in this part?
In this part—
(a) ‘‘Must’’ identifies steps that Federal agencies are required to take; and
(b) ‘‘Should’’ identifies steps that the
GSA recommends. In their internal
policy statements, agencies may require steps that GSA recommends.
§ 102–192.25 Does this part apply to
me?
Yes, this part applies to you if you
work in mail management in a Federal
agency, as defined in § 102–192.35.
§ 102–192.30 To what types of mail and
materials does this part apply?
(a) This part applies to all materials
that pass through a Federal mail center, including all incoming and outgoing materials. This includes:
(1) First Class Mail;
(2) Standard Mail;
(3) Periodicals;
(4) Package Services; and
(5) Express Mail.
(b) This part does not apply to shipments of parts or supplies from a material distribution center. A material distribution center is a warehouse that
maintains and distributes an inventory
of parts and supplies.
§ 102–192.35 What definitions apply to
this part?
The following definitions apply to
this part:
Accountable mail means any piece of
mail for which a service provider and
the mail center must maintain a record
that shows where the mail piece is at
any given time, and when and where it
was delivered. Examples of accountable
mail include United States Postal Service (USPS) registered mail and all expedited mail.
Agency mail manager means the person who manages the overall mail management program of a Federal agency.
Class of mail means one of the five
categories of domestic mail as defined
by the Mailing Standards of the USPS
in the Domestic Mail Manual (DMM)
located at http://pe.usps.gov/. These include:
(1) Express mail;
(2) First class (includes priority
mail);
(3) Periodicals;
(4) Standard mail, bulk business
mail; and
(5) Package services.
Commercial payment process means
paying for postage using the United
States Postal Service’s Centralized Account Processing System or another
payment approach used by the private
sector.
Commingling means combining outgoing mail from one facility or agency
with outgoing mail from at least one
other source.
Consolidation means the process of
combining into a container two or
more pieces of mail directed to the
same addressee or installation on the
same day.
Consolidation of facilities means the
process of combining more than one
mail center into a central location.
The decision to consolidate should be
based on a cost analysis comparing the
projected cost savings to the cost of
implementation.
Expedited mail means mail designated
for overnight and 2- or 3-day delivery
by service providers. Examples of expedited mail include Dalsey, Hillblom,
Lynn (DHL); Federal Express (FedEx);
United Parcel Service (UPS); and
United States Postal Service (USPS)
express mail.
Federal agency or agency as defined in
44 U.S.C. 2901(14) means—
(1) An executive agency, which includes:
(i) Any executive department as defined in 5 U.S.C. 101;
(ii) Any wholly owned Government
corporation as defined in 31 U.S.C. 9101;
(iii) Any independent establishment
in the executive branch as defined in 5
U.S.C. 104; and
(2) Any establishment in the legislative or judicial branch of the Government, except the Supreme Court, the
Senate, the U.S. House of Representatives, the Architect of the Capitol, and
any activities under the direction of
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§ 102–192.40
41 CFR Ch. 102 (7–1–16 Edition)
the Architect of the Capitol. Federal facility or facility means any office building, installation, base, etc., where Federal agency employees work. This includes any facility where the Federal
Government pays postage expenses
even though few or no Federal employees are involved in processing the mail.
Incoming mail means any mail that
comes into a facility delivered by any
service provider, such as DHL, FedEx,
UPS, and USPS.
Internal mail means mail generated
within a Federal facility that is delivered within that facility or to a nearby
facility of the same agency, so long as
it is delivered by agency personnel.
Large agency means a Federal agency
whose collective total payments to all
mail service providers equals or exceeds $1 million per fiscal year.
Mail means that as described in § 102–
192.30.
Mail center means an organization
and/or place, within or associated with
a Federal facility, where incoming and/
or outgoing Federal mail and materials
are processed.
Mail expenditures means direct expenses for postage, fees and services,
and all other mail costs, meter fees,
permit fees, etc. (e.g., payments to
service providers, mail center personnel costs, mail center overhead).
Mail piece design means creating and
printing items to be mailed so that
they can be processed efficiently and
effectively by USPS automated mail
processing equipment.
Official Mail means incoming or outgoing mail that is related to official
business of the Federal Government.
Official
Mail
Accounting
System
(OMAS) means the USPS Governmentspecific system used to track postage.
Outgoing mail means mail generated
within a Federal facility that is going
outside that facility.
Personal mail means incoming or outgoing mail that is not related to official business of the Federal Government.
Postage means payment for delivery
service that is affixed or imprinted to a
mail piece usually in the form of a
postage stamp, permit, imprint, or
meter impression.
Presort means a mail preparation
process used to receive a discounted
mail rate by sorting mail according to
USPS standards.
Program level means a component, bureau, regional office, and/or a facility
that generates outgoing mail.
Service provider means any agency or
company that delivers materials and
mail. Some examples of service providers are DHL, FedEx, UPS, USPS,
courier services, the U.S. Department
of Defense, the U.S. Department of
State’s Diplomatic Pouch and Mail Division, and other Federal agencies providing mail services.
Sustainability/Sustainable means to
create and maintain conditions under
which humans and nature can exist in
productive harmony. Sustainability efforts seek to fulfill the social, economic, and environmental needs of
present and future generations.
Telework means a flexible work arrangement under which an employee
performs assigned duties and responsibilities, and other authorized activities, from an approved alternate location.
Unauthorized use of agency postage
means the use of penalty or commercial mail stamps, meter impressions, or
other postage indicia for personal or
unofficial use.
Worksharing is one way of processing
outgoing mail so that the mail qualifies for reduced postage rates (e.g.,
presorting, bar coding, consolidating,
commingling).
§ 102–192.40 Where can we obtain
more information about the classes
of mail?
You can learn more about mail classes in the Domestic Mail Manual
(DMM). The DMM is available online at
http://pe.usps.gov, or you can order a
copy from: Superintendent of Documents, U.S. Government Printing Office, P.O. Box 979050, St. Louis, MO
63197–9000.
§ 102–192.45 How can we request a deviation from these requirements,
and who can approve it?
See §§ 102–2.60 through 102–2.110 of
this chapter to request a deviation
from the requirements of this part. The
Administrator of General Services and
those to whom the Administrator has
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Federal Management Regulation
§ 102–192.70
delegated such authority have the
power to approve or deny a deviation.
Subpart B—Agency Requirements
FINANCIAL REQUIREMENTS FOR ALL
AGENCIES
§ 102–192.50 What payment processes
are we required to use?
(a) You must pay the USPS using one
or more of the following:
(1) The U.S. Treasury Intergovernmental Payment and Collection Payment (IPAC) process associated with
the Official Mail Accounting System
(OMAS);
(2) The USPS Centralized Account
Processing System (CAPS) associated
with commercial payments; or
(3) Another Treasury approved means
of paying the USPS.
(b) Payments made to service providers other than USPS must be made
by U.S. Treasury payment methods
such as automated clearing house-electronic funds transfer, or another Treasury approved means of paying the vendor.
§ 102–192.55 Why must we use these
payment processes?
In accordance with 44 U.S.C. 2904,
GSA is required to standardize and improve accountability with respect to
records management, including Federal mail management.
§ 102–192.60 How do we implement
these payment processes?
Guidance on implementing the Intragovernmental Payment and Collection
System can be found at: http://
www.fms.treas.gov/ipac/index.html.
§ 102–192.65 What features must our finance systems have to keep track of
mail expenditures?
All agencies must have an accountable system for making postage payments; that is, a system that allocates
postage expenses at the program level
within the agency and makes program
level managers accountable for obligating and tracking those expenses.
The agency will have to determine the
appropriate program level for this requirement because the level at which it
is cost beneficial differs widely. The
agency’s finance systems should track
all mail expenditures separately to the
program level or below, and should—
(a) Show expenses for postage and all
other mail expenditures, payments to
service providers, etc., separate from
all other administrative expenses;
(b) Allow mail centers to establish
systems to charge their customers for
mail expenditures; and
(c) Identify and charge the mail expenditures that are part of printing
contracts down to the program level.
SECURITY REQUIREMENTS FOR ALL
AGENCIES
§ 102–192.70 What security policies and
plans must we have?
(a) Agencies must have a written
mail security policy that applies
throughout your agency.
(b) Agencies must have a written
mail security plan for each facility
that processes mail, regardless of the
facility’s mail volume.
(c) Agencies must have a security
policy for employees receiving incoming and sending outgoing mail at an alternative worksite, such as a telework
center.
(d) The scope and level of detail of
each facility mail security plan should
be commensurate with the size and responsibilities of each facility. For
small facilities, agencies may use a
general plan for similar locations. For
larger locations, agencies must develop
a plan that is specifically tailored to
the threats and risks at your location.
Agencies should determine which facilities they consider small and large
for the purposes of this section, so long
as the basic requirements for a security plan are met at every facility.
(e) All mail managers are required to
annually report the status of their
mail security plans to agency headquarters. At a minimum, these reports
should assure that all mail security
plans comply with the requirements of
this part, including annual review by a
subject matter expert and regular rehearsal of responses to various emergency situations by facility personnel.
(f) A security professional who has
expertise in mail center security
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§ 102–192.75
41 CFR Ch. 102 (7–1–16 Edition)
should review the agency’s mail security plan and policies annually to include identification of any deficiencies.
Review of facility mail security plans
can be accomplished by subject matter
experts such as agency security personnel. If these experts are not available within your agency, seek assistance from the U.S. Postal Inspection
Service
(https://
postalinspectors.uspis.gov/) or the Federal Protective Service (FPS) (http://
www.dhs.gov/federal-protective-service).
§ 102–192.75 Why must we have written security policies and plans?
All Federal mail programs must
identify, prioritize, and coordinate the
protection of all mail processing facilities in order to prevent, deter, and
mitigate the effects of deliberate efforts to destroy, incapacitate, or exploit the mail center or the national
mail infrastructure. Homeland Security Presidential Directive (HSPD 7) at
http://www.fas.org/irp/offdocs/nspd/hspd7.html requires all agencies to protect
key resources from terrorist attacks.
All Federal mail centers are identified
as key resources under the Postal and
Shipping Sector Plan. Further details
on the plan can be found at the Department of Homeland Security’s (DHS)
Web site at http://www.dhs.gov/.
§ 102–192.80 How do we develop written security policies and plans?
Agency mail managers must coordinate with their agency security service
and/or the FPS or the U.S. Postal Inspection Service to develop agency
mail security policies and plans. The
FPS has developed standards for building construction and management, including standards for mail centers. At
a minimum, the agency mail security
plan must address the following topics:
(a) Risk assessment;
(b) A plan to protect staff and all
other occupants of agency facilities
from hazards that might be delivered
in the mail;
(c) Operating procedures;
(d) A plan to provide a visible mail
screening operation;
(e) Training mail center personnel;
(f) Testing and rehearsing responses
to various emergency situations by
agency personnel;
(g) Managing threats;
(h) Communications plan;
(i) Occupant Emergency Plan;
(j) Continuity of Operations Plan;
and
(k) Annual reviews of the agency’s
security plan.
REPORTING REQUIREMENTS
§ 102–192.85 Who must report to GSA
annually?
Large agencies, as defined in § 102–
192.35, must provide an annual Mail
Management Report to GSA. If your
agency is a cabinet level or independent agency, the agency mail manager must compile all offices or components and submit one report for the department or agency as a whole, for example, the U.S. Department of Defense
or the U.S. Department of Health and
Human Services.
§ 102–192.90 What must we include in
our annual mail management report to GSA?
You must provide an agency-wide response to the GSA requested data elements. GSA will provide the list of
data elements in a Federal Management Regulation (FMR) Bulletin. GSA
coordinates all mail management related FMR bulletins with the Federal
Mail Executive Council and updates
them as necessary. FMR bulletins are
available
at:
http://www.gsa.gov/bulletins.
§ 102–192.95 Why does GSA require annual mail management reports?
GSA requires annual agency mail
management reports to—
(a) Ensure that Federal agencies have
the policies, procedures, and data to
manage their mail operations efficiently and effectively;
(b) Ensure that appropriate security
measures are in place; and
(c) Allow GSA to fulfill its responsibilities under the Federal Records
Act, especially with regard to sharing
best practices, information on training,
and promulgating standards, procedures, and guidelines.
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Federal Management Regulation
§ 102–192.130
§ 102–192.100 How do we submit our
annual mail management report to
GSA?
or her to speak for the agency on mail
management as outlined in this part.
You must submit annual reports
using the GSA web based Simplified
Mail Accountability Reporting Tool
(SMART). Training is available from
GSA to agency mail managers and
other authorized users on how to use
the SMART data reporting system.
Contact the Office of Government-wide
Policy, Mail Management Policy office
for access and training at [email protected].
§ 102–192.130 What are your general
responsibilities as an agency mail
manager?
§ 102–192.105 When must we submit
our annual mail management report to GSA?
Beginning with FY 2015, the agency’s
annual mail management report is due
on December 1, following the end of the
fiscal year.
[80 FR 57103, Sept. 22, 2015]
PERFORMANCE MEASUREMENT
REQUIREMENTS FOR ALL AGENCIES
§ 102–192.110 At what levels in our
agency must we have performance
measures?
You must have performance measures for mail operations at the agency
level and in all mail facilities and program levels.
§ 102–192.115 Why must we use performance measures?
Performance measures gauge the success of your mail management plans
and processes by comparing performance over time and among organizations. Performance measures—
(a) Define goals and objectives;
(b) Enhance resource allocation; and
(c) Provide accountability.
AGENCY MAIL MANAGER REQUIREMENTS
§ 102–192.120 Must we have an agency
mail manager?
Yes, every agency as defined in § 102–
192.35, must have an agency mail manager.
§ 102–192.125 What is the appropriate
managerial level for an agency mail
manager?
The agency mail manager should be
at a managerial level that enables him
In addition to carrying out the responsibilities discussed above, you
should—
(a) Establish written policies and
procedures to provide timely and cost
effective dispatch and delivery of mail
and materials;
(b) Ensure agency-wide awareness
and compliance with standards and
operational procedures established by
all service providers used by the agency;
(c) Set policies for expedited mail,
mass mailings, mailing lists, and couriers;
(d) Implement cost savings through:
(1) Consolidating and presorting
wherever practical, for example, internal and external mail, and consolidation of agency-wide mail operations
and official mail facilities; and
(2) Reducing the volume of agency to
agency mail whenever possible.
(e) Develop and direct agency programs and plans for proper and cost effective use of transportation, equipment, and supplies used for mail;
(f) Ensure that all facility and program level mail personnel receive appropriate training and certifications to
successfully perform their assigned duties;
(g) Promote professional certification for mail managers and mail center employees;
(h) Ensure that expedited mail service providers are used only when authorized by the Private Express Statutes, 39 U.S.C. 601–606;
(i) Establish written policies and procedures to minimize incoming and outgoing personal mail;
(j) Provide guidance to agency representatives who develop correspondence or design mailing materials including Business Reply Mail, letterhead, and mail piece design;
(k) Represent the agency in its relations with service providers, other
agency mail managers, and GSA’s Office of Government-wide Policy;
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§ 102–192.135
41 CFR Ch. 102 (7–1–16 Edition)
(l) Ensure agency policy incorporates
Federal hazardous materials requirements set forth in 49 CFR parts 100–185;
(m) Ensure agency sustainable activities become part of the mail program
by incorporating strategies in accordance with Executive Order 13514 of October 5, 2009, ‘‘Federal Leadership in Environmental, Energy, and Economic
Performance’’. Section 8 describes the
Agency Strategic Sustainability Performance Plan; and
(n) Ensure safety and security requirements specified in §§ 102–192.70
through 102–192.80 are fulfilled.
Subpart C—GSA’s Responsibilities
and Services
§ 102–192.135 What are GSA’s responsibilities in mail management?
44 U.S.C. 2904(b) directs the Administrator of General Services to provide
guidance and assistance to Federal
agencies to ensure economical and efficient records management. 44 U.S.C.
2901(2) and (4)(C) define the processing
of mail by Federal agencies as part of
records management. In carrying out
its responsibilities under the Act, GSA
is required to—
(a) Develop standards, procedures,
and guidelines;
(b) Conduct research to improve practices and programs;
(c) Collect and disseminate information on training programs, technological developments, etc;
(d) Establish one or more interagency
committees (such as the Federal Mail
Executive Council, and the Interagency
Mail Policy Council) as necessary to
provide an exchange of information
among Federal agencies;
(e) Conduct studies, inspections, or
surveys;
(f) Promote economy and efficiency
in the selection and utilization of
space, staff, equipment, and supplies;
and
(g) In the event of an emergency, at
the request of DHS, cooperate with
DHS in communicating with agencies
about mail related issues.
§ 102–192.140 What types of support
does GSA offer to Federal agency
mail management programs?
(a) GSA supports Federal agency
mail management programs by—
(1) Assisting in the development of
agency policy and guidance in mail
management and mail operations;
(2) Identifying best business practices
and sharing them with Federal agencies;
(3) Developing and providing access
to a Government-wide management information system for mail;
(4) Helping agencies develop performance measures and management information systems for mail;
(5) Maintaining a current list of
agency mail managers;
(6) Establishing, developing, and
maintaining interagency mail committees;
(7) Maintaining liaison with the
USPS and other service providers at
the national level;
(8) Maintaining a publically accessible Web site for mail communications
policy; and
(9) Serving as a point of contact for
all Federal agencies on mail issues.
(b) For further information contact:
U.S. General Services Administration,
Office of Government-wide Policy
(MA), 1800 F Street NW., Washington,
DC 20504; telephone 202–501–1777, or
email: [email protected].
PART 102–193—CREATION, MAINTENANCE,
AND
USE
OF
RECORDS
Sec.
102–193.5 What does this part cover?
102–193.10 What are the goals of the Federal
Records Management Program?
102–193.15 What are the records management responsibilities of the Administrator of General Services (the Administrator), the Archivist of the United
States (the Archivist), and the heads of
Federal agencies?
102–193.20 What are the specific agency responsibilities for records management?
102–193.25 What type of records management
business process improvements should
my agency strive to achieve?
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 66 FR 48358, Sept. 20, 2001, unless
otherwise noted.
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Federal Management Regulation
§ 102–193.5
§ 102–193.20
What does this part cover?
This part prescribes policies and procedures related to the General Service
Administration’s (GSA) role to provide
guidance on economic and effective
records management for the creation,
maintenance and use of Federal agencies’ records. The National Archives
and Records Administration Act of 1984
(the Act) (44 U.S.C. chapter 29) amended the records management statutes to
divide records management responsibilities between GSA and the National Archives and Records Administration (NARA). Under the Act, GSA is
responsible for economy and efficiency
in records management and NARA is
responsible for adequate documentation and records disposition. GSA regulations are codified in this part and
NARA regulations are codified in 36
CFR chapter XII. The policies and procedures of this part apply to all
records, regardless of medium (e.g.,
paper or electronic), unless otherwise
noted.
§ 102–193.10 What are the goals of the
Federal Records Management Program?
The statutory goals of the Federal
Records Management Program are:
(a) Accurate and complete documentation of the policies and transactions of the Federal Government.
(b) Control of the quantity and quality of records produced by the Federal
Government.
(c) Establishment and maintenance
of management controls that prevent
the creation of unnecessary records
and promote effective and economical
agency operations.
(d) Simplification of the activities,
systems, and processes of records creation, maintenance, and use.
(e) Judicious preservation and disposal of records.
(f) Direction of continuing attention
on records from initial creation to
final disposition, with particular emphasis on the prevention of unnecessary Federal paperwork.
§ 102–193.15 What are the records management responsibilities of the Administrator of General Services (the
Administrator), the Archivist of the
United States (the Archivist), and
the Heads of Federal agencies?
(a) The Administrator of General
Services (the Administrator) provides
guidance and assistance to Federal
agencies to ensure economical and effective records management. Records
management policies and guidance established by GSA are contained in this
part and in parts 102–194 and 102–195 of
this chapter, records management
handbooks, and other publications
issued by GSA.
(b) The Archivist of the United
States (the Archivist) provides guidance and assistance to Federal agencies
to ensure adequate and proper documentation of the policies and transactions of the Federal Government and
to ensure proper records disposition.
Records management policies and guidance established by the Archivist are
contained in 36 CFR chapter XII and in
bulletins and handbooks issued by the
National Archives and Records Administration (NARA).
(c) The Heads of Federal agencies
must comply with the policies and
guidance provided by the Administrator and the Archivist.
§ 102–193.20 What are the specific
agency responsibilities for records
management?
You must follow both GSA regulations in this part and NARA regulations in 36 CFR chapter XII to carry
out your records management responsibilities. To meet the requirements of
this part, you must take the following
actions to establish and maintain the
agency’s records management program:
(a) Assign specific responsibility to
develop and implement agencywide
records management programs to an
office of the agency and to a qualified
records manager.
(b) Follow the guidance contained in
GSA handbooks and bulletins and comply with NARA regulations in 36 CFR
chapter XII when establishing and implementing agency records management programs.
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§ 102–193.25
41 CFR Ch. 102 (7–1–16 Edition)
(c) Issue a directive establishing program objectives, responsibilities, authorities, standards, guidelines, and instructions for a records management
program.
(d) Apply appropriate records management practices to all records, irrespective of the medium (e.g., paper,
electronic, or other).
(e) Control the creation, maintenance, and use of agency records and
the collection and dissemination of information to ensure that the agency:
(1) Does not accumulate unnecessary
records while ensuring compliance
with NARA regulations for adequate
and proper documentation and records
disposition in 36 CFR parts 1220 and
1228.
(2) Does not create forms and reports
that collect information inefficiently
or unnecessarily.
(3) Reviews all existing forms and reports (both those originated by the
agency and those responded to by the
agency but originated by another agency or branch of Government) periodically to determine if they can be improved or canceled.
(4) Maintains records economically
and in a way that allows them to be retrieved quickly and reliably.
(5) Keeps mailing and copying costs
to a minimum.
(f) Establish standard stationery formats and styles.
(g) Establish standards for correspondence to use in official agency
communications, and necessary copies
required, and their distribution and
purpose.
§ 102–193.25 What type of records management business process improvements should my agency strive to
achieve?
Your agency should strive to:
(a) Improve the quality, tone, clarity,
and responsiveness of correspondence;
(b) Design forms that are easy to fillin, read, transmit, process, and retrieve, and reduce forms reproduction
costs;
(c) Provide agency managers with the
means to convey written instructions
to users and document agency policies
and procedures through effective directives management;
(d) Provide agency personnel with
the information needed in the right
place, at the right time, and in a useful
format;
(e) Eliminate unnecessary reports
and design necessary reports for ease of
use;
(f) Provide rapid handling and accurate delivery of mail at minimum cost;
and
(g) Organize agency files in a logical
order so that needed records can be
found rapidly to conduct agency business, to ensure that records are complete, and to facilitate the identification and retention of permanent
records and the prompt disposal of
temporary records. Retention and disposal of records is governed by NARA
regulations in 36 CFR chapter XII.
PART 102–194—STANDARD AND
OPTIONAL FORMS MANAGEMENT PROGRAM
Sec.
102–194.5 What is the Standard and Optional
Forms Management Program?
102–194.10 What is a Standard form?
102–194.15 What is an Optional form?
102–194.20 What is an electronic Standard or
Optional form?
102–194.25 What is an automated Standard
or Optional format?
102–194.30 What role does my agency play in
the Standard and Optional Forms Management Program?
102–194.35 Should I create electronic Standard or Optional forms?
102–194.40 For what Standard or Optional
forms should an electronic version not be
made available?
102–194.45 Who should I contact about
Standard and Optional forms?
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 66 FR 48358, Sept. 20, 2001, unless
otherwise noted.
§ 102–194.5 What is the Standard and
Optional Forms Management Program?
The Standard and Optional Forms
Management Program is a Governmentwide program that promotes
economies and efficiencies through the
development, maintenance and use of
common forms. The General Services
Administration (GSA) provides additional guidance on the Standard and
Optional Forms Management Program
through an external handbook called
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Federal Management Regulation
§ 102–194.30
Standard and Optional Forms Procedural Handbook. You may obtain a
copy of the handbook from:
Standard and Optional Forms Management
Office General Services Administration
(Forms-XR)
1800 F Street, NW.; Room 7126
Washington, DC 20405–0002
(202) 501–0581
http://www.gsa.gov/forms
§ 102–194.10
What is a Standard form?
A Standard form is a fixed or sequential order of data elements, prescribed
by a Federal agency through regulation, approved by GSA for mandatory
use, and assigned a Standard form
number. This criterion is the same
whether the form resides on paper or
purely electronic.
§ 102–194.15
What is an Optional form?
An Optional form is approved by GSA
for nonmandatory Governmentwide use
and is used by two or more agencies.
This criteria is the same whether the
form resides on paper or purely electronic.
§ 102–194.20 What is an electronic
Standard or Optional form?
An electronic Standard or Optional
form is an officially prescribed set of
data residing in an electronic medium
that is used to produce a mirror-like
image or as near to a mirror-like
image as the creation software will
allow of the officially prescribed form.
§ 102–194.25 What is an automated
Standard or Optional format?
An automated Standard or Optional
format is an electronic version of the
officially prescribed form containing
the same data elements and used for
the electronic transaction of information in lieu of using a Standard or Optional form.
§ 102–194.30 What role does my agency
play in the Standard and Optional
Forms Management Program?
Your agency head or designee’s role
is to:
(a) Designate an agency-level Standard and Optional Forms Liaison representative and alternate, and notify
GSA, in writing, of their names, titles,
mailing addresses, telephone numbers,
fax numbers, and e-mail addresses
within 30 days of the designation or redesignation.
(b)
Promulgate
Governmentwide
Standard forms under the agency’s
statutory or regulatory authority in
the FEDERAL REGISTER, and issue procedures on the mandatory use, revision, or cancellation of these forms.
(c) Ensure that the agency complies
with the provisions of the Government
Paperwork Elimination Act (GPEA)
(Public Law 105–277, 112 Stat 2681), Section 508 of the Rehabilitation Act of
1973 (29 U.S.C. 74d), as amended, the Architectural and Transportation Barriers Compliance Board (Access Board)
Standards (36 CFR part 1194), and OMB
implementing guidance. In particular,
agencies should allow the submission
of Standard and Optional forms in an
electronic/automated version unless
the form is specifically exempted by
§ 102–194.40.
(d) Issue Governmentwide Optional
forms when needed by two or more
agencies and announce the availability, revision, or cancellation of
these forms. Forms prescribed through
a regulation for use by the Federal
Government must be issued as a Standard form.
(e) Obtain GSA approval for each
new, revised or canceled Standard and
Optional form, 60 days prior to planned
implementation. Certify that the forms
comply with all applicable laws and
regulations. Provide an electronic form
unless exempted by § 102–194.40. Revised
forms not approved by GSA will result
in cancellation of the form.
(f) Provide GSA with both an electronic (unless exempted by § 102–194.40)
and paper version of the official image
of the Standard or Optional form prior
to implementation.
(g) Obtain the prescribing agency’s
approval for exceptions to Standard
and Optional forms, including electronic forms or automated formats
prior to implementation.
(h) Review annually agency prescribed Standard and Optional forms,
including exceptions, for improvement,
consolidation, cancellation, or possible
automation. The review must include
approved electronic versions of the
forms.
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§ 102–194.35
41 CFR Ch. 102 (7–1–16 Edition)
(i) Coordinate all health-care related
Standard and Optional forms through
GSA for the approval of the Interagency Committee on Medical Records
(ICMR).
(j) Promote the use of electronic
forms within the agency by following
what the Government Paperwork
Elimination Act (GPEA) prescribes and
all guidance issued by the Office of
Management and Budget and other responsible agencies. This guidance will
promote the use of electronic transactions and electronic signatures.
(k) Notify GSA of the replacement of
any Standard or Optional form by an
automated format or electronic form,
and its impact on the need to stock the
paper form. GSA’s approval is not necessary for this change, but a one-time
notification should be made.
(l) Follow the specific instructions in
the Standard and Optional Forms Procedural Handbook.
purchase a specific product or subscription to use the electronic Standard or
Optional form.
§ 102–194.35 Should I create electronic
Standard or Optional forms?
§ 102–194.45 Who should I contact
about
Standard
and
Optional
forms?
For Standard and Optional forms,
you should contact the:
Yes, you should create electronic
Standard or Optional forms, especially
when forms are used to collect information from the public. GSA will not
approve a new or revision to a Standard or Optional form unless an electronic form is being made available.
Only forms covered by § 102–194.40 are
exempt from this requirement. Furthermore, you should to the extent
possible, use electronic form products
and services that are based on open
standards. However, the use of proprietary products is permitted, provided
that the end user is not required to
§ 102–194.40 For what Standard or Optional forms should an electronic
version not be made available?
All forms should include an electronic version unless it is not practicable to do so. Areas where it may
not be practicable include where the
form has construction features for specialized use (e.g., labels), to prevent
unauthorized use or could otherwise
risk a security violation, (e.g., classification cover sheets), or require unusual production costs (e.g., specialized
paper or envelopes). Such forms can be
made available as an electronic form
only if the originating agency approves
an exception to do so. (See the Standard and Optional Forms Procedural
Handbook for procedures and a list of
these forms).
Standard and Optional Forms Management
Office General Services Administration
(Forms-XR)
1800 F Street, NW.; Room 7126
Washington, DC 20405–0002
(202) 501–0581
PART 102–196—FEDERAL FACILITY
RIDESHARING [RESERVED]
PARTS 102–197—102–199
[RESERVED]
SUBCHAPTERS H–Z [RESERVED]
CHAPTERS 103–104 [RESERVED]
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31
CHAPTER 105—GENERAL SERVICES
ADMINISTRATION
Part
105–1
105–8
105–50
105–51
105–53
105–54
105–55
105–56
105–57
105–60
105–62
105–64
105–67
105–68
105–69
105–70
105–71
105–72
105–74
Page
Introduction ............................................................
Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by
General Services Administration .........................
Provision of special or technical services to State
and local units of government ..............................
Uniform relocation assistance and real property
acquisition for Federal and federally assisted
programs ..............................................................
Statement of organization and functions ...............
Advisory committee management ..........................
Collection of claims owed the United States ..........
Salary offset for indebtedness of Federal employees to the United States .......................................
Administration wage garnishment ..........................
Public availability of agency records and informational materials ...................................................
Document security and declassification .................
GSA Privacy Act rules ............................................
Sale of personal property ........................................
Governmentwide debarment and suspension (nonprocurement) ........................................................
New restrictions on lobbying ..................................
Implementation of the Program Fraud Civil Remedies Act of 1986 ....................................................
Uniform administrative requirements for grants
and cooperative agreements with State and local
governments .........................................................
Uniform administrative requirements for grants
and agreements with institutions of higher education, hospitals, and other non-profit organizations .....................................................................
Governmentwide requirements for drug-free workplace (financial assistance) ..................................
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423
434
439
439
446
457
474
489
495
512
517
526
526
549
561
575
603
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procedures of interest to other agencies
and the general public and are prescribed by the Administrator of General Services in this chapter 105.
PART 105–1—INTRODUCTION
Sec.
105–1.000–50
Scope of part.
§ 105–1.101–50
Subpart 105–1.1—Regulations System
105–1.100 Scope of subpart.
105–1.101 General Services Administration
Property Management Regulations.
105–1.101–50 Exclusions.
105–1.102 Relationship of GSPMR to FPMR.
105–1.104 Publication of GSPMR.
105–1.106 Applicability.
105–1.109 Numbering.
105–1.109–50 General plan.
105–1.109–51 Arrangement.
105–1.109–52 Cross-references.
105–1.110 Deviation.
105–1.150 Citation.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c).
SOURCE: 39 FR 25231, July 9, 1974, unless
otherwise noted.
§ 105–1.000–50 Scope of part.
This part describes the method by
which the General Services Administration (GSA) implements and supplements the Federal Property Management Regulations (FPMR) and implements certain regulations prescribed
by other agencies. It contains procedures that implement and supplement
part 101–1 of the FPMR.
Subpart 105–1.1—Regulations
System
§ 105–1.100 Scope of subpart.
This subpart establishes the General
Services
Administration
Property
Management Regulations (GSPMR)
and provides certain introductory material.
§ 105–1.101 General Services Administration Property Management Regulations.
The General Services Administration
Property
Management
Regulations
(GSPMR) include the GSA property
management policies and procedures
which, together with the Federal Property Management Regulations, certain
regulations prescribed by other agencies, and various GSA orders govern
the management of property and
records and certain related activities
of GSA. They may contain policies and
Exclusions.
(a) Certain GSA property management and related policies and procedures which come within the scope of
this chapter 105 nevertheless may be
excluded therefrom when there is justification. These exclusions may include the following categories:
(1) Subject matter that bears a security classification;
(2) Policies and procedures that are
expected to be effective for a period of
less than 6 months;
(3) Policies and procedures that are
effective on an experimental basis for a
reasonable period;
(4) Policies and procedures pertaining
to other functions of GSA as well as
property management functions and
there is need to make the issuance
available simultaneously to all GSA
employees involved; and
(5) Where speed of issuance is essential, numerous changes are required in
chapter 105, and all necessary changes
cannot be made promptly.
(b) Property management policies
and procedures issued in other than the
FPMR system format under paragraphs
(a)(4) and (5) of this section, shall be
codified into chapter 105 at the earliest
practicable date, but in any event not
later than 6 months from date of
issuance.
§ 105–1.102 Relationship of GSPMR to
FPMR.
(a) GSPMR implement and supplement the FPMR and implement certain
other regulations. They are part of the
General Services Administration Regulations System. Material published in
the FPMR (which has Governmentwide
applicability)
becomes
effective
throughout GSA upon the effective
date of the particular FPMR material.
In general, the FPMR that are implemented and supplemented shall not be
repeated, paraphrased, or otherwise restated in chapter 105.
(b) Implementing is the process of expanding upon the FPMR or other Government-wide
regulations.
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§ 105–1.104
41 CFR Ch. 105 (7–1–16 Edition)
Supplementing is the process of prescribing material for which there is no
counterpart in the Government-wide
regulations.
(c) GSPMR may deviate from the regulations that are implemented when a
deviation (see § 105–1.110) is authorized
in and explicitly referenced to such
regulations. Where chapter 105 contains no material implementing the
FPMR, the FPMR shall govern.
§ 105–1.104 Publication of GSPMR.
(a) Most GSPMR are published in the
FEDERAL REGISTER. This practice helps
to ensure that interested business concerns, other agencies, and the public
are apprised of GSA policies and procedures pertaining to property and
records management and certain related activities.
(b) Most GSPMR are published in cumulative form in chapter 105 of title 41
of the Code of Federal Regulations. The
FEDERAL REGISTER and title 41 of the
Code of Federal Regulations may be
purchased from the Superintendent of
Documents, Government Printing Office, Washington, D.C. 20402.
§ 105–1.106 Applicability.
Chapter 105 applies to the management of property and records and to
certain other programs and activities
of GSA. Unless otherwise specified,
chapter 105 applies to activities outside
as well as within the United States.
§ 105–1.109
Numbering.
§ 105–1.109–50 General plan.
Chapter 105 is divided into parts, subparts, and further subdivisions as necessary.
§ 105–1.109–51 Arrangement.
(a) Parts 105–2 through 105–49 are
used for GSPMR that implement regulations in the corresponding parts of
chapter 101. This practice results in
comparable grouping by subject area
without establishment of subchapters.
(b) Parts 105–50 and above are used
for GSPMR that supplement regulations in the FPMR and implement regulations of other agencies. Part numbers are assigned so as to accomplish a
similar subject area grouping. Regulations on advisory committee manage-
ment are recodified as part 105–54 to
place them in the appropriate subject
area category. Regulations on standards of conduct remain in part 105–735
because the number 735 identifies regulations of the U.S. Civil Service Commission and various civil agencies on
this subject.
§ 105–1.109–52
Cross-references.
(a) Within chapter 105, cross-references to the FPMR shall be made in
the same manner as used within the
FPMR. Illustrations of cross-references
to the FPMR are:
(1) Part 101–3;
(2) Subpart 101–3.1;
(3) § 101–3.413–5.
(b) Within chapter 105, cross-references to parts, subparts, sections,
and subsections of chapter 105 shall be
made in a manner generally similar to
that used in making cross-references to
the FPMR. For example, this paragraph would be referenced as § 105–
1.109–52(b).
§ 105–1.110
Deviation.
(a) In the interest of establishing and
maintaining uniformity to the greatest
extent feasible, deviations; i.e., the use
of any policy or procedure in any manner that is inconsistent with a policy
or procedure prescribed in the Federal
Property Management Regulations, are
prohibited unless such deviations have
been requested from and approved by
the Administrator of General Services
or his authorized designee. Deviations
may be authorized by the Administrator of General Services or his authorized designee when so doing will be
in the best interest of the Government.
Request for deviations shall clearly
state the nature of the deviation and
the reasons for such special action.
(b) Requests for deviations from the
FPMR shall be sent to the General
Services Administration for consideration in accordance with the following:
(1) For onetime (individual) deviations, requests shall be sent to the address provided in the applicable regulation. Lacking such direction, requests
shall be sent to the Administrator of
General Services, Washington, DC
20405.
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General Services Administration
§ 105–8.103
(2) For class deviations, requests
shall be sent to only the Administrator
of General Services.
[55 FR 1673, Jan. 18, 1990]
§ 105–1.150 Citation.
(a) In formal documents, such as
legal briefs, citations of chapter 105
material shall include a citation to
title 41 of the Code of Federal Regulations or other titles as appropriate;
e.g., 41 CFR 105–1.150.
(b) Any section of chapter 105, for
purpose of brevity, may be informally
identified as ‘‘GSPMR’’ followed by the
section number. For example, this
paragraph would be identified as
‘‘GSPMR 105–1.150(b).’’
PART 105–8—ENFORCEMENT OF
NONDISCRIMINATION ON THE
BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY GENERAL SERVICES
ADMINISTRATION
Sec.
105–8.101 Purpose.
105–8.102 Application.
105–8.103 Definitions.
105–8.104—105–8.109 [Reserved]
105–8.110 Self-evaluation.
105–8.111 Notice.
105–8.112—105–8.129 [Reserved]
105–8.130 General prohibitions against discrimination.
105–8.131—105–8.139 [Reserved]
105–8.140 Employment.
105–8.141—105–8.147 [Reserved]
105–8.148 Consultation with the Architectural and Transportation Barriers Compliance Board.
105–8.149 Program accessibility: Discrimination prohibited.
105–8.150 Program accessibility: Existing facilities.
105–8.150–1 General.
105–8.150–2 Methods.
105–8.150–3 Time period for compliance.
105–8.150–4 Transition plan.
105–8.151 rogram accessibility: New construction and alterations.
105–8.152 Program accessibility: Assignment
of space.
105–8.153 Program accessibility: Interagency
cooperation.
105–8.153–1 General.
105–8.153–2 Requests from occupant agencies.
105–8.154 Program accessibility: Exceptions.
105–8.155—105–8.159 [Reserved]
105–8.160 Communications.
105–8.161—105–8.169 [Reserved]
105–8.170 Compliance procedures.
105–8.170–1 Applicability.
105–8.170–2 Employment complaints.
105–8.170–3 Responsible Official.
105–8.170–4 Filing a complaint.
105–8.170–5 Notification to the Architectural
and Transportation Barriers Compliance
Board.
105–8.170–6 Acceptance of complaint.
105–8.170–7 Investigation/conciliation.
105–8.170–8 Letter of findings.
105–8.170–9 Filing an appeal.
105–8.170–10 Acceptance of appeals.
105–8.170–11 Hearing.
105–8.170–12 Decision.
105–8.170–13 Delegation.
105–8.171 Complaints against an occupant
agency.
AUTHORITY: 29 U.S.C. 794.
SOURCE: 56 FR 9871, Mar. 8, 1991, unless otherwise noted.
§ 105–8.101 Purpose.
The purpose of this part is to effectuate section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the
Rehabilitation Act of 1973 to prohibit
discrimination on the basis of handicap
in programs or activities conducted by
Executive agencies or the United
States Postal Service.
§ 105–8.102 Application.
This part applies to all programs or
activities conducted by the agency, except for programs or activities conducted outside the United States that
do not involve individuals with handicaps in the United States.
§ 105–8.103 Definitions.
For purposes of this part, the term—
Agency means the General Services
Administration (GSA), except when the
context indicates otherwise.
Assistant Attorney General means the
Assistant Attorney General, Civil
Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking
skills to have an equal opportunity to
participate in and enjoy the benefits of
programs or activities conducted by
GSA. For example, auxiliary aids useful for persons with impaired vision include readers, Brailed materials, audio
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§ 105–8.103
41 CFR Ch. 105 (7–1–16 Edition)
recordings, and other similar services
and devices. Auxiliary aids useful for
persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf
persons
(TDD’s),
interpreters,
notetakers, written materials, and
other similar services and devices.
Complete complaint means a written
statement that contains the complainant’s name and address and describes
the agency’s alleged discriminatory action in sufficient detail to inform the
agency of the nature and date of the alleged violation of section 504. It shall
be signed by the complainant or by
someone authorized to do so on his or
her behalf. Complaints filed on behalf
of classes or third parties shall describe
or identify (by name, if possible) the
alleged victims of discrimination.
Facility means all or any portion of
buildings,
structures,
equipment,
roads, walks, parking lots, rolling
stock or other conveyances, or other
real or personal property.
Historic preservation program means
programs conducted by the agency that
have preservation of historic properties
as a primary purpose.
Historic properties means those properties that are listed or eligible for
listing in the National Register of Historic Places or properties designated as
historic under a statute of the appropriate State or local government body.
Individual with handicaps means any
person who has a physical or mental
impairment that substantially limits
one or more major life activities, has a
record of such an impairment, or is regarded as having such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of
the following body systems: Neurological musculoskeletal; special sense
organs; respiratory, including speech
organs; cardiovascular; reproductive;
digestive; genitourinary; hemic and
lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning
disabilities. The term ‘‘Physical or
mental impairment’’ includes, but is
not limited to, such diseases and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning,
and working.
(3) Has a record of such an impairment
means has a history of, or has been
misclassified as having, a mental or
physical impairment that substantially
limits one or more major life activities.
(4) Is regarded as having an impairment
means—
(i) Has a physical or mental impairment that does not substantially limit
major life activities but is treated by
the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (a) of this definition
but is treated by the agency as having
such an impairment.
Official or Responsible Official means
the Director of the Civil Rights Division of the General Services Administration or his or her designee.
Qualified individual with handicaps
means—
(1) With respect to any agency program or activity under which a person
is required to perform services or to
achieve a level of accomplishment, an
individual with handicaps who meets
the essential eligibility requirements
and who can achieve the purpose of the
program or activity without modifications in the program or activity that
the agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for participation
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General Services Administration
§ 105–8.130
in, or receipt of benefits from, that program or activity; and
(3) Qualified handicapped person as
that term is defined for purposes of employment in 29 CFR 1613.702(f), which is
made applicable to this part by § 105–
8.140.
Respondent means the organizational
unit in which a complainant alleges
that discrimination occurred.
Section 504 means section 504 of the
Rehabilitation Act of 1973 (Pub. L. 93–
112, 87 Stat. 394 (29 U.S.C. 794)), as
amended by the Rehabilitation Act
Amendments of 1974 (Pub. L. 93–516, 88
Stat. 1617); the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of
1978 (Pub. L. 95–602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of
1986 (Pub. L. 99–506, 100 Stat. 1810); the
Civil Rights Restoration Act of 1987
(Pub. L. 100–259, 102 Stat. 28); and
Handicapped
Program
Technical
Amendments Act of 1988 (Pub. L. 100–
630, 102 Stat. 3312). As used in this part,
section 504 applies only to programs or
activities conducted by the agency and
not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of finished
materials, design quality, or special
character resulting from a permanent
alteration of historic properties.
§§ 105–8.104—105–8.109
§ 105–8.110
[Reserved]
Self-evaluation.
(a) The agency shall, by March 9,
1992, evaluate its current policies and
practices, and the effects thereof, that
do not or may not meet the requirements of this part, and, to the extent
modification of any such policies and
practices is required, the agency shall
proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with
handicaps, to participate in the selfevaluation process by submitting comments (both oral and written).
(c) The agency shall, for at least
three years following completion of the
self-evaluation, maintain on file and
make available for public inspection:
(1) A list of interested persons consulted;
(2) A description of the areas examined and any problems identified and;
(3) A description of any modifications
made or to be made.
§ 105–8.111
Notice.
The agency shall make available to
employees, applicants, participants,
beneficiaries, and other interested persons such information regarding the
provisions of this part and its applicability to the programs or activities
conducted by the agency, and make
such information available to them in
such manner as the Administrator
finds necessary to apprise such persons
of the protections against discrimination assured them by section 504 and
this part.
§§ 105–8.112—105–8.129
§ 105–8.130 General
prohibitions
against discrimination.
(a) No qualified individual with
handicaps shall, on the basis of handicap, be excluded from participation in,
be denied the benefits of, or otherwise
be subjected to discrimination under
any program or activity conducted by
the agency.
(1) The agency, in providing any aid,
benefit, or service, may not, directly or
through contractual, licensing, or
other arrangements, on the basis of
handicap—
(i) Deny a qualified individual with
handicaps the opportunity to participate in or benefit from the aid, benefit,
or service;
(ii) Afford a qualified individual with
handicaps an opportunity to participate in or benefit from aid, benefit, or
service that is not equal to that afforded others;
(iii) Provide a qualified individual
with handicaps with an aid, benefit, or
service that is not as effective in affording equal opportunity to obtain the
same result, to gain the same benefit,
or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid,
benefits, or services to individuals with
handicaps or to any class of individuals
with handicaps than is provided to others unless such action is necessary to
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§§ 105–8.131—105–8.139
41 CFR Ch. 105 (7–1–16 Edition)
provide qualified individuals with
handicaps with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with
handicaps the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the opportunity to participate in programs or
activities that are not separate or different, despite the existence of permissibly separate or different programs or
activities.
(3) The agency may not, directly or
through contractual or other arrangements, utilize criteria or methods of
administration the purpose or effect of
which would—
(i) Subject qualified individuals with
handicaps to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a
program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude individuals with handicaps from, deny them the benefits of,
or otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair
the accomplishment of the objectives
of a program or activity with respect
to individuals with handicaps.
(5) The agency, in the selection of
procurement contractors, may not use
criteria that subject qualified individuals with handicaps to discrimination
on the basis of handicap.
(6) The agency may not administer a
licensing or certification program in a
manner that subjects qualified individuals with handicaps to discrimination
on the basis of handicap, nor may the
agency establish requirements for the
programs or activities of licenses or
certified entities that subject qualified
individuals with handicaps to discrimi-
nation on the basis of handicap. However, the programs or activities of entities that are licensed or certified by
the agency are not, themselves, covered by part.
(b) The exclusion of persons without
handicaps from the benefits of a program limited by Federal statute or Executive order to individuals with
handicaps or the exclusion of a specific
class of individuals with handicaps
from a program limited by Federal
statute or Executive order to a different class of individuals with handicaps is not prohibited by this part.
(c) The agency shall administer programs and activities in the most integrated setting appropriate to the needs
of qualified individuals with handicaps.
§§ 105–8.131—105–8.139
§ 105–8.140 Employment.
No qualified individual with handicaps shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures of
section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791), as established by
the Equal Employment Opportunity
Commission in 29 CFR part 1613, shall
apply to employment in federally conducted programs or activities.
§§ 105–8.141—105–8.147
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§ 105–8.148 Consultation with the Architectural and Transportation Barriers Compliance Board.
GSA shall consult with the Architectural and Transportation Barriers
Compliance Board (ATBCB) in carrying
out its responsibilities under this part
concerning architectural barriers in facilities that are subject to GSA control. GSA shall also consult with the
ATBCB in providing technical assistance to other Federal agencies with respect to overcoming architectural barriers in facilities. The agency’s Public
Buildings Service shall implement this
section.
§ 105–8.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in
§§ 105–8.150 and 105–8.154, no qualified individual with handicaps shall, because
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General Services Administration
§ 105–8.150–4
the agency’s facilities are inaccessible
to or unusable by individuals with
handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to discrimination
under any program or activity conducted by the agency.
§ 105–8.150 Program accessibility: Existing facilities.
§ 105–8.150–1
General.
The agency shall operate each program or activity so that the program
or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This
section does not—
(a) Necessarily require the agency to
make each of its existing facilities accessible to and usable by individuals
with handicaps; or
(b) In the case of historic preservation programs, require the agency to
take any action that would result in a
substantial impairment of significant
historic features of an historic property.
§ 105–8.150–2
Methods.
(a) General. The agency may comply
with the requirements of § 105–8.150
through such means as redesign of
equipment, reassignment of services to
accessible buildings, assignment of
aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any
other methods that result in making
its programs or activities readily accessible to and usable by individuals
with handicaps. The agency is not required to make structural changes in
existing facilities where other methods
are effective in achieving compliance
with this section. The agency, in making alterations to existing buildings,
shall meet accessibility requirements
to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), and any regulations implementing it. In choosing
among available methods for meeting
the requirements of this section, the
agency shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(b) Historic preservation programs. In
meeting the requirements of § 105–8.105–
1 in historic preservation programs,
the agency shall give priority to methods that provide physical access to individuals with handicaps. In cases
where a physical alteration to a historic property is not required because
of §§ 105–8.105–1(b) or 105–8.154 alternative methods of achieving program
accessibility include—
(1) Using audio-visual materials and
devices to depict those portions of a
historic property that cannot otherwise be made accessible;
(2) Assigning persons to guide individuals with handicaps into or through
portions of historic properties that
cannot otherwise be made accessible;
or
(3) Adopting other innovative methods.
§ 105–8.150–3
ance.
Time period for compli-
The agency shall comply with the obligations established under § 105–8.150
by May 7, 1991; except where structural
changes in facilities are undertaken,
such changes shall be made by March 8,
1994, but in any event as expeditiously
as possible.
§ 105–8.150–4
Transition plan.
In the event that structural changes
to facilities will be undertaken to
achieve program accessibility, the
agency shall develop, by March 9, 1992;
the transition plan setting forth the
steps necessary to complete such
changes. The agency shall provide an
opportunity to interested persons, including individuals with handicaps or
organizations representing individuals
with handicaps, to participate in the
development of the transition plan by
submitting comments (both oral and
written). A copy of the transition plan
shall be made available for public inspection. The plan shall, at a minimum—
(a) Identify physical obstacles in the
facilities occupied by GSA that limit
the accessibility of its programs or activities to individuals with handicaps;
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§ 105–8.151
41 CFR Ch. 105 (7–1–16 Edition)
(b) Describe in detail the methods
that will be used to make the facilities
accessible;
(c) Specify the schedule for taking
the steps necessary to achieve compliance with § 105–8.150 and, if the time period of the transition plan is longer
than one year, identify steps that will
be taken during each year of the transition period; and
(d) Indicate the official responsible
for implementation of the plan.
§ 105–8.151 Program accessibility: New
construction and alterations.
Each building or part of a building
that is constructed or altered by, on
behalf of, of for the use of the agency
shall be designed, constructed, or altered so as to be readily accessible to
and usable by individuals with handicaps. The definitions, requirements,
and standards of the Architectural Barriers Act (42 U.S.C. 4151–4157), as established in 41 CFR 101–19.600 to 101–19.607,
apply to buildings covered by this section.
§ 105–8.152 Program accessibility: Assignment of space.
(a) When GSA assigns or reassigns
space to an agency, it shall consult
with the agency to ensure that the assignment or reassignment will not result in one or more of the agency’s programs or activities being inaccessible
to individuals with handicaps.
(b) Prior to the assignment or reassignment of space to an agency, GSA
shall inform the agency of the accessibility, and/or the absence of accessibility features, of the space in which
GSA intends to locate the agency. If
the agency informs GSA that the use of
the space will result in one or more of
the agency’s programs being inaccessible, GSA shall take one or more of
the following actions to make the programs accessible:
(1) Arrange for alterations, improvements, and repairs to buildings and facilities;
(2) Locate and provide alternative
space that will not result in one or
more of the agency’s programs being
inaccessible; or
(3) Take any other actions that result in making this agency’s programs
accessible.
The responsibility for payment to
make the physical changes in the space
shall be assigned on a case-by-case
basis as agreed to by GSA and the user
agency, dependent on individual circumstances.
(c) GSA may not require the agency
to accept space that results in one or
more of the agency’s programs being
inaccessible.
§ 105–8.153 Program
accessibility:
Interagency cooperation.
§ 105–8.153–1
General.
GSA, upon request from an occupant
agency engaged in the development of
a transition plan under section 504,
shall participate with the occupant
agency in the development and implementation of the transition plan and
shall provide information and guidance
to the occupant agency. Upon request,
GSA shall conduct space inspections to
assist the agency in determining
whether a current assignment of space
results in one or more of the occupant
agency’s programs or activities being
inaccessible. GSA shall provide the occupant agency with a written summary
of
significant
findings
and
recommendations, together with data concerning programmed repairs and alterations planned by GSA and alterations
that can be effected by the agency.
§ 105–8.153–2 Requests from occupant
agencies.
(a) Upon receipt of an occupant agency’s request for new space, additional
space, relocation to accessible space,
alterations, or other actions under
GSA’s control that are needed to ensure program accessibility in the requesting agency’s program(s) as required by the agency’s section 504 transition plan, GSA shall assist or advise
the requesting agency in providing or
arranging for the requested action
within the timeframes specified in the
requesting agency’s transition plan.
(b) If the requested action cannot be
completed within the time frame specified in an agency’s transition plan,
GSA shall so advise the requesting
agency within 30 days of the request by
submitting, after consultation with the
agency, a revised schedule specifying
the date by which the action shall be
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General Services Administration
§ 105–8.160
completed. If the delay in completing
the action results in or continues the
inaccessibility of the requesting agency’s program, GSA and the agency
shall, after consultation, take interim
measures to make the agency’s program accessible.
(c) If GSA determines that it is unable to take the requested action, GSA
shall—
(1) Within 30 days, set forth in writing to the requesting agency the reasons for denying the agency’s request,
and
(2) Within 90 days, propose to the requesting agency other methods for
making the agency’s program accessible.
(d) Receipt of a copy of an occupant
agency’s transition plan under section
504 shall constitute notice to GSA of
the requested actions in the transition
plan and of the times frames which the
actions are required to be completed.
§ 105–8.154 Program accessibility: Exceptions.
Sections 105–8.150, 105–8.152, and 105–
8.153 do not require GSA to take any
action that it can demonstrate would
result in a fundamental alteration in
the nature of a program or activity or
in undue financial and administrative
burdens. In those circumstances where
GSA personnel believe that the proposed action would fundamentally
alter the program or activity or would
result in undue financial and administrative burdens, the agency has the
burden of proving that compliance
would result in such alteration or burdens. The decision that compliance
would result in such alteration or burdens must be made by the Administrator or his or her designee after considering all resources available for use
in the funding and operation of the
conducted program or activity, and
must be accompanied by a written
statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other
action that would not result in such an
alteration or such burdens but would
nevertheless ensure that individuals
with handicaps receive the benefits and
services of the program or activity.
§§ 105–8.155—105–8.159
§ 105–8.160
Communications.
(a) The agency shall take appropriate
steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and
members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary
to afford an individual with handicaps
an equal opportunity to participate in,
and enjoy the benefits of, a program or
activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall
give primary consideration to the requests of the individual with handicaps.
(ii) The agency need not provide individually prescribed devices, readers for
personal use or study, or other devices
of a personal nature.
(2) Where the agency communicates
with applicants and beneficiaries by
telephone, telecommunication devices
for deaf persons (TDD) or equally effective telecommunication systems shall
be used to communicate with persons
with impaired hearing.
(b) The agency shall ensure that interested persons, including persons
with impaired vision or hearing, can
obtain information as to the existence
and location of accessible services, activities, and facilities.
(c) The agency shall provide signage
at a primary entrance to each of its inaccessible facilities, directing users to
a location at which they can obtain information about accessible facilities.
The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the
agency to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
program or activity or in undue financial and administrative burdens. In
those circumstances where agency personnel believe that the proposed action
would fundamentally alter the program
or activity or would result in undue financial and administrative burdens,
the agency has the burden of proving
that compliance with § 150.8.160 would
result in such alteration or burdens.
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§§ 105–8.161—105–8.169
41 CFR Ch. 105 (7–1–16 Edition)
The decision that compliance would result in such alteration or burdens must
be made by the Administrator or his or
her designee after considering all agency resources available for use in the
funding and operation of the conducted
program or activity and must be accompanied by a written statement of
the reasons for reaching that conclusion. If an action required to comply
with § 105–8.160 would result in such an
alteration or such burdnes, the agency
shall take any other action that would
not result in such an alteration or such
burdens but would nevertheless ensure
that, to the maximum extent possible,
individuals with handicaps receive the
benefits and services of the program or
activity.
§§ 105–8.161—105–8.169
§ 105–8.170
[Reserved]
Compliance procedures.
§ 105–8.170–1
Applicability.
Except as provided in § 105–8.170–2,
§§ 105–8.170 through 105–8.170–13 apply to
all allegations of discrimination on the
basis of handicap in programs or activities conducted by the agency.
§ 105–8.170–2
Employment complaints.
The agency shall process complaints
alleging violations of section 504 with
respect to employment according to
the procedures established by the
Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to
section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791).
§ 105–8.170–3
Responsible Official.
The Responsible Official shall coordinate implementation of §§ 105–8.170
through 105–8.170–13.
§ 105–8.170–4
Filing a complaint.
(a) Who may file a complaint. Any person who believes that he or she has
been subjected to discrimination prohibited by this part may by him or herself or by his or her authorized representative file a complaint with the
Official. Any persons who believes that
any specific class of persons has been
subjected to discrimination prohibited
by this part and who is a member of
that class or the authorized representa-
tive of a member of that class may file
a complaint with the Official.
(b) Confidentiality. The Official shall
hold in confidence the identity of any
person submitting a complaint, unless
the person submits written authorization otherwise, and except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or
proceeding under this part.
(c) When to file. Complaints shall be
filed within 180 days of the alleged act
of discrimination. The Official may extend this time limit for good cause
shown. For purposes of determining
when a complaint is timely filed under
this section, a complaint mailed to the
agency shall be deemed filed on the
date it is postmarked. Any other complaint shall be deemed filed on the date
it is recevied by the agency.
(d) How to file. Complaints may be delivered or mailed to the Administrator,
the Responsible Official, or other agency officials. Complaints should be sent
to the Director of Civil Rights, Civil
Rights Division (AKC), General Services Administration, 18th and F
Streets, NW., Washington, DC 20405. If
any agency official other than the Official receives a complaint, he or she
shall forward the complaint to the Official immediately.
§ 105–8.170–5 Notification to the Architectural and Transportation Barriers Compliance Board.
The agency shall prepare and forward
comprehensive quarterly reports to the
Architectural and Transportation Barriers Compliance Board containing information regarding complaints received alleging that a building or facility that is subject to the Architectural
Barriers Act of 1968, as amended (42
U.S.C. 4151–4157), is not readily accessible to and usable by individuals with
handicaps. The agency shall not include in the report the identity of any
complainant.
§ 105–8.170–6
Acceptance of complaint.
(a) The Official shall accept a complete complaint that is filed in accordance with § 105–8.170–4 and over which
the agency has jurisdiction. The Official shall notify the complainant and
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31
General Services Administration
§ 105–8.170–9
the respondent of receipt and acceptance of the complaint.
(b) If the Official receives a complaint that is not complete, he or she
shall notify the complainant within 30
days of receipt of the incomplete complaint that additional information is
needed. If the complainant fails to
complete the complaint within 30 days
of receipt of this notice, the Official
shall dismiss the complaint without
prejudice.
(c) The Official may reject a complaint, or a position thereof, for any of
the following reasons:
(1) It was not filed timely and the extension of the 180-day period as provided in § 105–8.170–4(c) is denied;
(2) It consists of an allegation identical to an allegation contained in a
previous complaint filed on behalf of
the same complainant(s) which is pending in the agency or which has been resolved or decided by the agency; or
(3) It is not within the purview of this
part.
(d) If the Official receives a complaint over which the agency does not
have jurisdiction, the Official shall
promptly notify the complainant and
shall make reasonable efforts to refer
the complaint to the appropriate Government entity.
§ 105–8.170–7
tion.
Investigation/concilia-
(a) Within 180 days of the receipt of a
complete complaint, the Official shall
complete the investigation of the complaint, attempt informal resolution,
and if no informal resolution is
achieved, issue a letter of findings. The
180-day time limit may be extended
with the permission of the Assistant
Attorney General. The investigation
should include, where appropriate, a review of the practices and policies that
led to the filing of the complaint, and
other circumstances under which the
possible noncompliance with this part
occurred.
(b) The Official may require agency
employees to cooperate in the investigation and attempted resolution of
complaints. Employees who are required by the Official to participate in
any investigation under this section
shall do so as part of their official du-
ties and during the course of regular
duty hours.
(c) The Official shall furnish the complainant and the respondent a copy of
the investigative report promptly after
receiving it from the investigator and
provide the complainant and the respondent with an opportunity for informal resolution of the complaint.
(d) If a complaint is resolved informally, the terms of the agreement
shall be reduced to writing and signed
by the complainant and respondent.
The agreement shall be made part of
the complaint file with a copy of the
agreement provided to the complainant
and the respondent. The written agreement may include a finding on the
issue of discrimination and shall describe any corrective action to which
the complainant and the respondent
have agreed.
(e) The written agreement shall remain in effect until all corrective actions to which the complainant and the
respondent have agreed upon have been
completed. The complainant may reopen the complaint in the event that
the agreement is not carried out.
§ 105–8.170–8
Letter of findings.
If an informal resolution of the complaint is not reached, the Official shall,
within 180 days of receipt of the complete complaint, notify the complainant and the respondent of the results of
the investigation in a letter sent by
certified mail, return receipt requested. The letter shall contain, at a
minimum, the following:
(a) Findings of fact and conclusions
of law;
(b) A description of a remedy for each
violation found;
(c) A notice of the right of the complainant and the respondent to appeal
to the Special Counsel for Ethics and
Civil Rights; and
(d) A notice of the right of the complainant and the respondent to request
a hearing.
§ 105–8.170–9
Filing an appeal.
(a) Notice of appeal to the Special
Counsel for Ethics and Civil Rights,
with or without a request for hearing,
shall be filed by the complainant or the
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31
§ 105–8.170–10
41 CFR Ch. 105 (7–1–16 Edition)
respondent with the Responsible Official within 30 days of receipt of the letter of findings required by
§ 105–8.170–7.
(b) If a timely appeal without a request for hearing is filed by a party,
any other party may file a written request for a hearing within the time
limit specified in § 105–8.170–9(a) or
within 10 days of the date on which the
first timely appeal without a request
for hearing was filed, whichever is
later.
(c) If no party requests a hearing, the
Responsible Official shall promptly
transmit the notice of appeal and investigative record to the Special Counsel for Ethics and Civil Rights.
(d) If neither party files an appeal
within the time prescribed in § 105–
8.170–9(a) the Responsible Official shall
certify, at the expiration of the time,
that the letter of findings is the final
agency decision on the complaint.
§ 105–8.170–10 Acceptance of appeals.
The Special Counsel shall accept and
process any timely appeal. A party
may appeal to the Deputy Administrator from a decision of the Special
Counsel that an appeal is untimely.
This appeal shall be filed within 15
days of receipt of the decision from the
Special Counsel.
§ 105–8.170–11 Hearing.
(a) Upon a timely request for a hearing, the Special Counsel shall take the
necessary action to obtain the services
of an Administrative law judge (ALJ)
to conduct the hearing. The ALJ shall
issue a notice to all parties specifying
the date, time, and place of the scheduled hearing. The hearing shall be commenced no earlier than 15 days after
the notice is issued and no later than 60
days after the request for a hearing is
filed, unless all parties agree to a different date, or there are other extenuating circumstances.
(b) The complainant and respondent
shall be parties to the hearing. Any interested person or organization may
petition to become a party or amicus
curiae. The ALJ may, in his or her discretion, grant such a petition if, in his
or her opinion, the petitioner has a legitimate interest in the proceedings
and the participation will not unduly
delay the outcome and may contribute
materially to the proper disposition of
the proceedings.
(c) The hearing, decision, and any administrative review thereof shall be
conducted in conformity with 5 U.S.C.
554–557 (sections 5–8 of the Administrative Procedure Act). The ALJ shall
have the duty to conduct a fair hearing, to take all necessary action to
avoid delay, and to maintain order. He
or she shall have all powers necessary
to these ends, including (but not limited to) the power to—
(1) Arrange and change the date,
time, and place of hearings and prehearing conferences and issue notices
thereof;
(2) Hold conferences to settle, simplify, or determine the issue in a hearing, or to consider other matters that
may aid in the expeditious disposition
of the hearing;
(3) Require parties to state their position in writing with respect to the
various issues in the hearing and to exchange such statements with all other
parties;
(4) Examine witnesses and direct witnesses to testify;
(5) Receive, rule on, exclude, or limit
evidence;
(6) Rule on procedural items pending
before him or her; and
(7) Take any action permitted to the
ALJ as authorized by this part, or by
the provisions of the Administrative
Procedure Act (5 U.S.C. 551–559).
(d) Technical rules of evidence shall
not apply to hearings conducted pursuant to § 105–8.170–11, but rules or principles designed to assure production of
credible evidence available and to subject testimony to cross-examination
shall be applied by the ALJ whenever
reasonably necessary. The ALJ may
exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or
taken for the record shall be open to
examination by the parties and opportunity shall be given to refute facts
and arguments advanced on either side
of the issues. A transcript shall be
made of the oral evidence except to the
extent the substance thereof is stipulated for the record. All decisions shall
be based upon the hearing record.
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General Services Administration
§ 105–8.171
(e) The costs and expenses for the
conduct of a hearing shall be allocated
as follows:
(1) Persons employed by the agency
shall, upon request to the agency by
the ALJ, be made available to participate in the hearing and shall be on official duty status for this purpose. They
shall not receive witness fees.
(2) Employees of other Federal agencies called to testify at a hearing shall,
at the request of the ALJ and with the
approval of the employing agency, be
on official duty status during any period of absence from normal duties
caused by their testimony, and shall
not receive witness fees.
(3) The fees and expenses of other
persons called to testify at a hearing
shall be paid by the party requesting
their appearance.
(4) The ALJ may require the agency
to pay travel expenses necessary for
the complainant to attend the hearing.
(5) The respondent shall pay the required expenses and charges for the
ALJ and court reporter.
(6) All other expenses shall be paid by
the party, the intervening party, or
amicus curiae incurring them.
(f) The ALJ shall submit in writing
recommended findings of fact, conclusions of law, and remedies to all parties
and the Special Counsel for Ethics and
Civil Rights within 30 days after receipt of the hearing transcripts, or
within 30 days after the conclusion of
the hearing if no transcript is made.
This time limit may be extended with
the permission of the Special Counsel.
(g) Within 15 days after receipt of the
recommended decision of the ALJ any
party may file exceptions to the decision with the Speical Counsel. Thereafter, each party will have ten days to
file reply exceptions with the Special
Counsel.
§ 105–8.170–12 Decision.
(a) The Special Counsel shall make
the decision of the agency based on information in the investigative record
and, if a hearing is held, on the hearing
record. The decision shall be made
within 60 days of receipt of the transmittal of the notice of appeal and
investitive record pursuant to § 105–
8.170–9(c) or after the period for filing
exceptions ends, which ever is applica-
ble. If the Special Counsel for Ethics
and Civil Rights determines that he or
she needs additional information from
any party, he or she shall request the
information and provide the other
party or parties an opportunity to respond to that information. The Special
Counsel shall have 60 days from receipt
of the additional information to render
the decision on the appeal. The Special
Counsel shall transmit his or her decision by letter to the parties. The time
limits established in this paragraph
may be extended with the permission
of the Assistant Attorney General. The
decision shall set forth the findings, remedial action required, and reasons for
the decision. If the decision is based on
a hearing record, the Special Counsel
shall consider the recommended decision of the ALJ and render a final decision based on the entire record. The
Special Counsel may also remand the
hearing record to the ALJ for a fuller
development of the record.
(b) Any respondent required to take
action under the terms of the decision
of the agency shall do so promptly. The
Official may require periodic compliance reports specifying—
(1) The manner in which compliance
with the provisions of the decision has
been achieved;
(2) The reasons any action required
by the final decision has not yet been
taken; and
(3) The steps being taken to ensure
full compliance. The Official may retain responsibility for resolving disagreements that arise between the parties over interpretation fo the final
agency decision or for specific adjudicatory decisions arising out of implementation.
§ 105–8.170–13
Delegation.
The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except
that the authority for making the final
determination may not be delegated to
another agency.
§ 105–8.171 Complaints against an occupant agency.
(a) Upon notification by an occupant
agency that it has received a complete
complaint alleging that the agency’s
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Pt. 105–50
41 CFR Ch. 105 (7–1–16 Edition)
program is inaccessible because existing facilities under GSA’s control are
not accessible and usable by individuals with handicaps, GSA shall be
jointly responsible with the agency for
resolving the complaint and shall participate in making findings of fact and
conclusions of law in prescribing and
implementing appropriate remedies for
each violation found.
(b) GSA shall make reasonable efforts to follow the time frames for
complaint resolution that go into effect under the notifying occupant agency’s compliance procedures when it receives a complete complaint.
(c) Receipt of a copy of the complete
complaint by GSA shall constitute notification to GSA for purposes of § 105–
8.171(a).
PART 105–50—PROVISION OF SPECIAL OR TECHNICAL SERVICES
TO STATE AND LOCAL UNITS OF
GOVERNMENT
Sec.
105–50.000 Scope of part.
105–50.001 Definitions.
105–50.001–1 State.
105–50.001–2 Political subdivision or local
government.
105–50.001–3 Unit of general local government.
105–50.001–4 Special-purpose unit of local
government.
105–50.001–5 Specialized or technical services.
105–50.001–6 GSA.
105–50.202–6 Communications services.
105–50.202–7 Technical information and advice.
Subpart 105–50.3—Principles Governing
Reimbursements to GSA
105–50.301 Established fees.
105–50.302 Special fee schedules.
105–50.303 Cost basis in lieu of fees.
105–50.304 Services provided through revolving funds.
105–50.304a Deposits.
105–50.305 Exemptions.
Subpart 105–50.4—Reports
105–50.401 Reports submitted to the Congress.
105–50.402 Reports submitted to the Office of
Management and Budget.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c) and sec. 302, 82 Stat. 1102; 42
U.S.C. 4222.
SOURCE: 41 FR 21451, May 26, 1976, unless
otherwise noted.
§ 105–50.000
Scope of part.
This part prescribes rules and procedures governing the provision of special or technical services to State and
local units of government by GSA. This
part also prescribes principles governing reimbursements for such services.
§ 105–50.001
Definitions.
The following definitions are established for terms used in this part.
Subpart 105–50.1—General Provisions
§ 105–50.001–1
105–50.101 Purpose.
105–50.102 Applicability.
105–50.103 Policy.
105–50.104 Limitations.
105–50.105 Coordination of requests.
105–50.106 GSA response to requests.
Subpart 105–50.2—Services Available From
General Services Administration
105–50.201 Agencywide mission.
105–50.202 Specific services.
105–50.202–1 Copies of statistical or other
studies.
105–50.202–2 Preparation of or assistance in
the conduct of statistical or other studies.
105–50.202–3 Training.
105–50.202–4 Technical assistance incident to
Federal surplus personal property.
105–50.202–5 Data processing services.
State.
State means any of the several States
of the United States, the District of
Columbia, Puerto Rico, any territory
or possession of the United States, or
any agency or instrumentality of a
State, but does not include the governments of the political subdivisions of
the State.
§ 105–50.001–2 Political subdivision or
local government.
Political subdivision or local government means a local unit of government,
including specifically a county, municipality, city, town, township, or a
school or other special district created
by or pursuant to State law.
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General Services Administration
§ 105–50.001–3 Unit
government.
of
general
§ 105–50.104
local
Unit of general local government means
any city, county, town, parish, village,
or other general purpose political subdivision of a State.
§ 105–50.001–4 Special-purpose unit of
local government.
Special-purpose unit of local government means any special district, publicpurpose corporation, or other strictly
limited-purpose political subdivision of
a State, but shall not include a school
district.
§ 105–50.001–5
services.
Specialized or technical
Specialized or technical services means
statistical and other studies and compilations, development projects, technical tests and evaluations, technical
information, training activities, surveys, reports, documents, and any
other similar service functions which
any department or agency of the executive branch of the Federal Government
is especially equipped and authorized
by law to perform.
§ 105–50.001–6
GSA.
GSA means the General Services Administration.
Subpart 105–50.1—General
Provisions
§ 105–50.101
Purpose.
(a) This part 105–50 implements the
provisions of Title III of the Intergovernmental Cooperation Act of 1968 (82
Stat. 1102, 42 U.S.C. 4221–4225), the purpose of which is stated as follows:
It is the purpose of this title to encourage
intergovernmental cooperation in the conduct of specialized or technical services and
provision of facilities essential to the administration of State or local governmental activities, many of which are nationwide in
scope and financed in part by Federal funds;
to enable state and local governments to
avoid unnecessary duplication of special
service functions; and to authorize all departments and agencies of the executive
branch of the Federal Government which do
not have such authority to provide reimbursable specialized or technical services to
State and local governments.
(b) This part is consistent with the
rules and regulations promulgated by
the Director, Office of Management
and Budget, in the Office of Management and Budget Circular No. A–97,
dated August 29, 1969, issued pursuant
to section 302 of the cited Act (42
U.S.C. 4222).
§ 105–50.102 Applicability.
This part is applicable to all organizational elements of GSA insofar as the
services authorized to be performed in
subpart 105–50.2 fall within their designated functional areas.
§ 105–50.103 Policy.
It is the policy of GSA to cooperate
to the maximum extent possible with
State and local units of government in
providing the specialized or technical
services authorized within the limitations set forth in § 105–50.104.
§ 105–50.104 Limitations.
The specialized or technical services
provided under this part may be provided, in the discretion of the Administrator of General Services, only under
the following conditions:
(a) Such services will be provided
only to the States, political subdivisions thereof, and combinations or associations of such governments or their
agencies and instrumentalities.
(b) Such services will be provided
only upon the written request of a
State or political subdivision thereof.
Requests normally will be made by the
chief executives of such entities and
will be addressed to the General Services Administration as provided in
§ 105–50.105.
(c) Such services will not be provided
unless GSA is providing similar services for its own use under the policies
set forth in the Office of Management
and Budget Circular No. A–76 Revised,
dated August 30, 1967, subject: Policies
for acquiring commercial or industrial
products and services for Government
use. In addition, in accordance with the
policies set forth in Circular No. A–76,
the requesting entity must certify that
such services cannot be procured reasonably and expeditiously through ordinary business channels.
(d) Such services will not be provided
if they require any additions of staff or
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§ 105–50.105
41 CFR Ch. 105 (7–1–16 Edition)
involve outlays for additional equipment or other facilities solely for the
purpose of providing such services, except where the costs thereof are
charged to the user of such services.
Further, no staff additions may be
made which impede the implementation of, or adherence to, the employment ceilings contained in the Office of
Management and Budget allowance letters.
(e) Such services will be provided
only upon payment or provision for reimbursement by the unit of government making the request of salaries
and all other identifiable direct and indirect costs of performing such services. For cost determination purposes,
GSA will be guided by the policies set
forth in the Office of Management and
Budget Circular No. A–25, dated September 23, 1959, subject: User charges.
§ 105–50.105
Coordination of requests.
(a) All inquiries of a general nature
concerning services GSA can provide
shall be addressed to the General Services Administration (BR), Washington,
DC 20405. The Director of Management
Services, Office of Administration,
shall serve as the central coordinator
for such inquiries and shall assign
them to the appropriate organizational
element of GSA for expeditious handling.
(b) Requests for specific services may
be addressed directly to Heads of Services and Staff Offices and to Regional
Administrators. Section 105–50.202 describes the specific services GSA can
provide.
(c) If the proper GSA organizational
element is not known to the State or
local unit of government, the request
shall be addressed as in paragraph (a)
of this section to ensure appropriate
handling.
§ 105–50.106
GSA response to requests.
(a) Direct response to each request
shall be made by the Head of the applicable Service or Staff Office or Regional Administrator. He shall outline
the service to be provided and the fee
or reimbursement required. Any special conditions concerning time and
priority, etc., shall be stated. Written
acceptance by the authorized State or
local governmental entity shall constitute a binding agreement.
(b) Heads of Services and Staff Offices and Regional Administrators
shall maintain complete records and
controls of services provided on a calendar year basis to facilitate accurate,
annual reporting, as required in § 105–
50.401.
Subpart 105–50.2—Services Available From General Services
Administration
§ 105–50.201 Agencywide mission.
(a) In its role as a central property
management agency, GSA constructs,
leases, operates, and maintains office
and other space: procures and distributes supplies; coordinates and provides
for the economic and efficient purchase, lease, sharing, and maintenance
of automatic data processing equipment by Federal agencies; manages
stockpiles of materials maintained for
use in national emergencies; transfers
excess real and personal property
among Federal agencies for further
use; disposes of surplus real and personal property, by donation or otherwise, as well as materials excess to
stockpile requirements; operates centralized data processing centers and
telecommunications and motor pool
systems; operates the National Archives and Presidential libraries; and
provides a variety of records management services, including the operation
of centers for storing and administering records, as well as other common services.
(b) Special or technical services may
be provided by many organizational
elements of GSA with respect to their
functional areas, but the requesting
State or local agency needs only to
know that the service desired is related
to one or more of the functional areas
described above and direct its request
as provided for under § 105–50.105. State
and local units of government are also
encouraged to consult the ‘‘Catalog of
Federal Domestic Assistance’’ as a
more complete guide to the many other
Federal assistance programs available
to them. The catalog, issued annually
and updated periodically by the Office
of Management and Budget, is available through the Superintendent of
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General Services Administration
§ 105–50.202–7
Documents, Government Printing Office, Washington, DC 20402.
§ 105–50.202 Specific services.
Within the functional areas identified in § 105–50.201, GSA can provide the
services hereinafter described.
§ 105–50.202–1 Copies of statistical or
other studies.
This material includes a copy of any
existing statistical or other studies and
compilations, results of technical tests
and evaluations, technical information, surveys, reports, and documents,
and any such materials which may be
developed or prepared in the future to
meet the needs of the Federal Government or to carry out normal program
responsibilities of GSA.
§ 105–50.202–2 Preparation of or assistance in the conduct of statistical or
other studies.
(a) This service includes preparation
of statistical or other studies and compilations, technical tests and evaluations, technical information, surveys,
reports, and documents and assistance
in the conduct of such activities and in
the preparation of such materials, provided they are of a type similar to
those which GSA is authorized by law
to conduct or prepare and when resources are available.
(b) Specific areas in which GSA can
conduct or participate in the conduct
of studies include:
(1) Space management, including assignment and utilization;
(2) Supply management, including
laboratory tests and evaluations;
(3) Management of motor vehicles;
(4) Archives and records management;
(5) Automatic data processing systems; and
(6) Telecommunications and teleprocessing systems and services.
§ 105–50.202–3 Training.
(a) This training consists of the type
which GSA is authorized by law to conduct for Federal personnel and others
or which is similar to such training.
(b) Descriptions of the specific training courses conducted by GSA are published annually in the Interagency
Training Programs bulletin, copies of
which are available from the U.S. Civil
Service Commission, Washington, D.C.
20415.
§ 105–50.202–4 Technical assistance incident to Federal surplus personal
property.
Technical assistance will be provided
in the screening and selection of surplus personal property under existing
laws, provided such aid primarily
strengthens the ability of the recipient
in developing its own capacity to prepare proposals.
§ 105–50.202–5
ices.
Data
processing
GSA will develop ADP logistical feasibility studies, software, systems
analyses, and programs. To the extent
that data processing capabilities are
available, GSA will also assist in securing data processing services on a temporary, short term basis from other
Federal facilities or Federal Data Processing Centers.
§ 105–50.202–6
ices.
Communications
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GSA will continue to make its bulk
rate circuit ordering services available
for use by State and local governments. Under a revised tariff effective
December 12, 1971, GSA will bill the
State and local governments for their
share of the TEL PAK costs. Services
provided prior to December 12, 1971,
will be billed by the contractors under
the former arrangements. In addition,
certain activities, such as surplus property agencies which have frequent communications with Federal agencies,
will be given access to the Federal
Telecommunications System switchboards.
§ 105–50.202–7 Technical
and advice.
information
GSA will provide technical information, personnel management systems
services, and technical advice on improving logistical and management
services which GSA normally provides
for itself or others under existing authorities.
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31
§ 105–50.301
41 CFR Ch. 105 (7–1–16 Edition)
Subpart 105–50.3—Principles Governing Reimbursements to
GSA
§ 105–50.301
Established fees.
Where there is an established schedule of fees for services to other Government agencies or the public, the schedule shall be used as the basis for reimbursement for like services furnished
to State and local governments.
§ 105–50.302
Special fee schedules.
Where there is no established schedule of fees for types of service which
are ordinarily reimbursed on a fee
basis, such schedules may be developed
and promulgated in conjunction with
the Office of Administration. The fees
so established shall cover all direct
costs, such as salaries of personnel involved plus personnel benefits, travel,
and other related expenses and all indirect costs such as management, supervisory, and staff support expenses determined or estimated from the best
available records in GSA. Periodically,
fees shall be reviewed for adequacy of
recovery and adjusted as necessary.
§ 105–50.303
Cost basis in lieu of fees.
Where the cost of services is to be recovered on other than a fee basis, upon
receipt of a request from a State or
local government for such services, a
written reply shall be prepared by the
service or staff office receiving the request stating the basis for reimbursement for the services to be performed.
The proposal shall be based on an estimate of all direct costs, such as salaries of personnel involved plus personnel benefits, travel, and other related expenses and on such indirect
costs as management, supervisory, and
staff support expenses. An appropriate
surcharge may be developed to recover
these indirect costs. The terms thereof
shall be concurred in by the Director of
Administration. Acceptance in writing
by the requester shall constitute a
binding agreement between GSA and
the requesting governmental unit.
§ 105–50.304 Services provided through
revolving funds.
Where the service furnished is of the
type which GSA is now billing through
revolving funds, reimbursement shall
be obtained from State and local governments on the same basis; i.e., the
same pricing method, billing forms,
and billing support shall be used.
§ 105–50.304a Deposits.
Reimbursements to GSA for furnishing special or technical services to
State and local units of government
will be deposited to the credit of the
appropriation from which the cost of
providing such services has been paid
or is to be charged if such reimbursements are authorized. Otherwise, the
reimbursements will be credited to
miscellaneous receipts in the U.S.
Treasury (42 U.S.C. 4223).
§ 105–50.305 Exemptions.
(a) Single copies of existing reports
covering studies and statistical compilations and other data or publications for which there is no established
schedule of fees shall be furnished
without charge unless significant expense is incurred in reproducing the
material, in which instance the actual
cost thereof shall be charged.
(b) GSA may, pursuant to section 302
of the Intergovernmental Personnel
Act of 1970 (42 U.S.C. 4742), admit employees of State and local units of government to training programs established for professional, administrative,
or technical personnel and may waive
the requirement for reimbursement in
whole or in part.
Subpart 105–50.4—Reports
§ 105–50.401 Reports submitted to the
Congress.
(a) The Administrator of General
Services will furnish annually to the
respective Committees on Government
Operations of the Senate and the House
of Representatives a summary report
on the scope of the services provided
under Title III of the act and this part.
(b) Heads of Services and Staff Offices and all Regional Administrators
shall furnish the Director of Management Services, OAD, by no later than
January 15 of each year, the following
information concerning services provided during the preceding calendar
year to State and local units of government:
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General Services Administration
§ 105–53.110
(1) A brief description of the services
provided, including any other pertinent
data;
(2) The State and/or local unit of government involved; and
(3) The cost of GSA to provide the
service, including the amount of reimbursement, if any, made by the benefitting government.
(c) Reports Control Symbol LAW–27–
OA is assigned to this report.
§ 105–50.402 Reports submitted to the
Office of Management and Budget.
Copies of the foregoing reports will
be submitted by the Administrator to
the Office of Management and Budget
not later than March 30 of each year.
PART 105–51—UNIFORM RELOCATION ASSISTANCE AND REAL
PROPERTY ACQUISITION FOR
FEDERAL AND FEDERALLY ASSISTED PROGRAMS
AUTHORITY: Sec. 213, Uniform Relocation
Assistance and Real Property Acquisition
Policies Act of 1970, Pub. L. 91–646, 84 Stat.
1894 (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation
Assistance Act of 1987, Title IV of Pub. L.
100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note).
§ 105–51.001 Uniform relocation assistance and real property acquisition.
Regulations and procedures for complying with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91–646,
84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface Transportation and
Uniform Relocation Assistance Act of
1987 (Title IV of Pub. L. 100–17, 101 Stat.
246–255, 42 U.S.C. 4601 note) are set
forth in 49 CFR part 24.
[52 FR 48024, Dec. 17, 1987; 54 FR 8913, Mar. 2,
1989]
PART 105–53—STATEMENT OF
ORGANIZATION AND FUNCTIONS
Sec.
105–53.100
Subpart B—Central Offices
105–53.130 Office of the Administrator.
105–53.130–1 [Reserved]
105–53.130–2 Office of Ethics and Civil
Rights.
105–53.130–3 Office of the Executive Secretariat.
105–53.130–4 Office of Small and Disadvantaged Business Utilization.
105–53.131 Office of Inspector General.
105–53.132 Civilian Board of Contract Appeals.
105–53.133 Information Security Oversight
Office.
105–53.134 Office of Administration.
105–53.135 [Reserved]
105–53.136 Office of Congressional Affairs
105–53.137 Office of Acquisition Policy.
105–53.138 Office of General Counsel.
105–53.139 Office of the Comptroller.
105–53.140 Office of Operations and Industry
Relations.
105–53.141 Office of Policy Analysis.
105–53.142 Office of Public Affairs.
105–53.143 Information Resources Management Service.
105–53.144 Federal Property Resources Service.
105–53.145 Federal Supply Service.
105–53.146 [Reserved]
105–53.147 Public Buildings Service.
Subpart C—Regional Offices
105–53.150 Organization and functions.
105–53.151 Geographic composition, addresses, and telephone numbers.
AUTHORITY: 5 U.S.C. 552(a)(1), Pub. L. 90–23,
81 Stat. 54 sec. (a)(1); 40 U.S.C. 486(c), Pub. L.
81–152, 63 Stat. 390, sec. 205(c).
SOURCE: 48 FR 25200, June 6, 1983, unless
otherwise noted.
§ 105–53.100
Purpose.
This part is published in accordance
with 5 U.S.C. 552 and is a general description of the General Services Administration.
Subpart A—General
Purpose.
§ 105–53.110
Subpart A—General
105–53.110
105–53.112
105–53.114 General statement of organization.
105–53.116 General regulations.
105–53.118 Locations of material available
for public inspection.
105–53.120 Address and telephone numbers.
Creation and authority.
The General Services Administration
was established by section 101 of the
Federal Property and Administrative
Creation and authority.
General statement of functions.
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§ 105–53.112
41 CFR Ch. 105 (7–1–16 Edition)
Services Act of 1949 (63 Stat. 377), effective July 1, 1949. The act consolidated
and transferred to the agency a variety
of real and personal property and related functions fomerly assigned to
various agencies. Subsequent laws and
Executive orders assigned other related
functions and programs.
§ 105–53.112 General
statement
of
functions.
The General Services Administration, as a major policy maker, provides
guidance and direction to Federal
agencies in a number of management
fields. GSA formulates and prescribes a
variety of Governmentwide policies relating to procurement and contracting;
real and personal property management; transportation, public transportation, public utilities and telecommunications management; automated data processing management;
records management; the use and disposal of property; and the information
security program. In addition to its
policy role, GSA also provides a variety of basic services in the aforementioned areas to other Government
agencies. A summary description of
these services is presented by organizational component in subpart B.
[54 FR 26741, June 26, 1989]
§ 105–53.114 General statement of organization.
The General Services Administration
is an independent agency in the executive branch of the Government. The
work of the agency as a whole is directed by the Administrator of General
Services, who is assisted by the Deputy
Administrator. A summary description
of each of GSA’s major functions and
organizational components is presented
in subparts B and C.
§ 105–53.116 General regulations.
Regulations of the General Services
Administration and its components are
codified in the Code of Federal Regulations in title 1, chapters I and II; title
32, chapter XX; title 41, chapters 1, 5,
101, 105, and 201; and title 48, chapters 1
and 5. Titles 1, 32, 41, and 48 of the Code
of Federal Regulations are available
for review at most legal and depository
libraries and at the General Services
Administration Central Office and re-
gional offices. Copies may be purchased
from the Superintendent of Documents, Government Printing Office,
Washington, DC 20402.
[49 FR 24995, June 19, 1984]
§ 105–53.118 Locations
of
material
available for public inspection.
GSA maintains reading rooms containing materials available for public
inspection and copying at the following
locations:
(a) General Services Administration,
18th & F Streets, NW., Library (Room
1033), Washington, DC 20405. Telephone
202–535–7788.
(b) Business Service Center, General
Services Administration, 10 Causeway
Street, Boston, MA 02222. Telephone:
617–565–8100.
(c) Business Service Center, General
Services Administration, 26 Federal
Plaza, NY, NY 10278. Telephone: 212–
264–1234.
(d) Business Service Center, General
Services Administration, Seventh & D
Streets, SW., Room 1050, Washington,
DC 20407. Telephone: 202–472–1804.
(e) Business Service Center, General
Services Administration, Ninth & Market Streets, Room 5151, Philadelphia,
PA 19107. Telephone: 215–597–9613.
(f) Business Service Center, General
Services Administration, Richard B.
Russell Federal Building, U.S. Courthouse, 75 Spring Street, SW., Atlanta,
GA 30303, Telephone: 404/331–5103.
(g) Business Service Center, General
Services Administration, 230 South
Dearborn Street, Chicago, IL 60604.
Telephone: 312–353–5383.
(h) Business Service Center, General
Services Administration, 1500 East
Bannister Road, Kansas City, MO 64131.
Telephone: 816–926–7203.
(i) Business Service Center, General
Services Administration, 819 Taylor
Street, Fort Worth, TX 76102. Telephone: 817–334–3284.
(j) Business Service Center, General
Services Administration, Denver Federal Center, Denver, CO 80225. Telephone: 303–236–7408.
(k) Business Service Center, General
Services Administration, 525 Market
Street, San Francisco, CA 94105. Telephone: 415–974–9000.
(l) Business Service Center, General
Services Administration, 300 North Los
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General Services Administration
§ 105–53.130–4
Angeles Street, Room 3259, Los Angeles, CA 90012. Telephone: 213–688–3210.
(m) Business Service Center, General
Services Administration, GSA Center,
Auburn, WA 98001. Telephone: 206–931–
7957.
istrator, assists in directing agency
programs and coordinating activities
related to the functions of the General
Services Administration.
[48 FR 25200, June 6, 1983, as amended at 49
FR 24995, June 19, 1984; 50 FR 26363, June 26,
1985; 51 FR 23229, June 26, 1986; 52 FR 23657,
June 24, 1987; 53 FR 23761, June 24, 1988]
§ 105–53.130–2 Office of Ethics and
Civil Rights.
The Office of Ethics and Civil Rights,
headed by the Special Counsel for Ethics and Civil Rights, is responsible for
developing, directing, and monitoring
the agency’s programs governing employee standards of ethical conduct,
equal employment opportunity, and
civil rights. It is the focal point for the
agency’s implementation of the Ethics
in Government Act of 1978. The principal statutes covering the Civil Rights
Program are Titles VI and VII of the
Civil Rights Act of 1964, Title IX of the
Educational Amendments Act of 1972,
sections 501 and 504 of the Vocational
Rehabilitation Act of 1973, the Age Discrimination in Employment Act of
1975, and the Equal Pay Act.
§ 105–53.120 Address
numbers.
and
telephone
The Office of the Administrator; Office of Civil Rights; Office of Citizen
Services and Innovative Technologies;
Office of the Chief Information Officer;
Office of Emergency Response and Recovery; Office of the Chief Financial
Officer; Chief Administrative Services
Officer; Office of Congressional and
Intergovernmental Affairs; Office of
Small Business Utilization; Office of
General Counsel; Office of the Chief
People Officer; Office of Communications and Marketing; Office of Governmentwide Policy; Public Buildings
Service and the Office of Inspector
General are located at 18th and F
Streets NW., Washington, DC 20405. The
Federal Acquisition Service is located
at 2200 Crystal Drive Room 1000, Arlington, VA 22202–3713; however, the
mailing address is Washington, DC
20406. The telephone number for the
above addresses is 202–472–1082. The Civilian Board of Contract Appeals
(CBCA) is located at 1800 M Street NW.,
6th Floor, Washington, DC 20036; however, the CBCA mailing address is 1800
F Street NW., Washington, DC 20405.
The CBCA telephone number is 202–606–
8800. The addresses of the eleven regional offices are provided in § 105–
53.151.
[78 FR 29246, May 20, 2013]
Subpart B—Central Offices
§ 105–53.130
trator.
Office
of
the
Adminis-
The Administrator of General Services, appointed by the President with
the advice and consent of the Senate,
directs the execution of all programs
assigned to the General Services Administration. The Deputy Administrator, who is appointed by the Admin-
§ 105–53.130–1
[Reserved]
[53 FR 23761, June 24, 1988]
§ 105–53.130–3 Office of the Executive
Secretariat.
The Office of the Executive Secretariat, headed by the Director of the
Executive Secretariat, is responsible
for policy coordination, correspondence
control, and various administrative
tasks in support of the Administrator
and Deputy Administrator.
§ 105–53.130–4 Office of Small and Disadvantaged Business Utilization.
(a) Creation and authority. Public Law
95–507, October 14, 1978, an amendment
to the Small Business Act and the
Small Business Investment Act of 1958,
established in each Federal agency
having procurement authority the Office of Small and Disadvantaged Business Utilization. Each office is headed
by a Director of Small and Disadvantaged Business Utilization. The Director is appointed by the head of the
agency or department.
(b) Functions. The Director of Small
and Disadvantaged Business Utilization is responsible for the implementation and execution of the functions and
duties under Sections 8 and 15 of the
Small Business Act to include the
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§ 105–53.131
41 CFR Ch. 105 (7–1–16 Edition)
issuance of policy direction and guidance. The office provides information,
assistance, and counseling to business
concerns, including small businesses,
small socially and economically disadvantaged
persons,
women-owned
businesses, labor surplus area concerns,
and workshops operated by the blind
and other severely handicapped persons. The office also conducts outreach, liaison, source listings, and seminars for small and disadvantaged businesses and coordinates and promotes
procurement programs and policies.
§ 105–53.131 Office of Inspector General.
(a) Creation and authority. Public Law
95–452, known as the Inspector General
Act of 1978, consolidated existing audit
and investigation functions and established an Office of Inspector General in
11 major domestic departments and
agencies, including GSA. Each office is
headed by an Inspector General appointed by the President with the advice and consent of the Senate.
(b) Functions. The Office of Inspector
General is responsible for policy direction and conduct of audit, inspection,
and investigation activities relating to
programs and operations of GSA; and
maintaining liaison with other law enforcement agencies, the Department of
Justice, and United States Attorneys
on all matters relating to the detection
and prevention of fraud and abuse. The
Inspector General reports semiannually to the Congress through the Administrator concerning fraud, abuses,
other serious problems, and deficiencies of agency programs and operations; recommends corrective action;
and reports on progress made in implementing these actions.
§ 105–53.132 Civilian Board of Contract
Appeals.
(a) Creation and authority. The Civilian Board of Contract Appeals, headed
by the Chairman, Civilian Board of
Contract Appeals, was established on
January 6, 2007, pursuant to section 847
of the National Defense Authorization
Act for Fiscal Year 2006, Pub. L. 109–
163, 119 Stat. 3391.
(b) Functions. The CBCA hears, considers, and decides contract disputes
between Government contractors and
Executive agencies (other than the
U.S. Department of Defense, the U.S.
Department of the Army, the U.S. Department of the Navy, the U.S. Department of the Air Force, the U.S. National Aeronautics and Space Administration, the U.S. Postal Service, the
Postal Rate Commission, and the Tennessee Valley Authority) under the
provisions of the Contract Disputes
Act, 41 U.S.C. 7101–7109, and regulations
and rules issued thereunder. The Board
also conducts other proceedings as required or permitted under statutes or
regulations. Such other proceedings include the resolution of disputes involving grants and contracts under the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450, et seq.;
the resolution of disputes between insurance companies and the U.S. Department of Agriculture’s Risk Management Agency (RMA) involving actions of the Federal Crop Insurance
Corporation (FCIC) pursuant to the
Federal Crop Insurance Act, 7 U.S.C.
1501, et seq.; requests by carriers or
freight forwarders to review actions
taken by the Audit Division of the U.S.
General Services Administration’s Office of Transportation and Property
Management pursuant to 31 U.S.C.
3726(i)(1); claims by Federal civilian
employees against the United States
for reimbursement of expenses incurred
while on official temporary duty travel, and expenses incurred in connection
with relocation to a new duty station
pursuant to 31 U.S.C. 3702; and requests
of agency disbursing or certifying officials, or agency heads, on questions involving payment of travel or relocation
expenses pursuant to section 204 of the
U.S. General Accounting Office Act of
1996, Public Law 104–316.
(c) Regulations. Regulations pertaining to CBCA programs are published in 48 CFR Chapter 61. Information on availability of the regulations
is provided in § 105–53.116.
[78 FR 29246, May 20, 2013]
§ 105–53.133 Information
Oversight Office.
(a) Creation and authority. The Information Security Oversight Office
(ISOO), headed by the Director of
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General Services Administration
§ 105–53.138
ISOO, who is appointed by the Administrator with the approval of the President, was established by the Administrator on November 20, 1978, under the
provisions of Executive Order 12065. Effective August 1, 1982, this authority is
based upon Executive Order 12356,
which superseded E.O. 12065.
(b) Functions. ISOO oversees and ensures, under the general policy direction of the National Security Council,
Government-wide implementation of
the information security program established by Executive order.
(c) Regulations. Regulations pertaining to ISOO Programs are published in 32 CFR chapter XX, part 2000
et seq.
§ 105–53.134
Office of Administration.
The Office of Administration, headed
by the Associate Administrator for Administration, participates in the executive leadership of the agency; providing
advice on the formulation of major
policies and procedures, particularly
those of a critical or controversial nature, to the Administrator and Deputy
Administrator. The Office plans and
administers programs in organization,
productivity improvement, position
management, training, staffing, position classification and pay administration, employee relations, workers’
compensation, career development,
GSA internal security, reporting requirements, regulations, internal directives, records correspondence procedures, Privacy and Freedom of Information Acts, printing and duplicating,
mail, telecommunications, graphic design, cooperative administrative support, and support for congressional
field offices. The office also serves as
the central point of control for audit
and inspection reports from the Inspector General and the Comptroller General of the United States; and manages
the GSA internal controls evaluation,
improvement, and reporting program.
In addition, the office includes a secretariat to oversee Federal advisory committees.
§ 105–53.135
[Reserved]
§ 105–53.136
Affairs.
Office
of
The Office of Congressional Affairs,
headed by the Associate Administrator
for Congressional Affairs, is responsible
for directing and coordinating the legislative and congressional activities of
GSA.
[54 FR 26742, June 26, 1989]
§ 105–53.137
icy.
Office of Acquisition Pol-
(a) Functions. The Office of Acquisition Policy (OAP), headed by the Associate Administrator for Acquisition
Policy, serves as the single focal point
for GSA acquisition and contracting
matters and is responsible for ensuring
that the GSA procurement process is
executed in compliance with all appropriate public laws and regulations and
is based on sound business judgment.
Also, OAP exercises Governmentwide
acquisition responsibilities through its
participation with the Department of
Defense and the National Aeronautics
and Space Administration in the development and publication of the Federal
Acquisition Regulation.
(b) Regulations. Regulations pertaining to OAP programs are published
in 48 CFR chapter 1, Federal Acquisition Regulation (FAR), and in 48 CFR
chapter 5, General Services Acquisition
Regulation (GSAR). Information on
availability of the regulations is provided in § 105–53.116.
[52 FR 23657, June 24, 1987]
§ 105–53.138
Office of General Counsel.
Functions. The Office of General
Counsel (OGC), headed by the General
Counsel, is responsible for providing all
legal services to the services, programs
offices, staff offices, and regions of
GSA with the exception of certain legal
activities of the Office of Inspector
General and legal activities of the Civilian Board of Contract Appeals;
drafts legislation proposed by GSA;
[54 FR 26741, June 26, 1989]
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§ 105–53.139
41 CFR Ch. 105 (7–1–16 Edition)
furnishes legal advice required in connection with reports on legislation proposed by other agencies; provides liaison on legal matters with other Federal agencies; coordinates with the Department of Justice in litigation matters; and reviews and gives advice on
matters of contract policy and contract operations.
[48 FR 25200, June 6, 1983, as amended at 78
FR 29247, May 20, 2013]
§ 105–53.139 Office of the Comptroller.
(a) Functions. The Office of the Comptroller, headed by the Comptroller, is
responsible for centralized agencywide
budget and accounting functions; overall allocation and administrative control of agencywide resources and financial management programs; planning,
developing, and directing GSA’s executive management information system;
and overseeing implementation of OMB
Circular A–76 agencywide.
(b) Regulations. Regulations pertaining to the Office of the Comptroller’s programs are published in 41 CFR
part 101–2. Information on availability
of the regulations is provided in § 105–
53.116.
[51 FR 23230, June 26, 1986, as amended at 53
FR 23762, June 24, 1988; 54 FR 26742, June 26,
1989]
§ 105–53.140 Office of Operations and
Industry Relations.
The Office of Operations and Industry
Relations, headed by the Associate Administrator for Operations and Industry Relations, is responsible for formulating GSA-wide policy that relates to
regional operations, supervising GSA’s
Regional Administrators, and planning
and coordinating GSA business and industry relations and customer liaison
activities.
[54 FR 26742, June 26, 1989]
§ 105–53.141 Office of Policy Analysis.
The Office of Policy Analysis, headed
by the Associate Administrator for
Policy Analysis, is responsible for providing analytical support, independent,
objective information concerning management policies and programs, and
technical and analytical assistance in
the areas of policy analysis and resource allocation to the Administrator,
senior officials, and organizations in
GSA.
[51 FR 23230, June 26, 1986]
§ 105–53.142
Office of Public Affairs.
The Office of Public Affairs, headed
by the Associate Administrator for
Public Affairs, is responsible for the
planning, implementation, and coordination of GSA public information and
public events and employee communication activities, and managing and
operating the Consumer Information
Center.
[51 FR 23230, June 26, 1986]
§ 105–53.143 Information
Management Service.
(a) Creation and authority. The Information Resources Management Service
(IRMS), headed by the Commissioner,
Information Resources Management
Service, was established as the Office
of Information Resources Management
on August 17, 1982 and subsequently redesignated as IRMS on November 17,
1985, by the Administrator of General
Services. The Information Resources
Management Service was assigned responsibility for administering the Governmentwide information resources
management
program,
including
records management, and procurement,
management, and use of automatic
data processing and telecommunications resources.
(b) Functions. IRMS is responsible for
directing and managing Governmentwide programs for the procurement and
use of automatic data processing
(ADP), office information systems, and
telecommunications equipment and
services; developing and coordinating
Governmentwide plans, policies, procedures, regulations, and publications
pertaining to ADP; telecommunications and records management activities; managing and operating the
Information Technology Fund; managing and operating the Federal Telecommunications System (FTS); planning and directing programs for improving Federal records and information management practices Governmentwide; managing and operating the
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31
General Services Administration
§ 105–53.147
Federal Information Centers; developing and overseeing GSA policy concerning automated information systems, equipment, and facilities; and
providing policy and program direction
for the GSA Emergency Preparedness
and Disaster Support Programs.
(c) Regulations. Regulations pertaining to IRMS programs are published in 41 CFR chapter 201, Federal
Information Resources Management
Regulation (FIRMR), and 48 CFR chapters 1 and 5. Information on availability of the regulations is provided in
§ 105–53.116.
[51 FR 23230, June 26, 1986, as amended at 52
FR 23657, June 24, 1987]
§ 105–53.144 Federal
sources Service.
Property
Re-
(a) Creation and authority. The Federal
Property
Resources
Service
(FPRS), headed by the Commissioner,
Federal Property Resources Service,
was established on July 18, 1978, by the
Administrator of General Services to
carry out the utilization and disposal
functions for real and related personal
property.
(b) Functions. FPRS is responsible for
utilization surveys of Federal real
property holdings; the reuse of excess
real property; and the disposal of surplus real property.
(c) Regulations. Regulations pertaining to FPRS programs are published in 41 CFR chapter 1, 41 CFR
chapter 101, subchapter H, and 48 CFR
chapter 1. Information on availability
of the regulations is provided in § 105–
53.116
[54 FR 26742, June 26, 1989]
§ 105–53.145
Federal Supply Service.
(a) Creation and authority. The Federal Supply Service (FSS), headed by
the Commissioner, FSS, was established on December 11, 1949, by the Administrator of General Services to supersede the Bureau of Federal Supply
of the Department of the Treasury
which was abolished by the Federal
Property and Administrative Services
Act of 1949. The Federal Supply Service
has been known previously as the Office of Personal Property and the Office of Federal Supply and Services.
(b) Functions. FSS is responsible for
determining supply requirements; procuring personal property and nonpersonal services; transferring excess (except ADP equipment) and donating and
selling surplus personal property; managing GSA’s Governmentwide transportation, traffic management, travel,
fleet management, and employee relocation programs; auditing of transportation bills paid by the Government
and subsequent settlement of claims;
developing Federal standard purchase
specifications and Commercial Item
Descriptions; standardizing commodities purchased by the Federal Government; cataloging items of supply procured by civil agencies; and ensuring
continuity of supply operations during
defense emergency conditions.
(c) Regulations. Regulations pertaining to FSS programs are published
in 41 CFR chapters 1 and 5; 41 CFR
chapter 101, subchapters A, E, G, and H;
and in 48 CFR chapters 1 and 5. Information on availability of the regulations is provided in § 105–53.116.
[49 FR 24996, June 19, 1984, as amended at 51
FR 23230, June 26, 1986]
§ 105–53.146
[Reserved]
§ 105–53.147 Public Buildings Service.
(a) Creation and authority. The Public
Buildings Service (PBS), headed by the
Commissioner, Public Buildings Service, was established on December 11,
1949, by the Administrator of General
Services to supersede the Public Buildings Administration, which was abolished by the Federal Property and Administrative Services Act of 1949.
(b) Functions. PBS is responsible for
the design, construction, management,
maintenance, operation, alteration, extension, remodeling, preservation, repair, improvement, protection, and
control of buildings, both federally
owned and leased, in which are provided housing accommodations for
Government activities; the acquisition,
utilization, custody, and accountability for GSA real property and related personal property; representing
the consumer interests of the Federal
executive agencies before Federal and
State rate regulatory commissions and
providing procurement support and
contracting for public utilities (except
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§ 105–53.150
41 CFR Ch. 105 (7–1–16 Edition)
telecommunications); the Safety and
Environmental Management Program
for GSA managed Government-owned
and-leased facilities; providing for the
protection and enhancement of the cultural environment for federally owned
sites, structures, and objects of historical, architectural, or archaeological
significance; ensuring that Federal
work space is used more effectively and
efficiently; providing leadership in the
development and maintenance of needed property management information
systems for the Government; and coordination of GSA activities towards
improving the environment, as required by the National Environmental
Policy Act of 1959.
(c) Regulations. Regulations pertaining to PBS programs are published
in 41 CFR chapter 1, 41 CFR chapter
101, subchapters D and H; and in 48 CFR
chapter 1. Information on availability
of the regulations is provided in § 105–
53.116.
[48 FR 25200, June 6, 1983, as amended at 49
FR 24996, June 19, 1984; 52 FR 23658, June 24,
1987]
Subpart C—Regional Offices
§ 105–53.150 Organization and functions.
Regional offices have been established in 11 cities throughout the
United States. Each regional office is
headed by a Regional Administrator
who reports to the Associate Administrator for Operations and Industry Relations. The geographic composition of
each region is shown in § 105–53.151.
[54 FR 26742, June 26, 1989]
No. 3. (Comprising the States of Maryland,
Virginia (except those jurisdictions within
the National Capital Region boundaries),
West Virginia, Pennsylvania, and Delaware);
Ninth and Market Streets, Philadelphia, PA
19107. Telephone 215–597–1237.
No. 4. (Comprising the States of Alabama,
Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, and Tennessee); 75 Spring Street, SW., Atlanta, GA
30303. Telephone: 404–331–3200.
No. 5. (Comprising the States of Illinois,
Indiana, Michigan, Minnesota, Ohio, and
Wisconsin); 230 South Dearborn Street, Chicago, IL 60604. Telephone: 312–353–5395.
No. 6. (Comprising the States of Iowa, Kansas, Missouri, and Nebraska); 1500 East Bannister Road, Kansas City, MO 64131. Telephone: 816–926–7201.
No. 7. (Comprising the States of Arkansas,
Louisiana, New Mexico, Oklahoma, and
Texas); 819 Taylor Street, Fort Worth, TX
76102. Telephone: 817–334–2321.
No. 8. (Comprising the States of Colorado,
Montana, North Dakota, South Dakota,
Utah, and Wyoming); Building 41, Denver
Federal Center, Denver, CO 80225. Telephone:
303–236–7329.
No. 9. (Comprising Guam and the States of
Arizona, California, Hawaii, and Nevada); 525
Market Street, San Francisco, CA 94105.
Telephone : 415–974–9147.
No. 10. (Comprising the States of Alaska,
Idaho, Oregon, and Washington); GSA Center, Auburn, WA 98001. Telephone: 206–931–
7000.
National Capital Region. (Comprising the
District of Columbia; Counties of Montgomery and Prince Georges in Maryland; and
the City of Alexandria and the Counties of
Arlington, Fairfax, Loudoun, and Prince William in Virginia); Seventh and D Streets,
SW., Washington, DC 20407. Telephone: 202–
472–1100.
[51 FR 23231, June 26, 1986, as amended at 52
FR 23658, June 24, 1987; 53 FR 23762, June 24,
1988; 54 FR 26742, June 26, 1989]
§ 105–53.151 Geographic composition,
addresses, and telephone numbers.
REGIONAL OFFICES—GENERAL SERVICES
ADMINISTRATION
PART 105–54—ADVISORY
COMMITTEE MANAGEMENT
Sec.
105–54.000
Scope of part.
Region and Address
No. 1. (Comprising the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont); Boston
FOB, 10 Causeway Street, Boston, MA 02222.
Telephone: 617–565–5860.
No. 2. (Comprising the States of New Jersey and New York, the Commonwealth of
Puerto Rico, and the Virgin Islands); 26 Federal Plaza, New York, NY 10278. Telephone:
212–264–2600.
Subpart 105–54.1—General Provisions
105–54.101
105–54.102
105–54.103
105–54.104
Applicability.
Definitions.
Policy.
Responsibilities.
Subpart 105–54.2—Establishment of
Advisory Committees
105–54.200
Scope of subpart.
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General Services Administration
§ 105–54.101
105–54.201 Proposals for establishing advisory committees.
105–54.202 Review and approval of proposals.
105–54.203 Advisory committee charters.
105–54.203–1 Preparation of charters.
105–54.203–2 Active charters file.
105–54.203–3 Submission to Library of Congress.
105–54.204 Advisory committee membership.
Subpart 105–54.3—Advisory Committee
Procedures
105–54.300 Scope of subpart.
105–54.301 Meetings.
105–54.302 Committee records and reports.
105–54.303 Fiscal and administrative provisions.
105–54.304 Cost guidelines.
105–54.305 Renewal of advisory committees.
105–54.306 Amendment of advisory committee charters.
105–54.307 Termination of advisory committees.
105–54.308 Responsibilities of the Administrator.
105–54.309 Added responsibilities of service
and staff office heads and regional administrators.
105–54.310 Advisory committee duties of the
GSA Committee Management Officer.
105–54.311 Complaint procedures.
Subpart 105–54.4—Reports
105–54.400 Scope of subpart.
105–54.401 Reports on GSA Federal Advisory
Committees.
AUTHORITY: Pub. L. 92–463 dated October 6,
1972, as amended; and 5 U.S.C. 552.
SOURCE: 53 FR 40224, Oct. 14, 1988, unless
otherwise noted.
§ 105–54.000
Scope of part.
This part sets forth policies and procedures in GSA regarding the establishment, operation, termination, and
control of advisory committees for
which GSA has responsibility. It implements the Federal Advisory Committee
Act (Pub. L. 92–463), which authorizes a
system governing the establishment
and operation of advisory committees
in the executive branch of the Federal
Government, and Executive Order 11686
of October 7, 1972, which directs the
heads of all executive departments and
agencies to take appropriate action to
ensure their ability to comply with the
provisions of the Act.
Subpart 105–54.1—General
Provisions
§ 105–54.101
Applicability.
This part 105–54 applies to all advisory committees for which GSA has responsibility. This part also applies to
any committee that advises GSA officials even if the committee were not
established for that purpose. This applicability, however, is limited to the
period of the committee’s use as an advisory body. This part does not apply
to:
(a) An advisory committee exempted
by an Act of Congress;
(b) A local civic group whose primary
function is to render a public service in
connection with a Federal program;
(c) A State or local committee, council, board, commission, or similar
group established to advise or make
recommendations to State or local officials or agencies;
(d) A meeting initiated by the President or one or more Federal official(s)
for the purpose of obtaining advice or
recommendations from one individual;
(e) A meeting with a group initiated
by the President or one or more Federal official(s) for the sole purpose of
exchanging facts or information;
(f) A meeting initiated by a group
with the President or one or more Federal official(s) for the purpose of expressing the group’s views, provided
that the President or Federal official(s)
does not use the group recurrently as a
preferred source of advice or recommendations;
(g) A committee that is established
to perform primarily operational as opposed to advisory functions. Operational functions are those specifically
provided by law, such as making or implementing Government decisions or
policy. An operational committee
would be covered by the Act if it becomes primarily advisory in nature;
(h) A meeting initiated by a Federal
official(s) with more than one individual for the purpose of obtaining the
advice of individual attendees and not
for the purpose of utilizing the group
to obtain consensus advice or recommendations. However, such a group
would be covered by the Act when an
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§ 105–54.102
41 CFR Ch. 105 (7–1–16 Edition)
agency accepts the group’s deliberations as a source of consensus advice or
recommendations;
(i) A meeting of two or more advisory
committee or subcommittee members
convened solely to gather information
or conduct research for a chartered advisory committee, to analyze relevant
issues and facts, or to draft proposed
position papers for deliberation by the
advisory committee or a subcommittee
of the advisory committee; and
(j) A committee composed wholly of
full-time officers or employees of the
Federal Government.
§ 105–54.102
Definitions.
(a) The term ‘‘advisory committee’’
means any committee, board, commission, council, conference, panel, task
force, or other similar group or any
subcommittee thereof that is:
(1) Established by statute,
(2) Established or utilized by the
President, or
(3) Established or utilized by any
agency official to obtain advice or recommendations that are within the
scope of his/her responsibilies.
The term ‘‘advisory committee’’ excludes the Advisory Committee on
Intergovernmental Relations and any
committees composed wholly of fulltime officers or employees of the Federal Government.
(b) ‘‘Presidential advisory committee’’ means any committee that advises the President. It may be established by the President or by the Congress, or may be used by the President
to obtain advice or recommendations.
(c) ‘‘Independent Presidential advisory committee’’ means any Presidential advisory committee not assigned by the President, or the President’s delegate, or by the Congress in
law, to an agency for administrative
and other support and for which the
Administrator of General Services may
provide administrative and other support on a reimbursable basis.
(d) ‘‘Committee member’’ means an
individual who serves by appointment
on a committee and has the full right
and obligation to participate in the activities of the committee, including
voting on committee recommendations.
(e) ‘‘Staff member’’ means any individual who serves in a support capacity
to an advisory committee.
(f) ‘‘Secretariat’’ means the General
Services Administration’s Committee
Management Secretariat. Established
pursuant to the Federal Advisory Committee Act, it is responsible for all
matters relating to advisory committees, and carries out the Administrator’s responsibilities under the Act and
Executive Order 12024.
(g) ‘‘Utilized’’ (or used), as stated in
the definition of ‘‘advisory committee’’
above, refers to a situation in which a
GSA official adopts a committee or
other group composed in whole or in
part of other than full-time Federal officers or employees with an established
existence outside GSA as a preferred
source from which to obtain advice or
recommendations on a specific issue or
policy within the scope of his/her responsibilities in the same manner as
that official would obtain advice or
recommendations from an established
advisory committee.
§ 105–54.103
Policy.
The basic GSA policy on committee
management is as follows:
(a) Advisory committees will be
formed or used by GSA only when specifically authorized by law, or by the
President, or specifically determined
as a matter of formal record by the Administrator of General Services to be
in the public interest in connection
with the performance of duties imposed
on GSA by law;
(b) Advisory committees will not be
used to administer a function that is
the assigned responsibility of a service
or staff office;
(c) The assigned responsibility of a
GSA official may not be delegated to
any committee;
(d) No advisory committee may be
used for functions that are not solely
advisory unless specifically authorized
by statute or Presidential directive.
Making policy decisions and determining action to be taken with respect
to any matter considered by an advisory committee is solely the responsibility of GSA; and
(e) In carrying out its responsibilities, GSA will consult with and obtain
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General Services Administration
§ 105–54.201
the advice of interested groups substantially affected by its programs.
The use of advisory committees for
this purpose is considered to be in the
public interest and necessary for the
proper performance by GSA of its assigned functions.
§ 105–54.104
Responsibilities.
(a) Responsibility for coordination
and control of committee management
in GSA is vested in the Associate Administrator for Administration, who
serves as the GSA Committee Management Officer (CMO). This Officer carries out the functions prescribed in section 8(b) of the Federal Advisory Committee Act. In doing so, the Officer
controls and supervises the establishment, procedures, and accomplishments of GSA-sponsored advisory committees. The Organization and Productivity Improvement Division, Office of
Management Services, Office of Administration, provides staff resources and
furnishes the Staff Contact Person
(SCP) to the CMO.
(b) The Head of each Service and
Staff Office and each Regional Administrator selects a Committee Management Officer (CMO) to coordinate and
control committee management within
the service, staff office, or regional office and to act as liaison to the GSA
Committee Management Officer. The
duties of the CMOs are as follows:
(1) Assemble and maintain the reports, records, and other papers of any
GSA-sponsored committee during its
existence (Arrangements may be made,
however, for the Government chairperson or other GSA representative to
retain custody of reports, records, and
other papers to facilitate committee
operations. After the committee is terminated, all committee records are disposed of following existing regulations.); and
(2) Under agency regulations in 41
CFR 105–60, carry out the provisions of
5 U.S.C. 552 with respect to the reports,
records, and other papers of GSA-sponsored advisory committees.
Subpart 105–54.2—Establishment
of Advisory Committees
§ 105–54.200
Scope of subpart.
This subpart prescribes the policy
and procedures for establishing advisory committees within GSA.
§ 105–54.201 Proposals for establishing
advisory committees.
(a) The Administrator approves the
establishment of all GSA Federal Advisory Committees.
(b) When it is decided that it is necessary to establish a committee, the
appropriate Head of the Service or
Staff Office (HSSO) must consider the
functions of similar committees in
GSA to ensure that no duplication of
effort will occur.
(c) The HSSO proposes the establishment of a Central Office or regional advisory committee within the scope of
assigned program responsibilities. In
doing so, the HSSO assures that advisory committees are established only if
they are essential to the conduct of
agency business. Advisory committees
are established only if there is a compelling need for the committees, the
committees have a truly balanced
membership, and the committees conduct their business as openly as possible under the law and their mandate.
Each proposal is submitted to the GSA
Committee Management Officer for review and coordination and includes:
(1) A letter addressed to the Committee Management Secretariat signed
by the HSSO with information copies
for the Administrator, Deputy Administrator, the Associate Administrator
for Congressional and Industry Relations, and the Special Counsel for Ethics and Civil Rights, describing the nature and purpose of the proposed advisory committee; why it is essential to
agency business and in the public interest; why its functions cannot be performed by an existing committee of
GSA, by GSA, or other means such as
a public hearing; and the plans to ensure balanced membership;
(2) A notice for publication in the
FEDERAL REGISTER containing the Administrator’s certification that creation of the advisory committee is in
the public interest and describing the
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§ 105–54.202
41 CFR Ch. 105 (7–1–16 Edition)
nature and purpose of the committee;
and
(3) A draft charter for review by the
Committee Management Secretariat.
(d) Subcommittees that do not function independently of the full or parent
advisory committee need not follow
the requirements of paragraph (c) of
this section. However, they are subject
to all other requirements of the Federal Advisory Committee Act.
(e) The requirements of paragraphs
(a) through (c) of this section apply to
any subcommittee of a chartered committee, whether its members are drawn
in whole or in part from the full or parent advisory committee, that functions
independently of the parent advisory
committee, such as by making recommendations directly to a GSA official rather than for consideration by
the chartered advisory committee.
§ 105–54.202 Review and approval of
proposals.
(a) The GSA Committee Management
Officer reviews each proposal to make
sure it conforms with GSA policies and
procedures. The Officer sends the letter
of justification, including the draft
charter, to the Committee Management Secretariat. The Secretariat reviews the proposal and provides its
views within 15 calendar days of receipt, if possible. The Administrator
retains final authority for establishing
a particular advisory committee.
(b) When the Secretariat notifies the
Officer that establishing the committee conforms with the Federal Advisory Committee Act, the Officer obtains the Administrator’s approval of
the charter and the FEDERAL REGISTER
notice. The Officer publishes the notice
in the FEDERAL REGISTER at least 15
calendar days before the filing of the
charter under § 105–54.203 with the
standing committees of the Senate and
the House of Representatives having
legislative jurisdiction over GSA. The
date of filing constitutes the date of establishment.
§ 105–54.203 Advisory committee charters.
No advisory committee may operate,
meet, or take any action until the Administrator approves its charter and
the Committee Management Officer
sends a copy of it to the standing committees of the Senate and the House of
Representatives having legislative jurisdiction over GSA.
§ 105–54.203–1
Preparation of charters.
Each committee charter contains the
following information:
(a) The committee’s official designation;
(b) The committee’s objectives and
the scope of its activities;
(c) The period of time necessary for
the committee to carry out its purpose
(if the committee is intended to function as a standing advisory committee,
this should be made clear);
(d) The official to whom the committee reports, including the official’s
name, title, and organization;
(e) The agency and office responsible
for providing the necessary support for
the committee;
(f) A description of the duties for
which the committee is responsible (if
the duties are not solely advisory, the
statutory or Presidential authority for
additional duties shall be specified);
(g) The estimated annual operating
costs in dollars and person-years for
the committee;
(h) The estimated number and frequency of committee meetings;
(i) The committee’s termination
date, if it is less than 2 years from the
date of its establishment; and
(j) The date the charter is filed. This
date is inserted by the GSA Committee
Management Officer after the Administrator approves the charter.
§ 105–54.203–2
Active charters file.
The GSA Committee Management
Officer retains each original signed
charter in a file of active charters.
§ 105–54.203–3 Submission to Library
of Congress.
The GSA Committee Management
Officer furnishes a copy of each charter
to the Library of Congress when or
shortly after copies are filed with the
requisite committees of the Congress.
Copies for the Library are addressed:
Library of Congress, Exchange and Gift
Division, Federal Documents Section,
Federal Advisory Committee Desk,
Washington, DC 20540.
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General Services Administration
§ 105–54.301
§ 105–54.204 Advisory committee membership.
(a) Advisory committees that GSA
establishes represent the points of view
of the profession, industry, or other
group to which it relates, taking into
account the size, function, geographical location, affiliation, and
other considerations affecting the
character of a committee. To ensure
balance, the agency considers for membership a cross-section of interested
persons and groups with professional or
personal qualifications or experience to
contribute to the functions and tasks
to be performed. This should be construed neither to limit the participation nor to compel the selection of any
particular individual or group to obtain different points of view relevant to
committee business. The Administrator designates members, alternates,
and observers, as appropriate, of advisory committees. He/she designates a
Federal officer or employee to chair or
attend each meeting of each advisory
committee. The Administrator also
designates GSA employees to serve on
advisory committees sponsored by
other Government agencies. The HSSO
or Regional Administrator submits
nominations and letters of designation
for the Administrator’s signature to
the GSA Committee Management Officer and to the Special Counsel for Ethics and Civil Rights for review and forwarding to the Administrator.
(b) Discrimination is prohibited on
the basis of race, color, age, national
origin, religion, sex, or mental and
physical handicap in selecting advisory
committee members.
(c) Nominees for membership must
submit a Statement of Employment
and Financial Interests (provided to
the nominee by the HSSO or Regional
Administrator) and may not be appointed until cleared by the Designated
Agency Ethics Official.
Subpart 105–54.3—Advisory
Committee Procedures
§ 105–54.300
Scope of subpart.
This subpart sets forth the procedures that will be followed in the operation of advisory committees within
GSA.
§ 105–54.301
Meetings.
(a) Each GSA advisory committee
meeting is open to the public unless
the Administrator decides otherwise;
(b) Each meeting is held at a reasonable time and in a place reasonably accessible to the public;
(c) The meeting room size is sufficient to accommodate committee
members, committee or GSA staff, and
interested members of the public;
(d) Any private citizen is permitted
to file a written statement with the advisory committee;
(e) Any private citizen is permitted
to speak at the advisory committee
meeting, at the chairperson’s discretion;
(f) All persons attending committee
meetings at which classified information will be considered are required to
have an adequate security clearance;
(g) The Designated Federal Officer
(who may be either full time or permanent part-time) for each advisory committee and its subcommittees does the
following:
(1) Approves or calls the meetings of
the advisory committee;
(2) Approves the meeting agenda,
which lists the matters to be considered at the meeting and indicates
whether any part of the meeting will
be closed to the public under the Government in the Sunshine Act (5 U.S.C.
552b(c)). Ordinarily, copies of the agenda are distributed to committee members before the date of the meeting;
(3) Attends all meetings (no part of a
meeting may proceed in the Designated
Federal Officer’s absence);
(4) Adjourns the meeting when he or
she determines that adjournment is in
the public interest; and
(5) Chairs the meeting when asked to
do so.
(h) The Committee Chairperson
makes sure that detailed minutes of
each meeting are kept and certifies to
their accuracy. The minutes include:
(1) Time, date, and place;
(2) A list of the following persons who
were present;
(i) Advisory committee members and
staff;
(ii) Agency employees; and
(iii) Private citizens who presented
oral or written statements;
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§ 105–54.302
41 CFR Ch. 105 (7–1–16 Edition)
(3) The estimated number of private
citizens present;
(4) An accurate description of each
matter discussed and the resolution of
the matter, if any; and
(5) Copies of each report or other document the committee received, issued,
or approved.
(i) The responsible HSSO or the Regional Administrator publishes at least
15 calendar days before the meeting a
notice in the FEDERAL REGISTER that
includes:
(1) The name of the advisory committee as chartered;
(2) The time, date, place, and purpose
of the meeting;
(3) A summary of the agenda; and
(4) A statement whether all or part of
the meeting is open to the public of
closed; and if closed, the reasons why,
and citing the specific exemptions of
the Government is the Sunshine Act (5
U.S.C. 552b) as the basis for closure;
(j) In exceptional circumstances and
when approved by the General Counsel
or designee, less than 15 calendar days
notice may be given, provided the reasons for doing so are included in the
committee meeting notice published in
the FEDERAL REGISTER;
(k) Notices to be published in the
FEDERAL REGISTER are submitted to
the Federal Register Liaison Officer
(CAID). At least five workdays are
needed for printing of the notice;
(l) Meetings may also be announced
by press release, direct mail, publication in trade and professional journals,
or by notice to special interest and
community groups affected by the
Committee’s deliberations. This procedure cannot be a substitute for FEDERAL REGISTER publication;
(m) The fact that a meeting may be
closed to the public under the exemptions of the Government in the Sunshine Act does not relieve GSA of the
requirement to publish a notice of it in
the FEDERAL REGISTER. The Administrator may authorize an exception to
this requirement for reasons of national security if the HSSO requests it
at least 30 calendar days before the
meeting, with the concurrence of the
General Counsel of designee.
(n) An advisory committee meeting
is not open to the public, nor is the attendance, appearance, or filing of
statements by interested persons permitted, if the Administrator decides
that the meeting is exempted under the
Government in the Sunshine Act (5
U.S.C. 552b (c)) and there is sufficient
reason to invoke the exemption. If only
part of the meeting concerns exempted
matters, only that part is closed. The
HSSO or Regional Administrator submits any decisions concerning the closing of meetings in writing to the Administrator for approval at least 30 calendar days in advance of the meeting.
These decisions clearly set forth the
reasons for doing so, citing the specific
exemptions used from the Government
in the Sunshine Act in the meeting notice published in the FEDERAL REGISTER. They are made available to the
public on request. The Administrator
may waive the 30-day requirement
when a lesser period of time is requested and adequately justified.
(o) If any meeting or portion of a
meeting is closed to public attendance,
the advisory committee issues a report
at lease annually setting forth a summary of its activities and such related
matters as would be informative to the
public, consistent with the policy of 5
U.S.C. 552(b). Notice of the availability
of the report and instructions on how
to gain access to it are published in the
FEDERAL REGISTER no later than 60
days after its completion. In addition,
copies of the report are filed with the
Library of Congress.
(p) The General Counsel reviews all
requests to close meetings.
(q) The HSSO or Regional Administrator publishes the meeting notices in
the FEDERAL REGISTER, including the
reasons why all or part of the meeting
is closed, citing the specified exemptions used from the Government in the
Sunshine Act.
§ 105–54.302 Committee
reports.
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and
(a) Subject to the Freedom of Information Act (5 U.S.C. 552), the records,
reports, transcripts, minutes, appendixes, working papers, drafts, studies,
agenda, or other documents that were
available to or prepared for or by a
GSA advisory committee are available
(until the committee ceases to exist)
for public inspection and copying in
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General Services Administration
§ 105–54.303
the office of the Government Chairperson or Designated Federal Officer.
Requests to inspect or copy these
records are processed under 41 CFR 105–
60.4. Except where prohibited by a contract entered into before January 5,
1973, copies of transcripts, if any, of
committee meetings are made available by the Government chairperson or
Designated Federal Officer to any person at the cost of duplication. After
the committee’s work ends, disposition
of the committee documents and the
release of information from them are
made in accordance with Federal
records, statutes, and regulations.
(b) Subject to 5 U.S.C. 552(b) and instructions of the Committee Management Secretariat, the Government
chairperson or Designated Federal Officer files at least eight copies of each
report an advisory committee makes,
including any report on closed meetings with the Library of Congress at
the time of its issuance. Where appropriate, the chairperson also files copies
of background papers that consultants
to the advisory committee prepare
with the Library of Congress. The
transmittal letter identifies the materials being furnished, with a copy of
the transmittal provided to the GSA
Committee Management Officer.
§ 105–54.303 Fiscal and administrative
provisions.
(a) Each HSSO and each Regional Administrator ensures that under established GSA procedures, records are
kept that fully disclose the disposition
of funds at the disposal of an advisory
committee and the nature and extent
of the committee’s activities.
(b) When GSA is assigned to provide
administrative support for a Presidential advisory committee, the Agency Liaison Coordinator in the Office of
the Deputy Regional Administrator,
National Capital Region, as a part of
its support, arranges with the Office of
Finance, Office of the Comptroller, for
maintaining all financial records.
(c) Unless otherwise provided in a
Presidential order, statute, or other
authority, the GSA service or staff office sponsoring an advisory committee
provides support services for the committee.
(d) The guidelines in paragraph (e)
through (l) of this section are established under section 7(d) of the Federal
Advisory Committee Act, 86 Stat. 773.
They apply to the pay of members,
staff, and consultants of an advisory
committee, except that nothing in this
paragraph will affect a rate of pay or a
limitation on a rate of pay that is established by statute or a rate of pay established under the General Schedule
classification and pay system in Chapter 51 and Subchapter III of Chapter 53
of Title 5, U.S.C.
(e) The members of GSA advisory
committee established pursuant to the
Administrator’s authority under section 205(g) of the Federal Property and
Administrative Services Act of 1949, as
amended (40 U.S.C. 486(g)), are not compensated, since, by law, members so appointed shall service without compensation. A person who (without regard to his or her service with an advisory committee) is a full-time Federal
employee will normally receive compensation at the rate at which he or
she would otherwise be compensated.
(f) When required by law, the pay of
the members of GSA advisory committees will be fixed to the daily equivalent of a rate of the General Schedule
in 5 U.S.C. 5332 unless the members are
appointed as consultants and compensated as provided in paragraph (h)
of this section. In determining an appropriate rate of pay for the members,
GSA must give consideration to the
significance, scope, and technical complexity of the matters with which the
advisory committee is concerned and
the qualifications required of the members of the advisory committee. GSA
may not fix the pay of the members of
an advisory committee at a rate higher
than the daily equivalent of the maximum rate for a GS–15 under the General Schedule, unless a higher rate is
mandated by statute, or the Administrator has personally determined that
a higher rate of pay under the General
Schedule is justified and necessary.
Such a determination must be reviewed
by the Administrator annually. Accordingly, the Administrator may not
fix the pay of the members of an advisory committee at a rate of pay higher
than the daily equivalent of a rate for
a GSA 18, as provided in 5 U.S.C. 5332.
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§ 105–54.304
41 CFR Ch. 105 (7–1–16 Edition)
(g) The pay of each staff member of
an advisory committee is fixed at a
rate of the General Schedule, General
Management Schedule, or Senior Executive Service pay rate in which the
staff member’s position would be
placed (5 U.S.C. Chapter 51). GSA cannot fix the pay of a staff member higher than the daily equivalent of the
maximum rate for GS–15 unless the Administrator decides that under the
General Schedule, General Management Schedule, or Senior Executive
Service classification system, the staff
member’s position should be higher
than GS–15. The Administrator must
review this decision annually.
(1) In establishing compensation
rates, GSA must comply with applicable statutes, regulations, Executive Orders, and administrative guidelines.
(2) A staff member who is a Federal
employee serves with the knowledge of
the Designated Federal Officer and the
approval of the employee’s direct supervisor. A staff member who is a nonFederal employee is appointed under
agency procedures, after consultation
with the advisory committee.
(h) The pay of a consultant to an advisory committee will be fixed after
giving consideration to the qualifications required of the consultant and
the significance, scope, and technical
complexity of the work. The rate of
pay will not exceed the maximum rate
of pay which the agency may pay experts and consultants under 5 U.S.C.
3109 and must be in accordance with
any applicable statutes, regulations,
Executive Orders, and administrative
guidelines.
(i) Advisory committee and staff
members, while performing their duties away from their homes or regular
places of business, may be allowed
travel expenses, including per diem instead of subsistence, as authorized by 5
U.S.C. 5703 for persons employed intermittently in the Government service.
(j) Members of an advisory committee and its staff who are blind or
deaf or who otherwise qualify as handicapped persons (under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C.
794)), and who do not otherwise qualify
for assistance under 5 U.S.C. 3102, as an
employee of an agency (under section
3102(a)(1) of Title 5), may be provided
the services of a personal assistant.
(k) Under this paragraph, GSA may
accept the gratuitous services of a
member, consultant, or staff member
of an advisory committee who agrees
in advance to serve without compensation.
(l) A person who immediately before
his or her service with an advisory
committee was a full-time Federal employee may receive compensation at
the rate at which he or she was compensated as a Federal employee.
§ 105–54.304 Cost guidelines.
(a) The reporting and estimating of
the costs of advisory committees include direct obligations for the following items:
(1) Pay compensation of committee
members; consultants to the committee; all permanent, temporary, or
part-time (GM, GS, WB, or other) positions which are a part of or support the
committee; and all overtime related to
committee functions (Compensation
should reflect actual or estimated Federal person-years or parts thereof devoted to a committee’s activities. It includes the compensation of Federal
employees assigned to committees, on
a reimbursable or nonreimbursable
basis, from agencies or departments
other than to which the committee reports.);
(2) Personnel benefits associated with
the above compensation (13 percent of
basic payroll);
(3) Travel costs (including per diem)
of committee members; consultants;
and all permanent, temporary, or parttime positions which are a part of or
support the committee;
(4) Transportation of things, communications, and printing and reproduction;
(5) Rent for additional space acquired
for committee use;
(6) Other services required by the
committee, including data processing
services, management studies and evaluations, contractual services, and reimbursable services; and
(7) Supplies, materials, and equipment acquired for committee use.
(b) The reporting and estimating of
the cost of advisory committees does
not include indirect or overhead costs;
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General Services Administration
§ 105–54.306
e.g., the costs of the committee management system (committee management officers, etc.).
§ 105–54.305 Renewal of advisory committees.
(a) Each advisory committee being
continued is renewed for successive 2year periods beginning with the date
when it was established according to
the following, except for statutory advisory committees: (For renewal of
statutory advisory committees, see
paragraph (b) of this section.)
(1) Advisory committees are not renewed unless there is a compelling
need for them, they have balanced
membership, and they conduct their
business as openly as possible under
the law.
(2) The renewal of a committee requires that the responsible HSSO submit to the GSA Committee Management Officer the following:
(i) An updated charter with an explanation of the need for the renewal of
the committee. The charter and explanation are furnished 60 calendar days
before the 2-year anniversary date of
the committee.);
(ii) A letter signed by the HSSO to
the Director, Committee Management
Secretariat, with information copies to
the Administrator and the Deputy Administrator, setting forth:
(A) An explanation of why the committee is essential to the conduct of
agency business and is in the public interest;
(B) GSA’s plan to attain balanced
membership of the committee; and
(C) An explanation of why the committee’s functions cannot be performed
by GSA, another existing GSA advisory
committee, or other means such as a
public hearing;
(iii) A notice for publication in the
FEDERAL REGISTER describing the nature and purpose of the committee and
containing a certification by the Administrator that renewing the advisory
committee is in the public interest.
(3) On receiving the above documents, the GSA Committee Management Officer submits the renewal letter to the Committee Management
Secretariat not more than 60 calendar
days nor less than 30 days before the
committee expires. Following receipt
of the Committee Management Secretariat’s views on the committee renewal, the Officer obtains the Administrator’s approval of the charter and the
FEDERAL REGISTER notice. The Officer
publishes notice of the renewal in the
FEDERAL REGISTER and files copies of
the updated charter. The 15-day notice
requirement does not apply to committee renewals, notices of which may
be published concurrently with the filing of the charter.
(b) Each statutory advisory committee is renewed by the filing of a renewal charter upon the expiration of
each successive 2-year period following
the date of enactment of the statute
establishing the committee according
to the following:
(1) The procedures in paragraph (a)(2)
of this section apply to the renewal of
a statutory committee except that neither prior consultation with the Committee Management Secretariat nor a
FEDERAL REGISTER notice is required.
Accordingly, the letter that paragraph
a(2)(ii) requires is sent to the Administrator rather than the Committee
Mangement Secretariat. Due to the nature of a committee the law established, the explanation of the need to
continue the committee’s existence is
less extensive than the explanation for
the continuation of a non-statutory
committee; and
(2) The GSA Committee Management
Officer provides the Committee Management Secretariat with a copy of the
filed charter.
(c) An advisory committee required
to file a new charter may not take any
action other than preparing the charter between the date it is to be filed
and the date it is actually filed.
§ 105–54.306 Amendment
committee charters.
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advisory
(a) A charter is amended when GSA
decides that the existing charter no
longer accurately reflects the objectives or functions of the committee.
Changes may be minor, such as revising the name of the committee or
modifying the estimated number or
frequency of meetings, or they may be
major dealing with the basic objectives
or composition of the committee. The
Administrator retains final authority
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§ 105–54.307
41 CFR Ch. 105 (7–1–16 Edition)
for amending the charter of an advisory committee. Amending an existing
advisory committee charter does not
constitute renewal of the committee.
(b) To make a minor amendment, the
Administrator approves the amended
charter and has it filed according to
§ 105–54.203–1.
(c) To make a major amendment, the
Committee Management Officer submits an amended charter and a letter
to the Committee Management Secretariat, signed by the HSSO with the
concurrence of the General Counsel or
designee, requesting the Secretariat’s
views on the amended language, along
with an explanation of the purpose of
the changes and why they are necessary. The Secretariat reviews the
proposed changes and notifies the Committee Management Officer of its views
within 15 calendar days of receiving it,
if possible. The Administrator has the
charter filed according to § 105–54.203–1.
(d) Amending an existing charter
does not constitute renewal of the committee.
§ 105–54.307 Termination of advisory
committees.
(a) The sponsoring HSSO terminates
an advisory committee that has fulfilled the purpose stated in its charter.
The official takes action to rescind any
existing orders relating to the committee and to notify committee members, the GSA Committee Management
Officer, and the Committee Management Secretariat of the termination.
(b) Failing to continue an advisory
committee by the 2-year anniversary
date terminates the committee, unless
its duration is provided for by law.
§ 105–54.308 Responsibilities of the Administrator.
The Administrator must ensure:
(a) Compliance with the Federal Advisory Committee Act and this chapter;
(b) Issuance of administrative guidelines and management controls that
apply to all advisory committees established or used by the agency;
(c) Designation of a Committee Management Officer to carry out the functions specified in section 89(b) of the
Federal Advisory Committee Act;
(d) Provision of a written determination stating the reasons for closing any
advisory committee meeting to the
public;
(e) A review, at least annually, of the
need to continue each existing advisory
committee, consistent with the public
interest and the purpose and functions
of each committee;
(f) The appointment of a Designated
Federal Officer for each advisory committee and its subcommittee;
(g) The opportunity for reasonable
public participation in advisory committee activities; and
(h) That the number of committee
members is limited to the fewest necessary to accomplish committee objectives.
§ 105–54.309 Added responsibilities of
service and staff office heads and
regional administrators.
(a) No later than the first meeting of
an advisory committee, submit to committee members, committee staff, consultants, and appropriate agency management personnel a written statement
of the purpose, objectives, and expected
accomplishments of the committee;
(b) Solicit in writing or in a formal
meeting at least annually the views of
committee members on the effectiveness, activities, and management of
the committee, including recommendations for improvement. Review comments to determine whether improvements or corrective action is warranted. Retain recommendations until
the committee is terminated or renewed.
(c) Involve key management personnel of the agency whose interests
are affected by the committee in committee meetings, including reviewing
reports and establishing agendas.
(d) Periodically, but not less than annually, review the level of committee
staff suport to make sure that expenditures are justified by committee activity and benefit to the Government.
(e) Monitor the attendance and participation of committee members and
consider replacing any member who
misses a substantial number of scheduled meetings.
(f) Establish meeting dates and distribute agendas and other materials
well in advance.
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General Services Administration
Pt. 105–55
§ 105–54.310 Advisory committee duties of the GSA Committee Management Officer.
In addition to implementing the provisions of section 8(b) of the Federal
Advisory Committee Act, the GSA
Committee Management Officer carries
out all responsibilities delegated by
the Administrator. The Officer ensures
that sections 10(b), 12(a), and 13 of the
Act are implemented by GSA to provide for appropriate record keeping.
Records include, but are not limited to:
(a) A set of approved charters and
membership lists for each advisory
committee;
(b) Copies of GSA’s portion of the Annual Report of Federal Advisory Committees.
(c) Guidelines on committee management operations and procedures as
maintained and updated; and
(d) Determinations to close advisory
committee meetings.
§ 105–54.311 Complaint procedures.
(a) Any person whose request for access to an advisory committee document is denied may seek administrative review under 41 CFR 105–60, which
implements the Freedom of Information Act. (See GSA Order, GSA regulations under the ‘‘Freedom of Information Act’’ (ADM 7900.3A).)
(b) Aggrieved individuals or organizations may file written complaints on
matters not involving access to documents with the Deputy Administrator,
General
Services
Administration,
Washington, DC 20405. Complaints
must be filed within 90 calendar days
from the date the grievance arose. The
Deputy Administrator promptly acts
on each complaint and notifies the
complainant in writing of the decision.
Subpart 105–54.4—Reports
§ 105–54.400 Scope of subpart.
This subpart sets forth the reports
required by this part 105–54 and prescribes instructions for submission of
the reports.
§ 105–54.401 Reports on GSA Federal
Advisory Committees.
(a) The Committee Management Secretariat periodically issues reporting
instructions and procedures. The GSA
Committee Management Officer files a
report each fiscal year providing program, financial, and membership information. The Secretariat uses the information in preparing recommendations
and status reports on advisory committee matters and in assisting the
President in preparing and submitting
a fiscal year report to the Congress. Instructions for preparing GSA’s submission are provided by the GSA Committee Management Officer.
(b) Reports on closed meetings are required as specified in § 105–54.301(o).
PART 105–55—COLLECTION OF
CLAIMS OWED THE UNITED STATES
Sec.
105–55.001 Prescription of standards.
105–55.002 Definitions.
105–55.003 Antitrust, fraud, tax, interagency
claims, and claims over $100,000 excluded.
105–55.004 Compromise, waiver, or disposition under other statutes not precluded.
105–55.005 Form of payment.
105–55.006 Subdivision of claims not authorized.
105–55.007 Required
administrative
proceedings.
105–55.008 No private rights created.
105–55.009 Aggressive agency collection activity.
105–55.010 Demand for payment.
105–55.011 Collection by administrative offset.
105–55.012 Contracting with private collection contractors and with entities that
locate and recover unclaimed assets.
105–55.013 Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges.
105–55.014 Liquidation of collateral.
105–55.015 Collection in installments.
105–55.016 Interest, penalties, and administrative costs.
105–55.017 Use and disclosure of mailing addresses.
105–55.018 Exemptions.
105–55.019 Compromise of claims.
105–55.020 Bases for compromise.
105–55.021 Enforcement policy.
105–55.022 Joint and several liability.
105–55.023 Further review of compromise offers.
105–55.024 Consideration of tax consequences
to the Government.
105–55.025 Mutual releases of the debtor and
the Government.
105–55.026 Suspending or terminating collection activity.
105–55.027 Suspension of collection activity.
105–55.028 Termination of collection activity.
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§ 105–55.001
41 CFR Ch. 105 (7–1–16 Edition)
105–55.029 Exception to termination.
105–55.030 Discharge of indebtedness; reporting requirements.
105–55.031 Prompt referral to the Department of Justice.
105–55.032 Claims Collection Litigation Report.
105–55.033 Preservation of evidence.
105–55.034 Minimum amount of referrals to
the Department of Justice.
AUTHORITY: 5 U.S.C. 552–553; 31 U.S.C. 321,
3701, 3711, 3716, 3717, 3718, 3719, 3720B, 3720D; 31
CFR parts 900–904.
SOURCE: 68 FR 68741, Dec. 10, 2003, unless
otherwise noted.
§ 105–55.001
Prescription of standards.
(a) The Secretary of the Treasury
and the Attorney General of the United
States issued regulations for collecting
debts owed the United States under the
authority contained in 31 U.S.C.
3711(d)(2). The regulations in this part
prescribe standards for the General
Services Administration (GSA) use in
the administrative collection, offset,
compromise, and the suspension or termination of collection activity for civil
claims for money, funds, or property,
as defined by 31 U.S.C. 3701(b), unless
specific GSA statutes or regulations
apply to such activities or, as provided
for by Title 11 of the United States
Code, when the claims involve bankruptcy. The regulations in this part
also prescribe standards for referring
debts to the Department of Justice for
litigation. Additional guidance is contained in the Office of Management and
Budget’s Circular A–129 (Revised),
‘‘Policies for Federal Credit Programs
and Non-Tax Receivables,’’ the Department of the Treasury’s ‘‘Managing Federal Receivables,’’ and other publications concerning debt collection and
debt management.
(b) GSA is not limited to the remedies contained in this part and will
use all authorized remedies, including
alternative dispute resolution and arbitration, to collect civil claims, to the
extent such remedies are not inconsistent with the Federal Claims Collection Act, as amended, Chapter 37 of
Title 31, United States Code; the Debt
Collection Act of 1982, 5 U.S.C. 5514; the
Debt Collection Improvement Act of
1996, 31 U.S.C. 3701 et seq., or other relevant statutes. The regulations in this
part are not intended to impair GSA’s
common law rights to collect debts.
(c) Standards and policies regarding
the classification of debt for accounting purposes (for example, write off of
uncollectible debt) are contained in the
Office of Management and Budget’s
Circular A–129 (Revised), ‘‘Policies for
Federal Credit Programs and Non-Tax
Receivables.’’
§ 105–55.002 Definitions.
(a) Administrative offset, as defined in
31 U.S.C. 3701(a)(1), means withholding
funds payable by the United States (including funds payable by the United
States on behalf of a State government) to, or held by the United States
for, a person to satisfy a claim.
(b) Compromise means the reduction
of a debt as provided in §§ 105–55.019 and
105–55.020.
(c) Debt collection center means the
Department of the Treasury or other
Government agency or division designated by the Secretary of the Treasury with authority to collect debts on
behalf of creditor agencies in accordance with 31 U.S.C. 3711(g).
(d) Debtor means an individual, organization,
association,
corporation,
partnership, or a State or local government indebted to the United States or
a person or entity with legal responsibility for assuming the debtor’s obligation.
(e) Delinquent or past-due non-tax debt
means any non-tax debt that has not
been paid by the date specified in
GSA’s initial written demand for payment or applicable agreement or instrument (including a post-delinquency
payment agreement), unless other satisfactory payment arrangements have
been made.
(f) For the purposes of the standards
in this part, unless otherwise stated,
the term Administrator refers to the Administrator of General Services or the
Administrator’s delegate.
(g) For the purposes of the standards
in this part, the terms claim and debt
are synonymous and interchangeable.
They refer to an amount of money,
funds, or property that has been determined by GSA to be due the United
States from any person, organization,
or entity, except another Federal agency, from sources which include loans
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31
General Services Administration
§ 105–55.003
insured or guaranteed by the United
States and all other amounts due the
United States from fees, leases, rents,
royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures and all other similar sources,
including debt administered by a third
party as an agent for the Federal Government. For the purposes of administrative offset under 31 U.S.C. 3716, the
terms claim and debt include an amount
of money, funds, or property owed by a
person to a State (including past-due
support being enforced by a State), the
District of Columbia, American Samoa,
Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.
(h) For the purposes of the standards
in this part, unless otherwise stated,
the terms GSA and Agency are synonymous and interchangeable.
(i) For the purposes of the standards
in this part, unless otherwise stated,
Secretary means the Secretary of the
Treasury or the Secretary’s delegate.
(j) For the standards in this part,
Federal agencies include agencies of
the executive, legislative, and judicial
branches of the Government, including
Government corporations.
(k) Hearing means a review of the
documentary evidence concerning the
existence and/or amount of a debt, and/
or the terms of a repayment schedule,
provided such repayment schedule is
established other than by a written
agreement entered into pursuant to
this part. If the hearing official determines the issues in dispute cannot be
resolved solely by review of the written
record, such as when the validity of the
debt turns on the issue of credibility or
veracity, an oral hearing may be provided.
(l) Hearing official means a Board
Judge of the Civilian Board of Contract
Appeals.
(m) In this part, words in the plural
form shall include the singular and
vice versa, and words signifying the
masculine gender shall include the
feminine and vice versa. The terms includes and including do not exclude
matters not listed but do include matters that are in the same general class.
(n) Reconsideration means a request
by the employee to have a secondary
review by GSA of the existence and/or
amount of the debt, and/or the proposed offset schedule.
(o) Recoupment is a special method
for adjusting debts arising under the
same transaction or occurrence. For
example, obligations arising under the
same contract generally are subject to
recoupment.
(p) Taxpayer identifying number means
the identifying number described under
section 6109 of the Internal Revenue
Code of 1986 (26 U.S.C. 6109). For an individual, the taxpayer identifying
number is the individual’s social security number.
(q) Waiver means the cancellation, remission, forgiveness, or non-recovery
of a debt or debt-related charge as permitted or required by law.
[68 FR 68741, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–55.003 Antitrust,
fraud,
tax,
interagency claims, and claims over
$100,000 excluded.
(a) The standards in this part relating to compromise, suspension, and
termination of collection activity do
not apply to any debt based in whole or
in part on conduct in violation of the
antitrust laws or to any debt involving
fraud, the presentation of a false claim,
or misrepresentation on the part of the
debtor or any party having an interest
in the claim. The standards of this part
relating to the administrative collection of claims do apply, but only to the
extent authorized by the Department
of Justice (DOJ) in a particular case.
Upon identification of a claim based in
whole or in part on conduct in violation of the antitrust laws or any claim
involving fraud, the presentation of a
false claim, or misrepresentation on
the part of the debtor or any party having an interest in the claim, the General Services Administration (GSA)
will promptly refer the case to the GSA
Office of Inspector General (OIG). The
OIG has the responsibility for investigating or referring the matter, where
appropriate, to DOJ for action. At its
discretion, DOJ may return the claim
to GSA for further handling in accordance with the standards of this part.
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§ 105–55.004
41 CFR Ch. 105 (7–1–16 Edition)
(b) This part does not apply to tax
debts.
(c) This part does not apply to claims
between GSA and other Federal agencies.
(d) This part does not apply to claims
over $100,000.
§ 105–55.004 Compromise, waiver, or
disposition under other statutes not
precluded.
Nothing in this part precludes the
General Services Administration (GSA)
disposition of any claim under statutes
and implementing regulations other
than subchapter II of chapter 37 of
Title 31 of the United States Code
(Claims of the United States Government) and the standards in this part.
See, e.g., the Federal Medical Care Recovery Act, 42 U.S.C. 2651–2653, and applicable regulations, 28 CFR part 43. In
such cases, the laws and regulations
specifically applicable to claims collection activities of GSA generally take
precedence.
§ 105–55.005
Form of payment.
Claims may be paid in the form of
money or, when a contractual basis exists, the General Services Administration may demand the return of specific
property or the performance of specific
services.
§ 105–55.006 Subdivision of claims not
authorized.
Debts will not be subdivided to avoid
the monetary ceiling established by 31
U.S.C. 3711(a)(2). A debtor’s liability
arising from a particular transaction
or contract shall be considered a single
debt in determining whether the debt
is one of less than $100,000 (excluding
interest, penalties, and administrative
costs) or such higher amount as the Attorney General shall from time to time
prescribe for purposes of compromise,
suspension or termination of collection
activity.
§ 105–55.007 Required
proceedings.
administrative
The General Services Administration
is not required to omit, foreclose, or
duplicate administrative proceedings
required by contract or other laws or
regulations.
§ 105–55.008
No private rights created.
The standards in this part do not create any right or benefit, substantive or
procedural, enforceable at law or in equity by a party against the United
States, its agencies, its officers, or any
other person, nor shall the failure of
the General Services Administration to
comply with any of the provisions of
this part be available to any debtor as
a defense.
§ 105–55.009 Aggressive agency collection activity.
(a) The General Services Administration (GSA) will aggressively collect all
debts arising out of activities of, or referred or transferred for collection
services to, GSA. Collection activities
will be undertaken promptly, including
letters, telephone calls, electronic mail
(e-mail), and Internet inquiries, with
follow-up action taken as necessary.
(b) Debts referred or transferred to
Treasury, or Treasury-designated debt
collection centers under the authority
of 31 U.S.C. 3711(g), will be serviced,
collected, or compromised, or the collection action will be suspended or terminated, in accordance with the statutory requirements and authorities applicable to the collection of such debts.
(c) GSA will cooperate with other
agencies in their debt collection activities.
(d) GSA will consider referring debts
that are less than 180 days delinquent
to Treasury or to Treasury-designated
‘‘debt collection centers’’ to accomplish efficient, cost effective debt collection. Treasury is a debt collection
center, is authorized to designate other
Federal agencies as debt collection
centers based on their performance in
collecting delinquent debts, and may
withdraw such designations. Referrals
to debt collection centers shall be at
the discretion of, and for a time period
acceptable to, the Secretary. Referrals
may be for servicing, collection, compromise, suspension, or termination of
collection action.
(e) GSA will transfer to the Secretary any debt that has been delinquent for a period of 180 days or more
so the Secretary may take appropriate
action to collect the debt or terminate
collection action. See 31 CFR 285.12
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31
General Services Administration
§ 105–55.010
(Transfer of Debts to Treasury for Collection). This requirement does not
apply to any debt that—
(1) Is in litigation or foreclosure;
(2) Will be disposed of under an approved asset sale program;
(3) Has been referred to a private collection contractor for a period of time
acceptable to the Secretary;
(4) Is at a debt collection center for a
period of time acceptable to the Secretary (see paragraph (d) of this section);
(5) Will be collected under internal
offset procedures within three years
after the debt first became delinquent;
(6) Is exempt from this requirement
based on a determination by the Secretary that exemption for a certain
class of debt is in the best interest of
the United States. GSA may request
the Secretary to exempt specific classes of debts;
(7) Is in bankruptcy (see § 105–
55.010(h));
(8) Involves a deceased debtor;
(9) Is owed to GSA by a foreign government; or
(10) Is in an administrative appeals
process, until the process is complete
and the amount due is set.
(f) Agencies operating Treasury-designated debt collection centers are authorized to charge a fee for services
rendered regarding referred or transferred debts. The fee may be paid out of
amounts collected and will be added to
the debt as an administrative cost (see
§ 105–55.016).
§ 105–55.010 Demand for payment.
(a) Written demand, as described in
paragraph (b) of this section, will be
made promptly upon a debtor of the
United States in terms informing the
debtor of the consequences of failing to
cooperate with the General Services
Administration (GSA) to resolve the
debt. The specific content, timing, and
number of demand letters (usually no
more than three, thirty days apart)
will depend upon the type and amount
of the debt and the debtor’s response, if
any, to GSA’s letters, telephone calls,
electronic mail (e-mail) or Internet inquiries. In determining the timing of
the demand letter(s), GSA will give due
regard to the need to refer debts
promptly to the Department of Justice
for litigation, in accordance with § 105–
55.031. When necessary to protect the
Government’s interest (for example, to
prevent the running of a statute of limitations), written demand may be preceded by other appropriate actions
under this part, including immediate
referral for litigation.
(b) Demand letters will inform the
debtor—
(1) The basis and the amount of the
indebtedness and the rights, if any, the
debtor may have to seek review within
GSA (see § 105–55.011(e));
(2) The applicable standards for imposing any interest, penalties, or administrative costs (see § 105–55.016);
(3) The date by which payment
should be made to avoid late charges
(i.e., interest, penalties, and administrative costs) and enforced collection,
which generally will not be more than
30 days from the date the demand letter is mailed or hand-delivered; and
(4) The name, address, and phone
number of a contact person or office
within GSA.
(c) GSA will exercise care to ensure
that demand letters are mailed or
hand-delivered on the same day they
are dated. For the purposes of written
demand, notification by electronic
mail (e-mail) and/or Internet delivery
is considered a form of written demand
notice. There is no prescribed format
for demand letters. GSA will utilize demand letters and procedures that will
lead to the earliest practicable determination of whether the debt can be resolved administratively or must be referred for litigation.
(d) GSA may include in demand letters such items as the willingness to
discuss alternative methods of payment; Agency policies with respect to
the use of credit bureaus, debt collection centers, and collection agencies;
Agency remedies to enforce payment of
the debt (including assessment of interest, administrative costs and penalties,
administrative garnishment, the use of
collection agencies, Federal salary offset, tax refund offset, administrative
offset, and litigation); the requirement
that any debt delinquent for more than
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§ 105–55.011
41 CFR Ch. 105 (7–1–16 Edition)
180 days will be transferred to the Department of the Treasury for collection; and, depending on applicable statutory authority, the debtor’s entitlement to consideration of a waiver.
(e) GSA will respond promptly to
communications from debtors, within
30 days whenever feasible, and will advise debtors who dispute debts to furnish available evidence to support their
contentions.
(f) Prior to the initiation of the demand process or at any time during or
after completion of the demand process, if GSA determines to pursue, or is
required to pursue, offset, the procedures applicable to offset will be followed (see § 105–55.011). The availability
of funds or money for debt satisfaction
by offset and GSA’s determination to
pursue collection by offset will release
the Agency from the necessity of further compliance with paragraphs (a),
(b), (c), and (d) of this section.
(g) Prior to referring a debt for litigation, GSA will advise each person determined to be liable for the debt that,
unless the debt can be collected administratively, litigation may be initiated.
This notification will comply with Executive Order 12988 (3 CFR, 1996 Comp.
pp. 157–163) and may be given as part of
a demand letter under paragraph (b) of
this section or in a separate document.
(h) When GSA learns a bankruptcy
petition has been filed with respect to
a debtor, before proceeding with further collection action, the Agency will
ascertain the impact of the Bankruptcy Code on any pending or contemplated collection activities. Unless
the Agency determines the automatic
stay imposed at the time of filing pursuant to 11 U.S.C. 362 has been lifted or
is no longer in effect, in most cases collection activity against the debtor will
stop immediately.
(1) A proof of claim will be filed in
most cases with the bankruptcy court
or the Trustee. GSA will refer to the
provisions of 11 U.S.C. 106 relating to
the consequences on sovereign immunity of filing a proof of claim.
(2) If GSA is a secured creditor, it
may seek relief from the automatic
stay regarding its security, subject to
the provisions and requirements of 11
U.S.C. 362.
(3) Offset is stayed in most cases by
the automatic stay. However, GSA will
determine whether its payments to the
debtor and payments of other agencies
available for offset may be frozen by
the Agency until relief from the automatic stay can be obtained from the
bankruptcy court. GSA also will determine whether recoupment is available.
§ 105–55.011 Collection by administrative offset.
(a) Scope. (1) The term ‘‘administrative offset’’ has the meaning provided
in 31 U.S.C. 3701(a)(1).
(2) This section does not apply to—
(i) Debts arising under the Social Security Act, except as provided in 42
U.S.C. 404;
(ii) Payments made under the Social
Security Act, except as provided for in
31 U.S.C. 3716(c) (see 31 CFR 285.4, Federal Benefit Offset);
(iii) Debts arising under, or payments
made under, the Internal Revenue Code
(see 31 CFR 285.2, Tax Refund Offset) or
the tariff laws of the United States;
(iv) Offsets against Federal salaries
to the extent these standards are inconsistent with regulations published
to implement such offsets under 5
U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR
part 550, subpart K, and 31 CFR 285.7,
Federal Salary Offset);
(v) Offsets under 31 U.S.C. 3728
against a judgment obtained by a debtor against the United States;
(vi) Offsets or recoupments under
common law, State law, or Federal
statutes specifically prohibiting offsets
or recoupments of particular types of
debts; or
(vii) Offsets in the course of judicial
proceedings, including bankruptcy.
(3) Unless otherwise provided for by
contract or law, debts or payments
that are not subject to administrative
offset under 31 U.S.C. 3716 may be collected by administrative offset under
the common law or other applicable
statutory authority.
(4) Unless otherwise provided by law,
administrative offset of payments
under the authority of 31 U.S.C. 3716 to
collect a debt may not be conducted
more than 10 years after the General
Services
Administration’s
(GSA’s)
right to collect the debt first accrued,
unless facts material to GSA’s right to
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General Services Administration
§ 105–55.011
collect the debt were not known and
could not reasonably have been known
by the official or officials of GSA who
were charged with the responsibility to
discover and collect such debts. This
limitation does not apply to debts reduced to a judgment.
(5) In bankruptcy cases, GSA will ascertain the impact of the Bankruptcy
Code, particularly 11 U.S.C. 106, 362,
and 553, on pending or contemplated
collections by offset.
(b) Mandatory centralized administrative offset. (1) GSA is required to refer
past due, legally enforceable non-tax
debts that are over 180 days delinquent
to the Secretary for collection by centralized administrative offset. Debts
that are less than 180 days delinquent
also may be referred to the Secretary
for this purpose. See paragraph (b)(5) of
this section for debt certification requirements.
(2) The names and taxpayer identifying numbers (TINs) of debtors who
owe debts referred to the Secretary as
described in paragraph (b)(1) of this
section will be compared to the names
and TINs on payments to be made by
Federal disbursing officials. Federal
disbursing officials include disbursing
officials of the Department of the
Treasury, the Department of Defense,
the United States Postal Service, other
Government corporations, and disbursing officials of the United States
designated by the Secretary. When the
name and TIN of a debtor match the
name and TIN of a payee and all other
requirements for offset have been met,
the payment will be offset to satisfy
the debt.
(3) Federal disbursing officials will
notify the debtor/payee in writing that
an offset has occurred to satisfy, in
part or in full, a past due, legally enforceable delinquent debt. The notice
will include a description of the type
and amount of the payment from which
the offset was taken, the amount of offset that was taken, the identity of GSA
as the creditor agency requesting the
offset, and a contact point within GSA
who will respond to questions regarding the offset.
(4)(i) Offsets may be initiated only
after the debtor—
(A) Has been sent written notice of
the type and amount of the debt, the
intention of GSA to use administrative
offset to collect the debt, and an explanation of the debtor’s rights under 31
U.S.C. 3716(c)(7); and
(B) The debtor has been given—
(1) The opportunity to inspect and
copy Agency records related to the
debt;
(2) The opportunity for a review
within GSA of the determination of indebtedness (see paragraph (e) of this
section); and
(3) The opportunity to make a written agreement to repay the debt.
(ii) The procedures set forth in paragraph (b)(4)(i) of this section may be
omitted when—
(A) The offset is in the nature of a
recoupment;
(B) The debt arises under a contract
as set forth in Cecile Industries, Inc. v.
Cheney, 995 F.2d 1052 (Fed. Cir. 1993)
(notice and other procedural protections set forth in 31 U.S.C. 3716(a) do
not supplant or restrict established
procedures for contractual offsets accommodated by the Contracts Disputes
Act); or
(C) In the case of non-centralized administrative offsets conducted under
paragraph (c) of this section, GSA first
learns of the existence of the amount
owed by the debtor when there is insufficient time before payment would be
made to the debtor/payee to allow for
prior notice and an opportunity for review. When prior notice and an opportunity for review are omitted, GSA will
give the debtor such notice and an opportunity for review as soon as practicable and will promptly refund any
money ultimately found not to have
been owed to the Government.
(iii) When GSA previously has given
a debtor any of the required notice and
review opportunities with respect to a
particular debt (see, e.g., § 105–55.010),
the Agency need not duplicate such notice and review opportunities before
administrative offset may be initiated.
(5) When referring delinquent debts
to the Secretary, GSA will certify, in a
form acceptable to the Secretary,
that—
(i) The debt(s) is (are) past due and
legally enforceable; and
(ii) GSA has complied with all due
process requirements under 31 U.S.C.
3716(a) and Agency regulations.
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§ 105–55.011
41 CFR Ch. 105 (7–1–16 Edition)
(6) Payments that are prohibited by
law from being offset are exempt from
centralized administrative offset. The
Secretary shall exempt payments
under means-tested programs from centralized administrative offset when requested in writing by the Administrator. Also, the Secretary may exempt
other classes of payments from centralized offset upon the written request of
the Administrator.
(7) Benefit payments made under the
Social Security Act (42 U.S.C. 301 et
seq.), part B of the Black Lung Benefits
Act (30 U.S.C. 921 et seq.), and any law
administered by the Railroad Retirement Board (other than tier 2 benefits),
may be offset only in accordance with
Treasury regulations, issued in consultation with the Social Security Administration, the Railroad Retirement
Board, and the Office of Management
and Budget. See 31 CFR 285.4.
(8) In accordance with 31 U.S.C.
3716(f), the Secretary may waive the
provisions of the Computer Matching
and Privacy Protection Act of 1988 concerning matching agreements and postmatch notification and verification (5
U.S.C. 552a(o) and (p)) for centralized
administrative offset upon receipt of a
certification from GSA that the due
process requirements enumerated in 31
U.S.C. 3716(a) have been met. The certification of a debt in accordance with
paragraph (b)(5) of this section will satisfy this requirement. If such a waiver
is granted, only the Data Integrity
Board of the Department of the Treasury is required to oversee any matching activities, in accordance with 31
U.S.C. 3716(g). This waiver authority
does not apply to offsets conducted
under paragraphs (c) and (d) of this section.
(c) Non-centralized administrative offset. (1) Generally, non-centralized administrative offsets are ad hoc case-bycase offsets that GSA conducts, at the
Agency’s discretion, internally or in
cooperation with another agency certifying or authorizing payments to the
debtor. Unless otherwise prohibited by
law, when centralized administrative
offset is not available or appropriate,
past due, legally enforceable non-tax
delinquent debts may be collected
through non-centralized administrative
offset. In these cases, GSA may make a
request directly to a payment authorizing agency to offset a payment due a
debtor to collect a delinquent debt. For
example, it may be appropriate for
GSA to request the Office of Personnel
Management (OPM) offset a Federal
employee’s lump sum payment upon
leaving Government service to satisfy
an unpaid advance.
(2) Such offsets will occur only
after—
(i) The debtor has been provided due
process as set forth in paragraph (b)(4)
of this section; and
(ii) The payment authorizing agency
has received written certification from
GSA that the debtor owes the past due,
legally enforceable delinquent debt in
the amount stated, and that GSA has
fully complied with its regulations
concerning administrative offset.
(3) Payment authorizing agencies
will comply with offset requests by
GSA to collect debts owed to the
United States, unless the offset would
not be in the best interests of the
United States with respect to the program of the payment authorizing agency, or would otherwise be contrary to
law.
(4) When collecting multiple debts by
non-centralized administrative offset,
GSA will apply the recovered amounts
to those debts in accordance with the
best interests of the United States, as
determined by the facts and circumstances of the particular case, particularly the applicable statute of limitations.
(d) Requests to OPM to offset a debtor’s
anticipated or future benefit payments
under the Civil Service Retirement and
Disability Fund. Upon providing OPM
written certification that a debtor has
been afforded the procedures provided
in paragraph (b)(4) of this section, GSA
may request OPM to offset a debtor’s
anticipated or future benefit payments
under the Civil Service Retirement and
Disability Fund (Fund) in accordance
with regulations codified at 5 CFR
831.1801 through 831.1808. Upon receipt
of such a request, OPM will identify
and ‘‘flag’’ a debtor’s account in anticipation of the time when the debtor requests, or becomes eligible to receive,
payments from the Fund. This will satisfy any requirement that offset be initiated prior to the expiration of the
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31
General Services Administration
§ 105–55.012
time limitations referenced in paragraph (a)(4) of this section.
(e) Review requirements. (1) A debtor
may seek review of a debt by sending a
signed and dated petition for review to
the official named in the demand letter. A copy of the petition must also be
sent to the Civilian Board of Contract
Appeals (CBCA) at 1800 F Street NW.,
Washington, DC 20405.
(2) For purposes of this section,
whenever GSA is required to afford a
debtor a review within the Agency, the
hearing official will provide the debtor
with a reasonable opportunity for an
oral hearing when the debtor requests
reconsideration of the debt and the
hearing official determines that the
question of the indebtedness cannot be
resolved by review of the documentary
evidence; for example, when the validity of the debt turns on an issue of
credibility or veracity.
(3) Witnesses will be asked to testify
under oath or affirmation, and a written transcript of the hearing will be
kept and made available to either
party in the event of an appeal under
the Administrative Procedure Act, 5
U.S.C. 701–706. Arrangements for the
taking of the transcript will be made
by the hearing official, and all charges
associated with the taking of the transcript will be the responsibility of
GSA.
(4) In those cases when an oral hearing is not required by this section, the
hearing official will accord the debtor
a ‘‘paper hearing,’’ that is, a determination of the request for reconsideration based upon a review of the written record.
(5) Hearings will be conducted by a
Board Judge of the CBCA. GSA must
provide proof that a valid non-tax debt
exists, and the debtor must provide evidence that no debt exists or that the
amount of the debt is incorrect.
(6) If an oral hearing is provided, the
debtor may choose to have it conducted in the hearing official’s office
located at 1800 M Street NW., 6th
Floor, Washington, DC 20036, at another location designated by the hearing official, or may choose a hearing by
telephone. All personal and travel expenses incurred by the debtor in connection with an in-person hearing will
be borne by the debtor. All telephonic
charges incurred during a hearing will
be the responsibility of GSA.
(7) If the debtor is an employee of
GSA, the employee may represent himself or herself or may be represented by
another person of his or her choice at
the hearing. GSA will not compensate
the employee for representation expenses, including hourly fees for attorneys, travel expenses, and costs for reproducing documents.
(8) A written decision will be issued
by the hearing official no later than 60
days from the date the petition for review is received by GSA. The decision
will state the—
(i) Facts supporting the nature and
origin of the debt;
(ii) Hearing officials analysis, findings, and conclusions as to the debtor’s
and/or GSA’s grounds;
(iii) Amount and validity of the debt;
and
(iv) Repayment schedule, if applicable.
(9) The hearing official’s decision will
be the final Agency action for the purposes of judicial review under the Administrative Procedure Act (5 U.S.C.
701 et seq.).
(f) Waiver requirements. (1) Under certain circumstances, a waiver of a claim
against an employee of GSA arising
out of an erroneous payment of pay, allowances, travel, transportation, or relocation expenses and allowances may
be granted in whole or in part.
(2) GSA procedures for waiving a
claim of erroneous payment of pay and
allowances can be found in GSA Order
CFO 4200.1, ‘‘Waiver of Claims for Overpayment of Pay and Allowances’’.
(3) GSA will follow the procedures of
5 U.S.C. 5584 when considering a request for waiver of erroneous payment
of travel, transportation, or relocation
expenses and allowances.
[68 FR 68741, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–55.012 Contracting with private
collection contractors and with entities that locate and recover unclaimed assets.
(a) Subject to the provisions of paragraph (b) of this section, the General
Services Administration (GSA) may
contract with private collection contractors, as defined in 31 U.S.C. 3701(f),
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31
§ 105–55.013
41 CFR Ch. 105 (7–1–16 Edition)
to recover delinquent debts provided
that—
(1) GSA retain the authority to resolve disputes, compromise debts, suspend or terminate collection activity,
and refer debts for litigation;
(2) The private collection contractor
is not allowed to offer the debtor, as an
incentive for payment, the opportunity
to pay the debt less the private collection contractor’s fee unless GSA has
granted such authority prior to the
offer;
(3) The contract provides that the
private collection contractor is subject
to the Privacy Act of 1974 to the extent
specified in 5 U.S.C. 552a(m), and to applicable Federal and state laws and
regulations pertaining to debt collection practices, including but not limited to the Fair Debt Collection Practices Act, 15 U.S.C. 1692; and
(4) The private collection contractor
is required to account for all amounts
collected.
(b) GSA will use Governmentwide
debt collection contracts to obtain
debt collection services provided by
private collection contractors. However, GSA may refer debts to private
collection contractors pursuant to a
contract between the Agency and the
private collection contractor only if
such debts are not subject to the requirement to transfer debts to Treasury for debt collection. See 31 U.S.C.
3711(g); 31 CFR 285.12(e).
(c) GSA may fund private collection
contractor contracts in accordance
with 31 U.S.C. 3718(b), or as otherwise
permitted by law.
(d) GSA may enter into contracts for
locating and recovering assets of the
United States, such as unclaimed assets.
(e) GSA may enter into contracts for
debtor asset and income search reports.
In accordance with 31 U.S.C. 3718(b),
such contracts may provide that the
fee a contractor charges the Agency for
such services may be payable from the
amounts recovered, unless otherwise
prohibited by statute.
§ 105–55.013 Suspension or revocation
of eligibility for loans and loan
guaranties, licenses, permits, or
privileges.
(a) Unless waived by the Administrator, the General Services Administration (GSA) will not extend financial
assistance in the form of a loan, loan
guarantee, or loan insurance to any
person delinquent on a non-tax debt
owed to a Federal agency. This prohibition does not apply to disaster loans.
The authority to waive the application
of this section may be delegated to the
Chief Financial Officer and re-delegated only to the Deputy Chief Financial Officer of GSA. GSA may extend
credit after the delinquency has been
resolved. The Secretary may exempt
classes of debts from this prohibition
and has prescribed standards defining
when a ‘‘delinquency’’ is ‘‘resolved’’ for
purposes of this prohibition. See 31
CFR 285.13.
(b) In non-bankruptcy cases, GSA,
when seeking the collection of statutory penalties, forfeitures, or other
types of claims, will consider the suspension or revocation of licenses, permits, or other privileges for any inexcusable or willful failure of a debtor to
pay such a debt in accordance with
GSA regulations or governing procedures. The debtor will be advised in
GSA’s written demand for payment of
the Agency’s ability to suspend or revoke licenses, permits, or privileges. If
GSA makes, guarantees, insures, acquires, or participates in loans, the
Agency will consider suspending or disqualifying any lender, contractor, or
broker from doing further business
with the Agency or engaging in programs sponsored by the Agency if such
lender, contractor, or broker fails to
pay its debts to the Government within
a reasonable time or if such lender,
contractor, or broker has been suspended, debarred, or disqualified from
participation in a program or activity
by another Federal agency. The failure
of any surety to honor its obligations
in accordance with 31 U.S.C. 9305 will
be reported to the Treasury. The Treasury will forward notification to all interested agencies that a surety’s certificate of authority to do business
with the Government has been revoked
by the Treasury.
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General Services Administration
§ 105–55.016
(c) The suspension or revocation of licenses, permits, or privileges also may
extend to GSA programs or activities
administered by the states on behalf of
GSA, to the extent they affect GSA’s
ability to collect money or funds owed
by debtors.
(d) In bankruptcy cases, before advising the debtor of GSA’s intention to
suspend or revoke licenses, permits, or
privileges, the Agency will ascertain
the impact of the Bankruptcy Code,
particularly 11 U.S.C. 362 and 525,
which may restrict such action.
§ 105–55.014 Liquidation of collateral.
(a) The General Services Administration (GSA) will liquidate security or
collateral through the exercise of a
power of sale in the security instrument or a non-judicial foreclosure, and
apply the proceeds to the applicable
debt(s), if the debtor fails to pay the
debt(s) within a reasonable time after
demand and if such action is in the
best interest of the United States. Collection from other sources, including
liquidation of security or collateral, is
not a prerequisite to requiring payment by a surety, insurer, or guarantor
unless such action is expressly required
by statute or contract.
(b) When GSA learns a bankruptcy
petition has been filed with respect to
a debtor, the Agency will ascertain the
impact of the Bankruptcy Code, including, but not limited to, 11 U.S.C. 362, to
determine the applicability of the
automatic stay and the procedures for
obtaining relief from such stay prior to
proceeding under paragraph (a) of this
section.
§ 105–55.015 Collection in installments.
(a) Whenever feasible, the General
Services Administration (GSA) will
collect the total amount of a debt in
one lump sum. If a debtor is financially
unable to pay a debt in one lump sum,
GSA may accept payment in regular
installments. GSA may obtain financial statements from debtors who represent they are unable to pay in one
lump sum and independently verify
such representations whenever possible
(see § 105–55.020(g)). When GSA agrees
to accept payments in regular installments, a legally enforceable written
agreement from the debtor will be ob-
tained specifying all of the terms of the
arrangement and containing a provision accelerating the debt in the event
of default. If the debtor’s financial
statement discloses the ownership of
assets which are free and clear of liens
or security interests, or assets in which
the debtor owns an equity, the debtor
may be asked to secure the payment of
an installment note by executing a Security Agreement and Financing Statement transferring to the United States
a security interest in the asset until
the debt is paid.
(b) The size and frequency of installment payments will bear a reasonable
relation to the size of the debt and the
debtor’s ability to pay. The installment payments will be sufficient in
size and frequency to liquidate the debt
in three years or less, unless circumstances warrant a longer period.
(c) Security for deferred payments
may be obtained in appropriate cases.
GSA may accept installment payments
notwithstanding the refusal of the
debtor to execute a written agreement
or to give security, at the Agency’s option.
§ 105–55.016 Interest, penalties, and
administrative costs.
(a) Except as provided in paragraphs
(g), (h), and (i) of this section, the General Services Administration (GSA)
will charge interest, penalties, and administrative costs on debts owed to the
United States pursuant to 31 U.S.C.
3717. GSA will send by U.S. mail, overnight delivery service, or hand-delivery
a written notice to the debtor, at the
debtor’s most recent address available
to the Agency, explaining the Agency’s
requirements concerning these charges,
except where these requirements are
included in a contractual or repayment
agreement. These charges will continue
to accrue until the debt is paid in full
or otherwise resolved through compromise, termination, or waiver of the
charges.
(b) GSA will charge interest on debts
owed the United States as follows:
(1) Interest will accrue from the date
of delinquency, or as otherwise provided by law.
(2) Unless otherwise established in a
contract, repayment agreement, or by
statute, the rate of interest charged
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§ 105–55.017
41 CFR Ch. 105 (7–1–16 Edition)
will be the rate established annually by
the Secretary in accordance with 31
U.S.C. 3717(a)(1). Pursuant to 31 U.S.C.
3717, GSA may charge a higher rate of
interest if it is reasonably determined
that a higher rate is necessary to protect the rights of the United States.
GSA will document the reason(s) for a
determination that the higher rate is
necessary.
(3) The rate of interest, as initially
charged, will remain fixed for the duration of the indebtedness. When a debtor
defaults on a repayment agreement and
seeks to enter into a new agreement,
GSA may require payment of interest
at a new rate that reflects the Current
Value of Funds Rate (CVFR) at the
time the new agreement is executed.
Interest will not be compounded, that
is, interest will not be charged on interest, penalties, or administrative
costs required by this section. If a
debtor defaults on a previous repayment agreement, charges that accrued
but were not collected under the defaulted agreement will be added to the
principal under the new repayment
agreement.
(c) GSA will assess administrative
costs incurred for processing and handling delinquent debts. The calculation
of administrative costs will be based on
actual costs incurred or upon estimated costs as determined by the
Agency.
(d) Unless otherwise established in a
contract, repayment agreement, or by
statute, GSA will charge a penalty,
pursuant to 31 U.S.C. 3717(e)(2), not to
exceed six percent a year on the
amount due on a debt that is delinquent for more than 90 days. This
charge will accrue from the date of delinquency.
(e) GSA may increase an ‘‘administrative debt’’ by the cost of living adjustment in lieu of charging interest
and penalties under this section. ‘‘Administrative debt’’ includes, but is not
limited to, a debt based on fines, penalties, and overpayments, but does not
include a debt based on the extension
of Government credit, such as those
arising from loans and loan guaranties.
The cost of living adjustment is the
percentage by which the Consumer
Price Index for the month of June of
the calendar year preceding the adjust-
ment exceeds the Consumer Price
Index for the month of June of the calendar year in which the debt was determined or last adjusted. Increases to administrative debts will be computed
annually. GSA will use this alternative
only when there is a legitimate reason
to do so, such as when calculating interest and penalties on a debt would be
extremely difficult because of the age
of the debt.
(f) When a debt is paid in partial or
installment payments, amounts received by GSA will be applied first to
outstanding penalties, second to administrative charges, third to interest,
and last to principal.
(g) GSA will waive the collection of
interest, penalty and administrative
charges imposed pursuant to this section on the portion of the debt that is
paid within 30 days after the date on
which interest began to accrue. GSA
may extend this 30-day period on a
case-by-case basis. In addition, GSA
may waive interest, penalties, and administrative costs charged under this
section, in whole or in part, without regard to the amount of the debt, either
under the criteria set forth in these
standards for the compromise of debts,
or if the Agency determines that collection of these charges resulted from
Agency error, is against equity and
good conscience, or is not in the best
interest of the United States.
(h) Unless a statute or regulation
specifically prohibits collection, interest, penalties and administrative costs
will continue to accrue for periods during which collection activity has been
suspended pending Agency review or
waiver consideration.
(i) GSA is authorized to impose interest and related charges on debts not
subject to 31 U.S.C. 3717, in accordance
with the common law.
§ 105–55.017 Use and
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(a) When attempting to locate a debtor in order to collect or compromise a
debt under this part or other authority,
the General Services Administration
(GSA) may send a request to the Secretary (or designee) to obtain a debtor’s mailing address from the records
of the Internal Revenue Service.
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General Services Administration
§ 105–55.020
(b) GSA is authorized to use mailing
addresses obtained under paragraph (a)
of this section to enforce collection of
a delinquent debt and may disclose
such mailing addresses to other agencies and to collection agencies for collection purposes.
§ 105–55.018 Exemptions.
(a) The preceding sections of this
part, to the extent they reflect remedies or procedures prescribed by the
Debt Collection Act of 1982 and the
Debt Collection Improvement Act of
1996, such as administrative offset, use
of credit bureaus, contracting for collection agencies, and interest and related charges, do not apply to debts
arising under, or payments made
under, the Internal Revenue Code of
1986, as amended (26 U.S.C. 1 et seq.);
the Social Security Act (42 U.S.C. 301 et
seq.), except to the extent provided
under 42 U.S.C. 404 and 31 U.S.C. 3716(c);
or the tariff laws of the United States.
These remedies and procedures, however, may be authorized with respect to
debts that are exempt from the Debt
Collection Act of 1982 and the Debt Collection Improvement Act of 1996, to the
extent they are authorized under some
other statute or the common law.
(b) Claims arising from the audit of
transportation accounts pursuant to 31
U.S.C. 3726 will be determined, collected, compromised, terminated or
settled in accordance with regulation
published under the authority of 31
U.S.C. 3726 (see 41 CFR part 101–41, administered by the Director, Office of
Transportation Audits) and are otherwise exempted from this part.
§ 105–55.019 Compromise of claims.
(a) The standards set forth in this
section apply to the compromise of
debts pursuant to 31 U.S.C. 3711. The
General Services Administration (GSA)
may exercise such compromise authority for debts arising out of activities
of, or referred or transferred for collection services to, the Agency when the
amount of the debt then due, exclusive
of interest, penalties, and administrative costs, does not exceed $100,000 or
any higher amount authorized by the
Attorney General. The Administrator
may designate other GSA officials to
exercise the authorities in this section.
(b) Unless otherwise provided by law,
when the principal balance of a debt,
exclusive of interest, penalties, and administrative costs, exceeds $100,000 or
any higher amount authorized by the
Attorney General, the authority to accept the compromise rests with the Department of Justice. GSA will evaluate
the compromise offer, using the factors
set forth in § 105–55.020. If an offer to
compromise any debt in excess of
$100,000 is acceptable to the Agency,
GSA will refer the debt to the Civil Division or other appropriate litigating
division in the Department of Justice
using a Claims Collection Litigation
Report. The referral will include appropriate financial information and a recommendation for the acceptance of the
compromise offer. Justice Department
approval is not required if GSA rejects
a compromise offer.
§ 105–55.020 Bases for compromise.
(a) The General Services Administration (GSA) may compromise a debt if
the full amount cannot be collected because—
(1) The debtor is unable to pay the
full amount in a reasonable time, as
verified through credit reports or other
financial information.
(2) GSA is unable to collect the debt
in full within a reasonable time by enforced collection proceedings.
(3) The cost of collecting the debt
does not justify the enforced collection
of the full amount.
(4) There is significant doubt concerning the Government’s ability to
prove its case in court.
(b) In determining the debtor’s inability to pay, GSA will consider relevant factors such as the following:
(1) Age and health of the debtor.
(2) Present and potential income.
(3) Inheritance prospects.
(4) The possibility that assets have
been concealed or improperly transferred by the debtor.
(5) The availability of assets or income that may be realized by enforced
collection proceedings.
(c) GSA will verify the debtor’s claim
of inability to pay by using a credit report and other financial information as
provided in paragraph (g) of this section. GSA will consider the applicable
exemptions available to the debtor
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§ 105–55.021
41 CFR Ch. 105 (7–1–16 Edition)
under State and Federal law in determining the Government’s ability to enforce collection. GSA also may consider uncertainty as to the price that
collateral or other property will bring
at a forced sale in determining the
Government’s ability to enforce collection. A compromise effected under this
section will be for an amount that
bears a reasonable relation to the
amount that can be recovered by enforced collection procedures, with regard to the exemptions available to the
debtor and the time that collection
will take.
(d) If there is significant 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 because of a
bona fide dispute as to the facts, then
the amount accepted in compromise of
such cases will fairly reflect the probabilities of successful prosecution to
judgment, with due regard given to the
availability of witnesses and other evidentiary support for the Government’s
claim. In determining the litigative
risks involved, GSA will consider the
probable amount of court costs and attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412 that
may be imposed against the Government if it is unsuccessful in litigation.
(e) GSA may compromise a debt if
the cost of collecting the debt 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, with consideration given to the
time it will take to effect collection.
Collection costs may be a substantial
factor in the settlement of small debts.
In determining whether the cost of collection justifies enforced collection of
the full amount, GSA will consider
whether continued collection of the
debt, regardless of cost, is necessary to
further an enforcement principle, such
as the Government’s willingness to
pursue aggressively defaulting and uncooperative debtors.
(f) GSA generally will not accept
compromises payable in installments.
This is not an advantageous form of
compromise in terms of time and administrative expense. If, however, pay-
ment of a compromise in installments
is necessary, GSA will obtain a legally
enforceable written agreement providing that, in the event of default, the
full original principal balance of the
debt prior to compromise, less sums
paid thereon, is reinstated. Whenever
possible, GSA will obtain security for
repayment in the manner set forth in
§ 105–55.015.
(g) To assess the merits of a compromise offer based in whole or in part
on the debtor’s inability to pay the full
amount of a debt within a reasonable
time, GSA may obtain a current financial statement from the debtor, executed under penalty of perjury, showing the debtor’s assets, liabilities, income and expenses. GSA also may obtain credit reports or other financial
information to assess compromise offers. GSA may use their own financial
information form or may request suitable forms from the Department of
Justice or the local United States Attorney’s Office.
§ 105–55.021 Enforcement policy.
Pursuant to this section, the General
Services Administration may compromise statutory penalties, forfeitures, or claims established as an aid to
enforcement and to compel compliance, if the Agency’s enforcement policy in terms of deterrence and securing
compliance, present and future, will be
adequately served by the Agency’s acceptance of the sum to be agreed upon.
§ 105–55.022 Joint and several liability.
(a) When two or more debtors are
jointly and severally liable, the General Services Administration (GSA)
may pursue collection activity against
all debtors, as appropriate. GSA will
not attempt to allocate the burden of
payment between the debtors but will
proceed to liquidate the indebtedness
as quickly as possible.
(b) GSA will ensure that a compromise agreement with one debtor
does not release the Agency’s claim
against the remaining debtors. The
amount of a compromise with one debtor will not be considered a precedent or
binding in determining the amount
that will be required from other debtors jointly and severally liable on the
claim.
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General Services Administration
§ 105–55.027
§ 105–55.023 Further review of compromise offers.
If the General Services Administration (GSA) is uncertain whether to accept a firm, written, substantive compromise offer on a debt that is within
the Agency’s delegated compromise authority, it may refer the offer to the
Civil Division or other appropriate litigating division in the Department of
Justice (DOJ), using a Claims Collection Litigation Report accompanied by
supporting data and particulars concerning the debt. DOJ may act upon
such an offer or return it to GSA with
instructions or advice.
§ 105–55.024 Consideration of tax consequences to the Government.
In negotiating a compromise, the
General Services Administration (GSA)
may consider the tax consequences to
the Government. In particular, GSA
may consider requiring a waiver of taxloss-carry-forward and tax-loss-carryback rights of the debtor. For information on discharge of indebtedness reporting requirements see § 105–55.030.
§ 105–55.025 Mutual releases of the
debtor and the Government.
In all appropriate instances, a compromise that is accepted by the General Services Administration may be
implemented by means of a mutual release, in which the debtor is released
from further non-tax liability on the
compromised debt in consideration of
payment in full of the compromise
amount and the Government and its officials, past and present, are released
and discharged from any and all claims
and causes of action arising from the
same transaction that the debtor may
have. In the event a mutual release is
not executed when a debt is compromised, unless prohibited by law, the
debtor is still deemed to have waived
any and all claims and causes of action
against the Government and its officials related to the transaction giving
rise to the compromised debt.
§ 105–55.026 Suspending
or
terminating collection activity.
(a) The standards set forth in §§ 105–
55.027 and 105–55.028 apply to the suspension or termination of collection
activity pursuant to 31 U.S.C. 3711 on
debts that do not exceed $100,000, or
such other amount as the Attorney
General may direct, exclusive of interest, penalties, and administrative
costs, after deducting the amount of
partial payments or collections, if any.
Prior to referring a debt to the Department of Justice (DOJ) for litigation,
the General Services Administration
(GSA) may suspend or terminate collection under this part with respect to
debts arising out of activities of, or referred or transferred for collection
services to, the Agency.
(b) If, after deducting the amount of
any partial payments or collections,
the principal amount of a debt exceeds
$100,000, or such other amount as the
Attorney General may direct, exclusive
of interest, penalties, and administrative costs, the authority to suspend or
terminate rests solely with DOJ. If
GSA believes suspension or termination of any debt in excess of $100,000
may be appropriate, the Agency will
refer the debt to the Civil Division or
other appropriate litigating division in
DOJ, using the Claims Collection Litigation Report. The referral will specify
the reasons for the Agency’s recommendation. If, prior to referral to
DOJ, GSA determines a debt is plainly
erroneous or clearly without legal
merit, the Agency may terminate collection activity regardless of the
amount involved without obtaining
DOJ concurrence.
§ 105–55.027 Suspension of collection
activity.
(a) The General Services Administration (GSA) may suspend collection activity on a debt when—
(1) The Agency cannot locate the
debtor;
(2) The debtor’s financial condition is
expected to improve; or
(3) The debtor has requested a waiver
or review of the debt.
(b) Based on the current financial
condition of the debtor, GSA may suspend collection activity on a debt when
the debtor’s future prospects justify retention of the debt for periodic review
and collection activity and—
(1) The applicable statute of limitations has not expired; or
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§ 105–55.028
41 CFR Ch. 105 (7–1–16 Edition)
(2) Future collection can be effected
by administrative offset, notwithstanding the expiration of the applicable statute of limitations for litigation
of claims, with due regard to the 10year limitation for administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
(3) The debtor agrees to pay interest
on the amount of the debt on which
collection will be suspended, and such
suspension is likely to enhance the
debtor’s ability to pay the full amount
of the principal of the debt with interest at a later date.
(c)(1) GSA will suspend collection activity during the time required for consideration of the debtor’s request for
waiver or administrative review of the
debt if the statute under which the request is sought prohibits the Agency
from collecting the debt during that
time.
(2) If the statute under which the request is sought does not prohibit collection activity pending consideration
of the request, GSA will use discretion,
on a case-by-case basis, to suspend collection. Further, GSA ordinarily will
suspend collection action upon a request for waiver or review if the Agency is prohibited by statute or regulation from issuing a refund of amounts
collected prior to Agency consideration
of the debtor’s request. However, GSA
will not suspend collection when the
Agency determines the request for
waiver or review is frivolous or was
made primarily to delay collection.
(d) When GSA learns a bankruptcy
petition has been filed with respect to
a debtor, in most cases the collection
activity on a debt will be suspended,
pursuant to the provisions of 11 U.S.C.
362, 1201, and 1301, unless the Agency
can clearly establish the automatic
stay has been lifted or is no longer in
effect. GSA will, if legally permitted,
take the necessary legal steps to ensure no funds or money are paid by the
Agency to the debtor until relief from
the automatic stay is obtained.
§ 105–55.028 Termination of collection
activity.
(a) The General Services Administration (GSA) may terminate collection
activity when—
(1) The Agency is unable to collect
any substantial amount through its
own efforts or through the efforts of
others;
(2) The Agency is unable to locate
the debtor;
(3) Costs of collection are anticipated
to exceed the amount recoverable;
(4) The debt is legally without merit
or enforcement of the debt is barred by
any applicable statute of limitations;
(5) The debt cannot be substantiated;
or
(6) The debt against the debtor has
been discharged in bankruptcy.
(b) Before terminating collection activity, GSA will pursue all appropriate
means of collection and determine,
based upon the results of the collection
activity, that the debt is uncollectible.
Termination of collection activity
ceases active collection of the debt.
The termination of collection activity
does not preclude GSA from retaining a
record of the account for purposes of—
(1) Selling the debt, if the Secretary
determines that such sale is in the best
interests of the United States;
(2) Pursuing collection at a subsequent date in the event there is a
change in the debtor’s status or a new
collection tool becomes available;
(3) Offsetting against future income
or assets not available at the time of
termination of collection activity; or
(4) Screening future applicants of
loans and loan guaranties, licenses,
permits, or privileges for prior indebtedness.
(c) Generally, GSA will terminate
collection activity on a debt that has
been discharged in bankruptcy, regardless of the amount. GSA may continue
collection activity, however, subject to
the provisions of the Bankruptcy Code,
for any payments provided under a
plan of reorganization. Offset and
recoupment rights may survive the discharge of the debtor in bankruptcy
and, under some circumstances, claims
also may survive the discharge. For example, the claims of GSA that it is a
known creditor of a debtor may survive
a discharge if the Agency did not receive formal notice of the proceedings.
§ 105–55.029 Exception to termination.
When a significant enforcement policy is involved, or recovery of a judgment is a prerequisite to the imposition of administrative sanctions, the
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General Services Administration
§ 105–55.031
General Services Administration may
refer debts for litigation even though
termination of collection activity may
otherwise be appropriate.
§ 105–55.030 Discharge of indebtedness; reporting requirements.
(a) Before discharging a delinquent
debt (also referred to as a close out of
the debt), the General Services Administration (GSA) will take all appropriate steps to collect the debt in accordance with 31 U.S.C. 3711(g), including, as applicable, administrative offset, tax refund offset, Federal salary
offset, referral to Treasury, Treasurydesignated debt collection centers or
private collection contractors, credit
bureau reporting, wage garnishment,
litigation, and foreclosure. Discharge
of indebtedness is distinct from termination or suspension of collection activity and is governed by the Internal
Revenue Code. When collection action
on a debt is suspended or terminated,
the debt remains delinquent and further collection action may be pursued
at a later date in accordance with the
standards set forth in this part. When
GSA discharges a debt in full or in
part, further collection action is prohibited. Therefore, GSA will make the
determination that collection action is
no longer warranted before discharging
a debt. Before discharging a debt, GSA
will terminate debt collection action.
(b) Section 3711(i), Title 31, United
States Code, requires GSA to sell a delinquent non-tax debt upon termination of collection action if the Secretary determines such a sale is in the
best interests of the United States.
Since the discharge of a debt precludes
any further collection action (including the sale of a delinquent debt), GSA
may not discharge a debt until the requirements of 31 U.S.C. 3711(i) have
been met.
(c) Upon discharge of a debt of more
than $600, GSA must report the discharge to the Internal Revenue Service
(IRS) in accordance with the requirements of 26 U.S.C. 6050P and 26 CFR
1.6050P–1. GSA may request Treasury
or Treasury-designated debt collection
centers to file such a discharge report
to the IRS on the Agency’s behalf.
(d) When discharging a debt, GSA
will request the GSA Office of General
Counsel to release any liens of record
securing the debt.
§ 105–55.031 Prompt referral to the Department of Justice.
(a) The General Services Administration (GSA) will promptly refer to the
Department of Justice (DOJ) for litigation debts on which aggressive collection activity has been taken in accordance with § 105–55.009 and that cannot
be compromised, or on which collection
activity cannot be suspended or terminated, in accordance with §§ 105–55.027
and 105–55.028. GSA may refer those
debts arising out of activities of, or referred or transferred for collection
services to, the Agency. Debts for
which the principal amount is over
$1,000,000, or such other amount as the
Attorney General may direct, exclusive
of interest and penalties, will be referred to the Civil Division or other division responsible for litigating such
debts at DOJ, Washington, DC. Debts
for which the principal amount is
$1,000,000, or less, or such other amount
as the Attorney General may direct,
exclusive of interest or penalties, will
be referred to DOJ’s Nationwide Central Intake Facility as required by the
Claims Collection Litigation Report instructions. Debts will be referred as
early as possible, consistent with aggressive GSA collection activity and
the observance of the standards contained in this part, and, in any event,
well within the period for initiating
timely lawsuits against the debtors.
GSA will make every effort to refer delinquent debts to DOJ for litigation
within one year of the date such debts
last became delinquent. In the case of
guaranteed or insured loans, GSA will
make every effort to refer these delinquent debts to DOJ for litigation within one year from the date the loan was
presented to the Agency for payment
or re-insurance.
(b) DOJ has exclusive jurisdiction
over the debts referred to it pursuant
to this section. GSA, as the referring
agency, will immediately terminate
the use of any administrative collection activities to collect a debt at the
time of the referral of that debt to
DOJ. GSA will advise DOJ of the collection activities which have been utilized to date, and their result. GSA will
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§ 105–55.032
41 CFR Ch. 105 (7–1–16 Edition)
refrain from having any contact with
the debtor and will direct all debtor inquiries concerning the debt to DOJ, except as otherwise agreed between GSA
and DOJ. GSA will immediately notify
DOJ of any payments credited by the
Agency to the debtor’s account after
referral of a debt under this section.
DOJ will notify GSA of any payments
it receives from the debtor.
§ 105–55.032 Claims Collection Litigation Report.
(a) Unless excepted by the Department of Justice (DOJ), the General
Services Administration (GSA) will
complete the Claims Collection Litigation Report (CCLR) (see § 105–55.019(b)),
accompanied by a signed Certificate of
Indebtedness, to refer all administratively uncollectible claims to DOJ for
litigation. GSA will complete all sections of the CCLR appropriate to each
claim as required by the CCLR instructions and furnish such other information as may be required in specific
cases.
(b) GSA will indicate clearly on the
CCLR the actions DOJ should take
with respect to the referred claim. The
CCLR permits the Agency to indicate
specifically any of a number of
litigative activities which DOJ may
pursue, including enforced collection,
judgment lien only, renew judgment
lien only, renew judgment lien and enforce collection, program enforcement,
foreclosure only, and foreclosure and
deficiency judgment.
(c) GSA also will use the CCLR to
refer claims to DOJ to obtain approval
of any proposals to compromise the
claims or to suspend or terminate
Agency collection activity.
§ 105–55.033
Preservation of evidence.
The General Services Administration
(GSA) will take care to preserve all
files and records that may be needed by
the Department of Justice (DOJ) to
prove their claims in court. GSA ordinarily will include certified copies of
the documents that form the basis for
the claim in the packages referring
their claims to DOJ for litigation. GSA
will provide originals of such documents immediately upon request by
DOJ.
§ 105–55.034 Minimum amount of referrals to the Department of Justice.
(a) The General Services Administration (GSA) will not refer for litigation
claims of less than $2,500, exclusive of
interest, penalties, and administrative
costs, or such other amount as the Attorney General shall from time to time
prescribe. The Department of Justice
(DOJ) will notify GSA if the Attorney
General
changes
this
minimum
amount.
(b) GSA will not refer claims of less
than the minimum amount unless—
(1) Litigation to collect such smaller
claims is important to ensure compliance with the Agency’s policies or programs;
(2) The claim is being referred solely
for the purpose of securing a judgment
against the debtor, which will be filed
as a lien against the debtor’s property
pursuant to 28 U.S.C. 3201 and returned
to GSA for enforcement; or
(3) The debtor has the clear ability to
pay the claim and the Government effectively can enforce payment, with
due regard for the exemptions available to the debtor under State and Federal law and the judicial remedies
available to the Government.
(c) GSA will consult with the Financial Litigation Staff of the Executive
Office for United States Attorneys in
DOJ prior to referring claims valued at
less than the minimum amount.
PART 105–56—SALARY OFFSET FOR
INDEBTEDNESS OF FEDERAL EMPLOYEES TO THE UNITED STATES
Subpart A—Salary Offset of General
Services Administration Employees
Sec.
105–56.001 Scope.
105–56.002 Excluded debts or claims.
105–56.003 Definitions.
105–56.004 Pre-offset notice.
105–56.005 Employee response.
105–56.006 Petition for pre-offset hearing.
105–56.007 Pre-offset oral hearing.
105–56.008 Pre-offset paper hearing.
105–56.009 Written decision.
105–56.010 Deductions.
105–56.011 Non-waiver of rights.
105–56.012 Refunds.
105–56.013 Coordinating offset with another
Federal agency.
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31
General Services Administration
§ 105–56.002
Subpart B—Centralized Salary Offset (CSO)
Procedures—GSA as Creditor Agency
105–56.014
105–56.015
105–56.016
105–56.017
puter
105–56.018
105–56.019
105–56.020
105–56.021
105–56.022
105–56.023
Purpose and scope.
Definitions.
GSA participation.
Centralized salary offset commatch.
Salary offset.
Offset amount.
Priorities.
Notice.
Fees.
Disposition of amounts collected.
Subpart C—Centralized Salary Offset
(CSO) Procedures—GSA as Paying
Agency
105–56.024
105–56.025
105–56.026
105–56.027
puter
105–56.028
105–56.029
105–56.030
105–56.031
105–56.032
105–56.033
Purpose and scope.
Definitions.
GSA participation.
Centralized salary offset commatch.
Salary offset.
Offset amount.
Priorities.
Notice.
Fees.
Disposition of amounts collected.
AUTHORITY: 5 U.S.C. 5514; 31 U.S.C. 3711; 31
U.S.C. 3716; 5 CFR part 550, subpart K; 31 CFR
part 5; 31 CFR 285.7; 31 CFR parts 900–904.
SOURCE: 68 FR 68752, Dec. 10, 2003, unless
otherwise noted.
Subpart A—Salary Offset of General Services Administration
Employees
§ 105–56.001
Scope.
(a) This subpart covers internal GSA
collections under 5 U.S.C. 5514. It applies when certain debts to the United
States are recovered by administrative
offset from the disposable pay of a GSA
employee or a cross-serviced agency
employee, except in situations where
the employee consents to the recovery.
(b) The collection of any amount
under this subpart will be in accordance with the standards promulgated
pursuant to the Debt Collection Improvement Act of 1996 (DCIA), 31 U.S.C.
3701 et seq., and the Federal Claims Collection Standards, 31 CFR parts 900
through 904 as amended, or in accordance with any other statutory authority for the collection of claims of the
United States or any Federal agency.
§ 105–56.002
Excluded debts or claims.
This subpart does not apply to the
following:
(a) Debts or claims arising under the
Internal Revenue Code of 1954 as
amended (26 U.S.C. 1 et seq.), the Social
Security Act (42 U.S.C. 301 et seq.), or
the tariff laws of the United States.
(b) Any case where collection of a
debt by salary offset is explicitly provided for or prohibited by another statute. Debt collection procedures under
other statutory authorities, however,
must be consistent with the provisions
of the Federal Claims Collection
Standards, defined at paragraph (h) of
§ 105–56.003.
(c) An employee election of coverage
or of a change of coverage under a Federal benefits program that requires
periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
However, if the amount to be recovered
was accumulated over more than four
pay periods, the procedures under § 105–
56.004 of this subpart will apply.
(d) Routine adjustment in pay or allowances that is made to correct an
overpayment of pay attributable to
clerical or administrative errors or
delays in processing pay documents, if
the overpayment occurred within the
four pay periods preceding the adjustment and, at the time of the adjustment, or as soon after as possible, the
employee is provided written notice of
the nature and amount of the adjustment.
(e) Any adjustment to collect a debt
amounting to $50 or less, if, at the time
of the adjustment, or as soon after as
possible, the employee is given written
notice of the nature and amount of the
adjustment and a point of contact for
contesting the adjustment.
(f) Debts or claims arising from the
accrual of unpaid Health Benefits Insurance (HBI) premiums as the result
of an employee’s election to continue
health insurance coverage during periods of leave without pay (LWOP), or
when pay is insufficient to cover premiums. Debt collection procedures for
unpaid HBI are covered under 5 CFR
part 890, Subpart E.
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§ 105–56.003
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–56.003 Definitions.
The following definitions apply to
this subpart:
(a) Administrative offset, as defined in
31 U.S.C. 3701(a)(1), means withholding
funds payable by the United States (including funds payable by the United
States on behalf of a State government) to, or held by the United States
for, a person to satisfy a claim.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in
the executive, judicial, or legislative
branch of the Federal government, including government corporations.
(c) Business day means Monday
through Friday, excluding Federal
legal holidays. For purposes of computation, the last day of the period will
be included unless it is a Federal legal
holiday.
(d) Creditor agency means any agency
that is owed a debt, including a debt
collection center when acting on behalf
of a creditor agency in matters pertaining to the collection of a debt.
(e) Cross-serviced agency means an arrangement between GSA and another
agency whereby GSA provides financial
support services to the other agency on
a reimbursable basis. Financial support
services can range from simply providing
computer
and
software
timesharing services to full-service administrative processing.
(f) Disposable pay means the amount
that remains from an employee’s Federal pay after required deductions for
Federal, State and local income taxes;
Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the
Thrift Savings Plan (TSP); premiums
for life (excluding amounts deducted
for supplemental coverage) and health
insurance benefits; Internal Revenue
Service (IRS) tax levies; and such other
deductions that may be required by law
to be withheld.
(g) Employee means any individual
employed by GSA or a cross-serviced
agency of the executive, legislative, or
judicial branches of the Federal Government, including Government corporations.
(h) FCCS means the Federal Claims
Collection Standards jointly published
by the Department of Justice and the
Department of the Treasury at 31 CFR
parts 900 through 904.
(i) Financial hardship means an inability to meet basic living expenses
for goods and services necessary for the
survival of the debtor and his or her
spouse and dependents.
(j) For the purposes of the standards
in this subpart, unless otherwise stated, the term ‘‘Administrator’’ refers to
the Administrator of General Services
or the Administrator’s delegate.
(k) For the purposes of the standards
in this subpart, the terms ‘‘claim’’ and
‘‘debt’’ are synonymous and interchangeable. They refer to an amount of
money, funds, or property that has
been determined by GSA to be due the
United States from an employee of
GSA or a cross-serviced agency from
sources which include loans insured or
guaranteed by the United States and
all other amounts due the United
States from fees, leases, rents, royalties, services, sales of real or personal
property,
overpayments,
penalties,
damages, interest, fines and forfeitures
and all other similar sources, including
debt administered by a third party as
an agent for the Federal Government.
For the purposes of administrative offset under 31 U.S.C. 3716, the terms
‘‘claim’’ and ‘‘debt’’ include an amount
of money, funds, or property owed by
an employee to a State (including pastdue support being enforced by a State),
the District of Columbia, American
Samoa, Guam, the United States Virgin Islands, the Commonwealth of the
Northern Mariana Islands, or the Commonwealth of Puerto Rico.
(l) For the purposes of the standards
in this subpart, unless otherwise stated, the terms ‘‘GSA’’ and ‘‘Agency’’ are
synonymous and interchangeable.
(m) Hearing official means a Board
Judge of the Civilian Board of Contract
Appeals (CBCA).
(n) Pay means basic pay, special pay,
incentive pay, retired pay, retainer
pay, or in the case of an individual not
entitled to basic pay, other authorized
pay.
(o) Pre-offset hearing means a review
of the documentary evidence concerning the existence and/or amount of
a debt, and/or the terms of a repayment
schedule, provided such repayment
schedule is established other than by a
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31
General Services Administration
§ 105–56.004
written agreement entered into pursuant to this subpart. If the hearing official determines that the issues in dispute cannot be resolved solely by review of the written record, such as
when the validity of the debt turns on
the issue of credibility or veracity, an
oral hearing may be provided.
(p) Program official means a supervisor or management official of the
employee’s service, staff office, crossserviced agency, or other designated
Agency officials.
(q) Reconsideration means a request
by the employee to have a secondary
review by GSA of the existence and/or
amount of the debt, and/or the proposed offset schedule.
(r) Salary offset means an administrative offset to collect a debt under 5
U.S.C. 5514 by deduction(s) at one or
more officially established pay intervals from the current pay account of
an employee without his or her consent.
(s) Waiver means the cancellation, remission, forgiveness, or non-recovery
of a debt or debt-related charge as permitted or required by law.
[68 FR 68752, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–56.004 Pre-offset notice.
An employee must be given written
notice from the appropriate program
official at least 30 days in advance of
initiating a deduction from disposable
pay informing him or her of—
(a) The nature, origin and amount of
the indebtedness determined by GSA or
a cross-serviced agency to be due;
(b) The intention of GSA to initiate
proceedings to collect the debt through
deductions from the employee’s current disposable pay and other eligible
payments;
(c) The amount (stated as a fixed dollar amount or as a percentage of pay,
not to exceed 15 percent of disposable
pay), frequency, proposed beginning
date, and duration of the intended deductions;
(d) GSA’s policy concerning how interest, penalties, and administrative
costs are assessed (see 41 CFR part 105–
55.017), including a statement that such
assessments will be made unless excused under 31 U.S.C. 3717(h) and 31
CFR 901.9(g) and (h);
(e) The employee’s right to inspect
and copy GSA records relating to the
debt, if records of the debt are not attached to the notice, or if the employee
or his or her representative cannot personally inspect the records, the right
to receive a copy of such records. Any
costs associated with copying the
records for the debtor will be borne by
the debtor. The debtor must give a
minimum of three (3) business days notice in advance to GSA of the date on
which he or she intends to inspect and
copy the records involved;
(f) A demand for repayment providing
for an opportunity, under terms agreeable to GSA, for the employee to establish a schedule for the voluntary repayment of the debt by offset or to enter
into a written repayment agreement of
the debt in lieu of offset;
(g) The employee’s right to request a
waiver (see § 105–56.005(b) of this subpart);
(h) The employee’s right to request
reconsideration by the Agency of the
existence and/or amount of the debt,
and/or the proposed offset schedule;
(i) The employee’s right to a pre-offset hearing conducted by a hearing official, arranged by the appropriate program official, if a request is filed as
prescribed by § 105–56.006 of this subpart;
(j) The method and time period for
requesting a hearing, including a statement that the timely filing of a request
for hearing will stay the commencement of collection proceedings;
(k) The issuance of a final decision on
the hearing, if requested, at the earliest practicable date, but no later than
60 days after the request for hearing is
filed, unless the employee requests and
the hearing official grants a delay in
the proceedings;
(l) The risk that any knowingly false
or frivolous statements, representations, or evidence may subject the employee to—
(1) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 CFR
part 752, or any other applicable statutes or regulations;
(2) Penalties under the False Claims
Act, 31 U.S.C. 3729–3731, or any other
applicable statutory authority; or
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§ 105–56.005
41 CFR Ch. 105 (7–1–16 Edition)
(3) Criminal penalties under 18 U.S.C.
286, 287, 1001, and 1002, or any other applicable statutory authority;
(m) Any other rights and remedies
available to the employee under statutes or regulations governing the program for which the collection is being
made;
(n) The employee’s right to a prompt
refund if amounts paid or deducted are
later waived or found not owed, unless
otherwise provided by law (see § 105–
56.012 of this subpart);
(o) The specific address to which all
correspondence must be directed regarding the debt.
§ 105–56.005 Employee response.
(a) Voluntary repayment agreement. An
employee may submit a request to the
appropriate program official who
signed the pre-offset notice to enter
into a written repayment agreement of
the debt in lieu of offset. The request
must be made within 7 days of receipt
of notice under § 105–56.004 of this subpart. The agreement must be in writing, signed by both the employee and
the appropriate program official making the notice, and a signed copy must
be sent to the appropriate Finance Center serving the program activity. Acceptance of such an agreement is discretionary with the Agency. An employee who enters into such an agreement may, nevertheless, seek a waiver
under paragraph (b) of this section.
(b) Waiver. An employee may submit
a signed waiver request of overpayment
of pay or allowances (e.g., 5 U.S.C. 5584,
10 U.S.C. 2774, or 32 U.S.C. 716) to the
GSA National Payroll Center (NPC).
When an employee requests waiver consideration, further collection on the
debt may be suspended until a final administrative decision is made on the
waiver request. During the period of
any suspension, interest, penalties and
administrative charges may be held in
abeyance. GSA will not duplicate, for
purposes of salary offset, any of the notices/procedures already provided the
debtor prior to a request for waiver.
(c) Reconsideration. (1) An employee
may seek a reconsideration of GSA’s
determination regarding the existence
and/or amount of the debt. The request
must be submitted to the appropriate
program official indicated in the pre-
offset notice, within 7 days of receipt of
notice under § 105–56.004 of this subpart.
Within 20 days of receipt of this notice,
the employee must submit a detailed
statement of reasons for reconsideration that must be accompanied by
supporting documentation.
(2) An employee may request a reconsideration of the proposed offset schedule. The request must be submitted to
the appropriate program official indicated in the pre-offset notice, within 7
days of receipt of notice under § 105–
56.004 of this subpart. Within 20 days of
receipt of this notice, the employee
must submit an alternative repayment
schedule accompanied by a detailed
statement, supported by documentation, evidencing financial hardship resulting from GSA’s proposed schedule.
Acceptance of the request is at GSA’s
discretion. GSA will notify the employee in writing of its decision concerning the request to reduce the rate
of an involuntary deduction.
§ 105–56.006 Petition
hearing.
for
(a) The employee may request a preoffset hearing by filing a written petition with the appropriate program official indicated in the pre-offset notice,
within 15 days of receipt of the written
notice. The petition must state why
the employee believes GSA’s determination concerning the existence and/
or amount of the debt is in error, set
forth any objections to the involuntary
repayment schedule, and, if the employee is seeking an oral hearing, set
forth reasons for an oral hearing. The
timely filing of a petition will suspend
the commencement of collection proceedings.
(b) The employee’s petition or statement must be signed and dated by the
employee.
(c) Petitions for hearing made after
the expiration of the 15-day period may
be accepted if the employee can show
that the delay was because of circumstances beyond his or her control
or because of failure to receive notice
of the time limit.
(d) If the employee timely requests a
pre-offset hearing or the timeliness is
waived, the appropriate program official must—
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General Services Administration
§ 105–56.008
(1) Promptly notify the CBCA and arrange for a hearing official (see § 105–
56.003(m) of this subpart). The hearing
official will notify the employee
whether he or she may have an oral or
a ‘‘paper hearing,’’ i.e., a review on the
written record (see 31 CFR 901.3(e)); and
(2) Provide the hearing official with a
copy of all records on which the determination of the debt and any involuntary repayment schedule are based.
(e) If an oral hearing is to be held,
the hearing official will notify the appropriate program official and the employee of the date, time, and location
of the hearing. The debtor may choose
to have the hearing conducted in the
hearing official’s office located at 1800
M Street NW., 6th Floor, Washington,
DC 20036, at another location designated by the hearing official, or by
telephone. The debtor and any witnesses are responsible for any personal
expenses incurred to arrive at a hearing official’s office or other designated
location (see § 105–56.007(c)). All telephonic charges incurred during a hearing will be the responsibility of GSA.
(f) If the employee later elects to
have the hearing based only on the
written submissions, notification must
be given to the hearing official and the
appropriate program official at least 3
days before the date of the oral hearing. The hearing official may waive the
3-day requirement for good cause.
(g) If either party, without good
cause as determined by the hearing official, does not appear at a scheduled
oral hearing, the hearing official will
make a determination on the claim
which takes into account that party’s
position as presented in writing only.
to be relevant and not redundant. All
witnesses will testify under oath, with
the oath having been administered by
the hearing official. A written transcript of the hearing will be kept and
made available to either party in the
event of an appeal under the Administrative Procedure Act, 5 U.S.C. 701–706.
Arrangements for the taking of the
transcript will be made by the hearing
official, and all charges associated with
the taking of the transcript will be the
responsibility of GSA.
(b) The hearing official will—
(1) Conduct a fair and impartial hearing; and
(2) Preside over the course of the
hearing, maintain decorum, and avoid
delay in the disposition of the hearing.
(c) The employee may represent himself or herself or may be represented by
another person of his or her choice at
the hearing. GSA will not compensate
the employee for representation expenses, including hourly fees for attorneys, travel expenses, and costs for reproducing documents.
(d) Oral hearings are open to the public. However, the hearing official may
close all or any portion of the hearing
when doing so is in the best interests of
the employee or the Agency.
(e) Oral hearings may be conducted
by telephone at the request of the employee. All telephonic charges incurred
during a hearing will be the responsibility of GSA.
(f) The hearing official may request
written submissions and documentation from the employee and the Agency, in addition to considering evidence
offered at the hearing.
[68 FR 68752, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–56.008
§ 105–56.007 Pre-offset oral hearing.
(a) The Agency, represented by the
appropriate program official or a representative of the Office of General
Counsel, and the employee, and/or his
or her representative, will explain their
case in the form of an oral presentation
with reference to the documentation
submitted. The employee may testify
on his or her own behalf, subject to
cross-examination. Other witnesses
may be called to testify when the hearing official determines the testimony
If a hearing is to be held only upon
written submissions, the hearing official will issue a decision based upon
the record and responses submitted by
both the Agency and the employee. See
§ 105–56.006 of this subpart. If either
party, without good cause as determined by the hearing official, does not
provide written submissions and documentation requested by the hearing official, the hearing official will make a
determination on the claim without
reference to such submissions and documentation.
Pre-offset paper hearing.
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§ 105–56.009
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–56.009 Written decision.
(a) Within 60 days of the employee’s
filing of a petition for a pre-offset hearing, the hearing official will issue a
written decision setting forth—
(1) The facts supporting the nature
and origin of the debt;
(2) The hearing official’s analysis,
findings and conclusions as to the employee’s or Agency’s grounds;
(3) The amount and validity of the
debt; and
(4) The repayment schedule, if applicable.
(b) The hearing official’s decision
will be the final Agency action for the
purposes of judicial review under the
Administrative Procedure Act (5 U.S.C.
701 et seq.).
§ 105–56.010 Deductions.
(a) When deductions may begin. Deductions may begin upon the issuance of
an Agency decision on a request for reconsideration or waiver (except as provided in § 105–56.005(b) of this subpart)
or the issuance of a decision in a preoffset hearing. In no event will deductions begin sooner than thirty days
from the date of the notice letter. If
the employee filed a petition for hearing with the appropriate program official before the expiration of the period
provided for in § 105–56.006 of this subpart, then deductions will begin after
the hearing official has provided the
employee with a hearing and the final
written decision. The appropriate program official will coordinate with the
National Payroll Center to begin offset
in accordance with the final written
decision.
(b) Retired or separated employees. If
the employee retires, resigns, or is terminated before collection of the indebtedness is completed, the remaining
indebtedness will be offset from any
subsequent payments of any nature. If
the debt cannot be satisfied from subsequent payments, then the debt will
be collected according to the procedures for administrative offset pursuant to § 105–55.011 of this subpart.
(c) Types of collection. A debt may be
collected in one lump sum or in installments. Collection will be by lump sum
unless the employee is able to demonstrate to the program official who
signed the notice letter that he or she
is financially unable to pay in one
lump sum. In these cases, collection
will be by installment deductions. Involuntary deductions from pay may
not exceed 15 percent of disposable pay.
(d) Methods of collection. If the debt
cannot be collected in one lump sum,
the debt will be collected by deductions
at officially established pay intervals
from an employee’s current pay account, unless the employee and the appropriate program official agree to an
alternative repayment schedule. The
alternative arrangement must be in
writing and signed by both the employee and the appropriate program official.
(1) Installment deductions. Installment
deductions will be made over the shortest period possible. The size and frequency of installment deductions will
bear a reasonable relation to the size of
the debt and the employee’s ability to
pay. However, the amount deducted for
any period will not exceed 15 percent of
the disposable pay from which the deduction is made, unless the employee
has agreed in writing to the deduction
of a greater amount. The installment
payment normally will be sufficient in
size and frequency to liquidate the debt
in three (3) years or less, unless circumstances warrant a longer period.
Installment payments of less than $100
per pay period will be accepted only in
the most unusual circumstances.
(2) Sources of deductions. GSA will
make salary deductions only from
basic pay, special pay, incentive pay,
retired pay, retainer pay, or in the case
of an employee not entitled to basic
pay, other authorized pay.
(e) Non-Salary payments. The receipt
of collections from salary offsets does
not preclude GSA from pursuing other
debt collection remedies, including the
offset of other Federal payments to
satisfy delinquent non-tax debt owed to
the United States. GSA will pursue,
when appropriate, such debt collection
remedies separately or in conjunction
with salary offset.
(f) Interest, penalties and administrative costs. Interest, penalties and administrative costs on debts under this
subpart will be assessed according to
the provisions of § 105–55.016 of this subpart.
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General Services Administration
§ 105–56.011
§ 105–56.013
Non-waiver of rights.
An employee’s involuntary payment
of all or any portion of a debt being
collected under 5 U.S.C. 5514 will not be
construed as a waiver of any rights
which the employee may have under 5
U.S.C. 5514 or any other provision of
contract or law unless there are statutory or contractual provisions to the
contrary.
§ 105–56.012
Refunds.
(a) GSA will promptly refund to the
employee any amounts offset under
these regulations when a debt is waived
or otherwise found not owing the
United States (unless expressly prohibited by statute or regulation), or GSA
is directed by an administrative or judicial order to refund amounts deducted from the employee’s current
pay or withheld from non-salary payments.
(b) Unless required by Federal law or
contract, refunds under this subpart
will not bear interest.
§ 105–56.013 Coordinating offset with
another Federal agency.
GSA participates in the Centralized
Salary Offset (CSO) program (see subparts B and C of this part). In those instances when CSO cannot be utilized
(i.e., when another agency does not
participate in the program), the following procedures apply:
(a) When GSA is the creditor agency.
When GSA is owed a debt by an employee of another agency, GSA will
provide the paying agency with a written certification that the debtor owes
GSA a debt and that GSA has complied
with these regulations. This certification will include the amount and
basis of the debt, the due date of the
payment, or the beginning date of installment payments, if any.
(b) When another agency is the creditor
agency. (1) GSA may use salary offset
against one of its employees or crossserviced agency employees who is indebted to another agency if requested
to do so by that agency. Any such request must be accompanied by a certification from the requesting agency
that the person owes the debt, the
amount of the debt and that the employee has been given the procedural
rights required by 5 U.S.C. 5514 and 5
CFR part 550, subpart K.
(2) The creditor agency must advise
GSA of the number of installments to
be collected, the amount of each installment, and the beginning date of
the first installment if it is not the
next established pay period.
(3) If GSA receives an improperly
completed request, the creditor agency
will be requested to supply the required
information before any salary offset
begins.
(4) If the claim procedures in paragraph (b)(1) of this section have been
properly completed, deductions will
begin on the next established pay period unless a different period is requested by the creditor agency.
(5) GSA will not review the merits of
the creditor agency’s determinations
with respect to the amount and/or validity of the debt as stated in the debt
claim certification.
(6) If the employee begins separation
action before GSA collects the total
debt due the creditor agency, the following actions will be taken:
(i) When possible, the balance owed
the creditor agency will be liquidated
from subsequent payments of any nature due the employee from GSA in accordance with 41 CFR part 105–55.011;
(ii) If the total amount of the debt
cannot be recovered, GSA will certify
the total amount collected to the creditor agency and the employee;
(iii) If GSA is aware that the employee is entitled to payments from the
Civil Service Retirement and Disability Fund, or other similar payments, such information will be provided to the creditor agency so a certified claim can be made against the
payments.
(7) If the employee transfers to another Federal agency before GSA collects the total amount due the creditor
agency, GSA will certify the total
amount collected to the creditor agency and the employee. It is the responsibility of the creditor agency to ensure
that collection action is resumed by
the new employing agency.
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§ 105–56.014
41 CFR Ch. 105 (7–1–16 Edition)
Subpart B—Centralized Salary Offset (CSO) Procedures—GSA
as Creditor Agency
§ 105–56.014 Purpose and scope.
(a) This subpart establishes procedures for the offset of Federal salary
payments, through the Financial Management Service’s (FMS) administrative offset program, to collect delinquent debts owed to the Federal Government. This process is known as centralized salary offset. Rules issued by
the Office of Personnel Management
contain the requirements Federal
agencies must follow prior to conducting salary offset and the procedures for requesting offsets directly
from a paying agency. See 5 CFR parts
550.1101 through 550.1108.
(b) This subpart implements the requirement under 5 U.S.C. 5514 (a)(1)
that all Federal agencies, using a process known as centralized salary offset
computer matching, identify Federal
employees who owe delinquent non-tax
debt to the United States. Centralized
salary offset computer matching is the
computerized comparison of delinquent
debt records with records of Federal
employees. The purpose of centralized
salary offset computer matching is to
identify those debtors whose Federal
salaries should be offset to collect delinquent debts owed to the Federal
Government.
(c) This subpart specifies the delinquent debt records and Federal employee records that must be included in
the salary offset matching process. For
purposes of this subpart, delinquent
debt records consist of the debt information submitted to FMS for purposes
of administrative offset as required
under 31 U.S.C. 3716(c)(6). Since GSA
submits debts to FMS for purposes of
administrative offset, the Agency is
not required to submit duplicate information for purposes of centralized salary offset computer matching under 5
U.S.C. 5514(a)(1) and this subpart.
(d) An interagency consortium was
established to implement centralized
salary offset computer matching on a
Governmentwide basis as required
under 5 U.S.C. 5514(a)(1). Federal employee records consist of records of
Federal salary payments disbursed by
members of the consortium.
(e) The receipt of collections from
salary offsets does not preclude GSA
from pursuing other debt collection
remedies, including the offset of other
Federal payments to satisfy delinquent
non-tax debt owed to the United
States. GSA will pursue, when appropriate, such debt collection remedies
separately or in conjunction with salary offset.
§ 105–56.015 Definitions.
The following definitions apply to
this subpart:
(a) Administrative offset means withholding funds payable by the United
States to, or held by the United States
for, a person to satisfy a debt owed by
the payee.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in
the executive, judicial, or legislative
branch of the Federal government, including government corporations.
(c) Centralized salary offset computer
matching means the computerized comparison of Federal employee records
with delinquent debt records to identify Federal employees who owe such
debts.
(d) Consortium means an interagency
group established by the Secretary of
the Treasury to implement centralized
salary offset computer matching. The
group includes all agencies that disburse Federal salary payments.
(e) Creditor agency means any agency
that is owed a debt, including a debt
collection center when acting on behalf
of a creditor agency in matters pertaining to the collection of a debt.
(f) Debt means any amount of money,
funds, or property that has been determined by an appropriate official of the
Federal government to be owed to the
United States by a person, including
debt administered by a third party acting as an agent for the Federal Government. For purposes of this subpart, the
term ‘‘debt’’ does not include debts
arising under the Internal Revenue
Code of 1986 (26 U.S.C. 1 et seq.).
(g) Delinquent debt record means information about a past-due, legally enforceable debt, submitted by GSA to
FMS for purposes of administrative offset (including salary offset) in accordance with the provisions of 31 U.S.C.
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General Services Administration
§ 105–56.016
3716(c)(6) and applicable regulations.
Debt information includes the amount
and type of debt and the debtor’s name,
address, and taxpayer identifying number.
(h) Disbursing official means an officer
or employee designated to disburse
Federal salary payments. This includes
all disbursing officials of Federal salary payments, including but not limited to, disbursing officials of the Department of the Treasury, the Department of Defense, the United States
Postal Service, any government corporation, and any disbursing official of
the United States designated by the
Secretary.
(i) Disposable pay means the amount
that remains from an employee’s Federal pay after required deductions for
Federal, State and local income taxes;
Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the
Thrift Savings Plan (TSP); premiums
for life (excluding amounts deducted
for supplemental coverage) and health
insurance benefits; Internal Revenue
Service (IRS) tax levies; and such other
deductions that are required by law to
be withheld.
(j) Federal employee means a current
employee of an agency, including a
current member of the Armed Forces
or a Reserve of the Armed Forces (Reserves), employees of the United States
Postal Service, and seasonal and temporary employees.
(k) Federal employee records means
records of Federal salary payments
that a paying agency has certified to a
disbursing official for disbursement.
(l) FMS means the Financial Management Service, a bureau of the Department of the Treasury.
(m) For the purposes of the standards
in this subpart, unless otherwise stated, the term ‘‘Administrator’’ refers to
the Administrator of General Services
or the Administrator’s delegate.
(n) For the purposes of the standards
in this subpart, unless otherwise stated, the terms ‘‘GSA’’ and ‘‘Agency’’ are
synonymous and interchangeable.
(o) Pay means basic pay, special pay,
incentive pay, retired pay, retainer
pay, or in the case of an individual not
entitled to basic pay, other authorized
pay.
(p) Paying agency means the agency
that employs the Federal employee
who owes the debt and authorizes the
payment of his or her current pay. A
paying agency also includes an agency
that performs payroll services on behalf of the employing agency.
(q) Salary offset means administrative
offset to collect a debt owed by a Federal employee from the current pay account of the employee.
(r) Secretary means the Secretary of
the Treasury or his or her delegate.
(s) Taxpayer identifying number means
the identifying number described under
section 6109 of the Internal Revenue
Code of 1986 (26 U.S.C. 6109). For an individual, the taxpayer identifying
number is the individual’s social security number.
§ 105–56.016
GSA participation.
(a) As required under 5 U.S.C.
5514(a)(1), GSA must participate at
least annually in centralized salary offset computer matching. To meet this
requirement, GSA will notify FMS of
all past-due, legally enforceable debts
delinquent for more than 180 days for
purposes of administrative offset, as required under 31 U.S.C. 3716(c)(6). Additionally, GSA may notify FMS of pastdue, legally enforceable debts delinquent for less than 180 days for purposes of administrative offset.
(b) Prior to submitting a debt to
FMS for purposes of collection by administrative offset, including salary
offset, GSA will provide written certification to FMS that—
(1) The debt is past-due and legally
enforceable in the amount submitted
to FMS and that GSA will ensure that
collections (other than collections
through offset) are properly credited to
the debt;
(2) Except in the case of a judgment
debt or as otherwise allowed by law,
the debt is referred for offset within
ten years after GSA’s right of action
accrues;
(3) GSA has complied with the provisions of 31 U.S.C. 3716 (administrative
offset) and related regulations including, but not limited to, the provisions
requiring that GSA provide the debtor
with applicable notices and opportunities for a review of the debt; and
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§ 105–56.017
41 CFR Ch. 105 (7–1–16 Edition)
(4) GSA has complied with the provisions of 5 U.S.C. 5514 (salary offset) and
related regulations including, but not
limited to, the provisions requiring
that GSA provide the debtor with applicable notices and opportunities for a
hearing.
(c) FMS may waive the certification
requirement set forth in paragraph
(b)(4) of this section as a prerequisite
to submitting the debt to FMS. If FMS
waives the certification requirement,
before an offset occurs, GSA will provide the Federal employee with the notices and opportunities for a hearing as
required by 5 U.S.C. 5514 and applicable
regulations, and will certify to FMS
that the requirements of 5 U.S.C. 5514
and applicable regulations have been
met.
(d) GSA will notify FMS immediately
of any payments credited by GSA to
the debtor’s account, other than credits for amounts collected by offset,
after submission of the debt to FMS.
GSA will notify FMS once the debt is
paid in its entirety. GSA will also notify FMS immediately of any change in
the status of the legal enforceability of
the debt, for example, if the Agency receives notice that the debtor has filed
for bankruptcy protection.
§ 105–56.017 Centralized salary offset
computer match.
(a) Delinquent debt records will be
compared with Federal employee
records maintained by members of the
consortium or paying agencies. The
records will be compared to identify
Federal employees who owe delinquent
debts for purposes of collecting the
debt by administrative offset. A match
will occur when the taxpayer identifying number and name of a Federal
employee are the same as the taxpayer
identifying number and name of a debtor.
(b) As authorized by the provisions of
31 U.S.C. 3716(f), FMS, under a delegation of authority from the Secretary,
has waived certain requirements of the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. 552a, as
amended, for administrative offset, including salary offset, upon written certification by the Administrator, or the
Administrator’s delegate, that the requirements of 31 U.S.C. 3716(a) have
been met. Specifically, FMS has
waived the requirements for a computer matching agreement contained
in 5 U.S.C. 552a(o) and for post-match
notice and verification contained in 5
U.S.C. 552a(p). GSA will provide certification in accordance with the provisions of § 105–56.016(b)(3) of this subpart.
§ 105–56.018
Salary offset.
When a match occurs and all other
requirements for offset have been met,
as required by the provisions of 31
U.S.C. 3716(c), the disbursing official
will offset the Federal employee’s salary payment to satisfy, in whole or
part, the debt owed by the employee.
Alternatively, the paying agency, on
behalf of the disbursing official, may
deduct the amount of the offset from
an employee’s disposable pay before
the employee’s salary payment is certified to a disbursing official for disbursement.
§ 105–56.019
Offset amount.
(a) The minimum dollar amount referred for offset under this subpart is
$100.
(b) The amount offset from a salary
payment under this subpart will be the
lesser of—
(1) The amount of the debt, including
any interest, penalties and administrative costs; or
(2) Up to 15 percent of the debtor’s
disposable pay.
(c) Alternatively, the amount offset
may be an amount agreed upon, in
writing, by the debtor and GSA.
(d) Offsets will continue until the
debt, including any interest, penalties,
and administrative costs, is paid in full
or otherwise resolved to the satisfaction of GSA.
§ 105–56.020
Priorities.
(a) A levy pursuant to the Internal
Revenue Code of 1986 (26 U.S.C. 1 et seq.)
takes precedence over other deductions
under this subpart.
(b) When a salary payment may be
reduced to collect more than one debt,
amounts offset under this subpart will
be applied to a debt only after amounts
offset have been applied to satisfy past
due child support debts assigned to a
State pursuant to the Social Security
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General Services Administration
Act under
671(a)(17).
42
U.S.C.
§ 105–56.021
Notice.
§ 105–56.024
602(a)(26)
or
(a) Before offsetting a salary payment, the disbursing official, or the
paying agency on behalf of the disbursing official, will notify the Federal
employee in writing of the date deductions from salary will commence and of
the amount of such deductions.
(b)(1) When an offset occurs under
this subpart, the disbursing official, or
the paying agency on behalf of the disbursing official, will notify the Federal
employee in writing that an offset has
occurred including—
(i) A description of the payment and
the amount of offset taken;
(ii) The identity of GSA as the creditor agency requesting the offset; and
(iii) A contact point within GSA that
will handle concerns regarding the offset.
(2) The information described in
paragraphs (b)(1)(ii) and (b)(1)(iii) of
this section does not need to be provided to the Federal employee when
the offset occurs if such information
was included in a prior notice from the
disbursing official or paying agency.
(c) The disbursing official will advise
GSA of the names, mailing addresses,
and taxpayer identifying numbers of
the debtors from whom amounts of
past-due, legally enforceable debt were
collected and of the amounts collected
from each debtor for GSA. The disbursing official will not advise GSA of
the source of payment from which the
amounts were collected.
§ 105–56.022
Fees.
Agencies that perform centralized
salary offset computer matching services may charge a fee sufficient to
cover the full cost for such services. In
addition, FMS, or a paying agency acting on behalf of FMS, may charge a fee
sufficient to cover the full cost of implementing the administrative offset
program. FMS may deduct the fees
from amounts collected by offset or
may bill GSA. Fees charged for offset
will be based on actual administrative
offsets completed and may be added to
the debt as an administrative cost.
§ 105–56.023 Disposition
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amounts
(a) The disbursing official conducting
the offset will transmit amounts collected for debts, less fees charged under
§ 105–56.022 of this subpart, to GSA.
(b) If an erroneous offset payment is
made to GSA, the disbursing official
will notify GSA that an erroneous offset payment has been made.
(1) The disbursing official may deduct the amount of the erroneous offset payment from future amounts payable to GSA; or
(2) Alternatively, upon the disbursing
official’s request, GSA will promptly
return to the disbursing official or the
affected payee an amount equal to the
amount of the erroneous payment
(without regard to whether any other
amounts payable to GSA have been
paid).
(i) The disbursing official and GSA
will adjust the debtor records appropriately.
(ii) Unless required by Federal law or
contract, refunds under this subpart
will not bear interest.
Subpart C—Centralized Salary
Offset (CSO) Procedures—
GSA as Paying Agency
§ 105–56.024
Purpose and scope.
(a) This subpart establishes procedures for the offset of Federal salary
payments, through the Financial Management Service’s (FMS) administrative offset program, to collect delinquent debts owed to the Federal Government. This process is known as salary offset. Rules issued by the Office of
Personnel Management contain the requirements Federal agencies must follow prior to conducting salary offset
and the procedures for requesting offsets directly from a paying agency. See
5 CFR parts 550.1101 through 550.1108.
(b) This subpart implements the requirement under 5 U.S.C. 5514(a)(1) that
all Federal agencies, using a process
known as centralized salary offset computer matching, identify Federal employees who owe delinquent non-tax
debt to the United States. Centralized
salary offset computer matching is the
computerized comparison of delinquent
debt records with records of Federal
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§ 105–56.025
41 CFR Ch. 105 (7–1–16 Edition)
employees. The purpose of centralized
salary offset computer matching is to
identify those debtors whose Federal
salaries should be offset to collect delinquent debts owed to the Federal
Government.
(c) This subpart specifies the delinquent debt records and Federal employee records that must be included in
the salary offset matching process. For
purposes of this subpart, delinquent
debt records consist of the debt information submitted to FMS for purposes
of administrative offset as required
under 31 U.S.C. 3716(c)(6).
(d) An interagency consortium was
established to implement centralized
salary offset computer matching on a
Governmentwide basis as required
under 5 U.S.C. 5514(a)(1). Federal employee records consist of records of
Federal salary payments disbursed by
members of the consortium.
§ 105–56.025 Definitions.
The following definitions apply to
this subpart:
(a) Administrative offset means withholding funds payable by the United
States to, or held by the United States
for, a person to satisfy a debt owed by
the payee.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in
the executive, judicial, or legislative
branch of the Federal Government, including Government corporations.
(c) Centralized salary offset computer
matching means the computerized comparison of Federal employee records
with delinquent debt records to identify Federal employees who owe such
debts.
(d) Consortium means an interagency
group established by the Secretary of
the Treasury to implement centralized
salary offset computer matching. The
group includes all agencies that disburse Federal salary payments.
(e) Creditor agency means any agency
that is owed a debt, including a debt
collection center when acting on behalf
of a creditor agency in matters pertaining to the collection of a debt.
(f) Cross-serviced agency means an arrangement between GSA and another
agency whereby GSA provides financial
support services to the other agency on
a reimbursable basis. Financial support
services can range from simply providing
computer
and
software
timesharing services to full-service administrative processing.
(g) Debt means any amount of money,
funds, or property that has been determined by an appropriate official of the
Federal Government to be owed to the
United States by a person, including
debt administered by a third party acting as an agent for the Federal Government. For purposes of this subpart, the
term ‘‘debt’’ does not include debts
arising under the Internal Revenue
Code of 1986 (26 U.S.C. 1 et seq.).
(h) Delinquent debt record means information about a past-due, legally enforceable debt, submitted to GSA by
FMS for purposes of administrative offset (including salary offset) in accordance with the provisions of 31 U.S.C.
3716(c)(6) and applicable regulations.
Debt information includes the amount
and type of debt and the debtor’s name,
address, and taxpayer identifying number.
(i) Disbursing official means an officer
or employee designated to disburse
Federal salary payments. This includes
all disbursing officials of Federal salary payments, including but not limited to, disbursing officials of the Department of the Treasury, the Department of Defense, the United States
Postal Service, any government corporation, and any disbursing official of
the United States designated by the
Secretary.
(j) Disposable pay means the amount
that remains from an employee’s Federal pay after required deductions for
Federal, State and local income taxes;
Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the
Thrift Savings Plan (TSP); premiums
for life (excluding amounts deducted
for supplemental coverage) and health
insurance benefits; Internal Revenue
Service (IRS) tax levies; and such other
deductions that are required by law to
be withheld.
(k) Employee means any individual
employed by GSA or a cross-serviced
agency of the executive, legislative, or
judicial branches of the Federal Government, including Government corporations.
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General Services Administration
§ 105–56.027
(l) Federal employee records means
records of Federal salary payments
that a paying agency has certified to a
disbursing official for disbursement.
(m) FMS means the Financial Management Service, a bureau of the Department of the Treasury.
(n) Pay means basic pay, special pay,
incentive pay, retired pay, retainer
pay, or in the case of an individual not
entitled to basic pay, other authorized
pay.
(o) Paying agency means the agency
that employs the Federal employee
who owes the debt and authorizes the
payment of his or her current pay. A
paying agency also includes an agency
that performs payroll services on behalf of the employing agency.
(p) Salary offset means administrative
offset to collect a debt owed by a Federal employee from the current pay account of the employee.
(q) Secretary means the Secretary of
the Treasury or his or her delegate.
(r) Taxpayer identifying number means
the identifying number described under
section 6109 of the Internal Revenue
Code of 1986 (26 U.S.C. 6109). For an individual, the taxpayer identifying
number is the individual’s social security number.
§ 105–56.026 GSA participation.
(a) As required under 5 U.S.C.
5514(a)(1), creditor agencies must participate at least annually in centralized salary offset computer matching.
To meet this requirement, creditor
agencies will notify FMS of all pastdue, legally enforceable debts delinquent for more than 180 days for purposes of administrative offset, as required under 31 U.S.C. 3716(c)(6). Additionally, creditor agencies may notify
FMS of past-due, legally enforceable
debts delinquent for less than 180 days
for purposes of administrative offset.
(b) Prior to submitting a debt to
FMS for purposes of collection by administrative offset, including salary
offset, creditor agencies will provide
written certification to FMS that—
(1) The debt is past-due and legally
enforceable in the amount submitted
to FMS and that the creditor agency
will ensure that collections (other than
collections through offset) are properly
credited to the debt;
(2) Except in the case of a judgment
debt or as otherwise allowed by law,
the debt is referred for offset within
ten years after the creditor agency’s
right of action accrues;
(3) The creditor agency has complied
with the provisions of 31 U.S.C. 3716
(administrative offset) and related regulations including, but not limited to,
the provisions requiring the creditor
agency to provide the debtor with applicable notices and opportunities for a
review of the debt; and
(4) The creditor agency has complied
with the provisions of 5 U.S.C. 5514 (salary offset) and related regulations including, but not limited to, the provisions requiring the creditor agency to
provide the debtor with applicable notices and opportunities for a hearing.
(c) FMS may waive the certification
requirement set forth in paragraph
(b)(4) of this section as a prerequisite
to submitting the debt to FMS. If FMS
waives the certification requirement,
before an offset occurs, the creditor
agency will provide the Federal employee with the notices and opportunities for a hearing as required by 5
U.S.C. 5514 and applicable regulations,
and will certify to FMS that the requirements of 5 U.S.C. 5514 and applicable regulations have been met.
(d) The creditor agency will notify
FMS immediately of any payments
credited by the agency to the debtor’s
account,
other
than
credits
for
amounts collected by offset, after submission of the debt to FMS. The creditor agency will notify FMS once the
debt is paid in its entirety. The creditor agency will also notify FMS immediately of any change in the status of
the legal enforceability of the debt, for
example, if the agency receives notice
that the debtor has filed for bankruptcy protection.
§ 105–56.027 Centralized salary offset
computer match.
(a) Delinquent debt records will be
compared with Federal employee
records maintained by members of the
consortium or paying agencies. The
records will be compared to identify
Federal employees who owe delinquent
debts for purposes of collecting the
debt by administrative offset. A match
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§ 105–56.028
41 CFR Ch. 105 (7–1–16 Edition)
will occur when the taxpayer identifying number and name of a Federal
employee are the same as the taxpayer
identifying number and name of a debtor.
(b) As authorized by the provisions of
31 U.S.C. 3716(f), FMS, under a delegation of authority from the Secretary,
has waived certain requirements of the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. 552a, as
amended, for administrative offset, including salary offset, upon written certification by the creditor agency, that
the requirements of 31 U.S.C. 3716(a)
have been met. Specifically, FMS has
waived the requirements for a computer matching agreement contained
in 5 U.S.C. 552a(o) and for post-match
notice and verification contained in 5
U.S.C. 552a(p).
§ 105–56.028
Salary offset.
When a match occurs and all other
requirements for offset have been met,
as required by the provisions of 31
U.S.C. 3716(c), the disbursing official
will offset the GSA employee’s or
cross-serviced agency employee’s salary payment to satisfy, in whole or
part, the debt owed by the employee.
Alternatively, the GSA National Payroll Center, serving as the paying agency, on behalf of the disbursing official,
may deduct the amount of the offset
from an employee’s disposable pay before the employee’s salary payment is
certified to a disbursing official for disbursement.
§ 105–56.029
Offset amount.
(a) The minimum dollar amount of
salary offset under this subpart is $100.
(b) The amount offset from a salary
payment under this subpart will be the
lesser of—
(1) The amount of the debt, including
any interest, penalties and administrative costs; or
(2) Up to 15 percent of the debtor’s
disposable pay.
(c) Alternatively, the amount offset
may be an amount agreed upon, in
writing, by the debtor and the creditor
agency.
(d) Offsets will continue until the
debt, including any interest, penalties,
and administrative costs, is paid in full
or otherwise resolved to the satisfaction of the creditor agency.
§ 105–56.030 Priorities.
GSA, acting as the paying agency, on
behalf of the disbursing official, will
apply the order of precedence when
processing debts identified by the centralized salary offset computer match
program as follows:
(a) A levy pursuant to the Internal
Revenue Code of 1986 (26 U.S.C. 1 et seq.)
takes precedence over other deductions
under this subpart.
(b) When a salary payment may be
reduced to collect more than one debt,
amounts offset under this subpart will
be applied to a debt only after amounts
offset have been applied to satisfy past
due child support debts assigned to a
State pursuant to the Social Security
Act under 42 U.S.C. 602(a)(26) or
671(a)(17).
§ 105–56.031 Notice.
(a) The disbursing official will provide GSA an electronic list of the
names, mailing addresses, and taxpayer
identifying numbers of the debtors
from whom amounts of past-due, legally enforceable debt are due other
Federal agencies. The disbursing official will identify the creditor agency
name and a point of contact that will
handle concerns regarding the debt.
(b) Before offsetting a salary payment, the GSA National Payroll Center, acting as the paying agency on behalf of the disbursing official, will notify the debtor in writing of the date
deductions from salary will commence
and of the amount of such deductions.
(c)(1) When an offset occurs under
this subpart, the disbursing official, or
the GSA National Payroll Center on
behalf of the disbursing official, will
notify the debtor in writing that an
offset has occurred including—
(i) A description of the payment and
the amount of offset taken;
(ii) The identity of the creditor agency identified by the disbursing official
requesting the offset; and
(iii) A contact point at the creditor
agency identified by the disbursing official that will handle concerns regarding the offset.
(2) The information described in
paragraphs (c)(1)(ii) and (c)(1)(iii) of
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31
General Services Administration
§ 105–57.001
this section does not need to be provided to the debtor when the offset occurs if such information was included
in a prior notice from the disbursing
official or the creditor agency.
§ 105–56.032 Fees.
GSA, while performing centralized
salary offset computer matching services, may charge a fee sufficient to
cover the full cost for such services. In
addition, FMS, or GSA acting as the
paying agency on behalf of FMS, may
charge a fee sufficient to cover the full
cost of implementing the administrative offset program. FMS may deduct
the fees from amounts collected by offset or may bill the creditor agency.
Fees charged for offset will be based on
actual administrative offsets completed.
§ 105–56.033 Disposition of amounts
collected.
(a) The disbursing official conducting
the offset will transmit amounts collected for debts, less fees charged under
§ 105–56.032 of this subpart, to the creditor agency.
(b) If an erroneous offset payment is
made to the creditor agency, the disbursing official will notify the creditor
agency that an erroneous offset payment has been made.
(1) The disbursing official may deduct the amount of the erroneous offset payment from future amounts payable to the creditor agency; or
(2) Alternatively, upon the disbursing
official’s request, the creditor agency
will promptly return to the disbursing
official or the affected payee an
amount equal to the amount of the erroneous payment (without regard to
whether any other amounts payable to
the creditor agency have been paid).
The disbursing official and the creditor
agency will adjust the debtor records
appropriately.
PART 105–57—ADMINISTRATION
WAGE GARNISHMENT
Sec.
105–57.001 Purpose, authority and scope.
105–57.002 Definitions.
105–57.003 General rule.
105–57.004 Notice requirements.
105–57.005 Hearing.
105–57.006 Wage garnishment order.
105–57.007 Certification by employer.
105–57.008 Amounts withheld.
105–57.009 Exclusions from garnishment.
105–57.010 Financial hardship.
105–57.011 Ending garnishment.
105–57.012 Actions prohibited by the employer.
105–57.013 Refunds.
105–57.014 Right of action.
AUTHORITY: 5 U.S.C.
3720D, 31 CFR 285.11.
552–553,
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U.S.C.
SOURCE: 68 FR 68761, Dec. 10, 2003, unless
otherwise noted.
§ 105–57.001 Purpose, authority and
scope.
(a) This part provides standards and
procedures for GSA to collect money
from a debtor’s disposable pay by
means of administrative wage garnishment to satisfy delinquent non-tax
debt owed to the United States.
(b) These standards and procedures
are authorized under the wage garnishment provisions of the Debt Collection
Improvement Act of 1996, codified at 31
U.S.C. 3720D, and Department of the
Treasury Wage Garnishment Regulations at 31 CFR 285.11.
(c) Scope. (1) This part applies to any
GSA program that gives rise to a delinquent non-tax debt owed to the United
States and that pursues recovery of
such debt.
(2) This part will apply notwithstanding any provision of State law.
(3) Nothing in this part precludes the
compromise of a debt or the suspension
or termination of collection action in
accordance with applicable law. See,
for example, the Federal Claims Collection Standards (FCCS), 31 CFR parts
900 through 904.
(4) The receipt of payments pursuant
to this part does not preclude GSA
from pursuing other debt collection
remedies, including the offset of Federal payments to satisfy delinquent
non-tax debt owed to the United
States.
GSA may pursue such debt collection
remedies separately or in conjunction
with administrative wage garnishment.
(5) This part does not apply to the
collection of delinquent non-tax debt
owed to the United States from the
wages of Federal employees from their
Federal employment. Federal pay is
subject to the Federal salary offset
procedures set forth in 5 U.S.C. 5514 and
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31
§ 105–57.002
41 CFR Ch. 105 (7–1–16 Edition)
other applicable laws. GSA standards
and procedures for offsetting Federal
wage payments are stated in 41 CFR
part 105–56.
(6) Nothing in this part requires GSA
to duplicate notices or administrative
proceedings required by contract or
other laws or regulations.
§ 105–57.002 Definitions.
(a) Administrative offset, as defined in
31 U.S.C. 3701(a)(1), means withholding
funds payable by the United States (including funds payable by the United
States on behalf of a State government) to, or held by the United States
for, a person to satisfy a claim.
(b) Business day means Monday
through Friday, excluding Federal
legal holidays. For purposes of computation, the last day of the period will
be included unless it is a Federal legal
holiday.
(c) Day means calendar day. For purposes of computation, the last day of
the period will be included unless it is
a Saturday, a Sunday, or a Federal
legal holiday.
(d) Debtor means an individual who
owes a delinquent non-tax debt to the
United States.
(e) ‘‘Delinquent’’ or ‘‘past-due’’ non-tax
debt means any non-tax debt that has
not been paid by the date specified in
GSA’s initial written demand for payment or applicable agreement or instrument (including a post-delinquency
payment agreement), unless other satisfactory payment arrangements have
been made.
(f) Disposable pay means that part of
the debtor’s compensation (including,
but not limited to, salary, bonuses,
commissions, and vacation pay) from
an employer remaining after the deduction of health insurance premiums
and any amounts required by law to be
withheld. For purposes of this part,
‘‘amounts required by law to be withheld’’ include amounts for deductions
such as social security taxes and withholding taxes, but do not include any
amount withheld pursuant to a court
order.
(g) Employer means a person or entity
that employs the services of others and
that pays their wages or salaries. The
term employer includes, but is not limited to, State and local Governments,
but does not include an agency of the
Federal Government as defined by 31
CFR 285.11(c).
(h) Evidence of service means information retained by GSA indicating the
nature of the document to which it pertains, the date of submission of the
document, and to whom the document
is being submitted. Evidence of service
may be retained electronically or otherwise, so long as the manner of retention is sufficient for evidentiary purposes.
(i) Financial hardship means an inability to meet basic living expenses
for goods and services necessary for the
survival of the debtor and his or her
spouse and dependents. See § 105–57.010
of this part.
(j) For the purposes of the standards
in this part, unless otherwise stated,
the term ‘‘Administrator’’ refers to the
Administrator of General Services or
the Administrator’s delegate.
(k) For the purposes of the standards
in this part, the terms ‘‘claim’’ and
‘‘debt’’ are synonymous and interchangeable.
They refer to an amount of money,
funds, or property that has been determined by GSA to be due the United
States from any person, organization,
or entity, except another Federal agency, from sources which include loans
insured or guaranteed by the United
States and all other amounts due the
United States from fees, leases, rents,
royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures and all other similar sources,
including debt administered by a third
party as an agent for the Federal Government. For the purposes of administrative offset under 31 U.S.C. 3716, the
terms ‘‘claim’’ and ‘‘debt’’ include an
amount of money, funds, or property
owed by a person to a State (including
past-due support being enforced by a
State), the District of Columbia, American Samoa, Guam, the United States
Virgin Islands, the Commonwealth of
the Northern Mariana Islands, or the
Commonwealth of Puerto Rico.
(l) For the purposes of the standards
in this part, unless otherwise stated,
the terms ‘‘GSA’’ and ‘‘Agency’’ are
synonymous and interchangeable.
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General Services Administration
§ 105–57.005
(m) For the purposes of the standards
in this part, unless otherwise stated,
‘‘Secretary’’ means the Secretary of
the Treasury or the Secretary’s delegate.
(n) Garnishment means the process of
withholding amounts from an employee’s disposable pay and the paying of
those amounts to GSA in satisfaction
of a withholding order.
(o) Hearing means a review of the
documentary evidence concerning the
existence and/or amount of a debt, and/
or the terms of a repayment schedule,
provided such repayment schedule is
established other than by a written
agreement entered into pursuant to
this part. If the hearing official determines that the issues in dispute cannot
be resolved solely by review of the
written record, such as when the validity of the debt turns on the issue of
credibility or veracity, an oral hearing
may be provided.
(p) Hearing official means a Board
Judge of the Civilian Board of Contract
Appeals (CBCA).
(q) Withholding order means ‘‘Wage
Garnishment Order (SF 329B)’’, issued
by GSA. For purposes of this part, the
terms ‘‘wage garnishment order’’ and
‘‘garnishment order’’ have the same
meaning as ‘‘withholding order.’’
(r) In this part, words in the plural
form shall include the singular and
vice versa, and words signifying the
masculine gender shall include the
feminine and vice versa. The terms
‘‘includes’’ and ‘‘including’’ do not exclude matters not listed but do include
matters that are in the same general
class.
[68 FR 68761, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–57.003 General rule.
Whenever GSA determines a delinquent debt is owed by an individual,
the Agency may initiate administrative proceedings to garnish the wages
of the delinquent debtor.
§ 105–57.004 Notice requirements.
(a) At least 30 days before the initiation of garnishment proceedings, GSA
will send, by first class mail, overnight
delivery service, or hand delivery to
the debtor’s last known address a written notice informing the debtor of—
(1) The nature and amount of the
debt;
(2) The intention of GSA to initiate
proceedings to collect the debt through
deductions from pay until the debt and
all accumulated interest, penalties and
administrative costs are paid in full;
and
(3) The debtor’s rights, including
those set forth in paragraph (b) of this
section, and the time frame within
which the debtor may exercise his or
her rights.
(b) The debtor will be afforded the opportunity—
(1) To inspect and copy Agency
records related to the debt;
(2) To enter into a written repayment
agreement with GSA under terms
agreeable to the Agency; and
(3) To request a hearing in accordance with § 105-57.005 of this part concerning the existence and/or amount of
the debt, and/or the terms of the proposed repayment schedule under the
garnishment order. However, the debtor is not entitled to a hearing concerning the terms of the proposed repayment schedule if these terms have
been established by written agreement
under paragraph (b)(2) of this section.
(c) The notice required by this section may be included with GSA’s demand letter required by 41 CFR 105–
55.010.
(d) GSA will keep a copy of the evidence of service indicating the date of
submission of the notice. The evidence
of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.
§ 105–57.005
Hearing.
(a) GSA will provide a hearing, which
at the hearing official’s option may be
oral or written, if within fifteen (15)
business days of submission of the notice by GSA, the debtor submits a
signed and dated written request for a
hearing, to the official named in the
notice, concerning the existence and/or
amount of the debt, and/or the terms of
the repayment schedule (for repayment
schedules established other than by
written
agreement
under
§ 105–
57.004(b)(2) of this part). A copy of the
request for a hearing must also be sent
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§ 105–57.005
41 CFR Ch. 105 (7–1–16 Edition)
to the Civilian Board of Contract Appeals (CBCA) at 1800 F Street NW.,
Washington, DC 20405.
(b) Types of hearing or review. (1) For
purposes of this section, whenever GSA
is required to afford a debtor a hearing,
the hearing official will provide the
debtor with a reasonable opportunity
for an oral hearing when he/she determines that the issues in dispute cannot
be resolved by review of the documentary evidence, for example, when the
validity of the claim turns on the issue
of credibility or veracity.
(2) If the hearing official determines
that an oral hearing is appropriate, he/
she will establish the time and location
of the hearing. An oral hearing may, at
the debtor’s option, be conducted either in-person or by telephone conference. In-person hearings will be conducted in the hearing official’s office
located at 1800 M Street NW., 6th
Floor, Washington, DC 20036, or at another location designated by the hearing official. All personal and travel expenses incurred by the debtor in connection with an in-person hearing will
be borne by the debtor. All telephonic
charges incurred during a hearing will
be the responsibility of GSA.
(3) The debtor may represent himself
or herself or may be represented by another person of his or her choice at the
hearing. GSA will not compensate the
debtor for representation expenses, including hourly fees for attorneys, travel expenses, or costs for reproducing
documents.
(4) In those cases when an oral hearing is not required by this section, the
hearing official will nevertheless conduct a ‘‘paper hearing’’, that is, the
hearing official will decide the issues
in dispute based upon a review of the
written record. The hearing official
will establish a reasonable deadline for
the submission of evidence.
(c) Subject to paragraph (k) of this
section, if the debtor’s written request
is received by GSA on or before the
15th business day after the submission
of the notice described in § 105–57.004(a)
of this part, the Agency will not issue
a withholding order under § 105–57.006 of
this part until the debtor has been provided the requested hearing and a decision in accordance with paragraphs (h)
and (i) of this section has been rendered.
(d) If the debtor’s written request for
a hearing is received by GSA after the
15th business day following the mailing
of the notice described in § 105–57.004(a)
of this part, GSA may consider the request timely filed and provide a hearing if the debtor can show that the
delay was because of circumstances beyond his or her control. However, GSA
will not delay issuance of a withholding order unless the Agency determines that the delay in filing the request was caused by factors over which
the debtor had no control, or GSA receives information that the Agency believes justifies a delay or cancellation
of the withholding order.
(e) After the debtor requests a hearing, the hearing official will notify the
debtor of—
(1) The date and time of a telephonic
hearing;
(2) The date, time, and location of an
in-person oral hearing; or
(3) The deadline for the submission of
evidence for a written hearing.
(f) Burden of proof. (1) GSA will have
the burden of establishing the existence and/or amount of the debt.
(2) Thereafter, if the debtor disputes
the existence and/or amount of the
debt, the debtor must prove by a preponderance of the evidence that no
debt exists or that the amount of the
debt is incorrect. In addition, the debtor may present evidence that the terms
of the repayment schedule are unlawful, would cause a financial hardship to
the debtor, or that collection of the
debt may not be pursued due to operation of law.
(g) The hearing official will arrange
and maintain a written transcript of
any hearing provided under this section. The transcript will be made available to either party in the event of an
appeal under the Administrative Procedure Act, 5 U.S.C. 701 through 706. All
charges associated with the taking of
the transcript will be the responsibility
of GSA. A hearing is not required to be
a formal evidentiary-type hearing;
however, witnesses who testify in oral
hearings will do so under oath or affirmation.
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General Services Administration
§ 105–57.008
(h) The hearing official will issue a
written opinion stating his or her decision, as soon as practicable, but not
later than sixty (60) days after the date
on which the request for such hearing
was received by GSA. If the hearing official is unable to provide the debtor
with a hearing and render a decision
within 60 days after the receipt of the
request for such hearing—
(1) GSA will not issue a withholding
order until the hearing is held and a
decision rendered; or
(2) If GSA had previously issued a
withholding order to the debtor’s employer, the Agency will suspend the
withholding order beginning on the
61st day after the receipt of the hearing
request and continuing until a hearing
is held and a decision is rendered.
(i) The written decision will include—
(1) A summary of the facts presented;
(2) The hearing official’s findings,
analysis and conclusions; and
(3) The terms of any repayment
schedules, if applicable.
(j) The hearing official’s decision will
be the final Agency action for the purposes of judicial review under the Administrative Procedure Act (5 U.S.C.
701 et seq.).
(k) In the absence of good cause
shown, a debtor who fails to appear at
a hearing scheduled pursuant to paragraph (e) of this section, or to provide
written submissions within the time
set by the hearing official, will be
deemed to have waived his or her right
to appear and present evidence.
[68 FR 68761, Dec. 10, 2003, as amended at 78
FR 29247, May 20, 2013]
§ 105–57.006
Wage garnishment order.
(a) Unless GSA receives information
it believes justifies a delay or cancellation of the withholding order, the
Agency will send, by first class mail,
overnight delivery service or hand delivery, a SF 329A (Letter to Employer
& Important Notice to Employer), a SF
329B (Wage Garnishment Order), a SF
329C (Wage Garnishment Worksheet),
and a SF 329D (Employer Certification), to the debtor’s employer—
(1) Within 30 days after the debtor
fails to make a timely request for a
hearing (i.e., within 15 business days
after the mailing of the notice described in § 105–57.004(a) of this part); or
(2) If a timely request for a hearing is
made by the debtor, within 30 days
after a final decision is made by the
hearing official to proceed with garnishment.
(b) The withholding order sent to the
employer under paragraph (a) of this
section will contain the signature of,
or the image of the signature of, the
Administrator or his or her delegate.
The order will contain only the information necessary for the employer to
comply with the withholding order.
Such information includes the debtor’s
name, address, and social security
number, as well as instructions for
withholding and information as to
where payments are to be sent.
(c) GSA will retain a copy of the evidence of service indicating the date of
submission of the order. The evidence
of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.
§ 105–57.007
Certification by employer.
The employer must complete and return the SF 329D (Employer Certification) to GSA within the time frame
prescribed in the instructions to the
form. The certification will address
matters such as information about the
debtor’s employment status and disposable pay available for withholding.
§ 105–57.008
Amounts withheld.
(a) After receipt of the garnishment
order issued under this part, the employer shall deduct from all disposable
pay paid to the applicable debtor during each pay period the amount of garnishment described in paragraph (b) of
this section. The employer may use the
SF 329C (Wage Garnishment Worksheet) to calculate the amount to be
deducted from the debtor’s disposable
pay.
(b) Subject to the provisions of paragraphs (c) and (d) of this section, the
amount of garnishment will be the
lesser of—
(1) The amount indicated on the garnishment order up to 15 percent of the
debtor’s disposable pay; or
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§ 105–57.009
41 CFR Ch. 105 (7–1–16 Edition)
(2) The amount set forth in 15 U.S.C.
1673(a)(2) (Restriction on Garnishment), which is the amount by which a
debtor’s disposable pay exceeds an
amount equivalent to thirty times the
minimum wage. See 29 CFR 870.10.
(c) When a debtor’s pay is subject to
withholding orders with priority, the
following will apply:
(1) Unless otherwise provided by Federal law, withholding orders issued
under this part will be paid in the
amounts set forth under paragraph (b)
of this section and will have priority
over other withholding orders which
are served later in time. Notwithstanding the foregoing, withholding orders for family support will have priority over withholding orders issued
under this part.
(2) If amounts are being withheld
from a debtor’s pay pursuant to a withholding order served on an employer
before a withholding order issued pursuant to this part, or if a withholding
order for family support is served on an
employer at any time, the amounts
withheld pursuant to the withholding
order issued under this part will be the
lesser of—
(i) The amount calculated under
paragraph (b) of this section; or
(ii) An amount equal to 25 percent of
the debtor’s disposable pay less the
amount(s) withheld under the withholding order(s) with priority.
(3) If a debtor owes more than one
debt to GSA, the Agency may issue
multiple withholding orders provided
the total amount garnished from the
debtor’s pay for such orders does not
exceed the amount set forth in paragraph (b) of this section.
(d) An amount greater than that set
forth in paragraphs (b) and (c) of this
section may be withheld upon the written consent of the debtor.
(e) The employer shall promptly pay
to GSA all amounts withheld in accordance with the withholding order
issued pursuant to this part.
(f) An employer will not be required
to vary its normal pay and disbursement cycles in order to comply with
the withholding order.
(g) Any assignment or allotment by
an employee of his or her earnings will
be void to the extent it interferes with
or prohibits execution of the with-
holding order issued under this part,
except for any assignment or allotment
made pursuant to a family support
judgment or order.
(h) The employer will withhold the
appropriate amount from the debtor’s
wages for each pay period until the employer receives notification from GSA
to discontinue wage withholding. The
garnishment order will indicate a reasonable period of time within which
the employer is required to commence
wage withholding, usually the first
payday after the employer receives the
order. However, if the first payday is
within ten (10) days after the receipt of
the garnishment order, the employer
may begin deductions on the second
payday.
(i) Payments received through a wage
garnishment order will be applied in
the following order:
(1) To outstanding penalties.
(2) To administrative costs incurred
by GSA to collect the debt.
(3) To interest accrued on the debt at
the rate established by the terms of the
obligation under which it arose or by
applicable law.
(4) To outstanding principal.
§ 105–57.009
ment.
Exclusions from garnish-
GSA will not garnish the wages of a
debtor who it knows has been involuntarily separated from employment
until the debtor has been reemployed
continuously for at least 12 months.
The debtor has the burden of informing
GSA of the circumstances surrounding
an involuntary separation from employment.
§ 105–57.010
Financial hardship.
(a) A debtor whose wages are subject
to a wage withholding order under this
part, may, at any time, request a review by GSA of the amount garnished,
based on materially changed circumstances such as disability, divorce,
or catastrophic illness which result in
financial hardship.
(b) A debtor requesting a review
under paragraph (a) of this section
shall submit the basis for claiming the
current amount of garnishment results
in a financial hardship to the debtor,
along with supporting documentation.
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31
General Services Administration
Pt. 105–60
(c) If a financial hardship is found,
GSA will downwardly adjust, by an
amount and for a period of time agreeable to the Agency, the amount garnished to reflect the debtor’s financial
condition. GSA will notify the employer of any adjustments to the
amounts to be withheld.
§ 105–57.011 Ending garnishment.
(a) Once GSA has fully recovered the
amounts owed by the debtor, including
interest, penalties, and administrative
costs consistent with the FCCS, the
Agency will send the debtor’s employer
notification to discontinue wage withholding.
(b) At least annually, GSA will review its debtors’ accounts to ensure
that garnishment has been terminated
for accounts that have been paid in
full.
§ 105–57.012 Actions prohibited by the
employer.
An employer may not discharge,
refuse to employ, or take disciplinary
action against the debtor due to the
issuance of a withholding order under
this part. See 31 U.S.C. 3720D(e).
§ 105–57.013 Refunds.
(a) If a hearing official, at a hearing
held pursuant to § 105–57.005 of this
part, determines that a debt is not legally due and owing to the United
States, GSA will promptly refund any
amount collected by means of administrative wage garnishment.
(b) Unless required by Federal law or
contract, refunds under this part will
not bear interest.
§ 105–57.014 Right of action.
GSA may sue any employer for any
amount that the employer fails to
withhold from wages owed and payable
to an employee in accordance with
§§ 105–057.006 and 105–57.008 of this part,
plus attorney’s fees, costs, and if applicable, punitive damages. However, a
suit may not be filed before the termination of the collection action involving a particular debtor, unless earlier
filing is necessary to avoid expiration
of any applicable statute of limitations
period. For purposes of this part, ‘‘termination of the collection action’’ occurs when GSA has terminated collec-
tion action in accordance with the
FCCS or other applicable standards. In
any event, termination of the collection action will have been deemed to
occur if GSA has not received any payments to satisfy the debt from the particular debtor whose wages were subject to garnishment, in whole or in
part, for a period of one (1) year.
PART 105–60—PUBLIC AVAILABILITY
OF AGENCY RECORDS AND INFORMATIONAL MATERIALS
Sec.
105–60.000
Scope of part.
Subpart 105–60.1—General Provisions
105–60.101 Purpose.
105–60.102 Application.
105–60.103 Policy.
105–60.103–1 Availability of records.
105–60.103–2 Applying exemptions.
105–60.104 Records of other agencies.
Subpart 105–60.2—Publication of General
Agency Information and Rules in the
Federal Register
105–60.201 Published information and rules.
105–60.202 Published materials available for
sale to the public.
Subpart 105–60.3—Availability of Opinions,
Orders, Policies, Interpretations, Manuals, and Instructions
105–60.301 General.
105–60.302 Available materials.
105–60.303 Rules for public inspection and
copying.
105–60.304 Public information handbook and
index.
105–60.305 Fees.
105–60.305–1 Definitions.
105–60.305–2 Scope of this subpart.
105–60.305–3 GSA records available without
charge.
105–60.305–4 GSA records available at a fee.
105–60.305–5 Searches.
105–60.305–6 Reviews.
105–60.305–7 Assurance of payment.
105–60.305–8 Prepayment of fees.
105–60.305–9 Form of payment.
105–60.305–10 Fee schedule.
105–60.305–11 Fees for authenticated and attested copies.
105–60.305–12 Administrative actions to improve assessment and collection of fees.
105–60.305–13 Waiver of fee.
Subpart 105–60.4—Described Records
105–60.401
General.
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§ 105–60.000
41 CFR Ch. 105 (7–1–16 Edition)
105–60.402 Procedures for making records
available.
105–60.402–1 Submission of requests.
105–60.402–2 Response to initial requests.
105–60.403 Appeal within GSA.
105–60.404 Extension of time limits.
105–60.405 Processing requests for confidential commercial information.
Subpart 105–60.5—Exemptions
105–60.501 Categories of records exempt from
disclosure under the FOIA.
Subpart 105–60.6—Production or Disclosure
by Present or Former General Services
Administration Employees in Response
to Subpoenas or Similar Demands in
Judicial or Administrative Proceedings
105–60.601 Purpose and scope of subpart.
105–60.602 Definitions.
105–60.603 Acceptance of service of a subpoena duces tecum or other legal demand
on behalf of the General Services Administration.
105–60.604 Production or disclosure prohibited unless approved by the Appropriate
Authority.
105–60.605 Procedure in the event of a demand for production or disclosure.
105–60.606 Procedure where response to demand is required prior to receiving instructions.
105–60.607 Procedure in the event of an adverse ruling.
105–60.608 Fees, expenses, and costs.
AUTHORITY: 5 U.S.C. 301 and 552; 40 U.S.C.
486(c).
SOURCE: 63 FR 56839, Oct. 23, 1998, unless
otherwise noted.
§ 105–60.000 Scope of part.
(a) This part sets forth policies and
procedures of the General Services Administration (GSA) regarding public
access to records documenting:
(1) Agency organization, functions,
decisionmaking channels, and rules
and regulations of general applicability;
(2) Agency final opinions and orders,
including policy statements and staff
manuals;
(3) Operational and other appropriate
agency records; and
(4) Agency proceedings.
(b) This part also covers exemptions
from disclosure of these records; procedures for the public to inspect or obtain copies of GSA records; and instructions to current and former GSA
employees on the response to a sub-
poena or other legal demand for material or information received or generated in the performance of official
duty or because of the person’s official
status.
(c) Any policies and procedures in
any GSA internal or external directive
inconsistent with the policies and procedures set forth in this part are superseded to the extent of that inconsistency.
Subpart 105–60.1—General
Provisions
§ 105–60.101 Purpose.
This part 105–60 implements the provisions of the Freedom of Information
Act (FOIA), as amended, 5 U.S.C. 552.
The regulations in this part also implement
Executive
Order
12600,
Predisclosure Notification Procedures
for Confidential Commercial Information, of June 23, 1987 (3 CFR, 1987
Comp., p. 235). This part prescribes procedures by which the public may inspect and obtain copies of GSA records
under the FOIA, including administrative procedures which must be exhausted before a requester invokes the
jurisdiction of an appropriate United
States District Court for GSA’s failure
to respond to a proper request within
the statutory time limits, for a denial
of agency records or challenge to the
adequacy of a search, or for a denial of
a fee waiver.
§ 105–60.102 Application.
This part applies to all records and
informational materials generated,
maintained, and controlled by GSA
that come within the scope of 5 U.S.C.
552.
§ 105–60.103
Policy.
§ 105–60.103–1 Availability of records.
The policies of GSA with regard to
the availability of records to the public
are:
(a) GSA records are available to the
greatest extent possible in keeping
with the spirit and intent of the FOIA.
GSA will disclose information in any
existing GSA record, with noted exceptions, regardless of the form or format
of the record. GSA will provide the
record in the form or format requested
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General Services Administration
§ 105–60.201
if the record is reproducible by the
agency in that form or format without
significant expenditure of resources.
GSA will make reasonable efforts to
maintain its records in forms or formats that are reproducible for purposes
of this section.
(b) The person making the request
does not need to demonstrate an interest in the records or justify the request.
(c) The FOIA does not give the public
the right to demand that GSA compile
a record that does not already exist.
For example, FOIA does not require
GSA to collect and compile information from multiple sources to create a
new record. GSA may compile records
or perform minor reprogramming to
extract records from a database or system when doing so will not significantly interfere with the operation of
the automated system in question or
involve a significant expenditure of resources.
(d) Similarly, FOIA does not require
GSA to reconstruct records that have
been destroyed in compliance with disposition schedules approved by the Archivist of the United States. However,
GSA will not destroy records after a
member of the public has requested access to them and will process the request even if destruction would otherwise be authorized.
(e) If the record requested is not complete at the time of the request, GSA
may, at its discretion, inform the requester that the complete record will
be provided when it is available, with
no additional request required, if the
record is not exempt from disclosure.
(f) Requests must be addressed to the
office identified in § 105–60.402–1.
(g) Fees for locating and duplicating
records are listed in § 105–60,305–10.
§ 105–60.103–2 Applying exemptions.
GSA may deny a request for a GSA
record if it falls within an exemption
under the FOIA outlined in subpart
105–60.5 of this part. Except when a
record is classified or when disclosure
would violate any Federal statute, the
authority to withhold a record from
disclosure is permissive rather than
mandatory. GSA will not withhold a
record unless there is a compelling reason to do so; i.e., disclosure will likely
cause harm to a Governmental or private interest. In the absence of a compelling reason, GSA will disclose a
record even if it otherwise is subject to
exemption. GSA will cite the compelling reason(s) to requesters when any
record is denied under FOIA.
§ 105–60.104
Records of other agencies.
If GSA receives a request for access
to records that are known to be the
primary responsibility of another agency, GSA will refer the request to the
agency concerned for appropriate action. For example, GSA will refer requests to the appropriate agency in
cases in which GSA does not have sufficient knowledge of the action or matter that is the subject of the requested
records to determine whether the
records must be released or may be
withheld under one of the exemptions
listed in Subpart 105–60.5 of this part. If
GSA does not have the requested
records, the agency will attempt to determine whether the requested records
exist at another agency and, if possible, will forward the request to that
agency. GSA will inform the requester
that GSA has forwarded the request to
another agency.
Subpart 105–60.2—Publication of
General Agency Information
and Rules in the Federal Register
§ 105–60.201 Published
and rules.
In accordance with 5 U.S.C. 552(a)(1),
GSA publishes in the FEDERAL REGISTER, for the guidance of the public,
the following general information concerning GSA:
(a) Description of the organization of
the Central Office and regional offices
and the established places at which,
the employees from whom, and the
methods whereby, the public may obtain information, make submittals or
requests, or obtain decisions;
(b) Statements of the general course
and method by which its functions are
channeled and determined, including
the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of
forms available or the places where
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§ 105–60.202
41 CFR Ch. 105 (7–1–16 Edition)
forms may be obtained, and instructions on the scope and contents of all
papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by
law, and statements of general policy
or interpretations of general applicability formulated and adopted by GSA;
and
(e) Each amendment, revision, or repeal of the materials described in this
section.
§ 105–60.202 Published materials available for sale to the public.
(a) Substantive rules of general applicability adopted by GSA as authorized by law that this agency publishes
in the FEDERAL REGISTER and which
are available for sale to the public by
the Superintendent of Documents at
pre-established prices are: The General
Services Administration Acquisition
Regulation (48 CFR Ch. 5), the Federal
Acquisition Regulation (48 CFR Ch. 1),
the Federal Property Management
Regulations (41 CFR Ch. 101), and the
Federal Travel Regulation (41 CFR Ch.
301–304).
(b) GSA provides technical information, including manuals and handbooks, to other Federal entities, e.g.,
the National Technical Information
Service, with separate statutory authority to make information available
to the public at pre-established fees.
(c) Requests for information available through the sources in paragraphs
(a) and (b) of this section will be referred to those sources.
Subpart 105–60.3—Availability of
Opinions, Orders, Policies, Interpretations, Manuals, and
Instructions
§ 105–60.301 General.
GSA makes available to the public
the materials described under 5 U.S.C.
552(a)(2), which are listed in § 105–60.302
through an extensive electronic home
page, http://www.gsa.gov/. A public
handbook listing those materials as described in § 105–60.304 is available at
GSA’s Central Office in Washington,
DC, and at the website at http://
www.gsa.gov/staff/c/ca/pub1.htm.
Members of the public who do not have the
means to access this information elec-
tronically, and who are not located in
the Washington, DC area, may contact
the Freedom of Information Act office
in any of the regional offices listed in
this regulation. These offices will
make arrangements for members of the
public to access the information at a
computer located at the FOIA office.
Reasonable copying services are provided at the fees specified in § 105–
60.305.
§ 105–60.302 Available materials.
GSA materials available under this
subpart 105–60.3 are as follows:
(a) Final opinions, including concurring and dissenting opinions and orders, made in the adjudication of cases.
(b) Those statements and policy and
interpretations that have been adopted
by GSA and are not published in the
FEDERAL REGISTER.
(c) Administrative staff manuals and
instructions to staff affecting a member of the public unless these materials
are promptly published and copies offered for sale.
§ 105–60.303 Rules for public inspection and copying.
(a) Locations. Selected areas containing the materials available for public inspection and copying, described in
this § 105–60.302, are located in the following places:
Central Office (GSA Headquarters),
General Services Administration, Washington, DC.
Telephone: 202–501–2262
FAX: 202–501–2727,
Email: [email protected]
1800 F Street, NW. (CAI), Washington, DC
20405
Office of the Inspector General
FOIA Officer, Office of Inspector General
(J)
General Services Administration
1800 F Street NW., Room 5324
Washington, DC 20405
New England Region
General Services Administration (1AB)
(Comprised of the States of Connecticut,
Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont)
Thomas P. O’Neill, Jr., Federal Building,
10 Causeway Street, Boston, MA 02222
Telephone: 617–565–8100
FAX: 617–565–8101
Northeast and Caribbean Region
(Comprised of the States of New Jersey,
New York, the Commonwealth of Puerto
Rico, and the Virgin Islands)
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General Services Administration
§ 105–60.305–1
General Services Administration (2AR)
26 Federal Plaza, New York, NY 10278
Telephone: 212–264–1234
FAX: 212–264–2760
Mid-Atlantic Region
(Comprised of the States of Delaware,
Maryland, Pennsylvania, Virginia, and
West Virginia, excluding the Washington, DC metropolitan area)
General Services Administration (3ADS),
100 Penn Square East, Philadelphia, PA
19107
Telephone: 215–656–5530
FAX: 215–656–5590
Southeast Sunbelt Region
(Comprised of the States of Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, and Tennessee)
General Services Administration (4E), 401
West Peachtree Street, Atlanta, GA 30365
Telephone: 404–331–5103
FAX: 404–331–1813
Great Lakes Region
(Comprised of the States of Illinois, Indiana, Ohio, Minnesota, Michigan, and Wisconsin)
General Services Administration (5ADB),
230 South Dearborn Street, Chicago, IL
60604
Telephone: 312–353–5383
FAX: 312–353–5385
Heartland Region
(Comprised of the States of Iowa, Kansas,
Missouri, and Nebraska)
General Services Administration (6ADB),
1500 East Bannister Road, Kansas City,
MO 64131
Telephone: 816–926–7203
FAX: 816–823–1167
Greater Southwest Region
(Comprised of the States of Arkansas, Louisiana, New Mexico, Texas, and Oklahoma)
General Services Administration (7ADQ),
819 Taylor Street, Fort Worth, TX 76102
Telephone: 817–978–3902
FAX: 817–978–4867
Rocky Mountain Region
(Comprised of the States of Colorado,
North Dakota, South Dakota, Montana,
Utah, and Wyoming)
Business Service Center, General Services
Administration (8PB-B), Building 41,
Denver Federal Center, Denver, CO 80225
Telephone: 303–236–7408
FAX: 303–236–7403
Pacific Rim Region
(Comprised of the States of Hawaii, California, Nevada, Arizona, Guam, and
Trust Territory of the Pacific)
Business Service Center, General Services
Administration (9ADB), 525 Market
Street, San Francisco, CA 941105
Telephone: 415–522–2715
FAX: 415–522–2705
Northwest/Arctic Region
(Comprised of the States of Alaska, Idaho,
Oregon, and Washington)
General Services Administration (10L),
GSA Center, 15th and C Streets, SW., Auburn, WA 98002
Telephone: 206–931–7007
FAX: 206–931–7195
National Capital Region
(Comprised of the District of Columbia and
the surrounding metropolitan area)
General Services Administration (WPFAL), 7th and D Streets SW., Washington,
DC 20407
Telephone: 202–708–5854
FAX: 202–708–4655.
(b) Time. The offices listed above will
be open to the public during the business hours of the GSA office where
they are located.
(c) Reproduction services and fees. The
GSA Central Office or the Regional
Business Service Centers will furnish
reasonable copying and reproduction
services for available materials at the
fees specified in § 105–60.305.
§ 105–60.304 Public information handbook and index.
GSA publishes a handbook for the
public that identifies information regarding any matter described in § 105–
60.302. This handbook also lists published information available from GSA
and describes the procedures the public
may use to obtain information using
the Freedom of Information Act
(FOIA). This handbook may be obtained without charge from any of the
GSA FOIA offices listed in § 105–
60.303(a), or at the GSA Internet Homepage
(http://www.gsa.gov/staff/c/ca/cai/
links.htm).
§ 105–60.305
Fees.
§ 105–60.305–1
Definitions.
For the purpose of this part:
(a) A statute specifically providing
for setting the level of fees for particular types of records (5 U.S.C.
552(a)(4)(A)(vii)) means any statute
that specifically requires a Government agency to set the level of fees for
particular types of records, as opposed
to a statute that generally discusses
such fees. Fees are required by statute
to:
(1) Make Government information
conveniently available to the public
and to private sector organizations;
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§ 105–60.305–1
41 CFR Ch. 105 (7–1–16 Edition)
(2) Ensure that groups and individuals pay the cost of publications and
other services which are for their special use so that these costs are not
borne by the general taxpaying public;
(3) Operate an information dissemination activity on self-sustaining basis
to the maximum extent possible; or
(4) Return revenue to the Treasury
for defraying, wholly or in part, appropriated funds used to pay the cost of
disseminating Government information.
(b) The term direct costs means those
expenditures which GSA actually incurs in searching for and duplicating
(and in the case of commercial requesters, reviewing and redacting) documents to respond to a FOIA request.
Direct costs include, for example, the
salary of the employee performing the
work (the basic rate of pay for the employee plus 16 percent of that rate to
cover benefits), and the cost of operating duplicating machinery. Overhead
expenses such as costs of space, and
heating or lighting the facility where
the records are stored are not included
in direct costs.
(c) The term search includes all time
spent looking for material that is responsive to a request, including lineby-line identification of material within documents. Searches will be performed in the most efficient and least
expensive manner so as to minimize
costs for both the agency and the requester. Line-by-line searches will not
be undertaken when it would be more
efficient to duplicate the entire document. Search for responsive material is
not the same as review of a record to
determine whether it is exempt from
disclosure in whole or in part (see paragraph (e) of this section. Searches may
be done manually or by computer using
existing programming or new programming when this would not significantly
interfere with the operation of the
automated system in question.
(d) The term duplication means the
process of making a copy of a document in response to a FOIA request.
Copies can take the form of paper,
microform audiovisual materials, or
magnetic types or disks. To the extent
practicable, GSA will provide a copy of
the material in the form specified by
the requester.
(e) The term review means the process of examining documents located in
response to a request to determine if
any portion of that document is permitted to be withheld and processing
any documents for disclosure. See § 105–
60.305–6.
(f) The term commercial-use request
means a request from or on behalf of
one who seeks information for a use or
purpose that furthers the commercial,
trade, or profit interests of the requester or person on whose behalf the
request is made. GSA will determine
whether a requester properly belongs
in this category by determining how
the requester will use the documents.
(g) The term educational institution
means a preschool, a public or private
elementary or secondary school, an institution of graduate higher education,
an institution of undergraduate higher
education, an institution of professional education, or an institution of
vocational education which operates a
program or programs of scholarly research.
(h) The term noncommercial scientific
institution means an institution that is
not operated on a ‘‘commercial’’ basis
as that term is used in paragraph (f) of
this section and which is operated solely for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry.
(i) The term representative of the news
media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news
means information that is about current events or that would be of current
interest to the public. Examples of
news media include television or radio
stations broadcasting to the public at
large, and publishers of periodicals (but
only in those instances when they can
qualify as disseminators of ‘‘news’’)
who make their products available for
purchase or subscription by the general
public. ‘‘Freelance’’ journalists will be
regarded as working for a news organization if they can demonstrate a solid
basis for expecting publication through
that organization even though they are
not actually employed by it.
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General Services Administration
§ 105–60.305–2
§ 105–60.305–8
Scope of this subpart.
This subpart sets forth policies and
procedures to be followed in the assessment and collection of fees from a requester for the search, review, and reproduction of GSA records.
§ 105–60.305–3 GSA records available
without charge.
GSA records available to the public
are displayed in the Business Service
Center for each GSA region. The address and phone number of the Business Service Centers are listed in § 105–
60.303. Certain material related to bids
(excluding construction plans and specifications) and any material displayed
are available without charge upon request.
§ 105–60.305–4
at a fee.
GSA records available
(a) GSA will make a record not subject to exemption available at a time
and place mutually agreed upon by
GSA and the requester at fees shown in
§ 105–60.305–10. Waivers of these fees are
available under the conditions described in § 105–60.305–13. GSA will
agree to:
(1) Show the originals to the requester;
(2) Make one copy available at a fee;
or
(3) A combination of these alternatives.
(b) GSA will make copies of voluminous records as quickly as possible.
GSA may, in its discretion, make a
reasonable number of additional copies
for a fee when commercial reproduction services are not available to the
requester.
§ 105–60.305–5
Searches.
(a) GSA may charge for the time
spent in the following activities in determining ‘‘search time’’ subject to applicable fees as provided in § 105–60.305–
10:
(1) Time spent in trying to locate
GSA records which come within the
scope of the request;
(2) Time spent in either transporting
a necessary agency searcher to a place
of record storage, or in transporting
records to the locations of a necessary
agency searcher; and
(3) Direct costs of the use of computer time to locate and extract requested records.
(b) GSA will not charge for the time
spent in monitoring a requester’s inspection of disclosed agency records.
(c) GSA may assess fees for search
time even if the search proves unsuccessful or if the records located are exempt from disclosure.
§ 105–60.305–6 Reviews.
(a) GSA will charge only commercialuse requesters for review time.
(b) GSA will charge for the time
spent in the following activities in determining ‘‘review time’’ subject to applicable fees as provided in § 105–60.305–
10:
(1) Time spent in examining a requested record to determine whether
any or all of the record is exempt from
disclosure, including time spent consulting with submitters of requested
information; and
(2) Time spent in deleting exempt
matter being withheld from records
otherwise made available.
(c) GSA will not charge for:
(1) Time spent in resolving issues of
law or policy regarding the application
of exemptions; or
(2) Review at the administrative appeal level of an exemption already applied. However, records or portions of
records withheld in full under an exemption which is subsequently determined not to apply may be reviewed
again to determine the applicability of
other exemptions not previously considered. GSA will charge for such subsequent review.
§ 105–60.305–7 Assurance of payment.
If fees for search, review, and reproduction will exceed $25 but will be less
than $250, the requester must provide
written assurance of payment before
GSA will process the request. If this assurance is not included in the initial
request, GSA will notify the requester
that assurance of payment is required
before the request is processed. GSA
will offer requesters an opportunity to
modify the request to reduce the fee.
§ 105–60.305–8 Prepayment of fees.
(a) Fees over $250. GSA will require
prepayment of fees for search, review,
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§ 105–60.305–9
41 CFR Ch. 105 (7–1–16 Edition)
and reproduction which are likely to
exceed $250. When the anticipated total
fee exceeds $250, the requester will receive notice to prepay and at the same
time will be given an opportunity to
modify his or her request to reduce the
fee. When fees will exceed $250, GSA
will notify the requester that it will
not start processing a request until
payment is received.
(b) Delinquent payments. As noted in
§ 105–6.305–12(d), requesters who are delinquent in paying for previous requests will be required to repay the old
debt and to prepay for any subsequent
request. GSA will inform the requester
that it will process no additional requests until all fees are paid.
§ 105–60.305–9
Form of payment.
Requesters should pay fees by check
or money order made out to the General Services Administration and addressed to the official named by GSA in
its correspondence. Payment may also
be made by means of Mastercard or
Visa. For information concerning payment by credit cards, call 816–926–7551.
§ 105–60.305–10
Fee schedule.
(a) When GSA is aware that documents responsive to a request are
maintained for distribution by an agency operating a statutory fee based program, GSA will inform the requester of
the procedures for obtaining records
from those sources.
(b) GSA will consider only the following costs in fees charged to requesters of GSA records:
(1) Review and search fees.
Manual searches by clerical staff: $13 per
hour or fraction of an hour.
Manual searches and reviews by professional staff in cases in which clerical staff
would be unable to locate the requested
records: $29 per hour or fraction of an hour.
Computer searches: Direct cost to GSA.
Transportation or special handling of
records: Direct cost to GSA.
(2) Reproduction fees.
Pages no larger than 81⁄2 by 14 inches, when
reproduced by routine electrostatic copying:
10¢ per page.
Pages over 81⁄2 by 14 inches: Direct cost of
reproduction to GSA.
Pages requiring reduction, enlargement, or
other special services: Direct cost of reproduction to GSA.
Reproduction by other than routine electrostatic copying: Direct cost of reproduction to GSA.
(c) Any fees not provided for under
paragraph (b) of this section, shall be
calculated as direct costs, in accordance with § 105–60.305–1(b).
(d) GSA will assess fees based on the
category of the requester as defined in
§ 105–60.305–1(f)–(1); i.e., commercialuse, educational and noncommercial
scientific institutions, news media, and
all other. The fees listed in paragraph
(b) of this section apply with the following exceptions:
(1) GSA will not charge the requester
if the fee is $25 or less as the cost of
collection is greater than the fee.
(2) Educational and noncommercial
scientific institutions and the news
media will be charged for the cost of
reproduction alone. These requesters
are entitled to the first 100 pages
(paper copies) of duplication at no cost.
The following are examples of how
these fees are calculated:
(i) A request that results in 150 pages of
material. No fee would be assessed for
duplication of 150 pages. The reason is
that these requesters are entitled to
the first 100 pages at no charge. The
charge for the remaining 50 pages
would be $5.00. This amount would not
be billed under the preceding section.
(ii) A request that results in 450 pages
of material. The requester in this case
would be charged $35.00. The reason is
that the requester is entitled to the
first 100 pages at no charge. The charge
for the remaining 350 pages would be
$35.
(3) Noncommercial requesters who
are not included under paragraph (d)(2)
of this section will be entitled to the
first 100 pages (page copies) of duplication at not cost and two hours of
search without charge. The term search
time generally refers to manual search.
To apply this term to searches made by
computer, GSA will determine the
hourly cost of operating the central
processing unit and the operator’s
hourly salary plus 16 percent. When the
cost of search (including the operator
time and the cost of operating the computer to process a request) reaches the
equivalent dollar amount of two hours
of the salary of the person performing
a manual search, i.e., the operator,
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General Services Administration
§ 105–60.305–13
GSA will begin assessing charges for
computer search.
(4) GSA will charge commercial-use
requesters fees which recover the full
direct costs of searching for, reviewing
for release, and duplicating the records
sought. Commercial-use requesters are
not entitled to two hours of free search
time.
(e) Determining category of requester.
GSA may ask any requester to provide
additional information at any time to
determine what fee category he or she
falls under.
§ 105–60.305–11 Fees for authenticated
and attested copies.
The fees set forth in § 105–60.305–10
apply to requests for authenticated and
attested copies of GSA records.
§ 105–60.305–12 Administrative actions
to improve assessment and collection of fees.
(a) Charging interest. GSA may charge
requesters who fail to pay fees interest
on the amount billed starting on the
31st day following the day on which the
billing was sent. Interest will be at the
rate prescribed in 31 U.S.C. 3717.
(b) Effect of the Debt Collection Act of
1982. GSA will take any action authorized by the Debt Collection Act of 1982
(Pub. L. 97–365, 96 Stat. 1749), including
disclosure to consumer reporting agencies, use of collection agencies, and assessment of penalties and administrative costs, where appropriate, to encourage payment.
(c) Aggregating requests. When GSA
reasonably believes that a requester, or
group of requesters acting in concert,
is attempting to break down a request
into a series of requests related to the
same subject for the purpose of evading
the assessment of fees, GSA will combine any such requests and charge accordingly, including fees for previous
requests where charges were not assessed. GSA will presume that multiple
requests of this type within a 30-day
period are made to avoid fees.
(d) Advanced payments. Whenever a
requester is delinquent in paying the
fee for a previous request (i.e., within
30 days of the date of the billing), GSA
will require the requester to pay the
full amount owed plus any applicable
interest penalties and administrative
costs as provided in paragraph (a) of
this section or to demonstrate that he
or she has, in fact, paid the fee. In such
cases, GSA will also require advance
payment of the full amount of the estimated fee before the agency begins to
process a new request or a pending request from that requester. When advance payment is required under this
selection, the administrative time limits in subsection (a)(6) of the FOIA (i.e.,
10 working days from receipt of appeals
from initial denial plus permissible
time extensions) will begin only after
GSA has received the fee payments described in § 105–60.305–8.
§ 105–60.305–13 Waiver of fee.
(a) Any request for a waiver or the
reduction of a fee should be included in
the initial letter requesting access to
GSA records under § 105–60.402–1. The
waiver request should explain how disclosure of the information would contribute significantly to public’s understanding of the operations or activities
of the Government and would not be
primarily in the commercial interest of
the requester. In responding to a requester, GSA will consider the following factors:
(1) Whether the subject of the requested records concerns ‘‘the operations or activities of the Government.’’ The subject matter of the requested records must specifically concern identifiable operations or activities of the Federal Government. The
connection between the records and the
operations or activities must be direct
and clear, not remote or attenuated.
(2) Whether the disclosure is ‘‘likely
to contribute’’ to an understanding of
Government operations or activities.
In this connection, GSA will consider
whether the requested information is
already in the public domain. If it is,
then disclosure of the information
would not be likely to contribute to an
understanding of Government operations or activities, as nothing new
would be added to the public record.
(3) Whether disclosure of the requested information will contribute to
‘‘public’s understanding.’’ The focus
here must be on the contribution to
public’s understanding rather than personal benefit to be derived by the requester. For purposes of this analysis,
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§ 105–60.401
41 CFR Ch. 105 (7–1–16 Edition)
the identity and qualifications of the
requester should be considered to determine whether the requester is in a
position to contribute to public’s understanding through the requested disclosure.
(4) Whether the requester has a commercial
interest
that
would
be
furthered by the requested disclosure;
and if so: whether the magnitude of the
identified commercial interest of the
requester is sufficiently large, in comparison with the public’s interest in
disclosure, that disclosure is ‘‘primarily in the commercial interest of
the requester.’’
(b) GSA will ask the requester to furnish additional information if the initial request is insufficient to evaluate
the merits of the request. GSA will not
start processing a request until the fee
waiver issue has been resolved unless
the requester has provided written assurance of payment in full if the fee
waiver is denied by the agency.
Subpart 105–60.4—Described
Records
§ 105–60.401 General.
(a) Except for records made available
in accordance with subparts 105–60.2
and 105–60.3 of this part, GSA will make
records available to a requester
promptly when the request reasonably
describes the records unless GSA invokes an exemption in accordance with
subpart 105–60.5 of this part. Although
the burden of reasonable description of
the records rests with the requester,
whenever practical GSA will assist requesters to describe records more specifically.
(b) Whenever a request does not reasonably describe the records requested,
GSA may contact the requester to seek
a more specific description. The 20workday time limit set forth in § 105–
60.402–2 will not start until the official
identified in § 105–60.402–1 or other responding official receives a request reasonably describing the records.
§ 105–60.402 Procedures for making
records available.
This subpart sets forth initial procedures for making records available
when they are requested, including administrative procedures to be ex-
hausted prior to seeking judicial review by an appropriate United States
District Court.
§ 105–60.402–1 Submission of requests.
For records located in the GSA Central Office, the requester must submit
a request in writing to the GSA FOIA
Officer, General Services Administration (CAI), Washington, DC 20405. Requesters may FAX requests to (202) 501–
2727, or submit a request by electronic
mail to [email protected]. For records located in the Office of Inspector General, the requester must submit a request to the FOIA Officer, Office of Inspector General, General Services Administration, 1800 F Street NW., Room
5324, Washington, DC 20405. For records
located in the GSA regional offices, the
requester must submit a request to the
FOIA Officer for the relevant region, at
the address listed in § 105–60.303(a). Requests should include the words ‘‘Freedom of Information Act Request’’
prominently marked on both the face
of the request letter and the envelope.
The 20-workday time limit for agency
decisions set forth in § 105–60.402–2 begins with receipt of a request in the office of the official identified in this section, unless the provisions under §§ 105–
60.305–8 and 105–60.305–12(d) apply. Failure to include the words ‘‘Freedom of
Information Act Request’’ or to submit
a request to the official identified in
this section will result in processing
delays. A requester with questions concerning a FOIA request should contact
the GSA FOIA Office, General Services
Administration (CAI), 18th and F
Streets, NW., Washington, DC 20405,
(202) 501–2262.
§ 105–60.402–2 Response to initial requests.
(a) GSA will respond to an initial
FOIA request that reasonably describes
requested records, including a fee waiver request, within 20 workdays (that is,
excluding Saturdays, Sundays, and
legal holidays) after receipt of a request by the office of the appropriate
official specified in § 105–60.402–1. This
letter will provide the agency’s decision with respect to disclosure or nondisclosure of the requested records, or,
if appropriate, a decision on a request
for a fee waiver. If the records to be
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General Services Administration
§ 105–60.403
disclosed are not provided with the initial letter, the records will be sent as
soon as possible thereafter.
(b) In unusual circumstances, as described in § 105–60.404, GSA will inform
the requester of the agency’s need to
take an extension of time, not to exceed an additional 10 workdays. This
notice will afford requesters an opportunity to limit the scope of the request
so that it may be processed within prescribed time limits or an opportunity
to arrange an alternative time frame
for processing the request or a modified
request. Such mutually agreed time
frames will supersede the 10 day limit
for extensions.
(c) GSA will consider requests for expedited processing from requesters who
submit a statement describing a compelling need and certifying that this
need is true and correct to the best of
such person’s knowledge and belief. A
compelling need means:
(1) Failure to obtain the records on
an expedited basis could reasonably be
expected to pose an imminent threat to
the life or physical safety of an individual; or
(2) The information is urgently needed by an individual primarily engaged
in disseminating information in order
to inform the public concerning actual
or alleged Federal Government activity. An individual primarily engaged in
dissmeninating information means a
person whose primary activity involves
publishing or otherwise disseminating
information to the public. ‘‘Urgently
needed’’ information has a particular
value that will be lost if not disseminated quickly, such as a breaking news
story or general public interest. Information of historical interest only, or
information sought for litigation or
commercial activities would not qualify, nor would a news media publication or broadcast deadline unrelated to
the newsbreaking nature of the information.
(d) GSA will decide whether to grant
expedited processing within five working days of receipt of the request. If the
request is granted, GSA will process
the request ahead of non-expedited requests, as soon as practicable. If the request is not granted, GSA will give expeditious consideration to administrative appeals of this denial.
(e) GSA may, at its discretion, establish three processing queues based on
whether any requests have been granted expedited status and on the difficulty and complexity of preparing a
response. Within each queue, responses
will be prepared on a ‘‘first in, first
out’’ basis. One queue will be made up
of expedited requests; the second, of
simple responses that clearly can be
prepared without requesting an extension of time; the third, of responses
that will require an extension of time.
§ 105–60.403 Appeal within GSA.
(a) A requester who receives a denial
of a request, in whole or in part, a denial of a request for expedited processing or of a fee waiver request may
appeal that decision within GSA. A requester may also appeal the adequacy
of the search if GSA determines that it
has searched for but has not requested
records. The requester must send the
appeal to the GSA FOIA Officer, General Services Administration (CAI),
Washington, DC 20405, regardless of
whether the denial being appealed was
made in the Central Office or in a regional office. For denials which originate in the Office of Inspector General,
the requester must send the appeal to
the Inspector General, General Services Administration, 1800 F Street NW.,
Washington, DC 20405.
(b) The GSA FOIA Officer must receive an appeal no later than 120 calendar days after receipt by the requester of the initial denial of access or
fee waiver.
(c) An appeal must be in writing and
include a brief statement of the reasons he or she thinks GSA should release the records or provide expedited
processing and enclose copies of the
initial request and denial. The appeal
letter must include the words ‘‘Freedom of Information Act Appeal’’ on
both the face of the appeal letter and
on the envelope. Failure to follow these
procedures will delay processing of the
appeal. GSA has 20 workdays after receipt of a proper appeal of denial of
records to issue a determination with
respect to the appeal. The 20-workday
time limit shall not begin until the
GSA FOIA Officer receives the appeal.
As noted in § 105–60.404, the GSA FOIA
Officer may extend this time limit in
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§ 105–60.404
41 CFR Ch. 105 (7–1–16 Edition)
unusual circumstances. GSA will process appeals of denials of expedited processing as soon as possible after receiving them.
(d) A requester who receives a denial
of an appeal, or who has not received a
response to an appeal or initial request
within the statutory time frame may
seek judicial review in the United
States District Court in the district in
which the requester resides or has a
principal place of business, or where
the records are situated, or in the
United States District Court for the
District of Columbia.
§ 105–60.404
Extension of time limits.
(a) In unusual circumstances, the
GSA FOIA Officer or the regional FOIA
Officer may extend the time limits prescribed in §§ 105–60.402 and 105–60.403.
For purposes of this section, the term
unusual circumstances means:
(1) The need to search for and collect
the requested records from field facilities or other establishments that are
separate from the office processing the
request;
(2) The need to search for, collect,
and appropriately examine a voluminous amount of separate and distinct
records which are described in a single
request;
(3) The need for consultation, which
shall be conducted with all practicable
speed, with another agency having a
substantial interest in the determination of the request or among two or
more components of GSA having substantial subject-matter interest therein; or
(4) The need to consult with the submitter of the requested information.
(b) If necessary, GSA may take more
than one extension of time. However,
the total extension of time to respond
to any single request shall not exceed
10 workdays. The extension may be divided between the initial and appeal
stages or within a single stage. GSA
will provide written notice to the requester of any extension of time limits.
§ 105–60.405 Processing requests for
confidential commercial information.
(a) General. The following additional
procedures apply when processing re-
quests for confidential commercial information.
(b) Definitions. For the purposes of
this section, the following definitions
apply:
(1) Confidential commercial information
means records provided to the Government by a submitter that contain material arguably exempt from release
under 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to
cause substantial competitive harm.
(2) Submitter means a person or entity
which provides to the Government information which may constitute confidential commercial information. The
term submitter includes, but is not limited to, individuals, partnerships, corporations, State governments, and foreign governments.
(c) Designating confidential commercial
information. Since January 1, 1988, submitters have been required to designate confidential commercial information as such when it is submitted to
GSA or at a reasonable time thereafter. For information submitted in
connection with negotiated procurements, the requirements of Federal Acquisition Regulation 48 CFR 15.407(c)(8)
and 52.215–12 also apply.
(d) Procedural requirements—consultation with the submitter. (1) If GSA receives a FOIA request for potentially
confidential commercial information,
it will notify the submitter immediately by telephone and invite an
opinion whether disclosure will or will
not cause substantial competitive
harm.
(2) GSA will follow up the telephonic
notice promptly in writing before releasing any records unless paragraph
(f) of this section applies.
(3) If the submitter indicates an objection to disclosure GSA will give the
submitter seven workdays from receipt
of the letter to provide GSA with a detailed written explanation of how disclosure of any specified portion of the
records would be competitively harmful.
(4) If the submitter verbally states
that there is no objection to disclosure,
GSA will confirm this fact in writing
before disclosing any records.
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General Services Administration
§ 105–60.501
(5) At the same time GSA notifies the
submitter, it will also advise the requester that there will be a delay in responding to the request due to the need
to consult with the submitter.
(6) GSA will review the reasons for
nondisclosure before independently deciding whether the information must
be released or should be withheld. If
GSA decides to release the requested
information, it will provide the submitter with a written statement explaining why his or her objections are
not sustained. The letter to the submitter will contain a copy of the material to be disclosed or will offer the
submitter an opportunity to review the
material in none of GSA’s offices. If
GSA decides not to release the material, it will notify the submitter orally
or in writing.
(7) If GSA determines to disclose information over a submitter’s objections, it will inform the submitter the
GSA will delay disclosure for 5 workdays from the estimated date the submitter receives GSA’s decision before
it releases the information. The decision letter to the requester shall state
that GSA will delay disclosure of material it has determined to disclose to
allow for the notification of the submitter.
(e) When notice is required. (1) For
confidential commercial information
submitted prior to January 1, 1988,
GSA will notify a submitter whenever
it receives a FOIA request for such information:
(i) If the records are less than 10
years old and the information has been
designated by the submitter as confidential commercial information; or
(ii) If GSA has reason to believe that
disclosure of the information could
reasonably be expected to cause substantial competitive harm.
(2) For confidential commercial information submitted on or after January 1, 1988, GSA will notify a submitter
whenever it determines that the agency may be required to disclose records:
(i) That the submitter has previously
designated as privileged or confidential; or
(ii) That GSA believes could reasonably be expected to cause substantial
competitive harm if disclosed.
(3) GSA will provide notice to a submitter for a period of up to 10 years
after the date of submission.
(f) When notice is not required. The notice requirements of this section will
not apply if:
(1) GSA determines that the information should not be disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is
required by law other than the FOIA;
(4) Disclosure is required by an agency rule that
(i) Was adopted pursuant to notice
and public comment;
(ii) Specifies narrow classes of
records submitted to the agency that
are to be released under FOIA; and
(iii) Provides in exceptional circumstances for notice when the submitter provides written justification,
at the time the information is submitted for a reasonable time thereafter, that disclosure of the information could reasonably be expected to
cause substantial competitive harm;
(5) The information is not designated
by the submitter as exempt from disclosure under paragraph (c) of this section, unless GSA has substantial reason to believe that disclosure of the information would be competitively
harmful; or
(6) The designation made by the submitter in accordance with paragraph
(c) of this section appears obviously
frivolous; except that, in such cases,
the agency must provide the submitter
with written notice of any final administrative decision five workdays prior
to disclosing the information.
(g) Lawsuits. If a FOIA requester sues
the agency to compel disclosure of confidential commercial information, GSA
will notify the submitter as soon as
possible. If the submitter sues GSA to
enjoin disclosure of the records, GSA
will notify the requester.
Subpart 105–60.5—Exemptions
§ 105–60.501 Categories of records exempt from disclosure under the
FOIA.
(a) 5 U.S.C. 552(b) provides that the
requirements of the FOIA do not apply
to matters that are:
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§ 105–60.501
41 CFR Ch. 105 (7–1–16 Edition)
(1) Specifically authorized under the
criteria established by an executive
order to be kept secret in the interest
of national defense or foreign policy
and are in fact properly classified pursuant to such executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute (other than section 552b
of this title), provided that such statute
(i) Requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue;
or
(ii) Establishes particular criteria for
withholding or refers to particular
types of matters to be withheld;
(4) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would not
be available by law to a party other
than an agency in litigation with the
agency;
(6) Personnel and medical files and
similar files the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records or information compiled
for law enforcement purposes, but only
to the extent that the production of
such law enforcement records or information
(i) Could reasonably be expected to
interfere
with
enforcement
proceedings;
(ii) Would deprive a person of a right
to a fair trial or an impartial adjudication;
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(iv) Could reasonably be expected to
disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in
the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency
conducting a lawful national security
intelligence investigation, information
furnished by a confidential source;
(v) Would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the
law; or
(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual;
(8) Contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use
of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) GSA will provide any reasonably
segregable portion of a record to a requester after deletion of the portions
that are exempt under this section. If
GSA must delete information from a
record before disclosing it, this information, and the reasons for withholding it, will be clearly described in
the cover letter to the requester or in
an attachment. Unless indicating the
extent of the deletion would harm an
interest protected by an exemption,
the amount of deleted information
shall be indicated on the released portion of paper records by use of brackets
or darkened areas indicating removal
of information. In the case of electronic deletion, the amount of redacted
information shall be indicated at the
place in the record where such deletion
was made, unless including the indication would harm an interest protected
by the exemption under which the exemption was made.
(c) GSA will invoke no exemption
under this section to deny access to
records that would be available pursuant to a request made under the Privacy Act of 1974 (5 U.S.C. 552a) and implementing regulations, 41 CFR part
105–64, or if disclosure would cause no
demonstrable harm to any governmental or private interest.
(d) Pursuant to National Defense Authorization Act of Fiscal Year 1997,
Pub. L. No. 104–201, section 821, 110
Stat. 2422, GSA will invoke Exemption
3 to deny access to any proposal submitted by a vendor in response to the
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General Services Administration
§ 105–60.602
requirements of a solicitation for a
competitive proposal unless the proposal is set forth or incorporated by
reference in a contract entered into between the agency and the contractor
that submitted the proposal.
(e) Whenever a request is made which
involves access to records described in
§ 105–60.501(a)(7)(i) and the investigation
or proceeding involves a possible violation of criminal law, and there is reason to believe that the subject of the
investigation or proceeding is not
aware of it, and disclosure of the existence of the records could reasonably be
expected to interfere with enforcement
proceedings, the agency may, during
only such time as that circumstance
continues, treat the records as not subject to the requirements of this section.
(f) Whenever informant records maintained by a criminal law enforcement
agency under an informant’s name or
personal identifier are requested by a
third party according to the informant’s name or personal identifier, the
agency may treat the records as not
subject to the requirements of this section unless the informant’s status as
an informant has been officially confirmed.
(g) Whenever a request is made that
involves access to records maintained
by the Federal Bureau of Investigation
pertaining to foreign intelligence or
counterintelligence, or international
terrorism, and the existence of the
records is classified information as provided in paragraph (a)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the records are
not subject to the requirements of this
section.
Subpart 105–60.6—Production or
Disclosure by Present or
Former General Services Administration Employees in Response to Subpoenas or Similar Demands in Judicial or
Administrative Proceedings
§ 105–60.601
part.
Purpose and scope of sub-
(a) By virtue of the authority vested
in the Administrator of General Serv-
ices by 5 U.S.C. 301 and 40 U.S.C. 486(c)
this subpart establishes instructions
and procedures to be followed by current and former employees of the General Services Administration in response to subpoenas or similar demands issued in judicial or administrative proceedings for production or disclosure of material or information obtained as part of the performance of a
person’s official duties or because of
the person’s official status. Nothing in
these instructions applies to responses
to subpoenas or demands issued by the
Congress or in Federal grand jury proceedings.
(b) This subpart provides instructions
regarding the internal operations of
GSA and the conduct of its employees,
and is not intended and does not, and
may not, be relied upon to create any
right or benefit, substantive or procedural, enforceable at law by a party
against GSA.
§ 105–60.602
Definitions.
For purposes of this subpart, the following definitions apply:
(a) Material means any document,
record, file or data, regardless of the
physical form or the media by or
through which it is maintained or recorded, which was generated or acquired by a current or former GSA employee by reason of the performance of
that person’s official duties or because
of the person’s official status, or any
other tangible item, e.g., personal
property possessed or controlled by
GSA.
(b) Information means any knowledge
or facts contained in material, and any
knowledge or facts acquired by current
or former GSA employee as part of the
performance of that person’s official
duties or because of that person’s official status.
(c) Demand means any subpoena,
order, or similar demand for the production or disclosure of material, information or testimony regarding such
material or information, issued by a
court or other authority in a judicial
or administrative proceeding, excluding congressional subpoenas or demands in Federal grand jury proceedings, and served upon a present or
former GSA employee.
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§ 105–60.603
41 CFR Ch. 105 (7–1–16 Edition)
(d) Appropriate authority means the
following officials who are delegated
authority to approve or deny responses
to demands for material, information
or testimony:
(1) The Counsel to the Inspector General for material and information
which is the responsibility of the GSA
Office of Inspector General or testimony of current or former employees
of the Office of the Inspector General;
(2) The Counsel to the Civilian Board
of Contract Appeals (CBCA) for material and information which is the responsibility of the CBCA or testimony
of current or former CBCA employees;
(3) The GSA General Counsel, Associate General Counsel(s) or Regional
Counsel for all material, information,
or testimony not covered by paragraphs (d)(1) and (2) of this section.
[63 FR 56839, Oct. 23, 1998, as amended at 78
FR 29247, May 20, 2013]
§ 105–60.603 Acceptance of service of a
subpoena duces tecum or other
legal demand on behalf of the General Services Administration.
(a) The Administrator of General
Services and the following officials are
the only GSA personnel authorized to
accept service of a subpoena or other
legal demand on behalf of GSA: The
GSA General Counsel and Associate
General Counsel(s) and, with respect to
material or information which is the
responsibility of a regional office, the
Regional Administrator and Regional
Counsel. The Inspector General and
Counsel to the Inspector General, as
well as the Chairman and Vice Chairman of the Civilian Board of Contract
Appeals, are authorized to accept service for material or information which
are the responsibility of their respective organizations.
(b) A present or former GSA employee not authorized to accept service
of a subpoena or other demand for material, information or testimony obtained in an official capacity shall respectfully inform the process server
that he or she is not authorized to accept service on behalf of GSA and refer
the process server to an appropriate official listed in paragraph (a) of this section.
(c) A Regional Administrator or Regional Counsel shall notify the General
Counsel of a demand which may raise
policy concerns or affect multiple regions.
[63 FR 56839, Oct. 23, 1998, as amended at 78
FR 29247, May 20, 2013]
§ 105–60.604 Production or disclosure
prohibited unless approved by the
Appropriate Authority.
No current or former GSA employee
shall, in response to a demand, produce
any material or disclose, through testimony or other means, any information
covered by this subpart, without prior
approval of the Appropriate Authority.
§ 105–60.605 Procedure in the event of
a demand for production or disclosure.
(a) Whenever service of a demand is
attempted in person or via mail upon a
current or former GSA employee for
the production of material or the disclosure of information covered by this
subpart, the employee or former employee shall immediately notify the
Appropriate Authority through his or
her supervisor or his or her former
service, staff office, or regional office.
The supervisor shall notify the Appropriate Authority. For current or
former employees of the Office of Inspector General located in regional offices, Counsel to the Inspector General
shall be notified through the immediate supervisor or former employing
field office.
(b) The Appropriate Authority shall
require that the party seeking material
or testimony provide the Appropriate
Authority with an affidavit, declaration, statement, and/or a plan as described in paragraphs (c) (1), (2), and (3)
of this section if not included with or
described in the demand. The Appropriate Authority may waive this requirement for a demand arising out of
proceedings to which GSA or the
United States is a party. Any waiver
will be coordinated with the United
States Department of Justice (DOJ) in
proceedings in which GSA, its current
or former employees, or the United
States are represented by DOJ.
(c)(1) Oral testimony. If oral testimony is sought by a demand, the Appropriate Authority shall require the
party seeking the testimony or the
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General Services Administration
§ 105–60.605
party’s attorney to provide, by affidavit or other statement, a detailed
summary of the testimony sought and
its relevance to the proceedings. Any
authorization for the testimony of a
current or former GSA employee shall
be limited to the scope of the demand
as summarized in such statement or affidavit.
(2) Production of material. When information other than oral testimony is
sought by a demand, the Appropriate
Authority shall require the party seeking production or the party’s attorney
to provide a detailed summary, by affidavit or other statement, of the information sought and its relevance to the
proceeding.
(3) The Appropriate Authority may
require a plan or other information
from the party seeking testimony or
production of material of all demands
reasonably foreseeable, including, but
not limited to, names of all current
and former GSA employees from whom
testimony or production is or will likely be sought, areas of inquiry, for current employees the length of time
away from duty anticipated, and identification of documents to be used in
each deposition or other testimony,
where appropriate.
(d) The Appropriate Authority will
notify the current or former employee,
the appropriate supervisor, and such
other persons as circumstances may
warrant, whether disclosure or production is authorized, and of any conditions or limitations to disclosure or
production.
(e) Factors to be considered by the
Appropriate Authority in responding to
demands:
(1) Whether disclosure or production
is appropriate under rules of procedure
governing the proceeding out of which
the demand arose;
(2) The relevance of the testimony or
documents to the proceedings;
(3) The impact of the relevant substantive law concerning applicable
privileges recognized by statute, common law, judicial interpretation or
similar authority;
(4) The information provided by the
issuer of the demand in response to requests by the Appropriate Authority
pursuant to paragraphs (b) and (c) of
this section;
(5) The steps taken by the issuer of
the demand to minimize the burden of
disclosure or production on GSA, including but not limited to willingness
to accept authenticated copies of material in lieu of personal appearance by
GSA employees;
(6) The impact on pending or potential litigation involving GSA or the
United States as a party;
(7) In consultation with the head of
the GSA organizational component affected, the burden on GSA which disclosure or production would entail; and
(8) Any additional factors unique to a
particular demand or proceeding.
(f) The Appropriate Authority shall
not approve a disclosure or production
which would:
(1) Violate a statute or a specific regulation;
(2) Reveal classified information, unless appropriately declassified by the
originating agency;
(3) Reveal a confidential source or informant, unless the investigative agency and the source or informant consent;
(4) Reveal records or information
compiled for law enforcement purposes
which would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would be impaired;
(5) Reveal trade secrets or commercial or financial information which is
privileged or confidential without prior
consultation with the person from
whom it was obtained; or
(6) Be contrary to a recognized privilege.
(g) The Appropriate Authority’s determination, including any reasons for
denial or limitations on disclosure or
production, shall be made as expeditiously as possible and shall be communicated in writing to the issuer of the
demand and appropriate current or
former GSA employee(s). In proceedings in which GSA, its current or
former employees, or the United States
are represented by DOJ, the determination shall be coordinated with DOJ
which may respond to the issuer of the
subpoenas or demand in lieu of the Appropriate Authority.
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§ 105–60.606
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–60.606 Procedure
where
response to demand is required prior
to receiving instructions.
(a) If a response to a demand is required
before
the
Appropriate
Authority’s decision is issued, a GSA
attorney designated by the Appropriate
Authority for the purpose shall appear
with the employee or former employee
upon whom the demand has been made,
and shall furnish the judicial or other
authority with a copy of the instructions contained in this subpart. The attorney shall inform the court or other
authority that the demand has been or
is being referred for the prompt consideration by the Appropriate Authority.
The attorney shall respectfully request
the judicial or administrative authority to stay the demand pending receipt
of the requested instructions.
(b) The designated GSA attorney
shall coordinate GSA’s response with
DOJ’s Civil Division or the relevant Office of the United States Attorney and
may request that a DOJ or Assistant
United States Attorney appear with
the employee in addition to or in lieu
of a designated GSA attorney.
(c) If an immediate demand for production or disclosure is made in circumstances which preclude the appearance of a GSA or DOJ attorney on the
behalf of the employee or the former
employee, the employee or former employee shall respectfully make a request to the demanding authority for
sufficient time to obtain advice of
counsel.
§ 105–60.607 Procedure in the event of
an adverse ruling.
If the court or other authority declines to stay the effect of the demand
in response to a request made in accordance with § 105–60.606 pending receipt of instructions, or if the court or
other authority rules that the demand
must be complied with irrespective of
instructions by the Appropriate Authority not to produce the material or
disclose the information sought, the
employee or former employee upon
whom the demand has been made shall
respectfully decline to comply, citing
these instructions and the decision of
the United States Supreme Court in
United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
§ 105–60.608
Fees, expenses, and costs.
(a) In consultation with the Appropriate Authority, a current employee
who appears as a witness pursuant to a
demand shall ensure that he or she receives all fees and expenses, including
travel expenses, to which witnesses are
entitled pursuant to rules applicable to
the judicial or administrative proceedings out of which the demand
arose.
(b) Witness fees and reimbursement
for expenses received by a GSA employee shall be disposed of in accordance with rules applicable to Federal
employees in effect at the time.
(c) Reimbursement to the GSA for
costs associated with producing material pursuant to a demand shall be determined in accordance with rules applicable to the proceedings out of
which the demand arose.
PART 105–62—DOCUMENT
SECURITY AND DECLASSIFICATION
Sec.
105–62.000
Scope of part.
Subpart 105–62.1—Classified Materials
105–62.101
105–62.102
105–62.103
rials.
Security classification categories.
Authority to originally classify.
Access to GSA-originated mate-
Subpart 105–62.2—Declassification and
Downgrading
105–62.201 Declassification and downgrading.
105–62.202 Review of classified materials for
declassification purposes.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c); and E.O. 12065 dated June 28,
1978.
SOURCE: 44 FR 64805, Nov. 8, 1979, unless
otherwise noted.
§ 105–62.000
Scope of part.
This part prescribes procedures for
safeguarding national security information and material within GSA. They
explain how to identify, classify, downgrade, declassify, disseminate, and protect such information in the interests
of national security. They also supplement and conform with Executive
Order 12065 dated June 28, 1978, subject:
National Security Information, and the
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General Services Administration
§ 105–62.103
Implementing Directive dated September 29, 1978, issued through the Information Security Oversight Office.
Subpart 105–62.1—Classified
Materials
§ 105–62.101 Security classification categories.
As set forth in Executive Order 12065,
official information or material which
requires protection against unauthorized disclosure in the interests of the
national defense or foreign relations of
the United States (hereinafter collectively termed ‘‘national security’’)
shall be classified in one of three categories: Namely, Top Secret, Secret, or
Confidential, depending on its degree of
significance to the national security.
No other categories shall be used to
identify official information or material as requiring protection in the interests of national security except as
otherwise expressly provided by statute. The three classification categories
are defined as follows:
(a) Top Secret. Top Secret refers to
that national security information
which requires the highest degree of
protection, and shall be applied only to
such information as the unauthorized
disclosure of which could reasonably be
expected to cause exceptionally grave
damage to the national security. Examples of exceptionally grave damage
include armed hostilities against the
United States or its allies, disruption
of foreign relations vitally affecting
the national security, intelligence
sources and methods, and the compromise of vital national defense plans
or complex cryptologic and communications systems. This classification
shall be used with the utmost restraint.
(b) Secret. Secret refers to that national security information or material
which requires a substantial degree of
protection, and shall be applied only to
such information as the unauthorized
disclosure of which could reasonably be
expected to cause serious damage to
the national security. Examples of serious damage include disruption of foreign relations significantly affecting
the national security, significant impairment of a program or policy directly related to the national security,
and revelation of significant military
plans or intelligence operations. This
classification shall be used sparingly.
(c) Confidential. Confidential refers to
other national security information
which requires protection, and shall be
applied only to such information as the
unauthorized disclosure of which could
reasonably be expected to cause identifiable damage to the national security.
§ 105–62.102 Authority
classify.
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originally
(a) Top secret, secret, and confidential.
The authority to originally classify information as Top Secret, Secret, or
Confidential may be exercised only by
the Administrator and is delegable
only to the Director, Information Security Oversight Office.
(b) Limitations on delegation of classification authority. Delegations of original classification authority are limited
to the minimum number absolutely required for efficient administration.
Delegated original classification authority may not be redelegated.
[47 FR 5416, Feb. 5, 1982]
§ 105–62.103 Access to GSA-originated
materials.
Classified information shall not be
disseminated outside the executive
branch of the Government without the
express permission of the GSA Security
Officer except as otherwise provided in
this § 105–62.103.
(a) Access by historical researchers.
Persons outside the executive branch
who are engaged in historical research
projects, may be authorized access to
classified information or material, provided that:
(1) A written determination is made
by the Administrator of General Services that such access is clearly consistent with the interests of national
security.
(2) Access is limited to that information over which GSA has classification
jurisdiction.
(3) The material requested is reasonably accessible and can be located with
a reasonable amount of effort.
(4) The person agrees to safeguard
the information and to authorize a review of his or her notes and manuscript
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§ 105–62.201
41 CFR Ch. 105 (7–1–16 Edition)
for determination that no classified information is contained therein by signing a statement entitled ‘‘Conditions
Governing Access to Official Records
for Historical Research Purposes.’’
(5) An authorization for access shall
be valid for a period of 2 years from the
date of issuance and may be renewed
under the provisions of this § 105–
62.103(a).
(b) Access by former Presidential appointees. Persons who previously occupied policymaking positions to which
they were appointed by the President
may not remove classified information
or material upon departure from office
as all such material must remain under
the security control of the U.S. Government. Such persons may be authorized access to classified information or
material which they originated, received, reviewed, signed, or which was
addressed to them while in public office, provided that the GSA element
having classification jurisdiction for
such information or material makes a
written determination that access is
consistent with the interests of national security, approval is granted by
the GSA Security Officer, and the individual seeking access agrees:
(1) To safeguard the information,
(2) To authorize a review of his or her
notes for determination that no classified information is contained therein,
and
(3) To ensure that no classified information will be further disseminated or
published.
(c) Access during judicial proceedings.
Classified information will not normally be released in the course of any
civilian judicial proceeding. In special
circumstances however, and upon the
receipt of an order or subpoena issued
by a Federal court, the Administrator
may authorize the limited release of
classified information if he or she determines that the interests of justice
cannot otherwise be served. Appropriate safeguards will be established to
protect such classified material released for use in judicial proceedings.
(d) Access to material in NARS custody.
The Archivist of the United States prepares procedures governing access to
materials transferred to NARS custody. These procedures are issued by
the Administrator of General Services
in 41 CFR part 105–61.
(e) Access by the General Accounting
Office and congressional committees.
Classified information may be released
to the General Accounting Office
(GAO) and congressional committees
when specifically authorized by the
GSA Security Officer except as otherwise provided by law.
Subpart 105–62.2—Declassification
and Downgrading
§ 105–62.201 Declassification
downgrading.
(a) Authority to downgrade and declassify. The authority to downgrade and
declassify national security information or material shall be exercised as
follows:
(1) Information or material may be
downgraded or declassified by the GSA
official authorizing the original classification, by a successor in capacity, by
a supervisory official of either, or by
the Information Security Oversight
Committee on appeal.
(2) Downgrading and declassification
authority may also be exercised by an
official specifically authorized by the
Administrator.
(3) In the case of classified information or material officially transferred
to GSA by or under statute or Executive order in conjunction with a transfer of functions and not merely for
storage purposes, GSA shall be deemed
the originating agency for all purposes
under these procedures including downgrading and declassification.
(4) In the case of classified information or material held in GSA not officially transferred under paragraph
(a)(3) of this section but originated in
an agency which has since ceased to
exist, GSA is deemed the originating
agency. Such information or material
may be downgraded and declassified 30
calendar days after consulting with
any other agencies having an interest
in the subject matter.
(5) Classified information or material
under the final declassification jurisdiction of GSA which has been transferred to NARS for accession into the
Archives of the United States may be
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General Services Administration
§ 105–62.202
downgraded and declassified by the Archivist of the United States in accordance with Executive Order 12065, directives of the Information Security Oversight Office, and the systematic review
guidelines issued by the Administrator
of General Services.
(6) It is presumed that information
which continues to meet classification
requirements requires continued protection. In some cases, however, the
need to protect such information may
be outweighed by the public interest in
disclosure of the information, and in
these cases the information should be
declassified. When such questions arise
they shall be referred to the Administrator, the Director of the Information
Security Oversight Office, or in accordance with the procedures for mandatory review described in § 105–62.202(b).
(b) Declassification. Declassification
of information shall be given emphasis
comparable to that accorded classification. Information classified under Executive Order 12065 and prior orders
shall be declassified as early as national security considerations permit.
Decisions concerning declassification
shall be based on the loss of sensitivity
of the information with the passage of
time or on the occurrence of an event
which permits declassification. When
information is reviewed for declassification it shall be declassified unless
the declassification authority established in § 105–62.202 determines that
the information continues to meet the
classification requirements prescribed
despite the passage of time.
(c) Downgrading. Classified information that is marked for automatic
downgrading is downgraded accordingly without notification to holders.
Classified information that is not
marked for automatic downgrading
may be assigned a lower classification
designation by the originator or by an
official authorized to declassify the
same information. Notice of downgrading shall be provided to known
holders of the information.
§ 105–62.202 Review of classified materials for declassification purposes.
(a) Systematic review for declassification. Except for foreign government information, classified information constituting permanently valuable records
of GSA as defined by 44 U.S.C. 2103, and
information in the possession and
under control of NARA, under 44 U.S.C.
2107 or 2107 note, shall be reviewed for
declassification as it becomes 20 years
old. Transition to systematic review at
20 years shall be implemented as rapidly as practicable and shall be completed by December 1, 1988. Foreign
government information shall be reviewed for declassification as it becomes 30 years old.
(b) Mandatory review for declassification. All classified information upon request by a member of the public or a
Government employee or agency to declassify and release such information
under the provisions of Executive
Order 12065 shall be reviewed by the responsible GSA element for possible declassification in accordance with the
procedures set forth in paragraphs (c)
through (g) of this section.
(c) Submission of requests for review.
Requests for mandatory review of classified information shall be submitted
in accordance with the following:
(1) Requests originating within GSA
shall in all cases be submitted directly
to the service or staff office that originated the information.
(2) For expeditious action, requests
from other governmental agencies or
from members of the public should be
submitted directly to the service or
staff office that originated the material, or, if the originating element is
not known, or no longer exists, the requester shall submit the request to the
GSA Security Officer who shall cause
such request to be reviewed.
(d) Requirements for processing. Requests for declassification review and
release of information shall be processed in accordance with the provisions
set forth in paragraphs (e) through (h)
of this section subject to the following
conditions:
(1) The request is in writing and reasonably describes the information
sought with sufficient particularity to
enable the element to identify it.
(2) The requester shall be asked to
correct a request that does not comply
with paragraph (d)(1) of this section, to
provide additional information.
(3) If within 30 days the requester
does not correct the request, describe
the information sought with sufficient
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§ 105–62.202
41 CFR Ch. 105 (7–1–16 Edition)
particularity or narrow the scope of
the request, the element that received
the request shall notify the requester
and state the reason why no action will
be taken on the request.
(e) Processing of requests. Requests
that meet the foregoing requirements
for processing will be acted upon as follows:
(1) GSA action upon the initial request shall be completed within 60
days.
(2) Receipt of the request shall be acknowledged within 7 days.
(3) The designated service or staff office shall determine if the requested information may be declassified and
shall make such information available
to the requester, unless withholding it
is otherwise warranted under applicable law. If the information may not be
released in whole or in part, the requester shall be given a brief statement
as to the reasons for denial, a notice of
the right to appeal the determination
to the Deputy Administrator (the notice shall include the Deputy Administrator’s name, title, and address), and a
notice that such an appeal must be
filed with the Deputy Administrator
within 60 days in order to be considered.
(f) Foreign government information. Except as provided hereinafter, requests
for mandatory review for the declassification of classified documents that
contain foreign government information shall be processed and acted upon
in accordance with the provisions of
paragraphs (c) through (e) of this section. If the request involves information that was initially received or classified by GSA, then the corresponding
service or staff office shall be designated by the GSA Security Officer to
determine whether the foreign government information in the document
may be declassified and released in accordance with GSA policy or guidelines, after consulting with other agencies that have subject matter interest
as necessary. If GSA is not the agency
that received or classified the foreign
government information, it shall refer
the request to the appropriate agency.
In those cases where agency policy or
guidelines do not apply, consultation
with the foreign originator, through
the GSA Security Officer, may be made
prior to final action on the request.
(g) Information classified outside the
service or staff office. When a service or
staff office receives a request for declassification of information in a document which is in the custody of the
service or staff office but was classified
by another service or staff office or by
another Government agency, the service or staff office shall refer the request to the classifying service or staff
office or Government agency, together
with a copy of the document containing the information requested
when practicable, and shall notify the
requester of the referral, unless the
agency that classified the information
objects on the grounds that its association with the information requires protection. When a GSA service or staff office receives such a referral, it shall
process the request in accordance with
the requirements of this paragraph
and, if so requested, shall notify the referring service, staff office, or agency
of the determination made on the request.
(h) Action on appeal. The following
procedures shall be followed when denials of requests for declassification are
appealed:
(1) The Deputy Administrator shall,
within 15 days of the date of the appeal, convene a meeting of the GSA Information Security Oversight Committee (ISOC) that shall include the
GSA Security Officer, or his or her representative, and the GSA official who
denied the original request (and, at the
option of that official, any subordinates or personnel from other agencies
that participated in the decision for denial).
(2) The ISOC shall learn from the official the reasons for denying the request, concentrating in particular upon
which requirement continued classification is based and the identifiable
damage that would result if the information were declassified. The ISOC
shall also learn from the official the
part or parts of the information that is
classified and if by deleting minor segments of the information it might not
then be declassified.
(3) The ISOC’s decision to uphold or
deny the appeal, in whole or in part,
shall be based upon the unanimous
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General Services Administration
Pt. 105–64
opinion of its membership. In the event
that unanimity cannot be attained, the
matter shall be referred to the Administrator, whose decision shall be final.
(4) Based upon the outcome of the appeal, a reply shall be made to the person making the appeal that either encloses the requested information or
part of the information, or explains
why the continued classification of the
information is required. A copy of the
reply shall be sent to the GSA official
who originally denied the request for
declassification, to the GSA Security
Officer, and to any other agency expressing an interest in the decision.
(5) Final action on appeals shall be
completed within 30 days of the date of
the appeal.
(i) Prohibition. No service of staff office in possession of a classified document may refuse to confirm the existence of the document in response to a
request for the document under the
provisions for mandatory review, unless the fact of its existence would
itself be classifiable.
(j) Presidential papers. Information
less than 10 years old which was originated by the President, by the White
House staff, or by committees or commissions appointed by the President, or
by others acting on behalf of the President, is exempted from mandatory review for declassification. Such information 10 years old or older is subject
to mandatory review for declassification in accordance with procedures developed by the Archivist of the United
States which provide for consultation
with GSA on matters of primary subject interest to this agency.
PART 105–64—GSA PRIVACY ACT
RULES
Sec.
105–64.000
105–64.001
part?
105–64.103 What is GSA’s policy on collecting and using information in a system of records?
105–64.104 What must the system manager
tell me when soliciting personal information?
105–64.105 When may Social Security Numbers (SSNs) be collected?
105–64.106 What is GSA’s policy on information accuracy in a system of records?
105–64.107 What standards of conduct apply
to employees with privacy-related responsibilities?
105–64.108 How does GSA safeguard personal
information?
105–64.109 How does GSA handle other agencies’ records?
105–64.110 When may GSA establish computer matching programs?
105–64.111 What is GSA’s policy on directives that may conflict with this part?
Subpart 105–64.2—Access to Records
105–64.201 How do I get access to my
records?
105–64.202 How do I request access in person?
105–64.203 How do I request access in writing?
105–64.204 Can parents and guardians obtain
access to records?
105–64.205 Who will provide access to my
records?
105–64.206 How long will it take to get my
record?
105–64.207 Are there any fees?
105–64.208 What special conditions apply to
release of medical records?
105–64.209 What special conditions apply to
accessing law enforcement and security
records?
Subpart 105–64.3—Denial of Access to
Records
105–64.301 Under what conditions will I be
denied access to a record?
105–64.302 How will I be denied access?
105–64.303 How do I appeal a denial to access
a record?
105–64.304 How are administrative appeal decisions made?
105–64.305 What is my recourse to an appeal
denial?
What is the purpose of this part?
What terms are defined in this
Subpart 105–64.1—Policies and
Responsibilities
105–64.101 Who is responsible for enforcing
these rules?
105–64.102 What is GSA’s policy on disclosure of information in a system of
records?
Subpart 105–64.4—Amending Records
105–64.401 Can I amend my record?
105–64.402 What records are not subject to
amendment?
105–64.403 What happens when I submit a request to amend a record?
105–64.404 What must I do if I agree to an alternative amendment?
105–64.405 Can I appeal a denial to amend a
record?
105–64.406 How will my appeal be handled?
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§ 105–64.000
41 CFR Ch. 105 (7–1–16 Edition)
105–64.407 How do I file a Statement of Disagreement?
105–64.408 What is my recourse to a denial
decision?
Subpart 105–64.5—Disclosure of Records
105–64.501 Under what conditions may a
record be disclosed without my consent?
105–64.502 How do I find out if my record has
been disclosed?
105–64.503 What is an accounting of disclosures?
105–64.504 Under what conditions will I be
denied an accounting of disclosures?
Subpart 105–64.6—Establishing or Revising
Systems of Records in GSA
105–64.601 Procedures for establishing system of records.
Subpart 105–64.7—Assistance and
Referrals
105–64.701 Submittal of requests for assistance and referrals.
Subpart 105–64.8—Privacy Complaints
105–64.801 How to file a privacy complaint.
105–64.802 Can I appeal a decision to a privacy complaint?
105–64.803 How will my appeal by handled?
APPENDIX A TO PART 105–64—ADDRESSES FOR
GEOGRAPHICALLY DISPERSED RECORDS
AUTHORITY: 5 U.S.C. 552a.
SOURCE: 74 FR 66246, Dec. 15, 2009, unless
otherwise noted.
§ 105–64.000 What is the purpose of
this part?
This part implements the General
Services Administration (GSA) rules
under the Privacy Act of 1974, 5 U.S.C.
552a, as amended. The rules cover the
GSA systems of records from which information is retrieved by an individual’s name or personal identifier. These
rules set forth GSA’s policies and procedures
for
accessing,
reviewing,
amending, and disclosing records covered by the Privacy Act. GSA will comply with all existing and future privacy
laws.
§ 105–64.001 What terms are defined in
this part?
GSA defines the following terms to
ensure consistency of use and understanding of their meaning under this
part:
Agency means any organization covered by the Privacy Act as defined in 5
U.S.C. 551(1) and 5 U.S.C. 552a (a)(1).
GSA is such an agency.
Computer matching program means the
computerized comparison of two or
more Federal personnel or payroll systems of records, or systems of records
used to establish or verify an individual’s eligibility for Federal benefits or
to recoup delinquent debts.
Disclosure of information means providing a record or the information in a
record to someone other than the individual of record.
Exempt records means records exempted from access by an individual under
the Privacy Act, subsections (j)(1), Central Intelligence Agency, (j)(2) and
(k)(2), law enforcement, (k)(1), Section
552 (b)(1), (k)(3), protective services to
the President,(k)(4), statistical records,
(k)(5), employee background investigations, (k)(6), federal service disclosure,
and (k)(7), promotion in armed services.
Individual means a citizen of the
United States or a legal resident alien
on whom GSA maintains Privacy Act
records. An individual may be addressed as you when information is provided for the individual’s use.
Personally
Identifiable
Information
(PII) means information about a person
that contains some unique identifier,
including but not limited to name or
Social Security Number, from which
the identity of the person can be determined. In OMB Circular M–06–19, the
term ‘‘Personally Identifiable Information’’ is defined as any information
about an individual maintained by an
agency, including, but not limited to,
education, financial transactions, medical history, and criminal or employment history and information which
can be used to distinguish or trace an
individual’s identity, such as their
name, Social Security Number, date
and place of birth, mother’s maiden
name, biometric records, including any
other personal information which can
be linked to an individual.
Record means any item, collection, or
grouping of information about an individual within a system of records
which contains the individual’s name
or any other personal identifier such as
number
or
symbol,
fingerprint,
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General Services Administration
§ 105–64.106
voiceprint, or photograph. The information may relate to education, financial transactions, medical conditions,
employment, or criminal history collected in connection with an individual’s interaction with GSA.
Request for access means a request by
an individual to obtain or review his or
her record or information in the
record.
Routine use means disclosure of a
record outside GSA for the purpose for
which it is intended, as specified in the
systems of records notices.
Solicitation means a request by an officer or employee of GSA for an individual to provide information about
himself or herself for a specified purpose.
System of records means a group of
records from which information is retrieved by the name of an individual,
or by any number, symbol, or other
identifier assigned to that individual.
System manager means the GSA associate responsible for a system of
records and the information in it, as
noted in the FEDERAL REGISTER systems of records notices.
Subpart 105–64.1—Policies and
Responsibilities
§ 105–64.101 Who is responsible for enforcing these rules?
GSA Heads of Services and Staff Offices and Regional Administrators are
responsible for ensuring that all systems of records under their jurisdiction
meet the provisions of the Privacy Act
and these rules. System managers are
responsible for the system(s) of records
assigned to them. The GSA Privacy
Act Officer oversees the GSA Privacy
Program and establishes privacy-related policy and procedures for the
agency under the direction of the GSA
Senior Agency Official for Privacy.
§ 105–64.102 What is GSA’s policy on
disclosure of information in a system of records?
No information contained in a Privacy Act system of records will be disclosed to third parties without the
written consent of you, the individual
of record, except under the conditions
cited in § 105–64.501.
§ 105–64.103 What is GSA’s policy on
collecting and using information in
a system of records?
System managers must collect information that is used to determine your
rights, benefits, or privileges under
GSA programs directly from you whenever practical, and use the information
only for the intended purpose(s).
§ 105–64.104 What must the system
manager tell me when soliciting
personal information?
When soliciting information from
you or a third party for a system of
records, system managers must: Cite
the authority for collecting the information; say whether providing the information is mandatory or voluntary;
give the purpose for which the information will be used; state the routine uses
of the information; and describe the effect on you, if any, of not providing the
information. This information is found
in the Privacy Act Statement. Any
form that asks for personal information will contain this statement.
§ 105–64.105 When may Social Security
Numbers (SSNs) be collected?
(a) Statutory or regulatory authority
must exist for collecting Social Security Numbers for record systems that
use the SSNs as a method of identification. Systems without statutory or
regulatory
authority
implemented
after January 1, 1975, will not collect
Social Security Numbers.
(b) In compliance with OMB M–07–16
(Safeguarding Against and Responding
to the Breach of Personally Identifiable Information) collection and storage of SSN will be limited to systems
where no other identifier is currently
available. While GSA will strive to reduce the collection and storage of SSN
and other PII we recognize that some
systems continue to need to collect
this information.
§ 105–64.106 What is GSA’s policy on
information accuracy in a system of
records?
System managers will ensure that all
Privacy Act records are accurate, relevant, necessary, timely, and complete.
All GSA systems are reviewed annually. Those systems that contain Personally Identifiable Information (PII)
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§ 105–64.107
41 CFR Ch. 105 (7–1–16 Edition)
are reviewed to ensure they are relevant, necessary, accurate, up-to-date,
and covered by the appropriate legal or
regulatory authority. A listing of GSA
Privacy Act Systems can be found at
the following link (http://www.gsa.gov/
Portal/gsa/ep/
contentView.do?contentType=
GSAlBASIC&contentId = 21567).
§ 105–64.107 What standards of conduct apply to employees with privacy-related responsibilities?
(a) Employees who design, develop,
operate, or maintain Privacy Act
record systems will protect system security, avoid unauthorized disclosure
of information, both verbal and written, and ensure that no system of
records is maintained without public
notice. All such employees will follow
the standards of conduct in 5 CFR part
2635, 5 CFR part 6701, 5 CFR part 735,
and 5 CFR part 2634 to protect personal
information.
(b) Employees who have access to privacy act records will avoid unauthorized disclosure of personal information,
both written and verbal, and ensure
they have met privacy training requirements. All such employees will
follow GSA orders HCO 9297.1 GSA
Data Release Policy, HCO 9297.2A GSA
Information Breach Notification Policy, HCO 2180.1 GSA Rules of Behavior
for Handling Personally Identifiable
Information (PII), CIO P 2100.1E CIO P
GSA Information Technology (IT) Security Policy, and CIO 2104.1 GSA Information Technology (IT) General
Rules of Behavior.
§ 105–64.108 How does GSA safeguard
personal information?
(a) System managers will establish
administrative, technical, and physical
safeguards to ensure the security and
confidentiality of records, protect the
records against possible threats or hazards, and permit access only to authorized persons. Automated systems will
incorporate security controls such as
password protection, verification of
identity of authorized users, detection
of break-in attempts, firewalls, or
encryption, as appropriate.
(b) System managers will ensure that
employees and contractors who have
access to personal information in their
system will have the proper background investigation and meet all privacy training requirements.
§ 105–64.109 How does GSA
other agencies’ records?
In cases where GSA has either permanent or temporary custody of other
agencies’ records, system managers
will coordinate with those agencies on
any release of information. Office of
Personnel Management (OPM) records
that are in GSA’s custody are subject
to OPM’s Privacy Act rules.
§ 105–64.110 When may GSA establish
computer matching programs?
(a) System managers will establish
computer matching programs or agreements for sharing information with
other agencies only with the consent
and under the direction of the GSA
Data Integrity Board that will be established when and if computer matching programs are used at GSA.
(b) GSA will designate which positions comprise the Data Integrity
Board and develop a policy that defines
the roles and responsibilities of these
positions.
§ 105–64.111 What is GSA’s policy on
directives that may conflict with
this part?
These rules take precedence over any
GSA directive that may conflict with
the requirements stated here. GSA officials will ensure that no such conflict
exists in new or existing directives.
Subpart 105–64.2—Access to
Records
§ 105–64.201 How do I get access to my
records?
You may request access to your
record in person or by writing to the
system manager or, in the case of geographically dispersed records, to the office maintaining the records (see appendix A to this part). Parents or
guardians may obtain access to records
of minors or when a court has determined that the individual of record is
incompetent.
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General Services Administration
§ 105–64.209
§ 105–64.202 How do I request access
in person?
If appearing in person, you must
properly identify yourself through photographic identification such as an
agency identification badge, passport,
or driver’s license. Records will be
available during normal business hours
at the offices where the records are
maintained. You may examine the
record and be provided a copy on request. If you want someone else to accompany you when reviewing a record,
you must first sign a statement authorizing the disclosure of the record;
the statement will be maintained with
your record.
§ 105–64.203 How do I request access
in writing?
If you request access in writing,
mark both the envelope and the request letter ‘‘Privacy Act Request’’. Include in the request your full name and
address; a description of the records
you seek; the title and number of the
system of records as published in the
FEDERAL REGISTER; a brief description
of the nature, time, and place of your
association with GSA; and any other
information you believe will help in locating the record.
§ 105–64.204 Can parents and guardians obtain access to records?
If you are the parent or guardian of a
minor, or of a person judicially determined to be incompetent, you must
provide full information about the individual of record. You also must properly identify yourself and provide a
copy of the birth certificate of the individual, or a court order establishing
guardianship, whichever applies.
§ 105–64.205 Who will provide access to
my record?
The system manager will make a
record available to you on request, unless special conditions apply, such as
for medical, law enforcement, and security records.
§ 105–64.206 How long will it take to
get my record?
The system manager will make a
record available within 10 workdays
after receipt of your request. If a delay
of more than 10 workdays is expected,
the system manager will notify you in
writing of the reason for the delay and
when the record will be available. The
system manager may ask you for additional information to clarify your request. The system manager will have
an additional 10 workdays after receipt
of the new information to provide the
record to you, or provide another acknowledgment letter if a delay in locating the record is expected.
§ 105–64.207 Are there any fees?
No fees are charged for records when
the total fee is less than $25. The system manager may waive the fee above
this amount if providing records without charge is customary or in the public interest. When the cost exceeds $25,
the fee for a paper copy is 10 cents per
page, and the fee for materials other
than paper copies is the actual cost of
reproduction. For fees above $250, advance payment is required. You should
pay by check or money order made
payable to the General Services Administration, and provide it to the system manager.
§ 105–64.208 What special conditions
apply to release of medical records?
Medical records containing information that may have an adverse effect
upon a person will be released only to
a physician designated in writing by
you, or by your guardian or conservator. Medical records in an Official
Personnel Folder (OPF) fall under the
jurisdiction of the Office of Personnel
Management (OPM) and will be referred to OPM for a response.
§ 105–64.209 What special conditions
apply to accessing law enforcement
and security records?
Law
enforcement
and
security
records are generally exempt from disclosure to individuals except when the
system manager, in consultation with
legal counsel and the Head of the Service or Staff Office or Regional Administrator or their representatives, determines that information in a record has
been used or is being used to deny you
any right, privilege, or benefit for
which you are eligible or entitled under
Federal law. If so, the system manager
will notify you of the existence of the
record and disclose the information,
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§ 105–64.301
41 CFR Ch. 105 (7–1–16 Edition)
but only to the extent that the information does not identify a confidential
source. If disclosure of information
could reasonably be expected to identify a confidential source, the record
will not be disclosed to you unless it is
possible to delete all such information.
A confidential source is a person or
persons who furnished information during Federal investigations with the understanding that his or her identity
would remain confidential.
Subpart 105–64.3—Denial of
Access to Records
§ 105–64.301 Under what conditions
will I be denied access to a record?
The system manager will deny access
to a record that is being compiled in
the reasonable anticipation of a civil
action or proceeding or to records that
are specifically exempted from disclosure by GSA in its system of records
notices, published in the FEDERAL REGISTER. Exempted systems include the
Investigation Case Files, Internal Evaluation Case Files, and Security Files.
These systems are exempted to maintain the effectiveness and integrity of
investigations conducted by the Office
of Inspector General, and others, as
part of their duties and responsibilities
involving Federal employment, contracts, and security.
§ 105–64.302 How will I be denied access?
If you request access to a record in
an exempt system of records, the system manager will consult with the
Head of Service or Staff Office or Regional Administrator or their representatives, legal counsel, and other
officials as appropriate, to determine if
all or part of the record may be disclosed. If the decision is to deny access,
the system manager will provide a
written notice to you giving the reason
for the denial and your appeal rights.
§ 105–64.303 How do I appeal a denial
to access a record?
If you are denied access to a record in
whole or in part, you may file an administrative appeal within 30 days of
the denial. The appeal should be in
writing and addressed to: GSA Privacy
Act Officer (CIB), General Services Ad-
ministration, 1800 F Street, NW., Washington, DC 20405. Mark both the envelope and the appeal letter ‘‘Privacy Act
Appeal’’.
§ 105–64.304 How are administrative
appeal decisions made?
The GSA Privacy Act Officer will
conduct a review of your appeal by consulting with legal counsel and appropriate officials. The Privacy Act Officer may grant record access if the appeal is granted. If the decision is to reject the appeal, the Privacy Act Officer
will provide all pertinent information
about the case to the Deputy Administrator and ask for a final administrative decision. The Deputy Administrator may grant access to a record, in
which case the Privacy Act Officer will
notify you in writing, and the system
manager will make the record available to you. If the Deputy Administrator denies the appeal, he or she will
notify you in writing of the reason for
rejection and of your right to a judicial
review. The administrative appeal review will take no longer than 30 workdays after the Privacy Act Officer receives the appeal. The Deputy Administrator may extend the time limit by
notifying you in writing of the extension and the reason for it before the 30
days are up.
§ 105–64.305 What is my recourse to an
appeal denial?
You may file a civil action to have
the GSA administrative decision overturned within two years after the decision is made. You may file in a Federal
District Court where you live or have a
principal place of business, where the
records are maintained, or in the District of Columbia.
Subpart 105–64.4—Amending
Records
§ 105–64.401
Can I amend my record?
You may request to amend your
record by writing to the system manager with the proposed amendment.
Mark both the envelope and the letter
‘‘Privacy Act Request to Amend
Record’’.
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General Services Administration
§ 105–64.406
§ 105–64.402 What records are not subject to amendment?
§ 105–64.404 What must I do if I agree
to an alternative amendment?
You may not amend the following
records under the law:
(a) Transcripts of testimony given
under oath or written statements made
under oath.
(b) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings which constitute the official record of the proceedings.
(c) Pre-sentence reports that are
maintained within a system of records
but are the property of the courts.
(d) Records exempted from amendment by notice published in the FEDERAL REGISTER.
If you agree to the alternative
amendment proposed by the system
manager, you must notify the manager
in writing of your concurrence. The
system manager will amend the record
and send an amended copy to you and
to anyone else who had previously received the record.
§ 105–64.403 What happens when I submit a request to amend a record?
The system manager will consult
with the Head of Service or Staff Office
or Regional Administrator or their representatives, and legal counsel. They
will determine whether to amend an
existing record by comparing its accuracy, relevance, timeliness, and completeness with the amendment you propose. The system manager will notify
you within 10 workdays whether your
proposed amendment is approved or denied. In case of an expected delay, the
system manager will acknowledge receipt of your request in writing and
provide an estimate of when you may
expect a decision. If your request to
amend is approved, the system manager will amend the record and send an
amended copy to you and to anyone
who had previously received the record.
If your request to amend is denied, the
system manager will advise you in
writing, giving the reason for denial, a
proposed alternative amendment if
possible, and your appeal rights. The
system manager also will notify the
GSA Privacy Act Officer of any request
for amendment and its disposition. Any
amendment to a record may involve a
person’s Official Personnel Folder
(OPF). OPF regulations are governed
by OPM regulations, including alternate amendments and appeals of denials, and not GSA regulations.
§ 105–64.405 Can I appeal a denial to
amend a record?
You may file an appeal within 30
workdays of a denial to amend your
record by writing to the: GSA Privacy
Act Officer (CIB), General Services Administration, 1800 F Street, NW., Washington, DC 20405. Mark both the envelope and the appeal letter ‘‘Privacy Act
Amendment
Appeal.’’
Appeals
to
amend records in a GSA employee’s official personnel file will be sent to the
Office of Personnel Management,
Washington, DC 20415.
§ 105–64.406 How will my appeal be
handled?
The GSA Privacy Act Officer will
consult with legal counsel and appropriate GSA officials concerning your
appeal. If they decide to reject your appeal, the Privacy Act Officer will provide the Deputy Administrator with all
pertinent information about the case
and request a final administrative decision. The Deputy Administrator may
approve your amendment, in which
case the Privacy Act Officer will notify
you in writing, and the system manager will amend the record and send an
amended copy to you and anyone who
had previously been provided with the
record. If the Deputy Administrator denies the appeal, he or she will notify
you in writing of the reason for denial,
of your right to a judicial review, and
of your right to file a Statement of
Disagreement. The amendment appeal
review will be made within 30 workdays
after the Privacy Act Officer receives
your appeal. The Deputy Administrator may extend the time limit by
notifying you in writing of the reason
for the extension before the 30 days are
up.
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§ 105–64.407
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–64.407 How do I file a Statement
of Disagreement?
You may file a Statement of Disagreement with the system manager
within 30 days of the denial to amend a
record. The statement should explain
why you believe the record to be inaccurate, irrelevant, untimely, or incomplete. The system manager will file the
statement with your record, provide a
copy to anyone who had previously received the record, and include a copy of
it in any future disclosure.
§ 105–64.408 What is my recourse to a
denial decision?
You may file a civil action to have
the GSA decision overturned within
two years after denial of an amendment appeal. You may file the civil action in a Federal District Court where
you live or have a principal place of
business, where the records are maintained, or in the District of Columbia.
Subpart 105–64.5—Disclosure of
Records
§ 105–64.501 Under what conditions
may a record be disclosed without
my consent?
A system manager may disclose your
record without your consent under the
Privacy Act when the disclosure is: To
GSA officials or employees in the performance of their official duties; required by the Freedom of Information
Act; for a routine use stated in a FEDERAL REGISTER notice; to the Bureau of
the Census for use in fulfilling its duties; for statistical research or reporting, and only when the record is not individually identifiable; to the National
Archives and Records Administration
(NARA) when the record has been determined to be of historical or other
value that warrants permanent retention; to a U.S. law enforcement agency
or instrumentality for a civil or criminal law enforcement purpose; under
compelling circumstances affecting an
individual’s health and safety, and
upon disclosure a notification will be
sent to the individual; to Congress or
its committees and subcommittees
when the record material falls within
their jurisdiction; to the Comptroller
General or an authorized representative in the performance of the duties of
the Government Accountability Office
(GAO); under a court order; or to a consumer reporting agency under the Federal Claims Collection Act of 1966, 31
U.S.C. 3711.
§ 105–64.502 How do I find out if my
record has been disclosed?
You may request an accounting of
the persons or agencies to whom your
record has been disclosed, including the
date and purpose of each disclosure, by
writing to the system manager. Mark
both the envelope and the letter ‘‘Privacy Act Accounting Request’’. The
system manager will provide the requested information in the same way
as that for granting access to records;
see Subpart 105–64.2, providing no restrictions to disclosure or accounting
of disclosures applies.
§ 105–64.503 What is an accounting of
disclosures?
The system manager maintains an
account of each record disclosure for
five years or for the life of the record,
whichever is longer. The accounting of
disclosure information includes the
name of the person or agency to whom
your record has been provided, the
date, the type of information disclosed,
and the reason for disclosure. Other
pertinent information, such as justifications for disclosure and any written consent that you may have provided, is also included. No accounting
needs to be maintained for disclosures
to GSA officials or employees in the
performance of their duties, or disclosures under the Freedom of Information Act.
§ 105–64.504 Under what conditions
will I be denied an accounting of
disclosures?
The system manager will deny your
request for an accounting of disclosures when the disclosures are to GSA
officials or employees in the performance of their duties or disclosures
under the Freedom of Information Act,
for which no accounting is required;
law enforcement agencies for law enforcement activities; and systems of
records exempted by notice in the FEDERAL REGISTER. You may appeal a denial using the same procedures as those
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31
General Services Administration
§ 105–64.803
for denial of access to records, see Subpart 105–64.3.
Subpart 105–64.7—Assistance and
Referrals
Subpart 105–64.6—Establishing or
Revising Systems of Records
in GSA
§ 105–64.701 Submittal of requests for
assistance and referrals.
Address requests for assistance involving GSA Privacy Act rules and procedures, or for referrals to system managers or GSA officials responsible for
implementing these rules to: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street,
NW., Washington, DC 20405.
§ 105–64.601 Procedures
for
lishing system of records.
estab-
The following procedures apply to
any proposed new or revised system of
records:
(a) Before establishing a new or revising an existing system of records, the
system manager, with the concurrence
of the appropriate Head of Service or
Staff Office, will provide to the GSA
Privacy Act Officer a proposal describing and justifying the new system or
revision.
(b) A Privacy Impact Assessment
(PIA) will be filled out to determine if
a system notice needs to be completed.
(c) The GSA Privacy Act Officer will
work with the program office to create
the draft system of notice document.
(d) The GSA Privacy Office will work
with various offices to take the draft
system notice through the concurrence
process.
(e) The GSA Privacy Act Officer will
publish in the FEDERAL REGISTER a notice of intent to establish or revise the
system of records at least 30 calendar
days before the planned system establishment or revision date.
(f) The new or revised system becomes effective 30 days after the notice
is published in the FEDERAL REGISTER
unless submitted comments result in a
revision to the notice, in which case, a
new revised notice will be issued.
(g) When publishing a new system notice letters will be sent to the Chairman, Committee on Homeland Security and Governmental Affairs, Chairman, Committee on Oversight and Government Reform, and the Docket Library Office of Information and Regulatory Affairs, Office of Management
and Budget.
Subpart 105–64.8—Privacy
Complaints
§ 105–64.801 How to file a privacy complaint.
E-mail
your
complaint
to
[email protected] or send to: GSA
Privacy Act Officer (CIB), General
Services Administration, 1800 F Street
NW., Washington, DC 20405. Please provide as much details about the complaint in the communication. Provide
contact information where you prefer
all communication to be sent. The Privacy Officer will conduct an investigation and consult with appropriate GSA
officials and legal counsel to render a
decision within 30 workdays of the
complaint being received by the privacy office. The decision will be sent
by the method the complaint was received.
§ 105–64.802 Can I appeal a decision to
a privacy complaint?
You may file an appeal within 30
workdays of a denial of a privacy complaint by writing to: GSA Privacy Act
Officer (CIB), General Services Administration, 1800 F Street NW., Washington, DC 20405. Mark both the envelope and appeal letter ‘‘Privacy Act
Complaint appeal’’.
§ 105–64.803 How will my appeal be
handled?
The Privacy Act Officer will consult
with legal counsel and the appropriate
GSA officials concerning your appeal.
The decision will be made by the Senior Agency Official for Privacy. The decision will be sent within 30 workdays
of the appeal being received by the privacy office. The decision provided in
the appeal letter is the final recourse.
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31
Pt. 105–64, App. A
41 CFR Ch. 105 (7–1–16 Edition)
APPENDIX A TO PART 105–64—ADDRESSES FOR GEOGRAPHICALLY DISPERSED
RECORDS
Address requests for physically dispersed
records, as noted in the system of records notices, to the Regional Privacy Act Coordinator, General Services Administration, at
the appropriate regional GSA office, as follows:
Great Lakes Region (includes Illinois, Indiana, Michigan, Ohio, Minnesota, and Wisconsin), 230 South Dearborn Street, Chicago,
IL 60604–1696.
Greater Southwest Region (includes Arkansas, Louisiana, Oklahoma, New Mexico, and
Texas), 819 Taylor Street, Fort Worth, TX
76102.
Mid-Atlantic Region (includes Delaware,
Maryland, Pennsylvania, Virginia, and West
Virginia, but excludes the National Capital
Region), The Strawbridge Building, 20 North
8th Street, Philadelphia, PA 19107–3191.
National Capital Region (includes the District of Columbia; the counties of Montgomery and Prince George’s in Maryland;
the city of Alexandria, Virginia; and the
counties of Arlington, Fairfax, Loudoun, and
Prince William in Virginia), 7th and D
Streets, SW., Washington, DC 20407.
New England Region (includes Connecticut,
Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont), 10 Causeway
Street, Boston, MA 02222.
Northeast and Caribbean Region (includes
New Jersey, New York, Puerto Rico, and Virgin Islands), 26 Federal Plaza, New York, NY
10278.
Northwest/Arctic Region (includes Alaska,
Idaho, Oregon, and Washington), 400 15th
Street, SW., Auburn, WA 98001–6599.
Pacific Rim Region (includes Arizona, California, Hawaii, and Nevada), 450 Golden Gate
Avenue, San Francisco, CA 94102–3400.
Rocky Mountain Region (includes Colorado,
Montana, North Dakota, South Dakota,
Utah, and Wyoming), U.S. General Services
Administration, DFC, Bldg. 41, Rm. 210, P.O.
Box 25006, Denver, CO 80225–0006.
Southeast-Sunbelt Region (includes Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and
Tennessee), Office of the Regional Administrator (4A), 77 Forsyth Street, Atlanta, GA
30303.
The Heartland Region (includes Iowa, Kansas, Missouri, and Nebraska), 1500 East Bannister Road, Kansas City, MO 64131–3088.
PART 105–67—SALE OF PERSONAL
PROPERTY
Sec.
105–67.100 Scope of subpart.
105–67.101 Debarred, suspended
gible contractors.
and
ineli-
AUTHORITY: 40 U.S.C. 486(c).
§ 105–67.100
Scope of subpart.
This subpart prescribes policies and
procedures governing the debarment or
suspension of contractors from purchases of Federal personal property
(see FPMR part 101–45).
[51 FR 13500, Apr. 21, 1986]
§ 105–67.101 Debarred, suspended and
ineligible contractors.
The policies, procedures and requirements of subpart 509.4 of the General
Services Administration Acquisition
Regulation (GSAR) are incorporated by
reference and made applicable to contracts for, and to contractors who engage in, the purchase of Federal personal property.
[51 FR 13500, Apr. 21, 1986]
PART 105–68—GOVERNMENTWIDE
DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
Sec.
105–68.25 How is this part organized?
105–68.50 How is this part written?
105–68.75 Do terms in this part have special
meanings?
Subpart A—General
105–68.100 What does this part do?
105–68.105 Does this part apply to me?
105–68.110 What is the purpose of the nonprocurement debarment and suspension
system?
105–68.115 How does an exclusion restrict a
person’s involvement in covered transactions?
105–68.120 May we grant an exception to let
an excluded person participate in a covered transaction?
105–68.125 Does an exclusion under the nonprocurement system affect a person’s eligibility for Federal procurement contracts?
105–68.130 Does exclusion under the Federal
procurement system affect a person’s eligibility to participate in nonprocurement transactions?
105–68.135 May the General Services Administration exclude a person who is not currently participating in a nonprocurement
transaction?
105–68.140 How do I know if a person is excluded?
105–68.145 Does this part address persons
who are disqualified, as well as those who
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31
General Services Administration
Pt. 105–68
are excluded from nonprocurement transactions?
Subpart B—Covered Transactions
105–68.200 What is a covered transaction?
105–68.205 Why is it important to know if a
particular transaction is a covered transaction?
105–68.210 Which nonprocurement transactions are covered transactions?
105–68.215 Which nonprocurement transactions are not covered transactions?
105–68.220 Are any procurement contracts
included as covered transactions?
105–68.225 How do I know if a transaction in
which I may participate is a covered
transaction?
Subpart C—Responsibilities of Participants
Regarding Transactions
DOING BUSINESS WITH OTHER PERSONS
105–68.300 What must I do before I enter into
a covered transaction with another person at the next lower tier?
105–68.305 May I enter into a covered transaction with an excluded or disqualified
person?
105–68.310 What must I do if a Federal agency excludes a person with whom I am already doing business in a covered transaction?
105–68.315 May I use the services of an excluded person as a principal under a covered transaction?
105–68.320 Must I verify that principals of
my covered transactions are eligible to
participate?
105–68.325 What happens if I do business
with an excluded person in a covered
transaction?
105–68.330 What requirements must I pass
down to persons at lower tiers with
whom I intend to do business?
DISCLOSING INFORMATION—PRIMARY TIER
PARTICIPANTS
105–68.335 What information must I provide
before entering into a covered transaction with the General Services Administration?
105–68.340 If I disclose unfavorable information required under § 105–68.335, will I be
prevented from participating in the
transaction?
105–68.345 What happens if I fail to disclose
the information required under § 105–
68.335?
105–68.350 What must I do if I learn of the
information required under § 105–68.335
after entering into a covered transaction
with the General Services Administration?
DISCLOSING INFORMATION—LOWER TIER
PARTICIPANTS
105–68.355 What information must I provide
to a higher tier participant before entering into a covered transaction with that
participant?
105–68.360 What happens if I fail to disclose
the information required under § 105–
68.355?
105–68.365 What must I do if I learn of information required under § 105–68.355 after
entering into a covered transaction with
a higher tier participant?
Subpart D—Responsibilities of GSA Officials
Regarding Transactions
105–68.400 May I enter into a transaction
with an excluded or disqualified person?
105–68.405 May I enter into a covered transaction with a participant if a principal of
the transaction is excluded?
105–68.410 May I approve a participant’s use
of the services of an excluded person?
105–68.415 What must I do if a Federal agency excludes the participant or a principal
after I enter into a covered transaction?
105–68.420 May I approve a transaction with
an excluded or disqualified person at a
lower tier?
105–68.425 When do I check to see if a person
is excluded or disqualified?
105–68.430 How do I check to see if a person
is excluded or disqualified?
105–68.435 What must I require of a primary
tier participant?
105–68.440 What method do I use to communicate those requirements to participants?
105–68.445 What action may I take if a primary tier participant knowingly does
business with an excluded or disqualified
person?
105–68.450 What action may I take if a primary tier participant fails to disclose the
information required under § 105–68.335?
105–68.455 What may I do if a lower tier participant fails to disclose the information
required under § 105–68.355 to the next
higher tier?
Subpart E—Excluded Parties List System
105–68.500 What is the purpose of the Excluded Parties List System (EPLS)?
105–68.505 Who uses the EPLS?
105–68.510 Who maintains the EPLS?
105–68.515 What specific information is in
the EPLS?
105–68.520 Who places the information into
the EPLS?
105–68.525 Whom do I ask if I have questions
about a person in the EPLS?
105–68.530 Where can I find the EPLS?
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31
Pt. 105–68
41 CFR Ch. 105 (7–1–16 Edition)
Subpart F—General Principles Relating to
Suspension and Debarment Actions
105–68.600 How do suspension and debarment
actions start?
105–68.605 How does suspension differ from
debarment?
105–68.610 What procedures does the General
Services Administration use in suspension and debarment actions?
105–68.615 How does the General Services
Administration notify a person of a suspension and debarment action?
105–68.620 Do Federal agencies coordinate
suspension and debarment actions?
105–68.625 What is the scope of a suspension
or debarment action?
105–68.630 May the General Services Administration impute the conduct of one person to another?
105–68.635 May the General Services Administration settle a debarment or suspension action?
105–68.640 May a settlement include a voluntary exclusion?
105–68.645 Do other Federal agencies know if
the General Services Administration
agrees to a voluntary exclusion?
Subpart G—Suspension
105–68.700 When may the suspending official
issue a suspension?
105–68.705 What does the suspending official
consider in issuing a suspension?
105–68.710 When does a suspension take effect?
105–68.715 What notice does the suspending
official give me if I am suspended?
105–68.720 How may I contest a suspension?
105–68.725 How much time do I have to contest a suspension?
105–68.730 What information must I provide
to the suspending official if I contest a
suspension?
105–68.735 Under what conditions do I get an
additional opportunity to challenge the
facts on which the suspension is based?
105–68.740 Are suspension proceedings formal?
105–68.745 How is fact-finding conducted?
105–68.750 What does the suspending official
consider in deciding whether to continue
or terminate my suspension?
105–68.755 When will I know whether the
suspension is continued or terminated?
105–68.760 How long may my suspension
last?
Subpart H—Debarment
105–68.800 What are the causes for debarment?
105–68.805 What notice does the debarring
official give me if I am proposed for debarment?
105–68.810 When does a debarment take effect?
105–68.815 How may I contest a proposed debarment?
105–68.820 How much time do I have to contest a proposed debarment?
105–68.825 What information must I provide
to the debarring official if I contest a
proposed debarment?
105–68.830 Under what conditions do I get an
additional opportunity to challenge the
facts on which the proposed debarment is
based?
105–68.835 Are debarment proceedings formal?
105–68.840 How is fact-finding conducted?
105–68.845 What does the debarring official
consider in deciding whether to debar
me?
105–68.850 What is the standard of proof in a
debarment action?
105–68.855 Who has the burden of proof in a
debarment action?
105–68.860 What factors may influence the
debarring official’s decision?
105–68.865 How long may my debarment
last?
105–68.870 When do I know if the debarring
official debars me?
105–68.875 May I ask the debarring official
to reconsider a decision to debar me?
105–68.880 What factors may influence the
debarring official during reconsideration?
105–68.885 May the debarring official extend
a debarment?
Subpart I—Definitions
105–68.900 Adequate evidence.
105–68.905 Affiliate.
105–68.910 Agency.
105–68.915 Agent or representative.
105–68.920 Civil judgment.
105–68.925 Conviction.
105–68.930 Debarment.
105–68.935 Debarring official.
105–68.940 Disqualified.
105–68.945 Excluded or exclusion.
105–68.950 Excluded Parties List System.
105–68.955 Indictment.
105–68.960 Ineligible or ineligibility.
105–68.965 Legal proceedings.
105–68.970 Nonprocurement transaction.
105–68.975 Notice.
105–68.980 Participant.
105–68.985 Person.
105–68.990 Preponderance of the evidence.
105–68.995 Principal.
105–68.1000 Respondent.
105–68.1005 State.
105–68.1010 Suspending official.
105–68.1015 Suspension.
105–68.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
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General Services Administration
§ 105–68.100
APPENDIX TO PART 105–68—COVERED TRANSACTIONS
AUTHORITY: Sec. 2455, Pub. L. 103–355, 108
Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p.
189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
SOURCE: 68 FR 66626, 66627, Nov. 26, 2003, unless otherwise noted.
§ 105–68.25 How is this part organized?
(a) This part is subdivided into ten
subparts. Each subpart contains information related to a broad topic or specific audience with special responsibilities, as shown in the following table:
In subpart . . .
A .............................
B .............................
C .............................
D .............................
E .............................
F .............................
G ............................
H .............................
I ..............................
J .............................
You will find provisions related to . . .
general information about this rule.
the types of GSA transactions that are
covered by the Governmentwide
nonprocurement suspension and debarment system.
the responsibilities of persons who participate in covered transactions.
the responsibilities of GSA officials who
are authorized to enter into covered
transactions.
the responsibilities of Federal agencies
for the Excluded Parties List System
(Disseminated by the General Services Administration).
the general principles governing suspension, debarment, voluntary exclusion and settlement.
suspension actions.
debarment actions.
definitions of terms used in this part.
[Reserved]
(b) The following table shows which
subparts may be of special interest to
you, depending on who you are:
If you are . . .
See subpart(s) . . .
(1) a participant or principal in a nonprocurement transaction.
(2) a respondent in a suspension action
(3) a respondent in a debarment action
(4) a suspending official ........................
A, B, C, and I.
(5) a debarring official ............................
(6) a (n) GSA official authorized to
enter into a covered transaction.
(7) Reserved ..........................................
audience being addressed. The pronoun
‘‘we’’ always is the General Services
Administration.
(c) The ‘‘Covered Transactions’’ diagram in the appendix to this part
shows the levels or ‘‘tiers’’ at which
the General Services Administration
enforces an exclusion under this part.
§ 105–68.75 Do terms in this part have
special meanings?
This part uses terms throughout the
text that have special meaning. Those
terms are defined in Subpart I of this
part. For example, three important
terms are—
(a) Exclusion or excluded, which refers
only to discretionary actions taken by
a suspending or debarring official
under this part or the Federal Acquisition Regulation (48 CFR part 9, subpart
9.4);
(b) Disqualification or disqualified,
which refers to prohibitions under specific statutes, executive orders (other
than Executive Order 12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not
subject to the discretion of an agency
official, may have a different scope
than exclusions, or have special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person who is either
excluded or disqualified.
Subpart A—General
§ 105–68.100
A, B, F, G and I.
A, B, F, H and I.
A, B, D, E, F, G
and I.
A, B, D, E, F, H
and I.
A, B, D, E and I.
J.
§ 105–68.50 How is this part written?
(a) This part uses a ‘‘plain language’’
format to make it easier for the general public and business community to
use. The section headings and text,
often in the form of questions and answers, must be read together.
(b) Pronouns used within this part,
such as ‘‘I’’ and ‘‘you,’’ change from
subpart to subpart depending on the
What does this part do?
This part adopts a governmentwide
system of debarment and suspension
for GSA nonprocurement activities. It
also provides for reciprocal exclusion
of persons who have been excluded
under the Federal Acquisition Regulation, and provides for the consolidated
listing of all persons who are excluded,
or disqualified by statute, executive
order, or other legal authority. This
part satisfies the requirements in section 3 of Executive Order 12549, ‘‘Debarment and Suspension’’ (3 CFR 1986
Comp., p. 189), Executive Order 12689,
‘‘Debarment and Suspension’’ (3 CFR
1989 Comp., p. 235) and 31 U.S.C. 6101
note (Section 2455, Public Law 103–355,
108 Stat. 3327).
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§ 105–68.105
§ 105–68.105
me?
41 CFR Ch. 105 (7–1–16 Edition)
Does this part apply to
Portions of this part (see table at
§ 105–68.25(b)) apply to you if you are
a(n)—
(a) Person who has been, is, or may
reasonably be expected to be, a participant or principal in a covered transaction;
(b) Respondent (a person against
whom the General Services Administration has initiated a debarment or
suspension action);
(c) GSA debarring or suspending official; or
(d) GSA official who is authorized to
enter into covered transactions with
non-Federal parties.
§ 105–68.110 What is the purpose of the
nonprocurement debarment and
suspension system?
(a) To protect the public interest, the
Federal Government ensures the integrity of Federal programs by conducting
business only with responsible persons.
(b) A Federal agency uses the nonprocurement debarment and suspension
system to exclude from Federal programs persons who are not presently
responsible.
(c) An exclusion is a serious action
that a Federal agency may take only
to protect the public interest. A Federal agency may not exclude a person
or commodity for the purposes of punishment.
§ 105–68.115 How does an exclusion restrict a person’s involvement in covered transactions?
With the exceptions stated in §§ 105–
68.120, 105–68.315, and 105–68.420, a person who is excluded by the General
Services Administration or any other
Federal agency may not:
(a) Be a participant in a(n) GSA
transaction that is a covered transaction under subpart B of this part;
(b) Be a participant in a transaction
of any other Federal agency that is a
covered transaction under that agency’s regulation for debarment and suspension; or
(c) Act as a principal of a person participating in one of those covered
transactions.
§ 105–68.120 May we grant an exception to let an excluded person participate in a covered transaction?
(a) The Administrator of General
Services may grant an exception permitting an excluded person to participate in a particular covered transaction. If the Administrator of General
Services grants an exception, the exception must be in writing and state
the reason(s) for deviating from the
governmentwide policy in Executive
Order 12549.
(b) An exception granted by one
agency for an excluded person does not
extend to the covered transactions of
another agency.
§ 105–68.125 Does an exclusion under
the nonprocurement system affect a
person’s eligibility for Federal procurement contracts?
If any Federal agency excludes a person under its nonprocurement common
rule on or after August 25, 1995, the excluded person is also ineligible to participate in Federal procurement transactions under the FAR. Therefore, an
exclusion under this part has reciprocal effect in Federal procurement
transactions.
§ 105–68.130 Does exclusion under the
Federal procurement system affect
a person’s eligibility to participate
in nonprocurement transactions?
If any Federal agency excludes a person under the FAR on or after August
25, 1995, the excluded person is also ineligible to participate in nonprocurement covered transactions under this
part. Therefore, an exclusion under the
FAR has reciprocal effect in Federal
nonprocurement transactions.
§ 105–68.135 May the General Services
Administration exclude a person
who is not currently participating
in a nonprocurement transaction?
Given a cause that justifies an exclusion under this part, we may exclude
any person who has been involved, is
currently involved, or may reasonably
be expected to be involved in a covered
transaction.
§ 105–68.140 How do I know if a person
is excluded?
Check the Excluded Parties List System
(EPLS) to determine whether a person
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General Services Administration
§ 105–68.215
is excluded. The General Services Administration (GSA) maintains the
EPLS and makes it available, as detailed in subpart E of this part. When a
Federal agency takes an action to exclude a person under the nonprocurement or procurement debarment and
suspension system, the agency enters
the information about the excluded
person into the EPLS.
§ 105–68.145 Does this part address
persons who are disqualified, as
well as those who are excluded
from nonprocurement transactions?
Except if provided for in Subpart J of
this part, this part—
(a) Addresses disqualified persons
only to—
(1) Provide for their inclusion in the
EPLS; and
(2) State responsibilities of Federal
agencies and participants to check for
disqualified persons before entering
into covered transactions.
(b) Does not specify the—
(1) GSA transactions for which a disqualified person is ineligible. Those
transactions vary on a case-by-case
basis, because they depend on the language of the specific statute, Executive
order, or regulation that caused the
disqualification;
(2) Entities to which the disqualification applies; or
(3) Process that the agency uses to
disqualify a person. Unlike exclusion,
disqualification is frequently not a discretionary action that a Federal agency takes.
Subpart B—Covered Transactions
§ 105–68.200
action?
What is a covered trans-
A covered transaction is a nonprocurement or procurement transaction that is subject to the prohibitions of this part. It may be a transaction at—
(a) The primary tier, between a Federal agency and a person (see appendix
to this part); or
(b) A lower tier, between a participant in a covered transaction and another person.
§ 105–68.205 Why is it important if a
particular transaction is a covered
transaction?
The importance of a covered transaction depends upon who you are.
(a) As a participant in the transaction, you have the responsibilities
laid out in subpart C of this part. Those
include responsibilities to the person
or Federal agency at the next higher
tier from whom you received the transaction, if any. They also include responsibilities if you subsequently enter
into other covered transactions with
persons at the next lower tier.
(b) As a Federal official who enters
into a primary tier transaction, you
have the responsibilities laid out in
subpart D of this part.
(c) As an excluded person, you may
not be a participant or principal in the
transaction unless—
(1) The person who entered into the
transaction with you allows you to
continue your involvement in a transaction that predates your exclusion, as
permitted under § 105–68.310 or § 105–
68.415; or
(2) A(n) GSA official obtains an exception from the Administrator of General Services to allow you to be involved in the transaction, as permitted
under § 105–68.120.
§ 105–68.210 Which
nonprocurement
transactions are covered transactions?
All nonprocurement transactions, as
defined in § 105–68.970, are covered
transactions unless listed in § 105–
68.215. (See appendix to this part.)
§ 105–68.215 Which
nonprocurement
transactions are not covered transactions?
The following types of nonprocurement transactions are not covered
transactions:
(a) A direct award to—
(1) A foreign government or foreign
governmental entity;
(2) A public international organization;
(3) An entity owned (in whole or in
part) or controlled by a foreign government; or
(4) Any other entity consisting wholly or partially of one or more foreign
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§ 105–68.220
41 CFR Ch. 105 (7–1–16 Edition)
governments or foreign governmental
entities.
(b) A benefit to an individual as a
personal entitlement without regard to
the individual’s present responsibility
(but benefits received in an individual’s
business capacity are not excepted).
For example, if a person receives social
security benefits under the Supplemental Security Income provisions of
the Social Security Act, 42 U.S.C. 1301
et seq., those benefits are not covered
transactions and, therefore, are not affected if the person is excluded.
(c) Federal employment.
(d) A transaction that the General
Services Administration needs to respond to a national or agency-recognized emergency or disaster.
(e) A permit, license, certificate, or
similar instrument issued as a means
to regulate public health, safety, or the
environment, unless the General Services Administration specifically designates it to be a covered transaction.
(f) An incidental benefit that results
from ordinary governmental operations.
(g) Any other transaction if the application of an exclusion to the transaction is prohibited by law.
§ 105–68.220 Are any procurement contracts included as covered transactions?
(a) Covered transactions under this
part—
(1) Do not include any procurement
contracts awarded directly by a Federal agency; but
(2) Do include some procurement contracts awarded by non-Federal participants in nonprocurement covered
transactions (see appendix to this
part).
(b) Specifically, a contract for goods
or services is a covered transaction if
any of the following applies:
(1) The contract is awarded by a participant in a nonprocurement transaction that is covered under § 105–68.210,
and the amount of the contract is expected to equal or exceed $25,000.
(2) The contract requires the consent
of a(n) GSA official. In that case, the
contract, regardless of the amount, always is a covered transaction, and it
does not matter who awarded it. For
example, it could be a subcontract
awarded by a contractor at a tier below
a nonprocurement transaction, as
shown in the appendix to this part.
(3) The contract is for federally-required audit services.
§ 105–68.225 How do I know if a transaction in which I may participate is
a covered transaction?
As a participant in a transaction,
you will know that it is a covered
transaction because the agency regulations governing the transaction, the
appropriate agency official, or participant at the next higher tier who enters
into the transaction with you, will tell
you that you must comply with applicable portions of this part.
Subpart C—Responsibilities of Participants Regarding Transactions
DOING BUSINESS WITH OTHER PERSONS
§ 105–68.300 What must I do before I
enter into a covered transaction
with another person at the next
lower tier?
When you enter into a covered transaction with another person at the next
lower tier, you must verify that the
person with whom you intend to do
business is not excluded or disqualified.
You do this by:
(a) Checking the EPLS; or
(b) Collecting a certification from
that person if allowed by this rule; or
(c) Adding a clause or condition to
the covered transaction with that person.
§ 105–68.305 May I enter into a covered
transaction with an excluded or disqualified person?
(a) You as a participant may not
enter into a covered transaction with
an excluded person, unless the General
Services Administration grants an exception under § 105–68.120.
(b) You may not enter into any transaction with a person who is disqualified
from that transaction, unless you have
obtained an exception under the disqualifying statute, Executive order, or
regulation.
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General Services Administration
§ 105–68.335
§ 105–68.310 What must I do if a Federal agency excludes a person with
whom I am already doing business
in a covered transaction?
(a) You as a participant may continue covered transactions with an excluded person if the transactions were
in existence when the agency excluded
the person. However, you are not required to continue the transactions,
and you may consider termination.
You should make a decision about
whether to terminate and the type of
termination action, if any, only after a
thorough review to ensure that the action is proper and appropriate.
(b) You may not renew or extend covered transactions (other than no-cost
time extensions) with any excluded
person, unless the General Services Administration grants an exception under
§ 105–68.120.
§ 105–68.315 May I use the services of
an excluded person as a principal
under a covered transaction?
(a) You as a participant may continue to use the services of an excluded
person as a principal under a covered
transaction if you were using the services of that person in the transaction
before the person was excluded. However, you are not required to continue
using that person’s services as a principal. You should make a decision
about whether to discontinue that person’s services only after a thorough review to ensure that the action is proper
and appropriate.
(b) You may not begin to use the
services of an excluded person as a
principal under a covered transaction
unless the General Services Administration grants an exception under § 105–
68.120.
§ 105–68.320 Must I verify that principals of my covered transactions
are eligible to participate?
Yes, you as a participant are responsible for determining whether any of
your principals of your covered transactions is excluded or disqualified from
participating in the transaction. You
may decide the method and frequency
by which you do so. You may, but you
are not required to, check the EPLS.
§ 105–68.325 What happens if I do business with an excluded person in a
covered transaction?
If as a participant you knowingly do
business with an excluded person, we
may disallow costs, annul or terminate
the transaction, issue a stop work
order, debar or suspend you, or take
other remedies as appropriate.
§ 105–68.330 What requirements must I
pass down to persons at lower tiers
with whom I intend to do business?
Before entering into a covered transaction with a participant at the next
lower tier, you must require that participant to—
(a) Comply with this subpart as a
condition of participation in the transaction. You may do so using any method(s), unless § 105–68.440 requires you to
use specific methods.
(b) Pass the requirement to comply
with this subpart to each person with
whom the participant enters into a
covered transaction at the next lower
tier.
DISCLOSING INFORMATION—PRIMARY
TIER PARTICIPANTS
§ 105–68.335 What information must I
provide before entering into a covered transaction with the General
Services Administration?
Before you enter into a covered
transaction at the primary tier, you as
the participant must notify the GSA
office that is entering into the transaction with you, if you know that you
or any of the principals for that covered transaction:
(a) Are presently excluded or disqualified;
(b) Have been convicted within the
preceding three years of any of the offenses listed in § 105–68.800(a) or had a
civil judgment rendered against you for
one of those offenses within that time
period;
(c) Are presently indicted for or otherwise criminally or civilly charged by
a governmental entity (Federal, State
or local) with commission of any of the
offenses listed in § 105–68.800(a); or
(d) Have had one or more public
transactions (Federal, State, or local)
terminated within the preceding three
years for cause or default.
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§ 105–68.340
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–68.340 If I disclose unfavorable
information required under § 105–
68.335, will I be prevented from participating in the transaction?
As a primary tier participant, your
disclosure of unfavorable information
about yourself or a principal under
§ 105–68.335 will not necessarily cause us
to deny your participation in the covered transaction. We will consider the
information when we determine whether to enter into the covered transaction. We also will consider any additional information or explanation that
you elect to submit with the disclosed
information.
§ 105–68.345 What happens if I fail to
disclose
information
required
under § 105–68.335?
If we later determine that you failed
to disclose information under § 105–
68.335 that you knew at the time you
entered into the covered transaction,
we may—
(a) Terminate the transaction for
material failure to comply with the
terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and debarment.
§ 105–68.350 What must I do if I learn
of information required under
§ 105–68.335 after entering into a
covered transaction with the General Services Administration?
At any time after you enter into a
covered transaction, you must give immediate written notice to the GSA office with which you entered into the
transaction if you learn either that—
(a) You failed to disclose information
earlier, as required by § 105–68.335; or
(b) Due to changed circumstances,
you or any of the principals for the
transaction now meet any of the criteria in § 105–68.335.
DISCLOSING INFORMATION—LOWER TIER
PARTICIPANTS
§ 105–68.355 What information must I
provide to a higher tier participant
before entering into a covered
transaction with that participant?
Before you enter into a covered
transaction with a person at the next
higher tier, you as a lower tier partici-
pant must notify that person if you
know that you or any of the principals
are presently excluded or disqualified.
§ 105–68.360 What happens if I fail to
disclose the information required
under § 105–68.355?
If we later determine that you failed
to tell the person at the higher tier
that you were excluded or disqualified
at the time you entered into the covered transaction with that person, we
may pursue any available remedies, including suspension and debarment.
§ 105–68.365 What must I do if I learn
of information required under
§ 105–68.355 after entering into a
covered transaction with a higher
tier participant?
At any time after you enter into a
lower tier covered transaction with a
person at a higher tier, you must provide immediate written notice to that
person if you learn either that—
(a) You failed to disclose information
earlier, as required by § 105–68.355; or
(b) Due to changed circumstances,
you or any of the principals for the
transaction now meet any of the criteria in § 105–68.355.
Subpart D—Responsibilities of GSA
Officials Regarding Transactions
§ 105–68.400 May I enter into a transaction with an excluded or disqualified person?
(a) You as an agency official may not
enter into a covered transaction with
an excluded person unless you obtain
an exception under § 105–68.120.
(b) You may not enter into any transaction with a person who is disqualified
from that transaction, unless you obtain a waiver or exception under the
statute, Executive order, or regulation
that is the basis for the person’s disqualification.
§ 105–68.405 May I enter into a covered
transaction with a participant if a
principal of the transaction is excluded?
As an agency official, you may not
enter into a covered transaction with a
participant if you know that a principal of the transaction is excluded, unless you obtain an exception under
§ 105–68.120.
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General Services Administration
§ 105–68.445
§ 105–68.410 May I approve a participant’s use of the services of an excluded person?
After entering into a covered transaction with a participant, you as an
agency official may not approve a participant’s use of an excluded person as
a principal under that transaction, unless you obtain an exception under
§ 105–68.120.
§ 105–68.415 What must I do if a Federal agency excludes the participant or a principal after I enter
into a covered transaction?
(a) You as an agency official may
continue covered transactions with an
excluded person, or under which an excluded person is a principal, if the
transactions were in existence when
the person was excluded. You are not
required to continue the transactions,
however, and you may consider termination. You should make a decision
about whether to terminate and the
type of termination action, if any, only
after a thorough review to ensure that
the action is proper.
(b) You may not renew or extend covered transactions (other than no-cost
time extensions) with any excluded
person, or under which an excluded person is a principal, unless you obtain an
exception under § 105–68.120.
§ 105–68.420 May I approve a transaction with an excluded or disqualified person at a lower tier?
If a transaction at a lower tier is subject to your approval, you as an agency
official may not approve—
(a) A covered transaction with a person who is currently excluded, unless
you obtain an exception under § 105–
68.120; or
(b) A transaction with a person who
is disqualified from that transaction,
unless you obtain a waiver or exception
under the statute, Executive order, or
regulation that is the basis for the person’s disqualification.
§ 105–68.425 When do I check to see if
a person is excluded or disqualified?
As an agency official, you must
check to see if a person is excluded or
disqualified before you—
(a) Enter into a primary tier covered
transaction;
(b) Approve a principal in a primary
tier covered transaction;
(c) Approve a lower tier participant if
agency approval of the lower tier participant is required; or
(d) Approve a principal in connection
with a lower tier transaction if agency
approval of the principal is required.
§ 105–68.430 How do I check to see if a
person is excluded or disqualified?
You check to see if a person is excluded or disqualified in two ways:
(a) You as an agency official must
check the EPLS when you take any action listed in § 105–68.425.
(b) You must review information that
a participant gives you, as required by
§ 105–68.335, about its status or the status of the principals of a transaction.
§ 105–68.435 What must I require of a
primary tier participant?
You as an agency official must require each participant in a primary
tier covered transaction to—
(a) Comply with subpart C of this
part as a condition of participation in
the transaction; and
(b) Communicate the requirement to
comply with Subpart C of this part to
persons at the next lower tier with
whom the primary tier participant enters into covered transactions.
§ 105–68.440 What method do I use to
communicate those requirements to
participants?
To communicate the requirement,
you must include a term or condition
in the transaction requiring the participants’ compliance with subpart C of
this part and requiring them to include
a similar term or condition in lowertier covered transactions.
[68 FR 66627, Nov. 26, 2003]
§ 105–68.445 What action may I take if
a primary tier participant knowingly does business with an excluded or disqualified person?
If a participant knowingly does business with an excluded or disqualified
person, you as an agency official may
refer the matter for suspension and debarment consideration. You may also
disallow costs, annul or terminate the
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§ 105–68.450
41 CFR Ch. 105 (7–1–16 Edition)
transaction, issue a stop work order, or
take any other appropriate remedy.
§ 105–68.450 What action may I take if
a primary tier participant fails to
disclose the information required
under § 105–68.335?
If you as an agency official determine that a participant failed to disclose information, as required by § 105–
68.335, at the time it entered into a covered transaction with you, you may—
(a) Terminate the transaction for
material failure to comply with the
terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and debarment.
§ 105–68.455 What may I do if a lower
tier participant fails to disclose the
information required under § 105–
68.355 to the next higher tier?
If you as an agency official determine that a lower tier participant
failed to disclose information, as required by § 105–68.355, at the time it entered into a covered transaction with a
participant at the next higher tier, you
may pursue any remedies available to
you, including the initiation of a suspension or debarment action.
Subpart E—Excluded Parties List
System
§ 105–68.500 What is the purpose of the
Excluded
Parties
List
System
(EPLS)?
The EPLS is a widely available
source of the most current information
about persons who are excluded or disqualified from covered transactions.
§ 105–68.505
Who uses the EPLS?
(a) Federal agency officials use the
EPLS to determine whether to enter
into a transaction with a person, as required under § 105–68.430.
(b) Participants also may, but are
not required to, use the EPLS to determine if—
(1) Principals of their transactions
are excluded or disqualified, as required under § 105–68.320; or
(2) Persons with whom they are entering into covered transactions at the
next lower tier are excluded or disqualified.
(c) The EPLS is available to the general public.
§ 105–68.510
Who maintains the EPLS?
In accordance with the OMB guidelines, the General Services Administration (GSA) maintains the EPLS. When
a Federal agency takes an action to exclude a person under the nonprocurement or procurement debarment and
suspension system, the agency enters
the information about the excluded
person into the EPLS.
§ 105–68.515 What specific information
is in the EPLS?
(a) At a minimum, the EPLS indicates—
(1) The full name (where available)
and address of each excluded or disqualified person, in alphabetical order,
with cross references if more than one
name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for the action;
(6) The agency and name and telephone number of the agency point of
contact for the action; and
(7) The Dun and Bradstreet Number
(DUNS), or other similar code approved
by the GSA, of the excluded or disqualified person, if available.
(b)(1) The database for the EPLS includes a field for the Taxpayer Identification Number (TIN) (the social security number (SSN) for an individual) of
an excluded or disqualified person.
(2) Agencies disclose the SSN of an
individual to verify the identity of an
individual, only if permitted under the
Privacy Act of 1974 and, if appropriate,
the Computer Matching and Privacy
Protection Act of 1988, as codified in 5
U.S.C. 552(a).
§ 105–68.520 Who places the information into the EPLS?
Federal officials who take actions to
exclude persons under this part or officials who are responsible for identifying disqualified persons must enter
the following information about those
persons into the EPLS:
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General Services Administration
§ 105–68.610
(a) Information required by § 105–
68.515(a);
(b) The Taxpayer Identification Number (TIN) of the excluded or disqualified person, including the social security number (SSN) for an individual, if
the number is available and may be
disclosed under law;
(c) Information about an excluded or
disqualified person, generally within
five working days, after—
(1) Taking an exclusion action;
(2) Modifying or rescinding an exclusion action;
(3) Finding that a person is disqualified; or
(4) Finding that there has been a
change in the status of a person who is
listed as disqualified.
§ 105–68.525 Whom do I ask if I have
questions about a person in the
EPLS?
If you have questions about a person
in the EPLS, ask the point of contact
for the Federal agency that placed the
person’s name into the EPLS. You may
find the agency point of contact from
the EPLS.
§ 105–68.530 Where can I find the
EPLS?
(a) You may access the EPLS through
the Internet, currently at http://
epls.arnet.gov.
(b) As of November 26, 2003, you may
also subscribe to a printed version.
However, we anticipate discontinuing
the printed version. Until it is discontinued, you may obtain the printed
version by purchasing a yearly subscription from the Superintendent of
Documents, U.S. Government Printing
Office, Washington, DC 20402, or by
calling the Government Printing Office
Inquiry and Order Desk at (202) 783–
3238.
Subpart F—General Principles Relating to Suspension and Debarment Actions
§ 105–68.600 How do suspension and
debarment actions start?
When we receive information from
any source concerning a cause for suspension or debarment, we will promptly report and investigate it. We refer
the question of whether to suspend or
debar you to our suspending or debarring official for consideration, if appropriate.
§ 105–68.605 How does suspension differ from debarment?
Suspension differs from debarment in that—
A suspending official . . .
A debarring official . . .
(a) Imposes suspension as a temporary status of ineligibility for
procurement and nonprocurement transactions, pending
completion of an investigation or legal proceedings.
(b) Must— ....................................................................................
(1) Have adequate evidence that there may be a cause for debarment of a person; and.
(2) Conclude that immediate action is necessary to protect the
Federal interest.
(c) Usually imposes the suspension first, and then promptly notifies the suspended person, giving the person an opportunity
to contest the suspension and have it lifted.
Imposes debarment for a specified period as a final determination that a person is not presently responsible.
§ 105–68.610 What procedures does the
General Services Administration
use in suspension and debarment
actions?
In deciding whether to suspend or
debar you, we handle the actions as informally as practicable, consistent
Must conclude, based on a preponderance of the evidence,
that the person has engaged in conduct that warrants debarment.
Imposes debarment after giving the respondent notice of the
action and an opportunity to contest the proposed debarment.
with principles of fundamental fairness.
(a) For suspension actions, we use
the procedures in this subpart and subpart G of this part.
(b) For debarment actions, we use the
procedures in this subpart and subpart
H of this part.
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§ 105–68.615
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–68.615 How does the General
Services Administration notify a
person of a suspension or debarment action?
(a) The suspending or debarring official sends a written notice to the last
known street address, facsimile number, or e-mail address of—
(1) You or your identified counsel; or
(2) Your agent for service of process,
or any of your partners, officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to
any of these persons.
§ 105–68.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal
agency has an interest in a suspension
or debarment, the agencies may consider designating one agency as the
lead agency for making the decision.
Agencies are encouraged to establish
methods and procedures for coordinating their suspension and debarment
actions.
§ 105–68.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the
suspension or debarment is effective as
follows:
(a) Your suspension or debarment
constitutes suspension or debarment of
all of your divisions and other organizational elements from all covered
transactions, unless the suspension or
debarment decision is limited—
(1) By its terms to one or more specifically identified individuals, divisions, or other organizational elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may
be included in a suspension or debarment action if the suspending or debarring official—
(1) Officially names the affiliate in
the notice; and
(2) Gives the affiliate an opportunity
to contest the action.
§ 105–68.630 May the General Services
Administration impute conduct of
one person to another?
For purposes of actions taken under
this rule, we may impute conduct as
follows:
(a) Conduct imputed from an individual
to an organization. We may impute the
fraudulent, criminal, or other improper
conduct of any officer, director, shareholder, partner, employee, or other individual associated with an organization, to that organization when the improper conduct occurred in connection
with the individual’s performance of
duties for or on behalf of that organization, or with the organization’s knowledge, approval or acquiescence. The organization’s acceptance of the benefits
derived from the conduct is evidence of
knowledge, approval or acquiescence.
(b) Conduct imputed from an organization to an individual, or between individuals. We may impute the fraudulent,
criminal, or other improper conduct of
any organization to an individual, or
from one individual to another individual, if the individual to whom the
improper conduct is imputed either
participated in, had knowledge of, or
reason to know of the improper conduct.
(c) Conduct imputed from one organization to another organization. We may
impute the fraudulent, criminal, or
other improper conduct of one organization to another organization when
the improper conduct occurred in connection with a partnership, joint venture, joint application, association or
similar arrangement, or when the organization to whom the improper conduct
is imputed has the power to direct,
manage, control or influence the activities of the organization responsible
for the improper conduct. Acceptance
of the benefits derived from the conduct is evidence of knowledge, approval
or acquiescence.
§ 105–68.635 May the General Services
Administration settle a debarment
or suspension action?
Yes, we may settle a debarment or
suspension action at any time if it is in
the best interest of the Federal Government.
§ 105–68.640 May a settlement include
a voluntary exclusion?
Yes, if we enter into a settlement
with you in which you agree to be excluded, it is called a voluntary exclusion and has governmentwide effect.
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General Services Administration
§ 105–68.720
§ 105–68.645 Do other Federal agencies
know if the General Services Administration agrees to a voluntary
exclusion?
(a) Yes, we enter information regarding a voluntary exclusion into the
EPLS.
(b) Also, any agency or person may
contact us to find out the details of a
voluntary exclusion.
Subpart G—Suspension
§ 105–68.700 When may the suspending
official issue a suspension?
Suspension is a serious action. Using
the procedures of this subpart and subpart F of this part, the suspending official may impose suspension only when
that official determines that—
(a) There exists an indictment for, or
other adequate evidence to suspect, an
offense listed under § 105–68.800(a), or
(b) There exists adequate evidence to
suspect any other cause for debarment
listed under § 105–68.800(b) through (d);
and
(c) Immediate action is necessary to
protect the public interest.
§ 105–68.705 What does the suspending
official consider in issuing a suspension?
(a) In determining the adequacy of
the evidence to support the suspension,
the suspending official considers how
much information is available, how
credible it is given the circumstances,
whether or not important allegations
are corroborated, and what inferences
can reasonably be drawn as a result.
During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant documents.
(b) An indictment, conviction, civil
judgment, or other official findings by
Federal, State, or local bodies that determine factual and/or legal matters,
constitutes adequate evidence for purposes of suspension actions.
(c) In deciding whether immediate
action is needed to protect the public
interest, the suspending official has
wide discretion. For example, the suspending official may infer the necessity for immediate action to protect
the public interest either from the na-
ture of the circumstances giving rise to
a cause for suspension or from potential business relationships or involvement with a program of the Federal
Government.
§ 105–68.710 When does a suspension
take effect?
A suspension is effective when the
suspending official signs the decision
to suspend.
§ 105–68.715 What notice does the suspending official give me if I am suspended?
After deciding to suspend you, the
suspending official promptly sends you
a Notice of Suspension advising you—
(a) That you have been suspended;
(b) That your suspension is based
on—
(1) An indictment;
(2) A conviction;
(3) Other adequate evidence that you
have committed irregularities which
seriously reflect on the propriety of
further Federal Government dealings
with you; or
(4) Conduct of another person that
has been imputed to you, or your affiliation with a suspended or debarred person;
(c) Of any other irregularities in
terms sufficient to put you on notice
without disclosing the Federal Government’s evidence;
(d) Of the cause(s) upon which we relied under § 105–68.700 for imposing suspension;
(e) That your suspension is for a temporary period pending the completion
of an investigation or resulting legal or
debarment proceedings;
(f) Of the applicable provisions of this
subpart, Subpart F of this part, and
any other GSA procedures governing
suspension decision making; and
(g) Of the governmentwide effect of
your suspension from procurement and
nonprocurement programs and activities.
§ 105–68.720 How may I contest a suspension?
If you as a respondent wish to contest a suspension, you or your representative must provide the suspending official with information in
opposition to the suspension. You may
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§ 105–68.725
41 CFR Ch. 105 (7–1–16 Edition)
do this orally or in writing, but any information provided orally that you
consider important must also be submitted in writing for the official
record.
§ 105–68.725 How much time do I have
to contest a suspension?
(a) As a respondent you or your representative must either send, or make
rrangements to appear and present, the
information and argument to the suspending official within 30 days after
you receive the Notice of Suspension.
(b) We consider the notice to be received by you—
(1) When delivered, if we mail the notice to the last known street address,
or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice
by facsimile or five days after we send
it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days after we
send it if the e-mail is undeliverable.
§ 105–68.730 What information must I
provide to the suspending official if
I contest a suspension?
(a) In addition to any information
and argument in opposition, as a respondent your submission to the suspending official must identify—
(1) Specific facts that contradict the
statements contained in the Notice of
Suspension. A general denial is insufficient to raise a genuine dispute over
facts material to the suspension;
(2) All existing, proposed, or prior exclusions under regulations implementing E.O. 12549 and all similar actions taken by Federal, state, or local
agencies,
including
administrative
agreements that affect only those
agencies;
(3) All criminal and civil proceedings
not included in the Notice of Suspension that grew out of facts relevant to
the cause(s) stated in the notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false information,
the General Services Administration
may seek further criminal, civil or administrative action against you, as appropriate.
§ 105–68.735 Under what conditions do
I get an additional opportunity to
challenge the facts on which the
suspension is based?
(a) You as a respondent will not have
an additional opportunity to challenge
the facts if the suspending official determines that—
(1) Your suspension is based upon an
indictment, conviction, civil judgment,
or other finding by a Federal, State, or
local body for which an opportunity to
contest the facts was provided;
(2) Your presentation in opposition
contains only general denials to information contained in the Notice of Suspension;
(3) The issues raised in your presentation in opposition to the suspension
are not factual in nature, or are not
material to the suspending official’s
initial decision to suspend, or the official’s decision whether to continue the
suspension; or
(4) On the basis of advice from the
Department of Justice, an office of the
United States Attorney, a State attorney general’s office, or a State or local
prosecutor’s office, that substantial interests of the government in pending or
contemplated legal proceedings based
on the same facts as the suspension
would be prejudiced by conducting
fact-finding.
(b) You will have an opportunity to
challenge the facts if the suspending
official determines that—
(1) The conditions in paragraph (a) of
this section do not exist; and
(2) Your presentation in opposition
raises a genuine dispute over facts material to the suspension.
(c) If you have an opportunity to
challenge disputed material facts
under this section, the suspending official or designee must conduct additional proceedings to resolve those
facts.
§ 105–68.740 Are
suspension
proceedings formal?
(a) Suspension proceedings are conducted in a fair and informal manner.
The suspending official may use flexible procedures to allow you to present
matters in opposition. In so doing, the
suspending official is not required to
follow formal rules of evidence or procedure in creating an official record
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General Services Administration
§ 105–68.800
upon which the official will base a final
suspension decision.
(b) You as a respondent or your representative must submit any documentary evidence you want the suspending
official to consider.
§ 105–68.745 How is fact-finding conducted?
(a) If fact-finding is conducted—
(1) You may present witnesses and
other evidence, and confront any witness presented; and
(2) The fact-finder must prepare written findings of fact for the record.
(b) A transcribed record of fact-finding proceedings must be made, unless
you as a respondent and the General
Services Administration agree to waive
it in advance. If you want a copy of the
transcribed record, you may purchase
it.
§ 105–68.750 What does the suspending
official consider in deciding whether to continue or terminate my suspension?
(a) The suspending official bases the
decision on all information contained
in the official record. The record includes—
(1) All information in support of the
suspending official’s initial decision to
suspend you;
(2) Any further information and argument presented in support of, or opposition to, the suspension; and
(3) Any transcribed record of factfinding proceedings.
(b) The suspending official may refer
disputed material facts to another official for findings of fact. The suspending
official may reject any resulting findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly erroneous.
§ 105–68.755 When will I know whether
the suspension is continued or terminated?
The suspending official must make a
written decision whether to continue,
modify, or terminate your suspension
within 45 days of closing the official
record. The official record closes upon
the suspending official’s receipt of final
submissions, information and findings
of fact, if any. The suspending official
may extend that period for good cause.
§ 105–68.760 How long may my suspension last?
(a) If legal or debarment proceedings
are initiated at the time of, or during
your suspension, the suspension may
continue until the conclusion of those
proceedings. However, if proceedings
are not initiated, a suspension may not
exceed 12 months.
(b) The suspending official may extend the 12 month limit under paragraph (a) of this section for an additional 6 months if an office of a U.S.
Assistant Attorney General, U.S. Attorney, or other responsible prosecuting official requests an extension
in writing. In no event may a suspension exceed 18 months without initiating proceedings under paragraph (a)
of this section.
(c) The suspending official must notify the appropriate officials under
paragraph (b) of this section of an impending termination of a suspension at
least 30 days before the 12 month period expires to allow the officials an
opportunity to request an extension.
Subpart H—Debarment
§ 105–68.800 What are the causes for
debarment?
We may debar a person for—
(a) Conviction of or civil judgment
for—
(1) Commission of fraud or a criminal
offense in connection with obtaining,
attempting to obtain, or performing a
public or private agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between
competitors, and bid rigging;
(3) Commission of embezzlement,
theft, forgery, bribery, falsification or
destruction of records, making false
statements, tax evasion, receiving stolen property, making false claims, or
obstruction of justice; or
(4) Commission of any other offense
indicating a lack of business integrity
or business honesty that seriously and
directly affects your present responsibility;
(b) Violation of the terms of a public
agreement or transaction so serious as
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§ 105–68.805
41 CFR Ch. 105 (7–1–16 Edition)
to affect the integrity of an agency
program, such as—
(1) A willful failure to perform in accordance with the terms of one or more
public agreements or transactions;
(2) A history of failure to perform or
of unsatisfactory performance of one or
more public agreements or transactions; or
(3) A willful violation of a statutory
or regulatory provision or requirement
applicable to a public agreement or
transaction;
(c) Any of the following causes:
(1) A nonprocurement debarment by
any Federal agency taken before October 1, 1988, or a procurement debarment
by any Federal agency taken pursuant
to 48 CFR part 9, subpart 9.4, before August 25, 1995;
(2) Knowingly doing business with an
ineligible person, except as permitted
under § 105–68.120;
(3) Failure to pay a single substantial
debt, or a number of outstanding debts
(including disallowed costs and overpayments, but not including sums owed
the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the
debtor or, if contested, provided that
the debtor’s legal and administrative
remedies have been exhausted;
(4) Violation of a material provision
of a voluntary exclusion agreement entered into under § 105–68.640 or of any
settlement of a debarment or suspension action; or
(5) Violation of the provisions of the
Drug-Free Workplace Act of 1988 (41
U.S.C. 701); or
(d) Any other cause of so serious or
compelling a nature that it affects
your present responsibility.
§ 105–68.805 What notice does the debarring official give me if I am proposed for debarment?
After consideration of the causes in
§ 105–68.800 of this subpart, if the debarring official proposes to debar you, the
official sends you a Notice of Proposed
Debarment, pursuant to § 105–68.615, advising you—
(a) That the debarring official is considering debarring you;
(b) Of the reasons for proposing to
debar you in terms sufficient to put
you on notice of the conduct or transactions upon which the proposed debarment is based;
(c) Of the cause(s) under § 105–68.800
upon which the debarring official relied
for proposing your debarment;
(d) Of the applicable provisions of
this subpart, Subpart F of this part,
and any other GSA procedures governing debarment; and
(e) Of the governmentwide effect of a
debarment from procurement and nonprocurement programs and activities.
§ 105–68.810 When does a debarment
take effect?
A debarment is not effective until
the debarring official issues a decision.
The debarring official does not issue a
decision until the respondent has had
an opportunity to contest the proposed
debarment.
§ 105–68.815 How may I contest a proposed debarment?
If you as a respondent wish to contest a proposed debarment, you or your
representative must provide the debarring official with information in opposition to the proposed debarment. You
may do this orally or in writing, but
any information provided orally that
you consider important must also be
submitted in writing for the official
record.
§ 105–68.820 How much time do I have
to contest a proposed debarment?
(a) As a respondent you or your representative must either send, or make
arrangements to appear and present,
the information and argument to the
debarring official within 30 days after
you receive the Notice of Proposed Debarment.
(b) We consider the Notice of Proposed Debarment to be received by
you—
(1) When delivered, if we mail the notice to the last known street address,
or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice
by facsimile or five days after we send
it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days after we
send it if the e-mail is undeliverable.
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General Services Administration
§ 105–68.845
§ 105–68.825 What information must I
provide to the debarring official if I
contest a proposed debarment?
(a) In addition to any information
and argument in opposition, as a respondent your submission to the debarring official must identify—
(1) Specific facts that contradict the
statements contained in the Notice of
Proposed Debarment. Include any information about any of the factors listed in § 105–68.860. A general denial is insufficient to raise a genuine dispute
over facts material to the debarment;
(2) All existing, proposed, or prior exclusions under regulations implementing E.O. 12549 and all similar actions taken by Federal, State, or local
agencies,
including
administrative
agreements that affect only those
agencies;
(3) All criminal and civil proceedings
not included in the Notice of Proposed
Debarment that grew out of facts relevant to the cause(s) stated in the notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false information,
the General Services Administration
may seek further criminal, civil or administrative action against you, as appropriate.
§ 105–68.830 Under what conditions do
I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
(a) You as a respondent will not have
an additional opportunity to challenge
the facts if the debarring official determines that—
(1) Your debarment is based upon a
conviction or civil judgment;
(2) Your presentation in opposition
contains only general denials to information contained in the Notice of Proposed Debarment; or
(3) The issues raised in your presentation in opposition to the proposed debarment are not factual in nature, or
are not material to the debarring official’s decision whether to debar.
(b) You will have an additional opportunity to challenge the facts if the
debarring official determines that—
(1) The conditions in paragraph (a) of
this section do not exist; and
(2) Your presentation in opposition
raises a genuine dispute over facts material to the proposed debarment.
(c) If you have an opportunity to
challenge disputed material facts
under this section, the debarring official or designee must conduct additional proceedings to resolve those
facts.
§ 105–68.835 Are
debarment
ceedings formal?
(a) Debarment proceedings are conducted in a fair and informal manner.
The debarring official may use flexible
procedures to allow you as a respondent to present matters in opposition. In
so doing, the debarring official is not
required to follow formal rules of evidence or procedure in creating an official record upon which the official will
base the decision whether to debar.
(b) You or your representative must
submit any documentary evidence you
want the debarring official to consider.
§ 105–68.840 How is fact-finding conducted?
(a) If fact-finding is conducted—
(1) You may present witnesses and
other evidence, and confront any witness presented; and
(2) The fact-finder must prepare written findings of fact for the record.
(b) A transcribed record of fact-finding proceedings must be made, unless
you as a respondent and the General
Services Administration agree to waive
it in advance. If you want a copy of the
transcribed record, you may purchase
it.
§ 105–68.845 What does the debarring
official consider in deciding whether to debar me?
(a) The debarring official may debar
you for any of the causes in § 105–68.800.
However, the official need not debar
you even if a cause for debarment exists. The official may consider the seriousness of your acts or omissions and
the mitigating or aggravating factors
set forth at § 105–68.860.
(b) The debarring official bases the
decision on all information contained
in the official record. The record includes—
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§ 105–68.850
41 CFR Ch. 105 (7–1–16 Edition)
(1) All information in support of the
debarring official’s proposed debarment;
(2) Any further information and argument presented in support of, or in opposition to, the proposed debarment;
and
(3) Any transcribed record of factfinding proceedings.
(c) The debarring official may refer
disputed material facts to another official for findings of fact. The debarring
official may reject any resultant findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly erroneous.
§ 105–68.850 What is the standard of
proof in a debarment action?
(a) In any debarment action, we must
establish the cause for debarment by a
preponderance of the evidence.
(b) If the proposed debarment is
based upon a conviction or civil judgment, the standard of proof is met.
§ 105–68.855 Who has the burden of
proof in a debarment action?
(a) We have the burden to prove that
a cause for debarment exists.
(b) Once a cause for debarment is established, you as a respondent have the
burden of demonstrating to the satisfaction of the debarring official that
you are presently responsible and that
debarment is not necessary.
§ 105–68.860 What factors may influence the debarring official’s decision?
This section lists the mitigating and
aggravating factors that the debarring
official may consider in determining
whether to debar you and the length of
your debarment period. The debarring
official may consider other factors if
appropriate in light of the circumstances of a particular case. The
existence or nonexistence of any factor, such as one of those set forth in
this section, is not necessarily determinative of your present responsibility. In making a debarment decision, the debarring official may consider the following factors:
(a) The actual or potential harm or
impact that results or may result from
the wrongdoing.
(b) The frequency of incidents and/or
duration of the wrongdoing.
(c) Whether there is a pattern or
prior history of wrongdoing. For example, if you have been found by another
Federal agency or a State agency to
have engaged in wrongdoing similar to
that found in the debarment action,
the existence of this fact may be used
by the debarring official in determining that you have a pattern or
prior history of wrongdoing.
(d) Whether you are or have been excluded or disqualified by an agency of
the Federal Government or have not
been allowed to participate in State or
local contracts or assistance agreements on a basis of conduct similar to
one or more of the causes for debarment specified in this part.
(e) Whether you have entered into an
administrative agreement with a Federal agency or a State or local government that is not governmentwide but
is based on conduct similar to one or
more of the causes for debarment specified in this part.
(f) Whether and to what extent you
planned, initiated, or carried out the
wrongdoing.
(g) Whether you have accepted responsibility for the wrongdoing and
recognize the seriousness of the misconduct that led to the cause for debarment.
(h) Whether you have paid or agreed
to pay all criminal, civil and administrative liabilities for the improper activity, including any investigative or
administrative costs incurred by the
government, and have made or agreed
to make full restitution.
(i) Whether you have cooperated fully
with the government agencies during
the investigation and any court or administrative action. In determining the
extent of cooperation, the debarring official may consider when the cooperation began and whether you disclosed
all pertinent information known to
you.
(j) Whether the wrongdoing was pervasive within your organization.
(k) The kind of positions held by the
individuals involved in the wrongdoing.
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General Services Administration
§ 105–68.885
(l) Whether your organization took
appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence.
(m) Whether your principals tolerated the offense.
(n) Whether you brought the activity
cited as a basis for the debarment to
the attention of the appropriate government agency in a timely manner.
(o) Whether you have fully investigated the circumstances surrounding
the cause for debarment and, if so,
made the result of the investigation
available to the debarring official.
(p) Whether you had effective standards of conduct and internal control
systems in place at the time the questioned conduct occurred.
(q) Whether you have taken appropriate disciplinary action against the
individuals responsible for the activity
which constitutes the cause for debarment.
(r) Whether you have had adequate
time to eliminate the circumstances
within your organization that led to
the cause for the debarment.
(s) Other factors that are appropriate
to the circumstances of a particular
case.
§ 105–68.865 How long may my debarment last?
(a) If the debarring official decides to
debar you, your period of debarment
will be based on the seriousness of the
cause(s) upon which your debarment is
based. Generally, debarment should not
exceed three years. However, if circumstances warrant, the debarring official may impose a longer period of debarment.
(b) In determining the period of debarment, the debarring official may
consider the factors in § 105–68.860. If a
suspension has preceded your debarment, the debarring official must consider the time you were suspended.
(c) If the debarment is for a violation
of the provisions of the Drug-Free
Workplace Act of 1988, your period of
debarment may not exceed five years.
§ 105–68.870 When do I know if the debarring official debars me?
(a) The debarring official must make
a written decision whether to debar
within 45 days of closing the official
record. The official record closes upon
the debarring official’s receipt of final
submissions, information and findings
of fact, if any. The debarring official
may extend that period for good cause.
(b) The debarring official sends you
written notice, pursuant to § 105–68.615
that the official decided, either—
(1) Not to debar you; or
(2) To debar you. In this event, the
notice:
(i) Refers to the Notice of Proposed
Debarment;
(ii) Specifies the reasons for your debarment;
(iii) States the period of your debarment, including the effective dates;
and
(iv) Advises you that your debarment
is effective for covered transactions
and contracts that are subject to the
Federal Acquisition Regulation (48
CFR chapter 1), throughout the executive branch of the Federal Government
unless an agency head or an authorized
designee grants an exception.
§ 105–68.875 May I ask the debarring
official to reconsider a decision to
debar me?
Yes, as a debarred person you may
ask the debarring official to reconsider
the debarment decision or to reduce
the time period or scope of the debarment. However, you must put your request in writing and support it with
documentation.
§ 105–68.880 What factors may influence the debarring official during
reconsideration?
The debarring official may reduce or
terminate your debarment based on—
(a) Newly discovered material evidence;
(b) A reversal of the conviction or
civil judgment upon which your debarment was based;
(c) A bona fide change in ownership
or management;
(d) Elimination of other causes for
which the debarment was imposed; or
(e) Other reasons the debarring official finds appropriate.
§ 105–68.885 May the debarring official
extend a debarment?
(a) Yes, the debarring official may
extend a debarment for an additional
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§ 105–68.900
41 CFR Ch. 105 (7–1–16 Edition)
period, if that official determines that
an extension is necessary to protect
the public interest.
(b) However, the debarring official
may not extend a debarment solely on
the basis of the facts and circumstances upon which the initial debarment action was based.
(c) If the debarring official decides
that a debarment for an additional period is necessary, the debarring official
must follow the applicable procedures
in this subpart, and subpart F of this
part, to extend the debarment.
Subpart I—Definitions
§ 105–68.900
Adequate evidence.
Affiliate.
Persons are affiliates of each other if,
directly or indirectly, either one controls or has the power to control the
other or a third person controls or has
the power to control both. The ways we
use to determine control include, but
are not limited to—
(a) Interlocking management or ownership;
(b) Identity of interests among family members;
(c) Shared facilities and equipment;
(d) Common use of employees; or
(e) A business entity which has been
organized following the exclusion of a
person which has the same or similar
management, ownership, or principal
employees as the excluded person.
§ 105–68.910
Agency.
Agency means any United States executive department, military department, defense agency, or any other
agency of the executive branch. Other
agencies of the Federal government are
not considered ‘‘agencies’’ for the purposes of this part unless they issue regulations adopting the governmentwide
Debarment and Suspension system
under Executive orders 12549 and 12689.
§ 105–68.915
§ 105–68.920
Agent or representative.
Agent or representative means any person who acts on behalf of, or who is au-
Civil judgment.
Civil judgment means the disposition
of a civil action by any court of competent jurisdiction, whether by verdict,
decision, settlement, stipulation, other
disposition which creates a civil liability for the complained of wrongful
acts, or a final determination of liability under the Program Fraud Civil
Remedies Act of 1988 (31 U.S.C. 3801–
3812).
§ 105–68.925
Adequate evidence means information
sufficient to support the reasonable belief that a particular act or omission
has occurred.
§ 105–68.905
thorized to commit, a participant in a
covered transaction.
Conviction.
Conviction means—
(a) A judgment or any other determination of guilt of a criminal offense
by any court of competent jurisdiction,
whether entered upon a verdict or plea,
including a plea of nolo contendere; or
(b) Any other resolution that is the
functional equivalent of a judgment,
including probation before judgment
and deferred prosecution. A disposition
without the participation of the court
is the functional equivalent of a judgment only if it includes an admission
of guilt.
§ 105–68.930
Debarment.
Debarment means an action taken by
a debarring official under subpart H of
this part to exclude a person from participating in covered transactions and
transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1). A person so excluded is debarred.
§ 105–68.935
Debarring official.
(a) Debarring official means an agency
official who is authorized to impose debarment. A debarring official is either—
(1) The agency head; or
(2) An official designated by the
agency head.
(b) [Reserved]
§ 105–68.940
Disqualified.
Disqualified means that a person is
prohibited from participating in specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other
than Executive Orders 12549 and 12689)
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General Services Administration
§ 105–68.995
or other authority. Examples of disqualifications include persons prohibited under—
(a) The Davis-Bacon Act (40 U.S.C.
276(a));
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606),
Clean Water Act (33 U.S.C. 1368) and
Executive Order 11738 (3 CFR, 1973
Comp., p. 799).
§ 105–68.945
Excluded or exclusion.
Excluded or exclusion means—
(a) That a person or commodity is
prohibited from being a participant in
covered transactions, whether the person has been suspended; debarred; proposed for debarment under 48 CFR part
9, subpart 9.4; voluntarily excluded; or
(b) The act of excluding a person.
§ 105–68.950
tem
Excluded Parties List Sys-
Excluded Parties List System (EPLS)
means the list maintained and disseminated by the General Services Administration (GSA) containing the names
and other information about persons
who are ineligible. The EPLS system
includes the printed version entitled,
‘‘List of Parties Excluded or Disqualified from Federal Procurement and
Nonprocurement Programs,’’ so long as
published.
§ 105–68.955
Indictment.
Indictment means an indictment for a
criminal offense. A presentment, information, or other filing by a competent
authority charging a criminal offense
shall be given the same effect as an indictment.
§ 105–68.960
Ineligible or ineligibility.
Ineligible or ineligibility means that a
person or commodity is prohibited
from covered transactions because of
an exclusion or disqualification.
§ 105–68.965
Legal proceedings.
Legal proceedings means any criminal
proceeding or any civil judicial proceeding, including a proceeding under
the Program Fraud Civil Remedies Act
(31 U.S.C. 3801–3812), to which the Federal Government or a State or local
government or quasi-governmental au-
thority is a party. The term also includes appeals from those proceedings.
§ 105–68.970 Nonprocurement
transaction.
(a) Nonprocurement transaction means
any transaction, regardless of type (except procurement contracts), including, but not limited to the following:
(1) Grants.
(2) Cooperative agreements.
(3) Scholarships.
(4) Fellowships.
(5) Contracts of assistance.
(6) Loans.
(7) Loan guarantees.
(8) Subsidies.
(9) Insurances.
(10) Payments for specified uses.
(11) Donation agreements.
(b) A nonprocurement transaction at
any tier does not require the transfer
of Federal funds.
§ 105–68.975 Notice.
Notice means a written communication served in person, sent by certified
mail or its equivalent, or sent electronically by e-mail or facsimile. (See
§ 105–68. 615.)
§ 105–68.980 Participant.
Participant means any person who
submits a proposal for or who enters
into a covered transaction, including
an agent or representative of a participant.
§ 105–68.985 Person.
Person means any individual, corporation, partnership, association, unit
of government, or legal entity, however
organized.
§ 105–68.990 Preponderance of the evidence.
Preponderance of the evidence means
proof by information that, compared
with information opposing it, leads to
the conclusion that the fact at issue is
more probably true than not.
§ 105–68.995 Principal.
Principal means—
(a) An officer, director, owner, partner, principal investigator, or other
person within a participant with management or supervisory responsibilities
related to a covered transaction; or
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31
§ 105–68.1000
41 CFR Ch. 105 (7–1–16 Edition)
(b) A consultant or other person,
whether or not employed by the participant or paid with Federal funds, who—
(1) Is in a position to handle Federal
funds;
(2) Is in a position to influence or
control the use of those funds; or,
(3) Occupies a technical or professional position capable of substantially
influencing the development or outcome of an activity required to perform
the covered transaction.
§ 105–68.1000 Respondent.
Respondent means a person against
whom an agency has initiated a debarment or suspension action.
§ 105–68.1005 State.
(a) State means—
(1) Any of the states of the United
States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto
Rico;
(4) Any territory or possession of the
United States; or
(5) Any agency or instrumentality of
a state.
(b) For purposes of this part, State
does not include institutions of higher
education, hospitals, or units of local
government.
§ 105–68.1010 Suspending official.
(a) Suspending official means an agency official who is authorized to impose
suspension. The suspending official is
either:
(1) The agency head; or
(2) An official designated by the
agency head.
(b) [Reserved]
§ 105–68.1015
Suspension.
Suspension is an action taken by a
suspending official under subpart G of
this part that immediately prohibits a
person from participating in covered
transactions and transactions covered
under the Federal Acquisition Regulation (48 CFR chapter 1) for a temporary
period, pending completion of an agency investigation and any judicial or administrative proceedings that may
ensue. A person so excluded is suspended.
§ 105–68.1020 Voluntary exclusion
voluntarily excluded.
(a) Voluntary exclusion means a person’s agreement to be excluded under
the terms of a settlement between the
person and one or more agencies. Voluntary exclusion must have governmentwide effect.
(b) Voluntarily excluded means the
status of a person who has agreed to a
voluntary exclusion.
Subpart J [Reserved]
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31
General Services Administration
Pt. 105–69
APPENDIX TO PART 105–68—COVERED TRANSACTIONS
Subpart D—Penalties and Enforcement
PART 105–69—NEW RESTRICTIONS
ON LOBBYING
105–69.400
105–69.405
105–69.410
Subpart A—General
Sec.
105–69.100
105–69.105
105–69.110
Subpart E—Exemptions
Conditions on use of funds.
Definitions.
Certification and disclosure.
105–69.500
Agency and legislative liaison.
Professional and technical servReporting.
Subpart C—Activities by Other Than Own
Employees
105–69.300
ices.
Secretary of Defense.
Subpart F—Agency Reports
Subpart B—Activities by Own Employees
105–69.200
105–69.205
ices.
105–69.210
Penalties.
Penalty procedures.
Enforcement.
105–69.600 Semi-annual compilation.
105–69.605 Inspector General report.
APPENDIX A TO PART 105–69—CERTIFICATION
REGARDING LOBBYING
APPENDIX B TO PART 105–69—DISCLOSURE
FORM TO REPORT LOBBYING
AUTHORITY: Sec. 319, Pub. L. 101–121 (31
U.S.C. 1352); 40 U.S.C. 486(c).
Professional and technical serv-
SOURCE: 55 FR 6737, 6753, Feb. 26, 1990, unless otherwise noted.
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ER26NO03.000
549
§ 105–69.100
41 CFR Ch. 105 (7–1–16 Edition)
CROSS REFERENCE: See also Office of Management and Budget notice published at 54
FR 52306, December 20, 1989.
Subpart A—General
§ 105–69.100
funds.
Conditions
on
use
of
(a) No appropriated funds may be expended by the recipient of a Federal
contract, grant, loan, or cooperative
ageement to pay any person for influencing or attempting to influence an
officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with
any of the following covered Federal
actions: the awarding of any Federal
contract, the making of any Federal
grant, the making of any Federal loan,
the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative
agreement shall file with that agency a
certification, set forth in appendix A,
that the person has not made, and will
not make, any payment prohibited by
paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative
agreement shall file with that agency a
disclosure form, set forth in appendix
B, if such person has made or has
agreed to make any payment using
nonappropriated funds (to include profits from any covered Federal action),
which would be prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file with
that agency a statement, set forth in
appendix A, whether that person has
made or has agreed to make any payment to influence or attempt to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in con-
nection with that loan insurance or
guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file with
that agency a disclosure form, set forth
in appendix B, if that person has made
or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with
that loan insurance or guarantee.
§ 105–69.105
Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C.
552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and
Government corporations, as defined in
31 U.S.C. 9101(1).
(b) Covered Federal action means any
of the following Federal actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification of
any Federal contract, grant, loan, or
cooperative agreement.
Covered Federal action does not include receiving from an agency a commitment providing for the United
States to insure or guarantee a loan.
Loan guarantees and loan insurance
are addressed independently within
this part.
(c) Federal contract means an acquisition contract awarded by an agency,
including those subject to the Federal
Acquisition Regulation (FAR), and any
other acquisition contract for real or
personal property or services not subject to the FAR.
(d) Federal cooperative agreement
means a cooperative agreement entered into by an agency.
(e) Federal grant means an award of
financial assistance in the form of
money, or property in lieu of money,
by the Federal Government or a direct
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31
General Services Administration
§ 105–69.105
appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing,
loans, loan guarantees, loan insurance,
interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by
an agency. The term does not include
loan guarantee or loan insurance.
(g) Indian tribe and tribal organization
have the meaning provided in section 4
of the Indian Self-Determination and
Education Assistance Act (25 U.S.C.
450B). Alaskan Natives are included
under the definitions of Indian tribes in
that Act.
(h) Influencing or attempting to influence means making, with the intent to
influence, any communication to or appearance before an officer or employee
or any agency, a Member of Congress,
an officer or employee of Congress, or
an employee of a Member of Congress
in connection with any covered Federal
action.
(i) Loan guarantee and loan insurance
means an agency’s guarantee or insurance of a loan made by a person.
(j) Local government means a unit of
government in a State and, if chartered, established, or otherwise recognized by a State for the performance of
a governmental duty, including a local
public authority, a special district, an
intrastate district, a council of governments, a sponsor group representative
organization, and any other instrumentality of a local government.
(k) Officer or employee of an agency includes the following individuals who
are employed by an agency:
(1) An individual who is appointed to
a position in the Government under
title 5, U.S. Code, including a position
under a temporary appointment;
(2) A member of the uniformed services as defined in section 101(3), title 37,
U.S. Code;
(3) A special Government employee
as defined in section 202, title 18, U.S.
Code; and,
(4) An individual who is a member of
a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix
2.
(l) Person means an individual, corporation, company, association, authority, firm, partnership, society,
State, and local government, regardless of whether such entity is operated
for profit or not for profit. This term
excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal
law.
(m) Reasonable compensation means,
with respect to a regularly employed
officer or employee of any person, compensation that is consistent with the
normal compensation for such officer
or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal
Government.
(n) Reasonable payment means, with
respect to perfessional and other technical services, a payment in an amount
that is consistent with the amount normally paid for such services in the private sector.
(o) Recipient includes all contractors,
subcontractors at any tier, and subgrantees at any tier of the recipient of
funds received in connection with a
Federal contract, grant, loan, or cooperative agreement. The term excludes
an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(p) Regularly employed means, with
respect to an officer or employee of a
person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a commitment providing for the United States to insure
or guarantee a loan, an officer or employee who is employed by such person
for at least 130 working days within
one year immediately preceding the
date of the submission that initiates
agency consideration of such person for
receipt of such contract, grant, loan,
cooperative agreement, loan insurance
commitment, or loan guarantee commitment. An officer or employee who is
employed by such person for less than
130 working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be considered to be regularly employed as
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§ 105–69.110
41 CFR Ch. 105 (7–1–16 Edition)
soon as he or she is employed by such
person for 130 working days.
(q) State means a State of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, a territory or possession of the United States,
an agency or instrumentality of a
State, and a multi-State, regional, or
interstate entity having governmental
duties and powers.
§ 105–69.110
sure.
Certification and disclo-
(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such
person for:
(1) Award of a Federal contract,
grant, or cooperative agreement exceeding $100,000; or
(2) An award of a Federal loan or a
commitment providing for the United
States to insure or guarantee a loan
exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding $100,000;
or
(2) A Federal loan or a commitment
providing for the United States to insure or guarantee a loan exceeding
$150,000,
unless such person previously filed a
certification, and a disclosure form, if
required, under paragraph (a) of this
section.
(c) Each person shall file a disclosure
form at the end of each calendar quarter in which there occurs any event
that requires disclosure or that materially affects the accuracy of the information contained in any disclosure
form previously filed by such person
under paragraph (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or
more in the amount paid or expected to
be paid for influencing or attempting
to influence a covered Federal action;
or
(2) A change in the person(s) or individual(s) influencing or attempting to
influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to
influence or attempt to influence a
covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(1) A subcontract exceeding $100,000
at any tier under a Federal contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier
under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal
loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal
cooperative agreement,
shall file a certification, and a disclosure form, if required, to the next tier
above.
(e) All disclosure forms, but not certifications, shall be forwarded from
tier to tier until received by the person
referred to in paragraph (a) or (b) of
this section. That person shall forward
all disclosure forms to the agency.
(f) Any certification or disclosure
form filed under paragraph (e) of this
section shall be treated as a material
representation of fact upon which all
receiving tiers shall rely. All liability
arising from an erroneous representation shall be borne solely by the tier
filing that representation and shall not
be shared by any tier to which the erroneous representation is forwarded.
Submitting an erroneous certification
or disclosure constitutes a failure to
file the required certification or disclosure, respectively. If a person fails to
file a required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title 31, U.S.
Code.
(g) For awards and commitments in
process prior to December 23, 1989, but
not made before that date, certifications shall be required at award or
commitment, covering activities occurring between December 23, 1989, and
the date of award or commitment.
However, for awards and commitments
in process prior to the December 23,
1989 effective date of these provisions,
but not made before December 23, 1989,
disclosure forms shall not be required
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General Services Administration
§ 105–69.205
at time of award or commitment but
shall be filed within 30 days.
(h) No reporting is required for an activity paid for with appropriated funds
if that activity is allowable under either subpart B or C.
Subpart B—Activities by Own
Employees
§ 105–69.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in § 105–69.100 (a), does
not apply in the case of a payment of
reasonable compensation made to an
officer or employee of a person requesting or receiving a Federal contract,
grant, loan, or cooperative agreement
if the payment is for agency and legislative liaison activities not directly related to a covered Federal action.
(b) For purposes of paragraph (a) of
this section, providing any information
specifically requested by an agency or
Congress is allowable at any time.
(c) For purposes of paragraph (a) of
this section, the following agency and
legislative liaison activities are allowable at any time only where they are
not related to a specific solicitation for
any covered Federal action:
(1) Discussing with an agency (including individual demonstrations) the
qualities and characteristics of the person’s products or services, conditions
or terms of sale, and service capabilities; and,
(2) Technical discussions and other
activities regarding the application or
adaptation of the person’s products or
services for an agency’s use.
(d) For purposes of paragraph (a) of
this section, the following agencies and
legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal
action:
(1) Providing any information not
specifically requested but necessary for
an agency to make an informed decision about initiation of a covered Federal action;
(2) Technical discussions regarding
the preparation of an unsolicited proposal prior to its official submission;
and,
(3) Capability presentations by persons seeking awards from an agency
pursuant to the provisions of the Small
Business Act, as amended by Public
Law 95–507 and other subsequent
amendments.
(e) Only those activities expressly authorized by this section are allowable
under this section.
§ 105–69.205 Professional and technical
services.
(a) The prohibition on the use of appropriated funds, in § 105–69.100 (a), does
not apply in the case of a payment of
reasonable compensation made to an
officer or employee of a person requesting or receiving a Federal contract,
grant, loan, or cooperative agreement
or an extension, continuation, renewal,
amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered
directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative
agreement or for meeting requirements
imposed by or pursuant to law as a
condition for receiving that Federal
contract, grant, loan, or cooperative
agreement.
(b) For purposes of paragraph (a) of
this section, ‘‘professional and technical services’’ shall be limited to advice and analysis directly applying any
professional or technical discipline.
For example, drafting of a legal document accompanying a bid or proposal
by a lawyer is allowable. Similarly,
technical advice provided by an engineer on the performance or operational
capability of a piece of equipment rendered directly in the negotiation of a
contract is allowable. However, communications with the intent to influence made by a professional (such as a
licensed lawyer) or a technical person
(such as a licensed accountant) are not
allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered directly
and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence
made by a lawyer that do not provide
legal advice or analysis directly and
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§ 105–69.210
41 CFR Ch. 105 (7–1–16 Edition)
solely related to the legal aspects of
his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services.
Similarly, communications with the
intent to influence made by an engineer providing an engineering analysis
prior to the preparation or submission
of a bid or proposal are not allowable
under this section since the engineer is
providing technical services but not directly in the preparation, submission
or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include
those required by law or regulation, or
reasonably expected to be required by
law or regulation, and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are allowable
under this section.
§ 105–69.210 Reporting.
No reporting is required with respect
to payments of reasonable compensation made to regularly employed officers or employees of a person.
Subpart C—Activities by Other
Than Own Employees
§ 105–69.300 Professional and technical
services.
(a) The prohibition on the use of appropriated funds, in § 105–69.100 (a), does
not apply in the case of any reasonable
payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional
or technical services rendered directly
in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant,
loan, or cooperative agreement or for
meeting requirements imposed by or
pursuant to law as a condition for receiving that Federal contract, grant,
loan, or cooperative agreement.
(b) The reporting requirements in
§ 105–69.110 (a) and (b) regarding filing a
disclosure form by each person, if required, shall not apply with respect to
professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States
to insure or guarantee a loan.
(c) For purposes of paragraph (a) of
this section, ‘‘professional and technical services’’ shall be limited to advice and analysis directly applying any
professional or technical discipline.
For example, drafting or a legal document accompanying a bid or proposal
by a lawyer is allowable. Similarly,
technical advice provided by an engineer on the performance or operational
capability of a piece of equipment rendered directly in the negotiation of a
contract is allowable. However, communications with the intent to influence made by a professional (such as a
licensed lawyer) or a technical person
(such as a licensed accountant) are not
allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered directly
and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence
made by a lawyer that do not provide
legal advice or analysis directly and
solely related to the legal aspects of
his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services.
Similarly, communications with the
intent to influence made by an engineer providing an engineering analysis
prior to the preparation or submission
of a bid or proposal are not allowable
under this section since the engineer is
providing technical services but not directly in the preparation, submission
or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include
those required by law or regulation, or
reasonably expected to be required by
law or regulation, and any other requirements in the actual award documents.
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General Services Administration
§ 105–69.600
(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.
(f) Only those services expressly authorized by this section are allowable
under this section.
Subpart D—Penalties and
Enforcement
§ 105–69.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be subject
to a civil penalty of not less than
$10,000 and not more than $100,000 for
each such expenditure.
(b) Any person who fails to file or
amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil
penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(c) A filing or amended filing on or
after the date on which an administrative action for the imposition of a civil
penalty is commenced does not prevent
the imposition of such civil penalty for
a failure occurring before that date. An
administrative action is commenced
with respect to a failure when an investigating official determines in writing
to commence an investigation of an allegation of such failure.
(d) In determining whether to impose
a civil penalty, and the amount of any
such penalty, by reason of a violation
by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the
effect on the ability of such person to
continue in business, any prior violations by such person, the degree of culpability of such person, the ability of
the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs
(a) or (b) of this section shall be subject
to a civil penalty of $10,000, absent aggravating circumstances. Second and
subsequent offenses by persons shall be
subject to an appropriate civil penalty
between $10,000 and $100,000, as determined by the agency head or his or her
designee.
(f) An imposition of a civil penalty
under this section does not prevent the
United States from seeking any other
remedy that may apply to the same
conduct that is the basis for the imposition of such civil penalty.
§ 105–69.405
Penalty procedures.
Agencies shall impose and collect
civil penalties pursuant to the provisions of the Program Fraud and Civil
Remedies Act, 31 U.S.C. sections 3803
(except subsection (c)), 3804, 3805, 3806,
3807, 3808, and 3812, insofar as these provisions are not inconsistent with the
requirements herein.
§ 105–69.410
Enforcement.
The head of each agency shall take
such actions as are necessary to ensure
that the provisions herein are vigorously implemented and enforced in
that agency.
Subpart E—Exemptions
§ 105–69.500
Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in writing, that such an exemption is in the national interest. The
Secretary shall transmit a copy of each
such written exemption to Congress
immediately after making such a determination.
(b) The Department of Defense may
issue supplemental regulations to implement paragraph (a) of this section.
Subpart F—Agency Reports
§ 105–69.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure reports
(see appendix B) and, on May 31 and
November 30 of each year, submit to
the Secretary of the Senate and the
Clerk of the House of Representatives a
report containing a compilation of the
information contained in the disclosure reports received during the sixmonth period ending on March 31 or
September 30, respectively, of that
year.
(b) The report, including the compilation, shall be available for public
inspection 30 days after receipt of the
report by the Secretary and the Clerk.
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§ 105–69.605
41 CFR Ch. 105 (7–1–16 Edition)
(c) Information that involves intelligence matters shall be reported only
to the Select Committee on Intelligence of the Senate, the Permanent
Select Committee on Intelligence of
the House of Representatives, and the
Committees on Appropriations of the
Senate and the House of Representatives in accordance with procedures
agreed to by such committees. Such information shall not be available for
public inspection.
(d) Information that is classified
under Executive Order 12356 or any successor order shall be reported only to
the Committee on Foreign Relations of
the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees on Armed
Services of the Senate and the House of
Representatives (whichever such committees have jurisdiction of matters
involving such information) and to the
Committees on Appropriations of the
Senate and the House of Representatives in accordance with procedures
agreed to by such committees. Such information shall not be available for
public inspection.
(e) The first semi-annual compilation
shall be submitted on May 31, 1990, and
shall contain a compilation of the disclosure reports received from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the
Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk
of the House of Representatives no
later than with the compilations due
on May 31, 1991. OMB shall provide detailed specifications in a memorandum
to these agencies.
(g) Non-major agencies are requested
to provide machine-readable compilations to the Secretary of the Senate
and the Clerk of the House of Representatives.
(h) Agencies shall keep the originals
of all disclosure reports in the official
files of the agency.
§ 105–69.605 Inspector General report.
(a) The Inspector General, or other
official as specified in paragraph (b) of
this section, of each agency shall prepare and submit to Congress each year,
commencing with submission of the
President’s Budget in 1991, an evaluation of the compliance of that agency
with, and the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that
may be necessary to strengthen or improve the requirements.
(b) In the case of an agency that does
not have an Inspector General, the
agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no
such comparable official, the head of
the agency shall prepare and submit
the annual report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include
the following: All alleged violations relating to the agency’s covered Federal
actions during the year covered by the
report, the actions taken by the head
of the agency in the year covered by
the report with respect to those alleged
violations and alleged violations in
previous years, and the amounts of
civil penalties imposed by the agency
in the year covered by the report.
APPENDIX A TO PART 105–69—
CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and
Cooperative Agreements
The undersigned certifies, to the best of his
or her knowledge and belief, that:
(1) No Federal appropriated funds have
been paid or will be paid, by or on behalf of
the undersigned, to any person for influencing or attempting to influence an officer
or employee of an agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant,
the making of any Federal loan, the entering
into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting
to influence an officer or employee of any
agency, a Member of Congress, an officer or
employee of Congress, or an employee of a
Member of Congress in connection with this
Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete
and submit Standard Form-LLL, ‘‘Disclosure
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General Services Administration
Pt. 105–69, App. A
Form to Report Lobbying,’’ in accordance
with its instructions.
(3) The undersigned shall require that the
language of this certification be included in
the award documents for all subawards at all
tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered
into. Submission of this certification is a
prerequisite for making or entering into this
transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the
required certification shall be subject to a
civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
Statement for Loan Guarantees and Loan
Insurance
The undersigned states, to the best of his
or her knowledge and belief, that:
If any funds have been paid or will be paid
to any person for influencing or attempting
to influence an officer or employee of any
agency, a Member of Congress, an officer or
employee of Congress, or an employee of a
Member of Congress in connection with this
commitment providing for the United States
to insure or guarantee a loan, the undersigned shall complete and submit Standard
Form-LLL, ‘‘Disclosure Form to Report Lobbying,’’ in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering into this
transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the
required statement shall be subject to a civil
penalty of not less than $10,000 and not more
than $100,000 for each such failure.
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Pt. 105–69, App. B
41 CFR Ch. 105 (7–1–16 Edition)
APPENDIX B TO PART 105–69—DISCLOSURE FORM TO REPORT LOBBYING
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EC21OC91.008
558
General Services Administration
Pt. 105–69, App. B
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EC21OC91.009
559
Pt. 105–69, App. B
41 CFR Ch. 105 (7–1–16 Edition)
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EC21OC91.010
560
General Services Administration
§ 105–70.002
PART
105–70—IMPLEMENTATION
OF THE PROGRAM FRAUD CIVIL
REMEDIES ACT OF 1986
Sec.
105–70.000 Scope.
105–70.001 Basis.
105–70.002 Definitions.
105–70.003 Basis for civil penalties and assessments.
105–70.004 Investigation.
105–70.005 Review by the reviewing official.
105–70.006 Prerequisites for issuing a complaint.
105–70.007 Complaint.
105–70.008 Service of complaint.
105–70.009 Answer.
105–70.010 Default upon failure to file an answer.
105–70.011 Referral of complaint and answer
to the ALJ.
105–70.012 Notice of hearing.
105–70.013 Parties to the hearing.
105–70.014 Separation of functions.
105–70.015 Ex parte contacts.
105–70.016 Disqualification of reviewing official or ALJ.
105–70.017 Rights of parties.
105–70.018 Authority of the ALJ.
105–70.019 Prehearing conferences.
105–70.020 Disclosure of documents.
105–70.021 Discovery.
105–70.022 Exchange of witness lists, statements, and exhibits.
105–70.023 Subpoena for attendance at hearing.
105–70.024 Protective order.
105–70.025 Fees.
105–70.026 Form, filing and service of papers.
105–70.027 Computation of time.
105–70.028 Motions.
105–70.029 Sanctions.
105–70.030 The hearing and burden of proof.
105–70.031 Determining the amount of penalties and assessments.
105–70.032 Location of hearing.
105–70.033 Witnesses.
105–70.034 Evidence.
105–70.035 The record.
105–70.036 Post-hearing briefs.
105–70.037 Initial decision.
105–70.038 Reconsideration of initial decision.
105–70.039 Appeal to Authority Head.
105–70.040 Stays ordered by the Department
of Justice.
105–70.041 Stay pending appeal.
105–70.042 Judicial review.
105–70.043 Collection of civil penalties and
assessments.
105–70.044 Right to administrative offset.
105–70.045 Deposit in Treasury of United
States.
105–70.046 Compromise or settlement.
105–70.047 Limitations.
AUTHORITY: 40 U.S.C. 486(c); 31 U.S.C. 3809.
SOURCE: 52 FR 45188, Nov. 25, 1987, unless
otherwise noted.
§ 105–70.000 Scope.
This part (a) establishes administrative procedures for imposing civil penalties and assessments against persons
who make, submit, or present, or cause
to be made, submitted, or presented,
false, fictitious, or fraudulent claims
or written statements to authorities or
to their agents, and (b) specifies the
hearing and appeal rights of persons
subject to allegations of liability for
such penalties and assessments.
§ 105–70.001 Basis.
This part implements the Program
Fraud Civil Remedies Act of 1986, Pub.
L. No. 99–509, 6101–6104, 100 Stat. 1874
(October 21, 1986), to be codified at 31
U.S.C. 3801–3812. 31 U.S.C. 3809 of the
statute requires each authority head to
promulgate regulations necessary to
implement the provisions of the statute.
§ 105–70.002 Definitions.
The following shall have the meanings ascribed to them below unless the
context clearly indicates otherwise:
(a) ALJ means an Administrative
Law Judge in the Authority appointed
pursuant to 5 U.S.C. 3105 or detailed to
the Authority pursuant to 5 U.S.C.
3344.
(b) Authority means the General Services Administration.
(c) Authority Head means the Administrator or Deputy Administrator of
General Services.
(d) Benefit means, in the context of
statements, anything of value, including but not limited to any advantage,
preference, privilege, license, permit,
favorable decision, ruling, status, or
loan guarantee.
(e) Claim means any request, demand
or submission—
(1) Made to the Authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property,
services, or money from the Authority
or to a party to a contract with the Authority—
(i) For property or services if the
United States—
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§ 105–70.002
41 CFR Ch. 105 (7–1–16 Edition)
(A) Provided such property or services;
(B) Provided any portion of the funds
for the purchase of such property or
services; or
(C) Will reimburse such recipient or
party for the purchase of such property
or services; or
(ii) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the
United States—
(A) Provided any portion of the
money requested or demanded, or
(B) Will reimburse such recipient or
party for any portion of the money
paid on such request of demand; or
(3) Made to the Authority which has
the effect of decreasing an obligation
to pay or account for property, services, or money.
(f) Complaint means the administrative complaint served by the reviewing
official on the defendant under § 105–
70.007.
(g) Defendant means any person alleged in a complaint under § 105–70.007
to be liable for a civil penalty or assessment under § 105–70.003.
(h) Individual means a natural person.
(i) Initial Decision means the written
decision of the ALJ required by § 105–
70.010 or § 105–70.037, and includes a revised initial decision issued following a
remand or a motion for reconsideration.
(j) Investigating Official means the Inspector General of the General Services
Administration or an officer or employee of the Office of the Inspector
General designated by the Inspector
General and serving in a position for
which the rate of basic pay is not less
than the minimum rate of basic pay for
grade GS–16 under the General Schedule.
(k) Knows or has reason to know
means that a person, with respect to a
claim or statement—
(1) Has actual knowledge that the
claim or statement is false, fictitious,
or fraudulent;
(2) Acts in deliberate ignorance of the
truth or falsity of the claim or statement; or
(3) Acts in reckless disregard of the
truth or falsity of the claim or statement.
(l) Makes, wherever it appears, shall
include the terms presents, submits,
and causes to be made, presented, or
submitted. As the context requires,
‘‘making’’ or ‘‘made’’, shall likewise include the corresponding forms of such
terms.
(m) Person means any individual,
partnership, corporation, association,
or private organization.
(n) Representative means an attorney
who is a member in good standing of
the bar of any State, Territory, or possession of the United States or of the
District of Columbia or the Commonwealth of Puerto Rico. (An individual
may appear pro se; a corporate officer
or an owner may represent a business
entity.)
(o) Reviewing Official means the General Counsel of the General Services
Administration or his designee who
is—
(1) Not subject to supervision by, or
required to report to, the investigating
official; and
(2) Not employed in the organizational unit of the authority in which
the investigating official is employed;
and
(3) Serving in a position for which
the rate of basic pay is not less than
the minimum rate of basic pay for
grade GS–16 under the General Schedule.
(p) Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made—
(1) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility
to make a claim); or
(2) With respect to (including relating to eligibility for)—
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan, or benefit from, the
Authority, or any State, political subdivision of a State, or other party, if
the United States Government provides
any portion of the money or property
under such contract or for such grant,
loan, or benefit, or if the Government
will reimburse such State, political
subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or benefit.
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General Services Administration
§ 105–70.004
§ 105–70.003 Basis for civil penalties
and assessments.
(a) Claims. (1) Any person who makes
a claim that the person knows or has
reason to know—
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any
written statement which asserts a material fact which is false, fictitious, or
fraudulent;
(iii) Includes or is supported by any
written statement that—
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent
as a result of such omission; and
(C) Is a statement in which the person making such statement has a duty
to include such material fact; or
(iv) Is for payment for the provision
of property or services which the person has not provided as claimed,
shall be subject, in addition to any
other remedy that may be prescribed
by law, to a civil penalty of not more
than $5,500 for each such claim.
(2) Each voucher, invoice, claim
form, or other individual request or demand for property, services, or money
constitutes a separate claim.
(3) A claim shall be considered made
to the Authority, recipient, or party
when such claim is actually made to an
agent, fiscal intermediary, or other entity, including any State or political
subdivision thereof, acting for or on behalf of the Authority, recipient, or
party.
(4) Each claim for property, services,
or money is subject to a civil penalty
regardless of whether such property,
services, or money is actually delivered
or paid.
(5) If the Government has made any
payment (including transferred property or provided services) on a claim, a
person subject to a civil penalty under
paragraph (a)(1) of this section shall
also be subject to an assessment of not
more than twice the amount of such
claim or that portion thereof that is
determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because
of such claim.
(b) Statements. (1) Any person who
makes a written statement that—
(i) The person knows or has reason to
know—
(A) Asserts a material fact which is
false, fictitious, or fraudulent; or
(B) Is false, fictitious, or fraudulent
because it omits a material fact that
the person making the statement has a
duty to include in such statement; and
(ii) Contains or is accompanied by an
express certification or affirmation of
the truthfulness and accuracy of the
contents of the statement, shall be subject, in addition to any other remedy
that may be prescribed by law, to a
civil penalty of not more than $5,500 for
each such statement.
(2) Each written representation, certification, or affirmation constitutes a
separate statement.
(3) A statement shall be considered
made to the Authority when such
statement is actually made to an
agent, fiscal intermediary, or other entity, including any State or political
subdivision thereof, acting for or on behalf of the Authority.
(c) No proof of specific intent to defraud is required to establish liability
under this section.
(d) In any case in which it is determined that more than one person is liable for making a claim or statement
under this section, each such person
may be held liable for a civil penalty
under this section.
(e) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has
made payment (including transferred
property or provided services), an assessment may be imposed against any
such person or jointly and severally
against any combination of such persons.
[52 FR 45188, Nov. 25, 1987, as amended at 61
FR 67235, Dec. 20, 1996]
§ 105–70.004
Investigation.
(a) If an investigating official concludes that a subpoena pursuant to the
authority conferred by 31 U.S.C. 3804(a)
is warranted—
(1) The subpoena so issued shall notify the person to whom it is addressed
of the authority under which the subpoena is issued and shall identify the
records or documents sought;
(2) The investigating official may
designate a person to act on his or her
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§ 105–70.005
41 CFR Ch. 105 (7–1–16 Edition)
behalf to receive the documents
sought; and
(3) The person receiving such subpoena shall be required to tender to the
investigating official or the person designated to receive the documents a certification that the documents sought
have been produced, or that such documents are not available and the reasons therefor, or that such documents,
suitably identified, have been withheld
based upon the assertion of an identified privilege, or any combination of
the foregoing.
(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be
warranted, the investigating official
shall submit a report containing the
findings and conclusions of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating official’s discretion to refer allegations directly to the Department of Justice for
suit under the False Claims Act or
other civil relief, or to defer or postpone a report or referral to the reviewing official to avoid interference with a
criminal investigation or prosecution.
(d) Nothing in this section modifies
any responsibility of an investigating
official to report violations of criminal
law to the Attorney General.
§ 105–70.005 Review by the reviewing
official.
(a) If, based on the report of the investigating official under § 105–70.004(b),
the reviewing official determines that
there is adequate evidence to believe
that a person is liable under § 105–70.003
of this part, the reviewing official shall
transmit to the Attorney General a
written notice of the reviewing official’s intention to issue a complaint
under § 105–70.007.
(b) Such notice shall include—
(1) A statement of the reviewing official’s reasons for issuing a complaint;
(2) A statement specifying the evidence that supports the allegations of
liability;
(3) A description of the claims or
statements upon which the allegations
of liability are based;
(4) An estimate of the amount of
money or the value of property, services, or other benefits requested or de-
manded in violation of § 105–70.003 of
this part;
(5) A statement of any exculpatory or
mitigating circumstances that may relate to the claims or statements known
by the reviewing official or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
§ 105–70.006 Prerequisites for issuing a
complaint.
(a) The reviewing official may issue a
complaint under § 105–70.007 only if—
(1) The Department of Justice approves the issuance of a complaint in a
written statement described in 31
U.S.C. 3803(b)(1), and
(2) In the case of allegations of liability under § 105–70.003(a) with respect to
a claim, the reviewing official determines that, with respect to such claim
or a group of related claims submitted
at the same time such claim is submitted (as defined in paragraph (b) of
this section), the amount of money or
the value of property or services demanded or requested in violation of
§ 105–70.003(a) does not exceed $150,000.
(b) For the purposes of this section, a
related group of claims submitted at
the same time shall include only those
claims arising from the same transaction (e.g., grant, loan, application, or
contract) that are submitted simultaneously as part of a single request, demand, or submission.
(c) Nothing in this section shall be
construed to limit the reviewing official’s authority to join in a single complaint against a person claims that are
unrelated or were not submitted simultaneously, regardless of the amount of
money or the value of property or services demanded or requested.
§ 105–70.007
Complaint.
(a) On or after the date the Department of Justice approves the issuance
of a complaint in accordance with 31
U.S.C. 3803(b)(1), the reviewing official
may serve a complaint on the defendant, as provided in § 105–70.008.
(b) The complaint shall state—
(1) The allegations of liability
against the defendant, including the
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General Services Administration
§ 105–70.010
statutory basis for liability, an identification of the claims or statements
that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer
including a specific statement of the
defendant’s right to request a hearing
by filing an answer and to be represented by a representative; and
(4) That failure to file an answer
within 30 days of service of the complaint will result in the imposition of
the maximum amount of penalties and
assessments without right to appeal, as
provided in § 105–70.010.
(c) At the same time the reviewing
official serves the complaint, he or she
shall serve the defendant with a copy
of these regulations.
§ 105–70.008
Service of complaint.
(a) Service of a complaint must be
made by certified or registered mail or
by delivery in any manner authorized
by Rule 4(d) of the Federal Rules of
Civil Procedure. Service is complete
upon receipt.
(b) Proof of service, stating the name
and address of the person on whom the
complaint was served, and the manner
and date of service, may be made by—
(1) Affidavit of the individual serving
the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging receipt; or
(3) Written acknowledgment of receipt by the defendant or his representative.
§ 105–70.009
Answer.
(a) The defendant may request a
hearing by filing an answer with the
reviewing official within 30 days of
service of the complaint. An answer
shall be deemed to be a request for
hearing.
(b) In the answer, the defendant—
(1) Shall admit or deny each of the
allegations of liability made in the
complaint;
(2) Shall state any defense on which
the defendant intends to rely;
(3) May state any reasons why the defendant contends that the penalties
and assessments should be less than
the statutory maximum; and
(4) Shall state the name, address, and
telephone number of the person authorized by the defendant to act as defendant’s representative, if any.
(c) If the defendant is unable to file
an answer meeting the requirements of
paragraph (b) of this section within the
time provided, the defendant may, before the expiration of 30 days from
service of the complaint, file with the
reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of
time within which to file an answer
meeting the requirements of paragraph
(b) of this section. The reviewing official shall file promptly with the ALJ
the complaint, the general answer denying liability, and the request for an
extension of time as provided in § 105–
70.011. For good cause shown, the ALJ
may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.
§ 105–70.010 Default upon failure to
file an answer.
(a) If the defendant does not file an
answer within the time prescribed in
§ 105–70.009(a), the reviewing official
may refer the complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on the defendant in the manner prescribed in § 105–70.008, a notice that an
initial decision will be issued under
this section.
(c) The ALJ shall assume the facts
alleged in the complaint to be true,
and, if such facts establish liability
under § 105–70.003, the ALJ shall issue
an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in
this section, by failing to file a timely
answer, the defendant waives any right
to further review of the penalties and
assessments imposed under paragraph
(c) of this section, and the initial decision shall become final and binding
upon the parties 30 days after it is
issued.
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§ 105–70.011
41 CFR Ch. 105 (7–1–16 Edition)
(e) If, before such an initial decision
becomes final, the defendant files a
motion with the ALJ seeking to reopen
on the grounds that extraordinary circumstances prevented the defendant
from filing an answer, the initial decision shall be stayed pending the ALJ’s
decision on the motion.
(f) If, on such motion, the defendant
can demonstrate extraordinary circumstances excusing the failure to file
a timely answer, the ALJ shall withdraw the initial decision in paragraph
(c) of this section, if such a decision
has been issued, and shall grant the defendant an opportunity to answer the
complaint.
(g) A decision of the ALJ denying a
defendant’s motion under paragraph (e)
of this section is not subject to reconsideration under § 105–70.038.
(h) The defendant may appeal to the
Authority Head the decision denying a
motion to reopen by filing a notice of
appeal with the Authority Head within
15 days after the ALJ denies the motion. The timely filing of a notice of
appeal shall stay the initial decision
until the Authority Head decides the
issue.
(i) If the defendant files a timely notice of appeal with the Authority Head,
the ALJ shall forward the record of the
proceeding to the Authority Head.
(j) The Authority Head shall decide
expeditiously whether extraordinary
circumstances excuse the defendant’s
failure to file a timely answer based
solely on the record before the ALJ.
(k) If the Authority Head decides
that extraordinary circumstances excused the defendant’s failure to file a
timely answer, the Authority Head
shall remand the case to the ALJ with
instructions to grant the defendant an
opportunity to answer.
(l) If the Authority Head decides that
the defendant’s failure to file a timely
answer is not excused, the Authority
Head shall reinstate the initial decision of the ALJ, which shall become
final and binding upon the parties 30
days after the Authority Head issues
such decision.
§ 105–70.011 Referral of complaint and
answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the complaint
and answer with the ALJ.
§ 105–70.012
Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing
upon the defendant in the manner prescribed by § 105–70.008. At the same
time, the ALJ shall send a copy of such
notice to the representative for the
Government.
(b) Such notice shall include—
(1) The tentative time and place, and
the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is to be
held;
(3) The matters of fact and law to be
asserted;
(4) A description of the procedures for
the conduct of the hearing;
(5) The name, address, and telephone
number of the representative of the
Government and of the defendant, if
any; and
(6) Such other matters as the ALJ
deems appropriate.
§ 105–70.013
Parties to the hearing.
(a) The parties to the hearing shall
be the defendant and the Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a
private plaintiff under the False
Claims Act may participate in these
proceedings to the extent authorized
by the provisions of that Act.
§ 105–70.014
Separation of functions.
(a) The investigating official, the reviewing official, and any employee or
agent of the Authority who takes part
in investigating, preparing, or presenting a particular case may not, in
such case or a factually related case—
(1) Participate in the hearing as the
ALJ;
(2) Participate or advise in the initial
decision or the review of the initial decision by the Authority Head, except as
a witness or a representative in public
proceedings; or
(3) Make the collection of penalties
and assessments under 31 U.S.C. 3806.
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General Services Administration
§ 105–70.018
(b) The ALJ shall not be responsible
to, or subject to the supervision or direction of the investigating official or
the reviewing official.
(c) Except as provided in paragraph
(a) of this section, the representative
for the Government may be employed
anywhere in the Authority, including
in the offices of either the investigating official or the reviewing official.
§ 105–70.015 Ex parte contacts.
No party or person (except employees
of the ALJ’s office) shall communicate
in any way with the ALJ on any matter at issue in a case, unless on notice
and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring
about the status of a case or asking
routine questions concerning administrative functions or procedures.
§ 105–70.016 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a
particular case may disqualify himself
or herself at any time.
(b) A party may file with the ALJ a
motion for disqualification of a reviewing official or an ALJ. Such motion
shall be accompanied by an affidavit
alleging personal bias or other reason
for disqualification.
(c) Such motion and affidavit shall be
filed promptly upon the party’s discovery of reasons requiring disqualification, or such objections shall be
deemed waived.
(d) Such affidavit shall state specific
facts that support the party’s belief
that personal bias or other reason for
disqualification exists and the time
and circumstances of the party’s discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in
good faith.
(e) Upon the filing of such a motion
and affidavit, the ALJ shall proceed
not further in the case until he or she
resolves the matter of disqualification
in accordance with paragraph (f) of this
section.
(f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ
shall dismiss the complaint without
prejudice.
(2) If the ALJ disqualifies himself or
herself, the case shall be reassigned
promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may determine the matter only as part of his or
her review of the initial decision upon
appeal, if any.
§ 105–70.017 Rights of parties.
Except as otherwise limited by this
part, all parties may—
(a) Be accompanied, represented, and
advised by a representative;
(b) Participate in any conference
held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or
law, which shall be made part of the
record;
(e) Present evidence relevant to the
issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral argument at the
hearing as permitted by the ALJ; and
(h) Submit written briefs and proposed findings of fact and conclusions
of law after the hearing.
§ 105–70.018 Authority of the ALJ.
(a) The ALJ shall conduct a fair and
impartial hearing, avoid delay, maintain order, and assure that a record of
the proceeding is made.
(b) The ALJ has the authority to—
(1) Set and change the date, time,
and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in
whole or in part for a reasonable period
of time;
(3) Hold conferences to identify or
simplify the issues, or to consider
other matters that may aid in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at
hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of
discovery;
(8) Regulate the course of the hearing
and the conduct of representatives and
parties;
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§ 105–70.019
41 CFR Ch. 105 (7–1–16 Edition)
(9) Examine witnesses;
(10) Receive, rule on, exclude, or
limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide
cases, in whole or in part, by summary
judgment where there is no disputed
issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in person
or by telephone; and
(14) Exercise such other authority as
is necessary to carry out the responsibility of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or regulations invalid.
§ 105–70.019 Prehearing conferences.
(a) The ALJ may schedule prehearing
conferences as appropriate.
(b) Upon the motion of any party, the
ALJ shall schedule at least one prehearing conference at a reasonable
time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of
amendments to the pleadings, including the need for a more definite statement;
(3) Stipulations and admissions of
fact or as to the contents and authenticity of documents;
(4) Whether the parties can agree to
submission of the case on a stipulated
record;
(5) Whether a party chooses to waive
appearance at an oral hearing and to
submit only documentary evidence
(subject to the objection of other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange
of witness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend
to expedite the fair and just disposition
of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by the
parties or ordered by the ALJ at a prehearing conference.
§ 105–70.020 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other
materials that relate to the allegations
set out in the complaint and upon
which the findings and conclusions of
the investigating official under § 105–
70.004(b) are based, unless such documents are subject to a privilege under
Federal law. Upon payment of fees for
duplication, the defendant may obtain
copies of such documents.
(b) Upon written request to the reviewing official, the defendant also
may obtain a copy of all exculpatory
information in the possession of the reviewing official or investigating official relating to the allegations in the
complaint, even if it is contained in a
document that would otherwise be
privileged. If the document would otherwise be privileged, only that portion
containing exculpatory information
must be disclosed.
(c) The notice sent to the Attorney
General from the reviewing official as
described in § 105–70.005 is not discoverable under any circumstances.
(d) The defendant may file a motion
to compel disclosure of the documents
subject to the provisions of this section. Such a motion may only be filed
with the ALJ following the filing of an
answer pursuant to § 105–70.009.
§ 105–70.021 Discovery.
(a) The following types of discovery
are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant document or
of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section
and §§ 105–70.022 and 105–70.023, the term
‘‘documents’’ includes information,
documents, reports, answers, records,
accounts, papers, and other data and
documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c) Unless mutually agreed to by the
parties, discovery is available only as
ordered by the ALJ. The ALJ shall regulate the timing of discovery.
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§ 105–70.023
(d) Motions for discovery. (1) A party
seeking discovery may file a motion
with the ALJ. Such a motion shall be
accompanied by a copy of the requested
discovery, or in the case of depositions,
a summary of the scope of the proposed
deposition.
(2) Within ten days of service, a party
may file an opposition to the motion
and/or a motion for protective order as
provided in § 105–70.024.
(3) The ALJ may grant a motion for
discovery only if he finds that the discovery sought—
(i) Is necessary for the expeditious,
fair, and reasonable consideration of
the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery;
(5) The ALJ may grant discovery subject to a protective order under § 105–
70.024.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue
a subpoena for the deponent, which
may require the deponent to produce
documents. The subpoena shall specify
the time and place at which the deposition will be held.
(2) The party seeking to depose shall
serve the subpoena in the manner prescribed in § 105–70.008.
(3) The deponent may file with the
ALJ a motion to quash the subpoena or
a motion for a protective order within
ten days of service.
(4) The party seeking to depose shall
provide for the taking of a verbatim
transcript of the deposition, which it
shall make available to all other parties for inspection and copying.
(f) Each party shall bear its own
costs of discovery.
§ 105–70.022 Exchange of witness lists,
statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior
statements of proposed witnesses, and
copies of proposed hearing exhibits, in-
cluding copies of any written statements that the party intends to offer
in lieu of live testimony in accordance
with § 105–70.033(b). At the time the
above documents are exchanged, any
party that intends to rely on the transcript of deposition testimony in lieu
of live testimony at the hearing, if permitted by the ALJ, shall provide each
party with a copy of the specific pages
of the transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ shall
not admit into evidence the testimony
of any witness whose name does not appear on the witness list or any exhibit
not provided to the opposing party as
provided above unless the ALJ finds
good cause for the failure or that there
is no prejudice to the objecting party.
(c) Unless another party objects
within the time set by the ALJ, documents exchanged in accordance with
paragraph (a) of this section shall be
deemed to be authentic for the purpose
of admissibility at the hearing.
§ 105–70.023 Subpoena for attendance
at hearing.
(a) A party wishing to procure the
appearance and testimony of any individual at the hearing may request that
the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an individual
may also require the individual to
produce documents at the hearing.
(c) A party seeking a subpoena shall
file a written request therefor not less
than 15 days before the date fixed for
the hearing unless otherwise allowed
by the ALJ for good cause shown. Such
request shall specify any documents to
be produced and shall designate the
witnesses and describe the address and
location thereof with sufficient particularity to permit such witnesses to
be found.
(d) The subpoena shall specify the
time and place at which the witness is
to appear and any documents the witness is to produce.
(e) The party seeking the subpoena
shall serve it in the manner prescribed
in § 105–70.008. A subpoena on a party or
upon an individual under the control of
a party may be served by first class
mail.
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§ 105–70.024
41 CFR Ch. 105 (7–1–16 Edition)
(f) A party or the individual to whom
the subpoena is directed may file with
the ALJ a motion to quash the subpoena within ten days after service or
on or before the time specified in the
subpoena for compliance if it is less
than ten days after service.
States District Court. A check for witness fees and mileage shall accompany
the subpoena when served, except that
when a subpoena is issued on behalf of
the Authority, a check for witness fees
and mileage need not accompany the
subpoena.
§ 105–70.024 Protective order.
(a) A party or a prospective witness
or deponent may file a motion for a
protective order with respect to discovery sought by an opposing party or
with respect to the hearing, seeking to
limit the availability or disclosure of
evidence.
(b) In issuing a protective order, the
ALJ may make any order which justice
requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had
only on specified terms and conditions,
including a designation of the time or
place;
(3) That the discovery may be had
only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with
no one present except persons designated by the ALJ;
(6) That the contents of discovery or
evidence be sealed;
(7) That a deposition after being
sealed be opened only by order of the
ALJ;
(8) That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation,
proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously
file specified documents or information
enclosed in sealed envelopes to be
opened as directed by the ALJ.
§ 105–70.026 Form, filing and service of
papers.
(a) Form. (1) Documents filed with the
ALJ shall include an original and two
copies.
(2) Every pleading and paper filed in
the proceeding shall contain a caption
setting forth the title of the action, the
case number assigned by the ALJ, and
a designation of the paper (e.g., motion
to quash subpoena).
(3) Every pleading and paper shall be
signed by, and shall contain the address and telephone number of the
party or the person on whose behalf the
paper was filed, or his or her representative.
(4) Papers are considered filed when
they are mailed. Date of mailing may
be established by a certificate from the
party or its representative or by proof
that the document was sent by certified or registered mail.
(b) Service. A party filing a document
with the ALJ shall, at the time of filing, serve a copy of such document on
every other party. Service upon any
party of any document other than
those required to be served as prescribed in § 105–70.008 shall be made by
delivering a copy or by placing a copy
of the document in the United States
mail, postage prepaid and addressed to
the party’s last known address. When a
party is represented by a representative, service shall be made upon such
representative in lieu of the actual
party.
(c) Proof of service. A certificate of
the individual serving the document by
personal delivery or by mail, setting
forth the manner of service, shall be
proof of service.
§ 105–70.025 Fees.
The party requesting a subpoena
shall pay the cost of the fees and mileage of any witness subpoenaed in the
amounts that would be payable to a
witness in a proceeding in United
§ 105–70.027 Computation of time.
(a) In computing any period of time
under this part or in an order issued
thereunder, the time begins with the
day following the act, event, or default,
and includes the last day of the period,
unless it is a Saturday, Sunday, or
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General Services Administration
§ 105–70.031
legal holiday observed by the Federal
government, in which event it includes
the next business day.
(b) When the period of time allowed
is less than seven days, intermediate
Saturdays, Sundays, and legal holidays
observed by the Federal government
shall be excluded from the computation.
(c) Where a document has been served
or issued by placing it in the mail, an
additional five days will be added to
the time permitted for any response.
§ 105–70.028
Motions.
(a) Any application to the ALJ for an
order or ruling shall be by motion. Motions shall state the relief sought, the
authority relied upon, and the facts alleged, and shall be filed with the ALJ
and served on all other parties.
(b) Except for motions made during a
prehearing conference or at the hearing, all motions shall be in writing.
The ALJ may require that oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other time as
may be fixed by the ALJ, any party
may file a response to such motion.
(d) The ALJ may not grant a written
motion before the time for filing responses thereto has expired, except
upon consent of the parties or following a hearing on the motion, but
may overrule or deny such motion
without awaiting a response.
(e) The ALJ shall make a reasonable
effort to dispose of all outstanding motions prior to the beginning of the
hearing.
§ 105–70.029
Sanctions.
(a) The ALJ may sanction a person,
including any party or representative
for—
(1) Failing to comply with an order,
rule, or procedure governing the proceeding;
(2) Failing to prosecute or defend an
action; or
(3) Engaging in other misconduct
that interferes with the speedy, orderly, or fair conduct of the hearing.
(b) Any such sanction, including but
not limited to those listed in paragraphs (c), (d), and (e) of this section,
shall reasonably relate to the severity
and nature of the failure or misconduct.
(c) When a party fails to comply with
an order, including an order for taking
a deposition, the production of evidence within the party’s control, or a
request for admission, the ALJ may—
(1) Draw an inference in favor of the
requesting party with regard to the information sought;
(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from introducing
evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
(4) Strike any part of the pleadings
or other submissions of the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or
may issue an initial decision imposing
penalties and assessments.
(e) The ALJ may refuse to consider
any motion, request, response, brief or
other document which is not filed in a
timely fashion.
§ 105–70.030 The hearing and burden
of proof.
(a) The ALJ shall conduct a hearing
on the record in order to determine
whether the defendant is liable for a
civil penalty or assessment under § 105–
70.003 and, if so, the appropriate
amount of any such civil penalty or assessment considering any aggravating
or mitigating factors.
(b) The authority shall prove defendant’s liability and any aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any mitigating
factors by a preponderance of the evidence.
(d) The hearing shall be open to the
public unless otherwise ordered by the
ALJ for good cause shown.
§ 105–70.031 Determining the amount
of penalties and assessments.
In
determining
an
appropriate
amount of civil penalties and assessments, the ALJ and the Authority
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§ 105–70.032
41 CFR Ch. 105 (7–1–16 Edition)
Head, upon appeal, should evaluate any
circumstances presented that mitigate
or aggravate the violation and should
articulate in their opinions the reasons
that support the penalties and assessments they impose.
§ 105–70.032 Location of hearing.
(a) The hearing may be held—
(1) In any judicial district of the
United States in which the defendant
resides or transacts business;
(2) In any judicial district of the
United States in which the claim or
statement in issue was made; or
(3) In such other place as may be
agreed upon by the defendant and the
ALJ.
(b) Each party shall have the opportunity to present arguments with respect to the location of the hearing.
(c) The hearing shall be held at the
place and at the time ordered by the
ALJ.
§ 105–70.033 Witnesses.
(a) Except as provided in paragraph
(b) of this section, testimony at the
hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the form of
a written statement or deposition. Any
such written statement must be provided to all other parties along with
the last known address of such witness,
in a manner which allows sufficient
time for other parties to subpoena such
witness for cross-examination at the
hearing. Prior written statements of
witnesses proposed to testify at the
hearing and deposition transcripts
shall be exchanged as provided in § 105–
70.022(a).
(c) The ALJ shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting
evidence so as to—
(1) Make the interrogation and presentation effective for the ascertainment of the truth,
(2) Avoid needless consumption of
time, and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties
to conduct such cross-examination as
may be required for a full and true disclosure of the facts.
(e) To the extent permitted by the
ALJ, cross-examination on matters
outside the scope of direct examination
shall be conducted in the manner of direct examination and may proceed by
leading questions only if the witness is
a hostile witness, an adverse party, or
a witness identified with an adverse
party.
(f) Upon motion of any party, the
ALJ shall order witnesses excluded so
that they cannot hear the testimony of
other witnesses. This rule does not authorize exclusion of—
(1) A party who is an individual;
(2) In the case of a party that is not
an individual, an officer or employee of
the party appearing for the entity pro
se or designated by the party’s representative; or
(3) An individual whose presence is
shown by a party to be essential to the
presentation of its case, including an
individual employed by the Government engaged in assisting the representative for the Government.
§ 105–70.034
Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part,
the ALJ shall not be bound by the Federal Rules of Evidence. However, the
ALJ may apply the Federal Rules of
Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant
and immaterial evidence.
(d) Although relevant, evidence may
be excluded if its probative value is
substantially outweighed by the danger
of unfair prejudice, confusion of the
issues, or by considerations of undue
delay or needless presentation of cumulative evidence.
(e) Although relevant, evidence may
be excluded if it is privileged under
Federal law.
(f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule
408 of the Federal Rules of Evidence.
(g) The ALJ shall permit the parties
to introduce rebuttal witnesses and
evidence.
(h) All documents and other evidence
offered or taken for the record shall be
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§ 105–70.038
open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 105–70.024.
§ 105–70.035 The record.
(a) The hearing will be recorded and
transcribed. Transcripts may be obtained following the hearing from the
ALJ at a cost not to exceed the actual
cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted at
the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by
the ALJ and the Authority Head.
(c) The record may be inspected and
copied (upon payment of a reasonable
fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 105–
70.024.
§ 105–70.036 Post-hearing briefs.
The ALJ may require the parties to
file post-hearing briefs. In any event,
any party may file a post-hearing brief.
The ALJ shall fix the time for filing
such briefs, not to exceed 60 days from
the date the parties receive the transcript of the hearing or, if applicable,
the stipulated record. Such briefs may
be accompanied by proposed findings of
fact and conclusions of law. The ALJ
may permit the parties to file reply
briefs.
§ 105–70.037 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record, which
shall contain findings of fact, conclusions of law, and the amount of any
penalties and assessments imposed.
(b) The findings of fact shall include
a finding on each of the following
issues:
(1) Whether the claims or statements
identified in the complaint, or any portions thereof, violate § 105–70.003.
(2) If the person is liable for penalties
or
assessments,
the
appropriate
amount of any such penalties or assessments considering any mitigating or
aggravating factors that he or she finds
in the case.
(c) The ALJ shall promptly serve the
initial decision on all parties within 90
days after the time for submission of
post-hearing briefs and reply briefs (if
permitted) has expired. The ALJ shall
at the same time serve all parties with
a statement describing the right of any
defendant determined to be liable for a
civil penalty or assessment to file a
motion for reconsideration with the
ALJ or a notice of appeal with the Authority Head. If the ALJ fails to meet
the deadline contained in this paragraph, he or she shall notify the parties
of the reason for the delay and shall set
a new deadline.
(d) Unless the initial decision of the
ALJ is timely appealed to the Authority Head, or a motion for reconsideration of the initial decision is timely
filed, the initial decision shall constitute the final decision of the Authority Head and shall be final and
binding on the parties 30 days after it
is issued by the ALJ.
§ 105–70.038 Reconsideration of initial
decision.
(a) Except as provided in paragraph
(d) of this section, any party may file a
motion for reconsideration of the initial decision within 20 days of receipt
of the initial decision. If service was
made by mail, receipt will be presumed
to be five days from the date of mailing
in the absence of contrary proof.
(b) Every such motion must set forth
the matters claimed to have been erroneously decided and the nature of the
alleged errors. Such motion shall be
accompanied by a supporting brief.
(c) Responses to such motions shall
be allowed only upon request of the
ALJ.
(d) No party may file a motion for reconsideration of an initial decision
that has been revised in response to a
previous motion for reconsideration.
(e) The ALJ may dispose of a motion
for reconsideration by denying it or by
issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial decision shall
constitute the final decision of the Authority Head and shall be final and
binding on the parties 30 days after the
ALJ denies the motion, unless the initial decision is timely appealed to the
Authority Head in accordance with
§ 105–70.039.
(g) If the ALJ issues a revised initial
decision, that decision shall constitute
the final decision of the Authority
Head and shall be final and binding on
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§ 105–70.039
41 CFR Ch. 105 (7–1–16 Edition)
the parties 30 days after it is issued,
unless it is timely appealed to the Authority Head in accordance with § 105–
70.039.
§ 105–70.039
Appeal to Authority Head.
(a) Any defendant who has filed a
timely answer and who is determined
in an initial decision to be liable for a
civil penalty or assessment may appeal
such decision to the Authority Head by
filing a notice of appeal with the Authority Head in accordance with this
section.
(b)(1) A notice of appeal may be filed
at any time within 30 days after the
ALJ issues an initial decision. However, if another party files a motion for
reconsideration under § 105–70.038, consideration of the appeal shall be stayed
automatically pending resolution of
the motion for reconsideration.
(2) If a motion for reconsideration is
timely filed, a notice of appeal may be
filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
(3) The Authority Head may extend
the initial 30 day period for an additional 30 days if the defendant files
with the Authority Head a request for
an extension within the initial 30 day
period and shows good cause.
(c) If the defendant files a timely notice of appeal with the Authority Head
and the time for filing motions for reconsideration under § 105–70.038 has expired, the ALJ shall forward the record
of the proceeding to the Authority
Head.
(d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(e) The representative for the Authority may file a brief in opposition to
exceptions within 30 days of receiving
the notice of appeal and accompanying
brief.
(f) There is no right to appear personally before the Authority Head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision,
the Authority Head shall not consider
any objection that was not raised before the ALJ unless a demonstration is
made of extraordinary circumstances
causing the failure to raise the objection.
(i) If any party demonstrates to the
satisfaction of the Authority Head that
additional evidence not presented at
such hearing is material and that there
were reasonable grounds for the failure
to present such evidence at such hearing, the Authority Head shall remand
the matter to the ALJ for consideration of such additional evidence.
(j) The Authority Head may affirm,
reduce, reverse, compromise, remand,
or settle any penalty or assessment,
determined by the ALJ in any initial
decision.
(k) The Authority Head shall promptly serve each party to the appeal with
a copy of the decision of the Authority
Head and a statement describing the
right of any person determined to be
liable for a penalty or assessment to
seek judicial review.
(l) Unless a petition for review is
filed as provided in 31 U.S.C. 3805 after
a defendant has exhausted all administrative remedies under this part and
within 60 days after the date on which
the Authority Head serves the defendant with a copy of the Authority
Head’s decision, a determination that a
defendant is liable under § 105–70.003 is
final and is not subject to judicial review.
§ 105–70.040 Stays ordered by the Department of Justice.
If at any time the Attorney General
or an Assistant Attorney General designated by the Attorney General transmits to the Authority Head a written
finding that continuation of the administrative process described in this part
with respect to a claim or statement
may adversely affect any pending or
potential criminal or civil action related to such claim or statement, the
Authority Head shall stay the process
immediately. The Authority Head may
order the process resumed only upon
receipt of the written authorization of
the Attorney General.
§ 105–70.041
Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal
to the Authority Head.
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31
General Services Administration
Pt. 105–71
(b) No administrative stay is available following a final decision of the
Authority Head.
§ 105–70.042 Judicial review.
Section 3805 of title 31, United States
Code, authorizes judicial review by an
appropriate United States District
Court of a final decision of the Authority Head imposing penalties or assessments under this part and specifies the
procedures for such review.
§ 105–70.043 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31,
United States Code, authorize action
for collection of civil penalties and assessments imposed under this part and
specify the procedures for such actions.
§ 105–70.044 Right to administrative
offset.
The amount of any penalty or assessment which has become final, or for
which a judgment has been entered
under § 105–70.042 or § 105–70.043, or any
amount agreed upon in a compromise
or settlement under § 105–70.046, may be
collected by administrative offset
under 30 U.S.C. 3716, except that an administrative offset may not be made
under this subsection against a refund
of an overpayment of Federal taxes,
then or later owing by the United
States to the defendant.
§ 105–70.045 Deposit in Treasury of
United States.
All amounts collected pursuant to
this part shall be deposited as miscellaneous receipts in the Treasury of the
United States, except as provided in 31
U.S.C. 3806(g).
§ 105–70.046 Compromise
or
settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise or
settle a case under this part at any
time after the date on which the reviewing official is permitted to issue a
complaint and before the date on which
the ALJ issues an initial decision.
(c) The Authority Head has exclusive
authority to compromise or settle a
case under this part at any time after
the date on which the ALJ issues an
initial decision, except during the
pendency of any review under § 105–
70.042 or during the pendency of any action to collect penalties and assessments under § 105–70.043.
(d) The Attorney General has exclusive authority to compromise or settle
a case under this part during the pendency of any review under § 105–70.042 or
of any action to recover penalties and
assessments under 31 U.S.C. 3806.
(e) The investigating official may
recommend settlement terms to the reviewing official, the Authority Head, or
the Attorney General, as appropriate.
The reviewing official may recommend
settlement terms to the Authority
Head, or the Attorney General, as appropriate.
(f) Any compromise or settlement
must be in writing.
§ 105–70.047
Limitations.
(a) The Program Fraud Civil Remedies Act of 1986 provides that a hearing shall be commenced within 6 years
after the date on which a claim or
statement is made. 31 U.S.C. 3808(a).
The statute also provides that the
hearing is commenced by the mailing
or delivery of the presiding officer’s
(ALJ’s) notice. 31 U.S.C. 3803(d)(2)(B).
Accordingly, the notice of hearing provided for in § 105–70.012 herein shall be
served within 6 years after the date on
which a claim or statement is made.
(b) If the defendant fails to file a
timely answer, service of a notice
under § 105–70.010(b) shall be deemed a
notice of hearing for purposes of this
section.
PART 105–71—UNIFORM ADMINISTRATIVE
REQUIREMENTS
FOR
GRANTS
AND
COOPERATIVE
AGREEMENTS WITH STATE AND
LOCAL GOVERNMENTS
Subpart 105–71.1—General
Sec.
105–71.100
105–71.101
71.105.
105–71.102
105–71.103
105–71.104
105–71.105
Purpose and scope of this part.
Scope of §§ 105–71.100 through 105–
Definitions.
Applicability.
Effect on other issuances.
Additions and exceptions.
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31
§ 105–71.100
41 CFR Ch. 105 (7–1–16 Edition)
Subpart 105–71.11—Pre-Award
Requirements
Subpart 105–71.1—General
105–71.110 Forms for applying for grants.
105–71.111 State plans.
105–71.112 Special grant or subgrant conditions for ‘‘high-risk’’ grantees.
Subpart 105–71.12—Post-Award
Requirements/Financial Administration
105–71.120 Standards for financial management systems.
105–71.121 Payment.
105–71.122 Allowable costs.
105–71.123 Period of availability of funds.
105–71.124 Matching or cost sharing.
105–71.125 Program income.
105–71.126 Non-Federal audit.
§ 105–71.100
part.
This part establishes uniform administrative rules for Federal grants and
cooperative agreements and subawards
to State, local and Indian tribal governments.
§ 105–71.101 Scope
of
through 105–71.105.
105–71.130 Changes.
105–71.131 Real property.
105–71.132 Equipment.
105–71.133 Supplies.
105–71.134 Copyrights.
105–71.135 Subawards to debarred and suspended parties.
105–71.136 Procurement.
105–71.137 Subgrants.
Subpart 105–71.14—Post-Award Requirements/Reports, Records, Retention,
and Enforcement
105–71.140 Monitoring and reporting program performance.
105–71.141 Financial reporting.
105–71.142 Retention and access requirements for records.
105–71.143 Enforcement.
105–71.144 Termination for convenience.
Subpart 105–71.15—After-the-Grant
Requirements
105–71.150 Closeout.
105–71.151 Later disallowances and adjustments.
105–71.152 Collection of amounts due.
Subpart 105–71.16—Entitlements
[Reserved]
AUTHORITY: Sec. 205(c), 63 Stat. 390, (40
U.S.C. 486(c)).
SOURCE: 58 FR 43270, Aug. 16, 1993, unless
otherwise noted.
Definitions.
As used in this part:
Accrued
expenditures
mean
the
charges incurred by the grantee during
a given period requiring the provision
of funds for: (1) Goods and other tangible property received; (2) services
performed by employees, contractors,
subgrantees, subcontractors, and other
payees; and (3) other amounts becoming owed under programs for which no
current services or performance is required, such as annuities, insurance
claims, and other benefit payments.
Accrued income means the sum of: (1)
Earnings during a given period from
services performed by the grantee and
goods and other tangible property delivered to purchasers, and (2) amounts
becoming owed to the grantee for
which no current services or performance is required by the grantee.
Acquisition cost of an item of purchased equipment means the net invoice unit price of the property including the cost of modifications, attachments, accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was
acquired. Other charges such as the
cost of installation, transportation,
taxes, duty or protective in-transit insurance, shall be included or excluded
from the unit acquisition cost in accordance with the grantee’s regular accounting practices.
Administrative requirements mean
those matters common to grants in
general, such as financial management,
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§§ 105–71.100
This section contains general rules
pertaining to this part and procedures
for control of exceptions from this subpart.
§ 105–71.102
Subpart 105–71.13—Post-Award Requirements/Changes, Property, and Subawards
Purpose and scope of this
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31
General Services Administration
§ 105–71.102
kinds and frequency of reports, and retention of records. These are distinguished from programmatic requirements, which concern matters that can
be treated only on a program-by-program or grant-by-grant basis, such as
kinds of activities that can be supported by grants under a particular
program.
Awarding agency means (1) with respect to a grant, the Federal agency,
and (2) with respect to a subgrant, the
party that awarded the subgrant.
Cash contributions means the grantee’s cash outlay, including the outlay
of money contributed to the grantee or
subgrantee by other public agencies
and institutions, and private organizations and individuals. When authorized
by Federal legislation, Federal funds
received from other assistance agreements may be considered as grantee or
subgrantee cash constributions.
Contract means (except as used in the
definitions for grant and subgrant in
this section and except where qualified
by Federal) a procurement contract
under a grant or subgrant, and means a
procurement subcontract under a contract.
Cost sharing or matching means the
value of the third party in-kind contributions and the portion of the costs
of a federally assisted project or program not borne by the Federal Government.
Cost-type contract means a contract or
subcontract under a grant in which the
contractor or subcontractor is paid on
the basis of the costs it incurs, with or
without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and
an acquisition cost of $5,000 or more
per unit. A grantee may use its own
definition of equipment provided that
such definition would at least include
all equipment defined above.
Expenditure report means: (1) For nonconstruction grants, the SF–269 ‘‘Financial Status Report’’ (or other equivalent report); (2) for construction
grants, the SF–271 ‘‘Outlay Report and
Request for Reimbursement’’ (or other
equivalent report).
Federally recognized Indian tribal government means the governing body or a
governmental agency of any Indian
tribe, band, nation, or other organized
group or community (including any
Native village as defined in section 3 of
the Alaska Native Claims Settlement
Act, 85 Stat. 688) certified by the Secretary of the Interior as eligible for the
special programs and services provided
by him through the Bureau of Indian
Affairs.
Government means a State or local
government or a federally recognized
Indian tribal government.
Grant means an award of financial assistance, including cooperative agreements, in the form of money, or property in lieu of money, by the Federal
Government to an eligible grantee. The
term does not include technical assistance which provides services instead of
money, or other assistance in the form
of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or
direct appropriations. Also, the term
does not include assistance, such as a
fellowship or other lump sum award,
which the grantee is not required to account for.
Grantee means the government to
which a grant is awarded and which is
accountable for the use of the funds
provided. The grantee is the entire
legal entity even if only a particular
component of the entity is designated
in the grant award document.
Local government means a county,
municipality, city, town, township,
local public authority (including any
public and Indian housing agency
under the United States Housing Act of
1937) school district, special district,
intrastate district, council of governments (whether or not incorporated as
a nonprofit corporation under State
law), any other regional or interstate
government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and subgrants
awarded, goods and services received,
and similar transactions during a given
period that will require payment by
the grantee during the same or a future
period.
OMB means the United States Office
of Management and Budget.
Outlays (expenditures) mean charges
made to the project or program. They
may be reported on a cash or accrual
basis. For reports prepared on a cash
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31
§ 105–71.102
41 CFR Ch. 105 (7–1–16 Edition)
basis, outlays are the sum of actual
cash disbursement for direct charges
for goods and services, the amount of
indirect expense incurred, the value of
in-kind contributions applied, and the
amount of cash advances and payments
made to contractors and subgrantees.
For reports prepared on an accrued expenditure basis, outlays are the sum of
actual cash disbursements, the amount
of indirect expense incurred, the value
of in-kind contributions applied, and
the new increase (or decrease) in the
amounts owed by the grantee for goods
and other property received, for services performed by employees, contractors, subgrantees, subcontractors, and
other payees, and other amounts becoming owed under programs for which
no current services or performance are
required, such as annuities, insurance
claims, and other benefit payments.
Percentage of completion method refers
to a system under which payments are
made for construction work according
to the percentage of completion of
work, rather than to the grantee’s cost
incurred.
Prior approval means documentation
evidencing consent prior to incurring
specific cost.
Real property means land, including
land improvements, structures and appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding
agency’s portion of real property,
equipment or supplies, means the same
percentage as the awarding agency’s
portion of the acquiring party’s total
costs under the grant to which the acquisition costs under the grant to
which the acquisition cost of the property was charged. Only costs are to be
counted—not the value of the thirdparty in-kind contributions.
State means any of the several States
of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession of
the United States, or any agency or instrumentality of a State exclusive of
local governments. The term does not
include any public and Indian housing
under United States Housing Act of
1937.
Subgrant means an award of financial
assistance in the form of money, or
property in lieu of money, made under
a grant by a grantee to an eligible subgrantee. The term includes financial
assistance when provided by contractual legal agreement, but does not include procurement purchases, nor does
it include any form of assistance which
is excluded from the definition of grant
in this part.
Subgrantee means the government or
other legal entity to which a subgrant
is awarded and which is accountable to
the grantee for the use of the funds
provided.
Supplies means all tangible personal
property other than equipment as defined in this part.
Suspension means depending on the
context, either (1) temporary withdrawal of the authority to obligate
grant funds pending corrective action
by the grantee or subgrantee or a decision to terminate the grant, or (2) an
action taken by a suspending official in
accordance with agency regulations
implementing E.O. 12549 to immediately exclude a person from participating in grant transactions for a period, pending completion of an investigation and such legal or debarment
proceedings as may ensue.
Termination means permanent withdrawal of the authority to obligate previously-awarded grant funds before
that authority would otherwise expire.
It also means the voluntary relinquishment of that authority by the grantee
or subgrantee.
Termination does not include: (1)
Withdrawal of funds awarded on the
basis of the grantee’s underestimate of
the unobligated balance in a prior period; (2) Withdrawal of the unobligated
balance as of the expiration of a grant;
(3) Refusal to extend a grant or award
additional funds, to make a competing
or noncompeting continuation, renewal, extension, or supplemental
award; or (4) voiding of a grant upon
determination that the award was obtained fraudulently, or was otherwise
illegal or invalid from inception.
Terms of a grant or subgrant mean all
requirements of the grant or subgrant
whether in statute, regulations, or the
award document.
Third party in-kind contributions mean
property or services which benefit a
federally assisted project or program
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General Services Administration
§ 105–71.103
and which are contributed by non-Federal third parties without charge to the
grantee, or a cost-type contractor
under the grant agreement.
Unliquidated obligations for reports
prepared on a cash basis mean the
amount of obligations incurred by the
grantee that has not been paid. For reports prepared on an accrued expenditure basis, they represent the amount
of obligations incurred by the grantee
for which an outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is determined
by deducting the cumulative obligations from the cumulative funds authorized.
§ 105–71.103
Applicability.
(a)
General.
Sections
105–71.100
through 105–71.152 of this subpart apply
to all grants and subgrants to governments, except where inconsistent with
Federal statutes or with regulations
authorized in accordance with the exception provision of § 105–71.105 or:
(1) Grants and subgrants to State and
local institutions of higher education
or State and local hospitals.
(2) The block grants authorized by
the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services; Alcohol, Drug Abuse, and Mental Health
Services; Maternal and Child Health
Services; Social Services; Low-Income
Home Energy Assistance; States’ Program of Community Development
Block Grants for Small Cities; and Elementary and Secondary Education
other than programs administered by
the Secretary of Education under Title
V, subtitle D, chapter 2, section 583—
the Secretary’s discretionary grant
program) and Titles I-III of the Job
Training Partnership Act of 1982 and
under the Public Health Services Act
(section 1921), Alcohol and Drug Abuse
Treatment and Rehabilitation Block
Grant and part C of Title V. Mental
Health Service for the Homeless Block
Grant).
(3) Entitlement grants to carry out
the following programs of the Social
Security Act:
(i) Aid to Needy Families with Dependent Children (Title IV-A of the
Act, not including the Work Incentive
Program (WIN) authorized by section
402(a)19(G); HHS grants for WIN are
subject to this part);
(ii) Child Support Enforcement and
Establishment of Paternity (Title IV-D
of the Act);
(iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
(iv) Aid to the Aged, Blind, Disabled
(Titles I, X, XIV, and XVI-AABD of the
Act); and
(v) Medical Assistance (Medicaid)
(Title XIX of the Act) not including the
State Medical Fraud Control program
authorized by section 1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the
Act);
(ii) Commodity Assistance (section 6
of the Act);
(iii) Special Meal Assistance (section
11 of the Act);
(iv) Summer Food Service for Children (section 13 of the Act); and
(v) Child Care Food Program (section
17 of the Act).
(5) Entitlement grants under the following programs of The Child Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act),
and
(ii) School Breakfast (section 4 of the
Act).
(6) Entitlement grants for State Administrative expenses under The Food
Stamp Act of 1977 (section 16 of the
Act).
(7) A grant for an experimental, pilot,
or demonstration project that is also
supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration and
Nationality Act (8 U.S.C. 1522(e)) and
subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L.
96–422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income benefits to refugees and entrants and the administrative costs of providing the assistance
and benefits;
(9) Grants to local education agencies
under 20 U.S.C. 236 through 241–1(a),
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§ 105–71.104
41 CFR Ch. 105 (7–1–16 Edition)
and 242 through 244 (portions of the Impact Aid program), except for 20 U.S.C.
238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped Children); and
(10) Payments under the Veterans
Administration’s State Home Per Diem
Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement
programs enumerated above in § 105–
71.103(a)(3) through (8) are subject to
Subpart—Entitlement.
§ 105–71.104
Effect on other issuances.
All other grants administration provisions of codified program regulations, program manuals, handbooks
and other nonregulatory materials
which are inconsistent with this part
are superseded, except to the extent
they are required by statute, or authorized in accordance with the exception provision in § 105–71.105.
§ 105–71.105
Additions and exceptions.
(a) For classes of grants and grantees
subject to this part, Federal agencies
may not impose additional administrative requirements except in codified
regulations published in the FEDERAL
REGISTER.
(b) Exceptions for classes of grants or
grantees may be authorized only by
OMB.
(c) Exceptions on a case-by-case basis
and for subgrantees may be authorized
by the affected Federal agencies.
Subpart 105–71.11—Pre-Award
Requirements
§ 105–71.110
grants.
Forms
for
applying
for
(a) Scope. (1) This section prescribes
forms and instructions to be used by
governmental organizations (except
hospitals and institutions of higher
education operated by a government)
in applying for grants. This section is
not applicable, however, to formula
grant programs which do not require
applicants to apply for funds on a
project basis.
(2) This section applies only to applications to Federal agencies for grants,
and is not required to be applied by
grantees in dealing with applicants for
subgrants. However, grantees are encouraged to avoid more detailed or bur-
densome application requirements for
subgrants.
(b) Authorized forms and instructions
for governmental organizations. (1) In applying for grants, applicants shall only
use standard application forms or those
prescribed by the granting agency with
the approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to
submit more than the original and two
copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies
may specify and describe the programs,
functions, or activities that will be
used to plan, budget, and evaluate the
work under a grant. Other supplementary instructions may be issued
only with the approval of OMB to the
extent required under the Paperwork
Reduction Act of 1980. For any standard form, except the SF–424 facesheet,
Federal agencies may shade out or instruct the applicant to disregard any
line item that is not needed.
(4) When a grantee applies for additional funding (such as a continuation
or supplemental award) or amends a
previously submitted application, only
the affected pages need be submitted.
Previously submitted pages with information that is still current need not be
resubmitted.
§ 105–71.111 State plans.
(a) Scope. The statutes for some programs require States to submit plans
before receiving grants. Under regulations implementing Executive Order
12372, ‘‘Intergovernmental Review of
Federal Programs,’’ States are allowed
to simplify, consolidate and substitute
plans. This section contains additional
provisions for plans that are subject to
regulations implementing the Executive order.
(b) Requirements. A State need meet
only Federal administrative or programmatic requirements for a plan
that are in statutes or codified regulations.
(c) Assurances. In each plan the State
will include an assurance that the
State shall comply with all applicable
Federal statutes and regulations in effect with respect to the periods for
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§ 105–71.120
which it receives grant funding. For
this assurance and other assurances required in the plan, the State may:
(1) Cite by number the statutory or
regulatory provisions requiring the assurances and affirm that it gives the
assurances required by those provisions,
(2) Repeat the assurance language in
the statutes or regulations, or
(3) Develop its own language to the
extent permitted by law.
(d) Amendments. A State will amend a
plan whenever necessary to reflect:
(1) New or revised Federal statutes or
regulations or
(2) A material change in any State
law, organization, policy, or State
agency operation.
The State will obtain approval for the
amendment and its effective date but
need submit for approval only the
amended portions of the plan.
§ 105–71.112 Special grant or subgrant
conditions for ‘‘high-risk’’ grantees.
(a) A grantee or subgrantee may be
considered ‘‘high risk’’ if an awarding
agency determines that a grantee or
subgrantee:
(1) Has a history of unsatisfactory
performance, or
(2) Is not financially stable, or
(3) Has a management system which
does not meet the management standards set forth in this part, or
(4) Has not conformed to terms and
conditions of previous awards, or
(5) Is otherwise not responsible, and
if the awarding agency determines that
an award will be made, special conditions and/or restrictions shall correspond to the high risk condition and
shall be included in the award.
(b) Special conditions or restrictions
may include:
(1) Payment on a reimbursement
basis;
(2) Withholding authority to proceed
to the next phase until receipt of evidence of acceptable performance within
a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grantee or subgrantee to obtain technical or management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to
impose such conditions, the awarding
official will notify the grantee or subgrantee as early as possible, in writing,
of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must
be taken before they will be removed
and the time allowed for completing
the corrective actions and
(4) The method of requesting reconsideration of the conditions/restrictions imposed.
Subpart
105–71.12—Post-Award
Requirements/Financial
Administration
§ 105–71.120 Standards for financial
management systems.
(a) A State must expand and account
for grant funds in accordance with
State laws and procedures for expending and accounting for its own funds.
Fiscal control and accounting procedures of the State, as well as its subgrantees and cost-type contractors,
must be sufficient to—
(1) Permit preparation of reports required by this part and the statutes authorizing the grant, and
(2) Permit the tracing of funds to a
level of expenditures adequate to establish that such funds have not been
used in violation of the restrictions
and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and subgrantees
must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure of the financial result of financially assisted
activities must be made in accordance
with the financial reporting requirements of the grant or subgrant.
(2) Accounting records. Grantees and
subgrantees must maintain records
which adequately identify the source
and application of funds provided for financially-assisted activities. These
records must contain information pertaining to grant or subgrant awards
and authorizations, obligations, unobligated balances, assets, liabilities, outlays or expenditures, and income.
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§ 105–71.121
41 CFR Ch. 105 (7–1–16 Edition)
(3) Internal control. Effective control
and accountability must be maintained
for all grant and subgrant cash, real
and personal property, and other assets. Grantees and subgrantees must
adequately safeguard all such property
and must assure that it is used solely
for authorized purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant
or subgrant. Financial information
must be related to performance or productivity data, including the development of unit cost information whenever appropriate or specifically required in the grant or subgrant agreement. If unit cost data are required, estimates based on available documentation will be accepted whenever possible.
(5) Allowable cost. Applicable OMB
cost principles, agency program regulations, and the terms of grant and
subgrant agreements will be followed
in determining the reasonableness, allowability and allocability of costs.
(6) Source documentation. Accounting
records must be supported by such
source documentation as cancelled
checks, paid bills, payrolls, time and
attendance
records,
contract
and
subgrant award documents, etc.
(7) Cash management. Procedures for
minimizing the time elapsing between
the transfer of funds from the U.S.
Treasury and disbursement by grantees
and subgrantees must be followed
whenever advance payment procedures
are used. Grantees must establish reasonable procedures to ensure the receipt of reports on subgrantees’ cash
balances and cash disbursements in
sufficient time to enable them to prepare complete and accurate cash transactions reports to the awarding agency. When advances are made by letterof-credit or electronic transfer of funds
methods, the grantee must make
drawdowns as close as possible to the
time of making disbursements. Grantees must monitor cash drawdowns by
their subgrantees to assure that they
conform substantially to the same
standards of timing and amount as
apply to advances to the grantees.
(c) An awarding agency may review
the adequacy of the financial management system of any applicant for fi-
nancial assistance as part of a
preaward review or at any time subsequent to award.
§ 105–71.121 Payment.
(a) Scope. This section prescribes the
basic standard and the methods under
which a Federal agency will make payments to grantees, and grantees will
make payments to subgrantees and
contractors.
(b) Basic standard. Methods and procedures for payment shall minimize
the time elapsing between the transfer
of funds and disbursement by the
grantee or subgrantee, in accordance
with Treasury regulations at 31 CFR
part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance, provided they maintain or demonstrate
the willingness and ability to maintain
procedures to minimize the time elapsing between the transfer of the funds
and their disbursement by the grantee
or subgrantee.
(d) Reimbursement. Reimbursement
shall be the preferred method when the
requirements in paragraph (c) of this
section are not met. Grantees and subgrantees may also be paid by reimbursement for any construction grant.
Except as otherwise specified in regulation, Federal agencies shall not use the
percentage of completion method to
pay construction grants. The grantee
or subgrantee may use that method to
pay its construction contractor, and if
it does, awarding agency’s payments to
the grantee or subgrantee will be based
on the grantee’s or subgrantee’s actual
rate of disbursement.
(e) Working capital advances. If a
grantee cannot meet the criteria for
advance payments described in paragraph (c) of this section, and the Federal agency has determined that reimbursement is not feasible because the
grantee lacks sufficient working capital the awarding agency may provide
cash or a working capital, advance
basis. Under this procedure the awarding agency shall advance cash to the
grantee to cover its estimated disbursement needs for an initial period
generally geared to the grantee’s disbursing cycle. Thereafter, the awarding
agency shall reimburse the grantee for
its actual cash disbursements. The
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31
General Services Administration
§ 105–71.122
working capital advance method of
payment shall not be used by grantees
or subgrantees if the reason for using
such method is the unwillingness or inability of the grantee to provide timely
advances to the subgrantee to meet the
subgrantee’s actual cash disbursements.
(f) Effect of program income, refunds
and audit recoveries on payment. (1)
Grantees and subgrantees shall disburse repayments to and interest
earned on a revolving fund before requesting additional cash payments for
the same activity.
(2) Except as provided in paragraph
(f)(1) of this section, grantees and subgrantees shall disburse program income, rebates, refunds, contract settlements, audit recoveries and interest
earned on such funds before requesting
additional cash payments.
(g) Withholding payments. (1) Unless
otherwise required by Federal statute,
awarding agencies shall not withhold
payments for proper charges incurred
by grantees or subgrantees unless—
(i) The grantee or subgrantee has
failed to comply with grant award conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award conditions, but
without suspension of the grant, shall
be released to the grantee upon subsequent compliance. When a grant is suspended, payment adjustments will be
made in accordance with § 105–71.143(c).
(3) A Federal agency shall not make
payment to grantees for amounts that
are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of
work. Payments shall be made by the
Federal agency when the grantees or
subgrantees actually disburse the withheld funds to the contractors or to escrow accounts established to assure
satisfactory completion of work.
(h) Cash depositories. (1) Consistent
with the national goal of expanding the
opportunities for minority business enterprises, grantees and subgrantees are
encouraged to use minority banks (a
bank which is owned at least 50 percent
by minority group members). A list of
minority owned banks can be obtained
from the Minority Business Develop-
ment Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall
maintain a separate bank account only
when required by Federal-State agreement.
(i) Interest earned on advances. Except
for interest earned on advances of
funds exempt under the Intergovernmental Cooperation Act (31 U.S.C. 6501
et seq.) and the Indian Self-Determination Act (23 U.S.C. 450), grantees and
subgrantees shall promptly, but at
least quarterly, remit interest earned
on advances to the Federal agency. The
grantee or subgrantee may keep interest amounts up to $100 per year for administrative expenses.
§ 105–71.122
Allowable costs.
(a) Limitation on use of funds. Grant
funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type contractors, including allowable costs in the
form of payments to fixed-price contractors; and
(2) Reasonable fees or profit to costtype contractors but not any fee or
profit (or other increment above allowable costs) to the grantee or subgrantee.
(b) Applicable cost principles. For each
kind of organization, there is a set of
Federal principles for determining allowable costs. Allowable costs will be
determined in accordance with the cost
principles applicable to the organization incurring the costs. The following
chart lists the kinds of organizations
and the applicable cost principles:
For the costs of a—
State, local or Indian tribal
government..
Private nonprofit organization
other than an (1) institution
of higher education, (2)
hospital, or (3) organization
named in OMB Circular A–
122 as not subject to that
circular.
Educational institutions ..........
For-profit organization other
than a hospital and an organization named in OMB
Circular A–122 as not subject to that circular.
Use the principles in—
OMB Circular A–87.
OMB Circular A–122.
OMB Circular A–21
48 CFR part 31, Contract
Cost Principles and Procedures, or uniform cost accounting standards that
comply with cost principles
acceptable to the Federal
agency.
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31
§ 105–71.123
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–71.123 Period of availability of
funds.
(a) General. Where a funding period is
specified, a grantee may charge to the
award only costs resulting from obligations of the funding period unless carryover or unobligated balances are permitted, in which case the carryover
balances may be charged for costs resulting from obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all obligations incurred under the award not later than
90 days after the end of the funding period (or as specified in a program regulation) to coincide with the submission
of the annual Financial Status Report
(SF–269). The Federal agency may extend this deadline at the request of the
grantee.
§ 105–71.124 Matching or cost sharing.
(a) Basic rule: Costs and contributions
acceptable. With the qualifications and
exceptions listed in paragraph (b) of
this section, a matching or cost sharing requirement may be satisfied by either or both of the following:
(1) Allowable costs incurred by the
grantee, subgrantee or cost-type contractor under the assistance agreement. This includes allowable costs
borne by non-Federal grants or by
other cash donations from non-Federal
third parties.
(2) The value of third party in-kind
contributions applicable to the period
to which the cost sharing or matching
requirements apply.
(b) Qualifications and exceptions—(1)
Costs borne by other Federal grant agreements. Except as provided by Federal
statute, a cost sharing or matching requirement may not be met by costs
borne by another Federal grant. This
prohibition does not apply to income
earned by a grantee or subgrantee from
a contract awarded under another Federal grant.
(2) General revenue sharing. For the
purpose of this section, general revenue
sharing funds distributed under 31
U.S.C. 6702 are not considered Federal
grant funds.
(3) Cost or contributions counted towards other Federal costs-sharing requirements. Neither costs nor the values of
third party in-kind contributions may
count towards satisfying a cost sharing
or matching requirement of a grant
agreement if they have been or will be
counted towards satisfying a cost sharing or matching requirement of another Federal grant agreement, a Federal procurement contract or any other
award of Federal funds.
(4) Costs financed by program income.
Costs financed by program income, as
defined in § 105–71.125, shall not count
towards satisfying a cost sharing or
matching requirement unless they are
expressly permitted in the terms of the
assistance agreement. (This use of general program income is described in
§ 105–71.125(g).)
(5) Services or property financed by income earned by contractors. Contractors
under a grant may earn income from
the activities carried out under the
contract in addition to the amounts
earned from the party awarding the
contract. No costs of services or property supported by this income may
count toward satisfying a cost sharing
or matching requirement unless other
provisions of the grant agreement expressly permit this kind of income to
be used to meet the requirement.
(6) Records. Costs and third party inkind contributions counting towards
satisfying a cost sharing or matching
requirement must be verifiable from
the records of grantees and subgrantee
or cost-type contractors. These records
must show how the value placed on
third party in-kind contributions was
derived. To the extent feasible, volunteer services will be supported by the
same methods that the organization
uses to support the allocability of regular personnel costs.
(7) Special standards for third party inkind contributions. (i) Third party inkind contributions count towards satisfying a cost sharing or matching requirement only where, if the party receiving the contributions were to pay
for them, the payments would be allowable costs.
(ii) Some third party in-kind contributions are goods and services that,
if the grantee, subgrantee, or contractor receiving the contribution had
to pay for them, the payments would
have been an indirect cost. Costs sharing or matching credit for such contributions shall be given only if the
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31
General Services Administration
§ 105–71.124
grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of contributions.
(iii) A third party in-kind contribution to a fixed price contract may
count towards satisfying a cost sharing
or matching requirement only if it results in:
(A) An increase in the services or
property provided under the contract
(without additional cost to the grantee
or subgrantee) or
(B) A cost savings to the grantee or
subgrantee.
(iv) The values placed on third party
in-kind contributions for cost sharing
or matching purposes will conform to
the rules in the succeeding sections of
this part. If a third party in-kind contribution is a type not treated in those
sections, the value placed upon it shall
be fair and reasonable.
(c) Valuation of donated services—(1)
Volunteer services. Unpaid services provided to a grantee or subgrantee by individuals will be valued at rates consistent with those ordinarily paid for
similar work in the grantee’s or subgrantee’s organization. If the grantee
or subgrantee does not have employees
performing similar work, the rates will
be consistent with those ordinarily
paid by other employers for similar
work in the same labor market. In either case, a reasonable amount for
fringe benefits may be included in the
valuation.
(2) Employees of other organizations.
When an employer other than a grantee, subgrantee, or cost-type contractor
furnishes free of charge the services of
an employee in the employee’s normal
line of work, the services will be valued
at the employee’s regular rate of pay
exclusive of the employee’s fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section applies.
(d) Valuation of third party donated
supplies and loaned equipment or space.
(1) If a third party donates supplies,
the contribution will be valued at the
market value of the supplies at the
time of donation.
(2) If a third party donates the use of
equipment or space in a building but
retains title, the contribution will be
valued at the fair rental rate of the
equipment or space.
(e) Valuation of third party donated
equipment, buildings, and land. If a third
party donates equipment, buildings, or
land, and the title passes to a grantee
or subgrantee, the treatment of the donated property will depend upon the
purpose of the grant or subgrant as follows:
(1) Awards for capital expenditures. If
the purpose of the grant or subgrant is
to assist the grantee or subgrantee in
the acquisition of property, the market
value of that property at the time of
donation may be counted as cost sharing or matching.
(2) Other awards. If assisting in the
acquisition of property is not the purpose of the grant or subgrant, paragraphs (e)(2)(i) and (ii) of this section
apply.
(i) If approval is obtained from the
awarding agency, the market value at
the time of donation of the donated
equipment or buildings and the fair
rental rate of the donated land may be
counted as cost sharing or matching.
In the case of a subgrant, the terms of
the grant agreement may require that
the approval be obtained from the Federal agency as well as the grantee. In
all cases, the approval may be given
only if a purchase of the equipment or
rental of the land would be approved as
an allowable direct cost. If any part of
the donated property was acquired
with Federal funds, only the non-Federal share of the property may be
counted as cost sharing or matching.
(ii) If approval is not obtained under
paragraph (e)(2)(i) of this section, no
amount may be counted for donated
land, and only depreciation or use allowances may be counted for donated
equipment and buildings. The depreciation or use allowances for this property
are not treated as third party in-kind
contributions. Instead, they are treated as costs incurred by the grantee or
subgrantee. They are computed and allocated (usually as indirect costs) in
accordance with the cost principles
specified in § 105–71.122, in the same
way as depreciation or use allowances
for purchased equipment and buildings.
The amount of depreciation or use allowances for donated equipment and
buildings is based on the property’s
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§ 105–71.125
41 CFR Ch. 105 (7–1–16 Edition)
market value at the time it was donated.
(f) Valuation of grantee or subgrantee
donated real property for construction/acquisition. If a grantee or subgrantee donates real property for a construction
or facilities acquisition project, the
current market value of that property
may be counted as cost sharing or
matching. If any part of the donated
property was acquired with Federal
funds, only the non-Federal share of
the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some
cases under paragraphs (d), (e) and (f)
of this section, it will be necessary to
establish the market value of land or a
building or the fair rental rate of land
or of space in the building. In these
cases, the Federal agency may require
the market value or fair rental value
be set by an independent appraiser, and
that the value or rate be certified by
the grantee. This requirement will also
be imposed by the grantee on subgrantees.
§ 105–71.125 Program income.
(a) General. Grantees are encouraged
to earn income to defray program
costs. Program income includes income
from fees for services performed, from
the use or rental of real or personal
property acquired with grant funds,
from the sale of commodities or items
fabricated under a grant agreement,
and from payments of principal and interest on loans made with grant funds.
Except as otherwise provided in regulations of the Federal agency, program
income does not include interest on
grant funds, rebates, credits, discounts,
refunds, etc. and interest earned on
any of them.
(b) Definition of program income. Program income means gross income received by the grantee or subgrantee directly generated by a grant supported
activity, or earned only as a result of
the grant agreement during the grant
period. ‘‘During the grant period’’ is
the time between the effective date of
the award and the ending date of the
award reflected in the final financial
report.
(c) Cost of generating program income.
If authorized by Federal regulations or
the grant agreement, costs incident to
the generation of program income may
be deducted from gross income to determine program income.
(d) Government revenues. Taxes, special assessments, levies, fines, and
other such revenues raised by a grantee
or subgrantee are not program income
unless the revenues are specifically
identified in the grant agreement or
Federal agency regulations as program
income.
(e) Royalties. Income from royalties
and license fees for copyrighted material, patents, and inventions developed
by a grantee or subgrantee is program
income only if the revenues are specifically identified in the grant agreement
or Federal agency regulations as program income. (See § 105–71.134.)
(f) Property. Proceeds from the sale of
real property or equipment will be handled in accordance with the requirements of §§ 105–71.131 and 105–71.132.
(g) Use of program income. Program
income shall be deducted from outlays
which may be both Federal and nonFederal as described below, unless the
Federal agency regulations or the
grant agreement specify another alternative (or a combination of the alternatives). In specifying alternatives, the
Federal agency may distinguish between income earned by the grantee
and income earned by subgrantees and
between the sources, kinds, or amounts
of income. When Federal agencies authorize the alternatives in paragraphs
(g) (2) and (3) of this section, program
income in excess of any limits stipulated shall also be deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from total allowable costs to determine the net allowable costs. Program income shall be
used for current costs unless the Federal agency authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award
shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be
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General Services Administration
§ 105–71.130
used for the purposes and under the
conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be used
to meet the cost sharing or matching
requirement of the grant agreement.
The amount of the Federal grant award
remains the same.
(h) Income after the award period.
There are no Federal requirements governing the disposition of program income earned after the end of the award
period (i.e., until the ending date of the
final financial report, see paragraph (a)
of this section), unless the terms of the
agreement or the Federal agency regulations provide otherwise.
§ 105–71.126 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for obtaining
audits in accordance with the Single
Audit Act Amendments of 1996 (31
U.S.C. 7501–7507) and revised OMB Circular A–133, ‘‘Audits of States, Local
Governments, and Non-Profit Organizations.’’ The audits shall be made by
an independent auditor in accordance
with generally accepted government
auditing standards covering financial
audits.
(b) Subgrantees. State or local governments, as those terms are defined for
purposes of the Single Audit Act
Amendments of 1996, that provide Federal awards to a subgrantee, which expends $300,000 or more (or other
amount as specified by OMB) in Federal awards in a fiscal year, shall:
(1) Determine whether State or local
subgrantees have met the audit requirements of the Act and whether subgrantees covered by OMB Circular A–
110, ‘‘Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,’’ have met the audit requirements of the Act. Commercial contractors (private for-profit and private and
governmental organizations) providing
goods and services to State and local
governments are not required to have a
single audit performed. State and local
governments should use their own procedures to ensure that the contractor
has complied with laws and regulations
affecting the expenditure of Federal
funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable
laws and regulations. This may be accomplished by reviewing an audit of
the subgrantee made in accordance
with the Act, Circular A–110, or
through other means (e.g., program reviews) if the subgrantee has not had
such an audit;
(3) Ensure the appropriate corrective
action is taken within six months after
receipt of the audit report in instance
of noncompliance with Federal laws
and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee’s own records; and
(5) Require each subgrantee to permit
independent auditors to have access to
the records and financial statements.
(c) Auditor selection. In arranging for
audit services, § 105–71.136 shall be followed.
[58 FR 43270, Aug. 16, 1993, as amended at 62
FR 45939, 45944, Aug. 29, 1997]
Subpart
105–71.13—Post-Award
Requirements/Changes, Property, and Subawards
§ 105–71.130
Changes.
(a) General. Grantees and subgrantees
are permitted to rebudget within the
approved direct cost budget to meet
unanticipated requirements and may
make limited program changes to the
approved project. However, unless
waived by the awarding agency, certain
types of post-award changes in budgets
and projects shall require the prior
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see § 105–71.122)
contain requirements for prior approval of certain types of costs. Except
where waived, those requirements
apply to all grants and subgrants even
if paragraphs (c) through (f) of this section do not.
(c) Budget changes—(1) Non-construction projects. Except as stated in other
regulations or an award document,
grantees or subgrantees shall obtain
the prior approval of the awarding
agency whenever any of the following
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§ 105–71.131
41 CFR Ch. 105 (7–1–16 Edition)
changes is anticipated under a non-construction award:
(i) Any revision which would result
in the need for additional funding.
(ii) Unless waived by the awarding
agency, cumulative transfers among direct cost categories, or, if applicable,
among separately budgeted programs,
projects, functions, or activities which
exceed or are expected to exceed ten
percent of the current total approved
budget, whenever the awarding agency’s share exceeds $100,000.
(iii) Transfer of funds allotted for
training allowances (i.e., from direct
payments to trainees to other expense
categories).
(2) Construction projects. Grantees and
subgrantees shall obtain prior written
approval for any budget revision which
would result in the need for additional
funds.
(3) Combined construction and non-construction projects. When a grant or
subgrant provides funding for both construction and non-construction activities, the grantee or subgrantee must
obtain prior written approval from the
awarding agency before making any
fund or budget transfer from non-construction to construction or vice versa.
(d) Programmatic changes. Grantees or
subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated:
(1) Any revision of the scope or objectives of the project (regardless of
whether there is an associated budget
revision requiring prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases
where specified in an application or a
grant award. In research projects, a
change in the project director or principal investigator shall always require
approval unless waived by the awarding agency.
(4) Under non-construction projects,
contracting out, subgranting (if authorized by law) or otherwise obtaining
the services of a third party to perform
activities which are central to the purposes of the award. This approval requirement is in addition to the approval requirements of § 105–71.136 but
does not apply to the procurement of
equipment, supplies, and general support services.
(e) Additional prior approval requirements. The awarding agency may not
require prior approval for any budget
revision which is not described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of any budget
revision will be in the same budget format the grantee used in its application
and shall be accomplished by a narrative justification for the proposed revision.
(2) A request for a prior approval
under the applicable Federal cost principles (see § 105–71.122) may be made by
letter.
(3) A request by a subgrantee for
prior approval will be addressed in
writing to the grantee. The grantee
will promptly review such request and
shall approve or disapprove the request
in writing. A grantee will not approve
any budget or project revision which is
inconsistent with the purpose or terms
and conditions of the Federal grant to
the grantee. If the revision, requested
by the subgrantee would result in a
change to the grantee’s approved
project which requires Federal prior
approval, the grantee will obtain the
Federal agency’s approval before approving the subgrantee’s request.
§ 105–71.131
Real property.
(a) Title. Subject to the obligations
and conditions set forth in this section,
title to real property acquired under a
grant or subgrant will vest upon acquisition in the grantee or subgrantee respectively.
(b) Use. Except as otherwise provided
by Federal statutes, real property will
be used for the originally authorized
purposes as long as needed for that purpose, and the grantee or subgrantee
shall not dispose of or encumber its
title or other interests.
(c) Disposition. When real property is
no longer needed for the originally authorized purpose, the grantee or subgrantee will request disposition instructions from the awarding agency.
The instructions will provide for one of
the following alternatives.
(1) Retention of title. Retain title after
compensating the awarding agency.
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The amount paid to the awarding agency will be computed by applying the
awarding agency’s percentage of participation in the cost of the original
purchase to the fair market value of
the property. However, in those situations where a grantee or subgrantee is
disposing of real property acquired
with grant funds and acquiring replacement real property under the same program, the net proceeds from the disposition may be used as an offset to the
cost of the replacement property.
(2) Sale of property. Sell the property
and compensate the awarding agency.
The amount due to the awarding agency will be calculated by applying the
awarding agency’s percentage of participation in the cost of the original
purchase to the proceeds of the sale
after deduction of any actual and reasonable selling and fixing-up expenses.
If the grant is still active, the net proceeds from the sale may be offset
against the original cost of the property. When a grantee or subgrantee is
directed to sell property, sales procedures shall be followed that provide for
competition to the extent practicable
and result in the highest possible return.
(3) Transfer of title. Transfer title to
the awarding agency or to a thirdparty designated/approved by the
awarding agency. The grantee or subgrantee shall be paid an amount calculated by applying the grantee or subgrantee’s percentage of participation
in the purchase of the real property to
the current fair market value of the
property.
§ 105–71.132 Equipment.
(a) Title. Subject to the obligations
and conditions set forth in this section,
title to equipment acquired under a
grant or subgrant will vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage,
and dispose of equipment acquired
under a grant by the State in accordance with State laws and procedures.
Other grantees and subgrantees will
follow paragraphs (c) through (e) of
this section.
(c) Use. (1) Equipment shall be used
by the grantee or subgrantee in the
program or project for which it was ac-
quired as long as needed, whether or
not the project or program continues
to be supported by Federal funds. When
no longer needed for the original program or project, the equipment may be
used in other activities currently or
previously supported by a Federal
agency.
(2) The grantee or subgrantee shall
also make equipment available for use
on other projects or programs currently or previously supported by the
Federal Government, providing such
use will not interfere with the work on
the projects or program for which it
was originally acquired. First preference for other use shall be given to
other programs or projects supported
by the awarding agency. User fees
should be considered if appropriate.
(3) Notwithstanding the encouragement in § 105–71.125(a) to earn program
income, the grantee or subgrantee
must not use equipment acquired with
grant funds to provide services for a fee
to compete unfairly with private companies that provide equivalent services,
unless specifically permitted or contemplated by Federal statute.
(4) When acquiring replacement
equipment, the grantee or subgrantee
may use the equipment to be replaced
as a trade-in or sell the property and
use the proceeds to offset the cost of
the replacement property, subject to
the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment (including replacement equipment), whether
acquired in whole or in part with grant
funds, until disposition takes place
will, as a minimum, meet the following
requirements:
(1) Property records must be maintained that include a description of the
property, a serial number or other
identification number, the source of
property, who holds the title, the acquisition date, and cost of the property, percentage of Federal participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data
including the data of disposal and sale
price of the property.
(2) A physical inventory of the property must be taken and the results reconciled with the property records at
least once every two years.
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§ 105–71.133
41 CFR Ch. 105 (7–1–16 Edition)
(3) A control system must be developed to ensure adequate safeguards to
prevent loss, damage or theft of the
property. Any loss, damage or theft
shall be investigated.
(4) Adequate maintenance procedures
must be developed to keep the property
in good condition.
(5) If the grantee or subgrantee is authorized or required to sell the property, proper sales procedures must be
established to ensure the highest possible return.
(e) Disposition. When original or replacement equipment acquired under a
grant or subgrant is no longer needed
for the original project or program or
for other activities currently or previously supported by a Federal agency,
disposition of the equipment will be
made as follows:
(1) Items of equipment with a current
per-unit fair market value of less than
$5,000 may be retained, sold or otherwise disposed of with no further obligation to the awarding agency.
(2) Items of equipment with a current
per unit fair market value in excess of
$5,000 may be retained or sold and the
awarding agency shall have a right to
an amount calculated by multiplying
the current market value or proceeds
from sale by the awarding agency’s
share of the equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate disposition actions, the awarding agency
may direct the grantee or subgrantee
to take excess and disposition actions.
(f) Federal equipment. In the event
grantee or subgrantee is provided federally-owned equipment:
(1) Title will remain vested in the
Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance with
Federal agency rules and procedures,
and submit an annual inventory listing.
(3) When the equipment is no longer
needed, the grantee or subgrantee will
request disposition instructions from
the Federal agency.
(g) Right to transfer title. The Federal
awarding agency may reserve the right
to transfer title to the Federal Government or a third party named by the
awarding agency when such a third
party is otherwise eligible under exist-
ing statutes. Such transfers shall be
subject to the following standards:
(1) The property shall be identified in
the grant or otherwise made known to
the grantee in writing.
(2) The Federal awarding agency
shall issue disposition instruction
within 120 calendar days after the end
of the Federal support of the project
for which it was acquired. If the Federal awarding agency fails to issue disposition instructions within the 120
calendar-day period the grantee shall
follow § 105–71.132(e).
(3) When title to equipment is transferred, the grantee shall be paid an
amount calculated by applying the percentage of participation in the purchase to the current fair market value
of the property.
§ 105–71.133 Supplies.
(a) Title. Title to supplies acquired
under a grant or subgrant will vest,
upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual
inventory of unused supplies exceeding
$5,000 in total aggregate fair market
value upon termination or completion
of the award, and if the supplies are
not needed for any other federally
sponsored programs or projects, the
grantee or subgrantee shall compensate the awarding agency for its
share.
§ 105–71.134 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish or otherwise use, and to authorize
others to use, for Federal Government
purposes:
(a) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and
(b) Any rights of copyright to which
a grantee, subgrantee or a contractor
purchases ownership with grant support.
§ 105–71.135 Subawards to debarred
and suspended parties.
Grantees and subgrantees must not
make any award or permit any award
(subgrant or contract) at any tier to
any party which is debarred or suspended or is otherwise excluded from or
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§ 105–71.136
ineligible for participation in Federal
assistance programs under Executive
Order 12549, ‘‘Debarment and Suspension’’.
§ 105–71.136 Procurement.
(a) States. When procuring property
and services under a grant, a State will
allow the same policies and procedures
it uses for procurements from its nonFederal funds. The State will ensure
that every purchase order or other contract includes any clauses required by
Federal statutes and executive orders
and their implementing regulations.
Other grantees and subgrantees will
follow paragraphs (b) through (i) in
this section.
(b) Procurement standards. (1) Grantees and subgrantees will use their own
procurement procedures which reflect
applicable State and local laws and
regulations, provided that the procurements conform to applicable Federal
law and the standards identified in this
section.
(2) Grantees and subgrantees will
maintain a contract administration
system which ensures that contractors
perform in accordance with the terms,
conditions and specifications of their
contracts or purchase orders.
(3) Grantees and subgrantees will
maintain a written code of standards of
conduct governing the performance of
their employees engaged in the award
and administration of contracts. No
employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the award or administration of a contract supported by Federal
funds if a conflict of interest, real or
apparent, would be involved. Such a
conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate
family,
(iii) His or her partner, or
(iv) An organization which employs,
or is about to employ, any of the
above, has a financial or other interest
in the firm selected for award. The
grantee’s or subgrantee’s officers, employees or agent will neither solicit nor
accept gratuities, favors or anything of
monetary value from contractors, potential contractors, or parties to subagreements. Grantees and subgrantees
may set minimum rules where the fi-
nancial interest is not substantial or
the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards of conduct will
provide for penalties, sanctions, or
other disciplinary actions for violations of such standards by the grantee’s officers, employees, or agents, or
by contractors or their agents. The
awarding agency may in regulation
provide additional prohibitions relative
to real, apparent, or potential conflicts
of interest.
(4) Grantee and subgrantee procedures will provide for a review of proposed procurements to avoid purchase
of unnecessary or duplicative items.
Consideration should be given to consolidating or breaking out procurements to obtain a more economical
purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the
most economical approach.
(5) To foster greater economy and efficiency, grantees and subgrantees are
encouraged to enter into State and
local intergovernmental agreements
for procurement or use of common
goods and services.
(6) Grantees and subgrantees are encouraged to use Federal excess and surplus property in lieu of purchasing new
equipment and property whenever such
use is feasible and reduces project
costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction
projects of sufficient size to offer reasonable opportunities for cost reductions. Value engineering is a systematic and creative analysis of each contract item or task to ensure that its essential function is provided at the
overall lower cost.
(8) Grantees and subgrantees will
make awards only to responsible contractors possessing the ability to perform successfully under the terms and
conditions of a proposed procurement.
Consideration will be given to such
matters as contractor integrity, compliance with public policy, record of
past performance, and financial and
technical resources.
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41 CFR Ch. 105 (7–1–16 Edition)
(9) Grantees and subgrantees will
maintain records sufficient to detail
the significant history of a procurement. These records will include, but
are not necessarily limited to the following: Rationale for the method of
procurement, selection of contract
type, contractor selection or rejection,
and the basis for the contract price.
(10) Grantees and subgrantees will
use time and material type contracts
only—
(i) After a determination that no
other contract is suitable, and
(ii) If the contract includes a ceiling
price that the contractor exceeds at its
own risk.
(11) Grantees and subgrantees alone
will be responsible, in accordance with
good administrative practice and sound
business judgment, for the settlement
of all contractual and administrative
issues arising out of procurements.
These issues include, but are not limited to source evaluation, protests, disputes and claims. These standards do
not relieve the grantee or subgrantee
of any contractual responsibilities
under its contracts. Federal agencies
will not substitute their judgment for
that of the grantee or subgrantee unless the matter is primarily a Federal
concern. Violations of law will be referred to the local, State or Federal authority having proper jurisdiction.
(12) Grantees and subgrantees will
have protest procedures to handle and
resolve disputes relating to their procurements and shall in all instances
disclose information regarding the protests to the awarding agency. A
protestor must exhaust all administrative remedies with the grantee and subgrantee before pursuing a protest with
the Federal agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of this section (violations of State or local law
will be under the jurisdiction of State
or local authorities) and
(ii) Violations of grantee’s or subgrantee’s protest procedures for failure
to review a complaint or protest. Protests received by the Federal agency
other than those specified above will be
referred to the grantee or subgrantee.
(c) Competition. (1) All procurement
transactions will be conducted in a
manner providing full and open competition consistent with the standards
of § 105–71.136. Some of the situations
considered to be restrictive of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience
and excessive bonding,
(iii) Noncompetitive pricing practices
between firms or between affiliated
companies,
(iv) Noncompetitive awards to consultants that are on retainer contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ‘‘brand name’’
product instead of allowing ‘‘an equal’’
product to be offered and describing
the performance of other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will
conduct procurements in a manner
that prohibits the use of statutorily or
administratively imposed in-State or
local geographical preferences in the
evaluation of bids or proposals, except
in those cases where applicable Federal
statutes expressly mandate or encourage geographic preference. Nothing in
this section preempts State licensing
laws. When contracting for architectural and engineering (A/E) services,
geographic location may be a selection
criteria provided its application leaves
an appropriate number of qualified
firms, given the nature and size of the
project, to compete for the contract.
(3) Grantees will have written selection procedures for procurement transactions. These procedures will ensure
that all solicitations:
(i) Incorporate a clear and accurate
description of the technical requirements for the material, product, or
service to be procured. Such description shall not, in competitive procurements, contain features which unduly
restrict competition. The description
may include a statement of the qualitative nature of the material, product
or service to be procured, and when
necessary, shall set forth those minimum essential characteristics and
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standards to which it must conform if
it is to satisfy its intended use. Detailed product specifications should be
avoided if at all possible. When it is
impractical or uneconomical to make a
clear and accurate description of the
technical requirements, a ‘‘brand name
or equal’’ description may be used as a
means to define the performance or
other salient requirements of a procurement. The specific features of the
named brand which must be met by
offerors shall be clearly stated; and
(ii) Identify all requirements which
the offerors must fulfill and all other
factors to be used in evaluating bids or
proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists of persons, firms, or products which are used
in acquiring goods and services are current and include enough qualified
sources to ensure maximum open and
free competition. Also, grantees and
subgrantees will not preclude potential
bidders from qualifying during the solicitation period.
(d) Methods of procurement to be followed—(1) Procurement by small purchase
procedures. Small purchase procedures
are those relatively simple and informal procurement methods for securing
services, supplies, or other property
that do not cost more than the simplified acquisition threshold fixed at 41
U.S.C. 403(11) (currently set at $100,000).
If small purchase procedures are used,
price or rate quotations shall be obtained from an adequate number of
qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm-fixed-price contract
(lump sum or unit price) is awarded to
the responsible bidder whose bid, conforming with all the material terms
and conditions of the invitation for
bids, is the lowest in price. The sealed
bid method is the preferred method for
procuring construction, if the conditions in § 105–71.136(d)(2)(i) apply.
(i) In order for sealed bidding to be
feasible, the following conditions
should be present:
(A) A complete, adequate, and realistic specification or purchase description is available;
(B) Two or more responsible bidders
are willing and able to compete effectively and for the business; and
(C) The procurement lends itself to a
firm fixed price contract and the selection of the successful bidder can be
made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be
publicly advertised and bids shall be
solicited from an adequate number of
known suppliers, providing them sufficient time prior to the date set for
opening the bids;
(B) The invitation for bids, which
will include any specifications and pertinent attachments, shall define the
items or services in order for the bidder
to properly respond;
(C) All bids will be publicly opened at
the time and place prescribed in the invitation for bids;
(D) A firm fixed-price contract award
will be made in writing to the lowest
responsive and responsible bidder.
Where specified in bidding documents,
factors such as discounts, transportation cost, and life cycle costs shall be
considered in determining which bid is
lowest. Payment discounts will only be
used to determine the low bid when
prior experience indicates that such
discounts are usually taken advantage
of; and
(E) Any or all bids may be rejected if
there is a sound documented reason.
(3) Procurement by competitive proposals. The technique of competitive
proposals is normally conducted with
more than one source submitting an
offer, and either a fixed-price or costreimbursement type contract is awarded. It is generally used when conditions
are not appropriate for the use of
sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be publicized and identify all evaluation factors and their relative importance. Any
response to publicized requests for proposals shall be honored to the maximum extent practical;
(ii) Proposals will be solicited from
an adequate number of qualified
sources;
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(iii) Grantees and subgrantees will
have a method for conducting technical evaluations of the proposals received and for selecting awardees;
(iv) Awards will be made to the responsible firm whose proposal is most
advantageous to the program, with
price and other factors considered; and
(v) Grantees and subgrantees may
use competitive proposal procedures
for qualifications-based procurement of
architectural/engineering (A/E) professional services whereby competitors’
qualifications are evaluated and the
most qualified competitor is selected,
subject to negotiation of fair and reasonable compensation. The method,
where price is not used as a selection
factor, can only be used in procurement of A/E professional services. It
cannot be used to purchase other types
of services though A/E firms are a potential source to perform the proposed
effort.
(4) Procurement by noncompetitive
proposals is procurement through solicitation of a proposal from only one
source, or after solicitation of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive
proposals may be used only when the
award of a contract is infeasible under
small purchase procedures, sealed bids
or competitive proposals and one of the
following circumstances applies:
(A) The item is available only from a
single source;
(B) The public exigency or emergency
for the requirement will not permit a
delay resulting from competitive solicitation;
(C) The awarding agency authorizes
noncompetitive proposals; or
(D) After solicitation of a number of
sources, competition is determined inadequate.
(ii) Cost analysis, i.e., verifying the
proposed cost data, the projections of
the data, and the evaluation of the specific elements of costs and profits, is
required.
(iii) Grantees and subgrantees may
be required to submit the proposed procurement to the awarding agency for
pre-award review in accordance with
paragraph (g) of this section.
(e) Contracting with small and minority
firms, women’s business enterprise and
labor surplus area firms. (1) The grantee
and subgrantee will take all necessary
affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are
used when possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women’s business
enterprises on solicitation lists;
(ii) Assuring that small and minority
businesses, and women’s business enterprises are solicited whenever they
are potential sources;
(iii) Dividing total requirements,
when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women’s business
enterprises;
(iv) Establishing delivery schedules,
where the requirement permits, which
encourage participation by small and
minority business, and women’s business enterprises;
(v) Using the services and assistance
of the Small Business Administration,
and the Minority Business Development Agency of the Department of
Commerce; and
(vi) Requiring the prime contractor,
if subcontracts are to be let, to take
the affirmative steps listed in paragraphs (e)(2) (i) through (v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must perform a
cost or price analysis in connection
with every procurement action including contract modifications. The method and degree of analysis is dependent
on the facts surrounding the particular
procurement situation, but as a starting point, grantees must make independent estimates before receiving bids
or proposals. A cost analysis must be
performed when the offeror is required
to submit the elements of his estimated cost, e.g., under professional,
consulting, and architectural engineering services contracts. A cost analysis
will be necessary when adequate price
competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price reasonableness can be established on the basis of a catalog or
market price of a commercial product
sold in substantial quantities to the
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general public or based on prices set by
law or regulation. A price analysis will
be used in all other instances to determine the reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate element of
the price for each contract in which
there is no price competition and in all
cases where cost analysis is performed.
To establish a fair and reasonable profit, consideration will be given to the
complexity of the work to be performed, the risk borne by the contractor, the contractor’s investment,
the amount of subcontracting, the
quality of its record of past performance, and industry profit rates in the
surrounding geographical area for
similar work.
(3) Costs or prices based on estimated
costs for contracts under grants will be
allowable only to the extent that costs
incurred or cost estimates included in
negotiated prices are consistent with
Federal cost principles (see § 105–71.122).
Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost
and percentage of construction cost
methods of contracting shall not be
used.
(g) Awarding agency review. (1) Grantees and subgrantees must make available, upon request of the awarding
agency, technical specifications on proposed procurements where the awarding agency believes such review is
needed to ensure that the item and/or
service specified is the one being proposed for purchase. This review generally will take place prior to the time
the specification is incorporated into a
solicitation document. However, if the
grantee or subgrantee desires to have
the review accomplished after a solicitation has been developed, the awarding agency may still review the specifications, with such review usually limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on
request make available for awarding
agency pre-award review procurement
documents, such as requests for proposals or invitations for bids, independent cost estimates, etc. when:
(i) A grantee’s or subgrantee’s procurement procedures or operation fails
to comply with the procurement standards in this section; or
(ii) The procurement is expected to
exceed
the
simplified
acquisition
threshold and is to be awarded without
competition or only one bid or offer is
received in response to a solicitation;
or
(iii) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a ‘‘brand
name’’ product; or
(iv) The proposed award is more than
the simplified acquisition threshold
and is to be awarded to other than the
apparent low bidder under a sealed bid
procurement; or
(v) A proposed contract modification
changes the scope of a contract or increases the contract amount by more
than the simplified acquisition threshold.
(3) A grantee or subgrantee will be
exempt from the pre-award review in
paragraph (g)(2) of this section if the
awarding agency determines that its
procurement systems comply with the
standards of this section.
(i) A grantee or subgrantee may request that its procurement system be
reviewed by the awarding agency to determine whether its system meets
these standards in order for its system
to be certified. Generally, these reviews shall occur where there is a continuous high-dollar funding, and thirdparty contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may selfcertify its procurement system. Such
self-certification shall not limit the
awarding agency’s right to survey the
system. Under a self-certification procedure, awarding agencies may wish to
rely on written assurances from the
grantee or subgrantee that it is complying with these standards. A grantee
or subgrantee will cite specific procedures, regulations, standards, etc., as
being in compliance with these requirements and have its system available
for review.
(h) Bonding requirements. For construction or facility improvement contracts or subcontracts exceeding the
simplified acquisition threshold, the
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awarding agency may accept the bonding policy and requirements of the
grantee or subgrantee provided the
awarding agency has made a determination that the awarding agency’s
interest is adequately protected. If
such a determination has not been
made, the minimum requirements shall
be as follows:
(1) A bid guarantee from each bidder
equivalent to five percent of the bid price.
The ‘‘bid guarantee’’ shall consist of a
firm commitment such as a bid bond,
certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required
within the time specified.
(2) A performance bond on the part of
the contractor for 100 percent of the contract price. A ‘‘performance bond’’ is
one executed in connection with a contract to secure fulfillment of all the
contractor’s obligations under such
contract.
(3) A payment bond on the part of the
contractor for 100 percent of the contract
price. A ‘‘payment bond’’ is one executed in connection with a contract to
assure payment as required by law of
all persons supplying labor and material in the execution of the work provided for in the contract.
(i) Contract provisions. A grantee’s
and subgrantee’s contracts must contain provisions in paragraph (i) of this
section. Federal agencies are permitted
to require changes, remedies, changed
conditions, access and records retention, suspension of work, and other
clauses approved by the Office of Federal Procurement Policy.
(1) Administrative, contractual, or
legal remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions
and penalties as may be appropriate.
(Contracts more than the simplified acquisition threshold)
(2) Termination for cause and for
convenience by the grantee or subgrantee including the manner by which
it will be effected and the basis for settlement. (All contracts in excess of
$10,000)
(3) Compliance with Executive Order
11246 of September 24, 1965, entitled
‘‘Equal Employment Opportunity,’’ as
amended by Executive Order 11375 of
October 13, 1967, and as supplemented
in Department of Labor regulations (41
CFR chapter 60). (All construction contracts awarded in excess of $10,000 by
grantees and their contractors or subgrantees)
(4) Compliance with the Copeland
‘‘Anti-Kickback’’ Act (18 U.S.C. 874) as
supplemented in Department of Labor
regulations (29 CFR part 3). (All contracts and subgrants for construction
or repair)
(5) Compliance with the Davis-Bacon
Act (40 U.S.C. 276a to 276a–7) as supplemented by Department of Labor regulations (29 CFR part 5). (Construction
contracts in excess of $2000 awarded by
grantees and subgrantees when required by Federal grant program legislation)
(6) Compliance with sections 103 and
107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327–330)
as supplemented by Department of
Labor regulations (29 CFR part 5).
(Construction contracts awarded by
grantees and subgrantees in excess of
$2000, and in excess of $2500 for other
contracts which involve the employment of mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining
to reporting.
(8) Notice of awarding agency requirements and regulations pertaining
to patent rights with respect to any
discovery or invention which arises or
is developed in the course of or under
such contract.
(9) Awarding agency requirements
and regulations pertaining to copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor agency,
the Comptroller General of the United
States, or any of their duly authorized
representatives to any books, documents, papers, and records of the contractor which are directly pertinent to
that specific contract for the purpose
of making audit, examination, excerpts, and transcriptions.
(11) Retention of all required records
for three years after grantees or subgrantees make final payments and all
other pending matters are closed.
(12) Compliance with all applicable
standards, orders, or requirements
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31
General Services Administration
§ 105–71.140
issued under section 306 of the Clean
Air Act (42 U.S.C. 1857(h)), section 508
of the Clean Water Act (33 U.S.C. 1368),
Executive Order 11738, and Environmental Protection Agency regulations
(40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000)
(13) Mandatory standards and policies
relating to energy efficiency which are
contained in the state energy conservation plan issued in compliance with the
Energy Policy and Conservation Act
(Pub. L. 94–163, 89 Stat. 871).
[58 FR 43270, Aug. 16, 1993, as amended at 60
FR 19639, 19644, Apr. 19, 1995]
§ 105–71.137
Subgrants.
(a) States. States shall follow State
law and procedures when awarding and
administering subgrants (whether on a
cost reimbursement or fixed amount
basis) of financial assistance to local
and Indian tribal governments. States
shall:
(1) Ensure that every subgrant includes any clauses required by Federal
statute and executive orders and their
implementing regulations;
(2) Ensure that subgrantees are
aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with § 105–71.142 is placed in
every cost reimbursement subgrant;
and
(4) Conform any advances of grant
funds to subgrantees substantially to
the same standards of timing and
amount that apply to cash advances by
Federal agencies.
(b) All other grantees. All other grantees shall follow the provisions of this
part which are applicable to awarding
agencies when awarding and administering subgrants (whether on a cost
reimbursement or fixed amount basis)
of financial assistance to local and Indian tribal governments. Grantees
shall:
(1) Ensure that every subgrant includes a provision for compliance with
this part;
(2) Ensure that every subgrant includes any clauses required by Federal
statute and executive orders and their
implementing regulations; and
(3) Ensure that subgrantees are
aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms,
certain provisions of this part do not
apply to the award and administration
of subgrants:
(1) Section 105–71.110;
(2) Section 105–71.111;
(3) The letter-of-credit procedures
specified in Treasury Regulations at 31
CFR part 205, cited in § 105–71.121; and
(4) Section 105–71.150.
Subpart
105–71.14—Post-Award
Requirements/Reports,
Records, Retention, and Enforcement
§ 105–71.140 Monitoring and reporting
program performance.
(a) Monitoring by grantees. Grantees
are responsible for managing the dayto-day
operations
of
grant
and
subgrant supported activities. Grantees
must monitor grant and subgrant supported activities to assure compliance
with applicable Federal requirements
and that performance goals are being
achieved. Grantee monitoring must
cover each program, function or activity.
(b) Non-construction performance reports. The Federal agency may, if it decides that performance information
available from subsequent applications
contains sufficient information to
meet its programmatic needs, require
the grantee to submit a performance
report only upon expiration or termination of grant support. Unless waived
by the Federal agency this report will
be due on the same date as the final Financial Status Report.
(1) Grantees shall submit annual performance reports unless the awarding
agency requires quarterly or semiannual reports. However, performance
reports will not be required more frequently than quarterly. Annual reports
shall be due 90 days after the grant
year, quarterly or semiannual reports
shall be due 30 days after the reporting
period. The final performance report
will be due 90 days after the expiration
or termination of grant support. If a
justified request is submitted by a
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31
§ 105–71.141
41 CFR Ch. 105 (7–1–16 Edition)
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for
unnecessary performance reports may
be waived by the Federal agency.
(2) Performance reports will contain,
for each grant, brief information on the
following:
(i) A comparison of actual accomplishments to the objectives established for the period. Where the output
of the project can be quantified, a computation of the cost per unit of output
may be required if that information
will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information
including, when appropriate, analysis
and explanation of cost overruns or
high unit costs.
(3) Grantees will not be required to
submit more than the original and two
copies of performance reports.
(4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for
subgrantees.
(c) Construction performance reports.
For the most part, on-site technical inspections and certified percentage-ofcompletion data are relied on heavily
by Federal agencies to monitor
progress under construction grants and
subgrants. The Federal agency will require additional formal performance
reports only when considered necessary, and never more frequently than
quarterly.
(d) Significant developments. Events
may occur between the scheduled performance reporting dates which have
significant impact upon the grant or
subgrant supported activity. In such
cases, the grantee must inform the
Federal agency as soon as the following
types of conditions become known:
(1) Problems, delays, or adverse conditions which will materially impair
the ability to meet the objective of the
award. This disclosure must include a
statement of the action taken, or contemplated, and any assistance needed
to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
(e) Federal agencies may make site
visits as warranted by program needs.
(f) Waivers, extensions. (1) Federal
agencies may waive any performance
report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may
exend the due date for any performance
report from a subgrantee if the grantee
will still be able to meet its performance reporting obligations to the Federal agency.
§ 105–71.141 Financial reporting.
(a) General. (1) Except as provided in
paragraphs (a) (2) and (5) of this section, grantees will use only the forms
specified in paragraphs (a) through (e)
of this section, and such supplementary or other forms as may from
time to time be authorized by OMB,
for:
(i) Submitting financial reports to
Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are
not used.
(2) Grantees need not apply the forms
prescribed in this section in dealing
with their subgrantees. However,
grantees shall not impose more burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental Federal
agency instructions approved by OMB
to the extent required under the Paperwork Reduction Act of 1980 for use in
connection with forms specified in
paragraphs (b) through (e) of this section. Federal agencies may issue substantive supplementary instructions
only with the approval of OMB. Federal
agencies may shade out or instruct the
grantee to disregard any line item that
the Federal agency finds unnecessary
for its decision making purposes.
(4) Grantees will not be required to
submit more than the original and two
copies of forms required under this
part.
(5) Federal agencies may provide
computer outputs to grantees to expedite or contribute to the accuracy of
reporting. Federal agencies may accept
the required information from grantees
in machine usable format or computer
printouts instead of prescribed forms.
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31
General Services Administration
§ 105–71.141
(6) Federal agencies may waive any
report required by this section if not
needed.
(7) Federal agencies may extend the
due date on any financial report upon
receiving a justified request from a
grantee.
(b) Financial Status Report—(1) Form.
Grantees will use Standard Form 269 or
269A, Financial Status Report, to report the status of funds for all non-construction grants and for construction
grants when required in accordance
with paragraph (e)(2)(iii) of this section.
(2) Accounting basis. Each grantee will
report program outlays and program
income on a cash or accrual basis as
prescribed by the awarding agency. If
the Federal agency requires accrual information and the grantee’s accounting
records are not normally kept on the
accrual basis, the grantee shall not be
required to convert its accounting system but shall develop such accrual information through an analysis of the
documentation on hand.
(3) Frequency. The Federal agency
may prescribe the frequency of the report for each project or program. However, the report will not be required
more frequently than quarterly. If the
Federal agency does not specify the
frequency of the report, it will be submitted annually. A final report will be
required upon expiration or termination of grant support.
(4) Due date. When reports are required on a quarterly or semiannual
basis, they will be due 30 days after the
reporting period. When required on an
annual basis, they will be due 90 days
after the grant year. Final reports will
be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report—
(1) Form. (i) For grants paid by letter of
credit, Treasury check advances or
electronic transfer of funds, the grantee will submit the Standard Form 272,
Federal Cash Transactions Report, and
when necessary, its continuation sheet,
Standard Form 272A, unless the terms
of the award exempt the grantee from
this requirement.
(ii) These reports will be used by the
Federal agency to monitor cash advanced to grantees and to obtain disbursement or outlay information for
each grant from grantees. The format
of the report may be adapted as appropriated when reporting is to be accomplished with the assistance of automatic data processing equipment provided that the information to be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal cash requirements may be required in the
‘‘Remarks’’ section of the report.
(3) Cash in hands of subgrantees. When
considered necessary and feasible by
the Federal agency, grantees may be
required to report the amount of cash
advances in excess of three days’ needs
in the hands of their subgrantees or
contractors and to provide short narrative explanations of actions taken by
the grantee to reduce the excess balances.
(4) Frequency and due date. Grantees
must submit the report no later than 15
working days following the end of each
quarter. However, where an advance either by letter of credit or electronic
transfer of funds is authorized at an
annualized rate of one million dollars
or more, the Federal agency may require the report to be submitted within
15 working days following the end of
each month.
(d) Request for advance or reimbursement—(1) Advance payments. Requests
for Treasury check advance payments
will be submitted on Standard Form
270, Request for Advance or Reimbursement. (This form will not be used for
drawdowns under a letter of credit,
electronic funds transfer or when
Treasury check advance payments are
made to the grantee automatically on
a predetermined basis.)
(2) Reimbursements. Requests for reimbursement
under
non-construction
grants will also be submitted on Standard Form 270. (For reimbursement requests under construction grants, see
paragraph (e)(1) of this section.)
(3) The frequency for submitting payment requests is treated in § 105–
71.141(b)(3).
(e) Outlay report and request for reimbursement for construction programs. (1)
Grants that support construction activities paid by reimbursement method.
(i) Requests for reimbursement under
construction grants will be submitted
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31
§ 105–71.142
41 CFR Ch. 105 (7–1–16 Edition)
on Standard Form 271, Outlay Report
and Request for Reimbursement for
Construction Programs. Federal agencies may, however, prescribe the Request for Advance or Reimbursement
form, specified in § 105–71.141(d), instead
of this form.
(ii) The frequency for submitting reimbursement requests is treated in
§ 105–71.141(b)(3).
(2) Grants that support construction
activities paid by letter of credit, electronic funds transfer or Treasury check
advance.
(i) When a construction grant is paid
by letter of credit, electronic funds
transfer or Treasury check advances,
the grantee will report its outlays to
the Federal agency using Standard
Form 271, Outlay Report and Request
for Reimbursement for Construction
Programs. The Federal agency will provide any necessary special instruction.
However, frequency and due date shall
be governed by § 105–71.141(b) (3) and (4).
(ii) When a construction grant is paid
by Treasury check advances based on
periodic requests from the grantee, the
advances will be requested on the form
specified in § 105–71.141(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in § 105–71.141(b) for the Outlay Report and Request for Reimbursement for Construction Programs.
(3) Accounting basis. The accounting
basis for the Outlay Report and Request for Reimbursement for Construction Programs shall be governed by
§ 105–71.141(b)(2).
§ 105–71.142 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and programmatic
records, supporting documents, statistical records, and other records of
grantees of subgrantees or subgrantees
which are:
(i) Required to be maintained by the
terms of this part, program regulations
or the grant agreement, or
(ii) Otherwise reasonably considered
as pertinent to program regulations or
the grant agreement.
(2) This section does not apply to
records maintained by contractors or
subcontractors. For a requirement to
place a provision concerning records in
certain kinds of contracts, see § 105–
71.136(i)(10).
(b) Length of retention period. (1) Except as otherwise provided, records
must be retained for three years from
the starting date specified in paragraph
(c) of this section.
(2) If any litigation, claim, negotiation, audit or other action involving
the records has been started before the
expiration of the 3-year period, the
records must be retained until completion of the action and resolution of all
issues which arise from it, or until the
end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping,
awarding agencies may make special
arrangements with grantees and subgrantees to retain any records which
are continuously needed for joint use.
The awarding agency will request
transfer of records to its custody when
it determines that the records possess
long-term retention value. When the
records are transferred to or maintained by the Federal agency, the 3year retention requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period—(1)
General. When grant support is continued or renewed at annual or other intervals, the retention period for the
records of each funding period starts on
the day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support is continued or renewed quarterly, the retention period for each year’s records
starts on the day the grantee submits
its expenditure report for the last quarter of the Federal fiscal year. In all
other cases, the retention period starts
on the day the grantee submits its
final expenditure report. If an expenditure report has been waived, the retention period starts on the day the report
would have been due.
(2) Real property and equipment
records. The retention period for real
property and equipment records starts
from the date of the disposition or replacement or transfer at the direction
of the awarding agency.
(3) Records for income transactions
after grant or subgrant support. In some
cases grantees must report income
after the period of grant support.
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31
General Services Administration
§ 105–71.143
Where there is such a requirement, the
retention period for the records pertaining to the earning of the income
starts from the end of the grantee’s fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This paragraph applies to the following types of documents, and their supporting records:
indirect cost rate computations or proposals, cost allocation plans, and any
similar accounting computations of
the rates at which a particular group of
costs is chargeable (such as computer
usage chargeback rates or composite
fringe benefit rates).
(i) If submitted for negotiation. If the
proposal, plan, or other computation is
required to be submitted to the Federal
Government (or to the grantee) to form
the basis for negotiation of the rate,
then the 3-year retention period for its
supporting records starts from the date
of such submission.
(ii) If not submitted for negotiation. If
the proposal, plan, or other computations are not required to be submitted
to the Federal Government (or to the
grantee) for negotiation purposes, then
the 3-year retention period for the proposal plan, or computation and its supporting records starts from end of the
fiscal year (or other accounting period)
covered by the proposal, plan, or other
computation.
(d) Substitution of microfilm. Copies
made by microfilming, photocopying,
or similar methods may be substituted
for the original records.
(e) Access to records—(1) Records of
grantees and subgrantees. The awarding
agency and the Comptroller General of
the United States, or any of their authorized representatives, shall have the
right of access to any pertinent books,
documents, papers, or other records of
grantees and subgrantees which are
pertinent to the grant, in order to
make audits, examinations, excerpts,
and transcripts.
(2) Expiration of right of access. The
rights of access in this section must
not be limited to the required retention period but shall last as long as the
records are retained.
(f) Restrictions on public access. The
Federal Freedom of Information Act (5
U.S.C. 552) does not apply to records.
Unless required by Federal, State, or
local law, grantees and subgrantees are
not required to permit public access to
their records.
§ 105–71.143
Enforcement.
(a) Remedies for noncompliance. If a
grantee or subgrantee materially fails
to comply with any term of an award,
whether stated in a Federal statute or
regulation, an assurance, in a State
plan or application, a notice of award,
or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the circumstances:
(1) Temporary withhold cash payments pending correction of the deficiency by the grantee or subgrantee or
more severe enforcement action by the
awarding agency,
(2) Disallow (that is, deny both use of
funds and matching credit for) all or
part of the cost of the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee’s or subgrantee’s program,
(4) Without further awards for the
program, or
(5) Take other remedies that may be
legally available,
(b) Hearings, appeals. In taking an enforcement action, the awarding agency
will provide the grantee or subgrantee
an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or subgrantee is entitled under any statute
or regulation applicable to the action
involved.
(c) Effects of suspension and termination. Costs of grantee or subgrantee
resulting from obligations incurred by
the grantee or subgrantee during a suspension or after termination of an
award are not allowable unless the
awarding agency expressly authorizes
them in the notice of suspension or termination or subsequently. Other grantee or subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable
are allowable if:
(1) The costs result from obligations
which were properly incurred by the
grantee or subgrantee before the effective date of suspension or termination,
are not in anticipation of it, and, in
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§ 105–71.144
41 CFR Ch. 105 (7–1–16 Edition)
case
of
a
termination,
are
noncancellable, and,
(2) The cost would be allowable if the
award were not suspended or expired
normally at the end of the funding period in which the termination takes effect.
(d) Relationship to debarment and suspension. The enforcement remedies
identified in this section, including
suspension and termination, do not
preclude grantee or subgrantee from
being subject to ‘‘Debarment and Suspension’’ under E.O. 12549 (see § 105–
71.135).
§ 105–71.144 Termination for convenience.
Except as provided in § 105–71.143
awards may be terminated in whole or
in part only as follows:
(a) By the awarding agency with the
consent of the grantee or subgrantee in
which case the two parties shall agree
upon the termination conditions, including the effective date and in the
case of partial termination, the portion
to be terminated, or
(b) By the grantee or subgrantee
upon written notification to the awarding agency, setting forth the reasons
for such termination, the effective
date, and in the case of partial termination, the portion to be terminated.
However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of
the award will not accomplish the purposes for which the award was made,
the awarding agency may terminate
the award in its entirety under either
§ 105–71.143 or paragraph (a) of this section.
Subpart 105–71.15—After-theGrant Requirements
§ 105–71.150 Closeout.
(a) General. The Federal agency will
close out the award when it determines
that all applicable administrative actions and all required work of the
grant has been completed.
(b) Reports. Within 90 days after the
expiration or termination of the grant,
the grantee must submit all financial,
performance, and other reports required as a condition of the grant.
Upon request by the grantee, Federal
agencies may extend this timeframe.
These may include but are not limited
to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269)
or Outlay Report and Request for Reimbursement for Construction Programs (SF–271) (as applicable).
(3) Final request for payment (SF–
270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with § 105–71.132(f), a
grantee must submit an inventory of
all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable
and request disposition instructions
from the Federal agency of property no
longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after receipt of
reports in paragraph (b) of this section,
make upward or downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal
agency will make prompt payment to
the grantee for allowable reimbursable
costs.
(2) The grantee must immediately refund to the Federal agency any balance
of unobligated (unencumbered) cash
advanced that is not authorized to be
retained for use on other grants.
§ 105–71.151 Later disallowances and
adjustments.
The closeout of a grant does not affect:
(a) The Federal agency’s right to disallow costs and recover funds on the
basis of a later audit or other review;
(b) The grantee’s obligation to return
any funds due as a result of later refunds, corrections, or other transactions;
(c) Records retention as required in
§ 105–71.142;
(d) Property management requirements in § 105–71.131 and § 105–71.132; and
(e) Audit requirements in § 105–71.126.
§ 105–71.152 Collection
of
amounts
due.
(a) Any funds paid to a grantee in excess of the amount to which the grantee is finally determined to be entitled
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31
General Services Administration
Pt. 105–72
under the terms of the award constitute a debt to the Federal Government. If not paid within a reasonable
period after demand, the Federal agency may reduce the debt by:
(1) Making an administrative offset
against other requests for reimbursement,
(2) Withholding advance payments
otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided
by statutes or regulations, the Federal
agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Standards (4
CFR Ch. II). The date from which interest is computed is not extended by litigation or the filing of any form of appeal.
105–72.301 Standards for financial management systems.
105–72.302 Payment.
105–72.303 Cost sharing or matching.
105–72.304 Program income.
105–72.305 Revision of budget and program
plans.
105–72.306 Non-Federal audits.
105–72.307 Allowable costs.
105–72.308 Period of availability of funds.
Subpart 105–72.40—Post-Award
Requirements/Property Standards
105–72.400 Purpose of property standards.
105–72.401 Insurance coverage.
105–72.402 Real property.
105–72.403 Federally-owned
and
exempt
property.
105–72.404 Equipment.
105–72.405 Supplies and other expendable
property.
105–72.406 Intangible property.
105–72.407 Property trust relationship.
Subpart 105–71.16—Entitlements
[Reserved]
Subpart 105–72.50—Post-Award
Requirements/Procurement Standards
PART 105–72—UNIFORM ADMINISTRATIVE
REQUIREMENTS
FOR
GRANTS AND AGREEMENTS WITH
INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER
NON-PROFIT ORGANIZATIONS
Subpart 105–72.1—General
Sec.
105–72.100
105–72.101
105–72.102
105–72.103
105–72.104
105–72.500 Purpose of procurement standards.
105–72.501 Recipient responsibilities.
105–72.502 Codes of conduct.
105–72.503 Competition.
105–72.504 Procurement procedures.
105–72.505 Cost and price analysis.
105–72.506 Procurement records.
105–72.507 Contract administration.
105–72.508 Contract provisions.
Subpart 105–72.60—Post-Award
Requirements/Reports and Records
Purpose.
Definitions.
Effect on other issuances.
Deviations.
Subawards.
105–72.600 Purpose of reports and records.
105–72.601 Monitoring and reporting program performance.
105–72.602 Financial reporting.
105–72.603 Retention and access requirements for records.
Subpart 105–72.2—Pre-Award
Requirements
105–72.200 Purpose.
105–72.201 Pre-award policies.
105–72.202 Forms for applying for Federal
assistance.
105–72.203 Debarment and suspension.
105–72.204 Special award conditions.
105–72.205 Metric system of measurement.
105–72.206 Resource Conservation and Recovery Act.
105–72.207 Certifications and representations.
Subpart 105–72.30—Post-Award Requirements/Financial and Program Management
105–72.300 Purpose of financial and program
management.
Subpart 105–72.70—Post-Award Requirements/Termination and Enforcement
105–72.700 Purpose of termination and enforcement.
105–72.701 Termination.
105–72.702 Enforcement.
Subpart 105–72.80—After-the-Award
Requirements
105–72.800 Purpose.
105–72.801 Closeout procedures.
105–72.802 Subsequent adjustments and continuing responsibilities.
105–72.803 Collection of amounts due.
APPENDIX A TO PART 105–72—CONTRACT PROVISIONS
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§ 105–72.100
41 CFR Ch. 105 (7–1–16 Edition)
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 59 FR 47268, Sept. 15, 1994, unless
otherwise noted.
Subpart 105–72.1—General
§ 105–72.100 Purpose.
This part establishes uniform administrative requirements for Federal
grants and agreements awarded to institutions of higher education, hospitals, and other non-profit organizations. Federal awarding agencies shall
not impose additional or inconsistent
requirements, except as provided in
§§ 105–72.103, and 105–72.204 or unless
specifically required by Federal statute
or executive order. Non-profit organizations that implement Federal programs for the States are also subject to
State requirements.
§ 105–72.101 Definitions.
(a) Accrued expenditures means the
charges incurred by the recipient during a given period requiring the provision of funds for:
(1) Goods and other tangible property
received;
(2) Services performed by employees,
contractors, subrecipients, and other
payees; and
(3) Other amounts becoming owed
under programs for which no current
services or performance is required.
(b) Accrued income means the sum of:
(1) Earnings during a given period
from
(i) Services performed by the recipient, and
(ii) Goods and other tangible property delivered to purchasers, and
(2) Amounts becoming owed to the
recipient for which no current services
or performance is required by the recipient.
(c) Acquisition cost of equipment means
the net invoice price of the equipment,
including the cost of modifications, attachments, accessories, or auxiliary
apparatus necessary to make the property usable for the purpose for which it
was acquired. Other charges, such as
the cost of installation, transportation,
taxes, duty or protective in-transit insurance, shall be included or excluded
from the unit acquisition cost in accordance with the recipient’s regular
accounting practices.
(d) Advance means a payment made
by Treasury check or other appropriate
payment mechanism to a recipient
upon its request either before outlays
are made by the recipient or through
the use of predetermined payment
schedules.
(e) Award means financial assistance
that provides support or stimulation to
accomplish a public purpose. Awards
include grants and other agreements in
the form of money or property in lieu
of money, by the Federal Government
to an eligible recipient. The term does
not include: technical assistance,
which provides services instead of
money; other assistance in the form of
loans, loan guarantees, interest subsidies, or insurance; direct payments of
any kind to individuals; and, contracts
which are required to be entered into
and administered under procurement
laws and regulations.
(f) Cash contributions means the recipient’s cash outlay, including the
outlay of money contributed to the recipient by third parties.
(g) Closeout means the process by
which a Federal awarding agency determines that all applicable administrative actions and all required work of
the award have been completed by the
recipient and Federal awarding agency.
(h) Contract means a procurement
contract under an award or subaward,
and a procurement subcontract under a
recipient’s or subrecipient’s contract.
(i) Cost sharing or matching means
that portion of project or program
costs not borne by the Federal Government.
(j) Date of completion means the date
on which all work under an award is
completed or the date on the award
document, or any supplement or
amendment thereto, on which Federal
sponsorship ends.
(k) Disallowed costs means those
charges to an award that the Federal
awarding agency determines to be unallowable, in accordance with the applicable Federal cost principles or
other terms and conditions contained
in the award.
(l) Equipment means tangible nonexpendable personal property including
exempt property charged directly to
the award having a useful life of more
than one year and an acquisition cost
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General Services Administration
§ 105–72.101
of $5000 or more per unit. However, consistent with recipient policy, lower
limits may be established.
(m) Excess property means property
under the control of any Federal
awarding agency that, as determined
by the head thereof, is no longer required for its needs or the discharge of
its responsibilities.
(n) Exempt property means tangible
personal property acquired in whole or
in part with Federal funds, where the
Federal awarding agency has statutory
authority to vest title in the recipient
without further obligation to the Federal Government. An example of exempt property authority is contained
in the Federal Grant and Cooperative
Agreement Act (31 U.S.C. 6306), for
property acquired under an award to
conduct basic or applied research by a
non-profit institution of higher education or non-profit organization
whose principal purpose is conducting
scientific research.
(o) Federal awarding agency means
the Federal agency that provides an
award to the recipient.
(p) Federal funds authorized means
the total amount of Federal funds obligated by the Federal Government for
use by the recipient. This amount may
include any authorized carryover of unobligated funds from prior funding periods when permitted by agency regulations or agency implementing instructions.
(q) Federal share of real property,
equipment, or supplies means that percentage of the property’s acquisition
costs and any improvement expenditures paid with Federal funds.
(r) Funding period means the period of
time when Federal funding is available
for obligation by the recipient.
(s) Intangible property and debt instruments means, but is not limited to,
trademarks, copyrights, patents and
patent applications and such property
as loans, notes and other debt instruments, lease agreements, stock and
other instruments of property ownership, whether considered tangible or intangible.
(t) Obligations means the amounts of
orders placed, contracts and grants
awarded, services received and similar
transactions during a given period that
require payment by the recipient during the same or a future period.
(u) Outlays or expenditures means
charges made to the project or program. They may be reported on a cash
or accrual basis. For reports prepared
on a cash basis, outlays are the sum of
cash disbursements for direct charges
for goods and services, the amount of
indirect expense charged, the value of
third party in-kind contributions applied and the amount of cash advances
and payments made to subrecipients.
For reports prepared on an accrual
basis, outlays are the sum of cash disbursements for direct charges for goods
and services, the amount of indirect expense incurred, the value of in-kind
contributions applied, and the net increase (or decrease) in the amounts
owed by the recipient for goods and
other property received, for services
performed by employees, contractors,
subrecipients and other payees and
other amounts becoming owed under
programs for which no current services
or performance are required.
(v) Personal property means property
of any kind except real property. It
may be tangible, having physical existence, or intangible, having no physical
existence, such as copyrights, patents,
or securities.
(w) Prior approval means written approval by an authorized official evidencing prior consent.
(x) Program income means gross income earned by the recipient that is directly generated by a supported activity or earned as a result of the award
(see exclusions in § 105–72.304 (e) and
(h)). Program income includes, but is
not limited to, income from fees for
services performed, the use or rental of
real or personal property acquired
under federally-funded projects, the
sale of commodities or items fabricated
under an award, license fees and royalties on patents and copyrights, and interest on loans made with award funds.
Interest earned on advances of Federal
funds is not program income. Except as
otherwise provided in Federal awarding
agency regulations or the terms and
conditions of the award, program income does not include the receipt of
principal on loans, rebates, credits, discounts, etc., or interest earned on any
of them.
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§ 105–72.101
41 CFR Ch. 105 (7–1–16 Edition)
(y) Project costs means all allowable
costs, as set forth in the applicable
Federal cost principles, incurred by a
recipient and the value of the contributions made by third parties in accomplishing the objectives of the award
during the project period.
(z) Project period means the period established in the award document during which Federal sponsorship begins
and ends.
(aa) Property means, unless otherwise
stated, real property, equipment, intangible property and debt instruments.
(bb) Real property means land, including land improvements, structures and
appurtenances thereto, but excludes
movable machinery and equipment.
(cc) Recipient means an organization
receiving financial assistance directly
from Federal awarding agencies to
carry out a project or program. The
term includes public and private institutions of higher education, public and
private hospitals, and other quasi-public and private non-profit organizations
such as, but not limited to, community
action agencies, research institutes,
educational associations, and health
centers. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are
recipients, subrecipients, or contractors or subcontractors of recipients or
subrecipients at the discretion of the
Federal awarding agency. The term
does not include government-owned
contractor-operated facilities or research centers providing continued
support for mission-oriented, largescale programs that are governmentowned or controlled, or are designated
as federally-funded research and development centers.
(dd) Research and development means
all research activities, both basic and
applied, and all development activities
that are supported at universities, colleges, and other non-profit institutions. ‘‘Research’’ is defined as a systematic study directed toward fuller
scientific knowledge or understanding
of the subject studied. ‘‘Development’’
is the systematic use of knowledge and
understanding gained from research directed toward the production of useful
materials, devices, systems, or meth-
ods, including design and development
of prototypes and processes. The term
research also includes activities involving the training of individuals in
research techniques where such activities utilize the same facilities as other
research and development activities
and where such activities are not included in the instruction function.
(ee) Small awards means a grant or
cooperative agreement not exceeding
the small purchase threshold fixed at
41 U.S.C. 403(11) (currently $25,000).
(ff) Subaward means an award of financial assistance in the form of
money, or property in lieu of money,
made under an award by a recipient to
an eligible subrecipient or by a subrecipient to a lower tier subrecipient.
The term includes financial assistance
when provided by any legal agreement,
even if the agreement is called a contract, but does not include procurement of goods and services nor does it
include any form of assistance which is
excluded from the definition of
‘‘award’’ in paragraph 105–72.101(e).
(gg) Subrecipient means the legal entity to which a subaward is made and
which is accountable to the recipient
for the use of the funds provided. The
term may include foreign or international organizations (such as agencies of the United Nations) at the discretion of the Federal awarding agency.
(hh) Supplies means all personal property excluding equipment, intangible
property, and debt instruments as defined in this section, and inventions of
a contractor conceived or first actually
reduced to practice in the performance
of work under a funding agreement
(‘‘subject inventions’’), as defined in 37
CFR part 401, ‘‘Rights to Inventions
Made by Nonprofit Organizations and
Small Business Firms Under Government Grants, Contracts, and Cooperative Agreements.’’
(ii) Suspension means an action by a
Federal awarding agency that temporarily withdraws Federal sponsorship
under an award, pending corrective action by the recipient or pending a decision to terminate the award by the
Federal awarding agency. Suspension
of an award is a separate action from
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General Services Administration
§ 105–72.201
suspension under Federal agency regulations implementing E.O.s 12549 and
12689, ‘‘Debarment and Suspension.’’
(jj) Termination means the cancellation of Federal sponsorship, in whole or
in part, under an agreement at any
time prior to the date of completion.
(kk) Third party in-kind contributions
means the value of noncash contributions provided by non-Federal third
parties. Third party in-kind contributions may be in the form of real property, equipment, supplies and other expendable property, and the value of
goods and services directly benefiting
and specifically identifiable to the
project or program.
(ll) Unliquidated obligations, for financial reports prepared on a cash basis,
means the amount of obligations incurred by the recipient that have not
been paid. For reports prepared on an
accrued expenditure basis, they represent the amount of obligations incurred by the recipient for which an
outlay has not been recorded.
(mm) Unobligated balance means the
portion of the funds authorized by the
Federal awarding agency that has not
been obligated by the recipient and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
(nn) Unrecovered indirect cost means
the difference between the amount
awarded and the amount which could
have been awarded under the recipient’s approved negotiated indirect cost
rate.
(oo) Working capital advance means a
procedure where by funds are advanced
to the recipient to cover its estimated
disbursement needs for a given initial
period.
§ 105–72.102
Effect on other issuances.
For awards subject to this regulation, all administrative requirements
of codified program regulations, program manuals, handbooks and other
nonregulatory materials which are inconsistent with the requirements of
this regulation shall be superseded, except to the extent they are required by
statute, or authorized in accordance
with the deviations provision in § 105–
72.103.
§ 105–72.103 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject
to the requirements of this regulation
when exceptions are not prohibited by
statute. However, in the interest of
maximum uniformity, exceptions from
the requirements of this regulation
shall be permitted only in unusual circumstances. Federal awarding agencies
may apply more restrictive requirements to a class of recipients when approved by OMB. Federal awarding
agencies may apply less restrictive requirements
when
awarding
small
awards, except for those requirements
which are statutory. Exceptions on a
case-by-case basis may also be made by
Federal awarding agencies.
§ 105–72.104 Subawards.
Unless sections of this regulation
specifically exclude subrecipients from
coverage, the provisions of this regulation shall be applied to subrecipients
performing work under awards if such
subrecipients are institutions of higher
education, hospitals or other non-profit
organizations. State and local government subrecipients are subject to the
provisions of regulations implementing
the grants management common rule,
‘‘Uniform
Administrative
Requirements for Grants and Cooperative
Agreements to State and Local Governments,’’ 41 CFR 105–71.
Subpart 105–72.2—Pre-Award
Requirements
§ 105–72.200 Purpose.
Sections 105–72.201 through 105–72.207
prescribes forms and instructions and
other pre-award matters to be used in
applying for Federal awards.
§ 105–72.201 Pre-award policies.
(a) Use of grants and cooperative agreements, and contracts. In each instance,
the Federal awarding agency shall decide on the appropriate award instrument (i.e., grant, cooperative agreement, or contract). The Federal Grant
and Cooperative Agreement Act (31
U.S.C. 6301–08) governs the use of
grants, cooperative agreements and
contracts. A grant or cooperative
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§ 105–72.202
41 CFR Ch. 105 (7–1–16 Edition)
agreement shall be used only when the
principal purpose of a transaction is to
accomplish a public purpose of support
or stimulation authorized by Federal
statute. The statutory criterion for
choosing between grants and cooperative agreements is that for the latter,
‘‘substantial involvement is expected
between the executive agency and the
State, local government, or other recipient when carrying out the activity
contemplated in the agreement.’’ Contracts shall be used when the principal
purpose is acquisition of property or
services for the direct benefit or use of
the Federal Government.
(b) Public notice and priority setting.
Federal awarding agencies shall notify
the public of its intended funding priorities for discretionary grant programs,
unless funding priorities are established by Federal statute.
§ 105–72.202 Forms for
Federal assistance.
applying
for
(a) Federal awarding agencies shall
comply with the applicable report
clearance requirements of 5 CFR part
1320, ‘‘Controlling Paperwork Burdens
on the Public,’’ with regard to all
forms used by the Federal awarding
agency in place of or as a supplement
to the Standard Form 424 (SF–424) series.
(b) Applicants shall use the SF–424
series or those forms and instructions
prescribed by the Federal awarding
agency.
(c) For Federal programs covered by
E.O. 12372, ‘‘Intergovernmental Review
of Federal Programs,’’ the applicant
shall complete the appropriate sections
of the SF–424 (Application for Federal
Assistance) indicating whether the application was subject to review by the
State Single Point of Contact (SPOC).
The name and address of the SPOC for
a particular State can be obtained from
the Federal awarding agency or the
Catalog of Federal Domestic Assistance. The SPOC shall advise the applicant whether the program for which
application is made has been selected
by that State for review.
(d) Federal awarding agencies that do
not use the SF–424 form should indicate whether the application is subject
to review by the State under E.O. 12372.
§ 105–72.203
sion.
Debarment
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suspen-
Federal awarding agencies and recipients shall comply with the nonprocurement debarment and suspension
common rule implementing E.O.s 12549
and 12689, ‘‘Debarment and Suspension.’’ This common rule restricts subawards and contracts with certain parties that are debarred, suspended or
otherwise excluded from or ineligible
for participation in Federal assistance
programs or activities.
§ 105–72.204
Special award conditions.
If an applicant or recipient:
(a) Has a history of poor performance,
(b) Is not financially stable,
(c) Has a management system that
does not meet the standards prescribed
in this regulation,
(d) Has not conformed to the terms
and conditions of a previous award, or
(e) Is not otherwise responsible;
Federal awarding agencies may impose
additional requirements as needed, provided that such applicant or recipient
is notified in writing as to: the nature
of the additional requirements, the reason why the additional requirements
are being imposed, the nature of the
corrective action needed, the time allowed for completing the corrective actions, and the method for requesting
reconsideration of the additional requirements imposed. Any special conditions shall be promptly removed once
the conditions that prompted them
have been corrected.
§ 105–72.205
ment.
Metric system of measure-
The Metric Conversion Act, as
amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is the
preferred measurement system for U.S.
trade and commerce. The Act requires
each Federal agency to establish a date
or dates in consultation with the Secretary of Commerce, when the metric
system of measurement will be used in
the agency’s procurements, grants, and
other business-related activities. Metric implementation may take longer
where the use of the system is initially
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31
General Services Administration
§ 105–72.301
impractical or likely to cause significant inefficiencies in the accomplishment of federally-funded activities.
Federal awarding agencies shall follow
the provisions of E.O. 12770, ‘‘Metric
Usage in Federal Government Programs.’’
§ 105–72.206 Resource
Conservation
and Recovery Act.
Under the Resource Conservation and
Recovery Act (RCRA) (Pub. L. 94–580
codified at 42 U.S.C. 6962), any State
agency or agency of a political subdivision of a State which is using appropriated Federal funds must comply
with section 6002. Section 6002 requires
that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection
Agency (EPA) (40 CFR parts 247
through 254). Accordingly, State and
local institutions of higher education,
hospitals, and non-profit organizations
that receive direct Federal awards or
other Federal funds shall give preference in their procurement programs
funded with Federal funds to the purchase of recycled products pursuant to
the EPA guidelines.
§ 105–72.207 Certifications and representations.
Unless prohibited by statute or codified regulation, each Federal awarding
agency is authorized and encouraged to
allow recipients to submit certifications and representations required
by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. Annual certifications and representations shall be
signed by responsible officials with the
authority to ensure recipients’ compliance with the pertinent requirements.
Subpart
105–72.30—Post-Award
Requirements/Financial and
Program Management
§ 105–72.300 Purpose of financial and
program management.
Sections 105–72.301 through 105–72.308
prescribe standards for financial management systems, methods for making
payments and rules for: satisfying cost
sharing and matching requirements,
accounting for program income, budget
revision approvals, making audits, determining allowability of cost, and establishing fund availability.
§ 105–72.301 Standards for financial
management systems.
(a) Federal awarding agencies shall
require recipients to relate financial
data to performance data and develop
unit cost information whenever practical.
(b) Recipients’ financial management
systems shall provide for the following.
(1) Accurate, current and complete
disclosure of the financial results of
each federally-sponsored project or
program in accordance with the reporting requirements set forth in § 105–
72.602. If a Federal awarding agency requires reporting on an accrual basis
from a recipient that maintains its
records on other than an accrual basis,
the recipient shall not be required to
establish an accrual accounting system. These recipients may develop
such accrual data for its reports on the
basis of an analysis of the documentation on hand.
(2) Records that identify adequately
the source and application of funds for
federally-sponsored activities. These
records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and
other assets. Recipients shall adequately safeguard all such assets and
assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award. Whenever
appropriate,
financial
information
should be related to performance and
unit cost data.
(5) Written procedures to minimize
the time elapsing between the transfer
of funds to the recipient from the U.S.
Treasury and the issuance or redemption of checks, warrants or payments
by other means for program purposes
by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101–453)
govern, payment methods of State
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§ 105–72.302
41 CFR Ch. 105 (7–1–16 Edition)
agencies, instrumentalities, and fiscal
agents shall be consistent with CMIA
Treasury-State Agreements or the
CMIA default procedures codified at 31
CFR part 205, ‘‘Withdrawal of Cash
from the Treasury for Advances under
Federal Grant and Other Programs.’’
(6) Written procedures for determining the reasonableness, allocability
and allowability of costs in accordance
with the provisions of the applicable
Federal cost principles and the terms
and conditions of the award.
(7) Accounting records including cost
accounting records that are supported
by source documentation.
(c) Where the Federal Government
guarantees or insures the repayment of
money borrowed by the recipient, the
Federal awarding agency, at its discretion, may require adequate bonding
and insurance if the bonding and insurance requirements of the recipient are
not deemed adequate to protect the interest of the Federal Government.
(d) The Federal awarding agency may
require adequate fidelity bond coverage
where the recipient lacks sufficient
coverage to protect the Federal Government’s interest.
(e) Where bonds are required in the
situations described above, the bonds
shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR
part 223, ‘‘Surety Companies Doing
Business with the United States.’’
§ 105–72.302 Payment.
(a) Payment methods shall minimize
the time elapsing between the transfer
of funds from the United States Treasury and the issuance or redemption of
checks, warrants, or payment by other
means by the recipients. Payment
methods of State agencies or instrumentalities shall be consistent with
Treasury-State CMIA agreements or
default procedures codified at 31 CFR
part 205.
(b)(1) Recipients are to be paid in advance, provided they maintain or demonstrate the willingness to maintain:
(i) Written procedures that minimize
the time elapsing between the transfer
of funds and disbursement by the recipient, and
(ii) Financial management systems
that meet the standards for fund con-
trol and accountability as established
in § 105–72.301.
(2) Cash advances to a recipient organization shall be limited to the minimum amounts needed and be timed to
be in accordance with the actual, immediate cash requirements of the recipient organization in carrying out
the purpose of the approved program or
project. The timing and amount of cash
advances shall be as close as is administratively feasible to the actual disbursements by the recipient organization for direct program or project costs
and the proportionate share of any allowable indirect costs.
(c) Whenever possible, advances shall
be consolidated to cover anticipated
cash needs for all awards made by the
Federal awarding agency to the recipient.
(1) Advance payment mechanisms include, but are not limited to, Treasury
check and electronic funds transfer.
(2) Advance payment mechanisms are
subject to 31 CFR part 205.
(3) Recipients shall be authorized to
submit requests for advances and reimbursements at least monthly when
electronic fund transfers are not used.
(d) Requests for Treasury check advance payment shall be submitted on
SF–270, ‘‘Request for Advance or Reimbursement,’’ or other forms as may be
authorized by OMB. This form is not to
be used when Treasury check advance
payments are made to the recipient
automatically through the use of a predetermined payment schedule or if precluded by special Federal awarding
agency instructions for electronic
funds transfer.
(e) Reimbursement is the preferred
method when the requirements in paragraph (b) cannot be met. Federal
awarding agencies may also use this
method on any construction agreement, or if the major portion of the
construction project is accomplished
through private market financing or
Federal loans, and the Federal assistance constitutes a minor portion of the
project.
(1) When the reimbursement method
is used, the Federal awarding agency
shall make payment within 30 days
after receipt of the billing, unless the
billing is improper.
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General Services Administration
§ 105–72.302
(2) Recipients shall be authorized to
submit request for reimbursement at
least monthly when electronic funds
transfers are not used.
(f) If a recipient cannot meet the criteria for advance payments and the
Federal awarding agency has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the Federal
awarding agency may provide cash on a
working capital advance basis. Under
this procedure, the Federal awarding
agency shall advance cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the awardee’s disbursing cycle. Thereafter, the Federal
awarding agency shall reimburse the
recipient for its actual cash disbursements. The working capital advance
method of payment shall not be used
for recipients unwilling or unable to
provide timely advances to their subrecipient to meet the subrecipient’s actual cash disbursements.
(g) To the extent available, recipients shall disburse funds available from
repayments to and interest earned on a
revolving fund, program income, rebates, refunds, contract settlements,
audit recoveries and interest earned on
such funds before requesting additional
cash payments.
(h) Unless otherwise required by statute, Federal awarding agencies shall
not withhold payments for proper
charges made by recipients at any time
during the project period unless paragraphs (h)(1) or (2) of this section
apply.
(1) A recipient has failed to comply
with the project objectives, the terms
and conditions of the award, or Federal
reporting requirements.
(2) The recipient or subrecipient is
delinquent in a debt to the United
States as defined in OMB Circular A–
129, ‘‘Managing Federal Credit Programs.’’ Under such conditions, the
Federal awarding agency may, upon
reasonable notice, inform the recipient
that payments shall not be made for
obligations incurred after a specified
date until the conditions are corrected
or the indebtedness to the Federal Government is liquidated.
(i) Standards governing the use of
banks and other institutions as deposi-
tories of funds advanced under awards
are as follows:
(1) Except for situations described in
paragraph (i)(2), Federal awarding
agencies shall not require separate depository accounts for funds provided to
a recipient or establish any eligibility
requirements for depositories for funds
provided to a recipient. However, recipients must be able to account for
the receipt, obligation and expenditure
of funds.
(2) Advances of Federal funds shall be
deposited and maintained in insured
accounts whenever possible.
(j) Consistent with the national goal
of expanding the opportunities for
women-owned
and
minority-owned
business enterprises, recipients shall be
encouraged to use womenowned and
minority-owned banks (a bank which is
owned at least 50 percent by women or
minority group members).
(k) Recipients shall maintain advances of Federal funds in interest
bearing accounts, unless paragraph
(k)(1), (2) or (3) of this section apply.
(1) The recipient receives less than
$120,000 in Federal awards per year.
(2) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250
per year on Federal cash balances.
(3) The depository would require an
average or minimum balance so high
that it would not be feasible within the
expected Federal and non-Federal cash
resources.
(l) For those entities where CMIA
and its implementing regulations do
not apply, interest earned on Federal
advances deposited in interest bearing
accounts shall be remitted annually to
Department of Health and Human
Services, Payment Management System, P.O. Box 6021, Rockville, MD
20852. Interest amounts up to $250 per
year may be retained by the recipient
for administrative expense. State universities and hospitals shall comply
with CMIA, as it pertains to interest. If
an entity subject to CMIA uses its own
funds to pay pre-award costs for discretionary awards without prior written
approval from the Federal awarding
agency, it waives its right to recover
the interest under CMIA.
(m) Except as noted elsewhere in this
regulation, only the following forms
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§ 105–72.303
41 CFR Ch. 105 (7–1–16 Edition)
shall be authorized for the recipients in
requesting advances and reimbursements. Federal agencies shall not require more than an original and two
copies of these forms.
(1) SF–270, Request for Advance or Reimbursement. Each Federal awarding
agency shall adopt the SF–270 as a
standard form for all nonconstruction
programs when electronic funds transfer or predetermined advance methods
are not used. Federal awarding agencies, however, have the option of using
this form for construction programs in
lieu of the SF–271, ‘‘Outlay Report and
Request for Reimbursement for Construction Programs.’’
(2) SF–271, Outlay Report and Request
for Reimbursement for Construction Programs. Each Federal awarding agency
shall adopt the SF–271 as the standard
form to be used for requesting reimbursement for construction programs.
However, a Federal awarding agency
may substitute the SF–270 when the
Federal awarding agency determines
that it provides adequate information
to meet Federal needs.
§ 105–72.303 Cost sharing or matching.
(a) All contributions, including cash
and third party in-kind, shall be accepted as part of the recipient’s cost
sharing or matching when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient’s
records.
(2) Are not included as contributions
for any other federally-assisted project
or program.
(3) Are necessary and reasonable for
proper and efficient accomplishment of
project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award, except
where authorized by Federal statute to
be used for cost sharing or matching.
(6) Are provided for in the approved
budget when required by the Federal
awarding agency.
(7) Conform to other provisions of
this regulation, as applicable.
(b) Unrecovered indirect costs may be
included as part of cost sharing or
matching only with the prior approval
of the Federal awarding agency.
(c) Values for recipient contributions
of services and property shall be established in accordance with the applicable cost principles. If a Federal awarding agency authorizes recipients to donate buildings or land for construction/
facilities acquisition projects or longterm use, the value of the donated
property for cost sharing or matching
shall be the lesser of paragraph (c)(1) or
(2) of this section.
(1) The certified value of the remaining life of the property recorded in the
recipient’s accounting records at the
time of donation.
(2) The current fair market value.
However, when there is sufficient justification, the Federal awarding agency may approve the use of the current
fair market value of the donated property, even if it exceeds the certified
value at the time of donation to the
project.
(d) Volunteer services furnished by
professional and technical personnel,
consultants, and other skilled and unskilled labor may be counted as cost
sharing or matching if the service is an
integral and necessary part of an approved project or program. Rates for
volunteer services shall be consistent
with those paid for similar work in the
recipient’s organization. In those instances in which the required skills are
not found in the recipient organization,
rates shall be consistent with those
paid for similar work in the labor market in which the recipient competes for
the kind of services involved. In either
case, paid fringe benefits that are reasonable, allowable, and allocable may
be included in the valuation.
(e) When an employer other than the
recipient furnishes the services of an
employee, these services shall be valued at the employee’s regular rate of
pay (plus an amount of fringe benefits
that are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in
the same skill for which the employee
is normally paid.
(f) Donated supplies may include
such items as expendable equipment,
office supplies, laboratory supplies or
workshop and classroom supplies.
Value assessed to donated supplies included in the cost sharing or matching
share shall be reasonable and shall not
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General Services Administration
§ 105–72.304
exceed the fair market value of the
property at the time of the donation.
(g) The method used for determining
cost sharing or matching for donated
equipment, buildings and land for
which title passes to the recipient may
differ according to the purpose of the
award, if paragraph (g)(1) or (2) of this
section apply.
(1) If the purpose of the award is to
assist the recipient in the acquisition
of equipment, buildings or land, the
total value of the donated property
may be claimed as cost sharing or
matching.
(2) If the purpose of the award is to
support activities that require the use
of equipment, buildings or land, normally only depreciation or use charges
for equipment and buildings may be
made. However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed,
provided that the Federal awarding
agency has approved the charges.
(h) The value of donated property
shall be determined in accordance with
the usual accounting policies of the recipient, with the following qualifications.
(1) The value of donated land and
buildings shall not exceed its fair market value at the time of donation to
the recipient as established by an independent appraiser (e.g., certified real
property appraiser or General Services
Administration representative) and
certified by a responsible official of the
recipient.
(2) The value of donated equipment
shall not exceed the fair market value
of equipment of the same age and condition at the time of donation.
(3) The value of donated space shall
not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space
and facilities in a privately-owned
building in the same locality.
(4) The value of loaned equipment
shall not exceed its fair rental value.
(5) The following requirements pertain to the recipient’s supporting
records for in-kind contributions from
third parties.
(i) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by
the recipient for its own employees.
(ii) The basis for determining the
valuation for personal service, material, equipment, buildings and land
shall be documented.
§ 105–72.304
Program income.
(a) Federal awarding agencies shall
apply the standards set forth in this
section in requiring recipient organizations to account for program income
related to projects financed in whole or
in part with Federal funds.
(b) Except as provided in paragraph
(h) of this section, program income
earned during the project period shall
be retained by the recipient and, in accordance with Federal awarding agency
regulations or the terms and conditions of the award, shall be used in one
or more of the ways listed in the following.
(1) Added to funds committed to the
project by the Federal awarding agency
and recipient and used to further eligible project or program objectives.
(2) Used to finance the non-Federal
share of the project or program.
(3) Deducted from the total project or
program allowable cost in determining
the net allowable costs on which the
Federal share of costs is based.
(c) When an agency authorizes the
disposition of program income as described in paragraphs (b)(1) or (b)(2),
program income in excess of any limits
stipulated shall be used in accordance
with paragraph (b)(3).
(d) In the event that the Federal
awarding agency does not specify in its
regulations or the terms and conditions of the award how program income
is to be used, paragraph (b)(3) shall
apply automatically to all projects or
programs except research. For awards
that support research, paragraph (b)(1)
shall apply automatically unless the
awarding agency indicates in the terms
and conditions another alternative on
the award or the recipient is subject to
special award conditions, as indicated
in § 105–72.204.
(e) Unless Federal awarding agency
regulations or the terms and conditions of the award provide otherwise,
recipients shall have no obligation to
the Federal Government regarding program income earned after the end of
the project period.
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§ 105–72.305
41 CFR Ch. 105 (7–1–16 Edition)
(f) If authorized by Federal awarding
agency regulations or the terms and
conditions of the award, costs incident
to the generation of program income
may be deducted from gross income to
determine program income, provided
these costs have not been charged to
the award.
(g) Proceeds from the sale of property
shall be handled in accordance with the
requirements of the Property Standards (See §§ 105–72.400 through 105–
72.407).
(h) Unless Federal awarding agency
regulations or the terms and condition
of the award provide otherwise, recipients shall have no obligation to the
Federal Government with respect to
program income earned from license
fees and royalties for copyrighted material, patents, patent applications,
trademarks, and inventions produced
under an award. However, Patent and
Trademark Amendments (35 U.S.C. 18)
apply to inventions made under an experimental, developmental, or research
award.
§ 105–72.305 Revision of budget and
program plans.
(a) The budget plan is the financial
expression of the project or program as
approved during the award process. It
may include either the Federal and
non-Federal share, or only the Federal
share, depending upon Federal awarding agency requirements. It shall be related to performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report
deviations from budget and program
plans, and request prior approvals for
budget and program plan revisions, in
accordance with this section.
(c) For nonconstruction awards, recipients shall request prior approvals
from Federal awarding agencies for one
or more of the following program or
budget related reasons.
(1) Change in the scope or the objective of the project or program (even if
there is no associated budget revision
requiring prior written approval).
(2) Change in a key person specified
in the application or award document.
(3) The absence for more than three
months, or a 25 percent reduction in
time devoted to the project, by the ap-
proved project director or principal investigator.
(4) The need for additional Federal
funding.
(5) The transfer of amounts budgeted
for indirect costs to absorb increases in
direct costs, or vice versa, if approval
is required by the Federal awarding
agency.
(6) The inclusion, unless waived by
the Federal awarding agency, of costs
that require prior approval in accordance with OMB Circular A–21, ‘‘Cost
Principles for Institutions of Higher
Education,’’ OMB Circular A–122, ‘‘Cost
Principles for Non-Profit Organizations,’’ or 45 CFR part 74 appendix E,
‘‘Principles for Determining Costs Applicable to Research and Development
under Grants and Contracts with Hospitals,’’ or 48 CFR part 31, ‘‘Contract
Cost Principles and Procedures,’’ as applicable.
(7) The transfer of funds allotted for
training allowances (direct payment to
trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to
the purchase of supplies, material,
equipment or general support services.
(d) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in
paragraphs (c)(1) and (c)(4) of this section, Federal awarding agencies are authorized, at their option, to waive costrelated and administrative prior written approvals required by this regulation and OMB Circulars A–21 and A–122.
Such waivers may include authorizing
recipients to do any one or more of the
following.
(1) Incur pre-award costs 90 calendar
days prior to award or more than 90
calendar days with the prior approval
of the Federal awarding agency. All
pre-award costs are incurred at the recipient’s risk (i.e., the Federal awarding agency is under no obligation to reimburse such costs if for any reason
the recipient does not receive an award
or if the award is less than anticipated
and inadequate to cover such costs).
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General Services Administration
§ 105–72.306
(2) Initiate a one-time extension of
the expiration date of the award of up
to 12 months unless one or more of the
following conditions apply. For onetime extensions, the recipient must notify the Federal awarding agency in
writing with the supporting reasons
and revised expiration date at least 10
days before the expiration date specified in the award. This one-time extension may not be exercised merely for
the purpose of using unobligated balances.
(i) The terms and conditions of award
prohibit the extension.
(ii) The extension requires additional
Federal funds.
(iii) The extension involves any
change in the approved objectives or
scope of the project.
(3) Carry forward unobligated balances to subsequent funding periods.
(4) For awards that support research,
unless the Federal awarding agency
provides otherwise in the award or in
the agency’s regulations, the prior approval requirements described in paragraph (e) are automatically waived
(i.e., recipients need not obtain such
prior approvals) unless one of the conditions included in paragraph (e)(2) applies.
(f) The Federal awarding agency
may, at its option, restrict the transfer
of funds among direct cost categories
or programs, functions and activities
for awards in which the Federal share
of the project exceeds $100,000 and the
cumulative amount of such transfers
exceeds or is expected to exceed 10 percent of the total budget as last approved by the Federal awarding agency. No Federal awarding agency shall
permit a transfer that would cause any
Federal appropriation or part thereof
to be used for purposes other than
those consistent with the original intent of the appropriation.
(g) All other changes to nonconstruction budgets, except for the changes described in paragraph (j), do not require
prior approval.
(h) For construction awards, recipients shall request prior written approval promptly from Federal awarding
agencies for budget revisions whenever
paragraphs (h)(1), (2) or (3) of this section apply.
(1) The revision results from changes
in the scope or the objective of the
project or program.
(2) The need arises for additional
Federal funds to complete the project.
(3) A revision is desired which involves specific costs for which prior
written approval requirements may be
imposed consistent with applicable
OMB cost principles listed in § 105–
72.307.
(i) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.
(j) When a Federal awarding agency
makes an award that provides support
for both construction and nonconstruction work, the Federal awarding agency may require the recipient to request
prior approval from the Federal awarding agency before making any fund or
budget transfers between the two types
of work supported.
(k) For both construction and nonconstruction awards, Federal awarding
agencies shall require recipients to notify the Federal awarding agency in
writing promptly whenever the amount
of Federal authorized funds is expected
to exceed the needs of the recipient for
the project period by more than $5000
or five percent of the Federal award,
whichever is greater. This notification
shall not be required if an application
for additional funding is submitted for
a continuation award.
(l) When requesting approval for
budget revisions, recipients shall use
the budget forms that were used in the
application unless the Federal awarding agency indicates a letter of request
suffices.
(m) Within 30 calendar days from the
date of receipt of the request for budget revisions, Federal awarding agencies
shall review the request and notify the
recipient whether the budget revisions
have been approved. If the revision is
still under consideration at the end of
30 calendar days, the Federal awarding
agency shall inform the recipient in
writing of the date when the recipient
may expect the decision.
§ 105–72.306
Non-Federal audits.
(a) Recipients and subrecipients that
are institutions of higher education or
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§ 105–72.307
41 CFR Ch. 105 (7–1–16 Edition)
other non-profit organizations (including hospitals) shall be subject to the
audit requirements contained in the
Single Audit Act Amendments of 1996
(31 U.S.C. 7501–7507) and revised OMB
Circular A–133, ‘‘Audits of States,
Local Governments, and Non-Profit Organizations.’’
(b) State and local governments shall
be subject to the audit requirements
contained in the Single Audit Act
Amendments of 1996 (31 U.S.C. 7501–
7507) and revised OMB Circular A–133,
‘‘Audits of States, Local Governments,
and Non-Profit Organizations.’’
(c) For-profit hospitals not covered
by the audit provisions of revised OMB
Circular A–133 shall be subject to the
audit requirements of the Federal
awarding agencies.
(d) Commercial organizations shall
be subject to the audit requirements of
the Federal awarding agency or the
prime recipient as incorporated into
the award document.
[59 FR 47268, Sept. 15, 1994, as amended at 62
FR 45939, 45944, Aug. 29, 1997]
§ 105–72.307 Allowable costs.
For each kind of recipient, there is a
set of Federal principles for determining allowable costs. Allowability of
costs shall be determined in accordance with the cost principles applicable
to the entity incurring the costs. Thus,
allowability of costs incurred by State,
local or federally-recognized Indian
tribal governments is determined in
accordance with the provisions of OMB
Circular A–87, ‘‘Cost Principles for
State and Local Governments.’’ The allowability of costs incurred by nonprofit organizations is determined in
accordance with the provisions of OMB
Circular A–122, ‘‘Cost Principles for
Non-Profit Organizations.’’ The allowability of costs incurred by institutions
of higher education is determined in
accordance with the provisions of OMB
Circular A–21, ‘‘Cost Principles for
Educational Institutions.’’ The allowability of costs incurred by hospitals is
determined in accordance with the provisions of appendix E of 45 CFR part 74,
‘‘Principles for Determining Costs Applicable to Research and Development
Under Grants and Contracts with Hospitals.’’ The allowability of costs incurred by commercial organizations
and those non-profit organizations listed in Attachment C to Circular A–122 is
determined in accordance with the provisions of the Federal Acquisition Regulation (FAR) at 48 CFR part 31.
§ 105–72.308 Period of availability of
funds.
Where a funding period is specified, a
recipient may charge to the grant only
allowable costs resulting from obligations incurred during the funding period and any pre-award costs authorized by the Federal awarding agency.
Subpart 105–72.40—Post-Award
Requirements/Property Standards
§ 105–72.400 Purpose
of
property
standards.
Sections 105–72.401 through 105–72.407
set forth uniform standards governing
management and disposition of property furnished by the Federal Government whose cost was charged to a
project supported by a Federal award.
Federal awarding agencies shall require recipients to observe these standards under awards and shall not impose
additional requirements, unless specifically required by Federal statute. The
recipient may use its own property
management standards and procedures
provided it observes the provisions of
§ 105–72.401 through § 105–72.407.
§ 105–72.401 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance coverage
for real property and equipment acquired with Federal funds as provided
to property owned by the recipient.
Federally-owned property need not be
insured unless required by the terms
and conditions of the award.
§ 105–72.402 Real property.
Each Federal awarding agency shall
prescribe requirements for recipients
concerning the use and disposition of
real property acquired in whole or in
part under awards. Unless otherwise
provided by statute, such requirements, at a minimum, shall contain
the following.
(a) Title to real property shall vest in
the recipient subject to the condition
that the recipient shall use the real
property for the authorized purpose of
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General Services Administration
§ 105–72.404
the project as long as it is needed and
shall not encumber the property without approval of the Federal awarding
agency.
(b) The recipient shall obtain written
approval by the Federal awarding agency for the use of real property in other
federally-sponsored projects when the
recipient determines that the property
is no longer needed for the purpose of
the original project. Use in other
projects shall be limited to those under
federally-sponsored
projects
(i.e.,
awards) or programs that have purposes consistent with those authorized
for support by the Federal awarding
agency.
(c) When the real property is no
longer needed as provided in paragraphs (a) and (b), the recipient shall
request disposition instructions from
the Federal awarding agency or its successor Federal awarding agency. The
Federal awarding agency shall observe
one or more of the following disposition instructions.
(1) The recipient may be permitted to
retain title without further obligation
to the Federal Government after it
compensates the Federal Government
for that percentage of the current fair
market value of the property attributable to the Federal participation in
the project.
(2) The recipient may be directed to
sell the property under guidelines provided by the Federal awarding agency
and pay the Federal Government for
that percentage of the current fair
market value of the property attributable to the Federal participation in
the project (after deducting actual and
reasonable selling and fix-up expenses,
if any, from the sales proceeds). When
the recipient is authorized or required
to sell the property, proper sales procedures shall be established that provide
for competition to the extent practicable and result in the highest possible return.
(3) The recipient may be directed to
transfer title to the property to the
Federal Government or to an eligible
third party provided that, in such
cases, the recipient shall be entitled to
compensation for its attributable percentage of the current fair market
value of the property.
§ 105–72.403 Federally-owned and exempt property.
(a) Federally-owned property. (1) Title
to federally-owned property remains
vested in the Federal Government. Recipients shall submit annually an inventory listing of federally-owned
property in their custody to the Federal awarding agency. Upon completion
of the award or when the property is no
longer needed, the recipient shall report the property to the Federal awarding agency for further Federal agency
utilization.
(2) If the Federal awarding agency
has no further need for the property, it
shall be declared excess and reported to
the General Services Administration,
unless the Federal awarding agency
has statutory authority to dispose of
the property by alternative methods
(e.g., the authority provided by the
Federal Technology Transfer Act (15
U.S.C. 3710 (I)) to donate research
equipment to educational and non-profit organizations in accordance with
E.O. 12821, ‘‘Improving Mathematics
and Science Education in Support of
the National Education Goals.’’) Appropriate instructions shall be issued
to the recipient by the Federal awarding agency.
(b) Exempt property. When statutory
authority exists, the Federal awarding
agency has the option to vest title to
property acquired with Federal funds
in the recipient without further obligation to the Federal Government and
under conditions the Federal awarding
agency considers appropriate. Such
property is ‘‘exempt property.’’ Should
a Federal awarding agency not establish conditions, title to exempt property upon acquisition shall vest in the
recipient without further obligation to
the Federal Government.
§ 105–72.404 Equipment.
(a) Title to equipment acquired by a
recipient with Federal funds shall vest
in the recipient, subject to conditions
of this section.
(b) The recipient shall not use equipment acquired with Federal funds to
provide services to non-Federal outside
organizations for a fee that is less than
private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long
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§ 105–72.404
41 CFR Ch. 105 (7–1–16 Edition)
as the Federal Government retains an
interest in the equipment.
(c) The recipient shall use the equipment in the project or program for
which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the
property without approval of the Federal awarding agency. When no longer
needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority:
(1) Activities sponsored by the Federal awarding agency which funded the
original project, then
(2) Activities sponsored by other Federal awarding agencies.
(d) During the time that equipment
is used on the project or program for
which it was acquired, the recipient
shall make it available for use on other
projects or programs if such other use
will not interfere with the work on the
project or program for which the equipment was originally acquired. First
preference for such other use shall be
given to other projects or programs
sponsored by the Federal awarding
agency that financed the equipment;
second preference shall be given to
projects or programs sponsored by
other Federal awarding agencies. If the
equipment is owned by the Federal
Government, use on other activities
not sponsored by the Federal Government shall be permissible if authorized
by the Federal awarding agency. User
charges shall be treated as program income.
(e) When acquiring replacement
equipment, the recipient may use the
equipment to be replaced as trade-in or
sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the Federal awarding agency.
(f) The recipient’s property management standards for equipment acquired
with Federal funds and federally-owned
equipment shall include all of the following.
(1) Equipment records shall be maintained accurately and shall include the
following information.
(i) A description of the equipment.
(ii) Manufacturer’s serial number,
model number, Federal stock number,
national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal Government.
(v) Acquisition date (or date received, if the equipment was furnished
by the Federal Government) and cost.
(vi) Information from which one can
calculate the percentage of Federal
participation in the cost of the equipment (not applicable to equipment furnished by the Federal Government).
(vii) Location and condition of the
equipment and the date the information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and sales price
or the method used to determine current fair market value where a recipient compensates the Federal awarding
agency for its share.
(2) Equipment owned by the Federal
Government shall be identified to indicate Federal ownership.
(3) A physical inventory of equipment
shall be taken and the results reconciled with the equipment records at
least once every two years. Any differences between quantities determined by the physical inspection and
those shown in the accounting records
shall be investigated to determine the
causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current utilization, and continued need for the
equipment.
(4) A control system shall be in effect
to insure adequate safeguards to prevent loss, damage, or theft of the
equipment. Any loss, damage, or theft
of equipment shall be investigated and
fully documented; if the equipment was
owned by the Federal Government, the
recipient shall promptly notify the
Federal awarding agency.
(5) Adequate maintenance procedures
shall be implemented to keep the
equipment in good condition.
(6) Where the recipient is authorized
or required to sell the equipment, proper sales procedures shall be established
which provide for competition to the
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General Services Administration
§ 105–72.405
extent practicable and result in the
highest possible return.
(g) When the recipient no longer
needs the equipment, the equipment
may be used for other activities in accordance with the following standards.
For equipment with a current per unit
fair market value of $5000 or more, the
recipient may retain the equipment for
other uses provided that compensation
is made to the original Federal awarding agency or its successor. The
amount of compensation shall be computed by applying the percentage of
Federal participation in the cost of the
original project or program to the current fair market value of the equipment. If the recipient has no need for
the equipment, the recipient shall request disposition instructions from the
Federal awarding agency. The Federal
awarding
agency
shall
determine
whether the equipment can be used to
meet the agency’s requirements. If no
requirement exists within that agency,
the availability of the equipment shall
be reported to the General Services Administration by the Federal awarding
agency to determine whether a requirement for the equipment exists in other
Federal agencies. The Federal awarding agency shall issue instructions to
the recipient no later than 120 calendar
days after the recipient’s request and
the following procedures shall govern.
(1) If so instructed or if disposition
instructions are not issued within 120
calendar days after the recipient’s request, the recipient shall sell the
equipment and reimburse the Federal
awarding agency an amount computed
by applying to the sales proceeds the
percentage of Federal participation in
the cost of the original project or program. However, the recipient shall be
permitted to deduct and retain from
the Federal share $500 or ten percent of
the proceeds, whichever is less, for the
recipient’s selling and handling expenses.
(2) If the recipient is instructed to
ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which
is computed by applying the percentage of the recipient’s participation in
the cost of the original project or program to the current fair market value
of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to
otherwise dispose of the equipment, the
recipient shall be reimbursed by the
Federal awarding agency for such costs
incurred in its disposition.
(4) The Federal awarding agency may
reserve the right to transfer the title
to the Federal Government or to a
third party named by the Federal Government when such third party is otherwise eligible under existing statutes.
Such transfer shall be subject to the
following standards.
(i) The equipment shall be appropriately identified in the award or otherwise made known to the recipient in
writing.
(ii) The Federal awarding agency
shall issue disposition instructions
within 120 calendar days after receipt
of a final inventory. The final inventory shall list all equipment acquired
with grant funds and federally-owned
equipment. If the Federal awarding
agency fails to issue disposition instructions within the 120 calendar day
period, the recipient shall apply the
standards of this section, as appropriate.
(iii) When the Federal awarding
agency exercises its right to take title,
the equipment shall be subject to the
provisions for federally-owned equipment.
§ 105–72.405 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in the recipient upon acquisition. If there is a
residual inventory of unused supplies
exceeding $5000 in total aggregate
value upon termination or completion
of the project or program and the supplies are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies
for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of
compensation shall be computed in the
same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal funds to
provide services to non-Federal outside
organizations for a fee that is less than
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§ 105–72.406
41 CFR Ch. 105 (7–1–16 Edition)
private companies charge for equivalent services, unless specifically authorized by Federal statute as long as
the Federal Government retains an interest in the supplies.
§ 105–72.406 Intangible property.
(a) The recipient may copyright any
work that is subject to copyright and
was developed, or for which ownership
was purchased, under an award. The
Federal awarding agency(ies) reserve a
royalty-free, nonexclusive and irrevocable right to reproduce, publish, or
otherwise use the work for Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing patents and
inventions, including governmentwide
regulations issued by the Department
of Commerce at 37 CFR part 401,
‘‘Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants,
Contracts and Cooperative Agreements.’’
(c) Unless waived by the Federal
awarding agency, the Federal Government has the right to paragraph (c)(1)
and (2) of this section.
(1) Obtain, reproduce, publish or otherwise use the data first produced
under an award.
(2) Authorize others to receive, reproduce, publish, or otherwise use such
data for Federal purposes.
(d) Title to intangible property and
debt instruments acquired under an
award or subaward vests upon acquisition in the recipient. The recipient
shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the Federal
awarding agency. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the
provisions of § 105–72.404(g).
§ 105–72.407 Property trust relationship.
Real property, equipment, intangible
property and debt instruments that are
acquired or improved with Federal
funds shall be held in trust by the recipient as trustee for the beneficiaries
of the project or program under which
the property was acquired or improved.
Agencies may require recipients to
record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with Federal funds
and that use and disposition conditions
apply to the property.
Subpart
105–72.50—Post-Award
Requirements/Procurement
Standards
§ 105–72.500 Purpose of procurement
standards.
Sections 105–72.501 through 105–72.508
set forth standards for use by recipients in establishing procedures for the
procurement of supplies and other expendable property, equipment, real
property and other services with Federal funds. These standards are furnished to ensure that such materials
and services are obtained in an effective manner and in compliance with
the provisions of applicable Federal
statutes and executive orders. No additional procurement standards or requirements shall be imposed by the
Federal awarding agencies upon recipients, unless specifically required by
Federal statute or executive order or
approved by OMB.
§ 105–72.501 Recipient responsibilities.
The standards contained in this section do not relieve the recipient of the
contractual responsibilities arising
under its contract(s). The recipient is
the responsible authority, without recourse to the Federal awarding agency,
regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements
entered into in support of an award or
other agreement. This includes disputes, claims, protests of award, source
evaluation or other matters of a contractual nature. Matters concerning
violation of statute are to be referred
to such Federal, State or local authority as may have proper jurisdiction.
§ 105–72.502 Codes of conduct.
The recipient shall maintain written
standards of conduct governing the
performance of its employees engaged
in the award and administration of
contracts. No employee, officer, or
agent shall participate in the selection,
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General Services Administration
§ 105–72.504
award, or administration of a contract
supported by Federal funds if a real or
apparent conflict of interest would be
involved. Such a conflict would arise
when the employee, officer, or agent,
any member of his or her immediate
family, his or her partner, or an organization which employs or is about to
employ any of the parties indicated
herein, has a financial or other interest
in the firm selected for an award. The
officers, employees, and agents of the
recipient shall neither solicit nor accept gratuities, favors, or anything of
monetary value from contractors, or
parties to subagreements. However, recipients may set standards for situations in which the financial interest is
not substantial or the gift is an unsolicited item of nominal value. The
standards of conduct shall provide for
disciplinary actions to be applied for
violations of such standards by officers, employees, or agents of the recipient.
§ 105–72.503 Competition.
All procurement transactions shall
be conducted in a manner to provide,
to the maximum extent practical, open
and free competition. The recipient
shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that
may restrict or eliminate competition
or otherwise restrain trade. In order to
ensure objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or
draft
specifications,
requirements,
statements of work, invitations for
bids and/or requests for proposals shall
be excluded from competing for such
procurements. Awards shall be made to
the bidder or offeror whose bid or offer
is responsive to the solicitation and is
most advantageous to the recipient,
price, quality and other factors considered. Solicitations shall clearly set
forth all requirements that the bidder
or offeror shall fulfill in order for the
bid or offer to be evaluated by the recipient. Any and all bids or offers may
be rejected when it is in the recipient’s
interest to do so.
§ 105–72.504 Procurement procedures.
(a) All recipients shall establish written procurement procedures. These
procedures shall provide for, at a minimum, that paragraphs (a)(1), (2) and
(3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is
made of lease and purchase alternatives to determine which would be
the most economical and practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the following.
(i) A clear and accurate description
of the technical requirements for the
material, product or service to be procured. In competitive procurements,
such a description shall not contain
features which unduly restrict competition.
(ii) Requirements which the bidder/
offeror must fulfill and all other factors to be used in evaluating bids or
proposals.
(iii) A description, whenever practicable, of technical requirements in
terms of functions to be performed or
performance required, including the
range of acceptable characteristics or
minimum acceptable standards.
(iv) The specific features of ‘‘brand
name or equal’’ descriptions that bidders are required to meet when such
items are included in the solicitation.
(v) The acceptance, to the extent
practicable and economically feasible,
of products and services dimensioned in
the metric system of measurement.
(vi) Preference, to the extent practicable and economically feasible, for
products and services that conserve
natural resources and protect the environment and are energy efficient.
(b) Positive efforts shall be made by
recipients to utilize small businesses,
minority-owned firms, and women’s
business enterprises, whenever possible. Recipients of Federal awards
shall take all of the following steps to
further this goal.
(1) Ensure that small businesses, minority-owned firms, and women’s business enterprises are used to the fullest
extent practicable.
(2) Make information on forthcoming
opportunities available and arrange
timeframes for purchases and contracts
to encourage and facilitate participation by small businesses, minority-
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§ 105–72.505
41 CFR Ch. 105 (7–1–16 Edition)
owned firms, and women’s business enterprises.
(3) Consider in the contract process
whether firms competing for larger
contracts intend to subcontract with
small
businesses,
minority-owned
firms, and women’s business enterprises.
(4) Encourage contracting with consortiums of small businesses, minorityowned firms and women’s business enterprises when a contract is too large
for one of these firms to handle individually.
(5) Use the services and assistance, as
appropriate, of such organizations as
the Small Business Administration and
the Department of Commerce’s Minority Business Development Agency in
the solicitation and utilization of
small businesses, minority-owned firms
and women’s business enterprises.
(c) The type of procuring instruments
used (e.g., fixed price contracts, cost
reimbursable contracts, purchase orders, and incentive contracts) shall be
determined by the recipient but shall
be appropriate for the particular procurement and for promoting the best
interest of the program or project involved. The ‘‘cost-plus-a-percentage-ofcost’’ or ‘‘percentage of construction
cost’’ methods of contracting shall not
be used.
(d) Contracts shall be made only with
responsible contractors who possess
the potential ability to perform successfully under the terms and conditions of the proposed procurement.
Consideration shall be given to such
matters as contractor integrity, record
of past performance, financial and
technical resources or accessibility to
other necessary resources. In certain
circumstances, contracts with certain
parties are restricted by agencies’ implementation of E.O.s 12549 and 12689,
‘‘Debarment and Suspension.’’
(e) Recipients shall, on request, make
available for the Federal awarding
agency, pre-award review and procurement documents, such as request for
proposals or invitations for bids, independent cost estimates, etc., when any
of the following conditions apply.
(1) A recipient’s procurement procedures or operation fails to comply with
the procurement standards in the Fed-
eral awarding agency’s implementation
of this regulation.
(2) The procurement is expected to
exceed the small purchase threshold
fixed at 41 U.S.C. 403 (11) (currently
$25,000) and is to be awarded without
competition or only one bid or offer is
received in response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a ‘‘brand name’’
product.
(4) The proposed award over the
small purchase threshold is to be
awarded to other than the apparent
low bidder under a sealed bid procurement.
(5) A proposed contract modification
changes the scope of a contract or increases the contract amount by more
than the amount of the small purchase
threshold.
§ 105–72.505
Cost and price analysis.
Some form of cost or price analysis
shall be made and documented in the
procurement files in connection with
every procurement action. Price analysis may be accomplished in various
ways, including the comparison of
price quotations submitted, market
prices and similar indicia, together
with discounts. Cost analysis is the review and evaluation of each element of
cost to determine reasonableness,
allocability and allowability.
§ 105–72.506
Procurement records.
Procurement records and files for
purchases in excess of the small purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or offers
are not obtained, and
(c) Basis for award cost or price.
§ 105–72.507
Contract administration.
A system for contract administration
shall be maintained to ensure contractor conformance with the terms,
conditions and specifications of the
contract and to ensure adequate and
timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met
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General Services Administration
§ 105–72.600
the terms, conditions and specifications of the contract.
§ 105–72.508 Contract provisions.
The recipient shall include, in addition to provisions to define a sound and
complete agreement, the following provisions in all contracts. The following
provisions shall also be applied to subcontracts.
(a) Contracts in excess of the small
purchase threshold shall contain contractual provisions or conditions that
allow for administrative, contractual,
or legal remedies in instances in which
a contractor violates or breaches the
contract terms, and provide for such
remedial actions as may be appropriate.
(b) All contracts in excess of the
small purchase threshold shall contain
suitable provisions for termination by
the recipient, including the manner by
which termination shall be effected
and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may
be terminated for default as well as
conditions where the contract may be
terminated because of circumstances
beyond the control of the contractor.
(c) Except as otherwise required by
statute, an award that requires the
contracting (or subcontracting) for
construction or facility improvements
shall provide for the recipient to follow
its own requirements relating to bid
guarantees, performance bonds, and
payment bonds unless the construction
contract
or
subcontract
exceeds
$100,000. For those contracts or subcontracts exceeding $100,000, the Federal awarding agency may accept the
bonding policy and requirements of the
recipient, provided the Federal awarding agency has made a determination
that the Federal Government’s interest
is adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows.
(1) A bid guarantee from each bidder
equivalent to five percent of the bid
price. The ‘‘bid guarantee’’ shall consist of a firm commitment such as a
bid bond, certified check, or other negotiable instrument accompanying a
bid as assurance that the bidder shall,
upon acceptance of his bid, execute
such contractual documents as may be
required within the time specified.
(2) A performance bond on the part of
the contractor for 100 percent of the
contract price. A ‘‘performance bond’’
is one executed in connection with a
contract to secure fulfillment of all the
contractor’s obligations under such
contract.
(3) A payment bond on the part of the
contractor for 100 percent of the contract price. A ‘‘payment bond’’ is one
executed in connection with a contract
to assure payment as required by statute of all persons supplying labor and
material in the execution of the work
provided for in the contract.
(4) Where bonds are required in the
situations described herein, the bonds
shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part
223, ‘‘Surety Companies Doing Business
with the United States.’’
(d) All negotiated contracts (except
those for less than the small purchase
threshold) awarded by recipients shall
include a provision to the effect that
the recipient, the Federal awarding
agency, the Comptroller General of the
United States, or any of their duly authorized representatives, shall have access to any books, documents, papers
and records of the contractor which are
directly pertinent to a specific program for the purpose of making audits,
examinations,
excerpts
and
transcriptions.
(e) All contracts, including small
purchases, awarded by recipients and
their contractors shall contain the procurement provisions of appendix A to
this part, as applicable.
Subpart
105–72.60—Post-Award
Requirements/Reports
and
Records
§ 105–72.600 Purpose of reports and
records.
Sections 105–72.601 through 105–72.603
set forth the procedures for monitoring
and reporting on the recipient’s financial and program performance and the
necessary standard reporting forms.
They also set forth record retention requirements.
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§ 105–72.601
41 CFR Ch. 105 (7–1–16 Edition)
§ 105–72.601 Monitoring and reporting
program performance.
(a) Recipients are responsible for
managing and monitoring each project,
program, subaward, function or activity supported by the award. Recipients
shall monitor subawards to ensure subrecipients have met the audit requirements as delineated in § 105–72.306.
(b) The Federal awarding agency
shall prescribe the frequency with
which the performance reports shall be
submitted. Except as provided in paragraph (f) of this section, performance
reports shall not be required more frequently than quarterly or, less frequently than annually. Annual reports
shall be due 90 calendar days after the
grant year; quarterly or semiannual reports shall be due 30 days after the reporting period. The Federal awarding
agency may require annual reports before the anniversary dates of multiple
year awards in lieu of these requirements. The final performance reports
are due 90 calendar days after the expiration or termination of the award.
(c) If inappropriate, a final technical
or performance report shall not be required after completion of the project.
(d) When required, performance reports shall generally contain, for each
award, brief information on each of the
following.
(1) A comparison of actual accomplishments with the goals and objectives established for the period, the
findings of the investigator, or both.
Whenever appropriate and the output
of programs or projects can be readily
quantified, such quantitative data
should be related to cost data for computation of unit costs.
(2) Reasons why established goals
were not met, if appropriate.
(3) Other pertinent information including, when appropriate, analysis
and explanation of cost overruns or
high unit costs.
(e) Recipients shall not be required to
submit more than the original and two
copies of performance reports.
(f) Recipients shall immediately notify the Federal awarding agency of developments that have a significant impact on the award-supported activities.
Also, notification shall be given in the
case of problems, delays, or adverse
conditions which materially impair the
ability to meet the objectives of the
award. This notification shall include a
statement of the action taken or contemplated, and any assistance needed
to resolve the situation.
(g) Federal awarding agencies may
make site visits, as needed.
(h) Federal awarding agencies shall
comply with clearance requirements of
5 CFR part 1320 when requesting performance data from recipients.
§ 105–72.602 Financial reporting.
(a) The following forms or such other
forms as may be approved by OMB are
authorized for obtaining financial information from recipients.
(1) SF–269 or SF–269A, Financial Status
Report. (i) Each Federal awarding agency shall require recipients to use the
SF–269 or SF–269A to report the status
of funds for all nonconstruction
projects or programs. A Federal awarding agency may, however, have the option of not requiring the SF–269 or SF–
269A when the SF–270, Request for Advance or Reimbursement, or SF–272,
Report of Federal Cash Transactions, is
determined to provide adequate information to meet its needs, except that a
final SF–269 or SF–269A shall be required at the completion of the project
when the SF–270 is used only for advances.
(ii) The Federal awarding agency
shall prescribe whether the report shall
be on a cash or accrual basis. If the
Federal awarding agency requires accrual information and the recipient’s
accounting records are not normally
kept on the accrual basis, the recipient
shall not be required to convert its accounting system, but shall develop
such accrual information through best
estimates based on an analysis of the
documentation on hand.
(iii) The Federal awarding agency
shall determine the frequency of the
Financial Status Report for each
project or program, considering the
size and complexity of the particular
project or program. However, the report shall not be required more frequently than quarterly or less frequently than annually. A final report
shall be required at the completion of
the agreement.
(iv) The Federal awarding agency
shall require recipients to submit the
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General Services Administration
§ 105–72.603
SF–269 or SF–269A (an original and no
more than two copies) no later than 30
days after the end of each specified reporting period for quarterly and semiannual reports, and 90 calendar days
for annual and final reports. Extensions of reporting due dates may be approved by the Federal awarding agency
upon request of the recipient.
(2) SF–272, Report of Federal Cash
Transactions. (i) When funds are advanced to recipients the Federal awarding agency shall require each recipient
to submit the SF–272 and, when necessary, its continuation sheet, SF–272a.
The Federal awarding agency shall use
this report to monitor cash advanced
to recipients and to obtain disbursement information for each agreement
with the recipients.
(ii) Federal awarding agencies may
require forecasts of Federal cash requirements in the ‘‘Remarks’’ section
of the report.
(iii) When practical and deemed necessary, Federal awarding agencies may
require recipients to report in the
‘‘Remarks’’ section the amount of cash
advances received in excess of three
days. Recipients shall provide short
narrative explanations of actions taken
to reduce the excess balances.
(iv) Recipients shall be required to
submit not more than the original and
two copies of the SF–272, 15 calendar
days following the end of each quarter.
The Federal awarding agencies may require a monthly report from those recipients receiving advances totaling $1
million or more per year.
(v) Federal awarding agencies may
waive the requirement for submission
of the SF–272 for any one of the following reasons:
(A) When monthly advances do not
exceed $25,000 per recipient, provided
that such advances are monitored
through other forms contained in this
section;
(B) If, in the Federal awarding agency’s opinion, the recipient’s accounting
controls are adequate to minimize excessive Federal advances; or,
(C) When the electronic payment
mechanisms provide adequate data.
(b) When the Federal awarding agency needs additional information or
more frequent reports, the following
shall be observed.
(1) When additional information is
needed to comply with legislative requirements, Federal awarding agencies
shall issue instructions to require recipients to submit such information
under the ‘‘Remarks’’ section of the reports.
(2) When a Federal awarding agency
determines that a recipient’s accounting system does not meet the standards
in § 105–72.301, additional pertinent information to further monitor awards
may be obtained upon written notice to
the recipient until such time as the
system is brought up to standard. The
Federal awarding agency, in obtaining
this information, shall comply with report clearance requirements of 5 CFR
part 1320.
(3) Federal awarding agencies are encouraged to shade out any line item on
any report if not necessary.
(4) Federal awarding agencies may
accept the identical information from
the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats.
(5) Federal awarding agencies may
provide computer or electronic outputs
to recipients when such expedites or
contributes to the accuracy of reporting.
§ 105–72.603 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and access
to records for awards to recipients.
Federal awarding agencies shall not
impose any other record retention or
access requirements upon recipients.
(b) Financial records, supporting documents, statistical records, and all
other records pertinent to an award
shall be retained for a period of three
years from the date of submission of
the final expenditure report or, for
awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual financial report, as authorized by the Federal awarding agency. The only exceptions are the following.
(1) If any litigation, claim, or audit is
started before the expiration of the 3year period, the records shall be retained until all litigation, claims or
audit findings involving the records
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§ 105–72.700
41 CFR Ch. 105 (7–1–16 Edition)
have been resolved and final action
taken.
(2) Records for real property and
equipment acquired with Federal funds
shall be retained for 3 years after final
disposition.
(3) When records are transferred to or
maintained by the Federal awarding
agency, the 3-year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost
allocations plans, etc., as specified in
paragraph (g) of this section.
(c) Copies of original records may be
substituted for the original records if
authorized by the Federal awarding
agency.
(d) The Federal awarding agency
shall request transfer of certain
records to its custody from recipients
when it determines that the records
possess long term retention value.
However, in order to avoid duplicate
recordkeeping, a Federal awarding
agency may make arrangements for recipients to retain any records that are
continuously needed for joint use.
(e) The Federal awarding agency, the
Inspector General, Comptroller General of the United States, or any of
their duly authorized representatives,
have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the
awards, in order to make audits, examinations, excerpts, transcripts and
copies of such documents. This right
also includes timely and reasonable access to a recipient’s personnel for the
purpose of interview and discussion related to such documents. The rights of
access in this paragraph are not limited to the required retention period,
but shall last as long as records are retained.
(f) Unless required by statute, no
Federal awarding agency shall place
restrictions on recipients that limit
public access to the records of recipients that are pertinent to an award, except when the Federal awarding agency
can demonstrate that such records
shall be kept confidential and would
have been exempted from disclosure
pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records
had belonged to the Federal awarding
agency.
(g) Indirect cost rate proposals, cost
allocations plans, etc. Paragraphs (g)(1)
and (g)(2) apply to the following types
of documents, and their supporting
records: indirect cost rate computations or proposals, cost allocation
plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable
(such as computer usage chargeback
rates or composite fringe benefit
rates).
(1) If submitted for negotiation. If
the recipient submits to the Federal
awarding agency or the subrecipient
submits to the recipient the proposal,
plan, or other computation to form the
basis for negotiation of the rate, then
the 3-year retention period for its supporting records starts on the date of
such submission.
(2) If not submitted for negotiation.
If the recipient is not required to submit to the Federal awarding agency or
the subrecipient is not required to submit to the recipient the proposal, plan,
or other computation for negotiation
purposes, then the 3-year retention period for the proposal, plan, or other
computation and its supporting records
starts at the end of the fiscal year (or
other accounting period) covered by
the proposal, plan, or other computation.
Subpart
105–72.70—Post-Award
Requirements/Termination
and Enforcement
§ 105–72.700 Purpose
and enforcement.
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termination
Section 105–72.701 and § 105–72.702 set
forth uniform suspension, termination
and enforcement procedures.
§ 105–72.701
Termination.
(a) Awards may be terminated in
whole or in part only if paragraph
(a)(1), (2) or (3) of this section apply.
(1) By the Federal awarding agency,
if a recipient materially fails to comply with the terms and conditions of an
award.
(2) By the Federal awarding agency
with the consent of the recipient, in
which case the two parties shall agree
upon the termination conditions, including the effective date and, in the
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General Services Administration
§ 105–72.801
case of partial termination, the portion
to be terminated.
(3) By the recipient upon sending to
the Federal awarding agency written
notification setting forth the reasons
for such termination, the effective
date, and, in the case of partial termination, the portion to be terminated.
However, if the Federal awarding agency determines in the case of partial
termination that the reduced or modified portion of the grant will not accomplish the purposes for which the
grant was made, it may terminate the
grant in its entirety under either paragraphs (a) (1) or (2).
(b) If costs are allowed under an
award, the responsibilities of the recipient referred to in § 105–72.801(a), including those for property management
as applicable, shall be considered in the
termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate.
§ 105–72.702 Enforcement.
(a) Remedies for noncompliance. If a recipient materially fails to comply with
the terms and conditions of an award,
whether stated in a Federal statute,
regulation, assurance, application, or
notice of award, the Federal awarding
agency may, in addition to imposing
any of the special conditions outlined
in § 105–72.204, take one or more of the
following actions, as appropriate in the
circumstances.
(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe
enforcement action by the Federal
awarding agency.
(2) Disallow (that is, deny both use of
funds and any applicable matching
credit for) all or part of the cost of the
activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the
project or program.
(5) Take other remedies that may be
legally available.
(b) Hearings and appeals. In taking an
enforcement action, the awarding
agency shall provide the recipient an
opportunity for hearing, appeal, or
other administrative proceeding to
which the recipient is entitled under
any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of a recipient resulting
from obligations incurred by the recipient during a suspension or after
termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice
of suspension or termination or subsequently. Other recipient costs during
suspension or after termination which
are necessary and not reasonably
avoidable are allowable if paragraph (c)
(1) and (2) of this section apply.
(1) The costs result from obligations
which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable.
(2) The costs would be allowable if
the award were not suspended or expired normally at the end of the funding period in which the termination
takes effect.
(d) Relationship to debarment and suspension. The enforcement remedies
identified in this section, including
suspension and termination, do not
preclude a recipient from being subject
to debarment and suspension under
E.O.s 12549 and 12689 and the Federal
awarding agency implementing regulations (see § 105–72.203).
Subpart 105–72.80—After-theAward Requirements
§ 105–72.800 Purpose.
Sections 105–72.801 through 105–72.803
contain closeout procedures and other
procedures for subsequent disallowances and adjustments.
§ 105–72.801 Closeout procedures.
(a) Recipients shall submit, within 90
calendar days after the date of completion of the award, all financial, performance, and other reports as required
by the terms and conditions of the
award. The Federal awarding agency
may approve extensions when requested by the recipient.
(b) Unless the Federal awarding agency authorizes an extension, a recipient
shall liquidate all obligations incurred
under the award not later than 90 calendar days after the funding period or
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§ 105–72.802
41 CFR Ch. 105 (7–1–16 Edition)
the date of completion as specified in
the terms and conditions of the award
or in agency implementing instructions.
(c) The Federal awarding agency
shall make prompt payments to a recipient for allowable reimbursable
costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated cash
that the Federal awarding agency has
advanced or paid and that is not authorized to be retained by the recipient
for use in other projects. OMB Circular
A–129 governs unreturned amounts that
become delinquent debts.
(e) When authorized by the terms and
conditions of the award, the Federal
awarding agency shall make a settlement for any upward or downward adjustments to the Federal share of costs
after closeout reports are received.
(f) The recipient shall account for
any real and personal property acquired with Federal funds or received
from the Federal Government in accordance with § 105–72.401 through § 105–
72.407.
(g) In the event a final audit has not
been performed prior to the closeout of
an award, the Federal awarding agency
shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final
audit.
§ 105–72.802 Subsequent adjustments
and continuing responsibilities.
(a) The closeout of an award does not
affect any of the following.
(1) The right of the Federal awarding
agency to disallow costs and recover
funds on the basis of a later audit or
other review.
(2) The obligation of the recipient to
return any funds due as a result of
later refunds, corrections, or other
transactions.
(3) Audit requirements in § 105–72.306.
(4) Property management requirements in §§ 105–72.401 through 105–72.407.
(5) Records retention as required in
§ 105–72.603.
(b) After closeout of an award, a relationship created under an award may
be modified or ended in whole or in
part with the consent of the Federal
awarding agency and the recipient,
provided the responsibilities of the recipient referred to in § 105–72.803(a), including those for property management
as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate.
§ 105–72.803 Collection
of
amounts
due.
(a) Any funds paid to a recipient in
excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of
the award constitute a debt to the Federal Government. If not paid within a
reasonable period after the demand for
payment, the Federal awarding agency
may reduce the debt by paragraph (a)
(1), (2) or (3) of this section.
(1) Making an administrative offset
against other requests for reimbursements.
(2) Withholding advance payments
otherwise due to the recipient.
(3) Taking other action permitted by
statute.
(b) Except as otherwise provided by
law, the Federal awarding agency shall
charge interest on an overdue debt in
accordance with 4 CFR Chapter II, Federal Claims Collection Standards.
APPENDIX A TO PART 105–72—CONTRACT
PROVISIONS
All contracts, awarded by a recipient including small purchases, shall contain the
following provisions as applicable:
1. Equal Employment Opportunity—All contracts shall contain a provision requiring
compliance with E.O. 11246, ‘‘Equal Employment Opportunity,’’ as amended by E.O.
11375, ‘‘Amending Executive Order 11246 Relating to Equal Employment Opportunity,’’
and as supplemented by regulations at 41
CFR part 60, ‘‘Office of Federal Contract
Compliance Programs, Equal Employment
Opportunity, Department of Labor.’’
2. Copeland ‘‘Anti-Kickback’’ Act (18 U.S.C.
874 and 40 U.S.C. 276c)—All contracts and subgrants in excess of $2000 for construction or
repair awarded by recipients and subrecipients shall include a provision for compliance
with the Copeland ‘‘Anti-Kickback’’ Act (18
U.S.C. 874), as supplemented by Department
of Labor regulations (29 CFR part 3, ‘‘Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in
Part by Loans or Grants from the United
States’’). The Act provides that each contractor or subrecipient shall be prohibited
from inducing, by any means, any person
employed in the construction, completion, or
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General Services Administration
Pt. 105–74
repair of public work, to give up any part of
the compensation to which he is otherwise
entitled. The recipient shall report all suspected or reported violations to the Federal
awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C.
276a to a–7)—When required by Federal program legislation, all construction contracts
awarded by the recipients and subrecipients
of more than $2000 shall include a provision
for compliance with the Davis-Bacon Act (40
U.S.C. 276a to a–7) and as supplemented by
Department of Labor regulations (29 CFR
part 5, ‘‘Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction’’). Under
this Act, contractors shall be required to pay
wages to laborers and mechanics at a rate
not less than the minimum wages specified
in a wage determination made by the Secretary of Labor. In addition, contractors
shall be required to pay wages not less than
once a week. The recipient shall place a copy
of the current prevailing wage determination
issued by the Department of Labor in each
solicitation and the award of a contract shall
be conditioned upon the acceptance of the
wage determination. The recipient shall report all suspected or reported violations to
the Federal awarding agency.
4. Contract Work Hours and Safety Standards
Act (40 U.S.C. 327–333)—Where applicable, all
contracts awarded by recipients in excess of
$2000 for construction contracts and in excess of $2500 for other contracts that involve
the employment of mechanics or laborers
shall include a provision for compliance with
Sections 102 and 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C.
327–333), as supplemented by Department of
Labor regulations (29 CFR part 5). Under
Section 102 of the Act, each contractor shall
be required to compute the wages of every
mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of
the standard work week is permissible provided that the worker is compensated at a
rate of not less than 11⁄2 times the basic rate
of pay for all hours worked in excess of 40
hours in the work week. Section 107 of the
Act is applicable to construction work and
provides that no laborer or mechanic shall be
required to work in surroundings or under
working conditions which are unsanitary,
hazardous or dangerous. These requirements
do not apply to the purchases of supplies or
materials or articles ordinarily available on
the open market, or contracts for transportation or transmission of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement—Contracts or agreements
for the performance of experimental, developmental, or research work shall provide for
the rights of the Federal Government and
the recipient in any resulting invention in
accordance with 37 CFR part 401, ‘‘Rights to
Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements,’’ and any implementing regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and
the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.), as amended—Contracts
and subgrants of amounts in excess of
$100,000 shall contain a provision that requires the recipient to agree to comply with
all applicable standards, orders or regulations issued pursuant to the Clean Air Act
(42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act as amended (33 U.S.C.
1251 et seq.). Violations shall be reported to
the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C.
1352)—Contractors who apply or bid for an
award of $100,000 or more shall file the required certification. Each tier certifies to
the tier above that it will not and has not
used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an officer or employee
of any agency, a member of Congress, officer
or employee of Congress, or an employee of a
member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352. Each
tier shall also disclose any lobbying with
non-Federal funds that takes place in connection with obtaining any Federal award.
Such disclosures are forwarded from tier to
tier up to the recipient.
8. Debarment and Suspension (E.O.s 12549
and 12689)—No contract shall be made to parties listed on the General Services Administration’s List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and
12689, ‘‘Debarment and Suspension.’’ This list
contains the names of parties debarred, suspended, or otherwise excluded by agencies,
and contractors declared ineligible under
statutory or regulatory authority other than
E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its
exclusion status and that of its principal employees.
PART 105–74—GOVERNMENTWIDE
REQUIREMENTS FOR DRUG-FREE
WORKPLACE (FINANCIAL ASSISTANCE)
Subpart A—Purpose and Coverage
Sec.
105–74.100 What does this part do?
105–74.105 Does this part apply to me?
105–74.110 Are any of my Federal assistance
awards exempt from this part?
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§ 105–74.100
41 CFR Ch. 105 (7–1–16 Edition)
105–74.115 Does this part affect the Federal
contracts that I receive?
Subpart B—Requirements for Recipients
Other Than Individuals
105–74.200 What must I do to comply with
this part?
105–74.205 What must I include in my drugfree workplace statement?
105–74.210 To whom must I distribute my
drug-free workplace statement?
105–74.215 What must I include in my drugfree awareness program?
105–74.220 By when must I publish my drugfree workplace statement and establish
my drug-free awareness program?
105–74.225 What actions must I take concerning employees who are convicted of
drug violations in the workplace?
105–74.230 How and when must I identify
workplaces?
Subpart C—Requirements for Recipients
Who Are Individuals
105–74.300 What must I do to comply with
this part if I am an individual recipient?
105–74.301 [Reserved]
Subpart D—Responsibilities of GSA
Awarding Officials
105–74.400 What are my responsibilities as a
GSA awarding official?
Subpart E—Violations of This Part and
Consequences
105–74.500 How are violations of this part determined for recipients other than individuals?
105–74.505 How are violations of this part determined for recipients who are individuals?
105–74.510 What actions will the Federal
Government take against a recipient determined to have violated this part?
105–74.515 Are there any exceptions to those
actions?
Subpart F—Definitions
105–74.605 Award.
105–74.610 Controlled substance.
105–74.615 Conviction.
105–74.620 Cooperative agreement.
105–74.625 Criminal drug statute.
105–74.630 Debarment.
105–74.635 Drug-free workplace.
105–74.640 Employee.
105–74.645 Federal agency or agency.
105–74.650 Grant.
105–74.655 Individual.
105–74.660 Recipient.
105–74.665 State.
105–74.670 Suspension.
AUTHORITY: 41 U.S.C. 701 et seq.
SOURCE: 68 FR 66627, 66628, Nov. 26, 2003, unless otherwise noted.
Subpart A—Purpose and
Coverage
§ 105–74.100 What does this part do?
This part carries out the portion of
the Drug-Free Workplace Act of 1988
(41 U.S.C. 701 et seq., as amended) that
applies to grants. It also applies the
provisions of the Act to cooperative
agreements and other financial assistance awards, as a matter of Federal
Government policy.
§ 105–74.105 Does this part apply to
me?
(a) Portions of this part apply to you
if you are either—
(1) A recipient of an assistance award
from the General Services Administration; or
(2) A(n) GSA awarding official. (See
definitions of award and recipient in
§§ 105–74.605 and 105–74.660, respectively.)
(b) The following table shows the
subparts that apply to you:
If you are . . .
see subparts . . .
(1) A recipient who is not an individual .......................................
(2) A recipient who is an individual .............................................
(3) A(n) GSA awarding official ....................................................
A, B and E.
A, C and E.
A, D and E.
§ 105–74.110 Are any of my Federal assistance awards exempt from this
part?
This part does not apply to any
award that the Administrator of General Services determines that the ap-
plication of this part would be inconsistent with the international obligations of the United States or the laws
or regulations of a foreign government.
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General Services Administration
§ 105–74.220
§ 105–74.115 Does this part affect the
Federal contracts that I receive?
It will affect future contract awards
indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in § 105–
74. 510(c). However, this part does not
apply directly to procurement contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to
Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48
of the Code of Federal Regulations (the
drug-free workplace coverage currently
is in 48 CFR part 23, subpart 23.5).
trolled substance is prohibited in your
workplace;
(b) Specifies the actions that you will
take against employees for violating
that prohibition; and
(c) Lets each employee know that, as
a condition of employment under any
award, he or she:
(1) Will abide by the terms of the
statement; and
(2) Must notify you in writing if he or
she is convicted for a violation of a
criminal drug statute occurring in the
workplace and must do so no more
than five calendar days after the conviction.
§ 105–74.210 To
tribute my
statement?
Subpart B—Requirements for
Recipients Other Than Individuals
§ 105–74.200 What must I do to comply
with this part?
There are two general requirements
if you are a recipient other than an individual.
(a) First, you must make a good faith
effort, on a continuing basis, to maintain a drug-free workplace. You must
agree to do so as a condition for receiving any award covered by this part.
The specific measures that you must
take in this regard are described in
more detail in subsequent sections of
this subpart. Briefly, those measures
are to—
(1) Publish a drug-free workplace
statement and establish a drug-free
awareness program for your employees
(see §§ 105–74.205 through 105–74.220); and
(2) Take actions concerning employees who are convicted of violating drug
statutes in the workplace (see § 105–
74.225).
(b) Second, you must identify all
known workplaces under your Federal
awards (see § 105–74.230).
§ 105–74.205 What must I include in my
drug-free workplace statement?
You must publish a statement that—
(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a con-
whom must I disdrug-free workplace
You must require that a copy of the
statement described in § 105–74.205 be
given to each employee who will be engaged in the performance of any Federal award.
§ 105–74.215 What must I include in my
drug-free awareness program?
You must establish an ongoing drugfree awareness program to inform employees about—
(a) The dangers of drug abuse in the
workplace;
(b) Your policy of maintaining a
drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee assistance
programs; and
(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.
§ 105–74.220 By when must I publish
my drug-free workplace statement
and establish my drug-free awareness program?
If you are a new recipient that does
not already have a policy statement as
described in § 105–74.205 and an ongoing
awareness program as described in
§ 105–74.215, you must publish the statement and establish the program by the
time given in the following table:
If . . .
then you . . .
(a) The performance period of the award is less than 30 days
must have the policy statement and program in place as soon
as possible, but before the date on which performance is expected to be completed.
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§ 105–74.225
41 CFR Ch. 105 (7–1–16 Edition)
If . . .
then you . . .
(b) The performance period of the award is 30 days or more ...
must have the policy statement and program in place within 30
days after award.
may ask the GSA awarding official to give you more time to do
so. The amount of additional time, if any, to be given is at
the discretion of the awarding official.
(c) You believe there are extraordinary circumstances that will
require more than 30 days for you to publish the policy statement and establish the awareness program.
§ 105–74.225 What actions must I take
concerning employees who are convicted of drug violations in the
workplace?
There are two actions you must take
if an employee is convicted of a drug
violation in the workplace:
(a) First, you must notify Federal
agencies if an employee who is engaged
in the performance of an award informs
you about a conviction, as required by
§ 105–74.205(c)(2), or you otherwise learn
of the conviction. Your notification to
the Federal agencies must—
(1) Be in writing;
(2) Include the employee’s position
title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days
after you learn of the conviction; and
(5) Be sent to every Federal agency
on whose award the convicted employee was working. It must be sent to
every awarding official or his or her official designee, unless the Federal
agency has specified a central point for
the receipt of the notices.
(b) Second, within 30 calendar days of
learning about an employee’s conviction, you must eitherl
(1) Take appropriate personnel action
against the employee, up to and including termination, consistent with the
requirements of the Rehabilitation Act
of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal,
State or local health, law enforcement,
or other appropriate agency.
§ 105–74.230 How and when must I
identify workplaces?
(a) You must identify all known
workplaces under each GSA award. A
failure to do so is a violation of your
drug-free workplace requirements. You
may identify the workplacesl
(1) To the GSA official that is making the award, either at the time of application or upon award; or
(2) In documents that you keep on
file in your offices during the performance of the award, in which case you
must make the information available
for inspection upon request by GSA officials or their designated representatives.
(b) Your workplace identification for
an award must include the actual address of buildings (or parts of buildings) or other sites where work under
the award takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or
State highway department while in operation, State employees in each local
unemployment office, performers in
concert halls or radio studios).
(c) If you identified workplaces to
the GSA awarding official at the time
of application or award, as described in
paragraph (a)(1) of this section, and
any workplace that you identified
changes during the performance of the
award, you must inform the GSA
awarding official.
Subpart C—Requirements for
Recipients Who Are Individuals
§ 105–74.300 What must I do to comply
with this part if I am an individual
recipient?
As a condition of receiving a(n) GSA
award, if you are an individual recipient, you must agree that—
(a) You will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity related to the award; and
(b) If you are convicted of a criminal
drug offense resulting from a violation
occurring during the conduct of any
award activity, you will report the conviction:
(1) In writing.
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General Services Administration
§ 105–74.605
(2) Within 10 calendar days of the
conviction.
(3) To the GSA awarding official or
other designee for each award that you
currently have, unless § 105–74.301 or
the award document designates a central point for the receipt of the notices.
When notice is made to a central point,
it must include the identification number(s) of each affected award.
§ 105–74.301
[Reserved]
Subpart D—Responsibilities of GSA
Awarding Officials
§ 105–74.400 What are my responsibilities as a(n) GSA awarding official?
As a(n) GSA awarding official, you
must obtain each recipient’s agreement, as a condition of the award, to
comply with the requirements in—
(a) Subpart B of this part, if the recipient is not an individual; or
(b) Subpart C of this part, if the recipient is an individual.
Subpart E—Violations of this Part
and Consequences
§ 105–74.500 How are violations of this
part determined for recipients
other than individuals?
A recipient other than an individual
is in violation of the requirements of
this part if the Administrator of General Services determines, in writing,
that—
(a) The recipient has violated the requirements of subpart B of this part; or
(b) The number of convictions of the
recipient’s employees for violating
criminal drug statutes in the workplace is large enough to indicate that
the recipient has failed to make a good
faith effort to provide a drug-free
workplace.
§ 105–74.505 How are violations of this
part determined for recipients who
are individuals?
An individual recipient is in violation of the requirements of this part if
the Administrator of General Services
determines, in writing, that—
(a) The recipient has violated the requirements of subpart C of this part; or
(b) The recipient is convicted of a
criminal drug offense resulting from a
violation occurring during the conduct
of any award activity.
§ 105–74.510 What actions will the Federal Government take against a recipient determined to have violated
this part?
If a recipient is determined to have
violated this part, as described in § 105–
74.500 or § 105–74.505, the General Services Administration may take one or
more of the following actions—
(a) Suspension of payments under the
award;
(b) Suspension or termination of the
award; and
(c) Suspension or debarment of the
recipient under 41 CFR part 105–68, for
a period not to exceed five years.
[68 FR 66627, 66628, Nov. 26, 2003]
§ 105–74.515 Are there any exceptions
to those actions?
The Administrator of General Services may waive with respect to a particular award, in writing, a suspension
of payments under an award, suspension or termination of an award, or
suspension or debarment of a recipient
if the Administrator of General Services determines that such a waiver
would be in the public interest. This
exception authority cannot be delegated to any other official.
Subpart F—Definitions
§ 105–74.605 Award.
Award means an award of financial
assistance by the General Services Administration or other Federal agency
directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative
agreement, in the form of money or
property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or not the
grant is exempted from coverage under
the Governmentwide rule 41 CFR part
105–71 that implements OMB Circular
A–102 (for availability, see 5 CFR 1310.3)
and specifies uniform administrative
requirements.
(b) The term award does not include:
(1) Technical assistance that provides
services instead of money.
(2) Loans.
(3) Loan guarantees.
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§ 105–74.610
41 CFR Ch. 105 (7–1–16 Edition)
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans’ benefits to individuals
(i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of
the United States).
[68 FR 66627, 66628, Nov. 26, 2003]
§ 105–74.610 Controlled substance.
Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances
Act (21 U.S.C. 812), and as further defined by regulation at 21 CFR 1308.11
through 1308.15.
§ 105–74.615 Conviction.
Conviction means a finding of guilt
(including a plea of nolo contendere) or
imposition of sentence, or both, by any
judicial body charged with the responsibility to determine violations of the
Federal or State criminal drug statutes.
§ 105–74.620 Cooperative agreement.
Cooperative agreement means an award
of financial assistance that, consistent
with 31 U.S.C. 6305, is used to enter into
the same kind of relationship as a
grant (see definition of grant in § 105–
74.650), except that substantial involvement is expected between the Federal
agency and the recipient when carrying
out the activity contemplated by the
award. The term does not include cooperative research and development
agreements as defined in 15 U.S.C.
3710a.
§ 105–74.625 Criminal drug statute.
Criminal drug statute means a Federal
or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.
§ 105–74.630 Debarment.
Debarment means an action taken by
a Federal agency to prohibit a recipient from participating in Federal Government procurement contracts and
covered nonprocurement transactions.
A recipient so prohibited is debarred,
in accordance with the Federal Acquisition Regulation for procurement con-
tracts (48 CFR part 9, subpart 9.4) and
the common rule, Government-wide
Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order
12689.
§ 105–74.635 Drug-free workplace.
Drug-free workplace means a site for
the performance of work done in connection with a specific award at which
employees of the recipient are prohibited from engaging in the unlawful
manufacture, distribution, dispensing,
possession, or use of a controlled substance.
§ 105–74.640 Employee.
(a) Employee means the employee of a
recipient directly engaged in the performance of work under the award, including—
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or involvement in the
performance of work under the award
is insignificant to the performance of
the award; and
(3) Temporary personnel and consultants who are directly engaged in the
performance of work under the award
and who are on the recipient’s payroll.
(b) This definition does not include
workers not on the payroll of the recipient (e.g., volunteers, even if used to
meet a matching requirement; consultants or independent contractors not on
the payroll; or employees of subrecipients or subcontractors in covered
workplaces).
§ 105–74.645 Federal agency or agency.
Federal agency or agency means any
United States executive department,
military department, government corporation, government controlled corporation, any other establishment in
the executive branch (including the Executive Office of the President), or any
independent regulatory agency.
§ 105–74.650 Grant.
Grant means an award of financial assistance that, consistent with 31 U.S.C.
6304, is used to enter into a relationship—
(a) The principal purpose of which is
to transfer a thing of value to the recipient to carry out a public purpose of
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General Services Administration
§ 105–74.670
support or stimulation authorized by a
law of the United States, rather than
to acquire property or services for the
Federal Government’s direct benefit or
use; and
(b) In which substantial involvement
is not expected between the Federal
agency and the recipient when carrying
out the activity contemplated by the
award.
§ 105–74.655 Individual.
Individual means a natural person.
§ 105–74.660 Recipient.
Recipient means any individual, corporation, partnership, association, unit
of government (except a Federal agency) or legal entity, however organized,
that receives an award directly from a
Federal agency.
§ 105–74.665 State.
State means any of the States of the
United States, the District of Columbia, the Commonwealth of Puerto Rico,
or any territory or possession of the
United States.
§ 105–74.670
Suspension.
Suspension means an action taken by
a Federal agency that immediately
prohibits a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions for a temporary period, pending completion of
an investigation and any judicial or administrative proceedings that may
ensue. A recipient so prohibited is suspended, in accordance with the Federal
Acquisition Regulation for procurement contracts (48 CFR part 9, subpart
9.4) and the common rule, Governmentwide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order
12689. Suspension of a recipient is a distinct and separate action from suspension of an award or suspension of payments under an award.
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CHAPTER 109—DEPARTMENT OF ENERGY
PROPERTY MANAGEMENT REGULATIONS
SUBCHAPTER A—GENERAL
Part
109–1
109–6
Page
Introduction ............................................................
Miscellaneous regulations .......................................
639
653
SUBCHAPTERS B–D [RESERVED]
SUBCHAPTER E—SUPPLY AND PROCUREMENT
109–25
109–26
109–27
109–28
109–30
General ....................................................................
Procurement sources and program ..........................
Inventory management ...........................................
Storage and distribution .........................................
Federal catalog system ...........................................
655
656
658
664
667
SUBCHAPTER F [RESERVED]
SUBCHAPTER G—AVIATION, TRANSPORTATION, AND MOTOR VEHICLES
109–37
109–38
109–39
109–40
[Reserved]
Motor equipment management ...............................
Interagency fleet management systems ..................
Transportation and traffic management .................
668
676
677
SUBCHAPTER H—UTILIZATION AND DISPOSAL
109–42
109–43
109–44
109–45
109–46
109–48
109–50
Utilization and disposal of hazardous materials
and certain categories of property .......................
Utilization of personal property ..............................
Donation of personal property ................................
Sale, abandonment, or destruction of personal
property ...............................................................
Utilization and disposal of personal property pursuant to exchange/sale authority .........................
Utilization, donation, or disposal of abandoned and
forfeited personal property ..................................
Special DOE disposal authorities ............................
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683
684
688
688
695
696
697
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SUBCHAPTER A—GENERAL
PART 109–1—INTRODUCTION
Subpart 109–1.1—Regulation System
Sec.
109–1.100–50 Scope of subpart.
109–1.100–51 Definitions and acronyms.
109–1.101 Federal
Property
Management
Regulations System.
109–1.101–50 DOE-PMR System.
109.1.102 Federal
Property
Management
Regulations.
109–1.102–50 DOE-PMRs.
109–1.103 FPMR temporary regulations.
109–1.103–50 DOE-PMR temporary policies
and bulletins.
109–1.104 Publication and distribution of
FPMR.
109–1.104–50 Publication and distribution of
DOE-PMR.
109–1.106 Applicability of FPMR.
109–1.106–50 Applicability of FPMR and
DOE-PMR.
109–1.107 Agency consultation regarding
FPMR.
109–1.107–50 Consultation regarding DOEPMR.
109–1.108 Agency implementation and supplementation of FPMR.
109–1.110–50 Deviation procedures.
Subpart 109–1.50—Personal Property
Management Program
109–1.5000 Scope of subpart.
109–1.5001 Policy.
109–1.5002 Personal property
program objectives.
management
109–1.5110 Physical inventories of personal
property.
109–1.5111 Retirement of property.
109–1.5112 Loss, damage, or destruction of
personal property in possession of DOE
direct operations.
109–1.5113 Loss, damage, or destruction of
personal property in possession of designated contractors.
109–1.5114 Use of non-Government-owned
property.
109–1.5148 Personal property management
reports.
Subpart 109–1.52—Personal Property Management Program for Designated
Contractors
109–1.5200 Scope of subpart.
109–1.5201 Policy.
109–1.5202 Establishment of a personal property holdings baseline.
109–1.5203 Management of subcontractorheld personal property.
109–1.5204 Review and approval of a designated contractor’s personal property
management system.
109–1.5205 Personal property management
system changes.
Subpart 109–1.53—Management of High
Risk Personal Property
109–1.5300
109–1.5301
109–1.5302
109–1.5303
109–1.5304
Scope of subpart.
Applicability.
Policies.
Procedures.
Deviations.
AUTHORITY: Sec. 644, Pub. L. 95–91, 91 Stat.
599 (42 U.S.C. 7254).
Subpart 109–1.51—Personal Property
Management Standards and Practices
109–1.5100 Scope of subpart.
109–1.5101 Official use of personal property.
109–1.5102 Maximum use of personal property.
109–1.5103 Loan of personal property.
109–1.5104 Borrowing of personal property.
109–1.5105 Identification marking of personal property.
109–1.5106 Segregation of personal property.
109–1.5107 Physical protection of personal
property.
109–1.5108 Personal property records requirements.
109–1.5108–1 Equipment.
109–1.5108–2 Sensitive items.
109–1.5108–3 Stores inventories.
109–1.5108–4 Precious metals.
109–1.5108–5 Administratively
controlled
items.
109–1.5109 Control of sensitive items.
SOURCE: 63 FR 19616, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–1.1—Regulation
System
§ 109–1.100–50 Scope of subpart.
This subpart sets forth the Department of Energy (DOE) Property Management
Regulations
(DOE-PMR)
which establish uniform DOE property
management policies, regulations, and
procedures that implement and supplement the Federal Property Management Regulations. Property management statutory authorities that are
unique to the Department (e.g., section
161g of the Atomic Energy Act of 1954
(42 U.S.C. 2201(g)) and section 3155 of
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§ 109–1.100–51
41 CFR Ch. 109 (7–1–16 Edition)
the National Defense Authorization
Act for Fiscal Year 1994 (42 U.S.C.
72741)) are not addressed in these regulations.
§ 109–1.100–51
nyms.
Definitions
and
acro-
(a) Definitions. As used in this chapter, the terms personal property and
property are synonymous. In addition,
the following definitions apply:
Administratively controlled items means
personal property controlled at the discretion of individual DOE offices, but
for which there is no DOE requirement
to maintain formal records.
Automatic data processing equipment
means, as used in this part and to the
extent that such equipment is used to
process export controlled information
or unclassified controlled nuclear information, any equipment or interconnected system or subsystems of
equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or information.
Designated contractors means those
on-site DOE contractors to which the
DOE-PMR is made applicable when included as a contractual requirement.
The contractors to which these regulations may be made applicable include
management and operating (M&O) contractors, environmental restoration
and management contractors, and
other major prime contractors located
at DOE sites.
Direct operations means operations
conducted by DOE personnel.
Disposal means the process of reutilizing, transferring, donating, selling,
abandoning, destroying, or other disposition of Government-owned personal
property.
Dual-Use List means nuclear-related
material, equipment, and related technology as described in the International Atomic Energy Agency Information Circular (INFCIRC) 254 Part 2.
Equipment means any item of personal property having a unit acquisition cost of $5,000 or more and having
the potential for maintaining its integrity (i.e., not expendable due to use) as
an item.
Especially designed or prepared property means equipment and material designed or prepared especially for use in
the nuclear fuel cycle and described in
the Nuclear Suppliers Group Trigger
List (INFCIRC 254 Part 1).
Export controlled information means
unclassified U.S. Government information under DOE cognizance that, if proposed for export by the private sector,
would require a U.S. Department of
Commerce or U.S. Department of State
validated license, or a DOE authorization for export, and which, if given uncontrolled release, could reasonably be
expected to adversely affect U.S. national security or nuclear nonproliferation objectives.
Export controlled property means property the export of which is subject to
licensing by the U.S. Department of
Commerce, the U.S. Department of
State, the U.S. Nuclear Regulatory
Commission, or authorized by the U.S.
Department of Energy.
Hazardous property means any personal property, including scrap or
waste but excluding property involving
a radiological hazard, that is ignitable,
corrosive, reactive, or toxic because of
its quantity, concentration, or physical, chemical, or infectious characteristics, or that is deemed a hazardous
material, chemical substance or mixture, or hazardous waste under the
Hazardous Material Transportation
Act, the Resource Conservation and
Recovery Act, or the Toxic Substances
Control Act. Such property may be in
solid, liquid, semi-liquid, or contained
gas form and may cause or significantly contribute to an increase in
mortality or illness, or pose present or
potential hazard to human health or
the environment when improperly
used, treated, stored, transported, disposed of, or mismanaged.
Heads of field organizations means the
heads of any Departmental office located outside the Washington, D.C.
metropolitan area. In addition, the
Federal Energy Regulatory Commission, and the Office of Headquarters
Procurement Operations, shall be considered a field organization for purposes of these regulations.
High risk personal property means
property that, because of its potential
impact on public health and safety, the
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Department of Energy
§ 109–1.100–51
environment, national security interests, or proliferation concerns, must be
controlled, and disposed of in other
than the routine manner. The categories of high risk property are automatic data processing equipment, especially designed or prepared property,
export controlled information, export
controlled property, hazardous property, nuclear weapon components or
weapon-like components, proliferation
sensitive property, radioactive property, special nuclear material, and unclassified controlled nuclear information.
Munitions list means articles, services, and related technical data designated as defense articles and defense
services by the Arms Export Control
Act of 1968, as amended.
Nuclear weapon component or weaponlike component means parts of whole
war reserve nuclear weapon systems,
joint test assemblies, trainers, or test
devices, including associated testing,
maintenance, and handling equipment;
or items that simulate such parts.
Personal property means property of
any kind, except for real estate and interests therein (such as easements and
rights-of-way), and permanent fixtures
which are Government-owned, chartered, rented, or leased from commercial sources by and in the custody of
DOE or its designated contractors;
source, byproduct, special nuclear materials, and atomic weapons as defined
in section 11 of the Atomic Energy Act
of 1954 (42 U.S.C. 2014), as amended; and
petroleum in the Strategic Petroleum
Reserve and the Naval Petroleum Reserves.
Personal property management means
the development, implementation, and
administration of policies, standards,
programs, practices and procedures for
effective and economical acquisition,
receipt, storage, issue, use, control,
physical protection, care and maintenance, determination of requirements,
maintenance of related operating
records, and disposal of personal property (exclusive of the property accounting records).
Proliferation-sensitive property means
nuclear-related or dual-use equipment,
material, or technology as described in
the Nuclear Suppliers Group Trigger
List and Dual-Use List, or equipment,
material or technology used in the research, design, development, testing, or
production of nuclear or other weapons.
Radioactive property means any item
or material that is contaminated with
radioactivity and which emits ionizing
radiation in excess of background radiation as measured by appropriate instrumentation.
Sensitive items means those items of
personal property which are considered
to be susceptible to being appropriated
for personal use or which can be readily converted to cash, for example:
Firearms, portable photographic equipment, binoculars, portable tape recorders, portable calculators, portable
power tools, portable computers, and
portable communications equipment.
Special nuclear material means plutonium, uranium 233, uranium enriched
in the isotope 233 or 235, any other materials which the Nuclear Regulatory
Commission pursuant to the Atomic
Energy Act of 1954, as amended, determines to be special nuclear material,
or any material artificially enriched by
any of the foregoing, but does not include source material.
Trigger List means nuclear material,
equipment, and related technology as
described in the INFCIRC 254, Part 1.
Unclassified controlled nuclear information means U.S. Government information pertaining to atomic energy defense activities as defined in section
148 of the Atomic Energy Act. Such information can relate to aspects of nuclear weapons design, development,
testing, physical security, production,
or utilization facilities.
(b) Acronyms. As used in this chapter,
the following acronyms apply:
ADPE: Automatic Data Processing Equipment
CFR: Code of Federal Regulations
CSC: Customer Supply Center
DEAR: Department of Energy Acquisition
Regulation
DOD: Department of Defense
DOE: Department of Energy
DOE-PMR: Department of Energy Property
Management Regulations
DPMO: Departmental Property Management
Officer
ECCN: Export Control Classification Number
ECI: Export Controlled Information
EHFFP: Equipment Held For Future
Projects
EOQ: Economic Order Quantity
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§ 109–1.101
41 CFR Ch. 109 (7–1–16 Edition)
ERLE: Energy-Related Laboratory Equipment
FAR: Federal Acquisition Regulation
FPMR: Federal Property Management Regulations
FSC: Federal Supply Classification
FSCG: Federal Supply Classification Group
GAO: General Accounting Office
GSA: General Services Administration
GVWR: Gross Vehicle Weight Rating
INFCIRC: International Atomic Energy
Agency Information Circular
IFMS: Interagency Fleet Management System
M&O: Management and Operating
MCTL: Military Critical Technologies List
OCRM: Office of Contract and Resource Management
OPMO: Organizational Property Management Officer
OPSEC: Operations Security
PPL: Personal Property Letter
REAPS: Reportable Excess Automated Property System
SNM: Special Nuclear Material
UCNI: Unclassified Controlled Nuclear Information
U.S.C.: United States Code
be codified in the Code of Federal Regulations (CFR).
(b) DOE-PMR Bulletins are used to
disseminate information concerning
personal property management matters not affecting policy or to clarify
instructions in actions required by the
FPMR or DOE-PMR.
§ 109–1.101 Federal Property Management Regulations System.
(a) The FPMR and DOE-PMR apply
to all direct operations.
(b) The DOE-PMR does not apply to
facilities and activities conducted
under Executive Order 12344 and Pub.
L. 98–525.
(c) Unless otherwise provided in the
appropriate part or subpart, the FPMR
and DOE-PMR apply to designated contractors.
(d) The Procurement Executive or
head of a contracting activity may designate contractors other than designated contractors to which the
FPMR and DOE-PMR apply.
(e) The FPMR and DOE-PMR shall be
used by contracting officers in the administration of applicable contracts,
and in the review, approval, or appraisal of such contractor operations.
(f) Regulations for the management
of Government property in the possession of other DOE contractors are contained in the Federal Acquisition Regulation (FAR), 48 CFR part 45, and in
the
DOE
Acquisition
Regulation
(DEAR), 48 CFR part 945.
(g) Regulations for the management
of personal property held by financial
assistance recipients are contained in
the DOE Financial Assistance Rules (10
CFR part 600) and DOE Order 534.1, Accounting.
§ 109–1.101–50 DOE-PMR System.
The DOE-PMR system described in
this subpart is established to provide
uniform personal property management policies, standards, and practices
within the Department.
§ 109–1.102 Federal Property Management Regulations.
§ 109–1.102–50 DOE-PMRs.
The DOE-PMRs (41 CFR Ch. 109) implements and supplements the FPMR
(41 CFR Ch. 101) issued by the General
Services Administration (GSA), Public
Laws, Executive Orders, Office of Management and Budget directives, and
other agency issuances affecting the
Department’s personal property management program.
§ 109–1.103
tions.
FPMR
temporary
regula-
§ 109–1.103–50 DOE-PMR
temporary
policies and bulletins
(a) Subject to applicable procedural
requirements in 41 U.S.C. 418b, 42 U.S.C
7191 and 5 U.S.C 553, Personal Property
Letters are authorized for publication
of temporary policies that should not
§ 109–1.104 Publication and distribution of FPMR.
§ 109–1.104–50 Publication
tribution of DOE-PMR.
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The DOE-PMR will be published in
the FEDERAL REGISTER and will appear
in the CFR as Chapter 109 of Title 41,
Public Contracts and Property Management. Loose leaf publications of the
DOE-PMR will be distributed to DOE
offices.
§ 109–1.106
Applicability of FPMR.
§ 109–1.106–50 Applicability of FPMR
and DOE-PMR.
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Department of Energy
§ 109–1.107 Agency
garding FPMR.
§ 109–1.5002
consultation
re-
§ 109–1.107–50 Consultation regarding
DOE-PMR.
The DOE-PMR shall be fully coordinated with all Departmental elements
substantively concerned with the subject matter.
§ 109–1.108 Agency
implementation
and supplementation of FPMR.
(a) The DOE-PMR includes basic and
significant
Departmental
personal
property management policies and
standards which implement, supplement, or deviate from the FPMR. In
the absence of any DOE-PMR issuance,
the basic FPMR material shall govern.
(b) The DOE-PMR shall be consistent
with the FPMR and shall not duplicate
or paraphrase the FPMR material.
(c) Implementing procedures, instructions, and guides which are necessary to clarify or to implement the
DOE-PMR may be issued by Headquarters or field organizations, provided that the implementing procedures, instructions and guides:
(1) Are consistent with the policies
and procedures contained in this regulation;
(2) To the extent practicable, follow
the format, arrangement, and numbering system of this regulation; and
(3) Contain no material which duplicates, paraphrases, or is inconsistent
with the contents of this regulation.
§ 109–1.110–50
Deviation procedures.
(a) Each request for deviation shall
contain the following:
(1) A statement of the deviation desired, including identification of the
specific paragraph number(s) of the
DOE-PMR;
(2) The reason why the deviation is
considered necessary or would be in the
best interest of the Government;
(3) If applicable, the name of the contractor and identification of the contractor affected;
(4) A statement as to whether the deviation has been requested previously
and, if so, circumstances of the previous request;
(5) A description of the intended effect of the deviation;
(6) A statement of the period of time
for which the deviation is needed; and
(7) Any pertinent background information which will contribute to a full
understanding of the desired deviation.
(b)(1) Requests for deviations from
applicable portions of the FPMR and
DOE-PMR (except aviation related portions) shall be forwarded with supporting documentation by the Organizational Property Management Officer
(OPMO) to the Departmental Property
Management Officer (DPMO).
(2) Requests for deviations from aviation related portions of the FPMR and
DOE-PMR concerning aviation operations shall be forwarded by the OPMO
or on-site DOE Aviation Management
Officer with supporting documentation
to the DOE Senior Aviation Management Official.
(c) The Deputy Assistant Secretary
for Procurement and Assistance Management is authorized to grant deviations to the DOE-PMR.
(d) Requests for deviations from the
FPMR will be coordinated with GSA by
the DPMO.
Subpart 109–1.50—Personal
Property Management Program
§ 109–1.5000
Scope of subpart.
This subpart supplements the FPMR,
states DOE personal property management policy and program objectives,
and prescribes authorities and responsibilities for the conduct of an efficient
personal property management program in DOE.
§ 109–1.5001
Policy.
It is DOE policy that a program for
the management of personal property
shall be established and maintained to
meet program needs efficiently and in
accordance with applicable Federal
statutes and regulations.
§ 109–1.5002 Personal property
agement program objectives.
The objectives of the DOE personal
property management program are to
provide:
(a) A system for efficiently managing
personal property in the custody or
possession of DOE organizations and
designated contractors; and
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§ 109–1.5100
41 CFR Ch. 109 (7–1–16 Edition)
(b) Uniform principles, policies, and
standards for efficient management of
personal property that are sufficiently
broad in scope and flexible in nature to
facilitate adaptation to local needs and
various kinds of operations.
Subpart 109–1.51—Personal Property Management Standards
and Practices
§ 109–1.5100 Scope of subpart.
This subpart provides guidance on
DOE standards and practices to be applied in the management of personal
property. The standards and practices
that apply to equipment shall be based
on the unit acquisition cost threshold
specified in the definition of equipment
contained in section § 109–1.100–51 of
this part. No other acquisition cost
threshold shall apply.
§ 109–1.5101 Official use of personal
property.
Personal property shall be used only
in the performance of official work of
the United States Government, except:
(a) In emergencies threatening loss of
life or property as authorized by law;
(b) As otherwise authorized by law
and approved by the Director, Office of
Administrative Services; heads of field
organizations for their respective organizations; or a contracting officer for
contractor-held property.
§ 109–1.5102 Maximum use of personal
property.
Personal property management practices shall assure the best possible use
of personal property. Supplies and
equipment shall be generally limited to
those items essential for carrying out
the programs of DOE efficiently.
§ 109–1.5103 Loan of personal property.
(a) Personal property which is not excess and would otherwise be out of
service for temporary periods may be
loaned to other DOE offices and contractors, other Federal agencies, and to
others for official purposes. The loan
request shall be in writing, stating the
purpose of the loan and period of time
required. The loan shall be executed on
DOE Form 4420.2, Personal Property
Loan Agreement or computer gen-
erated equivalent when approved in
writing by the OPMO or on-site DOE
property administrator. When approved, a memorandum transmitting
the loan agreement shall be prepared
identifying the loan period, delivery
time, method of payment and transportation, and point of delivery and return, to ensure proper control and protect DOE’s interest. The loan period
shall not exceed one year, but may be
renewed in one year increments. Second renewals of loan agreements shall
be reviewed and justified at a level of
management at least two levels above
that of the individual making the determination to loan the property.
Third renewals shall be approved by
the head of the field organization or
designee.
(b) Requests for loans to foreign Governments and other foreign organizations shall be submitted to the Deputy
Assistant Secretary for International
Energy Policy, Trade and Investment
for approval, with a copy to the cognizant Headquarters program office.
§ 109–1.5104 Borrowing
property.
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personal
(a) DOE organizations and designated
contractors are encouraged to borrow
personal property within DOE to further DOE programs. Property classified
as Equipment Held For Future Projects
(EHFFP) or as In Standby should be reviewed by those receiving availability
inquiries for short-term use (one year
or less). Borrowing of Government personal property from other Federal
agencies is also encouraged when required for short periods of time. Such
transactions shall be covered by written agreements which include all terms
of the transaction.
(b) In determining whether it is practical and economical to borrow personal property, consideration shall be
given to suitability, condition, value,
extent and nature of use, extent of
availability, portability, cost of transportation, and other similar factors.
(c) Adequate records and controls
shall be established and maintained for
borrowed property to ensure its proper
control and prompt return to the lender.
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Department of Energy
§ 109–1.5108–2
§ 109–1.5105 Identification marking of
personal property.
(a) Personal property shall be
marked ‘‘U.S. Government property’’
(if marking space is limited, property
may be marked ‘‘U.S. DOE’’) subject to
the criteria below. The markings shall
be securely affixed to the property, legible, and conspicuous. Examples of appropriate marking media are bar code
labels, decals, and stamping.
(1) Equipment and sensitive items
shall be marked ‘‘U.S. Government
property’’ and numbered for control
purposes.
(2) Administratively controlled property and other personal property susceptible to unauthorized personal use
should be marked ‘‘U.S. Government
property’’ and numbered for control
purposes.
(b) Personal property which by its
nature cannot be marked, such as
stores items, metal stock, etc., is exempted from this requirement.
(c) To the extent practicable and economical, markings shall be removed
prior to disposal outside of DOE, or, if
removal is impractical, additional permanent markings must be added to indicate such disposal.
§ 109–1.5106 Segregation of personal
property.
Ordinarily, contractor-owned personal property shall be segregated from
Government personal property. Commingling of Government and contractor-owned personal property may
be allowed only when:
(a) The segregation of the property
would materially hinder the progress of
the work (i.e., segregation is not feasible for reasons such as small quantities, lack of space, or increased
costs); and
(b) Control procedures are adequate
(i.e., the Government property is specifically marked or otherwise identified as Government property).
§ 109–1.5107 Physical
protection
of
personal property.
Controls such as property pass systems, memorandum records, regular or
intermittent gate checks, and/or perimeter fencing shall be established as
appropriate to prevent loss, theft, or
unauthorized removal of property from
the premises on which such personal
property is located.
§ 109–1.5108 Personal property records
requirements.
The contractor’s property control
records shall provide the following
basic information for every accountable item of Government personal
property in the contractor’s possession
and any other data elements required
by specific contract provisions:
(a) Contract number or equivalent
code designation.
(b) Asset type.
(c) Description of item (name, serial
number, national stock number (if
available)).
(d) Property control number (Government ownership identity).
(e) Unit acquisition cost (including
delivery and installation cost, when appropriate, and unit of measure).
(f) Acquisition document reference
and date.
(g) Manufacturer’s name, model and
serial number.
(h) Quantity received, fabricated,
issued or on hand.
(i) Location (physical area)
(j) Custodian name and organization
code.
(k) Use status (active, storage, excess, etc.)
(l) High risk designation.
(m) Disposition document reference
and date.
§ 109–1.5108–1
Equipment.
An individual property record will be
developed and maintained for each
item of equipment.
§ 109–1.5108–2
Sensitive items.
Individual item records will be maintained for each sensitive item. Minimum dollar value thresholds for controlling sensitive items, if used, will be
determined by the OPMO for each DOE
organization in consultation with appropriate management officials. This
threshold may be applied organizationwide or by individual contractors or location. Identification of types of property meeting the DOE-PMR definition
of sensitive property should be the primary determinant of sensitive category, with dollar thresholds, if any,
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§ 109–1.5108–3
41 CFR Ch. 109 (7–1–16 Edition)
considered as a guideline only. Sensitive items which are also equipment
will be controlled as both sensitive
items and equipment.
§ 109–1.5108–3
Stores inventories.
Perpetual inventory records are to be
maintained for stores inventory items.
§ 109–1.5108–4
Precious metals.
Perpetual inventory records are to be
maintained for precious metals.
§ 109–1.5108–5 Administratively
trolled items.
con-
No formal property management
records are required to be maintained
for this category of personal property,
which includes such items as those
controlled for calibration or maintenance purposes, contaminated property, tool crib items, and equipment
pool items. Various control records can
be employed to help safeguard this
property against waste and abuse, including purchase vs. use information,
tool crib check-outs, loss and theft reports, calibration records, disposal
records, and other similar records. Control techniques would include physical
security, custodial responsibility, identification/marking, or other locally established control techniques.
§ 109–1.5109
Control of sensitive items.
(a) A list of types of personal property considered to be sensitive shall be
developed and maintained by each DOE
activity/site, taking into consideration
value, costs of administration, need for
control, and other factors that management determines should apply.
(b) Items of equipment which are also
designated as sensitive items will be
controlled as sensitive items and as
equipment.
(c) Written procedures shall be established for control of sensitive items
and shall address:
(1) Approval of purchase requisitions
or issue documents at an appropriate
supervisory level;
(2) Establishment of controls in the
central receiving and warehousing department, such as extraordinary physical protection, handling, and maintenance of a current listing of sensitive
items;
(3) Establishment and maintenance
of appropriate records;
(4) Requirement for tagging and identification;
(5) Use of memorandum receipts or
custody documents at time of assignment or change in custody;
(6) Establishment of custodial responsibilities describing:
(i) Need for extraordinary physical
protection;
(ii) Requirement for efficient physical and administrative control of sensitive items assigned for general use
within an organizational unit as appropriate to the type of property and the
circumstances;
(iii) Requirement for prompt reporting and investigation of loss, damage
or destruction; and
(iv) Requirement for promptly reporting changes in custody.
(7) Requirement for periodic physical
inventories (see § 109–1.5110 of this
part).
(8) Requirement for an employee
transfer or termination check-out procedure and examination and adjustment of records;
(9) Reminder of prohibition of use for
other than official purposes and penalties for misuse;
(10) A clear statement of the extent
of responsibility for financial accountability depending upon contractor policy; and
(11) Other procedures which have
demonstrated efficient physical and administrative control over sensitive
items.
§ 109–1.5110 Physical
personal property.
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(a) Physical inventories of those categories of personal property as specified in paragraph (f) of this section
shall be conducted at all DOE and designated contractor locations.
(b) Physical inventories shall be performed by the use of personnel other
than custodians of the property. Where
staffing restraints or other considerations apply, the inventory may be performed
by
the
custodian
with
verification by a second party.
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Department of Energy
§ 109–1.5112
(c) Detailed procedures for the taking
of physical inventories shall be developed for each DOE office and designated contractor. The OPMO shall review and approve the DOE office and
contractor procedures.
(d) The conduct of a physical inventory will be observed, or follow-on audits made, by independent representatives, e.g., finance, audit, or property
personnel, to the extent deemed necessary to assure that approved procedures are being followed and results are
accurate. These observations or audits
shall be documented and the documentation retained in the inventory
record file.
(e) Procedures that are limited to a
check-off of a listing of recorded property without actual verification of the
location and existence of such property
do not meet the requirements of a
physical inventory.
(f) The frequency of physical inventories of personal property shall be as
follows:
(1) Equipment—biennial.
(2) Sensitive items—annual (see paragraph 109–1.5110(l) of this section).
(3) Stores inventories—annual.
(4) Precious metals—annual.
(5)
Administratively
controlled
items—There is no formal Department
requirement for the performance of
physical inventories of this property.
However, OPMOs should determine
such requirements based on management needs.
(g) Physical inventories shall be performed at intervals more frequently
than required when experience at any
given location or with any given item
or items indicates that this action is
necessary for effective property accounting, utilization, or control.
(h) Physical inventories of equipment
may be conducted by the ‘‘inventory by
exception’’ method. The system and
procedures for taking physical inventories by this method must be fully
documented and approved in writing by
the OPMO.
(i) The results of physical inventories
shall be reconciled with the property
records, and with applicable financial
control accounts.
(j) The results of physical inventories
shall be reported to the OPMO within
30 days after the reconciliation required above.
(k) Physical inventories of equipment and stores inventories may be
conducted using statistical sampling
methods in lieu of the normal wall-towall method. The sampling methods
employed must be statistically valid
and approved in writing by the OPMO.
If use of the statistical methods of
physical inventory does not produce
acceptable results, the wall-to-wall
method shall be used to complete the
inventories.
(l) Physical inventories of sensitive
items (excluding arms, ammunition,
and military property) having an acquisition cost of $2,000 or less may also
be conducted using statistical sampling methods. However if statistical
sampling methods are used, a wall-towall inventory is required no less frequently than every three years and at
contract completion (unless there is a
follow-on contract with the same contractor).
§ 109–1.5111
Retirement of property.
When Government property is worn
out, lost, stolen, destroyed, abandoned,
or damaged beyond economical repair,
it shall be listed on a retirement work
order. A full explanation shall be supported by an investigation, if necessary, as to the date and circumstances surrounding the wear, loss,
theft, destruction, abandonment, or
damage. The retirement work order
shall be signed by the responsible official initiating the report and reviewed
and approved by an official at least one
supervisory level above the official initiating the report.
§ 109–1.5112 Loss, damage, or destruction of personal property in possession of DOE direct operations.
DOE offices shall establish procedures to provide for the reporting, documentation, and investigation of instances of loss, damage, or destruction
of personal property including:
(a) Notification to appropriate DOE
organizations and law enforcement offices;
(b) Determination of cause or origin;
(c) Liability and responsibility for repair or replacement; and
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§ 109–1.5113
41 CFR Ch. 109 (7–1–16 Edition)
(d) Actions taken to prevent further
loss, damage, or destruction, and to
prevent repetition of similar incidents.
§ 109–1.5113 Loss, damage, or destruction of personal property in possession of designated contractors.
(a) Designated contractors shall report any loss, damage, or destruction
of personal property in its possession
or control, including property in the
possession or control of subcontractors, to the property administrator as
soon as it becomes known.
(b) When physical inventories, consumption analyses, or other actions
disclose consumption of property considered unreasonable by the property
administrator; or loss, damage, or destruction of personal property not previously reported by the contractor, the
property administrator shall require
the contractor to investigate the incidents and submit written reports.
(c) Reports of physical inventory results and identified discrepancies shall
be submitted to the property administrator within 90 days of completion of
physical inventories. An acceptable
percentage of shrinkage for stores inventories shall be determined by the
property administrator on a locationby-location basis, based on type and
cost of materials, historical data, and
other site-specific factors. This determination shall be in writing and be
supported by appropriate documentation.
(d) The contractor’s report referenced
above shall contain factual data as to
the circumstances surrounding the
loss, damage, destruction or excessive
consumption, including:
(1) The contractor’s name and contract number;
(2) A description of the property;
(3) Cost of the property, and cost of
repairs in instances of damage (in
event actual cost is not known, use
reasonable estimate);
§ 109–1.5148
(4) The date, time (if pertinent), and
cause or origin; and
(5) Actions taken by the contractor
to prevent further loss, damage, destruction, or unreasonable consumption, and to prevent repetition of similar incidents.
(e) The property administrator shall
ensure that the corrective actions
taken by the contractor under paragraph (d)(5) of this section satisfactorily address system weaknesses.
(f) The contracting officer shall make
a determination of contractor liability
with a copy of the determination furnished to the contractor and the property administrator. Costs may be assessed against a contractor for physical
inventory discrepancies or other instances of loss of Government property
within the terms of the contract. Credit should only be applied if specific
items reported as lost can be uniquely
identified. General physical inventory
write-ons are not to be used as a credit.
(g) If part of a designated contractor’s personal property management
system is found to be unsatisfactory,
the property administrator shall increase surveillance of that part to prevent, to the extent possible, any loss,
damage, destruction or unreasonable
consumption of personal property. The
property administrator shall give special attention to reasonably assuring
that any loss, damage, destruction or
unreasonable consumption occurring
during a period when a contractor’s
personal property management system
is not approved is identified before approval or reinstatement of approval.
§ 109–1.5114 Use of non-Governmentowned property.
Non-Government-owned
personal
property shall not be installed in, affixed to, or otherwise made a part of
any Government-owned personal property when such action will adversely
affect the operation or condition of the
Government property.
Personal property management reports.
Reports to be submitted to the DPMO are listed in Table 1:
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Department of Energy
§ 109–1.5203
TABLE 1
Report title
Due at DOE headquarters
References
(1) Report of Exempted Motor Vehicles .....
On request ...............
(2) Agency Report of Motor Vehicle Data ...
(3) Excess Personal Property Furnished to
Non-Federal Recipients.
(4) Negotiated Sales ...................................
Oct. 31 ......................
Nov. 15 .....................
FPMR 101–38.204–4, DOE-PMR 109–
38.204–4.
FPMR 101–38.903, DOE-PMR 109–38.903
FPMR 101–43.4701(c), DOE-PMR 109–
43.4701(c).
FPMR 101–45.4702, DOE-PMR 109–
45.4702.
Nov. 15 .....................
Subpart 109–1.52—Personal Property Management Program for
Designated Contractors
§ 109–1.5200 Scope of subpart.
This subpart prescribes policy and responsibilities for the establishment,
maintenance, and appraisal of designated contractors’ programs for the
management of personal property.
§ 109–1.5201 Policy.
(a) Designated contractors shall establish, implement, and maintain a
system that provides for an efficient
personal property management program. The system shall be consistent
with the terms of the contract; prescribed policies, procedures, regulations, statutes, and instructions; and
directions from the contracting officer.
(b) Designated contractors’ personal
property management systems shall
not be considered acceptable until reviewed and approved in writing by the
cognizant DOE contracting office in accordance with § 109–1.5205 of this subpart.
(c) Designated contractors shall
maintain their personal property management systems in writing. Revisions
to the systems shall be approved in
writing by the cognizant DOE contracting office in accordance with § 109–
1.5205 of this subpart.
(d) Designated contractors shall include their personal property management system in their management surveillance or internal review program in
order to identify weaknesses and functions requiring corrective action.
(e) Designated contractors are responsible and accountable for all Government personal property in the possession of subcontractors, and shall include appropriate provisions in their
subcontracts and property manage-
Form No.
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Letter.
Letter.
ment systems to assure that subcontractors establish and maintain efficient systems for the management of
Government personal property in their
possession in accordance with § 109–
1.5204 of this subpart.
§ 109–1.5202 Establishment of a personal property holdings baseline.
(a) If the contractor is a new designated contractor, the contractor may
accept the previous contractor’s personal property records as a baseline or
may perform a complete physical inventory of all personal property. This
physical inventory is to be performed
within the time period specified by the
contracting officer or the contract, but
no later than one year after the execution date of the contract. If the physical inventory is not accomplished
within the allotted time frame, the
previous contractor’s records will be
considered as the baseline.
(b) If any required physical inventories have not been accomplished
within the time periods prescribed in
§ 109–1.5110(f) of this part, the new contractor shall either perform such physical inventories within 120 days of contract renegotiation, or accept the existing property records as the baseline.
§ 109–1.5203 Management of subcontractor-held personal property.
Designated contractors shall require
those subcontractors provided Government-owned personal property to establish and maintain a system for the
management of such property. As a
minimum, a subcontractor’s personal
property management system shall
provide for the following:
(a) Adequate records.
(b) Controls over acquisitions.
(c) Identification as Governmentowned personal property.
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§ 109–1.5204
41 CFR Ch. 109 (7–1–16 Edition)
(d) Physical inventories.
(e) Proper care, maintenance, and
protection.
(f) Controls over personal property
requiring special handling (i.e., nuclear-related,
proliferation-sensitive,
hazardous, or contaminated property).
(g) Reporting, redistribution, and disposal of excess and surplus personal
property.
(h) Accounting for personal property
that is lost, damaged, destroyed, stolen, abandoned, or worn out.
(i) Periodic reports, including physical inventory results and total acquisition cost of Government property.
(j) An internal surveillance program,
including periodic reviews, to ensure
that personal property is being managed in accordance with established
procedures.
§ 109–1.5204 Review and approval of a
designated contractor’s personal
property management system.
(a) An initial review of a designated
contractor’s personal property management system shall be performed by the
property administrator within one year
after the execution date of the contract, except for contract extensions or
renewals or when an existing contractor has been awarded a follow-on
contract. The purpose of the review is
to determine whether the contractor’s
system provides adequate protection,
maintenance, utilization, and disposition of personal property, and reasonable assurance that the Department’s
personal
property
is
safeguarded
against waste, loss, unauthorized use,
or misappropriation, in accordance
with applicable statutes, regulations,
contract terms and conditions, programmatic needs, and good business
practices. If circumstances preclude
completion of the initial review within
the ‘‘within one year’’ initial review requirement, the property administrator
shall request a deviation from the requirement in accordance with the provisions of § 109–1.110–50 of this part.
(b) If a designated contractor is the
successor to a previous designated contractor and the contract award was
based in part on the contractor’s proposal to overhaul the existing personal
property management system(s), the
‘‘within one year’’ initial review requirement may be extended based on:
(1) The scope of the overhaul; and
(2) An analysis of the cost to implement the overhaul within a year versus
a proposed extended period.
(c) When an existing contract has
been extended or renewed, or the designated contractor has been awarded a
follow-on contract, an initial review of
the contractor’s personal property
management system is not required. In
such cases, the established appraisal
schedule will continue to be followed
as prescribed in paragraph (d) of this
section.
(d) At a minimum of every three
years after the date of approval of a
designated contractor’s property management system, the OPMO shall make
an appraisal of the personal property
management operation of the contractor. The purpose of the appraisal is
to determine if the contractor is managing personal property in accordance
with its previously approved system
and procedures, and to establish whether such procedures are efficient. The
appraisal may be based on a formal
comprehensive appraisal or a series of
formal appraisals of the functional segments of the contractor’s operation.
(e) A designated contractor’s property management system shall be approved, conditionally approved, or disapproved in writing by the head of the
field organization with advice of the
contracting officer, property administrator, OPMO, legal counsel, DPMO,
and appropriate program officials. Approval authority may be redelegated to
the contracting officer or contracting
officer’s designee. Conditional approval
and disapproval authority cannot be
redelegated. When a system is conditionally approved or disapproved, the
property administrator or contracting
officer shall advise the contractor, in
writing, of deficiencies that need to be
corrected, and a time schedule established for completion of corrective actions.
(f) Appropriate follow-up will be
made by the property administrator to
ensure that corrective actions have
been initiated and completed.
(g) When a determination has been
made by the property administrator
that all major system deficiencies
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Department of Energy
§ 109–1.5303
identified in the review or appraisal
have been corrected, the head of the
field organization shall withdraw the
conditional approval or disapproval,
and approve the system with the concurrence of the OPMO. The approval
shall be in writing and addressed to appropriate contractor management.
(h) The property administrator shall
maintain a copy of all designated contractor personal property management
system appraisals and approvals in
such manner as to be readily available
to investigative and external review
teams.
§ 109–1.5205 Personal property management system changes.
Any proposed significant change to a
designated contractor’s approved personal property management system
shall be reviewed by the property administrator at the earliest possible
time. Such changes should then be approved in writing on an interim basis,
or disapproved in writing, by the property administrator as appropriate.
Subpart 109–1.53—Management
of High Risk Personal Property
§ 109–1.5300 Scope of subpart.
(a) This subpart provides identification, accounting, control, and disposal
policy guidance for the following categories of high risk personal property:
especially designed or prepared property, export controlled property, nuclear weapon components or weaponlike components, and proliferation sensitive property. The guidance is intended to ensure that the disposition of
these categories of high risk personal
property does not adversely affect the
national security or nuclear nonproliferation objectives of the United
States.
(b) The other categories of high risk
personal property are controlled by
other life cycle management programs
and procedures monitored by other Departmental elements.
§ 109–1.5301 Applicability.
This subpart is applicable to all DOE
organizations which purchase, manage
or dispose of Government personal
property, or contract for the management of Government facilities, pro-
grams, or related services, which may
directly or indirectly require the purchase, management, or disposal of Government-owned
personal
property.
Using the high risk personal property
control requirements in this subpart as
guidance, heads of field organizations
or OPMOs shall assure that designated
contractors and financial assistance recipients are responsible for developing
a cost effective high risk property
management system, covering all operational responsibilities enumerated in
this subpart.
§ 109–1.5302 Policies.
(a) It is the responsibility of DOE organizations and designated contractors
to manage and control Governmentowned high risk personal property in
an efficient manner. High risk personal
property will be managed throughout
its life cycle so as to protect public and
DOE personnel safety and to advance
the national security and the nuclear
nonproliferation objectives of the U.S.
Government.
(b) The disposition of high risk property is subject to special considerations. Items of high risk property may
present significant risks to the national security and nuclear nonproliferation objectives of the Government which must be evaluated. Organizations will identify high risk property
and control its disposition to eliminate
or mitigate such risks. In no case shall
property be transferred or disposed unless it receives a high risk assessment
and is handled accordingly.
§ 109–1.5303 Procedures.
(a) Identification, marking and control.
To ensure the appropriate treatment of
property at its disposal and to prevent
inadvertent, uncontrolled release of
high risk property, property should be
assessed and evaluated as high risk
property as early in its life cycle as
practical.
(1) Newly acquired high risk personal
property shall be identified and
tracked during the acquisition process
and marked upon receipt.
(2) All personal property shall be reviewed for high risk identification,
marking, and database entry during
regularly scheduled physical inventories, unless access to the property is
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§ 109–1.5304
41 CFR Ch. 109 (7–1–16 Edition)
difficult or impractical because the
property is a component of a larger assembly, a complex operating system, or
an older facility. The review of this
property will be completed, prior to
disposition, when replacing components or when operating systems and
facilities are decommissioned and dismantling.
(3) High risk personal property which
by its nature cannot be marked, such
as stores items and metal stock, is exempt from this requirement. However,
personal property management programs should contain documentation
on the characterization of this property as high risk.
(b) Disposition of high risk property. (1)
Prior to disposition, all personal property, materials or data will be assessed
to determine:
(i) Whether it should be characterized
as high risk and
(ii) What actions are necessary to ensure compliance with applicable national security or nonproliferation controls.
(2) The DOE or designated contractor
property management organization
may not process high risk personal
property into a reutilization/disposal
program without performing the reviews prescribed by the local high risk
property management system. The reviews must be properly documented,
and all appropriate certifications and
clearances received, in accordance with
the approved site or facility personal
property management program.
(3) The disposition (including demilitarization of items on the Munitions
List) and handling of high risk personal property are subject to applicable
provisions of Subchapter H of the
FPMR, subchapter H of this chapter,
and the DOE Guidelines on Export Control and Nonproliferation.
(4) Documentation. All applicable documentation, including records concerning the property’s categorization
as high risk, shall be included as part
of the property transfer. The documentation shall be included with all
transfers within, or external to, DOE.
(5) Unless an alternative disposition
option appears to be in the best interest of the Government, surplus Trigger
List components, equipment, and materials and nuclear weapon components
shall either be sold for scrap after
being rendered useless for their originally intended purpose or destroyed,
with the destruction verified and documented. Requests for approval of an alternative disposition may be made
through the cognizant Assistant Secretary to the Director of the Office of
Nonproliferation and National Security.
(6) Export Restriction Notice. The following Export Restriction Notice, or
approved equivalent notice, shall be included in all transfers, sales, or other
offerings:
EXPORT RESTRICTION NOTICE
The use, disposition, export and reexport of
this property are subject to all applicable
U.S. laws and regulations, including the
Atomic Energy Act of 1954, as amended; the
Arms Export Control Act (22 U.S.C. 2751 et
seq.); the Export Administration Act of 1979
(560 U.S.C. Append 2401 et seq.); Assistance to
Foreign Atomic Energy Activities (10 CFR
part 810); Export and Import of Nuclear
Equipment and Material (10 CFR part 110);
International Traffic in Arms Regulations
(22 CFR parts 120 et seq.); Export Administration Regulations (15 CFR part 730 et seq.);
Foreign Assets Control Regulations (31 CFR
parts 500 et seq.); and the Espionage Act (37
U.S.C. 791 et seq.) which among other things,
prohibit:
a. The making of false statements and concealment of any material information regarding the use or disposition, export or reexport of the property; and
b. Any use or disposition, export or reexport of the property which is not authorized
in accordance with the provisions of this
agreement.
§ 109–1.5304
Deviations.
(a) Life cycle control determinations.
When the HFO approves a contractor
program containing controls, other
than life cycle control consistent with
this subpart, the decision shall be justified in writing and a copy sent to the
Deputy Assistant Secretary for Procurement and Assistance Management.
A HFO’s decision not to provide lifecycle control should take into account:
(1) The nature and extent of high risk
property typically purchased or otherwise brought to a DOE or designated
contractor facility or site;
(2) The projected stability of DOE
and designated contractor operations;
and
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Department of Energy
§ 109–6.402
(3) The degree of confidence in the
property control measures available at
disposition.
(b) Certain transfers, sales, or other
offerings of high risk personal property
may require special conditions or specific restrictions as determined necessary by the property custodian or
cognizant program office.
(c) Requests for deviations from the
requirements of this subpart may be
made through the cognizant HFO to
the Deputy Assistant Secretary for
Procurement and Assistance Management.
PART 109–6—MISCELLANEOUS
REGULATIONS
Subpart 109–6.4—Official Use of Government Passenger Carriers Between Residence and Place of Employment
Sec.
109–6.400 Scope and applicability.
109–6.400–50 Instructions to DOE passenger
carrier operators.
109–6.402 Policy.
109–6.450 Statutory provisions.
AUTHORITY: Sec. 205(c), 63 Stat. 390 (40
U.S.C. 486(c); 31 U.S.C. 1344(e)(1).
SOURCE: 63 FR 19624, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–6.4—Official Use of
Government Passenger Carriers Between Residence and
Place of Employment
§ 109–6.400 Scope and applicability.
(a) With the exception of § 109–6.400–
50, the provisions of this subpart and 41
CFR part 102–5 do not apply to designated contractors. Official use provisions applicable to these contractors
are contained in § 109–38.3 of this chapter.
(b) When an employee on temporary
duty is authorized to travel by Government motor vehicle, and in the interest
of the Government, is scheduled to depart before the beginning of regular
working hours, or if there will be a significant savings in time, a Government
motor vehicle may be issued at the
close of the preceding working day.
Similarly, when scheduled to return
after the close of working hours, the
motor vehicle may be returned the
next regular working day. This use of a
Government motor vehicle is not regarded as prohibited by 31 U.S.C. 1344
(25 Comp. Gen. 844).
[63 FR 19624, Apr. 20, 1998, as amended at 68
FR 7941, Feb. 19, 2003]
§ 109–6.400–50 Instructions
to
DOE
passenger carrier operators.
DOE offices shall ensure that DOE
employees
operating
Government
motor vehicles are informed concerning:
(a) The statutory requirement that
Government motor vehicles shall be
used only for official purposes;
(b) Personal responsibility for safe
driving and operation of Government
motor vehicles, and for compliance
with Federal, state, and local laws and
regulations, and all accident reporting
requirements;
(c) The need to possess a valid state,
District of Columbia, or commonwealth operator’s license or permit for
the type of vehicle to be operated and
some form of agency identification;
(d) The penalties for unauthorized
use of Government motor vehicles;
(e) The prohibition against providing
transportation to strangers or hitchhikers;
(f) The proper care, control and use of
Government credit cards;
(g) Mandatory use of seat belts by
each employee operating or riding in a
Government motor vehicle;
(h) The prohibition against the use of
tobacco products in GSA-Interagency
Fleet Management System (IFMS)
motor vehicles;
(i) Any other duties and responsibilities assigned to operators with regard
to the use, care, operation, and maintenance of Government motor vehicles;
(j) The potential income tax liability
when they use a Government motor vehicle for transportation between residence and place of employment; and
(k) Protection for DOE employees
under the Federal Tort Claims Act
when acting within the scope of their
employment.
§ 109–6.402 Policy.
(a) It is DOE policy that Government
motor vehicles operated by DOE employees are to be used only for official
Government purposes or for incidental
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§ 109–6.450
41 CFR Ch. 109 (7–1–16 Edition)
purposes as prescribed in this section.
The Director, Office of Administrative
Services and heads of field organizations for their respective organizations
shall establish appropriate controls to
ensure that the use of a Government
motor vehicle for transportation between an employee’s residence and
place of employment is in accordance
with the provisions of 41 CFR part 102–
5 and this subpart.
(b) It is DOE policy that space in a
Government motor vehicle used for
home-to-work transportation may be
shared with a spouse, relative, or friend
in accordance with the restrictions
contained in 41 CFR 102–5.105.
(c) A Departmental official who is
authorized
home-to-work
transportation is permitted to use Governmentowned or leased motor vehicles for nonofficial purposes incidental to the official use of the vehicle, provided that
the incremental cost (e.g., driver time
and mileage) of such use is de minimis
or such costs are outweighed by other
considerations, such as the efficient
use of the official’s time.
[63 FR 19624, Apr. 20, 1998, as amended at 68
FR 7941, Feb. 19, 2003]
§ 109–6.450
Statutory provisions.
(a) In accordance with 31 U.S.C.
1349(b), any officer or employee of the
Government who willfully uses or authorizes the use of a Government passenger motor vehicle for other than official purposes shall be suspended from
duty by the head of the department
concerned, without compensation, for
not less than one month and shall be
suspended for a longer period or summarily removed from office if circumstances warrant.
(b) Under the provisions of 18 U.S.C.
641, any person who knowingly misuses
any Government property (including
Government motor vehicles) may be
subject to criminal prosecution and,
upon conviction, to fines or imprisonment.
SUBCHAPTERS B–D [RESERVED]
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SUBCHAPTER E—SUPPLY AND PROCUREMENT
PART 109–25—GENERAL
§ 109–25.104 Acquisition of office furniture and office machines.
Subpart 109–25.1—General Policies
DOE offices and designated contractors shall make the determination as
to whether requirements can be met
through the utilization of DOE owned
furniture and office machines.
Sec.
109–25.100 Use of Government personal property and nonpersonal services.
109–25.103 Promotional materials, trading
stamps, or bonus goods.
109–25.103–1 General.
109–25.104 Acquisition of office furniture and
office machines.
109–25–109 Laboratory and research equipment.
109–25–109–1 Identification of idle equipment.
109–25–109–2 Equipment pools.
The provisions of 41 CFR 101–25.109
and this section apply to laboratory
and research equipment in the possession of DOE field organizations and
designated contractors.
§ 109–25.109–1 Identification
equipment.
Subpart 109–25.3—Use Standards
109–25.302 Office furniture, furnishings, and
equipment.
109–25.350 Furnishing of Government clothing and individual equipment.
Subpart 109–25.4—Replacement Standards
109–25.401 General.
109–25.401–50 Replacement approvals.
AUTHORITY: Sec. 644, Pub. L. 95–91, 91 Stat.
599 (42 U.S.C. 7254).
SOURCE: 63 FR 19625, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–25.1—General
Policies
§ 109–25.100 Use of Government personal property and nonpersonal
services.
The Director, Office of Administrative Services and heads of field organizations shall ensure to restrict the use
of Government property/services to officially designated activities.
§ 109–25.103 Promotional
materials,
trading stamps, or bonus goods.
§ 109–25.103–1
§ 109–25.109 Laboratory and research
equipment.
General.
DOE offices and designated contractors shall establish procedures for the
receipt and disposition of promotional
materials, trading stamps, or bonus
goods consistent with the provisions of
41 CFR 101–25.103.
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idle
(a) At a minimum, management
walk-throughs shall be conducted to
provide for coverage of all operating
and storage areas at least once every
two years to identify idle and unneeded
personal property. The submission to
the head of the laboratory or facility of
a report of walk-throughs conducted
shall be at the discretion of the laboratory or facility management. However,
DOE field organizations may require
designated contractors to submit a report of walk-throughs to the OPMOs.
Equipment identified as idle and
unneeded shall be redeployed, reassigned, placed in equipment pools, or
excessed, as appropriate. All walkthroughs shall be documented to include, at a minimum, the identity of
the participants, areas covered, findings, recommendations, corrective action plans, and results achieved. The
documentation shall be made available
for review by appropriate contractor
management, DOE offices, and audit
teams.
(b) Members of management walkthrough inspection teams should be coordinated with the property administrator and the OPMO.
(c) OPMOs shall periodically review
walk-through procedures and practices
of DOE offices and designated contractors to determine their effectiveness.
§ 109–25.109–2
Equipment pools.
(a)–(c) [Reserved]
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§ 109–25.302
41 CFR Ch. 109 (7–1–16 Edition)
(d) The report on the use and effectiveness of equipment pools shall be
submitted to the head of the DOE office at the discretion of that official.
However, documentation of evaluations
of pools shall be maintained and made
available for review by appropriate
contractor management, DOE offices,
and audit teams.
(e) Heads of field organizations shall
require periodic independent reviews of
equipment pool operations.
Subpart 109–25.3—Use Standards
§ 109–25.302 Office
furniture,
nishings, and equipment.
fur-
The Director, Office of Administrative Services, heads of field organizations, and designated contractors shall
establish criteria for the use of office
furniture, furnishings, and equipment.
PART 109–26—PROCUREMENT
SOURCES AND PROGRAM
Subpart 109–26.2—Federal Requisitioning
System
Sec.
109–26.203
Activity address codes.
Subpart 109–26.5—GSA Procurement
Programs
109–26.501 Purchase of new motor vehicles.
109–26.501–1 General.
109–26.501–4 Submission of orders.
109–26.501–50 Authority and allocations for
the acquisition of passenger motor vehicles.
109–26.501–51 Used vehicles.
109–26.501–52 Justification for purchase.
109–26.501–53 Acquisitions by transfer.
109–26.501–54 Communications equipment.
AUTHORITY: Sec. 644, Pub. L. 95–91, 91 Stat.
599 (42 U.S.C. 7254).
§ 109–25.350 Furnishing of Government clothing and individual equipment.
SOURCE: 63 FR 19626, Apr. 20, 1998, unless
otherwise noted.
(a) Government-owned clothing and
individual equipment may be furnished
to employees:
(1) For protection from physical injury or occupational disease; or
(2) When employees could not reasonably be required to furnish them as a
part of the personal clothing and equipment needed to perform the regular duties of the position to which they are
assigned or for which services were engaged.
(b) This section does not apply to
uniforms or uniform allowances under
the Federal Employees Uniform Allowance Act of 1954, as amended.
Subpart 109–26.2—Federal
Requisitioning System
Subpart 109–25.4—Replacement
Standards
§ 109–25.401
General.
§ 109–25.401–50
als.
Replacement
approv-
The Director, Office of Administrative Services and heads of field organizations are authorized to approve replacement of office machines, furniture, and materials handling equipment.
§ 109–26.203
Activity address codes.
(a) DOE field organizations designated by OCMA are responsible for
processing routine activity code related
transactions
for
specified
groupings of field organizations. Each
field organization in a specified grouping will forward their activity address
code related transactions to the
grouping’s lead organization for processing. Each lead organization shall
designate a point of contact who will:
(1) Verify the need, purpose, and validity of each transaction; and
(2) Be the specified grouping’s authorized point of contact for dealing directly with GSA.
(b) OCMA is responsible for:
(1) All policy matters related to the
issuance and control of activity address codes within DOE; and
(2) Furnishing the identity of the
lead field organization points of contact to GSA.
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Department of Energy
§ 109–26.501–52
Subpart 109–26.5—GSA
Procurement Programs
§ 109–26.501 Purchase of new motor
vehicles.
§ 109–26.501–1 General.
(a) [Reserved]
(b) Motor vehicles may be purchased
directly rather than through GSA when
a waiver has been granted by GSA. The
waiver request should be submitted directly to GSA and a copy forwarded to
the DPMO. However, where GSA refuses to grant a waiver and it is believed that procurement through GSA
would adversely affect or otherwise impair a program, the DPMO may, upon
written request of the head of the DOE
field organization, grant the authority
for direct purchase of general purpose
motor vehicles. Upon receipt of written
authorization from the DPMO, the
head of the field organization may authorize direct purchase of special purpose vehicles. The purchase price for
passenger motor vehicles shall not exceed any statutory limitation in effect
at the time the purchase is made.
§ 109–26.501–4 Submission of orders.
An original and two copies of requisitions for passenger motor vehicles
and law enforcement motor vehicles
shall be forwarded with justification
for purchase to the DPMO, for approval
and submission to GSA. Requisitions
for all other types of motor vehicles
shall be submitted directly to GSA.
§ 109–26.501–50 Authority and allocations for the acquisition of passenger motor vehicles.
(a) Authority for the acquisition of
passenger motor vehicles is contained
in the Department’s annual appropriation act.
(b) DOE offices shall include in their
budget submissions the number of passenger motor vehicles to be purchased
during the fiscal year. The procurements will be identified as either additions to the motor vehicle fleet or replacement vehicles. A copy of the
motor vehicle portion of the submission should be submitted to the DPMO.
(c) To assure that DOE does not exceed the number of passenger motor vehicles authorized to be acquired in any
fiscal year, the Deputy Assistant Secretary for Procurement and Assistance
Management or designee shall allocate
to and inform the field organizations in
writing of the number of passenger
motor vehicles which may be acquired
under each appropriation. These allocations and the statutory cost limitations imposed on these motor vehicles
shall not be exceeded.
(d) The motor vehicle fleet manager
shall provide written certification to
the OPMO that disposition action has
been taken on replaced passenger
motor vehicles. Such certification
shall be provided no later than 30 days
after the disposition of the vehicle. Replaced passenger motor vehicles shall
not be retained in service after receipt
of the replacement vehicle.
§ 109–26.501–51 Used vehicles.
Normally, DOE does not purchase or
authorize contractors to purchase used
motor vehicles. However, the Director,
Office of Administrative Services and
heads of field organizations may authorize the purchase of used motor vehicles where justified by special circumstances, e.g., when new motor vehicles are in short supply; motor vehicles
are to be used for experimental or test
purposes; or motor vehicles are acquired from exchange/sale. The statutory passenger motor vehicle allocation requirements shall apply to any
purchase of used passenger motor vehicles except in the case of motor vehicles to be used exclusively for experimental or test purposes.
§ 109–26.501–52 Justification for purchase.
(a) Requisitions for additions to the
passenger motor vehicle fleet must
contain adequate written justification
of need. Such justifications shall be
prepared by the motor vehicle fleet
manager and approved by the OPMO,
and should include:
(1) A statement as to why the present
fleet size is inadequate to support requirements;
(2) Efforts made to achieve maximum
use of on-hand motor vehicles through
pool arrangements, shuttle buses, and
taxicabs;
(3) The programmatic requirement
for the motor vehicles and the impact
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§ 109–26.501–53
41 CFR Ch. 109 (7–1–16 Edition)
on the program/project if the requisitions are not filled;
(4) The established DOE or local utilization objectives used to evaluate the
utilization of passenger motor vehicles
and whether the objectives have been
approved by the OPMO; and
(5) The date of the last utilization review and the number of passenger
motor vehicles which did not meet the
established utilization objectives and
the anticipated mileage to be achieved
by the new motor vehicles.
(b) Requisitions for replacement passenger motor vehicles should include a
statement that utilization, pools, shuttle buses and taxicabs have been considered by the motor vehicle fleet manager and the OPMO. Specific information on the identification, age and
mileage of the motor vehicles should
be included. When a passenger motor
vehicle being replaced does not meet
Federal replacement standards, a description of the condition of the vehicle should also be provided.
§ 109–26.501–53 Acquisitions by transfer.
(a) The acquisition of passenger
motor vehicles by transfer from another Government agency or DOE organization shall be within the allocations
prescribed in § 109–26.501–50 of this subpart.
(b) Passenger motor vehicles may be
acquired by transfer provided they are:
(1) Considered as an addition to the
motor vehicle fleet of the receiving office;
(2) Acquired for replacement purposes
and an equal number of replaced motor
vehicles are reported for disposal within 30 days;
(3) For temporary emergency needs
exceeding three months and approved
in writing by the DPMO; or
(4) For temporary emergency needs
of three months or less in lieu of commercial rentals. These transfers will
not count toward the allocation.
§ 109–26.501–54 Communications
equipment.
Communications equipment considered to be essential for the accomplishment of security and safety responsibilities is exempt from the requirements of 41 CFR 101–26.501. The Fleet
Manager shall approve the installation
of
communications
equipment
in
motor vehicles.
PART 109–27—INVENTORY
MANAGEMENT
Sec.
109–27.000–50
Definitions.
Subpart 109–27.1—Stock Replenishment
109–27.102 Economic order quantity principle.
109–27.102–1 Applicability.
109–27.102–50 Systems contracting.
109–27.102–51 Policy.
109–27.102–52 Implementation.
Subpart 109–27.2—Management of ShelfLife Materials
109–27.202
Applicability.
Subpart 109–27.3—Maximizing Use of
Inventories
109–27.302
Applicability.
Subpart 109–27.4—Elimination of Items
From Inventory
109–27.402
Applicability.
Subpart 109–27.50—Inventory Management Policies, Procedures, and Guidelines
109–27.5001 Objectives.
109–27.5002 Stores inventory turnover ratio.
109–27.5003 Stock control.
109–27.5004 Sub-stores.
109–27.5005 Shop, bench, cupboard or site
stock.
109–27.5006 Stores catalogs.
109–27.5007 Physical inventories.
109–27.5007–1 Procedures.
109–27.5007–2 Inventory adjustments.
109–27.5008 Control of drug substances and
potable alcohol.
109–27.5009 Control of hypodermic needles
and syringes.
109–27.5010 Containers returnable to vendors.
109–27.5011 Identification marking of metals
and metal products.
109–27.5011–1 General.
109–27.5011–2 Exception.
Subpart 109–27.51—Management of
Precious Metals
109–27.5100
109–27.5101
109–27.5102
109–27.5103
Scope of subpart.
Definition.
Policy.
Precious Metals Control Officer.
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Department of Energy
§ 109–27.102–52
109–27.5104 Practices and procedures.
109–27.5104–1 Acquisitions.
109–27.5104–2 Physical protection and storage.
109–27.5104–3 Perpetual inventory records.
109–27.5104–4 Physical inventories.
109–27.5104–5 Control and issue of stock.
109–27.5104–6 Control by using organization.
109–27.5105 Management reviews and audits.
109–27.5106 Precious metals pool.
109–27.5106–1 Purpose.
109–27.5106–2 Withdrawals.
109–27.5106–3 Returns.
109–27.5106–4 Withdrawals/returns forecasts.
109–27.5106–5 Assistance.
109–27.5107 Recovery of silver from used
hypo solution and scrap film.
the purchase of general, common-use,
and repetitive supply items in a particular product family. An example is
office supplies, purchased from a commercial vendor, that are needed for immediate use instead of purchasing in
bulk for future use, storing in warehouses, and issuing to customers by
use of a requisitioning system. Systems contracting and just-in-time contracting are synonymous.
AUTHORITY: Sec. 644, Pub. L. 95–91, 91 Stat.
599 (42 U.S.C. 7254).
§ 109–27.102 Economic order quantity
principle.
SOURCE: 63 FR 19627, Apr. 20, 1998, unless
otherwise noted.
§ 109–27.102–1 Applicability.
Replenishment of inventories of
stock items having recurring demands
will be by use of the economic order
quantity (EOQ) principle. However,
when considered more suitable, designated contractors may use other generally accepted approaches to EOQ.
§ 109–27.000–50 Definitions.
As used in this part the following
definitions apply:
Inventories mean stocks of stores,
construction, supplies, and parts used
in support of DOE programs.
Inventory management means the efficient use of methods, procedures and
techniques for recording, analyzing,
and adjusting inventories in accordance with established policy. The following related functions are included:
(1) Providing adequate protection
against misuse, theft, and misappropriation.
(2) Providing accurate analyses of
quantities to determine requirements
so that only minimal obsolescence
losses will be encountered, while ensuring adequate inventory levels to meet
program schedules.
(3) Providing adequate and accessible
storage facilities and services based
upon analyses of program requirements
so that a minimum and economical
amount of time is required to service
the program.
Stock record means a device for collecting, storing, and providing historical data on recurring transactions for
each line item of inventory.
Sub-store means a geographically removed part of the main store’s operation conducted as a subordinate element of it and subject to the same
management policies and inventory
controls.
Systems contracting means a materials
management purchasing technique for
Subpart 109–27.1—Stock
Replenishment
§ 109–27.102–50 Systems contracting.
Systems contracting may be used instead of or along with EOQ once a determination is made that such a system is feasible and cost effective, and
that adequate controls are in place to
ensure proper use.
§ 109–27.102–51 Policy.
Systems contracting for supply operations is a proven cost-effective approach to meeting procurement needs
and may be implemented in DOE offices and designated contractors wherever significant cost savings to the
Government will result. Impacts on
local suppliers and small and disadvantaged business concerns should be considered in the overall business strategy.
§ 109–27.102–52 Implementation.
(a) DOE OPMOs shall establish required property management controls
relative to the implementation of systems contracting.
(b) DOE offices and designated contractors operating a materials management function who have not performed
an initial feasibility study for the implementation of systems contracting
shall perform such a study for selected
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§ 109–27.202
41 CFR Ch. 109 (7–1–16 Edition)
commodity groups. The study may be
accomplished over a period of time,
until all commodity groups have been
considered. The study should address
functional requirements, activity levels of commodity groups and individual
items, and potential impacts on local
suppliers and small and disadvantaged
businesses. An industrial relations
analysis on existing labor relations and
union contracts may also be necessary.
(c) As required in the DEAR, DOE offices and designated contractors are required to consider the use of GSA supply sources when economically advantageous to the Government. These
sources must be considered in the conduct of the feasibility study.
(d) DOE contracting offices shall
evaluate the initial cost benefit studies
performed by contractors to verify the
savings and other benefits of systems
contracting, and shall approve its implementation. In those instances where
a cost benefit study has previously
been performed, the DOE contracting
office shall ensure that those studies
have been evaluated and the approval
to proceed with systems contracting
has been provided to the contractor in
writing.
(e) DOE offices shall periodically reevaluate systems contracting operations conducted by their office and
designated contractors to ensure that
required property management controls are being followed.
Applicability.
When considered more suitable, designated contractors may use other generally accepted approaches to the management of shelf-life materials.
Subpart 109–27.3—Maximizing Use
of Inventories
§ 109–27.302
§ 109–27.402
Applicability
When considered more suitable, designated contractors may use other generally accepted approaches to determine which items should be eliminated
from inventory.
Subpart
109–27.50—Inventory
Management Policies, Procedures, and Guidelines
§ 109–27.5001
Objectives.
Necessary inventories shall be established and maintained at reasonable
levels, consistent with DOE requirements, applicable laws and regulations,
and the following objectives:
(a) The maintenance of adequate
stock levels through accurate analyses
of quantities to determine requirements and stock replenishments so
that only minimal obsolescence losses
will be encountered while ensuring adequate inventory levels to meet program schedules;
(b) The protection of materials
against misuse, theft, and misappropriation;
(c) The maintenance of an efficient
operation; and
(d) The standardization of inventories to the greatest extent practicable.
§ 109–27.5002 Stores
over ratio.
Subpart 109–27.2—Management
of Shelf-Life Materials
§ 109–27.202
Subpart 109–27.4—Elimination of
Items From Inventory
Applicability.
When considered more suitable, designated contractors may use other generally accepted approaches to maximizing use of inventories.
inventory
Comparison of investment in stores
inventories to annual issues shall be
made to assure that minimum inventories are maintained for the support
of programs. This comparison may be
expressed either as a turnover ratio
(dollar value of issues divided by dollar
value of inventory) or in the average
number of month’s supply on hand.
Turnover or number of month’s supply
is calculated only on current-use inventory. Performance goals, i.e., a six
months investment or a turnover ratio
of 2.0, shall be established for each
stores using activity. It is recognized,
however, that extenuating operating
circumstances
may
preclude
the
achievement of such objectives.
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Department of Energy
§ 109–27.5003
§ 109–27.5009
Stock control.
§ 109–27.5007
(a) Stock control shall be maintained
on the basis of stock record accounts of
inventories on hand, on order, received,
issued, and disposed of, and supported
by proper documents in evidence of
these transactions. Stock record accounts shall be available for review and
inspection.
(b) Personal property under stock
control for greater than 90 days shall
be maintained in stock record accounts.
§ 109–27.5004
Sub-stores.
(a) Sub-stores shall be established
when necessary to expedite delivery of
materials and supplies to the users,
serve emergencies, provide economy in
transportation, reduce shop and site
stocks, and enable stores personnel to
provide assistance in obtaining materials and supplies as needed.
(b) Items stored for issue in the substores shall be treated as inventory
items for control and reporting purposes. Stock records shall be integrated with central stock records so
that the total amount on hand of any
item at all locations is known.
§ 109–27.5005 Shop,
or site stock.
bench,
cupboard
Shop, bench, cupboard or site stocks
are an accumulation of small inventories of fast-moving materials at the
point of use. Normally, these inventories are expensed at time of issue
from controlled stores. However, when
stocks of such inventories are not consumed or do not turn over in a reasonable period of time, which normally
should not exceed 90 days, these items
should be subject to the required physical controls and recorded in the proper
inventory account.
§ 109–27.5006
Stores catalogs.
A stores catalog for customer use
that lists items available from stock
shall be established for each stores operation. Exceptions to this requirement are authorized where establishment of a catalog is impracticable or
uneconomical because of small total
value or number of items involved, or
temporary need for the facility.
Physical inventories.
§ 109–27.5007–1
Procedures.
The following procedures shall be established for taking physical inventory
of stocks subjected to quantity controls as well as those under financial
control:
(a) Completion of a physical inventory not less frequently than every
twelve months.
(b) Reconciliation of inventory quantities with the stock records.
(c) Preparation of a report of the
physical inventory results.
§ 109–27.5007–2
Inventory adjustments.
Discrepancies between physical inventories and stock records shall be adjusted and the supporting adjustment
records shall be reviewed and approved
by a responsible official at least one
supervisory level above the supervisor
in charge of the warehouse or storage
facility. Items on an adjustment report
which are not within reasonable tolerances for particular items shall be
thoroughly investigated before report
approval. Adjustment reports shall be
retained on file for inspection and review.
§ 109–27.5008 Control of drug
stances and potable alcohol.
Effective procedures and practices
shall provide for the management and
physical security of controlled substances and potable alcohol from receipt to the point of use. Such procedures shall, as a minimum, provide for
safeguarding, proper use, adequate
records, and compliance with applicable laws and regulations. Controls and
records of potable alcohol shall be
maintained on quantities of one quart
and above.
§ 109–27.5009 Control of
needles and syringes.
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hypodermic
Effective procedures and practices
shall provide for the management and
physical security of hypodermic needles and syringes to prevent illegal use.
Controls shall include supervisory approval for issue, storage in locked repositories, and the rendering of the
items useless prior to disposal.
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§ 109–27.5010
§ 109–27.5010
vendors.
41 CFR Ch. 109 (7–1–16 Edition)
Containers returnable to
Containers furnished by vendors shall
be administratively and physically
controlled before and after issuance.
Prompt action shall be taken to return
such containers to vendors for credit
after they have served their intended
use.
§ 109–27.5011 Identification marking of
metals and metal products.
§ 109–27.5011–1
General.
Metals and metal products shall be
identified and marked in accordance
with applicable Federal standards. This
requirement applies to direct charges
as well as to items procured for store,
shop or floor stock, or for use on construction projects. Additional markings not covered by Federal standards
should be used to show special properties, corrosion data, or test data as
required. The preferred process is for
the marking to be done in the manufacturing process, but it may be applied by suppliers when circumstances
warrant.
§ 109–27.5011–2
Exception.
Exceptions to the marking requirement may be made when:
(a) It is necessary to procure small
quantities from suppliers not equipped
to do the marking;
(b) It would delay delivery of emergency orders; or
(c) Procurement is from DOE or
other Federal agency excess.
Subpart 109–27.51—Management
of Precious Metals
§ 109–27.5100
Scope of subpart.
This subpart provides policies, principles, and guidelines to be used in the
management of purchased and recovered precious metals used to meet research, development, production, and
other programmatic needs.
§ 109–27.5101
Definition.
Precious metals means uncommon and
highly valuable metals characterized
by their superior resistance to corrosion and oxidation. Included are gold,
silver, and the platinum group met-
als—platinum, palladium, rhodium,
iridium, ruthenium and osmium.
§ 109–27.5102
Policy.
DOE organizations and contractors
shall establish effective procedures and
practices for the administrative and
physical control of precious metals in
accordance with the provisions of this
subpart.
§ 109–27.5103
Officer.
Precious Metals Control
Each DOE organization and contractor holding precious metals shall
designate in writing a Precious Metals
Control Officer. This individual shall
be the organization’s primary point of
contact concerning precious metals
control and management, and shall be
responsible for the following:
(a) Assuring that the organization’s
precious metals activities are conducted in accordance with Departmental requirements.
(b) Maintaining of an accurate list of
the
names
of
precious
metals
custodians.
(c) Providing instructions and training to precious metals custodians and/
or users as necessary to assure compliance with regulatory responsibilities.
(d) Insuring that physical inventories
are performed as required by, and in
accordance with, these regulations.
(e) Witnessing physical inventories.
(f) Performing periodic unannounced
inspections of a custodian’s precious
metals inventory and records.
(g) Conducting an annual review of
precious metals holdings to determine
excess quantities.
(h) Preparing and submitting to the
Business Center for Precious Metals
Sales and Recovery the annual forecast
of anticipated withdrawals from, and
returns to, the DOE precious metals
pool.
(i) Conducting a program for the recovery of silver from used hypo solution and scrap film in accordance with
41 CFR 101–45.10 and § 109–45.10 of this
chapter.
(j) Preparing and submitting of the
annual report on recovery of silver
from used hypo solution and scrap film
as required by § 109–45.1002–2 of this
chapter.
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Department of Energy
§ 109–27.5104–6
(k) Developing and issuing current
authorization lists of persons authorized by management to withdraw precious metals from stockrooms.
§ 109–27.5104
dures.
Practices
§ 109–27.5104–1
and
proce-
Acquisitions.
DOE organizations and contractors
shall contact the Business Center for
Precious Metals Sales and Recovery to
determine the availability of precious
metals prior to acquisition on the open
market.
§ 109–27.5104–2 Physical
and storage.
protection
Precious metals shall be afforded exceptional physical protection from
time of receipt until disposition. Precious metals not in use shall be stored
in a noncombustible combination
locked repository with access limited
to the designated custodian and an alternate. When there is a change in custodian or alternate having access to
the repository, the combination shall
be changed immediately.
§ 109–27.5104–3
records.
Perpetual
inventory
Perpetual inventory records shall be
maintained as specified in Chapter V of
DOE Order 534.1, Accounting.
§ 109–27.5104–4
Physical inventories.
(a) Physical inventories shall be conducted annually by custodians, and
witnessed by the Precious Metals Control Officer or his designee.
(b) Precious metals not in use shall
be inspected and weighed on calibrated
scales. The inventoried weight and
form shall be recorded on the physical
inventory sheets by metal content and
percent of metal. Metals in use in an
experimental process or contaminated
metals, neither of which can be
weighed, shall be listed on the physical
inventory sheet as observed and/or not
observed as applicable.
(c) Any obviously idle or damaged
metals should be recorded during the
physical inventory. Justification for
further retention of idle metals shall
be required from the custodian and approved one level above the custodian,
or disposed of in accordance with established procedures.
(d) The dollar value of physical inventory results shall be reconciled with
the financial records. All adjustments
shall be supported by appropriate adjustment reports, and approved by a responsible official.
§ 109–27.5104–5 Control and issue of
stock.
Precious metals in stock are metals
held in a central location and later
issued to individuals when authorized
requests are received. The following
control procedures shall be followed for
such metals:
(a) Stocks shall be held to a minimum consistent with efficient support
to programs.
(b) The name and organization number of each individual authorized to
withdraw precious metals, and the type
and kind of metals, shall be prominently maintained in the stockroom.
This authorization shall be issued by
the Precious Metals Control Officer or
his designee and updated annually.
Issues of metals will be made only to
authorized persons.
(c) Accurate records of all receipts,
issues, returns, and disposals shall be
maintained in the stockroom.
(d) Receipts for metal issues and returns to stock shall be provided to
users. Such receipts, signed by the authorized requesting individual and the
stockroom clerk, shall list the requesting organization, type and form of
metal, quantity, and date of transaction.
§ 109–27.5104–6 Control by using organization.
(a) After receipt, the using organization shall provide necessary controls
for precious metals. Materials shall be
stored in a non-combustible, combination locked repository at all times except for quantities at the actual point
of use.
(b) Each using organization shall
maintain a log showing the individual
user, type and form of metal, and the
time, place, and purpose of each use.
The log shall be kept in a locked repository when not in use.
(c) The logs and secured locked storage facilities are subject to review by
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§ 109–27.5105
41 CFR Ch. 109 (7–1–16 Edition)
the Precious Metals Control Officer
and other audit or review staffs as required.
(d) Cognizant Departmental managers are responsible for assuring that
minimum quantities of precious metals
are withdrawn consistent with work requirements and that quantities excess
to requirements are promptly returned
to the stockroom.
(e) Employee termination and transfer procedures shall include clearance
for precious metals possession.
§ 109–27.5105
audits.
Management reviews and
(a) Unannounced inspections of
custodian’s precious metals inventory
and records may be conducted between
scheduled inventories.
(b) DOE organizations and contractors holding precious metals shall annually review the quantity of precious
metals on hand to determine if the
quantity is in excess of program requirements. Precious metals which are
not needed for current or foreseeable
requirements shall be promptly reported to the DOE precious metals
pool. The results of this annual review
are to be documented and entered into
the precious metals inventory records.
§ 109–27.5106
Precious metals pool.
§ 109–27.5106–1
Purpose.
The purpose of the precious metals
pool is to recycle, at a minimum cost
to pool participants, DOE-owned precious metals within the Department
and to dispose of DOE-owned precious
metals that are excess to DOE needs.
However, if the pool is unable to accept
any potential precious metal return,
the using activity will dispose of the
precious metals through the disposal
process specified in subchapter H of the
FPMR and this regulation.
§ 109–27.5106–2
Withdrawals.
Pure metals, parts, fabricated products, catalysts, or solutions, are generally available and the Business Center for Precious Metals Sales and Recovery can provide assistance in supplying such requirements. Metals can
be shipped to any facility to fulfill fabrication requirements.
§ 109–27.5106–3
Returns.
All excess precious metals must be
returned to the precious metals pool
except as noted in § 109–27.5106–1 of this
subpart. The pool is entirely dependent
on metal returns; therefore, metal inventories should be maintained on an
as-needed basis, and any excess metals
must be returned to the pool for recycling. With the exception of silver, this
includes precious metals in any form,
including shapes, scrap, or radioactively contaminated. Only high
grade nonradioactively contaminated
silver should be included. Procedures
have been developed by the precious
metals pool contractor for metal returns, including storing, packaging,
shipping, and security.
§ 109–27.5106–4
forecasts.
Withdrawals/returns
The Business Center for Precious
Metals Sales and Recovery will request
annually from each DOE field organization its long-range forecast of anticipated withdrawals from the pool and
returns to the pool.
§ 109–27.5106–5
Assistance.
The Business Center for Precious
Metals Sales and Recovery operates
the precious metals pool. DOE organizations and contractors may obtain
specific information regarding the operation of the precious metals pool (operating contractor’s name, address, and
telephone number; processing charges;
etc.) by contacting the Chief, Property
Management Branch, Oak Ridge Operations Office.
§ 109–27.5107 Recovery of silver from
used hypo solution and scrap film.
The requirements for the recovery of
silver from used hypo solution and
scrap film are contained in § 109–45.1003
of this chapter.
PART 109–28—STORAGE AND
DISTRIBUTION
Sec.
109–28.000–50
109–28.000–51
Policy.
Storage guidelines.
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Department of Energy
§ 109–28.306–5
Subpart 109–28.3—Customer Supply
Centers
109–28.306 Customer supply center (CSC) accounts and related controls.
109–28.306–3 Limitations on use.
109–28.306–5 Safeguards.
Subpart 109–28.50—Management of
Equipment Held for Future Projects
109–28.5000 Scope of subpart.
109–28.5001 Definition.
109–28.5002 Objective.
109–28.5003 Records.
109–28.5004 Justification and review procedures.
109–28.5005 EHFFP program review.
109–28.5006 Utilization.
Subpart 109–28.51—Management of Spare
Equipment
109–28.5100
109–28.5101
109–28.5102
109–28.5103
Scope of subpart.
Definition.
Exclusions.
Management policy.
AUTHORITY: 42 U.S.C. 7254.
SOURCE: 63 FR 19630, Apr. 20, 1998, unless
otherwise noted.
§ 109–28.000–50
Policy.
DOE offices and designated contractors shall:
(a) Establish storage space and
warehousing services for the receipt,
storage, issue, safekeeping and protection of Government property;
(b) Provide storage space and
warehousing services in the most efficient manner consistent with program
requirements; and
(c) Operate warehouses in accordance
with generally accepted industrial
management practices and principles.
§ 109–28.000–51
Storage guidelines.
such areas restricted to authorized personnel only.
(d) Property in storage must be protected from fire, theft, deterioration,
or destruction. In addition certain
items require protection from dampness, heat, freezing, or extreme temperature changes. Other items must be
stored away from light and odors, protected from vermin infestation, or
stored separately because of their hazardous characteristics.
(e) Hazardous or contaminated property, including property having a history of use in an area where exposure
to contaminated property may have occurred, shall not be commingled with
non-contaminated property, but stored
separately in accordance with instructions from the environmental, safety,
and health officials.
(f) Unless inappropriate or impractical until declared excess, nuclear-related and proliferation-sensitive property shall be identified as such by use
of a certification tag signed by an authorized program official (designated
in writing with signature cards on file
in the personal property management
office). Such personal property shall
not be commingled with other personal
property, but stored separately in accordance with instructions from the
cognizant program office.
Subpart 109–28.3—Customer
Supply Centers
§ 109–28.306 Customer supply center
(CSC) accounts and related controls.
§ 109–28.306–3
(a) Indoor storage areas should be arranged to obtain proper stock protection and maximum utilization of space
within established floor load capacities.
(b) Storage yards for items not requiring covered protection shall be protected by locked fenced enclosures to
the extent necessary to protect the
Government’s interest.
(c) Storage areas shall be prominently posted to clearly indicate that
the property stored therein is U.S.
Government property, with entrance to
Limitations on use.
DOE offices and designated contractors shall establish internal controls
for ensuring that the use of CSC accounts is limited to the purchase of
items for official Government use.
§ 109–28.306–5
Safeguards.
DOE offices and designated contractors shall establish internal controls
for ensuring that the customer access
codes assigned for their accounts are
properly protected.
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§ 109–28.5000
41 CFR Ch. 109 (7–1–16 Edition)
Subpart 109–28.50—Management
of Equipment Held for Future
Projects
§ 109–28.5000
Scope of subpart.
This subpart provides policies, principles, and guidelines to be used in the
management of equipment held for future projects (EHFFP).
§ 109–28.5001
Definition.
Equipment held for future projects
means items being retained, based on
approved justifications, for a known future use, or for a potential use in
planned projects.
§ 109–28.5002
Objective.
The objective of the EHFFP program
is to enable DOE offices and contractors to retain equipment not in use in
current programs but which has a
known or potential use in future DOE
programs, while providing visibility on
the types and amounts of equipment so
retained through review and reporting
procedures. It is intended that equipment be retained where economically
justifiable for retention, considering
cost of maintenance, replacement, obsolescence, storage, deterioration, or
future availability; made available for
use by others; and promptly excessed
when no longer needed.
§ 109–28.5003
(b) The validity of the initial classification EHFFP shall be reviewed by
management at a level above that of
the individual making the initial determination.
(c) Retention of equipment as EHFFP
must be rejustified annually to ensure
that original justifications remain
valid. The rejustifications will contain
sufficient detail to support retention.
(d) When equipment is retained as
EHFFP for longer than one year, the
annual rejustification shall be reviewed at a level of management at
least two levels above that of the individual making the determination to retain the EHFFP. Equipment retained
as EHFFP for longer than three years
should be approved by the head of the
DOE field organization.
§ 109–28.5005
EHFFP program review.
OPMOs or on-site DOE property administrators shall conduct periodic reviews to ensure that the EHFFP program is being conducted in accordance
with established procedures and this
subpart. Included in the review will be
proper determinations of property as
EHFFP, the validity of justifications
for retaining EHFFP, and the inclusion
of EHFFP in management walkthroughs as prescribed in § 109–25.109–1
of this chapter.
Records.
Records of all EHFFP shall be maintained by the holding organization, including a listing of items with original
date of classification as EHFFP; initial
justifications for retaining EHFFP; rejustifications for retention; and documentation of reviews made by higher
levels of management.
§ 109–28.5006
Subpart 109–28.51—Management
of Spare Equipment
§ 109–28.5004 Justification and review
procedures.
Procedures shall provide for the following:
(a) The original decision to classify
and retain equipment as EHFFP shall
be justified in writing, providing sufficient detail to support the need for retention of the equipment. This justification will cite the project for
which retained, the potential use to be
made of the equipment, or other reasons for retention.
Utilization.
It is DOE policy that, where practicable and consistent with program
needs, EHFFP be considered as a
source of supply to avoid or postpone
acquisition.
§ 109–28.5100
Scope of subpart.
This subpart provides policy guidance to be used in the management of
spare equipment.
§ 109–28.5101
Definition.
Spare equipment means items held as
replacement spares for equipment in
current use in DOE programs.
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Department of Energy
§ 109–30.001–50
§ 109–28.5102 Exclusions.
The following categories of equipment will not be considered spare
equipment:
(a) Equipment installed for emergency backup, e.g., an emergency
power facility, or an electric motor or
a pump, any of which is in place and
electrically connected.
(b) Equipment items properly classified as stores inventory.
§ 109–28.5103 Management policy.
(a) Procedures shall require the
maintenance of records for spare equipment, cross-referenced to the location
in the facility and the engineering
drawing number. The purpose for retention shall be in the records.
(b) Reviews shall be made based on
technical evaluations of the continued
need for the equipment. The reviews
should be held biennially. In addition,
individual item levels shall be reviewed
when spare equipment is installed for
use, the basic equipment is removed
from service, or the process supported
is changed.
(c) Procedures shall be established to
provide for the identification and reporting of unneeded spare equipment as
excess property.
PART 109–30—FEDERAL CATALOG
SYSTEM
AUTHORITY: 42 U.S.C. 7254.
SOURCE: 63 FR 19632, Apr. 20, 1998, unless
otherwise noted.
§ 109–30.001–50
Applicability.
The provisions of 41 CFR part 101–30
do not apply to designated contractors.
SUBCHAPTER F [RESERVED]
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SUBCHAPTER G—AVIATION, TRANSPORTATION, AND
MOTOR VEHICLES
PART 109–37 [RESERVED]
Subpart 109–38.4—Use and Replacement
Standards
PART 109–38—MOTOR EQUIPMENT
MANAGEMENT
109–38.401 Use standards.
109–38.401–2 Use of self-service pumps.
109–38.402 Replacement standards.
109–38.402–50 Prompt disposal of replaced
motor vehicles.
109–38.403 Responsibility for damages.
109–38.403–1 Policy.
109–38.403–2 Responsibility.
109–38.403–3 Exceptions.
Sec.
109–38.000 Scope of part.
109–38.000–50 Policy.
Subpart 109–38.0—Definition of Terms
109–38.001
Definitions.
Subpart 109–38.5—Scheduled
Maintenance
Subpart 109–38.1—Fuel Efficient Motor
Vehicles
109–38.502 Guidelines.
109–38.502–50 DOE guidelines.
109–38.104 Fuel efficient passenger automobiles and light trucks.
109–38.105 Agency purchase and lease of
motor vehicles.
109–38.106 Leasing of motor vehicles.
Subpart 109–38.2—Registration,
Identification, and Exemptions
109–38.200 General requirements.
109–38.201 Registration and inspection.
109–38.201–50 Registration in foreign countries.
109–38.202 Tags.
109–38.202–2 Outside the District of Columbia.
109–38.202–3 Records.
109–38.202–50 Security.
109–38.203 Agency identification.
109–38.204 Exemptions.
109–38.204–1 Unlimited exemptions.
109–38.204–3 Requests for exempted motor
vehicles in the District of Columbia.
109–38.204–4 Report of exempted motor vehicles.
109–38.204–50 Records of exempted motor vehicles.
Subpart 109–38.3—Official Use of
Government Motor Vehicles
109–38.300 Scope.
109–38.301 Authorized use.
109–38.301–1 Contractors’ use.
109–38.301–1.50 Authorization for transportation between residence and place of
employment.
109–38.301–1.51 Emergency use.
109–38.301–1.52 Maintenance of records.
109–38.301–1.53 Responsibilities of motor vehicle operators.
Subpart 109–38.7—Transfer, Storage, and
Disposal of Motor Vehicles
109–38.701 Transfer of title for Governmentowned motor vehicles.
109–38.701–50 Authority to sign Standard
Form 97, The United States Government
Certificate to Obtain Title to a Vehicle.
Subpart 109–38.8—Standard Form 149, U.S.
Government National Credit Card
109–38.800 General.
109–38.801 Obtaining SF 149, U.S. Government National Credit Card.
Subpart 109–38.9—Federal Motor Vehicle
Fleet Report
109–38.902 Records.
109–38.903 Reporting of data.
109–38.903–50 Reporting DOE motor vehicle
data.
Subpart 109–38.51—Utilization of Motor
Equipment
109–38.5100 Scope of subpart.
109–38.5101 Policy.
109–38.5102 Utilization controls and practices.
109–38.5103 Motor vehicle utilization standards.
109–38.5104 Other motor equipment utilization standards.
109–38.5105 Motor vehicle local use objectives.
109–38.5106 Application of motor vehicle use
goals.
Subpart 109–38.52—Watercraft
109–38.5200
Scope of subpart.
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Department of Energy
§ 109–38.200
109–38.5201 Definition.
109–38.5202 Watercraft operations.
109–38.5203 Watercraft identification
numbers.
and
AUTHORITY: 42 U.S.C. 7254.
SOURCE: 63 FR 19632, Apr. 20, 1998, unless
otherwise noted.
§ 109–38.000
Scope of part.
§ 109–38.000–50 Policy.
Motor vehicles and watercraft shall
be acquired, maintained, and utilized
in support of DOE programs in the
minimum quantity required and in the
most efficient manner consistent with
program requirements, safety considerations, fuel economy, and applicable
laws and regulations.
Subpart 109–38.0—Definition of
Terms
§ 109–38.001 Definitions.
Experimental vehicles means vehicles
acquired solely for testing and research
purposes or otherwise designated for
experimental purposes. Such vehicles
are to be the object of testing and research as differentiated from those
used as vehicular support to testing
and research. Experimental vehicles
are not to be used for passenger carrying services unless required as part
of a testing/evaluation program, and
they are not subject to statutory price
limitations or authorization limitations.
Motor equipment means any item of
equipment which is self-propelled or
drawn by mechanical power, including
motor vehicles, motorcycles and scooters, construction and maintenance
equipment, materials handling equipment, and watercraft.
Motor vehicle means any equipment,
self-propelled or drawn by mechanical
power, designed to be operated principally on highways in the transportation of property or passengers.
Special purpose vehicles means vehicles which are used or designed for specialized functions. These vehicles include, but are not limited to: Trailers,
semi-trailers, other types of trailing
equipment; trucks with permanently
mounted equipment (such as aerial ladders); construction and other types of
equipment set forth in Federal Supply
Classification Group (FSCG) 38; material handling equipment set forth in
FSCG 39; and fire fighting equipment
set forth in FSCG 42. For reporting
purposes within DOE, motorcycles,
motor scooters and all terrain vehicles
will also be reported as special purpose
vehicles.
Subpart 109–38.1—Fuel Efficient
Motor Vehicles
§ 109–38.104 Fuel efficient passenger
automobiles and light trucks.
(a) [Reserved]
(b) All requests to purchase passenger automobiles larger than class
IA, IB, or II (small, subcompact, or
compact) shall be forwarded with justification to the DPMO for approval
and certification for compliance with
the fuel economy objectives listed in 41
CFR 101–38.104.
(1)–(4) [Reserved]
(5) Requests to exempt certain light
trucks from the fleet average fuel
economy calculations shall be forwarded with justification to the DPMO
for approval.
§ 109–38.105 Agency
purchase
lease of motor vehicles.
(a) DOE activities shall submit a
copy of all motor vehicle leases and
purchases not procured through the
GSA Automotive Commodity Center to
GSA.
(b)–(c) [Reserved]
(d) DOE activities desiring to renew a
commercial lease shall submit the requirement in writing to the DPMO for
approval prior to submission by field
offices to GSA.
(e) DOE activities shall submit a
copy of all lease agreements to GSA.
Subpart 109–38.2—Registration,
Identification, and Exemptions
§ 109–38.200
General requirements.
(a)–(e) [Reserved]
(f) Requests made pursuant to 41 CFR
101–38.200(f) for exemption from the requirement for displaying U.S. Government tags and other identification on
motor vehicles, except for those vehicles exempted in accordance with § 109–
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§ 109–38.201
41 CFR Ch. 109 (7–1–16 Edition)
38.204–1 of this subpart, shall be submitted through normal administrative
channels to the DPMO for approval.
Each approved exemption must be renewed annually, and the DPMO shall
be notified promptly when the need for
a previously authorized exemption no
longer exists. Copies of certifications
and cancellation notices required to be
furnished to GSA pursuant to 41 CFR
101–38.200(f) will be transmitted to GSA
by the DPMO.
(g) Requests for temporary removal
and substitution of Government markings shall be submitted with justification to the DPMO for review and approval. Copies of the determination and
justification required to be furnished
to GSA will be transmitted to GSA by
the DPMO.
§ 109–38.201
tion.
Registration and inspec-
§ 109–38.201–50
countries.
Registration in foreign
ments of license tags to the motor vehicles under their jurisdiction.
§ 109–38.202–50
Security.
Unissued license tags shall be stored
in a locked drawer, cabinet, or storage
area with restricted access to prevent
possible fraud or misuse. Tags which
are damaged or unusable will be safeguarded until destroyed.
§ 109–38.203
Agency identification.
Standard DOE motor vehicle window
decals (DOE Form 1530.1), and door decals to be used only on vehicles without windows (DOE Form 1530.2), are
available from the Office of Administrative Services, Logistics Management Division, Headquarters, using
DOE Form 4250.2, ‘‘Requisition for Supplies, Equipment or Services’’, or as directed by that office.
§ 109–38.204
Exemptions.
Motor vehicles used in foreign countries are to be registered and carry license tags in accordance with the existing motor vehicle regulations of the
country concerned. The person responsible for a motor vehicle in a foreign
country shall make inquiry at the
United States Embassy, Legation, or
Consulate concerning the regulations
that apply to registration, licensing,
and operation of motor vehicles and
shall be guided accordingly.
§ 109–38.204–1
§ 109–38.202
§ 109–38.204–3 Requests for exempted
motor vehicles in the District of Columbia.
Tags.
§ 109–38.202–2 Outside the District of
Columbia.
The Director of Administrative Services and heads of field organizations
shall make the determination concerning the use of tags outside the District of Columbia.
§ 109–38.202–3
Records.
(a) The DPMO assigns ‘‘blocks’’ of
U.S. Government license tag numbers
to DOE organizations and maintains a
current record of such assignments.
Additional ‘‘blocks’’ will be assigned
upon request.
(b) Each DOE direct operation and
designated contractor shall maintain a
current record of individual assign-
Unlimited exemptions.
(a)–(f) [Reserved]
(g) The Director, Office of Administrative Services and heads of field organizations for their respective organizations may approve exemptions from
the requirement for the display of U.S.
Government license tags and other official identification for motor vehicles
used for security or investigative purposes.
The Director, Office of Administrative Services is designated to approve
requests for regular District of Columbia license tags, and furnishes annually
the name and specimen signature of
each representative authorized to approve such requests to the District of
Columbia Department of Transportation.
§ 109–38.204–4 Report
motor vehicles.
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DOE offices shall provide upon request the necessary information to the
DPMO to enable that office to submit a
report of exempted vehicles.
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Department of Energy
§ 109–38.204–50 Records
motor vehicles.
§ 109–38.301–1.51
of
exempted
The Director, Office of Administrative Services and heads of field organizations shall maintain records of motor
vehicles exempted from displaying U.S.
Government license tags and other
identification. The records shall contain a listing, by type, of each exempted motor vehicle operated during the
previous fiscal year, giving information for each motor vehicle on hand at
the beginning of the year and each of
those newly authorized during the
year, including:
(a) Name and title of authorizing official (including any authorization by
Headquarters and GSA);
(b) Date exemption was authorized;
(c) Justification for exemption and
limitation on use of the exempted
motor vehicle;
(d) Date of discontinuance for any exemption discontinued during the year;
and
(e) Probable duration of exemptions
for motor vehicles continuing in use.
Subpart 109–38.3—Official Use of
Government Motor Vehicles
§ 109–38.300
Scope.
This subpart prescribes the requirements governing the use of Government motor vehicles for official purposes by designated contractors.
§ 109–38.301 Authorized use.
The use of Government motor vehicles by officers and employees of the
Government is governed by the provisions of 41 CFR 101–6.4 and section 109–
6.4 of this chapter.
§ 109–38.301–1 Contractors’ use.
Heads of field organizations shall ensure that provisions of the FPMR concerning contractor use of Government
motor vehicles are complied with by
their designated contractors.
§ 109–38.301–1.50 Authorization
for
transportation between residence
and place of employment.
(a) Government motor vehicles shall
not be used for transportation between
residence and place of employment by
designated contractor personnel except
under extenuating circumstances specifically provided for under the terms
of the contract. Examples of circumstances eligible for prior approval
of home-to-work motor vehicle use
which would be appropriate to include
in the terms of the contract include:
use related to safety or security operations, use related to compelling operational considerations, and use determined as cost effective to DOE’s interest. Under no circumstances shall the
comfort and convenience, or managerial position, of contractor employees
be considered justification for authorization of use.
(b) The use of Government motor vehicles for transportation between residence and place of employment (including sporadic use) by designated contractor personnel shall be approved in
writing by the Head of the field organization or designee, with delegation no
lower than the Assistant Manager for
Administration at the Operations Offices or the equivalent position at
other DOE contracting activities provided that the individual is a warranted contracting officer. The contractor’s request for approval shall include the name and title of the employee, the reason for the use, and the
expected duration of the use. Each authorization is limited to one year, but
can be extended for an unlimited number of additional one-year periods.
§ 109–38.301–1.51
Emergency use.
(a) Procedures for authorization of
designated contractor use of Government motor vehicles in emergencies,
including unscheduled overtime situations at remote sites where prior approval is not possible, shall be included
in a contractor’s approved property
management procedures. The procedures shall include examples of emergency situations warranting such use.
Records detailing instances of emergency use shall be maintained and review of all such emergency or overtime
use must be certified through established audit procedures on at least an
annual basis by the OPMO.
(b) In limiting the use of Government
motor vehicles to official purposes, it
is not intended to preclude their use in
emergencies threatening loss of life or
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§ 109–38.301–1.52
41 CFR Ch. 109 (7–1–16 Edition)
property. Such use shall be documented and the documentation retained for three years.
§ 109–38.301–1.52
records.
Maintenance
of
Designated contractors shall maintain logs or other records on the use of
a Government motor vehicle for transportation between an employee’s residence and place of employment. As a
minimum, these logs shall indicate the
employee’s name, date of use, time of
departure and arrival, miles driven,
and names of other passengers. Cognizant finance offices shall be provided
with applicable data on employees who
utilize Government motor vehicles for
such transportation for purposes of the
Deficit Reduction Act of 1984 concerning the taxation of fringe benefits.
§ 109–38.301–1.53 Responsibilities
motor vehicle operators.
of
Designated contractors shall assure
that their employees are aware of their
responsibilities, identical to those listed in § 109–6.400–50 of this chapter for
DOE employees, concerning the use
and operation of Government motor vehicles.
Subpart 109–38.4—Use and
Replacement Standards
§ 109–38.401
Use standards.
§ 109–38.401–2
pumps.
Use
of
self-service
It is DOE policy that motor vehicle
operators shall use self-service pumps
in accordance with the provisions of 41
CFR 101–38.401–2.
§ 109–38.402
§ 109–38.402–50 Prompt disposal of replaced motor vehicles.
A replaced motor vehicle shall be removed from service and disposed of
prior to or as soon as practicable after
delivery of the replacement motor vehicle to avoid concurrent operation of
both motor vehicles.
§ 109–38.403
ages.
Responsibility
§ 109–38.403–1
(a) [Reserved]
(b) Motor vehicles may be replaced
without regard to the replacement
standards in 41 CFR 101–38.402 only
after certification by the Director of
Administrative Services or the Head of
the field organization for their respective organizations that a motor vehicle
is beyond economical repair due to accident damage or wear caused by abnormal operating conditions.
Policy.
§ 109–38.403–2
Responsibility.
The
designated
contractor
will
charge the using organization all costs
resulting from damage, including vandalism, theft and parking lot damage
to a DOE vehicle which occurs during
the period that the vehicle is assigned
to an employee of that organization.
The charges recovered by the designated maintenance operation will be
used to repair the vehicle. Other examples for which organizations will be
charged are as follows:
(a) Damage caused by misuse or
abuse inconsistent with normal operation and local conditions; or
(b) Repair costs which are incurred as
a result of user’s failure to obtain required preventative maintenance; or
(c) Unauthorized purchases or repairs, including credit card misuse,
provided there is a clear, flagrant, and
documented pattern of such occurrences.
Exceptions.
Exceptions to § 109–38.403–2 of this
subpart are as follows:
(a) As the result of the negligent or
willful act of a party other than the organization or it’s employee, and the responsible party can be determined; or
(b) As a result of mechanical failure
and the employee was not otherwise
negligent. Proof of the failure must be
provided; or
(c) As a result of normal wear comparable to similar vehicles.
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The policy for assigning responsibility for vehicle damage is to recover
from users the costs for damages which
would adversely affect the vehicle’s resale.
§ 109–38.403–3
Replacement standards.
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Department of Energy
§ 109–38.902
Subpart 109–38.5—Scheduled
Maintenance
§ 109–38.502
Subpart 109–38.8—Standard Form
149, U.S. Government National Credit Card
Guidelines.
§ 109–38.502–50
§ 109–38.800
DOE guidelines.
(a) Whenever practicable and cost effective, commercial service facilities
shall be utilized for the maintenance of
motor vehicles.
(b) Individual vehicle maintenance
records shall be kept to provide records
of past repairs, as a control against unnecessary repairs and excessive maintenance, and as an aid in determining
the most economical time for replacement.
(c) One-time maintenance and repair
limitations shall be established by the
motor equipment fleet manager. To exceed repair limitations, approval of the
motor equipment fleet manager is required.
(d) Warranties. (1) Motor vehicles
under manufacturer’s warranty shall
be repaired under the terms of the warranty.
(2) When motor vehicles are maintained in Government repair facilities
in isolated locations that are distant
from franchised dealer facilities, or
when it is not practical to return the
vehicles to a dealer, a billback agreement shall be sought from manufacturers to permit warranty work to be performed on a reimbursable basis.
Subpart 109–38.7—Transfer, Storage, and Disposal of Motor
Vehicles
§ 109–38.701 Transfer of title for Government-owned motor vehicles.
§ 109–38.701–50 Authority
to
sign
Standard Form 97, The United
States Government Certificate to
Obtain Title to a Vehicle.
The Standard Form (SF) 97 shall be
signed by an appropriate contracting
officer. The Director, Office of Administrative Services and heads of field organizations for their respective organizations may delegate the authority to
sign SF 97 to responsible DOE personnel under their jurisdiction.
General.
(a)–(c) [Reserved]
(d) The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall be responsible for establishing procedures to provide for the
administrative control of fleet credit
cards. Administrative control shall include, as a minimum:
(1) A reconciliation of on-hand credit
cards with the inventory list provided
by GSA,
(2) Providing motor vehicle operators
with appropriate instructions regarding the use and protection of credit
cards against theft and misuse,
(3) The taking of reasonable precautions in the event an SF 149 or SF
149A is lost or stolen to minimize the
opportunity of purchases being made
by unauthorized persons, including notification to the paying office of the
loss or theft,
(4) Validation of credit card charges
to ensure they are for official use only
items, and
(5) Being on the alert for any unauthorized bills.
§ 109–38.801 Obtaining SF 149, U.S.
Government National Credit Card.
DOE offices electing to use national
credit cards shall request the assignment of billing address code numbers
from the DPMO. Following the assignment, DOE organizations shall submit
orders for issuance of national credit
cards in accordance with the instructions provided by GSA.
Subpart 109–38.9—Federal Motor
Vehicle Fleet Report
§ 109–38.902
Records.
The Director, Office of Administrative Services and OPMOs for their respective organizations shall establish
adequate records for accounting and reporting purposes.
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§ 109–38.903
§ 109–38.903
41 CFR Ch. 109 (7–1–16 Edition)
Reporting of data.
§ 109–38.903–50 Reporting DOE motor
vehicle data.
(a) DOE offices and designated contractors operating DOE-owned or commercially-leased motor vehicles shall
prepare the following reports using SF
82, Agency Report of Motor Vehicle
Data or DOE approved equivalent, for
the entire fleet including security vehicles.
(1) DOE Report of Motor Vehicle
Data.
(2) DOE Report of Truck Data.
(b) Designated contractors shall submit the reports to the DOE contracting
office for review and approval. DOE offices shall submit reports, including
designated contractor reports, to the
DPMO by November 15 of each year.
(c) Copies of the report forms may be
obtained by contacting the DPMO.
(d) Personal computer generated reports are acceptable provided that the
standard report format is followed.
Subpart 109–38.51—Utilization of
Motor Equipment
§ 109–38.5100
Scope of subpart.
This subpart prescribes policies and
procedures concerning the utilization
of motor equipment.
§ 109–38.5101
Policy.
It is DOE policy to keep the number
of motor vehicles and other motor
equipment at the minimum needed to
satisfy programmatic requirements. To
attain this goal, controls and practices
shall be established which will achieve
the most practical and economical utilization of motor equipment. These
controls and practices apply to all
DOE-owned and commercially leased
motor equipment and to GSA Interagency Fleet Management System
motor vehicles.
§ 109–38.5102 Utilization controls and
practices.
Controls and practices to be used by
DOE organizations and designated contractors for achieving maximum economical utilization of motor equipment shall include, but not be limited
to:
(a) The maximum use of motor equipment pools, taxicabs, shuttle buses, or
other common service arrangements;
(b) The minimum, practicable assignment of motor equipment to individuals, groups, or specific organizational
components;
(c) The maintenance of individual
motor equipment use records, such as
trip tickets or vehicle logs, or hours of
use, as appropriate, showing sufficiently detailed information to evaluate appropriateness of assignment and
adequacy of use being made. If onetime use of a motor vehicle is involved,
such as assignments from motor pools,
the individual’s trip records must, as a
minimum, identify the motor vehicle
and show the name of the operator,
dates, destination, time of departure
and return, and mileage;
(d) The rotation of motor vehicles between high and low mileage assignments where practicable to maintain
the fleet in the best overall replacement age and mileage balance and operating economy;
(e) The charging, if considered feasible, to the user organization for the
cost of operating and maintaining
motor vehicles assigned to groups or
organizational
components.
These
charge-back costs should include all direct and indirect costs of the motor vehicle fleet operation as determined by
the field organization and contractor
finance and accounting functions;
(f) The use of dual-purpose motor vehicles capable of hauling both personnel and light cargo whenever appropriate to avoid the need for two motor
vehicles when one can serve both purposes. However, truck-type or van vehicles shall not be acquired for passenger
use merely to avoid statutory limitations on the number of passenger
motor vehicles which may be acquired;
(g) The use of motor scooters and motorcycles in place of higher cost motor
vehicles for certain applications within
plant areas, such as mail and messenger service and small parts and tool
delivery. Their advantage, however,
should be weighed carefully from the
standpoint of overall economy (comparison with cost for other types of
motor vehicles) and increased safety
hazards, particularly when mingled
with other motor vehicle traffic; and
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Department of Energy
§ 109–38.5106
(h) The use of electric vehicles for
certain applications. The use of these
vehicles is encouraged wherever it is
feasible to use them to further the goal
of fuel conservation.
§ 109–38.5103 Motor vehicle utilization
standards.
(a) The following average utilization
standards are established for DOE as
objectives for those motor vehicles operated generally for those purposes for
which acquired:
(1) Sedans and station wagons, general purpose use—12,000 miles per year.
(2) Light trucks (4 × 2’s) and general
purpose vehicles, one ton and under
(less than 12,500 GVWR)—10,000 miles
per year.
(3) Medium trucks and general purpose vehicles, 11⁄2 ton through 21⁄2 ton
(12,500 to 23,999 GVWR)—7,500 miles per
year.
(4) Heavy trucks and general purpose
vehicles, three ton and over (24,000
GVWR and over)—7,500 miles per year.
(5) Truck tractors—10,000 miles per
year.
(6) All-wheel-drive vehicles—7,500
miles per year.
(7) Other motor vehicles—No utilization standards are established for other
trucks, ambulances, buses, law enforcement motor vehicles, and special purpose vehicles. The use of these motor
vehicles shall be reviewed at least annually by the motor equipment fleet
manager and action shall be taken and
documented to verify that the motor
vehicles are required to meet programmatic, health, safety, or security
requirements.
(b) When operating circumstances
prevent the above motor vehicle utilization standards from being met, local
use objectives must be established and
met as prescribed in § 109–38.5105 of this
subpart.
§ 109–38.5104 Other motor equipment
utilization standards.
No utilization standards are established for motor equipment other than
motor vehicles. Each DOE office should
establish through an agreement between the fleet manager and the OPMO
utilization criteria for other motor
equipment including heavy mobile
equipment and review, adjust, and ap-
prove such criteria annually. Utilization of various classifications of other
motor equipment can be measured
through various statistics including
miles, hours of use, number of trips,
and fuel consumption. A utilization review of other motor equipment shall be
performed at least annually by the
motor equipment fleet manager to justify retainment or disposition of excess
equipment not needed to fulfill Departmental, programmatic, health, safety,
or security requirements.
§ 109–38.5105 Motor vehicle local use
objectives.
(a) Individual motor vehicle utilization cannot always be measured or
evaluated strictly on the basis of miles
operated or against any Departmentwide mileage standard. For example,
light trucks specifically fitted for use
by a plumber, welder, etc., in the performance of daily work assignments,
would have uniquely tailored use objectives, different from those set forth for
a truck used for general purposes. Accordingly, efficient local use objectives, which represent practical units
of measurement for motor vehicle utilization and for planning and evaluating future motor vehicle requirements, must be established and documented by the Organizational Motor
Equipment Fleet Manager. The objectives should take into consideration
past performance, future requirements,
geographical disbursement, and special
operating requirements.
(b) These objectives shall be reviewed
and adjusted as appropriate, but not
less often than annually, by the motor
equipment fleet manager. The reviews
shall be documented. The Organizational Motor Equipment Fleet Manager
is responsible for reviewing and approving in writing all proposed local use objectives.
§ 109–38.5106 Application of motor vehicle use goals.
(a) At least annually, the motor
equipment fleet manager will review
motor vehicle utilization statistics and
all motor vehicles failing to meet the
applicable DOE utilization standard or
local use objective must be identified.
(b) Prompt action must be initiated
to:
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§ 109–38.5200
41 CFR Ch. 109 (7–1–16 Edition)
(1) Reassign the underutilized motor
vehicles;
(2) Dispose of the underutilized motor
vehicles; or
(3) Obtain a special justification from
users documenting their continued requirement for the motor vehicle and
any proposed actions to improve utilization. Any requirement for underutilized motor vehicles which the motor
equipment fleet manager proposes to
continue in its assignment, must be
submitted in writing to the Organizational Motor Equipment Fleet Manager
for approval.
(c) Both Department-wide standards
and local use objectives should be applied in such a manner that their application does not stimulate motor vehicle use for the purpose of meeting the
objective.
The
ultimate
standard
against which motor vehicle use must
be measured is that the minimum number of motor vehicles will be retained
to satisfy program requirements.
Subpart 109–38.52—Watercraft
§ 109–38.5200 Scope of subpart.
This subpart establishes basic policies and procedures that apply to the
management of watercraft operated by
DOE organizations and designated contractors. The head of each Departmental
organization
operating
watercraft shall issue such supplemental instructions as may be needed
to ensure the efficient use and management of watercraft.
§ 109–38.5201 Definition.
As used in this subpart the following
definition applies:
Watercraft means any vessel used to
transport persons or material on water.
§ 109–38.5202 Watercraft operations.
(a) No person may operate a
watercraft on a waterway until skill of
operation and basic watercraft knowledge have been demonstrated.
(b) Operators of watercraft shall
check the vessel to ensure that necessary equipment required by laws applicable to the area of operation are
present, properly stowed, and in proper
working order.
(c) Operators shall comply with all
applicable Federal, state, and local
laws pertaining to the operation of
watercraft.
(d) Operators shall not use watercraft
or carry passengers except in the performance of official Departmental assignments.
§ 109–38.5203 Watercraft identification
and numbers.
Watercraft in the custody of DOE or
designated contractors shall display
identifying numbers, whether issued by
the U.S. Coast Guard, State, or local
field organization, in accordance with
applicable requirements.
PART 109–39—INTERAGENCY FLEET
MANAGEMENT SYSTEMS
Subpart 109–39.1—Establishment, Modification, and Discontinuance of Interagency Fleet Management Systems
Sec.
109–39.101 Notice of intention to begin a
study.
109–39.101–1 Agency cooperation.
109–39.103 Agency appeals.
109–39.105 Discontinuance or curtailment of
service.
109–39.105–2 Agency requests to withdraw
participation.
109–39.106 Unlimited exemptions.
109–39.107 Limited exemptions.
Subpart 109–39.3—Use and Care of GSA
Interagency Fleet Management System Vehicles
109–39.300
109–39.301
General.
Utilization guidelines.
AUTHORITY: 42 U.S.C. 7254.
SOURCE: 63 FR 19636, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–39.1—Establishment,
Modification, and Discontinuance of Interagency Fleet
Management Systems
§ 109–39.101 Notice
begin a study.
§ 109–39.101–1
of
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Agency cooperation.
The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall designate representatives to
coordinate with GSA concerning the
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Department of Energy
Pt. 109–40
establishment of a GSA fleet management system to serve their organization.
cles are aware of the prohibition
against the use of tobacco products in
these vehicles.
§ 109–39.103 Agency appeals.
The Director, Office of Administrative Services and heads of field organizations for their respective organizations may appeal, or request exemption
from, a determination made by GSA
concerning the establishment of a fleet
management system. A copy of the appeal or request shall be forwarded to
the DPMO.
§ 109–39.301
§ 109–39.105 Discontinuance or curtailment of service.
§ 109–39.105–2 Agency
requests
to
withdraw participation.
Should circumstances arise that
would tend to justify discontinuance or
curtailment of participation by a DOE
organization of a given interagency
fleet management system, the participating organization should forward
complete details to the DPMO for consideration and possible referral to the
Administrator of General Services.
§ 109–39.106 Unlimited exemptions.
The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall make the determination
that an unlimited exemption from inclusion of a motor vehicle in a fleet
management system is warranted. A
copy of the determination shall be forwarded to GSA and to the DPMO.
§ 109–39.107 Limited exemptions.
The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall seek limited exemptions
from the fleet management system.
Subpart 109–39.3—Use and Care
of GSA Interagency Fleet
Management System Vehicles
§ 109–39.300 General.
(a)–(c) [Reserved]
(d) Motor equipment fleet managers
shall ensure that operators and passengers in GSA Interagency Fleet Management System (IFMS) motor vehi-
Utilization guidelines.
DOE activities utilizing GSA IFMS
motor vehicles will receive and review
vehicle utilization statistics in order to
determine if miles traveled justify vehicle
inventory
levels.
Activities
should retain justification for the retention of vehicles not meeting DOE
utilization guidelines or established
local use objectives, as appropriate.
Those vehicles not justified for retention shall be returned to the issuing
GSA interagency fleet management
center.
PART 109–40—TRANSPORTATION
AND TRAFFIC MANAGEMENT
Subpart 109–40.1—General Provisions
Sec.
109–40.000 Scope of part.
109–40.000–50 Applicability to contractors.
109–40.102 Representation before regulatory
bodies.
109–40.103 Selection of carriers.
109–40.103–1 Domestic transportation.
109–40.103–2 Disqualification and suspension
of carriers.
109–40.103–3 International transportation.
109–40.104 Use of Government-owned transportation equipment.
109–40.109 Utilization of special contracts
and agreements.
109–40.110 Assistance to economically disadvantaged transportation businesses.
109–40.110–1 Small business assistance.
109–40.110–2 Minority business enterprises.
109–40.112 Transportation factors in the location of Government facilities.
109–40.113 Insurance against transportation
hazards.
Subpart 109–40.3—Traffic Management
109–40.301 Traffic management functions administration.
109–40.302 Standard routing principle.
109–40.303–3 Most fuel efficient carrier/mode.
109–40.304 Rate tenders to the Government.
109–40.305–50 Negotiations
involving
national security.
109–40.306–1 Recommended rate tender format.
109–40.306–2 Required shipping documents
and annotations.
109–40.306–3 Distribution.
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§ 109–40.000
41 CFR Ch. 109 (7–1–16 Edition)
Subpart 109–40.50—Bills of Lading
109–40.5000
109–40.5001
109–40.5002
109–40.5003
109–40.5004
109–40.5005
ment.
Scope of subpart.
Policy.
Applicability.
Commercial bills of lading.
Government bills of lading.
Description of property for ship-
Subpart 109–40.51—Price-Anderson Coverage Certifications for Nuclear Shipments
109–40.5100
109–40.5101
AUTHORITY: Sec. 161, as amended, 68 Stat.
948; 42 U.S.C. 2201; sec. 205, as amended, 63
Stat. 390; 40 U.S.C. 486; sec. 644, 91 Stat. 585,
42 U.S.C. 7254.
SOURCE: 63 FR 19637, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–40.1—General
Provision
Scope of part.
This part describes DOE regulations
governing transportation and traffic
management activities. It also covers
arrangements for transportation and
related services by bill of lading. These
regulations are designed to ensure that
all transportation and traffic management activities will be carried out in
the manner most advantageous to the
Government in terms of economy, efficiency, service, environment, safety
and security.
§ 109–40.000–50
tractors.
Applicability
to
con-
DOE-PMR 109–40, Transportation and
Traffic Management, should be applied
to cost-type contractors’ transportation and traffic management activities. Departure by cost-type contractors from the provisions of these regulations may be authorized by the contracting officer provided the practices
and procedures followed are consistent
with the basic policy objectives in
these regulations and DOE Order 460.2,
Departmental
Materials
Transportation and Packaging Management, except to the extent such departure is
prohibited by statute or executive
order.
Selection of carriers.
§ 109–40.103–1
tation.
Domestic
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(a) Preferential treatment, normally,
shall not be accorded to any mode of
transportation (motor, rail, air, water)
or to any particular carrier when arranging for domestic transportation
services. However where, for valid reasons, a particular mode of transportation or a particular carrier within
that mode must be used to meet specific program requirements and/or limitations, only that mode or carrier
shall be considered. Examples of valid
reasons for considering only a particular mode or carrier are:
(1) Where only a certain mode of
transportation or individual carrier is
able to provide the needed service or is
able to meet the required delivery
date; and
(2) Where the consignee’s installation
and related facilities preclude or are
not conducive to service by all modes
of transportation.
(b) The following factors are considered in determining whether a carrier
or mode of transportation can meet
DOE’s transportation service requirements for each individual shipment:
(1) Availability and suitability of
carrier equipment;
(2) Carrier terminal facilities at origin and destination;
(3) Pickup and delivery service, if required;
(4) Availability of required or accessorial and special services, if needed;
(5) Estimated time in transit;
(6) Record of past performance of the
carrier; and
(7) Availability and suitability of
transit privileges.
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before
Participation in proceedings related
to carrier applications to regulatory
bodies for temporary or permanent authority to operate in specified geographical locations shall be confined to
statements or testimony in support of
a need for service and shall not extend
to support of individual carriers or
groups of carriers.
§ 109–40.103
Scope of subpart.
Policy.
§ 109–40.000
§ 109–40.102 Representation
regulatory bodies.
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31
Department of Energy
§ 109–40.113
§ 109–40.103–2 Disqualification
and
suspension of carriers.
Disqualification and suspension are
measures which exclude carriers from
participation, for temporary periods of
time, in DOE traffic. To ensure that
the Government derives the benefits of
full and free competition of interested
carriers, disqualification and suspension shall not apply for any period of
time longer than necessary to protect
the interests of the Government.
§ 109–40.103–3 International transportation.
See 4 CFR 52.2 for a certificate required in nonuse of U.S. flag vessels or
U.S. flag certificated air carriers.
(a) U.S.-flag ocean carriers. Arrangements for international ocean transportation services shall be made in accordance with the provisions of section
901(b) of the Merchant Marine Act of
1936, as amended (46 U.S.C. 1241(b)) concerning the use of privately owned
U.S.-flag vessels.
(b) U.S.-flag certificated air carriers.
Arrangements for international air
transportation services shall be made
in accordance with the provisions of
section 5(a) of the International Air
Transportation Fair Competition Practices Act of 1974 (49 U.S.C. 1517), which
requires the use of U.S.-flag certificated air carriers for international
travel of persons or property to the extent that services by these carriers is
available.
§ 109–40.105 Use of Government-owned
transportation equipment.
The preferred method of transporting
property for the Government is
through use of the facilities and services of commercial carriers. However,
Government vehicles may be used when
they are available to meet emergencies
and accomplish program objectives
which cannot be attained through use
of commercial carriers.
§ 109–40.109 Utilization of special contracts and agreements.
From time to time special transportation agreements are entered into on
a Government-wide or DOE-wide basis
and are applicable, generally, to DOE
shipments. The HQ DOE Manager,
Transportation Operations and Traffic,
will distribute information on such
agreements to field offices as it becomes available.
§ 109–40.110 Assistance to economically disadvantaged transportation
businesses.
§ 109–40.110–1
ance.
Small
business
Consistent with the policies of the
Government with respect to small businesses, DOE shall place with small
business concerns a fair proportion of
the total purchases and contracts for
transportation and related services
such as packing and crating, loading
and unloading, and local drayage.
§ 109–40.110–2
prises.
Minority business enter-
Minority business enterprises shall
have the maximum practical opportunity to participate in the performance of Government contracts. DOE
shall identify transportation-related
minority enterprises and encourage
them to provide services that will support DOE’s transportation requirements.
§ 109–40.112 Transportation factors in
the location of Government facilities.
Transportation rate, charges, and
commercial
carrier
transportation
services shall be considered and evaluated prior to the selection of new site
locations and during the planning and
construction phases in the establishment of leased or relocated Government installations or facilities to ensure that consideration is given to the
various transportation factors that
may be involved in this relocation or
deactivation.
§ 109–40.113 Insurance against transportation hazards.
The policy of the Government with
respect to insurance of its property
while in the possession of commercial
carriers is set forth in 41 CFR 1–19.107.
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§ 109–40.301
41 CFR Ch. 109 (7–1–16 Edition)
Subpart 109–40.3—Traffic
Management
§ 109–40.301 Traffic management functions administration.
The DOE traffic management functions are accomplished by established
field traffic offices under provisions of
appropriate Departmental directives
and Headquarters’ staff traffic management supervision.
§ 109–40.302 Standard routing principle.
(a) Shipments shall be routed using
the mode of transportation, or individual carriers within the mode, that
can provide the required service at the
lowest overall delivered cost to the
Government.
(b) When more than one mode of
transportation, or more than one carrier within a mode, can provide equally
satisfactory service at the same overall
cost the traffic shall be distributed as
equitably as practicable among the
modes and among the carriers within
the modes.
§ 109–40.303–3 Most fuel efficient carrier/mode.
When more than one mode, or more
than one carrier within a mode, can
satisfy the service requirements of a
specific shipment at the same lowest
aggregate delivered cost, the carrier/
mode determined to be the most fuel
efficient will be selected. In determining the most fuel efficient carrier/
mode, consideration will be given to
such factors as use of the carrier’s
equipment in ‘‘turn around’’ service,
proximity of carrier equipment to the
shipping activity, and ability of the
carrier to provide the most direct service to the destination points.
§ 109–40.304 Rate tenders to the Government.
Under the provisions of section 10721
of the Interstate Commerce Act (49
U.S.C. 10721), common carriers are permitted to submit to the Government
tenders which contain rates lower than
published tariff rates available to the
general public. In addition, rates
tenders may be applied to shipments
other than those made by the Government provided the total benefits accrue
to the Government; that is, provided
the Government pays the charges or directly and completely reimburses the
party that initially bears the freight
charges (323 ICC 347 and 332 ICC 161).
§ 109–40.305–50 Negotiations involving
national security.
Title 49 U.S.C., section 10721(b)(2)
provides that rate tenders to the Government must be filed by the carriers
within the Interstate Commerce Commission unless a carrier is advised by
the U.S. Government that disclosure of
a quotation or tender of a rate established * * * for transportation provided
to the U.S. Government would endanger the National security. Carriers will
be informed by the negotiating official
if any quotation or tender to the Department of Energy involves such information.
§ 109–40.306–1 Recommended rate tender format.
Only those rate tenders which have
been submitted by the carriers in writing shall be considered for use. Carriers
should be encouraged to use the format
‘‘Uniform Tender of Rates and/or
Charges for Transportation Services’’
when preparing and submitting rate
tenders to the Government. Rate
tenders that are ambiguous in meaning
shall be resolved in favor of the Government.
§ 109–40.306–2 Required shipping documents and annotations.
(a) To qualify for transportation
under section 10721 rates, property
must be shipped by or for the Government on:
(1) Government bills of lading;
(2) Commercial bills of lading endorsed to show that these bills of lading are to be converted to Government
bills of lading after delivery to the consignee;
(3) Commercial bills of lading showing that the Government is either the
consignor or the consignee and endorsed with the following statement:
Transportation hereunder is for the U.S.
Department of Energy, and the actual total
transportation charges paid to the carrier(s)
by the consignor or consignee are assignable
to, and are to be reimbursed by, the Government.
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Department of Energy
§ 109–40.5004
(b) When a rate tender is used for
transportation furnished under a costreimbursable contract, the following
endorsement shall be used on covering
commercial bills of lading:
Transportation hereunder is for the U.S.
Department of Energy, and the actual total
transportation charges paid to the carrier(s)
by the consignor or consignee are to be reimbursed by the Government, pursuant to costreimbursable contract number (insert contract number). This may be confirmed by
contacting the agency representative at
(name and telephone number).
See 332 ICC 161.
(c) To ensure proper application of a
Government rate tender on all shipments qualifying for their use, the
issuing officer shall show on the bills of
lading covering such shipments the applicable rate tender number and carrier
identification, such as: ‘‘Section 10721
tender, ABC Transportation Company,
ICC No. 374.’’ In addition, if commercial bills of lading are used, they shall
be endorsed as specified above.
§ 109–40.306–3
Distribution.
Each agency receiving rate tenders
shall promptly submit one signed copy
to the Transportation and Public Utilities Service (WIT), General Services
Administration, Washington, DC 20407.
Also, two copies (including at least one
signed copy) shall be promptly submitted to the General Services Administration (TA), Chester A. Arthur
Building, Washington, DC 20406.
Subpart 109–40.50—Bills of Lading
§ 109–40.5000
Scope of subpart.
This subpart sets forth the requirements under which commercial or Government bills of lading may be used.
§ 109–40.5001
§ 109–40.5002
§ 109–40.5003
ing.
Generally DOE cost-type contractors
will use commercial bills of lading in
making shipments for the account of
DOE. Cost-type contractors may be authorized by the contracting officer to
use Government bills of lading if such
use will be advantageous to the Government. Such authorizations shall be
coordinated with the HQ DOE Manager,
Transportation Operations and Traffic.
Commercial bills of lad-
(a) DOE’s cost-type contractors using
commercial bills of lading in making
shipments for the account of DOE shall
include the following statement on all
commercial bills of lading:
This shipment is for the account of the
U.S. Government which will assume the
freight charges and is subject to the terms
and conditions set forth in the standard form
of the U.S. Government bills of lading and to
any available special rates or charges.
(b) The language in paragraph (a) of
this section may be varied without materially changing its substance to satisfy the needs of particular cost-type
contractors for the purpose of obtaining the benefit of the lowest available
rates for the account of the Government.
(c) Where practicable, commercial
bills of lading shall provide for consignment of a shipment to DOE c/o the
cost-type contractor or by the contractor ‘‘for the DOE.’’
(d) Commercial bills of lading exceeding $10,000 issued by cost-type contractors shall be annotated with a typewritten, rubber stamp, or similar impression containing the following wording:
Equal Employment Opportunity. All provisions of Executive Order 11246, as amended
by Executive Order 11375, and of the rules,
regulations, and relevant orders of the Secretary of Labor are incorporated herein.
§ 109–40.5004
ing.
Policy.
Applicability.
The policy and procedures set forth
in this subpart shall be applied when
DOE’s cost-type contractors use commercial bills of lading.
Government bills of lad-
In those instances where DOE costtype contractors are authorized to use
Government bills of lading, specific
employees of cost-type contractors will
be authorized by the contracting officer to issue such Government bills of
lading (see Title V, U.S. Government
Accounting Office Policy and Procedures Manual for Guidance of Federal
Agencies).
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§ 109–40.5005
41 CFR Ch. 109 (7–1–16 Edition)
§ 109–40.5005 Description of property
for shipment.
(a) Each shipment shall be described
on the bill of lading or other shipping
document as specified by the governing
freight classification, carrier’s tariff,
or rate tender. Shipments shall be described as specifically as possible.
Trade names such as ‘‘Foamite’’ or
‘‘Formica,’’ or general terms such as
‘‘vehicles,’’ ‘‘furniture,’’ or ‘‘Government supplies,’’ shall not be used as
bill of lading descriptions.
(b) A shipment containing hazardous
materials, such as explosives, radioactive materials, flammable liquids,
flammable solids, oxidizers, or poison
A or poison B, shall be prepared for
shipment and described on bills of lading or other shipping documents in accordance with the Department of
Transportation Hazardous Materials
Regulation, 49 CFR, parts 100–189.
Subpart 109–40.51—Price-Anderson Coverage Certifications
for Nuclear Shipments
§ 109–40.5100
Scope of subpart.
This subpart sets forth the policy for
issuance of certifications regarding
Price-Anderson coverage of particular
shipments of nuclear materials.
§ 109–40.5101
Policy.
Upon request of a carrier, an appropriate certification will be issued by an
authorized representative of the DOE
to the carrier regarding the applicability of Price-Anderson indemnity to a
particular shipment. Copies of such
certifications, if performed by a Field
Manager or a DOE cost-type contractor, shall be provided to the HQ
DOE Manager, Transportation Operations and Traffic.
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SUBCHAPTER H—UTILIZATION AND DISPOSAL
PART 109–42—UTILIZATION AND
DISPOSAL OF HAZARDOUS MATERIALS AND CERTAIN CATEGORIES OF PROPERTY
4160.21–M–1, Defense Demilitarization
Manual as a guide.
Subpart 109–42.11—Special Types of Hazardous Material and Certain Categories of Property
(a) Excess personal property (including scrap) having a history of use in an
area where radioactive or chemical
contamination may occur shall be considered suspect and shall be monitored
using appropriate instruments and
techniques by qualified personnel of
the DOE office or contractor generating the excess.
(b) With due consideration to the economic factors involved, every effort
shall be made to reduce the level of
contamination of excess or surplus personal property to the lowest practicable level. Contaminated personal
property that exceeds applicable contamination standards shall not be utilized or disposed outside DOE.
(c) If contamination is suspected and
the property is of such size, construction, or location as to make testing for
contamination impossible, the property shall not be utilized or disposed
outside of DOE.
Sec.
109–42.1100.50 Scope of subpart.
109–42.1100.51 Policy.
109–42.1102–8 United States Munitions List
items which require demilitarization.
109–42.1102–51 Suspect personal property.
109–42.1102–52 Low level contaminated personal property.
AUTHORITY: 40 U.S.C. 486(c).
SOURCE: 63 FR 19640, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–42.11—Special Types
of Hazardous Material and
Certain Categories of Property
§ 109–42.1100.50
Scope of subpart.
This subpart sets forth policies and
procedures for the utilization and disposal outside of DOE of excess and surplus personal property which has been
radioactively or chemically contaminated.
§ 109–42.1100.51
Policy.
When the holding organization determines it is appropriate to dispose of
contaminated personal property, it
shall be disposed of by DOE in accordance with appropriate Federal regulations governing radiation/chemical exposure and environmental contamination. In special cases where Federal
regulations do not exist or apply, appropriate state and local regulations
shall be followed.
§ 109–42.1102–8 United States Munitions List items which require demilitarization.
Heads of field organizations shall determine demilitarization requirements
regarding combat material and military personal property using DoD
§ 109–42.1102–51
property.
Suspect
§ 109–42.1102–52 Low level
nated personal property.
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If monitoring of suspect personal
property indicates that contamination
does not exceed applicable standards, it
may be utilized and disposed of in the
same manner as uncontaminated personal property, provided the guidance
in § 109–45.5005–1(a) of this chapter has
been considered. However, recipients
shall be advised where levels of radioactive contamination require specific
controls for shipment as provided in
Department of Transportation Regulations (49 CFR parts 171–179) for shipment of radioactive personal property.
In addition, when any contaminated
personal property is screened within
DOE, reported to GSA, or otherwise
disposed of, the kind and degree of contamination must be plainly indicated
on all pertinent documents.
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Pt. 109–43
41 CFR Ch. 109 (7–1–16 Edition)
Subpart 109–43.50—Utilization of Personal
Property Held for Facilities in Standby
PART 109–43—UTILIZATION OF
PERSONAL PROPERTY
Sec.
109–43.001
109–43.5000 Scope of subpart.
109–43.5001 Definition.
109–43.5002 Reviews to determine need for
retaining items.
Definition.
Subpart 109–43.1—General Provisions
109–43.101
109–43.103
AUTHORITY: 40 U.S.C. 486(c).
Agency utilization reviews.
Agency utilization officials.
SOURCE: 63 FR 19640, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–43.3—Utilization of Excess
§ 109–43.001
109–43.302 Agency responsibility.
109–43.302–50 Utilization by designated contractors.
109–43.304 Reporting requirements.
109–43.304–1 Reporting.
109–43.304–1.50 DOE reutilization screening.
109–43.304–1.51 Transfers within DOE.
109–43.304–2 Form and distribution of reports.
109–43.304–4 Property at installations due to
be discontinued.
109–43.305 Property not required to be formally reported.
109–43.305–50 Nuclear-related and proliferation-sensitive personal property.
109–43.307 Items requiring special handling.
109–43.307–2 Hazardous materials.
109–43.307–2.50 Monitoring of hazardous personal property.
109–43.307–2.51 Holding hazardous personal
property.
109–43.307–3 Conditional gifts for defense
purposes.
109–43.307–4 Conditional gifts to reduce the
public debt.
109–43.307–50 Export
controlled
personal
property.
109–43.307–51 Classified personal property.
109–43.307–52 Nuclear-related or proliferation-sensitive personal property.
109–43.307–53 Automatic
data
processing
equipment (ADPE).
109–43.307–54 Unsafe personal property.
109–43.312 Use of excess personal property
on cost-reimbursement contracts.
109–43.313 Use of excess personal property
on cooperative agreements.
109–43.314 Use of excess personal property
on grants.
109–43.315 Certification of non-Federal agency screeners.
Subpart 109–43.5—Utilization of Foreign
Excess Personal Property
109–43.502
Holding agency responsibilities.
Definition.
DOE screening period means the period of time that reportable excess personal property is screened throughout
DOE for reutilization purposes and, for
selected items, through the Used Energy-Related Laboratory Equipment
(ERLE) Grant Program.
Subpart 109–43.1—General
Provisions
§ 109–43.101
views.
Agency
utilization
DOE offices and designated contractors are responsible for continuously
surveying property under their control
to assure maximum use, and shall
promptly identify property that is excess to their needs and make it available for use elsewhere.
§ 109–43.103
cials.
Agency
utilization
Subpart 109–43.3—Utilization of
Excess
§ 109–43.302
Agency responsibility.
§ 109–43.302–50 Utilization
ignated contractors.
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des-
Heads of field organizations may authorize designated contractors to perform the functions pertaining to the
utilization of excess personal property
normally performed by a Federal agency, provided the designated contractors
have written policies and procedures.
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The DPMO is designated as the DOE
National Utilization Officer.
Subpart 109–43.47—Reports
109–43.4701
re-
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Department of Energy
§ 109–43.304
§ 109–43.305–50
Reporting requirements.
§ 109–43.304–1
Reporting.
§ 109–43.304–1.50
screening.
DOE
reutilization
(a) Prior to reporting excess personal
property to GSA, reportable personal
property shall be screened for reutilization within DOE through the Reportable Excess Automated Property System (REAPS) for a 30-day period.
REAPS also provides for a 15-day expedited screening period for certain categories of personal property for economic development and to satisfy urgent conditions.
(b) An additional 30-day screening period shall be allocated for items eligible for screening by educational institutions through ERLE.
(c) Items in FSCG 66 (Instruments
and Laboratory Equipment), 70 (General Purpose Information Processing
Equipment (including firmware)), and
99 (Miscellaneous) are reportable when
the unit acquisition cost is $1,000 or
more.
(d) In exceptional or unusual cases
when time is critical, screening of excess property may be accomplished by
telegram or facsimile with due consideration given to the additional costs
involved. Examples of situations when
this method of screening would be used
are when there is a requirement for
quick disposal actions due to unplanned contract terminations or facilities closing; to alleviate the paying
of storage costs; when storage space is
critical; to process exchange/sale transactions; property dangerous to public
health and safety; property determined
to be classified or otherwise sensitive
for reasons of national security (when
classified communications facilities
are used); or for hazardous materials
which may not be disposed of outside of
the Department.
(e) Concurrent DOE and Federal
agency screening generally shall not be
conducted.
tractors authorized by the DOE contracting office to execute transfer orders, transfers to DOE contractors
must be approved by the cognizant
DOE property administrator for the
contractor receiving the property.
§ 109–43.304–2 Form and distribution
of reports.
Reportable property will be electronically reported by REAPS directly
to GSA following internal DOE and
ERLE screening.
§ 109–43.304–4 Property at installations
due to be discontinued.
When closing installations, DOE offices shall work with the appropriate
GSA regional offices to develop site
utilization and disposal programs:
(a) In developing a disposal program,
property shall be determined to be excess to DOE needs before reporting it
to GSA.
(b) If a deviation from DOE policy or
procedures is required, prior written
approval of the Deputy Assistant Secretary for Procurement and Assistance
Management shall be obtained.
(c) When deviation from existing
GSA regulations is involved, approval
by the appropriate GSA regional office
will be sufficient to validate the disposition. A copy of the GSA approval
should be forwarded for information to
the DPMO.
§ 109–43.305 Property not required to
be formally reported.
(a) [Reserved]
(b) Equipment, parts, accessories,
jigs and components which are of special design, composition, or manufacture and which are intended for use
only by specific DOE installations
(such as spare parts for equipment used
in atomic processes) are not reportable
and shall not be formally screened
within DOE or reported to GSA.
within
§ 109–43.305–50 Nuclear-related
and
proliferation-sensitive
personal
property.
Transfers within DOE generally shall
be effected by completion of a SF–122,
Transfer Order Excess Personal Property. Except for those designated con-
Nuclear-related and proliferationsensitive property is not reportable and
shall not be formally screened within
DOE or reported to GSA.
§ 109–43.304–1.51
DOE.
Transfers
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§ 109–43.307
41 CFR Ch. 109 (7–1–16 Edition)
§ 109–43.307 Items
handling.
§ 109–43.307–2
requiring
special
Hazardous materials.
§ 109–43.307–2.50 Monitoring of
ardous personal property.
haz-
To provide assurance that hazardous
personal property is not being inadvertently released from the site by
transfer or sale to the public, all hazardous or suspected hazardous personal
property shall be checked for contamination by environmental, safety, and
health officials. Contamination-free
personal property will be tagged with a
certification tag authorizing release
for transfer or sale. Contaminated personal property will be referred back to
the program office for appropriate action.
§ 109–43.307–2.51 Holding
personal property.
hazardous
Excess or surplus hazardous personal
property shall not be commingled with
non-hazardous personal property while
waiting disposition action.
§ 109–43.307–3 Conditional gifts for defense purposes.
The Director, Office of Administrative Services and heads of field organizations shall take appropriate action
as required when conditional gifts are
offered.
§ 109–43.307–4 Conditional gifts to reduce the public debt.
The Director, Office of Administrative Services and heads of field organizations shall take appropriate action
as required when conditional gifts are
offered.
§ 109–43.307–50 Export controlled personal property.
(a) When personal property that is
subject to export controls is being exported directly by DOE (e.g., a transfer
of nuclear equipment or materials as
part of a program of cooperation with
another country), DOE or the DOE contractor must obtain the necessary export license.
(b) When personal property subject to
export controls is transferred under
work-for-others agreements, co-operative agreements, or technical pro-
grams, the recipients will be informed
in writing that:
(1) The property is subject to export
controls;
(2) They are responsible for obtaining
export licenses or authorizations prior
to transferring or moving the property
to another country; and
(3) They are required to pass on export control guidance if they transfer
the property to another domestic or
foreign recipient.
§ 109–43.307–51
property.
Classified
Classified personal property which is
excess to DOE needs shall be stripped
of all characteristics which cause it to
be classified, or otherwise rendered unclassified, as determined by the cognizant program office, prior to any disposition action. The cognizant program
office shall certify that appropriate action has been taken to declassify the
personal property as required. Declassification shall be accomplished in a
manner which will preserve, so far as
practicable, any civilian utility or
commercial value of the personal property.
§ 109–43.307–52 Nuclear-related or proliferation-sensitive personal property.
(a) Recognizing that property disposal officials will not have the technical knowledge to identify nuclear-related and proliferation-sensitive personal property, all such personal property shall be physically tagged with a
certification signed by an authorized
program official at time of determination by the program office of the personal property as excess. Such an authorized official should be designated
in writing with signature cards on file
in the property office.
(b) Nuclear-related and proliferationsensitive personal property which is excess to DOE needs shall be stripped of
all characteristics which cause it to be
nuclear-related or proliferation-sensitive personal property, as determined
by the cognizant program office, prior
to disposal. The cognizant program office shall certify that appropriate actions have been taken to strip the personal property as required, or shall
provide the property disposal office
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Department of Energy
§ 109–43.4701
with adequate instructions for stripping the items. Such action shall be accomplished in a manner which will preserve, so far as practicable, any civilian utility or commercial value of the
personal property.
§ 109–43.307–53 Automatic data processing equipment (ADPE).
All ADPE shall be sanitized before
being transferred into excess to ensure
that all data, information, and software has been removed from the equipment. Designated computer support
personnel must indicate that the equipment has been sanitized by attaching a
certification tag to the item. Sanitized
ADPE will be utilized and disposed in
accordance with the provisions of the
FPMR.
§ 109–43.307–54
erty.
Unsafe personal prop-
Personal property that is considered
defective or unsafe must be mutilated
prior to shipment for disposal.
§ 109–43.312 Use of excess personal
property on cost-reimbursement
contracts.
(a) [Reserved]
(b) It is DOE policy for designated
contractors to use Government excess
personal property to the maximum extent possible to reduce contract costs.
However, the determination required in
41 CFR 101–43.312(b) does not apply to
such contracts, and a DOE official is
not required to execute transfer orders
for authorized designated contractors.
The procedures prescribed in 41 CFR
101–43.309–5 for execution of transfer orders apply.
§ 109–43.313 Use of excess personal
property on cooperative agreements.
(a)–(c) [Reserved]
(d) Heads of field organizations shall
ensure that required records are maintained in a current status.
§ 109–43.314 Use of excess
property on grants.
personal
(a)–(e) [Reserved]
(f) Heads of field organizations shall
ensure that the records required by 41
CFR 101–43.314(f) are maintained.
§ 109–43.315 Certification of non-Federal agency screeners.
(a)–(c) [Reserved]
(d) Contracting officers shall maintain a record of the number of certified
non-Federal agency screeners operating under their authority and shall
immediately notify the appropriate
GSA regional office of any changes in
screening arrangements.
Subpart 109–43.5—Utilization of
Foreign Excess Personal Property
§ 109–43.502 Holding agency responsibilities.
(a) [Reserved]
(b) Property which remains excess
after utilization screening within the
general foreign geographical area
where the property is located shall be
reported to the accountable field office
or Headquarters program organization
for consideration for return to the
United States for further DOE or other
Federal utilization. The decision to return property will be based on such factors as acquisition cost, residual value,
condition, usefulness, and cost of
transportation.
Subpart 109–43.47—Reports
§ 109–43.4701 Performance reports.
(a)–(b) [Reserved]
(c) The annual report of personal
property furnished (e.g., transfers,
gifts, loans, leases, license agreements,
and sales) to non-Federal recipients,
including elementary and secondary
schools, is furnished to GSA by the
DPMO. Feeder reports, using the format illustrated below, shall be submitted to the DPMO by November 15 of
each year.
(1) Field office feeder reports shall include the following:
(i) Data for all excess personal property obtained from other Federal agencies and furnished to any DOE offsite
or designated contractor or financial
assistance recipient;
(ii) Data for all DOE personal property no longer needed by a DOE direct
operation and subsequently furnished
to any DOE offsite or designated contractor or financial assistance recipient.
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§ 109–43.5000
41 CFR Ch. 109 (7–1–16 Edition)
(iii) Data for all personal property
furnished to elementary and secondary
schools and non-profit organizations
under initiatives to support science
and mathematics education.
(2) Field office feeder reports shall
not include data for contractor inventory which is declared excess and subsequently
redistributed
through
REAPS (or other means within DOE)
to other DOE contractors or designated
contractors’ subcontractors.
(3) The feeder report from the Office
of Science Education Programs, using
the following format, will include data
for all personal property furnished to
non-federal recipients and institutions
of higher learning under the ERLE
Grant Program.
Name and
address of
recipient
Recipient’s
status
Original cost
of property
Digit federal
supply classification group
Subpart 109–43.50—Utilization of
Personal Property Held for Facilities in Standby
§ 109–43.5000
Scope of subpart.
This subpart supplements 41 CFR
part 101–43 by providing policies and
procedures for the economic and efficient utilization of personal property
associated with facilities placed in
standby status.
§ 109–43.5001
should be retained for possible future
operation of the plant;
(b) Where practicable, common-use
stores should be removed and used elsewhere; and
(c) Uninstalled equipment and other
personal property not required should
be utilized elsewhere on-site or be disposed of as excess.
PART 109–44—DONATION OF
PERSONAL PROPERTY
Subpart 109–44.7—Donations of Property to
Public Bodies
Sec.
109–44.701 Findings justifying donation to
public bodies.
109–44.702 Donations to public bodies.
109–44.702–3 Hazardous materials.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c).
SOURCE: 63 FR 19643, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–44.7—Donations of
Property to Public Bodies
§ 109–44.701 Findings justifying donation to public bodies.
The Director, Office of Administrative Services and heads of field organizations shall appoint officials to make
required findings and reviews.
§ 109–44.702
ies.
Definition.
Facility in standby means a complete
plant or section of a plant, which is
neither in service or declared excess.
§ 109–43.5002 Reviews to determine
need for retaining items.
Procedures and practices shall require an initial review at the time the
plant is placed in standby to determine
which items can be made available for
use elsewhere within the established
start-up criteria; periodic reviews (no
less than biennially) to determine need
for continued retention of property;
and special reviews when a change in
start-up time is made or when circumstances warrant. Such procedures
should recognize that:
(a) Equipment, spares, stores items,
and materials peculiar to a plant
Donations to public bod-
§ 109–44.702–3
Hazardous materials.
The Director, Office of Administrative Services and heads of field organizations shall be responsible for the
safeguards, notifications, and certifications required by 41 CFR part 101–42
and part 109–42 of this chapter, as well
as compliance with all other requirements therein.
PART 109–45—SALE, ABANDONMENT, OR DESTRUCTION OF PERSONAL PROPERTY
Subpart 109–45.1—General
Sec.
109–45.105 Exclusions and exemptions.
109–45.105–3 Exemptions.
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Department of Energy
§ 109–45.301–51
Subpart 109–45.3—Sale of Personal
Property
Subpart 109–45.47—Reports
109–45.4702
109–45.300–50 Sales by designated contractors.
109–45.301–51 Export/import clause.
109–45.302 Sale to Government employees.
109–45.302–50 Sales to DOE employees and
designated contractor employees.
109–45.303 Reporting property for sale.
109–45.303–3 Delivery.
109–45.304 Sales methods and procedures.
109–45.304–2 Negotiated sales and negotiated
sales at fixed prices.
109–45.304–2.50 Negotiated sales and negotiated sales at fixed prices by designated
contractors.
109–45.304–6 Reviewing authority.
109–45.304–50 Processing bids and awarding
of contracts.
109–45.304–51 Documentation.
109–45.309 Special classes of property.
109–45.309–2.50 Hazardous property.
109–45.309–51 Export controlled property.
109–45.309–52 Classified property.
109–45.309–53 Nuclear-related or proliferation-sensitive property.
109–45.309–54 Automatic Data Processing
Equipment (ADPE).
109–45.310 Antitrust laws.
109–45.317 Noncollusive bids and proposals.
Subpart 109–45.6—Debarred, Suspended,
and Ineligible Contractors
109–45.601 Policy.
109–45.602 Listing
contractors.
debarred
or
suspended
Subpart 109–45.9—Abandonment or
Destruction of Personal Property
109–45.901 Authority to abandon or destroy.
109–45.902 Findings justifying abandonment
or destruction.
109–45.902–2 Abandonment or destruction
without notice.
Subpart 109–45.10—Recovery of Precious
Metals
109–45.1002 Agency responsibilities.
109–45.1002–3 Precious metals recovery program monitor.
109–45.1003 Recovery of silver from precious
metals bearing materials.
109–45.1004 Recovery and use of precious
metals through the DOD Precious Metals
Recovery Program.
Negotiated sales reports.
Subpart 109–45.50—Excess and Surplus Radioactively and Chemically Contaminated Personal Property
109–45.5005 Disposal.
109–45.5005–1 General.
Subpart 109–45.51—Disposal of Excess and
Surplus Personal Property in Foreign Areas
109–45.5100 Scope of subpart.
109–45.5101 Authority.
109–45.5102 General.
109–45.5103 Definitions.
109–45.5104 Disposal.
109–45.5104–1 General.
109–45.5104–2 Methods of disposal.
109–45.5105 Reports.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c), para. 101–45.400–45.405 also
issued under sec. 307, 49 Stat. 880; 40 U.S.C.
3041.
SOURCE: 63 FR 19643, Apr. 20, 1998, unless
otherwise noted.
Subpart 109–45.1—General
§ 109–45.105
tions.
Exclusions
and
exemp-
§ 109–45.105–3 Exemptions.
GSA, by letter dated May 28, 1965, exempted contractor inventory held by
DOE designated contractors from the
GSA conducted sales provisions of 41
CFR 101–45.
Subpart 109–45.3—Sale of
Personal Property
§ 109–45.300–50 Sales by designated
contractors.
Sales of surplus contractor inventory
will be conducted by designated contractors when heads of field organizations determine that it is in the best
interest of the Government. OPMOs
and appropriate program officials shall
perform sufficient oversight over these
sales to ensure that personal property
requiring special handling or program
office certification is sold in accordance with regulatory requirements.
§ 109–45.301–51 Export/import clause.
The following clause shall be included in all sales invitations for bid:
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§ 109–45.302
41 CFR Ch. 109 (7–1–16 Edition)
Personal property purchased from the U.S.
Government may or may not be authorized
for export/import from/into the country
where the personal property is located. If export/import is allowed, the purchaser is solely responsible for obtaining required clearances or approvals. The purchaser also is required to pass on DOE’s export control guidance if the property is resold or otherwise
disposed.
§ 109–45.302 Sale to Government employees.
§ 109–45.302–50 Sales to DOE employees and designated contractor employees.
(a) DOE employees and employees of
designated contractors shall be given
the same opportunity to acquire Government personal property as is given
to the general public, provided the employees warrant in writing prior to
award that they have not either directly or indirectly:
(1) Obtained information not otherwise available to the general public regarding usage, condition, quality, or
value of the personal property, or
(2) Participated in:
(i) The determination to dispose of
the personal property;
(ii) The preparation of the personal
property for sale; and
(iii) Determining the method of sale.
(b) Excess or otherwise unusable special, fitted clothing and other articles
of personal property, acquired for the
exclusive use of an individual employee, may be sold to the employee for
the best price obtainable when the
property is no longer required by the
holding organization or the employee
is terminated.
§ 109–45.303
sale.
Reporting
§ 109–45.303–3
property
for
Delivery.
(a)–(b) [Reserved]
(c) Guidelines for signature authorization and control of blank copies of
Standard Form 97, United States Government Certificate to Obtain Title to
a Vehicle are contained in subpart 109–
38.7 of this chapter.
§ 109–45.304
dures.
Sales methods and proce-
§ 109–45.304–2 Negotiated sales and negotiated sales at fixed prices.
(a)(1) [Reserved]
(2) The head of each field organization shall designate a responsible person to approve negotiated sales by DOE
direct operations.
(3) Requests for prior approval of negotiated sales by DOE direct operations shall be submitted with justification to the OPMO for review and
forwarding to GSA for approval.
(b) [Reserved]
§ 109–45.304–2.50 Negotiated sales and
negotiated sales at fixed prices by
designated contractors.
(a) Negotiated sales by designated
contractors of surplus contractor inventory may be made when the DOE
contracting officer determines and documents prior to the sale that the use of
this method of sale is justified on the
basis of the circumstances enumerated
below, provided that the Government’s
interests are adequately protected.
These sales shall be at prices which are
fair and reasonable and not less than
the proceeds which could reasonably be
expected to be obtained if the personal
property was offered for competitive
sale. Specific conditions justifying negotiated sales include:
(1) No acceptable bids have been received as a result of competitive bidding under a suitable advertised sale;
(2) Personal property is of such small
value that the proceeds to be derived
would not warrant the expense of a formal competitive sale;
(3) The disposal will be to a state,
territory, possession, political subdivision thereof, or tax-supported agency
therein, and the estimated fair market
value of the personal property and
other satisfactory terms of disposal are
obtained by negotiation;
(4) The specialized nature and limited
use potential of the personal property
would create negligible bidder interest;
(5) Removal of the personal property
would result in a significant reduction
in value, or the accrual of disproportionate expense in handling; or
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Department of Energy
§ 109–45.309–52
(6) It can be clearly established that
such action is in the best interests of
the Government.
(b) When determined to be in the best
interests of the Government, heads of
field organizations may authorize
fixed-price sales of surplus contractor
inventory by designated contractors
provided:
(1) The fair market value of the item
to be sold does not exceed $15,000;
(2) Adequate procedures for publicizing such sales have been established;
(3) The sales prices are not less than
could reasonably be expected if competitive bid sales methods were employed and the prices have been approved by a reviewing authority designated by the head of the field organization; and
(4) The warranty prescribed in § 109–
45.302–50(a) of this subpart is obtained
when sales are made to employees.
§ 109–45.304–6 Reviewing authority.
The reviewing authority may consist
of one or more persons designated by
the head of the field organization.
§ 109–45.304–50 Processing bids and
awarding of contracts.
The procedures established in 48 CFR
14.4 and 48 CFR 914.4 shall be made applicable to the execution, receipt, safeguarding, opening, abstraction, and
evaluation of bids and awarding contracts, except that in evaluating bids
and awarding contracts, disposal under
conditions most advantageous to the
Government based on high bids received shall be the determining factor.
§ 109–45.304–51 Documentation.
Files pertaining to surplus property
sales shall contain copies of all documents necessary to provide a complete
record of the sales transactions and
shall include the following as appropriate:
(a) A copy of the request/invitation
for bids if a written request/ invitation
for bids is employed. A list of items or
lots sold, indicating acquisition cost,
upset price and sales price indicated.
(b) A copy of the advertising literature distributed to prospective bidders.
(c) A list of prospective bidders solicited.
(d) An abstract of bids received.
(e) Copies of bids received, including
Standard Form 119, Contractor’s Statement of Contingent or Other Fees, together with other relevant information.
(f) A statement concerning the basis
for determination that proceeds constitute a reasonable return for property sold.
(g) When appropriate, full and adequate justification for not advertising
the sale when the fair market value of
property sold in this manner in any
one case exceeds $1,000.
(h) A justification concerning any
award made to other than the high bidder.
(i) The approval of the reviewing authority when required.
(j) A copy of the notice of award.
(k) All related correspondence.
(l) In the case of auction or spot bid
sales, the following additional information should be included:
(1) A summary listing of the advertising used (e.g., newspapers, radio, television, and public postings).
(2) The names of the prospective bidders who attended the sale.
(3) A copy of any pertinent contract
for auctioneering services and related
documents.
(4) A reference to files containing
record of deposits and payments.
§ 109–45.309
erty.
Special classes of prop-
§ 109–45.309–2.50
Hazardous property.
Hazardous property shall be made
available for sale only after the review
and certification requirements of § 109–
43.307–2.50 of this subpart have been
met.
§ 109–45.309–51
property.
Export
Export controlled property shall be
made available for sale only after the
export license requirements of § 109–
43.307–50 of this subpart have been met.
§ 109–45.309–52
Classified property.
Classified property shall be made
available for sale only after the declassification requirements of § 109–43.307–
51 of this subpart have been met.
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§ 109–45.309–53
41 CFR Ch. 109 (7–1–16 Edition)
§ 109–45.309–53 Nuclear-related or proliferation sensitive property.
Nuclear-related or proliferation-sensitive property shall be made available
for sale only after the stripping and
certification requirements of § 109–
43.307–52 of this subpart have been met.
§ 109–45.309–54 Automatic Data Processing Equipment (ADPE).
ADPE shall be made available for
sale only after the sanitizing and certification requirements of § 109–43.307–
53 of this subpart have been met.
§ 109–45.310
Antitrust laws.
DOE offices shall submit to the Deputy Assistant Secretary for Procurement and Assistance Management any
request for a proposed sale of a patent,
process, technique, or invention, regardless of cost; or of surplus personal
property with a fair market value of
$3,000,000 or more.
§ 109–45.317 Noncollusive
proposals.
bids
and
(b) The Director, Office of Administrative Services and heads of field organizations shall establish procedures
to ensure that listed contractors are
not awarded contracts.
Subpart 109–45.9—Abandonment
or Destruction of Personal Property
§ 109–45.901 Authority to abandon or
destroy.
Personal property in the possession
of DOE offices or designated contractors may be abandoned or destroyed
provided that a written determination
has been made by the OPMO that property has no commercial value or the estimated cost of its continued care and
handling would exceed the estimated
proceeds from its sale.
§ 109–45.902 Findings justifying abandonment or destruction.
§ 109–45.902–2 Abandonment
struction without notice.
de-
(a) [Reserved]
(b) The head of the field organization
shall make the determination required
in 41 CFR 101–45.317(b). This authority
cannot be redelegated.
The head of the field organization
shall designate an official to make the
findings justifying abandonment or destruction without public notice of personal property. The OPMO shall review
and coordinate on the findings.
Subpart 109–45.6—Debarred, Suspended, and Ineligible Contractors
Subpart 109–45.10—Recovery of
Precious Metals
§ 109–45.601
§ 109–45.1002
Policy.
(a)–(b) [Reserved]
(c) The Director, Office of Administrative Services and heads of field organization shall make the compelling
reason determination when entering
into a contract for the purchase of surplus Government personal property by
a debarred or suspended contractor.
(d) The Deputy Assistant Secretary
for Procurement and Assistance Management shall make the determination
for simultaneously debarring and suspending a contractor from the purchase
of surplus Federal personal property
and the award of sales contracts.
§ 109–45.602 Listing debarred or suspended contractors.
(a) [Reserved]
Agency responsibilities.
The Director, Office of Administrative Services and heads of field organizations are responsible for establishing
a program for the recovery of precious
metals.
§ 109–45.1002–3 Precious metals recovery program monitor.
The DPMO shall be the precious metals recovery program monitor.
§ 109–45.1003 Recovery of silver from
precious metals bearing materials.
The Director, Office of Administrative Services and heads of field organizations are responsible for the establishment and maintenance of a program for silver recovery from used
hypo solution and scrap film.
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Department of Energy
§ 109–45.5104–1
§ 109–45.1004 Recovery and use of precious metals through the DOD Precious Metals Recovery Program.
DOE operates its own precious metals pool and therefore does not participate in the DOD Precious Metals Recovery Program. See § 109–27.5106 of
this chapter for guidance on operation
of the DOE precious metals pool.
Subpart 109–45.47—Reports
§ 109–45.4702 Negotiated sales reports.
The report of negotiated sales shall
be submitted by DOE offices to the
DPMO by November 15 of each year for
furnishing to GSA.
Subpart 109–45.50—Excess and
Surplus Radioactively and
Chemically
Contaminated
Personal Property
§ 109–45.5005
Disposal.
§ 109–45.5005–1 General.
(a) Nuclear-related, proliferation-sensitive, low level contaminated property, and classified personal property
shall not be transferred, sold, exchanged, leased, donated, abandoned,
or destroyed without approval of the
cognizant program office. Disposal of
this personal property is subject to the
restrictions contained in applicable
sections of part 109–42 and §§ 109–43.307–
50, 109–43.307–51, and 109–43.307–52 of this
chapter, and applicable sections of 41
CFR part 101–42.
(b) Personal property that is considered defective or unsafe must be mutilated prior to shipment for disposal.
Subpart 109–45.51—Disposal of
Excess and Surplus Personal
Property in Foreign Areas
§ 109–45.5100 Scope of subpart.
This subpart sets forth policies and
procedures governing the disposal of
DOE-owned foreign excess and surplus
personal property.
§ 109–45.5101 Authority.
The policies and procedures contained in this subpart are issued pursuant to the provisions of 40 USC 471,
Federal Property and Administrative
Services Act of 1949, as amended. Title
IV of the Act entitled ‘‘Foreign Excess
Property’’ provides that, except where
commitments exist under previous
agreements, all excess personal property located in foreign areas shall be
disposed of by the owning agency, and
directs that the head of the agency
conform to the foreign policy of the
United States in making such disposals.
§ 109–45.5102 General.
Disposal of Government-owned personal property in the custody of DOE
organizations or its contractors in foreign areas shall be made in an efficient
and economical manner, and in conformance with the foreign policy of the
United States.
§ 109–45.5103 Definitions.
As used in this subpart, the following
definitions apply:
Foreign means outside the United
States, Puerto Rico, American Samoa,
Guam, the Trust Territory of the Pacific Islands, and the Virgin Islands.
Foreign service post means the local
diplomatic or consular post in the area
where the excess personal property is
located.
§ 109–45.5104
Disposal.
§ 109–45.5104–1 General.
Foreign excess personal property
which is not required for transfer within DOE or to other U.S. Government
agencies, except for the personal property identified in § 109–45.5005–1(a) of
this part, shall be considered surplus
and may be disposed of by transfer,
sale, exchange, or lease, for cash, credit, or other property and upon such
other terms and conditions as may be
deemed proper. Such personal property
may also be donated, abandoned, or destroyed under the conditions specified
in § 109–45.5105–2(c) of this subpart.
Most foreign governments have indicated to the U.S. State Department
that they wish to be consulted before
U.S. Government property is disposed
of in their countries (except in the case
of transfers to other U.S. Government
agencies). Matters concerning customs
duties and taxes, or similar charges,
may require prior agreement with the
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§ 109–45.5104–2
41 CFR Ch. 109 (7–1–16 Edition)
foreign government involved. The
State Department shall be contacted in
regard to these issues. Whenever advice
or approval of the State Department is
required by this subpart, it may be obtained either through the foreign service post in the foreign area involved or
from the State Department in Washington, DC. If the issue is to be presented to the State Department in
Washington, DC, it shall be referred
through appropriate administrative
channels to the Deputy Assistant Secretary for Procurement and Assistance
Management for review, coordination,
and handling.
§ 109–45.5104–2 Methods of disposal.
(a) Sales of foreign surplus personal
property shall be conducted in accordance with the following guidelines:
(1) Generally, all sales of foreign surplus personal property shall be conducted under the competitive bid process unless it is advantageous and more
practicable to the Government not to
do so. When competitive bids are not
solicited, reasonable inquiry of prospective purchasers shall be made in
order that sales may be made on terms
most advantageous to the U.S. Government.
(2) In no event shall any personal
property be sold in foreign areas without a condition which states that its
importation into the United States is
forbidden unless the U.S. Secretary of
Agriculture (in the case of any agricultural commodity, food, cotton, or woolen goods), or the U.S. Secretary of
Commerce (in the case of any other
property), has determined that the importation of such property would relieve domestic shortages or otherwise
be beneficial to the economy of the
United States.
(3) Sales documents shall provide
that the purchaser must pay any import duties or taxes levied against personal property sold in the country involved and further provide that the
amount of this duty or tax shall not be
included as a part of the price paid the
U.S. Government for the personal property. In the event the levy is placed
upon the seller by law, the buyer will
be required to pay all such duties or
taxes and furnish the seller copies of
his receipts prior to the release of the
personal property to him. However, if
the foreign government involved will
not accept payment from the buyer,
the seller will collect the duties or
taxes and turn the amounts collected
over to the foreign government. Accounting for the amounts collected
shall be coordinated with the disbursing officer of the nearest United
States foreign service post. The property shall not be released to the purchaser until the disposal officer is satisfied that there is no responsibility for
payment by the United States (as contrasted to collection by the United
States) of taxes, duties, excises, etc.
(4) Certain categories of personal
property, including small arms and machine guns; artillery and projectiles;
ammunition, bombs, torpedoes, rockets
and guided missiles; fire control equipment and range finders; tanks and ordnance vehicles; chemical and biological
agents, propellants and explosives; vessels of war and special naval equipment; aircraft and all components,
parts and accessories for aircraft; military electronic equipment; aerial cameras, military photo-interpretation,
stereoscopic
plotting
and
photogrammetry equipment; and all material not enumerated which is included
in the United States Munitions List, 22
CFR 121.01, and is subject to disposal
restrictions. Advance approval must be
obtained from the State Department
for the sale of all such articles. Therefore, prior to the sale of any of the articles enumerated in the U.S. Munitions List, the foreign service post in
the area shall be consulted.
(5) Prior to the sale of personal property which has a total acquisition cost
of $250,000 or more, plans for such sale
shall be reported to the DPMO with
ample time to allow consideration of
possible foreign policy issues and advice thereon from the State Department (see section 109–45.5106(a) of this
subpart). All proposed sales, regardless
of the total acquisition cost of the personal property involved, which the
head of the DOE foreign office believes
might have a significant economic or
political impact in a particular area,
shall be discussed with the foreign
service post.
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Department of Energy
§ 109–46.000–50
(b) While there is authority for exchange or lease of foreign surplus personal property, such authority shall be
exercised only when such action is
clearly in the best interests of the U.S.
Government. Disposals by exchange are
subject to the same requirements as
disposals by sale under § 109–45.5105–2(a)
of this subpart.
(c)(1) Foreign excess or surplus personal property (including salvage and
scrap) may be donated, abandoned, or
destroyed provided:
(i) The property has no commercial
value or the estimated cost of its care
and handling would exceed the estimated proceeds from its sale; and
(ii) A written finding to that effect is
made and approved by the Deputy Assistant Secretary for International Energy Policy, Trade and Investment.
(2) No personal property shall be
abandoned or destroyed if donation is
feasible. Donations under these conditions may be made to any agency of
the U.S. Government, or to educational, public health, or charitable
nonprofit organizations.
(3) Foreign excess personal property
may also be abandoned or destroyed
when such action is required by military necessity, safety, or considerations of health or security. A written
statement explaining the basis for disposal by these means and approval by
the Deputy Assistant Secretary for
International Energy Policy, Trade and
Investment is required.
(4) Property shall not be abandoned
or destroyed in a manner which is detrimental or dangerous to public health
and safety, or which will cause infringement on the rights of other persons.
§ 109–45.5105 Reports.
(a) Proposed sales of foreign surplus
personal property having an acquisition cost of $250,000 or more shall be reported to the DPMO and should include
all pertinent data, including the following:
(1) The description of personal property to be sold, including:
(i) Identification of personal property
(description should be in terms understandable to persons not expert in
technical
nomenclature).
Personal
property covered by the U.S. Munitions
List and regulations pertaining thereto
(as published in 22 CFR 121.01) should
be clearly identified;
(ii) Quantity;
(iii) Condition; and
(iv) Acquisition cost.
(2) The proposed method of sale (e.g.,
sealed bid, negotiated sale, etc.)
(3) Any currency to be received and
payment provisions (i.e., U.S. dollars,
foreign currency, or credit, including
terms of the proposed sale).
(4) Any restrictions on use of personal property to be sold (such as resale of property, disposal as scrap, demilitarization, etc.).
(5) Any special terms or conditions of
sale.
(6) The categories of prospective purchasers (e.g., host country, other foreign countries, special qualifications,
etc.).
(7) How taxes, excises, duties, etc.,
will be handled.
(b) Instructions for reporting foreign
excess utilization and disposal transactions are contained in Chapter III of
DOE Order 534.1, Accounting.
PART 109–46—UTILIZATION AND
DISPOSAL OF PERSONAL PROPERTY PURSUANT TO EXCHANGE/
SALE AUTHORITY
Sec.
109–46.000 Scope of part.
109–46.000–50 Applicability.
Subpart 109–46.2—Authorization
109–46.202
109–46.203
Restrictions and limitations.
Special authorizations.
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c).
SOURCE: 63 FR 19646, Apr. 20, 1998, unless
otherwise noted.
§ 109–46.000
Scope of part.
§ 109–46.000–50
Applicability.
(a) Except as set forth in paragraphs
(a)(1)–(a)(5), the requirements of FPMR
Part 101–46 and this part are not applicable to designated contractors. Designated contractors shall comply with
the following FPMR requirements:
(1) 101–46.200
(2) 101–46.201–1
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§ 109–46.202
41 CFR Ch. 109 (7–1–16 Edition)
(3) 101–46.202(b)(2), (3), (4), (5), (6), and
(7)
(4) 101–46.202(c)(1), (2), (4), (5), (6), (7),
(10), (11), and (12)
(5) 101–46.202(d)
(b) Items in the following Federal
Supply Classification Groups (FSCG)
are not eligible for processing under
the exchange/sale provision. Requests
for waivers must be processed through
the DPMO to GSA.
PART 109–48—UTILIZATION, DONATION, OR DISPOSAL OF ABANDONED AND FORFEITED PERSONAL PROPERTY
DESCRIPTION
109–48.101 Forfeited or voluntarily abandoned property.
109–48.101–6 Transfer to other Federal agencies.
FSCG
10
11
12
14
15
20
22
41
Weapons
Nuclear ordnance
Fire control equipment
Guided missiles
Aircraft and airframe structural components (except FSC Class 1560, Airframe
structural components)
Ship and marine equipment
Railway equipment
Firefighting, rescue, and safety equipment
Subpart 109–46.2—Authorization
§ 109–46.202
tions.
Restrictions
and
limita-
(a)–(c)(9) [Reserved]
(10) The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall designate an official to
make the certification that a continuing valid requirement exists for excess personal property acquired and
placed in official use for less than one
year but no longer required and is to be
disposed of under the exchange/sale
provisions.
(11) [Reserved]
(12) Heads of field organizations shall
make the determination concerning demilitarization of combat material.
§ 109–46.203
Special authorizations.
(a) [Reserved]
(b) The Director, Office of Administrative Services and heads of field organizations for their respective organizations shall designate an official to
make the certification concerning the
exchange of historic items for historical preservation or display.
Sec.
109–48.000 Scope of part.
109–48.000–50 Applicability.
Subpart 109–48.1—Utilization of Abandoned and Forfeited Personal Property
AUTHORITY: Sec. 205(c), 63 Stat. 390; 40
U.S.C. 486(c).
SOURCE: 63 FR 19647, Apr. 20, 1998, unless
otherwise noted.
§ 109–48.000
Scope of part.
§ 109–48.000–50
Applicability.
This part is applicable to contractor
operations where the abandoned or forfeited personal property is found on
premises owned or leased by the Government that are managed and operated by designated contractors.
Subpart 109–48.1—Utilization of
Abandoned and Forfeited
Personal Property
§ 109–48.101 Forfeited or
abandoned property.
§ 109–48.101–6 Transfer to other Federal agencies.
(a)–(e) [Reserved]
(d) Transfer orders for forfeited or
voluntarily abandoned distilled spirits,
wine, and malt beverages for medicinal, scientific, or mechanical purposes
or any other official purposes for which
appropriated funds may be expended by
a Government agency shall be forwarded through normal administrative
channels for signature by the DPMO
and for subsequent forwarding to GSA
for release.
(f) Transfer orders for reportable forfeited drug paraphernalia shall be forwarded through normal administrative
channels for signature by the DPMO
and for subsequent forwarding to GSA
for approval.
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31
Department of Energy
§ 109–50.103
PART 109–50—SPECIAL DOE
DISPOSAL AUTHORITIES
Sec.
109–50.000
109–50.001
§ 109–50.000
Scope of part.
Applicability.
§ 109–50.001
Subpart 109–50.1—Used Energy-Related
Laboratory Equipment Grant Program
109–50.100 Scope of subpart.
109–50.101 Applicability.
109–50.102 General.
109–50.103 Definitions.
109–50.104 Equipment which may be granted.
109–50.105 Equipment which may not be
granted.
109–50.106 Procedure.
109–50.107 Reporting.
Applicability.
The provisions of this part apply to
direct DOE operations and to designated contractors only when specifically provided for in the appropriate
subpart.
Subpart 109–50.1—Used EnergyRelated Laboratory Equipment
Grant Program
§ 109–50.100
Scope of subpart.
This subpart provides guidance on
the granting of used energy-related
laboratory equipment to universities
and colleges and other nonprofit educational institutions of higher learning
in the United States for use in energyoriented educational programs.
Subpart 109–50.2—Math and Science
Equipment Gift Program
109–50.200 Scope of subpart.
109–50.201 Applicability.
109–50.202 Definitions.
109–50.203 Eligible equipment.
109–50.204 Limitations.
109–50.205 Procedure.
109–50.206 Reporting.
§ 109–50.101
Applicability.
This subpart is applicable to DOE offices and designated contractors.
Subpart 109–50.3 [Reserved]
Subpart 109–50.4—Programmatic Disposal
to Contractors of DOE Property in a
Mixed Facility
109–50.400 Scope of subpart.
109–50.401 Definitions.
109–50.402 Submission of proposals.
109–50.403 Need to establish DOE program
benefit.
Subpart 109–50.48—Exhibits
109–50.4800
109–50.4801
Scope of part.
This part provides guidance on the
policies, practices, and procedures for
the disposal of DOE property under
special legislative authorities.
Scope of subpart.
Equipment Gift Agreement.
AUTHORITY: Sec. 644, Pub. L. 95–91, 91 Stat.
599 (42 U.S.C. 7254); sec. 31, Atomic Energy
Act, as amended; Energy Reorganization Act
of 1974, secs. 103 and 107; Title III, Department of Energy Organization Act; E.O. 12999;
sec. 3710(i), Stevenson-Wydler Technology
Innovation Act, as amended (15 U.S.C.
3710(i)); Pub. L. 101–510, Department of Energy Science Education Enhancement Act;
Pub. L. 102–245, American Technologies Preeminence Act of 1991 (15 U.S.C. 3701); Office
of Energy Research Financial Assistance
Regulations (10 CFR part 605).
SOURCE: 63 FR 19647, Apr. 20, 1998, unless
otherwise noted.
§ 109–50.102
General.
DOE, to encourage research and development in the field of energy,
awards grants of excess energy-related
laboratory equipment to eligible institutions for use in energy-oriented educational programs. Under the Used Energy-Related Laboratory Equipment
(ERLE) Grant Program, grants of used
energy-related equipment excess to the
requirements of DOE offices and designated contractors may be made to eligible institutions prior to reporting
the equipment to GSA for reutilization
screening.
§ 109–50.103
Definitions.
As used in this subpart the following
definitions apply: Book value means acquisition cost less depreciation. DOE
Financial Assistance Rules (10 CFR part
600) means the DOE regulation which
establishes a uniform administrative
system for application, award, and administration of assistance awards, including grants and cooperative agreements.
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§ 109–50.104
41 CFR Ch. 109 (7–1–16 Edition)
Eligible institution means any nonprofit educational institution of higher
learning, such as universities, colleges,
junior colleges, hospitals, and technical institutes or museums located in
the United States and interested in establishing or upgrading energy-oriented education programs.
Energy-oriented
education
program
means one that deals partially or entirely in energy or energy-related topics.
§ 109–50.104 Equipment which may be
granted.
Generally, equipment items classified in FSCG 66, Instruments and Laboratory Equipment, are eligible for
granting under this program. Other selected items designated by the Office of
Laboratory Policy and Infrastructure
Management and approved by the
DPMO, are made available under the
program.
§ 109–50.105 Equipment which may not
be granted.
Equipment which will not be granted
include:
(a) Any equipment determined to be
required by DOE direct operations or
DOE designated contractors; or
(b) General supplies, such as Bunsen
burners, hoods, work benches; office
equipment and supplies; furniture;
drafting supplies; refrigerators; tools;
presses; lathes; furnaces; hydraulic and
mechanical jacks; cranes; and hoists.
§ 109–50.106 Procedure.
(a) After DOE utilization screening
through REAPS, items eligible for
ERLE grants are extracted from the
REAPS system and provided to the Office of Energy Research by electronic
means.
(b) The Office of Energy Research
provides this information to prospective grantees through an automated
system.
(c) The following periods have been
established during which time equipment will remain available to this program prior to reporting it to GSA for
reutilization by other Federal agencies:
(1) Thirty days from the date DOE
utilization screening is completed to
permit suitable time for eligible insti-
tutions to review and earmark the desired equipment.
(2) An additional thirty days after
the equipment is earmarked to permit
the eligible institutions to prepare and
submit an equipment proposal request
and to provide time for field organizations to review and evaluate the proposal and take appropriate action.
(d) Upon approval of the proposal, a
grant will be issued to the institution
upon completion.
(e) A copy of the completed grant,
shall be used to transfer title and drop
accountability of the granted equipment from the financial records.
(f) The cost of care and handling of
personal property incident to the grant
shall be charged to the receiving institution. Such costs may consist of packing, crating, shipping and insurance,
and are limited to actual costs. In addition, where appropriate, the cost of any
repair and/or modification to any
equipment shall be borne by the recipient institution.
§ 109–50.107
Reporting.
(a) Gifts made under this program
shall be included in the annual report
of property transferred to non-Federal
recipients, as required by 41 CFR 101–
43.4701(c) and 109–43.4701(c).
(b) A copy of each equipment agreement shall be forwarded to the Director, Office of Laboratory Policy and Infrastructure Management.
Subpart 109–50.2—Math and
Science Equipment Gift Program
§ 109–50.200
Scope of subpart.
This subpart provides guidance on
providing gifts of excess and/or surplus
education related and Federal research
equipment to elementary and secondary educational institutions or nonprofit organizations for the purpose of
improving math and science curricula
or conducting of technical and scientific education and research activities.
§ 109–50.201
Applicability.
The provisions of this subpart are applicable to DOE offices and designated
contractors.
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Department of Energy
§ 109–50.202
§ 109–50.205
Definitions.
As used in this subpart the following
definitions apply:
DOE Field Organizations means the
DOE Federal management activities,
including Operations Offices, Field Offices, Area Offices, Site Offices, Energy
Technology Centers, and Project Offices staffed by Federal employees.
Education-related and Federal research
equipment includes but is not limited to
DOE-owned property in FSCG 34, 36, 41,
52, 60, 61, 66, 67, 70, and 74 (See 41 CFR
101–43.4801(d)), and other related equipment, which is deemed appropriate for
use in improving math and science curricula or activities for elementary and
secondary school education, or for the
conduct of technical and scientific education and research activities.
Eligible recipient means local elementary and secondary schools and nonprofit organizations.
Elementary and secondary schools
means individual public or private educational
institutions
encompassing
kindergarten through twelfth grade, as
well as public school districts.
Facilities under DOE Field Organization cognizance means national laboratories, production plants, and project
sites managed and operated by DOE
contractors or subcontractors.
§ 109–50.203
Eligible equipment.
(a) Education-related and research
equipment will include, but is not limited to the following FSCGs:
FSCG AND DESCRIPTION
34 Metalworking Machinery.
36 Special Industry Machinery.
41 Refrigeration, Air Conditioning and Air
Circulating Equipment.
52 Measuring Tools
60 Fiber Optics Materials, Components, Assemblies and Accessories.
61 Electric Wire, and Power and Distribution Equipment.
66 Instruments and Laboratory Equipment.
67 Photographic Equipment.
70 General Purpose Automatic Data Processing Equipment (Including Firmware),
Software, Supplies and Support Equipment
74 Office Machines, Text Processing Systems and Visible Record Equipment.
(b) Other related equipment may be
provided if deemed appropriate and approved by the Director, Office of Lab-
oratory Policy and Infrastructure Management.
§ 109–50.204
Limitations.
(a) Excess and/or surplus educationrelated and Federal research equipment at DOE Field Organizations and
cognizant facilities is eligible for
transfer as a gift under this program.
However, safety, environmental, and
health matters must be considered.
(b) Title to the equipment will transfer upon the recipient’s written acknowledgement of receipt.
(c) The Director, Office of Laboratory
Policy and Infrastructure Management
may authorize gifts of excess and/or
surplus education-related and Federal
research equipment by signature on
the appropriate gift instrument where
the book value of an item of equipment
exceeds $25,000 or the cumulative book
value of the gifts under this program to
any one institution exceeds $25,000.
HCA or designee may authorize gifts of
excess and/or surplus education-related
and Federal research equipment of
lesser individual and cumulative book
value by signature on the appropriate
gift instrument. Delegations by the
HCA to authorize gifts of excess and/or
surplus education related and Federal
research equipment shall be in writing
to a specific individual, for a specified
period of time, and for a specified (or
unlimited) level of authority.
(d) Gifts shall be serviceable and in
working order. Disposal Condition
Codes 1 and 4, as defined in 41 CFR 101–
43.4801(e), meet this criteria. Serviceability of equipment should be verified
before the gift is made to the eligible
recipient.
§ 109–50.205
Procedure.
(a) The DOE facility will set aside an
appropriate amount of excess and/or
surplus education-related and Federal
research equipment for transfer under
this program.
(b) A list of available education-related and Federal research equipment
will be prepared and distributed to eligible recipients and the chief State
School Board Officer.
(c) Precollege institutions with partnership arrangements with the DOE or
its facilities (e.g., an adopted school)
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§ 109–50.206
41 CFR Ch. 109 (7–1–16 Edition)
may receive gifts of equipment in support of the partnership.
(d) Precollege institutions not in a
partnership with DOE may receive
equipment at the recommendation of
the chief State School Board Officer.
The Chief State School Board Officer
will determine which schools within
the state will receive which equipment.
Consideration for placement of the
equipment should be based on:
(1) The elementary or secondary
schools determined to have the greatest need; or
(2) Recipients of federally funded
math and science projects where the
equipment would further enhance the
progress of the project.
(e) Eligible recipients will have 30
days to select and freeze, on a first
come, first serve basis, the items desired and submit a request for selected
items stating:
(1) Why the gift is needed; and
(2) How the gift will be used to improve math and science curricula or in
the conduct of technical and scientific
education and research activities.
(f) The cost of shipping should be
minimal and not more than the actual
equipment value.
(g) An Equipment Gift Agreement
will be prepared and used to provide
the gift to eligible recipients. The gift
agreement will be in the format provided in section 109–50.4801 of this subchapter. The agreement shall be numbered for control purposes, and signed
by the Director, Office of Laboratory
Policy and Infrastructure Management
or the HCA or designee, as appropriate,
and an appropriate official representing the eligible recipient.
§ 109–50.206
Reporting.
(a) Gifts made under this program
shall be included in the annual report
of property transferred to non-Federal
recipients, as required by 41 CFR 101–
43.4701(c) and § 109–43.4701(c) of this
chapter.
(b) A copy of each equipment agreement shall be forwarded to the Director, Office of Laboratory Policy and Infrastructure Management.
Subpart 109–50.3 [Reserved]
Subpart 109–50.4—Programmatic
Disposal to Contractors of
DOE Property in a Mixed Facility
§ 109–50.400
Scope of subpart.
This subpart contains policy to be
followed when it is proposed to sell or
otherwise transfer DOE personal property located in a mixed facility to the
contractor who is the operator of that
facility.
§ 109–50.401
Definitions.
As used in this subpart, the following
definitions apply;
Contractor means the operator of the
mixed facility.
DOE property means DOE-owned personal property located in a mixed facility.
Mixed facility means a partly DOEowned and partly contractor-owned facility. For purposes of this subpart,
however, this definition does not apply
to such a facility operated by an educational or other nonprofit institution
under a basic research contract with
DOE.
§ 109–50.402
Submission of proposals.
Proposals involving programmatic
disposals of DOE personal property located in mixed facilities to contractors
operating that facility shall be forwarded through the appropriate program organization to the DPMO, for review and processing for approval. Each
such request shall include all information necessary for a proper evaluation
of the proposal. The proposal shall include, as a minimum:
(a) The purpose of the mixed facility;
(b) The description, condition, acquisition cost, and present use of the DOE
personal property involved.
(c) The programmatic benefits which
could accrue to DOE from the disposal
to the contractor (including the considerations which become important if the
disposal is not made);
(d) The appraised value of the DOE
personal property (preferably by independent appraisers); and
(e) The proposed terms and conditions of disposal including:
(1) Price;
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Department of Energy
§ 109–50.4801
(2) Priority to be given work for DOE
requiring the use of the transferred
property, and including the basis for
any proposed charge to DOE for amortizing the cost of plant and equipment
items;
(3) Recapture of the property if DOE
foresees a possible future urgent need;
and
(4) Delivery of the property, whether
‘‘as is-where is,’’ etc.
§ 109–50.403 Need to establish DOE
program benefit.
When approval for a proposed programmatic disposal of DOE personal
property in a mixed facility is being
sought, it must be established that the
disposal will benefit a DOE program.
For example, approval might be contingent on showing that:
(a) The entry of the contractor as a
private concern into the energy program is important and significant from
a programmatic standpoint; and
(b) The sale of property to the contractor will remove obstacles which
otherwise discourage entry into the
field.
Subpart 109–50.48—Exhibits
§ 109–50.4800 Scope of subpart.
This subpart exhibits information
referenced in the text of part 109–50 of
this chapter that is not suitable for inclusion elsewhere in that part.
§ 109–50.4801 Equipment Gift Agreement.
(a) The following Equipment Gift
Agreement format will be used to provide gifts of excess and/or surplus
equipment to eligible recipients under
the Math and Science Equipment Gift
Program (see subpart 109–50.2 of this
chapter).
EQUIPMENT GIFT AGREEMENT
llllllllllllllllllllllll
(Reference Number)
Between The U.S. Department of Energy and
llllllllllllllllllllllll
(Name of Eligible Recipient)
I. Purpose
The Department of Energy shall provide as
a gift, excess and/or surplus education-related and Federal research equipment to
(Name of Eligible Recipient), hereafter referred to as the Recipient, for the purpose of
improving the Recipient’s math and science
education curricula or for the Recipient’s
conduct of technical and scientific education
and research activities.
II. Authority
Federal agencies have been directed, to the
maximum extent permitted by law, to give
highest preference to elementary and secondary schools in the transfer or donation of
education-related Federal equipment, at the
lowest cost permitted by law. Furthermore,
subsection 11(i) of the Stevenson Wydler
Technology Innovation Act of 1980, as
amended (15 U.S.C. 3710 (i)), authorizes the
Director of a laboratory, or the head of any
Federal agency or department to give excess
research equipment to an educational institution or nonprofit organization for the conduct of technical and scientific education
and research activities.
III. Agreement
A. The Department of Energy agrees to
provide the equipment identified in the attached equipment gift list, as a gift for the
purpose of improving the Recipient’s math
and science curricula or for the Recipient’s
conduct of technical and scientific education
and research activities.
B. Title to the education-related and Federal research equipment, provided as a gift
under this agreement, shall vest with the Recipient upon the Recipient’s written acknowledgement of receipt of the equipment.
The acknowledgement shall be provided to
(Name of the DOE signatory) at (address).
C. The Recipient will be responsible for
any repair and modification costs to any
equipment received under this gift.
D. The Recipient hereby releases and
agrees to hold the Government, the Department of Energy, or any person acting on behalf of the Department of Energy harmless,
to the extent allowable by State law, for any
and all liability of every kind and nature
whatsoever resulting from the receipt, shipping, installation, operation, handling, use,
and maintenance of the education-related
and Federal Research equipment provided as
a gift under this agreement.
E. The Recipient agrees to use the gift provided herein for the primary purpose of improving the math and science curricula or
for the conduct of technical and scientific
education and research activities.
F. The Recipient agrees to provide for the
return of the equipment if such equipment,
while still usable, has not been placed in use
for its intended purpose within one year
after receipt from the Department of Energy.
llllllllllllllllllllllll
(U.S. Department of Energy Office)
llllllllllllllllllllllll
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§ 109–50.4801
41 CFR Ch. 109 (7–1–16 Edition)
(Name and Address of Recipient)
llllllllllllllllllllllll
(Signature of HCA or Designee)
llllllllllllllllllllllll
(Signature of Official)
llllllllllllllllllllllll
Typed Name)
llllllllllllllllllllllll
(Typed Name)
llllllllllllllllllllllll
(Typed Title)
llllllllllllllllllllllll
Typed Title)
llllllllllllllllllllllll
(Date)
(Date)
(b) The list of gifts that accompanies the
Equipment Gift Agreement shall contain the
Gift Agreement reference number, name of
the eligible recipient, and the name of the
DOE office. In addition, the following information shall be provided for each line item
provided as a gift: DOE ID number, description (name, manufacturer, model number,
serial number, etc.), FSC code, quantity, location, acquisition date, and acquisition
cost.
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CHAPTER 114—DEPARTMENT OF THE INTERIOR
Part
114–51
Page
Government furnished quarters ..............................
703
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PART 114–51—GOVERNMENT
FURNISHED QUARTERS
AUTHORITY: 5 U.S.C. 301.
Subpart 114–51.1—General
§ 114–51.100 Departmental
Handbook.
Quarters
The Office of Acquisition and Property Management (PAM) has prepared
the Departmental Quarters Handbook
(DQH), 400 DM, which provides detailed
guidelines governing administration,
management and rental rate establishment activities relating to Government
furnished quarters (GFQ). Officials responsible for administration and management of quarters shall implement
and comply with the provisions of the
DQH, and shall ensure its availability
for examination by all employees.
[60 FR 3555, Jan. 18, 1995]
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CHAPTER 115—ENVIRONMENTAL PROTECTION
AGENCY
Part
115–1
Page
Introduction ............................................................
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mittal Notice cited at the bottom of
that page. (See GSA, FPMR Amendment Transmittal pages for illustrations.)
PART 115–1—INTRODUCTION
Subpart 115–1.1—Regulation System
Sec.
115–1.100 Scope of subpart.
115–1.103 Temporary-type FPMR.
115–1.103–50 Temporary-type
changes
to
EPPMR.
115–1.104 Publication of FPMR.
115–1.104–50 Publication of EPPMR.
115–1.106 Applicability of FPMR.
115–1.108 Agency implementation and supplementation of FPMR.
115–1.109 Numbering in FPMR system.
115–1.110 Deviations.
AUTHORITY: Sec. 205(c), 63 Stat. 377, as
amended; 40 U.S.C. 486(c).
SOURCE: 36 FR 8568, May 8, 1971, unless otherwise noted.
Subpart 115–1.1—Regulation
System
§ 115–1.100 Scope of subpart.
This subpart establishes the Environmental Protection Agency Property
Management Regulations (EPPMR),
chapter 115 of the Federal Property
Management
Regulations
System
(FPMR) (41 CFR chapter 101); states its
relationship to the FPMR, and provides
instructions governing the property
management policies and procedures of
the Environmental Protection Agency
(EPA).
§ 115–1.103
Temporary-type FPMR.
§ 115–1.103–50 Temporary-type
changes to EPPMR.
Where required, temporary changes
will be published as EPPMR-Temporary Regulations. Temporary Regulations will be cross-referenced to related EPPMR subparts and will indicate dates for compliance with, and
cancellation of each issuance.
§ 115–1.104
Publication of FPMR.
§ 115–1.104–50 Publication of EPPMR.
(a) Material published in the EPPMR
will generally not be of interest to nor
directly affect the public. Therefore,
most EPPMR material will not be published in the FEDERAL REGISTER.
(b) Arrows printed in the margin of a
page indicate material changed, deleted, or added by the EPPMR Trans-
§ 115–1.106
Applicability of FPMR.
The FPMR apply to all EPA activities unless otherwise specified, or unless a deviation is approved.
§ 115–1.108 Agency
implementation
and supplementation of FPMR.
(a) EPPMR implements and supplements the FPMR and follows the
FPMR in style, arrangement and numbering sequence. Except to assure continuity and understanding FPMR material will not be repeated or paraphrased in the EPPMR.
(b) Implementing material expands
upon related material in the FPMR.
Supplementing material deals with
subject material not covered in the
FPMR.
§ 115–1.109
tem.
Numbering in FPMR sys-
(a) The numbering system used in
EPPMR conforms to that of the FPMR
except for the chapter number. The
first three digits represent the Chapter
number assigned to this Agency in title
41, Code of Federal Regulations (CFR).
In FPMR the chapter number is 101 and
in EPPMR the Chapter number is 115.
(b) Where EPA Chapter 115 implements Chapter 101 the material will be
numbered and captioned to correspond
to the FPMR part, subpart, section or
subsection, e.g., 115–1.106 ‘‘Applicability of FPMR’’ implements 101–1.106
of FPMR.
(c) Where Chapter 115 supplements
the FPMR and deals with subject matter not contained in the FPMR, the
EPPMR material is numbered to follow
that which is most closely related to
similar
material
in
the
FPMR,
Supplementing material is numbered
‘‘50’’ or higher.
§ 115–1.110
Deviations.
Where deemed necessary that regulations set forth in the FPMR or EPPMR
be changed in the interest of program
effectiveness, a proposed revision will
be submitted in accordance with FPR
§ 1–1.009, to the Division of Data and
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§ 115–1.110
41 CFR Ch. 115 (7–1–16 Edition)
Support Systems (DSSD) for review
and consideration.
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CHAPTER 128—DEPARTMENT OF JUSTICE
Part
128–1
128–18
128–48
128–50
Page
Introduction ............................................................
Acquisition of real property ....................................
Utilization, donation, or disposal of abandoned and
forfeited personal property ..................................
Seized personal property .........................................
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713
722
722
724
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PART 128–1—INTRODUCTION
Subpart 128–1.1—Regulation
System
Subpart 128–1.1—Regulation System
Sec.
128–1.100 Scope of subpart.
128–1.101 Justice
Property
Management
Regulations.
128–1.105 Authority for JPMR.
128–1.152 Citation.
Subpart 128–1.50—Authorities and Responsibilities for Personal Property Management
128–1.5001 Scope of subpart.
128–1.5002 Definitions.
128–1.5002–1 Acquire.
128–1.5002–2 Department.
128–1.5002–3 Head of the Agency/Department.
128–1.5002–4 Bureau.
128–1.5002–5 Personal property.
128–1.5002–6 Personal property management.
128–1.5002–7 Property management officer
(PMO).
128–1.5002–8 Property custodian (PC).
128–1.5002–9 Supply support system.
128–1.5003 Primary authority and responsibility.
128–1.5004 Basis for delegations of authority
and assignment of responsibilities.
128–1.5005 Delegations of authority.
128–1.5005–1 Primary delegations.
128–1.5005–2 Redelegations of authority.
128–1.5006 General responsibilities.
128–1.5006–1 Head of bureau.
128–1.5006–2 Property management officer
(PMO).
128–1.5006–3 Department employees.
128–1.5007 Reproduction of departmental
and bureau seals.
128–1.5009 Authorization for use of the Federal Bureau of Investigation anti-piracy
warning seal.
Subpart 128–1.80—Seismic Safety Program
128–1.8000 Scope.
128–1.8001 Background.
128–1.8002 Definitions of terms.
128–1.8003 Objective.
128–1.8004 Seismic Safety Coordinators.
128–1.8005 Seismic safety standards.
128–1.8006 Seismic Safety Program requirements.
128–1.8007 Reporting.
128–1.8008 Exemptions.
128–1.8009 Review of Seismic Safety Program.
128–1.8010 Judicial review.
AUTHORITY: 5 U.S.C. 301, 40 U.S.C. 121(c), 41
CFR 101–1.108, and 28 CFR 0.75(j), unless otherwise noted.
SOURCE: 41 FR 45987, Oct. 19, 1976, unless
otherwise noted.
§ 128–1.100 Scope of subpart.
This subpart introduces the Department of Justice Property Management
Regulations (JPMR) as part of the Federal Property Management Regulations
System (FPMR) (41 CFR part 101);
states its relationship to the FPMR;
and provides instructions for the
issuance and use of these property
management policies and procedures of
the Department of Justice.
§ 128–1.101 Justice Property Management Regulations.
The JPMR, established in this subpart, implement and supplement, as
necessary, the FPMR provisions governing the acquisition, utilization,
management, and disposal of real and
personal property. The JPMR are
issued to establish uniform property
management policies, regulations, and,
as necessary, procedures in the Department of Justice.
§ 128–1.105 Authority for JPMR.
The Department of Justice Property
Management Regulations are prescribed by the Assistant Attorney General for Administration under authority of 5 U.S.C. 301, 40 U.S.C. 486(c), 41
CFR 101–1.108, and 28 CFR 0.75(j).
§ 128–1.152 Citation.
The JPMR will be cited in accordance with the FEDERAL REGISTER
standards applicable to the FPMR. Accordingly, when this section is referred
to formally in official documents, it
should be cited as ‘‘41 CFR 128–1.152.’’
When a section of the JPMR is referred
to informally, however, it may be identified simply by ‘‘JPMR’’ followed by
the complete paragraph reference number, e.g., ‘‘JPMR 128–1.152.’’
Subpart 128–1.50—Authorities and
Responsibilities for Personal
Property Management
§ 128–1.5001 Scope of subpart.
This subpart sets forth general definitions of terms used throughout the
JPMR and states responsibilities and
authorities within the Department of
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§ 128–1.5002
41 CFR Ch. 128 (7–1–16 Edition)
Justice as they pertain to personal
property management functions.
§ 128–1.5002
Definitions.
§ 128–1.5002–1 Acquire.
To procure, purchase, or obtain in
any manner, except by lease, including
transfer, donation or forfeiture, manufacture, or production at Governmentowned plants or facilities.
§ 128–1.5002–2 Department.
The Department of Justice, including
all its Bureaus and their respective
field operations in all locations.
§ 128–1.5002–3 Head of the Agency/Department.
The Attorney General of the United
States.
§ 128–1.5002–4 Bureau.
The Federal Bureau of Investigation;
the Law Enforcement Assistance Administration; the Immigration and
Naturalization Service; the Drug Enforcement Administration; the Bureau
of Prisons; the Federal Prison Industries, Incorporated; and the Operations
Support Staff (OSS) of the Office of
Management and Finance. The OSS has
authority and is responsible for all personal property management functions
for the Offices, Boards, and Divisions of
the Department, the United States
Marshals Service, and the United
States Parole Commission.
§ 128–1.5002–5 Personal property.
Property of any kind or interest
therein, except real and related property (as defined in FPMR 41 CFR 101–
43.104–15), records of the Federal Government, and naval vessels, cruisers,
aircraft-carriers, destroyers, and submarines (FPMR 41 CFR 101–43.104–13).
For management and accounting control, personal property is categorized
as follows:
(a) ‘‘Expendable personal property’’
is that which, by its nature or function, is consumed in use; is used as repair parts or components of an end
product considered nonexpendable; or
has an expected service life of less than
one year.
(b) ‘‘Non-expendable personal property’’ is that which is complete within
itself, does not lose its identity or become a component part of another article when put into use, and is of a durable nature with an expected service life
one or more years.
(c) ‘‘Controlled personal property’’ is
that personal property for which good
management practice dictates that it
would be in the interest of the Government to assign and record accountability to assure the proper use, maintenance, protection and disposal of
property for which the Government is
responsible. Includes, but is not restricted to property which:
(1) Is leased by, in the custody of, or
is loaned to or from the Department.
(2) Due to inherent attractiveness
and/or portability is subject to a high
probability of theft or misuse.
(3) Is warranted, requires knowledge
of age and/or previous repair data when
determining whether repair or replacement is appropriate.
§ 128–1.5002–6
agement.
Personal property man-
A system for controlling the acquisition, receipt, storage issue, utilization,
maintenance,
protection,
accountability, and disposal of personal property to best satisfy the program needs
of the Department.
§ 128–1.5002–7 Property
officer (PMO).
An individual responsible for the
overall administration, coordination,
and control of the personal property
management program of a bureau. The
designation as PMO may or may not
correspond to the individual’s official
job title.
§ 128–1.5002–8
(PC).
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custodian
An individual responsible for the immediate physical custody of all personal property under his control and
for providing documentation as required on all actions affecting the personal property within his jurisdiction.
The designation as PC may or may not
correspond to the individual’s official
job title.
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Department of Justice
§ 128–1.5005–1
§ 128–1.5002–9 Supply support system.
The sum of all actions taken in providing buildings, equipment, supplies,
and services to support program areas.
§ 128–1.5003 Primary authority and responsibility.
(a) The Attorney General of the
United States has the primary authority and responsibility for providing direction, leadership, and general supervision in the development and administration of an effective and efficient
supply support system for the Department, to include:
(1) The establishment of Departmentwide policies, directions, regulations,
and procedures satisfying the requirements of law, regulations, and sound
management practice; and
(2) The review, evaluation, and improvement of personal property management programs, functions, operations, and procedures throughout the
Department.
(b) Pursuant to 28 CFR 0.75 and subject to the general supervision of the
Attorney General and the direction of
the Deputy Attorney General, the functions described above are assigned to
the Assistant Attorney General for Administration as delegations of authority.
§ 128–1.5004 Basis for delegations of
authority and assignment of responsibilities.
Certain personal property management functions can be performed by an
individual only under a specific grant
of authority to that individual. Other
functions may be performed simply on
the basis of general instructions or directions or by virtue of an individual
occupying the position to which the responsibility for the function is assigned. In either situation, to eliminate excessive delay and to reduce unnecessary involvement of multiple
management levels, it is considered
generally desirable to place authority
and responsibility for and to exercise
property management actions at the
lowest organizational unit practical.
Accordingly, specific redelegations of
the authority vested in the Assistant
Attorney General for Administration
are made to the heads of bureaus for
the personal property management
functions listed in § 128–1.5005 below.
The authority to prescribe and issue
Department-wide policies, regulations,
and procedures for personal property
management is not redelegated and remains solely within the jurisdiction of
the Assistant Attorney General for Administration.
§ 128–1.5005
Delegations of authority.
§ 128–1.5005–1
Primary delegations.
The following authorities are redelegated to the heads of bureaus for use
within their respective jurisdictions
and shall be exercised in accordance
with the policies and procedures established by the Assistant Attorney General for Administration.
(a) Designating the PMO, for the bureau, within the following limitations:
(1) Only one PMO is to be designated
for the bureau, at the bureau level.
Neither the title designation nor the
responsibilities of the PMO are to be
delegated below that level.
(2) One or more PC’s also may be designated for the bureau, depending upon
the size and complexity of the organizational structure. Each PC is responsible solely for that property within his
respective jurisdiction. The number
and distribution of PC’s designated is
entirely at the option of the head of
the bureau.
(3) There is no restriction on designating a single individual as PMO and
PC providing that the functions and responsibilities are compatible and are
within the capabilities of a single person.
(b) Authorizing exceptions to the
FPMR use and replacement standards
for office machines, furniture, furnishings and typewriters specified in
§§ 101–25.3 and 101–25.4.
(c) Authorizing exceptions to FPMR
replacement standards for materials
handling equipment specified in § 101–
25.304.
(d) Authorizing the procurement of
passenger motor vehicles with additional systems or equipment or the
procurement of additional systems or
equipment for passenger motor vehicles already owned or operated by the
Government, in conformance with Federal Standards No. 122 and § 101–25.304.
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§ 128–1.5005–2
41 CFR Ch. 128 (7–1–16 Edition)
(e) Authorizing the retention for official use by the bureau of abandoned or
other unclaimed personal property and
of personal property which is voluntarily abandoned or forfeited other
than by court decree.
(f) Determining when personal property becomes excess and reporting the
excess property to the General Services
Administration (GSA).
(g) Assigning or transferring excess
personal property within the bureau to
other bureaus of the Department, other
Federal agencies, the Legislative
Branch to the Judicial Branch, to
wholly-owned or mixed-ownership Government corporations, to cost-reimbursable type contractors, or to authorized grantees.
(h) Transferring property forfeited to
the Government to other authorized recipients or requesting judicial transfer
of such property from others to the bureau.
(i) Determining fair market value of
abandoned and other unclaimed property retained for official use by the bureau, for deposit to a special fund for
reimbursement of owners.
(j) Approving claims and reimbursing, less direct costs, former owners of
abandoned or other unclaimed personal
property which has been sold or retained for official use.
(k)
Recommending
non-Federal
grantee excess property screeners to
GSA as required in FPMR 101–43.320(h).
(l) When authorized by statutory authority, vesting title to Governmentfurnished personal property in contractors or grantees.
(m) Acquiring excess personal property from other bureaus and from other
Federal agencies.
§ 128–1.5005–2 Redelegations of authority.
(a) The authorities delegated by the
Assistant Attorney General for Administration to heads of bureaus may, in
turn, be redelegated as necessary to enable personal property management
functions to be performed at the organizational level best equipped to handle such functions, unless otherwise
prohibited by this regulation.
(b) Such redelegations can be made
without the specific approval of the Assistant Attorney General for Adminis-
tration to deputies, principal administrative officers, heads of field offices
and installations and their respective
deputies. Such redelegations shall not
conflict with the duties or responsibilities assigned to the PMO, or PC under
the JPMR.
(c) Existing delegations of authority
by the Assistant Attorney General for
Administration in matters of personal
property management which are not
covered in this section shall continue
in effect until modified or revoked.
(d) Redelegations of authorities made
in accordance with this section shall be
in writing and shall be made available
for audits, surveys, or as otherwise appropriate.
§ 128–1.5006
General responsibilities.
§ 128–1.5006–1
Head of bureau.
The head of a bureau is responsible
for establishing and administering a
property management program within
his respective operation which will provide for:
(a) The planning and scheduling of
property requirements to assure that
supplies, equipment, and space are
readily available to satisfy program
needs while minimizing operating costs
and inventory levels.
(b) The creation and maintenance of
complete, accurate inventory control
and accountability record systems.
(c) The maximum utilization of
available property for official purposes.
(d) The proper care and securing of
property, to include storage, handling,
preservation, and preventative maintenance.
(e) The identification of property excess to the needs of the bureau which
must be made available to other Departmental activities and reported to
GSA for transfer, donation, or disposal,
as appropriate, under the provisions of
the FPMR and JPMR.
(f) The submission of required property management reports.
(g) The conducting of periodic management reviews within the activity to
assure compliance with prescribed policies, regulations, and procedures and to
determine additional guidance or
training needs.
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Department of Justice
§ 128–1.5009
(h) Advising all bureau employees of
their responsibilities for Government
property.
(i) Supporting general ledger control
accounts for personal property by establishing subsidiary accounts and
records as prescribed by the bureau in
accordance with the provisions of DOJ
Order 2110.1, Paragraph 4(b)(c).
§ 128–1.5006–2 Property
management
officer (PMO).
The property management officer of
a bureau is responsible for coordinating
and conducting the activities of the
personal property management program and for performing the following
functions:
(a) Providing the required leadership,
guidance, and operating procedures for
personal property management functions.
(b) Ensuring general ledger control
accounts for personal property are supported by property records in accordance with DOJ Order 2110.1, Paragraph
6.103b(4).
(c) Ensuring bureau compliance with
the personal property management requirements of the FPMR and JPMR.
(d) Designating items of controlled
personal property within the bureau.
(e) Ensuring records of controlled
personal property are created and
maintained by personnel other than
property custodians.
§ 128–1.5006–3 Department employees.
Each employee of the Department
who has use of, supervises the use of, or
has control over Government property
is responsible for that property. This
responsibility may take either or both
of the following forms:
(a) Supervisory responsibility, in
which an officer-in-charge, and administrative officer, or a supervisor is obligated to establish and enforce necessary administrative and security
measures to ensure proper preservation
and use of all Government property
under his jurisdiction.
(b) Personal responsibility, in which
each employee of the Department is
obligated to properly care for, handle,
use, and protect Government property
issued to or assigned for the employee’s
use at or away from the office or station.
§ 128–1.5007 Reproduction of departmental and bureau seals.
(a) Requests for permission to reproduce the Departmental seal for commercial, educational, ornamental or
other purposes by other government
agencies or private entities shall be referred to the Assistant Attorney General for Administration for decision.
(b) Requests for permission to reproduce the seals of the Federal Bureau of
Investigation, the Bureau of Prisons,
the Federal Prison Industries, the Immigration and Naturalization Service,
the Board of Parole, the Drug Enforcement Administration, and the United
States Marshals Service for such purposes by other government agencies or
private entities shall be referred to the
head of the respective Departmental
organization for decision.
(c) The decision whether to grant
such a request shall be made on a caseby-case basis, with consideration of
any relevant factors, which may include the benefit or cost to the government of granting the request; the unintended appearance of endorsement or
authentication by the Department; the
potential for misuse; the effect upon
Departmental security; the reputability of the use; the extent of control
by the Department over the ultimate
use; and the extent of control by the
Department over distribution of any
products or publications bearing a Departmental seal.
[45 FR 55727, Aug. 21, 1980]
§ 128–1.5009 Authorization for use of
the Federal Bureau of Investigation
anti-piracy warning seal.
(a) Purpose. The Federal Bureau of
Investigation (FBI) Anti-Piracy Warning Seal (‘‘APW Seal’’) is an official insignia of the FBI and the United States
Department of Justice. The purpose of
the APW Seal is to help detect and
deter criminal violations of United
States intellectual property laws by
educating the public about the existence of these laws and the authority of
the FBI to enforce them.
(b) The APW Seal is a modified image
of the Official FBI Seal with the words
‘‘FBI ANTI-PIRACY WARNING’’ displayed horizontally across its center in
an enclosed border, whether rendered
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§ 128–1.5009
41 CFR Ch. 128 (7–1–16 Edition)
in color, black and white, outline, or
otherwise.
(c) The APW Seal has been approved
by the Attorney General as an official
insignia of the FBI within the meaning
of Title 18, United States Code, Section
701, which provides criminal sanctions
for unauthorized uses of such insignia.
(d)(1) The regulations in this section
authorize use of the APW Seal by copyright holders on copyrighted works including, but not limited to films, audio
recordings, electronic media, software,
books, photographs, etc., subject to the
terms and conditions set forth in this
section.
(2) Use of the APW Seal or of the authorized warning language in a manner
not authorized under this section may
be punishable under Title 18, United
States Code, Sections 701, 709, or other
applicable law.
(e) Conditions regarding use of the
APW Seal. (1) The APW Seal shall only
be used on copyrighted works subject
to protection under United States
Criminal Code provisions such as those
in Title 18, United States Code, Sections 2319, 2319A, and 2319B.
(2) The APW Seal shall only be used
immediately adjacent to the authorized warning language. ‘‘Authorized
warning language’’ refers to the language set forth in paragraph (e)(2)(i) of
this section, or alternative language
specifically authorized in writing for
this purpose by the Director of the FBI
or his or her designee and posted on the
FBI’s official public Internet Web site
(http://www.fbi.gov). Except as authorized pursuant to paragraph (f)(1), the
APW Seal and authorized warning language shall be enclosed by a plain box
border at all times that other text or
images appear on the same screen or
page.
(i) ‘‘The unauthorized reproduction
or distribution of a copyrighted work is
illegal. Criminal copyright infringement, including infringement without
monetary gain, is investigated by the
FBI and is punishable by fines and federal imprisonment.’’
(ii) [Reserved]
(3) The APW Seal image must be obtained from the FBI’s official public
Internet Web site (http://www.fbi.gov).
The APW Seal image shall not be animated or altered except that it may be
rendered in outline, black and white, or
grayscale.
(4) In programming or reproducing
the APW Seal in or on a work, users
are encouraged to employ industry-recognized copyright anti-circumvention
or copy protection techniques to discourage copying of the FBI APW Seal,
except that such techniques need not
be used if no other content or advertising programmed into the same work
on the same media utilizes such copyright anti-circumvention or copy protection techniques.
(f) Prohibitions regarding use of the
APW Seal. (1) The APW Seal shall not
be used in a manner indicating FBI approval, authorization, or endorsement
of any communication other than the
authorized warning language. No other
text or image that appears on the same
screen, page, package, etc., as the APW
Seal or authorized warning language
shall reference, contradict, or be displayed in a manner that appears to be
associated with, the APW Seal or authorized warning language, except as
authorized in writing by the Director
of the FBI or his or her designee and
posted on the FBI’s official public
Internet Web site (http://www.fbi.gov).
(2) The APW Seal shall not be used
on any work whose production, sale,
public presentation, or distribution by
mail or in or affecting interstate commerce would violate the laws of the
United States including, but not limited to, those protecting intellectual
property and those prohibiting child
pornography and obscenity.
(3) The APW Seal shall not be forwarded or copied except as necessary to
display it on an eligible work.
(4) The APW Seal shall not be used in
any manner:
(i) Indicating that the FBI has approved, authorized, or endorsed any
work, product, production, or private
entity, including the work on which it
appears;
(ii) Indicating that the FBI has determined that a particular work or portion thereof is entitled to protection of
the law; or,
(iii) Indicating that any item or communication, except as provided herein,
originated from, on behalf of, or in coordination with the FBI, whether for
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Department of Justice
§ 128–1.8004
enforcement purposes, education, or
otherwise.
[77 FR 41320, July 13, 2012]
Subpart 128–1.80—Seismic Safety
Program
AUTHORITY: 42 U.S.C. 7701 et seq., E.O. 12699
(3 CFR, 1990 Comp., p. 269).
SOURCE: 58 FR 42876, Aug. 12, 1993; 59 FR
33439, June 29, 1994, unless otherwise noted.
§ 128–1.8000 Scope.
This subpart establishes a Seismic
Safety Program for the Department of
Justice and sets forth the policies and
procedures for obtaining compliance
with Executive Order 12699 (Executive
Order), ‘‘Seismic Safety of Federal and
Federally Assisted or Regulated New
Building Construction.’’
§ 128–1.8001 Background.
The Earthquake Hazards Reduction
Act of 1977 (Act), 42 U.S.C. 7701, et seq.,
as amended, directs the Federal government to establish and maintain an
effective earthquake hazards reduction
program to reduce the risks to life and
property from future earthquakes. Executive Order 12699 implements certain
provisions of the Act by requiring Federal agencies responsible for the design
and construction of new buildings to
develop and implement a seismic safety program. The regulations in this
subpart implement the Executive
Order, and apply to buildings designed
and constructed under the responsibility of the Department of Justice.
These regulations do not apply to
buildings used by the Department and
obtained, through purchase or lease, by
the General Services Administration or
other Federal agencies.
§ 128–1.8002 Definitions of terms.
(a) Construction documents—Detailed
plans and specifications for the construction of a building.
(b) Building—Any structure, fully or
partially enclosed, used or intended for
sheltering persons or property.
(c) New building—A building, or an
addition to an existing building, for
which development of construction
documents was initiated after January
5, 1990.
(d) Leased building—A new building
constructed expressly for lease by the
Department of Justice, and for which
the Department contracted with the
lessor or owner to develop construction
documents to meet the specifications
of the Department.
(e) Purchased building—A new building constructed expressly for purchase
by the Department, and for which the
Department contracted with the owner/
developer to develop construction documents meeting the specifications of
the Department.
(f) Assisted or regulated building—A
new building designed and constructed
with funding assistance from the Department through Federal grants or
loans, or guarantees of financing,
through loan or mortgage insurance
programs.
(g) Covered building—a new building
owned, leased, purchased, or assisted or
regulated by the Department of Justice.
§ 128–1.8003
Objective.
The Department shall comply with
Executive Order 12699 for the purpose
of reducing the risks to lives of occupants of new buildings owned by the
Department, leased for Department
uses, or purchased and constructed
with assistance from the Department,
and to other persons who would be affected by the failure of such buildings
in earthquakes; improving the capability of essential new Department
buildings to function during or after an
earthquake; and protecting public investments in all covered buildings; all
in a cost-effective manner.
§ 128–1.8004
tors.
Seismic Safety Coordina-
(a) The Justice Management Division
shall designate an individual with technical training, engineering experience
and a seismic background as the Department of Justice Seismic Safety Coordinator who shall provide overall
guidance for the implementation of the
Seismic Safety Program for the Department. The Department Seismic
Safety Coordinator shall, at a minimum:
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§ 128–1.8005
41 CFR Ch. 128 (7–1–16 Edition)
(1) Monitor the execution and results
of the efforts of the Department to upgrade the seismic safety of the Department’s new construction activities;
(2) Implement seismic safety program changes, as required;
(3) Act as a point-of-contact for the
Department in maintaining necessary
records, and consolidate data pertaining to the seismic safety activities
in the Department;
(4) Monitor and record the cost, construction and other consequences attributable to compliance with the Executive Order;
(5) Notify each Component Seismic
Coordinator about what information he
must maintain under the Seismic Safety Program and what reports he must
prepare;
(6) Prepare and forward for submission all reports, as required by law and
regulation;
(7) Manage the Seismic Safety Program for all components of the Department, with the exception of the components listed in paragraph (b) of this
section.
(b) The Component Head for the Bureau of Prisons, the Drug Enforcement
Administration, the Federal Bureau of
Investigation, the Immigration and
Naturalization Service, and the United
States Marshals Service, shall designate a Component Seismic Safety Coordinator for his/her respective component. Each of these Component Seismic
Safety Coordinators shall manage and
implement the seismic safety policies
and activities within the component.
The Component Seismic Safety Coordinators shall, at a minimum:
(1) Provide guidance to component
employees who undertake building activity;
(2) Maintain and provide data about
the Seismic Safety Program, as requested by the Department Seismic
Safety Coordinator;
(3) Monitor and record the cost, construction and other consequences attributable to compliance with the Executive Order; and
(4) Submit an annual Seismic Safety
Program status report as directed by
the Department Seismic Safety Coordinator.
§ 128–1.8005 Seismic safety standards.
(a) To meet the building and construction requirements of this subpart,
the Department, except as noted,
adopts as its seismic safety standards
the seismic safety levels set forth in
the model building codes that the
Interagency Committee on Seismic
Safety in Construction (ICSSC) recognizes and recommends as appropriate
for implementing the Executive Order.
The ICSSC, as of the date of this rule,
recognizes and recommends:
(1) The 1991 International Conference
of Building Officials (ICBO) Uniform
Building Code (UBC);
(2) The 1992 Supplement to the Building Officials and Code Administrators
International (BOCA) National Building Code (NBC); and
(3) The 1992 Amendments to the
Southern Building Code Congress
(SBCC) Standard Building Code (SBC).
(b) The seismic design and construction of a covered building shall conform to the model code applicable in
the locality where the building is constructed, unless:
(1) The building code for the locality
provides a higher level of seismic safety than provided by the appropriate
model code, in which case the local
code shall be utilized as the standard;
or
(2) The locality does not have seismic
safety building requirements, in which
case the ICSSC model building code appropriate for that geographic area shall
be utilized as the standard.
§ 128–1.8006 Seismic Safety Program
requirements.
The Department Seismic Safety Coordinator and each Component Seismic
Safety Coordinator shall ensure that
an individual familiar with seismic design provisions of the Seismic Safety
Standards (appropriate standards), or a
professional, licensed engineer shall
conduct the reviews required under
this section, as appropriate.
(a) New building projects. Construction
documents initiated after August 12,
1993, and which apply to new construction projects, shall comply with the appropriate standards and shall be reviewed for compliance. Once the reviewer determines that the documents
comply, the reviewer shall affix his/her
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Department of Justice
§ 128–1.8010
signature and seal (if a licensed engineer) to the approved documents and
provide a statement certifying compliance with the appropriate standards.
(b) Existing building projects. For new
buildings with construction documents
that were initiated prior to August 12,
1993, the documents shall be reviewed
to determine whether they comply
with the appropriate standards. If the
reviewer determines that the documents comply with the standard, the
reviewer shall affix his/her signature
and seal (if a licensed engineer) to the
approved documents and provide a
statement certifying compliance with
the appropriate standards. If the reviewer determines that seismic deficiencies exist, the appropriate Component Head shall ensure completion of
one of the following:
(1) For a new building project for
which a contract for construction has
not been awarded, the construction
documents shall be revised to incorporate the appropriate standards. The
revised construction documents shall
then be reviewed for compliance. Once
the reviewer determines that the documents comply with the standard, the
reviewer shall affix his/her signature
and seal (if a licensed engineer) to the
approved documents and provide a
statement certifying compliance with
the Department standards.
(2) For a new building under construction, or for which construction
has been completed, a corrective action
plan shall be devised to bring the building into compliance with the appropriate standards. The plan shall then
be reviewed for compliance. Once the
reviewer determines that the plan complies with the standard, the reviewer
shall affix his/her signature and seal (if
a licensed engineer) to the approved
documents and provide a statement
certifying compliance with the Department standards. The Component Head
shall ensure implementation of the approved plan.
(3) For an addition to an existing
building, the review shall account for,
in addition to the requirements provided in paragraphs (b) (1) or (2) of this
section, as appropriate, any effect the
addition will have on the seismic resistance of the existing portion of the
structure. If the reviewer determines
that the addition will decrease the
level of seismic resistance of the existing building, the appropriate Component Head shall develop a plan of corrective action to restore the seismic
integrity of the existing structure.
Once the plan of corrective action has
been accomplished, the reviewer shall
verify that the current level of seismic
resistance of the existing building at
least equals the seismic resistance
level of the building before the addition.
(c) The Department Seismic Safety
Coordinator and each Component Seismic Safety Coordinator shall ensure
that statements verifying compliance
made under this subpart have been
completed and retained by the appropriate contracting officer when the Department contracted for design or design review services, or by an individual designated by the Component
Head where the Department has not
contracted for either design or design
review.
§ 128–1.8007
Reporting.
The Department shall file reports on
the execution of the Executive Order as
required under the Order, and as required by the Federal Emergency Management Agency.
§ 128–1.8008
Exemptions.
The Executive Order exempts from
the regulations in this subpart only
those categories of buildings exempted
by the ‘‘National Earthquake Hazards
Reduction Program Recommended Provisions for the Development of Seismic
Regulations for New Buildings.’’ The
Department Seismic Safety Coordinator shall maintain the latest version
of this document.
§ 128–1.8009 Review of Seismic Safety
Program.
The Department shall review and, as
necessary, revise the Seismic Safety
Program once every three years from
August 12, 1993.
§ 128–1.8010
Judicial review.
Nothing in this subpart is intended
to create any right or benefit, substantive or procedural, enforceable at
law by a party against the Department
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Pt. 128–18
41 CFR Ch. 128 (7–1–16 Edition)
of Justice, its Seismic Safety Coordinators, its officers, or any employee of
the Department.
PART 128–18—ACQUISITION OF
REAL PROPERTY
Subpart 128–18.50—Uniform Relocation Assistance and Real
Property Acquisition for Federal and Federally Assisted
Programs
AUTHORITY: Sec. 213, Uniform Relocation
Assistance and Real Property Acquisition
Policies Act of 1970, Pub. L. 91–646, 84 Stat.
1894 (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation
Assistance Act of 1987, Title IV of Pub. L.
100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note).
§ 128–18.5001–1 Uniform relocation assistance and real property acquisition.
Regulations and procedures for complying with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91–646,
84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface Transportation and
Uniform Relocation Assistance Act of
1987 (Title IV of Pub. L. 100–17, 101 Stat.
246–255, 42 U.S.C. 4601 note) are set
forth in 49 CFR part 25.
[52 FR 48025, Dec. 17, 1987]
PART 128–48—UTILIZATION, DONATION, OR DISPOSAL OF ABANDONED AND FORFEITED PERSONAL PROPERTY
Sec.
128–48.001 Definitions.
128–48.001–5 Forfeited property.
128–48.001–50 Administrative or
process.
summary
Subpart 128–48.1—Utilization of Abandoned and Forfeited Personal Property
128–48.102–1 Vesting of title in the United
States.
128–48.102–4 Proceeds.
128–48.150 Determination of type of property.
Subpart 128–48.3—Disposal of Abandoned
and Forfeited Personal Property
128–48.305–1 Abandoned or other unclaimed
property.
Subpart 128–48.50—Proper Claims for
Abandoned or Other Unclaimed Personal Property
128–48.500 Scope of subpart.
128–48.501 Definitions.
128–48.501–1 Determining official.
128–48.501–2 Claimant.
128–48.501–3 Owner.
128–48.501–4 Person.
128–48.502 Procedures relating to claims.
128–48.503 General procedures.
AUTHORITY: 41 CFR 128–1.105.
SOURCE: 43 FR 3279, Jan. 24, 1978, unless
otherwise noted.
§ 128–48.001
Definitions.
§ 128–48.001–5 Forfeited property.
Personal property acquired by a bureau, either by administrative process
or by order of a court of competent jurisdiction pursuant to any law of the
United States.
§ 128–48.001–50 Administrative or summary process.
Forfeiture is achieved by direction of
the seizing bureau in lieu of the courts.
The phrase shall be interpreted to
mean by administrative process.
Subpart 128–48.1—Utilization of
Abandoned and Forfeited
Personal Property
§ 128–48.102–1 Vesting of title in the
United States.
(a) Abandoned or other unclaimed
property, subject to the provisions of
section 203(m) of the Federal Property
and Administrative Services Act of
1949, as amended (40 U.S.C. 484(m)),
shall remain in the custody of and be
the responsibility of the bureau finding
such property.
(b) If the owner of such property is
known, the owner shall be notified
within 20 days of finding such property
by certified mail at the owner’s address
of record that the property may be
claimed by the owner or his designee
and that if the property is not claimed
within 30 days from the date the letter
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Department of Justice
§ 128–48.305–1
of notification is postmarked, the title
of the property will vest in the United
States.
(c) If the owner of such property is
not known and the estimated value of
the property exceeds $100, the bureau
shall post notice within 20 days of finding such property, which contains the
following information:
(1) A description of the property including model or serial numbers, if
known.
(2) A statement of the location where
the property was found and the office
that has custody of it.
(3) A statement that any person desiring to claim the property must file
with the bureau within 30 days from
the date of first publication a claim for
said property.
(4) A complete mailing address is to
be provided as a point of contact within the bureau for any person to obtain
additional information concerning the
property or the procedures involved in
filing a claim.
Notice must be published once a week
for at least three successive weeks.
Sound judgment and discretion must
be used in selecting the publication
medium. Advertisements should be
placed in a publication of general circulation within the judicial district
where the property was found.
(d) Property, as described in paragraphs (b) and (c) of this section, shall
be held for a period of 30 days from the
date of the first publication of notice.
Upon the expiration of this 30-day period, title to such property vests in the
United States, except that title reverts
to the owner where a proper claim is
filed within three years from the date
of vesting of title in the United States,
but if the property has been in official
use, transferred for official use, or sold
at the time the proper claim is approved, title shall not revert back to
the former owner. The former owner
shall instead obtain reimbursement in
accordance with 41 CFR 101–48.102–4 or
101–48.305–1.
(e) If the owner of such property is
unknown and the estimated value of
the property is $100 or less, no notice is
required, and the property shall be held
for a period of 30 days from the date of
finding the property. Upon expiration
of this 30-day period, title to such property vests in the United States.
§ 128–48.102–4
Proceeds.
(a) Records of abandoned or other unclaimed property will be maintained in
such a manner as to permit identification of the property with the original
owner, if known, when such property is
put into official use or transferred for
official use by the finding bureau.
Records will be maintained until the
three-year period for filing claims has
elapsed to enable the bureau to determine the amount of reimbursement due
to a former owner who has filed a proper claim for abandoned or other unclaimed property.
(b) Reimbursement for official use by
the finding bureau or transfer for official use of abandoned or other unclaimed property that has been placed
in a special fund by the bureau for
more than three years shall be deposited in the Treasury of the United
States as miscellaneous receipts, or in
such other bureau accounts as provided
by law.
§ 128–48.150 Determination of type of
property.
If a bureau is unable to determine
whether the personal property in its
custody is abandoned or voluntarily
abandoned, the bureau shall contact
the regional office of the General Services Administration for the region in
which the property is located for such
a determination.
Subpart
128–48.3—Disposal
of
Abandoned and Forfeited
Personal Property
§ 128–48.305–1 Abandoned or other unclaimed property.
Proceeds from the sale of abandoned
or other unclaimed property that have
been placed in a special fund by a bureau for more than three years shall be
deposited in the Treasury of the United
States as miscellaneous receipts, or in
such other bureau accounts as provided
by law.
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§ 128–48.500
41 CFR Ch. 128 (7–1–16 Edition)
Subpart 128–48.50—Proper Claims
for Abandoned or Other Unclaimed Personal Property
§ 128–48.500
Scope of subpart.
This subpart sets forth the policies in
regard to proper claims for abandoned
or other unclaimed property.
§ 128–48.501
Definitions.
§ 128–48.501–1
Determining official.
The official who has the authority to
grant or deny the claim for the abandoned or other unclaimed property.
§ 128–48.501–2
Claimant.
The person who submitted the claim
for the abandoned or other unclaimed
property.
§ 128–48.501–3
Owner.
The person who has primary and direct title to property (see 28 CFR
9.2(e)).
§ 128–48.501–4
Person.
An individual, partnership, corporation, joint venture, or other entity capable of owning property (see 28 CFR
9.2(f)).
§ 128–48.502
claims.
Procedures
relating
to
(a) Upon receipt of a claim, an investigation shall be conducted to determine the merits of the claim, and the
investigation’s report shall be submitted to the determining official.
(b) The determining official shall be
designated by the head of a bureau.
(c) Upon receipt of a claim and the
report thereon by the determining official, he shall make a ruling based upon
the claim and the investigation’s report.
(d) Notice of the granting or denial of
a claim for abandoned or other unclaimed property shall be mailed to the
claimant or his attorney. If the claim
is granted, the conditions of relief and
the procedures to be followed to obtain
the relief shall be set forth. If the
claim is denied, the claimant shall be
advised of the reason for such denial.
(e) A request for reconsideration of
the claim may be submitted within 10
days from the date of the letter deny-
ing the claim. Such request shall be addressed to the head of the bureau and
shall be based on evidence recently developed or not previously considered.
§ 128–48.503 General procedures.
(a) Claims shall be sworn and shall
include the following information in
clear and concise terms:
(1) A complete description of the
property including serial numbers, if
any.
(2) The interest of the claimant in
the property, as owner, mortgagee, or
otherwise, to be supported by bills of
sale, contracts, mortgages, or other
satisfactory documentary evidence.
(3) The facts and circumstances, to be
established by satisfactory proof, relied
upon by the claimant to justify the
granting of the claim.
(b) If the claim is filed before title
has vested in the United States, the determining official shall not grant the
claim for the abandoned or other unclaimed property unless the claimant
establishes a valid, good faith interest
in the property.
(c) If the claim is filed after title has
vested in the United States, the determining official shall not grant the
claim for abandoned or other unclaimed property unless the claimant:
(1) Establishes that he would have a
valid, good faith interest in the property had not title vested in the United
States; and
(2) Establishes that he had no actual
or constructive notice, prior to the
vesting of title in the United States,
that the property was in the custody of
a bureau and that title, after the appropriate time period, would vest in
the United States. A claimant shall be
presumed to have constructive notice
upon publication in a suitable medium
concerning the property unless he was
in such circumstances as to prevent
him from knowing of the status of the
property or having the opportunity to
see the notice.
PART 128–50—SEIZED PERSONAL
PROPERTY
Sec.
128–50.000 Scope of part.
128–50.001 Definitions.
128–50.001–1 Seized personal property.
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Department of Justice
§ 128–50.103
Subpart 128–50.1—Storage and Care of
Seized Personal Property
128–50.100
128–50.101
128–50.102
128–50.103
Storage and care.
Inventory records.
Periodic reviews.
Investigation of any discrepancy.
AUTHORITY: 41 CFR 128–1.105.
SOURCE: 43 FR 3279, Jan. 24, 1978, unless
otherwise noted.
§ 128–50.000 Scope of part.
This part prescribes the policies for
the storage and care of seized personal
property; the preparation and maintenance of inventory records of its seized
personal property; the conducting of
periodic internal reviews; and the investigation of any discrepancy between
the inventory records and the actual
amount of its seized personal property.
§ 128–50.001
Definitions.
§ 128–50.001–1 Seized personal property.
Personal property for which the Government does not have title but which
the Government has obtained custody
or control of in accordance with 15
U.S.C. 1177; 18 U.S.C. 924(d), 1955(d),
2513, 3611, 3612, 3615; 19 U.S.C. 1595a; 21
U.S.C. 881; 22 U.S.C. 401; Fed. R. Crim.
P. 41(b); 28 CFR 0.86, 0.89, 0.111(j), 3.5,
3.6, 8.1, 8.2, 9a.1, 9a.2; or other statutory
authority.
Subpart 128–50.1—Storage and
Care of Seized Personal Property
§ 128–50.100 Storage and care.
(a) Each bureau shall be responsible
for providing that its seized personal
property storage facilities meet the
safeguarding standards applicable to
the type of property being stored.
(b) Each bureau shall be responsible
for performing care on its seized personal property to prevent the unnecessary deterioration of such property. In
particular, a bureau preparing a seized
vehicle for storage should be at a minimum;
(1) Protect the cooling system from
freezing;
(2) Protect the battery by assuring it
is properly watered;
(3) Protect the tires by inflating to
correct pressure;
(4) Remove all articles found in the
vehicle’s interior (for example, easily
removable radios, tape players, and
speakers) and all exterior accessories
(for example, wheel covers) that are
subject to pilferage and properly store
them; and
(5) Shut all windows and lock all
doors and compartments that have
locks.
§ 128–50.101
Inventory records.
Each bureau shall be responsible for
establishing and maintaining inventory records of its seized personal property to ensure that:
(a) The date the property was seized
is recorded;
(b) All of the property associated
with a case is recorded together under
the case name and number;
(c) The location of storage of the
property is recorded;
(d) A well documented chain of custody is kept; and
(e) All information in the inventory
records is accurate and current.
§ 128–50.102
Periodic reviews.
Each bureau shall be responsible for
performing an independent accountability review at least once a year to
ensure compliance with this subpart
and with the bureau’s procedures for
the handling, storage, and disposal of
its seized personal property. In particular, a bureau conducting a review
shall verify that the inventory records
are accurate, current, and are being
kept in accordance with established inventory procedures.
§ 128–50.103 Investigation of any discrepancy.
(a) Upon discovery of any discrepancy between the inventory records
and the bureau’s actual amount of
seized personal property, a board of
survey shall conduct an investigation
in accordance with 41 CFR 128–51.1.
(b) If the discrepancy cannot be
eliminated and involves a shortage, the
bureau shall notify the U.S. attorney
in charge of the litigation involving
the missing property of the shortage as
soon as possible.
(c) If the discrepancy cannot be
eliminated and involves an overage,
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§ 128–50.103
41 CFR Ch. 128 (7–1–16 Edition)
the bureau shall determine if the property has any evidentiary value. If the
property does have evidentiary value,
the property shall be properly stored
and inventoried. If the property does
not have any evidentiary value, the bureau shall determine whether the property is forfeitable to the United States,
voluntarily abandoned, or abandoned.
Proper proceedings shall be commenced as soon as possible to vest title
of the forfeitable property in the
United States. The voluntarily abandoned and abandoned property shall be
kept in custody in accordance with 41
CFR 101–48 and any applicable Justice
property management regulations.
CHAPTERS 129–200 [RESERVED]
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| File Type | application/pdf |
| File Modified | 2020-01-17 |
| File Created | 2020-01-17 |