The Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35-45), hereinafter referred to as the Act, was enacted “to provide conditions for the purchase of supplies and the making of contracts by the United States.” It is not an act of general applicability to industry. The Supreme Court has described it as an instruction by the Government to its agents who were selected and granted final authority to fix the terms and conditions under which the Government will permit goods to be sold to it. Its purpose, according to the Supreme Court “was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment.” (“Perkins v. Lukens Steel Co.,” 310 U.S. 113, 128 (1940); “Endicott Johnson Corp. v. Perkins,” 317 U.S. 501 (1943).) To this end, the Act requires those who enter into contracts to perform Government work subject to its terms to adhere to specifically prescribed representations and stipulations as set forth in 41 CFR 50-201.1 pertaining to qualifications of contractors, minimum wages, overtime pay, safe and sanitary working conditions of workers employed on the contract, the use of child labor or convict labor on the contract work, and the enforcement of such provisions. Except as otherwise specifically provided, these representations and stipulations are required to be included in every contract “for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000” which is made and entered into by an agency of the United States or other entity as designated in section 1 of the Act, hereinafter referred to as “contracting agency.” Contractors performing work subject to the Act thus “enter into competition to obtain Government business on terms of which they are fairly forwarned by inclusion in the contract.” (“Endicott Johnson Corp. v. Perkins, supra,” 317 U.S. at 507.) The Act also provides for enforcement of the required representations and stipulations by various methods. Certain exemptions from the application of the Act are provided in section 9 of the statute. Other exemptions, variations, and tolerances may be provided under section 6 of the statute by the Secretary of Labor or the President.
(a) The Secretary of Labor is authorized and directed to administer the provisions of the Act, to make investigations, findings, and decisions thereunder, and to make, amend, and rescind rules and regulations with respect to its application (see sections 4 and 5). The Supreme Court has recognized that the Secretary may issue rulings defining the coverage of the Act. (“Endicott Johnson Corp. v. Perkins, supra”.) According to the Court (ibid.), in the statute as originally enacted “Congress submitted the administration of the Act to the judgment of the Secretary of Labor, not to the judgment of the courts.” An amendment to the Act in 1952 added specific provisions for judicial review (see section 10). The Secretary has promulgated regulations to carry out provisions of the Act, which are set forth elsewhere in this chapter (Part 50-201 (General Regulations); Part 50-202 (Minimum Wage Determinations); Part 50-203 (Rules of Practice); and Part 50-204 (Safety and Health Standards)). The Secretary of Labor has delegated to the Administrator of the Wage and Hour Division through the Assistant Secretary for Employment Standards the authority to promulgate regulations and to issue official rulings and interpretations. So long as such regulations, rulings, and interpretations are not modified, amended, rescinded, or determined by judicial authority to be incorrect, they may be relied upon as provided in section 10 of the Portal-to-Portal Act of 1947 (61 Stat. 84, 29 U.S.C. 251, et seq., discussed in 29 CFR part 790). Furthermore, these interpretations are intended to indicate the construction of the law which the Department of Labor believes to be correct and which will be followed in the administration of the Act unless and until directed otherwise by Act of Congress or by authoritative rulings of the courts. (“Skidmore v. Swift & Co.”, 323 U.S. 134 (1944), “Roland Co. v. Walling”, 326 U.S. 657 (1946); “Endicott Johnson Corp. v. Perkins, supra”, and “Perkins v. Lukens Steel Co., supra”.)
(b) The courts have held that the “interpretations of the Walsh-Healey Act and the regulations adopted thereunder, as made by the Secretary of Labor acting through his Administrator, are both correct and reasonable.” (“Jno. McCall Coal Company v. United States,” 374 F. 2d 689, 692 (C.A. 4, 1967); see also “United States v. Davison Fuel and Dock Company,” 371 F. 2d 705, 711-714 (C.A. 4, 1967).) These policies are designed to protect not only employees but also the competitive interest of all firms qualified to compete for covered contracts.
Except as hereinafter directed, in every contract made and entered into by an executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States, for the manufacture or furnishing of materials, supplies, articles, and equipment, the contracting officer shall cause to be inserted or incorporated by reference in such invitation or the specifications and in such contract, the following stipulations:
(a) All persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under the contract.
(b) No person employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract shall be permitted to work in excess of 40 hours in any 1 week unless such person is paid such applicable overtime rate as has been set by the Secretary of Labor: Provided, however, That the provisions of this stipulation shall not apply to any employer who shall have entered into an agreement with his employees pursuant to the provisions of paragraphs 1 or 2 of subsection (b) of section 7 of an act entitled “The Fair Labor Standards Act of 1938”: Provided, further, That in the case of such an employer, during the life of the agreement referred to the applicable overtime rate set by the Secretary of Labor shall be paid for hours in excess of 12 in any 1 day or in excess of 56 in any 1 week and if such overtime is not paid, the employer shall be required to compensate his employees during that week at the applicable overtime rate set by the Secretary of Labor for hours in excess of 40 in any 1 week.
(c) No person under 16 years of age and no convict labor will be employed by the contractor in the manufacture or production or furnishing of any of the materials, supplies, articles, or equipment included in the contract.
(d) No part of the contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima facie evidence of compliance with this paragraph.
(e) Any breach or violation of any of the foregoing representations and stipulations shall render the party responsible therefor liable to the United States of America for liquidated damages, in addition to damages for any other breach of the contract, in the sum of $33 per day for each person under 16 years of age, or each convict laborer knowingly employed in the performance of the contract, and a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of the contract; and, in addition, the agency of the United States entering into the contract shall have the right to cancel same and to make open-market purchases or enter into other contracts for the completion of the original contract, charging any additional cost to the original contractor. Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of the contract as set forth herein may be withheld from any amounts due on the contract or may be recovered in a suit brought in the name of the United States of America by the Attorney General thereof. All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees who have been paid less than minimum rates of pay as set forth in such contracts and on whose account such sums were withheld or recovered: Provided, That no claims by employees for such payments shall be entertained unless made within 1 year from the date of actual notice to the contractor of the withholding or recovery of such sums by the United States of America.
(f) The contractor shall post a copy of the stipulations in a prominent and readily accessible place at the site of the contract work and shall keep such employment records as are required in the regulations under the act available for inspection by authorized representatives of the Secretary of Labor.
(g) The contractor is not a person who is ineligible to be awarded Government contracts by virtue of sanctions imposed pursuant to the provisions of section 3 of the act.
(h) No part of the contract shall be performed and none of the materials, articles, supplies or equipment manufactured or furnished under the contract shall be manufactured or furnished by any person found by the Secretary of Labor to be ineligible to be awarded Government contracts pursuant to section 3 of the act.
(i) The foregoing stipulations shall be deemed inoperative if this contract is for a definite amount not in excess of $10,000.
Inclusion of the stipulations enumerated in § 50-201.1 is not required in the following instances:
(a) Where the contracting officer is authorized by the express language of a statute to purchase “in the open market”, or where a purchase of articles, supplies, materials or equipment, either in being or virtually so, is made without advertising for bids under circumstances bringing such purchase within the exception to the General Purchase Statute, R.S. 3709, that is, where immediate delivery is required by the public exigency.
(b) Where the contract relates to perishables, including dairy, livestock, and nursery products (“perishables” covers products subject to decay or spoilage and not products canned, salted, smoked, or otherwise preserved);
(c) Where the contract relates to agricultural or farm products processed for first sale by the original producers;
(d) Where the contract is by the Secretary of Agriculture for the purchase of agricultural commodities or the products thereof;
(e) Where the contract is with a common carrier for carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line, where published tariff rates are in effect;
(f) Where the contract is for the furnishing of service by radio, telephone, telegraph, or cable companies, subject to the Federal Communications Act of 1934 (48 Stat. 1064 as amended; 47 U.S.C. chapter 5).
The stipulations shall be deemed applicable only to employees engaged in or connected with the manufacture, fabrication, assembling, handling, supervision, or shipment of materials, supplies, articles, or equipment required under the contract, and shall not be deemed applicable to employees performing only office or custodial work, nor to any employee employed in a bona fide executive, administrative, professional, or outside salesman capacity, as those terms are defined and delimited by the regulations (29 CFR part 541) applicable during the period of performance of the contract under section 13(a)(1) of the Fair Labor Standards Act of 1938, as amended.
(a) Employees engaged in or connected with the manufacture, fabrication, assembling, handling, supervision, or shipment of materials, supplies, articles, or equipment used in the performance of the contract may be employed in excess of 40 hours in any one week: Provided, Such persons shall be paid for any hours in excess of 40 hours in any one week the overtime rate of pay which has been set therefor by the Secretary of Labor.
(b) Until otherwise set by the Secretary of Labor the rate of pay for such overtime shall be one and one-half times the basic hourly rate received by the employee. The “basic hourly rate” means an hourly rate equivalent to the rate upon which time-and-one-half overtime compensation may be computed and paid under section 7 of the Fair Labor Standards Act of 1938, as amended. The basic hourly rate may, in no case, be less than the applicable minimum wage.
(c) If in any one week or part thereof an employee is engaged in work covered by the contract's stipulations, overtime shall be paid for any hours worked in excess of 40 hours in any one week at the overtime rate set forth in paragraph (b) of this section.
(d) The overtime pay requirements of this section shall be deemed to be complied with in the case of any employee employed as provided in section 7(b) of the Fair Labor Standards Act of 1938, as amended, pursuant to the provisions of paragraph (1) or (2) of that section.
Whenever a dealer, to whom a contract within the act and regulations in this part has been awarded, causes a manufacturer to deliver directly to the Government the materials, supplies, articles, or equipment required under the contract, such dealer will be deemed the agent of the manufacturer in executing the contract. As the principal of such agent the manufacturer will be deemed to have agreed to the stipulations contained in the contract.
An employer shall not be deemed to have knowingly employed an underage minor in the performance of contracts subject to the Act if, during the period of the employment of such minor, the employer has on file an unexpired certificate of age issued and held pursuant to regulations issued by the Secretary of Labor under section 3(1) of the Fair Labor Standards Act of 1938 (29 CFR 570.121), showing that such minor is at least 16 years of age.
In determining the hours for which an employee is employed, there shall be excluded any time which is excluded by section 3(o) of the Fair Labor Standards Act of 1938, as amended, from the computation of hours worked for purposes of sections 6 and 7 of that act.
(a) Whenever the Department of Labor notifies the head of a contracting agency that a contractor is liable for liquidated damages by reason of a breach of stipulations as provided in section 2 of the act, there shall be withheld from any balance due under the contract such amount as may be necessary to satisfy such liability pending final disposition of the case.
(b) Whenever a final determination of a breach of stipulations is made, the Secretary of Labor will furnish to the contracting agency a copy of the findings and decision with such recommendations as will assist the contracting agency in determining whether or not the contract should be canceled for such breach.
Each agency which prescribes additional regulations for the Administration of the Walsh-Healey Public Contracts Act and for the implementation of the regulations in this part, shall submit such regulations, directives, and orders to the Administrator of the Wage and Hour Division prior to issuance. Any such regulations may not be enforced prior to approval by the Administrator or prior to 60 days after submission if not disapproved by the Administrator. Currently existing regulations are not affected by this section, except where such regulations are not in conformity with the Walsh-Healey Public Contracts Act and the Department of Labor regulations. In such cases, agency regulations shall be appropriately revised.
Every contractor subject to the provisions of the act and this part shall maintain the following records of employment which shall be available for the inspection and transcription of authorized representatives of the Secretary of Labor:
(a) Name, address, sex, and occupation of each employee covered by the contract stipulations;
(b) Date of birth of each employee under 19 years of age; and if the employer has obtained a certificate of age as provided in § 50-201.105, there shall also be recorded the title and address of the office issuing such certificate, the number of the certificate, if any, the date of its issuance, and the name, address and date of birth of the minor, as the same appears on the certificate of age;
(c) Wage-and-hour records for each such employee including the rate of wages and the amount paid each pay period, the hours worked each day and each week, and the period during which each such employee was engaged on a Government contract with the number of such contract. Compliance with this paragraph shall be deemed complete if wage-and-hour records for all employees in the plant are maintained during the period between the award of any Government contract and the date of delivery of the materials, supplies, articles, or equipment: Provided, That where no separate records for employees engaged on Government contracts are maintained, it shall be presumed until affirmative proof is present to the contrary that all employees in the plant, from the date of award of any such contract until the date of delivery of the materials, supplies, articles or equipment, were engaged on such Government contract;
(d) The records required by paragraphs (a), (b), and (c) of this section shall be kept on file for at least 3 years from their last date of entry;
(e) Basic employment and earnings records: All basic time and earning cards or sheets of the employer on which are entered the daily starting and stopping time of individual employees or of separate work forces, or the individual employees' daily, weekly, or pay period amounts of work accomplished (for example, units produced) when those amounts determine in whole or in part the pay period earnings or wages of those employees;
(f) Wage rate tables: All tables or schedules of the employer which provide the piece rates or other rates used in computing straight-time earnings, wages or salary, or overtime excess compensation;
(g) Work time schedules: All schedules or tables of the employer which establish the hours and days of employment of individual employees or of separate work forces;
(h) The records required by paragraphs (e), (f), and (g) of this section shall be kept on file at least 2 years from their last date of entry or their last effective date whichever is later.
Every person who is or shall become a party to a Government contract which is subject to the provisions of the Walsh-Healey Public Contracts Act and the regulations thereunder, or who is performing or shall perform any part of such contract subject to the provisions of such Act or regulations, shall comply with the recordkeeping requirements of 29 CFR Part 1904.
(a)(1) Request for the exception or exemption of a contract or class of contracts from the inclusion or application of one or more of those stipulations required by § 50-201.1 must be made by the head of a contracting agency or department and shall be accompanied with a finding by him setting forth reasons why such inclusion or application will seriously impair the conduct of Government business.
(2) Request for the exception or exemption of a stipulation respecting minimum rates of pay and maximum hours of labor contained in an existing contract must be made jointly by the head of the contracting agency and the contractor and shall be accompanied with a joint finding by them setting forth reasons why such exception or exemption is desired.
(b) All requests for exceptions or exemptions which relate solely to safety and health standards shall be transmitted directly to the Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC 20210, or, for those pertaining to coal mines, the Mine Safety and Health Administration, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203. All other requests for exceptions or exemptions shall be transmitted to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210.
Decisions concerning exceptions and exemptions shall be in writing and approved by the Secretary of Labor or authorized representative, and shall be transmitted to the department or agency originating the request and to the Comptroller General. All such decisions containing significant issues of general applicability shall be disseminated to all contracting agencies by the Wage and Hour Division, ESA, of the Department of Labor.
The following classes of contracts have been exempted from the application of § 50-201.1 pursuant to the procedure required under section 6 of the act:
(a) Contracts for public utility services including electric light and power, water, steam, and gas;
(b) Contracts for materials, supplies, articles, or equipment no part of which will be manufactured or furnished within the geographic limits of the States of the United States of America, Puerto Rico, the Virgin Islands, or the District of Columbia: In addition, the representations and stipulations required by the act and this part in any contract for materials, supplies, articles, or equipment to be manufactured or furnished in part within and in part outside such geographic limits shall not be applicable to any work performed under the contract outside such geographic limits;
(c) Contracts covering purchases against the account of a defaulting contractor where the stipulations required in this section were not included in the defaulted contract;
(d) Contracts awarded to sales' agents or publisher representatives, for the delivery of newspapers, magazines or periodicals by the publishers thereof.
Whenever used in the regulations in this part, the word person includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.
Determinations of prevailing minimum wages or changes therein will be published in the
(a) Apprentices, student-learners, and workers, whose earning capacity is impaired by age or physical or mental deficiencies or injuries may be employed at wages lower than the prevailing minimum wages, determined by the Secretary of Labor pursuant to section 1(b) of the Public Contracts Act, in accordance with the same standards and procedures as are prescribed for the employment of apprentices, student-learners, handicapped persons, and handicapped clients of sheltered workshops under section 14 of the Fair Labor Standards Act of 1938, and by the regulations of the Administrator of the Wage and Hour Division of the Department of Labor issued thereunder (29 CFR parts 520, 521, 524, 525, and 528).
(b) Any certificate in effect pursuant to such regulations shall constitute authorization for employment of that worker under the Public Contracts Act in accordance with the terms of the certificate, insofar as the prevailing minimum wage is concerned.
(c) The Administrator is authorized to issue certificates under the Public Contracts Act for the employment of apprentices, student-learners, handicapped persons, or handicapped clients of sheltered workshops not subject to the Fair Labor Standards Act of 1938, or subject to different minimum rates of pay under the two acts, at appropriate rates of compensation and in accordance with the standards and procedures prescribed by the applicable regulations issued under the Fair Labor Standards Act of 1938 (29 CFR parts 520, 521, 524, and 525).
(d) The Administrator is also authorized to withdraw, annul, or cancel such certificates in accordance with the regulations set forth in 29 CFR parts 525 and 528.
Whenever any officer or employee of the United States Government or of any agency thereof has any knowledge of, or receives any complaint with respect to, a breach or violation of the stipulations required under § 50-201.1, he shall transmit such complaint according to the usual practice in his department to the Department of Labor, together with such other information as he has in his possession.
Nothing in this part shall be construed as impairing the authority possessed by any contracting agency to require labor standards in contracts not covered by this act.
For regulations relative to employment of learners, see 29 CFR part 522.
Not less than the minimum wages prescribed in this part shall be paid to employees described in § 50-201.102 of this chapter when their work relates to contracts subject to the Walsh-Healey Public Contracts Act. The minimum wages prescribed in this part shall apply to all contracts bids for which are solicited or negotiations otherwise commenced on or after the effective date of the applicable determination. Nothing in this part shall affect any obligations for the payment of minimum wages that an employer may have under any law or agreement more favorable to employees than than the requirements of this part.
In all industries, the minimum wage applicable to employees described in § 50-201.102 of this chapter shall be not less than $3.35 per hour commencing January 1, 1981, $3.80 per hour commencing April 1, 1990, and $4.25 per hour commencing April 1, 1991.
Learners, student learners, apprentices, and handicapped workers may be employed at less than the minimum wage prescribed in § 50-202.2 to the same extent such employment is permitted under section 14 of the Fair Labor Standards Act.
(a) Any employer, employee, labor or trade organization or other interested person or organization may report a breach or violation, or apparent breach or violation of the Walsh-Healey Public Contracts Act of June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35-45), or of any of the rules or regulations prescribed thereunder.
(b) A report of breach or violation may be reported to the nearest office of the Wage and Hour Division, Employment Standards Administration or with the Administrator, Wage and Hour Division, Employment Standards Administration, 200 Constitution Avenue, NW., Washington, D.C. 20210.
(c) [Reserved]
(d) In the event that the Wage and Hour Division is notified of a breach or violation which also involves safety and health standards, such Director shall notify the appropriate Regional Director of the Bureau of Labor Standards who shall with respect to the safety and health violation take action commensurate with his responsibilities pertaining to safety and health standards.
(e) The report should contain the following:
(1) The full name and address of the person or organization reporting the breach or violation.
(2) The full name and address of the person against whom the report is made, hereinafter referred to as the “respondent”.
(3) A clear and concise statement of the facts constituting the alleged breach or violation of any of the provisions of the Walsh-Healey Public Contracts Act, or of any of the rules or regulations prescribed thereunder.
After a report of a breach or violation has been filed, or upon his own motion and without any report of a breach or violation having been previously filed, the Solicitor may issue and cause to be served upon the respondent a formal complaint stating the charges. Notice of hearing before an administrative law judge designated by the Secretary of Labor shall be issued and served within a reasonable time after the issuance of the complaint. A copy of the complaint and notice of hearing shall be served upon the surety or sureties. Unless the administrative law judge otherwise determines, the date of hearing shall not be sooner than 30 days after the date of issuance of the complaint.
(a) The respondent shall have the right, unless otherwise specified in the complaint and notice, within twenty (20) days after date of issuance of the formal complaint, to file an answer thereto. Such answer shall not be limited to a mere denial of the charges. It shall specifically deny or admit each of the charges, and, if the answer is in denial of any one of the charges, it shall contain a concise statement of the facts relied upon in support of the denial. Any charges not specifically denied in the answer shall be deemed to be admitted and may be so found by the administrative law judge, unless the respondent disclaims knowledge upon which to make a denial. If the answer should admit any charge but the respondent believes there are reasons or circumstances warranting special consideration, such reasons and circumstances should be fully but concisely stated.
(b) Such answer shall be in writing, and signed by the respondent or his attorney or by any other duly authorized agent with power of attorney affixed.
(c) If no answer is filed, or if the answer as filed does not warrant a postponement of the hearing, such hearing will be held as scheduled.
(d) The original and two copies of the answer shall be filed with the Chief administrative law judge, Department of Labor, Washington, D.C.
(e) In any case where formal complaints have been amended, the respondent shall have the right to amend his answer within such time as may be fixed by the administrative law judge.
(a) All motions except those made at the hearing shall be filed in writing with the Chief administrative law judge, Department of Labor, Washington, D.C., and shall be included in the record. Such motions shall state briefly the order or relief applied for and the grounds for such motion. The moving party shall file an original and two copies of all such motions. All motions made at the hearing shall be stated orally and included in the stenographic report of the hearing.
(b) The administrative law judge designated to conduct the hearing may in his discretion reserve his ruling upon any question or motion.
Any employer, employee, labor or trade organization or other interested person or organization desiring to intervene in any pending proceeding prior to, or at the time it is called for hearing, but not after a hearing, except for good cause shown, shall file a petition in writing for leave to intervene, which shall be served on all parties to the proceeding, with the Chief administrative law judge, Department of Labor, or with the administrative law judge designated to conduct the hearing, setting forth the position and interest of the petitioner and the grounds of the proposed intervention. The Chief administrative law judge, or the administrative law judge, as the case may be, may grant leave to intervene to such extent and upon such terms as he shall deem just.
(a) Witnesses shall be examined orally under oath except that for good and exceptional cause the administrative law judge may permit their testimony to be taken by deposition under oath.
(b) The administrative law judge shall upon application by any party, and upon a showing of general relevance and reasonable scope of the evidence sought, issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence under oath, including books, records, correspondence, or documents. Applications for the issuance of subpoenas duces tecum shall specify the books, records, correspondence or other documents sought.
(c) Witnesses summoned before the administrative law judge shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear, and the person taking the depositions shall be paid by the party at whose instance the depositions are taken.
(a) At any time prior to the hearing the administrative law judge may, on motion of the parties or on his own motion, whenever it appears that the public interest will be served thereby, direct the parties to appear before him for a conference at a designated time and place to consider, among other things:
(1) Simplification of the issues;
(2) The necessity or desirability of amending the pleadings for purposes of clarification, amplification or limitation;
(3) Obtaining stipulations of fact or admissions of undisputed facts or the authenticity of documents;
(4) The procedure at the hearing;
(5) Limiting the number of witnesses;
(6) The propriety of mutual exchange among parties of prepared testimony or exhibits; or
(7) Any other matters which would tend to expedite the disposition of the proceeding.
(b) The action taken at the conference may be recorded, in summary form or otherwise, for use at the hearing. Such record, when agreed to by the parties and approved by the administrative law judge, shall be conclusive as to the action embodied therein. Stipulations and admissions of fact and amendments to pleadings shall be made a part of the record of the proceeding.
(a) The hearing for the purpose of taking evidence upon a formal complaint shall be conducted by an administrative law judge. Administrative law judges shall, so far as practicable, be assigned to cases in rotation. In case of the death, illness, disqualification or unavailability of the administrative law judge presiding in any proceeding, another administrative law judge may be designated to take his place. Such hearings shall be open to the public unless otherwise ordered by the administrative law judge.
(b) The administrative law judges shall perform no duties inconsistent with their duties and responsibilities as administrative law judges. Save to the extent required for the disposition of ex parte matters as authorized by law, no administrative law judge shall consult any person or party as to any fact in issue unless upon notice and opportunity for all parties to participate.
(c) Administrative law judges shall act independently in the performance of their functions as administrative law judge and shall not be responsible to, or subject to the supervision or direction of, any officer, employee or agent engaged in the performance of investigative or prosecuting functions for the Department of Labor in the enforcement of the Public Contracts Act.
(d) At all hearings it shall be the right of counsel for the Government to open and close, subject to the right of the administrative law judge to designate, upon cause shown, who shall open and close.
(e) It shall be the duty of the administrative law judge to inquire fully into the facts as to whether the respondent has breached or violated any of the provisions of the Walsh-Healey Public Contracts Act of June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35-45), or any rules or regulations prescribed thereunder, as set forth in the formal complaint. Counsel for the Government, and the administrative law judge, shall have the power to call, examine, and cross-examine witnesses and to introduce into the record documentary or other evidence.
(f) Any party to the proceeding shall have the right to appear at such hearing in person, by counsel, or otherwise, to call, examine, and cross-examine witnesses, and to introduce into the record documentary or other evidence.
(g) In any such proceedings, the rules of evidence prevailing in courts of law or equity shall not be controlling. However, it shall be the policy to exclude irrelevant, immaterial, or unduly repetitious evidence.
(h) In any such proceedings, in the discretion of the administrative law judge, stipulations of fact may be made with respect to any issue.
(i) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, shall be stated orally, together with a short statement of the grounds for such objection, and included in the stenographic report of the hearing. No such objection shall be deemed waived by further participation in the proceeding.
(j) Unless the administrative law judge otherwise directs, any party to the proceeding shall be entitled to a reasonable period at the close of the hearing for oral argument, which shall not be included in the stenographic report of the hearing unless the administrative law judge directs.
(k) In the discretion of the administrative law judge, the hearing may be continued from day to day, or adjourned to a later date, or to a different place, by announcement thereof at the hearing by the administrative law judge, or by other appropriate notice.
(l) Contemptuous conduct at any hearing before an administrative law judge shall be ground for exclusion from the hearing. The failure or refusal of a witness to appear at any such hearing or to answer any question which has been ruled to be proper shall be ground for the action provided in section 5 of the Walsh-Healey Public Contracts Act of June 30, 1936 (sec. 5, 49 Stat. 2039; 41 U.S.C. 39), and in the discretion of the administrative law judge may be ground for the striking out of all testimony which may have been previously given by such witness on related matters.
(a) Any interested person or organization shall be entitled to file with the administrative law judge, Department of Labor, Washington, D.C., briefs, proposed findings of fact or conclusions of law, or other written statements, within the time allowed by the administrative law judge.
(b) Any brief or written statement shall be stated in concise terms.
(c) Three copies of all such documents shall be filed.
(d) Briefs or written statements of more than twenty pages shall be properly indexed.
(a) Following the hearing and upon completion of the record, the administrative law judge shall issue an order and decision embodying his findings of fact and conclusions of law on all issues as to whether respondent has violated the representations and stipulations of the act and the amount of damages due therefor, which shall become final, unless a petition for review is filed under § 50-203.11, before the expiration of the time provided for the filing of such petition. The decision of the administrative law judge shall be inoperative unless and until it becomes final. If the respondent is found to have violated the act, the administrative law judge in his decision shall make recommendations to the Administrative Review Board as to whether respondent should be relieved from the application of the ineligible list provisions of section 3 of the Walsh-Healey Public Contracts Act of June 30, 1936 (sec. 3, 49 Stat. 2037; 41 U.S.C. 37).
(b) The decision of the administrative law judge shall be made part of the record, and a copy thereof shall be served upon the respondent or respondents by mailing a copy thereof by registered mail to the respondent or respondents or to the attorney or attorneys of record. Upon request from employees or other interested persons, the decision will be served upon such persons, and in the discretion of the administrative law judge, the decision will be served upon such other persons or their attorneys who appeared at the hearing or upon brief by mailing a copy thereof to such persons.
(a) Within twenty (20) days after service of the decision of the administrative law judge any interested party to the proceeding may file with the Chief administrative law judge an original and four copies of a petition for review of the decision. The petition shall set out separately and particularly each error assigned. The request for review and the record will then be certified to the Administrative Review Board.
(b) The petitioner may file a brief (original and four copies) in support of his petition within the period allowed for the filing of the petition. Any interested person upon whom the decision has been served may file within ten (10) days after the expiration of the period within which the petition is required to be filed a brief in support of or in opposition to the administrative law judge's decision.
(c) The petition and the briefs filed under this section shall make specific reference to the pages of the transcript or of the exhibits which are relevant to the errors asserted with respect to findings of fact, and objections to such findings which are not so supported will not be considered.
(d) No matter properly subject to objection before the administrative law judge will be considered by the Administrative Review Board unless it shall have been raised before the administrative law judge or unless there were reasonable grounds for failure so to do; nor will any matter be considered by the Administrative Review Board unless included in the assignment or errors. In the discretion of the Administrative Review Board, review may be denied if the petition and brief in support thereof fail to show adequate cause for such review.
(e) The order denying review, or the decision of the Administrative Review Board, whichever is entered, will be made a part of the record, and a copy of such order or decision will be served upon the parties who were served with a copy of the administrative law judge's decision.
(f) If the respondent is found to have violated the Act, the Administrative Review Board shall determine whether respondent shall be relieved from the application of the ineligible list provisions of section 3 of the Walsh-Healey Public Contracts Act (sec. 4, 49 Stat. 2039; 41 U.S.C. 37).
The amendments to subpart A shall become effective upon publication in the
(a) Request for the exception or exemption of a contract or class of contracts from the inclusion or application of one or more of those stipulations required by § 50-201.1 of this chapter must be made by the head of a contracting agency or department and shall be accompanied with a finding by him setting forth reasons why such inclusion or application will seriously impair the conduct of Government business.
(b) Request for the exception or exemption of a stipulation respecting minimum rates of pay and maximum hours of labor contained in an existing contract must be made jointly by the head of a contracting agency and the contractor and shall be accompanied with a joint finding by them setting forth reasons why such exception or exemption is desired.
(c) All requests for exceptions or exemptions which relate solely to safety and health standards shall be transmitted directly to the Bureau of Labor Standards, WSA, Department of Labor. All other requests for exceptions or exemptions shall be transmitted to the Office of Government Contracts Wage Standards, WSA, of the Department of Labor.
Decisions concerning exceptions and exemptions shall be in writing and approved by the Secretary of Labor or officer prescribed by him, originals being filed in the Department of Labor, and certified copies shall be transferred to the department or agency originating the request and to the Comptroller General. All such decisions shall be promulgated to all contracting agencies by the Office of Government Contracts Wage Standards, WSA of the Department of Labor.
Wage determination proceedings may be initiated by the Secretary of Labor with respect to any industry. The proceedings may be initiated by the Secretary of Labor upon his own motion or upon the request of any party showing a proper interest in the industry.
The Secretary of Labor may, within his discretion, invite representatives of employers and employees in an industry to meet as an informal panel group to discuss with representatives of the Department of Labor the various questions relating to the issuance of a wage determination for the industry.
(a) Hearings held for the purpose of receiving evidence with regard to prevailing minimum wages in the various industries shall be conducted by an administrative law judge.
(b) Due notice of hearing shall be published in the
(c) The hearing shall be stenographically reported and a transcript made which will be available to any person at prescribed rates upon request addressed to the Secretary, United States Department of Labor, Washington, DC 20210.
(d) At the discretion of the administrative law judge, the hearing may be continued from day to day or adjourned to a later date, or to a different place by announcement thereof at the hearing or by other appropriate notice.
(a) Witnesses appearing at the hearing need not be sworn. The administrative law judge may, however, within his discretion, require that witnesses take an oath or affirmation as to testimony submitted.
(b) Written statements may be filed any time prior to the date of the hearing by persons who cannot appear personally.
(c) Written documents and exhibits shall be tendered in quadruplicate. When evidence is embraced in a document containing matter not intended to be put in evidence, within the discretion of the administrative law judge, such a document will not be received but the person offering the same may present to the administrative law judge the original document together with two copies of those portions of the document intended to be put in evidence.
(d) At any stage of the hearing, the administrative law judge may call for further evidence upon any matter. After the hearing has been closed, no further evidence shall be taken, except at the request of the Administrative Review Board, unless provision has been made at the hearing for the later receipt of such evidence. In the event that the Administrative Review Board shall cause the hearing to be reopened for the purpose of receiving further evidence, due and reasonable notice of the time and place fixed for such taking of testimony shall be given to all persons who have appeared at the hearing or filed a notice of intention to appear at the hearing.
(e) The rules of evidence prevailing in courts of law or equity shall not be controlling. However, it shall be the policy to exclude irrelevant, immaterial, or unduly repetitious evidence.
(a) Subpoenas requiring the attendance of witnesses or the presentation of a document from any place in the United States at any designated place of hearing shall be issued by the administrative law judge upon request and upon a timely showing, in writing, of the general relevance and reasonable scope of the evidence sought. Any person appearing in the proceeding may apply for the issuance of a subpoena. Such application shall identify exactly the witness or document and state fully the nature of the evidence proposed to be secured.
(b) Witnesses summoned by the Secretary shall be paid the same fees and mileage as are paid witnesses in the courts of the United States. Witness fees and mileage shall be paid by the party at whose instance witnesses appear, and the Secretary before issuing a subpoena may require a deposit of an amount adequate to cover the fees and mileage involved.
The administrative law judge shall, consistent with orderly procedure, permit any person appearing at the hearing to conduct such examination or cross-examination of any witness as may be required for a full and true disclosure of the facts, and to object to the admission or exclusion of evidence. Objections to the admission or exclusion of evidence shall be stated briefly with the reasons relied on. Such objections shall become a part of the record, but the record shall not include argument thereon except as ordered by the administrative law judge.
(a) Within 30 days after the close of the hearing, each interested person at the hearing may file with the administrative law judge an original and four copies of a statement containing proposed findings of fact and conclusions of law, together with reasons for such proposals. The administrative law judge shall, immediately following the termination of the thirty-day period provided for the filing of proposed findings and conclusions, certify the complete record to the Administrative Review Board.
(b) Upon the basis, and after consideration, of the whole record, the Administrative Review Board may issue a tentative decision. The tentative decision shall become part of the record, and shall include: (1) A statement of findings and conclusions, with the reasons and bases therefor, upon all material issues of fact, law, or discretion presented on the record, and (2) any proposed wage determination. Any tentative decision shall be published in the
(c) Within twenty-one days following the publication of any tentative decision in the
(d) Thereafter, the Administrative Review Board may issue a decision ruling upon each exception filed and including any appropriate wage determination. Any such decision shall be published in the
Any minimum wage determination issued as a result of hearings held under this subpart shall take effect not less than 30 days after due notice is given of the issuance thereof by publication in the
(a) The Walsh-Healey Public Contracts Act requires that contracts entered into by any agency of the United States for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000 must contain, among other provisions, a stipulation that “no part of such contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance with this subsection.” (sec. 1(e)), 49 Stat. 2036, 41 U.S.C. 35(e)). This part 50-204 expresses the Secretary of Labor's interpretation and application of this provision with regard to certain particular working conditions. In addition, §§ 50-204.27, 50-204.30, 50-204.31, 50-204.32, 50-204.33, and 50-204.36 contain requirements concerning the instruction of personnel, notification of incidents, reports of exposures, and maintenance and disclosure of records.
(b)(1) Every investigator conducting investigations and every officer of the Department of Labor determining whether there are or have been violations of the safety and health requirements of the Walsh-Healey Public Contracts Act and of any contract subject thereto; and whether a settlement of the resulting issues should be made without resort to administrative or court litigation, shall treat a failure to comply with, or violation of, any of the safety and health measures contained in this part 50-204 as resulting in working conditions which are “unsanitary or hazardous or dangerous to the health and safety of employees” within the meaning of section 1(e) of the Act and the contract stipulation it requires. Evidence of compliance with the safety, sanitary, and factory inspection laws of a State in which the work, or part thereof, is performed will be considered prima facie evidence of compliance with the safety and health requirements of the Act and of any contract subject thereto, and it shall be sufficient unless rebutted or overcome by a preponderance of evidence of a failure to comply with any applicable safety and health rules contained in this part.
(2) Every investigator shall have technical competence in safety, industrial hygiene, or both as may be appropriate, in the matters under investigation.
(c) [Reserved]
(d) The standards expressed in this part 50-204 are for application to ordinary employment situations; compliance with them shall not relieve anyone from the obligation to provide protection for the health and safety of his employees in unusual employment situations. Neither do such standards purport to describe all of the working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees. Where such other working conditions may be found to be unsanitary or hazardous or dangerous to the health and safety of employees, professionally accepted safety and health practices will be used.
(e) Compliance with the standards expressed in this part 50-204 is not intended, and shall not be deemed to relieve anyone from any other obligation he may have to protect the health and safety of his employees, arising from sources other than the Walsh-Healey Public Contracts Act, such as State, local law or collective bargaining agreement.
(a) Variances from standards in this part may be granted in the same circumstances in which variances may be granted under sections 6(b)(6)(A) or 6(d) of the Williams-Steiger Occupational Safety and Health Act of 1970 (29 U.S.C. 655). The procedures for the granting of variances and for related relief under this part are those published in part 1905 of title 29, Code of Federal Regulations.
(b) Any requests for variances shall also be considered requests for variances under the Williams-Steiger Occupational Safety and Health Act of 1970, and any variance from a standard which is contained in this part and which is incorporated in part 1910 of title 29, Code of Federal Regulations, shall be deemed a variance from the standard under both the Walsh-Healey Public Contracts Act and the Williams-Steiger Occupational Safety and Health Act of 1970. In accordance with the requirements of § 1954.3(d)(1)(i) of title 29, Code of Federal Regulations, variance actions taken under State provisions under a State occupational safety and health plan approved under section 18 of the Occupational Safety and Health Act of 1970 with regard to State standards found to be at least as effective as the comparable Federal standards contained in this part and incorporated in part 1910 of title 29, Code of Federal Regulations, shall be deemed a variance action from the standard under both the Walsh-Healey Public Contracts Act and the Occupational Safety and Health Act of 1970.
(a) Every contractor shall protect the safety and health of his employees by complying with the standards described in the subparagraphs of this paragraph whenever a standard deals with an occupational safety or health subject or issue involved in the performance of the contract.
(1) U.S. Department of Labor—Title 29 CFR—
(2) U.S. Department of Interior, Bureau of Mines.
(i) In Chapter I of Title 30, Code of Federal Regulations, the standards requiring safe and healthful working conditions or surroundings in:
(ii) In Chapter II of Title 30 the standards requiring safe and healthful working conditions or surroundings in:
(3) U.S. Department of Transportation: 49 CFR parts 171-179 and 14 CFR part 103 Hazardous material regulation—Transportation of compressed gases.
(4) U.S. Department of Agriculture Respiratory Devices for Protection against Certain Pesticides—ARS-33-76-2.
(b) Information concerning the applicability of the standards prescribed in paragraph (a) of this section may be obtained from the following offices:
(1) Office of the Bureau of Labor Standards, U.S. Department of Labor, Railway Labor Building, Washington, DC 20210.
(2) The regional and field offices of the Bureau of Labor Standards which are listed in the U.S. Government Organization Manual, 1970-71 edition at p. 324.
(c) In applying the safety and health standards referred to in paragraph (a) of this section the Secretary may add to, strengthen or otherwise modify any standards whenever he considers that the standards do not adequately protect the safety and health of employees as required by the Walsh-Healey Public Contracts Act.
(a) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repair, with no obstruction across or in aisles that could create a hazard. Permanent aisles and passageways shall be appropriately marked.
(b) Storage of material shall not create a hazard. Bags, containers, bundles, etc. stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.
(c) Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be exercised when necessary.
(d) Proper drainage shall be provided.
(e) Clearance signs to warn of clearance limits shall be provided.
(f) Derail and/or bumper blocks shall be provided on spur railroad tracks where a rolling car could contact other cars being worked, enter a building, work or traffic area.
(g) Covers and/or guard rails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.
Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.
(a) One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, in going nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—Barrier guards, two hand tripping devices, electronic safety devices, etc.
(b) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.
(c) Point of Operation Guarding.
(1) Point of operation is the area on a machine where work is actually performed upon the material being processed.
(2) Where existing standards prepared by organizations listed in § 50-204.2 provide for point of operation guarding such standards shall prevail. Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded. The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
(3) Special hand tools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone. Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided.
(4) The following are some of the machines which usually require point of operation guarding:
(d) Revolving drums, barrels and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum or container cannot revolve unless the guard enclosure is in place.
(e) When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one half (
(f) Machines designed for a fixed location shall be securely anchored to prevent walking or moving.
(a) The employer shall ensure the ready availability of medical personnel for advice and consultation on matters of plant health.
(b) In the absence of an infirmary, clinic or hospital in near proximity to the work place which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.
(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in function of any part of the body through absorption, inhalation or physical contact. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance and sanitation of such equipment. All personal protective equipment shall be of safe design and construction for the work to be performed.
Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.
(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table I of this section when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:
(b) When employees are subject to sound exceeding those listed in Table I of this section, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of the table, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.
(c) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.
(d) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.
Table I
| Duration per day, hours | Sound level dBA slow response |
|---|---|
| 8 | 90 |
| 6 | 92 |
| 4 | 95 |
| 3 | 97 |
| 2 | 100 |
| 1
| 102 |
| 1 | 105 |
|
| 110 |
|
| 115 |
1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1 + C2/T2 * * * Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.
As used in this subpart:
(a) Radiation includes alpha rays, beta rays, gamma rays, X-rays, neutrons, high-speed electrons, high-speed protons, and other atomic particles; but such term does not include sound or radio waves, or visible light, or infrared or ultraviolet light.
(b) Radioactive material means any material which emits, by spontaneous nuclear disintegration, corpuscular or electromagnetic emanations.
(c) Restricted area means any area access to which is controlled by the employer for purposes of protection of individuals from exposure to radiation or radioactive materials.
(d) Unrestricted area means any area access to which is not controlled by the employer for purposes of protection of individuals from exposure to radiation or radioactive materials.
(e) Dose means the quantity of ionizing radiation absorbed, per unit of mass, by the body or by any portion of the body. When the provisions in this subpart specify a dose during a period of time, the dose is the total quantity of radiation absorbed, per unit of mass, by the body or by any portion of the body during such period of time. Several different units of dose are in current use. Definitions of units used in this subpart are set forth in paragraphs (f) and (g) of this section.
(f) Rad means a measure of the dose of any ionizing radiation to body tissues in terms of the energy absorbed per unit of mass of the tissue. One rad is the dose corresponding to the absorption of 100 ergs per gram of tissue (1 millirad (mrad) = 0.001 rad).
(g) Rem means a measure of the dose of any ionizing radiation to body tissue in terms of its estimated biological effect relative to a dose of 1 roentgen (r) of X-rays (1 millirem (mrem) = 0.001 rem). The relation of the rem to other dose units depends upon the biological effect under consideration and upon the conditions for irradiation. Each of the following is considered to be equivalent to a dose of 1 rem:
(1) A dose of 1 rad due to X- or gamma radiation;
(2) A dose of 1 rad due to X-, gamma, or beta radiation;
(3) A dose of 0.1 rad due to neutrons or high energy protons;
(4) A dose of 0.05 rad due to particles heavier than protons and with sufficient energy to reach the lens of the eye;
(5) If it is more convenient to measure the neutron flux, or equivalent, than to determine the neutron dose in rads, as provided in paragraph (g)(3) of this section, 1 rem of neutron radiation may, for purposes of the provisions in this subpart be assumed to be equivalent to 14 million neutrons per square centimeter incident upon the body; or, if there is sufficient information to estimate with reasonable accuracy the approximate distribution in energy of the neutrons, the incident number of neutrons per square centimeter equivalent to 1 rem may be estimated from the following table:
Neutron Flux Dose Equivalents
| Neutron energy (million electron volts [Mev]) | Number of neutrons per square centimeter equivalent to a dose of 1 rem (neutrons/cm 2 ) | Average flux to deliver 100 millirem in 40 hours (neutrons/cm 2 per sec.) |
|---|---|---|
| Thermal | 970 × 10 6 | 670 |
| 0.0001 | 720 × 10 6 | 500 |
| 0.005 | 820 × 10 6 | 570 |
| 0.02 | 400 × 10 6 | 280 |
| 0.1 | 120 × 10 6 | 80 |
| 0.5 | 43 × 10 6 | 30 |
| 1.0 | 26 × 10 6 | 18 |
| 2.5 | 29 × 10 6 | 20 |
| 5.0 | 26 × 10 6 | 18 |
| 7.5 | 24 × 10 6 | 17 |
| 10 | 24 × 10 6 | 17 |
| 10 to 30 | 14 × 10 6 | 10 |
(h) For determining exposures to X-or gamma rays up to 3 Mev., the dose limits specified in this part may be assumed to be equivalent to the “air dose”. For the purpose of this subpart “air dose” means that the dose is measured by a properly calibrated appropriate instrument in air at or near the body surface in the region of the highest dosage rate.
(a) Except as provided in paragraph (b) of this section, no employer shall possess, use, or transfer sources of ionizing radiation in such a manner as to cause any individual in a restricted area to receive in any period of one calendar quarter from sources in the employer's possession or control a dose in excess of the limits specified in the following table:
| Rems per calendar quarter | |
|---|---|
| 1. Whole body: Head and trunk; active blood-forming organs; lens of eyes; or gonads | 1
|
| 2. Hands and forearms; feet and ankles | 18
|
| 3. Skin of whole body | 7
|
(b) An employer may permit an individual in a restricted area to receive doses to the whole body greater than those permitted under paragraph (a) of this section, so long as:
(1) During any calendar quarter the dose to the whole body shall not exceed 3 rems; and
(2) The dose to the whole body, when added to the accumulated occupational dose to the whole body, shall not exceed 5 (N-18) rems, where “N” equals the individual's age in years at his last birthday; and
(3) The employer maintains adequate past and current exposure records which show that the addition of such a dose will not cause the individual to exceed the amount authorized in this paragraph. As used in this paragraph “Dose to the whole body” shall be deemed to include any dose to the whole body, gonad, active bloodforming organs, head and trunk, or lens of the eye.
(c) No employer shall permit any employee who is under 18 years of age to receive in any period of one calendar quarter a dose in excess of 10 percent of the limits specified in the table in paragraph (a) of this section.
(d) Calendar quarter means any 3-month period determined as follows:
(1) The first period of any year may begin on any date in January: Provided, That the second, third, and fourth periods accordingly begin on the same date in April, July, and October, respectively, and that the fourth period extends into January of the succeeding year, if necessary to complete a 3-month quarter. During the first year of use of this method of determination, the first period for that year shall also include any additional days in January preceding the starting date for the first period; or
(2) The first period in a calendar year of 13 complete, consecutive calendar weeks; the second period in a calendar year of 13 complete, consecutive calendar weeks; the third period in a calendar year of 13 complete, consecutive calendar weeks; the fourth period in a calendar year of 13 complete, consecutive calendar weeks. If at the end of a calendar year there are any days not falling within a complete calendar week of that year, such days shall be included within the last complete calendar week of that year. If at the beginning of any calendar year there are days not falling within a complete calendar week of that year, such days shall be included within the last complete calendar week of the previous year; or
(3) The four periods in a calendar year may consist of the first 14 complete, consecutive calendar weeks; the next 12 complete, consecutive calendar weeks, the next 14 complete, consecutive calendar weeks, and the last 12 complete, consecutive calendar weeks. If at the end of a calendar year there are any days not falling within a complete calendar week of that year, such days shall be included (for purposes of this part) within the last complete calendar week of the year. If at the beginning of any calendar year there are days not falling within a complete calendar week of that year, such days shall be included (for purposes of this part) within the last complete week of the previous year.
(e) No employer shall change the method used by him to determine calendar quarters except at the beginning of a calendar year.
(a) No employer shall possess, use or transport radioactive material in such a manner as to cause any employee, within a restricted area, to be exposed to airborne radioactive material in an average concentration in excess of the limits specified in Table I of appendix B to 10 CFR part 20. The limits given in Table I are for exposure to the concentrations specified for 40 hours in any workweek of 7 consecutive days. In any such period where the number of hours of exposure is less than 40, the limits specified in the table may be increased proportionately. In any such period where the number of hours of exposure is greater than 40, the limits specified in the table shall be decreased proportionately.
(b) No employer shall possess, use, or transfer radioactive material in such a manner as to cause any individual within a restricted area, who is under 18 years of age to be exposed to airborne radioactive material in an average concentration in excess of the limits specified in Table II of Appendix B to 10 CFR part 20. For purposes of this paragraph, concentrations may be averaged over periods not greater than 1 week.
(c) Exposed as used in this section means that the individual is present in an airborne concentration. No allowance shall be made for the use of protective clothing or equipment, or particle size, except as authorized by the Director, Bureau of Labor Standards.
(a) Every employer shall make such surveys as may be necessary for him to comply with the provisions in this subpart. “Survey” means an evaluation of the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions. When appropriate, such evaluation includes a physical survey of the location of materials and equipment, and measurements of levels of radiation or concentrations of radioactive material present.
(b) Every employer shall supply appropriate personnel monitoring equipment, such as film badges, pocket chambers, pocket dosimeters, or film rings, to, and shall require the use of such equipment by:
(1) Each employee who enters a restricted area under such circumstances that he receives, or is likely to receive, a dose in any calendar quarter in excess of 25 percent of the applicable value specified in paragraph (a) of § 50-204.21; and
(2) Each employee under 18 years of age who enters a restricted area under such circumstances that he receives, or is likely to receive, a dose in any calendar quarter in excess of 5 percent of the applicable value specified in paragraph (a) of § 50-204.21; and
(3) Each employee who enters a high radiation area.
(c) As used in this subpart:
(1) “Personnel monitoring equipment” means devices designed to be worn or carried by an individual for the purpose of measuring the dose received (e.g., film badges, pocket chambers, pocket dosimeters, film rings, etc.);
(2) “Radiation area” means any area, accessible to personnel, in which there exists radiation at such levels that a major portion of the body could receive in any one hour a dose in excess of 5 millirem, or in any 5 consecutive days a dose in excess of 100 millirem; and
(3) “High radiation area” means any area, accessible to personnel, in which there exists radiation at such levels that a major portion of the body could receive in any one hour a dose in excess of 100 millirem.
(a) General. (1) Symbols prescribed by this section shall use the conventional radiation caution colors (magenta or purple on yellow background). The symbol prescribed by this section is the conventional three-bladed design:
1. Cross-hatched area is to be magenta or purple.
2. Background is to be yellow.
(2) In addition to the contents of signs and labels prescribed in this section, employers may provide on or near such signs and labels any additional information which may be appropriate in aiding individuals to minimize exposure to radiation or to radioactive material.
(b) Radiation areas. Each radiation area shall be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words:
(c) High radiation area. (1) Each high radiation area shall be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words:
(2) Each high radiation area shall be equipped with a control device which shall either cause the level of radiation to be reduced below that at which an individual might receive a dose of 100 millirems in 1 hour upon entry into the area or shall energize a conspicuous visible or audible alarm signal in such a manner that the individual entering and the employer or a supervisor of the activity are made aware of the entry. In the case of a high radiation area established for a period of 30 days or less, such control device is not required.
(d) Airborne radioactivity area. (1) As used in the provisions of this subpart, “airborne radioactivity area” means (i) any room, enclosure, or operating area in which airborne radioactive materials, composed wholly or partly of radioactive material, exist in concentrations in excess of the amounts specified in column 1 of Table 1 of appendix B to 10 CFR part 20 or (ii) any room, enclosure, or operating area in which airborne radioactive materials exist in concentrations which, averaged over the number of hours in any week during which individuals are in the area, exceed 25 percent of the amounts specified in column 1 of the described Table 1.
(2) Each airborne radioactivity area shall be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words:
(e) Additional requirements. (1) Each area or room in which radioactive material is used or stored and which contains any radioactive material (other than natural uranium or thorium) in any amount exceeding 10 times the quantity of such material specified in appendix C to 10 CFR part 20 shall be conspiciously posted with a sign or signs bearing the radiation caution symbol and the words:
(2) Each area or room in which natural uranium or thorium is used or stored in an amount exceeding 100 times the quantity specified in appendix C to 10 CFR part 20 shall be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words:
(f) Containers. (1) Each container in which is transported, stored, or used a quantity of any radioactive material (other than natural uranium or thorium) greater than the quantity of such material specified in appendix C to 10 CFR part 20 shall bear a durable, clearly visible label bearing the radiation caution symbol and the words:
(2) Each container in which natural uranium or thorium is transported, stored, or used in a quantity greater than 10 times the quantity specified in appendix C to 10 CFR part 20 shall bear a durable, clearly visible label bearing the radiation caution symbol and the words:
(3) Notwithstanding the provisions of paragraphs (f) (1) and (2) of this section a label shall not be required:
(i) If the concentration of the material in the container does not exceed that specified in column 2 of the described Table 1, or
(ii) For laboratory containers, such as beakers, flasks, and tests tubes, used transiently in laboratory procedures, when the user is present.
(4) Where containers are used for storage, the labels required in this paragraph shall state also the quantities and kinds of radioactive materials in the containers and the date of measurement of the quantities.
Notwithstanding the provisions of § 50-204.24:
(a) A room or area is not required to be posted with a caution sign because of the presence of a sealed source, provided the radiation level 12 inches from the surface of the source container or housing does not exceed 5 millirem per hour.
(b) Rooms or other areas in on-site medical facilities are not required to be posted with caution signs because of the presence of patients containing radioactive material, provided that there are personnel in attendance who shall take the precautions necessary to prevent the exposure of any individual to radiation or radioactive material in excess of the limits established in the provisions of this subpart.
(c) Caution signs are not required to be posted at areas or rooms containing radioactive materials for periods of less than 8 hours: Provided, That (1) the materials are constantly attended during such periods by an individual who shall take the precautions necessary to prevent the exposure of any individual to radiation or radioactive materials in excess of the limits established in the provisions of this subpart; and (2) such area or room is subject to the employer's control.
Radioactive materials packaged and labeled in accordance with regulations of the Department of Transportation shall be exempt from the labeling and posting requirements during shipment, provided that the inside containers are labeled in accordance with the provisions of § 50-204.24.
Employers regulated by the AEC shall be governed by “§ 20.206” (10 CFR part 20) standards. Employers in a State named in § 50-204.34(c) shall be governed by the requirements of the laws and regulations of that State. All other employers shall be regulated by the following:
(a) All individuals working in or frequenting any portion of a radiation area shall be informed of the occurrence of radioactive materials or of radiation in such portions of the radiation area; shall be instructed in the safety problems associated with exposure to such materials or radiation and in precautions or devices to minimize exposure; shall be instructed in the applicable provisions of this subpart for the protection of employees from exposure to radiation or radioactive materials; and shall be advised of reports of radiation exposure which employees may request pursuant to the regulations in this part.
(b) Each employer to whom this subpart applies shall post a current copy of its provisions and a copy of the operating procedures applicable to the work under contract conspicuously in such locations as to ensure that employees working in or frequenting radiation areas will observe these documents on the way to and from their place of employment, or shall keep such documents available for examination of employees upon request.
Radioactive materials stored in a nonradiation area shall be secured against unauthorized removal from the place of storage.
No employer shall dispose of radioactive material except by transfer to an authorized recipient, or in a manner approved by the Atomic Energy Commission or a State named in § 50-204.34(c).
(a) Immediate notification. Each employer shall immediately notify the Regional Director of the appropriate Wage and Labor Standards Administration, Office of Occupational Safety of the Bureau of Labor Standards of the U.S. Department of Labor, for employees not protected by AEC by means of 10 CFR part 20, § 50-204.34(b) of this part, or the requirements of the laws and regulations of States named in § 50-204.34(c), by telephone or telegraph of any incident involving radiation which may have caused or threatens to cause:
(1) Exposure of the whole body of any individual to 25 rems or more of radiation; exposure of the skin of the whole body of any individual to 150 rems or more of radiation; or exposure of the feet, ankles, hands, or forearms of any individual to 375 rems or more of radiation; or
(2) The release of radioactive material in concentrations which, if averaged over a period of 24 hours, would exceed 5,000 times the limit specified for such materials in Table II of appendix B to 10 CFR part 20.
(3) A loss of 1 working week or more of the operation of any facilities affected; or
(4) Damage to property in excess of $100,000.
(b) Twenty-four hour notification. Each employer shall within 24 hours following its occurrence notify the Regional Director of the appropriate Wage and Labor Standards Administration, Office of Occupational Safety of the Bureau of Labor Standards of the U.S. Department of Labor, for employees not protected by AEC by means of 10 CFR part 20, § 50-204.34(b) of this part, or the requirements of the laws and applicable regulations of States named in § 50-204.34(c), by telephone or telegraph of any incident involving radiation which may have caused or threatens to cause:
(1) Exposure of the whole body of any individual to 5 rems or more of radiation; exposure of the skin of the whole body of any individual to 30 rems or more of radiation; or exposure of the feet, ankles, hands, or forearms to 75 rems or more of radiation; or
(2) A loss of 1 day or more of the operation of any facilities; or
(3) Damage to property in excess of $10,000.
(a) In addition to any notification required by § 50-204.30 each employer shall make a report in writing within 30 days to the Regional Director of the appropriate Wage and Labor Standards Administration, Office of Occupational Safety of the Bureau of Labor Standards of the U.S. Department of Labor, for employees not protected by AEC by means of 10 CFR part 20, or under § 50-204.34(b) of this part, or the requirements of the laws and regulations of States named in § 50-204.34(c), of each exposure of an individual to radiation or concentrations of radioactive material in excess of any applicable limit in this subpart. Each report required under this paragraph shall describe the extent of exposure of persons to radiation or to radioactive material; levels of radiation and concentrations of radioactive material involved, the cause of the exposure, levels of concentrations; and corrective steps taken or planned to assure against a recurrence.
(b) In any case where an employer is required pursuant to the provisions of this section to report to the U.S. Department of Labor any exposure of an individual to radiation or to concentrations of radioactive material, the employer shall also notify such individual of the nature and extent of exposure. Such notice shall be in writing and shall contain the following statement: “You should preserve this report for future reference.”
(a) Every employer shall maintain records of the radiation exposure of all employees for whom personnel monitoring is required under § 50-204.23 and advise each of his employees of his individual exposure on at least an annual basis.
(b) Every employer shall maintain records in the same units used in tables in § 50-204.21 and appendix B to 10 CFR part 20.
(a) At the request of a former employee an employer shall furnish to the employee a report of the employee's exposure to radiation as shown in records maintained by the employer pursuant to § 50-204.32(a). Such report shall be furnished within 30 days from the time the request is made, and shall cover each calendar quarter of the individual's employment involving exposure to radiation or such lesser period as may be requested by the employee. The report shall also include the results of any calculations and analysis of radioactive material deposited in the body of the employee. The report shall be in writing and contain the following statement: “You should preserve this report for future reference.”
(b) The former employee's request should include appropriate identifying data, such as social security number and dates and locations of employment.
(a) Any employer who possesses or uses source material, byproduct material, or special nuclear material, as defined in the Atomic Energy Act of 1954, as amended, under a license issued by the Atomic Energy Commission and in accordance with the requirements of 10 CFR part 20 shall be deemed to be in compliance with the requirements of this subpart with respect to such possession and use.
(b) AEC contractors operating AEC plants and facilities: Any employer who possesses or uses source material, byproduct material, special nuclear material, or other radiation sources under a contract with the Atomic Energy Commission for the operation of AEC plants and facilities and in accordance with the standards, procedures, and other requirements for radiation protection established by the Commission for such contract pursuant to the Atomic Energy Act of 1954 as amended (42 U.S.C. 2011 et seq.), shall be deemed to be in compliance with the requirements of this subpart with respect to such possession and use.
(c) AEC-agreement State licensees or registrants:
(1) Atomic Energy Act sources. Any employer who possesses or uses source material, byproduct material, or special nuclear material, as defined in the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.), and has either registered such sources with, or is operating under a license issued by, a State which has an agreement in effect with the Atomic Energy Commission pursuant to section 274(b) (42 U.S.C. 2021(b)) of the Atomic Energy Act of 1954, as amended, and in accordance with the requirements of that State's laws and regulations shall be deemed to be in compliance with the radiation requirements of this part, insofar as his possession and use of such material is concerned, unless the Secretary of Labor, after conference with the Atomic Energy Commission, shall determine that the State's program for control of these radiation sources is incompatible with the requirements of this part. Such agreements currently are in effect only in the States of Alabama, Arkansas, California, Kansas, Kentucky, Florida, Mississippi, New Hampshire, New York, North Carolina, Texas, Tennessee, Oregon, Idaho, Arizona, Colorado, Louisiana, Nebraska, and Washington.
(2) Other sources. Any employer who possesses or uses radiation sources other than source material, byproduct material, or special nuclear material, as defined in the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.), and has either registered such sources with, or is operating under a license issued by a State which has an agreement in effect with the Atomic Energy Commission pursuant to section 274(b) (42 U.S.C. 2021(b)) of the Atomic Energy Act of 1954, as amended, and in accordance with the requirements of that State's laws and regulations shall be deemed to be in compliance with the radiation requirements of this part, insofar as his possession and use of such material is concerned, provided the State's program for control of these radiation sources is the subject of a currently effective determination by the Secretary of Labor that such program is compatible with the requirements of this part. Such determinations currently are in effect only in the States of Alabama, Arkansas, California, Kansas, Kentucky, Florida, Mississippi, New Hampshire, New York, North Carolina, Texas, Tennessee, Oregon, Idaho, Arizona, Colorado, Louisiana, Nebraska, and Washington.
(a) In accordance with policy expressed in the Federal Radiation Council's memorandum concerning radiation protection guidance for Federal agencies (25 FR 4402), the Director, Bureau of Labor Standards may from time to time grant permission to employers to vary from the limitations contained in §§ 50-204.21 and 50-204.22 when the extent of variation is clearly specified and it is demonstrated to his satisfaction that (1) such variation is necessary to obtain a beneficial use of radiation or atomic energy, (2) such benefit is of sufficient value to warrant the variation, (3) employees will not be exposed to an undue hazard, and (4) appropriate actions will be taken to protect the health and safety of such employees.
(b) Applications for such variations should be filed with the Director, Bureau of Labor Standards, U.S. Department of Labor, Washington, DC 20210.
(a) For the purpose of this section, a “working level” is defined as any combination of radon daughters in 1 liter of air which will result in the ultimate emission of 1.3 × 10
(b)(1) Occupational exposure to radon daughters in mines shall be controlled so that no individual will receive an exposure of more than 2 working level months in any calendar quarter and no more than 4 working level months in any calendar year. Actual exposures shall be kept as far below these values as practicable.
(2) In enforcing this section, the Director of the Bureau of Labor Standards may at any stage approve variations in individual cases from the limitation set forth in paragraph (b)(1) of this section to comply with the requirements of the Act upon a showing to the satisfaction of the Director by an employer having a mine with conditions resulting in an exposure of more than 4 working level months but not more than 12 working level months in any 12 consecutive months that (i) under the particular facts and circumstances involved the working conditions of the employees so exposed are such that their health and safety are protected, and (ii) the employer has a bona fide plan to reduce the levels of exposure to those specified in paragraph (b)(1) of this section as soon as practicable, but in no event later than January 1, 1971.
(3) Whenever a variation under paragraph (b)(2) of this section is sought, a request therefor should be submitted in writing to the Director of the Bureau of Labor Standards, U.S. Department of Labor, Washington, DC 20210, within 90 days following the end of the calendar quarter or year, as the case may be.
(c)(1) For uranium mines, records of environmental concentrations in the occupied parts of the mine, and of the time spent in each area by each person involved in underground work shall be established and maintained. These records shall be in sufficient detail to permit calculations of the exposures, in units of working level months, of the individuals and shall be available for inspection by the Secretary of Labor or his authorized agents.
(2) For other than uranium mines and for surface workers in all mines, paragraph (c)(1) of this section will be applicable: Provided, however, That if no environmental sample shows a concentration greater than 0.33 working level in any occupied part of the mine, the maintenance of individual occupancy records and the calculation of individual exposures will not be required.
(d)(1) At the request of an employee (or former employee) a report of the employee's exposure to radiation as shown in records maintained by the employer pursuant to paragraph (c) of this section, shall be furnished to him. The report shall be in writing and contain the following statement:
This report is furnished to you under the provisions of the U.S. Department of Labor, Radiation Safety and Health Standards (41 CFR 50-204.36). You should preserve this report for future reference.
(2) The former employee's request should include appropriate identifying data, such as social security number and dates and locations of employment.
(a) (1) Exposures by inhalation, ingestion, skin absorption, or contact to any material or substance (i) at a concentration above those specified in the “Threshold Limit Values of Airborne Contaminants for 1968” of the American Conference of Governmental Industrial Hygienists, except for the ANSI Standards listed in Table I of this section and except for the values of mineral dusts listed in Table II of this section, and (ii) concentrations above those specified in Tables I and II of this section, shall be avoided, or protective equipment shall be provided and used.
(2) The requirements of this section do not apply to exposures to airborne asbestos dust. Exposures of employees to airborne asbestos dust shall be subject to the requirements of 29 CFR 1910.93a.
(b) To achieve compliance with paragraph (a) of this section, feasible administrative or engineering controls must first be determined and implemented in all cases. In cases where protective equipment in addition to other measures is used as the method of protecting the employee, such protection must be approved for each specific application by a competent industrial hygienist or other technically qualified source.
Table II—Mineral Dusts
| Substance | Mppcf e | Mg/M 3 |
|---|---|---|
| Silica: | ||
| Crystalline: | ||
| Quartz (respirable) | 250 f | 10mg/M 3 m |
| %SiO | %SiO | |
| Quartz (total dust) | 30mg/M 3 | |
| %SiO | ||
| Cristobalite: Use
| ||
| Tridymite: Use
| ||
| Amorphous, including natural diatomaceous earth | 20 | 80mg/M 3 |
| %SiO | ||
| Silicates (less than 1% crystalline silica): | ||
| Mica | 20 | |
| Soapstone | 20 | |
| Talc | 20 | |
| Portland cement | 50 | |
| Graphite (natural) | 15 | |
| Coat dust (respirable fraction less than 5% SiO | 2.4mg/M 3 | |
| or | ||
| For more than 5% SiO | 10mg/M 3 | |
| %SiO | ||
| Inert or Nuisance Dust: | ||
| Respirable fraction | 1 | 5mg/M 3 |
| Total dust | 505 | 15mg/M 3 |
mppcf × 35.3 = million particles per cubic meter
= particles per c.c.
eMillions of particles per cubic foot of air, based on impinger samples counted by light-field technics.
fThe percentage of crystalline silica in the formula is the amount determined from air-borne samples, except in those instances in which other methods have been shown to be applicable.
jAs determined by the membrane filter method at 430 × phase contrast magnification.
mBoth concentration and percent quartz for the application of this limit are to be determined from the fraction passing a size-selector with the following characteristics:
| Aerodynamic diameter (unit density sphere) | Percent passing selector |
|---|---|
| 2 | 90 |
| 2.5 | 75 |
| 3.5 | 50 |
| 5.0 | 25 |
| 10 | 0 |
The measurements under this note refer to the use of an AEC instrument. If the respirable fraction of coal dust is determined with a MRE the figure corresponding to that of 2.4 Mg/M 3 in the table for coal dust is 4.5 Mg/M 3
Each contractor shall determine that compressed gas cylinders under his extent that this can be determined by visual inspection. Visual and other inspections shall be conducted as prescribed in the Hazardous Materials Regulations of the Department of Transportation (49 CFR parts 171-179 and 14 CFR part 103). Where those regulations are not applicable, visual and other inspections shall be conducted in accordance with Compressed Gas Association Pamphlets C-6-198 and C-8-1962.
(a) The in-plant transfer, handling, storage, and utilization of acetylene in cylinders shall be in accordance with Compressed Gas Association Pamphlet G-1-1966.
(b) The piped systems for the in-plant transfer and distribution of acetylene shall be designed, installed, maintained, and operated in accordance with Compressed Gas Association Pamphlet G-1.3-1959.
(c) Plants for the generation of acetylene and the charging (filling) of acetylene cylinders shall be designed, constructed, and tested in accordance with the standards prescribed in Compressed Gas Association Pamphlet G-1.4-1966.
The in-plant transfer, handling, storage, and utilization of oxygen as a liquid or a compressed gas shall be in accordance with Compressed Gas Association Pamphlet G-4-1962.
The in-plant transfer, handling, storage, and utilization of hydrogen shall be in accordance with Compressed Gas Association Pamphlets G-5.1-1961 and G-5.2-1966.
The piped systems for the in-plant transfer and distribution of nitrous oxide shall be designed, installed, maintained, and operated in accordance with Compressed Gas Association Pamphlet G-8.1-1964.
The in-plant handling, storage, and utilization of all compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be in accordance with Compressed Gas Association Pamphlet P-1-1965.
Compressed gas cylinders, portable tanks, and cargo tanks shall have pressure relief devices installed and maintained in accordance with Compressed Gas Association Pamphlets S-1.1-1963 and 1965 addenda and S-1.2-1963.
Welding or cutting, or both, on containers which have held flammable or combustible solids, liquids, or gases, or have contained substances which may produce flammable vapors or gases will not be attempted until the containers have been thoroughly cleaned, purged, or inerted in strict accordance with the rules and procedures embodied in American Welding Society Pamphlet A-6.0-65, edition of 1965.
Any requirements of the U.S. Department of Transportation under 49 CFR Parts 171-179 and Parts 390-397 and 14 CFR part 103 shall be applied to transportation under contracts which are subject to the Walsh-Healey Public Contracts Act. See also § 50-204.2(a)(3) of this part. When such requirements are not otherwise applicable, Chapters 10, 11, 12, and 14 of the Uniform Vehicle Code of the National Committee on Uniform Traffic Laws and Ordinances, 1962 edition, shall be applied whenever pertinent.
The Walsh-Healey Public Contracts Act authorizes and directs the Secretary of Labor to utilize, with the consent of a State, such State and local officers and employees as he may find necessary to assist in the administration of the Act. It is the purpose of this part to prescribe the rules governing the use of such State and local officers in inspections (or investigations) relating to the enforcement of the stipulation required by the Act providing that no part of a contract subject thereto will be performed nor will any materials, supplies, articles, or equipment to be manufactured or furnished under such a contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract, and the enforcement of the safety and health standards interpreting and applying that stipulation published in part 50-204 of this chapter.
(a) Act means the Walsh-Healey Public Contracts Act.
(b) Secretary means the Secretary of Labor.
(c) State agency means any authority of a State government which is responsible for the enforcement of State laws or regulations prescribing safety and health standards for employees.
(d) Director means the Director, Bureau of Labor Standards or his duly authorized representative.
The Secretary may enter into an agreement with the head of a State agency providing for the use of State or local officers and employees in the conduct of inspections under the safety and health provisions of the Act as interpreted or applied in part 50-204 of this chapter whenever he finds that the utilization of such State or local officers is necessary to assist in the administration of those provisions. In making such a finding, consideration may be given to the State laws or regulations administered by the State agency providing safety and health standards, the central and field organization of the State agency, and the qualifications of its investigative personnel.
Each agreement under this part shall incorporate a plan of cooperation between the Department of Labor and the State agency. The plan shall include the operative details of the cooperation contemplated in the making of safety and health inspections. The plan shall include a statement of the location of the State offices designated to make inspections and those of the Department of Labor designated to cooperate with such State offices.
Inspections shall be conducted by the State agency with whom an agreement has been made under this part in order to determine the extent of compliance by Government contractors subject to the Act (as determined by the Department of Labor) with the safety and health provisions interpreted or applied in part 50-204 of this chapter. Inspectors of the State agency shall be considered authorized representatives of the Secretary of Labor in making inspections including the examining of the records of the Government contractor maintained under §§ 50-201.501 and 50-201.502 of this chapter. Inspections shall be made upon request of the Department of Labor or concurrently with inspections made to ascertain the compliance by employers with State safety and health requirements.
When a complaint of alleged safety and health violations by an employer apparently subject to the Act is filed with a State agency, that agency shall transmit a copy of the complaint to the cooperating office of the Department of Labor within 5 days from the receipt of the complaint. All complaints shall be considered confidential and shall not be disclosed to any employer without the consent of the complainant.
The Director shall provide the State agency with a manual of instructions which shall be used in the making of inspections.
The State agency shall furnish the Department of Labor with a report of its inspection when the following circumstances exist:
(a) The inspection was requested by the Department of Labor;
(b) The inspection discloses serious violations of the safety and health requirements of part 50-204 of this chapter by an employer apparently subject to the Act;
(c) The inspection discloses minor violations of the safety and health requirements of part 50-204 of this chapter by an employer apparently subject to the Act which are not corrected promptly when such apparent violations are brought to the attention of the employer or as to which fully reliable assurances of future compliance are not or cannot be obtained.
The Director may conduct such inspections as he may find appropriate to assure compliance with the safety and health provisions of the Act or whenever he may find that a safety and health inspection should be carried out along with investigation under other provisions of the Act or the Fair Labor Standards Act of 1938. Whenever an inspection by the Director discloses apparent violations of State safety and health requirements, the Director shall report such disclosures to the State agency.
Any agreement entered into this part may be modified at any time with the consent of both parties, and may be terminated by either party after notifying the other party 60 days prior thereto.
(a) In order to clarify at this time the practices and policies which will guide the administration and enforcement of the Fair Labor Standards Act of 1938 (52 Stat 1060, as amended, 29 U.S.C. 201-219), and the Walsh-Healey Public Contracts Act (49 Stat. 2036, as amended; 41 U.S.C. 35-45), as affected by the Portal-to-Portal Act of 1947 (Pub. L. 49, 80th Cong.), the following policy is announced effective June 30, 1947:
(b) The investigation, inspection and enforcement activities of all officers and agencies of the Department of Labor as they relate to the Fair Labor Standards Act (52 Stat. 1060, as amended, 29 U.S.C. 201-219) and the Walsh-Healey Public Contracts Act of June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35-45), will be carried out on the basis that all employers in all industries whose activities are subject to the provisions of the Fair Labor Standards Act (52 Stat. 1060, as amended; 29 U.S.C. 201-219) or the Walsh-Healey Public Contracts Act (49 Stat. 2036, as amended; 41 U.S.C. 35-45) are responsible for strict compliance with the provisions thereof and the regulations issued pursuant thereto.
(c) Any statements, orders, or instructions inconsistent herewith are rescinded.
The text of § 50-210.0 General enforcement policy is identical to that of § 775.0 under 29 CFR Chapter V.
(a) The Division of Public Contracts returns to the interpretation contained in Rulings and Interpretations No. 2
(1) Where the contractor is a dealer, the act applies to employees at the central distributing plant, including warehousemen, compounders, and chemists testing the lot out of which the Government order is filled, the crews engaged in loading the materials in vessels, tank cars or tank wagons for shipment, and truck drivers engaged in the activities described in section 37(m) above.
(a) It is the policy of the Government to increase employment and training opportunities for persons who are blind or have other severe disabilities through the purchase of commodities and services from qualified nonprofit agencies employing persons who are blind or have other severe disabilities. The Committee for Purchase from People who are Blind or Severely Disabled (hereinafter the Committee) was established by the Javits-Wagner—O'Day Act, Public Law 92-28, 85 Stat. 77 (1971), as amended, 41 U.S.C. 46-48c (hereinafter the JWOD Act). The Committee is responsible for implementation of a comprehensive program designed to enforce this policy.
(b) It is the policy of the Committee to encourage all Federal entities and employees to provide the necessary support to ensure that the JWOD Act is implemented in an effective manner. This support includes purchase of products and services published on the Committee's Procurement List through appropriate channels from nonprofit agencies employing persons who are blind or have other severe disabilities designated by the Committee; recommendations to the Committee of new commodities and services suitable for addition to the Procurement List; and cooperation with the Committee and the central nonprofit agencies in the provision of such data as the Committee may decide is necessary to determine suitability for addition to the Procurement List.
(a) The JWOD Act mandates that commodities or services on the Procurement List required by Government entities be procured, as prescribed in this regulation, from a nonprofit agency employing persons who are blind or have other severe disabilities, at a price established by the Committee, if that commodity or service is available within the normal period required by that Government entity. Except as provided in paragraph (b) of this section, the JWOD Act has priority, under the provisions of 41 U.S.C. 48, over any other supplier of the Government's requirements for commodities and services on the Committee's Procurement List.
(b) Federal Prison Industries, Inc. has priority, under the provisions of 18 U.S.C. 4124, over nonprofit agencies employing persons who are blind or have other severe disabilities in furnishing commodities for sale to the Government. All or a portion of the Government's requirement for a commodity for which Federal Prison Industries, Inc. has exercised its priority may be added to the Procurement List. However, such addition is made with the understanding that procurement under the JWOD Act shall be limited to that portion of the Government's requirement for the commodity which is not available or not required to be procured from Federal Prison Industries, Inc.
(c) The JWOD Act requires the Committee to prescribe regulations providing that, in the purchase by the Government of commodities produced and offered for sale by qualified nonprofit agencies employing persons who are blind and nonprofit agencies employing persons who have other severe disabilities, priority shall be accorded to commodities produced and offered for sale by qualified nonprofit agencies for the blind. In approving the addition of commodities, to the Procurement List, the Committee accords priority to nonprofit agencies for the blind. Nonprofit agencies for the blind and nonprofit agencies employing persons with severe disabilities have equal priority for services.
As used in this chapter:
AbilityOne Program means the program authorized by the JWOD Act to increase employment and training opportunities for persons who are blind or have other severe disabilities through Government purchasing of commodities and services from nonprofit agencies employing these persons.
Agency and Federal agency mean Entity of the Government, as defined herein.
Blind means an individual or class of individuals whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle no greater than 20 degrees.
Central nonprofit agency means an agency organized under the laws of the United States or of any State, operated in the interest of the blind or persons with other severe disabilities, the net income of which does not incur in whole or in part to the benefit of any shareholder or other individual, and designated by the Committee to facilitate the distribution (by direct allocation, subcontract, or any other means) of orders of the Government for commodities and services on the Procurement List among nonprofit agencies employing persons who are blind or have other severe disabilities, to provide information required by the Committee to implement the JWOD Program, and to otherwise assist the Committee in administering these regulations as set forth herein by the Committee.
Committee means the Committee for Purchase from People who are Blind or Severely Disabled.
Contracting activity means any element of an entity of the Government that has responsibility for identifying and/or procuring Government requirements for commodities or services. Components of a contracting activity, such as a contracting office and an ordering office, are incorporated in this definition, which includes all offices within the definitions of “contracting activity,” “contracting office,” and “contract administration office” contained in the Federal Acquisition Regulation, 48 CFR 2.101.
Direct labor means all work required for preparation, processing, and packing of a commodity or work directly related to the performance of a service, but not supervision, administration, inspection or shipping.
Fiscal year means the 12-month period beginning on October 1 of each year.
Government and Entity of the Government mean any entity of the legislative branch or the judicial branch, any executive agency, military department, Government corporation, or independent establishment, the U.S. Postal Service, and any nonappropriated fund instrumentality under the jurisdiction of the Armed Forces.
Interested person means an individual or legal entity affected by a proposed addition of a commodity or service to the Procurement List or a deletion from it.
Military resale commodities means commodities on the Procurement List sold for the private, individual use of authorized patrons of Armed Forces commissaries and exchanges, or like activities of other Government departments and agencies.
Nonprofit agency (formerly workshop) means a nonprofit agency for the blind or a nonprofit agency employing persons with severe disabilities, as appropriate.
Other severely disabled and severely disabled individuals (hereinafter persons with severe disabilities) mean a person other than a blind person who has a severe physical or mental impairment (a residual, limiting condition resulting from an injury, disease, or congenital defect) which so limits the person's functional capabilities (mobility, communication, self-care, self-direction, work tolerance or work skills) that the individual is unable to engage in normal competitive employment over an extended period of time.
(1) Capability for normal competitive employment shall be determined from information developed by an ongoing evaluation program conducted by or for the nonprofit agency and shall include as a minimum, a preadmission evaluation and a reevaluation at least annually of each individual's capability for normal competitive employment.
(2) A person with a severe mental or physical impairment who is able to engage in normal competitive employment because the impairment has been overcome or the condition has been substantially corrected is not “other severely handicapped” within the meaning of the definition.
Participating nonprofit agency (formerly participating workshop) means any nonprofit agency which has been authorized by the Committee to furnish a commodity or service to the Government under the JWOD Act.
Procurement List means a list of commodities (including military resale commodities) and services which the Committee has determined to be suitable to be furnished to the Government by nonprofit agencies for the blind or nonprofit agencies employing persons with severe disabilities pursuant to the JWOD Act and these regulations.
Qualified nonprofit agency for other severely handicapped (hereinafter nonprofit agency employing persons with severe disabilities) (formerly workshop for other severely handicapped) means an agency organized under the laws of the United States or any State, operated in the interests of persons with severe disabilities who are not blind, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual; which complies with applicable occupational health and safety standards prescribed by the Secretary of Labor; and which in furnishing commodities and services (whether or not the commodities or services are procured under these regulations) during the fiscal year employs persons with severe disabilities (including blind) for not less than 75 percent of the work-hours of direct labor required to furnish such commodities or services.
Qualified nonprofit agency for the blind (hereinafter nonprofit agency for the blind) (formerly workshop for the blind) means an agency organized under the laws of the United States or of any State, operated in the interest of blind individuals, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual; which complies with applicable occupational health and safety standards prescribed by the Secretary of Labor; and which in furnishing commodities and services (whether or not the commodities or services are procured under these regulations) during the fiscal year employs blind individuals for not less than 75 percent of the work-hours of direct labor required to furnish such commodities or services.
Severely disabled individual; Severe disability; Significantly disabled individual; Significant disability; are interchangeable or synonymous terms used within the AbilityOne Program to describe persons with severe disabilities who qualify to participate in the AbilityOne Program.
State means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any territory remaining under the jurisdiction of the Trust Territory of the Pacific Islands.
Under the JWOD Act, the Committee is composed of 15 members appointed by the President. There is one representative from each of the following departments or agencies of the Government: The Department of Agriculture, the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the Department of Education, the Department of Commerce, the Department of Justice, the Department of Labor, the Department of Veterans Affairs, and the General Services Administration. Four members are private citizens: One who is conversant with the problems incident to the employment of blind individuals; one who is conversant with the problems incident to the employment of persons with other severe disabilities; one who represents blind individuals employed in qualified nonprofit agencies for the blind; and one who represents persons with severe disabilities (other than blindness) employed in qualified nonprofit agencies employing persons with severe disabilities.
The Committee is responsible for carrying out the following functions in support of its mission of providing employment and training opportunities for persons who are blind or have other severe disabilities and, whenever possible, preparing those individuals to engage in competitive employment:
(a) Establish rules, regulations, and policies to assure effective implementation of the JWOD Act.
(b) Determine which commodities and services procured by the Federal Government are suitable to be furnished by qualified nonprofit agencies employing persons who are blind or have other severe disabilities and add those items to the Committee's Procurement List. Publish notices of addition to the Procurement List in the
(c) Determine fair market prices for items added to the Procurement List and revise those prices in accordance with changing market conditions to assure that the prices established are reflective of the market.
(d) Monitor nonprofit agency compliance with Committee regulations and procedures.
(e) Inform Federal agencies about the AbilityOne Program and the statutory mandate that items on the Procurement List be purchased from qualified nonprofit agencies, and encourage and assist entities of the Federal Government to identify additional commodities and services that can be purchased from qualified nonprofit agencies. To the extent possible, monitor Federal agencies' compliance with JWOD requirements.
(f) Designate, set appropriate ceilings on fee paid to these central nonprofit agencies by nonprofit agencies selling items under the AbilityOne Program, and provide guidance to central nonprofit agencies engaged in facilitating the distribution of Government orders and helping State and private nonprofit agencies participate in the AbilityOne Program.
(g) Conduct a continuing study and evaluation of its activities under the JWOD Act for the purpose of assuring effective and efficient administration of the JWOD Act. The Committee may study, independently, or in cooperation with other public or nonprofit private agencies, problems relating to:
(1) The employment of the blind or individuals with other severe disabilities.
(2) The development and adaptation of production methods which would enable a greater utilization of these individuals.
(h) Provide technical assistance to the central nonprofit agencies and the nonprofit agencies to contribute to the successful implementation of the JWOD Act.
(i) Assure that nonprofit agencies employing persons who are blind will have priority over nonprofit agencies employing persons with severe disabilities in furnishing commodities.
At least 30 days prior to the Committee's consideration of the addition or deletion of a commodity or service to or from the Procurement List, the Committee publishes a notice in the
(a) For a commodity or service to be suitable for addition to the Procurement List, each of the following criteria must be satisfied:
(1) Employment potential. The proposed addition must demonstrate a potential to generate employment for persons who are blind or have other severe disabilities.
(2) Nonprofit agency qualifications. The nonprofit agency (or agencies) proposing to furnish the item must qualify as a nonprofit agency serving persons who are blind or have other severe disabilities, as set forth in part 51-4 of this chapter.
(3) Capability. The nonprofit agency (or agencies) desiring to furnish a commodity or service under the JWOD Program must satisfy the Committee as to the extent of the labor operations to be performed and that it will have the capability to meet Government quality standards and delivery schedules by the time it assumes responsibility for supplying the Government.
(4) Level of impact on the current contractor for the commodity or service. (i) In deciding whether or not a proposed addition to the Procurement List is likely to have a severe adverse impact on the current contractor for the specific commodity or service, the Committee gives particular attention to:
(A) The possible impact on the contractor's total sales, including the sales of affiliated companies and parent corporations. In addition, the Committee considers the effects of previous Committee actions.
(B) Whether that contractor has been a continuous supplier to the Government of the specific commodity or service proposed for addition and is, therefore, more dependent on the income from such sales to the Government.
(ii) If there is not a current contract for the commodity or service being proposed for addition to the Procurement List, the Committee may consider the most recent contractor to furnish the item to the Government as the current contractor for the purpose of determining the level of impact.
(b) In determining the suitability of a commodity or service for addition to the Procurement List, the Committee also considers other information it deems pertinent, including comments on a proposal published in the
The Committee considers the particular facts and circumstances in each case in determining if a commodity or service is suitable for addition to the Procurement List. When the Committee determines that a proposed addition is likely to have a severe adverse impact on a current contractor, it takes this fact into consideration in deciding not to add the commodity or service to the Procurement List, or to add only a portion of the Government requirement for the item. If the Committee decides to add a commodity or service in whole or in part to the Procurement List, that decision is announced in the
(a) The Committee may reconsider its decision to add items to the Procurement List if it receives pertinent information which was not before it when it initially made the decision. Unless otherwise provided by the Committee, requests for reconsideration from interested persons must be received by the Committee within 60 days following the effective date of the addition in question. A request for reconsideration must include the specific facts believed by the interested person to justify a decision by the Committee to modify or reverse its earlier action.
(b) In reconsidering its decision, the Committee will balance the harm to the party requesting reconsideration if the item remains on the Procurement List against the harm which the nonprofit agency or its employees who are blind or have other severe disabilities would suffer if the item were deleted from the Procurement List. The Committee may also consider information bringing into question its conclusions on the suitability criteria on which it based its original decision as factors weighing toward a decision to delete the item, and information concerning possible harm to the Government and the JWOD Program as factors weighing toward confirmation of the original decision.
(a) The Committee is responsible for determining fair market prices, and changes thereto, for commodities and services on the Procurement List. The Committee is responsible for determining fair market prices, and changes thereto, for commodities and services on the Procurement List. The initial fair market price may be based on, where applicable, bilateral negotiations between contracting activities and authorized nonprofit agencies, market research, comparing the previous price paid, price competition, or any other methodology specified in Committee policies and procedures.
(b) The initial fair market price may be revised in accordance with the methodologies established by the Committee, which include, where applicable, bilateral negotiations between contracting activities and authorized nonprofit agencies assisted by central nonprofit agencies, the use of economic indices, price competition, or any other methodology permitted under the Committee's policies and procedures.
(c) After review and analysis, the central nonprofit agency shall submit to the Committee the recommended fair market price and, where a change to the fair market price is recommended, the methods by which prices shall be changed to the Committee, along with the information required by Committee pricing procedures to support each recommendation. The Committee will review the recommendations, revise the recommended prices where appropriate, and establish a fair market price, or change thereto, for each commodity or service which is the subject of a recommendation.
(a) The Committee maintains a Procurement List which includes the commodities and services which shall be procured by Government departments and agencies under the JWOD Act from the nonprofit agency(ies) designated by the Committee. Copies of the Procurement List, together with information on procurement requirements and procedures, are available to contracting activities upon request.
(b) For commodities, including military resale commodities, the Procurement List identifies the name and national stock number or item designation for each commodity, and where appropriate, any limitation on the portion of the commodity which must be procured under the JWOD Act.
(c) For services, the Procurement List identifies the type of service to be furnished, the Government department or agency responsible for procuring the service, and, where appropriate, the activity or item to be serviced.
(d) Additions to and deletions from the Procurement List are published in the
(a) Upon written request from an interested person, that person may, at the discretion of the Committee Chair, be permitted to appear before the Committee to present views orally. Generally, only those persons who have raised significant issues which, if valid, could influence the Committee's decision in the matter under consideration will be permitted to appear.
(b) When the Chair has approved the appearance before the Committee of an interested person who has made a written request:
(1) The name of the spokesperson and the names of any other persons planning to appear shall be provided to the Committee staff by telephone at least three working days before the meeting.
(2) In the absence of prior authorization by the Chair, only one person representing a particular agency or organization will be permitted to speak.
(3) Oral statements to the Committee and written material provided in conjunction with the oral statements shall be limited to issues addressed in written comments which have previously been submitted to the Committee as the result of notice of proposed rulemaking in the
(4) Written material to be provided in conjunction with the oral presentation and an outline of the presentation shall be submitted to the Committee staff at least three working days before the meeting.
(c) The Committee may also invite other interested persons to make oral presentations at Committee meetings when it determines that these persons can provide information which will assist the Committee in making a decision on a proposed addition to the Procurement List. Terms of appearance of such persons shall be determined by the Chair.
Under the provisions of section 2(c) of the JWOD Act, the following are currently designated central nonprofit agencies:
(a) To represent nonprofit agencies for the blind: National Industries for the Blind.
(b) To represent nonprofit agencies employing persons with other severe disabilities: NISH.
Each central nonprofit agency shall:
(a) Represent its participating nonprofit agencies in dealing with the Committee under the JWOD Act.
(b) Evaluate the qualifications and capabilities of its nonprofit agencies and provide the Committee with pertinent data concerning its nonprofit agencies, their status as qualified nonprofit agencies, their manufacturing or service capabilities, and other information concerning them required by the Committee.
(c) Obtain from Federal contracting activities such procurement information as is required by the Committee to:
(1) Determine the suitability of a commodity or service being recommended to the Committee for addition to the Procurement List; or
(2) Establish an initial fair market price for a commodity or service or make changes in the fair market price.
(d) Recommend to the Committee, with the supporting information required by Committee procedures, suitable commodities or services for procurement from its nonprofit agencies.
(e) Recommend to the Committee, with the supporting information required by Committee procedures, initial fair market prices for commodities or services proposed for addition to the Procurement List.
(f) Distribute within the policy guidelines of the Committee (by direct allocation, subcontract, or any other means) orders from Government activities among its nonprofit agencies.
(g) Maintain the necessary records and data on its nonprofit agencies to enable it to allocate orders equitably.
(h) Oversee and assist its nonprofit agencies to insure contract compliance in furnishing a commodity or a service.
(i) As market conditions change, recommend price changes with appropriate justification for assigned commodities or services on the Procurement List.
(j) Monitor and assist its nonprofit agencies to meet the statutory and regulatory requirements to fully participate in the program. Conduct assistance visits with its nonprofits as necessary and provide the Committee with the results and recommendations of such visits.
(k) When authorized by the Committee, enter into contracts with Federal contracting activities for the furnishing of commodities or services provided by its nonprofit agencies.
(l) At the time designated by the Committee, submit a completed, original copy of the appropriate Initial Certification (Committee Form 401 or 402) for the nonprofit agency concerned. This requirement does not apply to a nonprofit agency that is already authorized to furnish a commodity or service under the JWOD Act.
(m) Review and forward to the Committee by December 1 of each year a completed original copy of the appropriate Annual Certification (Committee Form 403 or 404) for each of its participating nonprofit agencies covering the fiscal year ending the preceding September 30.
(n) Perform other JWOD administrative functions, including activities to increase Government and public awareness of the JWOD Act subject to the oversight of the Committee.
(a) The central nonprofit agencies shall determine by mutual agreement the assignment to one of them of a commodity or service for the purpose of evaluating its potential for possible future addition to the Procurement List, except that the Committee shall initially assign a commodity to National Industries for the Blind when NISH has expressed an interest in the commodity and National Industries for the Blind has exercised the blind priority.
(b) NISH shall provide National Industries for the Blind with procurement information necessary for a decision to exercise or waive the blind priority when it requests a decision. National Industries for the Blind shall normally notify NISH of its decision within 30 days, but not later than 60 days after receipt of the procurement information, unless the two central nonprofit agencies agree to an extension of time for the decision. Disagreements on extensions shall be referred to the Committee for resolution.
(c) If National Industries for the Blind exercises the blind priority for a commodity, it shall immediately notify the Committee and NISH and shall submit to the Committee a proposal to add the commodity to the Procurement List within nine months of the notification, unless the Committee extends the assignment period because of delays beyond the control of National Industries for the Blind. Upon expiration of the assignment period, the Committee shall reassign the commodity to NISH.
(d) The central nonprofit agency assigned a commodity shall obtain a decision from Federal Prison Industries on the exercise or waiver of its priority and shall submit the procurement information required by Federal Prison Industries when it requests the decision. Federal Prison Industries shall normally notify the central nonprofit agency of its decision within 30 days, but not later than 60 days after receipt of the procurement information, unless it agrees with the central nonprofit agency on an extension of time for the decision. The central nonprofit agency shall refer a disagreement over an extension to the Committee for resolution with Federal Prison Industries.
(e) The central nonprofit agency shall provide the Committee the decision of Federal Prison Industries on the waiver or exercise of its priority when it requests the addition of the commodity to the Procurement List. NISH shall also provide the decision of National Industries for the Blind waiving its priority.
(a) Central nonprofit agencies shall distribute orders from the Government only to nonprofit agencies which the Committee has authorized to furnish the specific commodity or service. When the Committee has authorized two or more nonprofit agencies to furnish a specific commodity or service, the central nonprofit agency shall distribute orders in a manner that is fair and equitable to each authorized nonprofit agency, and that provides the best value for the requiring Federal agency and best meets the mission of the Program.
(b) For new and existing Procurement List services that are estimated to exceed $10 million in total project value for a Federal agency, other than the Department of Defense and its components, or $50 million in total project value for the Department of Defense and its components, inclusive of the base period and all option periods, a Federal agency may, at the Senior Executive Service or Flag or General Officer level, request that the procurement be distributed to an authorized nonprofit agency on a competitive basis among all authorized nonprofit agencies. In addition to the requirements described at part 51-6 of this chapter, the requesting Federal agency shall advise the Committee of the rationale for competition, whether it will provide resources to support the competitive process, the independent government cost estimate of the contract being competed or of the resources to support the competitive process, any information pertaining to performance, and such other information as is requested by the Committee. The Committee will answer a request within 60 days of receipt unless additional information is needed.
(c) If the Committee accepts a request from a Federal agency for competitive distribution, the action will be forwarded to the responsible central nonprofit agency for assessment in accordance with § 51-3.2(b) through (d). Upon receipt of a recommendation from the central nonprofit agency, the Committee will determine whether a competitive distribution is appropriate after considering the suitability criteria described at § 51-2.4 of this chapter and applicable Committee policies and procedures. If the Committee decides that a competitive distribution is appropriate and authorizes at least two nonprofit agencies to serve as mandatory sources, a competitive distribution may commence upon notification in the
(d) After notification, the responsible central nonprofit agency shall select the authorized nonprofit agency that it determines provides the best value for the ordering Federal agency and meets the mission of the Program in accordance with the Committee's policies and procedures. The selection decision shall be based on criteria approved by the Committee, such as technical capability, past performance, and price. The selection decision may also consider any other criteria or subcriteria specific to the service requirement. In addition, each selection decision shall consider criteria or subcriteria that address the nonprofit agency's capability to provide opportunities related to training and placements, as well as employment, for individuals who are blind or have significant disabilities. Criteria may be weighted, but price shall not have greater weight than the non-price factors when combined, except for competitive distributions directed by the Committee in accordance with paragraph (e) of this section.
(e) The Committee may also direct a competitive distribution in accordance with paragraph (c) of this section for any service requirement already on the Procurement List that exceeds a total project value of $1 million, if bilateral negotiations described at § 51-2.7(b) of this chapter are attempted in good faith but fail to produce a recommendation to the Committee for revising the fair market price. A Federal agency may not request, and the Committee shall not direct a competitive distribution based solely on failed price negotiations, until the parties have exhausted all available remedies established within the Committee's pricing policies and procedures.
(f) Any dispute arising out of a competitive distribution decision described at paragraph (d) of this section shall be submitted to the appropriate central nonprofit agency for resolution. If the affected nonprofit agency disagrees with the central nonprofit agency's resolution, it may appeal that decision to the Committee for final resolution. Appeals must be filed with the Committee within five business days of the nonprofit agency's notification of the central nonprofit agency's resolution decision, and only a nonprofit agency that participated in the competitive distribution process described at paragraph (c) of this section may file an appeal.
A central nonprofit agency may charge fees to nonprofit agencies for facilitating their participation in the AbilityOne Program. Fees shall be calculated based on nonprofit agency sales to the Government under the AbilityOne Program. Fees shall not exceed the fee limit approved by the Committee.
Any information, other than that contained in the Annual Certification required by § 51-4.3(a) of this chapter, which a central nonprofit agency requires its nonprofit agencies to submit on an annual basis, shall be requested separately from the Annual Certification. If the information is being sought in response to a request by the Committee, nonprofit agencies shall be advised of that fact and the central nonprofit agency shall, prior to distribution, provide to the Committee a copy of each form which it plans to use to obtain such information from its nonprofit agencies.
To participate in the AbilityOne Program, a nonprofit agency shall be represented by the central nonprofit agency assigned by the Committee on the basis of the nonprofit agency's articles of incorporation and bylaws.
(a) To qualify for participation in the JWOD Program:
(1) A privately incorporated nonprofit agency shall submit to the Committee through its central nonprofit agency the following documents, transmitted by a letter signed by an officer of the corporation or chief executive:
(i) A legible copy (preferably a photocopy) of the articles of incorporation showing the date of filing and the signature of an appropriate State official.
(ii) A copy of the bylaws certified by an officer of the corporation.
(iii) If the articles of incorporation or bylaws do not include a statement to the effect that no part of the net income of the nonprofit agency may inure to the benefit of any shareholder or other individual, one of the following shall be submitted:
(A) A certified true copy of the State statute under which the nonprofit agency was incorporated which includes wording to the effect that no part of the net income of the nonprofit agency may inure to the benefit of any shareholder or other individual.
(B) A copy of a resolution approved by the governing body of the corporation, certified by an officer of the corporation, to the effect that no part of the net income of the nonprofit agency may inure to the benefit of any shareholder or other individual.
(iv) A certification that the nonprofit agency will not use wage certificates authorized under section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 214(c)) to employees on any contract or subcontract awarded under the AbilityOne Program.
(2) A State-owned or State-operated nonprofit agency, or a nonprofit agency established or authorized by a State statute other than the State corporation laws and not privately incorporated, shall submit to the Committee through its central nonprofit agency the following documents, transmitted by a letter signed by an officer of the wholly-owned State corporation or an official of the agency that directs the operations of the nonprofit agency, as applicable:
(i) A certified true copy of the State statute establishing or authorizing the establishment of nonprofit agency(ies) for persons who are blind or have other severe disabilities.
(ii) In the case of a wholly-owned State corporation, a certified true copy of the corporation bylaws; and, in the case of a State or local government agency, a certified true copy of implementing regulations, operating procedures, notice of establishment of the nonprofit agency, or other similar documents.
(b) The Committee shall review the documents submitted and, if they are acceptable, notify the nonprofit agency by letter, with a copy to its central nonprofit agency, that the Committee has verified its nonprofit status and certification under paragraph (a)(1)(iv) of this section under the under the Javits-Wagner-O'Day Act.
(c) A nonprofit agency shall submit two completed copies of the appropriate Initial Certification (Committee Form 401 or 402) to its central nonprofit agency at the time designated by the Committee. This requirement does not apply if a nonprofit agency is already authorized to furnish a commodity or service under the JWOD Act.
(a) To maintain its qualification under the JWOD Act, each nonprofit agency authorized to furnish a commodity or a service shall continue to comply with the requirements of a “nonprofit agency for other severely handicapped” or a “nonprofit agency for the blind” as defined in § 51-1.3 of this chapter. In addition, each such nonprofit agency must submit to its central nonprofit agency by November 1 of each year, two completed copies of the appropriate Annual Certification (Committee Form 403 or 404) covering the fiscal year ending the preceding September 30.
(b) In addition to paragraph (a) of this section, each nonprofit agency participating in the Ability One Program shall:
(1) Furnish commodities or services in strict accordance with Government orders.
(2) Comply with the applicable compensation, employment, and occupational health and safety standards prescribed by the Secretary of Labor, including procedures to encourage filling of vacancies within the nonprofit agency by promotion of qualified employees who are blind or have other severe disabilities.
(3) Comply with directives or requests issued by the Committee in furtherance of the objectives of the JWOD Act or its implementing regulations.
(4) Make its records available for review at any reasonable time to representatives of the Committee or the central nonprofit agency representing the nonprofit agency.
(5) Maintain records of direct labor hours performed in the nonprofit agency by each worker.
(6) Maintain a file for each blind individual performing direct labor which contains a written report reflecting visual acuity and field of vision of each eye, with best correction, signed by a person licensed to make such an evaluation, or a certification of blindness by a State or local governmental entity.
(7) Maintain in the file for each blind individual performing direct labor annual reviews of ability to engage in normal competitive employment. These reviews must be signed by an individual qualified by training and/or experience to make this determination.
(8) Maintain an ongoing placement program operated by or for the nonprofit agency to include liaison with appropriate community services such as the State employment service, employer groups and others. Those individuals determined capable and desirous of normal competitive employment shall be assisted in obtaining such employment.
(9) Upon receipt of payment by the Government for commodities or services furnished under the Ability One Program, pay to the central nonprofit agency a fee which meets the requirements of § 51-3.5 of this chapter.
(10) Certify the nonprofit agency will not use wage certificates authorized under section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 214(c)) to employees on any contract or subcontract under the AbilityOne Program.
(c) Each nonprofit agency employing persons with severe disabilities participating in the AbilityOne Program shall, in addition to the requirements of paragraphs (a) and (b) of this section, maintain in each individual with a severe disability's file:
(1) A written report signed by a licensed physician, psychiatrist, or qualified psychologist, reflecting the nature and extent of the disability or disabilities that cause such person to qualify as a person with a severe disability, or a certification of the disability or disabilities by a State or local governmental entity.
(2) Reports which state whether that individual is capable of engaging in normal competitive employment. These reports shall be signed by a person or persons qualified by training and experience to evaluate the work potential, interests, aptitudes, and abilities of persons with disabilities and shall normally consist of preadmission evaluations and reevaluations prepared at least annually. The file on individuals who have been in the nonprofit agency for less than two years shall contain the preadmission report and, where appropriate, the next annual reevaluation. The file on individuals who have been in the nonprofit agency for two or more years shall contain, as a minimum, the reports of the two most recent annual reevaluations.
(d) The information collection requirements of §§ 51-4.2 and 51-4.3 and the recordkeeping requirements of § 51-4.3 have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511). The information collection requirements have been assigned the following OMB control numbers:
| Committee form | OMB control No. |
|---|---|
| Committee form 401 | 3037-0004 |
| Committee form 402 | 3037-0003 |
| Committee form 403 | 3037-0001 |
| Committee form 404 | 3037-0002 |
(a) Nonprofit agencies shall seek broad competition in the purchase of materials and components used in the commodities and services furnished to the Government under the JWOD Act. Nonprofit agencies shall inform the Committee, through their central nonprofit agency, before entering into multiyear contracts for materials or components used in the commodities and services furnished to the Government under the JWOD Act.
(b) Each nonprofit agency shall accomplish the maximum amount of subcontracting with other nonprofit agencies and small business concerns that the nonprofit agency finds to be consistent both with efficient performance in furnishing commodities or services under the JWOD Act and maximizing employment for persons who are blind or have other severe disabilities.
(c) Nonprofit agencies may subcontract a portion of the process for producing a commodity or providing a service on the Procurement List provided that the portion of the process retained by the prime nonprofit agency generates employment for persons who are blind or have other severe disabilities. Subcontracting intended to be a routine part of the production of a commodity or provision of a service shall be identified to the Committee at the time the commodity or service is proposed for addition to the Procurement List and any significant changes in the extent of subcontracting must be approved in advance by the Committee.
(d) A nonprofit agency may not subcontract the entire production process for all or a portion of an order without the Committee's prior approval.
(a) Any alleged violations of these regulations by a nonprofit agency shall be investigated by the Committee which shall notify the nonprofit agency concerned and afford it an opportunity to submit a statement of facts and evidence. Pending a decision by the Committee, the central nonprofit agency concerned may be directed by the Committee to temporarily suspend allocations to the nonprofit agency.
(b) If a nonprofit agency fails to correct its violations of these regulations, the Committee, after affording the nonprofit agency an opportunity to address the Committee on the matter, may terminate the nonprofit agency's eligibility to participate in the JWOD Program.
(a) Contracting activities are encouraged to assist the Committee and the central nonprofit agencies in identifying suitable commodities and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities so that the Committee can attain its objective of increasing employment and training opportunities for individuals who are blind or have other severe disabilities. For items which appear to be suitable to be furnished by nonprofit agencies, the contracting activity should refer the candidate commodities and services to the Committee or a central nonprofit agency. If a contracting activity decides to procure one or more commodities which are similar to a commodity or commodities on the Procurement List, the contracting activity should refer the commodities it intends to procure to the Committee or a central nonprofit agency.
(b) Contracting activities shall provide the Committee and designated central nonprofit agencies with information needed to enable the Committee to determine whether a commodity or service is suitable to be furnished by a nonprofit agency. For commodities, information such as the latest solicitation and amendments, bid abstracts, procurement history, estimated annual usage quantities, and anticipated date of next solicitation issuance and opening may be needed. For services, similar information including the statement of work and applicable wage determination may be required. In order to assist in evaluating the suitability of an Office of Management and Budget Circular No. A-76 conversion, contracting activities should provide a copy of the draft statement of work and applicable wage determination to the central nonprofit agency upon its request.
(a) The Committee may authorize one or more nonprofit agencies to provide a commodity or service on the Procurement List. Nonprofit agencies that have been authorized as mandatory sources for a commodity or service on the Procurement List are the only authorized sources for providing that commodity or service until the nonprofit agency has been deauthorized by the Committee in accordance with the Committee's policies and procedures. To meet the needs of the ordering Federal agency, the central nonprofit agencies may distribute the commodity or service to one or more nonprofit agencies in accordance with § 51-3.4(a) of this chapter.
(b) After a determination of suitability for approving items on the Procurement List, the Committee will authorize the most capable nonprofit agencies as the mandatory source(s) for commodities or services. Commodities and services may be purchased from nonprofit agencies; central nonprofit agencies; Government central supply agencies, such as the Defense Logistics Agency, Department of Veterans Affairs, and General Services Administration; and certain commercial distributors. (Identification of the authorized sources for a particular commodity may be obtained from the central nonprofit agencies indicated by the Procurement List which is found at www.abilityone.gov.)
(c) Contracting activities shall require that their contracts with other organizations or individuals, such as prime vendors providing commodities that are already on the Procurement List to Federal agencies, require that the vendor orders these commodities from the sources authorized by the Committee.
(d) Procedures for obtaining military resale commodities are contained in § 51-6.4 of this chapter.
(e) Contracting activities procuring services, which have included within them services on the Procurement List, shall require their contractors for the larger service requirement to procure the included Procurement List services from nonprofit agencies authorized by the Committee.
(f) If the Committee deauthorizes a nonprofit agency as the mandatory source, the deauthorized nonprofit agency shall ensure as many of its employees who are blind or have other significant disabilities as practicable remain on the job with the new authorized successor nonprofit agency. The successor nonprofit agency is required to offer a right of first refusal of employment under the successor contract to current employees of the deauthorized nonprofit agency who are blind or have other significant disabilities for positions for which they are qualified. The deauthorized nonprofit agency shall disclose necessary personnel records in accordance with all applicable laws protecting the privacy of the employee to allow the successor nonprofit agency to conduct interviews with those identified employees. If selected employees agree, the deauthorized nonprofit agency shall release them at a mutually agreeable date and negotiate transfer of their earned fringe benefits and other relevant employment and Program eligibility information to the successor nonprofit agency. The requirement for a successor nonprofit agency to offer the right of first refusal also applies to an authorized nonprofit agency that is no longer serving as the mandatory source because of a competitive distribution under § 51-3.4(d) of this chapter.
(a) When a commodity is included on the Procurement List, the mandatory source requirement covers the National Stock Number or item designation listed and commodities that are essentially the same as the listed item. In some instances, only a portion of the Government requirement for a National Stock Number or item designation is specified by the Procurement List. Where geographic areas, quantities, percentages or specific supply locations for a commodity are listed, the mandatory provisions of the JWOD act apply only to the portion or portions of the commodity indicated by the Procurement List.
(b) For services, where an agency and location or geographic area are listed on the Procurement List, only the service for the location or geographic area listed must be procured from the nonprofit agency, except as provided in § 51-6.14 of this chapter. Where no location or geographic area is indicated by the Procurement List, it is mandatory that the total Government requirement for that service be procured from a nonprofit agency.
(c) When a commodity or service is added to the Procurement List, the addition does not affect contracts for the commodity or service awarded prior to the effective date of the Procurement List addition or options exercised under those contracts.
(a) A central nonprofit agency will normally grant a purchase exception for a contracting activity to procure from commercial sources commodities or services on the Procurement List when both of the following conditions are met:
(1) The central nonprofit agency or its nonprofit agency(ies) cannot furnish a commodity or service within the period specified, and
(2) The commodity or service is available from commercial sources in the quantities needed and significantly sooner than it will be available from the nonprofit agency(ies).
(b) The central nonprofit agency may grant a purchase exception when the quantity involved is not sufficient to be furnished economically by the nonprofit agency(ies).
(c) The Committee may also grant a purchase exception for the reasons set forth in paragraphs (a) and (b) of this section.
(d) The central nonprofit agency shall obtain the approval of the Committee before granting a purchase exception when the value of the procurement exceeds the simplified acquisition threshold set forth in the Federal Acquisition Streamlining Act of 1994 or any subsequent amendments thereto.
(e) When the central nonprofit agency grants a purchase exception under the above conditions, it shall do so promptly and shall specify the quantities and delivery period covered by the exception.
(f) When a purchase exception is granted under paragraph (a) of this section:
(1) Contracting activities shall initiate purchase actions within 15 days following the date of the purchase exception. The deadline may be extended by the central nonprofit agency with, in cases of procurements exceeding the simplified acquisition threshold, the concurrence of the Committee.
(2) Contracting activities shall furnish a copy to the solicitation to the appropriate central nonprofit agency at the time it is issued, and a copy of the annotated bid abstract upon awarding of the commercial contract.
(g) Any decision by a central nonprofit agency regarding a purchase exception may be appealed to the Committee by the contracting activity.
(a) The prices for items on the Procurement List are fair market prices established by the Committee under authority of the Javits-Wagner-O'Day Act (41 U.S.C. 47(b)).
(b) Prices for commodities include applicable packaging, packing, and marking. Prices include transportation to point of delivery as specified in § 51-5.6.
(c) Price changes for commodities and services shall usually apply to orders received by the nonprofit agency on or after the effective date of the change. In special cases, after considering the views of the contracting activity, the Committee may make price changes applicable to orders received by the nonprofit agency prior to the effective date of the change.
(d) To assist the Committee in revising the fair market prices for services on the Procurement List, upon request from the central nonprofit agency, the contracting activity should take the following actions:
(1) Submit to the Department of Labor in a timely fashion a request for wage determination rate.
(2) Provide a copy of the new wage determination rate or the Department of Labor document stating that the wage determination rate is unchanged to the central nonprofit agency at least 60 days before the beginning of the new service period.
(3) Provide to the central nonprofit agency at least 90 days before the beginning of the new service period a copy of the statement of work applicable to the new service period.
(e) If a contracting activity desires packing, packaging, or marking of products other than the standard pack or as provided in the Procurement List, any difference in cost shall be negotiated with the nonprofit agency.
(a) Except as provided in paragraph (b) of this section, commodities are sold to the Government on an “F.O.B. destination” basis, with delivery being accomplished when the shipment reaches the facility designated by the contracting activity. Time of delivery is when the shipment is released by the carrier and accepted by the contracting activity or its agent. In this delivery method, the nonprofit agency will normally use commercial bills of lading and will be responsible for any loss or damage to the goods occurring before the commodities reach the designated delivery point. The nonprofit agency will prepare and distribute commercial bills of lading, furnish delivery schedules, designate the carriers, and pay all shipping charges to specified delivery points.
(b) The Committee may determine that certain commodities are to be sold to the Government on an “F.O.B. origin” basis, with delivery being accomplished when a shipment is placed aboard the vehicle of the initial carrier. Time of delivery is when the shipment is released to and accepted by the initial carrier. In this delivery method, the nonprofit agency will normally use Government bills of lading, and responsibility for loss or damage to the goods while in transit passes to the Government at the time the initial carrier accepts a shipment. If the contracting activity fails to furnish a Government bill of lading promptly, such failure shall be considered an excusable delay in delivery.
Payments for products or services of persons who are blind or have other severe disabilities shall be made within 30 days after shipment or receipt of a proper invoice or voucher.
Any alleged violations of the JWOD Act or these regulations by entities of the Government shall be investigated by the Committee, which shall notify the entity and afford it an opportunity to submit a statement.
(a) Once a commodity or service is added to the Procurement List, the central nonprofit agency may authorize the contracting activity to issue orders directly to a nonprofit agency without requesting an allocation for each order. This procedure is known as the direct order process.
(b) In these cases, the central nonprofit agency shall specify the normal leadtime required for orders transmitted directly to the nonprofit agencies. This method shall be used whenever possible since it eliminates double handling and decreases the time required for processing orders.
(c) An order for commodities or services shall provide leadtime sufficient for purchase of materials, production or preparation, and delivery or completion.
(d) The central nonprofit agency shall keep the contracting activity informed of any changes in leadtime experienced by its nonprofit agencies in order to keep to a minimum requests for extensions once an order is placed. Where, due to unusual conditions, an order does not provide sufficient leadtime, the central nonprofit agency or the individual nonprofit agency may request an extension of delivery or completion date which should be granted, if feasible. If extension of delivery or completion date is not feasible, the contracting activity shall:
(1) Notify the central nonprofit agency and the individual nonprofit agency(ies) as appropriate.
(2) Request the central nonprofit agency to reallocate or to issue a purchase exception authorizing procurement from commercial sources as provided in § 51-5.4 of this chapter.
(e) The contracting activity shall promptly provide to the central nonprofit agency concerned a copy of all orders issued to nonprofit agencies.
(f) The written direct order authorization remains valid until it is revoked by the central nonprofit agency.
(a) In those cases where a direct order authorization has not been issued as described in § 51-6.1, the contracting activity shall submit written requests for allocation to the appropriate central nonprofit agency indicated by the Procurement List at the address listed below:
| Agency | Agency symbol |
|---|---|
| National Industries for the Blind, 1901 North Beauregard Street, Suite 200, Alexandria, Virginia 22311-1727 | NIB |
| NISH, 2235 Cedar Lane, Vienna, Virginia 22182-5200 | NISH |
(b) Requests for allocations shall contain, as a minimum:
(1) For commodities. Name, stock number, latest specification, quantity, unit price, and place and time of delivery.
(2) For services. Type and location of service required, latest specification, work to be performed, estimated volume, and time for completion.
(c) Contracting activities shall request allocations in sufficient time for the central nonprofit agency to reply, for the order(s) to be placed, and for the nonprofit agencies to furnish the commodity or service (see paragraph (i) of this section).
(d) When a commodity on the Procurement List also appears on the Federal Prison Industries' “Schedule of Products,” the contracting activity shall obtain clearance from the Federal Prison Industries prior to requesting an allocation or placing an order directly to the nonprofit agency(ies).
(e) The central nonprofit agency shall make allocations to the appropriate nonprofit agency(ies) upon receipt of a request from the contracting activity and instruct that the orders be forwarded to the central nonprofit agency or direct to the nonprofit agency(ies) with a copy provided promptly to the central nonprofit agency.
(f) Central nonprofit agencies shall reply promptly to requests for allocation. When a request for allocation provides a delivery schedule (based on established lead times and time required for processing the allocation request) which cannot be met, the central nonprofit agency shall request a revision, which the contracting activity shall grant, if feasible, or the central nonprofit agency shall issue a purchase exception authorizing procurement from commercial sources as provided in § 51-5.4 of this chapter.
(g) An allocation is not an obligation to supply a commodity or service, or an obligation for the contracting activity to issue an order. Nonprofit agencies are not authorized to commence production until receipt of an order.
(h) Upon receipt of an allocation, the contracting activity shall promptly submit an order to the appropriate central nonprofit agency or designated nonprofit agency(ies). Where this cannot be done promptly, the contracting activity shall advise the central nonprofit agency and the nonprofit agency(ies) immediately.
(i) An order for commodities or services shall provide leadtime sufficient for purchase of materials, production or preparation, and delivery or completion.
(j) The Central nonprofit agency shall keep the contracting activity informed of any changes in leadtime experienced by its nonprofit agency(ies) in order to keep to a minimum requests for extensions once an order is placed. Where, due to unusual conditions, an order does not provide sufficient leadtime, the central nonprofit agency or nonprofit agency may request an extension of delivery or completion date which should be granted, if feasible. If extension of delivery or completion date is not feasible, the contracting activity shall:
(1) Notify the central nonprofit agency and nonprofit agency(ies) as appropriate.
(2) Request the central nonprofit agency to reallocate or to issue a purchase exception authorizing procurement from commercial sources as provided in § 51-5.4 of this chapter.
(k) In those instances where the central nonprofit agency is the prime contractor rather than the nonprofit agency, the central nonprofit agency will designate the nonprofit agency(ies) authorized by the Committee to furnish definite quantities of commodities or specific services upon receipt of an order from the contracting activity.
(a) Contracting activities are encouraged to investigate long-term ordering agreements for commodities listed on the Procurement List to level off demand, thereby helping ensure stability of employment and development of job skills for persons who are blind or have other severe disabilities.
(b) Contracting activities are encouraged to use the longest contract term available by law to their agencies for contracts for commodities and services under the AbilityOne Program, in order to minimize the time and expense devoted to formation and renewal of these contracts.
(a) Purchase procedures for ordering military resale commodities are available from the central nonprofit agencies. Authorized resale outlets (military commissary stores, Armed Forces exchanges and like activities of other Government departments and agencies) shall request the central nonprofit agency responsible for the military resale commodity being ordered to designate the nonprofit agency or its agent to which the outlets shall forward orders.
(b) Authorized resale outlets shall stock military resale commodities in as broad a range as practicable. Authorized resale outlets may stock commercial items comparable to military resale commodities they stock, except that military commissary stores shall stock military resale commodities in the 300-800-, 900-, 1000-, 1100-, 10000- (10000-10999); 13000 (13000-13999); 14000 (14000-14999); 15000 (15000-15999); and 16000 (16000-16999) series exclusively, unless an exception has been granted on an individual store basis for the stocking of comparable commercial items for which there is a significant customer demand.
(c) The Defense Commissary Agency shall, after consultation with the Committee:
(1) Establish mandatory lists of military resale commodities to be stocked in commissary stores.
(2) Require the stocking in commissary stores of military resale commodities in the 0- (0-99), 200-, 300-, 400-, 500-, 600-, 700-, 800-, 900-, 1000-, 1100-, 1200- (1200-9999), 10000- (10000-10999), 11000 (11000-11999); 12000 (12000-12999); 13000 (13000-13999); 14000 (14000-14999); 15000 (15000-15999); and 16000 (16000-16999) series in as broad a range as is practicable.
(3) Issue guidance requiring commissary store personnel to maximize sales potential of military resale commodities.
(4) Establish policies and procedures which reserve to its agency headquarters the authority to grant exceptions to the exclusive stocking of 300-, 800-, 900-, 1000-, 1100-, 10000- (10000-10999); 13000 (13000-13999); 14000 (14000-14999); 15000 (15000-15999); and 16000 (16000-16999) series military resale commodities.
(d) The Defense Commissary Agency shall provide the Committee a copy of each directive which relates to the stocking of military resale commodities in commissary stores, including exceptions authorizing the stocking of commercial items in competition with 300-, 800-, 900-, 1000-, 1100-, 10000- (10000-10999); 13000 (13000-13999); 14000 (14000-14999); 15000 (15000-15999); and 16000 (16000-16999) series military resale commodities.
(e) The prices of military resale commodities include delivery to destination or, in the case of destinations overseas, to designated depots at ports of embarkation. Zone pricing is used for delivery to Alaska and Hawaii.
When the central nonprofit agency or an individual nonprofit agency fails to comply with the terms of a Government order, the contracting activity shall make every effort to negotiate an adjustment before taking action to cancel the order. When a Government order is canceled for failure to comply with its terms, the central nonprofit agency shall be notified, and, if practicable, requested to reallocate the order. The central nonprofit agency shall notify the Committee of any cancellation of an order and the reasons for that cancellation.
(a) Nonprofit agencies and central nonprofit agencies are encouraged to recommend changes to specification requirements or request waivers where there are opportunities to provide equal or improved products at a lower cost to the Government.
(b) A nonprofit agency shall not request a waiver of a specification requirement except when it is not possible to obtain the material meeting the specification or when other requirements contained in the specification cannot be met.
(c) Requests for waiver of specification shall be transmitted by the nonprofit agency to its central nonprofit agency.
(d) The central nonprofit agency shall review the request and the specification to determine if the request is valid and shall submit to the contracting activity only those requests which it has determined are necessary to enable the nonprofit agency to furnish the item.
(e) The central nonprofit agency request for waiver shall be transmitted in writing to the contracting activity. In addition, a copy of the request shall be transmitted to the Committee, annotated to include a statement concerning the impact on the cost of producing the item if the waiver is approved.
(a) Nonprofit agencies are expected to furnish commodities on the Procurement List within the time frames specified by the Government. The nonprofit agency must have the necessary production facilities to meet normal fluctuations in demand.
(b) Nonprofit agencies shall take those actions necessary to ensure that they can ship commodities within the time frames specified by the Government. In instances where the nonprofit agency determines that it cannot ship the commodity in the quantities specified by the required shipping date, it shall notify the central nonprofit agency and the contracting activity. The central nonprofit agency shall request a revision of the shipping schedule which the contracting activity should grant, if feasible, or the central nonprofit agency shall issue a purchase exception authorizing procurement from commercial sources as provided in § 51-5.4 of this chapter.
(a) When a central nonprofit agency decides to request that the Committee delete a commodity or service from the Procurement List, it shall notify the Committee staff immediately. Before reaching a decision to request a deletion of an item from the Procurement List, the central nonprofit agency shall determine that none of its nonprofit agencies is capable and desirous of furnishing the commodity or service involved.
(b) Except in cases where the Government is no longer procuring the item in question, the Committee shall, prior to deleting an item from the Procurement List, determine that none of the nonprofit agencies of the other central nonprofit agency is desirous and capable of furnishing the commodity or service involved.
(c) Nonprofit agencies will normally be required to complete production of any orders for commodities on hand regardless of the decision to delete the item. Nonprofit agencies shall obtain concurrence of the contracting activity and the Committee prior to returning a purchase order to the contracting activity.
(d) For services, a nonprofit agency shall notify the contracting activity of its intent to discontinue performance of the service 90 days in advance of the termination date to enable the contracting activity to assure continuity of the service after the nonprofit agency's discontinuance.
(e) The Committee may delete an item from the Procurement List without a request from a central nonprofit agency if the Committee determines that none of the nonprofit agencies participating in the AbilityOne Program are capable and desirous of furnishing the commodity or service to the Government, or if the Committee decides that the commodity or service is no longer suitable for procurement from nonprofit agencies employing people who are blind or have other severe disabilities. In considering such an action, the Committee will consult with the appropriate central nonprofit agency, the nonprofit agency or agencies involved, and the contracting activity.
Routine contracting activity correspondence or inquiries concerning deliveries of commodities being shipped from or performance of services by nonprofit agencies employing persons who are blind or have other severe disabilities shall be with the nonprofit agency involved. Major problems shall be referred to the appropriate central nonprofit agency. In those instances where the problem cannot be resolved by the central nonprofit agency and the contracting activity involved, the contracting activity or central nonprofit agency shall notify the Committee of the problem so that action can be taken by the Committee to resolve it.
(a) Commodities furnished under Government specification by nonprofit agencies employing persons who are blind or have other severe disabilities shall be manufactured in strict compliance with such specifications. Where no specifications exist, commodities furnished shall be of a quality equal to or higher than similar items available on the commercial market. Commodities shall be inspected utilizing nationally recognized test methods and procedures for sampling and inspection.
(b) Services furnished by nonprofit agencies employing persons who are blind or have other severe disabilities shall be performed in accordance with Government specifications and standards. Where no Government specifications and standards exist, the services shall be performed in accordance with commercial practices.
(a) When the quality of a commodity received is not considered satisfactory by the using activity, the activity shall take the following actions as appropriate:
(1) For commodities received from Defense Logistics Agency supply centers, General Services Administration supply distribution facilities, Department of Veterans Affairs distribution division or other central stockage depots, or specifically authorized supply source, notify the supplying agency in writing in accordance with that agency's procedures. The supplying agency shall, in turn, provide copies of the notice to the nonprofit agency involved and its central nonprofit agency.
(2) For commodities received directly from nonprofit agencies employing persons who are blind or have other severe disabilities, address complaints to the nonprofit agency involved with a copy to the central nonprofit agency with which it is affiliated.
(b) When the quality of a service is not considered satisfactory by the contracting activity, it shall address complaints to the nonprofit agency involved with a copy to the central nonprofit agency with which it is affiliated.
(a) Contracting activities shall notify the nonprofit agency or agencies authorized to furnish a commodity on the Procurement List and the central nonprofit agency concerned of any changes to the specification or other description of the commodity.
(b) When a Government entity is changing the specification or description of a commodity on the Procurement List, including a change that involves the assignment of a new national stock number or item designation, the office assigned responsibility for the action shall obtain the comments of the Committee and the central nonprofit agency concerned on the proposed change and shall notify the nonprofit agency and the central nonprofit agency concerned at least 90 days prior to placing an order for a commodity covered by the new specification or description.
(c) For services on the Procurement List, the contracting activity shall notify the nonprofit agency furnishing the service and the central nonprofit agency concerned at least 90 days prior to the date that any changes in the statement of work or other conditions of performance will be required, including assumption of performance of the service by the contracting activity.
(d) If an emergency makes it impossible for a contracting activity to give the 90-day notice required by paragraphs (b) and (c) of this section, the contracting activity shall inform the nonprofit agency and the central nonprofit agency concerned of the reasons it cannot meet the 90-day notice requirement when it places the order or change notice.
(e) Nonprofit agencies shall recommend changes in specifications, item descriptions, and statements of work that will improve the commodity or service being provided, reduce costs, or improve overall value to the Government. Contracting activities shall respond promptly to these recommendations and work with the nonprofit agencies to implement them when appropriate.
(a) When a commodity on the Procurement List is replaced by another commodity which has not been recently procured, and a nonprofit agency can furnish the replacement commodity in accordance with the Government's quality standards and delivery schedules, the replacement commodity is automatically considered to be on the Procurement List and shall be procured from the nonprofit agency designated by the Committee at the fair market price the Committee has set for the replacement commodity. The commodity being replaced shall continue to be included on the Procurement List until there is no longer a Government requirement for that commodity.
(b) If contracting activities desire to procure additional sizes, colors, or other variations of a commodity after the commodity is added to the Procurement List, and these similar commodities have not recently been procured, these commodities are also automatically considered to be on the Procurement List.
(c) In accordance with § 51-5.3 of this chapter, contracting activities are not permitted to purchase commercial items that are essentially the same as commodities on the Procurement List.
If a service is on the Procurement List to meet the needs of a Government entity at a specific location and the entity moves to another location, the service at the new location is automatically considered to be on the Procurement List if a qualified nonprofit agency is available to provide the service at the new location, unless the service at that location is already being provided by another contractor. If the service at the new location is being provided by another contractor, the service will not be on the Procurement List unless the Committee adds it as prescribed in part 51-2 of this chapter. If another Government entity moves into the old location, the service at that location will remain on the Procurement List to meet the needs of the new Government entity.
Disputes between a nonprofit agency and a contracting activity arising out of matters covered by parts 51-5 and 51-6 of this chapter shall be resolved, where possible, by the contracting activity and the nonprofit agency, with assistance from the appropriate central nonprofit agency. Disputes which cannot be resolved by these parties shall be referred to the Committee for resolution.
(a) Purpose. This part implements the National Environmental Policy Act of 1969 (NEPA) and provides for the implementation of those provisions identified in 40 CFR 1507.3(b) of the regulations issued by the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508) published pursuant to NEPA.
(b) Scope. This part applies to all actions of the Committee for Purchase from Persons who are Blind or Severely Disabled which may affect environmental quality in the United States.
(a) 40 CFR 1501.2(d) requires agencies to provide for early involvement in actions which, while planned by private applicants or other non-Federal entities, require some sort of Federal approval. Pursuant to the JWOD Act (41 U.S.C. 46-48c), the Committee for Purchase from People who are Blind or Severely Disabled makes the determination as to which qualified nonprofit agency serving persons who are blind or have other severe disabilities will furnish designated products and services to the Government.
(b) To implement the requirements of 40 CFR 1501.2(d) with respect to these actions, the Committee staff shall consult as required with other appropriate parties to initiate and coordinate the necessary environmental analysis. The Executive Director shall determine on the basis of information submitted by private agencies and other non-Federal entities or generated by the Committee whether the proposed action is one that normally does not require an environmental assessment or environmental impact statement (EIS) as set forth in § 51-7.4, or is one that requires an environmental assessment as set forth in 40 CFR 1501.4.
(c) To facilitate compliance with these requirements, private agencies and other non-Federal entities are expected to:
(1) Contact the Committee staff as early as possible in the planning process for guidance on the scope and level of environmental information required to be submitted in support of their request;
(2) Conduct any studies which are deemed necessary and appropriate by the Committee to determine the impact of the proposed action on the human environment;
(3) Consult with appropriate Federal, regional, State and local agencies and other potentially interested parties during preliminary planning stages to ensure that all environmental factors are identified;
(4) Submit applications for all Federal, regional, State and local approvals as early as possible in the planning process;
(5) Notify the Committee as early as possible of all other Federal, regional, State, local and Indian tribe actions required for project completion so that the Committee may coordinate all Federal environmental reviews; and
(6) Notify the Committee of all known parties potentially affected by or interested in the proposed action.
(a) 40 CFR 1505.1 of the NEPA regulations contains requirements to ensure adequate consideration of environmental documents in agency decision-making. To implement these requirements, the Committee staff shall:
(1) Consider all relevant environmental documents in evaluating proposals for agency action;
(2) Ensure that all relevant environmental documents, comments and responses accompany the proposal through the agency review processes;
(3) Consider only those alternatives discussed in the relevant environmental documents when evaluating proposals for agency action; and
(4) Where an EIS has been prepared, consider the specific alternative analysis in the EIS when evaluating the proposal which is the subject of the EIS.
(b) For each of the Committee's actions authorized by the JWOD Act, the following list identifies the point at which the NEPA process begins, the point at which it ends, and the key agency official or office required to consider the relevant environmental documents as a part of their decision-making:
(1) Action: Request.
(2) Start of NEPA process: Upon receipt of request.
(3) Completion of NEPA process: When the deciding official reviews the proposal and makes a determination.
(4) Key official or office required to consider environmental document: When a positive determination is made under § 51-7.2(b), the applicant in conjunction with the Committee staff will prepare the necessary papers.
(a) 40 CFR 1507.3(b)(2) in conjunction with 40 CFR 1508.4 requires agencies to establish three typical classes of action for similar treatment under NEPA. These typical classes of action are set forth below:
(1) Actions normally requiring EIS: None.
(2) Actions normally requiring assessments but not necessarily EISs: Requests for actions for which determinations under § 51-7.2(b) are found to be affirmative.
(3) Actions normally not requiring assessments or EISs: Request for actions by nonprofit agencies through the central nonprofit agencies to add a commodity or service to the Committee's Procurement List.
(b) The Committee shall independently determine, by referring to 40 CFR 1508.27, whether an EIS or an environmental assessment is required where:
(1) A proposal for agency action is not covered by one of the typical classes of action above; or
(2) For actions which are covered, but where the presence of extraordinary circumstances indicates that some other level of environmental review may be appropriate.
Interested parties may contact the Executive Director at (703) 603-7740 for information regarding the Committee's compliance with NEPA.
(a) This part contains the rules that the Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under part 51-9 as well as under this part. As a matter of policy, the Committee makes discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court.
(b) The Committee has a centralized system for processing requests, all requests are handled by the FOIA Officer.
Records that the Committee is required to make available for public inspection in an electronic format may be accessed through the Committee's public website: www.abilityone.gov. The Committee is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Committee shall ensure that its website of posted records and indices is reviewed and updated on an ongoing basis. The Committee's FOIA Public Liaison contact information is available at https://www.abilityone.gov/laws,_regulations_and_policy/foia.html.
(a) General Information. (1) The Committee has designated a FOIA office to process and respond to all FOIA requests. All Committee departments have the capability to receive requests electronically either through email or a web portal. A request will receive the quickest possible response if it is addressed to the FOIA office. To make a request for records, a requester should write directly to the FOIA office.
(2) A requester may submit a request for records to the Executive Director at the Committee's offices, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-3259, or via email to FOIA@abilityone.gov, or via facsimile to (703) 603-0655. The request must be in writing and should indicate that it is being made under the FOIA. Failure to submit a request in accordance with these procedures may delay the processing of the request.
(3) A requester who is making a request for records about himself or herself must comply with the verification of identity provision set forth in part 51-9.
(4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual has deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, the Committee can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
(b) Description of records sought. Requesters must describe records sought in sufficient detail to enable Committee personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the FOIA office or FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records. If after receiving a request the FOIA office determines that it does not reasonably describe the records sought, the FOIA office shall inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the FOIA office or FOIA Public Liaison, each of whom is available to assist the requester in reasonably describing the records sought. If a request does not reasonably describe the records sought, the agency's response to the request may be delayed.
(c) If the Committee determines that a request does not reasonably describe the records, it shall inform the requester of this fact and extend to the requester an opportunity to clarify the request or to confer promptly with knowledgeable Committee personnel to attempt to identify the records being sought or to reformulate a request. The Committee may offer assistance in identifying records and reformulating a request where: The description is deemed insufficient, the production of voluminous records is required, or a considerable number of work hours would be required to complete the request that would interfere with the business of the Committee.
(a) In general. Except in the instances described in paragraphs (c) of this section, the Committee is responsible for responding to a record request it received. In determining which records are responsive to a request, the Committee ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the Committee shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request. The Committee has no obligation to create a record solely for the purpose of making it available under the FOIA.
(b) Authority to grant or deny requests. The Executive Director, or designee, is authorized to grant or deny any request for records that are maintained by the Committee.
(c) Consultation, referral, and coordination. When reviewing records located by the Committee in response to a request, the Committee shall determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the Committee shall proceed in one of the following ways:
(1) Consultation. When records originated with the Committee processing the request, but contain information of interest to another agency, or other Federal Government office, the Committee should typically consult with that other agency prior to making a release determination.
(2) Referral. (i) When upon the receipt of the request the Committee determines that a different agency, or other Federal Government office is best able to determine whether to disclose the record, the Committee should refer the responsibility for responding to the request to the other agency, as long as that agency is subject to the FOIA. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the Committee processing the request and the originating agency jointly agree that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever the Committee refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if the Committee responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publically known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if the Committee locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Committee, upon receipt of the request, should coordinate with the originating component or agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the Committee.
(d) Classified information. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, the Committee shall refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever a component's record contains information that has been derivatively classified (e.g., when it contains information classified by another agency), the Committee shall refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.
(e) Timing of responses to consultations and referrals. All consultations and referrals received by the Committee will be handled according to the date that the FOIA request was received by the first agency.
(f) Agreements regarding consultations and referrals. The Committee may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
(a) In general. (1) The Committee ordinarily will respond to requests according to their order of receipt. The time limits prescribed in the FOIA will begin only after the Committee identifies a request as being made under the FOIA and deemed received by the Committee.
(2) An initial determination whether, and to what extent, to grant each request for records or a fee waiver shall be made within 10 business days after receipt of that request. The requester shall be notified as soon as the determination is made.
(3) When a requester complies with the procedures established in this part for obtaining records under the FOIA, the request shall receive prompt attention, and a response will be made within 20 business days.
(b) Unusual circumstances. Whenever the Committee cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined in the FOIA, and the Committee extends the time limit on that basis, the Committee shall, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds 10 working days, the Committee will, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The Committee shall make available its FOIA office and its FOIA Public Liaison for this purpose. The agency must also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services.
(c) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, the Committee may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. The Committee shall not aggregate multiple requests that involve unrelated matters.
(d) Multitrack processing. (1) The Committee may use two or more processing tracks by distinguishing between simple, complex, and expedited requests based on the amount of work and/or time needed to process a request or the number of pages involved. Expedited processing shall be in accordance with the standards set forth in paragraph (g) of this section. Among the factors a component may consider are the number of pages involved in processing the request and the need for consultations or referrals. The Committee shall advise requesters of the track into which their request falls and, when appropriate, shall offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.
(e) Expedited processing. (1) Requests and appeals may be taken out of order and given expedited treatment whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.
(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i) through (iv) of this section must be submitted to the Committee's FOIA office.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the Committee may waive the formal certification requirement.
(4) The Committee shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request will be given priority and processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
(a) In general. The Committee should, to the extent practicable, communicate with requesters having access to the internet using electronic means, such as email or web portal.
(b) Acknowledgment of requests. The Committee shall acknowledge the request and assign it an individualized tracking number if it will take longer than 10 working days to process. The Committee shall include in the acknowledgement a brief description of the records sought to allow requesters to more easily keep track of their requests.
(c) Grants of requests. When the Committee makes a determination to grant a request in full or in part, it shall notify the requester in writing. The Committee shall inform the requester of any fees charged under subpart 51-8.10 of this part and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The Committee must inform the requester of the availability of the FOIA Public Liaison to offer assistance.
(d) Adverse determinations of requests. If the Committee makes an adverse determination denying a request in any respect, the requester will be notified in writing. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
(e) Content of denial. The denial will be signed by the Executive Director or designee and include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;
(4) A statement that the denial may be appealed under subpart 51-8.8 of this part, and a description of the appeal requirements set forth therein; and
(5) A statement notifying the requester of the assistance available from the Committee's FOIA Public Liaison and the dispute resolution services offered by Office of Government Information Services (OGIS).
(a) Definitions.
(1) Confidential commercial information means commercial or financial information obtained by the Committee from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) The Committee will promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the Committee determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The Committee has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish notification.
(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:
(1) The Committee determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the Committee shall give the submitter written notice of any final decision to disclose the information and shall provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) The Committee will specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the Committee a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the Committee after the date of any disclosure decision shall not be considered by the Committee. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The Committee will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. (1) Whenever the Committee decides to disclose information over the objection of a submitter, the Committee will provide the submitter written notice, which will include:
(i) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(ii) A description of the information to be disclosed; and
(iii) A specified disclosure date, which must be a reasonable time after the notice, and not less than 10 business days after the date of the notice submission.
(iv) A statement that the submitter must notify the Committee immediately if the submitter intends to seek injunctive relief.
(2) Notwithstanding paragraph (e)(2) of this section, even if the submitter fails to respond to Committee's notice specified in paragraph (c) of this section, whenever the Committee decides to disclose the commercial information, the Committee will provide the submitter written notice of disclosure, as specified in paragraph (g)(1) of this section.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the Committee will promptly notify the submitter.
(i) Requester notification. The Committee will notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
(a) Requirements for making an appeal. A requester may appeal any adverse determinations to the Committee's Chief FOIA Officer. The contact information for the FOIA Officer is available at the Committee's website, at https://www.abilityone.gov/laws,_regulations_and_policy/foia.html. Appeals can be submitted through email or the web portal accessible on the FOIA web page. Examples of adverse determinations are provided in § 51-8.6(d). The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the response. The appeal should clearly identify the Committee's determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”
(b) Adjudication of appeals. (1) The Committee Executive Director or designee will act on behalf of the Committee on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the Committee's Chief FOIA Officer shall take appropriate action to ensure compliance with
(c) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds a Committee determination will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation. If a Committee's decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The Committee will thereafter further process the request in accordance with that appeal determination and respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If the Committee agrees to participate in the mediation services provided by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of a Committee's adverse determination, a requester generally must first submit a timely administrative appeal.
The Committee will preserve all correspondence pertaining to the requests it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. Records will not be destroyed while they are the subject of a pending request, appeal, or lawsuit under the Act.
(a) In general. The Committee will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under this section, the Committee may contact a requester for additional information. The Committee shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. The Committee will ordinarily collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order payable to the United States Department of Treasury.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The Committee's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information.
(2) Direct costs are those expenses that an agency incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
(4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution. The Committee may seek assurance from the requester that the request is in furtherance of scholarly research and agencies will advise requesters of their placement in this category.
(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.
(6) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the Committee shall also consider a requester's past publication record in making this determination.
(7) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 51-8.7, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
(c) Charging fees. In responding to FOIA requests, the Committee will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, the Committee should not add any additional costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. The Committee will charge search fees for all other requesters, subject to the restrictions of paragraph (d) of this section. The Committee may properly charge for time spent searching even if responsive records are not located or if the Committee determines that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees shall be as follows: Professional—$10.00; and clerical/administrative—$4.75.
(iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an agency at a Federal records center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. Duplication fees shall be charged to all requesters, subject to the restrictions of paragraph (d) of this section. The Committee shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the Committee in the form or format requested. Where photocopies are supplied, agencies will provide one copy per request at the cost of 25¢ per page. For copies of records produced on tapes, disks, or other media, the Committee will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall also pay the direct costs associated with scanning those materials. For other forms of duplication, agencies will charge the direct costs.
(3) Review. The Committee will charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by the Committee to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the Committee's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.
(2)(i) If the Committee fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(ii) through (iv) of this section.
(ii) If the Committee has determined that unusual circumstances, as defined by the FOIA, apply and the Committee provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(iii) If the Committee has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, the Committee may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken. The Committee must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the Committee must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the Committee may charge all applicable fees incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, Committee shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25.
(e) Notice of anticipated fees in excess of $25.00. (1) When the Committee determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the requesting party will be notified of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless a written statement from the requester has been received indicating a willingness to pay fees as high as those anticipated. If only a portion of the fee can be readily estimated, the Committee shall advise the requester accordingly. If the requester is a noncommercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(2) If the Committee notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or, in the case of a noncommercial use, requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Committee is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the Committee estimates that the total fee will exceed that amount, the Committee will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Committee will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) The Committee will make available the FOIA Public Liaison or other personnel to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if the Committee chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(g) Charging interest. The Committee may charge interest on any unpaid bill for processing FOIA requests starting on the 31st day following the date of billing the requester. Interest rates will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the Committee.
(h) Aggregating requests. When the Committee reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the Committee may aggregate those requests and charge accordingly. The Committee may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, the Committee will aggregate them only where there is a reasonable basis for determining that aggregating the requests is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters shall not be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, the Committee shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.
(2) When the Committee determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Committee may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee within 30 calendar days of the billing date, the Committee may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the Committee may require that the requester make an advance payment of the full amount of any anticipated fee before the Committee begins to process a new request or continues to process a pending request or any pending appeal. Where the Committee has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which the Committee requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Committee's fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the Committee shall inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(2) The Committee will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (k)(2)(i) through (ii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully informative about the Committee operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. The Committee ordinarily will presume that a representative of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Committee will consider the following criteria:
(A) The Committee must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or for profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the Committee must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) through (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Committee ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (k)(2)(i) through (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Committee and should address the criteria referenced above. A requester may submit a fee waiver request at a later time as long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.
Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Any information used in whole or in part in making a determination about an individual's rights, benefits, or privileges under the Committee programs, shall, to the extent practicable, be collected directly from the subject individual. At the time information is collected, the individual must be informed of the authority for collecting such information, whether providing the information is mandatory or voluntary, the purposes for which the information will be used, the routine uses as published in the
The Executive Director shall ensure that all records which are used by the agency to make determinations about any individual are maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual. Upon petition by an individual, the Executive Director shall provide the individual with the opportunity to review his records, and to request amendment of a portion which the individual believes is not accurate, relevant, timely or complete. Prior to dissemination of records about any individual to any person or to another agency, exclusive of disclosure pursuant to the Freedom of Information Act, the Executive Director shall make reasonable effort to ensure that such records are accurate, complete, timely, and relevant.
The Executive Director shall maintain in records only such information about an individual as is relevant and necessary to accomplish an agency purpose required by statute or executive order. Such records shall not contain any information describing how any individual exercises rights guaranteed by the First Amendment unless specifically authorized by statute, by the subject individual, or is pertinent to and within the scope of an authorized law enforcement activity. For these purposes, First Amendment rights include, but are not limited to, religious and political beliefs, freedom of speech, the press, assembly, and freedom to petition.
Any employee of the Committee involved in the design, development, operation or maintenance of any system of records, or in maintaining any record, shall review the provisions of 5 U.S.C. 552a and these regulations, and shall conduct himself accordingly with the rules of conduct concerning the protection of personal information outlined in 41 CFR 51-9.7, Disclosure of Information about an Individual.
The Executive Director shall ensure that appropriate administrative, technical and physical safeguards are established to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.
Committee records pertaining to an individual shall be made available to the subject individual to the greatest extent possible. Disclosures of records to other than the subject individual will be made only in accordance with subpart 51-9.2 of this part.
Systems of records maintained by the Committee which have been exempted from certain requirements of the Privacy Act are designated in subpart 51-9.6 of this part. An individual shall have access to all exempted records containing information about him under procedures outlined in subpart 51-9.3 of this part. Upon request, an individual shall receive an accounting of any disclosure of information about him.
No Committee member or employee of the Committee shall disclose any record to any person or to another agency without the express written consent of the subject individual unless the disclosure is:
(a) To Committee members or employees who have a need for the information in the official performance of their duties.
(b) Required under the provisions of the Freedom of Information Act.
(c) For a routine use as published in the annual notice in the
(d) To the Bureau of Census for uses pursuant to Title 13.
(e) To a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record and the record is to be transferred in a form that is not individually identifiable. The written statement should include as a minimum:
(1) A statement of the purpose for requesting the records, and
(2) Certification that the records will be used only for statistical purposes.
(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value.
(g) To another agency or instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought.
(h) To a person showing compelling circumstances affecting the health and safety of an individual (not necessarily the individual to whom the record pertains). Upon such disclosure, a notification of such shall be sent to the last known address of the individual.
(i) To either House of Congress or to a subcommittee or committee (joint or of either House, to the extent that the subject matter falls within their jurisdiction).
(j) To the Comptroller General, or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office, or
(k) Pursuant to the order of the court of competent jurisdiction.
(a) Except for disclosures made pursuant to paragraphs (a) and (b) of § 51-9.201 of this part, an accurate accounting of each disclosure will be made and retained for five years after the disclosure or for the life of the record, whichever is longer. The accounting will include the date, nature, and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made.
(b) The accounting will be recorded and maintained in any manner the Executive Director determines is satisfactory for the purposes of constructing a listing of all disclosures, and for providing a cross reference to the justification or basis upon which the disclosure was made, including written documentation required when records are released for statistical or law enforcement purposes and any written consents provided by the individual.
(c) Except for disclosures made to agencies or instrumentalities in law enforcement activities in accordance with § 51-9.201(e)(2) or for disclosures made from systems exempted from this requirement of the Act as outlined in subpart 51-9.6 of this part, the accounting of disclosures will be made available to the individual upon request. Procedures for requesting access to the accounting are outlined in subpart 51-9.3 of this part.
Any individual who wishes to determine if a system of records maintained by the Committee contains a record pertaining to him should direct a request to the Executive Director at the address indicated in the public notice describing the system of records which has been published in the
Records will be available for authorized access during normal business hours at the offices where the records are located. A requester should be prepared to identify himself through production of a driver's license, student or employee identification card, or other identification acceptable to the Executive Director. When the disclosure of records to the wrong individual would result in substantial harm, embarrassment, inconvenience, or unfairness to the subject individual, the Executive Director may require a notarized statement of identity. The Executive Director shall ensure that such times, places, and requirements for identification are not excessive and do not restrict individual access unduly.
(a) An individual must request access to his record in writing. The Executive Director shall accept by telephone only general inquiries for information regarding systems of records or procedures.
(b) A written request should be directed to the Executive Director as listed in the public notice describing the system of records. The individual should display clearly on the face of the request letter and on the face of the envelope the legend “Privacy Act Request”, and include the complete name and identifying number of the system as published in the
(c) An individual who wishes to have a person of his choosing accompany him in reviewing a record must sign a statement authorizing the disclosure of his record in the presence of another individual, if so requested by the Executive Director. An individual who intends to visit the Committee office in order to review a record should make an appointment with the Executive Director at least one week in advance.
(a) The Executive Director may require an individual who requests access to his medical or psychological record to designate a physician of his choice to whom he may disclose the individual's record if in the opinion of the Executive Director, disclosure directly to the individual might be harmful.
(b) The Executive Director shall mark records which should not be disclosed directly to the subject individual and shall inform an individual requesting such records of the requirement to designate a physician to whom the records can be disclosed.
(a) Upon receipt of a request for access to non-exempt records, the Executive Director shall make such records available to the individual, or shall acknowledge the request within ten working days. The acknowledgment shall indicate when the Executive Director will make the record available.
(b) If the Executive Director anticipates more than ten days in making a record available he also shall include in the acknowledgement specific reasons for the delay.
(c) If an individual's request for access does not contain sufficient information to permit the Executive Director to locate the record, the Executive Director shall request additional information from the individual and shall have ten working days following receipt of the additional information in which to make the record available, or to acknowledge receipt of the request and indicate when the record will be available. In no case shall more information be requested from the individual than that contained in the pertinent system of records.
(d) The Executive Director, at his discretion, either shall permit an individual to examine the original of the record, or shall provide the individual with a copy of the record. Fees shall be charged only for copies requested by the individual and not for copies provided to the individual for convenience of the agency.
(e) An individual may request to pick up a record in person or receive it by mail, directed to the name and address provided by the individual in his request. The Executive Director shall not make a record available to a third party for delivery to the subject individual, except in the case of medical records outlined in § 51-9.303-2.
(f) The Executive Director shall maintain in an individual's record an accounting of disclosures to the individual's documenting compliance with the request.
(g) The procedures for access to an accounting of disclosures is identical to the procedure for access to a record as set forth in this section.
(a) The Executive Director may deny any individual access to his record only on the grounds that the Committee has published rules in the
(b) Upon receipt of a request for access to an exempt system, the Executive Director shall prepare a letter denying access. The letter of denial shall contain a justification for denial of access which includes appropriate citation to the exemption provisions of these rules or other
The Executive Director shall make one copy of a record available to an employee without charge, and may waive the fee requirement for any other individual requesting records if the cost of collecting the fee is an unduly large part of, or greater than, the fee, or when furnishing the record without charge conforms to generally established business custom or is in the public interest.
The Executive Director shall provide one copy of a record to the individual at a fee prescribed in § 51-9.304-5. A reasonable number of additional copies will be provided for the applicable fee where reproduction services are not readily available.
When the Executive Director determines that the anticipated total fee is likely to exceed $25, he shall notify the individual that he must prepay the anticipated fee prior to making the records available. The Committee will remit the excess paid by the individual or bill the individual for an additional amount according to variations between the final fee charged and the amount prepaid.
Payment shall be by check or money order payable to the Committee for Purchase from People who are Blind or Severely Disabled and shall be addressed to the Executive Director.
(a) The fee for reproducing a copy of a record (by routine electrostatic copying) up to and including material 8
(b) The fee for reproducing a copy of a record over 8
(a) An individual who desires to amend any record or information pertaining to him should direct a written request to the Executive Director, Committee for Purchase from People who are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
(b) A request should bear the legend “Privacy Act—Request to Amend Record” prominently marked on both the face of the request letter and the envelope.
(a) Upon receipt of a request to amend a record, the responsible official, whenever practicable shall complete the review and advise the individual of the results within ten working days. If a determination cannot be made within ten working days, the Executive Director, within ten working days, shall send the individual a written acknowledgment of receipt of the request including a description of the request and the date when the requester may except to be advised of action taken on the request. Except in unusual circumstances, the Executive Director shall complete the review within 30 working days. In unusual circumstances, causing delay beyond the 30 day limit, the Executive Director shall inform the individual in writing of the cause of delay, the actions taken to review the record, and the date the Executive Director anticipates the review to be complete.
(b) When reviewing a record in response to a request to amend, the Executive Director shall assess the accuracy, relevance, timeliness, and completeness of the record to ensure fairness to the individual in any determination made on the basis of the record. With respect to a request to delete information, the Executive Director also shall review the request and record to determine whether the information is relevant and necessary to accomplish an agency purpose required to be accomplished by law or Executive Order.
If the Executive Director agrees to amend a record, he promptly shall make the necessary corrections to the record and shall send a copy of the corrected record to the individual. Where an accounting of disclosure has been maintained, he shall advise all previous recipients of the record of the fact that a correction was made of/and the substance of the correction. Where practicable, the Executive Director shall send a copy of the corrected record to previous recipients.
(a) The Executive Director, or any official acting for him, shall have the authority to issue an initial refusal of a request to amend a record within his custody and shall be responsible for the initial adverse agency determination.
(b) If the Executive Director, after reviewing the request to amend a record, determines not to amend the record, he promptly shall advise the requester in writing of the determination. The refusal letter (1) shall state the reasons for refusal, (2) shall state the requester's right to seek a review of the initial determination, and (3) shall state the procedures for requesting such review.
(a) An individual who disagrees with the refusal to amend may appeal that refusal with the Committee. An individual should address a request for review of a refusal to amend any record, exclusive of a personnel record of a current Committee employee to the Chairperson, Committee for Purchase from People who are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
(b) A request to review must be in writing and should include a copy of the initial request and refusal to amend. The request to review should bear the legend “Privacy Act—Request for Review of Refusal to Amend” on both the face of the letter and the envelope. The Chairperson shall complete the review and make a determination no later than 30 working days after receipt of the request for review, unless a determination is made to extend the 30 day period. If a determination is made to extend the 30 day period, the Chairperson shall notify the requester in writing of the reasons for the delay and the date when the review will be completed.
(c) Upon receipt of a request to review a refusal to amend, the Chairperson shall undertake an independent review of the request and initial determination. If, after conducting the review, the Chairperson agrees to amend, he shall notify the requester promptly in writing of the determination, amend the record, and notify previous recipients in accordance with § 51-9.403.
(d) If, after conducting the review, the Chairperson agrees with the refusal to amend the record, he shall notify the requester promptly in writing of the determination. The notification shall include the reasons for the refusal, and shall advise the individual of his right to file a statement of disagreement, and the procedures for doing so. The Chairperson also shall advise the individual that such statement of disagreement will be made available in any subsequent disclosures of the record together with a concise statement summarizing reasons for refusal where the responsible official deems it appropriate. The Chairperson also will advise the individual of his right to bring civil action against the agency in a district court of the United States.
(a) No later than 30 days prior to the establishment of a new systems of records, the Executive Director shall submit a copy of the proposal to the President of the Senate, the Speaker of the House of Representatives, and the Director of the Office of Management and Budget for their evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals of the disclosure of information relating to such individuals.
(b) No later than 30 days prior to the alteration of a system of records, the Executive Director for the maintenance of that system of records shall submit a copy of the proposal to the President of the Senate, the Speaker of the House of Representatives, and the Director of the Office of Management and Budget for their evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals of the disclosure of information relating to such individuals.
(a) When the Executive Director receives notice that the Senate, the House of Representatives, and the Office of Management and Budget do not object to the establishment of a new system of records, or the alteration of an existing system of records, or
(b) When no fewer than 30 days elapse from the submission of the proposal to the Senate, the House of Representatives, and the Office of Management and Budget, without receipt by the Executive Director of an objection to the proposal, then a notice shall be published in the
Systems of records proposed to be established or altered in accordance with the provision of the subpart shall be effective no sooner than 30 days from the publication of notice required by § 51-9.502.
(a) Pursuant to section (j) of the Privacy Act of 1974, the Committee has deemed it necessary to adopt the following exemptions to specified provisions of the Privacy Act:
(1) Pursuant to 5 U.S.C. 552a(j)(2), the AbilityOne/OIG-001 Case Management System, System of Records is exempt from the following provisions of the Privacy Act: 5 U.S.C. 552a (c)(3)-(4); (d); (e)(1)-(3); (e)(4)(G)-(I); (e)(5); (e)(8); and (f)-(g) and from 41 CFR 51-9.1, 51-9.2, 51-9.3, 51-9.4, and 51-9.7.
(2) [Reserved]
(b) Pursuant to section (k) of the Privacy Act of 1974, the Committee has deemed it necessary to adopt the following exemptions to specified provisions of the Privacy Act:
(1) Pursuant to 5 U.S.C. 552a(k)(2), AbilityOne/OIG-001 Case Management System, System of Records is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), (e)(4)(G)-(I), and (f) and from 41 CFR 51-9.1, 51-9.2, 51-9.3, 51-9.4, and 51-9.7.
(2) [Reserved]
(c) Exemptions from the subsections are justified because application of these provisions would present a serious impediment to law enforcement. Access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, of the existence of that investigation; of the nature and scope of the information and evidence obtained as to his activities; of the identity of confidential sources, witnesses, and law enforcement personnel, and of information that may enable the subject to avoid detection or apprehension. These factors would present a serious impediment to effective law enforcement where they prevent the successful completion of the investigation, endanger the physical safety of confidential sources, witnesses, and law enforcement personnel, and/or lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony. In addition, granting access to such information could disclose security-sensitive or confidential business information or information that would constitute an unwarranted invasion of the personal privacy of third parties. Finally, access to the records could result in the release of properly classified information which would compromise the national defense or disrupt foreign policy. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. It is not possible to detect relevance or necessity of specific information in the early stages of a civil, criminal or other law enforcement investigation, case, or matter, including investigations in which use is made of properly classified information. Relevance and necessity are questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established.
(a) Every Committee member and employee who is involved in the design, development, operation, or maintenance of a system of records, or who has access to a system of records, shall familiarize himself with the requirements of the Privacy Act of 1974 (5 U.S.C. 552a) and the Committee regulations and orders issued thereunder and apply these requirements to all systems of records.
(b) No Committee member or employee shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains, unless the disclosure would be to a recipient specified in paragraph (c) of this section. The term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. The term “system of records” means a group of any records under the control of the Committee from which information is retrieved by the name of the individual or by some identifying number symbol, or other identifying particular assigned to the individual. The term “routine use” means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected. The term “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence. The term “agency” is defined in 5 U.S.C. 552(e).
(c) An employee may disclose any record which is contained in a system of records, without a written request by and without the prior written consent of the individual to whom the record pertains, if the disclosure would be:
(1) To those Committee members and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
(2) Required under section 552 of Title 5 U.S.C.;
(3) For a routine use as described in paragraph (b) of this section;
(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13 U.S.C.;
(5) To a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(9) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(d) No Committee member or employee shall maintain a record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
(e) No Committee member or employee shall sell or rent an individual's name and address unless such action is specifically authorized by law.
(f) A Committee member or employee, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by paragraph a of this section or by any other rules or regulations established under the Privacy Act of 1974, and who (1) knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, or (2) willfully maintains a system of records without meeting the notice requirements of the Privacy Act of 1974, or (3) knowingly and willfully requests or obtains any record concerning an individual from any agency under false pretenses, is subject to criminal penalties and administrative sanctions. Any Committee member or employee who (i) makes a determination not to amend an individual's record in accordance with the Privacy Act of 1974, or (ii) refuses to comply with an individual's request to gain access to review, and obtain a copy of any information pertaining to him, or (iii) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities or of benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual, or (iv) fails to comply with any provision of the Privacy Act of 1974 or any Committee regulation implementing it, subjects the Committee to civil penalties and himself to administrative sanctions.
This part effectuates 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.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
Asssistant 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 the agency. For example, auxiliary aids useful for persons with impaired vision include readers, brailled materials, audio recordings, telecommunications devices 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.
Handicapped person 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 alocoholism.
(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 subparagraph (1) of this definition but is treated by the agency as having such an impairment.
Historic preservation programs 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.
Qualified handicapped person means—
(1) With respect to preschool, elementary, or secondary education services provided by the agency, a handicapped person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can acheive 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;
(3) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4) Qualified handicapped person is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 51-10.140.
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), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies 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.
(a) The agency shall, by August 24, 1987, 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 handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
(1) a description of areas examined and any problems identified, and
(2) a description of any modifications made.
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 head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person 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.
(b)(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 handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person 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 handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person 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 handicapped person 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 arrangments, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program activity with respect to handicapped persons.
(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 handicapped persons 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 handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified handicapped persons to discrimination 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 this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person 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.
Except as otherwise provided in § 51-10.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, 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.
(a) 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 handicapped persons. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) 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; or
(3) 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 § 51-10.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head 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 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 handicapped persons receive the benefits and services of the program or activity.
(b) Methods—(1) General. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of the 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 handicapped persons. 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 handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 51-10.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to handicapped persons. In cases where a physical alteration to an historic property is not required because of § 51-10.150(a)(2) or (a)(3), alternative methods of achieving program accessibility include—
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by October 21, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by August 22, 1989, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by February 23, 1987 months after the effective date], a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, 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—
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section 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
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. 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.
(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 a handicapped person 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 handicapped person.
(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 person (TDD's) or equally effective telecommunication systems shall be used.
(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 adminstrative 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 § 51-10.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head 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 this section 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, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) 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).
(c) The Executive Director shall be responsible for coordinating the implementation of this section. Complaints may be sent to the Executive Director, Committee for Purchase from People who are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 51-10.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) 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.
(a) This part sets forth policies and procedures of the Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) regarding the testimony of current and former employees as witnesses and the production or disclosure of Committee documents or information:
(1) In all Federal and State proceedings in which the United States is a party; and
(2) In all Federal and State proceedings in which the United States is not a party, when a demand pursuant to a subpoena, order or request (collectively referred to in this part as a “demand”) of a court or other authority is issued for such material, testimony, or information.
(b) The Committee intends these provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize the possibility of involving the Committee in controversial issues not related to its functions;
(3) Prevent the misuse of the Committee's employees as involuntary expert witnesses for private interests or as inappropriate expert witnesses as to the state of the law;
(4) Maintain the Committee's impartiality among private litigants where neither the Committee nor any other Federal entity is a named party; and
(5) Protect sensitive, confidential information and the deliberative processes of the Committee.
(c) In providing for these requirements, the Committee does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of the Committee. The procedures specified in this part, or the failure of any Committee employee to follow the procedures specified in this part, are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States.
This part applies to demands and requests to employees of the Committee in legal proceedings, for factual or expert testimony relating to official information or for production of official records or information. However, it does not apply to:
(a) Demands for a current Committee employee to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of the Committee;
(b) Demands for a former Committee employee to testify as to matters in which the former employee was not directly or materially involved while at the Committee;
(c) Requests for the release of non-exempt records under the Freedom of Information Act, 5 U.S.C. 552 (41 CFR part 51-8), or the Privacy Act, 5 U.S.C. 552(a) (41 CFR part 51-9); and
(d) Congressional or Government Accountability Office (GAO) demands and requests for testimony or records.
As used in this part:
Committee means the Committee for Purchase From People Who Are Blind or Severely Disabled.
Committee employee or employee means:
(1) Any current or former officer or employee of the Committee;
(2) Any other individual hired through contractual agreement by or on behalf of the Committee or who has performed or is performing services under such an agreement for the Committee; and
(3) Any individual who served or is serving in any consulting or advisory capacity to the Committee, whether formal or informal.
(4) Provided, that this definition does not include persons who are no longer employed by the Committee and who are retained or hired as expert witnesses or who agree to testify about general matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the Committee.
Demand means a subpoena, request, or an order or other command of a court or other competent authority, for the production, disclosure, or release of records or information related to, for the appearance and testimony of a Committee employee that is issued in a legal proceeding.
General Counsel means Committee General Counsel or Committee employee to whom the General Counsel has delegated authority to act under this part.
Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer, or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of discovery, litigation and informal requests by attorneys or others involved in legal proceedings seeking interviews or the like.
Records or official records and information mean all documents and materials, however stored, that is in the custody and control of the Committee, relating to information in the custody and control of the Committee, or acquired by a Committee employee in the performance of his or her official duties or because of his or her official status, while such individual was employed.
Request means any informal request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court or other competent authority.
Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, recorded interviews, and statements made by an individual in connection with a legal proceeding.
(a) In any Federal or State case or matter in which the United States is not a party, no employee or former employee of the Committee shall, in response to a demand, produce any record contained in the files of the Committee, or disclose any information relating to or based upon record contained in the files of the Department, or disclose any information or produce any record acquired as part of the performance of that person's official duties or because of that person's official status without prior written approval of the General Counsel in accordance with § 51-11.9.
(1) Whenever a demand is made upon an employee or former employee as described in this paragraph (a), the employee shall immediately notify the General Counsel. The General Counsel shall follow procedures set forth in § 51-11.8.
(2) If oral testimony is sought by a demand in any case or matter in which the United States is not a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by his attorney, setting forth a summary of the testimony sought and its relevance to the proceeding, must be furnished to the General Counsel. Any authorization for testimony by a present or former employee of the Committee shall be limited to the scope of the demand as summarized in such statement.
(3) When information other than oral testimony is sought by a demand, the General Counsel shall request a summary of the information sought and its relevance to the proceeding.
(b) In any Federal or State case or matter in which the United States is a party, the General Counsel is authorized to reveal and furnish to any person, including an actual or prospective witness, a grand jury, counsel, or a court, either during or preparatory to a proceeding, such testimony, and relevant unclassified material, documents, or information secured by the employee or former employee of the Committee, as the General Counsel shall deem necessary or desirable to the discharge of the attorney's official duties: Provided, Such an attorney shall consider, with respect to any disclosure, the factors set forth in § 51-11.7.
(1) If oral testimony is sought by a demand in a case or matter in which the United States is a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by the party's attorney setting forth a summary of the testimony sought must be furnished to the agency attorney handling the case or matter.
(2) [Reserved]
(c) In appropriate cases, the General Counsel shall notify the United States Department of Justice (DOJ) of the demand and coordinate with the DOJ to file any appropriate motions or other pleadings.
(a) Written demands directed to the Committee or requests for official records, information or testimony shall be served in accordance with the requirements of the Federal Rules of Civil or Criminal Procedure, or applicable State procedures, as appropriate. If the demand is served by U.S. mail, it should be addressed to the General Counsel, Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, VA 22202. The Committee's acceptance of service of a demand shall not constitute an admission or waiver of any objection with respect to the propriety of jurisdiction, service of process, venue or any other defense in law or equity available under applicable law.
(b) If any doubt exists, whether a demand relates to purely personal matters or arises out of the performance of official duties, copies of the demand may be delivered to the General Counsel for such determination.
Compliance with the following requirements is required when issuing demands or requests for official records, information or testimony.
(a) Requests must be in writing and must be submitted to the General Counsel. If a subpoena is served on the Committee or a Committee employee before submitting a written request and receiving a final determination, the Committee will object to the subpoena on grounds that it was not submitted in accordance with this part.
(b) Written requests must contain the following information:
(1) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show the relevance of the information sought;
(3) A detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought;
(4) A statement as to how the need for the information outweighs the need to maintain any confidentiality of the information and outweighs the burden on the Committee to produce the records or provide testimony;
(5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a Committee employee, such as a retained expert;
(6) If testimony is requested, the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used in lieu of testimony;
(7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;
(8) The name, address, and telephone number of counsel to each party in the case; and
(9) An estimate of the amount of time that the requester and other parties will require with each Committee employee for time spent by the employee to prepare for testimony, in travel, and for attendance at the legal proceeding.
(c) The Committee reserves the right to require additional information to complete any request where appropriate.
(d) Requests should be submitted at least 45 calendar days before the date that records or testimony is required. Requests submitted in less than 45 calendar days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request.
The General Counsel in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to an appropriate demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;
(c) The Committee has an interest in the decision that may be rendered in the legal proceeding;
(d) Allowing such testimony or production of records would assist or hinder the Committee in performing its statutory duties or use the Committee resources in a way that will interfere with the ability of the Committee employees to do their regular work;
(e) Allowing such testimony or production of records would be in the best interest of the Committee or the United States;
(f) The records or testimony can be obtained from other sources;
(g) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose;
(h) Disclosure would violate a statute, Executive order or regulation;
(i) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential commercial or financial information, otherwise protected information, or would otherwise be inappropriate for release;
(j) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceedings, or compromise constitutional rights;
(k) Disclosure would result in the Committee appearing to favor one private litigant over another private litigant;
(l) Disclosure relates to documents that originate from another agency;
(m) A substantial Government interest is implicated;
(n) The demand or request is within the authority of the party making it;
(o) The demand improperly seeks to compel a Committee employee to serve as an expert witness for a private interest;
(p) The demand improperly seeks to compel a Committee employee to testify as to a matter of law; and/or
(q) The demand or request is sufficiently specific to be answered.
(a) After service of a demand or request, the General Counsel will review the demand or request and, in accordance with the provisions of this part, determine whether, or under what conditions, to authorize an employee to testify on matters relating to Committee records and/or produce records.
(b) The Committee will process requests in the order in which they are received. Absent exigent or unusual circumstances, the Committee will respond within 45 calendar days from the date of receipt. The time for response will depend upon the scope of the request.
(c) The General Counsel may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of the Committee or the United States or for other good cause.
The General Counsel makes the final determination on demands and requests for production of official records and information or testimony. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and the court or other authority of the final determination, the reasons for the grant or denial of the demand or request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of a Committee employee.
(a) Conditions or restrictions may be imposed on the testimony of the Committee employees including, for example, limiting the areas of testimony or requiring the requester and other parties to the legal proceeding to agree that they will seek to file the transcript of the testimony under seal and that it will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript or testimony be provided to the Committee at the requester's expense.
(b) The Committee may offer the employee's written declaration in lieu of testimony.
(c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not:
(1) Disclose confidential or privileged information;
(2) Testify as to any information outside the scope of the General Counsel's authorization (see § 51-11.7); or
(3) For a current Committee employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the Committee unless testimony is being given on behalf of the United States whether or not the United States is a party.
(a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the Committee may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement.
(b) If the General Counsel so determines, original Committee records may be presented for examination in response to a demand or request, but they are not to be presented as evidence or otherwise used in a manner by which they could lose their identity as official Committee records, and they are not to be marked or altered. In lieu of the original records, certified copies will be presented for evidentiary purposes.
If a response to a demand or request is required before the General Counsel can make the determination previously referred to, the General Counsel when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the demand or request is being reviewed, and seek a stay of the demand or request pending a final determination.
If the court or other competent authority fails to stay the demand, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear at the stated time and place, produce a copy of this part, state that the employee has not been authorized to provide the requested testimony or produce documents, and respectfully decline to comply with the demand, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A written response may be offered to a request, or to a demand, if permitted by the court or other competent authority.
(a) Generally. The General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs to the Committee.
(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the demand or request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowance, and benefits). Fees for duplication will be the same as those charged by the Committee in its Freedom of Information Act regulations at 41 CFR part 51-8.
(c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court's rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the Federal district court closest to the location where the witness will appear. Such fees will include cost of time spent by the witness to prepare for testimony, travel time and expenses, and for attendance in the legal proceeding.
(d) Payment of fees. Witness fees for current Committee employees and any records certification fees shall be paid by check or money order presented to the Committee made payable to the United States Department of Treasury. Applicable fees for former Committee employees' testimony must be paid directly to the former employee in accordance with 28 U.S.C. 1821 or other applicable statutes.
(e) Certification (authentication) of copies of records. The Committee Records Manager may certify that records are true copies in order to facilitate their use as evidence. Certification requests require 45 calendar days for processing and a fee of $15.00 for each document certified.
(f) Waiver or reduction of fees. The General Counsel, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records.
(g) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less.
(a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the Committee, or as ordered by a Federal court after the Committee has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former Committee employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current Committee employee who testifies or produces official records and information in violation of this part may be subject to disciplinary action.
The purpose of the regulations in this part is to achieve the aims of parts II, III, and IV of Executive Order 11246 for the promotion and insuring of equal opportunity for all persons, without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin, employed or seeking employment with Government contractors or with contractors performing under federally assisted construction contracts. The regulations in this part apply to all contracting agencies of the Government and to contractors and subcontractors who perform under Government contracts, to the extent set forth in this part. The regulations in this part also apply to all agencies of the Government administering programs involving Federal financial assistance which may include a construction contract, and to all contractors and subcontractors performing under construction contracts which are related to any such programs. The procedures set forth in the regulations in this part govern all disputes relative to a contractor's compliance with his obligations under the equal opportunity clause regardless of whether or not his contract contains a “Disputes” clause. Failure of a contractor or applicant to comply with any provision of the regulations in this part shall be grounds for the imposition of any or all of the sanctions authorized by the order. The regulations in this part do not apply to any action taken to effect compliance with respect to employment practices subject to title VI of the Civil Rights Act of 1964. The rights and remedies of the Government hereunder are not exclusive and do not affect rights and remedies provided elsewhere by law, regulation, or contract; neither do the regulations limit the exercise by the Secretary or Government agencies of powers not herein specifically set forth, but granted to them by the order.
The Director has been delegated authority and assigned responsibility for carrying out the responsibilities assigned to the Secretary under the Executive order. All correspondence regarding the order should be directed to the Director, Office of Federal Contract Compliance Programs, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
Administering agency means any department, agency and establishment in the executive branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.
Administrative law judge means an administrative law judge appointed as provided in 5 U.S.C. 3105 and subpart B of part 930 of Title 5 of the Code of Federal Regulations (see 37 FR 16787) and qualified to preside at hearings under 5 U.S.C. 557.
Agency means any contracting or any administering agency of the Government.
Applicant means an applicant for Federal assistance involving a construction contract, or other participant in a program involving a construction contract as determined by regulation of an administering agency. The term also includes such persons after they become recipients of such Federal assistance.
Compensation means any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement.
Compensation information means the amount and type of compensation provided to employees or offered to applicants, including, but not limited to, the desire of the contractor to attract and retain a particular employee for the value the employee is perceived to add to the contractor's profit or productivity; the availability of employees with like skills in the marketplace; market research about the worth of similar jobs in the relevant marketplace; job analysis, descriptions, and evaluations; salary and pay structures; salary surveys; labor union agreements; and contractor decisions, statements and policies related to setting or altering employee compensation.
Compliance evaluation means any one or combination of actions OFCCP may take to examine a Federal contractor or subcontractor's compliance with one or more of the requirements of Executive Order 11246.
Construction work means the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.
Contract means any Government contract or subcontract or any federally assisted construction contract or subcontract.
Contracting agency means any department, agency, establishment, or instrumentality in the executive branch of the Government, including any wholly owned Government corporation, which enters into contracts.
Contractor means, unless otherwise indicated, a prime contractor or subcontractor.
Director means the Director, Office of Federal Contract Compliance Programs (OFCCP) of the United States Department of Labor, or his or her designee.
Equal opportunity clause means the contract provisions set forth in § 60-1.4 (a) or (b), as appropriate.
Essential job functions—(1) In general. The term essential job functions means the fundamental job duties of the employment position an individual holds.
(2) A job function may be considered essential if:
(i) The access to compensation information is necessary in order to perform that function or another routinely assigned business task; or
(ii) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
(3) The application or interpretation of the “essential job functions” definition in this part is limited to the discrimination claims governed by Executive Order 13665 and its implementing regulations.
Federally assisted construction contract means any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.
Government means the government of the United States of America.
Government contract means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. The term “personal property,” as used in this section, includes supplies, and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements). The term “nonpersonal services” as used in this section includes, but is not limited to, the following services: Utilities, construction, transportation, research, insurance, and fund depository. The term Government contract does not include:
(1) Agreements in which the parties stand in the relationship of employer and employee; and
(2) Federally assisted construction contracts.
Internet Applicant. (1) Internet Applicant means any individual as to whom the following four criteria are satisfied:
(i) The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
(ii) The contractor considers the individual for employment in a particular position;
(iii) The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and,
(iv) The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
(2) For purposes of paragraph (1)(i) of this definition, “submits an expression of interest in employment through the Internet or related electronic data technologies,” includes all expressions of interest, regardless of the means or manner in which the expression of interest is made, if the contractor considers expressions of interest made through the Internet or related electronic data technologies in the recruiting or selection processes for that particular position.
(i) Example A: Contractor A posts on its web site an opening for a Mechanical Engineer position and encourages potential applicants to complete an on-line profile if they are interested in being considered for that position. The web site also advises potential applicants that they can send a hard copy resume to the HR Manager with a cover letter identifying the position for which they would like to be considered. Because Contractor A considers both Internet and traditional expressions of interest for the Mechanical Engineer position, both the individuals who completed a personal profile and those who sent a paper resume and cover letter to Contractor A meet this part of the definition of Internet Applicant for this position.
(ii) Example B: Contractor B posts on its web site an opening for the Accountant II position and encourages potential applicants to complete an on-line profile if they are interested in being considered for that position. Contractor B also receives a large number of unsolicited paper resumes in the mail each year. Contractor B scans these paper resumes into an internal resume database that also includes all the on-line profiles that individuals completed for various jobs (including possibly for the Accountant II position) throughout the year. To find potential applicants for the Accountant II position, Contractor B searches the internal resume database for individuals who have the basic qualifications for the Accountant II position. Because Contractor B considers both Internet and traditional expressions of interest for the Accountant II position, both the individuals who completed a personal profile and those who sent a paper resume and cover letter to the employer meet this part of the definition of Internet Applicant for this position.
(iii) Example C: Contractor C advertises for Mechanics in a local newspaper and instructs interested candidates to mail their resumes to the employer's address. Walk-in applications also are permitted. Contractor C considers only paper resumes and application forms for the Mechanic position, therefore no individual meets this part of the definition of an Internet Applicant for this position.
(3) For purposes of paragraph (1)(ii) of this definition, “considers the individual for employment in a particular position,” means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position. A contractor may establish a protocol under which it refrains from considering expressions of interest that are not submitted in accordance with standard procedures the contractor establishes. Likewise, a contractor may establish a protocol under which it refrains from considering expressions of interest, such as unsolicited resumes, that are not submitted with respect to a particular position. If there are a large number of expressions of interest, the contractor does not “consider the individual for employment in a particular position” by using data management techniques that do not depend on assessment of qualifications, such as random sampling or absolute numerical limits, to reduce the number of expressions of interest to be considered, provided that the sample is appropriate in terms of the pool of those submitting expressions of interest.
(4) For purposes of paragraph (1)(iii) of this definition, “basic qualifications” means qualifications—
(i)(A) That the contractor advertises (e.g., posts on its web site a description of the job and the qualifications involved) to potential applicants that they must possess in order to be considered for the position, or
(B) For which the contractor establishes criteria in advance by making and maintaining a record of such qualifications for the position prior to considering any expression of interest for that particular position if the contractor does not advertise for the position but instead uses an alternative device to find individuals for consideration (e.g., through an external resume database), and
(ii) That meet all of the following three conditions:
(A) The qualifications must be noncomparative features of a job seeker. For example, a qualification of three years' experience in a particular position is a noncomparative qualification; a qualification that an individual have one of the top five number of years' experience among a pool of job seekers is a comparative qualification.
(B) The qualifications must be objective; they do not depend on the contractor's subjective judgment. For example, “a Bachelor's degree in Accounting” is objective, while “a technical degree from a good school” is not. A basic qualification is objective if a third-party, with the contractor's technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor's judgment.
(C) The qualifications must be relevant to performance of the particular position and enable the contractor to accomplish business-related goals.
(5) For purposes of paragraph (1)(iv) of this definition, a contractor may conclude that an individual has removed himself or herself from further consideration, or has otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual, based on the individual's express statement that he or she is no longer interested in the position, or on the individual's passive demonstration of disinterest shown through repeated non-responsiveness to inquiries from the contractor about interest in the position. A contractor also may determine that an individual has removed himself or herself from further consideration or otherwise indicated that he or she is no longer interested in the position for which the contractor has considered the individual based on information the individual provided in the expression of interest, such as salary requirements or preferences as to type of work or location of work, provided that the contractor has a uniformly and consistently applied policy or procedure of not considering similarly situated job seekers. If a large number of individuals meet the basic qualifications for the position, a contractor may also use data management techniques, such as random sampling or absolute numerical limits, to limit the number of individuals who must be contacted to determine their interest in the position, provided that the sample is appropriate in terms of the pool of those meeting the basic qualifications.
Minority group as used herein shall include, where appropriate, female employees and prospective female employees.
Modification means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments, and extensions.
Order, Executive order, or Executive Order 11246 means parts II, III, and IV of the Executive Order 11246 dated September 24, 1965 (30 FR 12319), any Executive order amending such order, and any other Executive order superseding such order.
Person means any natural person, corporation, partnership, unincorporated association, State or local government, and any agency, instrumentality, or subdivision of such a government.
Prime contractor means any person holding a contract and, for the purposes of subpart B of this part, any person who has held a contract subject to the order.
Recruiting and training agency means any person who refers workers to any contractor or subcontractor or who provides for employment by any contractor or subcontractor.
Rules, regulations, and relevant orders of the Secretary of Labor used in paragraph (4) of the equal opportunity clause means rules, regulations, and relevant orders of the Secretary of Labor or his designee issued pursuant to the order.
Secretary means the Secretary of Labor, U.S. Department of Labor, or his or her designee.
Site of construction means the general physical location of any building, highway, or other change or improvement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to the contract or subcontract.
Subcontract. (1) Subcontract means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
(i) For the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts; or
(ii) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed; and
(2) Does not include an agreement between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(i) An agreement means a relationship between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(ii) A health care provider is a physician, hospital, or other individual or entity that furnishes health care services or supplies.
(iii) A health organization is a voluntary association, corporation, partnership, managed care support contractor, or other nongovernmental organization that is lawfully engaged in providing, paying for, insuring, or reimbursing the cost of health care services or supplies under group insurance policies or contracts, medical or hospital service agreements, membership or subscription contracts, network agreements, health benefits plans duly sponsored or underwritten by an employee organization or association of organizations and health maintenance organizations, or other similar arrangements, in consideration of premiums or other periodic charges or payments payable to the health organization.
Subcontractor means any person holding a subcontract and, for the purposes of subpart B of this part, any person who has held a subcontract subject to the order. The term “first-tier subcontractor” refers to a subcontractor holding a subcontract with a prime contractor.
United States as used herein shall include the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Panama Canal Zone, and the possessions of the United States.
United States, as used herein, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.
(a) Government contracts. Except as otherwise provided, each contracting agency shall include the following equal opportunity clause contained in section 202 of the order in each of its Government contracts (and modifications thereof if not included in the original contract):
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
(b) Federally assisted construction contracts. (1) Except as otherwise provided, each administering agency shall require the inclusion of the following language as a condition of any grant, contract, loan, insurance, or guarantee involving federally assisted construction which is not exempt from the requirements of the equal opportunity clause:
The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(2) [Reserved]
(c) Subcontracts. Each nonexempt prime contractor or subcontractor shall include the equal opportunity clause in each of its nonexempt subcontracts.
(d) Inclusion of the equal opportunity clause by reference. The equal opportunity clause may be included by reference in all Government contracts and subcontracts, including Government bills of lading, transportation requests, contracts for deposit of Government funds, and contracts for issuing and paying U.S. savings bonds and notes, and such other contracts and subcontracts as the Director of OFCCP may designate.
(e) Incorporation by operation of the order. By operation of the order, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the order and the regulations in this part to include such a clause whether or not it is physically incorporated in such contracts and whether or not the contract between the agency and the contractor is written.
(f) Adaptation of language. Such necessary changes in language may be made in the equal opportunity clause as shall be appropriate to identify properly the parties and their undertakings.
(a) General—(1) Transactions of $10,000 or under. Contracts and subcontracts not exceeding $10,000, other than Government bills of lading, and other than contracts and subcontracts with depositories of Federal funds in any amount and with financial institutions which are issuing and paying agents for U.S. savings bonds and savings notes, are exempt from the requirements of the equal opportunity clause. In determining the applicability of this exemption to any federally assisted construction contract, or subcontract thereunder, the amount of such contract or subcontract rather than the amount of the Federal financial assistance shall govern. No agency, contractor, or subcontractor shall procure supplies or services in a manner so as to avoid applicability of the equal opportunity clause: Provided, that where a contractor has contracts or subcontracts with the Government in any 12-month period which have an aggregate total value (or can reasonably be expected to have an aggregate total value) exceeding $10,000, the $10,000 or under exemption does not apply, and the contracts are subject to the order and the regulations issued pursuant thereto regardless of whether any single contract exceeds $10,000.
(2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite quantities (including, but not limited to, open end contracts, requirement-type contracts, Federal Supply Schedule contracts, “call-type” contracts, and purchase notice agreements), the equal opportunity clause shall be included unless the purchaser has reason to believe that the amount to be ordered in any year under such contract will not exceed $10,000. The applicability of the equal opportunity clause shall be determined by the purchaser at the time of award for the first year, and annually thereafter for succeeding years, if any. Notwithstanding the above, the equal opportunity clause shall be applied to such contract whenever the amount of a single order exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration, regardless of the amounts ordered, or reasonably expected to be ordered in any year.
(3) Work outside the United States. Contracts and subcontracts are exempt from the requirements of the equal opportunity clause with regard to work performed outside the United States by employees who were not recruited within the United States.
(4) Contracts with State or local governments. The requirements of the equal opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. In addition, any agency, instrumentality or subdivision of such government, except for educational institutions and medical facilities, are exempt from the requirements of filing the annual compliance report provided for by § 60-1.7(a)(1) and maintaining a written affirmative action compliance program prescribed by § 60-1.40 and part 60-2 of this chapter.
(5) Contracts with religious entities. Section 202 of Executive Order 11246, as amended, shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.
(6) Contracts with certain educational institutions. It shall not be a violation of the equal opportunity clause for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. The primary thrust of this provision is directed at religiously oriented church-related colleges and universities and should be so interpreted.
(7) Work on or near Indian reservations. It shall not be a violation of the equal opportunity clause for a construction or nonconstruction contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation. The use of the word “near” would include all that area where a person seeking employment could reasonably be expected to commute to and from in the course of a work day. Contractors or subcontractors extending such a preference shall not, however, discriminate among Indians on the basis of religion, sex, or tribal affiliation, and the use of such a preference shall not excuse a contractor from complying with the other requirements contained in this chapter.
(b) Specific contracts and facilities—(1) Specific contracts. The Director may exempt an agency or any person from requiring the inclusion of any or all of the equal opportunity clause in any specific contract or subcontract when he deems that special circumstances in the national interest so require. The Director may also exempt groups or categories of contracts or subcontracts of the same type where he finds it impracticable to act upon each request individually or where group exemptions will contribute to convenience in the administration of the order.
(2) Facilities not connected with contracts. The Director may exempt from the requirements of the equal opportunity clause any of a prime contractor's or subcontractor's facilities which he finds to be in all respects separate and distinct from activities of the prime contractor or subcontractor related to the performance of the contract or subcontract, provided that he also finds that such an exemption will not interfere with or impede the effectuation of the order.
(c) National security. Any requirement set forth in these regulations in this part shall not apply to any contract or subcontract whenever the head of an agency determines that such contract or subcontract is essential to the national security and that its award without complying with such requirement is necessary to the national security. Upon making such a determination, the head of the agency will notify the Director in writing within 30 days.
(d) Withdrawal of exemption. When any contract or subcontract is of a class exempted under this section, the Director may withdraw the exemption for a specific contract or subcontract or group of contracts or subcontracts when in his judgment such action is necessary or appropriate to achieve the purposes of the order. Such withdrawal shall not apply to contracts or subcontracts awarded prior to the withdrawal, except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of the bids.
(a) Requirements for prime contractors and subcontractors. (1) Each prime contractor and subcontractor shall file annually, on or before the September 30, complete and accurate reports on Standard Form 100 (EEO-1) promulgated jointly by the Office of Federal Contract Compliance Programs, the Equal Employment Opportunity Commission and Plans for Progress or such form as may hereafter be promulgated in its place if such prime contractor or subcontractor (i) is not exempt from the provisions of these regulations in accordance with § 60-1.5; (ii) has 50 or more employees; (iii) is a prime contractor or first tier subcontractor; and (iv) has a contract, subcontract or purchase order amounting to $50,000 or more or serves as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes: Provided, That any subcontractor below the first tier which performs construction work at the site of construction shall be required to file such a report if it meets requirements of paragraphs (a)(1) (i), (ii), and (iv) of this section.
(2) Each person required by § 60-1.7(a)(1) to submit reports shall file such a report with the contracting or administering agency within 30 days after the award to him of a contract or subcontract, unless such person has submitted such a report within 12 months preceding the date of the award. Subsequent reports shall be submitted annually in accordance with § 60-1.7(a)(1), or at such other intervals as the Director may require. The Director may extend the time for filing any report.
(3) The Director or the applicant, on their own motions, may require a contractor to keep employment or other records and to furnish, in the form requested, within reasonable limits, such information as the Director or the applicant deems necessary for the administration of the order.
(4) Failure to file timely, complete and accurate reports as required constitutes noncompliance with the prime contractor's or subcontractor's obligations under the equal opportunity clause and is ground for the imposition by the Director, an applicant, prime contractor or subcontractor, of any sanctions as authorized by the order and the regulations in this part.
(b) Requirements for bidders or prospective contractors—(1) Certification of compliance with part 60-2: Affirmative Action Programs. Each agency shall require each bidder or prospective prime contractor and proposed subcontractor, where appropriate, to state in the bid or in writing at the outset of negotiations for the contract: (i) Whether it has developed and has on file at each establishment affirmative action programs pursuant to part 60-2 of this chapter; (ii) whether it has participated in any previous contract or subcontract subject to the equal opportunity clause; (iii) whether it has filed with the Joint Reporting Committee, the Director or the Equal Employment Opportunity Commission all reports due under the applicable filing requirements.
(2) Additional information. A bidder or prospective prime contractor or proposed subcontractor shall be required to submit such information as the Director requests prior to the award of the contract or subcontract. When a determination has been made to award the contract or subcontract to a specific contractor, such contractor shall be required, prior to award, or after the award, or both, to furnish such other information as the applicant or the Director requests.
(c) Use of reports. Reports filed pursuant to this section shall be used only in connection with the administration of the order, the Civil Rights Act of 1964, or in furtherance of the purposes of the order and said Act.
To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensuring that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause regardless of the amount of the contract. The term “facilities,” as used in this section, means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided, That separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes.
(a) Whenever compliance with the equal opportunity clause may necessitate a revision of a collective bargaining agreement the labor union or unions which are parties to such an agreement shall be given an adequate opportunity to present their views to the Director.
(b) The Director shall use his best efforts, directly and through agencies, contractors, subcontractors, applicants, State and local officials, public and private agencies, and all other available instrumentalities, to cause any labor union, recruiting and training agency or other representative of workers who are or may be engaged in work under contracts and subcontracts to cooperate with, and to comply in the implementation of, the purposes of the order.
(c) In order to effectuate the purposes of paragraph (a) of this section, the Director may hold hearings, public or private, with respect to the practices and policies of any such labor union or recruiting and training agency.
(d) The Director may notify any Federal, State, or local agency of his conclusions and recommendations with respect to any such labor organization or recruiting and training agency which in his judgment has failed to cooperate with himself, agencies, prime contractors, subcontractors, or applicants in carrying out the purposes of the order. The Director also may notify the Equal Employment Opportunity Commission, the Department of Justice, or other appropriate Federal agencies whenever he has reason to believe that the practices of any such labor organization or agency violates title VII of the Civil Rights Act of 1964 or other provisions of Federal law.
Contractors shall not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin when hiring or making employee assignments for work to be performed in the United States or abroad. Contractors are exempted from this obligation only when hiring persons outside the United States for work to be performed outside the United States (see 41 CFR 60-1.5(a)(3)). Therefore, a contractor hiring workers in the United States for either Federal or nonfederally connected work shall be in violation of Executive Order 11246, as amended, by refusing to employ or assign any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin regardless of the policies of the country where the work is to be performed or for whom the work will be performed. Should any contractor be unable to acquire a visa of entry for any employee or potential employee to a country in which or with which it is doing business, and which refusal it believes is due to the race, color, religion, sex, sexual orientation, gender identity, or national origin of the employee or potential employee, the contractor must immediately notify the Department of State and the Director of such refusal.
(a)(1) A contractor which maintains a policy or practice of paying membership fees or other expenses for employee participation in private clubs or organizations shall ensure that the policy or practice is administered without regard to the race, color, religion, sex, or national origin of employees.
(2) Payment or reimbursement by contractors of membership fees and other expenses for participation by their employees in a private club or organization which bars, restricts or limits its membership on the basis of race, color, sex, religion, or national origin constitutes a violation of Executive Order 11246 except where the contractor can provide evidence that such restrictions or limitations do not abridge the promotional opportunities, status, compensation or other terms and conditions of employment of those of its employees barred from membership because of their race, color, religion, sex, or national origin. OFCCP shall provide the contractor with the opportunity to present evidence in defense of its actions.
(b) The contractor has the responsibility of determining whether the club or organization restricts membership on the basis of race, color, religion, sex, or national origin. The contractor may make separate determinations for different chapters of an organization, and where it does so, may limit any necessary corrective action to the particular chapters which observe discriminatory membership policies and practices.
(a) General requirements. Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of not less than two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later. Such records include, but are not necessarily limited to, records pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, and other records having to do with requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications, resumes, and any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position, such as on-line resumes or internal resume databases, records identifying job seekers contacted regarding their interest in a particular position (for purposes of recordkeeping with respect to internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search; for purposes of recordkeeping with respect to external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor), regardless of whether the individual qualifies as an Internet Applicant under 41 CFR 60-1.3, tests and test results, and interview notes. The term “personnel records relevant to the complaint,” for example, would include personnel or employment records relating to the complainant and to all other employees holding positions similar to that held or sought by the complainant and application forms or test papers submitted by unsuccessful applicants and by all other candidates for the same position as that for which the complainant unsuccessfully applied. Where a compliance evaluation has been initiated, all personnel and employment records described above are relevant until OFCCP makes a final disposition of the evaluation.
(b) Affirmative action programs. A contractor establishment required under § 60-1.40 to develop and maintain a written affirmative action program (AAP) must maintain its current AAP and documentation of good faith effort, and must preserve its AAP and documentation of good faith effort for the immediately preceding AAP year, unless it was not then covered by the AAP requirement.
(c) Contractor identification of record. (1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify:
(i) The gender, race, and ethnicity of each employee; and
(ii) Where possible, the gender, race, and ethnicity of each applicant or Internet Applicant as defined in 41 CFR 60-1.3, whichever is applicable to the particular position.
(2) The contractor must supply this information to the Office of Federal Contract Compliance Programs upon request.
(d) Adverse impact evaluations. When evaluating whether a contractor has maintained information on impact and conducted an adverse impact analysis under part 60-3 with respect to Internet hiring procedures, OFCCP will require only those records relating to the analyses of the impact of employee selection procedures on Internet Applicants, as defined in 41 CFR 60-1.3, and those records relating to the analyses of the impact of employment tests that are used as employee selection procedures, without regard to whether the tests were administered to Internet Applicants, as defined in 41 CFR 60-1.3.
(e) Failure to preserve records. Failure to preserve complete and accurate records as required by paragraphs (a) through (c) of this section constitutes noncompliance with the contractor's obligations under the Executive Order and this part. Where the contractor has destroyed or failed to preserve records as required by this section, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor: Provided, That this presumption shall not apply where the contractor shows that the destruction or failure to preserve records results from the circumstances that are outside of the contractor's control.
(a) OFCCP may conduct compliance evaluations to determine if the contractor maintains nondiscriminatory hiring and employment practices and is taking affirmative action to ensure that applicants are employed and that employees are placed, trained, upgraded, promoted, and otherwise treated during employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. A compliance evaluation may consist of any one or any combination of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of the hiring and employment practices of the contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by the contractor. A compliance review may proceed in three stages:
(i) A desk audit of the written AAP and supporting documentation to determine whether all elements required by the regulations in this part are included, whether the AAP meets agency standards of reasonableness, and whether the AAP and supporting documentation satisfy agency standards of acceptability. The desk audit is conducted at OFCCP offices, except in the case of preaward reviews. In a preaward review, the desk audit normally is conducted at the contractor's establishment.
(ii) An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the AAP and supporting documentation during the desk audit, to verify that the contractor has implemented the AAP and has complied with those regulatory obligations not required to be included in the AAP, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied by the contractor or otherwise gathered during or pursuant to the on-site review.
(2) Off-site review of records. An analysis and evaluation of the AAP (or any part thereof) and supporting documentation, and other documents related to the contractor's personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of the Executive Order and regulations;
(3) Compliance check. A determination of whether the contractor has maintained records consistent with § 60-1.12; at the contractor's option the documents may be provided either on-site or off-site; or
(4) Focused review. An on-site review restricted to one or more components of the contractor's organization or one or more aspects of the contractor's employment practices.
(b) Where deficiencies are found to exist, OFCCP will make reasonable efforts to secure compliance through conciliation and persuasion, pursuant to § 60-1.33. The “reasonable efforts” standard shall be interpreted consistently with title VII of the Civil Rights Act of 1964 and its requirement that the Equal Employment Opportunity Commission endeavor to remove any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Before the contractor can be found to be in compliance with the order, it must make a specific commitment, in writing, to correct any such deficiencies. The commitment must include the precise action to be taken and dates for completion. The time period allotted shall be no longer than the minimum period necessary to effect such changes. Upon approval of the commitment, the contractor may be considered in compliance, on condition that the commitments are faithfully kept. The contractor shall be notified that making such commitments does not preclude future determinations of noncompliance based on a finding that the commitments are not sufficient to achieve compliance.
(c) [Reserved]
(d) Preaward compliance evaluations. Each agency shall include in the invitation for bids for each formally advertised nonconstruction contract or state at the outset of negotiations for each negotiated contract, that if the award, when let, should total $10 million or more, the prospective contractor and its known first-tier subcontractors with subcontracts of $10 million or more shall be subject to a compliance evaluation before the award of the contract unless OFCCP has conducted an evaluation and found them to be in compliance with the Order within the preceding 24 months. The awarding agency will notify OFCCP and request appropriate action and findings in accordance with this subsection. Within 15 days of the notice OFCCP will inform the awarding agency of its intention to conduct a preaward compliance evaluation. If OFCCP does not inform the awarding agency within that period of its intention to conduct a preaward compliance evaluation, clearance shall be presumed and the awarding agency is authorized to proceed with the award. If OFCCP informs the awarding agency of its intention to conduct a preaward compliance evaluation, OFCCP shall be allowed an additional 20 days after the date that it so informs the awarding agency to provide its conclusions. If OFCCP does not provide the awarding agency with its conclusions within that period, clearance shall be presumed and the awarding agency is authorized to proceed with the award.
(e) Submission of Documents; Standard Affirmative Action Formats. Each prime contractor or subcontractor with 50 or more employees and a contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments (§ 60-1.40). If a contractor fails to submit an affirmative action program and supporting documents, including the workforce analysis, within 30 days of a request, the enforcement procedures specified in § 60-1.26(b) shall be applicable. Contractors may reach agreement with OFCCP on nationwide AAP formats or on frequency of updating statistics.
(f) Confidentiality and relevancy of information. If the contractor is concerned with the confidentiality of such information as lists of employee names, reasons for termination, or pay data, then alphabetic or numeric coding or the use of an index of pay and pay ranges, consistent with the ranges assigned to each job group, are acceptable for purposes of the compliance evaluation. The contractor must provide full access to all relevant data on-site as required by § 60-1.43. Where necessary, the compliance officer may take information made available during the on-site evaluation off-site for further analysis. An off-site analysis should be conducted where issues have arisen concerning deficiencies or an apparent violation which, in the judgment of the compliance officer, should be more thoroughly analyzed off-site before a determination of compliance is made. The contractor must provide all data determined by the compliance officer to be necessary for off-site analysis. Such data may only be coded if the contractor makes the key to the code available to the compliance officer. If the contractor believes that particular information which is to be taken off-site is not relevant to compliance with the Executive Order, the contractor may request a ruling by the OFCCP District/Area Director. The OFCCP District/Area Director shall issue a ruling within 10 days. The contractor may appeal that ruling to the OFCCP Regional Director within 10 days. The Regional Director shall issue a final ruling within 10 days. Pending a final ruling, the information in question must be made available to the compliance officer off-site, but shall be considered a part of the investigatory file and subject to the provisions of paragraph (g) of this section. The agency shall take all necessary precautions to safeguard the confidentiality of such information until a final determination is made. Such information may not be copied by OFCCP and access to the information shall be limited to the compliance officer and personnel involved in the determination of relevancy. Data determined to be not relevant to the investigation will be returned to the contractor immediately.
(g) Public Access to Information. OFCCP will treat information obtained in the compliance evaluation as confidential to the maximum extent the information is exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552. It is the practice of OFCCP not to release data where the contractor is still in business, and the contractor indicates, and through the Department of Labor review process it is determined, that the data are confidential and sensitive and that the release of data would subject the contractor to commercial harm.
Complaints shall be filed within 180 days of the alleged violation unless the time for filing is extended by the Director for good cause shown.
Complaints may be filed with the OFCCP, 200 Constitution Avenue, NW., Washington, DC 20210, or with any OFCCP regional or area office.
(a) The complaint shall include the name, address, and telephone number of the complainant, the name and address of the contractor or subcontractor committing the alleged discrimination, a description of the acts considered to be discriminatory, and any other pertinent information which will assist in the investigation and resolution of the complaint. The complaint shall be signed by the complainant or his/her authorized representative. Complaints alleging class-type violations which do not identify the alleged discriminatee or discriminatees will be accepted, provided the other requirements of this paragraph are met.
(b) If a complaint contains incomplete information, OFCCP shall seek the needed information from the complainant. In the event such information is not furnished to the Director within 60 days of the date of such request, the case may be closed.
(a) Complaints. OFCCP may refer appropriate complaints to the Equal Employment Opportunity Commission (EEOC) for processing under Title VII of the Civil Rights Act of 1964, as amended, rather than processing under E.O. 11246 and the regulations in this chapter. Upon referring complaints to the EEOC, OFCCP shall promptly notify complainant(s) and the contractor of such referral.
(b) Complaint investigations. In conducting complaint investigations, OFCCP shall, as a minimum, conduct a thorough evaluation of the allegations of the complaint and shall be responsible for developing a complete case record. The case record should contain the name, address, and telephone number of each person interviewed, the interview statements, copies, transcripts, or summaries (where appropriate) of pertinent documents, a reference to at least one covered contract, and a narrative report of the investigation with references to exhibits and other evidence which relate to the alleged violations.
(c)(1) [Reserved]
(2) If any complaint investigation or compliance review indicates a violation of the equal opportunity clause, the matter should be resolved by informal means whenever possible. Such informal means may include the holding of a compliance conference.
(3) Where any complaint investigation or compliance review indicates a violation of the equal opportunity clause and the matter has not been resolved by informal means, the Director shall proceed in accordance with § 60-1.26.
(4) When a prime contractor or subcontractor, without a hearing, shall have complied with the recommendations or orders of the Director and believes such recommendations or orders to be erroneous, he shall, upon filing a request therefor within ten days of such compliance, be afforded an opportunity for a hearing and review of the alleged erroneous action.
(5) For reasonable cause shown, the Director may reconsider or cause to be reconsidered any matter on his/her own motion or pursuant to a request.
(d) Reports to the Director. (1) With the exception of complaints which have been referred to EEOC, within 60 days from receipt of a complaint or within such additional time as may be allowed by the Director for good cause shown, the complaint shall be processed and the case record developed containing the following information:
(i) Name and address of the complainant;
(ii) Brief summary of findings, including a statement regarding the contractor's compliance or noncompliance with the requirements of the equal opportunity clause;
(iii) A statement of the disposition of the case, including any corrective action taken and any sanctions or penalties imposed or, whenever appropriate, the recommended corrective action and sanctions or penalties.
(2) A written report of every preaward compliance review required by this regulation or otherwise required by the Director, shall be developed and maintained.
(3) A written report of every other compliance review or any other matter processed involving an apparent violation of the equal opportunity clause shall be made. Such report shall contain a brief summary of the findings, including a statement of conclusions regarding the contractor's compliance or noncompliance with the requirements of the order, and a statement of the disposition of the case, including any corrective action taken or recommended and any sanctions or penalties imposed or recommended.
The Director may inquire into the status of any matter pending before an agency. Where he considers it necessary or appropriate to the achievement of the purposes of the order, he may assume jurisdiction over the matter and proceed as provided herein. Whenever the Director assumes jurisdiction over any matter, or an agency refers any matter he may conduct, or have conducted, such investigations, hold such hearings, make such findings, issue such recommendations and directives, order such sanctions and penalties, and take such other action as may be necessary or appropriate to achieve the purposes of the order. The Director shall promptly notify the agency of any corrective action to be taken or any sanctions to be taken or any sanction to be imposed by the agency. The agency shall take such action, and report the results thereof to the Director within the time specified.
(a) General. (1) Violations of the Order, the equal opportunity clause, the regulations in this chapter, or applicable construction industry equal employment opportunity requirements, may result in the institution of administrative or judicial enforcement proceedings. Violations may be found based upon, inter alia, any of the following:
(i) The results of a complaint investigation;
(ii) The results of a compliance evaluation;
(iii) Analysis of an affirmative action program;
(iv) The results of an on-site review of the contractor's compliance with the Order and its implementing regulations;
(v) A contractor's refusal to submit an affirmative action program;
(vi) A contractor's refusal to allow an on-site compliance evaluation to be conducted;
(vii) A contractor's refusal to provide data for off-site review or analysis as required by the regulations in this chapter;
(viii) A contractor's refusal to establish, maintain and supply records or other information as required by the regulations in this chapter or applicable construction industry requirements;
(ix) A contractor's alteration or falsification of records and information required to be maintained by the regulations in this chapter; or
(x) Any substantial or material violation or the threat of a substantial or material violation of the contractural provisions of the Order, or of the rules or regulations in this chapter.
(2) OFCCP may seek back pay and other make whole relief for victims of discrimination identified during a complaint investigation or compliance evaluation. Such individuals need not have filed a complaint as a prerequisite to OFCCP seeking such relief on their behalf. Interest on back pay shall be calculated from the date of the loss and compounded quarterly at the percentage rate established by the Internal Revenue Service for the under-payment of taxes.
(b) Administrative enforcement. (1) OFCCP may refer matters to the Solicitor of Labor with a recommendation for the institution of administrative enforcement proceedings, which may be brought to enjoin violations, to seek appropriate relief, and to impose appropriate sanctions. The referral may be made when violations have not been corrected in accordance with the conciliation procedures in this chapter, or when OFCCP determines that referral for consideration of formal enforcement (rather than settlement) is appropriate. However, if a contractor refuses to submit an affirmative action program, or refuses to supply records or other requested information, or refuses to allow OFCCP access to its premises for an on-site review, and if conciliation efforts under this chapter are unsuccessful, OFCCP may immediately refer the matter to the Solicitor, notwithstanding other requirements of this chapter.
(2) Administrative enforcement proceedings shall be conducted under the control and supervision of the Solicitor of Labor and under the Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity under Executive Order 11246 contained in part 60-30 of this chapter and the Rules of Evidence set out in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges contained in 29 CFR part 18, subpart B: Provided, That a Final Administrative Order shall be issued within on year from the date of the issuance of the recommended findings, conclusions and decision of the Administrative Law Judge, or the submission of any exceptions and responses to exceptions to such decision (if any), whichever is later.
(c) Referrals to the Department of Justice. (1) The Director may refer matters to the Department of Justice with a recommendation for the institution of judicial enforcement proceedings. There are no procedural prerequisites to a referral to the Department of Justice. Such referrals may be accomplished without proceeding through the conciliation procedures in this chapter, and a referral may be made at any stage in the procedures under this chapter.
(2) Whenever a matter has been referred to the Department of Justice for consideration of judicial enforcement, the Attorney General may bring a civil action in the appropriate district court of the United States requesting a temporary restraining order, preliminary or permanent injunction (including relief against noncontractors, including labor unions, who seek to thwart the implementation of the Order and regulations), and an order for such additional sanctions or relief, including back pay, deemed necessary or appropriate to ensure the full enjoyment of the rights secured by the Order, or any of the above in this paragraph (c)(2).
(3) The Attorney General is authorized to conduct such investigation of the facts as he/she deem necessary or appropriate to carry out his/her responsibilities under the regulations in this chapter.
(4) Prior to the institution of any judicial proceedings, the Attorney General, on behalf of the Director, is authorized to make reasonable efforts to secure compliance with the contract provisions of the Order. The Attorney General may do so by providing the contractor and any other respondent with reasonable notice of his/her findings, his/her intent to file suit, and the actions he/she believes necessary to obtain compliance with the contract provisions of the Order without contested litigation, and by offering the contractor and any other respondent a reasonable opportunity for conference and conciliation, in an effort to obtain such compliance without contested litigation.
(5) As used in the regulations in this part, the Attorney General shall mean the Attorney General, the Assistant Attorney General for Civil Rights, or any other person authorized by regulations or practice to act for the Attorney General with respect to the enforcement of equal employment opportunity laws, orders and regulations generally, or in a particular matter or case.
(6) The Director or his/her designee, and representatives of the Attorney General may consult from time to time to determine what investigations should be conducted to determine whether contractors or groups of contractors or other persons may be engaged in patterns or practices in violation of the Executive Order or these regulations, or of resistance to or interference with the full enjoyment of any of the rights secured by them, warranting judicial proceedings.
(d) Initiation of lawsuits by the Attorney General without referral from the Director. In addition to initiating lawsuits upon referral under this section, the Attorney General may, subject to approval by the Director, initiate independent investigations of contractors which he/she has reason to believe may be in violation of the Order or the rules and regulations issued pursuant thereto. If, upon completion of such an investigation, the Attorney General determines that the contractor has in fact violated the Order or the rules and regulations issued thereunder, he/she shall make reasonable efforts to secure compliance with the contract provisions of the Order. He/she may do so by providing the contractor and any other respondent with reasonable notice of the Department of Justice's findings, its intent to file suit, and the actions that the Attorney General believes are necessary to obtain compliance with the contract provisions of the Order without contested litigation, and by offering the contractor and any other respondent a reasonable opportunity for conference and conciliation in an effort to obtain such compliance without contested litigation. If these efforts are unsuccessful, the Attorney General may, upon approval by the Director, bring a civil action in the appropriate district court of the United States requesting a temporary restraining order, preliminary or permanent injunction, and an order for such additional sanctions or equitable relief, including back pay, deemed necessary or appropriate to ensure the full enjoyment of the rights secured by the Order or any of the above in this paragraph (d).
(e) To the extent applicable, this section and part 60-30 of this chapter shall govern proceedings resulting from any Director's determinations under § 60-2.2(b) of this chapter.
(a) General. The sanctions described in subsections (1), (5), and (6) of section 209(a) of the Order may be exercised only by or with the approval of the Director. Referral of any matter arising under the Order to the Department of Justice or to the Equal Employment Opportunity Commission shall be made by the Director.
(b) Debarment. A contractor may be debarred from receiving future contracts or modifications or extensions of existing contracts, subject to reinstatement pursuant to § 60-1.31, for any violation of Executive Order 11246 or the implementing rules, regulations and orders of the Secretary of Labor. Debarment may be imposed for an indefinite term or for a fixed minimum period of at least six months.
(a) Preaward compliance reviews. Upon the request of the Director, agencies shall not enter into contracts or approve the entry into contracts or subcontracts with any bidder, prospective prime contractor, or proposed subcontractor named by the Director until a preaward compliance review has been conducted and the Director or his designee has approved a determination that the bidder, prospective prime contractor or proposed subcontractor will be able to comply with the provisions of the equal opportunity clause.
(b) Other special preaward procedures. Upon the request of the Director, agencies shall not enter into contracts or approve the entry into subcontracts with any bidder; prospective prime contractor or proposed subcontractor specified by the Director until the agency has complied with the directions contained in the request.
The Director shall ensure that the heads of all agencies are notified of any debarment taken against any contractor.
A contractor debarred from further contracts for an indefinite period under the Order may request reinstatement in a letter filed with the Director at any time after the effective date of the debarment. A contractor debarred for a fixed period may request reinstatement in a letter filed with the Director 30 days prior to the expiration of the fixed debarment period, or at any time thereafter. The filing of a reinstatement request 30 days before a fixed debarment period ends will not result in early reinstatement. In connection with the reinstatement proceedings, all debarred contractors shall be required to show that they have established and will carry out employment policies and practices in compliance with the Order and implementing regulations. Before reaching a decision, the Director may conduct a compliance evaluation of the contractor and may require the contractor to supply additional information regarding the request for reinstatement. The Director shall issue a written decision on the request.
(a) The contractor, subcontractor or applicant shall not harass, intimidate, threaten, coerce, or discriminate against any individual because the individual has engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the Order or any other Federal, state or local law requiring equal opportunity;
(3) Opposing any act or practice made unlawful by the Order or any other Federal, state or local law requiring equal opportunity; or
(4) Exercising any other right protected by the Order.
(b) The contractor, subcontractor or applicant shall ensure that all persons under its control do not engage in such harassment, intimidation, threats, coercion or discrimination. The sanctions and penalties contained in this part may be exercised by OFCCP against any contractor, subcontractor or applicant who violates this obligation.
(a) Predetermination Notice. If a compliance evaluation by OFCCP indicates preliminary findings of potential discrimination, OFCCP will issue a Predetermination Notice that describes the preliminary findings and provides the contractor an opportunity to respond. The Predetermination Notice may also include preliminary findings of other potential violations that OFCCP has identified at that stage of the review. After OFCCP issues the Predetermination Notice, the agency may identify additional violations and include them in a subsequent Notice of Violation or Show Cause Notice without amending the Predetermination Notice. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Notice of Violation or Show Cause Notice. Any response to a Predetermination Notice must be received by OFCCP within 15 calendar days of receipt of the Notice, which deadline OFCCP may extend for good cause. If the contractor does not respond or OFCCP determines that the contractor's response and any additional investigation undertaken by the agency did not resolve the preliminary findings of potential discrimination or other violations identified in the Predetermination Notice, OFCCP will proceed to issue a Notice of Violation.
(b) Notice of Violation. If a compliance evaluation by OFCCP indicates a violation of the equal opportunity clause, OFCCP will issue a Notice of Violation to the contractor requiring corrective action. The Notice of Violation will identify the violations found and describe the recommended corrective actions. The Notice of Violation will invite the contractor to conciliate the matter and resolve the findings through a written conciliation agreement. After the Notice of Violation is issued, OFCCP may include additional violations in a subsequent Show Cause Notice without amendment to the Notice of Violation. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Show Cause Notice.
(c) Conciliation agreement. If a compliance review, complaint investigation, or other review by OFCCP or its representative indicates a material violation of the equal opportunity clause, and:
(1) If the contractor, subcontractor, or bidder is willing to correct the violations and/or deficiencies; and
(2) If OFCCP or its representative determines that settlement (rather than referral for consideration of formal enforcement) is appropriate, a written conciliation agreement shall be required. The agreement shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies identified, including, where appropriate (but not limited to), remedies such as back pay, salary adjustments, and retroactive seniority.
(d) Show Cause Notice. When the Director has reasonable cause to believe that a contractor has violated the equal opportunity clause the Director may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings, or other appropriate action to ensure compliance should not be instituted. OFCCP may issue a Show Cause Notice without first issuing a Predetermination Notice or Notice of Violation when the contractor has failed to provide access to its premises for an on-site review or refused to provide access to witnesses, records, or other information. The Show Cause Notice will include each violation that OFCCP has identified at the time of issuance. Where OFCCP identifies additional violations after issuing a Show Cause Notice, OFCCP will modify or amend the Show Cause Notice.
(e) Expedited conciliation option. OFCCP may agree to waive the procedures set forth in paragraphs (a) and/or (b) of this section to enter directly into a conciliation agreement with a contractor. OFCCP may offer the contractor this expedited conciliation option but may not require or insist that the contractor avail itself of the expedited conciliation option.
When a conciliation agreement has been violated, the following procedures are applicable:
(a) A written notice shall be sent to the contractor setting forth the violations alleged and summarizing the supporting evidence. The contractor shall have 15 days from receipt of the notice to respond, except in those cases in which such a delay would result in irreparable injury to the employment rights of affected employees or applicants.
(b) During the 15-day period the contractor may demonstrate in writing that it has not violated its commitments.
(c) If the contractor is unable to demonstrate that it has not violated its commitments, or if the complaint alleges irreparable injury, enforcement proceedings may be initiated immediately without issuing a show cause notice or proceeding through any other requirement contained in this chapter.
(d) In any proceeding involving an alleged violation of a conciliation agreement OFCCP may seek enforcement of the agreement itself and shall not be required to present proof of the underlying violations resolved by the agreement.
(a) General defenses. A contractor may pursue a defense to an alleged violation of paragraph (3) of the equal opportunity clauses listed in § 60-1.4(a) and (b) as long as the defense is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants, subject to paragraph (3) of the equal opportunity clause. Contractors may pursue this defense by demonstrating, for example, that it disciplined the employee for violation of a consistently and uniformly applied company policy, and that this policy does not prohibit, or tend to prohibit, employees or applicants from discussing or disclosing their compensation or the compensation of other employees or applicants.
(b) Essential job functions defense. Actions taken by a contractor which adversely affect an employee will not be deemed to be discriminatory if the employee has access to the compensation information of other employees or applicants as part of such employee's essential job functions and disclosed the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, and the disclosure was not in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor's legal duty to furnish information.
(c) Dissemination of nondiscrimination provision. The contractor or subcontractor shall disseminate the nondiscrimination provision, using the language as prescribed by the Director of OFCCP, to employees and applicants:
(1) The nondiscrimination provision shall be incorporated into existing employee manuals or handbooks; and
(2) The nondiscrimination provision shall be disseminated to employees and applicants. Dissemination of the provision shall be executed by electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment.
(a)(1) Each nonconstruction (supply and service) contractor must develop and maintain a written affirmative action program for each of its establishments, if it has 50 or more employees and:
(i) Has a contract of $50,000 or more; or
(ii) Has Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
(2) Each contractor and subcontractor must require each nonconstruction subcontractor to develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and:
(i) Has a subcontract of $50,000 or more; or
(ii) Has Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
(b) Nonconstruction contractors should refer to part 60-2 for specific affirmative action requirements. Construction contractors should refer to part 60-4 for specific affirmative action requirements.
In solicitations or advertisements for employees placed by or on behalf of a prime contractor or subcontractor, the requirements of paragraph (2) of the equal opportunity clause in § 60-1.4 shall be satisfied whenever the prime contractor or subcontractor complies with any of the following:
(a) States expressly in the solicitations or advertising that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin;
(b) Uses display or other advertising, and the advertising includes an appropriate insignia prescribed by the Director. The use of the insignia is considered subject to the provisions of 18 U.S.C. 701;
(c) Uses a single advertisement, and the advertisement is grouped with other advertisements under a caption which clearly states that all employers in the group assure all qualified applicants equal consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin;
(d) Uses a single advertisement in which appears in clearly distinguishable type the phrase “an equal opportunity employer.”
(a) Unless alternative notices are prescribed by the Director, the notices which contractors are required to post by paragraphs (1) and (3) of the equal opportunity clause in § 60-1.4 will contain the following language and be provided by the contracting or administering agencies:
Title VII of the Civil Rights Act of 1964—Administered by:
Executive Order No. 11246—Administered by:
Prohibits discrimination because of Race, Color, Religion, Sex, Sexual Orientation, Gender Identity, or National Origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.
By all Federal Government Contractors and Subcontractors, and by Contractors Performing Work Under a Federally Assisted Construction Contract, regardless of the number of employees in either case.
Each contractor shall permit access during normal business hours to its premises for the purpose of conducting on-site compliance evaluations and complaint investigations. Each contractor shall permit the inspecting and copying of such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Order, and the rules and regulations promulgated pursuant thereto by the agency, or the Director. Information obtained in this manner shall be used only in connection with the administration of the Order, the Civil Rights Act of 1964 (as amended), and any other law that is or may be enforced in whole or in part by OFCCP.
Rulings under or interpretations of the order or the regulations contained in this part shall be made by the Secretary or his designee.
All contracts and subcontracts in effect prior to October 24, 1965, which are not subsequently modified shall be administered in accordance with the nondiscrimination provisions of any prior applicable Executive orders. Any contract or subcontract modified on or after October 24, 1965, shall be subject to Executive Order 11246. Complaints received by and violations coming to the attention of agencies regarding contracts and subcontracts which were subject to Executive Orders 10925 and 11114 shall be processed as if they were complaints regarding violations of this order.
The Director is authorized to redelegate the authority given to him by the regulations in this part. The authority redelegated by the Director pursuant to the regulations in this part shall be exercised under his general direction and control.
The regulations contained in this part shall become effective July 1, 1968, for all contracts, the solicitations, invitations for bids, or requests for proposals which were sent by the Government or an applicant on or after said effective date, and for all negotiated contracts which have not been executed as of said effective date. Notwithstanding the foregoing, the regulations in this part shall become effective as to all contracts executed on and after the 120th day following said effective date. Subject to any prior approval of the Secretary, any agency may defer the effective date of the regulations in this part, for such period of time as the Secretary finds to be reasonably necessary. Contracts executed prior to the effective date of the regulations in this part shall be governed by the regulations promulgated by the former President's Committee on Equal Employment Opportunity which appear at 28 FR 9812, September 2, 1963, and at 28 FR 11305, October 23, 1963, the temporary regulations which appear at 30 FR 13441, October 22, 1965, and the orders at 31 FR 6881, May 10, 1966, and 32 FR 7439, May 19, 1967.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
(a) General. The requirements of this part apply to nonconstruction (supply and service) contractors. The regulations prescribe the contents of affirmative action programs, standards and procedures for evaluating the compliance of affirmative action programs implemented pursuant to this part, and related matters.
(b) Who must develop affirmative action programs. (1) Each nonconstruction contractor must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and:
(i) Has a contract of $50,000 or more; or
(ii) Has Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
(2) Each contractor and subcontractor must require each nonconstruction subcontractor to develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and:
(i) Has a subcontract of $50,000 or more; or
(ii) Has Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.
(c) When affirmative action programs must be developed. The affirmative action programs required under paragraph (b) of this section must be developed within 120 days from the commencement of a contract and must be updated annually.
(d) Who is included in affirmative action programs. Contractors subject to the affirmative action program requirements must develop and maintain a written affirmative action program for each of their establishments. Each employee in the contractor's workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works, except that:
(1) Employees who work at establishments other than that of the manager to whom they report, must be included in the affirmative action program of their manager.
(2) Employees who work at an establishment where the contractor employs fewer than 50 employees, may be included under any of the following three options: In an affirmative action program which covers just that establishment; in the affirmative action program which covers the location of the personnel function which supports the establishment; or, in the affirmative action program which covers the location of the official to whom they report.
(3) Employees for whom selection decisions are made at a higher level establishment within the organization must be included in the affirmative action program of the establishment where the selection decision is made.
(4) If a contractor wishes to establish an affirmative action program other than by establishment, the contractor may reach agreement with OFCCP on the development and use of affirmative action programs based on functional or business units. The Director, or his or her designee, must approve such agreements. Agreements allowing the use of functional or business unit affirmative action programs cannot be construed to limit or restrict how the OFCCP structures its compliance evaluations.
(e) How to identify employees included in affirmative action programs other than where they are located. If pursuant to paragraphs (d)(1) through (3) of this section employees are included in an affirmative action program for an establishment other than the one in which the employees are located, the organizational profile and job group analysis of the affirmative action program in which the employees are included must be annotated to identify the actual location of such employees. If the establishment at which the employees actually are located maintains an affirmative action program, the organizational profile and job group analysis of that program must be annotated to identify the program in which the employees are included.
(a) Any contractor required by § 60-2.1 to develop and maintain a written affirmative action program for each of its establishments that has not complied with that section is not in full compliance with Executive Order 11246, as amended. When a contractor is required to submit its affirmative action program to OFCCP (e.g., for a compliance evaluation), the affirmative action program will be deemed to have been accepted by the Government at the time OFCCP notifies the contractor of completion of the compliance evaluation or other action, unless within 45 days thereafter the Deputy Assistant Secretary has disapproved such program.
(b) If, in determining such contractor's responsibility for an award of a contract it comes to the contracting officer's attention, through sources within his/her agency or through the OFCCP or other Government agencies, that the contractor does not have an affirmative action program at each of its establishments, or has substantially deviated from such an approved affirmative action program, or has failed to develop or implement an affirmative action program which complies with the regulations in this chapter, the contracting officer must declare the contractor/bidder nonresponsible and so notify the contractor and the Deputy Assistant Secretary, unless the contracting officer otherwise affirmatively determines that the contractor is able to comply with the equal employment obligations. Any contractor/bidder which has been declared nonresponsible in accordance with the provisions of this section may request the Deputy Assistant Secretary to determine that the responsibility of the contractor/bidder raises substantial issues of law or fact to the extent that a hearing is required. Such request must set forth the basis upon which the contractor/bidder seeks such a determination. If the Director, in his/her sole discretion, determines that substantial issues of law or fact exist, an administrative or judicial proceeding may be commenced in accordance with the regulations contained in § 60-1.26; or the Deputy Assistant Secretary may require the investigation or compliance evaluation be developed further or additional conciliation be conducted: Provided, That during any pre-award conferences, every effort will be made through the processes of conciliation, mediation, and persuasion to develop an acceptable affirmative action program meeting the standards and guidelines set forth in this part so that, in the performance of the contract, the contractor is able to meet its equal employment obligations in accordance with the equal opportunity clause and applicable rules, regulations, and orders: Provided further, That a contractor/bidder may not be declared nonresponsible more than twice due to past noncompliance with the equal opportunity clause at a particular establishment or facility without receiving prior notice and an opportunity for a hearing.
(c)(1) Immediately upon finding that a contractor has no affirmative action program, or has deviated substantially from an approved affirmative action program, or has failed to develop or implement an affirmative action program which complies with the requirements of the regulations in this chapter, that fact shall be recorded in the investigation file. Except as provided in § 60-1.26(b)(1), whenever administrative enforcement is contemplated, the notice to the contractor shall be issued giving the contractor 30 days to show cause why enforcement proceedings under section 209(a) of Executive Order 11246, as amended, should not be instituted. The notice to show cause should contain:
(i) An itemization of the sections of the Executive Order and of the regulations with which the contractor has been found in apparent violation, and a summary of the conditions, practices, facts, or circumstances which give rise to each apparent violation;
(ii) The corrective actions necessary to achieve compliance or, as may be appropriate, the concepts and principles of an acceptable remedy and/or the corrective action results anticipated;
(iii) A request for a written response to the findings, including commitments to corrective action or the presentation of opposing facts and evidence; and
(iv) A suggested date for the conciliation conference.
(2) If the contractor fails to show good cause for its failure or fails to remedy that failure by developing and implementing an acceptable affirmative action program within 30 days, the case file shall be processed for enforcement proceedings pursuant to § 60-1.26 of this chapter. If an administrative complaint is filed, the contractor shall have 20 days to request a hearing. If a request for hearing has not been received within 20 days from the filing of the administrative complaint, the matter shall proceed in accordance with part 60-30 of this chapter.
(3) During the “show cause” period of 30 days, every effort will be made through conciliation, mediation, and persuasion to resolve the deficiencies which led to the determination of nonresponsibility. If satisfactory adjustments designed to bring the contractor into compliance are not concluded, the case shall be processed for enforcement proceedings pursuant to § 60-1.26 of this chapter.
(d) During the “show cause” period and formal proceedings, each contracting agency must continue to determine the contractor's responsibility in considering whether or not to award a new or additional contract.
(a) Purpose. (1) An affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor's workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects. Affirmative action programs contain a diagnostic component which includes a number of quantitative analyses designed to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools. Affirmative action programs also include action-oriented programs. If women and minorities are not being employed at a rate to be expected given their availability in the relevant labor pool, the contractor's affirmative action program includes specific practical steps designed to address this underutilization. Effective affirmative action programs also include internal auditing and reporting systems as a means of measuring the contractor's progress toward achieving the workforce that would be expected in the absence of discrimination.
(2) An affirmative action program also ensures equal employment opportunity by institutionalizing the contractor's commitment to equality in every aspect of the employment process. Therefore, as part of its affirmative action program, a contractor monitors and examines its employment decisions and compensation systems to evaluate the impact of those systems on women and minorities.
(3) An affirmative action program is, thus, more than a paperwork exercise. An affirmative action program includes those policies, practices, and procedures that the contractor implements to ensure that all qualified applicants and employees are receiving an equal opportunity for recruitment, selection, advancement, and every other term and privilege associated with employment. Affirmative action, ideally, is a part of the way the contractor regularly conducts its business. OFCCP has found that when an affirmative action program is approached from this perspective, as a powerful management tool, there is a positive correlation between the presence of affirmative action and the absence of discrimination.
(b) Contents of affirmative action programs. (1) An affirmative action program must include the following quantitative analyses:
(i) Organizational profile—§ 60-2.11;
(ii) Job group analysis—§ 60-2.12;
(iii) Placement of incumbents in job groups—§ 60-2.13;
(iv) Determining availability—§ 60-2.14;
(v) Comparing incumbency to availability—§ 60-2.15; and
(vi) Placement goals—§ 60-2.16.
(2) In addition, an affirmative action program must include the following components specified in the § 60-2.17 of this part:
(i) Designation of responsibility for implementation;
(ii) Identification of problem areas;
(iii) Action-oriented programs; and
(iv) Periodic internal audits.
(c) Documentation. Contractors must maintain and make available to OFCCP documentation of their compliance with §§ 60-2.11 through 60-2.17.
(a) Purpose. An organizational profile is a depiction of the staffing pattern within an establishment. It is one method contractors use to determine whether barriers to equal employment opportunity exist in their organizations. The profile provides an overview of the workforce at the establishment that may assist in identifying organizational units where women or minorities are underrepresented or concentrated. The contractor must use either the organizational display or the workforce analysis as its organizational profile:
(b) Organizational display. (1) An organizational display is a detailed graphical or tabular chart, text, spreadsheet or similar presentation of the contractor's organizational structure. The organizational display must identify each organizational unit in the establishment, and show the relationship of each organizational unit to the other organizational units in the establishment.
(2) An organizational unit is any component that is part of the contractor's corporate structure. In a more traditional organization, an organizational unit might be a department, division, section, branch, group or similar component. In a less traditional organization, an organizational unit might be a project team, job family, or similar component. The term includes an umbrella unit (such as a department) that contains a number of subordinate units, and it separately includes each of the subordinate units (such as sections or branches).
(3) For each organizational unit, the organizational display must indicate the following:
(i) The name of the unit;
(ii) The job title, gender, race, and ethnicity of the unit supervisor (if the unit has a supervisor);
(iii) The total number of male and female incumbents; and
(iv) the total number of male and female incumbents in each of the following groups: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives.
(c) Workforce analysis. (1) A workforce analysis is a listing of each job title as appears in applicable collective bargaining agreements or payroll records ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision.
(2) If there are separate work units or lines of progression within a department, a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line.
(3) Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or disciplines, in order of wage rates or salary ranges.
(4) For each job title, the total number of incumbents, the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed.
(a) Purpose: A job group analysis is a method of combining job titles within the contractor's establishment. This is the first step in the contractor's comparison of the representation of minorities and women in its workforce with the estimated availability of minorities and women qualified to be employed.
(b) In the job group analysis, jobs at the establishment with similar content, wage rates, and opportunities, must be combined to form job groups. Similarity of content refers to the duties and responsibilities of the job titles which make up the job group. Similarity of opportunities refers to training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered by the jobs within the job group.
(c) The job group analysis must include a list of the job titles that comprise each job group. If, pursuant to § 60-2.1(d) and (e) the job group analysis contains jobs that are located at another establishment, the job group analysis must be annotated to identify the actual location of those jobs. If the establishment at which the jobs actually are located maintains an affirmative action program, the job group analysis of that program must be annotated to identify the program in which the jobs are included.
(d) Except as provided in § 60-2.1(d), all jobs located at an establishment must be reported in the job group analysis of that establishment.
(e) Smaller employers: If a contractor has a total workforce of fewer than 150 employees, the contractor may prepare a job group analysis that utilizes EEO-1 categories as job groups. EEO-1 categories refers to the nine occupational groups used in the Standard Form 100, the Employer Information EEO-1 Survey: Officials and managers, professionals, technicians, sales, office and clerical, craft workers (skilled), operatives (semiskilled), laborers (unskilled), and service workers.
The contractor must separately state the percentage of minorities and the percentage of women it employs in each job group established pursuant to § 60-2.12.
(a) Purpose: Availability is an estimate of the number of qualified minorities or women available for employment in a given job group, expressed as a percentage of all qualified persons available for employment in the job group. The purpose of the availability determination is to establish a benchmark against which the demographic composition of the contractor's incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups.
(b) The contractor must separately determine the availability of minorities and women for each job group.
(c) In determining availability, the contractor must consider at least the following factors:
(1) The percentage of minorities or women with requisite skills in the reasonable recruitment area. The reasonable recruitment area is defined as the geographical area from which the contractor usually seeks or reasonably could seek workers to fill the positions in question.
(2) The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization. Trainable refers to those employees within the contractor's organization who could, with appropriate training which the contractor is reasonably able to provide, become promotable or transferable during the AAP year.
(d) The contractor must use the most current and discrete statistical information available to derive availability figures. Examples of such information include census data, data from local job service offices, and data from colleges or other training institutions.
(e) The contractor may not draw its reasonable recruitment area in such a way as to have the effect of excluding minorities or women. For each job group, the reasonable recruitment area must be identified, with a brief explanation of the rationale for selection of that recruitment area.
(f) The contractor may not define the pool of promotable, transferable, and trainable employees in such a way as to have the effect of excluding minorities or women. For each job group, the pool of promotable, transferable, and trainable employees must be identified with a brief explanation of the rationale for the selection of that pool.
(g) Where a job group is composed of job titles with different availability rates, a composite availability figure for the job group must be calculated. The contractor must separately determine the availability for each job title within the job group and must determine the proportion of job group incumbents employed in each job title. The contractor must weight the availability for each job title by the proportion of job group incumbents employed in that job group. The sum of the weighted availability estimates for all job titles in the job group must be the composite availability for the job group.
(a) The contractor must compare the percentage of minorities and women in each job group determined pursuant to § 60-2.13 with the availability for those job groups determined pursuant to § 60-2.14.
(b) When the percentage of minorities or women employed in a particular job group is less than would reasonably be expected given their availability percentage in that particular job group, the contractor must establish a placement goal in accordance with § 60-2.16.
(a) Purpose: Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity.
(b) A contractor's determination under § 60-2.15 that a placement goal is required constitutes neither a finding nor an admission of discrimination.
(c) Where, pursuant to § 60-2.15, a contractor is required to establish a placement goal for a particular job group, the contractor must establish a percentage annual placement goal at least equal to the availability figure derived for women or minorities, as appropriate, for that job group.
(d) The placement goal-setting process described above contemplates that contractors will, where required, establish a single goal for all minorities. In the event of a substantial disparity in the utilization of a particular minority group or in the utilization of men or women of a particular minority group, a contractor may be required to establish separate goals for those groups.
(e) In establishing placement goals, the following principles also apply:
(1) Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
(2) In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual's employment status, on the basis of that person's race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
(4) Placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations in this part do not require a contractor to hire a person who lacks qualifications to perform the job successfully, or hire a less qualified person in preference to a more qualified one.
(f) A contractor extending a publicly announced preference for American Indians as is authorized in 41 CFR 60-1.5(a)(6) may reflect in its placement goals the permissive employment preference for American Indians living on or near an Indian reservation.
In addition to the elements required by § 60-2.10 through § 60-2.16, an acceptable affirmative action program must include the following:
(a) Designation of responsibility. The contractor must provide for the implementation of equal employment opportunity and the affirmative action program by assigning responsibility and accountability to an official of the organization. Depending upon the size of the contractor, this may be the official's sole responsibility. He or she must have the authority, resources, support of and access to top management to ensure the effective implementation of the affirmative action program.
(b) Identification of problem areas. The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist. At a minimum the contractor must evaluate:
(1) The workforce by organizational unit and job group to determine whether there are problems of minority or female utilization (i.e., employment in the unit or group), or of minority or female distribution (i.e., placement in the different jobs within the unit or group);
(2) Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities;
(3) Compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities;
(4) Selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women; and
(5) Any other areas that might impact the success of the affirmative action program.
(c) Action-oriented programs. The contractor must develop and execute action-oriented programs designed to correct any problem areas identified pursuant to § 60-2.17(b) and to attain established goals and objectives. In order for these action-oriented programs to be effective, the contractor must ensure that they consist of more than following the same procedures which have previously produced inadequate results. Furthermore, a contractor must demonstrate that it has made good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results.
(d) Internal audit and reporting system. The contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program. The actions listed below are key to a successful affirmative action program:
(1) Monitor records of all personnel activity, including referrals, placements, transfers, promotions, terminations, and compensation, at all levels to ensure the nondiscriminatory policy is carried out;
(2) Require internal reporting on a scheduled basis as to the degree to which equal employment opportunity and organizational objectives are attained;
(3) Review report results with all levels of management; and
(4) Advise top management of program effectiveness and submit recommendations to improve unsatisfactory performance.
(a) Purpose. Corporate Management Compliance Evaluations are designed to ascertain whether individuals are encountering artificial barriers to advancement into mid-level and senior corporate management, i.e., glass ceiling. During Corporate Management Compliance Evaluations, special attention is given to those components of the employment process that affect advancement into mid-and senior-level positions.
(b) If, during the course of a Corporate Management Compliance Evaluation, it comes to the attention of OFCCP that problems exist at establishments outside the corporate headquarters, OFCCP may expand the compliance evaluation beyond the headquarters establishment. At its discretion, OFCCP may direct its attention to and request relevant data for any and all areas within the corporation to ensure compliance with Executive Order 11246.
The affirmative action program must be summarized and updated annually. The program summary must be prepared in a format which will be prescribed by the Director and published in the
The contractor must make available to the Office of Federal Contract Compliance Programs, upon request, records maintained pursuant to § 60-1.12 of this chapter and written or otherwise documented portions of AAPs maintained pursuant to § 60-2.10 for such purposes as may be appropriate to the fulfillment of the agency's responsibilities under Executive Order 11246.
To the extent that any state or local laws, regulations or ordinances, including those that grant special benefits to persons on account of sex, are in conflict with Executive Order 11246, as amended, or with the requirements of this part, they will be regarded as preempted under the Executive Order.
All orders, instructions, regulations, and memorandums of the Secretary of Labor, other officials of the Department of Labor and contracting agencies are hereby superseded to the extent that they are inconsistent with this part 60-2.
No contractor's compliance status will be judged alone by whether it reaches its goals. The composition of the contractor's workforce (i.e., the employment of minorities or women at a percentage rate below, or above, the goal level) does not, by itself, serve as a basis to impose any of the sanctions authorized by Executive Order 11246 and the regulations in this chapter. Each contractor's compliance with its affirmative action obligations will be determined by reviewing the nature and extent of the contractor's good faith affirmative action activities as required under § 60-2.17, and the appropriateness of those activities to identified equal employment opportunity problems. Each contractor's compliance with its nondiscrimination obligations will be determined by analysis of statistical data and other non-statistical information which would indicate whether employees and applicants are being treated without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
A. Need for uniformity—Issuing agencies. The Federal government's need for a uniform set of principles on the question of the use of tests and other selection procedures has long been recognized. The Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice jointly have adopted these uniform guidelines to meet that need, and to apply the same principles to the Federal Government as are applied to other employers.
B. Purpose of guidelines. These guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures. These guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results. However, all users are encouraged to use selection procedures which are valid, especially users operating under merit principles.
C. Relation to prior guidelines. These guidelines are based upon and supersede previously issued guidelines on employee selection procedures. These guidelines have been built upon court decisions, the previously issued guidelines of the agencies, and the practical experience of the agencies, as well as the standards of the psychological profession. These guidelines are intended to be consistent with existing law.
A. Application of guidelines. These guidelines will be applied by the Equal Employment Opportunity Commission in the enforcement of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter “Title VII”); by the Department of Labor, and the contract compliance agencies until the transfer of authority contemplated by the President's Reorganization Plan No. 1 of 1978, in the administration and enforcement of Executive Order 11246, as amended by Executive Order 11375 (hereinafter “Executive Order 11246”); by the Civil Service Commission and other Federal agencies subject to section 717 of Title VII; by the Civil Service Commission in exercising its responsibilities toward State and local governments under section 208(b)(1) of the Intergovernmental-Personnel Act; by the Department of Justice in exercising its responsibilities under Federal law; by the Office of Revenue Sharing of the Department of the Treasury under the State and Local Fiscal Assistance Act of 1972, as amended; and by any other Federal agency which adopts them.
B. Employment decisions. These guidelines apply to tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include but are not limited to hiring, promotion, demotion, membership (for example, in a labor organization), referral, retention, and licensing and certification, to the extent that licensing and certification may be covered by Federal equal employment opportunity law. Other selection decisions, such as selection for training or transfer, may also be considered employment decisions if they lead to any of the decisions listed above.
C. Selection procedures. These guidelines apply only to selection procedures which are used as a basis for making employment decisions. For example, the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures. Similarly, these guidelines do not pertain to the question of the lawfulness of a seniority system within the meaning of section 703(h), Executive Order 11246 or other provisions of Federal law or regulation, except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job. Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used.
D. Limitations. These guidelines apply only to persons subject to Title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of handicap.
E. Indian preference not affected. These guidelines do not restrict any obligation imposed or right granted by Federal law to users to extend a preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation.
A. Procedure having adverse impact constitutes discrimination unless justified. The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 of this part are satisfied.
B. Consideration of suitable alternative selection procedures. Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines. If a user has made a reasonable effort to become aware of such alternative procedures and validity has been demonstrated in accord with these guidelines, the use of the test or other selection procedure may continue until such time as it should reasonably be reviewed for currency. Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines. This subsection is not intended to preclude the combination of procedures into a significantly more valid procedure, if the use of such a combination has been shown to be in compliance with the guidelines.
A. Records concerning impact. Each user should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group as set forth in subparagraph B of this section in order to determine compliance with these guidelines. Where there are large numbers of applicants and procedures are administered frequently, such information may be retained on a sample basis, provided that the sample is appropriate in terms of the applicant population and adequate in size.
B. Applicable race, sex, and ethnic groups for recordkeeping. The records called for by this section are to be maintained by sex, and the following races and ethnic groups: Blacks (Negroes), American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), whites (Caucasians) other than Hispanic, and totals. The race, sex, and ethnic classifications called for by this section are consistent with the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series of reports. The user should adopt safeguards to insure that the records required by this paragraph are used for appropriate purposes such as determining adverse impact, or (where required) for developing and monitoring affirmative action programs, and that such records are not used improperly. See sections 4E and 17(4), of this part.
C. Evaluation of selection rates. The “bottom line.” If the information called for by sections 4A and B of this section shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact. If this information shows that the total selection process does not have an adverse impact, the Federal enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual circumstances, will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process, including the separate parts of a multipart selection procedure or any separate procedure that is used as an alternative method of selection. However, in the following circumstances the Federal enforcement agencies will expect a user to evaluate the individual components for adverse impact and may, where appropriate, take enforcement action with respect to the individual components: (1) where the selection procedure is a significant factor in the continuation of patterns of assignments of incumbent employees caused by prior discriminatory employment practices, (2) where the weight of court decisions or administrative interpretations hold that a specific procedure (such as height or weight requirements or no-arrest records) is not job related in the same or similar circumstances. In unusual circumstances, other than those listed in paragraphs (1) and (2) of this section, the Federal enforcement agencies may request a user to evaluate the individual components for adverse impact and may, where appropriate, take enforcement action with respect to the individual component.
D. Adverse impact and the “four-fifths rule.” A selection rate for any race, sex, or ethnic group which is less than four-fifths (
E. Consideration of user's equal employment opportunity posture. In carrying out their obligations, the Federal enforcement agencies will consider the general posture of the user with respect to equal employment opportunity for the job or group of jobs in question. Where a user has adopted an affirmative action program, the Federal enforcement agencies will consider the provisions of that program, including the goals and timetables which the user has adopted and the progress which the user has made in carrying out that program and in meeting the goals and timetables. While such affirmative action programs may in design and execution be race, color, sex, or ethnic conscious, selection procedures under such programs should be based upon the ability or relative ability to do the work.
A. Acceptable types of validity studies. For the purposes of satisfying these guidelines, users may rely upon criterion-related validity studies, content validity studies or construct validity studies, in accordance with the standards set forth in the technical standards of these guidelines, section 14 of this part. New strategies for showing the validity of selection procedures will be evaluated as they become accepted by the psychological profession.
B. Criterion-related, content, and construct validity. Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance. See 14B of this part. Evidence of the validity of a test or other selection procedure by a content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated. See 14C of this part. Evidence of the validity of a test or other selection procedure through a construct validity study should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated. See section 14D of this part.
C. Guidelines are consistent with professional standards. The provisions of these guidelines relating to validation of selection procedures are intended to be consistent with generally accepted professional standards for evaluating standardized tests and other selection procedures, such as those described in the Standards for Educational and Psychological Tests prepared by a joint committee of the American Psychological Association, the American Educational Research Association, and the National Council on Measurement in Education (American Psychological Association, Washington, D.C., 1974) (hereinafter “A.P.A. Standards”) and standard textbooks and journals in the field of personnel selection.
D. Need for documentation of validity. For any selection procedure which is part of a selection process which has an adverse impact and which selection procedure has an adverse impact, each user should maintain and have available such documentation as is described in section 15 of this part.
E. Accuracy and standardization. Validity studies should be carried out under conditions which assure insofar as possible the adequacy and accuracy of the research and the report. Selection procedures should be administered and scored under standardized conditions.
F. Caution against selection on basis of knowledges, skills, or ability learned in brief orientation period. In general, users should avoid making employment decisions on the basis of measures of knowledges, skills, or abilities which are normally learned in a brief orientation period, and which have an adverse impact.
G. Method of use of selection procedures. The evidence of both the validity and utility of a selection procedure should support the method the user chooses for operational use of the procedure, if that method of use has a greater adverse impact than another method of use. Evidence which may be sufficient to support the use of a selection procedure on a pass/fail (screening) basis may be insufficient to support the use of the same procedure on a ranking basis under these guidelines. Thus, if a user decides to use a selection procedure on a ranking basis, and that method of use has a greater adverse impact than use on an appropriate pass/fail basis (see section 5H of this section), the user should have sufficient evidence of validity and utility to support the use on a ranking basis. See sections 3B, 14B (5) and (6), and 14C (8) and (9).
H. Cutoff scores. Where cutoff scores are used, they should normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force. Where applicants are ranked on the basis of properly validated selection procedures and those applicants scoring below a higher cutoff score than appropriate in light of such expectations have little or no chance of being selected for employment, the higher cutoff score may be appropriate, but the degree of adverse impact should be considered.
I. Use of selection procedures for higher level jobs. If job progression structures are so established that employees will probably, within a reasonable period of time and in a majority of cases, progress to a higher level, it may be considered that the applicants are being evaluated for a job or jobs at the higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it should be considered that applicants are being evaluated for a job at or near the entry level. A “reasonable period of time” will vary for different jobs and employment situations but will seldom be more than 5 years. Use of selection procedures to evaluate applicants for a higher level job would not be appropriate:
(1) If the majority of those remaining employed do not progress to the higher level job;
(2) If there is a reason to doubt that the higher level job will continue to require essentially similar skills during the progression period; or
(3) If the selection procedures measure knowledges, skills, or abilities required for advancement which would be expected to develop principally from the training or experience on the job.
J. Interim use of selection procedures. Users may continue the use of a selection procedure which is not at the moment fully supported by the required evidence of validity, provided: (1) The user has available substantial evidence of validity, and (2) the user has in progress, when technically feasible, a study which is designed to produce the additional evidence required by these guidelines within a reasonable time. If such a study is not technically feasible, see section 6B. If the study does not demonstrate validity, this provision of these guidelines for interim use shall not constitute a defense in any action, nor shall it relieve the user of any obligations arising under Federal law.
K. Review of validity studies for currency. Whenever validity has been shown in accord with these guidelines for the use of a particular selection procedure for a job or group of jobs, additional studies need not be performed until such time as the validity study is subject to review as provided in section 3B of this part. There are no absolutes in the area of determining the currency of a validity study. All circumstances concerning the study, including the validation strategy used, and changes in the relevant labor market and the job should be considered in the determination of when a validity study is outdated.
A. Use of alternate selection procedures to eliminate adverse impact. A user may choose to utilize alternative selection procedures in order to eliminate adverse impact or as part of an affirmative action program. See section 13 of this part. Such alternative procedures should eliminate the adverse impact in the total selection process, should be lawful and should be as job related as possible.
B. Where validity studies cannot or need not be performed. There are circumstances in which a user cannot or need not utilize the validation techniques contemplated by these guidelines. In such circumstances, the user should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact, as set forth below.
(1) Where informal or unscored procedures are used. When an informal or unscored selection procedure which has an adverse impact is utilized, the user should eliminate the adverse impact, or modify the procedure to one which is a formal, scored or quantified measure or combination of measures and then validate the procedure in accord with these guidelines, or otherwise justify continued use of the procedure in accord with Federal law.
(2) Where formal and scored procedures are used. When a formal and scored selection procedure is used which has an adverse impact, the validation techniques contemplated by these guidelines usually should be followed if technically feasible. Where the user cannot or need not follow the validation techniques anticipated by these guidelines, the user should either modify the procedure to eliminate adverse impact or otherwise justify continued use of the procedure in accord with Federal law.
A. Validity studies not conducted by the user. Users may, under certain circumstances, support the use of selection procedures by validity studies conducted by other users or conducted by test publishers or distributors and described in test manuals. While publishers of selection procedures have a professional obligation to provide evidence of validity which meets generally accepted professional standards (see section 5C of this part), users are cautioned that they are responsible for compliance with these guidelines. Accordingly, users seeking to obtain selection procedures from publishers and distributors should be careful to determine that, in the event the user becomes subject to the validity requirements of these guidelines, the necessary information to support validity has been determined and will be made available to the user.
B. Use of criterion-related validity evidence from other sources. Criterion-related validity studies conducted by one test user, or described in test manuals and the professional literature, will be considered acceptable for use by another user when the following requirements are met:
(1) Validity evidence. Evidence from the available studies meeting the standards of section 14B of this part clearly demonstrates that the selection procedure is valid;
(2) Job similarity. The incumbents in the user's job and the incumbents in the job or group of jobs on which the validity study was conducted perform substantially the same major work behaviors, as shown by appropriate job analyses both on the job or group of jobs on which the validity study was performed and on the job for which the selection procedure is to be used; and
(3) Fairness evidence. The studies include a study of test fairness for each race, sex, and ethnic group which constitutes a significant factor in the borrowing user's relevant labor market for the job or jobs in question. If the studies under consideration satisfy paragraphs (1) and (2) of this section but do not contain an investigation of test fairness, and it is not technically feasible for the borrowing user to conduct an internal study of test fairness, the borrowing user may utilize the study until studies conducted elsewhere meeting the requirements of these guidelines show test unfairness, or until such time as it becomes technically feasible to conduct an internal study of test fairness and the results of that study can be acted upon. Users obtaining selection procedures from publishers should consider, as one factor in the decision to purchase a particular selection procedure, the availability of evidence concerning test fairness.
C. Validity evidence from multiunit study. if validity evidence from a study covering more than one unit within an organization statisfies the requirements of section 14B of this part, evidence of validity specific to each unit will not be required unless there are variables which are likely to affect validity significantly.
D. Other significant variables. If there are variables in the other studies which are likely to affect validity significantly, the user may not rely upon such studies, but will be expected either to conduct an internal validity study or to comply with section 6 of this part.
A. Encouragement of cooperative studies. The agencies issuing these guidelines encourage employers, labor organizations, and employment agencies to cooperate in research, development, search for lawful alternatives, and validity studies in order to achieve procedures which are consistent with these guidelines.
B. Standards for use of cooperative studies. If validity evidence from a cooperative study satisfies the requirements of section 14 of this part, evidence of validity specific to each user will not be required unless there are variables in the user's situation which are likely to affect validity significantly.
A. Unacceptable substitutes for evidence of validity. Under no circumstances will the general reputation of a test or other selection procedures, its author or its publisher, or casual reports of it's validity be accepted in lieu of evidence of validity. Specifically ruled out are: assumptions of validity based on a procedure's name or descriptive labels; all forms of promotional literature; data bearing on the frequency of a procedure's usage; testimonial statements and credentials of sellers, users, or consultants; and other nonempirical or anecdotal accounts of selection practices or selection outcomes.
B. Encouragement of professional supervision. Professional supervision of selection activities is encouraged but is not a substitute for documented evidence of validity. The enforcement agencies will take into account the fact that a thorough job analysis was conducted and that careful development and use of a selection procedure in accordance with professional standards enhance the probability that the selection procedure is valid for the job.
A. Where selection procedures are devised by agency. An employment agency, including private employment agencies and State employment agencies, which agrees to a request by an employer or labor organization to devise and utilize a selection procedure should follow the standards in these guidelines for determining adverse impact. If adverse impact exists the agency should comply with these guidelines. An employment agency is not relieved of its obligation herein because the user did not request such validation or has requested the use of some lesser standard of validation than is provided in these guidelines. The use of an employment agency does not relieve an employer or labor organization or other user of its responsibilities under Federal law to provide equal employment opportunity or its obligations as a user under these guidelines.
B. Where selection procedures are devised elsewhere. Where an employment agency or service is requested to administer a selection procedure which has been devised elsewhere and to make referrals pursuant to the results, the employment agency or service should maintain and have available evidence of the impact of the selection and referral procedures which it administers. If adverse impact results the agency or service should comply with these guidelines. If the agency or service seeks to comply with these guidelines by reliance upon validity studies or other data in the possession of the employer, it should obtain and have available such information.
The principles of disparate or unequal treatment must be distinguished from the concepts of validation. A selection procedure—even though validated against job performance in accordance with these guidelines—cannot be imposed upon members of a race, sex, or ethnic group where other employees, applicants, or members have not been subjected to that standard. Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, the persons who were in the class of persons discriminated against during the period the user followed the discriminatory practices should be allowed the opportunity to qualify under less stringent selection procedures previously followed, unless the user demonstrates that the increased standards are required by business necessity. This section does not prohibit a user who has not previously followed merit standards from adopting merit standards which are in compliance with these guidelines; nor does it preclude a user who has previously used invalid or unvalidated selection procedures from developing and using procedures which are in accord with these guidelines.
Users should provide a reasonable opportunity for retesting and reconsideration. Where examinations are administered periodically with public notice, such reasonable opportunity exists, unless persons who have previously been tested are precluded from retesting. The user may however take reasonable steps to preserve the security of its procedures.
A. Affirmative action obligations. The use of selection procedures which have been validated pursuant to these guidelines does not relieve users of any obligations they may have to undertake affirmative action to assure equal employment opportunity. Nothing in these guidelines is intended to preclude the use of lawful selection procedures which assist in remedying the effects of prior discriminatory practices, or the achievement of affirmative action objectives.
B. Encouragement of voluntary affirmative action programs. These guidelines are also intended to encourage the adoption and implementation of voluntary affirmative action programs by users who have no obligation under Federal law to adopt them; but are not intended to impose any new obligations in that regard. The agencies issuing and endorsing these guidelines endorse for all private employers and reaffirm for all governmental employers the Equal Employment Opportunity Coordinating Council's “Policy Statement on Affirmative Action Programs for State and Local Government Agencies” (41 FR 38814, September 13, 1976). That policy statement is attached hereto as appendix, section 17.
The following minimum standards, as applicable, should be met in conducting a validity study. Nothing in these guidelines is intended to preclude the development and use of other professionally acceptable techniques with respect to validation of selection procedures. Where it is not technically feasible for a user to conduct a validity study, the user has the obligation otherwise to comply with these guidelines. See sections 6 and 7 of this part.
A. Validity studies should be based on review of information about the job. Any validity study should be based upon a review of information about the job for which the selection procedure is to be used. The review should include a job analysis except as provided in section 14B(3) of this section with respect to criterion-related validity. Any method of job analysis may be used if it provides the information required for the specific validation strategy used.
B. Technical standards for criterion-related validity studies—(1) Technical feasibility. Users choosing to validate a selection procedure by a criterion-related validity strategy should determine whether it is technically feasible (as defined in section 16) to conduct such a study in the particular employment context. The determination of the number of persons necessary to permit the conduct of a meaningful criterion-related study should be made by the user on the basis of all relevant information concerning the selection procedure, the potential sample and the employment situation. Where appropriate, jobs with substantially the same major work behaviors may be grouped together for validity studies, in order to obtain an adequate sample. These guidelines do not require a user to hire or promote persons for the purpose of making it possible to conduct a criterion-related study.
(2) Analysis of the job. There should be a review of job information to determine measures of work behavior(s) or performance that are relevant to the job or group of jobs in question. These measures or criteria are relevant to the extent that they represent critical or important job duties, work behaviors or work outcomes as developed from the review of job information. The possibility of bias should be considered both in selection of the criterion measures and their application. In view of the possibility of bias in subjective evaluations, supervisory rating techniques and instructions to raters should be carefully developed. All criterion measures and the methods for gathering data need to be examined for freedom from factors which would unfairly alter scores of members of any group. The relevance of criteria and their freedom from bias are of particular concern when there are significant differences in measures of job performance for different groups.
(3) Criterion measures. Proper safeguards should be taken to insure that scores on selection procedures do not enter into any judgments of employee adequacy that are to be used as criterion measures. Whatever criteria are used should represent important or critical work behavior(s) or work outcomes. Certain criteria may be used without a full job analysis if the user can show the importance of the criteria to the particular employment context. These criteria include but are not limited to production rate, error rate, tardiness, absenteeism, and length of service. A standardized rating of overall work performance may be used where a study of the job shows that it is an appropriate criterion. Where performance in training is used as a criterion, success in training should be properly measured and the relevance of the training should be shown either through a comparsion of the content of the training program with the critical or important work behavior(s) of the job(s), or through a demonstration of the relationship between measures of performance in training and measures of job performance. Measures of relative success in training include but are not limited to instructor evaluations, performance samples, or tests. Criterion measures consisting of paper and pencil tests will be closely reviewed for job relevance.
(4) Representativeness of the sample. Whether the study is predictive or concurrent, the sample subjects should insofar as feasible be representative of the candidates normally available in the relevant labor market for the job or group of jobs in question, and should insofar as feasible include the races, sexes, and ethnic groups normally available in the relevant job market. In determining the representativeness of the sample in a concurrent validity study, the user should take into account the extent to which the specific knowledges or skills which are the primary focus of the test are those which employees learn on the job.
(5) Statistical relationships. The degree of relationship between selection procedure scores and criterion measures should be examined and computed, using professionally acceptable statistical procedures. Generally, a selection procedure is considered related to the criterion, for the purposes of these guidelines, when the relationship between performance on the procedure and performance on the criterion measure is statistically significant at the 0.05 level of significance, which means that it is sufficiently high as to have a probability of no more than one (1) in twenty (20) to have occurred by chance. Absence of a statistically significant relationship between a selection procedure and job performance should not necessarily discourage other investigations of the validity of that selection procedure.
(6) Operational use of selection procedures. Users should evaluate each selection procedure to assure that it is appropriate for operational use, including establishment of cutoff scores or rank ordering. Generally, if other factors reman the same, the greater the magnitude of the relationship (e.g., correlation coefficent) between performance on a selection procedure and one or more criteria of performance on the job, and the greater the importance and number of aspects of job performance covered by the criteria, the more likely it is that the procedure will be appropriate for use. Reliance upon a selection procedure which is significantly related to a criterion measure, but which is based upon a study involving a large number of subjects and has a low correlation coefficient will be subject to close review if it has a large adverse impact. Sole reliance upon a single selection instrument which is related to only one of many job duties or aspects of job performance will also be subject to close review. The appropriateness of a selection procedure is best evaluated in each particular situation and there are no minimum correlation coefficients applicable to all employment situations. In determining whether a selection procedure is appropriate for operational use the following considerations should also be taken into account: The degree of adverse impact of the procedure, the availability of other selection procedures of greater or substantially equal validity.
(7) Overstatement of validity findings. Users should avoid reliance upon techniques which tend to overestimate validity findings as a result of capitalization on chance unless an appropriate safeguard is taken. Reliance upon a few selection procedures or criteria of successful job performance when many selection procedures or criteria of performance have been studied, or the use of optimal statistical weights for selection procedures computed in one sample, are techniques which tend to inflate validity estimates as a result of chance. Use of a large sample is one safeguard: cross-validation is another.
(8) Fairness. This section generally calls for studies of unfairness where technically feasible. The concept of fairness or unfairness of selection procedures is a developing concept. In addition, fairness studies generally require substantial numbers of employees in the job or group of jobs being studied. For these reasons, the Federal enforcement agencies recognize that the obligation to conduct studies of fairness imposed by the guidelines generally will be upon users or groups of users with a large number of persons in a job class, or test developers; and that small users utilizing their own selection procedures will generally not be obligated to conduct such studies because it will be technically infeasible for them to do so.
(a) Unfairness defined. When members of one race, sex, or ethnic group characteristically obtain lower scores on a selection procedure than members of another group, and the differences in scores are not reflected in differences in a measure of job performance, use of the selection procedure may unfairly deny opportunities to members of the group that obtains the lower scores.
(b) Investigation of fairness. Where a selection procedure results in an adverse impact on a race, sex, or ethnic group identified in accordance with the classifications set forth in section 4 of this part and that group is a significant factor in the relevant labor market, the user generally should investigate the possible existence of unfairness for that group if it is technically feasible to do so. The greater the severity of the adverse impact on a group, the greater the need to investigate the possible existence of unfairness. Where the weight of evidence from other studies shows that the selection procedure predicts fairly for the group in question and for the same or similar jobs, such evidence may be relied on in connection with the selection procedure at issue.
(c) General considerations in fairness investigations. Users conducting a study of fairness should review the A.P.A. Standards regarding investigation of possible bias in testing. An investigation of fairness of a selection procedure depends on both evidence of validity and the manner in which the selection procedure is to be used in a particular employment context. Fairness of a selection procedure cannot necessarily be specified in advance without investigating these factors. Investigation of fairness of a selection procedure in samples where the range of scores on selection procedures or criterion measures is severely restricted for any subgroup sample (as compared to other subgroup samples) may produce misleading evidence of unfairness. That factor should accordingly be taken into account in conducting such studies and before reliance is placed on the results.
(d) When unfairness is shown. If unfairness is demonstrated through a showing that members of a particular group perform better or poorer on the job than their scores on the selection procedure would indicate through comparison with how members of other groups perform, the user may either revise or replace the selection instrument in accordance with these guidelines, or may continue to use the selection instrument operationally with appropriate revisions in its use to assure compatibility between the probability of successful job performance and the probability of being selected.
(e) Technical feasibility of fairness studies. In addition to the general conditions needed for technical feasibility for the conduct of a criterion-related study (see section 16, below) an investigation of fairness requires the following:
(1) An adequate sample of persons in each group available for the study to achieve findings of statistical significance. Guidelines do not require a user to hire or promote persons on the basis of group classifications for the purpose of making it possible to conduct a study of fairness; but the user has the obligation otherwise to comply with these guidelines.
(2) The samples for each group should be comparable in terms of the actual job they perform, length of time on the job where time on the job is likely to affect performance, and other relevant factors likely to affect validity differences; or such factors should be included in the design of the study and their effects identified.
(f) Continued use of selection procedures when fairness studies not feasible. If a study of fairness should otherwise be performed, but is not technically feasible, a selection procedure may be used which has otherwise met the validity standards of these guidelines, unless the technical infeasibility resulted from discriminatory employment practices which are demonstrated by facts other than past failure to conform with requirements for validation of selection procedures. However, when it becomes technically feasible for the user to perform a study of fairness and such a study is otherwise called for, the user should conduct the study of fairness.
C. Technical standards for content validity studies—(1) Appropriateness of content validity studies. Users choosing to validate a selection procedure by a content validity strategy should determine whether it is appropriate to conduct such a study in the particular employment context. A selection procedure can be supported by a content validity strategy to the extent that it is a representative sample of the content of the job. Selection procedures which purport to measure knowledges, skills, or abilities may in certain circumstances be justified by content validity, although they may not be representative samples, if the knowledge, skill, or ability measured by the selection procedure can be operationally defined as provided in paragraph 14C(4) of this section, and if that knowledge, skill, or ability is a necessary prerequisite to successful job performance.
(2) Job analysis for content validity. There should be a job analysis which includes an analysis of the important work behavior(s) required for successful performance and their relative importance and, if the behavior results in work product(s), an analysis of the work product(s). Any job analysis should focus on the work behavior(s) and the tasks associated with them. If work behavior(s) are not observable, the job analysis should identify and analyze those aspects of the behavior(s) that can be observed and the observed work products. The work behavior(s) selected for measurement should be critical work behavior(s) and/or important work behavior(s) constituting most of the job.
(3) Development of selection procedures. A selection procedure designed to measure the work behavior may be developed specifically from the job and job analysis in question, or may have been previously developed by the user, or by other users or by a test publisher.
(4) Standards for demonstrating content validity. To demonstrate the content validity of a selection procedure, a user should show that the behavior(s) demonstrated in the selection procedure are a representative sample of the behavior(s) of the job in question or that the selection procedure provides a representative sample of the work product of the job. In the case of a selection procedure measuring a knowledge, skill, or ability, the knowledge, skill, or ability being measured should be operationally defined. In the case of a selection procedure measuring a knowledge, the knowledge being measured should be operationally defined as that body of learned information which is used in and is a necessary prerequisite for observable aspects of work behavior of the job. In the case of skills or abilities, the skill or ability being measured should be operationally defined in terms of observable aspects of work behavior of the job. For any selection procedure measuring a knowledge, skill, or ability the user should show that (a) the selection procedure measures and is a representative sample of that knowledge, skill, or ability; and (b) that knowledge, skill, or ability is used in and is a necessary prerequisite to performance of critical or important work behavior(s). In addition, to be content valid, a selection procedure measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product. If a test purports to sample a work behavior or to provide a sample of a work product, the manner and setting of the selection procedure and its level and complexity should closely approximate the work situation. The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior, or the setting and manner of the administration of the selection procedure less resemble the work situation, or the result less resembles a work product, the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.
(5) Reliability. The reliability of selection procedures justified on the basis of content validity should be a matter of concern to the user. Whenever it is feasible, appropriate statistical estimates should be made of the reliability of the selection procedure.
(6) Prior training or experience. A requirement for or evaluation of specific prior training or experience based on content validity, including a specification of level or amount of training or experience, should be justified on the basis of the relationship between the content of the training or experience and the content of the job for which the training or experience is to be required or evaluated. The critical consideration is the resemblance between the specific behaviors, products, knowledges, skills, or abilities in the experience or training and the specific behaviors, products, knowledges, skills, or abilities required on the job, whether or not there is close resemblance between the experience or training as a whole and the job as a whole.
(7) Content validity of training success. Where a measure of success in a training program is used as a selection procedure and the content of a training program is justified on the basis of content validity, the use should be justified on the relationship between the content of the training program and the content of the job.
(8) Operational use. A selection procedure which is supported on the basis of content validity may be used for a job if it represents a critical work behavior (i.e., a behavior which is necessary for performance of the job) or work behaviors which constitute most of the important parts of the job.
(9) Ranking based on content validity studies. If a user can show, by a job analysis or otherwise, that a higher score on a content valid selection procedure is likely to result in better job performance, the results may be used to rank persons who score above minimum levels. Where a selection procedure supported solely or primarily by content validity is used to rank job candidates, the selection procedure should measure those aspects of performance which differentiate among levels of job performance.
D. Technical standards for construct validity studies—(1) Appropriateness of construct validity studies. Construct validity is a more complex strategy than either criterion-related or content validity. Construct validation is a relatively new and developing procedure in the employment field, and there is at present a lack of substantial literature extending the concept to employment practices. The user should be aware that the effort to obtain sufficient empirical support for construct validity is both an extensive and arduous effort involving a series of research studies, which include criterion related validity studies and which may include content validity studies. Users choosing to justify use of a selection procedure by this strategy should therefore take particular care to assure that the validity study meets the standards set forth below.
(2) Job analysis for construct validity studies. There should be a job analysis. This job analysis should show the work behavior(s) required for successful performance of the job, or the groups of jobs being studied, the critical or important work behavior(s) in the job or group of jobs being studied, and an identification of the construct(s) believed to underlie successful performance of these critical or important work behaviors in the job or jobs in question. Each construct should be named and defined, so as to distinguish it from other constructs. If a group of jobs is being studied the jobs should have in common one or more critical or important work behav- iors at a comparable level of complexity.
(3) Relationship to the job. A selection procedure should then be identified or developed which measures the construct identified in accord with subparagraph (2) of this section. The user should show by empirical evidence that the selection procedure is validly related to the construct and that the construct is validly related to the performance of critical or important work behavior(s). The relationship between the construct as measured by the selection procedure and the related work behavior(s) should be supported by empirical evidence from one or more criterion-related studies involving the job or jobs in question which satisfy the provisions of paragraph 14B of this section.
(4) Use of construct validity study without new criterion-related evidence—(a) Standards for use. Until such time as professional literature provides more guidance on the use of construct validity in employment situations, the Federal agencies will accept a claim of construct validity without a criterion-related study which satisfies paragraph 14B of this section only when the selection procedure has been used elsewhere in a situation in which a criterion-related study has been conducted and the use of a criterion-related validity study in this context meets the standards for transportability of criterion-related validity studies as set forth above in section 7. However, if a study pertains to a number of jobs having common critical or important work behaviors at a comparable level of complexity, and the evidence satisfies subparagraphs 14B (2) and (3) of this section for those jobs with criterion-related validity evidence for those jobs, the selection procedure may be used for all the jobs to which the study pertains. If construct validity is to be generalized to other jobs or groups of jobs not in the group studied, the Federal enforcement agencies will expect at a minimum additional empirical research evidence meeting the standards of subparagraphs section 14B (2) and (3) of this section for the additional jobs or groups of jobs.
(b) Determination of common work behaviors. In determining whether two or more jobs have one or more work behavior(s) in common, the user should compare the observed work behavior(s) in each of the jobs and should compare the observed work product(s) in each of the jobs. If neither the observed work behavior(s) in each of the jobs nor the observed work product(s) in each of the jobs are the same, the Federal enforcement agencies will presume that the work behavior(s) in each job are different. If the work behaviors are not observable, then evidence of similarity of work products and any other relevant research evidence will be considered in determining whether the work behavior(s) in the two jobs are the same.
A. Required information. Users of selection procedures other than those users complying with section 15A(1) of this section should maintain and have available for each job information on adverse impact of the selection process for that job and, where it is determined a selection process has an adverse impact, evidence of validity as set forth below.
(1) Simplified recordkeeping for users with less than 100 employees. In order to minimize recordkeeping burdens on employers who employ one hundred (100) or fewer employees, and other users not required to file EEO-1, et seq., reports, such users may satisfy the requirements of this section 15 if they maintain and have available records showing, for each year:
(a) The number of persons hired, promoted, and terminated for each job, by sex, and where appropriate by race and national origin;
(b) The number of applicants for hire and promotion by sex and where appropriate by race and national origin; and
(c) The selection procedures utilized (either standardized or not standardized).
(2) Information on impact—(a) Collection of information on impact. Users of selection procedures other than those complying with section 15A(1) of this part should maintain and have available for each job records or other information showing whether the total selection process for that job has an adverse impact on any of the groups for which records are called for by section 4B of this part. Adverse impact determinations should be made at least annually for each such group which constitutes at least 2 percent of the labor force in the relevant labor area or 2 percent of the applicable workforce. Where a total selection process for a job has an adverse impact, the user should maintain and have available records or other information showing which components have an adverse impact. Where the total selection process for a job does not have an adverse impact, information need not be maintained for individual components except in circumstances set forth in subsection 15A(2)(b) of this section. If the determination of adverse impact is made using a procedure other than the “four-fifths rule,” as defined in the first sentence of section 4D of this part, a justification, consistent with section 4D of this part, for the procedure used to determine adverse impact should be available.
(b) When adverse impact has been eliminated in the total selection process. Whenever the total selection process for a particular job has had an adverse impact, as defined in section 4 of this part, in any year, but no longer has an adverse impact, the user should maintain and have available the information on individual components of the selection process required in the preceding paragraph for the period in which there was adverse impact. In addition, the user should continue to collect such information for at least two (2) years after the adverse impact has been eliminated.
(c) When data insufficient to determine impact. Where there has been an insufficient number of selections to determine whether there is an adverse impact of the total selection process for a particular job, the user should continue to collect, maintain and have available the information on individual components of the selection process required in paragraph 15(A)(2)(a) of this part until the information is sufficient to determine that the overall selection process does not have an adverse impact as defined in section 4 of this part, or until the job has changed substantially.
(3) Documentation of validity evidence—(a) Types of evidence. Where a total selection process has an adverse impact (see section 4 of this part) the user should maintain and have available for each component of that process which has an adverse impact, one or more of the following types of documentation evidence:
(i) Documentation evidence showing criterion-related validity of the selection procedure (see section 15B, of this section).
(ii) Documentation evidence showing content validity of the selection procedure (see section 15C, of this section).
(iii) Documentation evidence showing construct validity of the selection procedure (see section 15D, of this section).
(iv) Documentation evidence from other studies showing validity of the selection procedure in the user's facility (see section 15E, of this section).
(v) Documentation evidence showing why a validity study cannot or need not be performed and why continued use of the procedure is consistent with Federal law.
(b) Form of report. This evidence should be compiled in a reasonably complete and organized manner to permit direct evaluation of the validity of the selection procedure. Previously written employer or consultant reports of validity, or reports describing validity studies completed before the issuance of these guidelines are acceptable if they are complete in regard to the documentation requirements contained in this section, or if they satisfied requirements of guidelines which were in effect when the validity study was completed. If they are not complete, the required additional documentation should be appended. If necessary information is not available the report of the validity study may still be used as documentation, but its adequacy will be evaluated in terms of compliance with the requirements of these guidelines.
(c) Completeness. In the event that evidence of validity is reviewed by an enforcement agency, the validation reports completed after the effective date of these guidelines are expected to contain the information set forth below. Evidence denoted by use of the word “(Essential)” is considered critical. If information denoted essential is not included, the report will be considered incomplete unless the user affirmatively demonstrates either its unavailability due to circumstances beyond the user's control or special circumstances of the user's study which make the information irrelevant. Evidence not so denoted is desirable but its absence will not be a basis for considering a report incomplete. The user should maintain and have available the information called for under the heading “Source Data” in sections 15B(11) and 15D(11). While it is a necessary part of the study, it need not be submitted with the report. All statistical results should be organized and presented in tabular or graphic form to the extent feasible.
B. Criterion-related validity studies. Reports of criterion-related validity for a selection procedure should include the following information:
(1) User(s), location(s), and date(s) of study. Dates and location(s) of the job analysis or review of job information, the date(s) and location(s) of the administration of the selection procedures and collection of criterion data, and the time between collection of data on selection procedures and criterion measures should be provided (Essential). If the study was conducted at several locations, the address of each location, including city and State, should be shown.
(2) Problem and setting. An explicit definition of the purpose(s) of the study and the circumstances in which the study was conducted should be provided. A description of existing selection procedures and cutoff scores, if any, should be provided.
(3) Job analysis or review of job information. A description of the procedure used to analyze the job or group of jobs, or to review the job information should be provided (Essential). Where a review of job information results in criteria which may be used without a full job analysis (see section 14B(3)), the basis for the selection of these criteria should be reported (Essential). Where a job analysis is required a complete description of the work behavior(s) or work outcome(s), and measures of their criticality or importance should be provided (Essential). The report should describe the basis on which the behavior(s) or outcome(s) were determined to be critical or important, such as the proportion of time spent on the respective behaviors, their level of difficulty, their frequency of performance, the consequences of error, or other appropriate factors (Essential). Where two or more jobs are grouped for a validity study, the information called for in this subsection should be provided for each of the jobs, and the justification for the grouping (see section 14B(1)) should be provided (essential).
(4) Job titles and codes. It is desirable to provide the user's job title(s) for the job(s) in question and the corresponding job title(s) and code(s) from U.S. Employment Service's Dictionary of Occupational Titles.
(5) Criterion measures. The bases for the selection of the criterion measures should be provided, together with references to the evidence considered in making the selection of criterion measures (essential). A full description of all criteria on which data were collected and means by which they were observed, recorded, evaluated, and quantified, should be provided (essential). If rating techniques are used as criterion measures, the appraisal form(s) and instructions to the rater(s) should be included as part of the validation evidence, or should be explicitly described and available (essential). All steps taken to insure that criterion measures are free from factors which would unfairly alter the scores of members of any group should be described (essential).
(6) Sample description. A description of how the research sample was identified and selected should be included (essential). The race, sex, and ethnic composition of the sample, including those groups set forth in section 4A of this part, should be described (essential). This description should include the size of each subgroup (essential). A description of how the research sample compares with the relevant labor market or work force, the method by which the relevant labor market or work force was defined, and a discussion of the likely effects on validity of differences between the sample and the relevant labor market or work force, are also desirable. Descriptions of educational levels, length of service, and age are also desirable.
(7) Description of selection procedures. Any measure, combination of measures, or procedure studied should be completely and explicitly described or attached (essential). If commercially available selection procedures are studied, they should be described by title, form, and publisher (essential). Reports of reliability estimates and how they were established are desirable.
(8) Techniques and results. Methods used in analyzing data should be described (essential). Measures of central tendency (e.g., means) and measures of dispersion (e.g., standard deviations and ranges) for all selection procedures and all criteria should be reported for each race, sex, and ethnic group which constitutes a significant factor in the relevant labor market (essential). The magnitude and direction of all relationships between selection procedures and criterion measures investigated should be reported for each relevant race, sex, and ethnic group and for the total group (essential). Where groups are too small to obtain reliable evidence of the magnitude of the relationship, need not be reported separately. Statements regarding the statistical significance of results should be made (essential). Any statistical adjustments, such as for less then perfect reliability or for restriction of score range in the selection procedure or criterion should be described and explained; and uncorrected correlation coefficients should also be shown (essential). Where the statistical technique categorizes continuous data, such as biserial correlation and the phi coefficient, the categories and the bases on which they were determined should be described and explained (essential). Studies of test fairness should be included where called for by the requirements of section 14B(8) (essential). These studies should include the rationale by which a selection procedure was determined to be fair to the group(s) in question. Where test fairness or unfairness has been demonstrated on the basis of other studies, a bibliography of the relevant studies should be included (essential). If the bibliography includes unpublished studies, copies of these studies, or adequate abstracts or summaries, should be attached (essential). Where revisions have been made in a selection procedure to assure compatability between successful job performance and the probability of being selected, the studies underlying such revisions should be included (essential). All statistical results should be organized and presented by relevant race, sex, and ethnic group (essential).
(9) Alternative procedures investigated. The selection procedures investigated and available evidence of their impact should be identified (essential). The scope, method, and findings of the investigation, and the conclusions reached in light of the findings, should be fully described (essential).
(10) Uses and applications. The methods considered for use of the selection procedure (e.g., as a screening device with a cutoff score, for grouping or ranking, or combined with other procedures in a battery) and available evidence of their impact should be described (essential). This description should include the rationale for choosing the method for operational use, and the evidence of the validity and utility of the procedure as it is to be used (essential). The purpose for which the procedure is to be used (e.g., hiring, transfer, promotion) should be described (essential). If weights are assigned to different parts of the selection procedure, these weights and the validity of the weighted composite should be reported (essential). If the selection procedure is used with a cutoff score, the user should describe the way in which normal expectations of proficiency within the work force were determined and the way in which the cutoff score was determined (essential).
(11) Source data. Each user should maintain records showing all pertinent information about individual sample members and raters where they are used, in studies involving the validation of selection procedures. These records should be made available upon request of a compliance agency. In the case of individual sample members these data should include scores on the selection procedure(s), scores on criterion measures, age, sex, race, or ethnic group status, and experience on the specific job on which the validation study was conducted, and may also include such things as education, training, and prior job experience, but should not include names and social security numbers. Records should be maintained which show the ratings given to each sample member by each rater.
(12) Contact person. The name, mailing address, and telephone number of the person who may be contacted for further information about the validity study should be provided (essential).
(13) Accuracy and completeness. The report should describe the steps taken to assure the accuracy and completeness of the collection, analysis, and report of data and results.
C. Content validity studies. Reports of content validity for a selection procedure should include the following information:
(1) User(s), location(s) and date(s) of study. Dates and location(s) of the job analysis should be shown (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of the study and the circumstances in which the study was conducted should be provided. A description of existing selection procedures and cutoff scores, if any, should be provided.
(3) Job analysis—Content of the job. A description of the method used to analyze the job should be provided (essential). The work behavior(s), the associated tasks, and, if the behavior results in a work product, the work products should be completely described (essential). Measures of criticality and/or importance of the work behavior(s) and the method of determining these measures should be provided (essential). Where the job analysis also identified the knowledges, skills, and abilities used in work behavior(s), an operational definition for each knowledge in terms of a body of learned information and for each skill and ability in terms of observable behaviors and outcomes, and the relationship between each knowledge, skill, or ability and each work behavior, as well as the method used to determine this relationship, should be provided (essential). The work situation should be described, including the setting in which work behavior(s) are performed, and where appropriate, the manner in which knowledges, skills, or abilities are used, and the complexity and difficulty of the knowledge, skill, or ability as used in the work behavior(s).
(4) Selection procedure and its content. Selection procedures, including those constructed by or for the user, specific training requirements, composites of selection procedures, and any other procedure supported by content validity, should be completely and explicitly described or attached (essential). If commercially available selection procedures are used, they should be described by title, form, and publisher (essential). The behaviors measured or sampled by the selection procedure should be explicitly described (essential). Where the selection procedure purports to measure a knowledge, skill, or ability, evidence that the selection procedure measures and is a representative sample of the knowledge, skill, or ability should be provided (essential).
(5) Relationship between the selection procedure and the job. The evidence demonstrating that the selection procedure is a representative work sample, a representative sample of the work behavior(s), or a representative sample of a knowledge, skill, or ability as used as a part of a work behavior and necessary for that behavior should be provided (essential). The user should identify the work behavior(s) which each item or part of the selection procedure is intended to sample or measure (essential). Where the selection procedure purports to sample a work behavior or to provide a sample of a work product, a comparison should be provided of the manner, setting, and the level of complexity of the selection procedure with those of the work situation (essential). If any steps were taken to reduce adverse impact on a race, sex, or ethnic group in the content of the procedure or in its administration, these steps should be described. Establishment of time limits, if any, and how these limits are related to the speed with which duties must be performed on the job, should be explained. Measures of central tendency (e.g., means) and measures of dispersion (e.g., standard deviations) and estimates of realibility should be reported for all selection procedures if available. Such reports should be made for relevant race, sex, and ethnic subgroups, at least on a statistically reliable sample basis.
(6) Alternative procedures investigated. The alternative selection procedures investigated and available evidence of their impact should be identified (essential). The scope, method, and findings of the investigation, and the conclusions reached in light of the findings, should be fully described (essential).
(7) Uses and applications. The methods considered for use of the selection procedure (e.g., as a screening device with a cutoff score, for grouping or ranking, or combined with other procedures in a battery) and available evidence of their impact should be described (essential). This description should include the rationale for choosing the method for operational use, and the evidence of the validity and utility of the procedure as it is to be used (essential). The purpose for which the procedure is to be used (e.g., hiring, transfer, promotion) should be described (essential). If the selection procedure is used with a cutoff score, the user should describe the way in which normal expectations of proficiency within the work force were determined and the way in which the cutoff score was determined (essential). In addition, if the selection procedure is to be used for ranking, the user should specify the evidence showing that a higher score on the selection procedure is likely to result in better job performance.
(8) Contact person. The name, mailing address, and telephone number of the person who may be contacted for further information about the validity study should be provided (essential).
(9) Accuracy and completeness. The report should describe the steps taken to assure the accuracy and completeness of the collection, analysis, and report of data and results.
D. Construct validity studies. Reports of construct validity for a selection procedure should include the following information:
(1) User(s), location(s), and date(s) of study. Date(s) and location(s) of the job analysis and the gathering of other evidence called for by these guidelines should be provided (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of the study and the circumstances in which the study was conducted should be provided. A description of existing selection procedures and cutoff scores, if any, should be provided.
(3) Construct definition. A clear definition of the construct(s) which are believed to underlie successful performance of the critical or important work behavior(s) should be provided (essential). This definition should include the levels of construct performance relevant to the job(s) for which the selection procedure is to be used (essential). There should be a summary of the position of the construct in the psychological literature, or in the absence of such a position, a description of the way in which the definition and measurement of the construct was developed and the psychological theory underlying it (essential). Any quantitative data which identify or define the job constructs, such as factor analyses, should be provided (essential).
(4) Job analysis. A description of the method used to analyze the job should be provided (essential). A complete description of the work behavior(s) and, to the extent appropriate, work outcomes and measures of their criticality and/or importance should be provided (essential). The report should also describe the basis on which the behavior(s) or outcomes were determined to be important, such as their level of difficulty, their frequency of performance, the consequences of error or other appropriate factors (essential). Where jobs are grouped or compared for the purposes of generalizing validity evidence, the work behavior(s) and work product(s) for each of the jobs should be described, and conclusions concerning the similarity of the jobs in terms of observable work behaviors or work products should be made (essential).
(5) Job titles and codes. It is desirable to provide the selection procedure user's job title(s) for the job(s) in question and the corresponding job title(s) and code(s) from the United States Employment Service's dictionary of occupational titles.
(6) Selection procedure. The selection procedure used as a measure of the construct should be completely and explicitly described or attached (essential). If commercially available selection procedures are used, they should be identified by title, form and publisher (essential). The research evidence of the relationship between the selection procedure and the construct, such as factor structure, should be included (essential). Measures of central tendency, variability and reliability of the selection procedure should be provided (essential). Whenever feasible, these measures should be provided separately for each relevant race, sex and ethnic group.
(7) Relationship to job performance. The criterion-related study(ies) and other empirical evidence of the relationship between the construct measured by the selection procedure and the related work behavior(s) for the job or jobs in question should be provided (essential). Documentation of the criterion-related study(ies) should satisfy the provisions of paragraph 15B of this section or paragraph 15E(1) of this section, except for studies conducted prior to the effective date of these guidelines (essential). Where a study pertains to a group of jobs, and, on the basis of the study, validity is asserted for a job in the group, the observed work behaviors and the observed work products for each of the jobs should be described (essential). Any other evidence used in determining whether the work behavior(s) in each of the jobs is the same should be fully described (essential).
(8) Alternative procedures investigated. The alternative selection procedures investigated and available evidence of their impact should be identified (essential). The scope, method, and findings of the investigation, and the conclusions reached in light of the findings should be fully described (essential).
(9) Uses and applications. The methods considered for use of the selection procedure (e.g., as a screening device with a cutoff score, for grouping or ranking, or combined with other procedures in a battery) and available evidence of their impact should be described (essential). This description should include the rationale for choosing the method for operational use, and the evidence of the validity and utility of the procedure as it is to be used (essential). The purpose for which the procedure is to be used (e.g., hiring, transfer, promotion) should be described (essential). If weights are assigned to different parts of the selection procedure, these weights and the validity of the weighted composite should be reported (essential). If the selection procedure is used with a cutoff score, the user should describe the way in which normal expectations of proficiency within the work force were determined and the way in which the cutoff score was determined (essential).
(10) Accuracy and completeness. The report should describe the steps taken to assure the accuracy and completeness of the collection, analysis, and report of data and results.
(11) Source data. Each user should maintain records showing all pertinent information relating to its study of construct validity.
(12) Contact person. The name, mailing address, and telephone number of the individual who may be contacted for further information about the validity study should be provided (essential).
E. Evidence of validity from other studies. When validity of a selection procedure is supported by studies not done by the user, the evidence from the original study or studies should be compiled in a manner similar to that required in the appropriate paragraph of this section 15 above. In addition, the following evidence should be supplied:
(1) Evidence from criterion-related validity studies—a. Job information. A description of the important job behavior(s) of the user's job and the basis on which the behaviors were determined to be important should be provided (essential). A full description of the basis for determining that these important work behaviors are the same as those of the job in the original study (or studies) should be provided (essential).
b. Relevance of criteria. A full description of the basis on which the criteria used in the original studies are determined to be relevant for the user should be provided (essential).
c. Other variables. The similarity of important applicant pool or sample characteristics reported in the original studies to those of the user should be described (essential). A description of the comparison between the race, sex and ethnic composition of the user's relevant labor market and the sample in the original validity studies should be provided (essential).
d. Use of the selection procedure. A full description should be provided showing that the use to be made of the selection procedure is consistent with the findings of the original validity studies (essential).
e. Bibliography. A bibliography of reports of validity of the selection procedure for the job or jobs in question should be provided (essential). Where any of the studies included an investigation of test fairness, the results of this investigation should be provided (essential). Copies of reports published in journals that are not commonly available should be described in detail or attached (essential). Where a user is relying upon unpublished studies, a reasonable effort should be made to obtain these studies. If these unpublished studies are the sole source of validity evidence they should be described in detail or attached (essential). If these studies are not available, the name and address of the source, an adequate abstract or summary of the validity study and data, and a contact person in the source organization should be provided (essential).
(2) Evidence from content validity studies. See sections 14C(3) and section 15C of this section.
(3) Evidence from construct validity studies. See sections 14D(2) and 15D of this section.
F. Evidence of validity from cooperative studies. Where a selection procedure has been validated through a cooperative study, evidence that the study satisfies the requirements of sections 7, 8 and 15E should be provided (essential).
G. Selection for higher level job. If a selection procedure is used to evaluate candidates for jobs at a higher level than those for which they will initially be employed, the validity evidence should satisfy the documentation provisions of this section 15 for the higher level job or jobs, and in addition, the user should provide: (1) a description of the job progression structure, formal or informal; (2) the data showing how many employees progress to the higher level job and the length of time needed to make this progression; and (3) an identification of any anticipated changes in the higher level job. In addition, if the test measures a knowledge, skill or ability, the user should provide evidence that the knowledge, skill or ability is required for the higher level job and the basis for the conclusion that the knowledge, skill or ability is not expected to develop from the training or experience on the job.
H. Interim use of selection procedures. If a selection procedure is being used on an interim basis because the procedure is not fully supported by the required evidence of validity, the user should maintain and have available (1) substantial evidence of validity for the procedure, and (2) a report showing the date on which the study to gather the additional evidence commenced, the estimated completion date of the study, and a description of the data to be collected (essential).
The following definitions shall apply throughout these guidelines:
A. Ability. A present competence to perform an observable behavior or a behavior which results in an observable product.
B. Adverse impact. A substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group. See section 4 of these guidelines.
C. Compliance with these guidelines. Use of a selection procedure is in compliance with these guidelines if such use has been validated in accord with these guidelines (as defined below), or if such use does not result in adverse impact on any race, sex, or ethnic group (see section 4, of this part), or, in unusual circumstances, if use of the procedure is otherwise justified in accord with Federal law. See section 6B, of this part.
D. Content validity. Demonstrated by data showing that the content of a selection procedure is representative of important aspects of performance on the job. See section 5B and section 14C.
E. Construct validity. Demonstrated by data showing that the selection procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important for successful job performance. See section 5B and section 14D.
F. Criterion-related validity. Demonstrated by empirical data showing that the selection procedure is predictive of or significantly correlated with important elements of work behavior. See sections 5B and 14B.
G. Employer. Any employer subject to the provisions of the Civil Rights Act of 1964, as amended, including State or local governments and any Federal agency subject to the provisions of section 717 of the Civil Rights Act of 1964, as amended, and any Federal contractor or subcontractor or federally assisted construction contractor or subcontactor covered by Executive Order 11246, as amended.
H. Employment agency. Any employment agency subject to the provisions of the Civil Rights Act of 1964, as amended.
I. Enforcement action. For the purposes of section 4 a proceeding by a Federal enforcement agency such as a lawsuit or an administrative proceeding leading to debarment from or withholding, suspension, or termination of Federal Government contracts or the suspension or withholding of Federal Government funds; but not a finding of reasonable cause or a concil- ation process or the issuance of right to sue letters under title VII or under Executive Order 11246 where such finding, conciliation, or issuance of notice of right to sue is based upon an individual complaint.
J. Enforcement agency. Any agency of the executive branch of the Federal Government which adopts these guidelines for purposes of the enforcement of the equal employment opportunity laws or which has responsibility for securing compliance with them.
K. Job analysis. A detailed statement of work behaviors and other information relevant to the job.
L. Job description. A general statement of job duties and responsibilities.
M. Knowledge. A body of information applied directly to the performance of a function.
N. Labor organization. Any labor organization subject to the provisions of the Civil Rights Act of 1964, as amended, and any committee subject thereto controlling apprenticeship or other training.
O. Observable. Able to be seen, heard, or otherwise perceived by a person other than the person performing the action.
P. Race, sex, or ethnic group. Any group of persons identifiable on the grounds of race, color, religion, sex, or national origin.
Q. Selection procedure. Any measure, combination of measures, or procedure used as a basis for any employment decision. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.
R. Selection rate. The proportion of applicants or candidates who are hired, promoted, or otherwise selected.
S. Should. The term “should” as used in these guidelines is intended to connote action which is necessary to achieve compliance with the guidelines, while recognizing that there are circumstances where alternative courses of action are open to users.
T. Skill. A present, observable competence to perform a learned psychomoter act.
U. Technical feasibility. The exist- ence of conditions permitting the conduct of meaningful criterion-related validity studies. These conditions include: (1) An adequate sample of persons available for the study to achieve findings of statistical significance; (2) having or being able to obtain a sufficient range of scores on the selection procedure and job performance measures to produce validity results which can be expected to be representative of the results if the ranges normally expected were utilized; and (3) having or being able to devise unbiased, reliable and relevant measures of job performance or other criteria of employee adequacy. See section 14B(2). With respect to investigation of possible unfairness, the same considerations are applicable to each group for which the study is made. See section 14B(8).
V. Unfairness of selection procedure. A condition in which members of one race, sex, or ethnic group characteristically obtain lower scores on a selection procedure than members of another group, and the differences are not reflected in differences in measures of job performance. See section 14B(7).
W. User. Any employer, labor organization, employment agency, or licensing or certification board, to the extent it may be covered by Federal equal employment opportunity law, which uses a selection procedure as a basis for any employment decision. Whenever an employer, labor organization, or employment agency is required by law to restrict recruitment for any occupation to those applicants who have met licensing or certification requirements, the licensing or certifying authority to the extent it may be covered by Federal equal employment opportunity law will be considered the user with respect to those licensing or certification requirements. Whenever a State employment agency or service does no more than administer or monitor a procedure as permitted by Department of Labor regulations, and does so without making referrals or taking any other action on the basis of the results, the State employment agency will not be deemed to be a user.
X. Validated in accord with these guidelines or properly validated. A demonstration that one or more validity study or studies meeting the standards of these guidelines has been conducted, including investigation and, where appropriate, use of suitable alternative selection procedures as contemplated by section 3B, and has produced evidence of validity sufficient to warrant use of the procedure for the intended purpose under the standards of these guidelines.
Y. Work behavior. An activity performed to achieve the objectives of the job. Work behaviors involve observable (physical) components and unobservable (mental) components. A work behavior consists of the performance of one or more tasks. Knowledges, skills, and abilities are not behaviors, although they may be applied in work behaviors.
The Equal Employment Opportunity Coordinating Council was established by act of Congress in 1972, and charged with responsibility for developing and implementing agreements and policies designed, among other things, to eliminate conflict and inconsistency among the agencies of the Federal Government responsible for administering Federal law prohibiting discrimination on grounds of race, color, sex, religion, and national origin. This statement is issued as an initial response to the requests of a number of State and local officials for clarification of the Government's policies concerning the role of affirmative action in the overall equal employment opportunity program. While the Coordinating Council's adoption of this statement expresses only the views of the signatory agencies concerning this important subject, the principles set forth below should serve as policy guidance for other Federal agencies as well.
(1) Equal employment opportunity is the law of the land. In the public sector of our society this means that all persons, regardless of race, color, religion, sex, or national origin shall have equal access to positions in the public service limited only by their ability to do the job. There is ample evidence in all sectors of our society that such equal access frequently has been denied to members of certain groups because of their sex, racial, or ethnic characteristics. The remedy for such past and present discrimination is twofold.
On the one hand, vigorous enforcement of the laws against discrimination is essential. But equally, and perhaps even more important are affirmative, voluntary efforts on the part of public employers to assure that positions in the public service are genuinely and equally accessible to qualified persons, without regard to their sex, racial, or ethnic characteristics. Without such efforts equal employment opportunity is no more than a wish. The importance of voluntary affirmative action on the part of employers is underscored by title VII of the Civil Rights Act of 1964, Executive Order 11246, and related laws and regulations—all of which emphasize voluntary action to achieve equal employment opportunity.
As with most management objectives, a systematic plan based on sound organizational analysis and problem identification is crucial to the accomplishment of affirmative action objectives. For this reason, the Council urges all State and local governments to develop and implement results oriented affirmative action plans which deal with the problems so identified.
The following paragraphs are intended to assist State and local governments by illustrating the kinds of analyses and activities which may be appropriate for a public employer's voluntary affirmative action plan. This statement does not address remedies imposed after a finding of unlawful discrimination.
(2) Voluntary affirmative action to assure equal employment opportunity is construction of any affirmative action plan should be an analysis of the employer's work force to determine whether precentages of sex, race, or ethnic groups in individual job classifications are substantially similar to the precentages of those groups available in the relevant job market who possess the basic job-related qualifications.
When substantial disparities are found through such analyses, each element of the overall selection process should be examined to determine which elements operate to exclude persons on the basis of sex, race, or ethnic group. Such elements include, but are not limited to, recruitment, testing, ranking certification, interview, recommendations for selection, hiring, promotion, etc. The examination of each element of the selection process should at a minimum include a determination of its validity in predicting job performance.
(3) When an employer has reason to believe that its selection procedures have the exclusionary effect described in paragraph 2 of this section, it should initiate affirmative steps to remedy the situation. Such steps, which in design and execution may be race, color, sex, or ethnic “conscious,” include, but are not limited to, the following:
(a) The establishment of a long-term goal, and short-range, interim goals and timetables for the specific job classifications, all of which should take into account the availability of basically qualified persons in the relevant job market;
(b) A recruitment program designed to attract qualified members of the group in question;
(c) A systematic effort to organize work and redesign jobs in ways that provide opportunities for persons lacking “journeyman” level knowledge or skills to enter and, with appropriate training, to progress in a career field;
(d) Revamping selection instruments or procedures which have not yet been validated in order to reduce or eliminate exclusionary effects on particular groups in particular job classifications;
(e) The initiation of measures designed to assure that members of the affected group who are qualified to perform the job are included within the pool of persons from which the selecting official makes the selection;
(f) A systematic effort to provide career advancement training, both classroom and on-the-job, to employees locked into dead end jobs; and
(g) The establishment of a system for regularly monitoring the effectiveness of the particular affirmative action program, and procedures for making timely adjustments in this program where effectiveness is not demonstrated.
(4) The goal of any affirmative action plan should be achievement of genuine equal employment opportunity for all qualified persons. Selection under such plans should be based upon the ability of the applicant(s) to do the work. Such plans should not require the selection of the unqualified, or the unneeded, nor should they require the selection of persons on the basis of race, color, sex, religion, or national origin. Moreover, while the Council believes that this statement should serve to assist State and local employers, as well as Federal agencies, it recognizes that affirmative action cannot be viewed as a standardized program which must be accomplished in the same way at all times in all places.
Accordingly, the Council has not attempted to set forth here either the minimum or maximum voluntary steps that employers may take to deal with their respective situations. Rather, the Council recognizes that under applicable authorities, State and local employers have flexibility to formulate affirmative action plans that are best suited to their particular situations. In this manner, the Council believes that affirmative action programs will best serve the goal of equal employment opportunity.
Respectfully submitted,
Because of its equal employment opportunity responsibilities under the State and Local Government Fiscal Assistance Act of 1972 (the revenue sharing act), the Department of Treasury was invited to participate in the formulation of this policy statement; and it concurs and joins in the adoption of this policy statement.
The official title of these guidelines is “Uniform Guidelines on Employee Selection Procedures (1978)”. The Uniform Guidelines on Employee Selection Procedures (1978) are intended to establish a uniform Federal position in the area of prohibiting discrimination in employment practices on grounds of race, color, religion, sex, or national origin. These guidelines have been adopted by the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Civil Service Commission.
The official citation is:
“Section 60-3, Uniform Guidelines on Employee Selection Procedure (1978); 43 FR 38295 (August 25, 1978).”
The short form citation is:
“Section 60-3, U.G.E.S.P. (1978); 43 FR 38295 (August 25, 1978).”
When the guidelines are cited in connection with the activities of one of the issuing agencies, a specific citation to the regulations of that agency can be added at the end of the above citation. The specific additional citations are as follows:
29 CFR Part 1607
41 CFR Part 60-3
28 CFR 50.14
5 CFR 300.103(c)
Normally when citing these guidelines, the section number immediately preceding the title of the guidelines will be from these guidelines series 1-18. If a section number from the codification for an individual agency is needed it can also be added at the end of the agency citation. For example, section 6A of these guidelines could be cited for EEOC as follows: “Section 6A, Uniform Guidelines on Employee Selection Procedures (1978); 43 FR 38295, (August 25, 1978); 29 CFR Part 1607, section 6A.”
This part applies to all contractors and subcontractors which hold any Federal or federally assisted construction contract in excess of $10,000. The regulations in this part are applicable to all of a construction contractor's or subcontractor's construction employees who are engaged in on site contruction including those construction employees who work on a non-Federal or nonfederally assisted construction site. This part also establishes procedures which all Federal contracting officers and all applicants, as applicable, shall follow in soliciting for and awarding Federal or federally assisted construction contracts. Procedures also are established which administering agencies shall follow in making any grant, contract, loan, insurance, or guarantee involving federally assisted construction which is not exempt from the requirements of Executive Order 11246, as amended.
(a) All Federal contracting officers and all applicants shall include the notice set forth in paragraph (d) of this section and the Standard Federal Equal Employment Opportunity Construction Contract Specifications set forth in § 60-4.3 of this part in all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts to be performed in geographical areas designated by the Director pursuant to § 60-4.6 of the part. Administering agencies shall require the inclusion of the notice set forth in paragraph (d) of this section and the specifications set forth in § 60-4.3 of this part as a condition of any grant, contract, subcontract, loan, insurance or guarantee involving federally assisted construction covered by this part 60-4.
(b) All nonconstruction contractors covered by Executive Order 11246 and the implementing regulations shall include the notice in paragraph (d) of this section in all construction agreements which are necessary in whole or in part to the performance of the covered nonconstruction contract.
(c) Contracting officers, applicants and nonconstruction contractors shall given written notice to the Director within 10 working days of award of a contract subject to these provisions. The notification shall include the name, address and telephone number of the contractor; employer identification number; dollar amount of the contract, estimated starting and completion dates of the contract; the contract number; and geographical area in which the contract is to be performed.
(d) The following notice shall be included in, and shall be a part of, all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in geographical areas designated by the Director pursuant to § 60-4.6 of this part (see 41 CFR 60-4.2(a)):
1. The Offeror's or Bidder's attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Specifications” set forth herein.
2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covered area, are as follows:
| Time- tables | Goals for minority participation for each trade | Goals for female participation in each trade |
|---|---|---|
| Insert goals for each year | Insert goals for each year. |
These goals are applicable to all the Contractor's construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the contractor also is subject to the goals for both its federally involved and nonfederally involved construction.
The Contractor's compliance with the Executive Order and the regulations in 41 CFR part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade, and the contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor's goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR part 60-4. Compliance with the goals will be measured against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.
4. As used in this Notice, and in the contract resulting from this solicitation, the “covered area” is (insert description of the geographical areas where the contract is to be performed giving the state, county and city, if any).
(a) The equal opportunity clause published at 41 CFR 60-1.4(a) of this chapter is required to be included in, and is part of, all nonexempt Federal contracts and subcontracts, including construction contracts and subcontracts. The equal opportunity clause published at 41 CFR 60-1.4(b) is required to be included in, and is a part of, all nonexempt federally assisted construction contracts and subcontracts. In addition to the clauses described above, all Federal contracting officers, all applicants and all nonconstruction contractors, as applicable, shall include the specifications set forth in this section in all Federal and federally assisted construction contracts in excess of $10,000 to be performed in geographical areas designated by the Director pursuant to § 60-4.6 of this part and in construction subcontracts in excess of $10,000 necessary in whole or in part to the performance of nonconstruction Federal contracts and subcontracts covered under the Executive order.
1. As used in these specifications:
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
b. “Director” means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority;
c. “Employer identification number” means the Federal Social Security number used on the Employer's Quarterly Federal Tax Return, U.S. Treasury Department Form 941.
d. “Minority” includes:
(i) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race);
(iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and
(iv) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
2. Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
3. If the Contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other Contractors or Subcontractors toward a goal in an approved Plan does not excuse any covered Contractor's or Subcontractor's failure to take good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7 a through p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered Construction contractors performing construction work in geographical areas where they do not have a Federal or federally assisted constuction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor's compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor's employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the Contractor's obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities.
b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations' responses.
c. Maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken.
d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor's employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newpaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
g. Review, at least annually, the company's EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with onsite supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.
h. Disseminate the Contractor's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor's EEO policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.
j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a Contractor's work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.
m. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor's obligations under these specifications are being carried out.
n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisors' adherence to and performance under the Contractor's EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7a through p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under 7a through p of these Specifications provided that the contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor's minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to fulfill an obligation shall not be a defense for the Contractor's noncompliance.
9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
11. The Contractor shall not enter into any Subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
(b) The notice set forth in 41 CFR 60-4.2 and the specifications set forth in 41 CFR 60-4.3 replace the New Form for Federal Equal Employment Opportunity Bid Conditions for Federal and Federally Assisted Construction published at 41 FR 32482 and commonly known as the Model Federal EEO Bid Conditions, and the New Form shall not be used after the regulations in 41 CFR part 60-4 become effective.
(a) To implement the affirmative action requirements of Executive Order 11246 in the construction industry, the Office of Federal Contract Compliance Programs previously has approved affirmative action programs commonly referred to as “Hometown Plans,” has promulgated affirmative action plans referred to as “Imposed Plans” and has approved “Special Bid Conditions” for high impact projects constructed in areas not covered by a Hometown or an Imposed Plan. All solicitations for construction contracts made after the effective date of the regulations in this part shall include the notice specified in § 60-4.2 of this part and the specifications in § 60-4.3 of this part in lieu of the Hometown and Imposed Plans including the Philadelphia Plan and Special Bid Conditions. Until the Director has issued an order pursuant to § 60-4.6 of this part establishing goals and timetables for minorities in the appropriate geographical areas or for a project covered by Special Bid Conditions, the goals and timetables for minorities to be inserted in the Notice required by 41 CFR 60-4.2 shall be the goals and timetables contained in the Hometown Plan, Imposed Plan or Special Bid Conditions presently covering the respective geographical area or project involved.
(b) Signatories to a Hometown Plan (including heavy highway affirmative action plans) shall have 45 days from the effective date of the regulations in this part to submit under such a Plan (for the director's approval) goals and timetables for women and to include female representation on the Hometown Plan Administrative Committee. Such goals for female representation shall be at least as high as the goals established for female representation in the notice issued pursuant to 41 CFR 60-4.6. Failure of the signatories, within the 45-day period, to include female representation and to submit goals for women or a new plan, as appropriate, shall result in an automatic termination of the Office of Federal Contract Compliance Program's approval of the Hometown Plan. At any time the Office of Federal Contract Compliance Programs terminates or withdraws its approval of a Hometown Plan, or when the plan expires and another plan is not approved, the contractors signatory to the plan shall be covered automatically by the specifications set forth in § 60-4.3 of this part and by the goals and timetables established for that geographical area pursuant to § 60-4.6 of this part.
(a) A contractor participating, either individually or through an association, in an approved Hometown Plan (including heavy highway affirmative action plans) shall comply with its affirmative action obligations under Executive Order 11246 by complying with its obligations under the plan: Provided, That each contractor or subcontractor participating in an approved plan is individually required to comply with the equal opportunity clause set forth in 41 CFR 60-1.4; to make a good faith effort to achieve the goals for each trade participating in the plan in which it has employees; and that the overall good performance by other contractors or subcontractors toward a goal in an approved plan does not excuse any covered contractor's or subcontractor's failure to take good faith efforts to achieve the plan's goals and timetables. If a contractor is not participating in an approved Hometown Plan it shall comply with the specifications set forth in § 60-4.3 of this part and with the goals and timetables for the appropriate area as listed in the notice required by 41 CFR 60-4.2 with regard to that trade. For the purposes of this part 60-4, a contractor is not participating in a Hometown Plan for a particular trade if it:
(1) Ceases to be signatory to a Hometown Plan covering that trade;
(2) Is signatory to a Hometown Plan for that trade but is not party to a collective bargaining agreement for that trade;
(3) Is signatory to a Hometown Plan for that trade but is party to a collective bargaining agreement with labor organizations which are not or cease to be signatories to the same Hometown Plan for that trade;
(4) Is signatory to a Hometown Plan for that trade but is party to a collective bargaining agreement with a labor organization for that trade but the two have not jointly executed a specific commitment to minority and female goals and timetables and incorporated the commitment in the Hometown Plan for that trade;
(5) Is participating in a Hometown Plan for that trade which is no longer acceptable to the Office of Federal Contract Compliance Programs;
(6) Is signatory to a Hometown Plan for that trade but is party to a collective bargaining agreement with a labor organization for that trade and the labor organization and the contractor have failed to make a good faith effort to comply with their obligations under the Hometown Plan for that trade.
(b) Contractors participating in Hometown Plans must be able to demonstrate their participation and document their compliance with the provision of the Hometown Plan.
The Director, from time to time, shall issue goals and timetables for minority and female utilization which shall be based on appropriate workforce, demographic or other relevant data and which shall cover construction projects or construction contracts performed in specific geographical areas. The goals, which shall be applicable to each construction trade in a covered contractor's or subcontractor's entire workforce which is working in the area covered by the goals and timetables, shall be published as notices in the
The regulations in this part are in addition to the regulations contained in this chapter which apply to construction contractors and subcontractors generally. See particularly, 41 CFR 60-1.4 (a), (b), (c), (d), and (e); 60-1.5; 60-1.7; 60-1.8; 60-1.26; 60-1.29; 60-1.30; 60-1.32; 60-1.41; 60-1.42; 60-1.43; and 41 CFR part 60-3; part 60-20; part 60-30; part 60-40; and part 60-50.
If an investigation or compliance review reveals that a construction contractor or subcontractor has violated the Executive order, any contract clause, specifications or the regulations in this chapter and if administrative enforcement is contemplated, the Director shall issue to the contractor or subcontractor a notice to show cause which shall contain the items specified in paragraphs (i) through (iv) of 41 CFR 60-2.2(c)(1). If the contractor does not show good cause within 30 days, or in the alternative, fails to enter an acceptable conciliation agreement which includes where appropriate, make up goals and timetables, back pay, and seniority relief for affected class members, the OFCCP shall follow the procedure in 41 CFR 60-1.26(b): Provided, That where a conciliation agreement has been violated, no show cause notice is required prior to the initiation of enforcement proceedings.
By operation of the order, the equal opportunity clause contained in § 60-1.4, the Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order 11246) contained in § 60-4.2, and the Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246) contained in § 60-4.3 shall be deemed to be a part of every solicitation or of every contract and subcontract, as appropriate, required by the order and the regulations in this chapter to include such clauses whether or not they are physically incorporated in such solicitation or contract and whether or not the contract is written.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
The purpose of this part is to set forth specific requirements that covered Federal Government contractors and subcontractors, including those performing work under federally assisted construction contracts (“contractors”),
(a) In general. It is unlawful for a contractor to discriminate against any employee or applicant for employment because of sex. The term sex includes, but is not limited to, pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.
(b) Disparate treatment. Unless sex is a bona fide occupational qualification reasonably necessary to the normal operation of a contractor's particular business or enterprise, the contractor may not make any distinction based on sex in recruitment, hiring, firing, promotion, compensation, hours, job assignments, training, benefits, or other terms, conditions, or privileges of employment. Such unlawful sex-based discriminatory practices include, but are not limited to, the following:
(1) Making a distinction between married and unmarried persons that is not applied equally to men and women;
(2) Denying women with children an employment opportunity that is available to men with children;
(3) Treating men and women differently with regard to the availability of flexible work arrangements;
(4) Firing, or otherwise treating adversely, unmarried women, but not unmarried men, who become parents;
(5) Applying different standards in hiring or promoting men and women on the basis of sex;
(6) Steering women into lower-paying or less desirable jobs on the basis of sex;
(7) Imposing any differences in retirement age or other terms, conditions, or privileges of retirement on the basis of sex;
(8) Restricting job classifications on the basis of sex;
(9) Maintaining seniority lines and lists on the basis of sex;
(10) Recruiting or advertising for individuals for certain jobs on the basis of sex;
(11) Distinguishing on the basis of sex in apprenticeship or other formal or informal training programs; in other opportunities such as on-the-job training, networking, mentoring, sponsorship, individual development plans, rotational assignments, and succession planning programs; or in performance appraisals that may provide the basis of subsequent opportunities;
(12) Making any facilities and employment-related activities available only to members of one sex, except that if the contractor provides restrooms, changing rooms, showers, or similar facilities, the contractor must provide same-sex or single-user facilities;
(13) Denying transgender employees access to the restrooms, changing rooms, showers, or similar facilities designated for use by the gender with which they identify; and
(14) Treating employees or applicants adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth.
(c) Disparate impact. Employment policies or practices that have an adverse impact on the basis of sex, and are not job-related and consistent with business necessity, violate Executive Order 11246, as amended, and this part. Examples of policies or practices that may violate Executive Order 11246 in terms of their disparate impact on the basis of sex include, but are not limited to:
(1) Height and/or weight qualifications that are not necessary to the performance of the job and that negatively impact women substantially more than men;
(2) Strength, agility, or other physical requirements that exceed the actual requirements necessary to perform the job in question and that negatively impact women substantially more than men;
(3) Conditioning entry into an apprenticeship or training program on performance on a written test, interview, or other selection procedure that has an adverse impact on women where the contractor cannot establish the validity of the selection procedure consistent with the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3; and
(4) Relying on recruitment or promotion methods, such as “word-of-mouth” recruitment or “tap-on-the-shoulder” promotion, that have an adverse impact on women where the contractor cannot establish that they are job-related and consistent with business necessity.
Contractors may not hire and employ employees on the basis of sex unless sex is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the contractor's particular business or enterprise.
Compensation may not be based on sex. Contractors may not engage in any employment practice that discriminates in wages, benefits, or any other forms of compensation, or denies access to earnings opportunities, because of sex, on either an individual or systemic basis, including, but not limited to, the following:
(a) Contractors may not pay different compensation to similarly situated employees on the basis of sex. For purposes of evaluating compensation differences, the determination of similarly situated employees is case-specific. Relevant factors in determining similarity may include tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. In some cases, employees are similarly situated where they are comparable on some of these factors, even if they are not similar on others.
(b) Contractors may not grant or deny higher-paying wage rates, salaries, positions, job classifications, work assignments, shifts, development opportunities, or other opportunities on the basis of sex. Contractors may not grant or deny training, apprenticeships, work assignments, or other opportunities that may lead to advancement to higher-paying positions on the basis of sex.
(c) Contractors may not provide or deny earnings opportunities because of sex, for example, by denying women equal opportunity to obtain regularand/or overtime hours, commissions, pay increases, incentive compensation, or any other additions to regular earnings.
(d) Contractors may not implement compensation practices that have an adverse impact on the basis of sex and are not shown to be job-related and consistent with business necessity.
(e) A contractor will be in violation of Executive Order 11246 and this part any time it pays wages, benefits, or other compensation that is the result in whole or in part of the application of any discriminatory compensation decision or other practice.
(a) In general. (1) Discrimination on the basis of pregnancy, childbirth, or related medical conditions, including childbearing capacity, is a form of unlawful sex discrimination. Contractors must treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringe-benefit programs, as other persons not so affected, but similar in their ability or inability to work.
(2) Related medical conditions include, but are not limited to, lactation; disorders directly related to pregnancy, such as preeclampsia (pregnancy-induced high blood pressure), placenta previa, and gestational diabetes; symptoms such as back pain; complications requiring bed rest; and the after-effects of a delivery.
(b) Examples. Examples of unlawful pregnancy discrimination include, but are not limited to:
(1) Refusing to hire pregnant people or people of childbearing capacity, or otherwise subjecting such applicants or employees to adverse employment treatment, because of their pregnancy or childbearing capacity;
(2) Firing female employees or requiring them to go on leave because they become pregnant or have a child;
(3) Limiting pregnant employees' job duties based solely on the fact that they are pregnant, or requiring a doctor's note in order for a pregnant employee to continue working; and
(4) Providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions to the same extent that hospitalization and other medical costs are covered for other medical conditions.
(c) Accommodations—(1) Disparate treatment. It is a violation of Executive Order 11246 for a contractor to deny alternative job assignments, modified duties, or other accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions where:
(i) The contractor denies such assignments, modifications, or other accommodations only to employees affected by pregnancy, childbirth, or related medical conditions;
(ii) The contractor provides, or is required by its policy or by other relevant laws to provide, such assignments, modifications, or other accommodations to other employees whose abilities or inabilities to perform their job duties are similarly affected, and the denial of accommodations imposes a significant burden on employees affected by pregnancy, childbirth, or related medical conditions and the contractor's asserted reasons for denying accommodations to such employees do not justify that burden; or
(iii) Intent to discriminate on the basis of pregnancy, childbirth, or related medical conditions is otherwise shown.
(2) Disparate impact. Contractors that have policies or practices that deny alternative job assignments, modified duties, or other accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions must ensure that such policies or practices do not have an adverse impact on the basis of sex unless they are shown to be job-related and consistent with business necessity. For example, where a contractor's policy of offering light duty only to employees with on-the-job injuries has an adverse impact on employees affected by pregnancy, childbirth, or related medical conditions, the policy would be impermissible unless shown to be job-related and consistent with business necessity.
(d) Leave—(1) In general. To the extent that a contractor provides family, medical, or other leave, such leave must not be denied or provided differently on the basis of sex.
(2) Disparate treatment. (i) A contractor must provide job-guaranteed medical leave, including paid sick leave, for employees' pregnancy, childbirth, or related medical conditions on the same terms that medical or sick leave is provided for medical conditions that are similar in their effect on employees' ability to work.
(ii) A contractor must provide job-guaranteed family leave, including any paid leave, for male employees on the same terms that family leave is provided for female employees.
(3) Disparate impact. Contractors that have employment policies or practices under which insufficient or no medical or family leave is available must ensure that such policies or practices do not have an adverse impact on the basis of sex unless they are shown to be job-related and consistent with business necessity.
(a) It shall be an unlawful employment practice for a contractor to discriminate on the basis of sex with regard to fringe benefits.
(b) As used herein, the term “fringe benefits” includes, but is not limited to, medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.
(c) The greater cost of providing a fringe benefit to members of one sex is not a defense to a contractor's failure to provide benefits equally to members of both sexes.
Contractors must not make employment decisions on the basis of sex-based stereotypes, such as stereotypes about how males and/or females are expected to look, speak, or act. Such employment decisions are a form of sex discrimination prohibited by Executive Order 11246, as amended. Examples of discrimination based on sex-based stereotyping may include, but are not limited to:
(a) Adverse treatment of an employee or applicant for employment because of that individual's failure to comply with gender norms and expectations for dress, appearance, and/or behavior, such as:
(1) Failing to promote a woman, or otherwise subjecting her to adverse employment treatment, based on sex stereotypes about dress, including wearing jewelry, make-up, or high heels;
(2) Harassing a man because he is considered effeminate or insufficiently masculine; or
(3) Treating employees or applicants adversely based on their sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes;
(b) Adverse treatment of employees or applicants because of their actual or perceived gender identity or transgender status;
(c) Adverse treatment of a female employee or applicant because she does not conform to a sex stereotype about women working in a particular job, sector, or industry; and
(d) Adverse treatment of employees or applicants based on sex-based stereotypes about caregiver responsibilities. For example, adverse treatment of a female employee because of a sex-based assumption that she has (or will have) family caretaking responsibilities, and that those responsibilities will interfere with her work performance, is discrimination based on sex. Other examples of such discriminatory treatment include, but are not limited to:
(1) Adverse treatment of a male employee because he has taken or is planning to take leave to care for his newborn or recently adopted or foster child based on the sex-stereotyped belief that women and not men should care for children;
(2) Denying opportunities to mothers of children based on the sex-stereotyped belief that women with children should not or will not work long hours, regardless of whether the contractor is acting out of hostility or belief that it is acting in the employee's or her children's best interest;
(3) Evaluating the performance of female employees who have family caregiving responsibilities adversely, based on the sex-based stereotype that women are less capable or skilled than their male counterparts who do not have such responsibilities; and
(4) Adverse treatment of a male employee who is not available to work overtime or on weekends because he cares for his elderly father, based on the sex-based stereotype that men do not have family caregiving responsibilities that affect their availability for work, or that men who are not available for work without constraint are not sufficiently committed, ambitious, or dependable.
(a) Harassment on the basis of sex is a violation of Executive Order 11246, as amended. Unwelcome sexual advances, requests for sexual favors, offensive remarks about a person's sex, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
(2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
(3) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
(b) Harassment because of sex includes sexual harassment (including sexual harassment based on gender identity or transgender status); harassment based on pregnancy, childbirth, or related medical conditions; and harassment that is not sexual in nature but that is because of sex or sex-based stereotypes.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
Best practices. Although not required by this part, following are best practices for contractors:
(1) Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available;
(2) Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;
(3) Providing, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;
(4) Providing appropriate time off and flexible workplace policies for men and women;
(5) Encouraging men and women equally to engage in caregiving-related activities;
(6) Fostering a climate in which women are not assumed to be more likely to provide family care than men; and
(7) Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:
(a) Communicating to all personnel that harassing conduct will not be tolerated;
(b) Providing anti-harassment training to all personnel; and
(c) Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.
This part provides the rules of practice for all administrative proceedings, instituted by the OFCCP including but not limited to proceedings instituted against construction contractors or subcontractors, which relate to the enforcement of equal opportunity under Executive Order 11246, as amended. In the absence of a specific provision, procedures shall be in accordance with the Federal Rules of Civil Procedure.
Upon notice to all parties, the Administrative Law Judge may, with respect to matters pending before him modify or waive any rule herein upon a determination that no party will be prejudiced and that the ends of justice will be served thereby.
In computing any period of time under these rules or in an order issued hereunder, 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 legal holiday observed by the Federal Government in which event it includes the next business day.
(a) Form. The original of all pleadings and papers in a proceeding conducted under the regulations in this part shall be filed with the Administrative Law Judge assigned to the case or with the Chief Administrative Law Judge if the case has not been assigned. Every pleading and paper filed in the proceeding shall contain a caption setting forth the name of the agency instituting the proceeding, the title of the action, the case file number assigned by the Administrative Law Judge, and a designation of the pleading or paper (e.g., complaint, motion to dismiss, etc.). The pleading or papers shall be signed and shall contain the address and telephone number of the person representing the party or the person on whose behalf the pleading or paper was filed. Unless otherwise ordered for good cause by the Administrative Law Judge regarding specific papers and pleadings in a specific case, all such papers and pleadings are public documents.
(b) Service. Service upon any party shall be made by the party filing the pleading or document in accordance with 29 CFR part 26. When a party is represented by an attorney, the service shall be upon the attorney.
(c) Proof of service. A certificate of the person serving the pleading or other document, setting forth the manner of service, shall be proof of the service.
(a) Filing. The Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral from the Office of Federal Contract Compliance Programs, are authorized to institute enforcement proceedings by filing a complaint and serving the complaint upon the contractor which shall be designated as the defendant. The Department of Labor, OFCCP, as shall be designated on plaintiff.
(b) Contents. The complaint shall contain a concise jurisdictional statement, and a clear and concise statement sufficient to put the defendant on notice of the acts or practices it is alleged to have committed in violation of the order, the regulations, or its contractual obligations. The complaint shall also contain a prayer regarding the relief being sought, a statement of whatever sanctions the Government will seek to impose and the name and address of the attorney who will represent the Government.
(c) Amendment. The complaint may be amended once as a matter of course before an answer is filed, and the defendant may amend its answer once as a matter of course not later than 10 days after the filing of the original answer. Other amendments of the complaint or of the answer to the complaint shall be made only by leave of the Administrative Law Judge or by written consent of the adverse party; and leave shall be freely given where justice so requires. An amended complaint shall be answered within 14 days of its service, or within the time for filing an answer to the original complaint, whichever period is longer. An amended answer shall be responded to within 14 days of its service.
(a) Filing and service. Within 20 days after the service of the complaint, the defendant shall file an answer with the Chief Administrative Law Judge if the case has not been assigned to an Administrative Law Judge. The answer shall be signed by the defendant or its attorney, and served on the Government in accordance with § 60-30.4(b).
(b) Contents; failure to file. The answer shall (1) contain a statement of the facts which constitute the grounds of defense, and shall specifically admit, explain, or deny, each of the allegations of the complaint unless the defendant is without knowledge, in which case the answer shall so state; or (2) state that the defendant admits all the allegations of the complaint. The answer may contain a waiver of hearing; and if not, a separate paragraph in the answer shall request a hearing. The answer shall contain the name and address of the defendant, or of the attorney representing the defendant. Failure to file an answer or to plead specifically to any allegation of the complaint shall constitute an admission of such allegation.
(c) Procedure, upon admission of facts. The admission, in the answer or by failure to file an answer, of all the material allegations of fact contained in the complaint shall constitute a waiver of hearing. Upon such admission, the Administrative Law Judge, without further hearing, may prepare his decision in which he shall adopt as his proposed findings of fact the material facts alleged in the complaint. The parties shall be given an opportunity to file exceptions to his decision and to file briefs in support of the exceptions.
The Administrative Law Judge shall respond to defendant's request for a hearing within 15 days and shall serve a notice of prehearing conference on the parties. The notice shall contain the time and place of the conference.
(a) Motions. Motions shall state the relief sought, the authority relied upon and the facts alleged, and shall be filed with the Administrative Law Judge. If made before or after the hearing itself, the motions shall be in writing. If made at the hearing, motions may be stated orally; but the Administrative Law Judge may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Unless otherwise ordered by the Administrative Law Judge, written motions shall be accompanied by a supporting memorandum. Within 10 days after a written motion is served, or such other time period as may be fixed, any party may file a response to a motion.
(b) Disposition of motions. The Administrative Law Judge may not grant a written motion prior to expiration of the time for filing responses thereto, except upon consent of the parties or following a hearing, but may overrule or deny such motion without awaiting response: Provided, That prehearing conferences, hearings, and decisions need not be delayed pending disposition of motions.
(a) Interrogatories. Not later than 25 days prior to the date of the hearing, except for good cause shown, or not later than 14 days prior to such earlier date as the Administrative Law Judge may order, any party may serve upon an opposing party written interrogatories. Each interrogatory shall be answered separately and fully in writing under oath, unless objected to. Answers are to be signed by the person making them and objections by the attorney or by whoever is representing the party. Answers and objections shall be filed and served within 25 days of service of the interrogatory.
(b) Admissions. Not later than 14 days prior to the date of the hearing, except for good cause shown, or not later than 14 days prior to such earlier date as the Administrative Law Judge may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in and exhibited with the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters as to which an admission is requested shall be deemed admitted, unless within 25 days after service, the party to whom the request is directed serves upon the requesting party a sworn statement either (1) denying specifically the matter as to which an admission is requested, or (2) setting forth in detail the reasons why he cannot truthfully either admit or deny such matters.
(c) Objections or failures to respond. The party submitting the interrogatory or request may move for an order with respect to any objection or other failure to respond.
(a) After commencement of the action, any party may serve on any other party a request to produce and/or permit the party, or someone acting on his behalf, to inspect and copy any unprivileged documents, phonorecords, and other compilations, including computer tapes and printouts which contain or may lead to relevant information and which are in the possession, custody, or control of the party upon whom the request is served. If necessary, translation of data compilations shall be done by the party furnishing the information.
(b) After commencement of the action, any party may serve on any other party a request to permit entry upon designated property which may be relevant to the issues in the proceeding and, which is in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying or photographing, testing, or sampling the property or any designated object or area.
(c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time and place for making the inspection and performing the related acts.
(d) The party upon whom the request is served shall respond within 25 days after the service of the request. The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless there are objections, in which case the reasons for each objection shall be stated. The party submitting the request may move for an order with respect to any objection or to other failure to respond.
(a) Depositions; notice of examination. After commencement of the action, any party may take the testimony of any person, including a party, having personal or expert knowledge of the matters in issue, by deposition upon oral examination. A party desiring to take a deposition shall give reasonable notice in writing to every other party to the proceeding, and may use an administrative subpoena. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. The notice shall also set forth the categories of documents the witness is to bring with him to the deposition, if any. A copy of the notice shall be furnished to the person to be examined unless his name is unknown.
(b) Production of witnesses; obligation of parties; objections. It shall be the obligation of each party to produce for examination any person, along with such documents as may be requested, at the time and place, and on the date, set forth in the notice, if that party has control over such person. Each party shall be deemed to have control over its officers, agents, employees, and members. Unless the parties agree otherwise, depositions shall be held within the county in which the witness resides or works. The party or prospective witness may file with the Administrative Law Judge an objection within 5 days after notice of production of such witness is served, stating with particularity the reasons why the party cannot or ought not to produce a requested witness. The party serving the notice may move for an order with respect to such objection or failure to produce a witness. All errors or irregularities in compliance with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is or, with due diligence, might have been ascertained.
(c) Before whom taken; scope of examination; failure to answer. Depositions may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the deposition is held. At the time and place specified in the notice, each party shall be permitted to examine and cross-examine the witness under oath upon any matter which is relevant to the subject matter of the proceeding, or which is reasonably calculated to lead to the production of relevant and otherwise admissible evidence. All objections to questions, except as to the form thereof, and all objections to evidence are reserved until the hearing. A refusal or failure on the part of any person under the control of a party to answer a question shall operate to create a presumption that the answer, if given, would be unfavorable to the controlling party, unless the question is subsequently ruled improper by the Administrative Law Judge or the Administrative Law Judge rules that there was valid justification for the witness' failure or refusal to answer the question: Provided, That the examining party shall note on the record during the deposition the question which the deponent has failed, or refused to answer, and state his intention to invoke the presumption if no answer is forthcoming.
(d) Subscription; certification; filing. The testimony shall be reduced to typewriting, either by the officer taking the deposition or under his direction, and shall be submitted to the witness for examination and signing. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be noted in the certificate of the officer and the deposition may then be used as fully as though signed. The officer shall immediately deliver the original copy of the transcript, together with his certificate, in person or by mail to the Administrative Law Judge. Copies of the transcript and certificate shall be furnished to all persons desiring them, upon payment of reasonable charges, unless distribution is restricted by order of the Administrative Law Judge for good cause shown.
(e) Rulings on admissibility; use of deposition. Subject to the provisions of this section, objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. Any part or all of a deposition, so far as admissible in the discretion of the Administrative Law Judge, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice, in accordance with the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or was designated to testify on behalf of a public or private corporation, partnership, association, or governmental agency which is a party may be used by the adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the administrative law judge finds: (i) That the witness is dead; or (ii) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (iii) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (iv) upon application and notice, that such exceptional circumstances exist as to make it desirable to allow the deposition to be used.
(4) If only part of a deposition is introduced in evidence by a party, any party may introduce any other parts by way of rebuttal and otherwise.
(f) Stipulations. If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used like other depositions.
(a) Upon his own motion or the motion of the parties, the Administrative Law Judge may direct the parties or their counsel to meet with him for a conference to consider:
(1) Simplification of the issues;
(2) Necessity or desirability of amendments to pleadings for purposes of clarification, simplification, or limitation;
(3) Stipulations, admissions of fact and of contents and authenticity of documents;
(4) Limitation of number of witnesses;
(5) Scheduling dates for the exchange of witness lists and of proposed exhibits;
(6) Such other matters as may tend to expedite the disposition of the proceedings.
(b) The record shall show the matters disposed of by order and by agreement in such pretrial conferences. The subsequent course of the proceeding shall be controlled by such action.
(a) General. At any time after the issuance of a complaint and prior to or during the reception of evidence in any proceeding, the parties may jointly move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be in the discretion of the Administrative Law Judge after consideration of the nature of the proceeding, the requirments of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order disposing of a proceeding shall also provide:
(1) That the order shall have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based shall consist solely of the complaint and the agreement;
(3) That any further procedural steps are waived; and
(4) That any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement is waived.
(c) Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:
(1) Submit the proposed agreement to the Administrative Law Judge for his consideration;
(2) Inform the Administrative Law Judge that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed, the Administrative Law Judge, within 30 days, shall accept such agreement by issuing his decision based upon the agreed findings, and his decision shall consititute the final Administrative order.
Hearings shall be held before an Administrative Law Judge of the Department of Labor who shall be designated by the Chief Administrative Law Judge of the Department of Labor. After commencement of the proceeding but prior to the designation of an Administrative Law Judge, pleadings and papers shall be filed with the Chief Administrative Law Judge.
The Administrative Law Judge shall propose findings and conclusions to the Secretary on the basis of the record. In order to do so, he shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order. He shall have all powers necessary to those ends, including, but not limited to, the power to:
(a) Hold conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding by consent of the parties or upon his own motion;
(b) Require parties to state their position with respect to the various issues in the proceeding;
(c) Require parties to produce for examination those relevant witnesses and documents under their control; and require parties to answer interrogatories and requests for admissions in full;
(d) Administer oaths;
(e) Rule on motions, and other procedural items or matters pending before him;
(f) Regulate the course of the hearing and conduct of participants therein;
(g) Examine and cross-examine witnesses, and introduce into the record documentary or other evidence;
(h) Receive, rule on, exclude, or limit evidence and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;
(i) Fix time limits for submission of written documents in matters before him and extend any time limits established by this part upon a determination that no party will be prejudiced and that the ends of justice will be served thereby;
(j) Impose appropriate sanctions against any party or person failing to obey an order under these rules which may include:
(1) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting it from introducing designated matters in evidence;
(2) Excluding all testimony of an unresponsive or evasive witness, or determining that the answer of such witness, if given, would be unfavorable to the party having control over him; and
(3) Expelling any party or person from further participation in the hearing;
(k) Take official notice of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice;
(l) Recommend whether the respondent is in current violation of the order, regulations, or its contractual obligations, as well as the nature of the relief necessary to insure the full enjoyment of the rights secured by the order;
(m) Issue subpoenas; and
(n) Take any action authorized by these rules.
(a) Representation. The parties or other persons or organizations participating pursuant to this part 60-30 have the right to be represented by counsel.
(b) Failure to appear. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election to present his evidence in whole or such portion thereof sufficient to make a prima facie case before the Administrative Law Judge. Failure to appear at the hearing shall not be deemed to be a waiver of the right to be served with a copy of the Administrative Law Judge's recommended decision and to file exceptions to it.
(a) A party wishing to procure the appearance at the hearing of any person having personal or expert knowledge of the matters in issue shall serve on the prospective witness a notice, which may be accomplished by an administrative subpoena, setting forth the time, date, and place at which he is to appear for the purpose of giving testimony. The notice shall also set forth the categories of documents the witness is to bring with him to the hearing, if any. A copy of the notice shall be filed with the Administrative Law Judge and additional copies shall be served upon the opposing parties.
(b) It shall be the obligation of each party to produce for examination any person, along with such documents as may be requested, at the time and place, and on the date, set forth in the notice, if that party has control over such person. Each party shall be deemed to have control over its officers, agents, employees, and members. Due regard shall be given to the convenience of witnesses in scheduling their testimony so that they will be detained no longer than reasonably necessary.
(c) The party or prospective witness may file an objection within 5 days after notice of production of such witness is served stating with particularity the reasons why the party cannot produce a requested witness. The party serving the notice may move for an order with respect to such objection or failure to produce a witness.
In any hearing, decision, or administrative review conducted pursuant to this part, all evidentiary matters shall be governed by Office of Administrative Law Judges' Rules of evidence at 29 CFR part 18, subpart B, Provided however, That the provision at 29 CFR 18.1104 which delays the effective date of the rule with respect to certain investigations does not apply.
(a) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination or the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made on the record may be relied upon subsequently in the proceedings.
(b) Exceptions. Formal exception to an adverse ruling is not required. Rulings by the Administrative Law Judge shall not be appealed prior to the transfer of the case to the Secretary, but shall be considered by the Secretary upon filing exceptions to the Administrative Law Judge's recommendations and conclusions.
(c) Offer of proof. An offer of proof made in connection with an objection taken to any ruling excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in written form or consists of reference to documents, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.
The Administrative Law Judge shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. No employee or agent of the Federal Government engaged in the investigation and prosecution of this case shall participate or advise in the rendering of the recommended or final decision in the case, except as witness or counsel in the proceeding.
Any party shall be entitled upon request to a reasonable period between the close of evidence and termination of the hearing for oral argument. Oral arguments shall be included in the official transcript of the hearing.
The official transcripts of testimony taken, together with any exhibits, briefs, or memorandums of law, shall be filed with the Administrative Law Judge. Transcripts of testimony may be obtained from the official reporter by the parties and the public as provided in section 11(a) of the Federal Advisory Committee Act (86 Stat. 770). Upon notice to all parties, the Administrative Law Judge may authorize such corrections to the transcript as are necessary to reflect accurately the testimony.
(a) For the Government. At any time after the expiration of 20 days from the commencement of the action, or after service of a motion for summary judgment by the respondent, the Government may move with or without supporting affidavits for a summary judgment upon all claims or any part.
(b) For defendant. The defendant may, at any time after commencement of the action, move with or without supporting affidavits for summary judgment in its favor as to all claims or any part.
(c) Other parties. Any other party to a formal proceeding under this part may support or oppose motions for summary judgment made by the Government or respondent, in accordance with this section, but may not move for a summary judgment in his own behalf.
(d) Statement of uncontested facts. All motions for summary judgment shall be accompanied by a “Statement of Uncontested Facts” in which the moving party sets forth all alleged uncontested material facts which shall provide the basis for its motion. At least 5 days prior to the time fixed for hearing on the motion, any party contending that any material fact regarding the matter covered by the motion is in dispute, shall file a “Statement of Disputed Facts.” Failure to file a “Statement of Disputed Facts” shall be deemed as an admission to the “Statement of Uncontested Facts.”
(e) Motion and proceedings. The motion shall be served upon all parties at least 15 days before the time fixed for the hearing on the motion. The adverse party or parties may serve opposing affidavits prior to the day of hearing. The judgment sought shall be rendered forthwith if the complaint and answer, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment rendered for or against the Government or the respondent shall constitute the findings and recommendations on the issues involved. Hearings on motions made under this section shall be scheduled by the Administrative Law Judge.
(f) Case not fully adjudicated on motion. If on motion under this section judgment is not rendered upon the whole case or for all the relief asked and a final hearing is necessary, the Administrative Law Judge at the hearing of the motion, by examining the notice and answer and the evidence before him and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. He shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which relief is not in controversy, and directing such further proceedings as are just. At the hearing on the merits, the facts so specified shall be deemed established, and the final hearing shall be conducted accordingly.
(a)(1) To the extent that proceedings hereunder involve employment of persons covered by a collective bargaining agreement, and compliance may necessitate a revision of such agreement, any labor organization which is a signatory to the agreement shall have the right to participate as a party.
(2) Other persons or organizations shall have the right to participate as parties if the final Administrative order could adversely affect them or the class they represent, and such participation may contribute materially to the proper disposition of the proceedings.
(3) Any person or organization wishing to participate as a party under this section shall file with the Administrative Law Judge and serve on all parties a petition within 25 days after the commencement of the action or at such other time as ordered by the Administrative Law Judge, so long as it does not disrupt the proceeding. Such petition shall concisely state: (i) Petitioner's interest in the proceedings; (ii) who will appear for petitioner; (iii) the issues on which petitioner wishes to participate; and (iv) whether petitioner intends to present witnesses.
(4) The Administrative Law Judge shall determine whether each petitioner has the requisite interest in the proceedings and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interest, the Administrative Law Judge may request all such petitioners to designate a single representative to represent all such petitioners: Provided, That the representative of a labor organization qualifying to participate under paragraph (a)(1) of the section must be permitted to participate in the proceedings. The Administrative Law Judge shall give each petitioner written notice of the decision on his petition; and if the petition is denied, he shall briefly state the grounds for denial and shall then treat the petition as a request for participation as amicus curiae. The Administrative Law Judge shall give written notice to each party of each petition granted.
(b)(1) Any other interested person or organization wishing to participate as amicus curiae shall file a petition before the commencement of the final hearing with the Administrative Law Judge. Such petition shall concisely state: (i) The petitioner's interest in the hearing; (ii) who will represent the petitioner; and (iii) the issues on which petitioner intends to present argument. The Administrative Law Judge may grant the petition if he finds that the petitioner has a legitimate interest in the proceedings, and that such participation may contribute materially to the proper disposition of the issues. An amicus curiae is not a party but may participate as provided in this section.
(2) An amicus curiae may present a brief oral statement at the hearing at the point in the proceeding specified by the Administrative Law Judge. He may submit a written statement of position to the Administrative Law Judge prior to the beginning of a hearing and shall serve a copy on each party. He may also submit a brief or written statement at such time as the parties submit briefs and exceptions, and he shall serve a copy on each party.
Within 20 days after receipt of the transcript of the testimony, each party and amicus may file a brief. Such briefs shall be served simultaneously on all parties and amici, and a certificate of service shall be furnished to the Administrative Law Judge. Requests for additional time in which to file a brief shall be made in writing, and copies shall be served simultaneously on the other parties. Requests for extensions shall be received not later than 3 days before the date such briefs are due. No reply brief may be filed except by special permission of the Administrative Law Judge.
The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, including briefs, but excepting the correspondence section of the docket, shall constitute the record for decision.
Within a reasonable time after the filing of briefs, the Administrative Law Judge shall recommend findings, conclusions, and a decision. These recommendations shall be certified, together with the record for recommended decision, to the Administrative Review Board, United States Department of Labor, for a final Administrative order. The recommended findings, conclusions, and decision shall be served on all parties and amici to the proceeding.
Within 14 days after receipt of the recommended findings, conclusions, and decision, any party may submit exceptions to said recommendation. These exceptions may be responded to by other parties within 14 days of their receipt by said parties. All exceptions and responses shall be filed with the Administrative Review Board, United States Department of Labor. Service of such briefs or exceptions and responses shall be made simultaneously on all parties to the proceeding. Requests to the Administrative Review Board, United States Department of Labor, for additional time in which to file exceptions and responses shall be in writing and copies shall be served simultaneously on other parties. Requests for extensions must be received no later than 3 days before the exceptions are due.
After expiration of the time for filing briefs and exceptions, the Administrative Review Board, United States Department of Labor, shall make a decision, which shall be the Administrative order, on the basis of the record. The record shall consist of the record for recommended decision, the rulings and recommended decision of the Administrative Law Judge and the exceptions and briefs filed subsequent to the Administrative Law Judge's decision.
After expiration of the time for filing, the Administrative Review Board, United States Department of Labor, shall make a decision which shall be served on all parties. If the Administrative Review Board, United States Department of Labor, concludes that the defendant has violated the Executive Order, the equal opportunity clause, or the regulations, an Administrative Order shall be issued enjoining the violations, and requiring the contractor to provide whatever remedies are appropriate, and imposing whatever sanctions are appropriate, or any of the above. In any event, failure to comply with the Administrative Order shall result in the immediate cancellation, termination, and suspension of the respondent's contracts and/or debarment of the respondent from further contracts.
Expedited Hearings may be used, inter alia, when a contractor or subcontractor has violated a conciliation agreement; has not adopted and implemented an acceptable affirmative action program; has refused to give access to or to supply records or other information as required by the equal opportunity clause; or has refused to allow an on-site compliance review to be conducted.
(a) Expedited hearings shall be commenced by filing an administrative complaint in accordance with 41 CFR 60-30.5. The complaint shall state that the hearing is subject to these expedited hearing procedures.
(b) The answer shall be filed in accordance with 41 CFR 60-30.6 (a) and (b).
(c) Failure to request a hearing within the 20 days provided by 41 CFR 60-30.6(a) shall constitute a waiver of hearing, and all the material allegations of fact contained in the complaint shall be deemed to be admitted. If a hearing is not requested or is waived, within 25 days of the complaint's filing, the Administrative Law Judge shall adopt as findings of fact the material facts alleged in the complaint, and shall order the appropriate sanctions and/or penalties sought in the complaint. The Administrative Law Judge's findings and order shall constitute a final Administrative order, unless the Office of the Solicitor, U.S. Department of Labor, files exceptions to the findings and order within 10 days of receipt thereof. If the Office of the Solicitor, U.S. Department of Labor, files exceptions, the matter shall proceed in accordance with § 60-30.36 of this part.
(d) If a request for a hearing is received within 20 days as provided by 41 CFR 60-30.6(a), the hearing shall be convened within 45 days of receipt of the request and shall be completed within 15 days thereafter, unless more hearing time is required.
(a) Any party may serve requests for admissions in accordance with § 60-30.9 (b) and (c).
(b) Witness lists and hearing exhibits will be exchanged at least 10 days in advance of the hearing.
(c) For good cause shown, and upon motion made in accordance with § 60-30.8, the Administrative Law Judge may allow the taking of depositions. Other discovery will not be permitted.
(a) At the hearing, the Government shall be given an opportunity to demonstrate the basis for the request for sanctions and/or remedies, and the contractor shall be given an opportunity to show that the violation complained of did not occur and/or that good cause or good faith efforts excuse the alleged violations. Both parties shall be allowed to present evidence and argument and to cross-examine witnesses.
(b) The hearing shall be informal in nature, and the Administrative Law Judge shall not be bound by formal rules of evidence.
Within 15 days after the hearing is concluded, the Administrative Law Judge shall recommend findings, conclusions, and a decision. The Administrative Law Judge may permit the parties to file written post-hearing briefs within this time period, but the Administrative Law Judge's recommendations shall not be delayed pending receipt of such briefs. These recommendations shall be certified, together with the record, to the Administrative Review Board, United States Department of Labor, for a final Administrative order. The recommended decision shall be served on all parties and amici to the proceeding.
Within 10 days after receipt of the recommended findings, conclusions and decision, any party may submit exceptions to said recommendations. Exceptions may be responded to by other parties within 7 days after receipt by said parties of the exceptions. All exceptions and responses shall be filed with the Administrative Review Board, United States Department of Labor. Briefs or exceptions and responses shall be served simultaneously on all parties to the proceeding.
After expiration of the time for filing exceptions, the Administrative Review Board, United States Department of Labor, shall issue an Administrative Order which shall be served on all parties. Unless the Administrative Review Board, United States Department of Labor, issues an Administrative Order within 30 days after the expiration of the time for filing exceptions, the Administrative Law Judge's recommended decision shall become a final Administrative Order which shall become effective on the 31st day after expiration of the time for filing exceptions. Except as to specific time periods required in this subsection, 41 CFR 60-30.30 shall be applicable to this section.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
This part contains the general rules of the OFCCP providing for public access to information from records of the OFCCP or its various compliance agencies. These regulations implement 5 U.S.C. 552, the Freedom of Information Act and supplement the policy and regulations of the Department of Labor, 29 CFR part 70. It is the policy of the OFCCP to disclose information to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment. This part sets forth generally the categories of records accessible to the public, the types of records subject to prohibitions or restrictions on disclosure, and the places at which and the procedures whereby members of the public may obtain access to and inspect and copy information from records in the custody of the OFCCP.
(a) Upon the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCCP, except in the case of records disclosure of which is prohibited by law.
(b) Consistent with the above, all contract compliance documents within the custody of the OFCCP shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein. The types of documents which if in the custody of the OFCCP must be disclosed include, but are not limited to, the following:
(1) Affirmative action plans, whether or not reviewed and finally accepted by the OFCCP except as limited in 41 CFR 60-40.3(a)(1).
(2) Imposed plans and hometown plans, pending or approved.
(3) Text of final conciliation agreements.
(4) Validation studies of tests or other preemployment selection methods.
(5) Dates and times of scheduled compliance reviews.
(a) The following documents or parts thereof are exempt from mandatory disclosure by the OFCCP, and should be withheld if it is determined that the requested inspection or copying does not further the public interest and might impede the discharge of any of the functions of the OFCCP.
(1) Those portions of affirmative action plans such as goals and timetables which would be confidential commercial or financial information because they indicate, and only to the extent that they indicate, that a contractor plans major shifts or changes in his personnel requirements and he has not made this information available to the public. A determination to withhold this type of information should be made only after receiving verification and a satisfactory explanation from the contractor that the information should be withheld.
(2) Those portions of affirmative action plans which constitute information on staffing patterns and pay scales but only to the extent that their release would injure the business or financial position of the contractor, would constitute a release of confidential financial information of an employee or would constitute an unwarranted invasion of the privacy of an employee.
(3) The names of individual complainants.
(4) The assignments to particular contractors of named compliance officers if such disclosure would subject the named compliance officers to undue harassment or would affect the efficient enforcement of the Executive order.
(5) Compliance investigation files including the standard compliance review report and related documents, during the course of the review to which they pertain or while enforcement action against the contractor is in progress or contemplated within a reasonable time. Therefore, these reports and related files shall not be disclosed only to the extent that information contained therein constitutes trade secrets and confidential commercial or financial information, inter-agency or intra-agency memoranda or letters which would not be available by law to a private party in litigation with the agency, personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, data which would be exempt from mandatory disclosure pursuant to the “informants privilege” or such information the disclosure of which is prohibited by statute.
(6) Copies of preemployment selection tests used by contractors.
(b) Other records may be withheld consistent with the Freedom of Information Act on a case-by-case basis, with the prior approval of the Director, OFCCP.
The Standard Form 100 (EEO-1) which is submitted by contractors to the OFCCP or a Joint Reporting Committee servicing both the OFCCP and the EEOC shall be disclosed pending further instructions from the Director. The statutory prohibition on disclosure set forth in section 709(e) of the Civil Rights Act of 1964 is limited by the terms of that section to information obtained pursuant to the authority of title VII of that Act and its disclosure by employees of the EEOC.
Requests for the inspection and copying of information from records in the custody of the OFCCP which are identifiable and available under the provisions of subpart A of this part shall be made and acted upon as provided in the following sections of this subpart. Officers and employees of the OFCCP are authorized by the Director to continue to furnish to the public, informally and without compliance with these procedures, information and copies from its records which prior to the enactment of the Freedom of Information Act (5 U.S.C. 552) were customarily furnished in the regular performance of their duties.
A request for contract compliance records or information shall be directed to the National OFCCP or appropriate OFCCP Regional or Area Office. If the person making the request does not know in which office the record is located, he may direct his request to the Director, Office of Federal Contract Compliance Programs, Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, for appropriate handling.
If a requested record contains some materials which are protected from disclosure and other materials which are not so protected, identifying details or protected matters shall be deleted wherever analysis indicates that such deletions are feasible. Whenever such deletions are made, the remainder of the records may be disclosed.
(a) [Reserved]
(b) Procedures relating to the avaliability of records shall be governed by the Department of Labor regulations, 29 CFR 70.35 to 70.64.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part or chapter.
(a) The purpose of the provisions in this part is to set forth the interpretations and guidelines of the Office of Federal Contract Compliance Programs regarding the implementation of Executive Order 11246, as amended, for promoting and insuring equal employment opportunities for all persons employed or seeking employment with Government contractors and subcontractors or with contractors and subcontractors performing under federally assisted construction contracts, without regard to religion or national origin.
(b) Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin. These guidelines are intended to remedy such unfair treatment.
(c) These guidelines are also intended to clarify the obligations of employers with respect to accommodating to the religious observances and practices of employees and prospective employees.
(d) The employment problems of blacks, Spanish-surnamed Americans, orientals, and American Indians are treated under part 60-2 of this chapter and under other regulations and procedures implementing the requirements of Executive Order 11246, as amended. Accordingly, the remedial provisions of § 60-50.2(b) shall not be applicable to the employment problems of these groups.
(e) Nothing contained in this part 60-50 is intended to supersede or otherwise limit the exemption set forth in § 60-1.5(a)(5) of this chapter for contracts with certain educational institutions.
(a) General requirements. Under the equal opportunity clause contained in section 202 of Executive Order 11246, as amended, employers are prohibited from discriminating against employees or applicants for employment because of religion or national origin, and must take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their religion or national origin. Such action includes, but is not limited to the following: Employment, upgrading, demotion, or transfer: Recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
(b) Outreach and positive recruitment. Employers shall review their employment practices to determine whether members of the various religious and/or ethnic groups are receiving fair consideration for job opportunities. Special attention shall be directed toward executive and middle-management levels, where employment problems relating to religion and national origin are most likely to occur. Based upon the findings of such reviews, employers shall undertake appropriate outreach and positive recruitment activities, such as those listed below, in order to remedy existing deficiencies. It is not contemplated that employers necessarily will undertake all of the listed activities. The scope of the employer's efforts shall depend upon all the circumstances, including the nature and extent of the employer's deficiencies and the employer's size and resources.
(1) Internal communication of the employer's obligation to provide equal employment opportunity without regard to religion or national origin in such a manner as to foster understanding, acceptance, and support among the employer's executive, management, supervisory, and all other employees and to encourage such persons to take the necessary action to aid the employer in meeting this obligation.
(2) Development of reasonable internal procedures to insure that the employer's obligation to provide equal employment opportunity without regard to religion or national origin is being fully implemented.
(3) Periodically informing all employees of the employer's commitment to equal employment opportunity for all persons, without regard to religion or national origin.
(4) Enlisting the assistance and support of all recruitment sources (including employment agencies, college placement directors, and business associates) for the employer's commitment to provide equal employment opportunity without regard to religion or national origin.
(5) Reviewing employment records to determine the availability of promotable and transferable members of various religious and ethnic groups.
(6) Establishment of meaningful contacts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees.
(7) Engaging in significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups.
(8) Use of the religious and ethnic media for institutional and employment advertising.
An employer must accommodate to the religious observances and practices of an employee or prospective employee unless the employer demonstrates that it is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. As part of this obligation, an employer must make reasonable accommodations to the religious observances and practices of an employee or prospective employee who regularly observes Friday evening and Saturday, or some other day of the week, as his Sabbath and/or who observes certain religious holidays during the year and who is conscientiously opposed to performing work or engaging in similar activity on such days, when such accommodations can be made without undue hardship on the conduct of the employer's business. In determining the extent of an employer's obligations under this section, at least the following factors shall be considered: (a) Business necessity, (b) financial costs and expenses, and (c) resulting personnel problems.
The provisions of this part are subject to the general enforcement, compliance review, and complaint procedures set forth in subpart B of part 60-1 of this chapter.
The provisions of this part are not intended and shall not be used to discriminate against any qualified employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity or national origin.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
(a) Purpose. The purpose of the regulations in this part is to set forth the standards for compliance with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, (VEVRAA), which prohibits discrimination against protected veterans and pre-JVA veterans as defined in this part, and requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified protected veterans.
Disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and Armed Forces service medal veterans are protected veterans under VEVRAA.
(b) Applicability. This part applies to any Government contract or subcontract of $100,000 or more, entered into or modified on or after December 1, 2003, for the purchase, sale or use of personal property or nonpersonal services (including construction): Provided, that subpart C of this part applies only as described in § 60-300.40(a); and that the non-discrimination protections in § 60-300.21 and the right to file complaints alleging discriminatory conduct set forth in § 60-300.61 also apply to “pre-JVA veterans” as defined in § 60-300.2, who are applicants or employees of a contractor with a Government contract of $25,000 or more entered into prior to December 1, 2003, and unmodified since to a contract amount of $100,000. Compliance by the contractor with the provisions of this part will not necessarily determine its compliance with other statutes, and compliance with other statutes will not necessarily determine its compliance with this part.
(c) Construction—(1) In general. The Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA) (42 U.S.C. 12101, et seq.) set out as an appendix to 29 CFR part 1630 issued pursuant to Title I may be relied upon for guidance in interpreting the parallel provisions of this part.
(2) Relationship to other laws. This part does not invalidate or limit the remedies, rights, and procedures under any Federal law or the law of any state or political subdivision that provides greater or equal protection for the rights of disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, or Armed Forces service medal protected veterans as compared to the protection afforded by this part. It may be a defense to a charge of violation of this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.
(i) Uniformed Services Employment and Reemployment Rights Act. This part does not invalidate or limit the obligations, responsibilities, and requirements of the contractor pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 U.S.C. 4301, et seq.). This includes the obligation under USERRA to reemploy employees of the contractor following qualifying service in the uniformed services in the position the employee would have obtained with reasonable certainty had the employee been continuously employed during the period of uniformed service. Compliance by the contractor with the provisions of this part will not necessarily determine its compliance with USERRA, and compliance with USERRA will not necessarily determine its compliance with this part.
(ii) [Reserved]
For the purpose of this part:
(a) Act means the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, also referred to throughout this regulation as “VEVRAA.”
(b) Active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.
(c) Armed Forces service medal veteran means any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209).
(d) Compliance evaluation means any one or combination of actions OFCCP may take to examine a Federal contractor's or subcontractor's compliance with one or more of the requirements of the Act.
(e) Contract means any Government contract or subcontract.
(f) Contractor means, unless otherwise indicated, a prime contractor or subcontractor holding a contract of $100,000 or more.
(g) Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a direct threat shall be based on an individualized assessment of the individual's present ability to perform safely the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(h) Director means the Director, Office of Federal Contract Compliance Programs of the United States Department of Labor, or his or her designee.
(i) Disabled veteran means:
(1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or
(2) A person who was discharged or released from active duty because of a service-connected disability.
(j) Employment service delivery system means a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act. The Wagner-Peyser Act requires that these services be provided as part of the One-Stop delivery system established by the States under Section 134 of the Workforce Investment Act of 1998.
(k) Equal opportunity clause means the contract provisions set forth in § 60-300.5, “Equal opportunity clause.”
(l) Essential functions—(1) In general. The term essential functions means fundamental job duties of the employment position the disabled veteran holds or is seeking. The term essential functions does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several reasons, including, but not limited to, the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(m) Government means the Government of the United States of America.
(n) Government contract means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services (including construction). The term Government contract does not include agreements in which the parties stand in the relationship of employer and employee, and federally assisted contracts.
(1) Construction, as used in the definition of Government contract and subcontract of this section, means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other on-site functions incidental to the actual construction.
(2) Contracting agency means any department, agency, establishment or instrumentality of the United States, including any wholly owned Government corporation, which enters into contracts.
(3) Modification means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions.
(4) Nonpersonal services, as used in the definition of Government contract and subcontract of this section, includes, but is not limited to, the following: Utility, construction, transportation, research, insurance, and fund depository.
(5) Person, as used in the definition of Government contract and subcontract of this section, means any natural person, corporation, partnership or joint venture, unincorporated association, state or local government, and any agency, instrumentality, or subdivision of such a government.
(6) Personal property, as used in the definition of Government contract and subcontract of this section, includes supplies and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements).
(o) Pre-JVA veteran means an individual who is an employee of or applicant to a contractor with a contract of $25,000 or more entered into prior to December 1, 2003 and unmodified since to $100,000 or more, and who is a special disabled veteran, veteran of the Vietnam era, pre-JVA recently separated veteran, or other protected veteran, as defined below:
(1) Special disabled veteran means:
(i) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or
(ii) A person who was discharged or released from active duty because of a service-connected disability.
(2) Veteran of the Vietnam Era means a person who:
(i) Served on active duty for a period of more than 180 days, and was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty occurred:
(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(B) Between August 5, 1964, and May 7, 1975, in all other cases; or
(ii) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed:
(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(B) Between August 5, 1964, and May 7, 1975, in all other cases.
(3) Pre-JVA recently separated veteran means a pre-JVA veteran during the one-year period beginning on the date of the pre-JVA veteran's discharge or release from active duty.
(4) Other protected veteran means a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.
(p) Prime contractor means any person holding a contract of $100,000 or more, and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” includes any person who has held a contract subject to the Act.
(q) Protected veteran means a veteran who is protected under the non-discrimination and affirmative action provisions of the Act; specifically, a veteran who may be classified as a “disabled veteran,” “recently separated veteran,” “active duty wartime or campaign badge veteran,” or an “Armed Forces service medal veteran,” as defined by this section.
(r) Qualification standards means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by the contractor as requirements which an individual must meet in order to be eligible for the position held or desired.
(s) Qualified disabled veteran means a disabled veteran who has the ability to perform the essential functions of the employment position with or without reasonable accommodation.
(t)-(u) [Reserved]
(v) Reasonable accommodation. (1) The term reasonable accommodation means:
(i) Modifications or adjustments to a job application process that enable a qualified applicant who is a disabled veteran to be considered for the position such applicant desires;
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified disabled veteran to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's employee who is a disabled veteran to enjoy equal benefits and privileges of employment as are enjoyed by the contractor's other similarly situated employees who are not disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified disabled veteran in need of the accommodation.
(w) Recently separated veteran means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.
(x) Recruiting and training agency means any person who refers workers to any contractor, or who provides or supervises apprenticeship or training for employment by any contractor.
(y) Secretary means the Secretary of Labor, United States Department of Labor, or his or her designee.
(z) Subcontract. (1) Subcontract means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
(i) For the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts; or
(ii) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed; and
(2) Does not include an agreement between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(i) An agreement means a relationship between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(ii) A health care provider is a physician, hospital, or other individual or entity that furnishes health care services or supplies.
(iii) A health organization is a voluntary association, corporation, partnership, managed care support contractor, or other nongovernmental organization that is lawfully engaged in providing, paying for, insuring, or reimbursing the cost of health care services or supplies under group insurance policies or contracts, medical or hospital service agreements, membership or subscription contracts, network agreements, health benefits plans duly sponsored or underwritten by an employee organization or association of organizations and health maintenance organizations, or other similar arrangements, in consideration of premiums or other periodic charges or payments payable to the health organization.
(aa) Subcontractor means any person holding a subcontract of $100,000 or more and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” any person who has held a subcontract subject to the Act.
(bb) TAP means the Department of Defense's Transition Assistance Program, or any successor programs thereto. The TAP was designed to smooth the transition of military personnel and family members leaving active duty via employment workshops and individualized employment assistance and training.
(cc) Undue hardship—(1) In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by the contractor, when considered in light of the factors set forth in paragraph (2) of this section.
(2) Factors to be considered. In determining whether an accommodation would impose an undue hardship on the contractor, factors to be considered include:
(i) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
(iii) The overall financial resources of the contractor, the overall size of the business of the contractor with respect to the number of its employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the contractor, including the composition, structure and functions of the work force of such contractor, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor; and
(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.
(dd) United States, as used in this part, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.
(ee) Veteran means a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable.
(a) General—(1) Contracts and subcontracts of $100,000 or more. Contracts and subcontracts of $100,000 or more are covered by this part. No contracting agency or contractor shall procure supplies or services in less than usual quantities to avoid the applicability of the equal opportunity clause.
(2) Contracts for indefinite quantities. With respect to indefinite delivery-type contracts (including, but not limited to, open end contracts, requirement-type contracts, Federal Supply Schedule contracts, “call-type” contracts, and purchase notice agreements), the equal opportunity clause shall be included unless the contracting agency has reason to believe that the amount to be ordered in any year under such contract will be less than $100,000. The applicability of the equal opportunity clause shall be determined at the time of award for the first year, and annually thereafter for succeeding years, if any. Notwithstanding the above, the equal opportunity clause shall be applied to such contract whenever the amount of a single order is $100,000 or more. Once the equal opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration, regardless of the amounts ordered, or reasonably expected to be ordered in any year.
(3) Employment activities within the United States. This part applies only to employment activities within the United States and not to employment activities abroad. The term “employment activities within the United States” includes actual employment within the United States, and decisions of the contractor made within the United States pertaining to the contractor's applicants and employees who are within the United States, regarding employment opportunities abroad (such as recruiting and hiring within the United States for employment abroad, or transfer of persons employed in the United States to contractor establishments abroad).
(4) Contracts with State or local governments. The requirements of the equal opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract.
(b) Waivers—(1) Specific contracts and classes of contracts. The Director may waive the application to any contract of the equal opportunity clause in whole or part when he or she deems that special circumstances in the national interest so require. The Director may also grant such waivers to groups or categories of contracts: Where it is in the national interest; where it is found impracticable to act upon each request individually; and where such waiver will substantially contribute to convenience in administration of the Act. When a waiver has been granted for any class of contracts, the Director may withdraw the waiver for a specific contract or group of contracts to be awarded, when in his or her judgment such action is necessary or appropriate to achieve the purposes of the Act. The withdrawal shall not apply to contracts awarded prior to the withdrawal, except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations of this part shall not apply to any contract whenever the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the contracting agency will notify the Director in writing within 30 days.
(3) Facilities not connected with contracts. The Director may waive the requirements of the equal opportunity clause with respect to any of a contractor's facilities which he or she finds to be in all respects separate and distinct from activities of the contractor related to the performance of the contract, provided that he or she also finds that such a waiver will not interfere with or impede the effectuation of the Act. Such waivers shall be considered only upon the request of the contractor.
(a) Government contracts. Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract):
1. The contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran, recently separated veteran, active duty wartime or campaign badge veteran, or Armed Forces service medal veteran (hereinafter collectively referred to as “protected veteran(s)”) in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a protected veteran in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures.
ii. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring.
iii. Rates of pay or any other form of compensation and changes in compensation.
iv. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists.
v. Leaves of absence, sick leave, or any other leave.
vi. Fringe benefits available by virtue of employment, whether or not administered by the contractor.
vii. Selection and financial support for training, including apprenticeship, and on-the-job training under 38 U.S.C. 3687, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training.
viii. Activities sponsored by the contractor including social or recreational programs.
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system. In order to satisfy the listing requirement described herein, contractors must provide information about the job vacancy in any manner and format permitted by the appropriate employment service delivery system which will allow that system to provide priority referral of veterans protected by VEVRAA for that job vacancy. Providing information on employment openings to a privately run job service or exchange will satisfy the contractor's listing obligation if the privately run job service or exchange provides the information to the appropriate employment service delivery system in any manner and format that the employment service delivery system permits which will allow that system to provide priority referral of protected veterans.
3. Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans. The listing of employment openings does not require the hiring of any particular job applicants or from any particular group of job applicants, and nothing herein is intended to relieve the contractor from any requirements in Executive orders or regulations regarding nondiscrimination in employment.
4. Whenever a contractor, other than a state or local governmental contractor, becomes contractually bound to the listing provisions in paragraphs 2 and 3 of this clause, it shall advise the employment service delivery system in each state where it has establishments that: (a) It is a Federal contractor, so that the employment service delivery systems are able to identify them as such; and (b) it desires priority referrals from the state of protected veterans for job openings at all locations within the state. The contractor shall also provide to the employment service delivery system the name and location of each hiring location within the state and the contact information for the contractor official responsible for hiring at each location. The “contractor official” may be a chief hiring official, a Human Resources contact, a senior management contact, or any other manager for the contractor that can verify the information set forth in the job listing and receive priority referrals from employment service delivery systems. In the event that the contractor uses any external job search organizations to assist in its hiring, the contractor shall also provide to the employment service delivery system the contact information for the job search organization(s). The disclosures required by this paragraph shall be made simultaneously with the contractor's first job listing at each employment service delivery system location after the effective date of this final rule. Should any of the information in the disclosures change since it was last reported to the employment service delivery system location, the contractor shall provide updated information simultaneously with its next job listing. As long as the contractor is contractually bound to these provisions and has so advised the employment service delivery system, there is no need to advise the employment service delivery system of subsequent contracts. The contractor may advise the employment service delivery system when it is no longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not apply to the listing of employment openings which occur and are filled outside of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands.
6. As used in this clause: i. All employment openings includes all positions except executive and senior management, those positions that will be filled from within the contractor's organization, and positions lasting three days or less. This term includes full-time employment, temporary employment of more than three days' duration, and part-time employment.
ii. Executive and senior management means: (1) Any employee (a) compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities; (b) whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (c) who customarily and regularly directs the work of two or more other employees; and (d) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; or (2) any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.
iii. Positions that will be filled from within the contractor's organization means employment openings for which no consideration will be given to persons outside the contractor's organization (including any affiliates, subsidiaries, and parent companies) and includes any openings which the contractor proposes to fill from regularly established “recall” lists. The exception does not apply to a particular opening once an employer decides to consider applicants outside of his or her own organization.
7. The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act.
8. In the event of the contractor's noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Director, Office of Federal Contract Compliance Programs, provided by or through the contracting officer. Such notices shall state the rights of applicants and employees as well as the contractor's obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants who are protected veterans. The contractor must ensure that applicants or employees who are disabled veterans are provided the notice in a form that is accessible and understandable to the disabled veteran (e.g., providing Braille or large print versions of the notice, posting the notice for visual accessibility to persons in wheelchairs, providing the notice electronically or on computer disc, or other versions). With respect to employees who do not work at a physical location of the contractor, a contractor will satisfy its posting obligations by posting such notices in an electronic format, provided that the contractor provides computers that can access the electronic posting to such employees, or the contractor has actual knowledge that such employees otherwise are able to access the electronically posted notices. Electronic notices for employees must be posted in a conspicuous location and format on the company's intranet or sent by electronic mail to employees. An electronic posting must be used by the contractor to notify job applicants of their rights if the contractor utilizes an electronic application process. Such electronic applicant notice must be conspicuously stored with, or as part of, the electronic application.
10. The contractor will notify each labor organization or representative of workers with which it has a collective bargaining agreement or other contract understanding that the contractor is bound by the terms of VEVRAA, and is committed to take affirmative action to employ and advance in employment, and shall not discriminate against, protected veterans.
11. The contractor will include the provisions of this clause in every subcontract or purchase order of $100,000 or more, unless exempted by the rules, regulations, or orders of the Secretary issued pursuant to VEVRAA so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Director, Office of Federal Contract Compliance Programs, may direct to enforce such provisions, including action for noncompliance.
12. The contractor must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to their protected veteran status.
(b) Subcontracts. Each contractor shall include the equal opportunity clause in each of its subcontracts subject to this part.
(c) Adaptation of language. Such necessary changes in language may be made to the equal opportunity clause as must be appropriate to identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It is not necessary to include the equal opportunity clause verbatim in the contract. The clause shall be made a part of the contract by citation to 41 CFR 60-300.5(a) and inclusion of the following language, in bold text, after the citation:
(e) Incorporation by operation of the Act. By operation of the Act, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the Act and the regulations in this part to include such a clause, whether or not it is physically incorporated in such contract and whether or not there is a written contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall cooperate with the Director and the Secretary in the performance of their responsibilities under the Act. Such cooperation shall include insuring that the equal opportunity clause is included in all covered Government contracts and that contractors are fully informed of their obligations under the Act and this part, providing the Director with any information which comes to the agency's attention that a contractor is not in compliance with the Act or this part, responding to requests for information from the Director, and taking such actions for noncompliance as are set forth in § 60-300.66 as may be ordered by the Secretary or the Director.
The prohibition against discrimination in this part applies to the following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(c) Rates of pay or any other form of compensation and changes in compensation;
(d) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or not administered by the contractor;
(g) Selection and financial support for training, including, apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and recreational programs; and
(i) Any other term, condition, or privilege of employment.
The term discrimination includes, but is not limited to, the acts described in this section and § 60-300.23.
(a) Disparate treatment. It is unlawful for the contractor to deny an employment opportunity or benefit or otherwise to discriminate against a qualified individual because of that individual's status as a protected veteran or pre-JVA veteran.
(b) Limiting, segregating and classifying. Unless otherwise permitted by this part, it is unlawful for the contractor to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of that individual's status as a protected veteran or pre-JVA veteran. For example, the contractor may not segregate protected veterans as a whole, or any classification of protected veterans or pre-JVA veterans, into separate work areas or into separate lines of advancement.
(c) Contractual or other arrangements—(1) In general. It is unlawful for the contractor to participate in a contractual or other arrangement or relationship that has the effect of subjecting the contractor's own qualified applicant or employee who is a protected veteran or pre-JVA veteran to the discrimination prohibited by this part.
(2) Contractual or other arrangement defined. The phrase “contractual or other arrangement or relationship” includes, but is not limited to, a relationship with: an employment or referral agency; a labor organization, including a collective bargaining agreement; an organization providing fringe benefits to an employee of the contractor; or an organization providing training and apprenticeship programs.
(3) Application. This paragraph (c) applies to the contractor, with respect to its own applicants or employees, whether the contractor offered the contract or initiated the relationship, or whether the contractor accepted the contract or acceded to the relationship. The contractor is not liable for the actions of the other party or parties to the contract which only affect that other party's employees or applicants.
(d) Standards, criteria or methods of administration. It is unlawful for the contractor to use standards, criteria, or methods of administration, that are not job-related and consistent with business necessity, and that:
(1) Have the effect of discriminating on the basis of status as a protected veteran or pre-JVA veteran; or
(2) Perpetuate the discrimination of others who are subject to common administrative control.
(e) Relationship or association with a protected veteran. It is unlawful for the contractor to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known protected veteran or pre-JVA veteran status of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.
(f) Not making reasonable accommodation. (1) It is unlawful for the contractor to fail to make reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified disabled veteran or pre-JVA special disabled veteran, unless such contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
(2) It is unlawful for the contractor to deny employment opportunities to an applicant or employee who is a qualified disabled veteran or pre-JVA special disabled veteran based on the need of such contractor to make reasonable accommodation to such an individual's physical or mental impairments.
(3) A qualified disabled veteran or pre-JVA special disabled veteran is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified disabled veteran or pre-JVA special disabled veteran.
(g) Qualification standards, tests and other selection criteria—(1) In general. It is unlawful for the contractor to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals on the basis of their status as protected veterans or pre-JVA veterans unless the standard, test or other selection criterion, as used by the contractor, is shown to be job-related for the position in question and is consistent with business necessity. Selection criteria that concern an essential function may not be used to exclude a disabled veteran if that individual could satisfy the criteria with provision of a reasonable accommodation. Selection criteria that exclude or tend to exclude individuals on the basis of their status as protected veterans or pre-JVA veterans but concern only marginal functions of the job would not be consistent with business necessity. The contractor may not refuse to hire an applicant who is a disabled veteran or pre-JVA special disabled veteran because the applicant's disability prevents him or her from performing marginal functions. When considering a protected veteran or pre-JVA veteran for an employment opportunity, the contractor may not rely on portions of such veteran's military record, including his or her discharge papers, which are not relevant to the qualification requirements of the opportunity in issue.
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3, do not apply to 38 U.S.C. 4212 and are similarly inapplicable to this part.
(h) Administration of tests. It is unlawful for the contractor to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who is a disabled veteran or pre-JVA special disabled veteran with a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant, except where such skills are the factors that the test purports to measure.
(i) Compensation. In offering employment or promotions to protected veterans or pre-JVA veterans, it is unlawful for the contractor to reduce the amount of compensation offered because of any income based upon a disability-related and/or military-service-related pension or other disability-related and/or military-service-related benefit the applicant or employee receives from another source.
The contractor may use as a qualification standard the requirement that an individual be able to perform the essential functions of the position held or desired without posing a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(g) defining direct threat.).
(a) Prohibited medical examinations or inquiries. Except as stated in paragraphs (b) and (c) of this section, it is unlawful for the contractor to require a medical examination of an applicant or employee or to make inquiries as to whether an applicant or employee is a disabled veteran or as to the nature or severity of such a veteran's disability.
(b) Permitted medical examinations and inquiries—(1) Acceptable pre-employment inquiry. The contractor may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of their status as a disabled veteran.
(3) Examination of employees. The contractor may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. The contractor may make inquiries into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site.
(5) Medical examinations conducted in accordance with paragraphs (b)(2) and (b)(4) of this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an applicant or applicants or an employee or employees who are disabled veterans as a result of such examinations or inquiries, the contractor must demonstrate that the exclusionary criteria are job-related and consistent with business necessity, and that performance of the essential job functions cannot be accomplished with reasonable accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite applicants to self-identify as being covered by the Act, as specified in § 60-300.42.
(d) Confidentiality and use of medical information. (1) Information obtained under this section regarding the medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, shall be provided relevant information on request.
(2) Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part.
(a) Specific activities permitted. The contractor: (1) May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
(2) May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the contractor holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject to such regulations comply with the standards established in the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies that apply to employment in sensitive positions subject to such regulations.
(b) Drug testing—(1) General policy. For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the administration of such drug tests by the contractor to its job applicants or employees is not a violation of § 60-300.23. Nothing in this part shall be construed to encourage, prohibit, or authorize the contractor to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be construed to encourage, prohibit, or authorize the otherwise lawful exercise by contractors subject to the jurisdiction of the Department of Transportation of authority to test employees in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs or for on-duty impairment by alcohol; and remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this section.
(3) Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of §§ 60-300.23(b)(5) and 60-300.23(d)(2).
(a) An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with state law.
(b) The contractor may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law.
(c) The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to state laws that regulate insurance.
(d) The contractor shall not deny a qualified disabled veteran equal access to insurance or subject a qualified disabled veteran to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part.
(a) The requirements of this subpart apply to every Government contractor that has 50 or more employees and a contract of $100,000 or more.
(b) Contractors described in paragraph (a) of this section shall, within 120 days of the commencement of a contract, prepare and maintain an affirmative action program at each establishment. The affirmative action program shall set forth the contractor's policies and procedures in accordance with this part. This program may be integrated into or kept separate from other affirmative action programs.
(c) The affirmative action program shall be reviewed and updated annually by the official designated by the contractor pursuant to § 60-300.44(i).
(d) The contractor shall submit the affirmative action program within 30 days of a request from OFCCP, unless the request provides for a different time. The contractor also shall make the affirmative action program promptly available on-site upon OFCCP's request.
The full affirmative action program, absent the data metrics required by § 60-300.44(k), shall be made available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment.
(a) Pre-offer. The contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is a protected veteran who may be covered by the Act. This invitation may be included in the application materials for the position, but in any circumstance shall be provided to applicants prior to making an offer of employment to a job applicant.
(b) Post-offer. In addition to the invitation in paragraph (a) of this section, the contractor shall invite applicants to inform the contractor whether the applicant believes that he or she belongs to one or more of the specific categories of protected veteran for which the contractor is required to report pursuant to 41 CFR part 61-300. Such an invitation shall be made at any time after the offer of employment but before the applicant begins his or her job duties.
(c) The invitations referenced in paragraphs (a) and (b) of this section shall state that the contractor is a Federal contractor required to take affirmative action to employ and advance in employment protected veterans pursuant to the Act. The invitations also shall summarize the relevant portions of the Act and the contractor's affirmative action program. Furthermore, the invitations shall state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the act. (An acceptable form for such an invitation is set forth in appendix B of this part.)
(d) If an applicant identifies himself or herself as a disabled veteran in the post-offer self-identification detailed in paragraph (b) of this section, the contractor should inquire of the applicant whether an accommodation is necessary, and if so, should engage with the applicant regarding reasonable accommodation. The contractor may make such inquiries to the extent they are consistent with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, et seq. The contractor shall maintain a separate file in accordance with § 60-300.23(d) on persons who have self-identified as disabled veterans.
(e) The contractor shall keep all information on self-identification confidential. The contractor shall provide the information to OFCCP upon request. This information may be used only in accordance with this part.
(f) Nothing in this section relieves the contractor of its obligation to take affirmative action with respect to those applicants or employees who are known to the contractor to be protected veterans.
(g) Nothing in this section relieves the contractor from liability for discrimination under the Act.
Under the affirmative action obligations imposed by the Act, contractors shall not discriminate against protected veterans, and shall take affirmative action to employ and advance in employment qualified protected veterans at all levels of employment, including the executive level. Such action shall apply to all employment activities set forth in § 60-300.20.
Acceptable affirmative action programs shall contain, but not necessarily be limited to, the following elements:
(a) Policy statement. The contractor shall include an equal opportunity policy statement in its affirmative action program, and shall post the policy statement on company bulletin boards. The contractor must ensure that applicants and employees who are disabled veterans are provided the notice in a form that is accessible and understandable to the disabled veteran (e.g., providing Braille or large print versions of the notice, or posting the notice for visual accessibility to persons in wheelchairs). The policy statement shall indicate the top United States executive's (such as the Chief Executive Officer or the President of the United States Division of a foreign company) support for the contractor's affirmative action program, provide for an audit and reporting system (see paragraph (h) of this section) and assign overall responsibility for the implementation of affirmative action activities required under this part (see paragraph (i) of this section). Additionally, the policy shall state, among other things, that the contractor will: recruit, hire, train and promote persons in all job titles, and ensure that all other personnel actions are administered, without regard to protected veteran status; and ensure that all employment decisions are based only on valid job requirements. The policy shall state that employees and applicants shall not be subjected to harassment, intimidation, threats, coercion or discrimination because they have engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the affirmative action provisions of VEVRAA or any other Federal, state or local law requiring equal opportunity for protected veterans;
(3) Opposing any act or practice made unlawful by VEVRAA or its implementing regulations in this part or any other Federal, state or local law requiring equal opportunity for protected veterans; or
(4) Exercising any other right protected by VEVRAA or its implementing regulations in this part.
(b) Review of personnel processes. The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees who are known protected veterans for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. The contractor shall ensure that when a protected veteran is considered for employment opportunities, the contractor relies only on that portion of the individual's military record, including his or her discharge papers, relevant to the requirements of the opportunity in issue. The contractor shall ensure that its personnel processes do not stereotype protected veterans in a manner which limits their access to all jobs for which they are qualified. The contractor shall periodically review such processes and make any necessary modifications to ensure that these obligations are carried out. A description of the review and any necessary modifications to personnel processes or development of new processes shall be included in any affirmative action programs required under this part. The contractor must design procedures that facilitate a review of the implementation of this requirement by the contractor and the Government (Appendix C of this part is an example of an appropriate set of procedures. The procedures in appendix C are not required and contractors may develop other procedures appropriate to their circumstances.)
(c) Physical and mental qualifications. (1) The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the periodic review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified disabled veterans, they are job-related for the position in question and are consistent with business necessity.
(2) Whenever the contractor applies physical or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified disabled veterans, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor has the burden to demonstrate that it has complied with the requirements of this paragraph (c)(2).
(3) The contractor may use as a defense to an allegation of a violation of paragraph (c)(2) of this section that an individual poses a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(g) defining direct threat.)
(d) Reasonable accommodation to physical and mental limitations. As is provided in § 60-300.21(f), as a matter of nondiscrimination the contractor must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled veteran unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As a matter of affirmative action, if an employee who is known to be a disabled veteran is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee's disability; if the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.
(e) Harassment. The contractor must develop and implement procedures to ensure that its employees are not harassed because of their status as a protected veteran.
(f) External dissemination of policy, outreach and positive recruitment—(1) Required outreach efforts. (i) The contractor shall undertake appropriate outreach and positive recruitment activities such as those listed in paragraph (f)(2) of this section that are reasonably designed to effectively recruit protected veterans. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraph (f)(2) of this section or that its activities will be limited to those listed. The scope of the contractor's efforts shall depend upon all the circumstances, including the contractor's size and resources and the extent to which existing employment practices are adequate.
(ii) The contractor must send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.
(2) Examples of outreach and recruitment activities . Below are examples of outreach and positive recruitment activities referred to in paragraph (f)(1) of this section. This is an illustrative list, and contractors may choose from these or other activities, as appropriate to their circumstances.
(i) Enlisting the assistance and support of the following persons and organizations in recruiting, and developing on-the-job training opportunities for veterans, in order to fulfill its commitment to provide meaningful employment opportunities for such veterans:
(A) The Local Veterans' Employment Representative in the local employment service office (i.e., the One-Stop) nearest the contractor's establishment;
(B) The Department of Veterans Affairs Regional Office nearest the contractor's establishment;
(C) The veterans' counselors and coordinators (“Vet-Reps”) on college campuses;
(D) The service officers of the national veterans' groups active in the area of the contractor's establishment;
(E) Local veterans' groups and veterans' service centers near the contractor's establishment;
(F) The Department of Defense Transition Assistance Program (TAP), or any subsequent program that, in whole or in part, might replace TAP; and
(G) Any organization listed in the Employer Resources section of the National Resource Directory (http://www.nationalresourcedirectory.gov/), or any future service that replaces or complements it.
(ii) The contractor should also consider taking the actions listed below, as appropriate, to fulfill its commitment to provide meaningful employment opportunities to protected veterans:
(A) Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Contractor facility tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruiting literature should be an integral part of the briefing. At any such briefing sessions, the company official in charge of the contractor's affirmative action program should be in attendance when possible. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.
(B) The contractor's recruitment efforts at all educational institutions should incorporate special efforts to reach students who are protected veterans.
(C) An effort should be made to participate in work-study programs with Department of Veterans Affairs rehabilitation facilities which specialize in training or educating disabled veterans.
(D) Protected veterans should be made available for participation in career days, youth motivation programs, and related activities in their communities.
(E) The contractor should take any other positive steps it deems necessary to attract qualified protected veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These persons may be located through the local chapters of organizations of and for any of the classifications of protected veterans.
(F) The contractor, in making hiring decisions, should consider applicants who are known protected veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable.
(G) The contractor should consider listing its job openings with the National Resource Directory's Veterans Job Bank, or any future service that replaces or complements it.
(3) Assessment of external outreach and recruitment efforts. The contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified protected veterans. The contractor shall document each evaluation, including at a minimum the criteria it used to evaluate the effectiveness of each effort and the contractor's conclusion as to whether each effort was effective. Among these criteria shall be the data collected pursuant to paragraph (k) of this section for the current year and the two most recent previous years. The contractor's conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP in light of these regulations. If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified protected veterans, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.
(4) Recordkeeping obligation. The contractor shall document all activities it undertakes to comply with the obligations of this section, and retain these documents for a period of three (3) years.
(g) Internal dissemination of policy. (1) A strong outreach program will be ineffective without adequate internal support from supervisory and management personnel and other employees. In order to assure greater employee cooperation and participation in the contractor's efforts, the contractor shall develop the internal procedures listed in paragraph (g)(2) of this section for communication of its obligation to engage in affirmative action efforts to employ and advance in employment qualified protected veterans. It is not contemplated that the contractor's activities will be limited to those listed. These procedures shall be designed to foster understanding, acceptance and support among the contractor's executive, management, supervisory and other employees and to encourage such persons to take the necessary actions to aid the contractor in meeting this obligation.
(2) The contractor shall implement and disseminate this policy internally as follows:
(i) Include it in the contractor's policy manual or otherwise make the policy available to employees;
(ii) If the contractor is party to a collective bargaining agreement, it shall notify union officials and/or employee representatives to inform them of the contractor's policy, and request their cooperation;
(3) The contractor is encouraged to additionally implement and disseminate this policy internally as follows:
(i) Inform all employees and prospective employees of its commitment to engage in affirmative action to increase employment opportunities for protected veterans;
(ii) Publicize it in the company newspaper, magazine, annual report and other media;
(iii) Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer's support for the affirmative action policy;
(iv) Discuss the policy thoroughly in both employee orientation and management training programs;
(v) When employees are featured in employee handbooks or similar publications for employees, include disabled veterans.
(h) Audit and reporting system. (1) The contractor shall design and implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives have been attained;
(iv) Determine whether known protected veterans have had the opportunity to participate in all company sponsored educational, training, recreational and social activities;
(v) Measure the contractor's compliance with the affirmative action program's specific obligations; and
(vi) Document the actions taken to comply with the obligations of paragraphs (i) through (v) above, and retain these documents as employment records subject to the recordkeeping requirements of § 60-300.80.
(2) Where the affirmative action program is found to be deficient, the contractor shall undertake necessary action to bring the program into compliance.
(i) Responsibility for implementation. An official of the contractor shall be assigned responsibility for implementation of the contractor's affirmative action activities under this part. His or her identity should appear on all internal and external communications regarding the company's affirmative action program. This official shall be given necessary senior management support and staff to manage the implementation of this program.
(j) Training. All personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor's affirmative action program are implemented.
(k) Data collection analysis. The contractor shall document the following computations or comparisons pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years:
(1) The number of applicants who self-identified as protected veterans pursuant to § 60-300.42(a), or who are otherwise known as protected veterans;
(2) The total number of job openings and total number of jobs filled;
(3) The total number of applicants for all jobs;
(4) The number of protected veteran applicants hired; and
(5) The total number of applicants hired.
The benchmark is not a rigid and inflexible quota which must be met, nor is it to be considered either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
(a) Purpose: The purpose of establishing benchmarks is to create a quantifiable method by which the contractor can measure its progress toward achieving equal employment opportunity for protected veterans.
(b) Hiring benchmarks shall be set by the contractor on an annual basis. Benchmarks shall be set using one of the two mechanisms described below:
(1) Establish a benchmark equaling the national percentage of veterans in the civilian labor force, which will be published and updated annually on the OFCCP Web site; or
(2) Establish a benchmark by taking into account:
(i) The average percentage of veterans in the civilian labor force in the State(s) where the contractor is located over the preceding three years, as calculated by the Bureau of Labor Statistics and published on the OFCCP Web site;
(ii) The number of veterans, over the previous four quarters, who were participants in the employment service delivery system in the State where the contractor is located, as tabulated by the Veterans' Employment and Training Service and published on the OFCCP Web site;
(iii) The applicant ratio and hiring ratio for the previous year, based on the data collected pursuant to § 60-300.44(k);
(iv) The contractor's recent assessments of the effectiveness of its external outreach and recruitment efforts, as set forth in § 60-300.44(f)(3); and
(v) Any other factors, including but not limited to the nature of the contractor's job openings and/or its location, which would tend to affect the availability of qualified protected veterans.
(c) The contractor shall document the hiring benchmark it has established each year. If the contractor sets its benchmark using the procedure in paragraph (b)(2) of this section, it shall document each of the factors that it considered in establishing the hiring benchmark and the relative significance of each of these factors. The contractor shall retain these records for a period of three (3) years.
(a) OFCCP may conduct compliance evaluations to determine if the contractor is taking affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a protected veteran in all employment practices. A compliance evaluation may consist of any one or any combination of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of the hiring and employment practices of the contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by the contractor. A compliance review may proceed in three stages:
(i) A desk audit of the written affirmative action program and supporting documentation to determine whether all elements required by the regulations in this part are included, whether the affirmative action program meets agency standards of reasonableness, and whether the affirmative action program and supporting documentation satisfy agency standards of acceptability. OFCCP may extend the temporal scope of the desk audit beyond that set forth in the scheduling letter if OFCCP deems it necessary to carry out its investigation of potential violations of this part. The desk audit is conducted at OFCCP offices;
(ii) An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the affirmative action program and supporting documentation during the desk audit, to verify that the contractor has implemented the affirmative action program and has complied with those regulatory obligations not required to be included in the affirmative action program, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied by the contractor or otherwise gathered during or pursuant to the on-site review;
(2) Off-site review of records. An analysis and evaluation of the affirmative action program (or any part thereof) and supporting documentation, and other documents related to the contractor's personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of VEVRAA and its regulations;
(3) Compliance check. A determination of whether the contractor has maintained records consistent with § 60-300.80; OFCCP may request the documents be provided either on-site or off-site; or
(4) Focused review. A review restricted to one or more components of the contractor's organization or one or more aspects of the contractor's employment practices.
(b) Where deficiencies are found to exist, OFCCP will make reasonable efforts to secure compliance through conciliation and persuasion, pursuant to § 60-300.62. The “reasonable efforts” standard shall be interpreted consistently with title VII of the Civil Rights Act of 1964 and its requirement that the Equal Employment Opportunity Commission endeavor to remove any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.
(c) Reporting requirements. During a compliance evaluation, OFCCP may verify whether the contractor has complied with applicable reporting requirements required under regulations promulgated by the Veterans' Employment and Training Service (VETS). If the contractor has not complied with any such reporting requirement, OFCCP will notify VETS.
(d) Pre-award compliance evaluations. Each agency will include in the invitation for bids for each formally advertised nonconstruction contract or state at the outset of negotiations for each negotiated contract, that if the award, when let, should total $10 million or more, the prospective contractor and its known first-tier subcontractors with subcontracts of $10 million or more will be subject to a compliance evaluation before the award of the contract unless OFCCP has conducted an evaluation and found them to be in compliance with VEVRAA within the preceding 24 months. The awarding agency will notify OFCCP and request appropriate action and findings in accordance with this subsection. Within 15 days of the notice OFCCP will inform the awarding agency of its intention to conduct a pre-award compliance evaluation. If OFCCP does not inform the awarding agency within that period of its intention to conduct a pre-award compliance evaluation, clearance shall be presumed and the awarding agency is authorized to proceed with the award. If OFCCP informs the awarding agency of its intention to conduct a pre-award compliance evaluation, OFCCP will be allowed an additional 20 days after the date that it so informs the awarding agency to provide its conclusions. If OFCCP does not provide the awarding agency with its conclusions within that period, clearance will be presumed and the awarding agency is authorized to proceed with the award.
(a) Place and time of filing. Any applicant for employment with a contractor or any employee of a contractor may, personally, or by an authorized representative, file a written complaint alleging a violation of the Act or the regulations in this part. The complaint may allege individual or class-wide violation(s). Such complaint must be filed within 300 days of the date of the alleged violation, unless the time for filing is extended by OFCCP for good cause shown. Complaints may be submitted to OFCCP, 200 Constitution Avenue NW., Washington, DC 20210, or to any OFCCP regional, district, or area office. Complaints may also be submitted to the Veterans' Employment and Training Service of the Department of Labor directly, or through the Local Veterans' Employment Representative (LVER) at the local employment service office. Such parties will assist veterans in preparing complaints, promptly refer such complaints to OFCCP, and maintain a record of all complaints which they receive and forward. OFCCP shall inform the party forwarding the complaint of the progress and results of its complaint investigation. The state employment service delivery system shall cooperate with the Director in the investigation of any complaint.
(b) Contents of complaints—(1) In general. A complaint must be signed by the complainant or his or her authorized representative and must contain the following information:
(i) Name and address (including telephone number) of the complainant;
(ii) Name and address of the contractor who committed the alleged violation;
(iii) Documentation showing that the individual is a protected veteran or pre-JVA veteran. Such documentation must include a copy of the veteran's form DD-214, and, where applicable, a copy of the veteran's Benefits Award Letter, or similar Department of Veterans Affairs certification, updated within one year prior to the date the complaint is filed;
(iv) A description of the act or acts considered to be a violation, including the pertinent dates (in the case of an alleged continuing violation, the earliest and most recent date that the alleged violation occurred should be stated); and
(v) Other pertinent information available which will assist in the investigation and resolution of the complaint, including the name of any known Federal agency with which the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized representative need not identify by name the person on whose behalf it is filed. The person filing the complaint, however, shall provide OFCCP with the name, address and telephone number of the person on whose behalf it is made, and the other information specified in paragraph (b)(1) of this section. OFCCP shall verify the authorization of such a complaint by the person on whose behalf the complaint is made. Any such person may request that OFCCP keep his or her identity confidential, and OFCCP will protect the individual's confidentiality wherever that is possible given the facts and circumstances in the complaint.
(c) Incomplete information. Where a complaint contains incomplete information, OFCCP shall seek the needed information from the complainant. If the information is not furnished to OFCCP within 60 days of the date of such request, the case may be closed.
(d) Investigations. The Department of Labor shall institute a prompt investigation of each complaint.
(e) Resolution of matters. (1) If the complaint investigation finds no violation of the Act or this part, or if the Director decides not to refer the matter to the Solicitor of Labor for enforcement proceedings against the contractor pursuant to § 60-300.65(a)(1), the complainant and contractor shall be so notified. The Director, on his or her own initiative, may reconsider his or her determination or the determination of any of his or her designated officers who have authority to issue Notifications of Results of Investigation.
(2) The Director will review all determinations of no violation that involve complaints that are not also cognizable under Title I of the Americans with Disabilities Act.
(3) In cases where the Director decides to reconsider the determination of a Notification of Results of Investigation, the Director shall provide prompt notification of his or her intent to reconsider, which is effective upon issuance, and his or her final determination after reconsideration, to the person claiming to be aggrieved, the person making the complaint on behalf of such person, if any, and the contractor.
(4) If the investigation finds a violation of the Act or this part, OFCCP shall invite the contractor to participate in conciliation discussions pursuant to § 60-300.62.
(a) Predetermination Notice. If a compliance evaluation by OFCCP indicates preliminary findings of potential discrimination, OFCCP will issue a Predetermination Notice that describes the preliminary findings and provides the contractor an opportunity to respond. The Predetermination Notice may also include preliminary findings of other potential violations that OFCCP has identified at that stage of the review. After OFCCP issues the Predetermination Notice, the agency may identify additional violations and include them in a subsequent Notice of Violation or Show Cause Notice without amending the Predetermination Notice. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Notice of Violation or Show Cause Notice. Any response to a Predetermination Notice must be received by OFCCP within 15 calendar days of receipt of the Notice, which deadline OFCCP may extend for good cause. If the contractor does not respond or OFCCP determines that the contractor's response and any additional investigation undertaken by the agency did not resolve the preliminary findings of potential discrimination or other violations identified in the Predetermination Notice, OFCCP will proceed to issue a Notice of Violation.
(b) Notice of Violation. If a compliance evaluation by OFCCP indicates a violation of the equal opportunity clause, OFCCP will issue a Notice of Violation to the contractor requiring corrective action. The Notice of Violation will identify the violations found and describe the recommended corrective actions. The Notice of Violation will invite the contractor to conciliate the matter and resolve the findings through a written conciliation agreement. After the Notice of Violation is issued, OFCCP may include additional violations in a subsequent Show Cause Notice without amendment to the Notice of Violation. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Show Cause Notice.
(c) Conciliation agreement. If a compliance review, complaint investigation, or other review by OFCCP or its representative indicates a material violation of the equal opportunity clause, and:
(1) If the contractor, subcontractor, or bidder is willing to correct the violations and/or deficiencies; and
(2) If OFCCP or its representative determines that settlement (rather than referral for consideration of formal enforcement) is appropriate, a written conciliation agreement shall be required. The agreement shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies identified, including, where appropriate (but not limited to), remedies such as back pay, salary adjustments, and retroactive seniority.
(d) Show Cause Notice. When the Director has reasonable cause to believe that a contractor has violated the equal opportunity clause the Director may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings, or other appropriate action to ensure compliance should not be instituted. OFCCP may issue a Show Cause Notice without first issuing a Predetermination Notice or Notice of Violation when the contractor has failed to provide access to its premises for an on-site review or refused to provide access to witnesses, records, or other information. The Show Cause Notice will include each violation that OFCCP has identified at the time of issuance. Where OFCCP identifies additional violations after issuing a Show Cause Notice, OFCCP will modify or amend the Show Cause Notice.
(e) Expedited conciliation option. OFCCP may agree to waive the procedures set forth in paragraphs (a) and/or (b) of this section to enter directly into a conciliation agreement with a contractor. OFCCP may offer the contractor this expedited conciliation option, but may not require or insist that the contractor avail itself of the expedited conciliation option.
(a) When OFCCP believes that a conciliation agreement has been violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth the violation alleged and summarizing the supporting evidence. The contractor shall have 15 days from receipt of the notice to respond, except in those cases in which OFCCP asserts that such a delay would result in irreparable injury to the employment rights of affected employees or applicants.
(2) During the 15-day period the contractor may demonstrate in writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result in irreparable injury to the employment rights of affected employees or applicants, enforcement proceedings may be initiated immediately without proceeding through any other requirement contained in this chapter.
(c) In any proceedings involving an alleged violation of a conciliation agreement OFCCP may seek enforcement of the agreement itself and shall not be required to present proof of the underlying violations resolved by the agreement.
(a) General. (1) If a compliance evaluation, complaint investigation or other review by OFCCP finds a violation of the Act or this part, and the violation has not been corrected in accordance with the conciliation procedures in this part, or OFCCP determines that referral for consideration of formal enforcement (rather than settlement) is appropriate, OFCCP may refer the matter to the Solicitor of Labor with a recommendation for the institution of enforcement proceedings to enjoin the violations, to seek appropriate relief, and to impose appropriate sanctions, or any of the above in this sentence. OFCCP may seek back pay and other make whole relief for aggrieved individuals identified during a complaint investigation or compliance evaluation. Such individuals need not have filed a complaint as a prerequisite to OFCCP seeking such relief on their behalf. Interest on back pay shall be calculated from the date of the loss and compounded quarterly at the percentage rate established by the Internal Revenue Service for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this section, the Director may, within the limitations of applicable law, seek appropriate judicial action to enforce the contractual provisions set forth in § 60-300.5, including appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative enforcement proceedings the contractor shall be provided an opportunity for a formal hearing. All hearings conducted under the Act and this part shall be governed by the Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity Under Executive Order 11246 contained in 41 CFR part 60-30 and the Rules of Evidence set out in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges contained in 29 CFR part 18, subpart B: Provided, That a final administrative order shall be issued within one year from the date of the issuance of the recommended findings, conclusions and decision of the Administrative Law Judge, or the submission of exceptions and responses to exceptions to such decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate Solicitor for Civil Rights and Labor-Management, Regional Solicitors, and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references in 41 CFR part 60-30 to “Executive Order 11246” shall mean the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; references to “equal opportunity clause” shall mean the equal opportunity clause published at § 60-300.5; and references to “regulations” shall mean the regulations contained in this part.
(a) Withholding progress payments. With the prior approval of the Director, so much of the accrued payment due on the contract or any other contract between the Government contractor and the Federal Government may be withheld as necessary to correct any violations of the provisions of the Act or this part.
(b) Termination. A contract may be canceled or terminated, in whole or in part, for failure to comply with the provisions of the Act or this part.
(c) Debarment. A contractor may be debarred from receiving future contracts for failure to comply with the provisions of the Act or this part subject to reinstatement pursuant to § 60-300.68. Debarment may be imposed for an indefinite period, or may be imposed for a fixed period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall be afforded to a contractor before the imposition of any sanction or penalty.
The Director shall ensure that the heads of all agencies are notified of any debarments taken against any contractor.
(a) Application for reinstatement. A contractor debarred from further contracts for an indefinite period under the Act may request reinstatement in a letter filed with the Director at any time after the effective date of the debarment; a contractor debarred for a fixed period may make such a request following the expiration of six months from the effective date of the debarment. In connection with the reinstatement proceedings, all debarred contractors shall be required to show that they have established and will carry out employment policies and practices in compliance with the Act and this part. Additionally, in determining whether reinstatement is appropriate for a contractor debarred for a fixed period, the Director also shall consider, among other factors, the severity of the violation which resulted in the debarment, the contractor's attitude towards compliance, the contractor's past compliance history, and whether the contractor's reinstatement would impede the effective enforcement of the Act or this part. Before reaching a decision, the Director may conduct a compliance evaluation of the contractor and may require the contractor to supply additional information regarding the request for reinstatement. The Director shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a decision denying a request for reinstatement, the contractor may file a petition for review of the decision with the Secretary. The petition shall set forth the grounds for the contractor's objections to the Director's decision. The petition shall be served on the Director and the Associate Solicitor for Civil Rights and Labor-Management and shall include the decision as an appendix. The Director may file a response within 14 days to the petition. The Secretary shall issue the final agency decision denying or granting the request for reinstatement. Before reaching a final decision, the Secretary may issue such additional orders respecting procedure as he or she finds appropriate in the circumstances, including an order referring the matter to the Office of Administrative Law Judges for an evidentiary hearing where there is a material factual dispute that cannot be resolved on the record before the Secretary.
(a) The contractor shall not harass, intimidate, threaten, coerce, or discriminate against any individual because the individual has engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the Act or any other Federal, state or local law requiring equal opportunity for protected veterans;
(3) Opposing any act or practice made unlawful by the Act or this part or any other Federal, state or local law requiring equal opportunity for protected veterans, or
(4) Exercising any other right protected by the Act or this part.
(b) The contractor shall ensure that all persons under its control do not engage in such harassment, intimidation, threats, coercion or discrimination. The sanctions and penalties contained in this part may be exercised by the Director against any contractor who violates this obligation.
The procedures set forth in the regulations in this part govern all disputes relative to the contractor's compliance with the Act and this part. Any disputes relating to issues other than compliance, including contract costs arising out of the contractor's efforts to comply, shall be determined by the disputes clause of the contract.
(a) General requirements. Except as set forth in paragraph (b) of this section, any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period will be one year from the date of the making of the record or the personnel action involved, whichever occurs later, except as set forth in paragraph (b) of this section. Such records include, but are not necessarily limited to, records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of two years from the date of the termination, except that contractors that have fewer than 150 employees or that do not have a Government contract of at least $150,000 shall keep such records for a period of one year from the date of the termination. Where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor shall preserve all personnel records relevant to the complaint, compliance evaluation or action until final disposition of the complaint, compliance evaluation or action. The term personnel records relevant to the complaint, compliance evaluation or action would include, for example, personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person, and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.
(b) Records with three-year retention requirement. Records required by §§ 60-300.44(f)(4), 60-300.44(k), and 60-300.45(c) shall be maintained by all contractors for a period of three years from the date of the making of the record.
(c) Failure to preserve records. Failure to preserve complete and accurate records as required by this part constitutes noncompliance with the contractor's obligations under the Act and this part. Where the contractor has destroyed or failed to preserve records as required by this section, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor: Provided, That this presumption shall not apply where the contractor shows that the destruction or failure to preserve records results from circumstances that are outside of the contractor's control.
(d) The requirements of this section shall apply only to records made or kept on or after the date that the Office of Management and Budget has cleared the requirements.
Each contractor shall permit access during normal business hours to its places of business for the purpose of conducting on-site compliance evaluations and complaint investigations and inspecting and copying such books, accounts, and records, including electronic records, and any other material OFCCP deems relevant to the matter under investigation and pertinent to compliance with the Act or this part. Contractors must also provide OFCCP access to these materials, including electronic records, off-site for purposes of conducting compliance evaluations and complaint investigations. Upon request, the contractor must provide OFCCP information about all format(s), including specific electronic formats, in which the contractor maintains its records and other information. The contractor must provide records and other information in any of the formats in which they are maintained, as selected by OFCCP. Information obtained in this manner shall be used only in connection with the administration of the Act and in furtherance of the purposes of the Act. OFCCP will treat records provided by the contractor to OFCCP under this section as confidential to the maximum extent the information is exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552.
(a) Whenever performance in accordance with the equal opportunity clause or any matter contained in the regulations in this part may necessitate a revision of a collective bargaining agreement, the labor organizations which are parties to such agreement shall be given an adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through contractors, subcontractors, local officials, the Department of Veterans Affairs, vocational rehabilitation facilities, and all other available instrumentalities, to cause any labor organization, recruiting and training agency or other representative of workers who are employed by a contractor to cooperate with, and to assist in, the implementation of the purposes of the Act.
Rulings under or interpretations of the Act and this part shall be made by the Director.
By statute, appropriate employment service delivery systems are required to refer qualified protected veterans to fill employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause and are required to give priority to protected veterans in making such referrals. The employment service delivery systems shall provide OFCCP, upon request, information pertinent to whether the contractor is in compliance with the mandatory job listing requirements of the equal opportunity clause.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
The guidelines in this appendix are in large part derived from, and are consistent with, the discussion regarding the duty to provide reasonable accommodation contained in the Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA) set out as an appendix to the regulations issued by the Equal Employment Opportunity Commission (EEOC) implementing the ADA (29 CFR part 1630). Although the following discussion is intended to provide an independent “free-standing” source of guidance with respect to the duty to provide reasonable accommodation under this part, to the extent that the EEOC appendix provides additional guidance which is consistent with the following discussion, it may be relied upon for purposes of this part as well. See § 60-300.1(c). Contractors are obligated to provide reasonable accommodation and to take affirmative action. Reasonable accommodation under VEVRAA, like reasonable accommodation required under section 503 and the ADA, is a part of the nondiscrimination obligation. See EEOC appendix cited in this paragraph. Affirmative action is unique to VEVRAA and section 503, and includes actions above and beyond those required as a matter of nondiscrimination. An example of this is the requirement discussed in paragraph 2 of this appendix that a contractor shall make an inquiry of a disabled veteran who is having significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to the known physical or mental limitations of an “otherwise qualified” disabled veteran, unless the contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As stated in § 60-300.2(s), a disabled veteran is qualified if he or she has the ability to perform the essential functions of the position with or without reasonable accommodation. A contractor is required to make a reasonable accommodation with respect to its application process if the disabled veteran is qualified with respect to that process. One is “otherwise qualified” if he or she is qualified for a job, except that, because of a disability, he or she needs a reasonable accommodation to be able to perform the job's essential functions.
2. Although the contractor would not be expected to accommodate disabilities of which it is unaware, the contractor has an affirmative obligation to provide a reasonable accommodation for applicants and employees who are known to be disabled veterans. As stated in § 60-300.42(b) (see also Appendix B of this part), the contractor is required to invite applicants who have been provided an offer of employment, before they are placed on the contractor's payroll, to indicate whether they are a disabled veteran who may be protected by the Act. Section 60-300.42(d) further provides that the contractor must seek the advice of disabled veterans who “self-identify” in this way as to reasonable accommodation. Moreover, § 60-300.44(d) provides that if an employee who is a known disabled veteran is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the disability, the contractor is required to confidentially inquire whether the problem is disability related and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in the way things are customarily done that enables a disabled veteran to enjoy equal employment opportunities. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability. Thus, for example, an accommodation made to assist an employee who is a disabled veteran in the performance of his or her job must be adequate to enable the individual to perform the essential functions of the position. The accommodation, however, does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. There are three areas in which reasonable accommodations may be necessary: (1) accommodations in the application process; (2) accommodations that enable employees who are disabled veterans to perform the essential functions of the position held or desired; and (3) accommodations that enable employees who are disabled veterans to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.
4. The term “undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the contractor's business. The contractor's claim that the cost of a particular accommodation will impose an undue hardship requires a determination of which financial resources should be considered—those of the contractor in its entirety or only those of the facility that will be required to provide the accommodation. This inquiry requires an analysis of the financial relationship between the contractor and the facility in order to determine what resources will be available to the facility in providing the accommodation. If the contractor can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if the funding is available from another source, e.g., the Department of Veterans Affairs or a state vocational rehabilitation agency, or if Federal, state or local tax deductions or tax credits are available to offset the cost of the accommodation. In the absence of such funding, the disabled veteran must be given the option of providing the accommodation or of paying that portion of the cost which constitutes the undue hardship on the operation of the business.
5. The definition for “reasonable accommodation” in § 60-300.2(t) lists a number of examples of the most common types of accommodations that the contractor may be required to provide. There are any number of specific accommodations that may be appropriate for particular situations. The discussion in this appendix is not intended to provide an exhaustive list of required accommodations (as no such list would be feasible); rather, it is intended to provide general guidance regarding the nature of the obligation. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor must consult with the disabled veteran in deciding on the reasonable accommodation; frequently, the individual will know exactly what accommodation he or she will need to perform successfully in a particular job, and may suggest an accommodation which is simpler and less expensive than the accommodation the contractor might have devised. Other resources to consult include the appropriate state vocational rehabilitation services agency, the Equal Employment Opportunity Commission (1-800-669-4000 (voice), 1-800-669-6820 (TTY)), the Job Accommodation Network (JAN) operated by the Office of Disability Employment Policy in the U.S. Department of Labor (1-800-526-7234 or 1-800-232-9675), private disability organizations (including those that serve veterans), and other employers.
6. With respect to accommodations that can permit an employee who is a disabled veteran to perform essential functions successfully, a reasonable accommodation may require the contractor to, for instance, modify or acquire equipment. For the visually-impaired, such accommodations may include providing adaptive hardware and software for computers, electronic visual aids, Braille devices, talking calculators, magnifiers, audio recordings and Braille or large-print materials. For persons with hearing impairments, reasonable accommodations may include providing telephone handset amplifiers, telephones compatible with hearing aids and text telephones (TTYs). For persons with limited physical dexterity, the obligation may require the provision of telephone headsets, speech activated software and raised or lowered furniture.
7. Other reasonable accommodations of this type may include providing personal assistants such as a reader, sign language interpreter or travel attendant, permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. The contractor may also be required to make existing facilities readily accessible to and usable by disabled veterans—including areas used by employees for purposes other than the performance of essential job functions such as restrooms, break rooms, cafeterias, lounges, auditoriums, libraries, parking lots and credit unions. This type of accommodation will enable employees to enjoy equal benefits and privileges of employment as are enjoyed by employees who do not have disabilities.
8. Another of the potential accommodations listed in § 60-300.2(t) is job restructuring. This may involve reallocating or redistributing those nonessential, marginal job functions which a qualified disabled veteran cannot perform to another position. Accordingly, if a clerical employee who is a disabled veteran is occasionally required to lift heavy boxes containing files, but cannot do so because of a disability, this task may be reassigned to another employee. The contractor, however, is not required to reallocate essential functions, i.e., those functions that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For instance, the contractor which has a security guard position which requires the incumbent to inspect identity cards would not have to provide a blind disabled veteran with an assistant to perform that duty; in such a case, the assistant would be performing an essential function of the job for the disabled veteran. Job restructuring may also involve allowing part-time or modified work schedules. For instance, flexible or adjusted work schedules could benefit disabled veterans who cannot work a standard schedule because of the need to obtain medical treatment, or disabled veterans with mobility impairments who depend on a public transportation system that is not accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a vacant position. In general, reassignment should be considered only when accommodation within the disabled veteran's current position would pose an undue hardship. Reassignment is not required for applicants. However, in making hiring decisions, contractors are encouraged to consider applicants who are known disabled veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable. Reassignment may not be used to limit, segregate, or otherwise discriminate against employees who are disabled veterans by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A “reasonable amount of time” must be determined in light of the totality of the circumstances.
10. The contractor may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. The contractor may maintain the reassigned disabled veteran at the salary of the higher graded position, and must do so if it maintains the salary of reassigned employees who are not disabled veterans. It should also be noted that the contractor is not required to promote a disabled veteran as an accommodation.
11. With respect to the application process, reasonable accommodations may include the following: (1) providing information regarding job vacancies in a form accessible to disabled veterans who are vision or hearing impaired, e.g., by making an announcement available in braille, in large print, or on computer disc, or by responding to job inquiries via TTYs; (2) providing readers, sign language interpreters and other similar assistance during the application, testing and interview process; (3) appropriately adjusting or modifying employment-related examinations, e.g., extending regular time deadlines, allowing a disabled veteran who is blind or has a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her ability, to demonstrate skills through alternative techniques and utilization of adapted tools, aids and devices; and (4) ensuring a disabled veteran with a mobility impairment full access to testing locations such that the applicant's test scores accurately reflect the applicant's skills or aptitude rather than the applicant's mobility impairment.
1. This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C. 4212 (VEVRAA), which requires Government contractors to take affirmative action to employ and advance in employment: (1) disabled veterans; (2) recently separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed Forces service medal veterans. These classifications are defined as follows:
• A “disabled veteran” is one of the following:
• a veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or
• a person who was discharged or released from active duty because of a service-connected disability.
• A “recently separated veteran” means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval, or air service.
• An “active duty wartime or campaign badge veteran” means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.
• An “Armed forces service medal veteran” means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.
Protected veterans may have additional rights under USERRA—the Uniformed Services Employment and Reemployment Rights Act. In particular, if you were absent from employment in order to perform service in the uniformed service, you may be entitled to be reemployed by your employer in the position you would have obtained with reasonable certainty if not for the absence due to service. For more information, call the U.S. Department of Labor's Veterans Employment and Training Service (VETS), toll-free, at 1-866-4-USA-DOL.
2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE “PRE-OFFER” INVITATION AS REQUIRED BY 41 CFR 60-300.42(a). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF PROTECTED VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS SELF-IDENTIFICATION REQUEST.] If you believe you belong to any of the categories of protected veterans listed above, please indicate by checking the appropriate box below. As a Government contractor subject to VEVRAA, we request this information in order to measure the effectiveness of the outreach and positive recruitment efforts we undertake pursuant to VEVRAA.
[THE FOLLOWING TEXT SHOULD BE USED IF REQUIRED TO EXTEND THE “POST-OFFER” INVITATION DESCRIBED IN 41 CFR 60-300.42(b). THE DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF PROTECTED VETERAN INCLUDED IN THE POST-OFFER INVITATION MUST ACCOMPANY THIS SELF-IDENTIFICATION REQUEST.]
As a Government contractor subject to VEVRAA, we are required to submit a report to the United States Department of Labor each year identifying the number of our employees belonging to each specified “protected veteran” category. If you believe you belong to any of the categories of protected veterans listed above, please indicate by checking the appropriate box below.
I BELONG TO THE FOLLOWING CLASSIFICATIONS OF PROTECTED VETERANS (CHOOSE ALL THAT APPLY):
[ ] DISABLED VETERAN
[ ] RECENTLY SEPARATED VETERAN
[ ] ACTIVE WARTIME OR CAMPAIGN BADGE VETERAN
[ ] ARMED FORCES SERVICE MEDAL VETERAN
__________
[ ] I am a protected veteran, but I choose not to self-identify the classifications to which I belong.
[ ] I am NOT a protected veteran.
If you are a disabled veteran it would assist us if you tell us whether there are accommodations we could make that would enable you to perform the essential functions of the job, including special equipment, changes in the physical layout of the job, changes in the way the job is customarily performed, provision of personal assistance services or other accommodations. This information will assist us in making reasonable accommodations for your disability.
3. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.
4. The information you submit will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of disabled veterans, and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by the Office of Federal Contract Compliance Programs, or enforcing the Americans with Disabilities Act, may be informed.
5. [The contractor should here insert a brief provision summarizing the relevant portion of its affirmative action program.]
The following is a set of procedures which contractors may use to meet the requirements of § 60-300.44(b):
1. The application or personnel form of each known applicant who is a protected veteran should be annotated to identify each vacancy for which the applicant was considered, and the form should be quickly retrievable for review by the Department of Labor and the contractor's personnel officials for use in investigations and internal compliance activities.
2. The personnel or application records of each known protected veteran should include (i) the identification of each promotion for which the protected veteran was considered, and (ii) the identification of each training program for which the protected veteran was considered.
3. In each case where an employee or applicant who is a protected veteran is rejected for employment, promotion, or training, the contractor should prepare a statement of the reason as well as a description of the accommodations considered (for a rejected disabled veteran). The statement of the reason for rejection (if the reason is medically related), and the description of the accommodations considered, should be treated as confidential medical records in accordance with § 60-300.23(d). These materials should be available to the applicant or employee concerned upon request.
4. Where applicants or employees are selected for hire, promotion, or training and the contractor undertakes any accommodation which makes it possible for him or her to place a disabled veteran on the job, the contractor should make a record containing a description of the accommodation. The record should be treated as a confidential medical record in accordance with § 60-300.23(d).
(a) Purpose. The purpose of this part is to set forth the standards for compliance with section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793), which prohibits discrimination against individuals with disabilities and requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.
(b) Applicability. This part applies to all Government contracts and subcontracts in excess of $10,000 for the purchase, sale or use of personal property or nonpersonal services (including construction): Provided, That subpart C of this part applies only as described in § 60-741.40(a). Compliance by the contractor with the provisions of this part will not necessarily determine its compliance with other statutes, and compliance with other statutes will not necessarily determine its compliance with this part: Provided, That compliance shall also satisfy the employment provisions of the Department of Labor's regulations implementing section 504 of the Rehabilitation Act of 1973 (see 29 CFR 32.2(b)) when the contractor is also subject to those requirements.
(c) Construction—(1) In general. Except as otherwise provided in this part, this part does not apply a lesser standard than the standards applied under title I of the Americans with Disabilities Act (ADA) of 1990, as amended, (42 U.S.C. 12101 et seq.) or the regulations issued by the Equal Employment Opportunity Commission pursuant to that title (29 CFR part 1630). The Interpretive Guidance on Title I of the Americans with Disabilities Act set out as an appendix to 29 CFR part 1630 issued pursuant to that title may be relied upon for guidance in interpreting the parallel non-discrimination provisions of this part.
(2) Benefits under State worker's compensation laws. Nothing in this part alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs.
(3) Relationship to other laws. This part does not invalidate or limit the remedies, rights, and procedures under any Federal law or the law of any State or political subdivision that provides greater or equal protection for the rights of individuals with disabilities as compared to the protection afforded by this part. It may be a defense to a charge of violation of this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.
For the purpose of this part:
(a) Act means the Rehabilitation Act of 1973, as amended, 29 U.S.C. 706 and 793.
(b) Compliance evaluation means any one or combination of actions OFCCP may take to examine a Federal contractor's or subcontractor's compliance with one or more of the requirements of section 503 of the Rehabilitation Act of 1973.
(c) Contract means any Government contract or subcontract.
(d) Contractor means, unless otherwise indicated, a prime contractor or subcontractor holding a contract in excess of $10,000.
(e) Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual with a disability poses a direct threat shall be based on an individualized assessment of the individual's present ability to perform safely the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(f) Director means the Director, Office of Federal Contract Compliance Programs of the United States Department of Labor, or his or her designee.
(g) Disability. (1) The term disability means, with respect to an individual:
(i) A physical or mental impairment that substantially limits one or more major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment (as defined in paragraph (v) of this section).
(2) As used in this part, the definition of “disability” must be construed in favor of broad coverage of individuals, to the maximum extent permitted by law. The question of whether an individual meets the definition under this part should not demand extensive analysis.
(3) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
(4) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
(5) See paragraphs (m), (o), (t), (v), and (z) of this section, respectively, for definitions of “major life activities,” “physical or mental impairment,” “record of such an impairment,” “regarded as having such an impairment,” and “substantially limits.”
(6) See § 60-741.3 for exceptions to the definition of “disability.”
(h) Equal opportunity clause means the contract provisions set forth in § 60-741.5, “Equal opportunity clause.”
(i) Essential functions—(1) In general. The term essential functions means fundamental job duties of the employment position the individual with a disability holds or desires. The term essential functions does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(j) Government means the Government of the United States of America.
(k) Government contract means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services (including construction). The term Government contract does not include agreements in which the parties stand in the relationship of employer and employee, and federally assisted contracts.
(1) Construction, as used in paragraphs (k) and (x)(1) of this section, means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other on-site functions incidental to the actual construction.
(2) Contracting agency means any department, agency, establishment, or instrumentality of the United States, including any wholly owned Government corporation, which enters into contracts.
(3) Modification means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments, and extensions.
(4) Nonpersonal services, as used in paragraphs (k) and (x)(1) of this section, includes, but is not limited to, the following: utility, construction, transportation, research, insurance, and fund depository.
(5) Person, as used in paragraphs (k), (p), (u), (x), and (y) of this section, means any natural person, corporation, partnership or joint venture, unincorporated association, State or local government, and any agency, instrumentality, or subdivision of such a government.
(6) Personal property, as used in paragraphs (k) and (x)(1) of this section, includes supplies and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements).
(l) Individual with a disability—See definition of “disability” in paragraph (g) of this section.
(m) Major life activities—(1) In general. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
(2) Major bodily functions. For purposes of paragraph (m)(1) of this section, a major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.
(3) In determining other examples of major life activities, the term “major” shall not be interpreted strictly to create a demanding standard for disability. Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”
(n) Mitigating measures—(1) In general. The term mitigating measures includes, but is not limited to:
(i) Medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable accommodations or “auxiliary aids or services” (as defined by 42 U.S.C. 12103(1));
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(2) Ordinary eyeglasses or contact lenses. The term ordinary eyeglasses or contact lenses means lenses that are intended to fully correct visual acuity or to eliminate refractive error.
(3) Low-vision devices. The term low-vision devices means devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses.
(4) Auxiliary aids and services. The term auxiliary aids and services includes—
(i) Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(ii) Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(iii) Acquisition or modification of equipment or devices; and
(iv) Other similar services and actions.
(o) Physical or mental impairment means:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(p) Prime contractor means any person holding a contract in excess of $10,000, and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” includes any person who has held a contract subject to the act.
(q) Qualification standards means the personal and professional attributes including the skill, experience, education, physical, medical, safety, and other requirements established by the contractor as requirements which an individual must meet in order to be eligible for the position held or desired.
(r) Qualified individual means an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. See § 60-741.3 for exceptions to this definition.
(s)-(t) [Reserved]
(u) Reasonable accommodation—(1) In general. The term reasonable accommodation means modifications or adjustments:
(i) To a job application process that enable a qualified applicant with a disability to be considered for the position such applicant desires;
(ii) To the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) That enable the contractor's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the contractor's other similarly situated employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustments or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.
(4) Individuals who meet the definition of “disability” solely under the “regarded as” prong of the definition of “disability” as defined in paragraph (v)(1) of this section are not entitled to receive reasonable accommodation.
(v) Record of such 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. An individual shall be considered to have a record of a disability if the individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment.
(w) Recruiting and training agency means any person who refers workers to any contractor, or who provides or supervises apprenticeship or training for employment by any contractor.
(x) Regarded as having such an impairment. (1) Except as provided in paragraph (v)(4) of this section, an individual is regarded as having such an impairment if the individual is subjected to an action prohibited under subpart B (Discrimination Prohibited) of these regulations because of an actual or perceived physical or mental impairment, whether or not the impairment substantially limits or is perceived to substantially limit a major life activity. Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.
(2) Except as provided in paragraph (v)(4) of this section, an individual is regarded as having such an impairment any time a contractor takes a prohibited action against the individual because of an actual or perceived impairment, even if the contractor asserts, or may or does ultimately establish a defense to such action.
(3) Establishing that an individual is regarded as having such an impairment does not, by itself, establish liability for unlawful discrimination in violation of this part. Such liability is established only when an individual proves that a contractor discriminated on the basis of disability as prohibited by this part.
(4) Impairments that are transitory and minor. Paragraph (v)(1) of this section shall not apply to an impairment that is shown by the contractor to be transitory and minor. The contractor must demonstrate that the impairment is both “transitory” and “minor.” Whether the impairment at issue is or would be “transitory and “minor” is to be determined objectively. The fact that a contractor subjectively believed the impairment was transitory and minor is not sufficient to defeat an individual's coverage under paragraph (v)(1) of this section.
(i) An impairment is transitory if it has an actual or expected duration of six months or less.
(ii) [Reserved]
(y) Secretary means the Secretary of Labor, United States Department of Labor, or his or her designee.
(z) Subcontract. (1) Subcontract means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
(i) For the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts; or
(ii) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed; and
(2) Does not include an agreement between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(i) An agreement means a relationship between a health care provider and a health organization under which the health care provider agrees to provide health care services or supplies to natural persons who are beneficiaries under TRICARE.
(ii) A health care provider is a physician, hospital, or other individual or entity that furnishes health care services or supplies.
(iii) A health organization is a voluntary association, corporation, partnership, managed care support contractor, or other nongovernmental organization that is lawfully engaged in providing, paying for, insuring, or reimbursing the cost of health care services or supplies under group insurance policies or contracts, medical or hospital service agreements, membership or subscription contracts, network agreements, health benefits plans duly sponsored or underwritten by an employee organization or association of organizations and health maintenance organizations, or other similar arrangements, in consideration of premiums or other periodic charges or payments payable to the health organization.
(aa) Subcontractor means any person holding a subcontract in excess of $10,000 and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” any person who has held a subcontract subject to the act.
(bb) Substantially limits—(1) In general. The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by law. Substantially limits is not meant to be a demanding standard and should not demand extensive analysis.
(i) An impairment is substantially limiting within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability within the meaning of this section.
(ii) The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. However, nothing in this section is intended to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
(iii) In determining whether an individual is substantially limited in a major life activity, it may be useful in appropriate cases to consider, as compared to most people in the general population, the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity. This may include consideration of facts such as the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function.
(2) Non-applicability to the “regarded as” prong. Whether an individual's impairment substantially limits a major life activity is not relevant to a determination of whether the individual is regarded as having a disability within the meaning of paragraph (g)(1)(iii) of this section.
(3) Ameliorative effects of mitigating measures. Except as provided in paragraph (z)(3)(i) of this section, the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures as defined in paragraph (n) of this section.
(i) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered when determining whether an impairment substantially limits a major life activity. See paragraph (n)(2) of this section for a definition of “ordinary eyeglasses or contact lenses.”
(ii) Non-ameliorative effects of mitigating measures. The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual's impairment substantially limits a major life activity.
(4) In determining whether an individual is substantially limited the focus is on how a major life activity is substantially limited, and not on the outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.
(5) Predictable assessments. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, the principles set forth in this section are intended to provide for generous coverage through a framework that is predictable, consistent, and workable for all individuals and contractors with rights and responsibilities under this part. Therefore, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraph (g)(1)(i) or (ii) of this section. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. With respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.
(i) Examples of predictable assessments. Applying the principles set forth in this section it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis (MS) substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder, and schizophrenia substantially limit brain function. The types of impairments described in this section may also substantially limit additional major life activities not explicitly listed above.
(ii) [Reserved]
(cc) Undue hardship—(1) In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by the contractor, when considered in light of the factors set forth in paragraph (aa)(2) of this section.
(2) Factors to be considered. In determining whether an accommodation would impose an undue hardship on the contractor, factors to be considered include:
(i) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
(iii) The overall financial resources of the contractor, the overall size of the business of the contractor with respect to the number of its employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the contractor, including the composition, structure and functions of the work force of such contractor, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor; and
(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.
(dd) United States, as used herein, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.
(a) Current illegal use of drugs—(1) In general. The terms “disability” and “qualified individual” do not include individuals currently engaging in the illegal use of drugs, when the contractor acts on the basis of such use.
(2) “Drug” defined. The term drug means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substances Act (21 U.S.C. 812).
(3) “Illegal use of drugs” defined. The term illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, as updated pursuant to that act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.
(4) Construction. (i) Nothing in paragraph (a)(1) of this section shall be construed to exclude from the definition of disability or qualified individual an individual who:
(A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs;
(B) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(C) Is erroneously regarded as engaging in such use, but is not engaging in such use.
(ii) In order to be protected by section 503 and this part, an individual described in paragraph (a)(4)(i) of this section must, as appropriate, satisfy the requirements of the definition of disability and qualified individual.
(5) Drug testing. It shall not be a violation of this part for the contractor to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraphs (a)(4)(i)(A) and (B) of this section is no longer engaging in the illegal use of drugs. (See § 60-741.24(b)(1).)
(b) Alcoholics—(1) In general. The terms disability and qualified individual do not include an individual who is an alcoholic whose current use of alcohol prevents such individual from performing the essential functions of the employment position such individual holds or desires or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or to the health or safety of the individual or others.
(2) Duty to provide reasonable accommodation. Nothing in paragraph (b)(1) of this section shall relieve the contractor of its obligation to provide a reasonable accommodation for an individual described in paragraph (b)(1) of this section when such an accommodation will enable the individual to perform the essential functions of the employment position such individual holds or desires, or when the accommodation will eliminate or reduce the direct threat to the health or safety of the individual or others posed by such individual, provided that such individual satisfies the requisite skill, experience, education, and other job-related requirements of such position.
(c) Contagious disease or infection—(1) In general. The terms disability and qualified individual do not include an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of the individual or others or who, by reason of the currently contagious disease or infection, is unable to perform the essential functions of the employment position such individual holds or desires.
(2) Duty to provide reasonable accommodation. Nothing in paragraph (c)(1) of this section shall relieve the contractor of its obligation to provide a reasonable accommodation for an individual described in paragraph (c)(1) of this section when such an accommodation will enable the individual to perform the essential functions of the employment position such individual holds or desires, or when the accommodation will eliminate or reduce the direct threat to the health or safety of the individual or others posed by such individual, provided that such individual satisfies the requisite skill, experience, education, and other job-related requirements of such position.
(d) Homosexuality and bisexuality. Homosexuality and bisexuality are not impairments and so are not disabilities as defined in this part.
(e) Other conditions. The term disability does not include:
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.
(a) Coverage—(1) Contracts and subcontracts in excess of $10,000. Contracts and subcontracts in excess of $10,000 are covered by this part. No contracting agency or contractor shall procure supplies or services in less than usual quantities to avoid the applicability of the equal opportunity clause.
(2) Contracts and subcontracts for indefinite quantities. With respect to indefinite delivery-type contracts and subcontracts (including, but not limited to, open end contracts, requirement-type contracts, Federal Supply Schedule contracts, “call-type” contracts, and purchase notice agreements), the equal opportunity clause shall be included unless the contracting agency has reason to believe that the amount to be ordered in any year under such contract will not be in excess of $10,000. The applicability of the equal opportunity clause shall be determined at the time of award for the first year and annually thereafter for succeeding years, if any. Notwithstanding the above, the equal opportunity clause shall be applied to such contract whenever the amount of a single order exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration, regardless of the amounts ordered, or reasonably expected to be ordered in any year.
(3) Employment activities within the United States. This part applies only to employment activities within the United States and not to employment activities abroad. The term employment activities within the United States includes actual employment within the United States, and decisions of the contractor made within the United States, pertaining to the contractor's applicants and employees who are within the United States, regarding employment opportunities abroad (such as recruiting and hiring within the United States for employment abroad, or transfer of persons employed in the United States to contractor establishments abroad).
(4) Contracts with State or local governments. The requirements of the equal opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract.
(b) Waivers—(1) Specific contracts and classes of contracts. The Director may waive the application to any contract of the equal opportunity clause in whole or part when he or she deems that special circumstances in the national interest so require. The Director may also grant such waivers to groups or categories of contracts: where it is in the national interest; where it is found impracticable to act upon each request individually; and where such waiver will substantially contribute to convenience in administration of the act. When a waiver has been granted for any class of contracts, the Director may withdraw the waiver for a specific contract or group of contracts to be awarded, when in his or her judgment such action is necessary or appropriate to achieve the purposes of the act. The withdrawal shall not apply to contracts awarded prior to the withdrawal, except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations of this part shall not apply to any contract whenever the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the contracting agency will notify the Director in writing within 30 days.
(3) Facilities not connected with contracts. (i) Upon the written request of the contractor, the Director may waive the requirements of the equal opportunity clause with respect to any of a contractor's facilities if the Director finds that the contractor has demonstrated that:
(A) The facility is in all respects separate and distinct from activities of the contractor related to the performance of a contract; and
(B) Such a waiver will not interfere with or impede the effectuation of the act.
(ii) The Director's findings as to whether the facility is separate and distinct in all respects from activities of the contractor related to the performance of a contract shall include consideration of the following factors:
(A) Whether any work at the facility directly or indirectly supports or contributes to the satisfaction of the work performed on a Government contract;
(B) The extent to which the facility benefits, directly or indirectly, from a Government contract;
(C) Whether any costs associated with operating the facility are charged to a Government contract;
(D) Whether working at the facility is a prerequisite for advancement in job responsibility or pay, and the extent to which employees at facilities connected to a Government contract are recruited for positions at the facility;
(E) Whether employees or applicants for employment at the facility may perform work related to a Government contract at another facility, and the extent to which employees at the facility are interchangeable with employees at facilities connected to a Government contract; and
(F) Such other factors that the Director deems are necessary or appropriate for considering whether the facility is in all respects separate and distinct from the activities of the contractor related to the performance of a contract.
(iii) The Director's findings as to whether granting a waiver will interfere with or impede the effectuation of the act shall include consideration of the following factors:
(A) Whether the waiver will be used as a subterfuge to circumvent the contractor's obligations under the act;
(B) The contractor's compliance with the act or any other Federal, State or local law requiring equal opportunity for disabled persons;
(C) The impact of granting the waiver on OFCCP enforcement efforts; and
(D) Such other factors that the Director deems are necessary or appropriate for considering whether the granting of the waiver would interfere with or impede the effectuation of the act.
(iv) A contractor granted a waiver under paragraph (b)(3) of this section shall:
(A) Promptly inform the Director of any changed circumstances not reflected in the contractor's waiver request; and
(B) Permit the Director access during normal business hours to the contractor's places of business for the purpose of investigating whether the facility granted a waiver meets the standards and requirements of paragraph (b)(3) of this section, and for inspecting and copying such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation.
(v)(A) A waiver granted under paragraph (b)(3) of this section shall terminate on one of the following dates, whichever is earliest:
(1) Two years after the date the waiver was granted.
(2) When the facility performs any work that directly supports or contributes to the satisfaction of the work performed on a Government contract.
(3) When the Director determines, based on information provided by the contractor under this section or upon any other relevant information, that the facility does not meet the requirements of paragraph (b)(3) of this section.
(B) When a waiver terminates in accordance with paragraph (b)(3)(v)(A) of this section the contractor shall ensure that the facility complies with this part on the date of termination, except that compliance with §§ 60-741.40 through 60-741.44, if applicable, must be attained within 120 days of such termination.
(vi) False or fraudulent statements or representations made by a contractor under paragraph (b)(3) of this section are prohibited and may subject the contractor to sanctions and penalties under this part and criminal prosecution under 18 U.S.C. 1001.
(a) Government contracts. Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract):
1. The contractor will not discriminate against any employee or applicant for employment because of physical or mental disability in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ and advance in employment individuals with disabilities, and to treat qualified individuals without discrimination on the basis of their physical or mental disability in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring;
iii. Rates of pay or any other form of compensation and changes in compensation;
iv. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether or not administered by the contractor;
vii. Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;
viii. Activities sponsored by the contractor including social or recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the act.
3. In the event of the contractor's noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the act.
4. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Director, Office of Federal Contract Compliance Programs, provided by or through the contracting officer. Such notices shall state the rights of applicants and employees as well as the contractor's obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants with disabilities. The contractor must ensure that applicants or employees with disabilities are provided the notice in a form that is accessible and understandable to the individual applicant or employee (e.g., providing Braille or large print versions of the notice, or posting a copy of the notice at a lower height for easy viewing by a person using a wheelchair). With respect to employees who do not work at a physical location of the contractor, a contractor will satisfy its posting obligations by posting such notices in an electronic format, provided that the contractor provides computers, or access to computers, that can access the electronic posting to such employees, or the contractor has actual knowledge that such employees otherwise are able to access the electronically posted notices. Electronic notices for employees must be posted in a conspicuous location and format on the company's intranet or sent by electronic mail to employees. An electronic posting must be used by the contractor to notify job applicants of their rights if the contractor utilizes an electronic application process. Such electronic applicant notice must be conspicuously stored with, or as part of, the electronic application.
5. The contractor will notify each labor organization or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the contractor is bound by the terms of section 503 of the Rehabilitation Act of 1973, as amended, and is committed to take affirmative action to employ and advance in employment, and shall not discriminate against, individuals with physical or mental disabilities.
6. The contractor will include the provisions of this clause in every subcontract or purchase order in excess of $10,000, unless exempted by the rules, regulations, or orders of the Secretary issued pursuant to section 503 of the act, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Director, Office of Federal Contract Compliance Programs may direct to enforce such provisions, including action for noncompliance.
7. The contractor must, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment and will not be discriminated against on the basis of disability.
(b) Subcontracts. Each contractor shall include the equal opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be made to the equal opportunity clause as shall be appropriate to identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It is not necessary to include the equal opportunity clause verbatim in the contract. The clause shall be made a part of the contract by citation to 41 CFR 60-741.5(a) and inclusion of the following language, in bold text, after the citation: “This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.”
(e) Incorporation by operation of the act. By operation of the act, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the act and the regulations in this part to include such a clause, whether or not it is physically incorporated in such contract and whether or not there is a written contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall cooperate with the Director and the Secretary in the performance of their responsibilities under the act. Such cooperation shall include insuring that the equal opportunity clause is included in all covered Government contracts and that contractors are fully informed of their obligations under the act and this part, providing the Director with any information which comes to the agency's attention that a contractor is not in compliance with the act or this part, responding to requests for information from the Director, and taking such actions for noncompliance as are set forth in § 60-741.66 as may be ordered by the Secretary or the Director.
The prohibition against discrimination in this part applies to the following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(c) Rates of pay or any other form of compensation and changes in compensation;
(d) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or not administered by the contractor;
(g) Selection and financial support for training, including apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and recreational programs; and
(i) Any other term, condition, or privilege of employment.
(a) The term discrimination includes, but is not limited to, the acts described in this section and § 60-741.23.
(1) Disparate treatment. It is unlawful for the contractor to deny an employment opportunity or benefit or otherwise to discriminate against a qualified individual on the basis of disability.
(2) Limiting, segregating and classifying. Unless otherwise permitted by this part, it is unlawful for the contractor to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability. For example, the contractor may not segregate employees into separate work areas or into separate lines of advancement on the basis of disability.
(3) Contractual or other arrangements—(i) In general. It is unlawful for the contractor to participate in a contractual or other arrangement or relationship that has the effect of subjecting the contractor's own qualified applicant or employee with a disability to the discrimination prohibited by this part.
(ii) Contractual or other arrangement defined. The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with: an employment or referral agency; a labor organization, including a collective bargaining agreement; an organization providing fringe benefits to an employee of the contractor; or an organization providing training and apprenticeship programs.
(iii) Application. This paragraph (a)(3) applies to the contractor, with respect to its own applicants or employees, whether the contractor offered the contract or initiated the relationship, or whether the contractor accepted the contract or acceded to the relationship. The contractor is not liable for the actions of the other party or parties to the contract which only affect that other party's employees or applicants.
(4) Standards, criteria or methods of administration. It is unlawful for the contractor to use standards, criteria, or methods of administration, that are not job-related and consistent with business necessity, and that:
(i) Have the effect of discriminating on the basis of disability; or
(ii) Perpetuate the discrimination of others who are subject to common administrative control.
(5) Relationship or association with an individual with a disability. It is unlawful for the contractor to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social, or other relationship or association.
(6) Not making reasonable accommodation. (i) It is unlawful for the contractor to fail to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability as defined in §§ 60-741.2(g)(1)(i) or (ii), unless such contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
(ii) It is unlawful for the contractor to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such contractor to make reasonable accommodation to such an individual's physical or mental impairments.
(iii) The reasonable accommodation obligation extends to the contractor's use of electronic or online job application systems. If a contractor uses such a system, it must provide necessary reasonable accommodation to ensure that an otherwise qualified individual with a disability who is not able to fully utilize that system is nonetheless provided with equal opportunity to apply and be considered for all jobs. Though not required by this part, it is a best practice for the contractor to make its online job application system accessible and compatible with assistive technologies used by individuals with disabilities.
(iv) A qualified individual with a disability is not required to accept an accommodation, aid, service, opportunity, or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified individual with a disability.
(v) A contractor is not required to provide reasonable accommodation to an individual who satisfies only the “regarded as having such an impairment” prong of the definition of “disability,” as defined in § 60- 741.2(v)(1).
(vi) Reasonable accommodation procedures. The development and use of written procedures for processing requests for reasonable accommodation is a best practice that may assist the contractor in meeting its reasonable accommodation obligations under section 503 and this part. Such procedures help ensure that applicants and employees are informed as to how to request a reasonable accommodation and are aware of how such a request will be processed by the contractor. They also help ensure that the contractor's supervisors and managers know what to do should they receive a request for reasonable accommodation, and that all requests for accommodation are processed swiftly, within a reasonable period of time. The development and use of written reasonable accommodation procedures is not required by this part, and it is not a violation of this part for a contractor not to have or use such procedures. However, Appendix B of this part provides guidance to contractors that choose to develop and use written reasonable accommodation procedures.
(7) Qualification standards, tests and other selection criteria—(i) In general. It is unlawful for the contractor to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criterion, as used by the contractor, is shown to be job-related for the position in question and is consistent with business necessity. Selection criteria that concern an essential function may not be used to exclude an individual with a disability if that individual could satisfy the criteria with provision of a reasonable accommodation. Selection criteria that exclude or tend to exclude an individual with a disability or a class of individuals with disabilities on the basis of disability but concern only marginal functions of the job would not be consistent with business necessity. The contractor may not refuse to hire an applicant with a disability because the applicant's disability prevents him or her from performing marginal functions.
(ii) Qualification standards and tests related to uncorrected vision. It is unlawful for the contractor to use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the contractor, is shown to be job-related for the position in question and consistent with business necessity. An individual challenging a contractor's application of a qualification standard, test, or other criterion based on uncorrected vision need not be an individual with a disability, but must be adversely affected by the application of the standard, test, or other criterion.
(iii) The Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3, do not apply to the Rehabilitation Act and are similarly inapplicable to this part.
(8) Administration of tests. It is unlawful for the contractor to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant, except where such skills are the factors that the test purports to measure.
(9) Compensation. In offering employment or promotions to individuals with disabilities, it is unlawful for the contractor to reduce the amount of compensation offered because of any income based upon a disability-related pension or other disability-related benefit the applicant or employee receives from another source. Nor may the contractor reduce the amount of compensation offered to an individual with a disability because of the actual or anticipated cost of a reasonable accommodation the individual needs or may request.
(b) Claims of No Disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of the lack of disability, or because an individual with a disability was granted an accommodation that was denied to an individual without a disability.
The contractor may use as a qualification standard the requirement that an individual be able to perform the essential functions of the position held or desired without posing a direct threat to the health or safety of the individual or others in the workplace. (See § 60-741.2(e) defining direct threat.)
(a) Prohibited medical examinations or inquiries. Except as stated in paragraphs (b) and (c) of this section, it is unlawful for the contractor to require a medical examination of an applicant or employee or to make inquiries as to whether an applicant or employee is an individual with a disability or as to the nature or severity of such disability.
(b) Permitted medical examinations and inquiries—(1) Acceptable pre-employment inquiry. The contractor may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability.
(3) Examination of employees. The contractor may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. The contractor may make inquiries into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site. These medical examinations and activities do not have to be job-related and consistent with business necessity.
(5) Medical examinations conducted in accordance with paragraph (b)(2) of this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an applicant or applicants or an employee or employees with disabilities as a result of such examinations or inquiries, the contractor must demonstrate that the exclusionary criteria are job-related and consistent with business necessity, and that performance of the essential job functions cannot be accomplished with reasonable accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite the applicant to self-identify as an individual with a disability as specified in § 60-741.42.
(d) Confidentiality and use of medical information. (1) Information obtained under this section regarding the medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, as amended, shall be provided relevant information on request.
(2) Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part.
(a) Specific activities permitted. The contractor:
(1) May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
(2) May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the contractor holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject to such regulations comply with the standards established in the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies that apply to employment in sensitive positions subject to such regulations.
(b) Drug testing—(1) General policy. For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the administration of such drug tests by the contractor to its job applicants or employees is not a violation of § 60-741.23. Nothing in this part shall be construed to encourage, prohibit, or authorize the contractor to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be construed to encourage, prohibit, or authorize the otherwise lawful exercise by contractors subject to the jurisdiction of the Department of Transportation of authority to test employees in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs or for on-duty impairment by alcohol; and remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this section.
(3) Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of § 60-741.23(b)(5) and (c).
(a) An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with State law.
(b) The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.
(c) The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.
(d) The contractor may not deny an individual with a disability equal access to insurance or subject an individual with a disability to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b), and (c) of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part.
(a) General purpose. An affirmative action program is a management tool designed to ensure equal employment opportunity and foster employment opportunities for individuals with disabilities. An affirmative action program institutionalizes the contractor's commitment to equality in every aspect of employment and is more than a paperwork exercise. An affirmative action program is dynamic in nature and includes measurable objectives, quantitative analyses, and internal auditing and reporting systems that measure the contractor's progress toward achieving equal employment opportunity for individuals with disabilities.
(b) Applicability of the affirmative action program. (1) The requirements of this subpart apply to every Government contractor that has 50 or more employees and a contract of $50,000 or more.
(2) Contractors described in paragraph (b)(1) of this section shall, within 120 days of the commencement of a contract, prepare and maintain an affirmative action program at each establishment. The affirmative action program shall set forth the contractor's policies and procedures in accordance with this part. This program may be integrated into or kept separate from other affirmative action programs.
(3) The affirmative action program shall be reviewed and updated annually by the official designated by the contractor pursuant to § 60-741.44(i).
(c) Submission of program to OFCCP. The contractor shall submit the affirmative action program within 30 days of a request from OFCCP, unless the request provides for a different time. The contractor also shall make the affirmative action program promptly available on-site upon OFCCP's request.
The full affirmative action program, absent the data metrics required by § 60-741.44(k), shall be available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment.
(a) Pre-offer. (1) As part of the contractor's affirmative action obligation, the contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability as defined in § 60-741.2(g)(1)(i) or (ii). This invitation shall be provided to each applicant when the applicant applies or is considered for employment. The invitation may be included with the application materials for a position, but must be separate from the application.
(2) The contractor shall invite an applicant to self-identify as required in paragraph (a) of this section using the language and manner prescribed by the Director and published on the OFCCP Web site.
(b) Post-offer. (1) At any time after the offer of employment, but before the applicant begins his or her job duties, the contractor shall invite the applicant to inform the contractor whether the applicant believes that he or she is an individual with a disability as defined in § 60-741.2(g)(1)(i) or (ii).
(2) The contractor shall invite an applicant to self-identify as required in paragraph (b) of this section using the language and manner prescribed by the Director and published on the OFCCP Web site.
(c) Employees. The contractor shall invite each of its employees to voluntarily inform the contractor whether the employee believes that he or she is an individual with a disability as defined in § 60-741.2(g)(1)(i) or (ii). This invitation shall be extended the first year the contractor becomes subject to the requirements of this section and at five year intervals, thereafter, using the language and manner prescribed by the Director and published on the OFCCP Web site. At least once during the intervening years between these invitations, the contractor must remind their employees that they may voluntarily update their disability status.
(d) The contractor may not compel or coerce an individual to self-identify as an individual with a disability.
(e) The contractor shall keep all information on self-identification confidential, and shall maintain it in a data analysis file (rather than in the medical files of individual employees). See § 60-741.23(d). The contractor shall provide self-identification information to OFCCP upon request. Self-identification information may be used only in accordance with this part.
(f) Nothing in this section shall relieve the contractor of its obligation to take affirmative action with respect to those applicants or employees of whose disability the contractor has knowledge.
(g) Nothing in this section shall relieve the contractor from liability for discrimination in violation of section 503 or this part.
Under the affirmative action obligations imposed by the act, contractors shall not discriminate because of physical or mental disability and shall take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level. Such action shall apply to all employment activities set forth in § 60-741.20.
Acceptable affirmative action programs shall contain, but not necessarily be limited to the following elements:
(a) Policy statement. The contractor shall include an equal opportunity policy statement in its affirmative action program, and shall post the policy statement on company bulletin boards. The contractor must ensure that applicants and employees with disabilities are provided the notice in a form that is accessible and understandable to the individual with a disability (e.g., providing Braille or large print versions of the notice, or posting a copy of the notice at a lower height for easy viewing by a person using a wheelchair). The policy statement shall indicate the top United States executive's (such as the Chief Executive Officer or the President of the United States Division of a foreign company) support for the contractor's affirmative action program, provide for an audit and reporting system (see paragraph (h) of this section) and assign overall responsibility for the implementation of affirmative action activities required under this part (see paragraph (i) of this section). Additionally, the policy shall state, among other things that the contractor will: recruit, hire, train, and promote persons in all job titles, and ensure that all other personnel actions are administered without regard to disability; and ensure that all employment decisions are based only on valid job requirements. The policy shall state that employees and applicants shall not be subjected to harassment, intimidation, threats, coercion, or discrimination because they have engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance evaluation, hearing, or any other activity related to the administration of section 503 or any other Federal, State, or local law requiring equal opportunity for individuals with disabilities;
(3) Opposing any act or practice made unlawful by section 503 or its implementing regulations in this part, or any other Federal, State or local law requiring equal opportunity for individuals with disabilities; or
(4) Exercising any other right protected by section 503 or its implementing regulations in this part.
(b) Review of personnel processes. The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees with known disabilities for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. The contractor shall ensure that its personnel processes do not stereotype individuals with disabilities in a manner which limits their access to all jobs for which they are qualified. In addition, the contractor shall ensure that applicants and employees with disabilities have equal access to its personnel processes, including those implemented through information and communication technologies. The contractor is required to provide necessary reasonable accommodation to ensure applicants and employees with disabilities receive equal opportunity in the operation of personnel processes. The contractor is also encouraged to make its information and communication technologies accessible, even absent a specific request for reasonable accommodation.
(c) Physical and mental qualifications. (1) The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified individuals with disabilities, they are job-related for the position in question and are consistent with business necessity.
(2) Whenever the contractor applies physical or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified individuals on the basis of disability, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor shall have the burden to demonstrate that it has complied with the requirements of this paragraph (c).
(3) The contractor may use as a defense to an allegation of a violation of paragraph (c)(2) of this section that an individual poses a direct threat to the health or safety of the individual or others in the workplace. (See § 60-741.2(e) defining direct threat.)
(d) Reasonable accommodation to physical and mental limitations. (1) As is provided in § 60-741.21(a)(6), as a matter of nondiscrimination, the contractor must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee's disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.
(2) Reasonable accommodation procedures. The development and use of written procedures for processing requests for reasonable accommodation is a best practice that may assist the contractor in meeting its reasonable accommodation obligations under section 503 and this part. Such procedures help ensure that applicants and employees are informed as to how to request a reasonable accommodation and are aware of how such a request will be processed by the contractor. They also help ensure that the contractor's supervisors and managers know what to do should they receive a request for reasonable accommodation, and that all requests for accommodation are processed swiftly, within a reasonable period of time. The development and use of written reasonable accommodation procedures is not required by this part, and it is not a violation of this part for a contractor not to have or use such procedures. However, Appendix B of this part provides guidance to contractors that choose to develop and use written reasonable accommodation procedures.
(e) Harassment. The contractor must develop and implement procedures to ensure that its employees are not harassed on the basis of disability.
(f) External dissemination of policy, outreach, and positive recruitment—(1) Required outreach efforts. (i) The contractor shall undertake appropriate outreach and positive recruitment activities such as those listed in paragraph (f)(2) of this section that are reasonably designed to effectively recruit qualified individuals with disabilities. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraph (f)(2) of this section or that its activities will be limited to those listed. The scope of the contractor's efforts shall depend upon all the circumstances, including the contractor's size and resources and the extent to which existing employment practices are adequate.
(ii) The contractor must send written notification of company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part.
(2) Examples of outreach and recruitment activities. Below are examples of outreach and positive recruitment activities referred to in paragraph (f)(1) of this section.
(i) Enlisting the assistance and support of the following persons and organizations in recruiting, and developing on-the-job training opportunities for individuals with disabilities, in order to fulfill its commitment to provide equal employment opportunity for such individuals:
(A) The State Vocational Rehabilitation Service Agency (SVRA), State mental health agency, or State developmental disability agency in the area of the contractor's establishment;
(B) The Employment One-Stop Career Center (One-Stop) or American Job Center nearest the contractor's establishment;
(C) The Department of Veterans Affairs Regional Office nearest the contractor's establishment (www.va.gov);
(D) Entities funded by the Department of Labor that provide recruitment or training services for individuals with disabilities, such as the services currently provided through the Employer Assistance and Resource Network (EARN) (www.earnworks.com);
(E) Local Employment Network (EN) organizations (other than the contractor, if the contractor is an EN) listed in the Social Security Administration's Ticket to Work Employment Network Directory (www.yourtickettowork.com/endir);
(F) Local disability groups, organizations, or Centers for Independent Living (CIL) near the contractor's establishment;
(G) Placement or career offices of educational institutions that specialize in the placement of individuals with disabilities; and
(H) Private recruitment sources, such as professional organizations or employment placement services that specialize in the placement of individuals with disabilities.
(ii) The contractor should also consider taking the actions listed below to fulfill its commitment to provide equal employment opportunities to individuals with disabilities:
(A) Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Contractor facility tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruiting literature should be an integral part of the briefing. At any such briefing sessions, the company official in charge of the contractor's affirmative action program should be in attendance when possible. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.
(B) The contractor's recruitment efforts at all educational institutions should incorporate special efforts to reach students who are individuals with disabilities.
(C) An effort should be made to participate in work-study programs for students, trainees, or interns with disabilities. Such programs may be found through outreach to State and local schools and universities, and through EARN.
(D) Individuals with disabilities should be made available for participation in career days, youth motivation programs, and related activities in their communities.
(E) The contractor should take any other positive steps it deems necessary to attract individuals with disabilities not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These individuals may be located through State and local agencies supported by the U.S. Department of Education's Rehabilitation Services Administration (RSA) (http://rsa.ed.gov/), local Ticket-to-Work Employment Networks, or local chapters of groups or organizations that provide services for individuals with disabilities.
(F) The contractor, in making hiring decisions, should consider applicants who are known to have disabilities for all available positions for which they may be qualified when the position(s) applied for is unavailable.
(3) Assessment of external outreach and recruitment efforts. The contractor shall, on an annual basis, review the outreach and recruitment efforts it has taken over the previous twelve months to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities. The contractor shall document each evaluation, including at a minimum the criteria it used to evaluate the effectiveness of each effort and the contractor's conclusion as to whether each effort was effective. Among these criteria shall be the data collected pursuant to paragraph (k) of this section for the current year and the two most recent previous years. The contractor's conclusion as to the effectiveness of its outreach efforts must be reasonable as determined by OFCCP in light of these regulations. If the contractor concludes the totality of its efforts were not effective in identifying and recruiting qualified individuals with disabilities, it shall identify and implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to fulfill its obligations.
(4) Recordkeeping obligation. The contractor shall document all activities it undertakes to comply with the obligations of this section, and retain these documents for a period of three (3) years.
(g) Internal dissemination of policy. (1) A strong outreach program will be ineffective without adequate internal support from supervisory and management personnel and other employees. In order to assure greater employee cooperation and participation in the contractor's efforts, the contractor shall develop the internal procedures listed in paragraph (g)(2) of this section for communication of its obligation to engage in affirmative action efforts to employ and advance in employment qualified individuals with disabilities. It is not contemplated that the contractor's activities will be limited to those listed. These procedures shall be designed to foster understanding, acceptance and support among the contractor's executive, management, supervisory, and other employees and to encourage such persons to take the necessary actions to aid the contractor in meeting this obligation.
(2) The contractor shall implement and disseminate this policy internally as follows:
(i) Include it in the contractor's policy manual or otherwise make the policy available to employees;
(ii) If the contractor is a party to a collective bargaining agreement, it shall notify union officials and/or employee representatives of the contractor's policy and request their cooperation;
(3) The contractor is encouraged to additionally implement and disseminate this policy internally as follows:
(i) Inform all employees and prospective employees of its commitment to engage in affirmative action to increase employment opportunities for individuals with disabilities. The contractor should periodically schedule special meetings with all employees to discuss policy and explain individual employee responsibilities;
(ii) Publicize it in the company newspaper, magazine, annual report and other media;
(iii) Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation making clear the chief executive officer's support for the affirmative action policy;
(iv) Discuss the policy thoroughly in both employee orientation and management training programs;
(v) Include articles on accomplishments of individuals with disabilities in company publications; and
(vi) When employees are featured in employee handbooks or similar publications for employees, include individuals with disabilities.
(h) Audit and reporting system. (1) The contractor shall design and implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives have been attained;
(iv) Determine whether known individuals with disabilities have had the opportunity to participate in all company sponsored educational, training, recreational, and social activities;
(v) Measure the contractor's compliance with the affirmative action program's specific obligations; and
(vi) Document the actions taken to comply with the obligations of paragraphs (h)(1)(i) through (v) of this section, and retain these documents as employment records subject to the recordkeeping requirements of § 60-741.80.
(2) Where the affirmative action program is found to be deficient, the contractor shall undertake necessary action to bring the program into compliance.
(i) Responsibility for implementation. An official of the contractor shall be assigned responsibility for implementation of the contractor's affirmative action activities under this part. His or her identity should appear on all internal and external communications regarding the company's affirmative action program. This official shall be given necessary senior management support and staff to manage the implementation of this program.
(j) Training. All personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor's affirmative action program are implemented.
(k) Data collection analysis. The contractor shall document the following computations or comparisons pertaining to applicants and hires on an annual basis and maintain them for a period of three (3) years:
(1) The number of applicants who self-identified as individuals with disabilities pursuant to § 60-741.42(a), or who are otherwise known to be individuals with disabilities;
(2) The total number of job openings and total number of jobs filled;
(3) The total number of applicants for all jobs;
(4) The number of applicants with disabilities hired; and
(5) The total number of applicants hired.
The utilization goal is not a rigid and inflexible quota which must be met, nor is it to be considered either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
(a) Goal. OFCCP has established a utilization goal of 7 percent for employment of qualified individuals with disabilities for each job group in the contractor's workforce, or for the contractor's entire workforce as provided in paragraph (d)(2)(i) of this section.
(b) Purpose. The purpose of the utilization goal is to establish a benchmark against which the contractor must measure the representation of individuals within each job group in its workforce, or within the contractor's entire workforce as provided in paragraph (d)(2)(i) of this section. The utilization goal serves as an equal employment opportunity objective that should be attainable by complying with all aspects of the affirmative action requirements of this part.
(c) Periodic review of goal. The Director of OFCCP shall periodically review and update, as appropriate, the utilization goal established in paragraph (a) of this section.
(d) Utilization analysis—(1) Purpose. The utilization analysis is designed to evaluate the representation of individuals with disabilities in each job group within the contractor's workforce, or to evaluate the representation of individuals with disabilities in the contractor's entire workforce as provided in paragraph (d)(2)(i) of this section, with the utilization goal established in paragraph (a) of this section.
(2) Grouping jobs for analysis. The contractor must use the same job groups established for utilization analyses under Executive Order 11246, either in accordance with 41 CFR part 60-2, or in accordance with 41 CFR part 60-4, as appropriate, except as provided below.
(i) Contractors with 100 or fewer employees. If a contractor has a total workforce of 100 or fewer employees, it need not use the jobs groups established for utilization analyses under Executive Order 11246, and has the option to measure the representation of individuals with disabilities in its entire workforce with the utilization goal established in paragraph (a) of this section.
(ii) [Reserved]
(3) Annual evaluation. The contractor shall annually evaluate its utilization of individuals with disabilities in each job group, or in its entire workforce as provided in paragraph (d)(2)(i) of this section.
(e) Identification of problem areas. When the percentage of individuals with disabilities in one or more job groups, or in a contractor's entire workforce as provided in paragraph (d)(2)(i) of this section, is less than the utilization goal established in paragraph (a) of this section, the contractor must take steps to determine whether and where impediments to equal employment opportunity exist. When making this determination, the contractor must assess its personnel processes, the effectiveness of its outreach and recruitment efforts, the results of its affirmative action program audit, and any other areas that might affect the success of the affirmative action program.
(f) Action-oriented programs. The contractor must develop and execute action-oriented programs designed to correct any identified problems areas. These action-oriented programs may include the modification of personnel processes to ensure equal employment opportunity for individuals with disabilities, alternative or additional outreach and recruitment efforts from among those listed in § 60-741.44 (f)(1) and (f)(2), and/or other actions designed to correct the identified problem areas and attain the established goal.
(g) A contractor's determination that it has not attained the utilization goal established in paragraph (a) of this section in one or more job groups does not constitute either a finding or admission of discrimination in violation of this part.
(h) The utilization goal established in paragraph (a) of this section shall not be used as a quota or ceiling that limits or restricts the employment of individuals with disabilities.
(a) The contractor is permitted to develop and implement training and employment for employees with disabilities. Examples include, developing a job training program focused on the specific needs of individuals with certain disabilities such as traumatic brain injury (TBI) or developmental disabilities and utilizing linkage agreements to recruit program trainees. Successful programs such as these have been developed by some contractors and OFCCP desires to make clear they are permissible, though not required.
(1) If a contractor elects to implement a voluntary affirmative action program for employees with disabilities, a description of the program and the policies governing the program, including the name and title of the official responsible for the program, shall be included in the contractor's written affirmative action program. An annual report describing the contractor's activities pursuant to the program and identifying the outcomes achieved should also be included in the contractor's affirmative action program.
(2) Disability-related information from the applicant and/or employee self-identification request required by § 60-741.42 may be used to identify individuals with disabilities who are eligible to benefit from a voluntary affirmative action program for employees with disabilities.
(b) The contractor shall not use such programs to segregate individuals with disabilities or to limit or restrict the employment opportunities of any individual with a disability.
(c) The contractor shall not discriminate against an individual with a disability who has participated in a voluntary affirmative action program for employees with disabilities with respect to any term, condition, or benefit of employment, including, but not limited to, employment acts such as compensation, promotion, and termination, that are listed in § 60-741.20.
(d) These voluntary training and development programs should not result in discrimination against other groups and do not relieve a contractor from liability for discrimination under this act, Executive Order 11246, or the Vietnam Era Vetrans' Readjustment Assistance Act.
Contracts with sheltered workshops do not constitute affirmative action in lieu of employment and advancement of qualified individuals with disabilities in the contractor's own work force. Contracts with sheltered workshops may be included within an affirmative action program if the sheltered workshop trains employees for the contractor and the contractor is obligated to hire trainees at full compensation when such trainees become “qualified individuals with disabilities.”
(a) OFCCP may conduct compliance evaluations to determine if the contractor is taking affirmative action to employ, advance in employment, and otherwise treat qualified individuals without discrimination on the basis of disability in all employment practices. A compliance evaluation may consist of any one or any combination of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of the hiring and employment practices of the contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by the contractor. A compliance review may proceed in three stages:
(i) A desk audit of the written affirmative action program and supporting documentation to determine whether all elements required by the regulations in this part are included, whether the affirmative action program meets agency standards of reasonableness, and whether the affirmative action program and supporting documentation satisfy agency standards of acceptability. OFCCP may extend the temporal scope of the desk audit beyond that set forth in the scheduling letter if OFCCP deems it necessary to carry out its investigation of potential violations of this part. The desk audit is conducted at OFCCP offices;
(ii) An on-site review is conducted at the contractor's establishment to investigate unresolved problem areas identified in the affirmative action program and supporting documentation during the desk audit, to verify that the contractor has implemented the affirmative action program and has complied with those regulatory obligations not required to be included in the affirmative action program, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied by the contractor or otherwise gathered during or pursuant to the on-site review;
(2) Off-site review of records. An analysis and evaluation of the affirmative action program (or any part thereof) and supporting documentation, and other documents related to the contractor's personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of section 503 and its regulations;
(3) Compliance check. A determination of whether the contractor has maintained records consistent with § 60-741.80; OFCCP may request the documents be provided either on-site or off-site; or
(4) Focused review. A review restricted to one or more components of the contractor's organization or one or more aspects of the contractor's employment practices.
(b) Where deficiencies are found to exist, OFCCP will make reasonable efforts to secure compliance through conciliation and persuasion, pursuant to § 60-741.62. The “reasonable efforts” standard shall be interpreted consistently with title VII of the Civil Rights Act of 1964 and its requirement that the Equal Employment Opportunity Commission endeavor to remove any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.
(c) Pre-award compliance evaluations. Each agency will include in the invitation for bids for each formally advertised nonconstruction contract or state at the outset of negotiations for each negotiated contract, that if the award, when let, should total $10 million or more, the prospective contractor and its known first-tier subcontractors with subcontracts of $10 million or more will be subject to a compliance evaluation before the award of the contract unless OFCCP has conducted an evaluation and found them to be in compliance with section 503 within the preceding 24 months. The awarding agency will notify OFCCP and request appropriate action and findings in accordance with this subsection. Within 15 days of the notice, OFCCP will inform the awarding agency of its intention to conduct a pre-award compliance evaluation. If OFCCP does not inform the awarding agency within that period of its intention to conduct a pre-award compliance evaluation, clearance shall be presumed and the awarding agency is authorized to proceed with the award. If OFCCP informs the awarding agency of its intention to conduct a pre-award compliance evaluation, OFCCP will be allowed an additional 20 days after the date that it so informs the awarding agency to provide its conclusions. If OFCCP does not provide the awarding agency with its conclusions within that period, clearance will be presumed and the awarding agency is authorized to proceed with the award.
(a) Coordination with other agencies. Pursuant to section 107(b) of the Americans with Disabilities Act of 1990, as amended (ADA), OFCCP and the Equal Employment Opportunity Commission (EEOC) have promulgated regulations setting forth procedures governing the processing of complaints falling within the overlapping jurisdiction of both the act and title I of the ADA to ensure that such complaints are dealt with in a manner that avoids duplication of effort and prevents the imposition of inconsistent or conflicting standards. Complaints filed under this part will be processed in accordance with those regulations, which are found at 41 CFR part 60-742, and with this part.
(b) Place and time of filing. Any applicant for employment with a contractor or any employee of a contractor may, personally, or by an authorized representative, file a written complaint with the Director alleging a violation of the act or the regulations in this part. The complaint may allege individual or class-wide violation(s). Complaints may be submitted to the OFCCP, 200 Constitution Avenue NW., Room C-3325, Washington, DC 20210, or to any OFCCP regional, district, or area office. Such complaint must be filed within 300 days of the date of the alleged violation, unless the time for filing is extended by OFCCP for good cause shown.
(c) Contents of complaints—(1) In general. A complaint must be signed by the complainant or his or her authorized representative and must contain the following information:
(i) Name and address (including telephone number) of the complainant;
(ii) Name and address of the contractor who committed the alleged violation;
(iii) The facts showing that the individual has a disability, a record or history of a disability, or was regarded by the contractor as having a disability;
(iv) A description of the act or acts considered to be a violation, including the pertinent dates (in the case of an alleged continuing violation, the earliest and most recent date that the alleged violation occurred should be stated); and
(v) Other pertinent information available which will assist in the investigation and resolution of the complaint, including the name of any known Federal agency with which the employer has contracted.
(2) Third party complaints. When a written complaint is filed by an authorized representative, that complaint need not identify by name the person on whose behalf it is filed. However, the authorized representative must nonetheless provide the name, address and telephone number of the person on whose behalf the complaint is filed to OFCCP, along with the other information specified in paragraph (c)(1) of this section. OFCCP shall verify the authorization of such complaint with the person on whose behalf the complaint is filed. Any such person may request that OFCCP keep his or her identity confidential during the investigation of the complaint, and OFCCP will protect the individual's confidentiality wherever that is possible given the facts and circumstances in the complaint.
(d) Incomplete information. Where a complaint contains incomplete information, OFCCP shall seek the needed information from the complainant. If the information is not furnished to OFCCP within 60 days of the date of such request, the case may be closed.
(e) Investigations. The Department of Labor shall institute a prompt investigation of each complaint.
(f) Resolution of matters. (1) If the complaint investigation finds no violation of the act or this part, or if the Director decides not to refer the matter to the Solicitor of Labor for enforcement proceedings against the contractor pursuant to § 60-741.65(a)(l), the complainant and contractor shall be so notified. The Director, on his or her own initiative, may reconsider his or her determination or the determination of any of his or her designated officers who have authority to issue Notifications of Results of Investigation.
(2) The Director will review all determinations of no violation that involve complaints that are not also cognizable under title I of the Americans with Disabilities Act.
(3) In cases where the Director decides to reconsider the determination of a Notification of Results of Investigation, the Director shall provide prompt notification of his or her intent to reconsider, which is effective upon issuance, and his or her final determination after reconsideration to the person claiming to be aggrieved, the person making the complaint on behalf of such person, if any, and the contractor.
(4) If the investigation finds a violation of the act or this part, OFCCP shall invite the contractor to participate in conciliation discussions pursuant to § 60-741.62.
(a) Predetermination Notice. If a compliance evaluation by OFCCP indicates preliminary findings of potential discrimination, OFCCP will issue a Predetermination Notice that describes the preliminary findings and provides the contractor an opportunity to respond. The Predetermination Notice may also include preliminary findings of other potential violations that OFCCP has identified at that stage of the review. After OFCCP issues the Predetermination Notice, the agency may identify additional violations and include them in a subsequent Notice of Violation or Show Cause Notice without amending the Predetermination Notice. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Notice of Violation or Show Cause Notice. Any response to a Predetermination Notice must be received by OFCCP within 15 calendar days of receipt of the Notice, which deadline OFCCP may extend for good cause. If the contractor does not respond or OFCCP determines that the contractor's response and any additional investigation undertaken by the agency did not resolve the preliminary findings of potential discrimination or other violations identified in the Predetermination Notice, OFCCP will proceed to issue a Notice of Violation.
(b) Notice of Violation. If a compliance evaluation by OFCCP indicates a violation of the equal opportunity clause, OFCCP will issue a Notice of Violation to the contractor requiring corrective action. The Notice of Violation will identify the violations found and describe the recommended corrective actions. The Notice of Violation will invite the contractor to conciliate the matter and resolve the findings through a written conciliation agreement. After the Notice of Violation is issued, OFCCP may include additional violations in a subsequent Show Cause Notice without amendment to the Notice of Violation. OFCCP will provide the contractor an opportunity to conciliate additional violations identified in the Show Cause Notice.
(c) Conciliation agreement. If a compliance review, complaint investigation, or other review by OFCCP or its representative indicates a material violation of the equal opportunity clause, and:
(1) If the contractor, subcontractor, or bidder is willing to correct the violations and/or deficiencies; and
(2) If OFCCP or its representative determines that settlement (rather than referral for consideration of formal enforcement) is appropriate, a written conciliation agreement shall be required. The agreement shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies identified, including, where appropriate (but not limited to), remedies such as back pay, salary adjustments, and retroactive seniority.
(d) Remedial benchmarks. The remedial action referenced in paragraph (c) of this section may include the establishment of benchmarks for the contractor's outreach, recruitment, hiring, or other employment activities. The purpose of such benchmarks is to create a quantifiable method by which the contractor's progress in correcting identified violations and/or deficiencies can be measured.
(e) Show Cause Notice. When the Director has reasonable cause to believe that a contractor has violated the equal opportunity clause the Director may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings, or other appropriate action to ensure compliance should not be instituted. OFCCP may issue a Show Cause Notice without first issuing a Predetermination Notice or Notice of Violation when the contractor has failed to provide access to its premises for an on-site review or refused to provide access to witnesses, records, or other information. The Show Cause Notice will include each violation that OFCCP has identified at the time of issuance. Where OFCCP identifies additional violations after issuing a Show Cause Notice, OFCCP will modify or amend the Show Cause Notice.
(f) Expedited conciliation option. OFCCP may agree to waive the procedures set forth in paragraphs (a) and/or (b) of this section to enter directly into a conciliation agreement with a contractor. OFCCP may offer the contractor this expedited conciliation option, but may not require or insist that the contractor avail itself of the expedited conciliation option.
(a) When OFCCP believes that a conciliation agreement has been violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth the violation alleged and summarizing the supporting evidence. The contractor shall have 15 days from receipt of the notice to respond, except in those cases in which OFCCP asserts that such a delay would result in irreparable injury to the employment rights of affected employees or applicants.
(2) During the 15-day period the contractor may demonstrate in writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result in irreparable injury to the employment rights of affected employees or applicants, enforcement proceedings may be initiated immediately without proceeding through any other requirement contained in this chapter.
(c) In any proceedings involving an alleged violation of a conciliation agreement, OFCCP may seek enforcement of the agreement itself and shall not be required to present proof of the underlying violations resolved by the agreement.
(a) General. (1) If a compliance evaluation, complaint investigation, or other review by OFCCP finds a violation of the act or this part, and the violation has not been corrected in accordance with the conciliation procedures in this part, or OFCCP determines that referral for consideration of formal enforcement (rather than settlement) is appropriate, OFCCP may refer the matter to the Solicitor of Labor with a recommendation for the institution of enforcement proceedings to enjoin the violations, to seek appropriate relief, and to impose appropriate sanctions, or any combination of these outcomes. OFCCP may seek back pay and other make whole relief for aggrieved individuals identified during a complaint investigation or compliance review. Such individuals need not have filed a complaint as a prerequisite to OFCCP seeking such relief on their behalf. Interest on back pay shall be calculated from the date of the loss and compounded quarterly at the percentage rate established by the Internal Revenue Service (IRS) for the underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this section, the Director may, within the limitations of applicable law, seek appropriate judicial action to enforce the contractual provisions set forth in § 60-741.5, including appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative enforcement proceedings the contractor shall be provided an opportunity for a formal hearing. All hearings conducted under the act and this part shall be governed by the Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity Under Executive Order 11246 contained in 41 CFR part 60-30 and the Rules of Evidence set out in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges contained in 29 CFR part 18, subpart B: Provided, That a final administrative order shall be issued within one year from the date of the issuance of the recommended findings, conclusions, and decision of the Administrative Law Judge, or the submission of any exceptions and responses to exceptions to such decision (if any) whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate Solicitor for Civil Rights and Labor-Management, Regional Solicitors and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references in 41 CFR part 60-30 to “Executive Order 11246” shall mean section 503 of the Rehabilitation Act of 1973, as amended; references to “equal opportunity clause'” shall mean the equal opportunity clause published at § 60-741.5; and references to “regulations” shall mean the regulations contained in this part.
(a) Withholding progress payments. With the prior approval of the Director, so much of the accrued payment due on the contract or any other contract between the Government contractor and the Federal Government may be withheld as necessary to correct any violations of the provisions of the act or this part.
(b) Termination. A contract may be canceled or terminated, in whole or in part, for failure to comply with the provisions of the act or this part.
(c) Debarment. A contractor may be debarred from receiving future contracts for failure to comply with the provisions of the act or this part subject to reinstatement pursuant to § 60-741.68. Debarment may be imposed for an indefinite period, or may be imposed for a fixed period of not less than six months, but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall be afforded to a contractor before the imposition of any sanction or penalty.
The Director shall ensure that the heads of all agencies are notified of any debarments taken against any contractor.
(a) Application for reinstatement. A contractor debarred from further contracts for an indefinite period under the act may request reinstatement in a letter filed with the Director at any time after the effective date of the debarment; a contractor debarred for a fixed period may make such a request following the expiration of six months from the effective date of the debarment. In connection with the reinstatement proceedings, all debarred contractors shall be required to show that they have established and will carry out employment policies and practices in compliance with the act and this part. Additionally, in determining whether reinstatement is appropriate for a contractor debarred for a fixed period, the Director also shall consider, among other factors, the severity of the violation which resulted in the debarment, the contractor's attitude towards compliance, the contractor's past compliance history, and whether the contractor's reinstatement would impede the effective enforcement of the act or this part. Before reaching a decision, the Director may conduct a compliance evaluation of the contractor and may require the contractor to supply additional information regarding the request for reinstatement. The Director shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a decision denying a request for reinstatement, the contractor may file a petition for review of the decision with the Secretary. The petition shall set forth the grounds for the contractor's objections to the Director's decision. The petition shall be served on the Director and the Associate Solicitor for Civil Rights and Labor-Management and shall include the decision as an appendix. The Director may file a response within 14 days to the petition. The Secretary shall issue the final agency decision denying or granting the request for reinstatement. Before reaching a final decision, the Secretary may issue such additional orders respecting procedure as he or she finds appropriate in the circumstances, including an order referring the matter to the Office of Administrative Law Judges for an evidentiary hearing where there is a material factual dispute that cannot be resolved on the record before the Secretary.
(a) The contractor shall not harass, intimidate, threaten, coerce, or discriminate against any individual because the individual has engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the act or any other Federal, State, or local law requiring equal opportunity for individuals with disabilities;
(3) Opposing any act or practice made unlawful by the act or this part or any other Federal, State, or local law requiring equal opportunity for individuals with disabilities; or
(4) Exercising any other right protected by the act or this part.
(b) The contractor shall ensure that all persons under its control do not engage in such harassment, intimidation, threats, coercion, or discrimination. The sanctions and penalties contained in this part may be exercised by the Director against any contractor who violates this obligation.
The procedures set forth in the regulations in this part govern all disputes relative to the contractor's compliance with the act and this part. Any disputes relating to issues other than compliance, including contract costs arising out of the contractor's efforts to comply, shall be determined by the disputes clause of the contract.
(a) General requirements. Except as set forth in paragraph (b) of this section, any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later, except as set forth in paragraph (b) of this section. Such records include, but are not necessarily limited to, records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of two years from the date of the termination, except that contractors that have fewer than 150 employees or that do not have a Government contract of at least $150,000 shall keep such records for a period of one year from the date of the termination. Where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor must preserve all personnel records relevant to the complaint, compliance evaluation, or action until final disposition of the complaint, compliance evaluation or action. The term “personnel records relevant to the complaint, compliance evaluation, or action” will include, for example, personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.
(b) Records with three-year retention requirement. Records required by § 60-741.44(f)(4) and (k) shall be maintained by all contractors for a period of three years from the date of the making of the record.
(c) Failure to preserve records. Failure to preserve complete and accurate records as required by this part constitutes noncompliance with the contractor's obligations under the act and this part. Where the contractor has destroyed or failed to preserve records as required by this section, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor: Provided, That this presumption shall not apply where the contractor shows that the destruction or failure to preserve records results from circumstances that are outside of the contractor's control.
Each contractor shall permit access during normal business hours to its places of business for the purpose of conducting on-site compliance evaluations and complaint investigations and inspecting and copying such books, accounts, and records, including electronic records, and any other material OFCCP deems relevant to the matter under investigation and pertinent to compliance with the act or this part. Contractors must also provide OFCCP access to these materials, including electronic records, off-site for purposes of conducting compliance evaluations and complaint investigations. Upon request, the contractor must provide OFCCP information about all format(s), including specific electronic formats, in which the contractor maintains its records and other information. The contractor must provide records and other information in any of the formats in which they are maintained, as selected by OFCCP. Information obtained in this manner shall be used only in connection with the administration of the act, the Americans with Disabilities Act of 1990, as amended (ADA), and in furtherance of the purposes of the act and the ADA. OFCCP will treat records provided by the contractor to OFCCP under this section as confidential to the maximum extent the information is exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552.
(a) Whenever performance in accordance with the equal opportunity clause or any matter contained in the regulations in this part may necessitate a revision of a collective bargaining agreement, the labor organizations which are parties to such agreement shall be given an adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through contractors, subcontractors, local officials, vocational rehabilitation facilities, and all other available instrumentalities, to cause any labor organization, recruiting and training agency, or other representative of workers who are employed by a contractor to cooperate with, and to assist in, the implementation of the purposes of the act.
Rulings under or interpretations of the act and this part shall be made by the Director.
Should a court of competent jurisdiction hold any provision(s) of this part to be invalid, such action will not affect any other provision of this part.
The guidelines in this appendix are in large part derived from, and are consistent with, the discussion regarding the duty to provide reasonable accommodation contained in the Interpretive Guidance on title I of the Americans with Disabilities Act, as amended (ADA), set out as an appendix to the regulations issued by the Equal Employment Opportunity Commission (EEOC) implementing the ADA (29 CFR part 1630). Although the following discussion is intended to provide an independent “free-standing” source of guidance with respect to the duty to provide reasonable accommodation under this part, to the extent that the EEOC appendix provides additional guidance which is consistent with the following discussion, it may be relied upon for purposes of this part as well. See § 60-741.1(c). Contractors are obligated to provide reasonable accommodation and to take affirmative action. Reasonable accommodation under section 503, like reasonable accommodation required under the ADA, is a part of the nondiscrimination obligation. See EEOC appendix cited in this paragraph. Affirmative action is unique to section 503, and includes actions above and beyond those required as a matter of nondiscrimination. An example of this is the requirement discussed in paragraph 2 of this appendix that a contractor shall make an inquiry of an employee with a known disability who is having significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability, unless the contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As stated in § 60-741.2(r), an individual with a disability is qualified if he or she satisfies all the skill, experience, education, and other job-related selection criteria, and can perform the essential functions of the position with or without reasonable accommodation. A contractor is required to make a reasonable accommodation with respect to its application process if the individual with a disability is qualified with respect to that process. One is qualified within the meaning of section 503 if he or she is qualified for a job, except that, because of a disability, he or she needs a reasonable accommodation to be able to perform the job's essential functions.
2. Although the contractor would not be expected to accommodate disabilities of which it is unaware, the contractor has an affirmative obligation to provide reasonable accommodation for applicants and employees of whose disabilities the contractor has actual knowledge. As stated in § 60-741.42, as part of the contractor's affirmative action obligation, the contractor is required to invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability both prior to an offer of employment, and after an offer of employment but before he or she begins his/her employment duties. That invitation also informs applicants of the contractor's reasonable accommodation obligation and invites individuals with disabilities to request any accommodation they might need. Moreover, § 60-741.44(d) provides that if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the disability, the contractor is required to confidentially inquire whether the problem is disability related and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability. Thus, for example, an accommodation made to assist an employee with a disability in the performance of his or her job must be adequate to enable the individual to perform the essential functions of the position. The accommodation, however, does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. There are three areas in which reasonable accommodations may be necessary: (1) Accommodations in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of the position held or desired; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.
4. The term “undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the contractor's business. The contractor's claim that the cost of a particular accommodation will impose an undue hardship requires a determination of which financial resources should be considered—those of the contractor in its entirety or only those of the facility that will be required to provide the accommodation. This inquiry requires an analysis of the financial relationship between the contractor and the facility in order to determine what resources will be available to the facility in providing the accommodation. If the contractor can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if the funding is available from another source (e.g., a State vocational rehabilitation agency) or if Federal, State, or local tax deductions or tax credits are available to offset the cost of the accommodation. In the absence of such funding, the individual with a disability must be given the option of providing the accommodation or of paying that portion of the cost which constitutes the undue hardship on the operation of the business.
5. The definition for “reasonable accommodation” in § 60-741.2(s) lists a number of examples of the most common types of accommodations that the contractor may be required to provide. There are a number of specific accommodations that may be appropriate for particular situations. The discussion in this appendix is not intended to provide an exhaustive list of required accommodations (as no such list would be feasible); rather, it is intended to provide general guidance regarding the nature of the obligation. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor generally should consult with the individual with a disability in deciding on the appropriate accommodation; frequently, the individual will know exactly what accommodation he or she will need to perform successfully in a particular job, and may suggest an accommodation which is simpler and less expensive than the accommodation the contractor might have devised. Other resources to consult include the appropriate State vocational rehabilitation services agency, the Equal Employment Opportunity Commission (1-800-669-4000 (voice) or 1-800-669-6820 (TTY)), the Job Accommodation Network (JAN)—a service of the U.S. Department of Labor's Office of Disability Employment Policy (1-800-526-7234 (voice) or 1-877-781-9403 (TTY)), private disability organizations, and other employers.
6. With respect to accommodations that can permit an employee with a disability to perform essential functions successfully, a reasonable accommodation may require the contractor to, for instance, modify or acquire equipment. For those visually-impaired, such accommodations may include providing adaptive hardware and software for computers, electronic visual aids, Braille writers, talking calculators, magnifiers, audio recordings, and Braille or large print materials. For persons with hearing impairments, reasonable accommodations may include providing telephone handset amplifiers, telephones compatible with hearing aids, and TTY machines. For persons with limited physical dexterity, the obligation may require the provision of telephone headsets, mechanical page turners, and raised or lowered furniture.
7. Other reasonable accommodations of this type may include providing personal assistants such as a reader, interpreter, or travel attendant, permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. The contractor may also be required to make existing facilities readily accessible to and usable by individuals with disabilities—including areas used by employees for purposes other than the performance of essential job functions—such as restrooms, break rooms, cafeterias, lounges, auditoriums, libraries, parking lots, and credit unions. This type of accommodation will enable employees to enjoy equal benefits and privileges of employment as are enjoyed by employees who do not have disabilities.
8. Another of the potential accommodations listed in § 60-741.2(s) is job restructuring. This may involve reallocating or redistributing those nonessential, marginal job functions which a qualified individual with a disability cannot perform to another position. Accordingly, if a clerical employee is occasionally required to lift heavy boxes containing files, but cannot do so because of a disability, this task may be reassigned to another employee. The contractor, however, is not required to reallocate essential functions, i.e., those functions that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For instance, the contractor that has a security guard position which requires the incumbent to inspect identity cards would not have to provide a blind individual with an assistant to perform that duty; in such a case, the assistant would be performing an essential function of the job for the individual with a disability. Job restructuring may also involve allowing part-time or modified work schedules. For instance, flexible or adjusted work schedules could benefit individuals with disabilities who cannot work a standard schedule because of the need to obtain medical treatment, or individuals with mobility impairments who depend on a public transportation system that is not accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a vacant position. In general, reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship. Reassignment is not required for applicants. However, in making hiring decisions, contractors are encouraged to consider known applicants with disabilities for all available positions for which they may be qualified when the position(s) applied for is unavailable. Reassignment may not be used to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A reasonable amount of time should be determined in light of the totality of the circumstances.
10. The contractor may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. The contractor may maintain the reassigned individual with a disability at the salary of the higher graded position, and must do so if it maintains the salary of reassigned employees who are not disabled. It should also be noted that the contractor is not required to promote an individual with a disability as an accommodation.
11. With respect to the application process, appropriate accommodations may include the following: (1) Providing information regarding job vacancies in a form accessible to those with vision or hearing impairments (e.g., by making an announcement available in Braille, in large print, or on audio tape, or by responding to job inquiries via TTY); (2) providing readers, interpreters and other similar assistance during the application, testing and interview process; (3) appropriately adjusting or modifying employment-related examinations (e.g., extending regular time deadlines, allowing a blind person or one with a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her disability to demonstrate skills through alternative techniques and utilization of adapted tools, aids and devices); and (4) ensuring an applicant with a mobility impairment full access to testing locations such that the applicant's test scores accurately reflect the applicant's skills or aptitude rather than the applicant's mobility impairment.
As stated in §§ 60-741.21(a)(6) and 60-741.44(d), the development and use of written procedures for processing requests for reasonable accommodation is a best practice. This Appendix provides guidance contractors may wish to use should they decide to adopt this best practice. As stated in the regulations, contractors are not required to use written reasonable accommodation procedures, and the failure to use such procedures will not result in a finding of violation.
1. Designation of responsible official. The contractor should designate an official to be responsible for the implementation of the reasonable accommodation procedures. The responsible official may be the same official who is responsible for the implementation of the contractor's affirmative action program. The responsible official should have the authority, resources, support, and access to top management that is needed to ensure the effective implementation of the reasonable accommodation procedures. The name, title/office, and contact information (telephone number and email address) of the responsible official should be included in the reasonable accommodation procedures, and should be updated when changes occur.
2. Description of process. The contractor's reasonable accommodation procedures should contain a description of the steps the contractor takes when processing a reasonable accommodation request, including the process by which the contractor renders a final determination on the accommodation request. If specific information must be provided to the contractor in order to obtain a reasonable accommodation, the description should identify this information. For example, the contractor's reasonable accommodation procedures may state that to obtain a reasonable accommodation, the contractor must be informed of the existence of a disability, the disability-related limitation(s) or workplace barrier(s) that needs to be accommodated, and, if known, the desired reasonable accommodation. The description should also indicate that, if the need for accommodation is not obvious, or if additional information is needed, the contractor may initiate an interactive process with the accommodation requester.
3. Form of requests for reasonable accommodation. The reasonable accommodation procedures should specify that a request for reasonable accommodation may be oral or written and should explain that there are no required “magic words” that must be used by the requester to request an accommodation. The procedures should also state that requests for reasonable accommodation may be made by an applicant, employee, or by a third party, such as a relative, job coach, or friend, on his or her behalf.
4. Submission of reasonable accommodation requests by employees. The reasonable accommodation procedures should identify to whom an employee (or a third party acting on his or her behalf) must submit an accommodation request. At a minimum, this should include any supervisor or management official in the employee's chain of command, and the official responsible for the implementation of the reasonable accommodation procedures.
5. Recurring requests for a reasonable accommodation. The reasonable accommodation procedures should provide that in instances of a recurring need for an accommodation (e.g., a hearing impaired employee's need for a sign language interpreter for meetings) the requester will not be required to repeatedly submit or renew their request for accommodation each time the accommodation is needed. In the absence of a reasonable belief that the individual's recurring need for the accommodation has changed, requiring the repeated submission of a request for the accommodation could be considered harassment on the basis of disability in violation of this part.
6. Supporting medical documentation. The reasonable accommodation procedures should explain the circumstances, if any, under which the contractor may request and review medical documentation in support of a request for reasonable accommodation. The procedures should explain that any request for medical documentation may not be open ended, and must be limited to documentation of the individual's disability and the functional limitations for which reasonable accommodation is sought. The procedures should also explain that the submission of medical documentation is not required when the disability for which a reasonable accommodation is sought is known or readily observable and the need for accommodation is known or obvious.
7. Written confirmation of receipt of request. The reasonable accommodation procedures should specify that written confirmation of the receipt of a request for reasonable accommodation will be provided to the requester, either by letter or email. The written confirmation should include the date the accommodation request was received, and be signed by the authorized decisionmaker or his or her designee.
8. Timeframe for processing requests. The reasonable accommodation procedures should state that requests for accommodation will be processed as expeditiously as possible. Oral requests for reasonable accommodation should be considered received on the date they are initially made, even if the contractor has a reasonable accommodation request form that has not been completed. Requests for reasonable accommodation must be processed within a reasonable period of time. What constitutes a reasonable period of time will depend upon the specific circumstances. However, in general, if supporting medical documentation is not needed, that timeframe should not be longer than 5 to 10 business days. If supporting medical documentation is needed, or if special equipment must be ordered, that timeframe should not exceed 30 calendar days, unless there are extenuating circumstances beyond the control of the contractor. The procedures should explain what constitutes extenuating circumstances. However, reasonable accommodations may need to be provided even more expeditiously for applicants. See the discussion of accommodation requests from applicants in section 10, below.
9. Delay in responding to request. If the contractor's processing of an accommodation request will exceed established timeframes, written notice should be provided to the requester. The notice should include the reason(s) for the delay and a projected date of response. The notice should also be dated and signed by the authorized decisionmaker or his or her designee.
10. Reasonable accommodation requests by applicants. The reasonable accommodation procedures should include procedures to ensure that all applicants, including those using the contractor's online or other electronic application system, are made aware of the contractor's reasonable accommodation obligation and are invited to request any reasonable accommodation needed to participate fully in the application process. All applicants should also be provided with contact information for contractor staff able to assist the applicant, or his or her representative, in making a request for accommodation. The contractor's procedures should provide that reasonable accommodation requests by or on behalf of an applicant are processed expeditiously, using timeframes tailored to the application process.
11. Denial of reasonable accommodation. The contractor's reasonable accommodation procedures should specify that any denial or refusal to provide a requested reasonable accommodation will be provided in writing. The written denial should include the reason for the denial and be dated and signed by the authorized decisionmaker or his or her designee. If the contractor provides an internal appeal or reconsideration process, the written denial should inform the requester about this process.
12. Confidentiality. The contractor's reasonable accommodation procedures should indicate that all requests for reasonable accommodation, related documentation (such as request confirmation receipts, requests for additional information, and decisions regarding accommodation requests), and any medical or disability-related information provided to the contractor will be treated as confidential medical records and maintained in a separate medical file, in accordance with section 503 and this part.
13. Dissemination of procedures to employees. The contractor should disseminate its written reasonable accommodation procedures to all employees. Notice of the reasonable accommodation procedures may be provided by their inclusion in an employee handbook that is disseminated to all employees and/or by email or electronic posting on a company Web page where work-related notices are ordinarily posted. Notice of the reasonable accommodation procedures should be provided to employees who work off-site in the same manner that notice of other work-related matters is ordinarily provided to these employees.
14. Training. The contractor should provide annual training for its supervisors and managers regarding the implementation of the reasonable accommodation procedures. Training should also be provided whenever significant changes are made to the reasonable accommodation procedures. Training regarding the reasonable accommodation procedures may be provided in conjunction with other required equal employment opportunity or affirmative action training.
The purpose of this part is to implement procedures for processing and resolving complaints/charges of employment discrimination filed against employers holding government contracts or subcontracts, where the complaints/charges fall within the jurisdiction of both section 503 of the Rehabilitation Act of 1973 (hereinafter “Section 503”) and the Americans with Disabilities Act of 1990 (hereinafter “ADA”). The promulgation of this part is required pursuant to section 107(b) of the ADA. Nothing in this part should be deemed to affect the Department of Labor's (hereinafter “DOL”) Office of Federal Contract Compliance Programs' (hereinafter “OFCCP”) conduct of compliance reviews of government contractors and subcontractors under section 503. Nothing in this part is intended to create rights in any person.
(a) EEOC and OFCCP shall share any information relating to the employment policies and practices of employers holding government contracts or subcontracts that may assist each office in carrying out its responsibilities. Such information shall include, but not necessarily be limited to, affirmative action programs, annual employment reports, complaints, charges, investigative files, and compliance review reports and files.
(b) All requests by third parties for disclosure of the information described in paragraph (a) of this section shall be coordinated with the agency which initially compiled or collected the information.
(c) Paragraph (b) of this section is not applicable to requests for data in EEOC files made by any state or local agency designated as a “FEP agency” with which EEOC has a charge resolution contract and a work-sharing agreement containing the confidentiality requirements of sections 706(b) and 709(e) of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). However, such an agency shall not disclose any of the information, initially compiled by OFCCP, to the public without express written approval by the Director of OFCCP.
When the Department of Labor receives information obtained by EEOC, the Department of Labor shall observe the confidentiality requirements of sections 706(b) and 709(e) of title VII of the Civil Rights Act of 1964, as incorporated by section 107(a) of the ADA, as would EEOC, except in cases where DOL receives the same information from a source independent of EEOC. Questions concerning confidentiality shall be directed to the Associate Legal Counsel for Legal Services, Office of Legal Counsel of EEOC.
In any OFCCP investigation, hearing, determination or other proceeding involving a complaint/charge that is dual filed under both section 503 and the ADA, OFCCP will utilize legal standards consistent with those applied under the ADA in determining whether an employer has engaged in an unlawful employment practice. EEOC and OFCCP will coordinate the arrangement of any necessary training regarding the substantive or procedural provisions of the ADA, and of EEOC's implementing regulations (29 CFR part 1630 and 29 CFR part 1601).
(a) Complaints of employment discrimination filed with OFCCP will be considered charges, simultaneously dual filed, under the ADA whenever the complaints also fall within the jurisdiction of the ADA. OFCCP will act as EEOC's agent for the sole purposes of receiving, investigating and processing the ADA charge component of a section 503 complaint dual filed under the ADA, except as otherwise set forth in paragraph (e) of this section.
(b) Within ten days of receipt of a complaint of employment discrimination under section 503 (charge under the ADA), OFCCP shall notify the contractor/respondent that it has received a complaint of employment discrimination under section 503 (charge under the ADA). This notification shall state the date, place and circumstances of the alleged unlawful employment practice.
(c) Pursuant to work-sharing agreements between EEOC and state and local agencies designated as FEP agencies, the deferral period for section 503 complaints/ADA charges dual filed with OFCCP will be waived.
(d) OFCCP shall transfer promptly to EEOC a complaint of employment discrimination over which it does not have jurisdiction but over which EEOC may have jurisdiction. At the same time, OFCCP shall notify the complainant and the contractor/respondent of the transfer, the reason for the transfer, the location of the EEOC office to which the complaint was transferred and that the date OFCCP received the complaint will be deemed the date it was received by EEOC.
(e) OFCCP shall investigate and process as set forth in this section all section 503 complaints/ADA charges dual filed with OFCCP, except as specifically provided in this paragraph. Section 503 complaints/ADA charges raising Priority List issues, those which also include allegations of discrimination of an individual nature on the basis of race, color, religion, sex, or national origin, and those which also include an allegation of discrimination on the basis of age will be referred in their entirety by OFCCP to EEOC for investigation, processing and final resolution, provided that such complaints/charges do not include allegations of violation of affirmative action requirements under section 503. In such a situation, OFCCP will bifurcate the complaints/charges and refer to EEOC the Priority List issues or allegations of discrimination on the basis of race, color, religion, sex, national origin, or age. OFCCP shall normally retain, investigate, process and resolve all allegations of discrimination, over which it has jurisdiction, of a systemic or class nature on the basis of race, color, religion, sex, or national origin that it receives. However, in appropriate cases the EEOC may request that it be referred such allegations so as to avoid duplication of effort and assure effective law enforcement.
(1) No cause section 503 complaints/ADA charges. If the OFCCP investigation of the section 503 complaint/ADA charge results in a finding of no violation under section 503 (no cause under the ADA), OFCCP will issue a determination of no violation/no cause under both section 503 and the ADA, and issue a right-to-sue letter under the ADA, closing the complaint/charge.
(2) Cause section 503 complaints/ADA charges—(i) Successful conciliation. If the OFCCP investigation of the section 503 complaint/ADA charge results in a finding of violation under section 503 (cause under the ADA), OFCCP will issue a finding of violation/cause under both section 503 and ADA. OFCCP shall attempt conciliation to obtain appropriate full relief for the complainant (charging party), consistent with EEOC's standards for remedies. If conciliation is successful and the contractor/respondent agrees to provide full relief, the section 503 complaint/ADA charge will be closed and the conciliation agreement will state that the complainant (charging party) agrees to waive the right to pursue the subject issues further under section 503 and/or the ADA.
(ii) Unsuccessful conciliation. All section 503 complaints/ADA charges not successfully conciliated will be considered for OFCCP administrative litigation under section 503, consistent with OFCCP's usual procedures. (See 41 CFR part 60-741, subpart B.) If OFCCP pursues administrative litigation under section 503, OFCCP will close the complaint/charge at the conclusion of the litigation process (including the imposition of appropriate sanctions), unless the complaint/charge is dismissed on procedural grounds or because of a lack of jurisdiction, or the contractor/respondent fails to comply with an order to provide make whole relief. In these three cases, OFCCP will refer the matter to EEOC for any action it deems appropriate. If EEOC declines to pursue further action, it will issue a notice of right-to-sue. If OFCCP does not pursue administrative enforcement, it will close the section 503 component of the complaint/charge and refer the ADA charge component to EEOC for litigation review under the ADA. If EEOC declines to litigate, EEOC will close the ADA charge and issue a notice of right-to-sue.
(f) Consistent with the ADA procedures set forth at 29 CFR 1601.28, OFCCP shall promptly issue upon request a notice of right-to-sue after 180 days from the date the complaint/charge was filed. Issuance of a notice of right-to-sue shall terminate further OFCCP processing of any complaint/charge unless it is determined at that time or at a later time that it would effectuate the purposes of section 503 and/or the ADA to further process the complaint/charge.
(g) If an individual who has already filed a section 503 complaint with OFCCP subsequently attempts to file or files an ADA charge with EEOC covering the same facts and issues, EEOC will decline to accept the charge (or, alternatively, dismiss a charge that has been filed) on the grounds that such charge has already been filed under the ADA, simultaneous with the filing of the earlier section 503 complaint, and will be processed by OFCCP in accordance with the provisions of this section.
(a) ADA cause charges falling within the jurisdiction of section 503 that the Commission has declined to litigate. ADA cause charges that also fall within the jurisdiction of section 503 and that the Commission has declined to litigate will be referred to OFCCP for review of the file and any administrative action deemed appropriate under section 503. Such charges will be considered to be complaints, simultaneously dual filed under section 503, solely for the purposes of OFCCP review and administrative action described in this paragraph.
(b) ADA charges which also include allegations of failure to comply with section 503 affirmative action requirements. ADA charges filed with EEOC, in which both allegations of discrimination under the ADA and violation of affirmative action requirements under section 503 are made, will be referred in their entirety to OFCCP for processing and resolution under section 503 and the ADA, unless the charges also include allegations of discrimination on the basis of race, color, religion, sex, national origin or age, or include allegations involving Priority List issues, or the charges are otherwise deemed of particular importance to EEOC's enforcement of the ADA. In such situations, EEOC will bifurcate the charges and retain the ADA component of the charges (and when applicable, the allegations pertaining to discrimination on the basis of race, color, religion, sex, national origin or age), referring the section 503 affirmative action component of the charges to OFCCP for processing and resolution under section 503. ADA charges which raise both discrimination issues under the ADA and section 503 affirmative action issues will be considered complaints, simultaneously dual filed under section 503, solely for the purposes of referral to OFCCP for processing, as described in this paragraph.
(c) EEOC shall transfer promptly to OFCCP a charge of disability-related employment discrimination over which it does not have jurisdiction, but over which OFCCP may have jurisdiction. At the same time, EEOC shall notify the charging party and the contractor/respondent of the transfer, the reason for the transfer, the location of the OFCCP office to which the charge was transferred and that the date EEOC received the charge will be deemed the date it was received by OFCCP.
(d) Except as otherwise stated in paragraphs (a) and (b) of this section, individuals alleging violations of laws enforced by DOL and over which EEOC has no jurisdiction will be referred to DOL to file a complaint.
(e) If an individual who has already filed an ADA charge with EEOC subsequently attempts to file or files a section 503 complaint with OFCCP covering the same facts and issues, OFCCP will accept the complaint, but will adopt as a disposition of the complaint EEOC's resolution of the ADA charge (including EEOC's termination of proceedings upon its issuance of a notice of right-to-sue).
This part shall be reviewed by the Chairman of the EEOC and the Director of OFCCP periodically, and as appropriate, to determine whether changes to the part are necessary or desirable, and whether the part should remain in effect.
As used in this part, the term:
ADA refers to title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
Affirmative action requirements refers to affirmative action requirements required by DOL pursuant to section 503 of the Rehabilitation Act of 1973, that go beyond the nondiscrimination requirements imposed by the ADA.
Chairman of the EEOC refers to the Chairman of the U.S. Equal Employment Opportunity Commission, or his or her designee.
Complaint/Charge means a section 503 complaint/ADA charge. The terms are used interchangeably.
Director of the Office of Federal Contract Compliance Programs refers to that individual or his or her designee.
DOL means the U.S. Department of Labor, and where appropriate, any of its headquarters or regional offices.
EEOC means the U.S. Equal Employment Opportunity Commission, and where appropriate, any of its headquarters, district, area, local, or field offices.
Government means the government of the United States of America.
Priority List refers to a document listing a limited number of controversial topics under the ADA on which there is not yet definitive guidance setting forth EEOC's position. The Priority List will be jointly developed and periodically reviewed by EEOC and DOL. Any policy documents involving Priority List issues will be coordinated between DOL and EEOC pursuant to Executive Order 12067 (3 CFR, 1978 Comp., p. 206) prior to final approval by EEOC.
OFCCP means the Office of Federal Contract Compliance Programs, and where appropriate, any of its regional or district offices.
Section 503 refers to section 503 of the Rehabilitation Act of 1973 (29 U.S.C. 793).
Section 503 complaint/ADA charge refers to a complaint that has been filed with OFCCP under section 503 of the Rehabilitation Act, and has been deemed to be simultaneously dual filed with EEOC under the ADA.
This part displays control numbers assigned to information collection requirements of the Office of Federal Contract Compliance Programs by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. Ch. 35. This part fulfills the PRA requirement that agencies display a current control number for each agency information collection requirement approved by OMB (44 U.S.C. 3507).
| 41 CFR Part where the information collection requirement is located | Current OMB control No. |
|---|---|
| Part 60-1 | 1215-0072, 1215-0131, 1215-0163. |
| Part 60-2 | 1215-0072. |
| Part 60-3 | 3046-0017. |
| Part 60-4 | 1215-0163. |
| Part 60-20 | 1215-0072, 1215-0163. |
| Part 60-30 | 1215-0072, 1215-0163. |
| Part 60-40 | 1215-0072, 1215-0163. |
| Part 60-50 | 1215-0072, 1215-0163. |
| Part 60-250 | 1215-0072, 1215-0131, 1215-0163. |
| Part 60-741 | 1215-0072, 1215-0131, 1215-0163. |
(a) This part 61-300 implements 38 U.S.C. 4212(d). Each contractor or subcontractor who enters into a contract or subcontract in the amount of $100,000 or more with any department or agency of the United States for the procurement of personal property and non-personal services (including construction), and who is subject to 38 U.S.C. 4212(a), must report annually to the Secretary of Labor information on the number of employees in its workforce who belong to the categories of veterans protected under the Act, and the number of those employees who were hired during the period covered by the report. Each contractor or subcontractor must provide the required information on veterans' employment by filing the Federal Contractor Veterans' Employment Report VETS-4212 (VETS-4212 Report), in accordance with the requirements of § 61-300.11.
(b) Notwithstanding the regulations in this part, the regulations at 41 CFR part 60-300, administered by OFCCP continue to apply to contractors' and subcontractors' affirmative action obligations regarding protected veterans.
(c) Reporting requirements of this part regarding protected veterans will be deemed waived in those instances in which the Director of OFCCP has granted a waiver under 41 CFR 60-300.4(b)(1), or has concurred in the granting of a waiver under 41 CFR 60-300.4(b)(3), from compliance with all the terms of the equal opportunity clause for those establishments not involved in Government contract work. Where OFCCP grants only a partial waiver, compliance with these reporting requirements regarding protected veterans will be required.
(d) 41 CFR part 60-300, subpart C and Appendix B to part 60-300 provide guidance concerning the affirmative action obligations of Federal contractors toward applicants for employment who are protected veterans.
(a) For the purposes of this part, the definitions for the terms “contract,” “contractor”, “Government contract,” “subcontract,” and “subcontractor” are the same as those set forth in 41 CFR part 60-300.
(b) For purposes of this part:
(1) Active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.
(2) Armed Forces service medal veteran means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209, 3 CFR, 1996 Comp., p. 159).
(3) Disabled veteran means:
(i) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or
(ii) A person who was discharged or released from active duty because of a service-connected disability.
(4) Electronic filing or “e-filing” means filing the VETS-4212 Report via the VETS web-based filing system. E-filing also includes transmitting or delivering the VETS-4212 Report as an electronic data file. Instructions for electronically filing the VETS-4212 Report are found on VETS' Web site at: http://www.dol.gov/vets/vets100filing.htm.
(5) Employee means any individual on the payroll of an employer who is an employee for purposes of the employer's withholding of Social Security taxes except insurance sales agents who are considered to be employees for such purposes solely because of the provisions of 26 U.S.C. 3121 (d)(3)(B) (the Internal Revenue Code). Leased employees are included in this definition. Leased employee means a permanent employee provided by an employment agency for a fee to an outside company for which the employment agency handles all personnel tasks including payroll, staffing, benefit payments and compliance reporting. The employment agency shall, therefore, include leased employees in its VETS-4212 Report. The term employee shall not include persons who are hired on a casual basis for a specified time, or for the duration of a specified job (for example, persons at a construction site whose employment relationship is expected to terminate with the end of the employee's work at the site); persons temporarily employed in any industry other than construction, such as temporary office workers, mariners, stevedores, lumber yard workers, etc., who are hired through a hiring hall or other referral arrangement, through an employee contractor or agent, or by some individual hiring arrangement, or persons (except leased employees) on the payroll of an employment agency who are referred by such agency for work to be performed on the premises of another employer under that employer's direction and control.
(6) Hiring location (this definition is identical to establishment as defined by the instructions for completing Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report)) means an economic unit which produces goods or services, such as a factory, office, store, or mine. In most instances the establishment is at a single physical location and is engaged in one, or predominantly one, type of economic activity. Units at different locations, even though engaged in the same kind of business operation, should be reported as separate establishments. For locations involving construction, transportation, communications, electric, gas, and sanitary services, oil and gas fields, and similar types of physically dispersed industrial activities, however, it is not necessary to list separately each individual site, project, field, line, etc., unless it is treated by the contractor as a separate legal entity. For these physically dispersed activities, list as establishments only those relatively permanent main or branch offices, terminals, stations, etc., which are either:
(i) Directly responsible for supervising such dispersed activities; or
(ii) The base from which personnel and equipment operate to carry out these activities. (Where these dispersed activities cross State lines, at least one such establishment should be listed for each State involved).
(7) Job category means any of the following: Officials and managers (Executive/Senior Level Officials and Managers and First/Mid-Level Officials and Managers), professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers, as required by the EEO-1 Report, as follows:
(i) Officials and managers as a whole are to be divided into the following two subcategories: Executive/Senior Level Officials and Managers and First/Mid-Level Officials and Managers.
(A) Executive/Senior Level Officials and Managers means individuals, who plan, direct and formulate policies, set strategy and provide the overall direction of enterprises/organizations for the development and delivery of products and services, within the parameters approved by boards of directors of other governing bodies. Residing in the highest levels of organizations, these executives plan, direct, or coordinate activities with the support of subordinate executives and staff managers. They include, in larger organizations, those individuals within two reporting levels of the Chief Executive Officer (CEO), whose responsibilities require frequent interaction with the CEO. Examples of these kinds of managers are: Chief executive officers, chief operating officers, chief financial officers, line of business heads, presidents or executive vice presidents of functional areas or operating groups, chief information officers, chief human resources officers, chief marketing officers, chief legal officers, management directors and managing partners.
(B) First/Mid-Level Officials and Managers means individuals who serve as managers, other than those who serve as Executive/Senior Level Officials and Managers, including those who oversee and direct the delivery of products, services or functions at group, regional or divisional levels of organizations. These managers receive directions from Executive/Senior Level management and typically lead major business units. They implement policies, programs and directives of Executive/Senior Level management through subordinate managers and within the parameters set by Executives/Senior Level management. Examples of these kinds of managers are: Vice presidents and directors; group, regional or divisional controllers; treasurers; and human resources, information systems, marketing, and operations managers. The First/Mid-Level Officials and Managers subcategory also includes those who report directly to middle managers. These individuals serve at functional, line of business segment or branch levels and are responsible for directing and executing the day-to-day operational objectives of enterprises/organizations, conveying the directions of higher level officials and managers to subordinate personnel and, in some instances, directly supervising the activities of exempt and non-exempt personnel. Examples of these kinds of managers are: First-line managers; team managers; unit managers; operations and production managers; branch managers; administrative services managers; purchasing and transportation managers; storage and distribution managers; call center or customer service managers; technical support managers; and brand or product managers.
(ii) Professionals means individuals in positions that require bachelor and graduate degrees, and/or professional certification. In some instances, comparable experience may establish a person's qualifications. Examples of these kinds of positions include: accountants and auditors; airplane pilots and flight engineers; architects; artists; chemists; computer programmers; designers; dieticians; editors; engineers; lawyers; librarians; mathematical scientists; natural scientists; registered nurses; physical scientists; physicians and surgeons; social scientists; teachers; and surveyors.
(iii) Technicians means individuals in positions that include activities requiring applied scientific skills, usually obtained by post-secondary education of varying lengths, depending on the particular occupation, recognizing that in some instances additional training, certification, or comparable experience is required. Examples of these types of positions include: drafters; emergency medical technicians; chemical technicians; and broadcast and sound engineering technicians.
(iv) Sales workers means individuals in positions including non-managerial activities that wholly and primarily involve direct sales. Examples of these types of positions include: advertising sales agents; insurance sales agents; real estate brokers and sales agents; wholesale sales representatives; securities, commodities, and financial services sales agents; telemarketers; demonstrators; retail salespersons; counter and rental clerks; and cashiers.
(v) Administrative support workers means individuals in positions involving non-managerial tasks providing administrative and support assistance, primarily in office settings. Examples of these types of positions include: office and administrative support workers; bookkeeping; accounting and auditing clerks; cargo and freight agents; dispatchers; couriers; data entry keyers; computer operators; shipping, receiving and traffic clerks; word processors and typists; proofreaders; desktop publishers; and general office clerks.
(vi) Craft workers means individuals in positions that include higher skilled occupations in construction (building trades craft workers and their formal apprentices) and natural resource extraction workers. Examples of these types of positions include: boilermakers; brick and stone masons; carpenters; electricians; painters (both construction and maintenance); glaziers; pipe layers, plumbers, pipefitters and steamfitters; plasterers; roofers; elevator installers; earth drillers; derrick operators; oil and gas rotary drill operators; and blasters and explosive workers. This category also includes occupations related to the installation, maintenance and part replacement of equipment, machines and tools, such as: automotive mechanics; aircraft mechanics; and electric and electronic equipment repairers. This category also includes some production occupations that are distinguished by the high degree of skill and precision required to perform them, based on clearly defined task specifications, such as: millwrights; etchers and engravers; tool and die makers; and pattern makers.
(vii) Operatives means individuals in intermediate skilled occupations and includes workers who operate machines or factory-related processing equipment. Most of these occupations do not usually require more than several months of training. Examples include: textile machine workers; laundry and dry cleaning workers; photographic process workers; weaving machine operators; electrical and electronic equipment assemblers; semiconductor processors; testers, graders and sorters; bakers; and butchers and other meat, poultry and fish processing workers. This category also includes occupations of generally intermediate skill levels that are concerned with operating and controlling equipment to facilitate the movement of people or materials, such as: bridge and lock tenders; truck, bus or taxi drivers; industrial truck and tractor (forklift) operators; parking lot attendants; sailors; conveyor operators; and hand packers and packagers.
(viii) Laborers and helpers means individuals with more limited skills who require only brief training to perform tasks that require little or no independent judgment. Examples include: production and construction worker helpers; vehicle and equipment cleaners; laborers; freight, stock and material movers; service station attendants; construction laborers; refuse and recyclable materials collectors; septic tank servicers; and sewer pipe cleaners.
(ix) Service workers means individuals in positions that include food service, cleaning service, personal service, and protective service activities. Skill may be acquired through formal training, job-related training or direct experience. Examples of food service positions include: cooks; bartenders; and other food service workers. Examples of personal service positions include: medical assistants and other healthcare support positions; hairdressers; ushers; and transportation attendants. Examples of cleaning service positions include: cleaners; janitors; and porters. Examples of protective service positions include: transit and railroad police and fire fighters; guards; private detectives and investigators.
(8) NAICS means the North American Industrial Classification System.
(9) OFCCP means the Office of Federal Contract Compliance Programs, U.S. Department of Labor.
(10) Protected veteran means a veteran who is protected under the non-discrimination and affirmative action provisions of the Act; specifically, a veteran who may be classified as a “disabled veteran,” “recently separated veteran,” “active duty wartime or campaign badge veteran,” or an “Armed Forces service medal veteran,” as defined in this section.
(11) Recently separated veteran means a veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.
(12) States means each of the several States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands.
(13) VETS means the Office of the Assistant Secretary for Veterans' Employment and Training Service, U.S. Department of Labor.
Each contractor or subcontractor described in § 61-300.1 must submit reports in accordance with the following reporting clause, which must be included in each of its covered government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract). Such clause is considered as an addition to the equal opportunity clause required by 41 CFR 60-300.5. The reporting requirements clause is as follows:
(a) The contractor agrees to report at least annually, as required by the Secretary of Labor, on:
(1) The total number of employees in the workforce of such contractor, by job category and hiring location, and the total number of such employees, by job category and hiring location, who are protected veterans;
(2) The total number of new employees hired by the contractor during the period covered by the report, and of such employees, the number who are protected veterans; and
(3) The maximum number and minimum number of employees of such contractor at each hiring location during the period covered by the report.
(4) The term “protected veteran” refers to a veteran who may be classified as a “disabled veteran,” recently separated veteran, “active duty wartime or campaign badge veteran,” or an “Armed Forces service medal veteran,” as defined in 41 CFR 61-300.2.
(b) The above items must be reported by completing the report entitled “Federal Contractor Veterans' Employment Report VETS-4212.”
(c) VETS-4212 Reports must be filed no later than September 30 of each year following a calendar year in which a contractor or subcontractor held a covered contract or subcontract.
(d) The employment activity report required by paragraphs (a)(2) and (a)(3) of this clause must reflect total new hires and maximum and minimum number of employees during the 12-month period preceding the ending date that the contractor selects for the current employment report required by paragraph (a)(1) of this clause. Contractors may select an ending date:
(1) As of the end of any pay period during the period July 1 through August 31 of the year the report is due; or
(2) As of December 31, if the contractor has previous written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report).
(e) The number of veterans reported according to paragraph (a) above must be based on data known to contractors and subcontractors when completing their VETS-4212 Reports. Contractors' and subcontractors' knowledge of veterans status may be obtained in a variety of ways, including, in response to an invitation to applicants to self-identify in accordance with 41 CFR 60-300.42, voluntary self-disclosures by employees who are protected veterans, or actual knowledge of an employee's veteran status by a contractor or subcontractor. Nothing in this paragraph (e) relieves a contractor from liability for discrimination under 38 U.S.C. 4212.
(a) The VETS-4212 Report must be used to report the information on veterans' employment required in paragraph (a) of the contract clause set forth in § 61-300.10. The VETS-4212 Report requires contractors and subcontractors to provide the total number of employees in their workforces by job category and hiring location; the total number of such employees, by job category and hiring location, who are protected veterans; the total number of new hires during the period covered by the report; the total number of new hires during the period covered by the report who are protected veterans; and the maximum and minimum number of employees of such contractor or subcontractor during the period covered by the report. Contractors and subcontractors must complete a VETS-4212 Report for each hiring location in the manner described in the instructions published on the VETS Web site and included in the paper version of the VETS-4212 Report.
(b) VETS-4212 Reports must be filed between August 1 and September 30 of each year following a calendar year in which a contractor or subcontractor held a contract or subcontract.
(c)(1) Electronic filing. Instructions for e-filing the VETS-4212 Report are found on the Federal Contractor Reporting page on the VETS Web site at: http://www.dol.gov/vets/.
(i) Single hiring location. Contractors and subcontractors doing business at one hiring location may complete and submit a single VETS-4212 Report using the web-based filing system.
(ii) Multiple hiring locations. Contractors and subcontractors doing business at more than 10 locations must submit their VETS-4212 Reports in the form of an electronic data file in accordance with the instructions for filing the VETS-4212 Report. In these cases, state consolidated reports count as one location each. Contractors and subcontractors may submit VETS-4212 Reports in the form of electronic data files through the web-based filing system. Electronic data files also may be transmitted electronically as an email attachment (if they do not exceed the size stated in the specifications), or submitted on compact discs or other electronic storage media.
(2) Alternative filing methods. (i) Contractors and subcontractors with 10 or fewer hiring locations may file their VETS-4212 Report in paper format. Contractors and subcontractors may download a version of the VETS-4212 Report from the VETS Web site or send a written request for the paper version of the VETS-4212 Report to: Office of the Assistant Secretary for Veterans' Employment and Training, U.S. Department of Labor, 200 Constitution Avenue NW., Room S-1325, Washington, DC 20210, Attn: VETS-4212 Report Form Request.
(ii) VETS-4212 Reports in paper format or electronic data files on compact discs or other electronic storage media may be delivered by U.S. mail or courier delivery service to the addresses set forth in the instructions for completing the report. Paper copies of the VETS-4212 Reports and electronic data files (if they do not exceed the size stated in the specifications) also may be sent as email attachments to the address indicated in the instructions.
During the course of a compliance evaluation, OFCCP may determine whether a contractor or subcontractor has submitted its VETS-4212 Report(s) as required by this part.
Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and its implementing regulations at 5 CFR part 1320, the Office of Management and Budget has assigned Control No. 1293-0005 to the information collection requirements of this part.
This subpart sets forth introductory material concerning the Federal Property Management Regulations System: its content, types, publication, authority, applicability, numbering, deviation procedure, as well as agency consultation, implementation, and supplementation.
The Federal Property Management Regulations System described in this subpart is established and shall be used by General Services Administration (GSA) officials and, as provided in this subpart, by other executive agency officials, in prescribing regulations, policies, procedures, and delegations of authority pertaining to the management of property, and other programs and activities of the type administered by GSA, except procurement and contract matters contained in the Federal Acquisition Regulations (FAR).
The Federal Property Management Regulations (FPMR) are regulations, as described by § 101-1.101, prescribed by the Administrator of General Services to govern and guide Federal agencies.
(a) FPMR temporary regulations are authorized for publication when time or exceptional circumstances will not permit promulgation of an amendment to the Code of Federal Regulations and if the regulation will be effective for a period of 12 months or less except as provided in § 101-1.103(b), below. These temporary regulations will be codified before the designated expiration date or their effective date will be extended if it is determined that conversion to permanent form cannot be accomplished within the specified time frame.
(b) FPMR temporary regulations may have an effective period of up to 2 years when codification is not anticipated or is not considered practical.
FPMR will be published in the
(a) Each agency shall designate an official to serve as liaison with GSA on matters pertaining to the distribution of FPMR and other publications in the FPMR series. Agencies shall report all changes in designation of agency liaison officers to the General Services Administration (CAR), Washington, DC 20405.
(b) FPMR and other publications in the FPMR series will be distributed to agencies in bulk quantities for internal agency distribution in accordance with requirements information furnished by liaison officers. FPMR and other publications in the FPMR series will not be stocked by, and cannot be obtained from, GSA regional offices.
(c) Agencies shall submit their consolidated requirements for FPMR and other publications in the FPMR series, including requirements of field activities, and changes in such requirements on GSA Form 2053, Agency Consolidated Requirements for GSA Regulations and Other External Issuances (illustrated at § 101-1.4902-2053). The mailing address is shown on the form.
The FPMR system is prescribed by the Administrator of General Services under authority of the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, and other laws and authorities specifically cited in the text.
The FPMR apply to all Federal agencies to the extent specified in the Federal Property and Administrative Services Act of 1949 or other applicable law.
FPMR are developed and prescribed in consultation with affected Federal agencies.
Chapters 102 through 150 of this title are available for agency implementation and supplementation of FPMR contained in chapter 101 of this title. Supplementation pertains to agency regulations in the subject matter of FPMR but not yet issued in chapter 101.
(a) In the numbering system, all FPMR material is preceded by the digits 101-. This means that it is chapter 101 in title 41 of the Code of Federal Regulations. It has no other significance. The digit(s) before the decimal point indicates the part; the digits after the decimal point indicate, without separation, the subpart and section. For example:
(b) At the bottom of each page appears the number and date (month and year) of the FPMR amendment which transmitted it.
(c) Agency implementing regulations should conform to the FPMR section numbers, except for the substitution of the chapter designation of the agency. Agency supplementing regulations should be numbered “50” or higher for section, subpart, or part as may be involved.
(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 the 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.
(2) For class deviations, requests shall be sent to only the Administrator of General Services.
Retention of FPMR amendments and removed pages will provide a history of FPMR issuances and facilitate determining which regulations were in effect at particular times.
(a) Single-column format: Vertical lines in the right margin of a page indicate material changed, deleted, or added by the FPMR amendment cited at the bottom of that page. Where insertion of new material results in shifting of unchanged material on following pages, no vertical lines will appear on such pages but the FPMR amendment transmitting such new pages will be cited at the bottom of each page.
(b) Double-column format: Arrows printed in the margin of a page indicated material changed, deleted, or added by the FPMR amendment cited at the bottom of that page.
This subpart illustrates forms prescribed or available for use in connection with subject matter covered in other subparts of this part 101-1.
(a) The GSA forms are illustrated in this section to show their text, format, and arrangement and to provide a ready source of reference. The subsection numbers in this section correspond with the GSA numbers.
(b) GSA forms illustrated in § 101-1.4902 may be obtained by addressing requests to the General Services Administration, National Forms and Publications Center-7 CAR-W, Warehouse 4, Dock No. 1, 501 West Felix Street, Forth Worth, TX 76115.
The form listed in § 101-1.4902-2053 is filed as part of the original document. Copies of the form may be obtained from the General Services Administration (3BRD), Washington, DC 20407.
For information on annual real property inventories previously contained in this part, see FMR part 84 (41 CFR part 102-84).
The purpose of these Title IX regulations is to effectuate Title IX of the Education Amendments of 1972, as amended (except sections 904 and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations. The effective date of these Title IX regulations shall be September 29, 2000.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or college of an educational institution (other than a local educational agency) admission to which is independent of admission to any other component of such institution.
Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.
Applicant means one who submits an application, request, or plan required to be approved by an official of the Federal agency that awards Federal financial assistance, or by a recipient, as a condition to becoming a recipient.
Designated agency official means the Associate Administrator for Civil Rights.
Educational institution means a local educational agency (LEA) as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or secondary school, or an applicant or recipient that is an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, as defined in this section.
Federal financial assistance means any of the following, when authorized or extended under a law administered by the Federal agency that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except any institution of undergraduate higher education) that offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees, but that may or may not offer academic study.
Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) that has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and that operates an education program or activity that receives such assistance, including any subunit, successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-1688) (except sections 904 and 906 thereof), as amended by section 3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at §§ 101-4.100 through 101-4.605.
Transition plan means a plan subject to the approval of the Secretary of Education pursuant to section 901(a)(2) of the Education Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational institution operates in making the transition from being an educational institution that admits only students of one sex to being one that admits students of both sexes without discrimination.
(a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation therein by persons of a particular sex. Nothing in these Title IX regulations shall be interpreted to alter any affirmative action obligations that a recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall, within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the designated agency official upon request, a description of any modifications made pursuant to paragraph (c)(2) of this section and of any remedial steps taken pursuant to paragraph (c)(3) of this section.
(a) General. Either at the application stage or the award stage, Federal agencies must ensure that applications for Federal financial assistance or awards of Federal financial assistance contain, be accompanied by, or be covered by a specifically identified assurance from the applicant or recipient, satisfactory to the designated agency official, that each education program or activity operated by the applicant or recipient and to which these Title IX regulations apply will be operated in compliance with these Title IX regulations. An assurance of compliance with these Title IX regulations shall not be satisfactory to the designated agency official if the applicant or recipient to whom such assurance applies fails to commit itself to take whatever remedial action is necessary in accordance with § 101-4.110(a) to eliminate existing discrimination on the basis of sex or to eliminate the effects of past discrimination whether occurring prior to or subsequent to the submission to the designated agency official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial assistance extended to provide real property or structures thereon, such assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this section, which may be included as part of a document that addresses other assurances or obligations, shall include that the applicant or recipient will comply with all applicable Federal statutes relating to nondiscrimination. These include but are not limited to: Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-1688).
(2) The designated agency official will specify the extent to which such assurances will be required of the applicant's or recipient's subgrantees, contractors, subcontractors, transferees, or successors in interest.
If a recipient sells or otherwise transfers property financed in whole or in part with Federal financial assistance to a transferee that operates any education program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government, both the transferor and the transferee shall be deemed to be recipients, subject to the provisions of §§ 101-4.205 through 101-4.235(a).
(a) Effect of other Federal provisions. The obligations imposed by these Title IX regulations are independent of, and do not alter, obligations not to discriminate on the basis of sex imposed by Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 (29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The obligation to comply with these Title IX regulations is not obviated or alleviated by any State or local law or other requirement that would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations. The obligation to comply with these Title IX regulations is not obviated or alleviated by any rule or regulation of any organization, club, athletic or other league, or association that would render any applicant or student ineligible to participate or limit the eligibility or participation of any applicant or student, on the basis of sex, in any education program or activity operated by a recipient and that receives Federal financial assistance.
The obligation to comply with these Title IX regulations is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex.
(a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under these Title IX regulations, including any investigation of any complaint communicated to such recipient alleging its noncompliance with these Title IX regulations or alleging any actions that would be prohibited by these Title IX regulations. The recipient shall notify all its students and employees of the name, office address, and telephone number of the employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by these Title IX regulations.
(a) Notification of policy. (1) Each recipient shall implement specific and continuing steps to notify applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral of applicants for admission and employment, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, that it does not discriminate on the basis of sex in the educational programs or activities that it operates, and that it is required by Title IX and these Title IX regulations not to discriminate in such a manner. Such notification shall contain such information, and be made in such manner, as the designated agency official finds necessary to apprise such persons of the protections against discrimination assured them by Title IX and these Title IX regulations, but shall state at least that the requirement not to discriminate in education programs or activities extends to employment therein, and to admission thereto unless §§ 101-4.300 through 101-4.310 do not apply to the recipient, and that inquiries concerning the application of Title IX and these Title IX regulations to such recipient may be referred to the employee designated pursuant to § 101-4.135, or to the designated agency official.
(2) Each recipient shall make the initial notification required by paragraph (a)(1) of this section within 90 days of September 29, 2000 or of the date these Title IX regulations first apply to such recipient, whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and
(ii) Memoranda or other written communications distributed to every student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalog, or application form that it makes available to any person of a type, described in paragraph (a) of this section, or which is otherwise used in connection with the recruitment of students or employees.
(2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without discrimination on the basis of sex each publication described in paragraph (b)(1) of this section, and shall apprise each of its admission and employment recruitment representatives of the policy of nondiscrimination described in paragraph (a) of this section, and shall require such representatives to adhere to such policy.
Except as provided in §§ 101-4.205 through 101-4.235(a), these Title IX regulations apply to every recipient and to each education program or activity operated by such recipient that receives Federal financial assistance.
(a) Exemption. These Title IX regulations do not apply to any operation of an educational institution or other entity that is controlled by a religious organization to the extent that application of these Title IX regulations would not be consistent with the religious tenets of such organization.
(b) Exemption claims. An educational institution or other entity that wishes to claim the exemption set forth in paragraph (a) of this section shall do so by submitting in writing to the designated agency official a statement by the highest-ranking official of the institution, identifying the provisions of these Title IX regulations that conflict with a specific tenet of the religious organization.
These Title IX regulations do not apply to an educational institution whose primary purpose is the training of individuals for a military service of the United States or for the merchant marine.
(a) Social fraternities and sororities. These Title IX regulations do not apply to the membership practices of social fraternities and sororities that are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership of which consists primarily of students in attendance at institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These Title IX regulations do not apply to the membership practices of the Young Men's Christian Association (YMCA), the Young Women's Christian Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire Girls.
(c) Voluntary youth service organizations. These Title IX regulations do not apply to the membership practices of a voluntary youth service organization that is exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the membership of which has been traditionally limited to members of one sex and principally to persons of less than nineteen years of age.
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this section, §§ 101-4.225 and 101-4.230, and §§ 101-4.300 through 101-4.310, each administratively separate unit shall be deemed to be an educational institution.
(c) Application of §§ 101-4.300 through 101-4.310. Except as provided in paragraphs (d) and (e) of this section, §§ 101-4.300 through 101-4.310 apply to each recipient. A recipient to which §§ 101-4.300 through 101-4.310 apply shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 101-4.300 through 101-4.310.
(d) Educational institutions. Except as provided in paragraph (e) of this section as to recipients that are educational institutions, §§ 101-4.300 through 101-4.310 apply only to institutions of vocational education, professional education, graduate higher education, and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. §§ 101-4.300 through 101-4.310 do not apply to any public institution of undergraduate higher education that traditionally and continually from its establishment has had a policy of admitting students of only one sex.
(a) Application. This section applies to each educational institution to which §§ 101-4.300 through 101-4.310 apply that:
(1) Admitted students of only one sex as regular students as of June 23, 1972; or
(2) Admitted students of only one sex as regular students as of June 23, 1965, but thereafter admitted, as regular students, students of the sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to which this section applies shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 101-4.300 through 101-4.310.
(a) Submission of plans. An institution to which § 101-4.225 applies and that is composed of more than one administratively separate unit may submit either a single transition plan applicable to all such units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on Education Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit admits students of both sexes as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as practicable each obstacle so identified and indicate the schedule for taking these steps and the individual directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which § 101-4.225 applies shall result in treatment of applicants to or students of such recipient in violation of §§ 101-4.300 through 101-4.310 unless such treatment is necessitated by an obstacle identified in paragraph (b)(3) of this section and a schedule for eliminating that obstacle has been provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past exclusion of students on the basis of sex, each educational institution to which § 101-4.225 applies shall include in its transition plan, and shall implement, specific steps designed to encourage individuals of the previously excluded sex to apply for admission to such institution. Such steps shall include instituting recruitment programs that emphasize the institution's commitment to enrolling students of the sex previously excluded.
(a) This section, which applies to all provisions of these Title IX regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
(2) Any program or activity of a secondary school or educational institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational institution or in an education program or activity, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided to students of the other sex;
(4) Any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant based upon a combination of factors related to the individual's personal appearance, poise, and talent. The pageant, however, must comply with other nondiscrimination provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs (c)(1)(i) through (iv) of this section, any part of which is extended Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title 20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(1) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(iv) Any other entity that is established by two or more of the entities described in paragraphs (c)(1)(i), (ii), or (iii) of this section.
(2)(i) Program or activity does not include any operation of an entity that is controlled by a religious organization if the application of 20 U.S.C. 1681 to such operation would not be consistent with the religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or other postsecondary institution, including but not limited to traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities are part of a “program or activity” subject to these Title IX regulations if the college, university, or other institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
(2) Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of this section, no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, employment, or other educational program or activity operated by a recipient that receives Federal financial assistance because such individual has sought or received, or is seeking, a legal abortion, or any benefit or service related to a legal abortion.
(a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which §§ 101-4.300 through 101-4.310 apply, except as provided in §§ 101-4.225 and 101-4.230.
(b) Specific prohibitions. (1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 101-4.300 through 101-4.310 apply shall not:
(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission that has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria that do not have such a disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 101-4.300 through 101-4.310 apply:
(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice that so discriminates or excludes;
(3) Subject to § 101-4.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
A recipient to which §§ 101-4.300 through 101-4.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 101-4.300 through 101-4.310.
(a) Nondiscriminatory recruitment. A recipient to which §§ 101-4.300 through 101-4.310 apply shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to § 101-4.110(a), and may choose to undertake such efforts as affirmative action pursuant to § 101-4.110(b).
(b) Recruitment at certain institutions. A recipient to which §§ 101-4.300 through 101-4.310 apply shall not recruit primarily or exclusively at educational institutions, schools, or entities that admit as students only or predominantly members of one sex, if such actions have the effect of discriminating on the basis of sex in violation of §§ 101-4.300 through 101-4.310.
(a) General. Except as provided elsewhere in these Title IX regulations, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient that receives Federal financial assistance. Sections 101-4.400 through 101-4.455 do not apply to actions of a recipient in connection with admission of its students to an education program or activity of a recipient to which §§ 101-4.300 through 101-4.310 do not apply, or an entity, not a recipient, to which §§ 101-4.300 through 101-4.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in §§ 101-4.400 through 101-4.455, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution to study at a foreign institution. A recipient educational institution may administer or assist in the administration of scholarships, fellowships, or other awards established by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and restricted to members of one sex, that are designed to provide opportunities to study abroad, and that are awarded to students who are already matriculating at or who are graduates of the recipient institution; Provided, that a recipient educational institution that administers or assists in the administration of such scholarships, fellowships, or other awards that are restricted to members of one sex provides, or otherwise makes available, reasonable opportunities for similar studies for members of the other sex. Such opportunities may be derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This paragraph (d) applies to any recipient that requires participation by any applicant, student, or employee in any education program or activity not operated wholly by such recipient, or that facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia and cooperative employment and student-teaching assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.
(a) Generally. A recipient shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing, except as provided in this section (including housing provided only to married students).
(b) Housing provided by recipient. (1) A recipient may provide separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex, administer different policies or practices concerning occupancy by its students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of housing, or otherwise, assists any agency, organization, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that provided to students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency, organization, or person that provides all or part of such housing to students of only one sex.
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
(a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
(5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.
A recipient that is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools.
(a) Counseling. A recipient shall not discriminate against any person on the basis of sex in the counseling or guidance of students or applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses testing or other materials for appraising or counseling students shall not use different materials for students on the basis of their sex or use materials that permit or require different treatment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be essential to eliminate sex bias. Recipients shall develop and use internal procedures for ensuring that such materials do not discriminate on the basis of sex. Where the use of a counseling test or other instrument results in a substantially disproportionate number of members of one sex in any particular course of study or classification, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a particular class contains a substantially disproportionate number of individuals of one sex, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination on the basis of sex in counseling or appraisal materials or by counselors.
(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient's students in a manner that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government that require that awards be made to members of a particular sex specified therein; Provided, that the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 101-4.450.
(a) Assistance by recipient in making available outside employment. A recipient that assists any agency, organization, or person in making employment available to any of its students:
(1) Shall assure itself that such employment is made available without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or person that discriminates on the basis of sex in its employment practices.
(b) Employment of students by recipients. A recipient that employs any of its students shall not do so in a manner that violates §§ 101-4.500 through 101-4.550.
Subject to § 101-4.235(d), in providing a medical, hospital, accident, or life insurance benefit, service, policy, or plan to any of its students, a recipient shall not discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a manner that would violate §§ 101-4.500 through 101-4.550 if it were provided to employees of the recipient. This section shall not prohibit a recipient from providing any benefit or service that may be used by a different proportion of students of one sex than of the other, including family planning services. However, any recipient that provides full coverage health service shall provide gynecological care.
(a) Status generally. A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.
(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation as long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section, shall ensure that the separate portion is comparable to that offered to non-pregnant students.
(4) Subject to § 101-4.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.
(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of these Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available, the designated agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the elementary school level shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the secondary or postsecondary school level shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
Nothing in these Title IX regulations shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
(a) General. (1) No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient that receives Federal financial assistance.
(2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way that could adversely affect any applicant's or employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by §§ 101-4.500 through 101-4.550, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity that admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of §§ 101-4.500 through 101-4.550 apply to:
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, transfer, layoff, termination, application of nepotism policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in compensation;
(4) Job assignments, classifications, and structure, including position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition assistance, selection for sabbaticals and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational programs; and
(10) Any other term, condition, or privilege of employment.
A recipient shall not administer or operate any test or other criterion for any employment opportunity that has a disproportionately adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have so discriminated in the past, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at entities that furnish as applicants only or predominantly members of one sex if such actions have the effect of discriminating on the basis of sex in violation of §§ 101-4.500 through 101-4.550.
A recipient shall not make or enforce any policy or practice that, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements that classify persons on the basis of sex, unless sex is a bona fide occupational qualification for the positions in question as set forth in § 101-4.550.
(a) “Fringe benefits” defined. For purposes of these Title IX regulations, fringe benefits means: Any medical, hospital, accident, life insurance, or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other benefit or service of employment not subject to the provision of § 101-4.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan that does not provide for equal periodic benefits for members of each sex and for equal contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan that establishes different optional or compulsory retirement ages based on sex or that otherwise discriminates in benefits on the basis of sex.
(a) General. A recipient shall not apply any policy or take any employment action:
(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to § 101-4.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, recovery therefrom, and any temporary disability resulting therefrom as any other temporary disability for all job-related purposes, including commencement, duration, and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status that she held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.
(a) Prohibitory requirements. The obligation to comply with §§ 101-4.500 through 101-4.550 is not obviated or alleviated by the existence of any State or local law or other requirement that imposes prohibitions or limits upon employment of members of one sex that are not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service, or benefit to members of one sex pursuant to a State or local law or other requirement shall provide the same compensation, service, or benefit to members of the other sex.
A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job in question.
(a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is “Miss” or “Mrs.”
(b) Sex. A recipient may make pre-employment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
A recipient may take action otherwise prohibited by §§ 101-4.500 through 101-4.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to this section that is based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or upon preference based on sex of the recipient, employees, students, or other persons, but nothing contained in this section shall prevent a recipient from considering an employee's sex in relation to employment in a locker room or toilet facility used only by members of one sex.
Within 60 days of September 29, 2000, each Federal agency that awards Federal financial assistance shall publish in the
The investigative, compliance, and enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”) are hereby adopted and applied to these Title IX regulations. These procedures may be found at 41 CFR part 101-6, subpart 101-6.2.
This part prescribes the methods by which the General Services Administration provides for establishment of centralized services in Federal buildings or complexes occupied by a number of executive agencies.
This subpart states general policies, guidelines, and procedures for establishing centralized services in multioccupant Federal buildings.
The regulations in this part apply to all executive agencies which occupy space in or are prospective occupants of multi-occupant Federal buildings located in the United States. In appropriate circumstances, the centralized services provided pursuant to this part are extended to agencies occupying other Federal buildings in the same geographical area. For purposes of this part, reference to Federal buildings may be deemed to include, when appropriate, leased buildings or specific leased space in a commercial building under the control of GSA.
(a) Centralized services means those central supporting and administrative services and facilities provided to occupying agencies in Federal buildings or nearby locations in lieu of each agency providing the same services or facilities for its own use. This includes those common administrative services provided by a Cooperative Administrative Support Unit (CASU). It does not include such common building features as cafeterias, blind stands, loading platforms, auditoriums, incinerators, or similar facilities. Excluded are interagency fleet management centers established pursuant to Public Law 766, 83d Congress, and covered by part 101-39 of this chapter.
(b) Occupying agency means any Federal agency assigned space in a building or complex for which GSA has oversight of, or responsibility for the functions of operation and maintenance in addition to space assignment.
(c) Cooperative Administrative Support Unit (CASU) means an organized mechanism for providing administrative services for agencies in multi-tenant federally occupied buildings.
To the extent practicable, GSA will provide or arrange for the provision of centralized services whenever such services insure increased efficiency and economy to the Government without hampering program activities or essential internal administration of the agencies to be served.
GSA is currently providing various centralized services to Federal agencies in such fields as office and storage space, supplies and materials, communications, records management, transportation services, and printing and reprographics. Other centralized CASU's may be providing supporting services or activities such as health units, use of training devices and facilities, pistol ranges, and central facilities for receipt and dispatch of mail. Consolidation and sharing is frequently feasible with resulting economies in personnel, equipment, and space. Opportunities to effect economies through planned consolidation of such services occur particularly during the design stage of the construction of new Federal buildings, or the renovations to existing buildings. Opportunities may also occur as a result of needs assessments jointly conducted by local agencies.
(a) Whenever possible, determination of the economic feasibility of a proposed centralized service shall be based upon standard data on the relationship of the size of the Federal building, the number of occupants, location, and other factors pertinent to the type of centralized service being considered.
(b) In the absence of standard data on which a determination of economic feasibility can be based, or where such data must be supplemented by additional factual information, a formal feasibility study may be made by GSA or a CASU workgroup, in coordination with local agencies to be involved, prior to a final determination to proceed with the furnishing of a centralized service. Generally, a formal feasibility study will be made only if provision of the proposed centralized service would involve the pooling of staff, equipment, and space which occupying agencies otherwise would be required to use in providing the service for themselves. Examples of centralized services which may require formal studies include printing and duplicating plants and similar facilities.
(c) On the basis of experience under the centralized services program, GSA will develop criteria as to cost comparisons, production needs, building population, number of agencies involved, and other appropriate factors for consideration in determining the practicability of establishing various types of centralized services.
(a) The data requirements for feasibility studies may vary from program to program, but shall be standard within any single program. Such data shall disclose the costs resulting from provisions of the service on a centralized basis as compared to the same service provided separately by each occupying agency, including the costs of personnel assigned to provide the service, comparative space needs, equipment use, and any other pertinent factors.
(b) Wherever feasible and appropriate, data will be secured directly from the prospective occupying agencies, subject to necessary verification procedures. Suitable standard formats and necessary instructions for submission of data will be prescribed in applicable subchapters of chapter 101.
(c) Agencies required to submit data for a feasibility study will be furnished with copies of the prescribed reporting forms and such assistance as may be needed to assure their accurate and timely completion.
The schedule of feasibility studies will be coordinated by GSA with its construction, space management, and buildings management programs. Before initiating the study, the Administrator of General Services, or his authorized designee, will give at least 30 days' notice to the head of each agency that would be served by the proposed centralized facility. Such notice will contain an indication of the cost elements involved and the general procedures to be followed in the study.
The head of each agency receiving a GSA notice regarding a scheduled feasibility study will be requested to designate one or more officials at the location where the study will be made who may consult with authorized GSA representatives. Such information and assistance as is required or pertinent for an adequate review of the feasibility of the proposed centralized service shall be made available to GSA through the designated agency representatives.
An initial meeting of the representatives of prospective occupying agencies will be held to discuss the objectives and detailed procedures to be followed in the conduct of each feasibility study. Arrangements will be made at this meeting for securing all necessary data in accordance with § 101-5.104-3.
(a) The Administrator of General Services will determine, on the basis of the feasibility study, whether provision of a centralized service meets the criteria for increased economy, efficiency, and service, with due regard to the program and internal administrative requirements of the agencies to be served. The Director of the Office of Management and Budget and the head of each agency affected will be advised of the Administrator's determination and of the reasons therefor. Each determination to provide a centralized service shall include a formal report containing an explanation of the advantages to be gained, a comparison of estimated annual costs between the proposed centralized operation and separate agency operations, and a statement of the date the centralized facility will be fully operational.
(b) While a formal appeals procedure is not prescribed, any agency desiring to explain its inability to participate in the use of a centralized service may do so through a letter to the Director of the Office of Management and Budget, with a copy to the Administrator of General Services.
(a) GSA will continually appraise the operation of centralized facilities to insure their continued justification in terms of economy and efficiency. Centralized services provided pursuant to the regulation may be discontinued or curtailed if no actual savings or operating improvements are realized after a minimum operating period of one year. Occupying agencies will be consulted regarding the timing of curtailment or discontinuance of any centralized services and the heads of such agencies notified at least 120 days in advance of each action.
(b) Where mutual agreement is reached, an agency other than GSA may be designated by the Administrator of General Services to administer the centralized service.
(c) Arrangements with regard to financing will conform to the special requirements of each type of centralized service and to existing law. Normally, reimbursement will be made for the use of established services except where the cost is nominal or where reimbursement may not be practicable.
(a) Establishment. An occupying agency committee will be established by GSA if one does not exist, to assist the occupying agency, or such other agency as may be responsible, in the cooperative use of the centralized services, as defined in 101-5.102(a), provided in a Federal building. Generally, such a committee will be established when the problems of administration and coordination necessitate a formal method of consultation and discussion among occupying agencies.
(b) Membership. Each occupying agency of a Federal building is entitled to membership on an agency committee. The chairperson of each such committee shall be a GSA employee designated by the appropriate GSA Regional Administrator, except when another agency had been designated to administer the centralized service. In this instance, the chairperson shall be an employee of such other agency as designated by competent authority within that agency.
(c) Activities. Agency committees shall be advisory in nature and shall be concerned with the effectiveness of centralized services in the building. Recommendations of an agency committee will be forwarded by the chairman to the appropriate GSA officials for consideration and decision.
(d) Reports. A résumé of the minutes of each meeting of an agency committee shall be furnished to each member of the committee and to the appropriate GSA Regional Administrator.
This subpart 101-5.3 states the objective, guiding principles, criteria, and general procedures in connection with the establishment and operation of Federal employee health services in buildings managed by GSA.
This subpart 101-5.3 is applicable to all Federal agencies which occupy space in or are prospective occupying agencies of a building or group of adjoining buildings managed by GSA.
It is the objective of GSA to provide or arrange for appropriate health service programs in all Government-owned and leased buildings, or groups of adjoining buildings, which it manages where the building population warrants, where other Federal medical facilities are not available, and, where the number of the occupying agencies indicating a willingness to participate in such a program on a reimbursable basis makes it financially feasible.
The following principles will control the scope of the health services to be provided in keeping with the objective:
(a) Employees who work in groups of 300 or more, counting employees of all departments or agencies who are scheduled to be on duty at one time in the same building or group of buildings in the same locality will constitute the minimum number of employees required to warrant the establishment of a health service of a scope specified in § 101-5.304.
(b) As an exception to paragraph (a) of this section, health services of the scope specified in § 101-5.304 may be provided for employees who work in groups of less than 300 where the employing department or agency determines that working conditions involving unusual health risks warrant such provision.
(c) Treatment and medical care in performance-of-duty cases will be provided to employees as set forth in the Federal Employees' Compensation Act (5 U.S.C. 751 et seq.).
(d) Reimbursable costs for providing health services will be based on an operating budget which is a summary of all costs required to operate the health service. The reimbursement cost is prorated to participating agencies by means of a per capital formula computed by dividing the operating budget of the health service by the total number of employees sponsored for service. The size of the Federal population served, the compensation of the employees of the health unit, and other factors of medical economics prevalent in the area are factors which affect the local reimbursement cost. Further, in appropriate cases where more than one health unit is servicing employees housed in the same general locality, costs may be equalized by combining the operating budgets of all such units and dividing the total of the operating budgets by the number of employees sponsored. Special industrial conditions or other abnormal health or accident risk environments may increase the per capita cost.
The type of occupational health services made available to occupying agencies will be as follows:
(a) Emergency diagnosis and first treatment of injury or illness that become necessary during working hours and that are within the competence of the professional staff and facilities of the health service unit, whether or not such injury was sustained by the employee while in the performance of duty or whether or not such illness was caused by his employment. In cases where the necessary first treatment is outside the competence of the health service staff and facilities, conveyance of the employee to a nearby physician or suitable community medical facility may be provided at Government expense at the request of, or on behalf of, the employee.
(b) Preemployment examinations of persons selected for appointment.
(c) Such inservice examinations of employees as the participating agency determines to be necessary, such as voluntary employee health maintenance examinations which agencies may request for selected employees. Such examinations may be offered on a limited formula plan to all participating agencies when the resources of the health service staff and facilities will permit. Alternatively, when agencies are required to limit the cost of an occupational health services program, the provision of inservice examinations may be provided to selected employees of individual agencies and reimbursed on an individual basis.
(d) Administration, in the discretion of the responsible health service unit physician, of treatments and medications
(1) Furnished by the employee and prescribed in writing by his personal physician as reasonably necessary to maintain the employee at work, and
(2) Prescribed by a physician providing medical care in performance-of-duty injury or illness cases under the Federal Employees' Compensation Act.
(e) Preventive services within the competence of the professional staff
(1) To appraise and report work environment health hazards as an aid in preventing and controlling health risks;
(2) To provide health education to encourage employees to maintain personal health; and
(3) To provide specific disease screening examinations and immunizations.
(f) In addition, employees may be referred, upon their request, to private physicians, dentists, and other community health resources.
At the time the space requirements for a building or a group of adjoining buildings are developed by GSA, the prospective occupying agencies will be canvassed by GSA to determine if they wish to participate in the occupational health services program. Each agency desiring to participate in the program will be requested to furnish GSA with a written commitment, signed by an authorized official, that it is prepared to reimburse GSA, or such other agency as is designated pursuant to § 101-5.105(b), on a yearly per capita basis for each of its employees housed in the building or buildings covered by the program.
(a) The studies by GSA which lead to the development of space requirements and the determinations made as the result thereof will constitute the feasibility studies and the Administrator's determination contemplated by § 101-5.104.
(b) Each determination to provide health services will be governed by the principles stated in § 101-5.303 and will be in consonance with the general standards and guidelines furnished Federal agencies by the Public Health Service of the Department of Health, Education, and Welfare.
(a) The only authorized contact point for assistance of and consultation with the Public Health Service is the Federal Employee Health Programs, Division of Hospitals, Public Health Service, Washington, DC 20201. Other Federal agencies may be designated by the GSA Regional Administrator, pursuant to § 101-5.105(b) to operate occupational health services. Designated agencies should contact the Public Health Service directly on all matters dealing with the establishment and operation of these services.
(b) Public Health Service should be consulted by the designated agency on such matters as types, amounts, and approximate cost of necessary equipment; the scope of the services to be provided if it is affected by the amount of space and number of building occupants; types and amounts of supplies, materials, medicines, etc., which should be stocked; and the approximate cost of personnel staffing in cases where this method of operation is chosen, etc. PHS should also be asked to develop and monitor standards under which each health unit would be operated.
This subpart contains forms, reports, and related instructions used in connection with the regulations on centralized services in Federal buildings prescribed in this part 101-5.
This part sets forth miscellaneous regulations regarding Federal Property Management Regulations matters which do not come within the scope of any other subchapter of chapter 101.
This subpart provides the regulations of the General Services Administration (GSA) under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d—2000d-7) concerning nondiscrimination in federally assisted programs in connection with which Federal financial assistance is extended under laws administered in whole or in part by GSA.
The purpose of this subpart is to effectuate the provisions of title VI of the Civil Rights Act of 1964 (hereinafter referred to as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from GSA.
(a) Subject to paragraph (b) of this section, this subpart applies to any program for which Federal financial assistance is authorized under a law administered in whole or in part by GSA, including the laws listed in § 101-6.217. It applies to money paid, property transferred, or other Federal financial assistance extended to any such program after the effective date of this subpart pursuant to an application approved prior to such effective date. This subpart does not apply to (1) Any Federal financial assistance by way of insurance or guaranty contracts, (2) money paid, property transferred, or other assistance extended to any such program before the effective date of this subpart, except to the extent otherwise provided by contract, (3) any assistance to any individual who is the ultimate beneficiary under any such program, or (4) any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in § 101-6.204-2(d). The fact that a statute which authorizes GSA to extend Federal financial assistance to a program or activity is not listed in § 101-6.217 shall not mean, if title VI of the Act is otherwise applicable, that such program is not covered. Other statutes now in force or hereinafter enacted may be added to this list by notice published in the
(b) The regulations issued by the following Departments pursuant to title VI of the Act shall be applicable to Federal financial assistance of the kind indicated, and those Departments shall respectively be responsible for determining and enforcing compliance therewith:
(1) Department of Health, Education, and Welfare—donation or transfer of surplus property for purposes of education or public health (§ 101-6.217 (a)(2) and (b)).
(2) Department of Defense—donation of surplus personal property for purposes of civil defense (§ 101-6.217(a)(2)).
(3) Department of Transportation—donation of property for public airport purposes (§ 101-6.217(c)). GSA will, however, be responsible for obtaining such assurances as may be required in applications and in instruments effecting the transfer of property.
(4) Department of the Interior—disposal of surplus real property, including improvements, for use as a public park, public recreational area, or historic monument (§ 101-6.217(d) (1) and (2)). GSA will, however, be responsible for obtaining such assurances as may be required in applications and in instruments effecting the transfer of property for use as a historic monument.
(5) Department of Housing and Urban Development—disposal of surplus real property for use in the provision of rental or cooperative housing to be occupied by families or individuals of low or moderate income (§ 101-6.217(q)).
(c) Each Department named in paragraph (b) of this section shall keep GSA advised of all compliance and enforcement actions, including sanctions imposed or removed, taken by it with respect to the types of Federal financial assistance specified in paragraph (b) of this section to which the regulations of such Department apply.
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this subpart applies.
(a)(1) In connection with any program to which this subpart applies, a recipient may not, directly or through contractual or other arrangements, on the ground of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;
(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise, or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in paragraph (d) of this § 101-6.204-2).
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, an applicant or recipient may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this subpart applies, on the ground of race, color, or national origin or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this subpart.
(4) This subpart does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, a program or activity receiving Federal financial assistance, on the ground of race, color, or national origin. Where previous discriminatory practice or usage tends, on the ground of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this subpart applies, the applicant or recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.
(b) As used in this § 101-6.204-2 the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(c) The enumeration of specific forms of prohibited discrimination in this § 101-6.204-2 does not limit the generality of the pro hibition in § 101-6.204-1.
(d)(1) Where a primary objective of the Federal financial assistance to a program to which this subpart applies is to provide employment, a recipient may not, directly or through contractual or other arrangements, subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including, but not limited to, recruitment or recruitment advertising; employment; layoff or termination; upgrading, demotion, or transfer; rates of pay or other forms of compensation; selection for training, including apprenticeship; and use of facilities). The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 or the corresponding provisions of any Executive order which supersedes it.
(2) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the ground of race, color, or national origin in the employment practices of the recipient or other persons subject to this subpart tends, on the ground of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this subpart applies, the provisions of paragraph (d)(1) of this section shall apply to the employment practices of the recipient or other persons subject to this subpart, to the extent necessary to insure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.
An individual shall not be deemed subjected to discrimination by reason of his exclusion from benefits limited by Federal law to individuals of a particular race, color, or national origin different from his.
(a) Every application for Federal financial assistance to which this subpart 101-6.2 applies, except an application to which § 101-6.205-2 applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this subpart 101-6.2. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property, the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible GSA official shall specify the form of the foregoing assurances and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(b) In the case of real property, structures or improvements thereon, or interests therein, which is acquired with Federal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government, the instrument effecting or recording the transfer shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved, but property is improved with Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by GSA to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible GSA official, such a condition and right of reverter is appropriate to the statute under which the real property is obtained and to the nature of the grant and the grantee. In such event, if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the Administrator may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to forebear the exercise of such right to revert title for so long as the lien of such mortgage or other encumberance remains effective.
(c) The assurance required in the case of a transfer of personal property shall be inserted in the instrument effecting the transfer of the property.
(d) In the case of Federal financial assistance not involving a transfer of property, the assurance required shall be inserted in the agreement executed between the United States and the recipient covering the extension of Federal financial assistance.
Every application by a State or a State agency for continuing Federal financial assistance to which this subpart applies shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application (a) contain or be accompanied by a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this subpart, and (b) provide or be accompanied by provision for such methods of administration for the program as are found by the responsible GSA official to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this subpart.
The requirements of §§ 101-6.205-1 and 101-6.205-2 with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (a) Is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (b) submits a plan for the desegregation of such school or school system which the responsible official of the Department of Health, Education, and Welfare determines is adequate to accomplish the purposes of the Act and this subpart within the earliest practicable time, and provides reasonable assurance that it will carry out such plan. In any case of continuing Federal financial assistance such responsible official may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and this subpart. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.
(a) In the case of any application for Federal financial assistance to an institution of higher education, the assurance required by this § 101-6.205 shall extend to admission practices and to all other practices relating to the treatment of students.
(b) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.
(c) Where an installation or facility (for example, a public airport, or park or recreation area) is comprised of real property for which application is made, and, in addition, other real property of the applicant, the assurance required under this § 101-6.205 shall be applicable to the entire installation or facility.
The following examples will illustrate the application of the foregoing provisions of this subpart to certain programs for which Federal financial assistance is extended by GSA (in all cases the discrimination prohibited is discrimination on the ground of race, color, or national origin, prohibited by title VI of the Act and this subpart):
(a) In the programs involving the transfer of surplus property for airport, park or recreation, historic monument, wildlife conservation, or street widening purposes (§ 101-6.217(c), (d), (e), and (h)), the public generally is entitled to the use of the facility and to receive the services provided by the facility and to facilities operated in connection therewith, without segregation or any other discriminatory practices.
(b) In the program involving the loan of machine tools to nonprofit institutions or training schools (§ 101-6.217(o)), discrimination by the recipient in the admission of students or trainees or in the treatment of its students or trainees in any aspect of the educational process is prohibited. In the case of an institution of higher education, the prohibition applies to the entire institution. In the case of elementary or secondary schools, the prohibition applies to all elementary and secondary schools of the recipient school district, consistent with § 101-6.205-3. In this and other illustrations the prohibition of discrimination in the treatment of students or trainees includes the prohibition of discrimination among the students or trainees in the availability or use of any academic, dormitory, eating, recreational, or other facilities of the recipient.
(c) In the programs involving the donation of personal property to public bodies or the American National Red Cross (§ 101-6.217 (f) and (j)), discrimination in the selection or treatment of individuals to receive or receiving the benefits or services of the program is prohibited.
(d) In the program involving the donation of personal property to eleemosynary institutions (§ 101-6.217(1)), the assurance will apply to applicants for admission, patients, interns, residents, student nurses, and other trainees, and to the privilege of physicians, dentists, and other professionally qualified persons to practice in the institution, and will apply to the entire institution and to facilities operated in connection therewith.
(e) In the programs involving the allotment of space by GSA to Federal Credit Unions, without charge for rent or services, and the provision of free space and utilities for vending stands operated by blind persons (§ 101-6.217 (i) and (k)), discrimination by segregation or otherwise in providing benefits or services is prohibited.
(f) In the program involving grants to State and local agencies and to nonprofit organizations and institutions for the collecting, describing, preserving, and compiling and publishing of documentary sources significant to the history of the United States (§ 101-6.217(n)), discrimination by the recipient in the selection of students or other participants in the program, and, with respect to educational institutions, in the admission or treatment of students, is prohibited.
(g) In the program involving the transfer of surplus real property for use in the provision of rental or cooperative housing to families or individuals of low or moderate income (§ 101-6.217(q)), discrimination in the selection and assignment of tenants is prohibited.
(h) A recipient may not take action that is calculated to bring about indirectly what this subpart forbids it to accomplish directly.
(i) In some situations even though past discriminatory practices have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 101-6.209-4 to provide information as to the availability of the program or activity and the rights of beneficiaries under this subpart have failed to overcome these consequences, it will become necessary for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subjected to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will ensure that groups previously subjected to discrimination are adequately served.
(j) Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.
Each responsible GSA official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this subpart 101-6.2 and shall provide assistance and guidance to recipients to help them comply voluntarily with this subpart.
Each recipient shall keep such records and submit to the responsible GSA official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible GSA official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this subpart 101-6.2. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this subpart.
Each recipient shall permit access by the responsible GSA official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this subpart. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this subpart 101-6.2 and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible GSA official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this subpart 101-6.2.
The responsible GSA official or his designee shall from time to time review the practices of recipients to determine whether they are complying with this regulation.
Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this subpart 101-6.2 may by himself or by a representative file with the responsible GSA official or his designee a written complaint. A complaint must be filed not later than 90 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible GSA official or his designee.
The responsible GSA official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this subpart 101-6.2. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this subpart occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this subpart.
(a) If an investigation pursuant to § 101-6.210-3 indicates a failure to comply with this subpart 101-6.2, the responsible GSA official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 101-6.211.
(b) If an investigation does not warrant action pursuant to paragraph (a) of this section the responsible GSA official or his designee will so inform the recipient and the complainant, if any, in writing.
No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this subpart 101-6.2, or because he has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subpart. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this subpart, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
If there appears to be a failure or threatened failure to comply with this subpart 101-6.2, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this subpart may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (a) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (b) any applicable proceeding under State or local law.
If an applicant fails or refuses to furnish an assurance required under § 101-6.205 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of § 101-6.211-3. The GSA shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under § 101-6.211-3 except that GSA shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this subpart 101-6.2.
No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (a) the responsible GSA official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (b) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this subpart 101-6.2, (c) the action has been approved by the Administrator pursuant to § 101-6.213-5, and (d) the expiration of 30 days after the Administrator has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
No action to effect compliance by an other means authorized by law shall be taken until (a) the responsible GSA official has determined that compliance cannot be secured by voluntary means, (b) the recipient or other person has been notified of his failure to comply and of the action to be taken to effect compliance, and (c) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days, additional efforts shall be made to persuade the recipient or other person to comply with this subpart and to take such corrective action as may be appropriate.
Whenever an opportunity for a hearing is required by § 101-6.211-3, reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either:
(a) Fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible GSA official that the matter be scheduled for hearing, or (b) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this section or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 101-6.211-3, and consent to the making of a decision on the basis of such information as is available.
(b) [Reserved]
Hearings shall be held, at a time fixed by the responsible GSA official, at the offices of GSA in Washington, DC, unless such official determines that the convenience of the applicant or recipient or of GSA requires that another place be selected. Hearings shall be held before the responsible GSA official or, at his discretion, before a hearing examiner designated in accordance with 5 U.S.C. 3105 or 3344 (section 11 of the Administrative Procedure Act).
In all proceedings under this § 101-6.212 the applicant or recipient and GSA shall have the right to be represented by counsel.
(a) 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) and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in § 101-6.212-1, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both GSA and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.
(b) Technical rules of evidence shall not apply to hearings conducted pursuant to this subpart 101-6.2, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer 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 and written findings shall be made.
In cases in which the same or related facts are asserted to constitute noncompliance with this subpart 101-6.2 with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this subpart applies, or noncompliance with this subpart and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Administrator may, by agreement with such other departments, or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedure not inconsistent with this regulation. Final decisions in such cases, insofar as this subpart is concerned, shall be made in accordance with § 101-6.213.
If the hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the responsible GSA official for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient. Where the initial decision is made by the hearing examiner the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the responsible GSA official his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the responsible GSA official may on his own motion within 45 days after the initial decision serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of such notice of review the responsible GSA official shall review the initial decision and issue his own decision thereon including the reasons therefor. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the responsible GSA official.
Whenever a record is certified to the responsible GSA official for decision or he reviews the decision of a hearing examiner pursuant to § 101-6.213-1, or whenever the responsible GSA official conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a copy of the final decision of the responsible GSA official shall be given in writing to the applicant or recipient, and to the complainant, if any.
Whenever a hearing is waived pursuant to § 101-6.212 a decision shall be made by the responsible GSA official on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.
Each decision of a hearing officer or responsible GSA official shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this subpart 101-6.2 with which it is found that the applicant or recipient has failed to comply.
Any final decision of a responsible GSA official (other than the Administrator) which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under this subpart 101-6.2 or the Act, shall promptly be transmitted to the Administrator, who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.
The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this subpart 101-6.2, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this subpart, or to have otherwise failed to comply with this subpart, unless and until it corrects its noncompliance and satisfies the responsible GSA official that it will fully comply with this subpart.
(a) An applicant or recipient adversely affected by an order issued under § 101-6.213-6 shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this subpart and provides reasonable assurance that it will fully comply with this subpart. An elementary or secondary school or school system which is unable to file an assurance of compliance with § 101-6.24 shall be restored to full eligibility to receive financial assistance if it files a court order or a plan for desegregation meeting the requirements of § 101-6.205-3 and provides reasonable assurance that it will comply with this court order or plan.
(b) Any applicant or recipient adversely affected by an order entered pursuant to § 101-6.213-6 may at any time request the responsible GSA official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (a) of this section. If the responsible GSA official determines that those requirements have been satisfied, he shall restore such eligibility.
(c) If the responsible GSA official denies any such request, the applicant or recipient may submit a request, in writing, for a hearing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible GSA official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (a) of this section. While proceedings under this section are pending, the sanctions imposed by the order issued under § 101-6.213-6 shall remain in effect.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
All regulations, orders, or like directions heretofore issued by any officer of GSA which imposed requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this subpart 101-6.2 applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this subpart, except that nothing in this subpart shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this subpart. Nothing in this subpart, however, shall be deemed to supersede any of the following (including future amendments thereof):
(a) Executive Orders 10925, 11114, and 11246, and regulations issued thereunder.
(b) Any other orders, regulations, or instructions, insofar as such orders, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this subpart is inapplicable, or prohibit discrimination on any other ground.
Each responsible GSA official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this subpart 101-6.2 as applied to programs to which this subpart applies and for which he is responsible.
The Administrator may from time to time assign to officials of other departments or agencies of the Government, with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this subpart (other than responsibility for final decision as provided in § 101-6.213), including the achievement of effective coordination and maximum uniformity within GSA and within the executive branch of the Government in the application of title VI and this subpart to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another Department or Agency acting pursuant to an assignment of responsibility under this section shall have the same effect as though such action had been taken by the responsible GSA official.
As used in this subpart:
(a) The term General Services Administration or GSA includes each of its operating services and other organizational units.
(b) The term Administrator means the Administrator of General Services.
(c) The term responsible GSA official with respect to any program receiving Federal financial assistance means the Administrator or other official of GSA who by law or by delegation has the principal responsibility within GSA for the administration of the law extending such assistance.
(d) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the terms State means any one of the foregoing.
(e) The term Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purposes of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(f) The terms program or activity and program mean all of the operations of any entity described in paragraphs (f)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section.
(g) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or any other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.
(i) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
(j) The term applicant means one who submits an application, request, or plan required to be approved by a responsible GSA official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan.
(a)(1) Donation of surplus personal property to educational activities which are of special interest to the armed services (section 203(j)(2) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(j)(2)).
(2) Donation of surplus personal property for use in any State for purposes of education, public health, or civil defense, or for research for any such purposes (section 203(j) (3) and (4) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(j) (3) and (4)), and the making available to State agencies for surplus property, or the transfer of title to such agencies, of surplus personal property approved for donation for purposes of education, public health, or civil defense, or for research for any such purposes (section 203(n) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(n)).
(b) Disposal of surplus real and related personal property for purposes of education or public health, including research (section 203(k)(1) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(k)(1)).
(c) Donation of property for public airport purposes (section 13(g) of the Surplus Property Act of 1944, 50 U.S.C. App. 1622(g); section 23 of the Airport and Airway Development Act of 1970, Pub. L. 91-258).
(d)(1) Disposal of surplus real property, including improvements, for use as a historic monument (section 13(h) of the Surplus Property Act of 1944, 50 U.S.C. App. 1622(h)).
(2) Disposal of surplus real and related personal property for public park or public recreational purposes (section 203(k)(2) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(k)(2).
(e) Disposal of real property to States for wildlife conservation purposes (Act of May 19, 1948, 16 U.S.C. 667b-d).
(f) Donation of personal property to public bodies (section 202(h) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 483(h)).
(g) Grants of easements by the General Services Administration pursuant to the Act of October 23, 1962, (40 U.S.C. 319-319(c), and grants by the General Services Administration of revocable licenses or permits to use or occupy Federal real property, if the consideration to the Government for such easement, licenses, or permits is less than estimated fair market value.
(h) Conveyance of real property or interests therein by the General Services Administration to States or political subdivisions for street widening purposes pursuant to the Act of July 7, 1960 (40 U.S.C. 345c), if the consideration to the Government is less than estimated fair market value.
(i) Allotment of space by the General Services Administration in Federal buildings to Federal Credit Unions, without charge for rent or services (section 25 of the Federal Credit Union Act, 12 U.S.C. 1770).
(j) Donation of surplus property to the American National Red Cross (section 203(l) of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484(l)).
(k) Provision by the General Services Administration of free space and utilities for vending stands operated by blind persons (section 1 of the Randolph-Sheppard Act, 20 U.S.C. 107).
(l) Donation of forfeited distilled spirits, wine, and malt beverages to eleemosynary institutions (26 U.S.C. 5688).
(m) Donation of surplus Federal records (Federal Records Disposal Act of 1943, 44 U.S.C. 366-380).
(n) Grants to State and local agencies and to nonprofit organizations and institutions for the collecting, describing, preserving and compiling, and publishing of documentary sources significant to the history of the United States (section 503 of the Federal Property and Administrative Services Act of 1949, as amended by Pub. L. 88-383).
(o) Loan of machine tools and industrial manufacturing equipment in the national industrial reserve to nonprofit educational institutions or training schools (section 7 of the National Industrial Reserve Act of 1948, 50 U.S.C. 456).
(p) District of Columbia grant-in-aid hospital program (60 Stat. 896, as amended).
(q) Disposal of surplus real property for use in the provision of rental or cooperative housing to be occupied by families or individuals of low or moderate income (section 414 of the Housing and Urban Development Act of 1969, Pub. L. 91-152).
(r) Payments in lieu of taxes on certain real property transferred from the Reconstruction Finance Corporation (Title VII of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 521-524).
(s) Conveyance of certain lands and property to the State of Hawaii without reimbursement (Pub. L. 88-233, 77 Stat. 472).
For information on Federal facility ridesharing, see FMR part 102-74 (41 CFR part 102-74).
For policy concerning official use of Government passenger carriers between residence and place of employment previously contained in this part, see FMR part 5 (41 CFR part 102-5), Home-to-Work Transportation.
(a) In accordance with Public Law 96-303, the requirements of this section shall apply to all executive agencies (as defined by section 105 of title 5, United States Code), the United States Postal Service, and the Postal Rate Commission. The heads of these agencies shall be responsible for ensuring that the requirements of this section are observed and complied with within their respective agencies.
(b) Each agency, as defined in “(a)” above, shall display in appropriate areas of buildings in which at least 20 individuals are regularly employed by an agency as civilian employees, copies of the Code of Ethics for Government Service (Code).
(c) For Government-owned or wholly leased buildings subject to the requirements of this section, at least one copy of the Code shall be conspicuously displayed, normally in the lobby of the main entrance to the building. For other buildings subject to the requirements of this section which are owned, leased, or otherwise provided to the Federal Government for the purpose of performing official business, at least one copy of the Code shall be conspicuously displayed within the space occupied by the Government. In all cases, additional copies of the Code may be displayed in other appropriate building locations, such as auditoriums, bulletin boards, cafeterias, locker rooms, reception areas, and other high-traffic areas.
(d) Agencies of the Federal Government shall not pay any costs for the printing, framing, or other preparation of the Code. Agencies may properly pay incidental expenses, such as the cost of hardware, other materials, and labor incurred to display the Code. Display shall be consistent with the decor and architecture of the building space. Installation shall cause no permanent damage to stonework or other surfaces which are difficult to maintain or repair.
(e) Agencies may obtain copies of the Code by submitting a requisition for National Stock Number (NSN) 7690-01-099-8167 in Fedstrip format to the GSA regional office responsible for providing support to the requisitioning agency. Agencies will be charged a nominal fee to cover shipping and handling.
For information on fire protection (firesafety) engineering, see FMR part 102-74 (41 CFR part 102-74) and FMR part 102-80 (41 CFR part 102-80).
For Federal advisory committee management information previously contained in this subpart, see FMR part 102-3 (41 CFR part 102-3).
This subpart implements Executive Order 12372, “Intergovernmental Review of Federal Programs”, for Federal financial assistance and direct Federal development programs of the General Services Administration (GSA).
(a) The regulations in this part implement Executive Order 12372, “Intergovernmental Review of Federal Programs,” issued July 14, 1982, and amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968.
(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on State processes and on State, areawide, regional and local coordination for review of proposed Federal financial assistance and direct Federal development.
(c) These regulations are intended to aid the internal management of GSA, and are not intended to create any right or benefit enforceable at law by a party against GSA or its officers.
GSA means the U.S. General Services Administration.
Order means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983, and titled “Intergovernmental Review of Federal Programs.”
Administrator means the Administrator of General Services or an official or employee of GSA acting for the Administrator under a delegation of authority.
State means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.
The Administrator publishes in the
(a) The Administrator provides opportunities for consultation by elected officials of those State and local governments that would provide the non-Federal funds for, or that would be directly affected by, proposed Federal financial assistance from, or direct Federal development by, GSA.
(b) If a State adopts a process under the Order to review and coordinate proposed Federal financial assistance and direct Federal development, the Administrator, to the extent permitted by law:
(1) Uses the State process to determine official views of State and local elected officials;
(2) Communicates with State and local elected officials as early in a program planning cycle as is reasonably feasible to explain specific plans and actions;
(3) Makes efforts to accommodate State and local elected officials' concerns with proposed Federal financial assistance and direct Federal development that are communicated through the State process;
(4) Allows the States to simplify and consolidate existing federally required State plan submissions;
(5) Where State planning and budgeting systems are sufficient and where permitted by law, encourages the substitution of State plans for federally required State plans;
(6) Seeks the coordination of views of affected State and local elected officials in one State with those of another State when proposed Federal financial assistance or direct Federal development has an impact on interstate metropolitan urban centers or other interstate areas; and
(7) Supports State and local governments by discouraging the reauthorization or creation of any planning organization which is federally-funded, which has limited purpose, and which is not adequately representative of, or accountable to, State or local elected officials.
The Administrator, to the extent practicable, consults with and seeks advice from all other substantially affected Federal departments and agencies in an effort to assure full coordination between such agencies and GSA regarding programs and activities covered under these regulations.
(a) A State may select any program or activity published in the
(b) Each State that adopts a process shall notify the Administrator of the GSA programs and activities selected for that process.
(c) A State may notify the Administrator of changes in its selections at any time. For each change, the State shall submit to the Administrator an assurance that the State has consulted with elected local elected officials regarding the change. GSA may establish deadlines by which States are required to inform the Administrator of changes in their program selections.
(d) The Administrator uses a State's process as soon as feasible, depending on individual programs and activities, after the Administrator is notified of its selections.
(a) [Reserved]
(b) The Administrator provides notice to directly affected State, areawide, regional, and local entities in a State of proposed Federal financial assistance or direct Federal development if:
(1) The State has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not selected for the State process.
This notice may be made by publication in the
(a) Except in unusual circumstances, the Administrator gives State processes or directly affected State, areawide, regional and local officials and entities at least:
(1) [Reserved]
(2) 60 days from the date established by the Administrator to comment on proposed direct Federal development or Federal financial assistance.
(b) This section also applies to comments in cases in which the review, coordination, and communication with GSA have been delegated.
(a) The Administrator follows the procedures in § 101-6.2110 if:
(1) A State office or official is designated to act as a single point of contact between a State process and all Federal agencies, and
(2) That office or official transmits a State process recommendation for a program selected under § 101-6.2106.
(b)(1) The single point of contact is not obligated to transmit comments from State, areawide, regional or local officials and entities where there is no State process recommendation.
(2) If a State process recommendation is transmitted by a single point of contact, all comments from State, areawide, regional, and local officials and entities that differ from it must also be transmitted.
(c) If a State has not established a process, or is unable to submit a State process recommendation, State, areawide, regional and local officials and entities may submit comments to GSA.
(d) If a program or activity is not selected for a State process, State, areawide, regional and local officials and entities may submit comments to GSA. In addition, if a State process recommendation for a nonselected program or activity is transmitted to GSA by the single point of contact, the Administrator follows the procedures of § 101-6.2110 of this part.
(e) The Administrator considers comments which do not constitute a State process recommendation submitted under these regulations, and for which the Administrator is not required to apply the procedures of § 101-6.2110 of this part, when such comments are provided by a single point of contact, or directly to GSA by a commenting party.
(a) If a State process provides a State process recommendation to GSA through its single point of contact, the Administrator either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the State process; or
(3) Provides the single point of contact with such written explanation of its decision, as the Administrator in his or her discretion deems appropriate. The Administrator may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the Administrator informs the single point of contact that:
(1) GSA will not implement its decision for at least ten days after the single point of contact receives the explanation; or
(2) The Administrator has reviewed the decision and determined that, because of unusual circumstances, the waiting period of at least ten days is not feasible.
(c) For purposes of computing the waiting period under paragraph (b)(1) of this section, a single point of contact is presumed to have received written notification 5 days after the date of mailing of such notification.
(a) The Administrator is responsible for:
(1) Identifying proposed Federal financial assistance and direct Federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in States which have adopted a process and which have selected a GSA program or activity;
(3) Making efforts to identify and notify the affected State, areawide, regional, and local officials and entities in those States that have not adopted a process under the Order or have not selected a GSA program or activity; and
(4) Responding pursuant to § 101-6.2110 of this part if the Administrator receives a recommendation from a designated areawide agency transmitted by a single point of contact, in cases in which the review, coordination, and communication with GSA have been delegated.
(b) The Administrator uses the procedures in § 101-6.2110 if a State process provides a State process recommendation to GSA through a single point of contact.
(a) As used in this section:
(1) Simplify means that a State may develop its own format, choose its own submission date, and select the planning period for a State plan.
(2) Consolidate means that a State may meet statutory and regulatory requirements by combining two or more plans into one document and that the State can select the format, submission date, and planning period for the consolidated plan.
(3) Substitute means that a State may use a plan or other document that it has developed for its own purposes to meet Federal requirements.
(b) If not inconsistent with law, a State may decide to try to simplify, consolidate, or substitute federally required State plans without prior approval by the Administrator.
(c) The Administrator reviews each State plan that a State has simplified, consolidated, or substituted and accepts the plan only if its contents meet Federal requirements.
In an emergency, the Administrator may waive any provision of these regulations.
This subpart contains illustrations prescribed for use in connection with the subject matter covered in part 101-6.
The illustration in § 101-6.4902 is filed as part of the original document.
(a) The purpose of this subpart is to implement section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap in any program or activity receiving Federal financial assistance.
(b) This subpart applies to each recipient or subrecipient of Federal assistance from GSA and to each program or activity that receives assistance.
(a) Section 504 means section 504 of the Rehabilitation Act of 1973, Public Law 93-112, as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-516, 29 U.S.C. 794.
(b) Handicapped person means any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such impairments, or is regarded as having such an impairment.
(c) As used in paragraph (b) of this section, the phrase:
(1) Physical or mental impairment means:
(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, when current use of drugs and/or alcohol is not detrimental to or interferes with the employee's performance, nor constitutes a direct threat to property or safety of others.
(2) Major life activities means 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 that is treated by a recipient 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 paragraphs (c)(1) (i) and (ii) of this section, but is treated by a recipient as having such an impairment.
(d) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;
(2) With respect to public preschool, elementary, secondary, or adult education services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such services;
(ii) Of any age during which it is mandatory under state law to provide such services to handicapped persons; or
(iii) To whom a state is required to provide a free appropriate public education under section 612 of the Education for All Handicapped Children Act of 1975, Public Law 94-142.
(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity; and
(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.
(e) Handicap means condition or characteristic that renders a person a handicapped person as defined in paragraph (b) of this section.
(f) The term program or activity means all of the operations of any entity described in paragraphs (f)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section.
No qualified handicapped persons 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 that receives Federal assistance from GSA.
(a) A recipient, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(1) Deny a qualified person the opportunity to participate in or benefit from the aid, benefit, or service;
(2) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(3) Provide a qualified handicapped person 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 others;
(4) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless the action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or services to beneficiaries of the recipient's program or activity;
(6) Deny a qualified handicapped person the opportunity to participate as a member of planning committees, advisory boards, or other groups; or
(7) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(b) For purposes of this subpart, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement in the most integrated setting appropriate to the person's needs.
(c) Despite the existence of permissible separate or different aid, benefits, or services, a recipient may not deny a qualified handicapped person the opportunity to participate in aid, benefits, or services that are not separate or different.
(d) A recipient may not, directly or through contractual or other arrangements, use criteria or methods of administration that:
(1) Have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap;
(2) Have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons; or
(3) Perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.
(e) In determining the site of a facility, an applicant for assistance or a recipient may not make selections that:
(1) Have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives Federal assistance from GSA; or
(2) Have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons.
(f) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased, or rented, or otherwise acquired, in whole or in part, with Federal assistance.
(g) The exclusion of nonhandicapped persons from aid, benefits, or services limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from aid, benefits, or services limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this subpart.
(h) Recipients shall take appropriate steps to ensure that communications with the donees, applicants, employees, and handicapped persons participating in federally assisted programs or activities or receiving aid, benefits, or services are available to persons with impaired vision and hearing. Examples of communications methods include: Telecommunication devices for the deaf (TDD's), other telephonic devices, provision of braille materials, readers, and qualified sign language interpreters.
(i) The enumeration of specific forms of prohibited discrimination in this section does not limit the generality of the prohibition in § 101-8.302 of this subpart.
(a) The obligation to comply with this subpart is not obviated or alleviated by the existence of any State or local law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to practice any occupation or profession.
(b) The obligation to comply with this subpart is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for handicapped persons than for nonhandicapped persons.
(a) No qualified handicapped person shall, on the basis of handicap, be subjected to employment discrimination under any program or activity to which this subpart applies.
(b) A recipient shall make all decisions concerning employment under any program or activity to which this subpart applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap.
(c) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination prohibited by this subpart. The relationships referred to in this paragraph include relationships with employment and referral agencies, labor unions, organizations providing or administering fringe benefits to employees of the recipient, and organizations providing training and apprenticeships.
(d) The provisions of this subpart apply to:
(1) Recruitment, advertising, and processing of applications for employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation and changes in compensation;
(4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick or otherwise;
(6) Fringe benefits available by virtue of employment, whether administered by the recipient or not;
(7) Selection and provision of financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;
(8) Employer-sponsored activities, including those that are social or recreational; and
(9) Any other term, condition, or privilege of employment.
(e) A recipient's obligation to comply with this subpart is not affected by any inconsistent term of any collective bargaining agreement to which it is a party.
(a) A recipient shall make reasonable accommodation to the known physical or metal limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and usable by handicapped persons; and
(2) Job restructuring; part-time or modified work schedules; acquisition or modification of equipment or devices, such as telecommunications devices or other telephonic devices for hearing impaired persons; provision of reader or qualified sign language interpreters; and other similar actions. These actions are to be taken either upon request of the handicapped employee or, if not so requested, upon the recipient's own initiative, after consultation with and approval by the handicapped person.
(c) In determining, under paragraph (a) of this section, whether an accommodation would impose an undue hardship on the operation of a recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with respect to number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition and structure of the recipient's work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny an employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
(a) A recipient may not use an employment test or other selection criterion that screens out or tends to screen out handicapped persons unless the test score or other selection criterion, as used by the recipient, is shown to be job-related for the position in question.
(b) A recipient shall ensure that employment tests are adapted for use by persons who have handicaps that impair sensory, manual, or speaking skills except where those skills are the factors that the test purports to measure.
(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiries of an applicant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiries into an applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the effects of past discrimination, or is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity, or when a recipient is taking affirmative action under section 503 of the Rehabilitation Act of 1973, as amended, the recipient may invite applicants for employment to indicate whether, and to what extent, they are handicapped provided that:
(1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally, if no written questionnaire is used, that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and
(2) The recipient states clearly that the information is requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this subpart.
(c) This section does not prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty provided that all entering employees are subjected to the examination regardless of handicap or absence of handicap and results of the examination are used only in accordance with the requirements of this subpart.
(d) Information obtained in accordance with this section concerning the medical condition or history of the applicant shall be collected and maintained on separate forms that are to be accorded confidentiality as medical records, except that:
(1) Supervisors and managers may be informed of restrictions on the work or duties of handicapped persons and of necessary accommodations;
(2) First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with section 504 of the Rehabilitation Act of 1973, as amended, shall be provided relevant information upon request.
(a) General. No handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or be subjected to discrimination under any program or activity that receives Federal assistance from GSA.
(b) Accessibility. A recipient shall operate any program or activity to which this subpart applies so that when each part is viewed in its entirety it is readily accessible to and usable by handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.
(c) Methods. A recipient may comply with the requirement of paragraph (a) of this section through such means as acquisition or redesign of equipment, such as telecommunications devices or other telephonic devices for the hearing impaired; reassignment of classes or other services to alternate sites which have accessible buildings; assignment of aides to beneficiaries, such as readers for the blind or qualified sign language interpreters for the hearing impaired when appropriate; home visits; delivery of health, welfare, or other social services at alternate accessible sites; alterations of existing facilities and construction of new facilities in conformance with the requirements of § 101-8.310; or any other methods that result in making its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that serve handicapped persons in the most integrated setting appropriate.
(d) Small service providers. If a recipient with fewer than 15 employees finds, after consultation with a handicapped person seeking its services, that there is no available method of complying with paragraph (a) of this section other than making a significant alteration in its existing facilities, the recipient may, as an alternative, refer the handicapped person to other providers of those services that are accessible at no additional cost to the handicapped person.
(e) Time period. A recipient shall comply with the requirement of paragraph (a) of this section within 60 days of the effective date of this subpart, except that where structural changes in facilities are necessary, the changes are to be made as expeditiously as possible, but in no event later than 3 years after the effective date of this subpart.
(f) Transition plan. In the event that structural changes to facilities are necessary to meet the requirements of paragraph (a) of this section, a recipient shall develop, within 6 months of the effective date of this subpart, a transition plan setting forth the steps necessary to complete the changes. The plan shall be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, and the plan must meet with the approval of the Director of Civil Rights, GSA. A copy of the transition plan shall be made available for public inspection. At a minimum, the plan shall:
(1) Identify physical obstacles in the recipient's facilities that limit the accessibility to and usability by handicapped persons of its program or activity;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve full accessibility under paragraph (a) of this section and, if the time period or the transition plan is longer than 1 year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(g) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information concerning the existence and location of services, activities, and facilities that are accessible to, and usable by, handicapped persons.
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed in a manner that the facility or part of the facility is readily accessible to, and usable by, handicapped persons, if the construction began after the effective date of this subpart.
(b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this subpart in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in a manner that the altered portion of the facility is readily accessible to and usable by handicapped persons.
(c) GSA Accessibility Standard. Design, construction, or alteration of facilities shall be in conformance with the “GSA Accessibility Standard,” PBS (PCD): DG6, October 14, 1980. A copy of the standard can be obtained through the Business Service Centers, General Services Administration, National Capital Region, 7th and D Streets, SW., Washington, DC 20407 or Regional Business Service Centers, Region 1, John W. McCormack, Post Office and Courthouse, Boston, Massachusetts 02109; Region 2, 26 Federal Plaza, New York, New York 10007; Region 3, Ninth and Market Streets, Philadelphia, Pennsylvania 19107; Region 4, 75 Spring Street, SW., Atlanta, Georgia 30303; Region 5, 230 South Dearborn, Chicago, Illinois 60604; Region 6, 1500 East Bannister Road, Kansas City, Missouri 64131; Region 7, 819 Taylor Street, Fort Worth, Texas 76102; Region 8, Building 41, Denver Federal Center, Denver, Colorado 80225; Region 9, 525 Market Street, San Francisco, California 94105; Region 10, GSA Center, Auburn, Washington 98002.
(a) Definitions. For purposes of this section:
(1) Historic Preservation Programs are those that receive Federal financial assistance that has preservation of historic properties as a primary purpose.
(2) Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places.
(3) Substantial impairment means a permanent alteration that results in a significant loss of the integrity of finished materials, design quality or special character.
(b) Obligation—(1) Accessibility. A recipient shall operate any program or activity involving Historic Preservation Programs so that when each part is viewed in its entirety it is readily accessible to and usable by handicapped persons.
(i) Making physical alterations which enable handicapped persons to have access to otherwise inaccessible areas or features of historic properties;
(ii) Using audio-visual materials and devices to depict otherwise inaccessible areas or features of historic properties;
(iii) Assigning persons to guide handicapped persons into or through otherwise inaccessible portions of historic properties;
(iv) Adopting other innovative methods to achieve accessibility.
(2) Waiver of accessibility standards. Where accessibility cannot be achieved without causing a substantial impairment of significant historic features, the Administrator may grant a waiver of the accessibility requirement. In determining whether accessibility can be achieved without causing a substantial impairment, the Administrator shall consider the following factors:
(i) Scale of property, reflecting its ability to absorb alterations;
(ii) Use of the property, whether primarily for public or private purpose;
(iii) Importance of the historic features of the property to the conduct of the program or activity; and
(iv) Cost of alterations in comparison to the increase in accessibility.
(c) Advisory Council comments. Where the property is federally owned or where Federal funds may be used for alterations, the comments of the Advisory Council on Historic Preservation shall be obtained when required by section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470), and 36 CFR part 800, prior to effectuation of structural alterations.
The procedural provisions of title VI of the Civil Rights Act of 1964 are adopted and stated in §§ 101-6.205-101-6.215 and apply to this subpart. (Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).)
(a) Procedures. Each recipient shall, within one year of the effective date of this part:
(1) Whenever possible, evaluate, with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects thereof that do not or may not meet the requirements of this part;
(2) Modify any policies and practices which do not or may not meet the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of discrimination which resulted or may have resulted from adherence to these questionable policies and practices.
(b) Availability of self-evaluation and related materials. Recipients shall maintain on file, for at least three years following its completion, the evaluation required under paragraph (a) of this section, and shall provide to the Director, upon request, a description of any modifications made under paragraph (a)(2) of this section and of any remedial steps taken under paragraph (a)(3) of this section.
The Age Discrimination Act of 1975, as amended, prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance.
This regulation sets out General Services Administration's (GSA) policies and procedures under the Age Discrimination Act of 1975, as amended, in accordance with 45 CFR part 90. The Act and the Federal regulation permits Federally assisted programs or activities to continue to use certain age distinctions and factors other than age which meet the requirements of the Act and its implementing regulations.
(a) The regulation applies to each GSA recipient and to each program or activity operated by the recipient.
(b) The regulations does not apply to:
(1) An age distinction contained in that part of Federal, State, local statute or ordinance adopted by an elected, general purpose legislative body that:
(i) Provides any benefits or assistance to persons based on age;
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in age-related terms.
(2) Any employment practice of any employer, employment agency, labor organization or any labor-management apprenticeship training program, except for any program or activity receiving Federal financial assistance for public service employment under the Comprehensive Employment and Training Act (CETA) (29 U.S.C. 801 et seq.).
(a) As used in these regulations, the term: Act means the Age Discrimination Act of 1975, as amended (title III of Pub. L. 94-135).
(b) Action means any act, activity, policy, rule, standard, or method of administration.
(c) Age means how old a person is, or the number of years from the date of a person's birth.
(d) Age distinction means any action using age or an age-related term.
(e) Age-related term means a word or words that imply a particular age or range or ages (for example, children, adult, older person, but not student).
(f) Agency means a Federal department or agency empowered to extend Federal financial assistance.
(g) Agency Responsible Officials:
(1) Administrator means the Administrator of General Services.
(2) Director, Office of Civil Rights means the individual responsible for managing the agency's nondiscrimination Federal financial assistance policy, or his or her designee.
(h) Federal financial assistance means (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the services of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purposes of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(i) GSA means the United States General Services Administration.
(j) Primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
(k) Program or activity means all of the operations of any entity described in paragraphs (k)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a state or of a local government;
(ii) The entity of such state and local government that distributes such assistance and each such department or agency (and each other state or local government entity) to which the assistance is extended, in the case of assistance to a state or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (k)(1), (2), or (3) of this section.
(l) Recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or any other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.
The rules stated in this section are limited by the exceptions contained in § 101-8.706 of this regulation
(a) General rule. No person in the United States may on the basis of age, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance from GSA.
(b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual licensing, or other arrangement, use age distinctions or take any other actions that have the effect on the basis of age, of:
(1) Excluding individuals from participating in, denying them the benefits of, or subjecting them to discrimination under a program or activity receiving Federal financial assistance; or
(2) Denying or limiting individual opportunity to participate in any program or activity receiving Federal financial assistance.
(c) The forms of age discrimination listed in paragraph (b) of this section are not necessarily a complete list.
The terms normal operation and statutory objective are defined as follows:
(a) Normal operation means the operation of a program or activity without significant changes that would inhibit meeting objectives.
(b) Statutory objective means any purpose of a program or activity expressly stated in any Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body.
A recipient is permitted to take an action, otherwise prohibited, if the action reasonably takes into account age as a factor necessary to the normal operation or achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor if:
(a) Age is used as a measure or approximation of one or more other characteristics; and
(b) The other characteristic must be measured or approximated for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
(c) The other characteristic can be reasonably measured or approximated by the use of age; and
(d) The other characteristic is impractical to measure directly on an individual basis.
(a) A recipient is permitted to take an action, otherwise prohibited by § 101-8.706-1, which is based on something other than age, even though the action may have a disproportionate effect on persons of different ages.
(b) An action may be based on a factor other than age only if the factor bears a direct and substantial correlation to the normal operation of the program or activity or to the achievement of a statutory objective.
The burden of proving that an age distinction or other action falls within the exceptions outlined in § 101-8.706 is the recipient's.
Even in the absence of a finding of age discrimination, a recipient may take affirmative action to overcome the effects resulting in limited participation in the recipient's program or activity.
If a recipient's program or activity provides special benefits to the elderly or to children, such use of age distinctions is presumed to be necessary to the normal operation of the program or activity, notwithstanding the provisions of § 101-8.705.
Any age distinctions contained in a rule or regulation issued by GSA are presumed to be necessary to the achievement of a statutory objective of the program or activity to which the rule or regulation applies. The GSA regulation 41 CFR 101-44.207(a) (3) through (27), describes specific Federal financial assistance which provides assistance to all age groups. However, the Child Care Center Program servicing children through age 14, and “Programs for Older Individuals”, are the only two types of Federal financial assistance where age distinctions are provided.
Each recipient of Federal financial assistance from GSA is responsible for ensuring that its programs or activities comply with the Act and this regulation and must take steps to eliminate violations of the Act. A recipient is also responsible for maintaining records, providing information, and affording GSA access to its records to the extent GSA finds necessary to determine whether the recipient is complying with the Act and this regulation.
(a) If a primary recipient passes on Federal financial assistance from GSA to subrecipients, the primary recipient provides to subrecipients, written notice of their obligations under the Act and this regulation.
(b) Each recipient makes necessary information about the Act and this regulation available to its beneficiaries to inform them about the protections against discrimination provided by the Act and this regulation.
(a) Each recipient of Federal financial assistance from GSA signs a written assurance as specified by GSA that it intends to comply with the Act and this regulation.
(b) Recipient assessment of age distinctions.
(1) As part of a compliance review under § 101-8.715 or complaint investigation under § 101.8.718, GSA may require a recipient employing the equivalent of 15 or more employees to complete a written self-evaluation of any age distinction imposed in its program or activity receiving Federal financial assistance from GSA to assess the recipient's compliance with the Act.
(2) If an assessment indicates a violation of the Act and the GSA regulation, the recipient takes corrective action.
Each recipient must:
(a) Keep records in a form and containing information that GSA determines necessary to ensure that the recipient is complying with the Act and this regulation.
(b) Provide to GSA upon request, information and reports that GSA determines necessary to find out whether the recipient is complying with the Act and this regulation.
(c) Permit reasonable access by GSA to books, records, accounts, facilities, and other sources of information to the extent GSA finds it necessary to find out whether the recipient is complying with the Act and this regulation. GSA adopts HHS policy regarding the kinds of data and information recipients are expected to keep (45 CFR 90.34). This policy is parallel to compliance information sections in the title VI, title IX, and section 504 implementation regulations. While recognizing the need for enough data to assess recipient compliance, GSA is committed to lessening the data gathering burden on recipients. GSA further recognizes that there is no established body of knowledge or experience to guide the assessment of age discrimination. This regulation, therefore, does not impose specific data requirements upon recipients, rather, it allows GSA to be flexible in deciding what kinds of data should be kept by recipients, based on what kinds of data prove useful as GSA gains experience with the Age Discrimination Act, and age discrimination issues become clearer.
(d) In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 59-511), the reporting and record keeping provisions included in this regulation will be submitted, for approval, to the Office of Management and Budget (OMB). No data collection or record keeping requirement will be imposed on recipients or donees without the required OMB approval number.
(a) GSA may conduct compliance reviews and use similar procedures to investigate and correct violations of the Act and this regulation. GSA may conduct the reviews even in the absence of a complaint against a recipient. The reviews may be as comprehensive as necessary to determine whether a violation of the Act and this regulation has occurred.
(b) If a compliance review indicates a violation of the Act or this regulation, GSA attempts to achieve voluntary compliance with the Act. If compliance cannot be achieved, GSA arranges for enforcement as described in § 101-8.720.
(a) Any person, individually or as a member of a class (defined at § 101-8.703(e)) or on behalf of others, may file a complaint with GSA alleging discrimination prohibited by the Act or this regulation based on an action occurring after July 1, 1979. A complainant must file a complaint within 80 days from the date the complainant first has knowledge of the alleged act of discrimination. However, for good cause shown, GSA may extend this time limit.
(b) GSA considers the date a complaint is filed to be the date upon which the complaint is sufficient to be processed.
(c) GSA attempts to facilitate the filing of complaints if possible, including taking the following measures:
(1) Accepting as a sufficient complaint, any written statement that identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes the action or practice complained of, and is signed by the complainant;
(2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint;
(3) Notifying the complainant and the recipient (or their representative) of their right to contact GSA for information and assistance regarding the complaint resolution process.
(d) GSA returns to the complainant any complaint outside the jurisdiction of this regulation, and states the reason(s) why it is outside the jurisdiction of the regulation.
(a) GSA promptly refers to the mediation agency designated by the Secretary, HHS, all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and this regulation, unless the age distinction complained of is clearly within an exception; and
(2) Contain the information needed for further processing.
(b) Both the complainant and the recipient must participate in the mediation process to the extent necessary to reach an agreement or make an informed judgement that an agreement is not possible. Both parties need not meet with the mediator at the same time.
(c) If the complainant and the recipient agree, the mediator will prepare a written statement of the agreement and have the complainant and the recipient sign it. The mediator must send a copy of the agreement to GSA. GSA takes no further action on the complaint unless the complainant or the recipient fails to comply with the agreement.
(d) The mediator must protect the confidentiality of all information obtained in the course of the mediation. No mediator may testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency.
(e) The mediation proceeds for a maximum of 60 calendar days after a complaint is filed with GSA. Mediation ends if:
(1) 60 calendar days elapse from the time the complaint is filed; or
(2) Before the end of the 60 calendar-day period an agreement is reached; or
(3) Before the end of that 60 calendar-day period, the mediator finds that an agreement cannot be reached.
The 60 calendar day period may be extended by the mediator, with the concurrence of GSA, for not more than 30 calendar days if the mediator determines that agreement is likely to be reached during the extension period.
(f) The mediator must return unresolved complaints to GSA.
(a) Informal investigation. GSA investigates complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement. As part of the initial investigation, GSA uses informal factfinding methods, including joint or separate discussions with the complainant and the recipient, to establish the fact and, if possible, settle the complaint on terms that are mutually agreeable to the parties. GSA may seek the assistance of any involved State agency. GSA puts any agreement in writing and has it signed by the parties and an authorized official designated by the Administrator or the Director, Office of Organization and Personnel. The settlement may not affect the operation of any other enforcement efforts of GSA, including compliance reviews and investigation of other complaints that may involve the recipient. The settlement is not a finding of discrimination against a recipient.
(b) Formal investigation. If GSA cannot resolve the complaint through informal investigation, it begins to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, GSA attempts to obtain voluntary compliance. If GSA cannot obtain voluntary compliance, it begins enforcement as described in § 101-8.720.
A recipient may not engage in acts of intimidation or retaliation against any person who:
(a) Attempts to assert a right protected by the Act of this regulation; or
(b) Cooperates in any mediation, investigation, hearing, conciliation, and enforcement process.
(a) GSA may enforce the Act and these regulations through:
(1) Termination of a recipient's Federal financial assistance from GSA under the program or activity involved where the recipient has violated the Act or this regulation. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge.
(2) Any other means authorized by law including, but not limited to:
(i) Referral to the Department of Justice for proceeding to enforce any rights of the United States or obligations of the recipients created by the Act or this regulation, or
(ii) Use of any requirement of or referral to any Federal, State, or local government agency that has the effect of correcting a violation of the Act or this regulation.
(b) GSA limits any termination to the particular recipient and program or activity or part of such program or activity GSA finds in violation of this regulation. GSA does not base any part of a termination on a finding with respect to any program or activity of the recipient that does not receive Federal financial assistance from GSA.
(c) GSA takes no action under paragraph (a) until:
(1) The administrator advises the recipient of its failure to comply with the Act and this regulation and determines that voluntary compliance cannot be obtained, and
(2) 30 calendar days elapse after the Administrator sends a written report of the grounds of the action to the committees of Congress having legislative jurisdiction over the program or activity involved. The Administrator files a report if any action is taken under paragraph (a) of this section .
(d) GSA may also defer granting new Federal financial assistance from GSA to a recipient when a hearing under § 101-8.721 is initiated.
(1) New Federal financial assistance from GSA includes all assistance for which GSA requires an application or approval, including renewal or continuation of existing activities, or authorization of new activities, during the deferral period. New Federal financial assistance from GSA does not include assistance approved before the beginning of a hearing.
(2) GSA does not begin a deferral until the recipient receives notice of an opportunity for a hearing under § 101-8.721. GSA does not continue a deferral for more than 60 calendar days unless a hearing begins within that time or the time for beginning the hearing is extended by mutual consent of the recipient and the Administrator. GSA does not continue a deferral for more than 30 calendar days after the close of the hearing, unless the hearing results in a finding against the recipient.
(3) GSA limits any deferral to the particular recipient and program or activity or part of such program or activity GSA finds in violation of these regulations. GSA does not base any part of a deferral on a finding with respect to any program or activity of the recipient which does not, and would not, receive Federal financial assistance from GSA.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required, reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action; and either fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible GSA official that the matter be scheduled for hearing or advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing for which a data has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act, and consent to the making of a decision on the basis of such information as may be filed as the record.
(b) Time and place of hearing. Hearings shall be held at GSA in Washington, D.C., at a time fixed by the Director, Office of Civil Rights (OCR), unless he or she determines that the convenience of the applicant or recipient or of GSA requires that another place be selected. Hearings shall be held before a hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative Procedure Act).
(c) Right to counsel. In all proceedings under this section, the applicant or recipient and GSA shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both GSA and the applicant or recipient shall be entitled to introduce all relevent evidence on the issues as stated in the notice for hearing or as determined by the Officer conducting the hearing at the outset of or during the hearings. Any person (other than a Government employee considered to be on official business) who, having been invited or requested to appear and testify as a witness on the Government's behalf, attends at a time and place scheduled for a hearing provided for by this part, may be reimbursed for his travel and actual expenses of attendance in an amount not to exceed the amount payable under the standardized travel regulations to a Government employee traveling on official business.
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer 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 advances 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 and written findings shall be made.
(e) Consolidated of Joint Hearings. In cases in which the same or related facts are asserted to constitute non-compliance with this regulation with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this part applies, or noncompliance with this part, and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the responsible GSA official may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 101-8.722.
(a) Decisions by hearing examiners. After a hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the Agency designated reviewing authority for final decision. A copy of such initial decision or certification shall be mailed to the applicant or recipient and to the complainant, if any. Where the initial decision referred to in this paragraph or in paragraph (c) of this section is made by the hearing examiner, the applicant or recipient or the counsel for GSA may, within the period provided for in the rules of procedure issued by GSA official, file with the reviewing authority exceptions to the initial decision, with his or her reasons therefore. Upon the filing of such exceptions the reviewing authority shall review the initial decision and issue a decision including the reasons therefor. In the absence of exceptions the initial decision shall constitute the final decision, subject to the provisions of paragraph (e) of this section.
(b) Decisions on record or review by the reviewing authority. Whenever a record is certified to the reviewing authority for decision or it reviews the decision of a hearing examiner pursuant to paragraph (a) or (c) of this section, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions, and a copy of the final decision of the reviewing authority shall be given in writing to the applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 101-8.721(a) the reviewing authority shall make its final decision on the record or refer the matter to a hearing examiner for an initial decision to be made on the record. A copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or reviewing authority shall set forth a ruling on each findings, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(e) Review in certain cases by the Administrator. If the Administrator has not personally made the final decision referred to in paragraph (a), (b), or (c) of this section, a recipient or applicant or the counsel for GSA may request the Administrator to review a decision of the Reviewing Authority in accordance with rules of procedure issued by the responsible GSA official. Such review is not a matter of right and shall be granted only where the Administrator determines there are special and important reasons therefor. The Administrator may grant or deny such request, in whole or in part. He or she may also review such a decision in accordance with rules of procedure issued by the responsible GSA official. In the absence of a review under this paragraph, a final decision referred to in paragraphs (a), (b), (c) of this section shall become the final decision of GSA when the Administrator transmits it as such to Congressional committees with the report required under section 602 of the Act. Failure of an applicant or recipient to file an exception with the Reviewing Authority or to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions and other provisions as are consistent with and will effectuate the purposes of the Act and this regulation, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended under such law or laws to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation unless and until it corrects its noncompliance and satisfies the responsible GSA official that it will fully comply with this regulation.
(g) Post-termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that is will fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible GSA official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible GSA official determines that those requirements have been satisfied, he or she shall restore such eligibility.
(3) If the responsible GSA official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible GSA official. The applicant or recipient will be restored to such eligibility if it proves at such hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
If GSA finds a recipient discriminated on the basis of age, the recipient must take any remedial action that GSA may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that discriminated, GSA may require both recipients to take remedial action.
(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if:
(1) 180 calendar days elapse after the complainant files the complaint and GSA makes no finding with regard to the complaint; or
(2) GSA Issues a finding in favor of the recipient.
(b) If GSA fails to make a finding within 180 days or issues a finding in favor of the recipient, GSA must:
(1) Promptly advise the complainant of this fact;
(2) Advise the complainant of his or her right to bring civil action for injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring civil action only in a United States district court for the district in which the recipient is located or transacts business;
(ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint;
(iii) That before commencing the action the complainant must give 30 calendar days notice by registered mail to the Secretary, HHS, The Administrator, the Attorney General of the United States, and the recipient;
(iv) That the notice must state the alleged violation of the Act, the relief requested, the court in which the complainant is bringing the action, and whether or not attorney's fees are demanded in the event the complainant prevails; and
(v) That the complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of a pending action in any court of the United States.
If GSA withholds Federal financial assistance from a recipient under this regulation, the Administrator may disburse the assistance to an alternate recipient; any public or nonprofit private organization; or agency or State or political subdivision of the State. The Administrator requires any alternate recipient to demonstrate:
(a) The ability to comply with this regulation; and
(b) The ability to achieve the goals of the Federal Statutes authorizing the Federal financial assistance.
For Federal mail management information previously contained in this part, see FMR part 192 (41 CFR part 102-192).
For information on records and standard and optional forms, see FMR parts 102-193 and 102-194 (41 CFR parts 102-193 and 102-194).
For information on assignment and utilization of space, see FMR part 102-79 (41 CFR part 102-79).
For information on acquisition of real property, see FMR part 102-73 (41 CFR part 102-73).
For information on construction and alteration of public buildings, see FMR parts 102-74 (41 CFR part 102-74) and 102-76 (41 CFR part 102-76).
For information on management of buildings and grounds, see FMR part 102-74 (41 CFR part 102-74).
For information previously contained in this part, see FMR part 85 (41 CFR part 102-85).
For information on location of space, see FMR part 102-83 (41 CFR part 102-83).
This subchapter provides policies and guidelines pertaining to the general area of supply management designed to support the logistical programs of the Federal Government. It consists of parts 101-25 through 101-34 and provides for applicability of coverage within each of these several parts.
This part provides policies and guidelines pertaining to subject matter in the general area of supply management which is not appropriate for coverage in other parts of this subchapter E.
Except in emergencies, Government personal property and nonpersonal services shall be used only for those purposes for which they were obtained or contracted for or other officially designated purposes. Emergency conditions are those threatening loss of life and property. As used in this section nonpersonal services means those contractual services, other than personal and professional services (as defined in 40 U.S.C. 472). This includes property and services on interagency loan as well as property leased by agencies. Agency heads shall ensure that the provisions of this § 101-25.100 are enforced to restrict the use of Government property/services to officially designated activities.
(a) This § 101-25.101 prescribes general criteria governing selection of the appropriate methods of supply to be utilized in meeting the planned requirements of the Government. It is directly applicable to executive agencies, and other Federal agencies are requested to observe these criteria in conducting their supply operations.
(b) As used in this § 101-25.101, the term use point means a storeroom or other redistribution point where supplies, materials, or equipment representing more than a 30-day supply are maintained primarily for issue directly to consumers within the local area, as distinguished from storage points where supplies and equipment are issued to redistribution points.
The following criteria shall govern in determining whether an item can be most advantageously supplied through storage and issue to use points:
(a) The item shall be physically adaptable to storage and issue and of such a character that it is feasible to forecast overall requirements of the use points served with reasonable accuracy;
(b) Rate of use and frequency of ordering at use points shall be sufficient to warrant storage and issue;
(c) The rate of deterioration or obsolescence shall be sufficiently low to avoid unnecessary loss; and
(d) Conditions exist where any of the following factors require supply through storage and issue (except that dangerous commodities of high weight and density, or commodities highly susceptible to damage normally should not be considered for supply through storage and issue unless one or more of such factors are determined to be of overriding importance)—
(1) Where price advantage through bulk buying is sufficient to render storage and issue more economical, all costs, both direct and indirect, considered.
(2) Where close inspection or testing is necessary to secure quality, or where repetitive inspection and test of small lots are prohibitive from the standpoint of cost or potential urgency of need.
(3) Where advance purchase and storage are necessitated by long procurement leadtime.
(4) Where an item is of special manufacture or design and is not readily available from commercial sources.
(5) Where an adequate industry distribution system does not exist to assure availability at use point.
(6) Where volume purchases are necessary to secure timely deliveries and advantageous prices.
(7) Where market conditions are such that supply through storage and issue is required to assure adequate supply.
(8) Where stocking of supplies and equipment necessary for implementation of emergency plans is required for an indefinite period.
The following criteria shall govern in determining whether an item can be most advantageously supplied through consolidated purchase for direct delivery to use points:
(a) The items shall be equipment or supply items of such a character that it is feasible to forecast requirements for delivery to specific use points; and
(b) Conditions exist where any of the following factors requires consolidated purchasing of such items for direct delivery to use points—
(1) Where greatest price advantage, both direct and indirect costs considered, is obtainable through large definite quantity purchasing.
(2) Where an item is of special manufacture or design and is not readily available from commercial sources.
(3) Where market conditions are such that central procurement is required to assure adequate supply.
(4) Where contracts for production quantities are necessary to secure timely deliveries and advantageous prices.
(5) Where the quantity is large enough to assure lowest transportation costs or, conversely, where transportation costs for small quantity redistribution are so excessive that it is not feasible to store and issue the items.
The following criteria shall govern in determining whether an item can be most advantageously supplied through the medium of indefinite quantity requirement contracts covering specific periods and providing for delivery to use points as needs arise:
(a) The item shall be such a character that—
(1) Handling on a storage and issue basis is not economically sound, under the criteria prescribed in § 101-25.101-2;
(2) Rate of use and frequency of ordering at use points is estimated to be sufficient to warrant the making of indefinite quantity requirement contracts;
(3) It is either not feasible to forecast definite requirements for delivery to specific use points (as in the case of new items initially being introduced into a supply system), or no advantage accrues doing so; and
(b) Industry distribution facilities are adequate properly to serve the use points involved; and
(c) Conditions exist where any of the following factors requires the maintaining of indefinite quantity requirements contracts—
(1) Advantage to the Government is greater than would be secured by definite quantity procurements by individual offices or agencies (the determining consideration being one of overall economy to the Government, rather than one of direct comparison of unit prices of individual items obtainable through other methods of supply); or no known procurement economies would be effected but the requirements of offices of agencies can best be served by indefinite quantity requirements contracts.
(2) Acute competitive bidding problems exist because of highly technical matters which can best be met on a centralized contracting basis.
(3) The item is proprietary or so complex in design, function, or operation as to be noncompetitive and procurement can best be performed on a centralized contracting basis.
The following criteria shall govern in determining whether an item should be supplied through local purchase:
(a) Urgency of need requires local purchase to assure prompt delivery;
(b) The items are perishable or subject to rapid deterioration which will not permit delay incident to shipment from distant points;
(c) The local purchase is within applicable limitation established by the agency head; or
(d) Local purchase will produce the greatest economy to the Government.
Policies and methods governing executive agencies in exercising the authority granted under section 201(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 481(c)), are prescribed in part 101-46.
Federal agencies in a position to receive promotional materials, trading stamps, or bonus goods shall establish internal procedures for the receipt and disposition of these gratuities in accordance with § 101-25.103. The procedures shall provide for a minimum of administrative and accounting controls.
When contracts contain a price reduction clause, any method (such as trading stamps or bonus goods) by which the price of a commodity or service is effectively reduced shall constitute a price reduction. Temporary or promotional price reductions are to be made available to contracting officers under the same terms and conditions as to other customers. Procuring activities, however, rather than accept trading stamps and bonus goods, shall attempt to deduct the cost of such items from the contract price. If obtaining such a price reduction is not possible, the contracting officer shall document the contract file to that effect and dispose of the items as provided in § 101-25.103.4.
(a) Agencies shall, through the lowest appropriate activity, arrange for transfer of promotional materials, trading stamps, or bonus goods, without reimbursement in accordance with internal agency procedures to a nearby Federal hospital or similar institution operated, managed, or supervised by the Department of Defense (DOD) or the Veterans Administration (VA) when:
(1) The contract does not contain a price reduction clause, or
(2) The contractor refuses to grant a price reduction, and
(3) It is deemed practical and in the best interest of the Government to accept such promotional items as a price reduction, and
(4) The procuring or receiving agency has no practical use for the promotional items.
(b) Before transferring promotional materials, trading stamps, or bonus goods to the above Federal institutions, it must be determined that the proposed recipient is prepared to receive and use such items. If these items cannot be used by the receiving agency or a medical facility, they should be disposed of in accordance with 41 CFR 101-43, 44 and 45.
Each executive agency shall make a determination as to whether the requirements of the agency can be met through the utilization of already owned items prior to the acquisition of new furniture or office machines. The acquisition of new items shall be limited to those requirements which are considered absolutely essential and shall not include upgrading to improve appearance, office decor, or status, or to satisfy the desire for the latest design or more expensive lines.
(a) Generally acquisition of additional furniture or office machines from any source will be authorized only under the following circumstances, limited to the least expensive lines which will meet the requirement (see § 101-26.408 of this chapter with respect to items such as typewriters under Federal Supply Schedule contracts), and the justification for the action shall be fully documented in the agency file:
(1) For essential requirements arising from quantitative increases in onboard employment which constitute the total requirement of any agency or major component thereof (e.g. bureau, service, office).
(2) For essential requirements arising from a need not related to onboard employment increases but which are determined necessary to avoid impairment of program efficiency.
(b) Each agency shall restrict replacement of furniture or office machines either to usable excess, rehabilitated, or the least expensive new lines available which will meet the requirement under the following circumstances, authority for which will meet the requirement under the following circumstances, authority for which shall be fully documented in the agency file:
(1) Where the agency determines that the item is not economically repairable.
(2) Where reductions in office space occupancy are accomplished through use of more convenient or smaller size furniture and the space economies thus achieved offset the cost of the furniture to be acquired.
Prior to the purchase of new office furniture and office machines, agencies shall fulfill needs insofar as practicable through redistribution, repair, or rehabilitation of already owned furniture and office machines. In furtherance of the use of rehabilitated furniture and office machines, agencies shall review inventories on a continuing basis to ascertain those items which can be economically rehabilitated and institute programs for their orderly repair and rehabilitation. All such items which are not required for immediate needs shall be reported as excess.
(a) The determination as to whether office machines are to be serviced by use of annual maintenance contracts or per-call arrangements shall be made in each case after comparison of the relative cost affecting specific types of equipment in a particular location and consideration of the factors set forth in paragraph (b) of this section.
(b) Prior to making the determination required by paragraph (a) of this section, consideration shall be given to:
(1) Standard of performance required;
(2) Degree of reliability needed;
(3) Environmental factors; i.e., dusty surroundings or other unfavorable conditions;
(4) Proximity to available repair facilities;
(5) Past experience with service facility; i.e., reputation, performance record, quality of work, etc.;
(6) Daily use (heavy or light) and operator's care of machine;
(7) Age and performance record of machine;
(8) Machine inventory in relation to operating needs; i.e., availability of reserve machine in case of breakdown;
(9) Number of machines; including overall frequency of repairs required;
(10) Security restrictions, if any; and
(11) Other pertinent factors.
Consumable and low value items in inventory (cupboard stocks are not considered inventory) are subject to accounting and inventory record controls in accordance with applicable provisions of law and the principles and standards prescribed by the General Accounting Office, 2 GAO 12.5. Normally, however, the systems of control for such property cease at the time of issuance from a warehouse or storeroom to the consumer.
(a) The guidelines set forth in this § 101-25.107 are considered minimum to assure proper use of consumable or low cost items by individuals, subsequent to issue from accountable records and termination of formal accountability. Consumable items, for the purpose of this section, are considered to include those items actually consumed in use (e.g., pads and pencils) and those items required in performance of duties but for which, primarily by reason of the low value involved, no formal accountability is maintained after issue, and are generally referred to as “expendable.”
(b) Approval of requisitions for replenishment of cupboard storeroom stocks should be restricted to officials at a responsible supervisory level to ensure that supply requirements are justified on the basis of essentiality and quantity. Where requisitions are not required, such as in obtaining items from GSA customer supply centers, informal “shopping lists” should be approved at the same level.
(c) Adequate safeguards and controls should be established to assure that issues of expendable supplies are made for official use only. In appropriate situations, this will include identification of individuals to whom expendable supplies have been issued. Experience has indicated, also, that certain items of expendables should not be displayed either at seasonal periods of the year or on a permanent basis.
(d) The items listed below have from experience proven to be personally attractive and particularly susceptible to being used for other than official duties. Agencies should give special attention to these and any other consumable or low cost items when issues are excessive when compared with normal program needs.
Subscriptions for periodicals, newspapers, and other publications for which it is known in advance that a continuing requirement exists should be for multiple years rather than for a single year where such method is advantageous for the purpose of economy or otherwise. Where various bureaus or offices in the same agency are subscribing to the same publication, consideration shall be given to consolidating these requirements, to the extent practical, on an agency-wide basis and on a multiyear basis. Payment covering issues to be delivered during the entire subscription period may be made in advance from currently available appropriations (31 U.S.C. 530a).
(a) This section prescribes controls for use by Federal agencies in managing laboratory and research equipment in Federal laboratories. Agencies may establish such additional controls as are appropriate to increase the use of already-owned equipment instead of procuring similar equipment.
(b) The term Federal laboratory, as used in this section, means any laboratory or laboratory facility in any Government-owned or -leased building which is equipped and/or used for scientific research, testing, or analysis, except clinical laboratories operating in direct support of Federal health care programs. To the extent practicable, agencies should observe the provisions of this section with regard to commercial laboratories and laboratory facilities which operate under contract with the Government and use Government-furnished equipment.
(a) The provisions of this § 101-25.109-1 apply to all Federal laboratories regardless of size.
(b) Inspection tours of Federal laboratories shall be conducted on a scheduled basis, annually, if feasible, but no less than every 2 years, for the purpose of identifying idle and unneeded laboratory and research equipment. Following each tour, a report of findings shall be prepared by the inspection team and, as determined by the agency head or his designee, submitted to the head of the laboratory or to a higher agency official having laboratories management responsibility. Equipment identified by the inspection team as idle or unneeded shall be reassigned as needed within the laboratory, placed in an equipment pool, or declared excess and made available to other agencies in accordance with part 101-43.
(c) Laboratory inspection teams shall be comprised of senior program management, property management, and scientific personnel who are familiar with the plans and programs of the laboratory(ies) and who have a knowledge of laboratory and research equipment utilization. As determined by the agency head or his designee, members of an inspection team shall be appointed by either the head of the laboratory or a higher agency official having laboratories management responsibility.
(d) The agency head or his designee shall ensure compliance by responsible personnel with the requirements of this § 101-25.109-1 and shall require that periodic independent reviews of walk-through procedures employed in Federal laboratories under his control be conducted to determine their effectiveness and to effect modifications as appropriate.
(a) The provisions of this § 101-25.109-2 apply to Federal laboratories which occupy an area of 10,000 square feet or more and employ 25 or more technical or scientific personnel.
(b) Equipment pools shall be established in Federal laboratories so that laboratory and research equipment can be shared or allocated on a temporary basis to laboratory activities and individuals whose average use does not warrant the assignment of the equipment on a permanent basis. In determining the number and location of equipment pools, consideration shall be given to economy of operation, mobility of equipment, accessibility to users, frequency of use of the equipment, and impact on research programs. Pooling operations should begin expeditiously, within 120 days, if feasible, following decisions regarding the number and location of pools. If it is determined that an equipment pool would not be practical or economical or for any other reason is not needed at a particular laboratory, a written report supporting that determination shall be submitted to the agency head or his designee. Federal laboratories which do not meet the size and staffing criteria in § 101-25.109-2(a) should also establish equipment pools whenever feasible; however, these facilities need not submit written reports regarding determinations not to establish pools.
(c) Where the establishment of a physical pool would be economically unfeasible due to excessive transportation and handling costs, limited personnel resources, or limited space, pooling may be accomplished by means of equipment listings. Consideration should be given to the establishment of a laboratory advisory committee consisting of technical and management personnel to determine the types of equipment to be shared or pooled and to identify equipment that is no longer required.
(1) Equipment pools may also be used to fill requests for temporary replacements while permanently assigned equipment is being repaired or to provide equipment for new laboratories pending acquisition of permanent equipment.
(2) Although specific pieces of laboratory equipment may not be available for assignment to equipment pools, they may be available for sharing or loan. Information concerning the availability of this equipment can be maintained at a central location such as the equipment pools.
(d) Unless determined unnecessary by the agency head or his designee, each Federal laboratory operating equipment pools shall prepare and submit to the agency head or his designee an annual report concerning the use and effectiveness of equipment pooling.
(e) The agency head or his designee shall ensure compliance by responsible personnel with the provisions of this § 101-25.109-2 and shall require that periodic independent reviews of equipment pool operations in Federal laboratories under his control be conducted to determine their effectiveness and to effect modifications as appropriate.
The regulations issued by the Department of Transportation in 49 CFR part 574, Tire Identification and Recordkeeping, require that tire manufacturers maintain or have maintained for them the name and address of tire purchasers, the identification number of each tire sold, and the name and address of the tire seller (or other means by which the manufacturer can identify the tire seller). In addition, distributors and dealers are required to furnish such data to manufacturers in connection with purchases made directly from them. GSA provides support to the Federal Government for tires, and therefore has prescribed the following procedures for tires purchased from or through GSA supply sources.
When tire manufacturers ship tires direct against orders placed under Federal Supply Schedules, the tire manufacturer will record the name and address of the purchaser and the identification numbers of the tires involved.
The tire identifications and recordkeeping regulations issued by the Department of Transportation require each motor vehicle manufacturer or his designee to maintain a record of tires on or in each vehicle shipped by him together with the name and address of the first purchaser.
The effectiveness of the tire identification and recordkeeping regulations depends on the active support and cooperation of all agencies to ensure that tires subject to a recall program are not to continue in service thereby endangering the lives of the occupants of the vehicle. Therefore, agencies should establish procedures for promptly identifying and locating all tires whether in storage or on vehicles so that advice from GSA, the tire manufacturer, or the vehicle manufacturer may be acted upon expeditiously.
(a) From time to time, Congress enacts legislation pertaining to the protection and enhancement of the Nation's environment; e.g., the National Environmental Policy Act of 1969 (42 U.S.C. 4321). The objective of such legislation is, among other things, the improvement of the relationship between people and their environment and the lessening of hazards affecting their health and safety. It is the policy of the General Services Administration to appropriately implement the various provisions of these Acts of Congress as fully as statutory authority permits in support of the national policy.
(b) With respect to the procurement, management, and disposal of personal property, the implementation of national environmental policy is provided through amendments to the regulations of GSA, changes to Federal specifications and standards documents, as appropriate, and other actions as may be required when expediency is of prime importance. Further, the Federal regulatory agencies have imposed restrictions applicable to the procurement, use, and disposal of items supplied through the Federal supply system that are known to contain components or possess qualities that have an adverse impact on the environment or that result in creating unsafe or unhealthy working conditions. Each agency, therefore, shall take action as necessary to ensure that the objectives and directives of the National Environmental Policy Act, other environmental statutes, and applicable regulations are met; especially the directive that environmental concerns, effects, and values shall be given appropriate consideration with economic and technical issues in decisionmaking. Action should include a continuing review of the
(a) Agency officials responsible for procurement, management, and disposal of personal property and nonpersonal services shall ensure that pertinent procurement and property management documents reflect the policy set forth in paragraph (b) of this section, which has been established pursuant to Public Law 94-163, Energy Policy and Conservation Act.
(b) With respect to the procurement or lease of personal property or nonpersonal services, which in operation consume energy or contribute to the conservation of energy, executive agencies shall promote energy conservation and energy efficiency by being responsive to the energy efficiency and/or conservation standards or goals prescribed by the U.S. Government.
Under the provisions of 40 U.S.C. 487, the General Services Administration will perform surveys and/or reviews of Government property and property management practices of executive agencies. These surveys or reviews will be conducted by the Federal Supply Service in connection with regular surveys and studies of agency supply management practices or when providing assistance in the development of agency property accounting systems. Written reports of findings and recommendations will be provided to agency heads.
(a) This subpart prescribes the basic policy for interagency purchase assignments within the executive branch of the Government. It is directly applicable to executive agencies and concerns other Federal agencies in their purchasing from, through, or under contracts made by executive agencies.
(b) The term purchase assignment as used in this subpart shall normally be considered to include performance of the following functions:
(1) Arranging with requiring agencies for phased submission of requirements and procurement requisitions.
(2) Soliciting and analyzing bids and negotiating, awarding, and executing contracts.
(3) General contract administration.
(4) Arranging for inspection and delivery.
(5) Promotion of a maximum practicable degree of standardization in specifications and establishment of Federal Specifications, when possible, in accordance with applicable regulations.
(c) Notice of purchase assignments and applicable delegations of authority, made under the provisions of this subpart 101-25.2, shall be furnished to the General Accounting Office by GSA.
With their consent or upon direction of the President, executive agencies will be designated and authorized by the Administrator of General Services exclusively, or with specified limited exceptions, to make purchases and contracts on a continuing basis for items or item groups of articles and services for the executive branch of the Government, after due consideration of the following factors, weighted as appropriate:
(a) Current or potential predominant use or consumption by a given agency.
(b) Availability of funds to carry out the assignment on a Government-wide basis or with limited exceptions.
(c) Specialized personnel, or the nucleus of such personnel, regularly employed by the agency, such as scientific, research, and operating technicians, especially qualified or experienced in specification writing, buying, inspecting, testing, using, installing, or operating a particular item or group of items.
(d) Custodianship and operation of special facilities such as research and testing laboratories and inspection or testing stations and devices.
(e) Actual or potential qualifications and experience of agency purchasing and contracting officials and their operating units with due regard to adequacy of staff.
(f) Past experience of the agency in performing services to other agencies on an informal or joint cooperative basis.
(g) Relations of the agency with the industry involved.
(h) Physical proximity of the agency purchasing office or offices to the requirement-compiling elements of the principal using agencies.
(i) Physical location of the agency purchasing office or offices in relation to market areas.
(j) Physical proximity of the agency purchasing offices in relation to engineering or design offices, in the interest of speed in processing modifications in design and specifications, and also reviewing bids for specifications compliance.
(k) Relative interest of agency heads in receiving the purchase assignment and specific requests of agency heads to do the buying of a given item or group of items on a Government-wide basis.
GSA will exclusively, or with specified limited exceptions, make purchases and contracts on a continuing basis for articles and services for the executive branch of the Government in the interest of lower prices, improved quality, and service or standardization when:
(a) The item or item groups of articles and services are items of “common-use” which are defined as items of standard commercial production or items covered by Federal Specifications commonly used by both civilian and military activities, or by two or more civilian activities, and not requiring such substantial alterations to adapt them to military or other particular application as to render inclusion in a centralized purchasing program impracticable; or
(b) A number of agencies, representing the majority users according to dollar volume, request GSA to make purchases and contracts exclusively for a given item or item groups of articles and services even though not “common-use” items as defined in § 101-25.203(a); and
(c) GSA is best equipped to do the buying based upon the factors listed in § 101-25.202, or must of necessity act as the central purchasing office when other agencies more appropriately suited to make central purchases do not do so and are not so directed by the President; and
(d) The head of another executive agency has not been delegated authority by the Administrator of General Services exclusively, or with specified limited exceptions, to make purchases and contracts for prescribed items or item groups of articles and services for the executive branch of the Government in accordance with §§ 101-25.202 and 101-25.204.
(e) GSA has issued appropriate regulations, or a Federal Supply Schedule, specifically designating the item or item groups of articles or services that fall within paragraphs (a), (b), and (c) of this § 101-25.203 that are thereafter to be purchased exclusively for all executive agencies, or with specified limited exceptions, by GSA.
Designated executive agencies will exclusively, or with specified limited exceptions, make purchases and contracts on a continuing basis for items or item groups of articles and services for the executive branch of the Government in the interest of lower prices, improved quality, and service or standardization when:
(a) The Administrator of General Services has determined, based upon the factors listed in § 101-25.202, that a selected executive agency is best equipped to perform certain purchasing and contracting functions, and the Administrator of General Services has issued appropriate regulations designating the categories of articles or services complying with paragraphs (a), (b), and (c) of § 101-25.203 that are to be purchased exclusively by the named executive agency under authority delegated by the Administrator of General Services; and
(b) The head of the designated executive agency has issued appropriate instructions, or a Federal Supply Schedule, under authority as delegated by and in the form approved by the Administrator, specifically designating the item or item groups of articles or services that are thereafter to be purchased exclusively for all executive agencies, or with specified limited exceptions, by the designated executive agency.
(a) Upon request, GSA will make purchases and contracts for any of the items or item groups of articles or services authorized to be purchased independently by executive agencies. GSA will also arrange, on a basis mutually agreeable, with any executive agency to perform its purchase and contracting functions on a continuing basis, if requested in writing to do so by the agency head, provided the arrangements agreed upon will result in lowered cost or improved service either to the individual agency or to the Government as a whole.
(b) In those instances where lowered cost or improved service, either to an individual agency or to the Government as a whole will result, GSA will arrange, on a basis mutually agreeable to the agencies involved, to assign all or a portion of the purchase and contracting functions of one executive agency to another executive agency on a continuing basis.
Items or groups of items of articles or services may be purchased independently by executive agencies, in accordance with regulations of GSA otherwise applicable, when:
(a) Not otherwise prescribed in current regulations, or included in mandatory Federal Supply Schedules, issued by GSA or by another executive agency designated by the Administrator of General Services.
(b) For emergency requirements when time does not permit purchasing through the authorized central purchasing agency. A record shall be maintained of such transactions and be made available to the responsible central purchasing agency upon request.
(c) By consultation between GSA and agencies concerned, it is determined that interagency purchase assignment would adversely affect the national security or military operations.
(d) The purchases cannot be publicly disclosed in the interest of national security.
(a) This subpart prescribes minimum use standards for certain Government-owned personal property which shall be applied by all executive agencies. Additional criteria above these minimum standards shall be established by each executive agency, limiting its property to the minimum requirements necessary for the efficient functioning of the particular office concerned. This subpart does not apply to automatic data processing equipment (ADPE) which is covered in the Federal Information Resources Management Regulation (FIRMR) (41 CFR Chapter 201).
(b) Additional use standards should be established by all executive agencies for other Government-owned property under their control whenever use standards will effect economy and efficiency in the use of such property.
(c) All items of property, determined to be excess to the needs of an agency as a result of the application of use standards, shall be promptly reported in accordance with part 101-43.
(a) Each executive agency shall establish criteria for the use of office furniture, furnishings, and equipment. Such criteria shall be in consonance with the provisions of § 101-25.104 pertaining to office furniture and office machines and shall be limited to the minimum essential requirements as established by the agency head for authorized functions and programs which will, beyond a reasonable doubt, be in operation within the following 6 months.
(b) In developing such criteria, a distinction shall be made between the requirements of organizational elements concerned with purely administrative functions, and those of a technical, scientific, or specialized nature.
(c) Items of office equipment, used only occasionally, should be pooled within an agency and made available to activities of the agency when and as necessary.
Executive agencies shall make every effort to effect maximum use of filing cabinets and to limit the purchase of new equipment. Filing cabinets should be replaced only in accordance with the standards in subpart 101-25.4. Maximum utilization of equipment should be obtained by:
(a) Disposing of all records that have been authorized for disposition by the Congress or, where such authorization has not been obtained, through the preparation and obtaining of authorized disposal schedules with the assistance of the National Archives and Records Administration.
(b) Removing office supplies, publications, and other nonrecord material from filing cabinets to more suitable storage equipment, except where the quantity of such material is small (as a rule, less than half a cabinet).
(c) Transferring to Federal Records Centers or approved agency records centers (to the extent that facilities are made available) inactive records not needed in daily business but not yet ready for disposal, when filing equipment can be released by such action.
(d) Shifting less active files, not transferable to approved records centers, to fiberboard storage boxes, using filing cabinets only when files are constantly used.
(e) Using filing cabinets with locks only when required by special needs that cannot be satisfied less expensively.
(f) Using letter-size filing cabinets instead of legal-size whenever possible.
(g) Using 5-drawer filing cabinets whenever available in lieu of 4-drawer cabinets.
(a) Carpeting is authorized for use where it can be justified over other types of floor covering on the basis of cost, safety, insulation, acoustical control, the degree of interior decoration required, or the need to maintain an environment commensurate with the purpose for which the space is allocated.
(b) In connection with new construction or alteration of space, if it is known that the area will eventually require carpeting, then resilient floor covering should be omitted and the carpeting installed initially.
Draperies are authorized for use where justified over other types of window coverings on the basis of cost, insulation, acoustical control, or maintenance of an environment commensurate with the purpose for which the space is allocated. Determining whether the use of draperies is justified is a responsibility of the agency occupying the building or space involved after consultation with the agency operating or managing the building. Authorized draperies shall be of non-combustible or flame-resistant fabric as required in § 101-20.105-1.
This subpart prescribes minimum replacement standards to be used by executive agencies desiring to replace specified types of items indicated in this subpart. Executive agencies shall retain items which are in usable workable condition even though the standard permits replacement, provided the item can continue to be used or operated without excessive maintenance cost or substantial reduction in trade-in value.
Replacement of motor vehicles shall be in accordance with the standards prescribed in § 101-38.402.
Furniture (office, household and quarters, and institutional) shall not be replaced unless the estimated cost of repair or rehabilitation (based on GSA term contracts), including any transportation expense, exceeds at least 75 percent of the cost of a new item of the same type and class (based on prices as shown in the current edition of the GSA Supply Catalog, applicable Federal Supply Schedules, or the lowest available market price). An exception is authorized in those unusual situations in which rehabilitation of the furniture at 75 percent or less of the cost of a new item would not extend its useful life for a period compatible with the cost of rehabilitation as determined by the agency head or his designee.
Nothwithstanding the provisions in § 101-25.404, agencies shall limit acquisition of new office furniture to essential requirements as provided in § 101-25.104. Replacement of correspondence filing cabinets will be governed by the provisions of § 101-26.308.
(a) Materials handling equipment will not be replaced unless the estimated cost of necessary one-time repair or reconditioning of each piece of equipment exceeds, at lowest available cost, the applicable percentage of acquisition cost as shown in column 3 of the following table. Equipment eligible for replacement under the criteria established by this standard may be repaired provided the expected economical life is extended commensurate with the expenditure required. Prior to incurring repair costs for equipment eligible for replacement, consideration should be given to the continuing availability of repair parts.
(1) Years in use shall be determined in accordance with the following:
(i) An operating month is considered equal to 100 operating hours. For materials handling equipment in storage, one month in storage equals 50 hours of operation.
(ii) The number of years in use is determined by dividing the number of operating months by 12. The fractional years in use resulting from this computation will be rounded to the nearest full year.
| Column 1—Type of unit | Column 2—Expected years of economical use | Column 3—Maximum allowable “one-time repair limits” as percentage of acquisition costs (years in use) | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | ||
| Fork truck (2000 pounds to 6000 pounds) | 8 | 50 | 45 | 40 | 30 | 25 | 20 | 15 | 10 | |||||||
| Fork truck (over 6000 pounds) | 10 | 50 | 45 | 40 | 35 | 30 | 25 | 20 | 15 | 10 | 10 | |||||
| Tractor | 8 | 50 | 45 | 40 | 30 | 25 | 20 | 15 | 10 | |||||||
| Crane | 12 | 50 | 50 | 45 | 45 | 40 | 40 | 35 | 30 | 25 | 20 | 15 | 10 | |||
| Platform truck | 8 | 50 | 45 | 40 | 30 | 25 | 20 | 15 | 10 | |||||||
| Straddle truck | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
| Fork truck (2000 pounds to 6000 pounds) | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
| Tractor | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
| Crane | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
| Platform truck | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
| Pallet truck | 15 | 50 | 50 | 50 | 45 | 45 | 45 | 40 | 40 | 35 | 35 | 30 | 25 | 20 | 15 | 10 |
(2) In using the maximum allowable one-time repair limits in column 3 of the table, costs such as parts, labor, and transportation incident to the repairs, are to be included in computing one-time repair costs. However, operating expenses such as fuels and lubricants, replacement tires and batteries, and antifreeze will not be included in the one-time repair cost estimate.
(b) Notwithstanding the limitations prescribed in § 101-25.405(a), materials handling equipment may be replaced under the following conditions provided a written justification supporting such replacement is approved by the agency head or an authorized designee. The justification shall be retained in the agency files.
(1) When the cumulative repair costs on a piece of equipment appears to be excessive as indicated by repair records. However, because an item of equipment accrues repair costs equal to the acquisition cost, it is not necessarily indicative of the current condition of the equipment. For example, a substantial repair expenditure included in the cumulative cost may actually have resulted in restoring the equipment to as good as new condition. While cumulative repair costs suggest an area for investigation, they should not be used as the principal ingredient in the repair/replacement decision making process.
(2) When repair parts are not available causing excessive equipment out-of-service time.
(3) When the equipment lacks essential features required in a particular task which is of a continuing nature and other suitable equipment is not readily available.
For guidance see Federal Acquisition Regulation Subpart 7.4 (48 CFR Subpart 7.4).
This part prescribes policies and procedures which govern the procurement of personal property and nonpersonal services by Federal agencies from or through GSA supply sources as established by law or other competent authority. The specific subparts or sections covering the subject matter involved prescribe the extent to which the sources of supply are to be used by Government agencies. Certain civilian and military commissaries and nonappropriated fund activities are also eligible to use GSA supply sources for their own use, not for resale, unless otherwise authorized by the individual Federal agency and concurred in by GSA. Policy and procedures pertaining to purchasing of property or contracting for services from commercial sources, without recourse to established GSA supply sources, are provided in the Federal Acquisition Regulation (FAR) (48 CFR chapter 1).
This subpart provides policy guidance of a general nature concerning procurement of lowest cost items obtainable from GSA supply sources; availability from GSA of special buying services in addition to the specified GSA procurement sources; criteria for placing end-of-year purchase documents with GSA and for insuring that end-of-year requisitions placed with GSA obligate the applicable fiscal year appropriation; and justification requirements to support negotiated procurement by GSA for other agencies.
GSA provides lines of similar items to meet particular end-use requirements under the GSA stock program, special order program (SOP) established source, and the Federal Supply Schedule program. Although these similar items may differ in terms of price, quality, and essential characteristics, they often can serve the same functional end-use procurement needs of the various ordering agencies. Therefore, in submitting requisitions or placing delivery orders for similar items obtainable from GSA sources, agencies shall utilize the source from which the lowest cost item can be obtained which will adequately serve the functional end-use purpose.
Waiver requests, when required by § 101-26.102-1 (special order program established source items), § 101-26.301 (GSA stock items) or § 101-26.401-3(b) (Federal Supply Schedule items), shall be submitted to the Commissioner, Federal Supply Service (F), General Services Administration, Washington, DC 20406. Waiver requests will be approved if considered justified. Approval of a waiver request does not constitute authority for a sole source procurement. Depending on the basis for the waiver request, each request shall contain the following information:
(a) Waiver requests based on determination that the GSA item is not of the requisite quality or will not serve the required functional end-use purpose of the agency requesting the waiver shall include the following information with each request:
(1) A complete description of the type of item needed to satisfy the requirement. Descriptive literature such as cuts, illustrations, drawings, and brochures which show the characteristics or construction of the type of item or an explanation of the operation should be furnished whenever possible.
(2) The item description and the stock number (NSN if possible) of the GSA item being compared. Inadequacies of the GSA items in performing the required functions.
(3) The quantity required. (If demand is recurrent, nonrecurrent, or unpredictable, so state.)
(4) The name and telephone number of the person to be contacted when questions arise concerning the request.
(5) Other pertinent data, when applicable.
(b) Waiver request based on determination that the GSA item can be purchased locally at a lower price shall include the following information with each request. However, the price alone of an item without other substantive consideration will not be considered sufficient justification to approve a waiver request.
(1) A complete description of the type of item needed to satisfy the requirement.
(2) The quantity required. (If demand is recurrent, nonrecurrent, or unpredictable, so state.)
(3) The destination of item to be delivered.
(4) The name and address of source.
(5) A price comparison with the GSA item, including the NSN of the GSA item. Cost comparisons shall include the agency administrative cost to effect the local purchase.
(6) The name and telephone number of the person to be contacted when questions arise concerning the request.
(7) Other pertinent data, when applicable.
(c) When the item is a Standard or optional form available from GSA stock, the provisions of § 101-26.302 apply.
(d) Agencies shall not initiate action to procure similar items from non-GSA sources until a request for a waiver has been requested from and approved by GSA. The fact that action to procure a similar item has been initiated will not influence GSA action on a request for waiver.
(e) Waivers are not required for items or services procured in accordance with the policy set forth in § 101-26.100-1 relating to the acquisition of the lowest cost item from GSA sources, § 101-26.401-4(f) relating to the purchase of products that are available at prices lower than the prices of identical products provided by multiple award Federal Supply Schedule contracts, or when an urgent requirement exists in accordance with FAR 6.302-2 (48 CFR 6.302-2).
Through its procurement sources and programs GSA provides for certain types of items and services which are covered by warranties. Such warranties allow ordering activities additional time after acceptance within which to assert a right to correct certain deficiencies in supplies or services furnished. The additional time period and the specific corrective actions for which the contractor is responsible are usually stated in the warranty. Items and services subject to warranties are normally identified by a warranty marking or notice. Such marking or notice will state that a warranty exists, its extent of coverage, its duration, and whom to notify concerning defects. Using activities shall take the following actions when items or services (except for automotive vehicles and components which are subject to the provisions of § 101-26.501-6) covered by warranty provisions are found to be defective during the warranty period.
(a) Activities shall attempt to resolve all complaints where a warranty is involved. If the contractor replaces the item or corrects the deficiency, a Standard Form (SF) 368, Product Quality Deficiency Report, in duplicate, shall be sent to the GSA Discrepancy Reports Center (6FR), 1500 East Bannister Road, Kansas City, MO 64131-3088. The resolution of the case should be clearly stated in the text of the SF 368. This information will be maintained as a quality history file for use in future procurements.
(b) If the contractor refuses to correct, or fails to replace, a defective item or an aspect of service under the warranty, an SF 368, in duplicate, along with copies of all pertinent correspondence, shall be submitted to the contracting officer in the appropriate GSA commodity center for necessary action. The address of the contracting officer is contained in the contract/purchase order, except for schedule items where the address is shown in the Federal Supply Schedule.
To the fullest extent practicable, agencies shall utilize inventories in long supply, as prescribed in subpart 101-27.3, and excess personal property, as prescribed in part 101-43, as a first source of supply in fulfilling their requirements.
The special buying services of GSA are performed through the GSA special order program (SOP). The SOP allows an agency to obtain items not included in either the GSA stock or Federal Supply Schedule program. All executive agencies within the United States (including Hawaii and Alaska), in order to maximize the use of the Government's centralized supply system, shall request SOP items by submitting requisitions for GSA centrally managed items to GSA. GSA will process all requisitions for SOP items, regardless of total line item value, from activities electing to purchase from GSA. If an agency determines that alternative sources are more favorable, procurement from other sources is authorized: Provided, that the dollar thresholds and criteria outlined in § 101-26.301(b)(1) through (3) are followed.
Military activities shall utilize the buying services of GSA when:
(a) GSA has agreed with the Secretary of Defense, or with the Secretary of a military department in connection with the requirements of that department, to perform such buying services; and
(b) The items involved are not properly obtainable from GSA stock or Federal Supply Schedules.
When GSA performs the purchasing services for other agencies or activities as contemplated by this § 101-26.102-3, calculation of the delivery dates required for the items involved must be based on the procurement leadtimes illustrated in the GSA publication, FEDSTRIP Operating Guide. These leadtimes are based on the normal time required after receipt of agency requisitions by GSA to effect delivery to destinations within the 50 States.
(a) Time required to obtain any additional essential information from the requisitioning office for use in issuing a solicitation for bids or offers is not included in the leadtimes.
(b) If unusually large quantities or complex items are required, leadtime adjustments should be made to reflect the specific requirement. As an example, standard furniture items can usually be delivered in less than 90 days after receipt of the requisition. However, for large quantity or complex orders requiring a definite quantity procurement, delivery times may range from 4 to 6 months. Footnotes relating to classes where this is a frequent occurrence are shown in the procurement leadtime table illustrated in the FEDSTRIP Operating Guide.
(c) The procurement leadtime table illustrated in the FEDSTRIP Operating Guide does not apply to public exigency or other high priority requisitions; however, it should be used as a guide to establish realistic required delivery dates for such requisitions.
Policies and procedures covering payment to GSA contractors for supplies and services furnished by GSA to Government agencies are in subpart 101-2.1.
To obtain maximum benefit from Government funds available for procurement of personal property, each executive agency shall:
(a) Insure that personal property currently on hand is being utilized to the fullest extent practical and provide supporting justification prior to effecting new procurement for similar type property. (When the proposed procurement is for similar items from non-GSA sources, the provisions of § 101-26.100-2 apply.)
(b) Procure the minimum quantity and quality of property which is required to support the mission of the agency and to satisfy the function for which the property is required.
(c) Limit procurement of different varieties, types, sizes, colors, etc., of required items to those essential in satisfying the functional end-use purpose. To this end the quantity, quality, and variety of personal property required to adequately perform the end-use function should be determined prior to initiation of procurement processes.
Government funds may be expended for pictures, objects of art, plants, or flowers (both artificial and real), or any other similar type items when such items are included in a plan for the decoration of Federal buildings approved by the agency responsible for the design and construction. Determinations as to the need for purchasing such items for use in space assigned to any agency are judgments reserved to the agency. Determinations with respect to public space such as corridors and lobbies are reserved to the agency responsible for operation of the building. Except as otherwise authorized by law, Government funds shall not be expended for pictures, objects of art, plants, flowers (both artificial and real), or any other similar type items intended solely for the personal convenience or to satisfy the personal desire of an official or employee. These items fall into the category of “luxury items” since they do not contribute to the fulfillment of missions normally assigned to Federal agencies.
(a) Purchase documents for supplies or services submitted to GSA at or near the close of a fiscal year shall reflect actual agency requirements and shall not be used as a means of exhausting appropriation balances.
(b) Under the FEDSTRIP/MILSTRIP systems, the requisitions submitted to GSA are not required to reflect the applicable appropriation or fiscal year funds to be charged. The fund code entry on the requisition simply indicates to the supply source (GSA) that funds are available to pay the charge, thereby providing authority for the release of material and subsequent billing. Requisitions received by GSA in purchase authority format are normally converted to FEDSTRIP/MILSTRIP documentation so that processing can be accomplished expeditiously through a uniform system based on the use of automated equipment. Accordingly, primary responsibility rests with the ordering activity for ensuring that requisitions intended to be chargeable to appropriations expiring the last day of the fiscal year are submitted in sufficient time for GSA to consummate the necessary action before the end of the fiscal year. Requisitions submitted on or before the last day of the fiscal year may be chargeable to appropriations expiring on that date provided the ordering agency is required by law or GSA regulation to use GSA supply sources. When the ordering agency is not required to use GSA sources, requisitions for GSA stock items may be recorded as obligations provided the items are intended to meet a bona fide need of the fiscal year in which the need arises or to replace stock used in that fiscal year; requests for other than GSA stock items are to be recorded as obligations at the time GSA awards a contract for the required items. In the latter case, GSA procurement leadtimes illustrated in the GSA publication, FEDSTRIP Operating Guide, should be used as a guide for timely submission of these requisitions. The leadtimes referred to relate to the number of days between submission of a requisition and actual delivery of the items involved. While this may furnish some guidance to requisitioners, there is no direct relationship between those leadtimes and the time it takes for GSA to make an award of a contract.
(c) End-of-year submission of requisitions which require GSA to award a contract not later than the last day of the fiscal year in order to obligate the appropriation or funds of the ordering agency will be annotated to indicate that GSA procurement of the requested items must be accomplished not later than the last day of the fiscal year in which the requisitions are submitted. For example, a FEDSTRIP/MILSTRIP requisition should be prepared to include Document Identifier Code A0E or A05 and reflect the annotation in the “Remarks” block. With this information GSA will attempt to complete procurement action before the end of the fiscal year. When a requistion is received too late to permit GSA to complete procurement action before the end of the fiscal year, the requisitioning activity will be so notified and requested to furnish instructions regarding the action to be taken. Based on these instructions, procurement action will be taken or the requisition will be canceled and returned to the ordering activity.
When a requisition submitted by an agency to GSA requires procurement without providing for full and open competition, the agency submitting the requisition will be so notified and required to furnish specific information to assist GSA in preparing the required written justification. The GSA contracting officer will defer procurement action pending receipt of the requested information. If the requisitioning agency has prior knowledge that a requisition will require procurement without providing for full and open competition (e.g., sole source acquisition), sufficient information shall be included with the requisition to allow GSA to justify the procurement. Specifically, the information must include the following:
(a) The specific needs to be satisfied in terms of identified tasks or work processes;
(b) The requirements that generate the specific needs;
(c) The characteristics of the designated item that enable it to satisfy the specific needs, if a specific source(s) is requested;
(d) The identification of other items evaluated and, for each, a statement of the characteristics (or lack thereof) which preclude their satisfying the specific needs, if a specific source(s) is requested;
(e) The citation of the applicable law, if any, authorizing other than full and open competition (see FAR 6.302 (48 CFR 6.302); and
(f) Any required certifications, pursuant to FAR 6.303-2(b) (48 CFR 6.303-2(b)), that supporting data is complete and accurate.
Full consideration shall be given to the consolidation of individual small volume requirements to enable the Government to benefit from lower prices normally obtainable through definite quantity contracts for larger volume procurements. This policy pertains to procurement from commercial sources either directly or through an intermediary agency and does not apply to GSA stock items or small volume requirements normally obtained from GSA customer supply centers. When it is practical, each agency shall establish procedures that will permit planned requirements consolidation on an agencywide basis. When it is impractical to plan requirements on an agencywide consolidated basis, the requirements consolidation effort may be limited to a bureau, to other agency segments, or to a program, if such limited consolidation will provide significant price advantages when procurement is effected on a volume basis. Requisitions for item requirements exceeding maximum order limitations in Federal Supply Schedule contracts shall be submitted to GSA in accordance with the applicable instructions in the respective schedules. Special buying services desired by agencies for procurement of other consolidated item requirements shall be requested from GSA in accordance with § 101-26.102.
This subpart prescribes a uniform requisitioning and issue system for use in obtaining supplies and equipment from GSA, Department of Defense, and Veterans Administration sources.
This requisitioning and issue system is identified as the Federal Standard Requisitioning and Issue Procedures (FEDSTRIP) and is similar to and compatible with the Military Standard Requisitioning and Issue Procedures (MILSTRIP). The FEDSTRIP system provides GSA and other supply sources the means to automate the processing of requisitions. Detailed instructions required to implement FEDSTRIP are contained in the GSA Handbook, FEDSTRIP Operating Guide (FPMR 101-26.2), which is issued and maintained by the Commissioner, Federal Supply Service, GSA.
The FEDSTRIP system shall be used by civilian agencies to requisition any item from GSA or to requisition any specifically authorized item from Department of Defense (DOD). Requisitions to the Veterans Administration (VA) should be submitted on punched cards in FEDSTRIP format or typed on Standard Form 147, Order for Supplies or Services.
To obtain items through the FEDSTRIP system, each ordering activity is required to have an activity address code. The FEDSTRIP Operating Guide (FPMR 101-26.2) contains instructions to civilian agencies on requesting activity address codes. Once assigned, an activity address code allows an activity to order supplies under the FEDSTRIP system. Because there is a potential for abuse in the use of these codes, agencies shall establish stringent internal controls to ensure that the codes are used only by authorized personnel. It is imperative that all requests for activity address codes or deletions or address changes flow through a central contact point in the agency headquarters or regions where the need, purpose, and validity of the request can be verified. Agencies should send GSA the addresses of the contact points (mailing address: General Services Administration (FSR), Washington, DC 20406). GSA will only honor requests from the established points within the agency. GSA will periodically send a listing of current activity address codes and addresses to contact points for review.
Agency field activities should direct their questions regarding FEDSTRIP to the Federal Supply Service at each GSA regional office. The addresses of GSA regional offices are listed in each of the volumes of the GSA Supply Catalog. Agency headquarters activities requiring assistance may contact General Services Administration (FSR), Washington, DC 20406.
This subpart prescribes policy and procedures governing the procurement by agencies of items of supply stocked by GSA, including reporting and obtaining adjustments for overages, shortages, and damages and the issue of used, repaired, and rehabilitated items in serviceable condition.
All executive agencies within the United States (including Hawaii and Alaska), in order to maximize the use of the Government's centralized supply system, shall requisition GSA stock items in accordance with the following:
(a) When the requirement is for Standard and optional forms, an item produced by the Federal Prison Industries, Inc. (FPI), or an item listed in the procurement list published by the Committee for Purchase from the Blind and Other Severely Handicapped (NIB-NISH), the dollar thresholds and language indicated in paragraph (b) of this section are not applicable and acquisition of such items continues to be as set forth in the applicable sections of the Federal Acquisition Regulation, Federal Property Management Regulations and other appropriate regulations. In order to identify FPI/NIB-NISH items stocked by GSA, they are marked with an asterisk in the GSA Supply Catalog NSN index,
(b) GSA will process all requisitions for stock items, regardless of total line item value, from activities electing to purchase from GSA. If an agency determines that alternative sources are more favorable, the following guidelines shall apply. However, the price alone of an item without other substantive consideration will not be considered as sufficient justification to use alternative sources. (These guidelines also apply to the procurement of special order program (SOP) established source, see § 101-26.102-1.)
(1) When the total value of the line item requirement is less than $100, procurement from other sources is authorized.
(2) When the total value of the line item requirement is $100 or more, but less than $5,000, procurement from other sources is authorized: provided, that a written justification shall be prepared and placed in the purchase file stating that such action is judged to be in the best interest of the Government in terms of the combination of quality, timeliness, and cost that best meets the requirement. Cost comparisons shall include the agency administrative cost to effect a local purchase.
(3) For total line item requirements of $5,000 and over, agencies shall submit a requisition to GSA unless a waiver has been approved by GSA. Request for waivers shall be submitted in accordance with § 101-26.100-2.
(c) Agencies shall not divide requisitions to avoid higher threshold documentation requirements.
(d) In authorizing procurements in accordance with paragraph (b)(2) of this section, agencies shall reimburse GSA for any cost arising out of breach of a GSA contract, where sufficient justification is not documented in their procurement files.
(a) Agencies required to requisition, exclusively, items listed in the GSA Supply Catalog shall utilize such items in lieu of procuring similar items from other sources when the GSA items will adequately serve the required functional end-use purpose.
(b) When an agency determines that items available from GSA stock will not serve the required functional end-use purpose of the item proposed to be procured, a request to waive the requirement to use this source shall be submitted to GSA for consideration in accordance with the provisions of § 101-26.100-2.
Stock items returned to GSA under the provisions of subpart 101-27.5 will be reissued to all requisitioning activities without distinction between new, used, repaired, or rehabilitated items in serviceable condition. Requisitioning agencies will be billed for these items at the current GSA selling price.
Agencies shall obtain Standard and optional forms by requisitioning them from GSA (FSS) unless the forms have been approved by GSA (KMPS) to be stocked and distributed by the promulgating agency or to be reproduced locally. Assistance or information on the forms management program may be obtained by contacting GSA (KMPS), Washington, DC 20405. (See part 201-45, subpart 201-45.5 of this chapter.)
(a) For purposes of economy, existing stocks are depleted prior to issuance of revisions unless the promulgating agency determines previous editions unusable and obsolete.
(b) Forms or form assemblies which deviate from the standard and optional forms listed in the GSA Supply Catalog have restricted use and are not stocked. Agencies requiring such forms shall prepare and transmit a Standard Form 1, Printing and Binding Requisition, or Standard Form 1-C, Printing and Binding Requisition for Specialty Items, to the General Services Administration, Federal Supply Service (FCNI), Washington, DC 20406, for review and submission to GPO. Prior approval of GSA (KMPS) is required whenever the content or construction of a form is altered or modified. Requests for such exceptions may be obtained by submission of a SF 152, Requests for Clearance of a Standard or Optional Form or Exception, to GSA (KMPS), with appropriate justification.
(c) Certain standard forms are serially numbered and are to be accounted for to prevent possible fraudulent use. The General Accounting Office (GAO) requires accurate accountability records to be maintained for such items by applicable agencies. GSA forwards a receipt verification card with each shipment of accountable forms. The receiving agency is responsible for verifying receipt of the serially numbered forms in the shipment by returning the card to the address preprinted on the card. See § 101-41.308 of this chapter for information governing agency control and disposition of unused U.S. Government Bills of Lading (GBL's).
(d) Standard and optional forms which are excess to the needs of an agency shall be reported to GSA in the same manner as other excess personal property pursuant to part 101-43 of this chapter. Obsolete forms shall be disposed of under the provisions of part 101-45 of this chapter.
Generally, it is more advantageous to agencies if GSA backorders requisitions for out-of-stock items rather than cancels requisitions. Unless notified by agencies not to backorder a requisition, through FEDSTRIP advice codes 2C or 2J, a back order will be established. The agency will be notified of the estimated date that shipment will be made. Upon receipt of the status transaction, the agency shall determine if the estimated shipping date will meet its needs and, as appropriate: (a) Accept the back order, (b) request a suitable substitute item, or (c) request cancellation in accordance with § 101-26.309.
In supplying items requisitioned from GSA stock, GSA may substitute items with similar characteristics. Substitute items may be issued from new stock or from returned stock that is in serviceable condition (condition code A) as described in § 101-27.503-1. A notice of intent to substitute will be provided to the ordering activity only if the characteristics of the substitute item differ substantially from the characteristics of the item requisitioned. Ordering activities may prevent substitution by entering advice code 2B (do not substitute) or 2J (do not substitute or backorder) in cc 65-66 of requisitions.
(a) Orders shall be submitted in accordance with the instructions in the FEDSTRIP Operating Guide (FPMR 101-26.2).
(b) Orders in other than FEDSTRIP format shall be submitted:
(1) In original only when for shipment to destinations in the United States, including Hawaii but excluding Alaska.
(2) In accordance with applicable GSA/agency agreements when for shipment to Alaska or for export to destinations outside the United States.
(c) Sufficient funds should be reserved by the requisitioner to cover expenses incurred by GSA in export packing, marking, documentation, etc. GSA will assess a surcharge on all material ordered and delivered to customers in certain overseas areas. The surcharge is a percentage factor of the value of the material shipped. Information on the specific areas and the current percentage of surcharge is included in the GSA Handbook, Discrepancies or Deficiencies in GSA or DOD Shipments, Material, or Billings (FPMR 101-26.8). The surcharge is a percentage factor of the value of the material shipped. Information on the current percentage of surcharge may be obtained from the GSA regional office to which orders are submitted.
In preparing requisitions for GSA stock items, agencies shall follow schedules or cyclical plans for replenishment of stocks so as to reduce the number of repetitive requisitions required while adjusting ordering frequency to comply with the economic order quantity principle. (See § 101-27.102.)
(a) Transportation-type discrepancies shall be processed in accordance with the instructions in subpart 101-40.7 when the discrepancies are the fault of the carrier and occur while the shipments are in the possession of:
(1) International ocean or air carriers, regardless of who pays the transportation charges, except when shipment is on a through Government bill of lading (TGBL) or is made through the Defense Transportation System (DTS) (Discrepancies in shipments on a TGBL or which occur while in the DTS shall be reported as prescribed in subpart 101-26.8.); or
(2) Carriers within the continental United States, when other than GSA or DOD pays the transportation charges.
(b) Reporting discrepancies or deficiencies in material or shipments and processing requests for or documenting adjustments in billings from or directed by GSA activities shall be in accordance with the provisions of subpart 101-26.8.
Each agency head, after taking actions prescribed in § 101-25.302-2, shall determine agency requirements for filing cabinets. When additional filing cabinets are required, requisitions shall be submitted in FEDSTRIP format to the GSA region supporting the geographic area in which the requisitioning agency is located.
When an agency determines that material ordered from GSA is not required, GSA will accept requests for cancellation as long as the items ordered have not been shipped. However, since processing cancellations is costly and interferes with normal order processing, agencies are cautioned to use discretion in requesting cancellation of low dollar value orders. Cancellation of orders may be accomplished by agencies through written, telegraphic, or telephonic communication with the GSA regional office to which the order was sent. However, telephonic communication should be used whenever feasible to forestall shipment of material and subsequent billing by GSA. If material has been shipped, GSA will advise that cancellation cannot be effected and agency requests for return for credit will be processed under the provisions of §§ 101-26.310 and 101-26.311.
In accordance with the provisions of this § 101-26.310, GSA may authorize agencies to return for credit material that has been ordered in error by the agency. Material shipped in error by GSA is subject to the provisions of the GSA Handbook, Discrepancies or Deficiencies in GSA or DOD Shipments, Material, or Billings (FPMR 101-26.8). Credit for material ordered in error will be based on the selling price billed the agency at the time shipment was made to the agency, with the adjustment reflected in current or future billings. Material shall not be returned until appropriate documentation is received from GSA.
(a) The return of material by an agency, to correct ordering errors, may be authorized and later accepted by GSA: Provided,
(1) The value of the material exceeds $25 per line item based on the selling price billed the customer.
(2) Authorization to return is requested from the GSA Discrepancy Reports Center (6FRB), 1500 East Bannister Road, Kansas City, MO 64131 within 45 calendar days (60 calendar days for overseas points) after receipt of shipment. Requests should always contain a complete explanation of reason(s) for return of the material. Exceptions may be granted on a case-by-case basis when GSA is in need of the material and extenuating circumstances precluded earlier submission of the request.
(3) Each item is in “like-new” condition and is identified by a stock number in the current edition of the GSA Supply Catalog.
(4) Each item is identified with a specific purchase order or requisition number.
(5) The condition of the material is acceptable on inspection by GSA. When it is not acceptable, disposition, without credit, will be made by GSA. However, when the condition is attributable to carrier negligence, subsequent credit allowed by GSA will be reduced by the amount to be paid the agency by the carrier for damages incurred.
(6) The merchandise to be returned will not adversely affect the GSA nationwide inventory situation.
(7) The return transportation costs are not excessive in relation to the cost of the material.
(b) Transportation costs on material specifically authorized for return by a GSA regional office will be paid by the customer activity. Claims against carriers for discrepancies in shipment will also be the responsibility of the customer activity in accordance with the provisions of subpart 101-40.7. When appropriate, GSA will prepare initial documentation to support claim actions.
(a) At the request of the ordering agency, GSA may authorize diversion or return for credit of any shipment consigned to an overseas destination which, while en route, cannot be continued onward for any reason and for which the consignee or requisitioning agency cannot provide diversion instructions:
(b) Requests to GSA for disposition instructions shall be directed to the GSA office which made the shipment. Data provided by the agency shall include the original requisition document number, purchase order number (if any), supplementary addresses, and present location of the frustrated shipment. In addition, the agency should furnish the Government bill of lading number or commercial bill of lading reference, and the carrier's freight or waybill number.
(c) GSA may direct disposition of such material through any of the means listed below. Disposition instructions will include a determination by GSA as to the responsibility for payment of transportation costs.
(1) Shipment of material to another consignee.
(2) Temporary storage pending further instructions.
(3) Return to GSA stock.
(4) Disposal by agency.
(5) Disposition through other means if deemed to be in the best interest of the Government.
(d) GSA will provide required documentation to accomplish the desired action and will, if appropriate, initiate necessary adjustments in billing.
(e) Frustrated shipments involving other than GSA stock items will be treated in a manner similar to that prescribed in this § 101-26.311 on a case by case basis.
(a) This subpart prescribes policies and procedures relating to GSA procurement programs other than the GSA stock and the Federal supply schedule programs. Also excluded are the policies and procedures relating to the procurement of automatic data processing equipment and services set forth in part 101-36.
(b) The policies and procedures in this subpart 101-26.5 are applicable to executive agencies except as otherwise specifically indicated. Federal agencies other than executive agencies may participate in these programs and are encouraged to do so.
(a) It shall be the policy to procure commercially available motor vehicles, unless other vehicles are specifically required.
(b) New sedans, station wagons, and light trucks (other than those to be used for law enforcement or where other than standard vehicles are required) shall be procured as follows: Sedans, class IB-subcompact or II-compact; station wagons, class I-subcompact or class II compact vehicles, as described in Federal standard No. 122; and light trucks as defined in Federal standard Nos. 292 and 307. (Federal standard Nos. 122, 292, and 307 as used in this section mean the latest editions.)
Requisitions submitted to GSA for motor vehicles shall be in conformance with the requirements of subpart 101-38.1.
(1) Standard passenger vehicles as defined in Federal standard No. 122 are considered to be completely equipped for ordinary operation and are subject to the maximum statutory price limitation.
(2) Items (vehicles) included in Federal standard No. 122 other than those listed as standard (basic units) are considered to be equipped with additional systems and equipment for passenger vehicles.
(c) Requisitions submitted to GSA for the acquisition of new passenger vehicles and light trucks under 8500 GVWR (gross vehicle weight rating) shall be in conformance with Pub. L. 94-163 and Executive Order 12375.
(d) New trucks and buses shall be requisitioned in accordance with the provisions of this § 101-26.501 and the following:
(1) Light trucks shall be in accordance with Federal standard Nos. 292 and 307; and
(2) Medium and heavy trucks and buses, when not procured from standardized buying programs, shall be in accordance with the latest editions of Federal standard No. 794, Federal specification Nos. KKK-T-2107, 2108, 2109, 2110, 2111, and Federal specification No. KKK-B-1579. Standardized buying programs shall be based on these specifications as appropriate.
(e) Selection of additional systems or equipment in new vehicles shall be made by the requiring agency and shall be based on the need to provide for overall safety, efficiency, economy, and suitability of the vehicle for the purposes intended pursuant to § 101-38.104-2.
(1) The essentiality of such systems or equipment shall be weighed against the economic factors involved, the potential benefits to be derived therefrom, and the impact on the fuel consumption characteristics of the vehicle.
(2) Additional systems or equipment requested to be purchased by GSA will be construed to have been determined essential for the effective operation of the vehicle involved by the agency head or a designee. When systems or equipment other than those listed in Federal standards are requested, these systems or equipment shall be considered and treated as deviations under § 101-26.501-4(b).
Except as provided for the Department of Defense (DOD) in paragraph (a) of this section, each executive agency shall submit to GSA for procurement its orders for purchase in the United States of all new passenger motor vehicles (FSC 2310), trucks or truck tractors (FSC 2320), trailers (FSC 2330) van type (with payload of not less than 5,000 nor more than 50,000 pounds), and firetrucks and firefighting trailers (FSC 4210). Specifically included are sedans, station wagons, carryalls, ambulances, buses, and trucks, including trucks with specialized mounted equipment, truck chassis with special purpose bodies, and all van-type trailers (with payload of not less than 5,000 nor more than 50,000 pounds).
(a) DOD shall submit to GSA for procurement its orders for purchase in the United States for all non-tactical vehicles including, but not limited to, commercial-type passenger motor vehicles (FSC 2310), including buses, and trucks and truck tractors (FSC 2320).
(b) When it is determined by the ordering activity that requirements for passenger motor vehicles and trucks indicate the need for procurement by buying activities other than GSA, a request for waiver justifying the procurement shall be submitted in writing to the General Services Administration (FCA), Washington, DC 20406. GSA will notify agencies in writing whether a waiver has been granted. Justification may be based on the urgency of need or the fact that the vehicle has unique characteristics, such as special purpose body or equipment, requiring the agency personnel to closely supervise installation of the equipment by the contractor; e.g., when a medical van is to be equipped with Government- or contractor-supplied equipment. Requests for procurement through sources other than GSA will be handled on an individual basis provided full justification is submitted therefore.
(c) When it is determined by GSA that procurement of an individual agency requirement by GSA would offer no advantage over local purchase of the item, GSA may grant the ordering activity authority for local purchase. When such a determination is made, the order will be returned to the ordering agency with written authority for local purchase.
Wherever practical, requirements for motor vehicles will be satisfied under existing standardized buying programs (Indefinite Quantity, Requirements, Federal Supply Schedule contracts). Agencies not familiar with these programs, or seeking additional information about them, are encouraged to contact the GSA Automotive Commodity Center prior to submitting their orders.
(a) Requirements contracts are in place or anticipated to be in place for the following types of standard motor vehicles:
(1) Medium and heavy trucks:
(i) 4 × 2 and 6 × 4 cab-chassis, stake, van, dump, and truck-tractor; 19,000 to 60,000 pounds GVWR.
(ii) 4 × 4 and 6 × 4 cab-chassis, stake, dump, and truck-tractor; 26,000 to 52,000 pounds GVWR.
(iii) 1,200 and 2,000 gallon fuel servicing vehicles; and 2,000 gallon aircraft refueler.
(2) Ambulances (in accordance with Federal Specification No. KKK-A-1822): Type I, modular body on cab-chassis; Type II, van body with raised roof; Type III, modular body on van cutaway chassis.
(3) Buses and mini-buses, including school buses:
(i) 32 to 44 adult passenger; 48 to 66 school age passenger.
(ii) 12 to 28 adult passenger; 24 to 42 school age passenger.
(4) Sedans and station wagons (based on standardized, consolidated requirements).
(5) Certain types of light trucks (e.g., conventional carryall, maintenance telephone utility); requirements contracts are established to cover as many types of light trucks as feasible.
(b) Federal Supply Schedule contracts are available to cover certain special purpose motor vehicles, such as firefighting trucks, waste disposal trucks, and construction equipment.
(a) Except as noted in § 101-26.501(a) and where motor vehicle requirements can not be satisfied under the standardized buying programs described in § 101-26.501-2, GSA will continue to make consolidated procurements of all motor vehicle types each year to achieve maximum benefits and economies, as follows:
(1) Family buys—Large annual consolidated buys for sedans, station wagons, and standard light trucks, purchased in the aggregate by group to the extent practical. These procurements are designed to obtain the best market prices available and are normally definite quantity type with maximum option potential. It is anticipated that resulting contracts will remain in place from approximately mid-November to approximately May 1 (or end of model year closeout).
(2) Two (2) volume procurements each year for light trucks of the types covered by Federal standard Nos. 292 and 307, but not covered by standardized buying programs or family buys, as previously described. Requisitions to be included under these two procurements should reach the GSA Automotive Commodity Center by June 15 and December 1 respectively.
(3) Up to three (3) consolidated procurements for medium and heavy trucks and buses of the types covered by Federal standard No. 794, Federal specification Nos. KKK-T-2107, 2108, 2109, 2110, 2111, and Federal specification No. KKK-B-1579.
(b) Requirements not covered by Federal standards 122, 292, 307, or 794 shall conform with the provisions of § 101-26.501-4.
Orders for all motor vehicles shall be submitted on GSA Form 1781, Motor Vehicle Requisition, or DD Form 448, Military Interdepartmental Purchase Request (MIPR), to the General Services Administration, Automotive Commodity Center (FCA), Washington, DC 20406, and shall contain required FEDSTRIP data for mechanized processing. The Department of Defense shall ensure that appropriate MILSTRIP data are entered on DD Form 448.
(a) Requisitions covering vehicle types not included in Federal standard Nos. 122, 292, 307, or 794, in a military specification, or in an agency specification on file with GSA, shall contain complete descriptions of the vehicles required, the intended use of the vehicles, and terrain in which the vehicles will be used.
(b) Requisitions for vehicles within the category of Federal standard Nos. 122, 292, 307, or 794, but for which deviations from such standards are required, unless already waived by the Director, Automotive Commodity Center (FCA), Federal Supply Service, GSA, Washington, DC 20406, shall include with the requisition a justification supporting each deviation from the standards and shall contain a statement of the intended use of the vehicles, including a description of the terrain in which the vehicles will be used. Prior approval of deviations shall be indicated on the requisitions by citing the waiver authorization number.
(c) GSA Form 1781, Motor Vehicle Requisition, has been specifically designed for agency use to expedite ordering of all vehicles. Agencies are requested to use GSA Form 1781 as a single-line-item requisition for nonstandard as well as standard vehicles. When ordering standard vehicles, the appropriate standard item number for such vehicles equipped to meet specific operational needs may be selected from the applicable table in the Federal standards. Additional systems and equipment may be added by inserting in the “Option Codes” portion of the form the appropriate code for the selected items from the table of options in the standard. When ordering nonstandard vehicles or options, the instructions on the reverse of GSA Form 1781, properly completed, will satisfy the requirements regarding the submission of requisitions as set forth in paragraph (a) of this section.
(d) Each requisition shall indicate the appropriation fund code to be charged and must bear the original signature of an officer authorized to obligate cited funds.
(e) Separate requisitions shall be submitted for each vehicle type and consignee.
(a) Requisitions covering vehicle types included in Federal standard Nos. 122, 292, 307, 794, Federal specification Nos. KKK-T-2107, 2108, 2109, 2110, 2111, and Federal specification No. KKK-B-1579 will be procured either under a standardized buying program, as described in § 101-26.501-2, or a consolidated purchase program, as described in § 101-26.501-3, unless a statement is included justifying the need for delivery other than the delivery times indicated in this section. Requisitions containing a statement of justification will be handled on an emergency basis in accordance with § 101-26.501-5(b).
(b) Emergency requirements. Emergency requirements will receive special handling only when the requisitions are accompanied by adequate justification for individual purchase action. Every effort will be made to meet the delivery date specified in the requisition.
(c) Delivery time. Delivery times for motor vehicle requirements will range widely depending on method of purchase.
(1) Existing contracts. Delivery times for motor vehicle requirements submitted and placed against existing in-place contracts (family buy option, requirements contract or Federal Supply Schedule contract) will range from 60 to 150 days from date of purchase order.
(2) Volume consolidated procurements. Delivery times for motor vehicle requirements submitted for volume consolidated purchases will range from 210 to 330 days after solicitation consolidation date. Included in delivery time estimates are 90 to 105 days required for soliciting and receiving offers, 30 to 60 days for evaluation and award of contracts, 90 to 180 days from date of award for delivery of vehicles to destination (dealer or consignee, as applicable).
(3) For buses, ambulances, and other special duty vehicles which can not be procured under the standardized buying programs or consolidated purchase programs described in §§ 101-26.501-2 and 101-26.501-3, 240 to 270 days from date of award are usually required to effect delivery. However, special purpose vehicles with unique characteristics, such as certain types of firetrucks, may require longer delivery. In such instances, every effort will be made by GSA to facilitate deliveries and keep the requisitioning agencies informed of any unauthorized delay.
(a) GSA Form 1398, GSA Purchased Vehicle. This form is used by the contractor to indicate that preshipment inspection and servicing of each vehicle has been performed. The contractor is required to complete GSA Form 1398 (illustrated at § 101-26.4902-1398) and affix it, preferably, to the lock face or door frame of the right front door after the final inspection. The form should be left in place during the warranty period to permit prompt identification of vehicles requiring dealer repairs pursuant to the warranty.
(b) Standard Form 368, Quality Deficiency Report (Category II). GSA is constantly striving to improve customer service and the quality of motor vehicles for which it contracts. To inform contractors of the deficiencies noted during the life of the vehicles, Standard Form 368 shall be prepared by the consignee and sent to GSA describing details of vehicle deficiency and action taken for correction. Procedures for documenting and reporting quality deficiencies are set forth in the GSA Publication “Discrepancies or Deficiencies in GSA or DOD Shipments, Material or Billings.” Agencies are urged to report all deficiencies to GSA irrespective of satisfactory corrective action taken by the manufacturer's authorized dealer. If the dealer refuses to take corrective action on any vehicle within its warranty period, the report shall so state and include an explanation of circumstances. Standard Form 368 shall also be used to report all noncompliance with specifications or other requirements of the purchase order.
(c) Instructions to Consignee Receiving New Motor Vehicles Purchased by General Services Administration. This information is printed on the reverse of the consignee copy of the delivery order. Personnel responsible for receipt and operation of Government motor vehicles should be familiar with the instructions and information contained in the document entitled “Instructions to Consignee Receiving New Motor Vehicles Purchased by General Services Administration.”
GSA will not solicit trade-in bids when purchasing new motor vehicles for replacement purposes because experience has shown that suppliers (manufacturers) are unwilling to accept used vehicles in part payment for new ones. Accordingly, used vehicles that are being replaced will be disposed of by sale as set forth in Part 101-46.
GSA has a centralized leasing program to provide an additional source of motor vehicle support to all Federal agencies. This program relieves Federal agencies that use it from both the time constraints and administrative costs associated with independently entering into lease contracts. The centralized leasing program covers subcompact, compact, and midsize sedans, station wagons, and certain types of light trucks (pickups and vans). Participation in the centralized leasing program is mandatory on all executive agencies of the Federal Government (excluding the Department of Defense and the U.S. Postal Service) within the 48 contiguous States and Washington, DC. However, agencies must obtain GSA authorization to lease in accordance with § 101-39.205 prior to using these established mandatory use contracts. For further information on existing contracts, including vehicles covered, rates, and terms and conditions of the contract(s), contact General Services Administration (FCA), Washington, DC 20406.
A waiver has been issued by the Government Printing Office to GSA for the procurement of the printing of Standard Form 149, U.S. Government National Credit Card.
GSA supply distribution facilities are responsible for quickly and economically providing customers with frequently needed common-use items. Stocking a variety of commercial, high-demand items purchased from FSS multiple award schedules is an important way in which GSA supply distribution facilities meet this responsibility.
Requirements for new office and household furniture and furnishings as described in this § 101-26.505 shall be satisfied from GSA stock or Federal Supply Schedule contracts to the extent that agencies are required to use these sources. Requirements for items not obtainable from these sources may be satisfied by any Federal agency through GSA special buying services upon agency request pursuant to the provisions of § 101-26.102. Before initiating a procurement action for new items, items on hand should be redistributed, repaired, or rehabilitated, as feasible, pursuant to § 101-26.101
(a) Office furniture is equipment normally associated with occupancy or use in such areas as offices, conference and reception rooms, institutional waiting rooms, lobbies, and libraries. Such equipment includes desks, tables, credenzas, bookcases, coatracks, telephone cabinets, filing sections and cabinets, office safes, security cabinets, chairs, and davenports.
(b) Household furniture is equipment normally associated with occupancy or use in areas such as housekeeping and nonhousekeeping quarters, reception rooms, and lobbies. Such equipment includes davenports, chairs, tables, buffets, china cabinets, beds, wardrobes, and chests.
(a) Office furnishings are articles which supplement office furniture and augment the utility of the space assigned. These articles include lamps, desk trays, smoking stands, waste receptacles, carpets, and rugs.
(b) Household furnishings are articles which supplement household furniture and add to the comfort or utility of the space assigned. Such articles include lamps, mirrors, carpets, rugs, and plastic shower and window curtains.
When an agency required to obtain items of office and household furniture and furnishings from GSA stock or Federal Supply Schedule contracts determines that items available from these sources will not serve the required functional end use, requests to procure similar items from other than GSA sources shall be submitted for consideration in accordance with § 101-26.100-2.
The Customer Service Representative in each GSA regional office will, upon request, furnish agencies with information on the types, styles, finishes, coverings, and colors of office and household furniture and furnishings available through the GSA purchase program. (See § 101-26.506.)
In addition to the assistance provided in the selection of furniture and furnishings as specified in § 101-26.505-7, the GSA Public Buildings Service, through facilities located in each region, will assist Federal activities within the United States, the Commonwealth of Puerto Rico, and the Virgin Islands in various phases of interior planning and design. These services will be provided either directly or through commercial sources. (For services involving space layout, see § 101-17.400.)
GSA interior planning and design services consist of data gathering and organizational analysis; development of a space requirements program; softline space plans; development of an interior design program (to include finish materials, furniture and furnishing specifications, and procurement data); and complete floor plans for telephones, electrical outlets, partitions, furniture, and equipment. The items specified for procurement will be selected from approved GSA sources of supply.
(a) When furniture and furnishings requirements have been developed in connection with interior planning and design services furnished by GSA, the requesting agency shall determine that such requirements are in consonance with the criteria for acquisition of furniture and furnishings as provided in §§ 101-25.302 and 101-25.404.
(b) Furniture and furnishings to be obtained in connection with interior planning and design services furnished by GSA shall be acquired, to the extent available, from GSA stock or through Federal Supply Schedules in accordance with the provisions of §§ 101-26.301 and 101-26.401.
Requests for interior planning and design services shall be submitted on Standard Form 81, Request for Space (illustrated at § 101-17.4901-81), and forwarded to PBS in the GSA regional office serving the geographic area of the requesting agency. Requests shall include the following information:
(a) Type of space in terms of its use;
(b) Location;
(c) Floor plans, if available;
(d) Occupancy date;
(e) Amount of funds available for the project; and
(f) Name, address, title, and telephone number of requesting official.
Agency requests for interior planning and design service will be reviewed and if considered feasible, will be accepted. Upon acceptance of a request by GSA, a proposal will be furnished the requesting activity for review and approval within 30 days. The proposal will include the following:
(a) Approximate date the work can be started;
(b) Estimated completion date of planning and design services;
(c) The amount to be reimbursed GSA for the services; and
(d) Other pertinent data or recommendations.
If the GSA proposal is acceptable, a purchase order, requisition, or other funded authorization document shall be issued to the GSA office named in the proposal. GSA will bill the office indicated in the order or authorization for the amount specified in the proposal. The reimbursement procedures are designed to recover GSA's direct cost for providing these services. Any changes in the scope of the project requested by the requisitioning agency prior to its completion may require a revision in the amount of the reimbursable charges and the time schedule for completion.
Federal agencies and other activities authorized to purchase security equipment through GSA sources shall do so in accordance with the provisions of this § 101-26.507. Under section 201 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481), the Administrator of GSA has determined that fixed-price contractors and lower tier subcontractors who are required to protect and maintain custody of security classified records and information may purchase security equipment from GSA sources. Delivery orders for security equipment submitted by such contractors and lower tier subcontractors shall contain a statement that the security equipment is needed for housing Government security classified information and that the purchase of such equipment is required to comply with the security provision of a Government contract. In the event of any inconsistency between the terms and conditions of the delivery order and those of the Federal Supply Schedule contract, the latter shall govern. Security equipment shall be used as prescribed by the cognizant security office.
Requisitions for security equipment covered by the latest edition of Federal specifications AA-F-357, AA-F-358, AA-F-363, AA-S-1518, and AA-D-600, and interim Federal specifications AA-F-00364 and AA-C-001697 shall be submitted in FEDSTRIP format to the GSA regional office supporting the geographic area in which the requisitioner is located. GSA will consolidate requisitions for these items from all regions for procurement on a definite quantity basis.
Requisitions for security equipment will be consolidated by GSA on January 31, April 30, July 31, and October 31 of each year. The consolidated requisitions will be used in executing definite quantity contracts. To ensure inclusion in the invitation for bids, requisitions shall be submitted to GSA on or before January 1, April 1, July 1, or October 1 as appropriate. Requisitions received after any of these dates normally will be carried over to the subsequent consolidation date. Approximately 180 calendar days following the consolidation dates should be allowed for initial delivery. Requisitions shall include a required delivery date which reflects anticipated receipt under the time schedule.
To ensure that a readily available source exists to meet the unforeseen demands for security equipment, Federal Supply Schedule contracts have been established to satisfy requirements that are not appropriate for consolidated procurement and do not exceed the maximum order limitations.
Quantities exceeding the maximum order limitation on Federal Supply Schedules will also be consolidated and procured by GSA pursuant to § 101-26.507-2. Where quantities are required to be delivered before the time frames established for the quarterly consolidated procurement, the requisition must indicate the earlier required delivery. As necessary, separate procurement action will be taken by GSA to satisfy the requirements.
Procurement by Federal agencies of EDP tape and instrumentation tape (wide and intermediate band) shall be accomplished in accordance with the provisions of this § 101-26.508.
Federal Supply Schedules, FSC group 70, part XI, and FSC group 58, part V, section C, include contracts to satisfy Government requirements for those types of EDP tape and instrumentation tape (wide and intermediate band) which are most widely used. Federal agencies located within the 48 contiguous United States, Washington, DC and Hawaii (applicable to EDP tape only for Hawaii) shall procure these tapes in accordance with the provisions of the current schedules and this § 101-26.508-1. Orders not exceeding the maximum order limitations of the Federal Supply Schedules and prepared directly by activities located outside the geographical areas referenced above shall, to the extent possible, be consolidated and submitted in FEDSTRIP format to the GSA regional office supporting the geographic area in which the requisitioner is located.
(a) Requisitions for types of EDP tape and instrumentation tape (wide and intermediate band) covered by Federal Supply Schedule contracts which exceed the maximum order limitations of the schedule shall be submitted to the GSA regional office supporting the geographic area in which the requisitioner is located.
(b) Requisitions for all types of EDP tape and instrumentation tape (wide and intermediate band) not covered by Federal Supply Schedule contracts shall be submitted to GSA for purchase action when the dollar value of the requisitions exceeds, or is estimated to exceed, $2,500 for EDP tape and $5,000 for instrumentation tape. However, regardless of the amount involved (including requisitions estimated to be less than the dollar limitations referenced above), purchase action shall not be taken by GSA or an agency unless a waiver of the requirement for using items of tape available from Federal Supply Schedule contracts has been furnished in accordance with § 101-26.100-2.
(c) When establishing required delivery dates in purchase requests submitted in accordance with this § 101-26.508-2, agencies should normally allow 105 days leadtime to permit orderly procurement by GSA. In addition to this 105 days leadtime, inspection and testing of the tape requires approximately 15 days.
(d) When an agency submitting a purchase request in accordance with this § 101-26.508-2 has a need for scheduled deliveries, minimum or maximum order quantities, or other special arrangements, GSA will develop specific provisions to accommodate the needs. The provisions will be based on information furnished by the agency concerned and will be included in solicitations for offers and resultant contracts.
To the maximum extent feasible, agencies shall develop procedures which will permit planned consolidated requisitioning of EDP tape and instrumentation tape (wide and intermediate band) on an agencywide basis. When agencywide consolidation is not feasible, consideration shall be given to the consolidation of individual requisitions for small quantities at any agency level. This will enable the Government to benefit from lower prices generally obtainable through large volume procurements.
Procurement by Federal agencies of tabulating machine cards shall be made in accordance with the provisions of this § 101-26.509.
Federal Supply Schedule, FSC group 75, part VIII, includes contracts for tabulating cards applicable to electrical and mechanical contact tabulating machines, including aperture cards and copy cards. Federal agencies shall procure these cards in accordance with the provisions of the current schedule. Orders not exceeding the maximum order limitation of the Federal Supply Schedule and prepared directly by activities located outside the geographical delivery areas specified in the schedule shall be submitted in FEDSTRIP format to the GSA regional office supporting the geographic area in which the requisitioner is located.
(a) Requisitions for tabulating machine cards covered by Federal Supply Schedule contracts which exceed the maximum order limitation of the schedule shall be forwarded in FEDSTRIP format to the GSA regional office supporting the geographic area in which the requisitioner is located.
(b) Requisitions for tabulating machine cards not covered by Federal Supply Schedule contracts shall be submitted to GSA for purchase action if the dollar value of the cards exceeds or is estimated to exceed $2,500. However, regardless of the amount involved (including requisitions estimated to be $2,500 or less), purchase action shall not be taken by GSA or an agency unless a waiver of the requirement for the use of tabulating cards available from Federal Supply Schedule contracts has been furnished in accordance with § 101-26.100-2. Requests for waivers shall be submitted to the Commissioner, Federal Supply Service (F), General Services Administration, Washington, DC 20406. The requests shall fully describe the items required and state the reasons the tabulating machine cards covered by the Federal Supply Schedule contracts will not adequately serve the end-use purpose. GSA will notify the requesting agency in writing of the action taken on the waiver request. To reduce leadtime, requisitions may be submitted in FEDSTRIP format with the requests for waivers. A requisition for items for which a waiver has first been obtained shall be submitted with a copy of the waiver to the GSA regional office supporting the geographic area in which the requisitioner is located. GSA will either arrange for procurement of the items or authorize the requesting activity to procure them.
(c) Purchase requests with established delivery dates should allow sufficient leadtime (see § 101-26.102-3) to permit orderly procurement by GSA, including acceptance testing and delivery to destination.
(d) In those instances where an agency anticipates a need for scheduled deliveries, minimum or maximum order quantities, or other special arrangements, GSA will develop specific provisions to accommodate the needs of the particular agency. These provisions will be based on information furnished by the agency concerned for inclusion in solicitations for offers and resultant contracts.
To the maximum extent feasible, agencies shall consolidate their requisitions for tabulating machine cards on an agencywide basis. If agencywide consolidation is not feasible, consideration shall be given to the consolidation of requisitions at any agency level when the Government will benefit from lower prices through large-volume procurement.
This subpart prescribes the policies, procedures, and limitations relating to civil agency use of procurement sources of the Department of Defense (DOD), which include the Defense supply centers of the Defense Logistics Agency (DLA) and the inventory control points of the military departments. The provisions of this subpart 101-26.6 are applicable to executive agencies unless otherwise specifically indicated. Other Federal agencies are encouraged to satisfy their requirements in the same manner.
(a) Agencies shall be governed by the provisions of this § 101-26.602 in satisfying requirements for coal, natural gas from sources other than a public utility, petroleum fuels, and certain petroleum products from or through the Defense Logistics Agency.
(b) The Defense Logistics Agency has been assigned the supply responsibility for these materials which will be available either from contracts (or contracts summarized in contract bulletins) issued by the Defense Fuel Supply Center, Alexandria, Va., or through FEDSTRIP/MILSTRIP requisitions placed on the Defense General Supply Center, Richmond, Va., in accordance with instructions contained in § 101-26.602-2. Agencies submitting estimates of requirements which are summarized in the Defense Fuel Supply Center contract bulletins are obligated to procure such requirements from these contracts. Estimates submitted shall not include requirements normally obtained through service station deliveries utilizing the U.S. Government National Credit Card.
(a) The Defense Fuel Supply Center will make annual procurements of lubricating oils, greases, and gear lubricants for ground type (nonaircraft) equipment and of aircraft engine oils on an annual program basis. Estimates of requirements for items covered by these programs will be solicited annually from agencies on record with the Defense Fuel Supply Center in time for the requirements to arrive at the Center on the following schedule:
| Purchase program | Due on or before | |
|---|---|---|
| Lubricating oils (nonaircraft) | 4.1 | November 15. |
| Aircraft engine oils | 4.2 | June 15. |
| Grease and gear oils | 4.4 | October 15. |
(b) Activities not on record but requiring procurement support shall submit requests to: Commander, Defense Fuel Supply Center, Attn: DFSC:PG, Cameron Station, Alexandria, VA 22314, on or before the requirement due dates specified in § 101-26.602-1(a). Submission of requirements is not required if:
(1) The maximum single order is less than the minimum quantity obtainable under the bulletin;
(2) Container sizes are smaller than those available under the bulletin; or
(3) Purchase without regard to existing Defense Fuel Supply Center contracts is otherwise authorized.
(c) Agency requirements will be consolidated and solicited for procurement by the Defense Fuel Supply Center. Contractual action to obtain coverage for these programs will be summarized in a contract bulletin for program 4.1 and 4.4. Copies of the bulletins (copies of contracts for program 4.2) will be distributed to addresses provided by the agencies on record.
(d) Deliveries of lubricants covered by Defense Fuel Supply Center contracts shall be obtained by activities in the United States by following the instructions contained in the respective contracts or contract bulletins.
(a) Packaged petroleum products listed in Federal Supply Catalog for Civil Agencies shall be obtained by submitting requisitions prepared in accordance with the FEDSTRIP Operating Guide (FPMR 101-26.2) to the Defense General Supply Center (DGSC), Richmond, Va. 23297, using routing identifier code S9G. The Federal Supply Catalog for Civil Agencies may be obtained, upon written request, from the Commander, Defense Logistics Services Center, Attn: DLSC-T, Battle Creek, Mich. 49016. Requisitions for packaged petroleum items not in this catalog and not otherwise included in Defense Fuel Supply Center (DFSC) procurements under the provisions of § 101-26.602-1 may be submitted to DGSC. DGSC will supply the items from inventory or will refer the requisitions to DFSC for purchase and direct delivery to the requisitioner. Packaged petroleum items may be obtained from other Federal activities by agreement with the activity concerned or by local purchase when such action is authorized under the provisions of the Defense Logistics Agency (DLA) local purchase policy contained in paragraph (b) of this section.
(b) Activities may effect local purchase of any DLA-managed, centrally procured item, commercially available, provided the purchase:
(1) Is limited to immediate-use requirements generated by emergency conditions (e.g., work stoppage, etc.), or
(2) Is to satisfy a routine requirement having a total line value not in excess of $25 and is determined to be the most economical method of supply.
(c) DGSC may return requisitions for local purchase action citing FEDSTRIP/MILSTRIP status code CW with the concurrence of the requisitioning activity when it is deemed that a local purchase action would be the most economical method of supply. A determination will be based on recognition of excessive costs (procurement, transportation/shipping, and special packaging considerations) as compared to those costs associated with local purchase action. Requisition priorities, backorder situations, procurement and required delivery dates (PDD/RDD), and requisition line item dollar values shall not be a basis or consideration for a Status Code CW reject action. Requisitions from overseas activities will not be returned to overseas activities for a local purchase action.
(a) Estimates of annual requirements will be solicited annually by the Defense Fuel Supply Center from agencies on record so as to reach that activity approximately 45 calendar days before the due date shown in Defense Fuel Supply Center geographic alignment of States set forth in § 101-26.602-3 (d) and (e). The requirements call will be accomplished by mailing a computer-produced record of the file data for each delivery point that has been identified to each submitting addressee; instructions for validation and return will be included. Activities not on record but requiring procurement support shall prepare and submit estimates on DFSC Form 15:18 to the Defense Fuel Supply Center, Cameron Station, Alexandria, VA 22314. An illustration of DFSC Form 15:18 is contained in § 101-26.4904-1518. Copies may be obtained on request from: Commander, Defense Fuel Supply Center, Attention: DFSC—OD, Cameron Station, Alexandria, VA 22314.
(1) Estimated annual requirements for any delivery point which total less than the following minimums shall not be submitted to the Defense Fuel Supply Center, unless the activity does not have authority or capability to procure locally.
| Item | Minimum annual requirement (gallons) |
|---|---|
| Gasoline | 10,000 |
| Burner fuel oil | 10,000 |
| Diesel oil | 10,000 |
| Kerosene | 10,000 |
| Solvents | 500 |
(2) Estimates shall not be submitted when the minimum quantities to be delivered to any one point on a single delivery are less than the following minimums, unless the activity does not have the authority or capability to procure locally.
| Delivery method | Minimum quantity furnished on a single delivery |
|---|---|
| Drums | 4 drums (200-220 gallons). |
| Tank wagon | 50 gallons. |
| Transport truck | Full truckload (5,200-7,500 gallons). |
| Tank car | Full carload (8,000-12,000 gallons). |
(b) Agency requirements will be solicited for procurement by the Defense Fuel Supply Center, and contracts resulting from these solicitations will be summarized in contract bulletins, separately for each Defense Fuel Supply Center geographic region, and distributed to agencies on record. Activities requiring additional contract bulletins shall submit requests to: Commander, Defense Fuel Supply Center, Attention: DFSC—OD, Cameron Station, Alexandria, VA 22314.
(c) The items covered in contract bulletins issued by the Defense Fuel Supply Center are in accordance with the latest issue of the applicable Federal specification. Agency requirements submitted for products not under a Federal specification must include accurate and complete product laboratory analysis.
(d) The following illustrates the Defense Fuel Supply Center geographic alignment of the States, the delivery periods covered for each region, the identification of purchase programs, and the due dates for submission of requirements for motor gasoline, fuel oil (diesel and burner), and kerosene.
Motor Gasoline, Fuel Oils (Diesel and Heating), and Kerosene
| State | Delivery period | Requirements due date |
|---|---|---|
| Alaska—Purchase Program 3.9 1 | July 1-June 30 | January 1. |
| Hawaii—Purchase Program 3. 1 | January 1-December 31 | July 1. |
| DFSC Region 1—Purchase Program 3.21: | ||
| Connecticut | September 1-August 31 | March 1. |
| Maine | ......do | Do. |
| Massachusetts | ......do | Do. |
| New Hampshire | ......do | Do. |
| Rhode Island | ......do | Do. |
| Vermont | ......do | Do. |
| DFSC Region 2—Purchase Program 3.22: | ||
| New Jersey | October 1-September 30 | April 1. |
| New York | ......do | Do. |
| Pennsylvania | ......do | Do. |
| DFSC Region 3—Purchase Program 3.23: | ||
| Delaware | August 1-July 31 | February 1. |
| District of Columbia | ......do | Do. |
| Indiana | ......do | Do. |
| Kentucky | ......do | Do. |
| Maryland | ......do | Do. |
| Ohio | ......do | Do. |
| Tennessee | ......do | Do. |
| Virginia | ......do | Do. |
| West Virginia | ......do | Do. |
| DFSC Region 4—Purchase Program 3.24: | ||
| Alabama | April 1-March 31 | October 1. |
| Arkansas | ......do | Do. |
| Florida | ......do | Do. |
| Georgia | ......do | Do. |
| Louisiana | ......do | Do. |
| Mississippi | ......do | Do. |
| Missouri | ......do | Do. |
| North Carolina | ......do | Do. |
| South Carolina | ......do | Do. |
| Puerto Rico | ......do | Do. |
| Virgin Islands | ......do | Do. |
| DFSC Region 5—Purchase Program 3.25: | ||
| Illinois | May 1-April 30 | Nov. 1. |
| Iowa | ......do | Do. |
| Michigan | ......do | Do. |
| Minnesota | ......do | Do. |
| Wisconsin | ......do | Do. |
| DFSC Region 6—Purchase Program 3.26: | ||
| Colorado......do | June 1-May 31 | December 1. |
| Kansas | ......do | Do. |
| Nebraska | ......do | Do. |
| New Mexico | ......do | Do. |
| North Dakota | ......do | Do. |
| Oklahoma | ......do | Do. |
| South Dakota | ......do | Do. |
| Texas | June 1-May 31 | December 1. |
| Wyoming | ......do | Do. |
| DFSC Region 7—Purchase Program 3.27: | ||
| Arizona | November 1-October 31 | May 1. |
| California | ......do | Do. |
| Nevada | ......do | Do. |
| Utah | ......do | Do. |
| DFSC Region 8—Purchase Program 3.28: | ||
| Idaho | July 1-June 30 | January 1. |
| Montana | ......do | Do. |
| Oregon | ......do | Do. |
| Washington | ......do | Do. |
1 Includes solvents.
(e) Estimates of requirements for solvents to be delivered in the continental United States, Puerto Rico, and the Virgin Islands during the period January 1 through December 31 shall be submitted to arrive at the Defense Fuel Supply Center by the preceding July 1. The purchase program identification is 3.11.
(f) Estimates of requirements for aviation fuels for delivery in the United States shall be submitted in accordance with section 11, chapter 1, of DOD 4140.25-M, Procedures for the Management of Petroleum Products.
(g) Requirements for aviation fuels (all grades) shall be submitted in accordance with DFSC Regulation 4220.1, Requirements Submission Schedule for Petroleum Products. Copies of DFSCR 4220.1 may be obtained from the Defense Fuel Supply Center (DFSC-W), Cameron Station, Alexandria, Va. 22314.
(h) Requirements for petroleum fuels at locations other than as identified in this § 101-26.602-3 may be obtained from other Federal activities by agreement with the activity concerned or from local purchase sources, when local purchase authority and capability exists, or by submitting requests direct to the Defense Fuel Supply Center, Attention: DFSC-OD, Cameron Station, Alexandria, Va. 22314, if centralized procurement is desired.
(a) Federal agencies desiring to participate in the Defense Fuel Supply Center coal contracting program for carload delivery outside the District of Columbia and vicinity may obtain coal through this program by submitting estimates as provided in this § 101-26.602-4.
(b) Estimates of coal requirements shall be prepared on DD Form 416, Requisition for Coal, Coke, or Briquettes (illustrated as § 101-26.4904-416), clearly marked “Estimate Only”, and submitted in original and one copy to arrive at the Defense Fuel Supply Center, Cameron Station, Alexandria, Va. 22314, before the following requirement due dates:
| Purchase program | For activities located in | Requirements due in DFSC by | For delivery beginning |
|---|---|---|---|
| 5.5 | Indiana, Illinois, Iowa, Kansas, Missouri, South Dakota, West Tennessee, West Kentucky, Wisconsin | June 1 | December 1. |
| 5.9 (Lignite) | North Dakota | ......do | Do. |
| 5.3 | Alabama, East Kentucky, East Tennessee, Ohio, Georgia, North Carolina, South Carolina, West Virginia | August 15 | April 1. |
| 5.8 (Anthracite) | Connecticut, District of Columbia, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Virginia, South Carolina | November 1 | May 1. |
| 5.4 | Michigan, Minnesota, North Dakota, Wisconsin | ......do | Do. |
| 5.7 | Alaska | ......do | Do. |
| 5.2 | District of Columbia, Maryland, New Jersey, Pennsylvania, Virginia | January 15 | August 1. |
| 5.1 | Connecticut, Maine, Massachusetts, New Hampshire, New York, Vermont | April 1 | October 1. |
| 5.6 | Arizona, California, Colorado, Idaho, Montana, New Mexico, Oregon, Utah, Washington, Wyoming | ......do | Do. |
(1) A separate requirement form shall be prepared for each delivery point and for each size and kind of coal, such as bituminous, anthracite, or lignite. The purchase program number is to be entered in the upper right hand block of DD Form 416.
(2) The section of DD Form 416 entitled “Analytical Specifications Required” shall reflect minimum requirements based on heating engineering data applicable to the particular equipment in which the coal will be used.
(c) Contractual information covering these requirements will be furnished each participating agency by the Defense Fuel Supply Center after contracts are awarded. As shipments of coal are required, each activity shall direct the contractor to make delivery. Payment for deliveries shall be arranged for by the ordering activity directly with the contractor. Should estimated requirements not be needed due to changes or conversions in heating equipment or other reasons, activities shall notify the Defense Fuel Supply Center of such changes as soon as possible.
(d) Copies of DD Form 416 may be obtained from: Commander, Defense Fuel Supply Center, Attention: DFSC:PE, Cameron Station, Alexandria, VA 22314.
(e) Requirements for coal at locations other than as identified in this § 101-26.602-4 may be obtained by submitting requests directly to the Defense Fuel Supply Center, if centralized procurement is desired.
(f) Each participating agency may elect to collect coal samples, for analysis purposes, in accordance with the latest edition of the Handbook on Coal Sampling issued by the Department of the Interior, Bureau of Mines. Copies of this Handbook on Coal Sampling may be obtained upon request from: Coal Sampling and Inspection, Division of Mineral Studies, U.S. Bureau of Mines, College Park, Md. 20740.
(g) Coal samples shall be forwarded by the agency to the Bureau of Mines, 4800 Forbes Avenue, Pittsburgh, Pa. 15213. A charge for each sample submitted will be assessed by the Bureau of Mines for performing such analysis, or agencies may enter into an agreement with the Bureau of Mines for services and testing on an annual flat rate basis. Agencies shall furnish the Bureau of Mines laboratory complete billing instructions at the time samples are submitted. Copies of the results of each analysis will be furnished by the Bureau of Mines to offices responsible for payment for comparison with the analytical limits guaranteed by the contractor. In the event that the sample does not meet the minimum requirements of the analytical limits specified in the contract, the using agency shall compute the amount, if any, to be deducted from the contract price.
(a) Natural gas requirements shall be satisfied from sources that are most advantageous to the Government in terms of economy, efficiency, and service. A cost/benefit analysis shall be required by the procuring Federal agency if the natural gas procurements at a facility exceed 20,000 mcf annually and the facility can accept interruptible service. If sources other than the local public utility are the most advantageous to the Government, agency requirements may be satisfied through the Defense Logistics Agency (DLA). Arrangements for DLA procurements on behalf of civilian agencies shall be made through GSA. GSA will forward agency requests to DLA after assuring that necessary requirements data are included.
(b) Agency requests for DLA natural gas shall be forwarded to the Public Utilities Division (PPU), Office of Procurement, General Services Administration, 18th and F Streets, NW., Washington, DC 20405. The requests shall include for each facility for which natural gas is required: The name, address, and telephone number of the requesting agency representative; the name, address, and telephone number of the facility representative; the name of the local distribution company; the expected usage (in mcf) at the facility for each month during the next year of service; the expected peak day usage in mcf at the facility; a statement of funds availability; and documentation of the cost analysis performed that justifies the alternative source procurement.
(c) Agency requests for procurements by DLA shall be forwarded to GSA at the time the information specified in § 101-26.602-5(b) becomes available.
(d) Agencies should anticipate that actions required by DLA to establish a natural gas contract will take 5 to 7 months.
Executive agencies shall satisfy their requirements for electronic items listed in the Federal Supply Catalog for Civil agencies (FSC group 59, except classes 5940, 5970, 5975, 5977, and 5995) from the Defense Electronic Supply Center (DESC), DLA. Requisitions shall be prepared in accordance with the FEDSTRIP Operating Guide and submitted to DESC, 1507 Wilmington Pike, Dayton, Ohio 45444, using routing identifier code S9E. Items listed in classes 5940, 5970, 5975, 5977, and 5995, unless managed as exceptions by GSA, shall be obtained from the Defense General Supply Center (DGSC), Richmond, Va. 23297. Electronic items may be obtained from local purchase sources when such action is authorized under the provisions of § 101-26.602-2(b). DESC may return requisitions for local purchase under the same conditions governing the return of requisitions by DGSC set forth in § 101-26.602-2(c).
Agencies required to use GSA supply sources should also use Defense supply centers (DSC's) as sources of supply for items listed in the Federal Supply Catalog for Civil Agencies, Identification and Management Data List, published by DLA. By agreement with the Defense Logistics Agency, the catalog will contain only those items in Federal supply classification classes which are assigned to them for Government-wide integrated management, or exception items in other classes similarly assigned. A list of DSC's and their corresponding commodity areas along with requisitioning instructions are published in the FEDSTRIP Operating Guide. As additional items are assigned to managers other than GSA for Government-wide integrated material management, GSA will announce the changes through the Federal Catalog System and GSA's regular supply publications.
Federal civil agencies may obtain items of supply which are procured and managed by the inventory control points (ICP) of the Army, Navy, and Air Force and are available in the United States, provided that a national stock number has been assigned to the items. A list of ICP's and their corresponding commodity areas is in the FEDSTRIP operating Guide. Agencies should also refer to the FEDSTRIP operating Guide for additional information concerning supply support from the ICP's and for instructions on obtaining items from these sources.
Unless other arrangements have been made between the Defense Logistics Agency and the requisitioning activity, billings for sales will be rendered at least monthly on Standard Form 1080, Voucher for Transfers Between Appropriations and/or Funds, supported by a listing of documents including identification of requisitions and related cards reflecting data pertaining to the gross sale, the retail loss allowance, and any credits for adjustments applicable to prior billings. In addition to these charges, an accessorial charge will be made on shipments destined for overseas to cover expenses incident to overseas packing, handling, and transportation. The Defense supply centers shall be provided with a continental U.S. address for payment of bills for overseas shipments.
Payments are expected to be made within 15 calendar days of receipt of the Standard Form 1080 from the Defense supply centers. Payment shall not be deferred until receipt of shipment or withheld pending resolution of adjustments.
Requests for billing adjustments should be submitted in accordance with chapter 5 of the GSA Handbook, Discrepancies or Deficiencies in GSA or DOD Shipments, Material, or Billings (FPMR 101-26.8).
In cases of public exigency, items available from the Defense Logistics Agency may be procured from other sources as provided in § 1-3.202.
This subpart prescribes policy and procedures relating to procurement sources other than those of GSA and the Department of Defense. The provisions of this subpart 101-26.7 are applicable to executive agencies unless otherwise indicated. Other Federal agencies are encouraged to obtain their requirements in the same manner.
(a) Purchases by executive agencies of products produced by workshops of the blind or other severely handicapped persons which are carried in GSA supply distribution facilities must be made as provided in subpart 101-26.3.
(b) Purchases by all Federal agencies of products and services offered for sale by workshops of the blind or other severely handicapped persons which are not carried in GSA supply distribution facilities, and purchases by executive agencies under exceptions set forth in § 101-26.301, must be made in accordance with the Procurement List published by the Committee for Purchase of Products and Services of the Blind and Other Severely Handicapped. Products and services offered by the blind shall be given precedence over those offered by other severely handicapped persons. (See § 101-26.702(d) for priority accorded to products manufactured by Federal Prison Industries, Inc.)
(c) Products produced by workshops for the blind or other severely handicapped persons which are available from GSA supply distribution facilities are designated by an asterisk(*) preceding the national stock number in the Procurement List identified in paragraph (b) of this section.
(a) Purchases by executive agencies of prison-made products carried in GSA supply distribution facilities must be made as provided in subpart 101-26.3.
(b) Purchases by all Federal agencies of prison-made products not carried in GSA supply distribution facilities, or supply items procured under exceptions set forth in § 101-26.301, must be made in accordance with the provisions in the Schedule of Products Made in Federal Penal and Correctional Institutions.
(c) Prison-made products which are available from GSA supply distribution facilities are designated by an asterisk (*) preceding the national stock number in the product schedule referred to in paragraph (b) of this section.
(d) Products available from Federal Prison Industries, Inc., shall be accorded priority over products offered for sale by the workshops of the blind and other severely handicapped persons.
GSA has delegated authority to the U.S. Government Printing Office (GPO) to procure all marginally punched continuous forms for use by Federal agencies except those procured by GSA for stock. Therefore, all Federal agencies shall submit their requirements for such forms in accordance with the provisions of this § 101-26.703.
(a) Except for those marginally punched continuous forms which GSA procures for stock, all requirements for such forms shall be ordered from GPO contracts or other established GPO sources. If an item is available from GSA stock, acquisition shall be from this source.
(b) Requirements for marginally punched continuous forms which are not available from GPO or GSA sources or which exceed the maximum monetary limitations of the GPO contract shall be submitted to GPO for appropriate action. If requirements are less than the minimum orders/shipment limitations of the GPO contract, agencies may procure them directly from commercial sources.
With the exception of condiment packages in Federal supply classes 8940 and 8950, managed by the Defense Logistics Agency's Defense Personnel Support Center, all nonperishable subsistence items in Federal supply group 89, Subsistence Items, are managed by and available from the Veterans Administration (VA). These items are listed in the Subsistence Catalog, which is available from the Director, Supply Service (134A), Veterans Administration, Washington, DC 20420.
This subpart prescribes a uniform system for reporting discrepancies or deficiencies in material or shipments and processing requests for or documenting adjustments in billings from or directed by GSA or Department of Defense (DOD) activities.
This subpart is applicable to all civilian executive agencies, including their contractors and subcontractors when authorized. DOD activities should follow the applicable DOD or military service/agency regulations in reporting discrepancies or deficiencies in shipments or material, or requesting adjustments in billings from or directed by GSA unless exempted therefrom, in which case the provisions of this § 101-26.801 apply.
The provisions of this regulation are not applicable to shipments and billings related to the stockpile of strategic and critical materials or excess or surplus property; or to billings for services, space, communications, and printing.
Discrepancies or deficiencies in shipments or material occur in four broad categories: Quality deficiencies, shipping discrepancies, transportation discrepancies, and billing discrepancies. When discrepancies or deficiencies occur, activities shall document them with sufficient information to enable initiation and processing of claims against suppliers and carriers. Procedures for documenting discrepancies or deficiencies are set forth in the GSA publication, Discrepancies or Deficiencies in GSA or DOD Shipments, Material, or Billings, issued by the Federal Supply Service, GSA. Copies of the publication may be obtained by submitting a completed GSA Form 457, FSS Publications Mailing List Application, (referencing mailing list code number ODDH-0001) to the following address: General Services Administration, Centralized Mailing List Service (CMLS-C), 819 Taylor Street, P.O. Box 17077, Fort Worth, TX 76102-0077.
Copies of the GSA Form 457 may be obtained by writing the Centralized Mailing List Service.
(a) Quality deficiencies are defined as defects or nonconforming conditions which limit or prohibit the item received from fulfilling its intended purpose. Quality deficiencies include deficiencies in design, specification, material, manufacturing, and workmanship. Timely reporting of all quality deficiencies is essential to maintain an acceptable quality level for common-use items. GSA relies on agency reporting of quality deficiencies in order to act to remove the defective items from the supply system as well as to document contractor performance files for use in future procurements.
(b) A product deficiency which may cause death, injury, or severe occupational illness, or directly restrict the mission capabilities of the using organization, is called a “category I” complaint. Quality complaints that do not meet the category I criteria are called “category II” complaints. Standard Form (SF) 368, Quality Deficiency Report, or a message in the format of the Standard Form 368, is used to report quality deficiencies.
(c) Standard Form 368 (including SF's 368 submitted in message formats) are required for all product quality deficiencies that involve material (1) shipped to the user from a GSA distribution center (including shipments made directly to the user from GSA distribution centers as well as “indirect” shipments (shipments with intermediate stops between the GSA distribution center and the ultimate user)), (2) shipped to the user from a DOD depot or another Government activity, as directed by GSA, (3) purchased by GSA for the user and inspected by GSA, or (4) ordered from a GSA Federal Supply Schedule contract which specified source inspection by GSA.
(d) Category I complaints are to be reported to GSA by telephone or telegraphic message within 72 hours of discovery. Category II complaints are to be reported within 15 days after discovery.
(e) Standard Forms 368 (in triplicate) should be sent to the following address: GSA Discrepancy Reports Centers (6 FR-Q), 1500 East Bannister Road, Kansas City, MO 64131-3088. Communications routing indicator: RUEVFXE (unclassified), RULSSAA (classified), Com: (816) 926-7447, FTS: 926-7447, AUTOVON: 465-7447.
(f) For defective items covered by a manufacturer's commercial warranty, activities should initially attempt to resolve all complaints on these items themselves (examples of items with a commercial warranty are vehicles, major appliances such as gas and electric ranges, washing machines, dishwashers, and refrigerators). If the contractor replaces or corrects the deficiency, an SF 368, in triplicate, should be sent to the Discrepancy Reports Center at the above address. The resolution of the case should be clearly stated in the text of the SF 368.
(g) If, however, the contractor refuses to correct, or fails to replace, either a defective item or an aspect of service under the warranty, an SF 368, along with copies of all pertinent correspondence, should be forwarded to the GSA office executing the contract (address will be contained in the pertinent contract/purchase order). An information copy of the SF 368 should also be submitted to the Discrepancy Reports Center at the above address.
(h) For items ordered from a GSA Federal Supply Schedule contract when the inspection is performed by an activity other than GSA or when the items are purchased by GSA for the user but not inspected by GSA, activities should initially attempt to resolve all complaints on these items directly with the contractor. If the contractor refuses to correct, or fails to replace a defective item, an SF 368, along with copies of all correspondence, should be forwarded to the GSA office executing the contract (address will be contained in the pertinent contract/purchase order). An information copy of the SF 368 should also be submitted to the Discrepancy Reports Center at the above address.
(i) Information submitted to the Discrepancy Reports Center regarding defective items will be maintained as a quality history file for use in future procurements.
(j) Additional information regarding reporting of quality deficiences may be obtained by referring to chapter 4 of the GSA publication cited in § 101-26.803-1.
(a) Transportation-type discrepancies shall be processed under the instructions in subpart 101-40.7 when the discrepancies are the fault of the carrier and occur while the shipments are in the possession of:
(1) International ocean or air carriers, regardless of who pays the transportation charges, except when shipment is on a through Government bill of lading (TGBL), or is made through the Defense Transportation System (DTS). Discrepancies in shipments on a TGBL or which occur while in the DTS shall be reported as prescribed in the GSA publication referenced in § 101-26.803-1; or
(2) Carriers within the continental United States, when other than GSA or DOD pays the transportation charges.
(b) All other shipping, transportation, or billing discrepancies shall be reported on the forms, and within the time frames, dollar limitations, and according to the procedures prescribed in the GSA publication referenced in § 101-26.803-1.
GSA and DOD will adjust billings resulting from over or under charges, or discrepancies or deficiencies in shipments, or material on a bill submitted under the provisions of this subpart 101-26.8 and the GSA publication referenced in § 101-26.803-1.
This subpart illustrates forms prescribed or available for use in connection with subject matter covered in other subparts of part 101-26.
(a) The Standard forms are illustrated in this section to show their text, format, and arrangement and to provide a ready source of reference. The subsection numbers in this section correspond with the Standard form numbers.
(b) The Standard forms illustrated in this § 101-26.4901 may be obtained by submitting a requisition in FEDSTRIP/MILSTRIP format to the GSA regional office providing support to the requesting agency.
The form illustrated in § 101-26.4901-149 is filed as part of the original document and does not appear in the
(a) The GSA forms are illustrated in this § 101-26.4902 to show their text, format, and arrangement and to provide a ready source of reference. The subsection numbers in this section correspond with the GSA form numbers.
(b) Agency field offices may obtain the GSA forms illustrated in this § 101-26.4902 by submitting their requirements to their Washington headquarters office which will forward consolidated annual requirements to the General Services Administration (BRO), Washington, DC 20405.
The form illustrated in § 101-26.4902-457 is filed as part of the original document and does not appear in the
The form illustrated in § 101-26.4902-1398 is filed as part of the original document and does not appear in the
The form illustrated in § 101-26.4902-1424 is filed as part of the original document and does not appear in the
The form illustrated in § 101-26.4902-1781 is filed as part of the original document and does not appear in the
The form illustrated in § 101-26.4902-2891 is filed as part of the original document and does not appear in the
This section illustrates forms issued by other agencies which are prescribed or available for use in connection with subject matter covered in other subparts of part 101-26. The issuing activity is also identified in the section requiring the use of such forms. The forms are illustrated to show their text, format, and arrangement and to provide a ready source of reference. The subsection numbers in this section correspond with the applicable agency form numbers.
The form illustrated in § 101-26.4904-416 is filed as part of the original document and does not appear in the
This part provides policies, principles, and guidelines to be used in the management of Government-owned inventories of personal property.
Each agency shall establish and maintain such control of personal property inventories as will assure that the total cost involved will be kept to the minimum consistent with program needs. For purposes of stock replenishment, inventories may be considered to be composed of active inventory which is that portion carried to satisfy average expected demand, and safety stock which is that portion carried for protection against stock depletion occurring when demand exceeds average expected demand, or when leadtime is greater than anticipated.
(a) In establishing active inventory levels, consideration shall be given to the average demand of individual items, space availability, procurement costs, inventory carrying costs, purchase prices, quantity discounts, transportation costs, other pertinent costs, and statutory and budgetary limitations.
(b) In establishing safety stock levels, consideration shall be given to demand and leadtime fluctuations, essentiality of items, and the additional costs required to achieve additional availability.
The economic order quantity (EOQ) principle is a means for achieving economical inventory management. Application of the EOQ principle reduces total variable costs of procurement and possession to a minimum.
All executive agencies, except the Department of Defense, within the United States, excluding Alaska and Hawaii, shall replenish inventories of stock items having recurring demands, except items held at points of final use, in accordance with the economic order quantity (EOQ) principle.
Guidelines for implementing the EOQ principle of stock replenishment are in the GSA Handbook, The Economic Order Quantity Principle and Applications, issued by the Federal Supply Service, GSA. The handbook is identified under national stock number 7610-00-543-6765 in the GSA Supply Catalog, and copies may be obtained by agencies in the same manner as other items in that catalog. The public may purchase the handbook from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
(a) When there are no limiting factors which preclude its application, such as space or budgetary limitations, the basic EOQ techniques shall be used.
(b) When a space, personnel, or budgetary limitation precludes application of the basic EOQ technique, a modification of the technique may be made provided the modification produces:
(1) The fewest possible replenishments for a given level of inventory investment; or
(2) The lowest possible level of inventory investment for a given number of replenishments.
(c) When quantity purchase discounts or volume transportation rates will produce savings greater than the increased variable costs involved in procurement and possession, the economic purchase quantity (EPQ) principle shall be used as described in the GSA Handbook. The Economic Order Quantity Principle and Applications.
Except for inventories eligible for return to GSA for credit pursuant to the provisions of § 101-27.501 and for inventories for which an economic retention limit has been established in accordance with the provisions of subpart 101-27.3 of this part, inventory levels may be adjusted upward when items of stock are to be acquired from excess sources. Such adjustments should be tempered by caution and arrived at after careful consideration. Generally, acquisitions of items for inventory from excess sources shall not exceed a 2-year supply except when:
(a) A greater quantity is needed to meet known requirements for an authorized planned program.
(b) The item is not available without special manufacture and a predictable requirement exists.
(c) Administrative determination has been made that in application of the EOQ principle of stock replenishment within an agency an inventory level in excess of 2 years is appropriate for low dollar-volume items.
(d) The items are being transferred into authorized stock funds for resale to other Government agencies.
This subpart provides for the identification, designation of useful life, and establishment of controls for shelf-life items to minimize loss and insure maximum use prior to deterioration. A shelf-life item is any item possessing deteriorative or unstable characteristics to the degree that a storage period must be assigned to assure the issuance of material that will perform satisfactorily in service.
This subpart 101-27.2 is applicable to all executive agencies except the Department of Defense. The principles and objectives prescribed in this subpart are in consonance with those adopted by the Department of Defense in the establishment of shelf-life procedures for use by military activities.
In order to assure maximum use of shelf-life items, each executive agency shall:
(a) Identify shelf-life items, including any new items to be placed in inventory, which have a limited shelf-life period.
(b) Establish the shelf-life period of such items and procedures for controlling their procurement, storage, and issue.
(c) Inspect or test certain shelf-life items prior to deterioration to determine if the shelf-life period can be extended.
(d) Conduct inventory management analyses to determine if shelf-life stocks are expected to be utilized prior to the expiration of the original or any extended shelf-life period, and, if not, arrange for transfer of such stock in sufficient time to permit usage prior to deterioration.
(e) Make available for Government-wide distribution, through excess property channels, any stocks which cannot be utilized through normal supply channels.
Shelf-life items are classified as nonextendable (Type I) and extendable (Type II). Type I items have a definite storage life after which the item or material is considered to be no longer usable for its primary function and should be discarded. Type II items are those for which successive reinspection dates can be established when the items have a continued usability as determined by examination based upon criteria that have been agreed upon. Examples of Type I items are drugs and medicines with certain characteristics. Examples of Type II items are paint and ink.
Shelf-life items shall be identified by use of a one-digit code to provide for uniform coding of shelf-life materials by all agencies.
(a) The code designators for shelf-life periods of up to 60 months are as follows:
| Shelf-life period (months) | Type I item code | Type II item code |
|---|---|---|
| 1 | A | |
| 2 | B | |
| 3 | C | 1 |
| 4 | D | |
| 5 | E | |
| 6 | F | 2 |
| 9 | G | 3 |
| 12 | H | 4 |
| 15 | J | |
| 18 | K | 5 |
| 21 | L | |
| 24 | M | 6 |
| 27 | N | |
| 30 | P | |
| 36 | Q | 7 |
| 48 | R | 8 |
| 60 | S | 9 |
(b) Code designator 0 is used to identify items not included in a shelf-life program.
(c) Code designator X shall be used to identify critical end-use items, military essential items, and medical items with a shelf life greater than 60 months. Agencies shall establish controls for such materials to prevent issuance of any unserviceable items.
(d) Agencies may also establish controls for materials with a shelf life greater than 60 months that are not identified in paragraph (c) of this section. Such controls should be established only when they are necessary for effective management of the items.
In determining requirements for shelf-life items, the following elements should be taken into consideration:
(a) Assigned storage time periods; and
(b) Appropriate contracting techniques for the particular item involved, including specification requirements, industry practices, and storage and delivery procedures.
Manufacturers shall, whenever practicable, be required to mark the unit or container with the month and year of manufacture or production and the batch number on all shelf-life items (60 months or less) procured from other than GSA sources. Whenever practical, the supplier shall be required to ship or deliver material within a given number of months from the date of manufacture or production. These “age on delivery” requirements should not be imposed in such a manner as to unduly restrict competition at any trade level. The following guidelines are suggested as appropriate for most shelf-life items:
| Shelf-life period | Age on delivery |
|---|---|
| 25 mos. or more | 6 mos. |
| 19 to 24 mos | 4 mos. |
| 13 to 18 mos | 3 mos. |
| 7 to 12 mos | 2 mos. |
| 6 mos. or less | 1 mo. or less. |
To the extent feasible and economical, shelf-life material shall be packaged in such a way as to provide for minimum deterioration.
Agencies shall establish the necessary controls to identify shelf-life items on their stock records (and in other appropriate elements of their supply system), and shall determine the appropriate shelf life for other than GSA managed items. Shelf-life items shall be stored in such a way as to ensure that the oldest stock on hand is issued first. Agencies shall issue the oldest stock of shelf-life items first except when it is not feasible as in shipments to overseas activities.
Type II items remaining in stock immediately before the end of the designated shelf-life period shall be inspected to determine whether the shelf life can be extended, except items having a line item inventory value of $300 or less, or if the cost of inspection or testing is significant in relation to the value of the item. If the material is found suitable for issue on the date of inspection, the shelf life should be extended for a period equal to 50 percent of the original shelf-life period and the next reinspection date established accordingly. Material should be reinspected before the end of each extended shelf-life period and the shelf life extended again up to 50 percent of the original shelf life as long as the material conforms to the established criteria. Material on which the shelf life has been extended shall not be shipped to overseas activities if the time remaining in the extended shelf-life period is relatively short.
When the shelf-life period of Type II material (except for critical end-use items as described below) is extended, only the exterior containers of bulk stocks need be annotated or labeled to indicate the date of inspection and date material is to be reinspected. Individual units of issue not classified as having a critical end-use application are not required to be annotated or labeled as long as controls are established to preclude issuance of unserviceable material to a user. (A critical end-use item is any item which is essential to the preservation of life in emergencies; e.g., parachutes, marine life preservers, and certain drug products, or any item which is essential to the performance of a major system; e.g., aircraft, the failure of which would cause damage to the system or endanger personnel.) At the time of shipment, the date of inspection and date for reinspection shall be affixed by label or marked by other means on each unit of issue of Type II items having a critical end-use application.
(a) An inventory analysis shall be conducted periodically for each Type I item to determine whether the quantity on hand will be used within the established shelf-life period. If the analysis indicates there are quantities which will not be used within the shelf-life period, arrangements shall be made to ensure use of the item(s) within the holding agency or for redistribution to other agencies.
(b) An inventory analysis shall be conducted periodically for each Type II item with a shelf life of 60 months or less to determine whether issue of the quantity on hand is anticipated prior to the expiration of the designated shelf life. This analysis shall be made as follows:
| Shelf-life period | Date of analysis |
|---|---|
| 48 to 60 mos | 12 to 16 mo. prior to expiration. |
| 36 to 48 mos | 8 to 12 mo. prior to expiration. |
| 18 to 36 mos | 6 to 8 mo. prior to expiration. |
| 12 to 18 mos | 4 to 6 mo. prior to expiration. |
| 6 to 12 mos | 3 to 4 mo. prior to expiration. |
| Up to 6 mos | No analysis required, but special emphasis should be placed on good requirements determination and proper order quantity. |
(1) If the analysis indicates that the quantity on hand will not be issued within the shelf-life period and the cost of inspection or testing is not significant in relation to the line item value, the items shall be inspected to determine if the shelf-life period can be extended.
(2) If the analysis indicates that the quantity on hand will be issued within the shelf-life period, inspection is not required. However, such items shall be viewed again during the last month of the shelf-life period to determine whether quantities are sufficient to warrant inspection. The guidelines in § 101-27.207-2 shall be used to determine whether quantities are sufficient to warrant inspection and for extending the shelf-life period.
(3) If an agency does not have an inspection capability and the quantity and value of an indicated overage is sufficiently large to warrant special consideration, arrangements shall be made for qualified inspection or laboratory testing to determine whether the material is suitable for issue.
Where it is determined that specified quantities of both Type I and Type II shelf-life items will not be used within the shelf-life period, such quantities shall be utilized or distributed in accordance with this section.
Shelf-life items that meet the criteria for return under the provisions of subpart 101-27.5 of this part may be offered for return to GSA.
Shelf-life items which do not meet the criteria in subpart 101-27.5 of this part, which would, if returned to GSA, adversely affect the GSA nationwide stock position, or which are returned to GSA and are determined unsuitable for issue, will be reported as excess under the provisions of part 101-43 of this chapter.
If no transfer is effected and no donation requested, the property shall be assigned for sale, abandonment, or destruction in accordance with part 101-45 of this chapter.
This subpart prescribes policy and procedures to assure maximum use of inventories based upon recognized economic limitations.
The provisions of this subpart are applicable to all civil executive agencies.
Through effective interagency matching of material and requirements before the material becomes excess, unnecessary procurements and investment losses can be reduced. Timely action is required to reduce inventories to their normal stock levels by curtailing procurement and by utilizing and redistributing long supply. (The term long supply means the increment of inventory of an item that exceeds the stock level criteria established for that item by the inventory manager, but excludes quantities to be declared excess.) In this connection, requirements for agency managed items should be obtained from long supply inventories offered by agencies rather than by procurement from commercial sources. Because supply requirements usually fluctuate over a period of time, a long supply quantity which is 10 percent or less of the total stock of the item is considered marginal and need not be reduced.
When the long supply of an item, including quantities due in from procurement, is greater than 10 percent of the total stock of that item, the inventory manager, or other appropriate official, shall cancel or curtail any outstanding requisitions or procurements on which award has not been made for such items, and may also cancel contracts for such items (if penalty charges would not be incurred) or transfer the long supply, if economical, to other offices within the agency in accordance with agency utilization procedures. In such cases, acquisition of long supply items shall not be made from other sources such as requirements contracts.
If the long supply of an item remains greater than 10 percent of the total stock of an item despite efforts to cancel or transfer the long supply as provided in § 101-27.303-1, the inventory manager shall offer the long supply to another agency or other agencies in accordance with this § 101-27.303-2. Before offering a long supply to any agency, the inventory manager shall determine whether the item to be offered is a centrally managed item or an agency managed item. A centrally managed item is an item of supply or equipment which forms part of an inventory of an agency performing a mission of storage and distribution to other Government activities; e.g., GSA and DSA. An agency managed item is a procured item that forms a part of a controlled inventory of an agency and its activities for issue internally for its own use. After determining whether the item to be offered is an agency or centrally managed item, the inventory manager shall:
(a) Offer centrally managed items to the agency managing the item for return and credit in accordance with the procedures established by that agency; and
(b) Offer agency managed items to other agencies which manage the same item. Reimbursement shall be arranged by the agencies effecting the inventory transfer. The responsibility of locating agencies or activities requiring these items shall rest with the agency holding the long supply. However, agencies may receive a list of Government activities using particular national stock numbers by writing to the General Services Administration (FFL), Washington, DC 20406.
If a long supply continues to exceed 10 percent of the total stock of an item despite efforts to redistribute the long supply as provided in § 101-27.303-2, the inventory manager shall establish an economic retention limit for the item in accordance with the provisions of this § 101-27.304. An economic retention limit is the maximum quantity of an item that can be held in stock without incurring greater costs for carrying the stock than the costs for disposal and resulting loss of investment. The economic retention limit shall be used to determine which portion of the inventory may be economically retained and which portion should be disposed of as excess.
An economic retention limit must be established for inventories so that the Government will not incur any more than the minimum necessary costs to provide stock of an item at the time it is required. Generally, it would be more economical to dispose of stock in excess of the limit and procure stock again at a future time when the need is more proximate rather than incur the cumulative carrying costs.
(a) The agency managing a centrally managed or agency managed item shall establish an economic retention limit so that the total cumulative cost of carrying a stock of the item (including interest on the capital that is tied up in the accumulated carrying costs) will be no greater than the reacquisition cost of the stock (including the procurement or order cost). Consideration should be given to any significant net return that might be realized from present disposal of the stock. Where no information has been issued, the net return from disposal is assumed to be zero. Guidelines for setting stock retention limits are provided in the following table and explanatory remarks that follow:
| Annual carrying costs as a percentage of item reacquisition costs | Economic retention limit in years of supply—net return on disposal as a percentage of item reacquisition costs | ||||
|---|---|---|---|---|---|
| 0 | 5 | 10 | 15 | 20 | |
| 10 | 7
| 6
| 6
| 6 | 5
|
| 15 | 5
| 5 | 4
| 4
| 4 |
| 20 | 4
| 4 | 3
| 3
| 3
|
| 25 | 3
| 3
| 3 | 3 | 2
|
| 30 | 3 | 2
| 2
| 2
| 2
|
| 35 | 2
| 2
| 2
| 2
| 2 |
| 40 | 2
| 2
| 2 | 2 | 1
|
| Years | Compounded carrying costs as a percentage of reacquisition | Accumulated costs as a percentage of reacquisitioned costs |
|---|---|---|
| 1 | 27.5 | 27.5 |
| 2 | 30.3 | 57.8 |
| 3 | 33.3 | 91.1 |
| 4 | 36.6 | 127.7 |
| 5 | 40.3 | 168.0 |
| 6 | 44.3 | 212.3 |
(b) The economic retention limit at a user stocking activity can best be determined by the item manager (for centrally managed or agency managed items) on the basis of overall Government requirements and planned procurement. Since stocks in long supply at a user stocking activity are less likely to find utilization outlets, the retention limit at these activities should be relatively small. Generally the economic retention limit at a user stocking activity should be computed in the same manner as in paragraph (a) of this section and then reduced by 70 percent.
(a) The economic retention limit may be increased where:
(1) The item is of special manufacture and relates to an end item of equipment which is expected to be in use beyond the economic retention time limit; or
(2) Costs incident to holding an additional quantity are insignificant and obsolescence and deterioration of an item are unlikely.
(b) The economic retention limit should be reduced under the following conditions:
(1) The related end item of equipment is being phased out or an interchangeable item is available; or
(2) The item has limited storage life, is likely to become obsolete, or the age and condition of the item does not justify the full retention limit.
Where efforts to reduce the inventory below the economic retention limit have been unsuccessful, appropriate disposition should be effected in accordance with subpart 101-43.3 of this chapter. Any remaining inventory which is within the economic retention limit shall be retained. However, the item shall be reviewed at least annually and efforts made to reduce the long supply inventory in accordance with § 101-27.303.
This subpart establishes policy and procedures designed to assure that items which can be obtained more economically from readily available sources, Government or commercial, are eliminated from inventory. For items which are not readily available from Government or commercial sources or are being held in inventory for a one time construction project, this subpart shall be applied to the extent feasible by the activity managing or controlling such inventories.
The provisions of this subpart are applicable to all executive agencies in connection with inventory items maintained at stocking activities other than Government wholesale supply sources.
By eliminating inactive items and slow-moving items which are readily available, when needed, from Government wholesale supply activities or from commercial sources, the costs to the Government in inventory investment and for maintaining the items in inventory can be eliminated. An “inactive item” is an item for which no current or future requirements are recognized by previous users and the item manager. A “slow-moving item” is an item for which there are current or future requirements, but the frequency and quantity of such requirements do not make it economical to stock them in lieu of obtaining requirements from other sources when needed. However, “standby or reserve items” are not to be eliminated from inventories. A “standby or reserve item” is an item for which a reserve stock is held so that the items will be available immediately to meet emergencies for which there is insufficient time to procure or requisition the items without endangering life or causing substantial financial loss to the Government.
Except for standby or reserve stocks, items in inventory shall be reviewed periodically (at least annually) to identify those which are inactive and slow-moving. This review may be conducted coincidently with the normal replenishment or long supply reviews. The estimate of current or future requirements for an item shall be based on its recent history of recurring requirements. Standby items shall also be reviewed at appropriate intervals to substantiate their qualification for inclusion in that category.
Inactive items, items which no longer qualify as standby, and slow-moving items which are readily available, when needed, from Government or commercial sources shall be eliminated from inventory. The determination of a slow-moving item shall be based on a comparison of the costs for continuing to maintain it in stock as opposed to the costs for ordering it from outside sources each time it is requested. This comparison shall also consider any difference in price and transportation costs for each alternative. In the absence of criteria for stockage of an item developed and used by an agency, the desired results will be obtained through application of the following table:
| Orders per year under economic order quantity (EOQ) | Minimum number of requests per year to justify continuation in stock |
|---|---|
| 12 and over | 24 |
| 11 | 22 |
| 10 | 20 |
| 9 | 18 |
| 8 | 16 |
| 7 | 14 |
| 6 | 12 |
| 5 | 10 |
| 4 | 8 |
| 3 and under | 7 |
| 11 orders at $5 per order | $55 |
| Under EOQ: | |
| 6 orders at $5 per order | $30 |
| Holding cost (equal to ordering cost) | 30 |
| Total | 60 |
Stocks of slow-moving items which are not otherwise determined to be eligible for continued stockage shall be eliminated through normal attrition and shall not be replenished. The successive actions indicated in paragraphs (a) through (c) of this section, shall be taken, as necessary, to remove stocks of inactive items from inventory.
(a) Transfer stock to other offices where needed within the agency.
(b) Transfer stock to other agencies as follows:
(1) Centrally managed items to the agency managing the item for credit; or
(2) Agency program items to agencies requiring them.
(c) Dispose of remaining stocks, as excess, after actions taken in paragraphs (a) and (b) of this section, in accordance with subpart 101-43.3.
This subpart sets forth policy and procedures for the return to GSA for credit of items which are in long supply or for which no current or future requirements are anticipated. The provisions of this subpart 101-27.5 are applicable to all executive agencies. Federal agencies other than executive agencies may participate in this program and are encouraged to do so.
GSA stock items for which no current or future agency requirements are anticipated are eligible for return to GSA for credit. Despite eligibility for return to GSA, consideration should be given to the transportation costs involved as related to the value of the items, and, where excessive, such items shall not be reported to GSA.
Any GSA stock item to be returned to GSA by an agency which has no current or future requirements for that item shall meet the following conditions:
(a) The minimum dollar value per line item, based on the current GSA selling price, shall be:
(1) $130 for hand tools, FSG 51, and measuring tools, FSG 52; and
(2) $450 for items in all other Federal supply groups and classes except for tires and tubes, FSC 2610; tool kits, FSC 5180; laboratory supplies, FSCs 6630 and 6640; Standard forms, FSC 7540; paints, dopes, varnishes, and related products, FSC 8010; preservatives and sealing compounds, FSC 8030; adhesives, FSC 8040; boxes, cartons, and crates, FSC 8115; and subsistence items, FSG 89, which are not returnable and shall be considered excess, and shall be processed in accordance with part 101-43 of this chapter.
(b) The minimum remaining shelf life of this material shall be 12 months at the time of receipt by GSA.
(c) The material shall not be a terminal or discontinued item.
(d) The material shall be in either condition code A or condition code E.
Allowable credit for activities returning material that is accepted by GSA will be reflected in billings by GSA and will be commensurate with the condition of the material received.
(a) Credit will be granted at the rate of 80 percent of the current GSA selling price after acceptance by GSA for new, used, repaired, or reconditioned material which is serviceable and issuable to all agencies without limitation or restriction (condition code A).
(b) Credit will be granted at the rate of 60 percent of the current GSA selling price for items which involve limited expenses or effort to restore to serviceable condition, and which is accomplished in the storage activity where the stock is located (e.g., a deficiency in packing or packaging which restricts the issue or requires repacking or repackaging (condition code E)).
(c) No credit will be given for material returned to GSA which does not meet the above criteria or which was returned to GSA without prior approval.
When an activity elects to offer material to GSA for credit, the activity shall submit offers in accordance with chapter 4 of the FEDSTRIP Operating Guide or chapter 9 of MILSTRIP (DoD 4000.25-1-M).
GSA will provide notice to the offering activity of an acceptance/rejection decision for an offer and verification of material receipt for accepted offers.
(a) Within 20 workdays after receipt of an offer to return material, GSA will notify the offering activity of acceptance or rejection of the offer.
(1) For accepted offers, GSA will inform the offering activity of the GSA material return facility (storage activity) to which the material shall be shipped. Prior to shipment of the material authorized by GSA for return, activities shall verify the declared condition. (If the offering activity considers that the transportation costs of sending the material to the GSA material return facility are excessive in relation to the value of the material and withdraws the offers, the GSA region that was designated to receive the offered material shall be notified accordingly.)
(2) For rejected offers, GSA will so inform the activity offering the material and give the reason for nonacceptance.
(b) Upon receipt of material authorized for return by GSA, the offering activity will be provided verification of receipt and a report of any discrepancies. When the discrepant condition is attributable to carrier negligence, subsequent credit allowed by GSA will be reduced by the amount to be paid the agency by the carrier for any damages incurred. A notice of credit will be provided the offering activity through credit entries on the monthly billing statement from the supporting GSA finance center.
(c) When offers of material that have been authorized by GSA for return are withdrawn, offering activities shall report such cancellation to the GSA region that was designated to receive the offered material.
Returned material will be examined by GSA upon receipt to determine acceptability for credit. Returned material which is unacceptable for credit will be deemed to have been declared excess by the returning activity, and will be disposed of by GSA as excess or surplus in the name of the activity, in accordance with part 101-43 of this chapter. The returning activity will be officially notified of the disposal action taken by GSA.
Transportation costs for the movement of material to GSA and handling costs for preparation and shipment shall be paid by the activity shipping the material to GSA.
This part prescribes policy and procedures for the economical and efficient management of warehousing and related activities by executive agencies.
This subpart prescribes policies and procedures to be followed in the cross-servicing of storage and warehousing services between executive agencies of the Government. It implements the provisions of the cross-servicing agreement between the Department of Defense (DOD) and GSA and extends the provisions of the agreement to provide cross-servicing between the civilian agencies of the Government.
(a) The policies and procedures established by this subpart 101-28.2 are primarily applicable to storage activities within the United States. Executive agencies shall make every effort to utilize available Government storage services of other executive agencies to avoid new construction of storage facilities, acquisition of temporary space, and unnecessary transportation of supplies, material, and equipment to distant storage points. Whenever feasible, the policies and procedures shall be used to cross-service storage and warehousing requirements in overseas storage activities. Available storage services of executive agencies shall be made available for cross-servicing the requirements of other Federal agencies when requested. Other Federal agencies are encouraged to participate in cross-servicing arrangements.
(b) The provisions of this subpart 101-28.2 do not apply to ocean terminals, Government storage activities financed under industrial funds, activities concerned with the storage and handling of bulk fuels (petroleum products), and storage functions performed by GSA for the Federal Preparedness Agency.
An agreement between GSA and DOD has established procedures to be followed in the cross-servicing of storage and warehousing services between Government agencies. Copies of the agreement, containing a listing of minimum services to be provided, responsibilities of agencies operating storage facilities, responsibilities of requesting agencies, and agency contact points to determine storage availability, may be obtained from the General Services Administration (FFN), Washington, DC 20406.
Requests for storage and warehousing services shall be in accordance with the procedures set forth in the GSA/DOD cross-servicing agreement. Arrangements incident to the furnishing of services, specific limitations, terms, and conditions shall be agreed to directly by the activities concerned.
(a) Accepted requests may be canceled by the requesting agency prior to delivery of supplies, material, and equipment to the storage activity when logistical developments make cancellation necessary or cancellation is in the best interest of the Government. The agency which accepted the request shall be informed of the cancellation in writing as soon as possible.
(b) Cancellation of arrangements in facilities to be inactivated or disposed of by an operating agency may be made as provided for in the GSA/DOD agreement. Also, after supplies, material, and equipment have been received at a storage activity, cancellation may be made when unforeseen emergencies arise which justify such cancellation. Advice of these necessary cancellations shall be in writing to the agency owning the material sufficiently in advance to allow the owning agency the maximum amount of time to make other arrangements for their property.
(c) When a facility in which cross-servicing is being accomplished is to be transferred from an operating agency to another agency, the operating agency shall inform the agency owning the property at least 90 days before the transfer. The agency owning the property shall negotiate with the agency gaining the facility for continued cross-servicing of the property at the facility. The agency gaining the facility shall continue the cross-servicing arrangements unless they are contrary to the best interest of the Government.
Normally, charges for services rendered will be based upon the standard rates established by the agency for internal use. However, special rates may be negotiated to cover actual or estimated costs for large, bulk lots of material when the applicable rates appear inequitable, subject to the approval of the appropriate program official for the civilian agency, and the Assistant Secretary of Defense (I and L) when DOD is involved.
Reimbursement for services rendered shall be made promptly after receipt of billing. The frequency for billing and reimbursement shall be established by the activity providing warehousing and storage services; however, billing and reimbursement shall be made not less frequently than quarterly nor more frequently than monthly.
As used in this subpart 101-28.2, the following term shall apply.
A Government activity or facility utilized for the receipt, storage, and issue of supplies, materials, and equipment, including storage of reserve or excess stocks or intransit storage. The activity may be either Government owned or leased, and it may be either Government operated or contract operated.
The point within the headquarters of a military service or civilian agency to which requests should be forwarded. Coordination necessary with various organizational elements within a military service or civilian agency shall be accomplished by the contact point.
This subpart provides policy for the GSA customer supply center program, including policy on item stockage, services provided, and Federal agency participation.
This subpart is applicable to all activities that are eligible to use customer supply centers. Eligible activities include executive agencies, elements of the legislative and judicial branches of the Government, and cost reimbursable contractors. Customer supply centers are for the use of activities located within the market area of a customer supply center as determined by GSA.
Customer supply centers are retail supply distribution outlets established by GSA to provide efficient, economical support of frequently needed common-use expendable items for the accomplishment of customer agency missions.
The customer supply centers (CSCs) provide the following:
(a) Overall savings to the Federal Government through volume purchases.
(b) Quick and easy catalog item selection and simplified order placement by telephone, mail, electronic mail, or customer walk-in for urgent agency requirements.
(c) Next business day shipment to the customer for most orders.
(d) Same day pick up of emergency walk-in and telephone orders.
(e) Immediate stock availability information for all telephone and walk-in orders.
(f) Extensive inventory designed to meet the needs of customer agencies within the geographic area served by each CSC.
(g) A detailed catalog which lists the items stocked and procedures for use of the CSC.
(h) Automated biweekly billings (consistent with DOD MILSBILLS).
(i) Other services as approved by the GSA Regional Administrator.
Items stocked in customer supply centers are based on customer agency requirements for common use expendable items. In addition to administrative type items commonly used in Government offices, janitorial supplies, handtools, and other industrial-type items are stocked when required to meet the mission-related needs of the activities supported by the CSC.
(a) Each CSC will stock administrative items normally required by Federal agencies for day-to-day operations. In addition to those items, each CSC will stock additional items as determined by the requirements of the activities within the geographic area it serves.
(b) Regional FSS offices will canvass customer agencies periodically to identify items for which there is an official need within their support area.
(c) Customer agencies may request that specific items be stocked by their support CSC. The requests must be submitted in writing to the appropriate-FSS Bureau Director and must be signed by a customer agency official at a level of responsibility (division director or higher) acceptable to the GSA Regional Administrator. All requests must indicate the expected monthly usage of the item requested. Each request will be evaluated and the submitting activity notified of the results of the evaluation.
The selling price of a CSC item is an average price which is calculated automatically by the CSC computer at the time the item is ordered. Items stocked in CSCs that are obtained from GSA wholesale supply distribution facilities are input into the computer at the price in effect at the time of shipment from the facilities (this price is normally the price shown in the GSA Supply Catalog). Items stocked in CSCs that are not available from GSA wholesale supply distribution facilities but which are obtained from other Government supply sources or commercial sources are input into the computer at the invoice cost. Due to cost averaging, item prices listed in the CSC catalog may differ somewhat from the sale price for a particular transaction.
(a) Eligible agencies should contact the GSA Regional Federal Supply Service Bureau to obtain full information on the use of the CSC for their locale. FSS Bureau personnel will provide assistance to agencies in the establishment of the CSC account, brief personnel on the use of the CSC to meet local, retail supply requirements, and provide copies of the CSC catalog.
(b) An appropriate level management official (division director of higher) authorized to obligate agency funds must sign the GSA Form 3525, Application for Customer Supply Services, requesting establishment of the CSC account for the activity.
(a) Orders are received by the CSC via phone, mail, electronic mail, or in person on a walk-in basis for urgent agency requirements. All use of the CSC is based upon the customer access code assigned at the time of establishment of the activity account. The customer access code determines the ship-to point for orders placed with the CSC. The ship-to point cannot be changed, one established, except by the submission of a written request signed by an appropriate agency official.
(b) All orders placed with the CSC, except emergency pickup orders, described in § 101-28.306-1(c), will be shipped to the activity placing the order via mail or small parcel carrier not later than the end of the next business day.
(c) Walk-in orders for urgent requirements are accepted and filled immediately provided the individual placing the order has proper identification. Telephone orders placed in the morning may be picked up in the afternoon of the same day provided that the individual picking up the order possesses proper identification and the order ticket number provided by the CSC personnel at the time the order is placed.
(a) Agencies shall establish internal controls to ensure that the use of the CSC account by the agency or other authorized activities is limited to the purchase of items for official Government use. The controls shall include written instructions that contain a statement prohibiting the use of the CSC account in acquiring items for other than Government use. When an agency makes a purchase of more than $500 per line item from a GSA customer supply center which is other than a similar lowest priced item available from a multiple-award schedule, GSA will assume that a justification has been prepared and made a part of the buying agency's purchase file. Availability of products, regardless of the total amount of the line item price, does not relieve an agency of the responsibility to select the lowest priced item commensurate with needs of the agency.
(b) Office supplies needed by Members of Congress and the Delegate of the District of Columbia for use in their offices in the House or Senate Office Buildings should be obtained from the Senate and Houses Representatives supply rooms, as appropriate. Members of Congress, except for the Delegate of the District of Columbia, should limit their use of the CSCs to those located outside of the District of Columbia. The Delegate of the District of Columbia may obtain office supplies for the use of his or her district offices from the CSC serving the District of Columbia.
(a) CSC accounts established for Federal agencies or members of the Federal judiciary are valid for an indefinite period of time unless canceled by the Commissioner, FSS, GSA, or by a GSA Regional Administrator.
(b) CSC accounts established for authorized contractors or Members of Congress will contain an expiration date reflecting the termination date of the contract or term of office. New accounts will be established for reinstated contractors or reelected Members of Congress upon submission of a new application.
(c) Any CSC customer may request cancellation of his/her account when no longer required or whenever there is cause to believe that the customer access code has been compromised. Agencies shall keep GSA advised of any changes in organization or accounting structures that might have an impact on their CSC accounts.
(d) The Commissioner FSS, GSA, may periodically direct a nationwide purge of all CSC accounts to cancel those that are duplicates, not needed, or for which the customer access code has been compromised. Selective account cancellations may be directed by the GSA Regional Administrator in coordination with FSS Central Office. Under the procedures of a nationwide purge, CSC accounts become invalid as of a specific date established by the Commissioner, FSS, GSA, or by a Regional Administrator, and new CSC accounts are established upon receipt of new applications.
Agencies shall establish internal controls to ensure that the customer access codes assigned for their accounts are properly protected. It is by use of these access codes that orders are accepted by the CSC and these codes determine the ship-to points for all orders filled by the CSC with the exception of orders picked up at the CSC by the customer. GSA will not change the ship-to location associated with the customer access code except upon receipt of a written request to do so, signed by a duly authorized official of the customer activity.
Many items stocked by the CSCs may be considered sensitive based upon standard criteria factors such as propensity for personal use, the potential for embarrassment of GSA and customer agencies, the level of customer complaints, and control as an accountable item of personal property. Each customer activity shall take all appropriate measures necessary to ensure that all items are properly controlled within its activity and are purchased solely for official Government use.
The GSA Regional Administrator is responsible for the operation of any CSCs located within his or her region.
This part sets forth the policy and procedures for managing and using Federal product descriptions.
Federal and interim Federal specifications, their associated Federal qualified products lists (QPL's), Federal and interim Federal standards and Commercial item descriptions (CID's) are referred to collectively as Federal product descriptions. They are developed by GSA or other Federal agencies under the Assigned Agency Plan described in the “Federal Standardization Handbook” issued by the Assistant Administrator for Federal Supply and Services (FSS). Product descriptions are coordinated with other Federal agencies having technical, statutory, or regulatory interest in the commodity or other subject matter covered. Generally, before they are issued, Federal product descriptions are reviewed by technical societies, individual industrial producers, and organizations representing industrial producers and consumers.
In accordance with Public Law 94-168, 15 U.S.C. 205b, the Administrator of General Services shall develop procedures and plan for the increasing use of metric products by requiring Federal agencies to:
(a) Maintain close liaison with other Federal agencies, State and local governments, and the private sector on metric matters, and
(b) Review, prepare, and revise Federal standardization documents to eliminate barriers to the procurement of metric goods and services. These actions will occur during the overage document review or when the agency is informed by the private sector that metric products can be produced in a specific Federal supply classification class.
A specification is a document, prepared specifically to support acquisition that clearly and accurately describes the essential technical requirements for purchased material. Procedures necessary to determine whether these requirements have been met are also included.
A standard is a document that establishes engineering and technical requirements for items, processes, procedures, practices, and methods that have been adopted as customary. Standards may also establish requirements for selection, application, and design criteria so as to achieve the highest practical degree of uniformity in materials or products, or interchangeability of parts used within or on those products.
A Federal specification is a specification, issued in the Federal series, that is mandatory for use by all Federal agencies. These documents are issued or controlled by the General Services Administration and are listed in the GSA “Index of Federal Specifications, Standards and Commercial Item Descriptions.”
An interim Federal specification is a potential Federal specification issued in temporary form for optional use by all Federal agencies. Interim amendments to Federal Specifications and amendments to interim Federal specifications are included in this definition. These documents are issued or controlled by the General Services Administration and are listed in the GSA “Index of Federal Specifications, Standards and Commercial Item Descriptions.”
A Federal standard is a standard, issued in the Federal series, that is mandatory for use by all Federal agencies. These documents are issued or controlled by the General Services Administration and are listed in the GSA “Index of Federal Specifications, Standards and Commercial Item Descriptions.”
An interim Federal standard is a potential Federal standard issued in temporary form for optional use by all Federal agencies. These documents are issued or controlled by the General Services Administration, primarily for use in the telecommunication functional area.
A qualified products list is a list of products that have met the qualification requirements stated in the applicable specification, including appropriate product identification and test or qualification reference number, with the name and plant address of the manufacturer and distributor, as applicable. Documents that contain QPL requirements are listed in the GSA “Index of Federal Specifications, Standards and Commercial Item Descriptions.”
A commercial item description is an indexed, simplified product description that describes by function or performance characteristics of available, acceptable commercial products that will satisfy the Government's needs. These documents are issued or controlled by the General Services Administration and are listed in the GSA “Index of Federal Specifications, Standards and Commercial Item Descriptions.”
A purchase description is any informal product description prepared for one-time use only or for small purchases when issuance of a formal product description is not cost effective.
The term product is any end item, either manufactured or produced, and also includes materials, parts, components, subassemblies, equipment, accessories, attachments, and services.
A product description is a description of a product for acquisition and management purposes. Product descriptions include specifications, standards, commercial item descriptions, purchase descriptions, and brand-name purchase descriptions.
Tailoring is a process by which the individual requirements (sections, paragraphs or sentences) or product descriptions are evaluated to determine the extent to which each requirement is most suitable for a specific acquisition and the modification of these requirements, where necessary, to ensure that each document invoked achieves and optimal balance between operational needs and costs.
A commercial product is any item, component, or system available from stock or regular production that is sold in substantial quantities to the general public at established catalog or market prices (for definition of terms, see FPR 1-3.807.1).
A commercial-type product is defined as:
(a) Any product similar to the commercial product but modified or altered in compliance with specified Government requirements and, as such is usually sold only to the Government and not through the normal catalog or retail outlets;
(b) Any product similar to a commercial product that is either assembled or manufactured in accordance with specifically stated Government requirements and sold only to the Government and not to the general public; or
(c) A commercial product identified or marked differently than the commercial product normally sold to the general public.
A departmental specification or standard is a specification or standard prepared by, and of primary interest to, a particular Federal agency, but which may be used by other Federal agencies.
The Department of Defense Index of Specifications and Standards is a Department of Defense (DoD) publication of unclassified Federal and military specifications and standards, related standardization documents, and voluntary standards that are used by DoD.
A military specification or standard is a specification or standard issued by the Department of Defense and listed in the DODISS.
Voluntary standards are established generally by private sector bodies and available for use by any person or organization, private or governmental. The term includes what are commonly referred to as “industry standards” as well as “consensus standards,” but does not include professional standards of personal conduct, institutional codes of ethics, private standards of individual firms, or standards mandated by law such as those contained in the United States Pharmacopeia as referenced in 21 U.S.C. 351.
The Index of Federal Specification, Standards and Commercial Item Descriptions is a GSA publication that lists Federal specifications, qualified products lists, standards, and commercial item descriptions.
Market research and analysis is a process used to ascertain and analyze the range and quality of available commercial products to determine whether they meet user needs and to identify the market practices of firms engaged in producing, distributing, and supporting the products.
The Federal Specifications, Standards and Commercial Item Description Program is a standardization program developed under authority of the Federal Property and Administrative Services Act of 1949, as amended (63 Stat. 377) in consonance with the Defense Cataloging and Standardization Act (Sections 2451-2456, title 10, U.S.C. chapter 145), managed by the General Services Administration, for the purpose of coordinating civilian and military standardization functions to avoid unnecessary duplication. Within the program, procedures and controls govern the development, coordination, approval, issuance, indexing, management, and maintenance of product descriptions in the Federal series (Federal specifications, Federal standards, and CID's) that define commercial products and products that have high potential for common Federal agency use.
The Administrator of General Services is responsible for establishing policies and procedures, in coordination with the other agencies, for the preparation, coordination, approval, issuance, and maintenance of product descriptions in the Federal series of specifications, standards, and CID's.
The Assistant Administrator for Federal Supply and Services will issue and maintain on a current basis a “Federal Standardization Handbook.” The Federal Standardization Handbook sets forth operating procedures and applicable definitions used in the development of Federal product descriptions under the Assigned Agency Plan described therein. Federal agencies shall adhere to the provisions of the handbook in the development and coordination of Federal product descriptions.
The Assistant Administrator for Federal Supply and Services will promulgate and maintain on a current basis the “Index of Federal Specifications, Standards and Commercial Item Descriptions.” The Index lists Federal product descriptions which have been printed and distributed, including those which are mandatory for use, and identifies the sources from which these documents may be obtained. Supplements to the Index indicate the dates on which the use of new Federal product descriptions become mandatory. The Department of Defense also lists Federal product descriptions in the “Department of Defense Index of Specifications and Standards.”
The Assistant Administrator for Federal Supply and Services is responsible for establishing a program for periodically reviewing Federal product descriptions to determine whether revision, cancellation or reauthorization (validation) is appropriate. The frequency of the review shall be based on the degree of change in the technology of the product covered by the description and shall be conducted at least once every 5 years.
Heads of other Federal agencies are responsible for adhering to the policies and procedures established by GSA for management and control of Federal product descriptions and for the use of these documents in acquisition as applicable.
(a) Federal executive agencies shall evaluate the effectiveness of their Federal product descriptions by:
(1) Establishing a system for obtaining user critiques of products acquired using those descriptions; and
(2) Establish a method whereby the preparing activity can locate and communicate with the users.
(b) The system shall encourage users to communicate with acquisition organizations regarding:
(1) The user's essential requirements;
(2) Product suitability for use in the user's environment;
(3) Product failures and deficiencies;
(4) The needs of the logistics system; and
(5) Suggestions for corrective actions.
(c) Acquisition organizations shall designate a central point in each agency to evaluate and respond to user critiques and take corrective action on reasonable complaints and suggestions.
(d) At the time of the periodic review, the responsible preparing activity shall consider available user evaluations, the results of market research and analysis, and all reported deviations from the product description. Information, such as the following shall be examined in the review process:
(1) Whether the product description is still needed in its present form and scope or whether a more simplified one can be used;
(2) The existence of voluntary standards or other Government product descriptions that may better reflect current requirements;
(3) The need to convert Federal and agency specifications covering commercial or commercial-type products to CID's; and
(4) The currency and applicability of reference documents included in the product description.
(a) Federal product descriptions shall be used by all Federal agencies in the procurement of supplies and services covered by such descriptions, except as provided in § 101-29.402 and § 101-29.403.
(b) The order of preference in selecting Federal product descriptions for acquisition shall be:
(1) Any Federal product description adopting voluntary standards.
(2) Commercial item descriptions.
(3) Federal specifications and standards.
(a) Federal product descriptions do not need to be used under any of the following circumstances:
(1) The purchase is required under a public exigency and a delay in obtaining agency requirements would be involved in using the applicable description.
(2) The total amount of the purchase is less than $10,000. (Multiple small purchases of the same item shall not be made for the purpose of avoiding the intent of this exception. Further, this exception in no way affects the requirements for the procurement of items available from GSA supply distribution facilities, Federal Supply Schedule contracts, GSA procurement programs, and certain procurement sources other than GSA that have been assigned supply responsibility for Federal agencies as provided in subparts 101-26.3, § 101-26.4, and § 101-26.5).
(3) The items are purchased in foreign markets for use of overseas activities of agencies.
(4) The products are adequately described in voluntary standards or in standards mandated by law.
(5) The acquisition involves a one-time procurement.
(6) A Federal product description is not currently available and is not expected to be available within a reasonable time of the scheduled acquisition action.
(7) The product is available only from a single source or is produced to a single manufacturer's design.
(8) The product is unique to a single system.
(9) The product (excluding military clothing) is acquired for authorized resale.
(b) If the purchase involves the following, Federal product descriptions do not need to be used except to the extent they are applicable, in whole or in part:
(1) Items required in construction of facilities for new processes or new installations of equipment;
(2) Items required for experiment, test, or research and development; or
(3) Spare parts, components, or material required for operation, repair, or maintenance of existing equipment.
When the exceptions listed in § 101-29.402 do not apply and an applicable indexed product description is desired for use in procurement but does not meet an agency's essential needs, exceptions to the product description to effect procurement may be authorized as follows:
(a) All exceptions to Federal telecommunications standards require prior approval by the Assistant Administrator for Information Resources Management, General Services Administration, Washington, DC 20405.
(b) Preparing activities may designate specific product descriptions that require approval of exceptions by the preparing activity before use.
(c) Exceptions to Federal product descriptions that do not require prior approval under paragraphs (a) and (b) of this section may be authorized by the acquiring agency if:
(1) Justifications for exceptions are subject to review before authorization and that such justification can be fully substantiated if post audit is required;
(2) Notification of exception or recommendation for change to the Federal product description is sent promptly to the preparing activity and the General Services Administration (FCO), Washington, DC 20406.
Each agency taking exceptions shall establish procedures whereby a designated official having substantial procurement responsibility shall be responsible for assuring that Federal product descriptions are used and provisions for exceptions are complied with.
Product descriptions prepared to define and impose performance characteristics, engineering disciplines, and manufacturing practices such as reliability, system safety, quality assurance, maintainability, configuration management, and the like shall be tailored in accordance with their specific application in acquisitions.
Interim Federal specifications are for optional use. All agencies are urged to make maximum use of them and to submit suggested changes to the preparing activity for consideration in further development of the specifications for promulgation as Federal specifications or commercial item descriptions. Interim revisions or interim amendments to Federal specifications are for optional use as valid exceptions to the Federal specifications so revised or amended and must, therefore, be specifically identified by symbol and date in the invitation for bids or request for proposal.
When material, equipment, or services covered by an available Federal specification or interim Federal specification are specified in connection with Federal construction, the Federal specification or interim Federal specification shall be made part of the specification for the construction contract, subject to provisions in §§ 101-29.402, 101-29.403, and 101-29.501.
When a Federal product description is not available, existing agency product descriptions should be used by all agencies consistent with each agency's procedures for establishing priority for use of such descriptions.
This part provides for a Federal Catalog System by which items of supply under § 101-30.301 are uniformly named, described, classified, and assigned national stock numbers (NSN's) to aid in managing all logistical functions and operations from determination of requirements through disposal. This system provides a standard reference language or terminology to be used by personnel in managing these items of supply, a prerequisite for integrated item management under the Federal procurement system concept.
The provisions of this part are applicable to all Federal agencies. However, they shall apply to the Department of Defense only when so specified within or by the subparts of this part.
This subpart defines the objectives of the Federal Catalog System, and assigns responsibilities for its operation. The basic principles and procedures of the Federal Catalog System are contained in published cataloging handbooks and manuals described in subpart 101-30.2.
As used in this part 101-30, the following terms shall have the meanings set forth in this § 101-30.101.
Civil agency item means an item of supply in the supply system of one or more civilian agencies, which is repetitively procured, stocked, or otherwise managed (includes direct delivery requirements as well as items stocked for issue).
Item-of-production means those articles, equipment, materials, parts, pieces, or objects produced by a manufacturer which conform to the same engineering drawing, standard, or specification and receive the same quality control and inspection.
Item of supply means an item of production that is purchased, cataloged, and assigned a national stock number by the Government. The item of supply is determined by the requirements of each Government agency's supply system. The item of supply concept differentiates one item from another item in the Federal Catalog System. Each item of supply is expressed in and fixed by a national item identification number. An item of supply may be:
(a) A single item of production;
(b) Two or more items of production that are functionally interchangeable;
(c) A more precise quality controlled item than the regular item of production, or
(d) A modification of a regular item of production.
The national stock number (NSN) is the identifying number assigned to each item of supply. The NSN consists of the 4-digit Federal Supply Classification (FSC) code and the 9-digit national item identification number (NIIN). The written, printed, or typed NSN configuration is 1234-00-567-8901. The following terms are elements of the 13-digit national stock number:
(a) Federal Supply Classification (FSC) is a 4-digit number which groups similar items into classes.
(b) National Codification Bureau (NCB) code is a 2-digit number designating the central cataloging office of the NATO or other friendly country which assigned the national item identification number (NIIN) and is used as the first two digits of the NIIN.
(c) National item identification number (NIIN) is a 9-digit number composed of the NCB code number (2-digits) followed by 7 other nonsignificant digits.
Federal item identification means the approved item identification for the item of supply, plus the national stock number assigned to that item identification. It consists of four basic elements: The name of the item, the identifying characteristics, the Federal Supply Classification code, and the national item identification number.
Cataloging means the process of uniformly identifying, describing, classifying, numbering, and publishing in the Federal Catalog System all items of personal property (items of supply) repetitively procured, stored, issued, and/or used by Federal agencies.
Cataloging activity means the activity of a Federal agency having responsibility for performing cataloging operations in identifying and describing items of supply in the Federal Catalog System.
Federal Catalog System means the single supply catalog system designed to uniformly identify, classify, name, describe, and number the items of personal property used by the Federal Government by providing only one classification, one name, one description, and one item identification number for each item of supply. It provides a standard reference language or terminology to be used by all persons engaged in the process of supply.
Conversion means the changeover from using existing supply classifications, stock numbers, names, and identification data to using those of the Federal Catalog System in all supply operations, from determination of requirements to final disposal.
Item entry control means the functional responsibility of GSA/DOD cataloging to minimize the number of items in the supply system by: (a) Establishing controls that prevent unessential new items from entering the supply system; (b) promoting the development of standards and use of standard items; and (c) eliminating items having nonstandard characteristics, and isolating and recommending the use of duplicate or replacement items.
GSA section of the Federal Supply Catalog means a series of supply catalogs issued by GSA as an integral part of the Federal Supply Catalog. These catalogs indicate the source for obtaining supplies and services and contain ordering instructions and related supply management data.
Recorded data means the data which are associated with a national stock number and are recorded on microfilm or magnetic computer tape at the Defense Logistics Center (DLSC), Battle Creek, MI 49016.
Item identification data means recorded data which are used to differentiate an item from all other items. Item identification data are composed of data that describe the essential physical characteristics of the item and reference data that relate the item to other identifying media (such as manufacturers' part numbers, identified blueprints, suppliers' catalogs, or the like).
Management data means recorded data that relate an item to the individual agency's supply system for purposes of supply management as standardization, source of supply, or inventory control. Management data do not affect the identification of an item.
Maintenance action means any action taken after conversion to the Federal Catalog System which changes the previously reported identification or management data regarding a cataloged item.
Data preparation means the conversion of item identification and management data to the appropriate Automated Data Processing (ADP) format.
Data transmission means the operation of telecommunication equipment for the receipt and transmission of item identification and management data.
Supply support means the functions performed by the supply manager to provide requesting (using) activities with a Government source and method of supply for an item; e.g., GSA stock program, Federal supply schedule program, GSA's buy-on-demand program, or GSA's authorizing an agency to purchase locally.
Supply support request means a request from an activity to a supply manager; e.g., a request to GSA to provide that activity with supply support for an item.
The objectives of the Federal cataloging program are:
(a) To provide for the maintenance of a uniform Federal supply catalog system and the conversion to and exclusive use of this system by all Federal agencies.
(b) To name, describe, identify, classify, and number each item of personal property to be included in the Federal Catalog System so that the same items will have a single Federal item identification within and among the organizational elements of all Federal agencies.
(c) To collect, maintain, and publish such Federal catalog data and related supply management data as may be determined necessary or desirable to reflect such benefits to supply management as:
(1) Assistance in standardization of supplies and equipment;
(2) Disclosure of interchangeability and substitutability of items;
(3) Reduction in inventories of stock and increased rates of turnover;
(4) Increase in vendor competition and broader sources of supply;
(5) Provision of data for determining the most effective and economical method of item management on a Federal agency systemwide basis;
(6) Enhance item entry control;
(7) Facilitation of better interagency and intra-agency use of supplies, equipment, and excess stocks, and more exact identification of surplus personal property; and
(8) Assistance in providing precise statistics for budget and financial accounting purposes.
(a) The provisions of section 206 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 487) authorize the Administrator of General Services to establish and maintain a uniform Federal Catalog System to identify and classify personal property under the control of Federal agencies. Under this law each Federal agency is required to utilize the uniform Federal Catalog System, except as the Administrator of General Services shall otherwise provide, taking into consideration efficiency, economy, and other interests of the Government.
(b) The Defense Cataloging and Standardization Act (chapter 145, title 10, U.S. Code) authorizes the Secretary of Defense to develop a single supply catalog system for the Department of Defense.
(c) Both laws require that the Administrator of General Services and the Secretary of Defense shall coordinate the cataloging activities of GSA and the Department of Defense to avoid unnecessary duplication.
(a) Each civil agency shall:
(1) Participate in the preparation and maintenance of the civil agency portion of the Federal Catalog System and in the conversion to and utilization of this system, and
(2) Comply with the policies, principles, rules, and procedures of the Federal Catalog System as prescribed in this part 101-30.
(b) Adherence by the Department of Defense to the single supply catalog system developed for the military departments under chapter 145, title 10, U.S. Code, shall be deemed to constitute full coordination of cataloging activities with GSA.
(a) This subpart describes the cataloging handbooks and manuals prepared by the Defense Logistics Agency, Department of Defense, in coordination with GSA.
(b) The following basic cataloging handbooks and manuals are available for purchase from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. The requirements of these publications shall be followed by all cataloging activities participating in the Federal Catalog System.
(1) Federal Catalog System Policy Manual (DOD 4130.2-M). This hard copy manual prescribes the operating policies and instructions covering the maintenance of a uniform catalog system.
(2) Defense Integrated Data Systems (DIDS) Procedures Manual (DOD 4100.39-M). This hard copy manual prescribes the procedures covering the maintenance of a uniform catalog system.
(3) Federal Supply Classification (Cataloging Publication H2 Series). This microfiche publication includes the listings and indexes necessary for using the commodity classification system (grouping related items of supply) as prescribed by the Federal Catalog System Policy Manual.
(4) Federal Supply Code for Manufacturers (Cataloging Publication H4 Series). This microfiche publication includes a comprehensive listing of the names and addresses of manufacturers who have supplied or are currently supplying items of supply used by the Federal Government and the applicable 5-digit code assigned to each.
(5) Federal Item Name Directory (FIND) for Cataloging (Cataloging Publication H6 Series). This microfiche publication includes names of supply items with definitions, item name codes, and other related data required to prepare item identifications for inclusion in the Federal Catalog System.
The cataloging publications indicated in § 101-30.201 provide a ready reference to the following operating policies and rules covering the uniform catalog system:
(a) Identification. (1) Each civil agency shall ensure that each of its items authorized for cataloging is included and maintained in the Federal Catalog System as prescribed in the Federal Catalog System Policy Manual.
(2) Each item of supply shall have applicable to it one, and only one, Federal item identification; each Federal item identification shall be applicable to one, and only one, item of supply.
(b) Federal Supply Classification (FSC). (1) The Federal Supply Classification shall be used in supply management within the civil agencies.
(2) Each item included in the Federal Catalog System shall be classified under the Federal Supply Classification and shall be assigned only one 4-digit class in accordance with the rules prescribed in the Federal Catalog System Policy Manual.
(c) Numbering. (1) Each item of supply identified in the Federal Catalog System shall be assigned a national stock number which shall consist of the applicable 4-digit FSC class code and a 9-digit national item identification number.
(2) The national stock number shall be the only stock number used in supply operations for items within the scope of the Federal Catalog System. The integrity of the national stock number shall always be maintained whenever it is employed in any operation or document. Supply management codes, or other management symbols, may be associated with, but never included as a part of the national stock number. These management codes or symbols shall always be separated from the national stock number in such a manner that the national stock number is clearly distinguishable.
This subpart prescribes the types of items to be cataloged, the types of items to be excluded from the Federal Catalog System, the responsibilities for catalog data preparation and transmission to the Defense Logistics Services Center (DLSC), and the application of item entry control procedures upon request for cataloging action.
Items of personal property in the civil agency systems that are subject to repetitive procurement, storage, distribution and/or issue, and all locally purchased, centrally managed items will be named, described, identified, classified, and numbered (cataloged) in the Federal Catalog System. Other locally purchased items may be cataloged based upon civil agency requirements. The term “repetitive” will be construed to mean continual or recurring and applies to those items for which a need is deemed to exist within the appropriate civil agency.
Items of personal property in the following categories are to be excluded from the Federal Catalog System except when an agency determines that Federal item identification data will be of value in its supply management operations:
(a) Capital equipment items which are nonexpendable and are especially designed for a specific purpose, such as elevators or central air-conditioning system installations.
(b) Items of personal property on which security classification is imposed.
(c) Items procured on a one-time or infrequent basis for use in research and development, experimentation, construction, or testing and not subject to centralized item inventory management, reporting, or stock control.
(d) Items procured in foreign markets for use in overseas activities of Federal agencies.
(e) Printed forms.
Each agency shall ensure that each of its items to be cataloged is included and maintained in the Federal Catalog System.
(a) Agencies with cataloging and data preparation and transmission capabilities, when authorized by GSA, shall submit data direct to the Defense Logistics Services Center (DLSC) in conformance with procedures set forth in the Defense Integrated Data System (DIDS) Procedures Manual (DOD 4100.39-M).
(b) Agencies not having the capabilities cited in paragraph (a) of this section shall submit their request to the appropriate cataloging activity; i.e., GSA or VA, for the performance of all cataloging functions and/or the preparation of data for submission to DLSC. Cataloging requests to GSA or VA shall be prepared using Standard Form 1303, Request for Federal Cataloging/Supply Support Action (illustrated at § 101-30.4901-1303). EAM card formatted requests for volume add/delete user actions may also be submitted. Instructions on the preparation of Standard Form 1303 and EAM card formatted requests and guidance in determining the appropriate cataloging activity designated to receive requests are in the GSA Handbook, Federal Catalog System-Logistics Data (FPMR 101-30.3), issued by the Commissioner, Federal Supply Service.
(c) GSA will confer with civil agencies periodically to review and devise methods of submission according to their needs and capabilities.
In addition to the reviews attendant to the process of item identification and assignment of national stock numbers, proposed new items will be subjected to a technical review to associate them with items available through the GSA supply system. Where a similar item is available through the GSA supply system, the agency will be informed of the national stock number and a source of supply and will be requested to use that item. If the requesting agency considers the GSA item unacceptable because of technical differences, the requesting agency shall notify GSA of the technical differences between the alternate item and the requested item to allow for the assignment of a new national stock number to the requested item.
When an agency believes that the benefits of the Federal Catalog System may be realized without formal participation, a request for an exemption shall be submitted to the General Services Administration (FRI), Washington, DC 20406. After reviewing the request for an exemption, GSA will inform the requesting agency of the decision and will provide instructions for implementation. The request for an exemption shall include, but not be limited to, the following information:
(a) Number of items repetitively procured, stored, distributed, or issued.
(b) Number of items currently used having national stock numbers.
(c) Identification system planned or in use other than the Federal catalog system.
(d) Whether procurement is centralized.
(e) Description of any catalogs published. If none, so state.
(f) Whether supply support is received from another agency including the name of the agency and category of item involved; e.g., electronics.
(g) Cost differential between submitting a request for cataloging action and identifying the item under the agency's current or planned system.
This subpart prescribes the policies and procedures governing the dissemination of Federal catalog data, the conversion to and use of the Federal catalog system by Federal agencies, and the requesting of supply support from Government supply managers.
Federal Catalog System data are available in publications of general interest to Government supply activities and in the form of automated output tailored to meet individual agency needs.
(a) Federal Catalog System publications contain selected data from the Defense Logistics Services Center (DLSC) files chosen, assembled, and formatted to meet recognized needs for information in support of assigned missions, functions, and related responsibilities. Most publications are produced in microfiche form; however, some are produced in hard copy form. The following publications are available:
(1) Master cross-reference list. A microfiche publication which contains a master list of national stock numbers (NSN's) cross-referenced to and from manufacturers' part numbers, specifications, or reference drawings. This publication is used to cross-relate reference numbers and stock numbers or to ascertain the manufacturer of an item when the reference number or the NSN is known.
(2) Identification list (IL). A microfiche publication arranged by Federal supply class and containing descriptions of items in the DLSC file. The principal uses of the IL are to obtain or verify an NSN when only the characteristics of the item are known or descriptive data when the NSN is known, and to determine interchangeable or substitutable items.
(3) Consolidated Management Listing. A microfiche publication which is a consolidated listing of NSN's and related supply management data of each integrated manager and military service. These data include Government source of supply, unit of issue, unit price, etc.
(4) Federal item logistics data records (FILDR). A microfiche publication containing complete identification data in tabular format for all descriptive-type item identifications. The data are arranged in NSN sequence within Federal supply class. An FILDR is known in hard copy form as a DD-146 card which is furnished as an output to authorized receivers of Federal catalog data who cannot use other available output media.
(5) Defense Logistics Agency (DLA) Federal Supply Catalog for Civil Agencies. This publication (available in hard copy only) includes NSN's for which DLA is the single source of supply for civil agencies. These NSN's may not necessarily have a DOD user recorded. The publication contains descriptive and management data for items not usually listed in the GSA catalog but which might be required by civil agencies.
(b) Agencies may obtain without charge copies of the DLA Federal Supply Catalog for Civil Agencies, described in paragraph (a)(6)
As a result of participation in the Federal catalog system, activities may receive data directly from DLSC tailored to their individual needs in support of their own supply management data system. The two basic categories of file maintenance are:
(a) Simplified file maintenance (SFM). Subscribers to this category of file maintenance are provided replacement files (magnetic tape) semiannually containing selected technical and supply management data for those items on which they are a registered user. The subscriber will also receive a monthly maintenance update and cumulative monthly basic records from DLSC which may be used to maintain the semiannual basic file. Recipients of this form of file maintenance have latitude in selecting those items which meet the needs of their supply system from the categories of data available from the Federal Catalog System.
(b) Regular file maintenance (RFM). This form of the file maintenance provides activities with data on a daily basis as transactions affect items upon which they are a registered user. It is used primarily by those activities which consider it essential to maintain file compatibility with the DLSC file at all times.
Following completion of cataloging action, GSA will establish a time period in which conversion to the Federal Catalog System shall be accomplished by all civil agencies. The terminal dates for conversion will be established after consultation with the civil agencies concerned.
On and after the established date for completion of conversion, all interagency and intra-agency transactions involving item identifications, commodity classification, or stock numbers shall be in the terms of the Federal Catalog System.
For items of personal property which have been identified in the Federal Catalog System, national stock numbers and Federal item identifications, with such additional descriptive detail as is required, shall be utilized in reports and listings of excess and surplus personal property. The assignment of national stock numbers and Federal item identifications shall not be required for items of excess or surplus personal property which have not been identified in the Federal Catalog System.
For internal use within an agency, alphabetic codes excluding letters “I” and “O” may be prefixed or suffixed to the national stock number as CM7520-00-123-4567 or 7520-00-123-4567CM, as required for supply management operations. Numeric codes shall not be affixed immediately adjacent to or as a part of the national stock number, nor shall codes be intermingled in the national stock number.
Civilian agencies requiring supply support on an item of supply shall request this action by preparing Standard Form 1303, Request for Federal Cataloging/Supply Support Action (illustrated at § 101-30.4901-1303), and submitting the form to the General Services Administration (FRIS), Washington, DC 20406. All supply support request for nonperishable subsistence items in Federal Supply Group 89, subsistence (except condiment packets in FSC classes 8940 and 8950), shall be submitted to the Veterans Administration, Catalog Division (901S), Veterans Administration Supply Depot, P.O. Box 27, Hines IL 60141. Guidance on the preparation of supply support requests is in the GSA Handbook, Federal Catalog System-Logistics Data (FPMR 101-30.3), issued by the Commissioner, Federal Supply Service.
Requests for supply support should be consolidated in one focal point within each agency or activity. On the basis of the total consolidated agency or activity requirement; i.e., annual demand, GSA can determine the most economical and efficient method of supply support.
This subpart prescribes the policies and procedures governing the maintenance of the Federal Catalog System.
(a) The Administrator of General Services delegated authority to the Secretary of Defense to develop and maintain the Federal Catalog System. This delegation provided for the cataloging system to continue to provide for the identification and classification of personal property under the control of Federal agencies and to maintain uniform item management data required and suitable for interdepartment supply activities.
(b) The Federal Catalog System Policy Manual (DOD 4130.2-M) and the Defense Integrated Data System (DIDS) Procedures Manual (DOD 4100.39-M) are equally applicable to all DOD and civilian agencies. The Federal Supply Service, GSA, and the Department of Defense share joint responsibility for the coordination of civilian agency cataloging to ensure the integrity of the system and the compatibility of civilian and military agency participation in the Federal Catalog System.
After converting to the Federal Catalog System, the agency concerned shall promptly take maintenance actions affecting the items converted and new items to be added. These actions may include deletion or revision of item identification or management data, or any other change required to ensure that the recorded data are maintained on a current basis. Submission of data to DLSC shall be as follows:
(a) As new items meeting criteria for national stock number (NSN) assignment are added to an agency's supply system, the agency shall submit data to GSA, the Defense Logistics Agency (DLA), the Veterans Administration (VA), or DLSC when a direct submitter of catalog data is involved in accordance with § 101-30.303.
(b) All civilian agencies not authorized to submit catalog data direct to DLSC shall prepare Standard Form 1303, Request for Federal Cataloging/Supply Support Action (illustrated at § 101-30.4901-1303), to request maintenance action. Maintenance requests shall be submitted to GSA for collaboration and submission to DLSC, except that civilian agencies receiving supply support on an item from a DLA center or the VA, as expressed by major organizational entity (MOE) rule, should submit these requests to the DLA center using DD Form 1685, Data Exchange and/or Proposed Revision of Catalog Data, or to the VA using Standard Form 1303, for collaboration and submission to DLSC. When GSA receives maintenance requests on these items, they will be forwarded to the appropriate DLA center or to the VA.
(c) Agencies authorizd to submit catalog data direct to DLSC as provided in § 101-30.303(a) shall comply with item maintenance and data collaboration procedures as set forth in the Defense Integrated Data System (DIDS) Procedures Manual (DOD 4100.39M).
(d) All civilain agencies not authorized to submit catalog data to DLSC shall use Standard Form 1303, Request for Federal Cataloging/Supply Support Action, to request maintenance action. Proposed maintenance requests shall be submitted to GSA for collaboration and submission to DLSC, except that civilian agencies receiving supply support from DLA supply centers, as expressed in the DLSC user record by major organizational entity (MOE) rule, should submit proposed maintenance requests to the appropriate DLA supply center for collaboration and submission to DLSC. When GSA receives maintenance requests for these items, they will be referred to the appropriate DLA supply center.
(e) Any civilian agency participating in the Federal Catalog System (those agencies previously assigned a Cataloging Activity Code) may propose action for maintenance of the catalog system tools as outline in § 101-30.201(b).
Upon receipt of cataloging data from civil agencies, DLSC will process the data and provide for their inclusion in the Federal Catalog System. Notification to the submitting and originating agencies of the action taken by DLSC will be as required in the Federal Catalog System Policy Manual (DOD 4130.2-M) and will be accomplished by means of electric accounting machine cards, magnetic tape, or wire transmission, according to the capabilities of those agencies. DLSC will send this information to the agencies that are designated by GSA as direct data receivers. Otherwise, DLSC will transmit the information to the submitting agency to be forwarded to the originating agency, when required.
When a new item is to be introduced into an agency supply system, the agency establishing the need for the new item shall determine whether or not adequate identification data for cataloging the item are available. If the data are not available, the agency may specify in procurement documents the use of Federal Standard No. 5, Standard Guides for Preparation of Proposed Item Logistics Data Records, and submission of the cataloging data required by that standard to the contracting officer (for further processing in accordance with this subpart 101-30.5).
This subpart describes that section of the Federal Supply Catalog issued by GSA and authorizes its issuance by the Commissioner, Federal Supply Service.
GSA supply catalogs are primarily designed to aid in the acquisition of GSA centrally managed, stocked, and issued items available from GSA supply facilities by Federal civilian agencies and other organizations authorized to use the GSA Federal Supply Service (FSS) stock program as a source of supply. GSA also provides information relative to other FSS sales programs and GSA services.
The GSA section of the Federal Supply Catalog is issued as an integral part of the Federal Supply Catalog and the Federal Catalog System as prescribed in subpart 101-30.1. The Commissioner, Federal Supply Service, is authorized to publish catalogs for those items and programs for which GSA furnishes supply support to Federal agencies.
(a) The GSA Supply Catalog is an illustrated catalog, published annually, which serves as the primary source to identify and order centrally managed, stocked, and issued items available from GSA supply facilities. The catalog also provides information concerning other Federal Supply Service programs and GSA services.
(b) The GSA Supply Catalog contains all necessary information for ordering from the GSA Federal Supply Service stock program and basic information, such as:
(1) Alphabetical Index. This index is organized alphabetically by approved item names under the basic noun name in inverted word sequence, (i.e. sofa, sleeper) with reference to the page that contains the pertinent item description.
(2) Item Descriptions/Ordering Data. Item descriptions are listed by commodity groups in this section. Included also are descriptive and ordering data with representative illustrations for selected common-use items that are centrally managed, stocked, and issued from GSA supply facilities.
(3) National Stock Number Index. This NSN sequenced index lists items that are centrally managed, stocked, and issued from GSA supply facilities.
(4) Narrative. The narrative includes comprehensive detailed information to use and understand the GSA Federal Supply Service stock program.
(5) Other Federal Supply Service sales programs and GSA services. This section provides to user agencies pertinent information regarding the use and understanding of the GSA Federal Supply Service stock program, sales program, and other GSA services.
(c) Changes to the GSA Supply Catalog are effected by change bulletins issued during April, July, and October. These are cumulative publications that contain information pertaining to new items, changes to supply management data, and deleted items.
(d) Special Notice to Ordering Office is issued on a nonscheduled basis as required by the Commissioner, FSS, to inform agencies of significant program changes to the GSA Supply Catalog.
The GSA Supply Catalog, published annually and updated quarterly, is an illustrated publication which serves as the primary source for identifying items and services available through the following GSA supply sources:
(a) GSA supply distribution facilities;
(b) Federal Supply Schedules; and
(c) Term Contract Program.
Changes to the GSA Supply Catalog are effected by quarterly cumulative publications entitled “Change Bulletin to the GSA Supply Catalog.” These change bulletins will serve as the media to notify agencies of additions, deletions, and other pertinent changes occurring between the annual publication of the GSA Supply Catalog.
Special Notices will be issued on a nonschedule basis to advise agencies of program changes, general information, or additions, deletions, and other pertinent changes to the GSA Supply Catalog.
Agencies that require current copies of and desire to be placed on distribution lists to receive Federal supply catalogs and related publications shall complete GSA Form 457, FSS Publications Mailing List Application (illustrated at § 101-26.4902-457), and forward the completed GSA Form 457 to General Services Administration (8BRC), Centralized Mailing Lists Services, Building 41, Denver Federal Center, Denver, CO 80225. Copies of GSA Form 457 may also be obtained from the above address. Periodically, the Centralized Mailing Lists Services will request information from agency offices for use in maintaining current distribution lists.
This subpart defines the objectives of the item reduction program and assigns responsibilities for its operation. Procedures implementing the policy set forth herein are contained in the GSA Handbook, Item Elimination (FPMR 101-30.7), issued by the Commissioner, Federal Supply Service.
As used in this subpart 101-30.7, the following terms shall have the meanings set forth in this § 101-30.701.
Item reduction study means the study of a group of generally similar items which are subject to evaluation by physical and performance characteristics. This evaluation process identifies items determined to be unnecessarily similar or uneconomical for Government use and which will be considered for removal from Government supply systems. For items so identified, a replacement item shall be proposed. The result of item reduction studies will indicate items which are authorized for procurement or not authorized for procurement.
Item standardization code (ISC) means a code assigned an item in the supply system which identifies the item as authorized for procurement or not authorized for procurement.
Preparing activity means a Government agency responsible for the preparation of item reduction studies, or an activity authorized by the listed agencies to conduct an item reduction study. The DOD Standardization Directory SD-1 provides such a listing.
Standardization relationship means the relationship between the replaced item and the replacement item. The replaced item will contain an item standardization code designating the item as not authorized for procurement and therefore must have a replacement item. The relationship of the two items is displayed within the item reduction study by item standardization codes and, upon approval of the study, in the Federal catalog system data base at the Defense Logistics Services Center (DLSC).
Item reduction studies are required where there are large numbers of generally similar items which are subject to grouping and examination by item name, item name modifiers, or other characteristics such as sizes, grades, lengths, and materials. Before conducting a full scale item reduction study, the assignee activity shall determine whether sufficient item reduction potential appears to exist. Item reduction studies shall be undertaken only when the expected benefits outweigh the costs of performing the study.
The objective of the item reduction program is to reduce the varieties and sizes of similar items in the Government supply system by:
(a) Implementing a coordinated item reduction process among supply managers of using activities;
(b) Standardizing items of supply used by the Government;
(c) Ensuring that all participants in item reduction studies give priority to controlling and completing item reduction studies;
(d) Promptly recording decisions in the Federal catalog system data base; and
(e) Phasing out of the Government supply system those items identified in item reduction studies as not authorized for procurement to reduce cataloging, supply management, and warehousing costs; then following through to eliminate the items from agency catalog systems.
(a) The General Services Administration (GSA) will develop or authorize other Government agencies to develop item reduction studies on items within the Federal supply classification (FSC) classes for which GSA is the integrated material manager.
(b) GSA, as the civil agency coordinating activity for item reduction studies originated by both GSA and DOD, will:
(1) Distribute proposed item reduction studies, as appropriate, to all civil agencies recorded as users of the item in the DLSC data base. This distribution will be made by coordination letters in which a time frame for a response will be specified. GSA will interpret each nonresponse to a proposed study to mean that the activity concurs with the study. Extensions, when requested by an agency, normally will be granted by GSA.
(2) Respond to questions concerning proposed item reduction studies.
(3) Prepare a consolidated civil agency position paper (including comments and nonconcurrences) relative to each study upon receipt of user responses.
(4) Incorporate civil agency positions into proposed item reduction studies prepared by GSA or forward a consolidated civil agency position paper to appropriate preparing activities.
(5) Resolve controversies arising from proposed item reduction study recommendations.
(6) Review approved item reduction studies to ensure that concurrences and nonconcurrences from all civil agencies are accurately reflected.
(7) Register into the Federal catalog system, data base approved item reduction decisions concerning items within the FSC classes which are managed by GSA.
(8) Implement decisions documented in approved item reduction studies within the GSA supply system.
(9) Distribute approved item reduction studies to all recorded civil agency users. All civil agencies (except direct submitters of catalog data to DLSC) will also be forwarded covering letters which will request specific information relative to implementing the studies; i.e., inventory levels of items coded ISC 3. Activities not responding within the time frame specified (60 calendar days) will receive a followup notice before being automatically withdrawn as users of all items coded as not authorized for procurement.
Civil agencies participating in the Federal Catalog System shall:
(a) Conduct a review of the items included in the proposed study by the preparing activity with respect to the ISC to determine the impact the assigned code may have on the agency's supply system.
(b) Prepare and submit written comments on the proposed study to GSA within the time frame specified in the GSA coordination letter, concur with the study, or nonconcur on specific proposed standardization relationships. If comments cannot be prepared and submitted within the time frame specified, an extension shall be requested from GSA.
(c) Review the approved item reduction study and notify GSA in writing if the activity is to be retained or deleted as a user of any item coded as “not authorized for procurement.” This notification will allow the preparer of the study to complete coordination of the study and update the DLSC Total Item Record (TIR).
(d) Implement within the agency those item reduction decisions resulting from the study.
(e) Request, as appropriate, the retention of a nonstandard item in their supply system by forwarding a letter to General Services Administration (FRIS), Washington, DC 20406. The request shall include but not be limited to the following information:
(1) The specific end-use of end-item application;
(2) A technical explanation comparing the physical and functional characteristics of the nonstandard item with each authorized-for-procurement item;
(3) The duration of the requirement for the item or how long the end-item will be retained in the agency's supply system; and
(4) Economic considerations from a technical standpoint. GSA will evaluate the request and inform the agency of its acceptance or rejection.
Activities requiring assistance in fulfilling their responsibilities under the program shall contact the General Services Administration (FRI), Washington, DC 20406.
This subpart illustrates forms prescribed or available for use in connection with subject matter covered in other subparts of this part 101-30.
(a) Standard forms are illustrated in this § 101-30.4901 to show their text, format, and arrangement and to provide a ready source of reference. The subsection numbers in this § 101-30.4901 correspond with the Standard form numbers.
(b) Standard forms illustrated in this § 101-30.4901 may be obtained by submitting a requisition in FEDSTRIP format to the GSA regional office providing support to the requesting activity.
The form illustrated in § 101-30.4901-1303 is filed with the original document and does not appear in the
This part prescribes policy, guidelines, and procedures related to inspection, testing, and grading of supplies or services.
For guidance see Federal Acquisition Regulation (e.g., Subpart 7.5, and parts 37 and 46) (48 CFR Subpart 7.5, and parts 37 and 46).
For information on public utilities, see FMR part 102-82 (41 CFR part 102-82).
(a) For information on Government aviation administration and coordination, previously contained in subparts 101-37.1, 101-37.2, 101-37.3, and 101-37.5 through 101-37.14, see FMR part 102-33, Management of Government Aircraft (41 CFR part 102-33).
(b) For information on travel on Government aircraft previously contained in subparts 101-37.1 and 101-37.4, see 41 CFR parts 300-3, 301-10, and 301-70 of the Federal Travel Regulation (FTR).
For motor vehicle management policy, see FMR part 34 (41 CFR part 102-34).
This part prescribes policies governing the establishment and operation of interagency fleet management systems and operating procedures applicable to the General Services Administration (GSA) Interagency Fleet Management System.
Section 211 of the Federal Property and Administrative Services Act of 1949, as amended, (40 U.S.C. 491), requires that the Administrator of General Services will, to the extent that he determines that so doing is advantageous to the Government in terms of economy, efficiency, or service, and after consultation with, and with due regard to the program activities of the agencies concerned, (a) consolidate, take over, acquire, or arrange for the operation by any executive agency of motor vehicles and other related equipment and supplies for the purpose of establishing fleet management systems to serve the needs of executive agencies; and (b) provide for the establishment, maintenance, and operation (including servicing and storage) of fleet management systems for transportation of property or passengers, and for furnishing such motor vehicles and related services to executive agencies. The exercise of this authority is subject to regulations issued by the President, which are set forth in Executive Order 10579, dated November 30, 1954.
The regulations in this part apply to all executive agencies of the Federal Government to the extent provided in the Act.
(a) Section 211(d) of the Federal Property and Administrative Services Act, 1949, as amended, provides that the General Supply Fund, provided for in section 109 of the Act, shall be available for use by or under the direction and control of the Administrator of General Services for paying all elements of cost incident to the establishment, maintenance, and operation of fleet management systems.
(b) When an agency other than GSA operates an interagency fleet management system, the financing and accounting methods shall be developed by GSA in cooperation with the agency concerned.
Nothing in this part shall preclude the establishment or operation of interagency fleet management systems by GSA or by other agencies which are to be operated on the basis of optional use by executive or other agencies under arrangements worked out between the agencies concerned and GSA.
GSA will conduct studies of the operation and costs of motor vehicle and motor vehicle services in selected geographical areas to determine the advisability of establishing fleet management systems.
(a) Based on these studies, the Administrator of General Services, with the assistance of the affected agencies, shall develop necessary data and cost statistics for use in determining the feasibility of establishing a fleet management system in the geographical area studied.
(b) If the Administrator, GSA, determines that a fleet management system shall be established, a formal determination is prepared to that effect.
(c) In the event the Administrator, GSA, decides that the establishment of a fleet management system is not feasible, the head of each agency concerned will be notified.
(d) In the making of determinations for the establishment of fleet management systems, the Administrator, GSA, will, to the extent consistent with the provisions of section 1(b) of Executive Order 10579, observe the policies outlined in the Office of Management and Budget (OMB) Circular A-76, for the utilization of commercial facilities.
(e) Except as provided in this subpart, all Government motor vehicles subsequently acquired for official purposes by fully participating agencies which are stored, garaged, or operated within the defined mandatory use service area of a fleet management system shall also be consolidated into and operated under the control of that system.
(f) Fleet management systems established under this subpart provide for furnishing motor vehicles and related services to executive agencies. So far as practicable, these services will also be furnished to any mixed-ownership corporation, the District of Columbia, or a contractor authorized under the provisions of Federal Acquisition Regulation, 48 CFR part 51, subpart 51.2, upon request. Such services may be furnished, as determined by the Administrator, GSA, through the use, under rental or other arrangements, of motor vehicles of private fleet operators, commercial companies, local or interstate common carriers, or Government-owned motor vehicles, or combinations thereof.
The Administrator, GSA, will ascertain the possibilities of economies to be derived through the establishment of a fleet management system in a specific geographical area. After preliminary investigation, he or she will notify the head of each agency concerned at least 30 calendar days in advance of the intent to conduct a study to develop data and justification as to the feasibility of establishing a fleet management system. The notification, in writing, will include:
(a) The approximate geographical area to be included in the study, including a defined mandatory use service area and an optional use service area; and
(b) The date on which the study will begin.
(a) As provided by Executive Order 10579, the head of each executive agency receiving notice that GSA will conduct a study will designate representatives with whom members of the GSA staff may consult and who will furnish information and assistance to the GSA staff, including reasonable opportunities to observe motor vehicle operations and facilities and to examine pertinent cost and other records. Such information shall include the inventory, management, operation, maintenance, and storage of motor vehicles, motor vehicle facilities, and motor vehicle services in the area, including location, use, need, cost, and personnel involved.
(b) In the absence of recorded information, GSA will assist in preparing agency estimates, if requested, or will develop the necessary data.
Each determination to establish a fleet management system will include:
(a) A description of the proposed operation (including Government-owned vehicles operated by contractors) covering the types of service and the geographic area (including the defined mandatory and optional use service areas) and executive agencies or parts of agencies to be served;
(b) The name of the executive agency designated to be responsible for operating the fleet management system and the reason for such designation;
(c) A statement indicating the motor vehicles and related equipment and supplies to be transferred and the amount of reimbursement, if any, to be made; and
(d) An analytical justification to accompany each determination, including a comparison of estimated costs of the present and proposed methods of operation, an estimate of the savings to be realized through the establishment of the proposed fleet management system, a description of the alternatives considered in making the determination, a statement concerning the availability of privately owned facilities and equipment, and the feasibility and estimated cost (immediate and long-term) of using such facilities and equipment.
(a) If GSA decides to establish a fleet management system, GSA, with the assistance of the agencies concerned, will prepare and present to the Director, OMB, a schedule of those records, facilities, personnel, and appropriations, if any, that are proposed for transfer to the fleet management system. The Director, OMB, will determine the records, facilities, personnel, and appropriations, if any, to be transferred.
(b) The Administrator of General Services will furnish a copy of each determination, with a copy of the schedule of proposed transfer of motor vehicles, records, facilities, personnel, and appropriations, to the Director, OMB, and to each agency affected.
Unless a longer time is allowed, any determination made by the 6Administrator, GSA, shall become binding on all affected executive agencies 45 calendar days after issuance, except with respect to any agency which appeals or requests an exemption from any determination in accordance with § 101-39.103.
(a) Any executive agency may appeal or request exemption from any or all proposals affecting it which are contained in a determination. Appeals shall be submitted, in writing, within 45 calendar days from the date of the determination to the Director, OMB, with a copy to the Administrator of GSA. Appeals shall be accompanied by factual and objective supporting data and justification.
(b) The Director, OMB, will review any determination which an executive agency has appealed and will make a final decision on that appeal. The Director, OMB, will decide within 75 calendar days after he or she receives the appeal, or as soon thereafter as practicable, on the basis of information contained in GSA's determination, the executive agency appeal, and any supplementary data submitted by GSA and the contesting agency. The Director, OMB, will send copies of decisions to GSA and to the heads of other executive agencies concerned.
(c) With reference to each appeal, the decision of the Director, OMB, if he or she holds that the GSA's determination shall apply in whole or in part to the appealing agency, will state the extent to which the determination applies and the effective date of its application. To the extent that the decision on an appeal does not uphold GSA's determination the, determination will be of no force and effect.
GSA will inform each affected agency of the time schedule for establishment of a fleet management system and of the agency's responsibility for transferring personnel, motor vehicles, maintenance, storage and service facilities, and other involved property. Arrangements will be made for discussions at the local level between the agencies concerned and the agency responsible for operating the fleet management system in order to work out any problems pertaining to establishing and operating fleet management systems.
(a) All Government-owned motor vehicles acquired by executive agencies for official purposes which are operated, stored, or garaged within a defined mandatory use service area of an established fleet management system and other related equipment and supplies shall, when requested by the Administrator, GSA, in accordance with a determination, be transferred to the control and the responsibility of the fleet management system. Those vehicles specifically exempt by:
(1) Section 101-39.106 and § 101-39.107,
(2) In the determination establishing the fleet management system,
(3) A subsequent determination by the Administrator, GSA, or
(4) The decision of the Director, OMB,
(b) Transfers of Government-owned motor vehicles to the control and responsibility of the fleet management system shall be accomplished with transfer forms of the transferring agency or forms furnished by GSA. Each transferring agency shall:
(1) Prepare a transfer document listing each vehicle to be transferred;
(2) Forward a signed copy to the Controller, Federal Supply Service, GSA;
(3) Furnish two copies of the transfer document to the fleet management system receiving the vehicles; and
(4) Forward an additional copy of the transfer document to the fleet management system, when a signed receipt is required by the transferring agency.
Reimbursement for the motor vehicles and related equipment and supplies acquired by agencies through expenditure made from and not previously reimbursed to any revolving or trust fund authorized by law, shall be made by GSA in an amount equal to the fair market value of the vehicle, equipment, or supplies so taken over, as required by law (40 U.S.C. 491(g)).
(a) If, during any reasonable period not exceeding 2 successive fiscal years, no economies or efficiencies are realized from the operation of any fleet management system, the Administrator, GSA, will discontinue the fleet management system concerned.
(b) The Administrator, GSA, may discontinue or curtail a fleet management system when he or she determines that sufficient economies or efficiencies have not resulted from the operation of that fleet management system. The Administrator, GSA, will give at least 60 calendar days notice of his or her intent to the heads of executive agencies affected and to the Director, OMB, before taking action.
When a fleet management system is discontinued or curtailed, transfers of vehicles and related equipment and supplies, personnel, records, facilities, and funds as may be appropriate will be made, subject to the approval of the Director, OMB. Reimbursement for motor vehicles and related equipment and supplies acquired by GSA through expenditure made from, and not previously reimbursed to the General Supply Fund, or any revolving or trust fund authorized by law, shall be made by the agency receiving the motor vehicles and related equipment and supplies in an amount equal to the fair market value, as required by law (40 U.S.C. 491(g)).
(a) Executive agencies receiving motor vehicle services from fleet management systems may request discontinuance or curtailment of their participation after 1 year of participation, unless a different time period has been mutually agreed to, or if the need for these services ceases. Requests shall be submitted to the Administrator, GSA, with factual justification.
(b) If the Administrator, GSA, does not agree with these requests and is unable to make arrangements which are mutually acceptable to GSA and the agency concerned, the agency's request for discontinuance or modification and the explanation of the Administrator, GSA, denying the request will be forwarded to the Director, OMB, who will make the final and binding decision.
Unlimited exemptions from inclusion in the fleet management system are granted to the specific organizational units or activities of executive agencies listed below. Unlimited exemptions do not preclude agencies from requesting fleet management services, if available, under optional use arrangements. Such optional use services must be authorized under the provisions of Executive Order 10579 and 40 U.S.C. 472.
(a) Any motor vehicle regularly used by an agency in the performance of investigative, law enforcement, or intelligence duties if the head of that agency or designee makes a determination, in writing (a copy of which shall be forwarded to the Administrator of General Services), that the exclusive control of such vehicles is essential to the effective performance of those duties. Vehicles regularly used for common administrative purposes not directly connected with the performance of law enforcement, investigative, or intelligence duties shall not be exempted from inclusion.
(b) Motor vehicles designed or used for military field training, combat, or tactical purposes, or used principally within the confines of a regularly established military installation.
(c) Any motor vehicle exempted from the display of conspicuous identification by the Administrator, GSA, when identification as a Government vehicle would interfere with the purpose for which it is acquired and used.
(d) Unless inclusion is mutually agreed upon by the Administrator, GSA, and the head of the agency concerned:
(1) Motor vehicles for the use of the heads of the executive agencies, ambassadors, ministers, charges d'affaires, and other principal diplomatic and consular officials.
(2) Motor vehicles regularly and principally used for the transportation of diplomats and representatives of foreign countries or by officers of the Department of State for the conduct of official business with representatives of foreign countries.
(3) Motor vehicles regularly used by the United States Postal Service for the distribution and transportation of mail.
The Administrator, GSA, may exempt those vehicles which, because of their design or the special purposes for which they are used, cannot, advantageously be incorporated in the fleet management system, if the exemption has been mutually agreed upon by the Administrator and the head of the executive agency concerned. Limited exemption will normally be restricted to:
(a) Special-purpose motor vehicles. Motor vehicles acquired for special purposes and which, because of special design, use, or fixed special equipment, cannot advantageously be included in a consolidated operation; or
(b) Motor vehicles operated outside the defined geographical area of the fleet management system. Motor vehicles which are operated almost entirely outside the defined mandatory use area of the fleet management system.
This subpart defines the procedures for acquiring motor vehicles and related services provided by the General Services Administration (GSA) Interagency Fleet Management System (IFMS). Local transportation services for Government personnel and property may be provided by the GSA IFMS to efficiently meet the authorized requirements of participating agencies. These services may be furnished through commercial rental companies, private sector fleet operators, local or interstate common carriers, the Government, or a combination of the above.
GSA Interagency Fleet Management System (IFMS) vehicles and services shall be used in connection with official business and incidental use as prescribed by rule by the head of the agency in conformance with section 503 of the Ethics Reform Act of 1989 (Pub. L. 101-194) only. Available GSA IFMS services may include any or all of the following:
(a) Motor vehicles for indefinite assignment;
(b) Commercial motor vehicles for daily or short-term use, exclusive of temporary duty requirements;
(c) GSA IFMS dispatch vehicles for short-term use, where available. This service is generally limited to locations where there is no commercial alternative;
(d) Shuttle run or similar services;
(e) Driver services; and
(f) Other related services, including servicing, fueling, and storage of motor vehicles.
(a) Authorized contractors and subcontractors shall use related GSA Interagency Fleet Management System (IFMS) services solely for official purposes.
(b) To the extent available, authorized contractors and subcontractors may use GSA IFMS services on a reimbursable basis to provide maintenance, repair, storage, and service station services for Government-owned or -leased equipment which is not controlled by a GSA IFMS fleet management center, or for authorized contractor-owned or -leased equipment used exclusively in the performance of Government contracts.
(c) Contractor use of GSA IFMS services will be allowable only to the extent provided in Federal Acquisition Regulation, 48 CFR part 51, subpart 51.2.
(d) Use of GSA IFMS vehicles in the performance of a contract other than a cost-reimbursement contract requires preapproval by the Administrator of GSA. Such requests shall be submitted through the Director, Fleet Management Division, GSA, Attn: FBF, Washington, DC 20406.
Any participating Federal agency, bureau, or activity may obtain vehicles for short-term local use through the GSA Interagency Fleet Management System (IFMS). Short-term use vehicles may be provided through Military Traffic Management Command (MTMC) agreements with commercial firms or, where available, through GSA IFMS dispatch services. This support is available for official use performed locally or within commuting distance of an employee's designated post of duty. Arrangements for these vehicles will be made by the GSA IFMS fleet management center serving the local area. The requesting agency official or employee must be authorized to place orders for vehicle support and provide a complete billing address and GSA billed office address code (BOAC) at the time an order is placed. Agencies requiring a BOAC may obtain one by contacting any General Services Administration IFMS fleet management center.
Federal employees on TDY requiring short-term use of vehicles in the destination area shall obtain service directly from the appropriate sources listed in the Federal Travel Directory (available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402).
Motor vehicles and related services of the GSA Interagency Fleet Management System (IFMS) are provided to requesting agencies under the following procedures. When competing requests are received, priority will be given to a fully participating agency over an other than fully participating agency.
(a) Federal agencies or parts thereof that meet the following conditions are considered fully participating:
(1) All agency-owned motor vehicles have been consolidated into the supporting GSA IFMS fleet management center, and no agency-owned vehicles, with the exception of approved exemptions, are operated in the defined mandatory use service area of the supporting GSA fleet management center;
(2) No vehicles were available to consolidate, but total reliance is placed on the supporting GSA IFMS fleet management center or the GSA IFMS as a whole to meet all motor vehicle requirements, and no agency-owned vehicles are operated in the defined mandatory use service area of the supporting GSA fleet management center;
(3) The agency would otherwise qualify under paragraph (a) (1) or (2) of this section but has been authorized by GSA to purchase or commercially lease motor vehicles because the GSA IFMS was unable to supply its requirements.
(b) Fully participating agencies may request indefinite assignment of vehicles, regardless of number, from the supporting IFMS fleet management center. Assignment may be made at that level, subject to availability. If the required vehicles are not available, a written request shall be sent to the General Services Administration, Attn: FBF, Washington, DC, 20406. To be considered, the request shall include the following:
(1) Certification that concurrence has been obtained from the designated agency fleet manager or other designated headquarters-level official and that other means of transportation are not feasible or cost-effective;
(2) The number and types of vehicles required, of which passenger vehicles are limited to compact or smaller unless the agency head or designee has certified that larger vehicles are essential to the agency's mission;
(3) Location where the vehicles are needed;
(4) Date required, including earliest and latest acceptable dates;
(5) Anticipated length of assignment;
(6) Projected utilization, normally in terms of miles per month or year;
(7) Certification of funding;
(8) Billing address and billed office address code (BOAC);
(9) Agency contact, including name, address, and telephone number;
(10) Office, program, or activity requiring the vehicles;
(11) A statement that the agency does or does not request authority to commercially lease, and the anticipated duration of the lease, should GSA be unable to provide the vehicles.
(c) Federal agencies that meet the following conditions are considered other than fully participating:
(1) Vehicles have been acquired from other sources for reasons other than the inability of the GSA IFMS to supply the required vehicles, except those designated as exempt vehicles as determined by the GSA IFMS;
(2) Cost reimbursable contractors authorized to utilize GSA IFMS motor vehicles when they represent participating agencies;
(3) Other authorized users of the GSA IFMS.
(d) Other than fully participating agencies must contact the supporting GSA IFMS fleet management center to ascertain vehicle availability, regardless of the number required. If the vehicles are available, assignment shall be made. When the supporting GSA IFMS fleet management center determines that the requested vehicles are not available, the requesting activity shall make a record of contact to document compliance with the mandatory first source of supply requirement. No further authorizations from GSA are required for the agency to execute a commercial lease from sources established by the GSA Automotive Commodity Center or the agency, provided that such agency has Congressional authority to lease motor vehicles and:
(1) All applicable procurement regulations (e.g., Federal Acquisition Regulation (FAR)) and internal agency acquisition regulations are observed;
(2) The requirements of part 101-38 of this chapter regarding fuel economy, Government identification and marking, etc., are adhered to;
(3) The agency fleet manager or designee retains responsibility for fleet oversight and reporting requirements under Public Law 99-272; and
(4) Other than fully participating agencies that choose not to commercially lease may utilize the procedures for full participants in paragraph (b) of this section, on the understanding that fully participating agencies will receive priority consideration.
Agencies or activities having seasonal, peak, or unusual requirements for vehicles or related services shall inform the GSA IFMS fleet management center as far in advance as possible. Normally, notice shall be given not less than 3 months in advance of the need. Requests for vehicles for other than indefinite assignment will usually be filled for agencies participating fully with the GSA IFMS, provided resources permit. Other than fully participating agencies will normally not be accommodated for seasonal, peak, or unusual vehicle requirements.
(a) GSA Regional Administrators will issue, as appropriate, regional bulletins announcing the GSA vehicle rental rates applicable to their respective regions.
(b) The using agency will be billed for GSA Interagency Fleet Management System (IFMS) services provided for under this part at rates fixed by GSA. Such rates are designed to recover all GSA IFMS fixed and variable costs. Rates will be reviewed and revised periodically to determine that reimbursement is sufficient to recover applicable costs. Failure by using agencies to reimburse GSA for vehicle services will be cause for GSA to terminate motor vehicle assignments.
(c) IFMS services provided to authorized Government contractors and subcontractors will be billed to the responsible agency unless such agency requests that the contractor be billed directly. In case of nonpayment by a contractor, GSA will bill the responsible agency which authorized the contractor's use of GSA IFMS services.
(d) Using agencies will be billed for accidents and incidents as described in § 101-39.406. Agencies may also be charged administrative fees when vehicles are not properly maintained, repaired, or when the vehicle is subject to abuse or neglect.
(e) Agencies may be charged for recovery of expenses for repairs or services to GSA IFMS vehicles which are not authorized by the GSA IFMS either through preventive maintenance notices, approval from a GSA Maintenance Control Center, or approval from a GSA fleet management center, per instructions in the operator's guide issued with each vehicle. Excess costs relating to the failure to utilize self-service gasoline pumps or the unnecessary use of premium grade gasoline may also be recovered from using agencies (see § 101-38.401-2 of this chapter).
(a) Normally, vehicles shall not be permanently operated outside the geographical area served by the issuing GSA IFMS fleet management center. However, when agency programs necessitate vehicle relocation for a period exceeding 90 calendar days, the agency shall notify the issuing GSA IFMS fleet management center of the following:
(1) The location at which the vehicles are currently in use;
(2) The date the vehicles were moved to the present location; and
(3) The expected date the vehicles will be returned to the original location.
(b) When vehicles will be permanently relocated outside the area served by the issuing GSA IFMS fleet management center, the affected GSA IFMS fleet manager will ascertain if the using agency is fully participating at the new location (see § 101-39.204). If this criterion is met, the vehicle will normally be transferred to the GSA IFMS fleet management center nearest the new location. If the agency is other than a full participant, the transfer will be treated as a request for additional vehicles at the new location.
(a) The objective of the General Services Administration (GSA) Interagency Fleet Management System (IFMS) is to provide efficient and economical motor vehicle and related services to participating agencies. To attain this objective, policies and procedures for use and care of GSA IFMS vehicles provided to an agency or activity are prescribed in this subpart.
(b) To operate a motor vehicle furnished by the GSA IFMS, civilian employees of the Federal Government shall have a valid State, District of Columbia, or Commonwealth operator's license for the type of vehicle to be operated and some form of agency identification. Non-Government personnel, such as contractors, shall have a valid license for the type of equipment to be operated when using vehicles supplied by the GSA IFMS (this may include a Commercial Driver's License). All other vehicle operators, and Federal civilian employees that have a valid civilian operator's license, but not for the type of equipment to be operated, must have in their possession an Optional Form 346, U.S. Government Motor Vehicle Operator's Identification Card, for the type of equipment to be operated. Specific regulations covering procedures and qualifications of Government motor vehicle operators are contained in 5 CFR part 930, issued by the Office of Personnel Management.
(c) To operate a motor vehicle furnished by GSA, drivers and occupants shall wear safety belts whenever the vehicle is in operation. The vehicle operator shall ensure that all vehicle occupants are wearing their safety belts prior to operating the vehicle.
(d) The use of tobacco products is prohibited in GSA IFMS motor vehicles. The agency to which the vehicle is assigned is responsible for ensuring that its employees do not use tobacco products while occupying IFMS vehicles. If a user agency violates this prohibition, the agency will be charged for the cost of cleaning the affected vehicle(s) beyond normal detailing procedures to remove tobacco odor or residue or repairing damage caused as a result of tobacco use. The decision to perform such additional cleaning or repair will be made by the GSA fleet manager based upon the condition of the vehicle when assigned, the degree of tobacco residue and damage, and the cost effectiveness of such additional cleaning.
(e) Reasonable diligence in the care of GSA IFMS vehicles shall be exercised by using agencies and operators at all times. Officials or employees failing to take proper care of motor vehicles issued to them may be refused further authorization to use GSA IFMS vehicles after reasonable notice has been provided by GSA to the head of the local activity concerned.
An agency must be able to justify a full-time vehicle assignment. The following guidelines may be employed by an agency requesting GSA Interagency Fleet Management System (IFMS) services. Other utilization factors, such as days used, agency mission, and the relative costs of alternatives to a full-time vehicle assignment, may be considered as justification where miles traveled guidelines are not met.
(a) Passenger-carrying vehicles. The utilization guidelines for passenger-carrying vehicles are a minimum of 3,000 miles per quarter or 12,000 miles per year.
(b) Light trucks and general purpose vehicles. The utilization guidelines for light trucks and general purpose vehicles are as follows:
(1) Light trucks and general purpose vehicles, 12,500 lbs. Gross Vehicle Weight Rating (GVWR) and under—10,000 miles per year.
(2) Trucks and general purpose vehicles, over 12,500 lbs. GVWR to 24,000 lbs. GVWR—7,500 miles per year.
(c) Heavy trucks and truck tractors. The utilization guidelines for heavy trucks and truck tractors are as follows:
(1) Heavy trucks and general purpose vehicles over 24,000 lbs. GVWR—7,500 miles per year.
(2) Truck tractors—10,000 miles per year.
(d) Other trucks and special purpose vehicles. Utilization guidelines for other trucks and special purpose vehicles have not been established. However, the head of the local office of the agency or his/her designee shall cooperate with GSA IFMS fleet management center personnel in studying the use of this equipment and take necessary action to ensure that it is reasonably utilized or returned to the issuing GSA IFMS fleet management center.
GSA Interagency Fleet Management System (IFMS) vehicles on high mileage assignments may be rotated with those on low mileage assignments to assure more uniform overall fleet utilization. In cases where the continued use of a vehicle is essential but its miles traveled are not consistent with utilization guidelines, the using agency may be required to justify, in writing, retention of the vehicle. Each GSA IFMS fleet manager will decide on a case-by-case basis which vehicles, if any, will be rotated based upon vehicle type, vehicle location, location and availability of replacement vehicles, and the mission of the using agency.
In order to ensure uninterrupted operation of GSA Interagency Fleet Management System (IFMS) vehicles, safety and preventive maintenance inspections will be performed at regularly scheduled intervals as directed by GSA. Users of GSA IFMS vehicles shall comply with the safety and preventive maintenance notices and instructions issued for the vehicle.
The modification of a GSA Interagency Fleet Management System (IFMS) vehicle or the permanent installation of accessory equipment on these vehicles may be accomplished only when approved by GSA. For the purpose of this regulation, permanent installation means the actual bolting, fitting, or securing of an item to the vehicle. Such modification or installation of accessory equipment must be considered by the agency as essential for the accomplishment of the agency's mission. The request for such modification or installation shall be forwarded to the appropriate GSA IFMS regional fleet manager for consideration. Accessory equipment or other after-market items which project an inappropriate appearance, such as radar detectors, will not be used on GSA IFMS vehicles. Decorative items (i.e., bumper stickers and decals) will not be used on IFMS vehicles unless authorized by the Director, Fleet Management Division, GSA.
(a) GSA Interagency Fleet Management System (IFMS) vehicles shall be stored and parked at locations which provide protection from pilferage or damage. In the interest of economy, no cost storage shall be used whenever practicable and feasible.
(b) The cost of parking and storing GSA IFMS vehicles is the responsibility of the using agency. Prior to the procurement of other than temporary parking accommodations in urban centers (see § 101-l8.102), agencies shall determine the availability of Government-owned or -controlled parking space in accordance with the provisions of § 101-17.101-6.
The GSA Interagency Fleet Management System (IFMS) will provide each system vehicle with an operator's packet containing the following information and instructions. This information should remain in the vehicle at all times, except when inconsistent with authorized undercover operations.
(a) Driver's responsibilities;
(b) Requirement of use for official purposes only;
(c) Instruction for:
(1) Acquiring maintenance and repair authorizations;
(2) Acquiring emergency supplies, services, and repairs; and
(3) Reporting accidents.
(d) The telephone numbers of responsible GSA IFMS fleet management center employees to be called in case of accident or emergency;
(e) Instructions on the use of the Standard Form 149, U.S. Government National Credit Card;
(f) List of contractors from which vehicle operators may purchase items authorized by the SF 149, U.S. Government National Credit Card;
(g) Accident reporting kit which contains:
(1) Standard Form 91, Motor Vehicle Accident Report; and
(2) Standard Form 94, Statement of Witness.
The vehicle operator or assignee shall be personally responsible for safeguarding and protecting the SF 149, U.S. Government National Credit Card.
GSA may withdraw the issued vehicle from further use by the agency or its contractor if it is determined that the using agency has not complied with the provisions of subpart 101-39.3, that the vehicle has not been maintained in accordance with GSA IFMS maintenance standards, that the vehicle has been used improperly, or that the using agency has not reimbursed GSA for vehicle services. Improper use includes, but is not limited to, credit card abuse and misuse, continued violation of traffic ordinances, at-fault accidents, reckless driving, driving while intoxicated, use for other than official purposes, and incidental use when not authorized by the using agency.
Officials, employees, and contractors responsible for the operation of General Services Administration (GSA) Interagency Fleet Management System (IFMS) vehicles shall exercise every precaution to prevent accidents. In case of an accident, the employee or official concerned shall comply with the procedures established by this subpart.
(a) The operator of the vehicle is responsible for notifying the following persons immediately, either in person, by telephone, or by facsimile machine of any accident in which the vehicle may be involved:
(1) The manager of the GSA IFMS fleet management center issuing the vehicle;
(2) The employee's supervisor; and
(3) State, county, or municipal authorities, as required by law.
(b) In addition, the vehicle operator shall obtain and record information pertaining to the accident on Standard Form 91, Motor Vehicle Accident Report. Only one copy of the Standard Form 91 is required. When completed, the Standard Form 91 shall be given to the vehicle operator's supervisor. The vehicle operator shall also obtain the names, addresses, and telephone numbers of any witnesses and, wherever possible, have witnesses complete Standard Form 94, Statement of Witness, and give the completed Standard Form 94 and other related information to his or her supervisor. The vehicle operator shall make no statements as to the responsibility for the accident except to his or her supervisor or to a Government investigating officer.
(c) Whenever a vehicle operator is injured and cannot comply with the above requirements, the agency to which the vehicle is issued shall report the accident to the State, county, or municipal authorities as required by law, notify the GSA IFMS fleet manager of the center issuing the vehicle as soon as possible after the accident, and complete and process Standard Form 91. A complete copy of the accident report shall be forwarded to the appropriate GSA office as outlined in the vehicle operator's packet.
If a vehicle operator fails to report an accident involving a GSA Interagency Fleet Management System (IFMS) vehicle in accordance with § 101-39.401, or if the operator has a record showing a high accident frequency or cost, GSA will notify the appropriate official(s) of the operator's agency, and will advise that either failure to report an accident or poor driving record is considered by GSA to be sufficient justification for the agency to suspend the right of the employee to use a GSA IFMS vehicle.
(a) Every accident involving a GSA Interagency Fleet Management System (IFMS) vehicle shall be investigated and a report furnished to the manager of the GSA IFMS fleet management center which issued the vehicle.
(b) The agency employing the vehicle operator shall investigate the accident within 48 hours after the actual time of occurrence. Also, GSA may investigate any accident involving an IFMS vehicle when deemed necessary. Should such investigation develop additional information, the additional data or facts will be furnished to the using agency for its information.
(c) Two copies of the complete report of the investigation, including (when available) photographs, measurements, doctor's certificate of bodily injuries, police investigation reports, operator's statement, agency's investigation reports, witnesses' statements, the Motor Vehicle Accident Report (SF 91), and any other pertinent data shall be furnished to the manager of the GSA IFMS fleet management center issuing the vehicle.
Whenever there is any indication that a party other than the operator of the GSA Interagency Fleet Management System (IFMS) vehicle is at fault and that party can be reasonably identified, the agency responsible for investigating the accident shall submit all original documents and data pertaining to the accident and its investigation to the servicing GSA IFMS fleet management center. The GSA IFMS regional fleet manager, or his/her representative, will initiate the necessary action to effect recovery of the Government's claim.
(a) Whenever a GSA Interagency Fleet Management System (IFMS) vehicle is involved in an accident resulting in damage to the property of, or injury to, a third party, and the third party asserts a claim against the Government based on the alleged negligence of the vehicle operator (acting within the scope of his or her duties), it shall be the responsibility of the agency employing the person who was operating the GSA IFMS vehicle at the time of the accident to make every effort to settle the claim administratively to the extent that the agency is empowered to do so under the provisions of 28 U.S.C. 2672. It shall be the further responsibility of the agency, in the event that administrative settlement cannot be effected, to prepare completely, from an administrative standpoint, the Government's defense of the claim. The agency shall thereafter transmit the complete case through appropriate channels to the Department of Justice.
(b) Except for the exclusions listed in § 101-39.406, the agency employing the vehicle operator shall be financially responsible for damage to a GSA IFMS vehicle.
(c) If a law suit is filed against the agency using a GSA Interagency Fleet Management System (IFMS) vehicle, the agency shall furnish the appropriate GSA Regional Counsel with a copy of all papers served in the action. When requested, GSA's Regional Counsel will cooperate with and assist the using agency and the Department of Justice in defense of any action against the United States, the using agency, or the operator of the vehicle, arising out of the use of a GSA IFMS vehicle.
(a) GSA will charge the using agency all costs resulting from damage, including vandalism, theft, and parking lot damage, to a GSA Interagency Fleet Management System (IFMS) vehicle which occurs during the period that the vehicle is assigned or issued to that agency, to an employee of that agency, or to the agency's authorized contractor; however, the using agency will not be held responsible for damages to the vehicle if it is determined by GSA, after a review on a case by case basis of the documentation required by § 101-39.401, that damage to the vehicle occurred:
(1) As a result of the negligent or willful act of a party other than the agency (or the employee of that agency) to which the vehicle was assigned or issued and the identity of the party can be reasonably determined;
(2) As a result of mechanical failure of the vehicle, and the using agency (or its employee) is not otherwise negligent. Proof of mechanical failure must be submitted; or
(3) As a result of normal wear and tear such as is expected in the operation of a similar vehicle.
(b) Agencies using GSA IFMS services will be billed for the total cost of all damages resulting from neglect or abuse of assigned or issued GSA IFMS vehicles.
(c) If an agency is held responsible for damages, GSA will charge to that agency all costs for removing and repairing the GSA IFMS vehicle. If the vehicle is damaged beyond economical repair, GSA will charge all costs to that agency, including fair market value of the vehicle less any salvage value. Upon request, GSA will furnish an accident report, where applicable, regarding the incident to the agency. Each agency shall be responsible for disciplining its employees who are guilty of damaging GSA IFMS vehicles through misconduct or improper operation, including inattention.
(d) If an agency has information or facts that indicate that it was not responsible for an accident, the agency may furnish the data to GSA requesting that costs charged to and collected from it be credited to the agency. GSA will make the final determination of agency responsibility based upon Government findings, police accident reports, and any available witness statements.
(e) When contractors or subcontractors of using agencies are in accidents involving GSA IFMS vehicles, the agency employing the contractor will usually be billed directly for all costs associated with the accident. It will be the responsibility of the using agency to collect accident costs from the contractor should the contractor be at fault.
If GSA's records of vehicle accidents indicate that a particular activity has had an unusually high accident frequency rate or a high accident cost per mile, GSA will so advise the using activity. Corrective action will be requested and GSA will cooperate in any reasonable manner possible to bring about improved performance.
This subpart provides the means for obtaining forms prescribed or available for use in connection with subject matter covered in part 101-39.
Standard and optional forms referenced in part 101-39 may be obtained through the General Services Administration, Inventory and Requisition Management Branch, Attn: FCNI, Washington, DC 20406, or through regional GSA Federal Supply Service Bureaus. GSA regional offices will provide support to requesting activities needing forms.
For information on transportation and traffic management previously contained in this part, see FMR part 117 (41 CFR part 102-117).
For transportation payment and audit policy, see FMR part 102-118 (41 CFR part 102-118).
For information on the disposition of personal property with special handling requirements previously contained in this part, see FMR part 102-40 (41 CFR part 102-40), Disposition of Personal Property With Special Handling Requirements.
For information on the disposition of excess personal property previously contained in this part, see FMR part 36 (41 CFR part 102-36).
For information on donation of surplus personal property previously contained in this part, see FMR part 102-37 (41 CFR part 102-37).
For information on the sale of personal property previously contained in this part, see FMR part 38 (41 CFR part 102-38). For information on demilitarization and decontamination; gold; and all-terrain vehicles previously contained in this part see FMR part 102-40 (41 CFR part 102-40).
For information on replacement of personal property pursuant to the exchange/sale authority previously contained in this part, see FMR part 39 (41 CFR part 102-39).
For information on utilization and disposal of real property, see FMR part 102-75 (41 CFR part 102-75).
For information on the disposition of seized, forfeited, voluntarily abandoned, and unclaimed personal property, see FMR part 102-41 (41 CFR part 102-41).
For information on utilization, donation, and disposal of foreign gifts and decorations previously contained in this part, see FMR part 42 (41 CFR part 102-42).
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.)
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.
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.
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).)
Normally, GSA will ask agencies to collaborate in developing parts of the FMR.
Proposed rules are published in the
(a)
(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
(d) Electronically on the Internet.
(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
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.
(a) All FMR sections are designated by three numbers. The following example illustrates the chapter (it's always 102), part, and section designations:
(b) In the looseleaf version, the month, year, and number of FMR amendments appear at the bottom of each page.
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.
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 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.)
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.
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).
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.
(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.
The reasons for writing are to:
(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.
Send correspondence to: General Services Administration, Regulatory Secretariat (MVRS), Office of Governmentwide Policy, 1800 F Street, NW, Washington, DC 20405.
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.
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.
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.
(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.
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.
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.
The FMR establishes policy; it does not specify procedures for the acquisition of GSA services. However, as a service to users during the transition 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.
In any of its parts, the FMR may prescribe forms and the requirements for using them.
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.
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.
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.
This part provides the policy framework and establishes minimum requirements that must be used by agency heads and Federal officers in applying the Federal Advisory Committee Act, as amended (FACA or “the Act”), 5 U.S.C. chapter 10, to advisory committees they establish and operate. This part is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, including any advisory committee or officer, member, employee, agent, or contractor of any advisory committee.
FACA governs the establishment, operation, administration, and termination of advisory committees within the executive branch of the Federal Government. The Act defines what constitutes a Federal advisory committee, provides general procedures for the executive branch to follow for operating an advisory committee, and is designed to assure that the Congress and the public are kept informed with respect to the number, purpose, membership, activities, recommendations, outcomes, and cost of advisory committees through reporting requirements.
The following definitions apply to this part:
Act means the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. chapter 10.
Administrator means the Administrator of General Services.
Advisory committee 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 the group's advice or recommendations for the President or on issues or policies within the scope of agency responsibilities (codified at 5 U.S.C. 1001). Advisory committees are subject to the Act unless specifically exempted by the Act, or by other statutes, or not covered by this part.
Agency has the same meaning as in 5 U.S.C. 551(1).
Agency head means the head of an executive branch agency, department, or commission, or their designated delegate.
Chairperson means the advisory committee or subcommittee member who serves in this role on an advisory committee or subcommittee by statutory requirement, or by appointment or invitation by Presidential authority or an agency's authority.
Committee Management Officer (CMO) means the individual designated by the agency head to implement the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)) and any delegated responsibilities of the agency head under the Act.
Committee Management Secretariat (Secretariat) means the organization established pursuant to sec. 7(a) of the Act (codified at 5 U.S.C. 1006(a)), which is responsible for all matters relating to advisory committees and carries out the responsibilities of the Administrator under the Act and E.O. 12024 (3 CFR, 1977 Comp., p. 158).
Committee meeting means any gathering of advisory committee members (whether in person or electronically, such as using telecommunications or through a virtual platform), held with the approval of an agency, and with a Designated Federal Officer in attendance, for the purpose of deliberating on the matters upon which the advisory committee provides advice or recommendations.
Committee member means an individual who serves by appointment or invitation by the appointing authority 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 secs. 10(e) and (f) of the Act (codified at 5 U.S.C. 1009(e) and (f)) 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 established under the authority of an agency head or authorized by statute, 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, or by the 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, 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 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 by means a committee over which the President or a Federal officer or agency exercises actual management or control of its operation, whether or not it was established by the Federal Government.
In general, the requirements of the Act and the policies of this part do not apply to subcommittees of advisory committees as long as the subcommittee reports only to that parent advisory committee and not directly to a Federal officer or agency. However, before establishing a subcommittee under a discretionary committee that is not made up entirely of members of a parent advisory committee, the head of the agency shall follow the same consultation process and document in writing the same determination of need for the subcommittee as is required under § 102-3.60(a) for the creation of a discretionary advisory committee.
In addition to the committees created by the National Academy of Sciences, Engineering, and Medicine and the National Academy of Public Administration (except as covered by subpart E of this part), the Central Intelligence Agency, and the Federal Reserve, the following are examples of committees or groups that are not covered by the Act or this part:
(a) Any advisory committee established or utilized by the Office of the Director of National Intelligence, if the Director of National Intelligence determines that for reasons of national security such advisory committee cannot comply with the requirements of the Act;
(b) Committees specifically exempted by statute;
(c) Committees created by non-Federal entities and not actually managed or controlled by the executive branch;
(d) Groups assembled where attendees provide individual advice to a Federal official(s);
(e) Groups assembled to exchange facts or information with a Federal official(s);
(f) Any committee composed wholly of full-time 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, and exclusively discussing matters relating to the management or implementation of Federal programs established pursuant to public law that explicitly or inherently share intergovernmental responsibilities or administration (sec. 204(b) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1534(b), and Office of Management and Budget (OMB) Memorandum M-95-20, dated September 21, 1995);
(g) Any committee composed wholly of full-time or permanent part-time officers or employees of the Federal Government;
(h) Local civic groups whose primary function is that of rendering a public service with respect to a Federal program;
(i) Groups established to advise State or local officials;
(j) Any committee established to perform primarily operational as opposed to primarily 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 by the Act if it becomes primarily advisory in nature;
(k) Meetings where individual rather than consensus advice is sought, such as roundtable discussions, workshops, townhall meetings, listening sessions, fact-finding meetings, meetings with an individual, or meetings with small groups of experts that do not involve regular meetings and collective recommendations;
(l) Public engagement that is required by statutes, including but not limited to: notice and comment rulemaking under the Administrative Procedure Act (5 U.S.C. 551-559), public meetings required under the National Environmental Policy Act (42 U.S.C. 4321), or public participation under the Resource Conservation and Recovery Act (42 U.S.C. 6974(b)), the Clean Water Act (33 U.S.C. 1251(e)), or the Safe Drinking Water Act (42 U.S.C. 300j-9) and the National Historic Preservation Act section 106 (54 U.S.C. 306108);
(m) Meetings with pre-existing non-governmental groups such as trade associations, advocacy groups, veterans organizations, environmental groups, or religious organizations where each group already has formulated views that it seeks to share with the Government; and
(n) Meetings where an agency is either providing its views to the private sector, or is assisting the private sector in developing guidance for itself.
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, merger, and termination of advisory committees.
FACA identifies four sources of authority for establishing an advisory committee:
(a) Required by statute. By law where Congress establishes an advisory committee, or specifically directs the President or an agency to establish it (non-discretionary);
(b) Presidential authority. By Presidential directive (non-discretionary);
(c) Authorized by statute. By law where 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 agency-authorizing statutes (discretionary).
(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 or termination, either stated in or implied by operation of the statute;
(2) The President or agency head as applicable 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 as applicable determines that the advisory committee is no longer carrying out the purpose for which it was established and terminates the advisory committee earlier; or
(4) The President or agency head as applicable renews the advisory committee not later than two years after its date of establishment, renewal, or reestablishment in accordance with § 102-3.60. If the President or an agency needs an advisory committee that was terminated, 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.
(a) Consultation with the Secretariat. To establish, renew, reestablish, or merge a discretionary advisory committee, the agency head must first consult with the Secretariat and, as part of the consultation, provide a written public interest determination approved by the head of the agency to the Secretariat documenting that the establishment, renewal, reestablishment, or merger of the committee is essential to the conduct of agency business and that the information to be obtained is not already available through another advisory committee or source within the Federal Government. At a minimum, the following factors should be addressed in the written public interest determination provided to the Secretariat (with a copy to OMB) to demonstrate that establishing the committee is in the public interest:
(1) Annual budget and expected costs broken into:
(i) Federal personnel (based on full-time equivalent (FTE) usage basis) and other Federal internal costs;
(ii) Proposed payments to members and number of members; and
(iii) Reimbursable costs;
(2) If applicable, the total dollar value of grants expected to be recommended during the fiscal year;
(3) Criteria for selecting members to ensure the committee has the necessary expertise and fairly balanced membership;
(4) List of all other Federal advisory committees of the agency;
(5) Justification that the information or advice provided by the Federal advisory committee is not available from another Federal advisory committee, another Federal Government source or any other more cost-effective and less burdensome source; and
(6) If the justification relates to a renewal, a summary of the previous accomplishments of the committee and the reasons it needs to continue.
(b) Agency considerations for fairly balanced membership. To comply with the Act's requirement for fairly balanced membership, during the Federal advisory committee member recruitment process agencies should consider the following:
(1) The points of view required. During the formation of the advisory committee membership and as membership vacancies occur, agencies should ensure that they fully consider and understand the potential implications or anticipated impacts of the advisory committee's potential recommendations. This includes consideration of the groups and entities potentially affected or interested in such recommendations, as appropriate based on the nature and functions of the advisory committee, so that the agency can make informed decisions on the areas of expertise or perspectives that would advance the work 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 by the committee.
(2) Outreach. Having identified the points of view that would promote a fairly balanced advisory committee membership, agencies should conduct broad outreach.
A notice to the public in the
(a) Procedure. Upon receipt of the written public interest determination approved by the head of the agency and information required in accordance with § 102-3.60(a), the Secretariat may provide an assessment to the agency (with a copy to OMB) as to its views on whether establishment of the advisory committee is in the public interest. Following receipt of this assessment or notification from the Secretariat that no such assessment will be produced, the agency must publish a notice in the
(b) Time required for notices. The required notices for establishment, renewal, reestablishment, or merger must appear at least 7 calendar days before the charter is filed, except that the Secretariat may approve less than 7 calendar days when requested by the agency in exceptional circumstances.
No advisory committee may meet or take any action until a charter has been filed by the CMO or by another agency official designated by the agency head.
(a) Requirement for discretionary advisory committees. To amend a charter, or establish (including due to a merger), 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;
(4) The Secretariat, indicating the date the charter was filed in accordance with paragraph (a)(2) of this section; and
(5) OMB.
(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 that the date of establishment, renewal, merger, or reestablishment for a Presidential advisory committee is the date the charter is filed with the Secretariat.
An advisory committee charter is intended to provide a description of an advisory committee's mission, goals, and objectives. The charter must contain the following information:
(a) The advisory committee's official designation (official name);
(b) The legal authority that permits the advisory committee to be established;
(c) The objectives and the scope of the advisory committee's activities;
(d) A description of the duties for which the advisory committee is responsible and specification of the authority for any non-advisory functions;
(e) The agency or Federal officer to whom the advisory committee submits its recommendations;
(f) The agency responsible for providing the necessary support to the advisory committee, including the name of the President's delegate, agency, or organization responsible for fulfilling the reporting requirements of sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)), if appropriate;
(g) The estimated annual costs to operate the advisory committee in dollars and person years (FTE). The estimated costs should break down all costs into the three categories described in § 102-3.60(a);
(h) The estimated number and frequency of the advisory committee's meetings;
(i) The period of time necessary to carry out the advisory committee's purpose(s);
(j) The planned termination date, if less than two years from the date of establishment of the advisory committee;
(k) The estimated number of advisory committee members, the expertise or experience required, and the anticipated advisory committee member designations;
(l) Whether subcommittees may be created and by whom; and
(m) The date the charter is filed in accordance with § 102-3.70.
The agency head is responsible for amending the charter of an advisory committee. Amending any existing advisory committee charter does not constitute renewal of the advisory committee under § 102-3.60. The procedures for making changes and filing amended charters will depend upon the authority basis for the advisory committee:
(a) Non-discretionary advisory committees. When Congress by law, or the President by Presidential directive (e.g., E.O.), 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 Presidential directive (e.g., E.O.), and file the amended charter as specified in § 102-3.70.
(b) Discretionary advisory committees. The agency head must amend the charter of a discretionary advisory committee when an agency head determines that provisions of a filed charter are inaccurate or obsolete, specific provisions have changed, such as the name of the advisory committee, number of members, estimated number or frequency of meetings, objectives, or estimated costs, or when advisory committees need to be merged. The agency must then file the amended charter as specified in § 102-3.70.
(c) Public notification of charter amendments. Agencies must post an announcement and a copy of the charter amendment on the advisory committee website. If an advisory committee website is not available, the agency must publish a notice of amendment in the
This subpart outlines specific responsibilities and functions to be carried out by the U.S. General Services Administration (GSA), the agency head, the CMO, and the DFO under the Act.
Agencies are to apply the following principles to the management of their advisory committees:
(a) Provide adequate support and access. Before establishing an advisory committee, agencies should identify requirements and ensure that adequate resources are available to support anticipated activities, such as work and meeting space, necessary technology, supplies and equipment (e.g., adequate virtual meeting capabilities), Federal staff support, access to key decisionmakers, and member access to meetings.
(b) Practice openness. Agencies should seek to be as transparent and timely as possible when providing public access to advisory committee activities and materials. Agencies should create public-facing websites at both the agency and advisory committee level to help the public understand an agency's advisory committee program, and use additional notification methods, as appropriate, to reach advisory committee stakeholders, pursuant to sec. 10 of the Act (codified at 5 U.S.C. 1009).
(c) Fiscal restraint. Agencies should actively seek to minimize costs associated with advisory committees and should be transparent about all expenditures. Each agency shall keep records fully disclosing the amount budgeted to each committee, a detailed account of all committee expenditures and agency expenditures on behalf of the committee, and the nature and extent of their activities. This information should be provided as part of the annual comprehensive review and be reported by the Secretariat. If the committee has a website, the agency should provide accurate and up to date information regarding all committee expenditures and the justification for each expenditure on an annual basis.
(a) The responsibilities of the Administrator under sec. 7 of the Act (codified at 5 U.S.C. 1006) have been delegated by the Administrator to the Secretariat.
(b) The Secretariat is responsible for:
(1) Engaging in consultations with agencies on the establishment, reestablishment, renewal, merger, and termination of discretionary advisory committees;
(2) Prescribing guidance and regulations applicable to advisory committees;
(3) Assisting other agencies in implementing and interpreting the Act;
(4) Conducting a Government-wide annual comprehensive review of advisory committees to determine whether each committee is carrying out its purpose, whether the responsibilities assigned to the committee should be revised, and whether any committees should be merged or terminated;
(5) Collecting and analyzing data relating to the costs of individual advisory committees and agency FACA programs as well as the costs of the Government-wide program and the Secretariat;
(6) Designing and maintaining a FACA database to facilitate data collection, reporting, and use of information required by the Act; and
(7) Providing recommendations for transmittal by the Administrator to the President, Congress, or agency heads regarding actions that should be taken with regard to the FACA and its implementation.
When a committee is utilized by or established by an agency, the agency head must:
(a) Issue administrative guidelines and management controls consistent with guidance issued by the Administrator;
(b) Maintain information on the nature, functions, and operation of each advisory committee within its jurisdiction;
(c) Designate a CMO for the agency and a DFO for each advisory committee and its subcommittees;
(d) Approve the advisory committee charters for establishments, renewals, re-establishments, or mergers;
(e) Provide a written determination stating the reasons for closing any advisory committee meeting to the public, in whole or in part, in accordance with the exemptions set forth in the Government in the Sunshine Act, 5 U.S.C. 552b(c);
(f) 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. This review must address all of the criteria listed in § 102-3.60;
(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 committee members are reviewed for conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of Government Ethics (5 CFR chapter XVI, subchapter B) including any supplemental agency requirements, and other Federal ethics rules; and
(i) Appoint or invite individuals to serve on committees, unless otherwise provided for by a specific statute or Presidential directive.
The chairperson of an independent Presidential advisory committee must:
(a) Consult with the Secretariat concerning the designation of a CMO and DFO; and
(b) Consult with the Secretariat in advance regarding any proposal to close any meeting in whole or in part.
In addition to implementing the provisions of sec. 8(b) of the Act (codified at 5 U.S.C. 1007(b)), the CMO will carry out all responsibilities delegated by the agency head and manage the agency FACA program. The CMO also should ensure that secs. 10(b), 12(a), and 13 of the Act (codified at 5 U.S.C. 1009(b), 1011(a), and 1012, respectively) 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 administrative guidelines. Agency administrative guidelines maintained and updated on committee management operations and procedures; and
(d) Closed meeting determinations. Agency, or in the case of an independent Presidential advisory committee, Secretariat, determinations to close or partially close advisory committee meetings required by § 102-3.105(e).
(a) The agency head or, in the case of an independent Presidential advisory committee, the Secretariat, must designate a Federal officer or employee to be the DFO for each advisory committee and its subcommittees, who must:
(1) Ensure that their committee activities comply with the Act, this part, their agency administrative procedures, and any other applicable laws and regulations;
(2) Approve or call all meetings of the advisory committee or subcommittee;
(3) Approve the agenda, except that this requirement does not apply to a Presidential advisory committee;
(4) Attend all advisory committee and subcommittee meetings for their duration;
(5) Adjourn any meeting when he or she determines it to be in the public interest;
(6) Chair any meeting when so directed by the agency head;
(7) Maintain information on advisory committee activities and provide such information to the public, as applicable; and
(8) Ensure advisory committee members and subcommittee members, as applicable, receive the appropriate training (e.g., FACA overview, ethics training) for compliance with the Act and this part.
(b) The DFO should ensure a public-facing website is created and maintained for each advisory committee, and include information such as: the advisory committee charter; relevant laws, regulations, and guidance; advisory committee member rosters;
An agency's administrative guidelines provide the details that advisory committee staff need to implement FACA requirements during the creation, operation, and termination of their advisory committees.
(a) Advisory committee operating procedures (also known as bylaws). Agency administrative guidelines should specify the content of advisory committee operating procedures to ensure they provide clear instructions on how to comply with the Act and the authority for the committee, including how to conduct advisory committee meetings and other committee activities.
(b) Advisory committee costs. Agency administrative guidelines must:
(1) Provide instructions on how to identify, calculate, and fully document advisory committee costs; and
(2) Ensure agency committee cost records match the data reported through the FACA database.
In developing guidelines to implement the Act, this part, and other applicable laws and regulations at the agency level, agency heads should address the following issues:
(a) Appointment and terms of advisory committee members. Unless otherwise provided by statute, Presidential directive, or other establishment authority, 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. Agency heads are encouraged to set member term limits, where possible, so that agencies continually ensure the committee is fairly balanced throughout the life of the advisory committee.
(b) Compensation of advisory committee members. Agencies are not required to pay their advisory committee members, unless required to do so by statute or Presidential authority. In determining the rate of compensation 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 head may establish appropriate rates of pay not to exceed the rate for level III of the Executive Schedule under 5 U.S.C. 5314, unless a higher rate expressly is allowed by another statute. The agency may not provide additional compensation in any form. Federal employees may not receive any additional compensation or bonus pay for their service on an advisory committee, except recompense of travel expenses in accordance with the Federal Travel Regulation in 41 CFR subtitle F.
(c) Federal employees assigned to an advisory committee. Federal employees serving as either an advisory committee member or as a staff person remain covered during the assignment by the compensation system of their employing agency.
(d) Other appointment considerations. Any advisory committee staff person who is not a current Federal employee must be appointed in accordance with applicable agency procedures.
(e) Travel expenses. Advisory committee members, 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, per the rates established for employees by the Administrator at 5 U.S.C. 5702. In order to minimize travel expenses, agencies should hold virtual meetings or allow virtual attendance for committee members who would otherwise need to travel. Reimbursement of travel expenses should only be done when the Presidential directive, authorizing statute, or committee charter allows for it, funds are available, and expenditure of funds will not exceed budgeted amounts.
(f) Services for advisory committee members with disabilities. While performing advisory committee duties, an advisory committee member with disabilities may be provided the same services by a personal assistant as those that may be provided to employees per 5 U.S.C. 3102.
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.
(a) Each advisory committee meeting must be held at a reasonable time and in a manner or place accessible to the public.
(b) The physical or electronic meeting room must be sufficient to accommodate 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, whether or not the statement is related to a specific meeting.
(d) Any member of the public may speak to or otherwise address the advisory committee if the agency's guidelines so permit.
(e) Any advisory committee meeting conducted in whole or in part through any electronic medium (such as a teleconference or through a virtual platform) must meet the requirements of this subpart. Agencies should explore having virtual meetings instead of in-person meetings as a cost savings measure.
(f) The
If a subcommittee provides advice or recommendations directly to a Federal officer or agency, or if its advice or 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 the requirements of this subpart.
(a) A notice in the
(1) The name of the advisory committee (or subcommittee, if applicable);
(2) The time, date, physical place (and/or instructions to connect electronically), and purpose of the meeting;
(3) Whether meeting registration is required;
(4) A summary of the agenda, and/or topics to be discussed and instructions on how to access meeting materials;
(5) A statement whether all or part of the meeting is open to the public or closed; if the meeting is closed in whole or in part, state the reasons why, citing the specific exemption(s) of the Government in the Sunshine Act, 5 U.S.C. 552b(c);
(6) Instructions for submitting written comments, and oral comments if permitted;
(7) Instructions on how to submit a request for physical meeting or electronic meeting accommodations consistent with the relevant sections of the Rehabilitation Act, as amended, 29 U.S.C. 794; and
(8) The contact information for the DFO or other responsible agency official, or agency electronic mailbox for the committee, to contact for additional information concerning the meeting.
(b) The agency or an independent Presidential advisory committee may give less than 7 calendar days notice if the President determines this is necessary for reasons of national security, or if the head of an agency determines this is necessary due to exceptional circumstances, and the reasons for doing so are included in the advisory committee meeting notice published in the
(c) In addition to the
(a) To close all or part of an advisory committee meeting, the DFO must 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 justifies the closure. The request must provide the agency head or the Secretariat sufficient time to review the matter in order to make a determination before publication of the meeting notice required by § 102-3.150.
(b) 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 of the Government in the Sunshine Act and FACA, the appropriate agency official must issue a determination that all or part of the meeting will be closed. The agency head or the chairperson of an independent Presidential advisory committee must make a copy of any such determination available to the public upon request.
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, or analyze relevant issues and facts in preparation for deliberation by advisory committee members in a public meeting of the advisory committee, or deliberation by subcommittee members in a public meeting of the subcommittee (where applicable). These meetings to conduct preparatory work do not include deliberation among advisory committee or subcommittee members; 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 subcommittee (such as meeting logistics) or to receive administrative information from a Federal officer or agency (such as a briefing on ethics or FACA procedural requirements).
(a) Detailed minutes of each advisory committee meeting, including one that is closed or partially closed to the public, must be 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 (or electronic format) 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 materials received, issued, or approved by the advisory committee at the meeting.
(c) The DFO must ensure that minutes are certified for accuracy by the chairperson within 90 calendar days of the meeting to which they relate. Agencies should post the meeting minutes on the agency advisory committee website (if one exists).
Timely access to advisory committee records is an important element of the public access requirements of the Act. Section 10(b) of the Act (codified at 5 U.S.C. 1009(b)) 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 comprehend fully the work undertaken by the advisory committee. Although certain advisory committee records may be withheld under an exemption to the Freedom of Information Act (FOIA), agencies may not require members of the public or other interested parties to use FOIA procedures in order to obtain records available under sec. 10(b) of the Act (codified at 5 U.S.C. 1009(b)).
(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 sec. 6(b) of the Act (codified at 5 U.S.C. 1005(b)) must be prepared and transmitted to the Congress detailing the disposition of the advisory committee's recommendations. These reports are prepared and transmitted to the Congress either by the President or the President's delegate pursuant to § 102-3.75(f).
(b) Annual comprehensive review of Federal advisory committees. Per sec. 7(b) of the Act (codified at 5 U.S.C. 1006(b)), GSA is required to conduct an annual comprehensive review of the activities and responsibilities of each Federal advisory committee that was in existence during any part of a Federal fiscal year. In carrying out the review the Secretariat shall review the written public interest determination required by § 102-3.60(a), any reports or recommendations issued by each committee, including all grants, and data reported on each committee by its sponsoring agency to make a recommendation as to whether the committee should be renewed, merged, or terminated. Federal agencies are responsible for reporting data on each advisory committee into the GSA FACA database as part of the annual comprehensive review.
(c) Annual report of closed or partially closed meetings. In accordance with sec. 10(d) of the Act (codified at 5 U.S.C. 1009(d)), 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, 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 sec. 13 of the Act (codified at 5 U.S.C. 1012) for public inspection and use.
(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, 44 U.S.C. chapters 21 and 29 through 33, and regulations issued by the National Archives and Records Administration (see 36 CFR parts 1220, 1222, 1228, and 1234), or in accordance with the Presidential Records Act, 44 U.S.C. chapter 22.
This subpart provides guidance to agencies on compliance with sec. 15 of the Act (codified at 5 U.S.C. 1014). Section 15 establishes requirements that apply only in connection with a funding or other written agreement involving an agency's use of 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 National Academy 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 sec. 15 applies to any committee created by NAS or NAPA.
(a) Section 15 requirements. An agency may not use any advice or recommendation provided to an agency by NAS or 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 sec. 15(b) of the Act (codified at 5 U.S.C. 1014(b)); or
(3) In the case of NAPA, the academy certifies that it has complied substantially with the requirements of sec. 15(b)(1), (2), and (5) of the Act (codified at 5 U.S.C. 1014(b)(1), (2), and (5), respectively).
(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 sec. 15 of the Act (codified at 5 U.S.C. 1014) that are applicable to that academy. In addition, 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 sec. 15 of the Act (codified at 5 U.S.C. 1014); 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.
All provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA's intention that the remaining provisions shall continue in effect.
(a) This part applies to all federally funded aviation activities using Government aircraft for official executive branch business.
(b) This part does not apply to the following:
(1) The Armed Forces, except for:
(i) Section 102-33.20(e); and
(ii) Subpart D of this part;
(2) The President or Vice President and their offices;
(3) Aircraft when an executive agency provides Government-furnished avionics for commercially or privately owned aircraft for the purposes of technology demonstration or testing; and
(4) Privately owned aircraft that agency personnel use for official travel.
(c) This part does not supersede any of the regulations in 14 CFR chapter I.
(a) See §§ 102-2.60 through 102-2.110 of this chapter.
(b) The General Services Administration (GSA) may not grant deviations from the requirements of OMB Circular A-126.
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 a component or assembly used on aircraft.
Armed Forces mean all military branches (active, reserve, and National Guard).
Aviation life support equipment (ALSE) means equipment that protects flight crewmembers and others aboard an aircraft during flight, including assisting their safe escape, survival, and recovery during an accident or other emergency.
Crewmember means a person operating or assisting in flight.
Criticality code means a single digit code that DoD assigns to military Flight Safety Critical Aircraft Parts (FSCAP).
Data plate means a fireproof, permanent identification (ID) plate on aircraft or components, per Federal Aviation Administration (FAA) or military standards.
Declassify means to remove non-operational aircraft from Federal inventory for ground use.
Disposal date is when an executive agency relinquishes aircraft responsibility. For FAIRS, declassification is considered a “disposal” action.
Donated aircraft are surplus aircraft donated to eligible non-Federal groups pursuant to § 102-37 of this subchapter.
Exchange see § 102-35.20 of this subchapter.
Exchange/sale see § 102-35.20 of this subchapter.
Exclusive use means aircraft operated solely for U.S. Government benefit.
Executive agency see § 102-35.20 of this subchapter.
Federal aircraft means manned or unmanned aircraft owned or used by an executive agency, including:
(1) Bailed aircraft: aircraft owned by one agency, operated by another under agreement;
(2) Borrowed aircraft: aircraft owned by a non-executive agency, used by an executive agency without compensation;
(3) Forfeited aircraft: aircraft seized by the Government through a legal process;
(4) Loaned aircraft: aircraft owned by an executive agency, in a non-executive agency's custody without compensation; and
(5) Owned aircraft: aircraft title held by an executive agency.
Bailed or loaned aircraft stay in the owning agency's inventory, unless DoD-owned, then listed under the operator.
Federal Aviation Interactive Reporting System (FAIRS) is a management information system designed to collect, maintain, analyze, and report information on Federal aircraft inventories and cost and utilization of Federal and Commercial Aviation Services (CAS).
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 is when an agency leases a non-Federal aircraft with crew and maintenance for exclusive use; such aircraft are not considered Federal, no matter the contract length.
Government aircraft means manned or unmanned aircraft operated for the exclusive use of an executive agency. Government aircraft include—
(1) Federal aircraft; and
(2) Aircraft hired as CAS, including:
(i) Leased aircraft for exclusive use for an agreed upon period of time;
(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;
(iv) Rental aircraft obtained commercially under an agreement in which the executive agency has exclusive use for an agreed upon period of time;
(v) Contracting for full services; or
(vi) Obtaining related aviation services by commercial contract, except those services acquired to support Federal aircraft.
Governmental function is a federally funded activity carried out by an agency under its legal authority.
Intelligence community means those agencies identified in the National Security Act, 50 U.S.C. 401a(4).
Inter-service Support Agreement (ISSA) is a deal where one agency provides aviation services to another, with or without reimbursement; sharing only the aircraft is a bailment, not an ISSA.
Life-limited part is any aircraft part with a set replacement time, inspection interval, or time-based requirement. 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 note or reference mandatory replacement or inspection of parts.
Military aircraft part is 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 are Federal aircraft deemed unsafe for flight and not economically repairable, excluding those temporarily out of service for maintenance, which are considered 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 or associated with performing governmental functions;
(ii) Carrying passengers authorized to travel on Government aircraft; and
(iii) Training pilots and other aviation personnel.
(2) Does not include—
(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 are Federal aircraft that are safe to fly or can be economically repaired to be flight-ready, including those temporarily out of service for maintenance.
Original equipment manufacturer (OEM) refers to the company that designed or holds rights to produce an aircraft or part; Parts Manufacturer Approval (PMA) parts are not OEM, though they may be valid replacements.
Passenger means a person onboard a Government aircraft who is authorized to travel and not a crewmember or qualified non-crewmember.
Performance Indicator is a metric used to track progress toward goals; for aircraft, it measures the efficiency and effectiveness of delivering safe aviation 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 and who controls the design, manufacture, and quality of a specific aircraft part.
Qualified non-crewmember means an individual, other than a member of the crew, aboard an aircraft—
(1) Operated by a United States (U.S.) 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 or tail number, which is the FAA-assigned ID displayed on U.S.-registered Government aircraft, except military aircraft; foreign CAS aircraft display their national markings.
Related aviation services contract is a commercial agreement where an agency hires aviation services, excluding aircraft, such as crew, maintenance, or catering.
Required use travel is when an agency employee must use a Government aircraft due to security, communication needs, or scheduling, as approved pursuant to 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 courses 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 courses of action; and
(5) Periodically reviewing the chosen courses of action to identify possible emerging risks and hazards.
Safe for flight means an aircraft or part has been inspected and certified to meet required standards—FAA regulations for civil aircraft in 14 CFR chapter I or military/agency standards for others—ensuring it is airworthy and safe to operate.
Safety Management System (SMS) means a top-down approach to managing safety risk through structured procedures, policies, and practices, covering safety policy, risk management, assurance, and promotion.
Senior Aviation Management Official (SAMO) is an agency's lead representative to the Interagency Committee for Aviation Policy (ICAP); responsible for promoting flight safety and compliance with 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 is suspected of not meeting the requirements of an “approved part.” Approved parts 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. For further information, see FAA Advisory Circular 21-29.
Traceable part is an aircraft part identifiable by documentation, markings, or packaging, showing it was made or deemed airworthy under 14 CFR parts 21 and 43.
Training means instruction to qualify and maintain flight program personnel. The instruction can apply to either public or civil missions.
Unmanned Aircraft Systems (UAS) means remotely or autonomously flown aircraft and required components. FAA certifies the full system; report only if it meets an agency's capitalization threshold and the UAS lifecycle is two years or more.
Unsalvageable aircraft part means parts unsafe for flight due to condition, defects, missing records, or non-compliance.
U.S. Government Aircraft Cost Accounting Guide (CAG) means GSA-issued guide for tracking aircraft costs, based on OMB and FAIRS standards.
(a) Acquire, manage, and dispose of Federal aircraft and acquire and manage CAS as safely, efficiently, and effectively as possible;
(b) Document and report:
(1) Types and numbers of your Federal aircraft;
(2) Costs of acquiring and operating Government aircraft;
(3) Amount of time of use of Government aircraft; and
(4) Accidents and incidents involving Government aircraft;
(c) Ensure that Government aircraft are used only to accomplish the agency's official Government business;
(d) Ensure all passengers on your agency's aircraft are authorized; and
(e) Appoint a SAMO by sending a letter to the Deputy Associate Administrator at the Office of Asset and Transportation Management, GSA, to represent the agency in the ICAP. This applies to all executive agencies using aircraft, including DoD, FAA, and the National Transportation Safety Board (NTSB), but not to those that only occasionally rent aircraft for specific flights.
SAMOs must:
(a) Represent the agency's views to the ICAP and vote on behalf of the agency;
(b) Contribute technical and operational policy expertise to ICAP;
(c) Serve as the designated approving official for FAIRS when the agency elects to have one person serve as both SAMO and the designated official 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.
(e) The SAMO should 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 Government-wide Policy, GSA) to certify the accuracy and completeness of information reported through FAIRS (Armed Forces 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.
GSA's responsibilities include having:
(a) A single office to carry out Governmentwide responsibilities for Government aircraft management, and publishing that policy;
(b) An interagency committee, whose members represent the executive agencies that use Government aircraft to conduct their official business 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.
(a) If the requirements are met for operating an in-house aviation program contained in OMB Circular A-76, and OMB Circular A-11, Part 2, Section 25.5, and Section 51.18, subparagraph (d), 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 and cost-effectively;
(iii) No commercial or other governmental source is available to provide aviation services safely and cost-effectively; and
(iv) Congress has specifically authorized your agency to purchase, lease, or transfer aircraft and to maintain and operate those aircraft;
(2) Acquire CAS when—
(i) Aircraft are the optimum means of supporting your agency's official business; and
(ii) Using commercial aircraft and services is safe 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 analysis, which conform to OMB Circular A-11, Part 2, Section 25.5.
To acquire Government aircraft, you must follow the requirements in:
(a) 31 U.S.C. 1343;
(b) OMB Circular A-126 Revised;
(c) OMB Circular A-11, Part 2, Section 25.5;
(d) OMB Circular A-76; and
(e) OMB Circular A-94.
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 § 102-33.40.
When purchasing, leasing, or awarding a CAS contract for a Federal aircraft, you must follow 48 CFR chapter 1, unless your agency is exempt.
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 operations you are asking the contractor to conduct;
(b) Applicable military standards; or
(c) Your agency's Flight Program Standards.
When acquiring aircraft parts, you must:
(a) Inspect and verify that all incoming parts are documented as safe for flight prior to installation;
(b) Obtain all logbooks (if applicable) and maintenance records. For guidance on maintaining records for non-military parts, see FAA Advisory Circular 43-9C.
When acquiring FSCAP you must:
(a) Accept FSCAP only if traceable to the original manufacturer and marked with the DoD Criticality Code; and
(b) Not install untraceable FSCAP unless inspected and recertified by the OEM or an FAA-approved facility.
When acquiring life-limited parts, you must:
(a) Identify and inspect the parts, ensuring that they have civil or military-certified documentation; and
(b) Mutilate and dispose of any expired life-limited parts.
You must:
(a) Establish agency-specific Flight Program Standards;
(b) Account for the cost of acquiring, operating, and supporting your aircraft;
(c) Account for the use of your aircraft;
(d) Maintain and account for aircraft parts;
(e) Report inventory, cost, and utilization data; and
(f) Properly dispose of aircraft and parts.
When hiring CAS, you must:
(a) Establish agency-specific Flight Program Standards as applicable and require compliance with these standards in your contracts and agreements;
(b) Account for the cost of your aircraft and services hired as CAS;
(c) Account for the use of your aircraft hired as CAS; and
(d) Report the cost and usage data for your CAS hires.
You must follow OMB Circular A-123 to establish management controls that ensure your aviation program meets its goals and aligns with your agency's mission.
Flight Program Standards are the minimum requirements to ensure safe, effective, and efficient aircraft operation. They must:
(a) Be specific to your agency's aviation operations, including your CAS;
(b) Meet the requirements identified in §§ 102-33.105 through 102-33.135;
(c) Meet applicable civil or military rules (in particular 49 U.S.C. 40102(a)(37) and 40125), and applicable FAA regulations in 14 CFR); and
(d) Incorporate risk management techniques when civil or military rules do not apply.
You must establish Flight Program Standards to address areas not covered by 14 CFR, such as non-certificated aircraft or high-risk operations.
(a) The Armed Forces (including the U.S. Coast Guard);
(b) Agencies in the Intelligence Community;
(c) Entities outside the executive branch 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 §§ 102-33.105 through 102-33.135 under an Agreement governing the loan.
You must write, publish, implement, and comply with standards (specific to your agency), which establish or require 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
(g) Reporting to FAIRS as required by this part.
For management/administration of your flight program, you must establish or require—
(a) A management structure overseeing operations, safety, training, maintenance, and finances (including contract requirements); and
(b) Guidance on roles, responsibilities, and authority of flight program personnel.
You must establish or require:
(a) Qualifications and currency requirements for pilots, crewmembers, maintenance, administrative, and mission personnel;
(b) Duty and flight time limitations for pilots and crewmembers;
(c) Procedures to track flight time, duty time, training, and medical requirements;
(d) Compliance with safety notices and operational bulletins;
(e) Flight-following procedures for lost or downed aircraft;
(f) Disclosure statement for crewmembers and qualified non-crewmembers flying aboard Government aircraft;
(g) Manifest with full names, contact info, and flight details for each flight leg;
(h) Documentation and retention of manifest changes for two years;
(i) Procedures to reconcile manifests and test periodically;
(j) Weight, balance, and cargo-loading manifest with retention for 30 days;
(k) Emergency procedures and equipment for specific missions;
(l) ALSE inspection and serviceability procedures; and
(m) Pre-flight risk assessment, including weather, crew rest, flight type, and crew makeup.
You must establish or require:
(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;
(3) FAA-approved programs;
(4) FAA-accepted programs; 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;
(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 to ensure replacement parts are suitable, documented, safe for flight, and properly inspected or tested; and
(g) Procedures for recording and tracking maintenance actions; inspections; and the flight hours, cycles, and calendar times of life-limited parts and FSCAP.
You must establish or require training standards, including initial and recurring instruction for flight personnel on roles, responsibilities, and operational skills.
You must establish or require the following aviation safety management standards:
(a) A Safety Management System (SMS) that complies with the FAA's current Advisory Circular (AC) that addresses SMSs or an equivalent internationally recognized SMS standard. The SMS should include:
(1) Policies that assign SMS roles, with senior management ultimately responsible and qualified safety managers or officers appointed to oversee the aviation safety program, who should be:
(i) Experienced as pilots, crewmembers, or in aviation or maintenance program management; and
(ii) Graduated or certificated from an approved aviation safety officer course before or within one year of appointment; and
(2) An accident prevention program that includes:
(i) Measurable procedures;
(ii) A system to share safety information;
(iii) Safety training;
(iv) An aviation safety awards program, including Federal Aviation Awards; and
(v) A safety council or committee (for agencies owning aircraft);
(b) Risk management procedures that identify and reduce hazards using formal controls and advise senior managers on optimal risk mitigation;
(c) Policies requiring independent inspectors to verify compliance with these standards;
(d) Procedures allowing reprisal-free reporting of unsafe operations to aviation safety officers and managers;
(e) A system to collect and report information on aircraft accidents and incidents (as required by 49 CFR part 830 and § 102-33.270);
(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 requirements in 41 CFR part 102-192, including protections against mail-borne hazards for staff and facilities, especially when using aircraft for mail delivery.
(a) You must establish or require the following standards for responding to aircraft accidents and incidents:
(1) A policy ensuring compliance with NTSB reporting rules (49 CFR parts 830 and 831), including immediate NTSB notification of accidents/incidents and a method for notifying GSA as required in § 102-33.270;
(2) An accident/incident response plan based on the NTSB's “Federal Plan,” with periodic exercises, and procedures (per FAA AC 120-92) to identify potential accidents or incidents;
(3) Procedures for participating in NTSB investigations of agency-owned or hired aircraft, and for conducting parallel investigations when appropriate;
(4) Accident/incident investigation training for personnel involved in NTSB or parallel investigations; and
(5) Procedures for disseminating, in the event of an aviation disaster that involves one of your Government aircraft, information about eligibility for benefits to anyone injured, to the injured or deceased persons' points of contact (listed on the manifest), and to the families of injured or deceased crewmembers and qualified non-crewmembers.
(b) This section does not supersede 49 CFR parts 830 and 831.
You must account for the operations and ownership costs of your Government aircraft, including UAS, as outlined in the U.S. Government Aircraft CAG at gsa.gov/aviationpolicy, in accordance with OMB Circular A-126. At a minimum, you must:
(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 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.
(a) If you own Federal aircraft or operate bailed aircraft, you must use an automated system to track aircraft costs by collecting FAIRS-required data.
(b) Agencies using only CAS aircraft and no Federal aircraft must keep records sufficient for FAIRS reporting, but are not required to have an automated system. See §§ 102-33.260 and 102-33.265 for CAS reporting requirements.
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; 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.
(a) Under 31 U.S.C. 1535 and other statutes, you may need to recover aircraft operating costs for supporting other agencies. The method for setting rates will depend on the statutory authorities under which you acquired and operate your aircraft:
(1) The variable cost recovery rate; or
(2) The full cost recovery rate.
(b) See the U.S. Government Aircraft CAG for definitions.
When accounting for the use of Government aircraft, including 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;
(c) Purpose of the flight;
(d) Departure and destination points;
(e) Flight dates and times;
(f) Manifest; and
(g) Names of the pilots and crewmembers.
(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) in 41 CFR subtitle F for complete information on authorizing travel and analyzing costs before authorizing travel on Government aircraft.
You must manage aircraft parts by ensuring proper storage, protection, maintenance, and recordkeeping throughout their life cycle.
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).
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.
Before disposing of aircraft or parts, determine if they are excess to your agency's mission.
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).
(a) A declassified aircraft is no longer an aircraft but a set of parts for ground use only.
(b) Retain documentation and traceability for all replacement parts, recorded under the correct Federal Supply Classification groups.
(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.
You must comply with the documentation procedures described in § 102-33.175 if your aircraft and/or engines contain FSCAP or life-limited parts that you will report as excess or replace.
(a) When you report as excess or replace an aircraft you must report the change in inventory to FAIRS.
(b) Within 14 calendar days of the date you dispose of the aircraft, you must report—
(1) The disposal method;
(2) The disposal date; and
(3) The identity and type of recipient.
If aircraft are excess, you must:
(a) Reassign them within your agency if a sub-agency can use them; or
(b) Report them as excess property to GSA if no sub-agencies can use them.
Refer to the procedures in 41 CFR part 102-39 for replacing aircraft via exchange/sale. Exchange/sell an aircraft to another executive agency or negotiate a fixed-price sale to a SASP.
Some agencies may have special authorization to recover costs.
When exchanging/selling non-certificated aircraft, the offering must include the following statement:
Warning: This aircraft may not meet FAA requirements. You are responsible for ensuring compliance with 14 CFR and obtaining any required FAA inspections or modifications.
The purchaser agrees the Government is not liable for any harm from the aircraft's use or disposal and will hold the Government harmless from related claims. The aircraft may not meet 14 CFR standards and may require inspection before flight.
• 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 to operate in the U.S. airspace.
• The aircraft must conform to its FAA Type Certificate to be eligible for a standard air worthiness certificate.
• Aircraft without a valid airworthiness certificate may qualify for a special FAA one-time flight permit for relocation, such as for storage, repair, inspection, or display. Approval is based on the aircraft's safety for flight.
• Purchasers of surplus military or foreign aircraft without an FAA Type Certificate may be unable to obtain an airworthiness certificate or special flight permit.
• An aircraft with proper maintenance and inspection records simplifies airworthiness determination. Contact your nearest FAA Flight Standards District Office to discuss your responsibilities. Find office locations on the FAA website (http://www.faa.gov/).
• When purchasing an aircraft for spare parts and scrapping the airframe, you must declassify the aircraft, complete the registration form, and send it to the FAA.
You must report information to GSA on Government aircraft if your agency:
(a) Is an executive agency of the U.S. Government; and
(b) Owns, bails, borrows, loans, leases, rents, charters, or contracts for (or obtains by ISSA) Government aircraft.
The following federally funded activities are exempt from the requirement to report information to GSA on Government aircraft:
(a) The Armed Forces (including the U.S. Coast Guard); and
(b) Agencies in the Intelligence Community.
Report the following to GSA via FAIRS:
(a) Inventory data for Federal aircraft, including UAS;
(b) Cost and utilization data for Federal aircraft, including UAS;
(c) Cost and utilization data for CAS aircraft and aviation services;
(d) Accident and incident data; and
(e) Results of competition studies per OMB Circular A-76 for aircraft and related services acquisition.
FAIRS, is a secure website operated by GSA, collects and reports data on Federal and CAS aircraft inventories, costs, and usage. The U.S. Government Aircraft Cost Accounting Guide (CAG) (see https://www.gsa.gov/aviationpolicy) contains the business rules for using the system.
(a) Report any changes in your Federal aircraft inventory within 14 calendar days.
(b) Report cost and utilization data to FAIRS at the end of each fiscal quarter. You may submit data more frequently. Additionally, a quarter's data may be reported in the following quarter if necessary.
Federal inventory data includes information on each of the operational and non-operational Federal aircraft and UAS that you own, bail, borrow, or loan.
(a) To declassify a Federal aircraft, you must send a letter to the Deputy Associate Administrator, GSA, requesting approval to declassify the aircraft, stating it is non-operational. Include the following:
(1) Relevant Federal Supply Classification (FSC) groups, if applicable; and
(2) Description of the aircraft's condition.
(b) When an aircraft is lost or destroyed, or is otherwise non-operational and you want to retain it, you may declassify it and remove it from your Federal aircraft inventory.
(a) You must report costs and flight hours for each Federal aircraft (including UAS), including both Federal and CAS expenses. For data element details, see the U.S. Government Aircraft CAG at www.gsa.gov/aviationpolicy.
(b) All executive agencies—excluding the Armed Forces and Intelligence Community—must report Federal aircraft cost and utilization data.
(c) Report data for loaned aircraft only if Federal funds were used.
(a) Executive agencies, excluding the Armed Forces and Intelligence Community, must report CAS cost and utilization data if they make payments for such services:
(1) Charter or rent aircraft;
(2) Lease or lease-purchase aircraft;
(3) Hire aircraft and related services through an ISSA or a full-service contract; or
(4) Obtain related aviation services through an ISSA or by contract except when you use the services in support of Federal aircraft.
(b) You must report:
(1) Costs and flight hours for each hired CAS aircraft; and
(2) Costs and contract periods for related aviation services, whether by contract or ISSA.
(c) Do not report CAS used to support Federal (owned) aircraft. The owning agency must report all related costs and usage in FAIRS. See the CAG at www.gsa.gov/aviationpolicy.
Report all NTSB-reportable aviation accidents and incidents to GSA within 14 days at https://www.gsa.gov/aviationpolicy.
Your agency must develop performance indicators to measure the achievement of key aviation program objectives:
(a) Measure the aviation program's contribution to the agency's mission;
(b) Justify aviation program budget requests; and
(c) Demonstrate the program's effectiveness and efficiency.
(a) This part governs the economical and efficient management and control of motor vehicles that the Government owns, leases commercially or leases through the General Services Administration Fleet (GSA Fleet®). Executive agencies must comply with the provisions of this entire part.
(b) This part also governs the use of Government passenger carriers to transport employees between their homes and places of employment (Home-to-Work Transportation). The Home-to-Work Transportation section (§ 102-32.405 of this chapter) applies to 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.
(c) Implementing guidance and related policies are contained in separate customer service guides that may be found at https://www.gsa.gov/vehiclepolicy. For more information, contact GSA at vehicle.policy@gsa.gov.
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 of this part with the exception of § 102-34.205 and subpart J of 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 real, immediate or imminent, not merely potential, and the use of a Government passenger carrier would provide protection not otherwise available.
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.
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.
Domestic fleet means all reportable motor vehicles operated in any State, Commonwealth, territory or possession of the United States, and the District of Columbia.
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 Government 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.
Executive agency means an executive department, a Government corporation, and an independent establishment.
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 their 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.)
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 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;”
(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.
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.
Motor vehicle identification 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 purchase means buying a motor vehicle from a commercial source, usually a motor vehicle manufacturer or a motor vehicle manufacturer's dealership.
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 reported 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.
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 by forfeiture or donation), leased, or rented (non-temporary duty (TDY)) by the United States Government.
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.
(a) Executive agencies operating domestic fleets must comply with the following motor vehicle fuel efficiency requirements, specifically applicable to passenger automobiles:
(1) Obtain the minimum size of motor vehicle necessary to fulfill the agency's mission;
(2) Obtain motor vehicles that achieve maximum fuel efficiency;
(3) Limit motor vehicle body size, engine size and optional equipment to what is essential to meet the agency's mission;
(4) With the exception of motor vehicles used by the President and Vice President and motor vehicles for security and highly essential needs, obtain midsize or smaller sedans; and
(5) Obtain large sedans only when such motor vehicles are essential to the agency's mission.
(b) Agencies must establish and document a structured vehicle allocation methodology to determine the appropriate size and number of motor vehicles.
(c) 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.
(a) Section 32917 of title 49, U.S. Code, and E.O. 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 prescribed 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 https://www.dot.gov.
(b) Guidance on fleet average fuel economy standards including calculation methods, exemption request procedures, records management protocols, and compliance requirements is available in a customer service guide that may be found at https://www.gsa.gov/vehiclepolicy. For more information, contact GSA at vehicle.policy@gsa.gov.
(c) This section does not apply to military design motor vehicles, law enforcement motor vehicles, or motor vehicles intended for emergency rescue.
All Government motor vehicles must display the following identification unless exempted under this subpart:
(a) “For Official Use Only”;
(b) “U.S. Government”; and
(c) Identification that readily identifies the agency owning the vehicle.
U.S. Government license plates must be used on Government motor vehicles unless exempted under this subpart. U.S. Government license plates may not be used on motor vehicles not owned or leased by the Government. U.S. Government license plates for domestic fleets may be obtained from the U.S. Department of Justice, UNICOR (Federal Prison Industries). GSA has established a Memorandum of Understanding (MOU) on behalf of all Federal agencies with 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. U.S. Government license plate design will have numbers preceded by a letter code that designates the owning agency for the motor vehicle. For assistance with any issues involving license plates including to obtain a new license plate code designation, contact GSA at vehicle.policy@gsa.gov.
Government motor vehicles displaying U.S. Government license plates and motor vehicle identification must be registered 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 this subpart must be registered and inspected in accordance with the laws of the jurisdiction where the motor vehicle is regularly operated.
(a) The head of the agency or designee may authorize a limited exemption to the display of U.S. Government license plates and motor vehicle identification upon written certification stating that identifying the motor vehicle would endanger the security of the vehicle occupants or otherwise compromise the agency mission. A limited exemption may last from one day up to three years before recertification is required. 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. Motor vehicles assigned for the use of the President and the heads of executive departments specified in 5 U.S.C. 101 have special exemptions from the requirement to display motor vehicle identification.
(b) 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.
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.
Employees engaged in field work, or faced with a clear and present danger, an emergency, or a compelling operational consideration may utilize home-to-work transportation only when authorized by the agency head after making the necessary determination under 31 U.S.C. 1344.
(a) This section covers the use of Government passenger carriers to transport employees between their homes and places of work. This section 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.
(b) This section does not apply to home-to-work transportation use in conjunction with official travel—including TDY or relocation, performance of intelligence, counterintelligence, protective services, or criminal law enforcement duties when designated in writing as such by an agency head, or transportation between places of employment and mass transit facilities.
(c) The agency head may not delegate the authority to make home-to-work determinations.
(d) Home-to-work determinations should be completed before an employee is provided home-to-work transportation unless it is impracticable to do so.
(e) The comfort and/or convenience of an employee is not considered sufficient justification to authorize a home-to-work transportation determination.
(f) The use of home-to-work transportation for field work should be authorized only to the extent that such transportation will substantially increase the efficiency and economy of the Government and agencies should consider the location of the employee's home in proximity to their work and to the locations where non-TDY travel is required.
(g) Determinations must be in writing and include the name and title of the employee, the reason for authorizing home-to-work transportation, and anticipated duration of the authorization. An agency head may elect to designate positions rather than individual names, especially in positions where rapid turnover occurs. If positions are identified rather than named individuals, the determination 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.
(h) Initial determinations are effective for no longer than two years for field work, updated as necessary; and fifteen days for other circumstances.
(i) The agency head may approve unlimited subsequent determinations, when the need for home-to-work transportation exceeds the initial period, for no longer than two years each for field work, updated as necessary; and ninety calendar days each for other circumstances.
(j) 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 home-to-work transportation.
(k) Report your determinations to Congress no later than 60 calendar days after approval and quarterly for any subsequent determinations to the following congressional committees:
(1) Chairman, Committee on Governmental Affairs, United States Senate, Suite SD-340, Dirksen Senate Office Building, Washington, DC 20510-6250; and
(2) Chairman, Committee on Governmental Reform, United States House of Representatives, Suite 2157, Rayburn House Office Building, Washington, DC 20515-6143.
Government motor vehicles may be used for transportation between places of employment and mass transit facilities in accordance with 31 U.S.C. 1344(g) 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 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.
Willful misuse of a Government motor vehicle will be reported to the agency head to investigate and, if appropriate, take disciplinary action under 31 U.S.C. 1349 or the violation will be reported to the Attorney General for prosecution under 18 U.S.C. 641.
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. The FFR is designed to provide essential statistical data for worldwide Federal motor vehicle fleet operations. Annually, agencies are required to submit comprehensive motor vehicle data to GSA using a standardized Federal reporting system as designated by GSA. Agencies must provide detailed asset-level data for each vehicle owned, leased, managed, and operated by the Federal Government. GSA publishes the FFR aggregate metrics on inventory, acquisitions, operating costs, miles traveled and fuel consumption.
Each agency must have a fleet management information system at the department or agency level that identifies and collects accurate inventory, cost, and use data that covers the complete lifecycle of each motor vehicle (acquisition, operation, maintenance, and disposal); and provides the information necessary to satisfy both internal and external reporting requirements, including cost per mile, fuel costs for each motor vehicle, and data required for annual collection and reporting of Federal fleet asset-level data.
Each agency is 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.
The General Services Administration's (GSA) personal property disposal regulations are contained in this part and parts 102-36 through 102-42 of this subchapter. With two exceptions, this part covers the disposal of personal property under the custody and control of executive agencies located in the United States (U.S.), 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, which applies to the replacement of all property owned by executive agencies worldwide using the exchange/sale authority, and §§ 102-36.210 through 102-36.225 of this subchapter, which apply to the disposal of foreign excess personal property. All executive agencies must comply with the provisions of this part and parts 102-36 through 102-42 unless authorized by specific, separate statutory authority to do otherwise. The legislative and judicial branches are encouraged to follow this part and parts 102-36 through 102-42 for property in their custody and control.
(a) Personal property not needed by your activity must first be offered for use elsewhere within your agency via internal screening. If the property is not needed by any activity within your agency, your agency must report the property as excess to GSA for possible transfer to eligible recipients.
(b) If no Federal agencies request the excess personal property, GSA declares the property to be surplus and makes it available for donation to eligible non-Federal recipients.
(c) Surplus personal property not selected for donation is offered for sale to the public by competitive offerings. Sales must be conducted in accordance with part 102-38 of this subchapter.
(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. This determination may occur at any stage of the disposal process.
All provisions in parts 102-36 through 102-42 of this subchapter are subject to deviation with adequate justification except for those mandated by statute, as described in §§ 102-39.20(a)(2) and 102-39.30 of this subchapter. See §§ 102-2.60 through 102-2.110 of this chapter to request a deviation.
The following definitions apply to GSA's personal property regulations in parts 102-35 through 102-42 of this subchapter.
Accountability means the ability to account for personal property by providing a complete audit trail for property transactions from receipt to final disposition.
Acquire means to procure or otherwise obtain personal property, including by lease.
Acquisition cost means the original purchase price of an item.
Allocation means the process by which GSA identifies the recipient to receive excess property per § 102-36.140 of this subchapter, or surplus property per § 102-37.40 of this subchapter.
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 mean the individual parts of ammunition, including cartridge cases, primers, bullets/projectiles, and propellant powder.
Auction means a competitive sale where the bid amounts of different bidders are disclosed as they are submitted, providing bidders with the option to increase their bids if they choose. Bids are submitted as specified by the selling agency. The bidder with the highest bid at the close of each bidding process is normally awarded the property.
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.
Biologicals means hazardous materials associated with the products and operations of applied biology and/or biochemistry, especially serums, vaccines, etc., produced from microorganisms.
Cannibalization means to remove serviceable parts from one item of equipment to install them on another item of equipment.
Combat material means arms, ammunition, and implements of war listed in the U.S. munitions list (22 CFR part 121).
Commerce Control List Items (CCLIs) are dual use (commercial/military) items that are subject to export control by the Bureau of Industry and Security, Department of Commerce. These items have been identified in the 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.
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 considering the environment in which the property is located and its vulnerability to theft, waste, fraud, or abuse.
Controlled substances mean:
(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 U.S.
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 non-Federal recipient, made in accordance with the Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C. 6301-6308), under any or all 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 mutilation, cutting, crushing, scrapping, melting, burning, or alteration to prevent further use of the item for its originally intended purpose.
Donee means any of the following entities that receive Federal surplus personal property through a State Agency for Surplus Property (SASP):
(1) A service educational activity (SEA).
(2) A public agency 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 (FAA) as discussed in part 102-37 of this subchapter.)
(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.
Estimated fair market value means the selling agency's best estimate of what the property would be sold for if offered for public sale.
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 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.
Executive agency means any executive department or independent establishment in the executive branch of the Government, including any wholly owned government corporation.
Extremely hazardous personal property 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 has been determined by the holding agency to endanger public health and safety or the environment if released to the public.
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 the Architect's direction).
Firearm 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 26 U.S.C. 5845 and/or 18 U.S.C. 921(a)(3). Excludes antique firearms as defined in 26 U.S.C. 5845(g).
Flight Safety Critical Aircraft Part (FSCAP) (see § 102-33.20 of this subchapter).
Foreign excess personal property is any U.S. owned excess personal property located outside the 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.
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 U.S.
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.
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 refers to the agency having accountability for, and 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. Examples include patents, patent rights, processes, techniques, inventions, copyrights, negotiable instruments, money orders, bonds, and shares of stock.
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 a physical count, electronic means, and/or statistical methods.
Life-limited part (see § 102-33.20 of this subchapter).
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 Item (MLI) means property and related technical data designated as defense articles and defense services pursuant to the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)).
National property management officer means an official, designated in accordance with § 102-36.10(b) of this subchapter, who is responsible for ensuring effective acquisition, use, and disposal of excess property within your agency.
Negotiated sale means 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.
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.
Offer to sell means a notice listing the terms and conditions for bidding on an upcoming sale of personal property. Prospective purchasers are advised of the requirements for a responsive bid and the contractual obligations once a bid is accepted.
Period of restriction means the period of time for keeping donated property in use for the purpose for which it was donated.
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.
Personal property means any property, except real property. The term excludes records of the Federal Government, and naval vessels of the following categories: battleships, cruisers, aircraft carriers, destroyers, and submarines.
Project grantee means a recipient of a grant made for a specific purpose and with a specific termination date.
Property management means the system of acquiring, maintaining, using, and disposing of the personal property of an organization or entity.
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 body means 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.
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.
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.
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 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.
Screening period means the period in which excess and surplus personal property are made available for excess transfer or surplus donation to eligible recipients.
Sealed bid sale means a competitive sale where bid prices are kept confidential until the bid opening. Bids are submitted as specified by the selling agency. All bids are held for public disclosure at a designated time and place.
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.
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 U.S. Coast Guard preparatory schools.
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.
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 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 general purpose (including all forms of property regardless of the FSC Group to which they are assigned).
Spot bid sale means a competitive sale where immediately following the offering of the property, bids are examined, and awards are made or bids rejected on the spot. Bids are submitted as specified by the selling agency and must not be disclosed prior to announcement of award.
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.
State or local government means a State, territory, possession, political subdivision thereof, or tax-supported agency therein.
Surplus personal property (surplus) means excess personal property 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 as 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.
Transferee means a public airport receiving surplus property from a holding agency through the FAA, or SASP.
Unclaimed property means personal property unknowingly abandoned and found on premises owned or leased by the Government, i.e., lost and found property.
United States (U.S.) means all the 50 States and the District of Columbia.
Utilization means the identification, reporting, and transfer of excess personal property among Federal agencies.
Vessels means ships, boats and craft designed for navigation in and on the water, propelled by oars or paddles, sail, or power.
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 simply not lost by the owner.
This part covers excess personal property disposal located in 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 by executive agencies. Use of pronouns “we,” “you,” and their variants throughout this part refer to the agency.
(a) Agency procurement policies must 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.
(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, public safety, or national security.
(4) Maintain appropriate inventory levels.
(5) Continuously monitor the personal property under your control to 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 the General Services Administration (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.
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 U.S.C. and the regulations in this chapter, and any other applicable statutes and regulations when performing these functions.
(a) Screen and offer available excess personal property to Federal agencies and eligible non-Federal recipients.
(b) Approve and process transfers of excess personal property to eligible activities.
(c) Determine the amount of reimbursement for transfers of excess personal property when appropriate.
(d) Conduct sales of surplus and exchange/sale personal property when requested by an agency.
(e) Maintain an automated system to facilitate the reporting and transferring of excess personal property.
The following are eligible to acquire excess personal property:
(a) Federal agencies (including for authorized use by their contractors, cooperatives, and project grantees).
(b) The Senate.
(c) The House of Representatives.
(d) The Architect of the Capitol and any activities under the Architect's direction.
(e) The DC Government.
(f) Mixed-ownership Government corporations as defined in 31 U.S.C. 9101.
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 GSA for 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.
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.
(a) You do not pay for the property, except for the situations listed in paragraph (b) of this section. However, you are responsible for shipping and transportation costs.
(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 U.S. 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.
(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).
(a) You may be required to reimburse the holding agency for the fair market value when the transfer involves any of the conditions in § 102-36.40(b)(1) through (4).
(b) When acquiring excess personal property for your project grantees (§ 102-36.40(b)(5)), you are required to deposit into the miscellaneous receipts fund of the U.S. Treasury an amount equal to 25% of the original acquisition cost of the property, except for transfers under the conditions cited in § 102-36.105.
(c) When you or the holding agency is the DC Government or a wholly owned or mixed-ownership Government corporation (§ 102-36.40(b)(6) or (7)), you are required to reimburse the holding agency using fair value reimbursement. Fair value reimbursement is 20% of the original acquisition cost for new or unused property, and 0 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 GSA.
The screening period starts when GSA receives the report of excess personal property. GSA determines the duration of the screening period. GSA may adjust the screening period in coordination with the holding agency.
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 Standard Form (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.
Normally, you have 10 days from the date the transfer order is completely approved to pick up the excess personal property for transfer. You are responsible for scheduling and coordinating the property removal with the holding agency and requesting additional time, if needed.
You may obtain excess personal property directly from another Federal agency without GSA approval if it has not yet been reported to GSA. If the total acquisition cost does not exceed $10,000 per line item, you must complete an SF 122 and ensure it is signed by an authorized official of your agency. If the total acquisition cost exceeds $10,000 per line item, you must first receive approval from GSA, annotate the SF 122 with the name of the GSA approving official, and the date of the verbal approval. You must provide a copy of the completed SF 122 to GSA under both scenarios within 10 workdays from the date of transaction. Additionally, you are subject to the requirement to pay reimbursement for the excess personal property under a direct transfer when any of the conditions in § 102-36.40(b) apply.
You may acquire and furnish excess personal property for use by your nonappropriated fund activities, contractors, cooperatives, and project grantees, and other eligible recipients when you have specific statutory authority to do so.
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.
(c) Review and approve transfer documents for excess personal property as the sponsoring Federal agency.
(d) Ensure the non-Federal recipient is aware of the non-Federal recipient's obligations under this chapter and your agency regulations regarding the management of excess personal property.
(e) Ensure the non-Federal recipient does not stockpile the property and places it into use within a reasonable period, 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 (40 U.S.C. 529).
Title to excess personal property furnished to a nonappropriated fund activity remains with the Federal Government. You are accountable for establishing controls over the use of such excess property in accordance with § 102-36.10(d). When such property is no longer required by the nonappropriated fund activity, you must reuse or dispose of the property in accordance with this part.
Property purchased by a nonappropriated fund activity is not Federal property. A nonappropriated 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.
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.
You must limit the total original acquisition cost of property transfers to the dollar value of the cooperative agreement. For any transfers more than 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.
You may furnish excess personal property for use by your grantees if:
(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% of the original acquisition cost and deposit the funds into the miscellaneous receipts fund of the U.S. Treasury. Title vests in the grantee after funds are deposited. Exceptions are listed in § 102-36.105.
You may acquire excess personal property for use by a project grantee without paying the 25% 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 subchapter 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.
(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 difficult-to-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.
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 this section, “consumable items” are items which are intended for one-time use and are actually consumed in that one time.
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 item in its existing form and will result in cost savings to the Government.
You must monitor transfers of excess personal property so the total original acquisition cost of property transferred 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.
(a) Report all excess personal property to GSA on SF 120, regardless of the condition code, except as authorized in § 102-36.65 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 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.
(2) Nonappropriated fund property.
(3) Foreign excess personal property.
(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 Commission-controlled materials.
(10) Property dangerous to public health and safety.
(11) Classified items or property determined to be sensitive for reasons of national security.
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.
Generally, you retain physical custody of the excess personal property prior to its final disposition.
(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.
You cannot dispose of excess personal property without GSA approval except under the following limited situations:
(a) Direct transfer procedures.
(b) Excess personal property not required to be reported to GSA.
(c) When such disposal is otherwise authorized by law.
You may withdraw excess personal property from the disposal process to satisfy an internal agency requirement. Property that has been requested or approved for transfer, donation, or offered for sale by GSA may be returned to your control with proper justification and GSA approval. GSA will only grant such requests prior to the sales award, since an award is binding.
(a) You may require and retain reimbursement for the excess personal property from the recipient when:
(1) Your agency has the statutory authority to require and retain reimbursement for the property;
(2) 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 fund property shall be transferred without reimbursement;
(3) You or the recipient is the U.S. Postal Service;
(4) You or the recipient is the DC Government; or
(5) 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.
(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 § 102-36.155(a)(1) and (2).
(b) When you or the recipient is the DC Government or a wholly owned or mixed-ownership Government corporation, you may only require fair value reimbursement. Fair value reimbursement is 20% of the original acquisition cost for new or unused property, and 0 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 GSA.
You may abandon or destroy excess personal property when an authorized official of your agency has 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. It must be approved by a reviewing official who is not directly accountable for the property. An item has no commercial value when it has neither utility nor monetary value as an item or scrap.
You must not abandon or destroy property in a manner which is detrimental or dangerous to public health, public safety, or national security. If you become aware of an interest from an entity in purchasing the property, you must implement sales procedures in lieu of abandonment/destruction. In lieu of abandonment/destruction, you may donate such excess personal property only to a public body without going through GSA. If you become aware of an interest from an eligible non-profit organization that is not a public body in acquiring the property, you must contact GSA and implement donation procedures in accordance with part 102-37 of this subchapter.
(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;
(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; and
(v) Aircraft was previously used for non-flight purposes 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:
(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 prior to releasing the aircraft to the authorized recipient. GSA will forward the data plates to the FAA.
You may dispose of excess FSCAP if you determine that adequate documentation is available to allow transfer, donation, or sale of the part in accordance with part 102-33 of this subchapter. 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. Ensure all available historical and maintenance records accompany the part at the time of issue.
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.
You must ensure that tags and labels, historical data, and maintenance records accompany the part on any transfers, donations, or sales. Refer to part 102-33 of this subchapter for additional information.
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.
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. Firearms not transferred must be destroyed and sold as scrap. For additional guidance on the disposition of firearms refer to part 102-40 of this subchapter.
(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 U.S. 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 and Department of Agriculture regulations, contained in titles 15 and 7 of the CFR, respectively, 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 (as defined in § 102-42.10 of this subchapter).
(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.
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 U.S. for transfer or donation purposes.
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.
If your agency has gift retention authority, you may retain gifts from the public. Otherwise, you must report gifts you receive on an SF 120 to GSA.
Report intangible personal property to GSA. You must not transfer or dispose of this property without prior approval of GSA. Per 31 U.S.C. 324, the Secretary of the Treasury will dispose of money and negotiable instruments such as bonds, notes, or other securities.
(a) Report the gift to GSA when it is offered with the condition that the property be sold and the proceeds used to reduce the public debt.
(b) You may use the gift for an authorized official purpose without reporting it to GSA when it is offered with no conditions or restrictions and your agency has gift retention authority. 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. You must report the property to GSA as excess when it is no longer needed.
(c) You must report the gift to GSA when the gift is offered with no conditions or restrictions and your agency does not have gift retention authority. 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 the U.S. Treasury as miscellaneous receipts. If your agency is interested in keeping the gift for an official purpose, you must annotate your interest on the SF 120 and submit an SF 122.
You may dispose of excess MLIs/CCLIs only when you comply with the additional disposal and demilitarization (DEMIL) requirements contained in part 102-40 of this subchapter. MLIs may require demilitarization when issued to any non-DoD entity and will require appropriate licensing when exported from the U.S. CCLIs may require export licensing when transported from the U.S.
You identify MLIs/CCLIs requiring DEMIL by the DEMIL code that is assigned to each MLI or CCLI. The code indicates the type and scope of DEMIL and/or export controls that must be accomplished, when required, before issue to any non-DoD activity. Refer to DoD Demilitarization and Trade Security Control Manual, DoD 4160.21-M-1 for additional guidance.
(a) When there are quantities on hand that would not be utilized by the 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 shelf-life items. You may dispose of property with expired shelf-life by abandonment/destruction in compliance with Federal, State, and local waste disposal and air and water pollution control standards.
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 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 subchapter. 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.
(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 U.S. 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 polychlorinated biphenyls (PCBs) 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.
When reporting excess hazardous personal property to GSA, certify 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. Refer to part 102-40 of this subchapter for additional guidance on the disposition of excess hazardous personal property.
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. You must comply with this part if you are a holding agency or a recipient of Federal surplus personal property approved by the General Services Administration (GSA) for donation. “You” means the holding agency in subpart C of this part. “You” means a State Agency for Surplus Property (SASP) in subparts D and E of this part, unless otherwise specified.
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) Nonappropriated fund property.
(d) Naval vessels of the following categories: Battleships, cruisers, aircraft carriers, destroyers, and submarines.
(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.
Authorized entities may screen property concurrently with Federal agencies. See § 102-36.60 of this subchapter.
(a) Donees should submit their requests for property directly to the appropriate SASP.
(b) SASPs and public airports should submit their requests to GSA. Requests must be submitted on Standard Form (SF) 123. The Federal Aviation Administration (FAA) must approve public airport transfer requests. 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 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.
The transferee is responsible for any packing, shipping, or transportation charges associated with the transfer of surplus property for donation. Those costs may be passed on to donees that receive the property.
The transferee or 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. The transferee must notify GSA if it no longer needs the property.
(a) Determines when property is surplus to the needs of the Government;
(b) Allocates and transfers surplus property on a fair and equitable basis to 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 FAA (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;
(f) Approves, after consultation with the holding agency, foreign excess personal property to be returned to the United States (U.S.) for donation purposes;
(g) Imposes appropriate conditions on the donation of surplus property having characteristics that require special handling or use limitations (see § 102-37.350); and
(h) Keeps track of and reports on Federal donation programs.
In case of requests from two or more SASPs, GSA will use the allocation factors in § 102-37.45. 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.
(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 (SEA).
(c) Need and usability of property. GSA will also give special consideration to requests transmitted through the SASPs by donees for specific items. Requests for property to be used “as is” will be given preference over cannibalization requests.
(d) Whether a SASP has already received similar property in the past, and how much.
(e) 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.
(f) The property's condition and its original acquisition cost.
(g) Relative neediness of each State based on the State's population and per capita income.
(a) Advise GSA if you have a donee in mind for foreign gift items or airport property;
(b) Cooperate with all entities authorized to participate in the donation program and their authorized representatives in locating, screening, and inspecting 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;
(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 GSA 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 § 102-37.55.
You may charge the transferee for the direct costs you incurred incident to a donation transfer, such as your packing, handling, crating, and transportation expenses. You may not include overhead or administrative costs.
(a) Determine if an entity seeking to obtain surplus property is an eligible entity per § 102-37.275 or other approved entity.
(b) Distribute surplus property fairly, equitably, and promptly to eligible donees in your State based on their relative needs and resources, 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.
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 §§ 102-37.110 and 102-37.115.
A State plan of operation is a document that sets forth a plan for the management and administration of the SASP in the donation of property. The state legislature must develop the plan. The chief executive officer of the State must submit the plan to the GSA Administrator 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 required by 40 U.S.C. 549(e) and set forth in the plan.
The State legislature must ensure the plan conforms to the provisions of 40 U.S.C. 549(e) and includes information and assurances as required by GSA. It may also include in the plan other provisions not inconsistent with the purposes of title 40, U.S. Code, and the requirements of this part.
The plan takes effect on the date GSA notifies the chief executive officer of the State that the plan is approved.
GSA must approve amendments or modifications to the plan. 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.
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.
(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' inventory system to search for property that is potentially available for donation.
(b) To conduct onsite screening, the screener (SASP or SASP's representative) must coordinate 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.
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. You should place donee screener records in the donee's eligibility file and review them each time a periodic review of the donee's file is undertaken.
Generally, you should have a firm requirement or an anticipated demand for any property that you request.
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 the regulations of this subchapter, 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 an eligible entity per § 102-37.275 or other approved entity.
(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 the regulations of this subchapter, and that the property is usable and needed by the donee.
You must agree that:
(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 the regulations of this subchapter. You will distribute property only after such eligible donees have properly executed the appropriate certifications and agreements established by the SASP and/or GSA.
(b) Title to the property remains in the U.S. Government although a donee has 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 U.S. 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 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 (see § 102-37.235) as an agent and authorized representative of an adjacent State, you will:
(1) Make the certifications and agreements required in § 102-37.110 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 part 101-4, part 101-6, subpart 101-6.2, and part 101-8, subpart 101-8.3, of this title.
(g) You will not seek to hold the U.S. 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.).
(a) 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 105-74 of this title.
(b) You are subject to the anti-lobbying certification and disclosure requirements in part 105-69 of this title when all the following conditions apply:
(1) 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;
(2) The cooperative agreement was executed after December 23, 1989; and
(3) The fair market value of the property requested under the cooperative agreement is more than $100,000.
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 § 102-37.350;
(b) Items requested specifically for cannibalization;
(c) Foreign gifts and decorations (as defined in § 102-42.10 of this chapter); and
(d) Any item on which written justification will assist GSA in making allocation to states with the greatest need.
(a) For each SF 123 that you submit to GSA for transfer of a surplus aircraft or vessel covered by § 102-37.350, 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; 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
(2) A conditional transfer document (CTD), signed by you and the intended donee, and containing the special terms and conditions prescribed by GSA.
A letter of intent must include:
(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 in its inventory;
(c) A detailed description of how the aircraft or vessel will be used, its purpose, how often it will be used, 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. 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 supporting the donee's need for the aircraft or vessel.
The SASP must notify GSA if a donee is requesting property for cannibalization and 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.
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.
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 it appears a crime has been committed.
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.
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 §§ 102-37.340 and 102-37.345; and
(b) Period of restriction during which the donee must use the property for the purpose for which it was acquired.
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. An interstate distribution cooperative agreement must be prepared as prescribed in § 102-37.235 and submitted to GSA 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.
You can retain surplus property for use in operating the donation program if you have a cooperative agreement with GSA that allows you to do so. You must obtain prior written GSA approval before using any surplus property in the operation of the SASP. Make your needs known by submitting a list of needed property to GSA 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 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.
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.
Except as provided in § 102-37.390, you must use funds collected from service charges, or from other sources 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.
(a) As soon as it becomes clear that you cannot donate the surplus property, you should first determine whether 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 § 102-37.220.
(2) If you determine that the undistributed surplus property is usable, you should promptly report it to GSA for redisposal through retransfer, sale, or other means.
(b) Normally, any property not donated within a 1-year period should be processed in this manner.
The requesting SASP must submit an SF 123 to GSA. GSA will respond to the request within 30 calendar days of receipt of the transfer order.
When reporting unneeded, usable property that is not required for transfer to another SASP, provide GSA with the:
(a) Description of each line item of property, 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 § 102-37.215.
You may act as GSA's agent in selling undistributed surplus property 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.
(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, GSA will provide the necessary forms and instructions for you to use in conducting the sale.
(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.
(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 the transfer of the property. In the case of a Federal 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% of the total sales proceeds.
(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 GSA for approval. You must include:
(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 or the abandonment location;
(4) A statement confirming that the proposed abandonment or destruction will not be detrimental or dangerous to public health, public safety, or national security, and will not infringe on the rights of other persons; and
(5) The signature of the SASP director.
(b) GSA will notify you within 30 calendar days of receipt of the request whether you may abandon or destroy the property. GSA will provide alternate disposition instructions if it disapproves your request for abandonment or destruction.
Section 549(f) of title 40, U.S. 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) GSA, 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.
(b) GSA 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.
The parties to a cooperative agreement must decide among themselves the extent to which the costs of the services they provide must be reimbursed. Their decision should be reflected in the cooperative agreement. Generally, 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 if 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.
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 § 102-37.115(e).
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.
For each year in which a SASP receives $1,000,000 or more a year in surplus property or other Federal assistance, it must be audited in accordance with 2 CFR part 200. GSA's donation program should be identified by Catalog of Federal Domestic Assistance number 39.003 when completing the required schedule of Federal assistance.
Although SASPs are covered under the single audit process in 2 CFR part 200, 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.
If a SASP donates $1,000,000 or more in Federal property to a donee in a fiscal year, it must ensure that the donee has an audit performed in accordance with 2 CFR part 200. If a donee receives less than $1,000,000 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 Federal assistance it has received and to arrange for audit coverage.
(a) Quarterly report on donations. Submit GSA Form 3040 by the 25th of the month following the quarter being reported.
(b) Additional reports. Make other reports as GSA may require to report to Congress on the status and progress of the donation program.
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 SASP 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 SASP'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 SASP's successor in function until continuing obligations on property donated prior to the closing of the SASP are fulfilled.
A liquidation plan constitutes a major amendment of a SASP's plan of operation and requires public notice.
(a) Section 549(d) of title 40, U.S. Code, authorizes surplus property under the control of the DoD to be donated, through SASPs, to educational activities which are of special interest to the armed services (referred to in this part as SEAs).
(b) Section 549(c)(3) of title 40, U.S. 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.
(16) Libraries, serving all residents of a community, district, state or region for free.
(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 section 308(b), 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, U.S. Code, authorizes SASPs to donate property to veterans organizations, for purposes of providing services to veterans (as defined in 38 U.S.C. 101). Eligible veterans organizations are those whose:
(1) Membership comprises substantially veterans; and
(2) Representatives are recognized by the Secretary of Veterans Affairs under 18 U.S.C. 5902.
(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, DoD will determine eligibility to receive surplus property through the SASP as an SEA.
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 § 102-37.275;
(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.
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) For educational activities, letters from three accredited or State-approved institutions that students from the applicant institution have been and are being accepted.
(e) For public health institutions, licensing may be accepted as 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.
In general, you must maintain the records required by your State plan to document donee eligibility. 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.
You must update donee eligibility records as needed, at least 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, licensing, or certification. You must take particular care to ensure that all records are current relating to the authority of donee representatives to screen and receive property.
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, and take any other required compliance actions.
If an applicant appeals a negative eligibility determination, forward complete documentation on the appeal request, including your comments and recommendations, to GSA for review. GSA's decision will be final.
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.
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.
You may only make available surplus property that the donee can use immediately. If property is provided to the donee with conditional eligibility, and the conditional eligibility lapses, the property must be returned to the SASP for redistribution or disposal.
(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.
A donee may not acquire property with the intent to sell or trade it for other assets.
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 requirements 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), 40 U.S.C. 122, 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 is not currently debarred, suspended, declared ineligible, or otherwise excluded from receiving the property.
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 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 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 requirements of this part.
(e) It will comply with any conditions imposed by GSA 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.
GSA may 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 they were donated. Such aircraft or vessels may be donated to public agencies and eligible nonprofit activities provided the aircraft or vessel is not classified for reasons of national security and any lethal characteristics are removed.
(b) Alcohol. (1) When tax-free or specially denatured alcohol is requested for donation, the donee must have a special permit issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of the Justice, to acquire the property. Include the ATF use-permit number on the SF 123.
(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 and property with unsafe or dangerous characteristics. For hazardous materials and property with unsafe or dangerous characteristics, see part 102-40 of this subchapter.
(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.
(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 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 CTD 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 U.S. Coast Guard documentation.
(c) The aircraft or vessel must be used solely in accordance with the executed CTD 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 CTD 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 combat configured (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). The SASP in turn must transmit the records to GSA for forwarding to the FAA.
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 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.
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.
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, § 102-37.380 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.
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 to GSA.
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 property donations to any donee under investigation for alleged noncompliance until all investigations have been completed and:
(1) A determination has been made that the allegations are unfounded and the deferment is removed; or
(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.
(3) Recovering fair market value or the proceeds from 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 property no longer suitable, usable, or necessary for donation, by public sale.
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; 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.
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 U.S. Treasury. You must also submit any supporting documentation indicating the source of the funds and essential background information.
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 donee requests reimbursement from the SASP for repair expenses;
(b) The SASP recommends a reimbursement amount for GSA approval, taking into consideration the benefit the donee has received from the use of the property and making appropriate deductions for that use;
(c) The property is subsequently transferred to a Federal agency and reimbursement is required as a condition of the transfer or the property is sold for the benefit of the U.S. Government;
(d) No breach of the terms and conditions of donation has occurred; and
(e) GSA authorizes the reimbursement.
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.
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. DoD must clearly identify the items and justify the request.
Section 47151 of title 49, U.S. Code, 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.
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 description of how the airport intends to use the property.
(a) Determine the property requirements of any State, political subdivision of a State, or tax-supported organization for public airport use;
(b) Set eligibility requirements for public airports and make eligibility determinations;
(c) Certify that property listed on a transfer request is desirable or necessary for public airport use;
(d) Advise GSA of FAA officials authorized to certify transfer requests and notify GSA of any changes in signatory authority;
(e) Determine and enforce compliance with the terms and conditions under which surplus personal property is transferred for public airport use; and
(f) Authorize public airports to visit holding agencies for the purpose of screening and selecting property for transfer, including:
(1) Issuing a screening pass or letter of authorization to only those persons who are qualified to screen.
(2) Maintaining a current record of screeners operating under FAA authority and making such records available to GSA upon request.
(3) Recovering any expired or invalid screener authorizations.
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.
Pursuant to 40 U.S.C. 527, 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.
Only property that a holding agency has made a written determination to abandon or destroy may be donated under this subpart.
The recipient public body is responsible for paying the disposal costs incident to the donation, such as packing, preparation for shipment, demilitarization, loading, and transportation to its site.
(a) The holding agency is responsible for preparing SF 97-1 upon notification by GSA that a donee has been identified. The SF 97-1 may be prepared by GSA if mutually agreed upon by the holding agency and GSA. The holding agency is designated as the “transferor.” If the holding agency authorizes or requires any other entity, including a contractor or grantee, to complete this SF 97-1, the holding agency must first ensure compliance with the Paperwork Reduction Act.
(b) The SASP is responsible for facilitating the transfer of the surplus vehicle to the donee in accordance with this part. The SASP must not sign the SF 97-1 as “transferee” unless the SASP is the donee.
(c) The donee is responsible for processing the SF 97-1 in accordance with state licensing and titling authorities. The donee signs the SF 97-1 as “transferee” upon receipt of the surplus motor vehicle. The donee is responsible for notifying the SASP if an SF 97-1 is not provided by the Government.
Title to the vehicle rests with the holding agency until the SF 97-1 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.
This part covers the policies governing the sale of surplus and exchange/sale personal property. Unless otherwise indicated, use of pronouns “we,” “you,” and their variants throughout this part refer to the executive agency responsible for the sale of the property.
Only an executive agency designated or authorized by the General Services Administration (GSA) may sell personal property, including on behalf of another agency. Only an authorized contracting officer may execute the sale award documents and bind the United States to the sales contract.
An executive agency's responsibilities in selling personal property are to:
(a) Ensure the sale complies with the provisions of title 40 U.S.C., 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;
(e) Adjust your property and financial records to reflect the final disposition;
(f) Ensure all sales are made after publicly advertising for bids, except as provided for negotiated sales; and
(g) Ensure advertising for bids permits full and free competition consistent with the value and nature of the property involved.
The holding agency is responsible for the care and handling costs of the personal property until it is removed by the buyer or the buyer's designee.
Federal agencies have first claim to excess or surplus personal property reported to GSA. When a bona fide need for the property exists and is expressed by a Federal agency, 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.
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 most advantageous to the Government. 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 as applicable, including:
(a) Inspection.
(b) Condition and location of property.
(c) Eligibility of bidders.
(d) Consideration of bids.
(e) Bid deposits and payments.
(f) Submission of bids.
(g) Bid price determination.
(h) Title.
(i) Delivery, loading, and removal of property.
(j) Default, returns, or refunds.
(k) Modifications, withdrawals, or late bids.
(l) Requirements to comply with applicable laws and regulations.
(m) Certificate of independent price determinations.
(n) Covenant against contingent fees.
(o) Limitation on Government's liability.
(p) Award of contract.
(a) You may use any method of sale provided the sale is publicly advertised and the personal property is sold with full and free competition. 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.
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, or tax-supported agency, 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;
(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 Congress. This authority may be used only with specific lot(s) of property or for categories determined by GSA for a designated period but not more than three months; or
(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.
(a) In advance of the sale, report explanatory statements for each sale by negotiation of any personal property with an estimated fair market value of more than $15,000 to the GSA oversight committees. 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 a listing and description of all negotiated sales of personal property with an estimated fair market value more than $5,000 to GSA within 60 calendar days after the close of each fiscal year.
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 GSA, as reflected in GSA Bulletin FMR B-10;
(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 to determine 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 the estimated fair market value of the property. Property is sold on a first-come, first-served basis. You or the holding agency may also establish additional terms and conditions that must be met by the successful purchaser.
Before offering to the public, you may offer the property at fixed prices through the State Agency for Surplus Property (SASP) to any States, territories, possessions, political subdivisions, or tax-supported agencies, which have expressed an interest in obtaining the property.
(a) You must provide public notice of your sale of personal property to permit full and free competition. 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. Public advertising is considered an 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. You may also distribute mailings or flyers of your offer to sell to prospective purchasers on mailing lists.
(b) The public notice must include information necessary for potential buyers to participate in the sale, such as:
(1) Date, time and location of sale;
(2) General categories of property being offered for sale;
(3) Inspection period;
(4) Method of sale (i.e., spot bid, sealed bid, auction);
(5) Selling agency; and
(6) Who to contact for additional information.
You must allow prospective bidders sufficient time to conduct inspections of the personal property to be sold. If physical inspections are prohibited due to agency circumstances, you must notify GSA in writing at least 3 days prior to the start of the screening period. The length of the inspection period depends on whether the inspection is electronic or physical. You should also consider the circumstances of sale; the accessibility of the sales facility; and the volume, type, and location of the property. Normally, you should provide at least 7 calendar days to ensure potential buyers can perform needed inspections.
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;
(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.
Terms and conditions in the offer to sell are normally incorporated into the sales contract and are binding once a bid is accepted.
Generally, you may sell Federal personal property to anyone of legal age. You must not enter into a contract with persons or entities debarred or suspended from purchasing Federal property unless your agency head or designee responsible for the disposal action determines there is a compelling reason to do so.
You may sell Federal personal property to any Federal employee whose agency does not prohibit their employees from purchasing such property. Employees with nonpublic information regarding property offered for sale may not participate in that sale unless allowed by Federal or agency regulations (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.
You will award the sales contract to the bidder with the highest responsive bid, unless a determination is made to reject the bid.
If no award is made, you may sell the personal property at another sale, or you may abandon or destroy it.
No specific form or format is designated for transferring title from the Government to the buyer for personal property sold. 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.
(a) You may retain that portion of the sales proceeds, in accordance with your agreement with the holding agency, equal to your direct costs and reasonably related indirect costs 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.
(c) After accounting for amounts retained under paragraphs (a) and (b) of this section, 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 nonappropriated funds;
(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; or
(5) The property sold was related to waste prevention and recycling programs, under the authority of section 706 of Public Law 115-31. Consult your General Counsel or Chief Financial Officer for guidance on use of this authority.
Any sales proceeds that are not retained pursuant to the authorities in § 102-38.105 must be deposited as miscellaneous receipts in the U.S. Treasury.
You may sell Government personal property to State and local governments through:
(a) Competitive sale to the public;
(b) Negotiated sale, through the appropriate SASP; or
(c) Negotiated sale at fixed price through the appropriate SASP. This method of sale can be used prior to a competitive sale to the public.
If a SASP wants to buy the personal property advertised for public sale, you are not required to withdraw the item.
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.
SASPs must follow the regulations in this part when conducting sales of Government personal property in their custody on behalf of GSA.
This part covers the exchange/sale authority and applies to all personal property owned by executive agencies worldwide. Use of “you” throughout this part refers to executive agencies.
Consider using the exchange/sale authority when replacing personal property. Determine whether an exchange or sale will provide a greater return for the Government.
You should first 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; and
(3) Apply the transfer proceeds in whole or part payment for property acquired to replace the transferred property.
(b) 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. The sales proceeds must be applied in whole or part payment for property acquired to replace the transferred property.
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 not use the exchange/sale authority for:
(a)(1) The following Federal Supply Classification (FSC) groups of personal property:
(i) 10 Weapons. (This restriction/prohibition does not apply to Class 1005 weapons when conducting exchange/sales with the original equipment manufacturer.)
(ii) 11 Nuclear ordnance.
(iii) 44 Furnace, Steam Plant, and Drying Equipment; and Nuclear Reactors (FSC Class 4470, Nuclear Reactors only).
(iv) 68 Chemical and chemical products.
(v) 84 Clothing, individual equipment, and insignia.
(2) Deviations under paragraph (a)(1) of this section are not required for Department of Defense (DoD) property in any FSC Group when 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 Commission-controlled materials unless you meet the requirements of part 102-40 of this subchapter.
(d) Controlled substances, unless you meet the requirements of part 102-40 of this subchapter.
(e) Property with a condition code of scrap except:
(1) Property that had utility and value at the point in time when a determination was made to use the exchange/sale authority; or
(2) Property that was otherwise eligible for exchange/sale but was coded as scrap due to damage.
(f) Property that was originally acquired as excess, 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 Defense Logistics Agency Disposition Services.
(i) Flight Safety Critical Aircraft Parts (FSCAP) and Critical Safety Items (CSI) unless you meet the provisions of part 102-33 of this subchapter.
(j) Vessels subject to 40 U.S.C. 548.
(k) Aircraft and aircraft parts, unless there is full compliance with all exchange/sale provisions in part 102-33 of this subchapter.
You may use the exchange/sale authority if:
(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) When replacing personal property by sale, you must use the methods, terms, and conditions of sale, and the forms prescribed in part 102-38 of this subchapter.
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. Deviations will not be granted for this section.
(a) This part provides guidance regarding the utilization, transfer, donation, sale, and other disposal of Government personal property with special handling requirements.
(b) 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.
(c) The pronouns “we,” “you,” and their variants throughout this part refer to the executive agency, or other entity using this part, unless otherwise indicated.
Includes property containing hazardous materials, electronics, or property exhibiting dangerous characteristics such that improper use, storage, transportation, or disposal may lead to potential safety, health, environmental, economic, or national security risks. Often, the use, storage, transportation, or disposal of these items is governed by Federal, State, and local laws and regulations.
You must report excess personal property with special handling requirements to the General Services Administration (GSA) for excess/surplus screening. The report must clearly identify property requiring special handling and all related hazards, precautions, and handling requirements. 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.
You are not required to report to GSA excess personal property with special handling requirements in the following categories:
(a) Extremely hazardous personal property. You must dispose of extremely hazardous personal property not reported to GSA in accordance with applicable Federal, State, and local laws and regulations. If circumstances permit, this material may be reported to GSA to optimize use of this already-acquired material. When reporting, 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).
(b) Hazardous wastes. You must dispose of hazardous wastes not reported to GSA in accordance with applicable Federal, State, and local laws and regulations.
(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. Perishables that have a longer time before spoilage and are clearly able to be used may be reported to GSA. When reporting perishables, note if there is a specific expiration date and whether such date is an original or extended date.
The holding agency is responsible for the care and handling of hazardous materials and property requiring special handling until the property has:
(a) Completed the disposal process; and
(b) Been transferred, donated, sold, or destroyed. The nature of this material may require extra precautions, processes, or equipment, thereby increasing the cost of care and handling. These costs may be charged to the Federal agency or donation recipient.
Personal property requiring special handling is generally available for transfer or donation. 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.
(a) The transfer document must contain a full description of the actual or potential hazards and restrictions associated with the handling, storage, use, transportation or disposal of the item and any continuing restrictions or instructions. GSA will not approve a donation to a SASP unless an eligible donee has been identified.
(b) You are responsible for establishing appropriate safeguards and providing instructions for personal protection to screeners who are inspecting property with special handling requirements.
You may charge the recipient any costs you incur in packing, preparing for shipment, and transporting property with special handling requirements.
You may sell personal property with special handling requirements provided you:
(a) Comply with applicable Federal, State, and local laws and regulations;
(b) Follow applicable precautions, such as proper packaging, appropriate labeling with warning signs, and allowing proper safeguards during inspection;
(c) Advertise and conduct sales of such property separately from other sales;
(d) Store and display such property in a safe and controlled manner as required; and
(e) Indicate if the property is being sold only for scrap, and/or if there are any use requirements or restrictions.
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) A Safety Data Sheet, Material Safety Data Sheet, or Hazardous Materials Identification System code, when applicable;
(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; and
(e) The necessary steps the purchaser must take in the handling and transportation of the property when the property is sold.
You may dispose of personal property requiring special handling by abandonment or destruction if you 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, is not abandoned until made safe, demilitarized, reduced to scrap, or otherwise made innocuous.
(a) Report usable ammunition to GSA for possible transfer to a Federal agency. You must not donate surplus ammunition. You may donate surplus ammunition components to eligible recipients. You may sell non-expended ammunition and ammunition components (expended and non-expended) 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 by the National Firearms Act (NFA) or any other Federal regulation, 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.
(b) 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 or destruction procedures. The recipient must certify that the expended cartridge cases will not be used for the original manufactured purpose.
(a) You are not required to report excess controlled substances to GSA. If transferred, the recipient agency must certify that it is authorized to procure the controlled substance and provide the registration number on the Certificate of Registration, issued by the Drug Enforcement Administration (DEA) (21 CFR part 1307).
(b) You must not donate controlled substances.
(c) You may only sell controlled substances by sealed bid to bidders registered with the DEA to manufacture, distribute, or dispense the particular controlled substance. DEA registration must be submitted as a condition of sale.
(d) 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 complies with DEA regulations. Destruction must be witnessed and certified by two employees of your agency.
Drugs, biologicals, and reagents other than controlled substances—
(a) May be transferred to another Federal agency for official purposes.
(b) Must be clearly identified when they are unfit for human use and destroyed, with destruction performed by an agency employee and witnessed and certified by two additional representatives of your agency. Destruction of this property held by a SASP or donee must be destroyed by a SASP employee and witnessed by two additional SASP employees.
(c) Donating to a SASP requires certification from the donee indicating that the items will be managed 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 stored in its warehouse prior to distribution to donees. Arrangements will be made by the SASP 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, the Standard Form (SF) 123 will not be approved by GSA until it has been determined by GSA that the 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 to the SF 123.
(d) Must be unexpired and sold in accordance with rules published by the Food and Drug Administration. You may sell only to those entities legally qualified to engage in the sale, manufacture or distribution of such items. Certification or evidence of licensing must accompany the bids. An entity is legally qualified when a Federal or State agency having legal or regulatory oversight over that commodity has approved the entity to engage in the designated activity.
(a) You must submit reports and transfer documents on excess firearms to GSA. 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. GSA will not transfer or donate surplus firearms to non-Federal recipients.
(b) 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 inoperable and incapable of being made operable for any purpose except the recovery of basic material content. 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.
(c) Surplus firearms may be sold only for scrap after total destruction as described in paragraph (b) of this section to ensure that the firearms are rendered completely inoperative and to preclude their being made operative.
(1) Except as provided in paragraph (c)(2) of this section, firearms received as foreign gifts may be offered for transfer to Federal agencies or sold to the gift recipient. 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 NFA 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. All firearms must also be transferred, shipped, received, and possessed in accordance with the Gun Control Act of 1968.
(d) You may exchange or sell non-excess, non-surplus firearms in FSC Class 1005 only with the original equipment manufacturer consistent with part 102-39 of this subchapter.
(e) 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.
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.
Report seized or forfeited personal property not retained for official use to the General Services Administration (GSA). You must indicate:
(a) If the property was forfeited in a judicial proceeding or administratively;
(b) If the seized property 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;
(c) The report or case number; and
(d) The existence or probability of a lien, or other accrued or accruing charges, and the amount involved.
Recipient agencies do not pay for the property. You may charge the recipient agency all costs 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. 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.
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.
(a) You may retain the property for official use if needed by your agency. If retained for official use, the property loses its identity as voluntarily abandoned property.
(b) If your agency doesn't need the property, you should determine whether it may be abandoned or destroyed.
(c) Report the property as excess to GSA if paragraphs (a) and (b) of this section do not apply.
All transfers of voluntarily abandoned personal property are without reimbursement. You may charge the recipient agency costs you incurred in storing, packing, loading, preparing for shipment, and transporting the property.
You must deposit the sales proceeds of voluntarily abandoned personal property in the U.S. Treasury as miscellaneous receipts.
(a) Title to unclaimed property vests in the Government after 30 days if not claimed by the owner. You may retain the property for official use if needed by your agency and you have held the unclaimed property for 30 calendar days without receiving a claim from the former owner. You must maintain records for 3 years after title vests in the Government to permit identification of the property should the former owner file a claim. You must report the property as excess to GSA when no longer needed and deposit any funds received from disposal in a special account to cover any valid claim filed within this 3-year period.
(b) If your agency doesn't need the property, you should determine whether it may be abandoned or destroyed. You are not required to hold unclaimed property for 30 days if abandoning or destroying it; title to the property immediately vests in the Government.
(c) Report the property as excess to GSA if paragraphs (a) and (b) of this section do not apply, or when no longer needed under paragraph (a). Unclaimed personal property is not available for donation because reimbursement at fair market value is required. Any funds received from disposal must be deposited into miscellaneous receipts of the U.S. Treasury.
This part covers the acceptance and disposition of gifts exceeding the minimal value and decorations from foreign governments under 5 U.S.C. 7342. If you receive gifts from sources other than a foreign government, refer to part 102-36 of this subchapter. Throughout this part, the terms “we”, “you”, and their variations refer to the employing agency.
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 Regulatory 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 (unless this individual and the individual's spouse are legally 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.
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 U.S. House Committee on Ethics 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 U.S. Senate Select Committee on Ethics, 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 tangible or intangible present (other than a decoration) of monetary or non-monetary value tendered by, or received from, a foreign government.
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 the General Services Administration (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 Consumer 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.
Employees may, with the authorization of their employing agencies, accept and retain the following:
(a) Gifts of minimal value received as souvenirs or marks of courtesy. In instances where a gift exceeds the minimal value, it becomes the property of the U.S. Government, not the employee, and must be reported accordingly.
(b) Decorations presented or awarded in recognition of outstanding or unusually meritorious performance. Should the employing agency deny the employee's retention of the decoration, it will revert to the property of the U.S. Government.
(a) Non-monetary gifts or decorations. When an employee receives a non-monetary gift exceeding the minimal value, or a decoration they are not authorized to retain:
(1) The employee must report the gift or decoration to their employing agency within 60 days after accepting it.
(2) The employing agency will determine whether to retain the gift or decoration for official use.
(3) If the employing agency declines to retain the gift or decoration for official use or return it to the donor, it must report the item as excess personal property to GSA for Federal utilization screening under § 102-42.80.
(4) If the gift or decoration is not transferred during Federal utilization screening, the employee may purchase the item (see § 102-42.100).
(5) If the employee declines to purchase the gift or decoration, and no Federal requirement exists, GSA may offer it for donation through State Agencies for Surplus Property (SASP) under part 102-37 of this subchapter.
(6) If no SASP requests the gift or decoration for donation, GSA may, with the approval of the Secretary of State, offer it for public sale or authorize its destruction under part 102-38 of this subchapter.
(b) Monetary gifts. When an employee receives a monetary gift exceeding the minimal value:
(1) The employee must report the gift to their employing agency within 60 days after accepting it.
(2) The employing agency must:
(i) Report monetary gifts with potential historic or numismatic (i.e., collectible) value to GSA; or
(ii) Deposit monetary gifts lacking historic or numismatic value with the Department of the Treasury.
(a) The employing agency retains custody of gifts and decorations for which employees have expressed an interest in purchasing.
(b) GSA will accept physical custody of gifts exceeding the minimal value that employees decline to purchase, or decorations not retained for official use or returned to donors.
(c) GSA will not accept physical custody of foreign gifts below the minimal value, or gifts of firearms or alcohol. Firearms reported by the agency as excess must be disposed of in accordance with part 102-40 of this subchapter.
The employing agency is responsible for the security, care and handling, and delivery of gifts and decorations to GSA, and all associated costs.
All transfers of gifts and decorations to Federal agencies or donations through SASPs are conducted without reimbursement for the property itself. However, the employing agency may require the receiving agency to reimburse all or a portion of the direct costs incurred by the employing agency for packing, preparation for shipment, loading, and transportation.
An appraisal is required in the following circumstances:
(a) When an employee expresses interest in purchasing a gift or decoration. In this situation, the appraisal must be obtained prior to reporting the gift or decoration to GSA for screening (see § 102-42.20);
(b) When GSA requires the employing agency to obtain an appraisal of a gift or decoration retained for official use but no longer needed, prior to accepting the agency's report of the item as excess personal property; or
Refer to § 102-42.50 for guidance on how appraisals under these two situations are handled.
(c) When required by the agency's internal policy, pursuant to 5 U.S.C. 7342(g).
The employing agency is responsible for establishing its own procedure for obtaining an appraisal that accurately reflects the gift's value within the United States. This requirement applies to all gifts, including those the recipient wishes to retain and/or purchase, and also includes personalized items (e.g., books signed by the author, gifts with personal labels).
Your agency may allow—
(a) Written commercial appraisals conducted by an appraisal firm or trade organization; and
(b) Retail value appraisals where the gift's value can be reliably determined by reviewing current, non-discounted retail catalogs, retail price lists, or retail website valuations.
When an appraisal is required under § 102-42.40, the employing agency must upload it in the Personal Property Management System (PPMS) when reporting the gift. By uploading the appraisal, the employing agency certifies that the value cited represents the retail/appraised value of the item in the United States, expressed in U.S. dollars, as of the date indicated on the appraisal.
Gifts and decorations received by Senators and Senate employees are deposited with the Secretary of the Senate for disposal by the Senate Commission on Art under 5 U.S.C. 7342(e)(2). GSA is responsible for the disposal of gifts or decorations received by Members and employees of the House of Representatives.
If the Senate Commission on Art does not dispose of a gift or decoration, it must be reported to GSA for disposal. If GSA does not dispose of the gift or decoration within one year of the Commission's reporting, the Commission may:
(a) Request that GSA return the gift or decoration for the Commission to dispose of it independently; or
(b) Allow GSA to continue disposal efforts in accordance with this part.
The National Archives and Records Administration normally handles gifts and decorations received by the President, Vice President, or a member of their respective families.
Gifts containing hazardous materials are handled in accordance with the requirements and provisions of this part and part 102-40 of this subchapter.
(a) You must report to GSA gifts exceeding the minimal value (excluding monetary gifts lacking historic or numismatic value) or decorations that the employee is not authorized to retain, which:
(1) Are not being retained for official use or have not been returned to the donor; or
(2) Were received by a Senator or Senate employee and not disposed of by the Senate Commission on Art.
(b) Non-monetary gifts or decorations initially retained for official use must be reported to GSA as excess property within 30 days of the termination of their official use.
(c) Report foreign gifts in PPMS by selecting “Create Foreign Gift” and include the following information:
(1) The name and position of the employee (unless the employee is a member of the intelligence community);
(2) A full description of the gift or decoration, including the title of the decoration;
(3) The identity of the foreign government (if known) and the name and position of the individual who presented the gift or decoration;
(4) The date the gift or decoration was accepted by the employee;
(5) 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.);
(6) The current location of the gift or decoration;
(7) The name, address, and telephone number of the accountable official in the employing agency;
(8) 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;
(9) The Presidential Administration in which the gift or decoration was received; and
(10) Identify each gift or decoration as a separate line item. Report multiple gift items that make up a set (e.g., a tea set, a necklace and matching earrings) as a single line item.
(a) To obtain an excess gift or decoration from another agency, you may request it in PPMS. Upon these items no longer being required, you must report them to GSA as foreign gift items.
(b) You may only request excess gifts and decorations for public display or other legitimate 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 the requested gifts and decorations. Jewelry and watches transferred for official display must be displayed with appropriate security measures.
(c) When transferred gifts and decorations are no longer required for official use, they must be reported to GSA as excess property on a Standard Form (SF) 120, including the original transfer order number or a copy of the original transfer order.
If no Federal requirement exists for the gifts or decorations, and if the gifts were not sold to the employee, GSA may make them available for donation to State agencies. 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) Requesting the items in PPMS.
(b) Attaching an original and two copies of a letter of intent to the request in PPMS. An authorized representative of the proposed donee must sign and date the letter, which must detail the plan for the use of the property. The letter of intent must provide the following information:
(1) Identification of the donee applicant, including its legal name and complete address, its status as a public agency or eligible nonprofit tax-exempt activity, and the name, title, and telephone number of its authorized representative(s);
(2) A description of the gift or decoration requested, including its commercially appraised value or estimated fair market value if a commercial appraisal was not performed; and
(3) Details regarding the planned use of the gift or decoration, including its intended location, how it will be used, and the measures in place to safeguard it.
GSA imposes special handling and use limitations on the donation of gifts and decorations. The SASP distribution document must contain or adopt 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) A restriction period of typically 10 years applies to the use outlined in the letter of intent; however, GSA may adjust this period based upon the item's nature.
(c) The donee must allow authorized representatives of the SASP or the U.S. Government the right of access to the donee's premises at reasonable times for inspection of the gift or decoration.
(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) Take any action that could 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 restriction period, the donee must promptly notify GSA through the SASP. 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 restriction period, the SASP may demand the return of the gift or decoration. 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 the U.S. Government the fair market value of the gift or decoration at the time of its loss, theft, or when 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.
(a) The Secretary of State, or their designee, must approve any sale of foreign gifts or decorations, with the exception of sales to the employee, which are approved as outlined in this part.
(b) Foreign gifts and decorations must first be offered through negotiated sales, in accordance with part 102-38 of this subchapter, to the employee who has expressed interest in purchasing the item. The sale price will be the commercially appraised value of the gift.
(c) A public sale is authorized if a foreign gift or decoration:
(1) Survives Federal utilization screening;
(2) Is not purchased by the employee;
(3) Survives donation screening; and
(4) Is approved by the Secretary of State or designee.
(d) The proceeds from the sale of foreign gifts or decorations must be deposited in the Treasury as miscellaneous receipts, unless otherwise authorized.
Foreign gifts or decorations that are not sold under this section may be destroyed and disposed of as scrap or for their material content, in accordance with part 102-38 of this subchapter.
GSA's 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 detailed guidance implementing the policies in this part is contained in separate customer service guides that may be found at https://www.gsa.gov/directives-library. For more information, contact GSA at realpropertypolicy@gsa.gov.
The following definitions apply to GSA's real property policies:
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.
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.
Executive agency means an executive department specified in 5 U.S.C. 101; a military department specified in 5 U.S.C. 102; an independent establishment as defined in 5 U.S.C. 104(1); and a wholly owned Government corporation fully subject to the provisions of 31 U.S.C. chapter 91.
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).
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).
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.
Maintenance 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 air-conditioning 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. Maintenance may also mean 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.
Nonprofit organization means an organization identified in 26 U.S.C. 501(c).
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.
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 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.
Qualified fire protection engineer means 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:
(1) An engineer having an undergraduate or graduate degree from a college or university offering a course of study in fire protection engineering, fire protection engineering technology or fire safety engineering that is accredited by the Accreditation Board for Engineering and Technology or a similar accreditation, plus a minimum of 4 years work experience in fire protection engineering.
(2) A professional engineer (P.E. or similar designation) who has passed the Principles and Practice of Engineering examination in fire protection administered by the National Council of Examiners for Engineering and Surveying (NCEES).
(3) A P.E., or similar designation, licensed in a related engineering discipline and holding the grade of Professional Member in the Society of Fire Protection Engineers.
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
(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.
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.
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.
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.
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.
Tobacco product means any item made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product). Tobacco product does not mean any item specifically excluded by the Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq.
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.
See §§ 102-2.60 through 102-2.110 of this chapter to request a deviation from the requirements of the real property policies in this part.
(a) In accordance with 40 U.S.C. 589, Federal agencies must comply with the real property policies governing the installation, repair and replacement of sidewalks around buildings, installations, properties, or grounds under the control of executive agencies and owned by the United States. 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. Upon approval from GSA, Federal agencies may—
(1) 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
(2) Contract or otherwise arrange and pay directly for installing, repairing and/or replacing sidewalks.
(b) 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.
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).
The performance objective of the automatic sprinkler system is that it must be capable of protecting human lives. Sprinklers must be capable of controlling the spread of fire and its effects beyond the room of origin. A functioning sprinkler system must activate prior to the onset of flashover.
(a) The equivalent level of life safety analysis is to be performed by a qualified fire protection engineer. The analysis must 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 must 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.
(b) To be acceptable, the analysis must indicate that the existing 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, adequacy, 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.
(c) There are three options for establishing that an equivalent level of safety exists:
(1) In the first option, the margin of safety provided by various alternatives is compared to that obtained for a code-compliant 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.
(2) 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 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.
(3) As a third option, other technical analysis procedures, as approved by the responsible agency head, can be used to show equivalency.
(a) Fire models and performance-based design methodologies such as those outlined in the Society of Fire Protection Engineers (SFPE) Engineering Guide to Performance-Based Fire Protection and the National Fire Protection Association (NFPA) 101 Life Safety Code must be used to support the life safety equivalency evaluation.
(b) 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 must be conducted in accordance with the SFPE Engineering Guide for Substantiating a Fire Model for a Given Application and the American Society for Testing and Materials “Standard Guide for Evaluating the Predictive Capability of Deterministic Fire Models” (ASTM E1355).
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 must maintain a record of each accepted equivalent level of safety analysis and provide copies to fire departments or other local authorities for use in developing pre-incident plans.
Rent is set in accordance with the GSA Pricing Desk Guide.
The Designated Official (as defined in § 102-71.10) is responsible for developing, implementing and maintaining an Occupant Emergency Plan (as defined in § 102-71.10). 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.
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.
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 Programs (as defined in § 102-71.10);
(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 § 102-71.10) by providing technical personnel qualified in the operation of utility systems and protective equipment.
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. 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.
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).
The Designated Official must initiate appropriate action according to the plan when there is advance notice of an emergency.
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.
(a) It is the policy of the executive branch to establish a tobacco product-free environment for Federal employees and members of the public visiting or using Federal facilities. The use of tobacco products is prohibited in all interior space owned, rented or leased by the executive branch of the Federal Government.
(b) This section 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 § 102-71.95(d).
The tobacco policy in this subpart does not apply in—
(a) Any residential accommodation for persons voluntarily or involuntarily residing, on a temporary or long-term 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 others protection from exposure to environmental impacts of tobacco products. Authority to establish such exceptions may not be delegated.
Use of tobacco products 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.
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.
Agency heads are responsible for monitoring and controlling areas designated by them under § 102-74.95(d) of this subchapter and identifying these areas with proper signage. Suitable, uniform signs must be furnished and installed by the occupant agency.
If the subject facility is federally owned, then Federal preemption principles apply and the Federal policy controls. If the subject 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.
All provisions included in this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA's intention that the remaining provisions will continue in effect.
Applicant means any eligible organization that has submitted an application to the Department of Health and Human Services to obtain use of a certain 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 or local government agency, or a private, non-profit organization that provides assistance to the homeless, and that is authorized under the State law in which the property is located to carry out the activity for which it requests property and enter into an agreement with the Federal Government for use of property for the purposes of this part. Eligible organizations that are private, non-profit organizations interested in applying for suitable property must be tax exempt under section 501(c)(3) of the Internal Revenue Code at the time of application and remain tax exempt throughout the time the Federal Government retains a reversionary interest in the property.
Encumbrance means any non-approved use by a transferee or a third party that limits the full utilization of the transferred property, regardless of time period, and includes liens, easements, restrictive covenants, licenses, leases, mortgages, informal agreements, and unaddressed trespass.
Excess property means any property under the control of a Federal executive agency that the head of the agency determines is not required to meet the agency's needs or responsibilities, pursuant to 40 U.S.C. 524.
GSA means the General Services Administration.
HHS means the Department of Health and Human Services.
Homeless is defined in 42 U.S.C. 11302. This term is synonymous with “homeless individual” and “homeless person.”
HUD means the Department of Housing and Urban Development.
HUD website means a website maintained by HUD providing information about HUD, including any successor websites or technologies that are equally accessible and available to the public.
Landholding agency means the Federal department or agency with statutory authority to control property. For purposes of this subpart, the landholding agency is typically the Federal department or agency that had custody and accountability on behalf of the Federal Government, of a certain piece of property at the time that such property was reported to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
Lease means an agreement in writing between either HHS for surplus property or landholding agencies for underutilized and unutilized properties and the applicant giving rise to the relationship of lessor and lessee for the use of Federal property for a term of at least one year under the conditions set forth in the lease document.
Non-profit organization means an organization recognized as a non-profit by the State in which the organization operates, 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, usually one year or less, under terms and conditions determined by the landholding agency. A permit does not grant to the recipient an estate in land or any interest in the property.
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.
Related personal property means any personal property that is located on real property and is either an integral part of or useful in the operation of that property or is determined by GSA to be otherwise related to the property.
Representative of the homeless means a State or local government agency, or private nonprofit organization that provides, or proposes to provide, services to the homeless.
Screen means the process by which GSA surveys Federal executive agencies to determine if they have an interest in using excess Federal property to carry out a particular agency mission, and then surveys State, local, and non-profit entities, to determine if any such entity has an interest in using surplus Federal property to carry out a specific public use.
State means a State of the United States, and includes the District of Columbia, the Commonwealth of Puerto Rico, and the Territories and possessions of the United States.
Suitable property means that HUD has determined that a certain property satisfies the criteria listed in § 102-71.150.
Surplus property means any excess property not required by any Federal landholding agency for its needs or the discharge of its responsibilities, as determined by GSA.
Transfer document means a lease, deed, or permit transferring surplus, unutilized, or underutilized property.
Transferee means an eligible entity that acquires Federal property by lease, deed, or permit.
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 § 102-71.150.
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.
(a) This subpart applies to Federal 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 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) Buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal property by the landholding agency or GSA or determined to be related personal property that the landholding agency or GSA chooses to dispose of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a particular action.
(5) Properties subject to a court order that is binding on the Federal Government and, for any reason, precludes transfer for use to assist the homeless under the authority of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on land under the control of a landholding agency, where the underlying land is not excess or surplus.
(13) 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 subpart.
(a) Canvass of landholding agencies. On a quarterly basis, HUD will canvass each landholding agency to collect information about property described as unutilized, underutilized, excess or surplus in accordance with 40 U.S.C. 524; however, HUD will accept property information between canvasses. Each canvass will collect information on properties not previously reported, and about property reported previously where the status or classification of the property has changed, or improvements have been made to the property. HUD will request descriptive information on properties sufficient to make a reasonable determination, under the criteria described in this section, of the suitability of a property for use to assist the homeless. Landholding agencies must report property information to HUD using the property checklist developed by HUD for that purpose. Property checklists submitted in response to a canvass must be submitted to HUD within 25 days of receipt of the canvass.
(b) Agency annual suitable property report. By December 31 of each year, each landholding agency must notify HUD of 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 changes subsequent to HUD's determination of suitability, including any improvements or other alterations to the physical condition of the land or the buildings on the property, 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 review for suitability and, if it differs from the previous determination, repost the property information on the HUD website. For example, property determined unsuitable due to extensive deterioration may have had improvements, or property determined suitable may subsequently be found to be extensively deteriorated.
(a) Suitability determination. Within 30 days after the receipt of a completed property checklist from landholding agencies either in response to a quarterly canvass, or between canvasses, HUD will determine, using the criteria set forth in 24 CFR 581.6 whether a property is suitable for use 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.
(b) Scope of suitability. HUD will determine the suitability of a property for use 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 § 102-71.155.
(d) Record of suitability determination. HUD will assign an identification number to each property reviewed for suitability. HUD will maintain a 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 § 102-71.155(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 of a notice of unsuitability on the HUD website.
(f) Procedures for appealing unsuitability determinations. (1) To request review of a determination of unsuitability, a representative of the homeless must contact HUD, in writing, through the U.S. Mail, email, or the HUD website, or such other method as HUD may require, within 20 days of publication of the notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is based, i.e., HUD has improperly applied the criteria or 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 or GSA that such a request has been made. The landholding agency or GSA shall have 20 days from receipt of the notice from HUD, or an extended period agreed to between HUD and the landholding agency or GSA, to provide any information pertinent to the review. The landholding agency or GSA must refrain from initiating disposal procedures until HUD has completed its reconsideration regarding unsuitability. If the landholding agency or GSA fails to meet the deadline, HUD will move forward with the appeal review with the property information it already has and information submitted in the appeal request provided by the representative of the homeless.
(i) HUD will act on all requests for review within 30 days of receipt of the landholding agency's or GSA's response, or, if the landholding agency or GSA failed to meet the deadline, within 30 days of such deadline, and will notify the representative of the homeless and the landholding agency or GSA 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 or GSA's determination of availability pursuant to § 102-71.115, upon receipt of which HUD will promptly publish the determination on the HUD website.
(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 an excess property to GSA that HUD has already determined to be suitable for use to assist the homeless, GSA will screen the property pursuant to paragraph (h) of this section and will advise HUD of the availability of the property for use by the homeless as provided in paragraph (e) of this section. In lieu of the preceding sentence, GSA may submit a new checklist to HUD and follow the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess 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, such as from unutilized or underutilized to excess or surplus.
(d) Within 30 days after GSA's submission, HUD will advise GSA of the suitability determination.
(e) When GSA receives notification from HUD listing suitable excess properties, GSA will transmit a response to HUD within 45 days. GSA's response will include 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 GSA submits a checklist to HUD in accordance with paragraphs (b) and (c) of this section, the information regarding the availability of the property, as specified in paragraphs (e)(1) and (2) of this section, may be included with the checklist if it is known at the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as available by GSA, and notice is published on the HUD website, GSA will concurrently notify HHS, State and local government units, and known homeless assistance providers that have expressed interest in the particular property, and other organizations, as appropriate, concerning suitable properties.
(h) 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 this part.
(i) The landholding agency will retain custody and accountability and will protect and maintain any property that is reported excess to GSA.
(a) In general, properties will be determined suitable unless a property's characteristics include one or more of the following conditions:
(1) Flammable or explosive hazards. Property located less than an acceptable separation distance under the standards in 24 CFR part 51, subpart C (for additional guidance see HUD Guidebook “Siting of HUD-Assisted Projects Near Hazardous Facilities,” or successor guidebook), from any stationary aboveground container or facility which stores, handles, or processes hazardous substances of an explosive or fire prone nature (excluding containers and facilities that are not hazards as defined in 24 CFR 51.201), unless HUD can determine during the review period based on information provided by the landholding agency that appropriate mitigating measures, as defined in 24 CFR 51.205, are already in place.
(2) Coastal barriers. Property located in a System Unit, as defined at 16 U.S.C. 3502(7), under the Coastal Barrier Resources Act, as amended (16 U.S.C. 3501 et seq.).
(3) Site safety conditions. Property with a documented and extensive condition(s) that represents a clear threat to personal physical safety or health. Such conditions may include, but are not limited to, significant contamination from hazardous substances, as defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
(b) In the cases in paragraphs (b)(1) through (4) of this section, properties will be determined unsuitable, unless the landholding agencies provide information to enable HUD to determine the property is suitable:
(1) Inaccessible. Property that is inaccessible, meaning that the property is not accessible by road (including property on small offshore islands) or is landlocked (e.g., can be reached only by crossing private property and there is no established right or means of entry).
(2) National security. 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), unless there is an alternative method to gain access without compromising national security.
(3) Runway clear zones. Property located within a runway clear zone or a military airfield clear zone.
(4) Floodway. Property located in a floodway, unless only an incidental portion of the property is in the floodway and that incidental portion does not affect the use of the remainder of the property to assist the homeless.
Within 45 days after receipt of notification from HUD pursuant to § 102-71.135(a) that a property has been determined to be suitable, each landholding agency or GSA must transmit to HUD a statement of one of the following:
(a) In the case of unutilized or underutilized property—
(1) An intention to declare the property excess;
(2) An intention to make the property available for use to assist the homeless; or
(3) The reasons why the property cannot be declared excess or made available for use to assist the homeless. The reasons given must be different from those listed as suitability criteria in § 102-71.150.
(b) In the case of excess property which has been reported to GSA—
(1) A statement that there is no compelling Federal need for the property, and, therefore, the property will be determined surplus; or
(2) A statement that there is a further and compelling Federal need for the property (including a full explanation of such need) and therefore, the property is not presently available for use to assist the homeless.
(a) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will post on the HUD website 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.
(b) HUD will establish and maintain a toll-free number for the public to obtain specific information about properties in paragraph (a) of this section.
(c) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will transmit to the United States Interagency Council on Homelessness (USICH) a copy of the list of all properties in paragraph (a) of this section. The USICH will immediately distribute to all State and regional homeless coordinators area-relevant portions of the list. The USICH 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
(e) HUD will publish an annual list of properties determined suitable, but which agencies reported unavailable including the reasons such properties are not available.
(a) It is the policy of HHS to foster and assure maximum utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Property will be requested for assignment only when HUD has made a final determination that the property is suitable for use to assist the homeless, GSA has determined it is available, and HHS has determined it is needed for homeless assistance purposes. The amount of real and related personal property to be transferred shall not exceed normal operating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for homeless assistance purposes or will be so needed within the immediate or foreseeable future.
(d) Transfers by deed will be made only after the applicant's financial plan is approved and the applicant provides certification that the proposed program is permissible under all applicable State and local zoning restrictions, building codes, and similar limitations.
(e) In instances of noncompliance, transferees are provided an opportunity to cure the noncompliance pursuant to 45 CFR 12a.10.
(a) Properties published by HUD as suitable and available, pursuant to § 102-71.160, for application for use to assist the homeless shall not be available for any other purpose for a period of 30 days beginning on the date the list of properties is published on the HUD website. Any eligible organization interested in any underutilized, unutilized, excess, or surplus property for use to assist the homeless must send HHS a written expression of interest in that property within 30 days after the property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's determination does not mean a property is necessarily fit for use for the purpose(s) stated in the application, nor does it guarantee subsequent conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 30-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.
(1) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private, non-profit organization. The expression of interest must be sent to HHS by email, rpb@psc.hhs.gov, or by mail at the following address: Department of Health and Human Services, Program Manager, Federal Real Property Assistance Program, Real Estate Logistics and Operations, 5600 Fishers Lane, Rockville, Maryland 20852.
(2) 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 certain property.
(d) An expression of interest may be sent to and accepted by HHS any time after the 30-day holding period has expired only if the property remains available as determined by GSA or the landholding agency for application to assist the homeless. In such a case, an application submitted pursuant to this expression of interest may be approved for use by the homeless if:
(1) There are no pending applications or written expressions of interest made under any law for use of the property for any purpose; and
(2) 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.
(a) Upon receipt of an expression of interest, HHS will send an application packet to the interested entity. The application packet requires the applicant to provide certain information, including the following—
(1) Acquisition type. The applicant must state whether it is requesting acquisition of the property by lease, deed, or permit. A lease of one year, extendable at HHS's discretion, with the concurrence of GSA or the landholding agency, may be granted when the applicant's initial application is approved and the applicant's final application outlining the applicant's financial plan is found to be otherwise reasonable based on the criteria in paragraph (a)(7) of this section, but either a change in zoning is required or the financial plan proposes to utilize Low-Income Housing Tax Credits or other funding sources that typically take longer to process than other forms of financing. Applicants that initially apply for transfer by lease or permit and subsequently request transfer by deed will follow the same bifurcated application process, including deadlines, contained in 42 U.S.C. 11411. Should an applicant wish to transition from acquisition by lease to acquisition by deed, HHS will issue a letter of commitment to a lessee indicating that, provided its application meets all application criteria, including securing of all necessary financing that complies with Federal Government requirements, HHS will issue a deed.
(2) Description of the applicant organization. The applicant must document that it satisfies the definition of an eligible organization as specified in § 102-71.125.
(3) Description of the property desired. The applicant must describe the listed property desired, including existing zoning. Applicants must certify that any modification(s) made to and use of the property will conform to all applicable building codes, and local use restrictions, or similar limitations. In accordance with GSA policy, determinations regarding parcelization are made prior to screening. Therefore, expressions of interest and applications for portions of listed properties will not be accepted.
(4) Description of the proposed program. The applicant must fully describe the proposed program and plan of use, including implementation plans.
(5) Demonstration of need. The applicant must demonstrate that the property is needed for homeless assistance purposes at the time of application and how the program will address the needs of the homeless population to be assisted. The applicant must demonstrate that it has an immediate need and ability to utilize all of the property for which it is applying.
(6) Demonstrate that the property is suitable and adaptable for the proposed program and plan of use. The applicant must fully explain why the property is suitable and describe what, if any, modification(s) will be made to the property before the program becomes operational.
(7) Ability to finance and operate the proposed program. If the applicant's initial application is approved, the applicant must set forth a reasonable plan to finance the approved program within 45 days of the initial approval. To be considered reasonable, the plan must, at a minimum:
(i) Specifically describe all anticipated costs and sources of funding for the proposed program, including any property modifications;
(ii) Be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed;
(iii) Demonstrate that the applicant is ready, willing, able, and authorized to assume care, custody, and maintenance of the property;
(iv) Demonstrate that it has secured the necessary dedicated funds, or will obtain such funds, to carry out the approved proposed program and plan of use for the property, including administrative expenses incident to the transfer by deed, lease, or permit;
(v) Not diminish the value of the Federal Government's interest in the property nor impair the Federal Government's ability to revert and immediately dispose of the property free of any and all liens, encumbrances, or anything else which renders the property unmarketable. Deed transfers will only be made after an applicant demonstrates its financial plan adequately protects the Federal Government's interest in the property; and
(vi) Neither subject the Federal Government's interest in the property to foreclosure nor impose obligations (e.g., extended use agreements) on the Federal Government.
(8) Compliance with non-discrimination requirements. Each applicant under this part must certify in writing that it will comply with all requirements of Federal law and HHS policy, as amended, relating to non-discrimination, including the following: the Fair Housing Act (42 U.S.C. 3601-3619) and implementing regulations at 24 CFR part 100; and, as applicable, Executive Order 11063 (Equal Opportunity in Housing) and implementing regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to d-4) (Non-discrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1 and 45 CFR part 80; section 1557 of the Affordable Care Act and implementing regulations at 45 CFR part 92; 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 at 24 CFR part 146 and 44 CFR part 91; and the prohibitions against discrimination against otherwise qualified individuals with disabilities under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8 and 45 CFR part 84. The applicant must maintain the required records to demonstrate compliance with all applicable Federal laws and HHS policies related to non-discrimination.
(9) Insurance and indemnification. The applicant must certify that it will insure the property against loss, damage, or destruction to protect the residual financial interest of the United States. The United States shall be named as an additional insured. Applicants must provide proof of insurance annually or upon request. Failure to maintain sufficient insurance may result in adverse action, including reversion of the property, at the discretion of HHS. In the event of a covered loss, the transferee must hold all insurance proceeds in trust and obtain written concurrence from HHS before disbursing the funds. Applicants, and all affiliated parties utilizing the property, as approved by HHS, must indemnify the United States and hold the United States harmless for all actions involving use of the property.
(10) Historic preservation. Where applicable, the applicant must provide information that will enable HHS to comply with Federal historic preservation requirements.
(11) 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. However, the burden is on the applicant to submit sufficient documentation for analysis by HHS.
(12) Local government notification. The applicant must certify that it has notified the applicable unit of general local government responsible for sewer, water, police, and fire services, in writing, of its proposed program for the specific property and submit a copy of that written notification.
(13) Zoning and local use restrictions. An applicant requesting a deed must certify that it has consulted all State and local governmental entities that will have jurisdiction over the property and that the proposed use will comply with all applicable zoning and local use restrictions, including local building code requirements. An applicant that applies for a lease or permit is not required to comply with local zoning requirements, as long as the Federal Government retains ownership of the property. Deed transfers will only be made after the applicant has provided acceptable written proof that the proposed program is not in conflict with State or local zoning laws and restrictions, building codes, or similar limitations.
(b) Scope of evaluations. Due to the short time frame imposed by statute for evaluating applications, HHS's evaluation will, generally, be limited to the information contained in the application. It is therefore incumbent on applicants to provide thorough and complete applications.
(c) Deadline for initial application. An initial application must be received by HHS, at the email address in § 102-71.170(d)(1) or other address indicated by HHS, within 75 days after an expression of interest is received from a particular applicant for that property. Upon written request from the applicant, HHS may, in its discretion, grant extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the appropriate landholding agency or GSA concurs with the extension.
(d) Evaluation of initial application. (1) Upon receipt of an initial application, HHS will review it for completeness, and, if incomplete and time permits, may, in its discretion, return it or ask the applicant to furnish any missing or additional required information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of receipt and will promptly advise the applicant of its decision. All initial applications will be reviewed on the basis of the following elements:
(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, the program's ability to satisfy unmet needs of the community, and the degree to which the available property will be fully utilized.
(iii) Experience. Demonstrated ability to provide the services, such as prior success in operating similar programs and recommendations attesting to that fact by Federal, State, and local authorities.
(e) Deadline and evaluation of final application. (1) If HHS approves an initial application, HHS will notify the applicant and provide the applicant 45 days in which to provide a final application. The final application shall set forth a reasonable plan to finance, as specified in paragraph (a)(6) of this section, the approved program as set forth in the initial application. Applicants may not modify the approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are not authorized by 42 U.S.C. 11411 and thus will not be considered for final applications.
(4) Applications are evaluated on a first-come, first-served basis. HHS will notify all organizations that have submitted expressions of interest for a particular property whether an earlier application received for that property has been approved.
(f) Competing applications. If HHS receives more than one final application simultaneously, HHS will evaluate all applications and make a determination based on each application's merit. HHS will rank approved applications based on the elements listed in paragraph (a) of this section, and notify the landholding agency, or GSA, as appropriate, of the approved applicant.
(a) Unutilized and underutilized properties. (1) When HHS approves an application, it will 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.
(ii) The terms and conditions of the lease or permit document (except that a landholding agency may not charge any fees or impose any costs).
(b) Excess and surplus properties. (1) When HHS approves an application, it will notify the applicant and request that GSA assign the property to HHS for transfer. Requests to GSA for the assignment of surplus property to HHS for homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or has demonstrated the ability to obtain such funds, to carry out the approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the transfer document in accordance with the procedures and requirements set out in this subpart and any other terms and conditions HHS and GSA determine are appropriate or necessary. Custody and accountability of the property will remain throughout the lease term with the landholding agency (i.e., the agency which initially reported the property as excess) and throughout the deed term with the transferee.
(3) Prior to assignment to HHS, GSA may consider other Federal uses and other important national needs in deciding the disposition of surplus property. Priority of consideration will normally be given to uses to assist the homeless. However, both GSA and HHS may consider any competing request for the property made under 40 U.S.C. 550 that is so meritorious and compelling that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request over a request for property for homeless assistance, the agency making the decision will transmit to the appropriate committees of Congress an explanatory statement which 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.
(a) Surplus property may be conveyed to eligible organizations pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes are in exchange for the transferee's agreement to fully utilize the property for homeless assistance purposes in accordance with the terms specified in the transfer document.
(c) A transfer of surplus property for homeless assistance purposes is subject to the disapproval of GSA within 30 days after notice is given to GSA of the proposed transfer.
(d) Surplus property transferred pursuant to this subpart will be disposed on an “as is, where is” basis without warranty of any kind except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this subpart will be made with the following general terms and conditions:
(1) For the period provided in the transfer document, the transferee shall utilize all the surplus property it receives solely and continuously for the approved program and plan of use, in accordance with 42 U.S.C. 11411 and this subpart, except that:
(i) The transferee has 12 months from the date of transfer to place the surplus property into use, if HHS did not approve in writing, construction of new facilities or major renovation of the property when it approved the final application;
(ii) The transferee has 48 months from the date of transfer to place the surplus property into use, if the transferee proposes construction of new facilities or major renovation of the property and HHS approves it in writing at the time it approves the final application;
(iii) If the applicable time limitation is not met, the transferee shall either commence payments in cash to the Federal Government for each month thereafter during which the proposed use has not been implemented or take such other action as set forth at § 102-71.205 as is deemed appropriate by HHS. Such monthly payments shall be computed on the basis of the current fair market value of the property, as conveyed, at the time of the first payment and dividing it by 360 months. At HHS's discretion, the payment may be waived if the transferee makes a sufficient showing of continued progress to place the property into use or if an unforeseeable event occurs which prevents the property from being put into use within the applicable timeframe; and
(iv) HHS may permit use of surplus property at any time during the period of restriction by an entity other than the transferee in accordance with § 102-71.210.
(2) The transferee will not be permitted to encumber, or dispose of the property, or impair full utilization thereof, without the prior written authorization of HHS. In the event the property is encumbered, sold, or disposed of, or is used for any purposes other than those set forth in an approved plan without the written consent of HHS, all revenues or the reasonable value of other benefits received by the transferee directly or indirectly from such use, as determined by HHS, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of HHS. The provisions of this paragraph (f)(2) shall not impair or affect the rights reserved to the United States in paragraph (f)(8) of this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its maintenance and use of the surplus property and any other reports or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to the transfer, including but not limited to—transfer taxes; surveys; appraisals; title search; the transferee's legal fees; recordation expenses, etc. The transferee is solely responsible for such costs and may not seek reimbursement from the Federal Government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair the property to ensure that the property remains in as good a condition as when received.
(6) The transferee shall protect the residual financial interest of the United States in the surplus property by insurance or such other means as HHS directs.
(7) The transferee shall abide by all applicable Federal civil rights laws including those specified in the covenants and conditions contained in the transfer document, prohibiting the transferee from discriminating on the basis of, including but not limited to, race, color, national origin, religion, sex, familial status, or disability in the use of the property.
(8) In the event of noncompliance with any conditions of the deed as determined by HHS, whether caused by the legal or other inability of the transferee, its successors and assigns, to perform any of the obligations of the transfer document, the Federal Government has an immediate right of reentry thereon, and to cause all right, title, and interest in and to the property to revert to the United States, and the transferee shall forfeit all right, title, and interest in and to the property. In such event, transferee shall execute a quitclaim deed and take all other actions necessary to return the property to the United States within ninety (90) days of a written request from the Federal Government, extended only at the discretion of the Federal Government. Transferee shall cooperate with the United States in the event of a reversion and agrees that the United States need not seek judicial intervention before exercising its right to revert, reenter, and reconvey the property.
(9) In the event title is reverted to the United States for noncompliance or voluntarily reconveyed to the United States, the transferee shall, at the option of HHS, be required to: reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the transferee to adapt the property to the homeless use for which the property was transferred; and reimburse the United States for any costs incurred in reverting title to or possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of noncompliance with any of the conditions of the lease, as determined by HHS or the landholding agency, the right of occupancy and possession shall, at the option of HHS or the landholding agency, be terminated. In the event a leasehold is terminated by the United States for noncompliance or is voluntarily surrendered, the lessee shall be required, at the option of HHS, to reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the lessee to adapt the property to the homeless use for which the property was leased. With respect to any termination of leasehold resulting from noncompliance, the United States, shall, in addition thereto, be reimbursed for such costs as may be incurred in recovering possession of the property, including reasonable attorneys' fees.
(11) Any other term or condition that HHS and GSA determine appropriate or necessary.
(12) With respect to surplus property transferred by deed, the terms and conditions including those in this paragraph (f), apply for a period of three hundred sixty (360) months of use in accordance with a program of use approved in writing by HHS. The three hundred sixty months (360) period may, in HHS's sole discretion, be extended or restarted in the event the property is not fully utilized or is retransferred to a successor entity. Expiration of the terms and conditions in this paragraph (f) does not release the transferee from continuing compliance, as appropriate, with any conditions that may run with the land, e.g., environmental conditions and/or historic preservation covenants. Such conditions will continue to be the responsibility of the transferee and successors.
(13) With respect to surplus property transferred by lease, the terms and conditions including those in this paragraph (f), extend for the entire initial lease and for any subsequent renewal periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a part of the realty and in accordance with real property procedures.
(h) Transferees 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 United States, the transferee will be responsible for removing improvements made to the property if directed to by the United States and, in such event, will be responsible for restoration of the property or the costs associated with restoring the property. If improvements made by the transferee are not voluntarily removed by the transferee and the United States consents, they will become the property of the United States. If the United States does not consent, the transferee shall reimburse the United States for reasonable costs of removal. GSA or the landholding agency, as appropriate, will assume responsibility for protection and maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the written consent of HHS, may abrogate the restrictions set forth in paragraph (f) of this section for all or any portion of the property in accordance with the provisions of § 102-71.215.
The landholding agency or GSA will defer action to dispose of properties determined unsuitable for homeless assistance for 20 days after the date that notice of a property is posted on the HUD website. HUD will inform landholding agencies or GSA if an appeal of an unsuitability determination is filed by a representative of the homeless pursuant to § 102-71.140(f). HUD will advise the agency to 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 landholding agency may proceed with disposal action in accordance with applicable law.
(a) HHS, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, surplus property for homeless purposes, will act in accordance with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the National Archeological Data Preservation Act, and other related acts. No lease to use surplus property shall allow the lessee to make, or cause to be made, any irreversible change in the conditions of said property, and no lease shall be employed for the purpose of delaying or avoiding compliance with the requirements of these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS deems necessary to make an assessment of the impact of the proposed Federal action on the human environment. Materials contained in the applicant's official request, responses to a standard questionnaire prescribed by HHS, as well as other relevant information, will be used by HHS in making said assessment.
(c) If the assessment reveals:
(1) That the proposed Federal action involved properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places; or
(2) That a more than insignificant impact on the human environment is reasonably foreseeable as a result of the proposed action; or
(3) That the proposed Federal action could result in irreparable loss or destruction of archeologically significant items or data, HHS will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the Acts cited in paragraph (a) of this section.
(d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, HHS may enter into and support a lead agency agreement to designate a single lead agency which will assume primary responsibility for coordinating the assessment of environmental effects of proposed Federal actions, preparing and distributing such notices and statements, or obtaining such approvals, as are required by the Acts cited in paragraph (a) of this section. The procedures of the designated lead agency will be utilized in conducting the environmental assessment. In the event of disagreement between HHS and another Federal agency, HHS will reserve the right to abrogate the lead agency agreement with the other Federal agency.
(a) At the end of the 30-day holding period described in § 102-71.170(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of interest has been received for a certain 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 notice from HHS that all applications have been disapproved, or if no initial applications have been received within 75 days after an expression of interest, or no final application has been received within 45 days after an approved initial application, disposal may proceed in accordance with applicable law.
(a) Sanctions. For instances of noncompliance relating to surplus property transfers, HHS may impose, after providing an opportunity to cure to the transferee, any or all of the following sanctions in its sole discretion, as applicable:
(1) Where property or any portion thereof was not used or is not being used for the purposes for which transferred, or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of HHS, HHS may require the transferee to—
(i) Place the property into immediate use for an approved purpose and extend the period of restriction in the transfer document for an additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other benefits received by the transferee directly or indirectly from that use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as set forth in § 102-71.215;
(v) Make cash payments to the United States, as directed by HHS, equivalent to the current fair market rental value of the surplus property, as transferred, for each month during which the program and plan of use has not been implemented and continues to not be implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into temporary use to assist the homeless other than that for which the property was transferred, written approval from HHS must be obtained, and will be conditioned upon HHS's authority to permit the use and such terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or sublessee of a transferee is in noncompliance with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, HHS may require termination of the lease and impose sanctions described in paragraph (a)(1) of this section, as appropriate.
(b) Reversion. When HHS recommends reversion of the property for noncompliance, HHS will seek GSA's concurrence. GSA will respond to HHS's concurrence request within 30 days of its receipt. If GSA concurs, GSA will work with HHS to complete the reversion of the property. If GSA does not concur to the reversion recommendation, GSA will issue, to HHS, a written determination: stating the reason(s) for the disapproval; and acknowledging that HHS has recommended reversion and, therefore, the property is no longer within HHS's Title V program. The Federal Government will implement a response to the noncompliance that is in its best interests.
(a) A transferee may permit the use of all or a portion of the surplus property by another eligible entity as described in § 102-71.125 for homeless assistance purposes, only upon those terms and conditions HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the purpose of and need for another eligible entity's use of the property, program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially limit the program and plan of use by the transferee and that the use will not unduly burden the Federal Government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing;
(5) The transferee agrees to lengthen the period of restrictions as determined by HHS; and
(6) HHS advises GSA and there is no disapproval by GSA within thirty (30) days.
(b) A transferee that does not follow paragraph (a) of this section will be deemed to be not in compliance with the terms and conditions of the Title V program and subject to enforcement action, including reversion of the property.
(a) HHS may abrogate the conditions and restrictions in the transfer document if:
(1) The transferee submits to HHS a written request that HHS abrogate the conditions and restrictions in the transfer document as to all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed abrogation and determines that the proposed abrogation is in the best interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no disapproval by GSA within 30 days after notice is given. If GSA disapproves, GSA will state, in writing, to HHS the reason(s) for the disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer document only upon receipt of the appropriate consideration, including cash payment, to the United States, as directed by HHS, which is based on the formula contained in the transfer document, and any other terms and conditions HHS deems appropriate to protect the interest of the United States.
Transferees are required to allow HHS to conduct compliance inspections and to submit such compliance reports and actions as are deemed necessary by HHS. At a minimum, the transferee will be required to submit an annual utilization report regarding the operation and maintenance of the property, including current images of the entire property and such information as HHS shall require.
There is no right to administrative review within HHS, including requests for reconsideration or appeal, of agency decisions on applications and other discretionary decisions.
The Secretary of HUD may waive any requirement of this subpart (over which the Secretary of HUD has jurisdiction) that is not required by law, whenever it is determined that undue hardship would result from applying the requirement, or where application of the requirement would adversely affect the purposes of the program. Each waiver will be in writing and will be supported by documentation of the pertinent facts and grounds. The Secretary periodically will publish notices of granted waivers on the HUD website.
Any provision of this subpart held to be invalid or unenforceable with respect to certain parties or circumstances shall be construed so as to continue to give the maximum effect to the provision permitted by law unless such holding is that the provision of this subpart is invalid and unenforceable in all circumstances, in which event the provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof.
(a) 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), unless exempt.
(b) Exemptions include:
(1) The Department of Defense in accordance with the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 501 et seq.).
(2) Uniformed service members, under title 37 of the United States Code, including the U.S. Coast Guard, National Oceanic and Atmospheric Administration, and the Public Health Service are exempt from the household goods shipping requirements in 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.
Agency means a department, agency, and independent establishment in the executive branch of the Government as defined in 5 U.S.C. 101 et seq., and a wholly owned Government corporation as defined in 31 U.S.C. 9101(3).
Best value means selecting the shipping option that offers the most benefit to the government considering mode, cost, reliability, and service quality.
Bill of lading (BOL), sometimes referred to as a commercial bill of lading, but includes a Government bill of lading (GBL), is a transportation document that can be issued by either the agency or the TSP. It serves multiple purposes as a receipt of goods, contract of carriage, and evidence of title. It also specifies contract terms and conditions, and is mandatory for all shipments. The TSP must comply with applicable Federal regulations, specifically this part and 41 CFR part 102-118.
Cargo preference is the legal requirement for all, or a portion of all, ocean-borne cargo that moves internationally to be transported on U.S. flag vessels.
Coastwise laws govern waterborne shipments between U.S. points or territories to ensure reliable service and maintain maritime readiness during war or national emergencies.
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 Federal Acquisition Regulation (FAR) contract.
Declared value means the actual value of cargo as declared by the agency for reimbursement purposes or to establish duties, taxes, or other customs fees.
Freight is property or goods transported as cargo.
Government bill of lading (GBL), Standard Form (SF) 1103, is a Government issued bill of lading.
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.). 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.
Mode is a method of transportation, such as rail, road, air, water, or pipeline.
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.
Suspension is an action taken by an agency to disqualify a TSP from receiving orders for certain services under a FAR contract or rate tender.
Transportation is the movement of goods and all related services, including the use of motor vehicles, vessels, warehouses, and necessary equipment, as well as associated activities such as storage, handling, packing, delivery, and receipt.
Transportation management is agency oversight of the physical movement of commodities, HHG, small packages, cargo and other freight from one location to another by a TSP including related services such as warehousing.
Transportation service provider (TSP) means any party, person, agent, or carrier that provides freight, household goods, or passenger transportation or related services to an agency.
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).
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.
Agency procurement options are:
(a) Use a General Services Administration (GSA) tender of service:
(1) Freight—Standard Tender of Service (STOS).
(2) HHG—Household Goods Tender of Service (HTOS).
(b) Issue a FAR contract if permitted by statute or authorized by GSA.
(c) Using another agency's contract or rate tender if permitted by statute or if GSA has issued a delegation of authority allowing other agencies to use the rate tender or contract.
(d) In consultation with GSA, negotiate a rate tender under a Federal transportation procurement statute, 49 U.S.C. 10721 or 13712.
GSA leverages the Federal Government's collective buying power to procure transportation services at reduced rates. It uses standardized agreements to ensure consistency and protect the government's interests. Therefore, agencies subject to this FMR part must select an option provided in § 102-117.15 to procure transportation.
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.
(e) Using a rate tender for transportation in a cost-reimbursable contract, requires the following statement in the rate tender:
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 the agency or the shipment such as specialized packaging requirements or HAZMAT.
(g) The TSP must comply with all the conditions of the contract or tender and the appropriate requirements of this part and 41 CFR part 102-118.
Agencies must include the rate tender, tariff, or contract number on the BOL to ensure the BOL is correctly audited prior to payment.
Bills of lading and purchase orders are required to acquire freight, household goods shipments, and other transportation services.
Federal law requires using U.S. flag carriers for international air and ocean shipments. Key statutes include:
(a) Fly America Act (49 U.S.C. 40118)—requires use of U.S. air carriers when available.
(b) Cargo Preference Act (46 U.S.C. 55305)—requires that at least 50% of U.S. Government-impelled ocean cargo be transported on U.S. flag vessels.
(a) Fly-America Act. Shippers may use a foreign-flag carrier only when:
(1) No U.S. flag carrier service is available;
(2) Emergency or mission-critical time constraints require foreign service;
(3) A bilateral/multilateral air transport agreement permits it;
(4) Transportation costs are fully reimbursed by a third party; or
(5) Using a U.S. carrier would create an unreasonable safety risk, supported by appropriate agency documentation.
(b) Detailed Fly America exemptions are published separately by GSA. Refer to GSA's Transportation Policy web page guidance for the latest criteria. See https://www.gsa.gov/policy-regulations/policy/transportation-management-policy.
(c) Maritime Administration (MARAD). See https://www.maritime.dot.gov/ports/cargo-preference/cargo-preference for exceptions and determinations of non-availability.
(a) Coastwise laws (46 U.S.C. chapter 551) require the use of U.S.-flag, coastwise-endorsed vessels for domestic water shipments between U.S. ports.
(b) For exceptions and further information, refer to regulations issued by the U.S. Customs and Border Protection (CBP) (19 CFR 4.80) and MARAD.
Select a transportation method in § 102-117.15. (See Federal Travel Regulation (FTR), 41 CFR chapter 302, subchapter D, for additional information regarding HHG.)
Use the following shipping process:
(a) For shipments, it is required to—
(1) Identify what is being shipping;
(2) Decide if the cargo is HAZMAT, classified, or sensitive that may require special handling or placards;
(3) Select the most efficient and cost effective mode;
(4) Select an acquisition method from § 102-117.15;
(5) Consider all costs associated with the shipment including accessorial charges, surcharges, customs fees, etc.;
(6) Select the most efficient and economical TSP that gives the best value;
(7) Demonstrate no preferential treatment to any TSP when arranging for transportation services except on international shipments (International shipments must be given to United States registered commercial vessels and aircraft.);
(8) Prepare shipping documents; and
(9) Schedule pickup, ensure prompt delivery with a fully executed receipt, and oversee shipment.
(b) For international shipments, follow all requirements of paragraph (a) of this section and international requirements in § 102-117.40.
Shipping urgency, origin, destination, and any special handling requirements determine which mode of transportation is selected. Each mode has unique requirements for documentation, liability, size, weight, and delivery time. HAZMAT, radioactive, and other specialized cargo may require special permits which may limit choices.
Describe property in enough detail for the TSP to determine the type of equipment or any special precautions necessary to move the shipment including, the cargo's declared value, weight, volume, measurements, routing, hazardous cargo, or special handling designations.
Shipping—
(a) By land (domestic shipments), use a bill of lading;
(b) By land (international shipments), use of the optional GBL is permitted but not required;
(c) By ocean, use an ocean bill of lading, when suitable, along with the GBL (only for door-to-door movements); and
(d) By air, use a bill of lading.
(a) Agencies must maintain all transportation documents in accordance with the General Records Schedules.
(b) For all shipments subject to cargo preference laws a copy of the ocean carrier's bill of lading, showing all freight charges, must be sent to MARAD within 20 working days of the date of loading for shipments originating in the United States, the District of Columbia, its territories or possessions and within 30 working days for shipments originating outside the United States, the District of Columbia, its territories or possessions.
File a claim for loss or damage to property with the TSP. Refer to 41 CFR part 102-118 for more information regarding statutory time limits to file administrative claims or judicial actions against a TSP.
Regarding the TSP's liability for loss or damage claims, agencies 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.
(a) Each agency develops an evaluation survey for the employee to complete following the move.
(b) When using GSA's Centralized Household Goods Traffic Management Program (CHAMP), agencies must instruct the employee to complete their portion of the GSA Form 3080, Household Goods Carrier Evaluation Report, using the link provided by the TSP.
The Secretary of Transportation prescribes regulations for the safe transport 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. International, State, and local government rules and regulations also apply to HAZMAT shipments.
Agencies are required to ensure that TSPs deliver consistent, satisfactory service that meets their transportation needs. At a minimum, monitor—
(a) On-time delivery rates;
(b) Accuracy of billing, including overcharges or undercharges;
(c) Frequency of claims filed;
(d) Shipment rejection rates; and
(e) Responsiveness to shipment tracing requests.
Decisions regarding temporary nonuse, suspension, or debarment are made by the agency, following procedures outlined in the FAR in title 48 of the Code of Federal Regulations and other applicable regulations. Agencies must maintain records of these actions and notify relevant parties as required.
(a) Temporary nonuse. Temporarily excluding the TSP from receiving new shipments (agencywide).
(b) Suspension. Temporarily disqualifying the TSP from Government contracts pending investigation (Governmentwide).
(c) Debarment. Permanently disqualifying the TSP from Government contracts due to serious misconduct (Governmentwide).
No executive agency may appear on its own behalf in any proceeding before a transportation regulatory body, unless the Administrator of General Services delegates his or her authority under 40 U.S.C. 501(c)(1)(B) to the agency. Send a request, via email, with enough detail to explain the circumstances surrounding the need for a delegation of authority for representation to GSA-OGP-Transportationpolicy@gsa.gov.
(a) Oversees 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) Maintains a list of TSPs which meet certain criteria regarding insurance and safety and are approved by the Department of Transportation. Agencies must furnish GSA with an affidavit to determine if the TSP meets basic qualifications to protect the Government's interest. For further information email transportation.programs@gsa.gov.
(c) Represents agencies in negotiations with TSPs.
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 § 102-118.15 for the definition of TSP.)
This part applies to all agencies (including the Department of Defense (DoD)) and TSPs defined in § 102-118.15, and wholly owned Government corporations as defined in 31 U.S.C. 101, et seq., and 31 U.S.C. 9101(3). Agencies are required to incorporate this part into their internal regulations.
The following definitions apply to this part:
Agency means a department, agency, or instrumentality of the United States Government (31 U.S.C. 101).
Bill of lading (BOL), sometimes referred to as a commercial bill of lading, but includes a Government bill of lading (GBL), is a transportation document that can be issued by either the agency or the TSP. It serves multiple purposes as a receipt of goods, contract of carriage, and evidence of title. It also specifies contract terms and conditions, and is mandatory for all shipments. The TSP must comply with applicable Federal regulations, specifically 41 CFR part 102-117 and this part.
Civilian Board of Contract Appeals (CBCA) means an independent court within GSA that settles transportation payment claims disputes between Federal agencies and TSPs. For additional information on the CBCA see https://www.cbca.gov/index.html.
Claim means—
(1) Any demand by an agency upon a TSP for the payment of overcharges, ordinary debts, fines, penalties, administrative fees, special charges, and interest; or
(2) 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 is believed to be owed; and any subsequent bills from the TSP resulting from a transaction that was audited by the agency.
Document reference number (DRN) means the unique number on a BOL, Government Transportation Request (GTR), or transportation ticket used to track the movement of shipments and individuals.
Electronic funds transfer (EFT) 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.
Government bill of lading (GBL) means the transportation document used as a receipt of goods, evidence of title, and a contract of carriage for Government international shipments (see bill of lading (BOL) definition in this section).
Government contractor issued charge card means an individually billed travel card or an agency purchase card.
Government Transportation Request (GTR) (Optional Form (OF) 1169) means a Government document used to procure passenger transportation services from a TSP. The document obligates the Government to pay for transportation services provided and is used when a Government contractor issued charge card is not accepted by the TSP.
Individually billed travel card means the charge card used by authorized individuals to pay for official travel and transportation related expenses for which the contractor bills the employee. This is different from a centrally billed account paying for official travel and transportation related expenses for which the agency is billed.
Offset means withholding money from a payment. In this part, money withheld refers to the funds owed a TSP that are not released by the agency but instead used to repay the Government for a debt incurred 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 that exceed those applicable under the executed agreement for services such as BOL (including a GBL, contract, rate tender or a GTR).
Postpayment audit means an audit of transportation billing documents, and all related transportation documents after payment, to decide their validity, propriety, and conformity of rates with tariffs, quotations, agreements, contracts, or tenders. The audit process may also include subsequent adjustments and collection actions taken against a TSP by the Government (31 U.S.C. 3726).
Prepayment audit means an audit of transportation billing documents before payment to determine their validity, propriety, and conformity of rates with tariffs, quotations, agreements, contracts, or tenders (31 U.S.C. 3726).
Privately Owned Personal Property Government Bill of Lading 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 the Department of Defense, but optional for other agencies.
Refund means the amount collected from outside sources for payments made in error, overpayment, or adjustments for previous amounts disbursed.
Standard Carrier Alpha Code (SCAC) is a unique code, typically two to four characters, used to identify transportation companies.
Statement of difference means a statement issued by an agency or its designated audit contractor during a prepayment audit when it has been determined that a TSP has billed the agency for more than the proper amount for the services. This statement tells the TSP 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. This can be an electronic process.
Supplemental bill means the bill for services that the TSP submits to the agency for additional payment of the services provided.
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 means service involved in the physical movement (from one location to another) of people, household goods, and freight by a TSP or a Third Party Logistics (3PL) entity for an agency, as well as activities directly relating to or supporting that movement. These activities are defined in 49 U.S.C. 13102.
Transportation audit is a thorough review and validation of transportation related documents and bills. The audit must examine the validity, propriety, and conformity of the charges or rates with tariffs, quotations, contracts, agreements, or tenders, as appropriate.
Transportation document (TD) means any executed document for transportation services, such as a BOL, a tariff, a tender, a contract, a GTR, invoices, paid invoices, any transportation bills, or other equivalent documents, including electronic documents.
Transportation payment is a payment made by an agency to a TSP for the movement of goods, people or transportation related services.
Transportation service provider (TSP) means any party, person, agent, or carrier that provides freight, household goods, or passenger transportation or related services to an agency.
Ordering methods are prescribed in 41 CFR part 102-117 for freight, household goods, and small parcels. Ordering transportation for travel is prescribed in the Federal Travel Regulation in 41 CFR subtitle F.
The TSP shall bill the agency in accordance with the procedures prescribed in the ordering documents or agreement.
Agencies must pay for transportation services via EFT, unless issued an exception by the Secretary of the Treasury (31 U.S.C. 3332, et seq.).
Agencies must correctly pay individual transportation invoices (see 31 U.S.C. 3351(4), Improper Payment definition).
Agencies must establish administrative procedures that ensure the following conditions are met:
(a) Services rendered are paid in accordance with the terms and conditions and the agency must not overpay or underpay a transportation bill.
(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 listed on the BOL, and cannot be waived.
(e) All fees to be paid are detailed in the aggregate delivery costs.
(f) All payments are subject to applicable statutory limitations.
(g) Procedures (such as a 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, agencies must consult any indebtedness list if the charge card contract provisions allow for it.
(i) Procedures are established to process any unused tickets.
(a) Bills should be received electronically and must be paid via EFT (31 U.S.C. 3332).
(b) Agencies may use a Government contractor issued charge card to acquire and pay for transportation.
A Government contractor issued charge card:
(a) May be used to acquire freight and small parcel transportation.
(b) Must be used (except when a GTR is allowed) for passenger transportation.
Agencies must use commercial payment practices and forms to the maximum extent possible; however, when viewed necessary by an agency, the 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) SF 1103, Government Bill of Lading (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) Privately Owned Personal Property Government Bill of Lading (used by the Department of Defense to move private property for official transfers).
When an agency requires an SF 1113 to be submitted the TSP must include its TIN and SCAC.
Agencies are not required to issue a GBL or GTR and must use commercial payment practices to the maximum extent possible.
If an agency uses any other TDs for shipping under its account, required safeguards must be in place.
BOLs are not required to ship small parcels.
The mandatory terms and conditions governing the use of 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 BOL, must present a legible copy of the BOL or an original, properly certified GBL attached to SF 1113 to the paying office for payment. An agency may choose not to require that an SF 1113 be attached to the BOL and invoice if the TSP submits invoices using the agency's approved third-party payment system (TPPS).
(b) The shipment must be made at the restricted or limited valuation specified in the tariff or classification or limited contract, arrangement or exemption at or under which the lowest rate is available, unless indicated on the BOL. (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 TSP and extend 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 be 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).
The mandatory terms and conditions governing the use of passenger transportation documents are:
(a) U.S. 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).
(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 contractor issued 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 in 41 CFR subtitle F.
(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.
Agencies must process, review, and verify supplemental billings using the same procedures as on an original billing. Disputes are managed in accordance with agency policy.
Agencies must advise the TSP using a statement of difference of any adjustments made, 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.).
When buying passenger transportation, agencies must reference the applicable contract on a GTR or passenger transportation document (e.g., ticket).
For shipments bought on a TD, the TSP must submit an original properly certified BOL and, when appropriate, an SF 1113. The TSP must submit all documents to the agency paying office.
An agency may only pay the TSP listed on the BOL and with whom it has a contract.
A TSP cannot bill the agency to prepare a BOL or travel documents and cannot bill at a higher rate than the agreement permits.
Final receipt occurs when the shipment is delivered and endorsed by the consignee or authorized designee.
Agencies—
(a) Are responsible for the physical control, use, and accountability of GBLs and GTRs and must have procedures in place to track, manage, and account for these documents when necessary.
(b) Must assign each form a unique sequential tracking number.
(c) Must hold employees accountable for the issuance and use of the forms.
(a) Pursuant to 31 U.S.C. 3726, agencies are required to establish a program to audit all transportation bills.
(b) Agencies may perform either a prepayment or a post payment audit of transportation invoices.
Agencies may perform a prepayment audit, post payment audit, or both.
(a) Pre-payment audits focus on preventing overpayments by identifying invoice errors before payment. They help prevent overspending, ensure payments align with contracts, reduce administrative burdens, and strengthen carrier relationships by promoting transparency and accuracy.
(b) Post-payment audits, on the other hand, serve as a second line of defense after payments are made. They recover overcharges, uncover systemic issues and trends, and provide valuable data for negotiating better carrier contracts and optimizing freight processes through continuous improvement.
(c) Jointly, these audits form a complementary strategy: pre-payment audits minimize upfront errors and spending, while post-payment audits recover missed costs and drive long-term optimization. Combining both approaches enhances overall freight cost control and operational efficiency.
Agencies must:
(a) Consider the methods used to order and pay for passenger, household goods, small parcel, and freight transportation to include Government contractor-issued charge cards. Each method of ordering transportation and transportation services for passenger, household goods, and freight transportation may require a different kind of prepayment audit process.
(b) Ensure that each TSP bill or employee travel voucher contains enough information for the auditor to determine which contract or rate tender is used and the type and quantity of any additional services.
(c) Guarantee that the audit is not conducted by the same firm providing the transportation services for the agency. Furthermore, the auditor cannot be affiliated with or have a financial interest in the transportation company providing the services.
(d) Establish an appeals process for a TSP to appeal any reduction in the amount billed. It is recommended the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim.
(e) Establish a separate appeals process for a TSP to appeal a post payment audit, if the agency performs a post payment audit.
(f) Develop policies and procedures outlining how the agency will adjudicate transportation payment claims.
(g) Create a unique agency numbering system to manage commercial paper, to assure that a transportation bill is not paid more than once, and to manage and track accountable GBLs and GTRs.
(h) Provide notification(s) to TSPs that include a detailed description of the reasons for any full or partial rejection of the stated charges on the invoice.
(i) Include a statement in a cost reimbursable contract that the contractor will submit any transportation invoice, with a cost exceeding $100, to the agency to undergo a transportation payment audit in accordance with the agency's policy. Bills under $100.00 shall be retained on-site by the contractor and made available for on-site Government audits.
Agencies must choose a method auditing transportation invoices:
(a) Agencies are encouraged to consider using a third-party electronic payment processor for transportation invoice processing, payment, and prepayment audit.
(b) Create an internal prepayment audit program.
(c) Contract directly with a prepayment audit service provider.
(d) Use the services of a prepayment audit contractor under GSA's multiple award schedule covering audit services, including transportation prepayment audit services (541211 Auditing Services).
(e) Use a third-party payment system (TPPS) or charge card company that includes prepayment audit functions.
All transportation bills must undergo an audit unless the agency chooses to perform statistical sampling as established by the Comptroller General (31 U.S.C. 3521(b)).
Agencies must properly maintain and store transportation records, including paid transportation bills, in accordance with the General Records Schedule 1.1 et seq. (36 CFR part 1220).
Agencies must notify the TSP of any adjustment to the TSP bill either electronically or in writing within seven calendar days of the agency receipt of the bill.
Agencies must establish an appeals process for a TSP to appeal any reduction in the amount billed. An agency must complete the review of the appeal and inform the TSP of the agency determination within 30 calendar days of the receipt of the appeal, either electronically or in writing.
If a TSP disagrees with the agency action it can file a claim with the CBCA or Federal Claims court. Claims must be filed within 3 years of the payment.
Agency certifying and disbursing officers are liable for any overpayments as prescribed in 31 U.S.C. 3528 and 31 U.S.C. 3322 respectively.
A TSP may file a transportation claim against an 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; or
(c) Requests by a TSP for amounts previously refunded in error by that TSP.
The time limits differ by mode as shown in the following table:
Statutory time limits vary depending on the mode and the service applied:
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.
A claim must be received by the agency where the 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.
Agencies must have procedures to resolve disputes with a TSP. Agency procedures must allow a TSP to appeal payment decisions.
A TSP may file a claim with the CBCA if the agency fails to issue a decision on a claim within 30 days.
An agency may not appeal a CBCA decision.
Principles governing agency collection procedures for reporting debts to the Government Accountability Office (GAO) or the Department of Justice are found in 31 CFR chapter IX and in the GAO Policy and Procedures Manual for Guidance of Federal Agencies (https://www.gao.gov/products/149099).
A TSP may file a supplemental claim. Each supplemental claim must cover charges relating to one paid transportation document.
A TSP may appeal an agency's denial of its challenge to the statement of difference. However, the appeal must be handled at a higher level within the agency.
If the TSP disagrees with an agency's decision the TSP may file a claim with the CBCA or Federal Court of Claims.
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.
An agency may not appeal a prepayment audit decision. Agencies must follow the ruling of the CBCA.
The Government can charge interest on an amount due from a TSP. This procedure is provided for within the Debt Collection Act (31 U.S.C. 3717), the Federal Claims Collection Standards (31 CFR chapter IX), and 41 CFR part 105-55.
A TSP may file a claim in accordance with the Prompt Payment Act (31 U.S.C. 3901, et seq.) involving collection actions with the agency out of whose activities they arose.
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. Details regarding where and how to file are available at cbca.gov/howto/rules/transportation.html#transportation.
This part prescribes policy and requirements for the effective, economical, and secure management of incoming, internal, and outgoing mail and materials in Federal agencies.
This part applies to all mail and materials that pass through a Federal mail center, including all incoming and outgoing materials.
The following definitions apply to this part:
Agency mail manager means the person who manages the overall mail management program of a Federal agency.
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 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.
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.
Mail means that as described in § 102-192.10.
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.
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 Office of Diplomatic Pouch and Mail, and other Federal agencies providing mail services.
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.
Agencies must pay the USPS and other service providers via a method approved by the U.S. Treasury.
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'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.
(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 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).
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.
Agencies must have performance measures for mail operations at the agency level and in all mail facilities and program levels.
Every agency, as defined in § 102-192.10, must have an agency mail manager at a managerial level that enables them to speak for their agency on mail management as outlined in this part.
In addition to carrying out the responsibilities discussed in § 102-192.45—
(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 the General Services Administration's Office of Government-wide Policy;
(l) Ensure agency policy incorporates Federal hazardous materials requirements set forth in 49 CFR parts 100 through 185; and
(m) Ensure safety and security requirements specified in §§ 102-192.30 and 102-192.35 are fulfilled.
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.
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.
(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.
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.
(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.
Your agency should strive to:
(a) Improve the quality, tone, clarity, and responsiveness of correspondence;
(b) Design forms that are easy to fill-in, 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.
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 Standard and Optional Forms Procedural Handbook. You may obtain a copy of the handbook from:
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.
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.
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.
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.
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
(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.
(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.
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 purchase a specific product or subscription to use the electronic Standard or Optional form.
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).
For Standard and Optional forms, you should contact the:
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.
This subpart establishes the General Services Administration Property Management Regulations (GSPMR) and provides certain introductory material.
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 procedures of interest to other agencies and the general public and are prescribed by the Administrator of General Services in this chapter 105.
(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.
(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. 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.
(a) Most GSPMR are published in the
(b) Most GSPMR are published in cumulative form in chapter 105 of title 41 of the Code of Federal Regulations. The
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.
Chapter 105 is divided into parts, subparts, and further subdivisions as necessary.
(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 management 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.
(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).
(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.
(2) For class deviations, requests shall be sent to only the Administrator of General Services.
(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).”
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.
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.
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 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 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.
(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 self-evaluation 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.
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.
(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 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 discrimination 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.
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.
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.
Except as otherwise provided in §§ 105-8.150 and 105-8.154, no qualified individual with handicaps shall, because 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.
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.
(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.
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.
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;
(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.
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.
(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.
(c) GSA may not require the agency to accept space that results in one or more of the agency's programs being inaccessible.
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.
(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 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.
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.
(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. 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.
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.
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).
The Responsible Official shall coordinate implementation of §§ 105-8.170 through 105-8.170-13.
(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 representative 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.
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.
(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 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.
(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 duties 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.
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.
(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 respondent with the Responsible Official within 30 days of receipt of the letter of findings required by
(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.
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.
(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.
(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.
(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 applicable. 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.
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.
(a) Upon notification by an occupant agency that it has received a complete complaint alleging that the agency's 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).
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.
The following definitions are established for terms used in this part.
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.
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.
Unit of general local government means any city, county, town, parish, village, or other general purpose political subdivision of a State.
Special-purpose unit of local government means any special district, public-purpose corporation, or other strictly limited-purpose political subdivision of a State, but shall not include a school district.
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.
GSA means the General Services Administration.
(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).
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.
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.
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 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.
(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.
(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.
(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 Documents, Government Printing Office, Washington, DC 20402.
Within the functional areas identified in § 105-50.201, GSA can provide the services hereinafter described.
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.
(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.
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
(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.
(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:
(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.
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.
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.
This part is published in accordance with 5 U.S.C. 552 and is a general description of the General Services Administration.
The General Services Administration was established by section 101 of the Federal Property and Administrative 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.
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.
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.
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 regional offices. Copies may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402.
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 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.
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.
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 Administrator, assists in directing agency programs and coordinating activities related to the functions of the General Services Administration.
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.
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.
(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 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.
(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.
(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.
(a) Creation and authority. The Information Security Oversight Office (ISOO), headed by the Director of 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.
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.
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.
(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.
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; 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.
(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.
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.
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.
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.
(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 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.
(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
(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.
(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 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.
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.
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.
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.
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.
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 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.
(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.
(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.
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 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.
(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.
This subpart prescribes the policy and procedures for establishing advisory committees within GSA.
(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
(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.
(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
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.
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.
The GSA Committee Management Officer retains each original signed charter in a file of active charters.
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.
(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.
This subpart sets forth the procedures that will be followed in the operation of advisory committees within GSA.
(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;
(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
(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
(k) Notices to be published in the
(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
(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
(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
(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
(p) The General Counsel reviews all requests to close meetings.
(q) The HSSO or Regional Administrator publishes the meeting notices in the
(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 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.
(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.
(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 non-Federal 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.
(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 part-time 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; e.g., the costs of the committee management system (committee management officers, etc.).
(a) Each advisory committee being continued is renewed for successive 2-year 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
(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
(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
(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.
(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 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.
(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.
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.
(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.
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.
(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.
This subpart sets forth the reports required by this part 105-54 and prescribes instructions for submission of the reports.
(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).
(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.”
(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 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.
(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.
(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.
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.
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.
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.
The General Services Administration is not required to omit, foreclose, or duplicate administrative proceedings required by contract or other laws or regulations.
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.
(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 (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).
(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 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.
(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 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.
(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 post-match 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-by-case 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 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.
(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), 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.
(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.
(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.
(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.
(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 obtained 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.
(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 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 adjustment 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.
(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.
(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.
(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.
(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.
(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 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, payment 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.
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.
(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.
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.
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 tax-loss-carry-forward and tax-loss-carry-back rights of the debtor. For information on discharge of indebtedness reporting requirements see § 105-55.030.
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.
(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.
(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
(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 10-year 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.
(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.
When a significant enforcement policy is involved, or recovery of a judgment is a prerequisite to the imposition of administrative sanctions, the General Services Administration may refer debts for litigation even though termination of collection activity may otherwise be appropriate.
(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, Treasury-designated 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.
(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 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.
(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.
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.
(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.
(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.
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.
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 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 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 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, cross-serviced 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.
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
(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.
(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.
(a) The employee may request a pre-offset 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—
(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.
(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 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.
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.
(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.).
(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 pre-offset 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.
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.
(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.
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 cross-serviced 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.
(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.
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. 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.
(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 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, 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
(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.
(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.
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.
(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.
(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).
(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.
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.
(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.
(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 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.
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.
(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.
(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 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, 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.
(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 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).
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.
(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.
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).
(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 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.
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.
(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.
(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 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.
(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.
(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.
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.
(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.
(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 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.
(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.
(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.
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.
(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
(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 withholding 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.
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.
(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.
(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.
(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.
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).
(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.
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 collection 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.
This part contains the rules that the U.S. General Services Administration, hereinafter GSA, follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with Privacy Act regulations as well as under this part.
(a) In compliance with the Freedom of Information Act (FOIA), as amended 5 U.S.C. 552, a positive and continuing obligation exists for GSA to make available to the fullest extent practicable upon request by members of the public, all records and informational materials that are generated, maintained, and controlled by GSA.
(b) This subpart also covers exemptions from disclosure of these records; procedures for the public to inspect or obtain copies of GSA records.
(c) The regulations promulgated in this subpart are consistent with amendments to 5 U.S.C. 552a as well as other applicable Federal laws germane to disclosure of information to the public.
(d) This subpart applies to all GSA organizations, portfolios, business lines, regional offices and components. The aforementioned units may establish additional rules for processing FOIA requests due to unique program requirements; however, such rules shall be consistent with these rules and have the concurrence of the GSA Administrator and GSA Chief FOIA Officer.
(e) Any internal GSA policies or procedures inconsistent with the policies and procedures promulgated in this subpart are superseded by this subpart to the extent of that inconsistency.
(f) This subpart does not entitle any person to any service or to the disclosure of any GSA records that are not required to be disclosed under the FOIA.
Records that FOIA in 5 U.S. Code section 552(a)(2) requires GSA to make available for public inspection in an electronic format can be accessed via GSA's website at www.gsa.gov. Additionally, the GSA FOIA Reading Room, and the FOIA Online System. GSA is responsible for determining which of its records shall be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. These records shall be made available electronically via the GSA FOIA Reading Room. GSA shall ensure that its online FOIA Library of posted records and indices is reviewed and updated on an ongoing basis. GSA maintains a FOIA Requester Service Center, the office that oversees FOIA requests for all of GSA, and a FOIA Public Liaison to assist individuals in locating records particular to an agency. A list of agency FOIA Public Liaisons is available at: http://www.foia.gov/.
(a) To make a request for GSA records, a requester shall file their request to the GSA FOIA Requester Service Center via one of the following, via the FOIAonline website: (https://foiaonline.gov/foiaonline/action/public/home). From FOIAonline you can submit FOIA requests to GSA and other participating FOIAonline agencies, track the status of requests, search for requests submitted by others, access previously released records, and generate agency-specific FOIA processing reports.
(b) If it is not reasonably possible for a requester to submit an electronic request via FOIAonline, the requester shall submit their request via U.S. Mail to the following address: GSA FOIA Requester Service Center (H3), Room 7308, 1800 F Street NW, Washington, DC 20405. Fax: 202-501-2727. Alternatively, a FOIA requester may email its FOIA request to gsa.foia@gsa.gov (Subject: FOIA Request via Email).
(c) FOIA request description requirements:
(1) The requester shall provide the following items of contact information when submitting a request to GSA:
(i) Full name with honorific (Mr., Ms., Mrs., Dr., etc.);
(ii) Complete mailing address; and
(iii) Telephone number.
(2) This requirement is applicable to both FOIA requests submitted electronically and via U.S. mail, respectively.
(3) Although it is not a mandatory requirement, GSA also recommends the requester provide a personal/business email address for remittance as well.
(d) A requester who is making a request for records about himself or herself shall comply with the verification of identity requirements as specified in paragraph (e) of this section.
(e) Where a request for records pertains to another individual, a requester may receive access to the requested records by submitting: Either a notarized authorization signed by the individual permitting that he or she explicitly grants access to the requested records pursuant to the requirements set forth in 28 U.S.C. 1746 or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, GSA can require a requester to supply additional information such as a Certification of Identity Form in order to sufficiently verify the individual submitting the request and/or also verify that a particular individual has consented to disclosure.
(a) Requesters shall describe the records sought in sufficient detail to enable GSA personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include the following information in their FOIA request, which may help GSA identify the requested records the date/timeframe the requested information was created or occurred, title or name, author, recipient, subject matter of the record, case number, file designation, contract number, leasing identification number, or reference number and if known, the component of GSA housing the records.
(b) Before submitting a FOIA request, requesters may contact the GSA FOIA Requester Service Center or GSA FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. If after receiving a request, GSA determines that it does not reasonably describe the records sought, GSA shall inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with their assigned Government Information Specialist or FOIA Public Liaison. If a request does not reasonably describe the records sought, GSA's response to the request may be delayed.
(c) In order to efficiently respond to FOIA requests within the required 20-business-day timeframe per 5 U.S.C. 552(a)(6)(A), GSA may close an unperfected request 10 business days after GSA notifies the requester of the information needed to perfect the request. If the request does not reasonably describe the records sought, it is unperfected. A perfected FOIA request is a FOIA request for records that adequately describes the records sought, is made in accordance with GSA's regulations, has been received by the GSA FOIA Requester Service center, and for which there is no remaining question about the payment or amount of applicable fees.
(d) Requesters may specify whether they prefer to receive paper copies of the records or receive the records electronically. GSA shall accommodate the request if the record is readily reproducible in the requested form.
(a) The GSA FOIA Requester Service Center is responsible for managing all requests for records submitted to GSA from initial receipt of the FOIA request through the agency's final decision to release in whole or in part, or withhold the requested records.
(b) Upon receiving a request for records, the GSA FOIA Requester Service Center shall determine whether the requested records reside within GSA. If GSA does not have ownership of the requested records, the GSA FOIA Requester Service Center shall make a good faith effort to redirect the requester to the appropriate record location or/entity that has control and ownership of the requested record, if known.
(c) If GSA has possession of the requested records, the FOIA Requester Service Center shall work in coordination with the appropriate GSA component/or program office to fulfill the FOIA request in accordance with 5 U.S.C. 552.
(a) To the extent practicable, GSA shall communicate with requesters electronically via the FOIAonline web portal and/or email.
(b) Upon receipt of a request, GSA shall send requesters an acknowledgement letter within 2 business days containing a brief description of the records sought so requesters may more easily keep track of their requests.
(c) When a request is submitted via FOIAonline, the system automatically generates a tracking number, which allows for easy identification of each request. This tracking number shall be included in the acknowledgement letter.
(d) When GSA receives a request not directly entered by the requester into FOIAonline (i.e., email, fax, standard mail, etc.) the FOIA Requester Service Center shall immediately upload the request into the FOIAonline system and it shall be assigned a tracking number that shall be communicated to the requester.
(a) GSA shall provide an estimated date by which the agency expects to provide a response to the requester. If a request involves a voluminous amount of material or searches in multiple locations, GSA may provide an interim response, meaning the agency releases the records on a rolling basis as the records are located and verified.
(b) In determining which records are responsive to a request, the agency shall include only the records in its possession as of the date the agency receives the perfected FOIA request. If any other date is used, GSA shall inform the requester accordingly. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request.
(c) Pursuant to 5 U.S.C. 552, GSA is not required to perform the following in response to a FOIA request:
(1) Answer questions or interrogatories posed as FOIA requests;
(2) Issue guidance/or opinions;
(3) Analyze and/or interpret documents for a requester;
(4) Create records;
(5) Conduct research; or
(6) Initiate investigations.
(d) The GSA Administrator and GSA Chief FOIA Officer and/or their assigned delegates are authorized to grant or deny any requests for records or portions thereof that are generated, maintained, or controlled by GSA.
(a) All consultations and referrals received by GSA shall be handled according to the date the other agency received the perfected FOIA request.
(b) GSA may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
(c) When GSA is reviewing records located in response to a FOIA request, GSA shall determine whether another agency of the Federal Government is better able to determine if the records are releasable under the FOIA. As to any such record, GSA shall proceed in one of the following ways:
(1) Consultation. When GSA receives a request for records that either originated with another agency or is a GSA record that includes information that originated with another agency, GSA should typically consult with that other agency prior to making a release determination.
(2) Referral. (i) Whenever GSA receives a request for records that are known to be the primary responsibility of another agency, GSA shall refer the responsibility for responding to the request regarding records to that agency. Ordinarily, the agency that created the records is presumed to be the best agency to make the disclosure determination. However, if GSA and the originating agency jointly agree that GSA is in the best position to respond regarding the record, then the responsive record(s) may be handled as a consultation.
(ii) Whenever GSA refers any part of the responsibility for responding to a record request to another agency, GSA shall maintain documentation that the referral to the other agency has occurred, and shall notify the requester of the referral. The notification to the requester shall include both the name of the agency to which the record request was referred and the contact information for the agency's FOIA office/or personnel.
(iii) This referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could reasonably harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. If a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if GSA locates a record that originates with an intelligence community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. Records meeting these criteria shall be treated as a consultation.
(iv) In such instances, in order to avoid a harm to an interest protected by an FOIA applicable exemption, GSA should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by GSA.
(4) Classified information. (i) On receipt of any request involving classified information, GSA shall determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, GSA shall refer request for records to the agency that classified the information or that should consider the information for classification.
(ii) Whenever GSA's records contain information that has been derivatively classified (i.e., it contains information classified by another agency), GSA shall refer the responsibility for responding to that portion of the request to the agency that classified the information.
(a) Upon receipt of perfected request via U.S. mail, email, or facsimile, the GSA FOIA Requester Service Center shall begin processing the request for records. Pursuant to 5 U.S.C. 552(a)(6)(A)(i), GSA has 20 business days (excluding Saturdays, Sundays, and Federal holidays) to inform the requester of the agency's determination with respect to the request for records, unless in the alternative, the agency has negotiated a different timeframe based on scope and level of effort to prepare the FOIA request response. If a requester does not receive a response to their perfected FOIA request within the statutory timeframe requester may seek judicial review in the U.S. 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 U.S. District Court for the District of Columbia.
(b) GSA shall to the greatest extent practicable respond to FOIA requests by order of receipt of the requests.
(c) GSA shall designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in this subpart. GSA may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors GSA may consider are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. GSA shall advise requesters of the track into which their request falls upon request, and when appropriate, offer the requester an opportunity to narrow the scope and/or modify their requests.
(d) GSA may aggregate requests in cases where it reasonably appears that multiple requests for records were submitted either by a requester or by a group of requesters acting in concert for the same, or similar information to ensure it is fulfilled in a timely manner. GSA cannot aggregate multiple requests for unrelated subject matters.
Whenever GSA cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined at 5 U.S.C. 552(a)(6)(A)(iii), GSA shall, before expiration of the 20-day statutory time period to respond to a request for records, notify the requester in writing of the unusual circumstances involved and of the date by which GSA estimates the processing of the request shall be completed. Where the extension of time is anticipated to exceed 10 business days, GSA shall provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. GSA shall make available its FOIA Public Liaison for this purpose. GSA shall also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.
(a) A request for expedited processing may be made at any time. In order to qualify for consideration for expedited processing, the request shall reasonably describe the records sought. Expedited requests should be described in sufficient detail to facilitate expedited processing.
(b) A requester who seeks expedited processing shall submit a statement with their FOIA request, certified to be true and correct, explaining in detail the basis for making the request for expedited processing as described in paragraphs (c)(1) through (4) of this section. As a matter of administrative discretion, GSA may waive the formal certification requirement.
(c) GSA may process requests and appeals on an expedited basis whenever it is determined that they involve:
(1) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information; or
(3) The loss of substantial due process rights; or
(4) A matter of widespread and exceptional media interest in which there exist possible questions about the Government's integrity that affect public confidence.
(d) GSA shall notify the requester within 10 calendar days of its receipt of a request for expedited processing and of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and processed as soon as practicable. If a request for expedited processing is denied, GSA shall act on any appeal of that decision within 3 business days.
(a) 5 U.S.C. 552(b)(1)-(9) of the Freedom of Information Act provides that the disclosure requirements of FOIA do not apply to matters that are:
(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 (see Executive Order No. 13,526);
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute other than 5 U.S.C. 552(b)(1)-(9), 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;
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information that could harm the competitive posture or business interests of a company;
(5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(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) Reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution that 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 redacting the portions of the requested records that are exempt under this section.
(a) Once GSA determines that it shall grant a request in full or in part, the requester shall be notified of the decision in writing as well. GSA shall also inform the requester of any fees charged under § 105-60.804 of this part and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The agency shall inform the requester of the availability of its FOIA Public Liaison to offer assistance.
(b) If GSA makes an adverse determination on any part of the FOIA request, it shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include determinations that:
(1) The requested record is exempt from disclosure, in whole or in part;
(2) The FOIA request does not reasonably describe the records sought;
(3) The information requested is not subject to FOIA;
(4) The requested record does not exist, cannot be located, or has been destroyed; or
(5) The requested record is not readily reproducible in the form or format sought by the requester.
(c) Records disclosed in part in response to a FOIA request shall be marked clearly to show the exemption under which the applicable portions of the responsive records were redacted unless doing so would harm an interest protected by an applicable exemption.
(d) Adverse determinations also include denials involving fee waiver requests, denials for expedited processing, and the administrative closure of FOIA requests due to nonpayment of search and review fees for processing the FOIA request.
(e) Any adverse determination of a FOIA request, in full or in part, shall be signed by the Chief FOIA Officer or his or her designee and shall include:
(1) The name and title or position of the person responsible for the adverse determination;
(2) A brief statement of the reasons for the adverse determination, including any FOIA exemption that is the basis for GSA's decision;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under subpart I of this part, and a description of the appeal requirements.
(5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.
(f) Use of record exclusions pursuant to 5 U.S.C. 552(c):
(1) In the event that GSA identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), GSA shall confer with Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion.
(2) If GSA invokes an exclusion, it shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
(a) Confidential commercial information means commercial or financial information obtained by GSA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(b) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(c) A submitter of confidential commercial information shall use good faith efforts to designate by appropriate markings/or redact any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(d) When notice to submitters is required:
(1) GSA shall promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if GSA determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) GSA has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, GSA may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
(e) The notice requirements of this section do not apply if:
(1) GSA determines that the information is exempt under the FOIA, and therefore shall not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than FOIA or by a regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such a case, GSA shall give the submitter written notice of any final decision to disclose the information within reasonable time prior to a specified disclosure date.
(a) GSA shall provide a submitter with 10 business days, within which the submitter shall respond to the notice referenced in § 105-60.600.
(b) If a submitter has any objections to disclosure, it should provide GSA a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, the submitter shall explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential and the harm of the release of the information to the submitter.
(c) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information.
(d) GSA is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(e) GSA shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(f) Whenever GSA decides to disclose information over the objection of a submitter, the agency shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of the records as the agency intends to release them; and
(3) The specified disclosure date.
(g) Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, GSA shall promptly notify the submitter.
(h) GSA shall notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
(a) A requester may appeal any adverse determination (denial of access to records, denial of fee waiver, or denial of expedited processing, etc.) to the GSA FOIA Requester Service Center which is designated as the agency's FOIA Appeals Office.
(b) The appeal shall include:
(1) The FOIAonline tracking number;
(2) The basis for disagreement with GSA's adverse determination that is being appealed; and
(3) 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.
(c) The requester may submit the appeal electronically to GSA.FOIA@gsa.gov. The requester should mark the subject line of the electronic transmission, “Freedom of Information Act Appeal.” In the alternative, the requester may submit an appeal via facsimile to 202-501-2727, or via US mail to U.S. General Services Administration, FOIA Requester Service Center (H3), 1800 F Street NW, 7308, Washington, DC 20405-0001. If the appeal is submitted via US mail, 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.
(d) The GSA FOIA Officer must receive the requester's appeal no later than 90 calendar days after receipt by the requester of any adverse determination by GSA with respect to the FOIA request. GSA has 20 business days after receipt of a proper appeal to issue a response to the requester's appeal. The 20-workday time limit shall not begin until the GSA FOIA Officer receives the appeal. As noted in § 105.60.305 of this part, the GSA FOIA Officer may extend this time limit in unusual circumstances. GSA will process appeals of denials of expedited processing as soon as possible after receiving them. The GSA FOIA Officer may also extend the time limit in the event of unusual circumstances occur during the processing of appeals as well.
(a) The GSA Chief FOIA Officer or his or her designee shall act on behalf of GSA on all appeals under this section.
(b) An appeal ordinarily shall not be adjudicated if the request that is the subject of the appeal becomes a matter of FOIA litigation. GSA shall administratively close the appeal if it becomes the subject of litigation and provide this notice to the requester in writing that the request has been administratively closed.
(c) On receipt of any appeal involving classified information, GSA shall take appropriate action to ensure compliance with applicable classification rules.
(d) GSA shall provide its review and decision on any appeal in writing. Any decision that either upholds GSA's original determination in whole or in part shall contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied.
(e) If GSA's decision is remanded or modified on appeal, GSA shall notify the requester of that determination in writing. GSA shall then further process the request in accordance with that appeal determination and shall respond directly to the requester. If GSA affirms its original decision after timely receipt of an appeal, GSA shall inform the requester via writing as well. GSA shall inform the requester of their right to seek judicial review in the U.S. 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 U.S. District Court for the District of Columbia. GSA shall also inform the requester of the mediation services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration (NARA) as a non-exclusive alternative to litigation.
(f) Engaging in dispute resolution or mediation services provided by OGIS is a voluntary process. Mediation is a voluntary process. If GSA agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
GSA shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the NARA. GSA shall not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under FOIA.
(a) GSA shall charge for processing requests under the FOIA in accordance with the provisions of this section and with OMB Guidelines. For purposes of assessing fees, FOIA establishes three categories of requesters:
(1) Commercial use requesters;
(2) Noncommercial scientific or educational institutions or news media requesters; and
(3) All other requesters.
(b) Fees are assessed depending on the category GSA determines the requester falls under in subpart A of this part. Requesters may seek a fee waiver. GSA shall consider requests for fee waiver in accordance with the requirements in § 105-60.807 of this subpart. To resolve any fee issues that arise under this section, GSA may contact a requester for additional information. GSA shall ensure that searches, review, and duplication of FOIA records are conducted in the most efficient and the least expensive manner.
(c) GSA shall collect all applicable fees before sending copies of records to a requester. Requesters pay fees by check, credit card, or money order made payable to the U.S. General Services Administration, or by another method as determined by GSA.
(a) A commercial use request is a request that asks for information that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. GSA's decision to place a requester in the commercial use category shall be made on a case-by-case basis and is based on the requester's intended use of the information. GSA shall notify requesters of their placement in this category.
(b) Direct costs are those expenses that GSA incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus sixteen (16) percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space or the heating or lighting of a facility.
(c) Duplication is reproducing a record to respond to a FOIA request. Duplicating records can occur via paper, audiovisual materials or electronic records.
(d) An educational institution is any school that operates a program of scholarly research. A requester in this fee category shall show that the request is made in connection with his or her role at the educational institution. Agencies may seek verification from the requester that the request is in furtherance of scholarly research.
(e) A noncommercial scientific institution is an institution that is not operated on a commercial basis. The term `commercial' for purposes of this subpart is that which is defined in paragraph (a) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category shall show that the request is authorized by a qualifying noncommercial institution, or educational institution of vocational and higher learning and where the records are sought to further scientific, or academic scholarly research, and are not for a commercial use. GSA shall advise requesters of their placement in this category.
(f) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, GSA can also consider a requester's past publication record in making this determination. GSA shall advise requesters of their placement in this category.
(g) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes the process of reviewing each individual record for possible redactions and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 105-60.601 of this part. It does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(h) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
In responding to FOIA requests, GSA shall charge the following fees unless a waiver or reduction of fees has been granted under § 105-60.807 of this subpart. Because the fee amounts provided below already account for the direct costs associated with a given fee type, GSA shall not add any additional costs to charges calculated under this section.
(a) Search fees. (1) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. GSA shall charge search fees for all other requesters, subject to the rules and restrictions enumerated in this subpart. GSA may properly charge for time spent searching even if the GSA FOIA Requester Service Center does not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(2) For each half hour (30 minutes) spent by GSA personnel searching for requested records, including electronic searches that do not require new programming, a $24.50 fee shall be assessed per the guidelines of the fee schedule enumerated in § 105-60.804 of this subpart.
(3) GSA shall charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. GSA shall notify the requester of the costs associated with creating such a program, and the requester shall agree to pay the associated costs before the costs may be incurred.
(4) For requests that require the retrieval of records stored by GSA at a Federal records center operated by the NARA, GSA shall charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.
(b) Duplication fees. (1) GSA shall charge duplication fees to all requesters, subject to the restrictions of § 105-60.803 of this subpart. GSA shall honor a requester's preference for receiving a record in a particular form or format where the agency can readily reproduce it in the form or format requested. Where photocopies are supplied, GSA shall provide one copy per request at the cost of $0.10 per copy. For copies of records produced on tapes, disks, or other media, GSA shall charge the direct costs of producing the copy, including operator time.
(2) Where paper documents shall be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall also pay the direct costs associated with scanning those materials. For other forms of duplication, GSA shall charge the direct costs.
(3) GSA determines the standard fee for duplication of records as follows:
(i) Per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—U.S. $0.10.
(ii) Per copy prepared by any other method of duplication—actual direct cost of production.
(c) Review fees. GSA shall charge review fees to requesters who make commercial use requests. Review fees shall be assessed based upon the initial review of the record (i.e., the review conducted by GSA to determine whether an exemption applies to a particular record or portion of a record). No charge shall be made for review during the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with GSA or another agency's secondary review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those enumerated in the fee schedule of this section.
(a) When GSA determines that a requester is an educational institution, noncommercial scientific institution, or representative of the news media, and that the records are not sought for commercial use, GSA shall not charge search fees.
(b) If GSA fails to comply with the time limits in which to respond to a request for agency records under FOIA, it will not charge search fees, or in the instances of requests from requesters described in paragraph (a) of this section, may not charge duplication fees, except as described in paragraphs (b)(1) through (3) of this section. GSA will charge duplication fees in accordance with § 105-60.802(b)(1) through (3) of this subpart.
(1) If GSA has determined that unusual circumstances, as defined by FOIA, apply and the agency provided timely written notice to the requester in accordance with FOIA, a failure to comply with the time limit shall be excused for an additional 10 business days.
(2) If GSA has determined that unusual circumstances, as defined by the FOIA, apply and that more than 5,000 pages are necessary to respond to the request, GSA may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. GSA shall have provided timely written notice of unusual circumstances to the requester in accordance with FOIA and GSA shall have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.
(3) If a court has determined that exceptional circumstances exist, as defined by FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(c) No search or review fees shall be charged for a half-hour period unless more than half of that period is required for search or review.
(d) Except for requesters seeking records for a commercial use, GSA shall provide without charge:
(1) The first 100 pages of duplication (or the cost equivalent for other media); and
(2) The first 2 hours of search time.
(e) No fee shall be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first 2 hours of search, is equal to or less than $49.00.
Table 1 to § 105-60.804 outlines the basic fee categories and applicable fees:
Table 1 to § 105-60.804—Fee Requester Category Table
| Requester category | Search fees | Review fees | Duplication fees | Amount |
|---|---|---|---|---|
| (a) Commercial use requester | Yes | Yes | Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production | $49.00/hour plus applicable duplication costs. |
| (b) Educational and noncommercial scientific institutions | No | No | Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production | Eligible requesters not subject to fees other than duplication costs. |
| (c) Representative of news media | No | No | Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production | Eligible requesters not subject to fees other than duplication costs. |
| (d) All other requesters | Yes (first 2 hours without charge) | No | Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production | $49.00/hour plus applicable duplication costs. |
GSA's calculated hourly rate for manual search, computer operator/programmer time, and employee time spent reviewing records is set at a flat rate of 49.00 per hour. GSA charges for these FOIA services by the hour at $49.00 and half hour at $24.50.
The fee schedule of this section does not apply to fees charged under any statute that specifically requires GSA to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily based fee schedule program, GSA shall inform the requester of the contact information for that program.
If GSA utilizes a contractor or agency personnel outside of the FOIA Requester Service Center to perform any services described in this subpart, the standard fee is based on the equivalent hourly rates.
(a) When GSA determines or estimates that the fees to be assessed in accordance with this section shall exceed $49.00, the agency shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated via writing. If only a portion of the fee can be estimated readily, GSA shall advise the requester accordingly. If the request is not for noncommercial use, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, 2 hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(b) If GSA notifies the requester that the actual or estimated fees are in excess of $49.00, the request shall not be considered received and further work shall not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay. Or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester shall provide the commitment/or designate an exact dollar amount in writing the requester is willing to pay. GSA is not required to accept payments in installments.
(c) If the requester has indicated a willingness to pay some designated amount of fees, but the agency estimates that the total fee shall exceed that amount, GSA shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. GSA shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester submits the new estimated fee, the time to respond shall resume from where it was at the date of the notification.
(d) GSA's FOIA Public Liaison and other FOIA professionals shall be available to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(e) Although not required to provide special services, if GSA chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(f) GSA may charge interest on any unpaid bill starting on the 31st day following the date the requester is first billed. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and shall accrue from the billing date until payment is received by the agency. GSA shall follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(g) When GSA reasonably believes that a requester or a group of requesters acting in concert are attempting to divide a single request into a series of requests for the purpose of avoiding fees, GSA may aggregate those requests and charge accordingly. GSA may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, GSA shall aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.
(a) For requests other than those described in this subpart, GSA cannot require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.
(b) When GSA determines or estimates that a total fee to be charged under this section shall exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. GSA may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(c) Where a requester has previously failed to pay a properly charged FOIA fee to GSA within 30 calendar days of the billing date, GSA may require that the delinquent requester pay the full amount due, plus any applicable interest on that prior request, and require that the requester make an advance payment of the full amount of any anticipated fee before the agency begins to process a new request or continues to process a pending request or any pending appeal. If GSA has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(d) In cases in which GSA requires advance payment, the request shall not be considered received and further work shall not be completed until the required payment is received. If the requester does not pay the advance payment within 10 business days after the date of GSA's fee determination, the request shall be closed.
(a) Requests for a fee waiver shall be made when the FOIA request is first submitted to the agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or being reviewed per an appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall pay any costs incurred up to the date the fee waiver request was received.
(b) Requirements for waiver or reduction of fees:
(1) Requesters may seek a waiver of fees by submitting a written rationale as to how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester; and
(2) GSA shall furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (b)(2)(i) through (iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the operations or activities of the Government. The subject of the request shall concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated; and
(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met; and
(A) Disclosure of the requested records shall be meaningfully informative about Government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(B) The disclosure shall contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. GSA shall presume that a representative of the news media shall satisfy this consideration;
(iii) The disclosure shall not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, GSA shall consider the following criteria:
(A) GSA shall identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, GSA shall determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (b)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. GSA ordinarily shall presume that, when a news media requester has satisfied factors in paragraph (b)(1) of this section and this paragraph (b)(2), the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market Government information for direct economic return shall not be presumed to primarily serve the public interest.
(c) Where only some of the records to be released satisfy the requirements for a fee waiver, a waiver shall be granted for those records.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
(a) By virtue of the authority vested in the Administrator of General Services by 5 U.S.C. 301 and 41 U.S.C. 121(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.
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.
(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 GSA Board of Contract Appeals for material and information which is the responsibility of the Board of Contract Appeals or testimony of current or former Board of Contract Appeals 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.
(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 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.
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.
(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 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) Required plan or other information. 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.
(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.
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).
(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.
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 Implementing Directive dated September 29, 1978, issued through the Information Security Oversight Office.
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.
(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.
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 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.
(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 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.
(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 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 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.
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.
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, 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
Un-redacted SSN Mailed Documents Listing (USMDL) means the Agency approved list, as posted at www.gsa.gov/reference/gsa-privacy-program, designating those documents for which the inclusion of the Social Security account number (SSN) is determined to be necessary to fulfill a compelling Agency business need when the documents are requested by individuals outside the Agency or other Federal agencies, as determined by the Administrator or their designee.
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.
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.
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).
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.
(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.
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) 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=GSA_BASIC&contentId = 21567).
(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.
(c)(1) The following conditions must be met for the inclusion of an unredacted (full) SSN or partially redacted (truncated) SSN on any document sent by mail on behalf of the agency:
(i) The inclusion of the full SSN or truncated SSN of an individual must be required or authorized by law; and
(ii) The document must be listed on the USMDL.
(2) Even when the conditions set forth in paragraph (c)(1) are met, employees shall redact SSNs in all documents sent by mail where feasible. Where full redaction is not possible due to agency requirements, partial redaction to create a truncated SSN shall be preferred to no redaction.
(3) In no case shall any complete or partial SSN be visible on the outside of any envelope or package sent by mail or displayed on correspondence that is visible through the window of an envelope or package.
(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.
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.
(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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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, 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.
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
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.
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 Administration, 1800 F Street, NW., Washington, DC 20405. Mark both the envelope and the appeal letter “Privacy Act Appeal”.
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.
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.
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”.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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
(f) The new or revised system becomes effective 30 days after the notice is published in the
(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.
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.
E-mail your complaint to gsa.privacyact@gsa.gov 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.
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”.
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.
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.
This subpart prescribes policies and procedures governing the debarment or suspension of contractors from purchases of Federal personal property (see FPMR part 101-45).
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.
(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 . . . | You will find provisions related to . . . |
|---|---|
| A | general information about this rule. |
| B | the types of GSA transactions that are covered by the Governmentwide nonprocurement suspension and debarment system. |
| C | the responsibilities of persons who participate in covered transactions. |
| D | the responsibilities of GSA officials who are authorized to enter into covered transactions. |
| E | the responsibilities of Federal agencies for the |
| F | the general principles governing suspension, debarment, voluntary exclusion and settlement. |
| G | suspension actions. |
| H | debarment actions. |
| I | definitions of terms used in this part. |
| J | [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 | A, B, C, and I. |
| (2) a respondent in a suspension action | A, B, F, G and I. |
| (3) a respondent in a debarment action | A, B, F, H and I. |
| (4) a suspending official | A, B, D, E, F, G and I. |
| (5) a debarring official | A, B, D, E, F, H and I. |
| (6) a (n) GSA official authorized to enter into a covered transaction | A, B, D, E and I. |
| (7) Reserved | J. |
(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 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.
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.
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).
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.
(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.
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.
(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.
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.
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.
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.
Check the Excluded Parties List System (EPLS) to determine whether a person 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.
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.
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.
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.
All nonprocurement transactions, as defined in § 105-68.970, are covered transactions unless listed in § 105-68.215. (See appendix to this part.)
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 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.
(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.
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.
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.
(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.
(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.
(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.
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.
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.
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.
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.
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.
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.
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.
Before you enter into a covered transaction with a person at the next higher tier, you as a lower tier participant must notify that person if you know that you or any of the principals are presently excluded or disqualified.
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.
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.
(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.
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.
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.
(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.
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.
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.
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.
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.
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 lower-tier covered transactions.
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 transaction, issue a stop work order, or take any other appropriate remedy.
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.
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.
The EPLS is a widely available source of the most current information about persons who are excluded or disqualified from covered transactions.
(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.
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.
(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).
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:
(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.
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.
(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.
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.
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 | Imposes debarment for a specified period as a final determination that a person is not presently responsible. |
| (b) Must—
(1) Have (2) Conclude that | Must conclude, based on a |
| (c) Usually imposes the suspension | Imposes debarment |
In deciding whether to suspend or debar you, we handle the actions as informally as practicable, consistent 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.
(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.
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.
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.
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.
Yes, we may settle a debarment or suspension action at any time if it is in the best interest of the Federal Government.
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.
(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.
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.
(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 nature of the circumstances giving rise to a cause for suspension or from potential business relationships or involvement with a program of the Federal Government.
A suspension is effective when the suspending official signs the decision to suspend.
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.
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 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.
(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.
(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.
(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.
(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 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.
(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.
(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 fact-finding 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.
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.
(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.
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 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.
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.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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—
(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 fact-finding 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.
(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.
(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.
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.
(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.
(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.
(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.
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.
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.
(a) Yes, the debarring official may extend a debarment for an additional 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.
Adequate evidence means information sufficient to support the reasonable belief that a particular act or omission has occurred.
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.
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.
Agent or representative means any person who acts on behalf of, or who is authorized to commit, a participant in a covered transaction.
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).
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.
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.
(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]
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) 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).
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.
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.
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.
Ineligible or ineligibility means that a person or commodity is prohibited from covered transactions because of an exclusion or disqualification.
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 authority is a party. The term also includes appeals from those proceedings.
(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.
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.)
Participant means any person who submits a proposal for or who enters into a covered transaction, including an agent or representative of a participant.
Person means any individual, corporation, partnership, association, unit of government, or legal entity, however organized.
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.
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
(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.
Respondent means a person against whom an agency has initiated a debarment or suspension action.
(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.
(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]
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.
(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.
See also Office of Management and Budget notice published at 54 FR 52306, December 20, 1989.
(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 connection 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.
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.
(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 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 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.
(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,
(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,
(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 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.
(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.
(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 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.
No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.
(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.
(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.
(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.
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.
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.
(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.
(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 six-month 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.
(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.
(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.
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 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.
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.
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.
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.
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—
(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.
(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 $13,700 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 $13,700 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.
(f) For violations occurring on or after January 1, 2025, the maximum penalty, which may be assessed under paragraphs (a)(1)(iv) or (b)(1)(ii) of this section, is the larger of:
(1) The amount for the previous calendar year, or
(2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI-U for the month of October preceding the current calendar year exceeds the CPI-U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest hundred dollar increment.
(g) Notice of the maximum penalty which may be assessed under paragraphs (a)(1)(iv) and (b)(1)(ii) of this section for calendar year 2026 and thereafter will be published by GSA in the
(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 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.
(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 demanded 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.
(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.
(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 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.
(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.
(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.
(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.
(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.
Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.
(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.
(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.
(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.
(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.
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.
(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.
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.
(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;
(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.
(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.
(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.
(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.
(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.
(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, including 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.
(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.
(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.
(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.
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 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.
(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.
(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 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.
(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.
(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.
(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.
In determining an appropriate amount of civil penalties and assessments, the ALJ and the Authority 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.
(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.
(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.
(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 open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 105-70.024.
(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.
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.
(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.
(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 the parties 30 days after it is issued, unless it is timely appealed to the Authority Head in accordance with § 105-70.039.
(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.
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.
(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the Authority Head.
(b) No administrative stay is available following a final decision of the Authority Head.
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.
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.
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.
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).
(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.
(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.
This part establishes uniform administrative rules for Federal grants and cooperative agreements and subawards to State, local and Indian tribal governments.
This section contains general rules pertaining to this part and procedures for control of exceptions from this subpart.
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, 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 non-construction 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 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 third-party 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 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.
(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), 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.
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.
(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
(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.
(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 burdensome 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.
(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 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.
(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.
(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.
(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 letter-of-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 financial assistance as part of a preaward review or at any time subsequent to award.
(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 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 Development 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.
(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 cost-type 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— | Use the principles in— |
|---|---|
| State, local or Indian tribal government. | OMB Circular A-87. |
| 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 | OMB Circular A-122. |
| Educational institutions | OMB Circular A-21 |
| For-profit organization other than a hospital and an organization named in OMB Circular A-122 as not subject to that circular | 48 CFR part 31, Contract Cost Principles and Procedures, or uniform cost accounting standards that comply with cost principles acceptable to the Federal agency. |
(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.
(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 in-kind 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 in-kind contributions. (i) Third party in-kind 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 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 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.
(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 non-Federal 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 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.
(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.
(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 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.
(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. 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 third-party 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.
(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 acquired 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.
(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 existing 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.
(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.
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.
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 ineligible for participation in Federal assistance programs under Executive Order 12549, “Debarment and Suspension”.
(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 non-Federal 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 financial 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.
(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 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 cost-reimbursement 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;
(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 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 third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify 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 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 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).
(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.
(a) Monitoring by grantees. Grantees are responsible for managing the day-to-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 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-of-completion 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.
(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.
(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 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).
(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 3-year 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. 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.
(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 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).
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.
(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.
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.
(a) Any funds paid to a grantee in excess of the amount to which the grantee is finally determined to be entitled 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.
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.
(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 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.
(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, large-scale programs that are government-owned 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 methods, 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 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.
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.
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.
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.
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.
(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 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.
(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.
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.
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;
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 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.”
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.
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.
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.
(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 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.”
(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 control 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.
(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 depositories 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 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.
(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 long-term 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 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.
(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.
(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.
(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 approved 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 cost-related 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).
(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 one-time 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.
(a) Recipients and subrecipients that are institutions of higher education or 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.
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 non-profit 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.
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.
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.
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.
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 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.
(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.
(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 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 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.
(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 private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.
(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).
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.
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.
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.
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, 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.
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.
(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-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, minority-owned 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-of-cost” 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 Federal 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.
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.
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.
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 the terms, conditions and specifications of the contract.
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.
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.
(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.
(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 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.
(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 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records 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.
Section 105-72.701 and § 105-72.702 set forth uniform suspension, termination and enforcement procedures.
(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 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.
(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).
Sections 105-72.801 through 105-72.803 contain closeout procedures and other procedures for subsequent disallowances and adjustments.
(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 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.
(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.
(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.
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 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 1
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.
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.
(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 | A, B and E. |
| (2) A recipient who is an individual | A, C and E. |
| (3) A(n) GSA awarding official | A, D and E. |
This part does not apply to any award that the Administrator of General Services determines that the application of this part would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government.
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).
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).
You must publish a statement that—
(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled 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.
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.
You must establish an ongoing drug-free 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.
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. |
| (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. |
| (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 | 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. |
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 either_
(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.
(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 workplaces_
(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.
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.
(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.
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.
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.
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.
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.
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.
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.
(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).
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.
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.
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.
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.
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 contracts (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.
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.
(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).
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.
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 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.
Individual means a natural person.
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.
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.
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, Government-wide 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.
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/Federal Management Regulation. 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 the National Defense Authorization Act for Fiscal Year 1994 (42 U.S.C. 72741)) are not addressed in these regulations.
(a) Definitions. As used in this chapter, the terms personal property and property are synonymous. In addition, the following definitions 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. 41 CFR 102-35.20.
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.
Cannibalization means to remove serviceable parts from one item of equipment in order to install them on another item of equipment (48 CFR Subpart 45.101).
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, 41 CFR 102-35.20; DOE Financial Management Handbook.
Controlled Unclassified Information (CUI) means the Unclassified information that is controlled within DOE because its release could cause damage. CUI within DOE encompasses Official Use Only (OUO) and Unclassified Nuclear Information (UCNI). OUO includes information such as Personally Identifiable Information, Export Controlled Information, proprietary information, and other information not covered by other DOE directives. CUI is governed by Executive Order 13556 and is a developing Government-wide policy, Controlled Unclassified Information, which will mandate uniform standards for the control of unclassified information within the Government.
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 management, 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 Nuclear Suppliers Group Dual-Use List as published in International Atomic Energy Agency Information Circular (INFCIRC) 254 Part 2 and as implemented by the Department of Commerce in the U.S. Export Administration Regulations (15 CFR part 774).
Equipment means a tangible asset that is functionally complete for its intended purpose, durable, nonexpendable, and needed for the performance of a contract. Equipment is not intended for sale, and does not ordinarily lose its identity or become a component part of another article when put into use (48 CFR Subpart 45.101).
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 as published in International Atomic Energy Agency INFCIRC 254 Part 1 and as implemented by the Nuclear Regulatory Commission in 10 CFR part 110.
Excess Property means property that is no longer required to carry out the Department of Energy's needs, but for purposes of this regulation, such property has not been reported to the General Services Administration as excess property under 41 CFR 102-36.35.
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 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). 41 CFR 102-36.40.
High risk personal property means property that, because of its potential impact on public health and safety, the 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.
Information Technology. (i) With respect to an executive agency means any equipment or interconnected system or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use—
(A) Of that equipment; or
(B) Of that equipment to a significant extent in the performance of a service or the furnishing of a product;
(ii) Includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources; but
(iii) Does not include any equipment acquired by a federal contractor incidental to a federal contract. 40 U.S.C. 11101.
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. 41 CFR 102-36.40.
Nuclear weapon component or weapon-like 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.
Organizational Property Management Officers means establish and administer personal property management programs within their organizations consistent with applicable laws, regulations, practices, and standards.
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. 102-36.40.
Program Secretarial Officer (PSO) Assistant Secretaries/Program Element Heads.
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.
Property Administrator means an authorized representative of the contracting officer appointed in accordance with agency procedures, responsible for administering the contract requirements and obligations relating to Government property in the possession of a contractor FAR 45-101.
Property management means the system of acquiring, maintaining, using and disposing of the personal property of an organization or entity. 102-35.20.
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 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. 41 CFR 102-35.20.
Spare equipment/property means items held as replacement spares for equipment in current use in DOE program.
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 International Atomic Energy Agency in INFCIRC 254, Part 1 and as implemented by the Nuclear Regulatory Commission in 10 CFR part 110.
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. 10 CFR part 1017.
(b) Acronyms. As used in this chapter, the following acronyms apply:
CFR: Code of Federal Regulations
CSC: Customer Supply Center
CUI: Controlled Unclassified Information
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
FAR: Federal Acquisition Regulation
FPMR/FMR: Federal Property Management Regulations/Federal Management Regulation
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
IT: Information Technology
LEDP: Laboratory Equipment Donation Program
M&O: Management and Operating
MCTL: Military Critical Technologies List
OPMO: Organizational Property Management Officer
OPSEC: Operations Security
PA: Property Administrator
PSO: Program Secretarial Officer (PSO)
SNM: Special Nuclear Material
UCNI: Unclassified Controlled Nuclear Information
U.S.C.: United States Code
The DOE-PMR system described in this subpart is established to provide uniform personal property management policies, standards, and practices within the Department.
The DOE-PMRs (41 CFR Ch. 109) implements and supplements the FPMR/FMR (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.
(a) Subject to applicable procedural requirements in 41 U.S.C. 1707, 42 U.S.C 7191 and 5 U.S.C 553, Personal Property Letters are authorized for publication of temporary policies that should not 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/FMR or DOE-PMR.
The DOE-PMR will be published in the
(a) The FPMR/FMR and DOE-PMR apply to all direct operations.
(b) The DOE-PMR does not apply to facilities and activities conducted under Executive Order 12344 (Naval Nuclear Propulsion Program) and Public Law 98-525.
(c) Unless otherwise provided in the appropriate part or subpart, the FPMR/FMR 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/FMR and DOE-PMR apply.
(e) Program Secretarial Officers and other DOE elements are responsible to identify the contracts that involve the life-cycle management of personal property assets. The respective program's Head of Contracting Activity is responsible to issue direction to Contracting Officers to incorporate any and all applicable requirements of the FPMR/FMR and DOE-PMR and any supplemental Program Office guidance into contracts identified with life-cycle management of personal property.
(f) Principal authority and responsibility for the administration of DOE personal property in the custody of its contractors rest with the responsible Contracting Officer.
(g) The FPMR/FMR 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.
(h) 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.
(i) Regulations for the management of personal property held by financial assistance recipients are contained in the DOE Financial Assistance Rules (10 CFR part 600) 2 CFR parts 200 and 910 and DOE Order 534.1, Accounting.
(a) The DOE-PMR shall be fully coordinated with all Departmental elements substantively concerned with the subject matter.
(b) The accountable Under Secretary is responsible for implementation of the DOE PMR through their respective DOE elements.
(c) Program Secretarial Officers and DOE elements with responsibility for personal property, as delegated by their cognizant Under Secretary, may develop program management plans and issue internal program office guidance that is aligned to the requirements in the DOE-PMR and as explicitly authorized by their Under Secretary.
(d) Heads of Contracting Activity designates Organizational Property Management Officers (OPMO) to establish and administer personal property management programs within their organizations.
(e) Contracting Officers designates Property Administrators (PA) as authorized representatives responsible performing delegated contract administration functions for contract and financial assistance requirements relating to Government personal property.
(f) The Office of Management is responsible for Agency-level management of the contract property program and provides policy and management assistance in support of the policy implementation effort. The Office of Management designates an Agency Property Executive to serve as National Utilization Officer responsible for promoting acquisition and utilization of excess personal property and for establishing policies, standards, and guidance in accordance with applicable laws, regulations and sound personal property management practices and standards.
(a) The DOE-PMR includes basic and significant Departmental personal property management policies and standards which implement, supplement, or deviate from the FPMR/FMR. In the absence of any DOE-PMR issuance, the basic FPMR/FMR material shall govern.
(b) The DOE-PMR shall be consistent with the FPMR/FMR and shall not duplicate or paraphrase the FPMR/FMR 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.
(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/FMR and DOE-PMR (except aviation related portions) shall be forwarded with supporting documentation by the Organizational Property Management Officer (OPMO) to the Office of Management.
(2) Requests for deviations from aviation related portions of the FPMR/FMR 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 accountable Under Secretary is authorized to approve documented program-specific or location-specific exemptions, exclusions, and/or deviations from requirements of the DOE PMR based on mission needs, efficiency, and/or efficacy of execution without disregarding federal laws and regulations.
(d) Requests for deviations from the FPMR/FMR will be coordinated with GSA by the Office of Management.
This subpart supplements the FPMR/FMR, 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.
It is DOE policy that a program for the management of personal property shall be established and maintained to meet program needs. Personal property shall be managed efficiently, in accordance with Federal statutes and regulations, and in alignment with mission needs. Personal property must be managed in a safe and secure manor and ensure personal property assets are available to support efficient mission execution. Commercial practices may be used (i.e., industry leading practices, voluntary consensus standards) that are necessary, appropriate, and provide effective and efficient Government property management, except where those practices are inconsistent with law, regulation or otherwise impractical.
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
(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.
This subpart provides guidance on DOE standards and practices to be applied in the management 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 Office of Management; Program Secretarial Officer (PSO) for their respective organizations; or a contracting officer for contractor-held 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.
(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 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 domestic 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 Office of International Affairs for approval, with a copy to the cognizant Headquarters program office.
(a) Personal property shall be marked “U.S. Government property” or “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.
(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. 41 CFR 102-35.30.
Generally, 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).
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.
The contractor's property control records shall provide the following 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.
An individual property record will be developed and maintained for each item of equipment.
Perpetual inventory records are to be maintained for stores inventory items.
Perpetual inventory records are to be maintained for precious metals.
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.
(a) Physical inventories of those categories of personal property as specified in paragraph (g) 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.
(c) Detailed procedures for the taking of physical inventories shall be developed for each DOE office and designated contractor. The OPMO/PA 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) The DOE capitalization threshold for items acquired prior to October 1, 2011 is $50,000. For items acquired on or after October 1, 2011, the threshold is $500,000.
(f) 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.
(g) The frequency of physical inventories of personal property shall be as follows:
(1) Equipment—biennial 98%. Inventory accuracy.
(2) Sensitive items—annual 100%. Inventory accuracy.
(3) Stores inventories—annual.
(4) Precious metals—annual 100% Inventory accuracy.
(5) HRPP—annual 100% Inventory accuracy.
(6) All other accountable property every three years 98% Inventory accuracy.
(7) Administratively controlled items—There is no formal Department requirement for the performance of physical inventories of this property. However, OPMOs/PA's determines inventory requirements based on management needs.
(h) 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 as directed by OPMO/PA.
(i) 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/PA.
(j) The results of physical inventories shall be reconciled with the property records, and with applicable financial control accounts.
(k) The results of physical inventories shall be reported to the OPMO/PA.
(l) Physical inventories of equipment and stores inventories may be conducted using statistical sampling methods in lieu of the normal wall-to-wall 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.
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
(d) Actions taken to prevent further loss, damage, or destruction, and to prevent repetition of similar incidents.
(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 location-by-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);
(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 ensuring 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.
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.
Annual personal property reports as required by 41 CFR 102 35.25 and internal DOE personal property reports must be submitted to the Office of Management at a date determined by the Property Executive.
This subpart prescribes policy and responsibilities for the establishment, maintenance, and appraisal of designated contractors' programs for the management of personal property.
(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 management 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.
(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.
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 Government-owned personal property.
(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.
(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/PA 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, and appropriate program officials. Approval authority may be redelegated to the contracting officer or OPMO/PA. 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 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/PA. 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.
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.
(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 weapon-like 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.
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, programs, 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, Program Secretarial Officer (PSO) or OPMOs/PAs shall ensure 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.
(a) It is the responsibility of DOE organizations and designated contractors to manage and control Government-owned 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.
(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 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/FMR, subchapter H of this chapter, and the DOE Guidelines on Export Control and Nonproliferation.
(4) 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) The following Export Restriction Notice, or approved equivalent notice, shall be included in all transfers, sales, or other offerings:
The use, disposition, export and re-export 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 as continued under the International Emergency Economic Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28, 1977); Trading with the Enemy Act (50 U.S.C. 4305) as amended by the Foreign Assistance Act of 1961); 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.);.); 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 re-export of the property; and
b. Any use or disposition, export or re-export of the property which is not authorized in accordance with the provisions of this agreement.
(a) Life cycle control determinations. When the PSO 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 Office of Management. A PSO's decision not to provide life-cycle 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
(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 PSO to the Office of Management.
(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. Such authorizations must be submitted to the fleet manager to ensure proper use of motor vehicles during non-duty hours. 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(1946)).
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. Check for specific details within your state laws regarding vehicle operator's licenses from foreign countries which may be valid in certain States;
(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 card and vehicle keys;
(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.
(l) The prohibition against text messaging while operating a Government vehicle, or any vehicle while on Government business, as set forth under Executive Order 13513; and
(m) See 31 U.S.C. 1344 and 41 CFR 301-10.201 for allowable use of Government vehicles while on temporary duty or official travel orders.
(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 purposes as prescribed in this section. The Office of Management and Program Secretarial Officer (PSO) 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.
(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.
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.
(a)-(c) [Reserved]
(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) Program Secretarial Officer (PSO) shall require periodic independent reviews of equipment pool operations.
The Director, Office of Management, Program Secretarial Officer (PSO), and designated contractors shall establish criteria for the use of office furniture, furnishings, and equipment.
(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, 84 Public Law 37, as amended.
(a) DOE field organizations designated by the Office of Management 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) The Office of Management 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.
(a) GSA is a mandatory source, under FPMR 101-26.501, for purchase of new non-tactical vehicles.
(b) Under unique circumstances which meet the criteria set forth under FPMR, 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 Office of Management. GSA will grant waivers on a case-by-case basis, in accordance with FPMR 101-26.501(b)(c).
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 Office of Management, for approval and submission to GSA. Requisitions for all other types of motor vehicles shall be submitted directly to GSA.
(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 Office of Management.
(c) To ensure that DOE does not exceed the number of passenger motor vehicles authorized to be acquired in any fiscal year, the Office of 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.
Normally, DOE does not purchase or authorize contractors to purchase used motor vehicles. However, the Office of Management and Program Secretarial Officer (PSO) 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.
(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 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.
(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.
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.
Effective procedures and practices shall provide for the management and physical security of controlled substances 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.
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.
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 metals—platinum, palladium, rhodium, iridium, ruthenium and osmium.
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.
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) Ensuring that the organization's precious metals activities are conducted in accordance with Departmental requirements.
(b) Maintaining 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) Ensuring 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 DOE 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.
(k) Developing and issuing current authorization lists of persons authorized by management to withdraw precious metals from stockrooms.
DOE organizations and contractors shall contact the DOE Business Center for Precious Metals Sales and Recovery to determine the availability of precious metals prior to acquisition on the open market.
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.
(a) Physical inventories shall be conducted annually by custodians, and witnessed by the Precious Metals Control Officer or his designee in accordance with 109-1.5110, Physical inventories frequency requirements.
(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.
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.
(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 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.
(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.
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/FMR and this regulation.
Pure metals are available through the Business Center for either direct shipment to DOE contractors or facilities to fulfill fabrication requirements. Contact the Business Center for available forms and quantity (https://www.y12.doe.gov/missions/pmetal/).
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. This includes precious metals in any form, including shapes, and scraps. Procedures have been developed by the precious metals pool contractor for metal returns, including storing, packaging, shipping, and security.
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.
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.
The requirements for the recovery of silver from used hypo solution and scrap film are contained in § 109-45.1003 of this chapter.
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.
(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 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.
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.
DOE offices and designated contractors shall establish internal controls for ensuring that the customer access codes assigned for their accounts are properly protected.
This subpart provides policies, principles, and guidelines to be used in the management of equipment held for future projects (EHFFP).
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.
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.
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.
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.
(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.
OPMOs or on-site DOE property administrators shall conduct periodic reviews in accordance 109-1.5110 Physical inventories of personal property frequency requirement to ensure that the EHFFP program is being conducted in accordance with established procedures DOE-FMR. Included in the review will be proper determinations of property as EHFFP, the validity of justifications for retaining EHFFP.
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.
This subpart provides policy guidance to be used in the management of spare equipment.
Spare equipment/property means items held as replacement spares for equipment in current use in DOE program.
The following categories of equipment will not be considered spare equipment:
(a) Equipment/Property 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.
(a) Procedures shall require the maintenance of records for spare equipment/property, 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/Property 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/property as excess property.
The provisions of 41 CFR part 101-30 do not apply to designated contractors.
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.
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 firefighting 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.
(a) What size motor vehicles may we obtain? (See 41 CFR 102-34.50).
(b) All requests to obtain 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 102-34 subpart B.
(c) Requests to exempt certain light trucks from the fleet average fuel economy calculations shall be forwarded with justification to the Office of Management for approval.
(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 Office of Management for approval prior to submission by field offices to GSA.
(e) DOE activities shall submit a copy of all lease agreements to GSA.
(a)-(e) [Reserved]
(f) Requests made pursuant to 41 CFR 102-34.155 through 102-34.170 for limited exemption from the requirement for displaying U.S. Government tags and other identification on motor vehicles, except for those vehicles exempted in accordance with 41 CFR 102-34.175 and § 109-38.204-1 of this subpart, shall be submitted to the Office of Management for approval. Each approved exemption must be renewed annually, and the Office of Management 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 102-34.160 will be transmitted to GSA.
(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.
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.
The Office of Management and Program Secretarial Officer (PSO) shall make the determination concerning the use of tags outside the District of Columbia.
(a) The Office of Management 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 assignments of license tags to the motor vehicles under their jurisdiction.
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.
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.
(a)-(f) [Reserved]
(g) The Office of Management and Program Secretarial Officer (PSO) 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.
DOE offices shall provide upon request the necessary information to the DPMO to enable that office to submit a report of exempted vehicles.
The Office of Management and Program Secretarial Officer (PSO) 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.
This subpart prescribes the requirements governing the use of Government motor vehicles for official purposes by designated contractors.
The use of Government motor vehicles by officers and employees of the Government is governed by the provisions of 41 CFR 102-34 Subpart D and section 109-6.4 of this chapter.
Program Secretarial Officer (PSO) shall ensure that provisions of the FPMR/FMR concerning contractor use of Government motor vehicles are complied with by their designated contractors.
(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 Director, Office of Management and Program Secretarial Officer (PSO) 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.
(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 property. Such use shall be documented and the documentation retained for three years.
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.
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.
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.
(a) [Reserved]
(b) Motor vehicles may be replaced without regard to the replacement standards in 41 CFR 102-34 subpart E only after certification by the Office of Management 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.
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.
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.
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 to § 109-38.403-2 of this subpart are as follows:
(a) As a result of the negligent or willful act of a party other than the organization or its 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.
(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)(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.
The Standard Form (SF) 97 shall be signed by an appropriate contracting officer. The Director, Office of Management and Program Secretarial Officer (PSO) for their respective organizations may delegate the authority to sign SF 97 to responsible DOE personnel under their jurisdiction.
(a)-(c) [Reserved]
(d) The Office of Management and Program Secretarial Officer (PSO) 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 a fleet credit card 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
A dedicated fleet credit card is issued with each GSA-leased motor vehicle. DOE offices electing to use fleet credit cards for agency-owned vehicles and motor equipment shall request the assignment of new accounts from the Office of Management. Following the assignment, DOE organizations shall submit orders for issuance of fleet credit cards in accordance with the instructions provided by GSA.
The Office of Management and OPMOs for their respective organizations shall establish adequate records for accounting and reporting purposes.
See 41 CFR 102-34 subpart J.
This subpart prescribes policies and procedures concerning the utilization of motor equipment.
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.
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 one-time 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
(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.
(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 x 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, 1
(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.
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 approve 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.
(a) Individual motor vehicle utilization cannot always be measured or evaluated strictly on the basis of miles operated or against any Department-wide 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.
(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:
(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.
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.
As used in this subpart the following definition applies:
Watercraft means any vessel used to transport persons or material on water.
(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.
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.
The Office of Management and Program Secretarial Officer (PSO) for their respective organizations shall designate representatives to coordinate with GSA concerning the establishment of a GSA fleet management system to serve their organization.
The Office of Management and Program Secretarial Officer (PSO) 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.
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.
The Office of Management and Program Secretarial Officer (PSO) 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 Office of Management.
The Office of Management and Program Secretarial Officer (PSO) for their respective organizations shall seek limited exemptions from the fleet management system.
(a)-(c) [Reserved]
(d) Motor equipment fleet managers shall ensure that operators and passengers in GSA Interagency Fleet Management System (IFMS), agency-owned and agency commercially-leased motor vehicles are aware of the prohibition against the use of tobacco products in these vehicles.
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.
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.
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.
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.
(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.
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.
See 49 U.S.C. 41102 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. 40118), 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.
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.
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.
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.
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.
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.
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.
The DOE traffic management functions are accomplished by established field traffic offices under provisions of appropriate Departmental directives and Headquarters' staff traffic management supervision.
(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.
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.
Under the provisions 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).
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.
(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.
(b) When a rate tender is used for transportation furnished under a cost-reimbursable 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 cost-reimbursable 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.
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.
This subpart sets forth the requirements under which commercial or Government bills of lading may be used.
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.
The policy and procedures set forth in this subpart shall be applied when DOE's cost-type contractors use commercial bills of lading.
(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.
In those instances where DOE cost-type 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).
(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, subchapter C.
This subpart sets forth the policy for issuance of certifications regarding Price-Anderson coverage of particular shipments of nuclear materials.
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.
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.
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.
Program Secretarial Officer (PSO) shall determine demilitarization requirements regarding combat material and military personal property using DoD 4160.21-M-1, Defense Demilitarization Manual as a guide.
(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.
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.
DOE screening period means the period of time that reportable existing personal property is screened throughout DOE for reutilization purposes and, for selected items, through the Used Laboratory Equipment Donation Program (LEDP).
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.
The Property Executive is designated as the DOE National Utilization Officer.
Program Secretarial Officer (PSO) 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.
(a) Personal property must be processed through DOE electronic internal screening prior to reporting excess personal property to GSA.
(b) An additional 30-day screening period shall be allocated for items eligible for screening by educational institutions through LEDP.
(c) Items in FSCG 66 (Instruments and Laboratory Equipment), 70 (General Purpose Information Processing Equipment (including firmware)), and 99 (Miscellaneous) are reportable.
(d) The Department of Energy National Utilization Officer (NUO) may authorize in exceptional or unusual cases when time is critical, screening of excess property may be accomplished by 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 shall not be conducted.
Nuclear-related and proliferation-sensitive property is not reportable and shall not be formally screened within DOE or reported to GSA.
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.
Excess or surplus hazardous personal property shall not be commingled with non-hazardous personal property while waiting disposition action.
(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 programs, 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.
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.
(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 proliferation-sensitive 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 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.
All IT 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 IT will be utilized and disposed in accordance with the provisions of the FPMR/FMR.
Personal property that is considered defective or unsafe must be mutilated prior to shipment for disposal.
(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.
(a)-(c) [Reserved]
(d) Program Secretarial Officer (PSO) shall ensure that required records are maintained in a current status.
(a)-(e) [Reserved]
(f) Program Secretarial Officer (PSO) shall ensure that the records required by 41 CFR 101-43.314(f) are maintained.
(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.
(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 in accordance with 41 CFR 102-38. Internal DOE personal property reports must be submitted to the Office of Management at the date determined by the Property Executive.
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.
Facility in standby means a complete plant or section of a plant, which is neither in service or declared excess.
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 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.
The Office of Management and Program Secretarial Officer (PSO) shall appoint officials to make required findings and reviews.
The Office of Management 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.
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.
Sales of surplus contractor inventory will be conducted by designated contractors when Program Secretarial Officer (PSO) 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.
The following clause shall be included in all sales invitations for bid:
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 provide to the appropriate party DOE's export control guidance if the property is resold or otherwise disposed.
(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.
(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.
(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]
(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
(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, Program Secretarial Officer (PSO) 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.
The reviewing authority may consist of one or more persons designated by the head of the field organization.
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.
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.
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.
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.
Classified property shall be made available for sale only after the declassification requirements of § 109-43.307-51 of this subpart have been met.
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.
IT shall be made available for sale only after the sanitizing and certification requirements of § 109-43.307-53 of this subpart have been met.
DOE offices shall submit to the Office of 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.
(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.
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/PA that property has no commercial value or the estimated cost of its continued care and handling would exceed the estimated proceeds from its sale.
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/PA shall review and coordinate on the findings.
The Office of Management and Program Secretarial Officer (PSO) are responsible for establishing a program for the recovery of precious metals.
The Office of Management shall be the precious metals recovery program monitor.
The Office of Management and Program Secretarial Officer (PSO) are responsible for the establishment and maintenance of a program for silver recovery from used hypo solution and scrap film.
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.
The report of negotiated sales shall be submitted by DOE offices to GSA, in accordance with 41 CFR 102-38.
(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.
This subpart sets forth policies and procedures governing the disposal of DOE-owned foreign excess and surplus personal property.
The policies and procedures contained in this subpart are issued pursuant to the provisions of the Federal Property and Administrative Services Act of 1949, former 40 U.S.C. et seq., 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 in accordance 41 CFR 102-36.
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.
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.
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 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 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 Office of International Affairs for review, coordination, and handling.
(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) Advance approval must be obtained from the State Department for the sale of 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. 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) All proposed sales, regardless of the total acquisition cost of 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.
(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 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 Office of International Affairs.
(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 Office of International Affairs.
(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.
(a) Proposed sales of foreign surplus personal property shall 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 121.1) 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) [Reserved]
(a) Except as set forth in paragraphs (a)(1) through (5) of this section, the requirements of FPMR/FMR part 101-46 and this part are not applicable to designated contractors. Designated contractors shall comply with the following FPMR/FMR requirements:
(1) 101-46.200;
(2) 101-46.201-1;
(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.
(a)-(c)(9) [Reserved]
(10) The Office of Management and Program Secretarial Officer (PSO) 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) Program Secretarial Officer (PSO) shall make the determination concerning demilitarization of combat material.
(a) [Reserved]
(b) The Office of Management and Program Secretarial Officer (PSO) for their respective organizations shall designate an official to make the certification concerning the exchange of historic items for historical preservation or display. .
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.
(a)-(c) [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.
(e) [Reserved]
(f) Transfer orders for reportable forfeited drug paraphernalia shall be forwarded through normal administrative channels for signature by the Property Executive and for subsequent forwarding to GSA for approval.
This part provides guidance on the policies, practices, and procedures for the disposal of DOE property under special legislative authorities.
The provisions of this part apply to direct DOE operations and to designated contractors only when specifically provided for in the appropriate subpart.
This subpart provides guidance on the granting of Laboratory Equipment Donation Program in the LEDP is limited to accredited, post graduate, degree granting institutions including universities, colleges, junior colleges, technical institutes, museums, or hospitals, located in the U.S. and interested in establishing or upgrading energy-oriented educational programs in the life, physical, and environmental sciences and in engineering is eligible to apply. An energy-oriented program is defined as an academic research activity dealing primarily or entirely in energy-related topics.
This subpart is applicable to DOE offices and designated contractors.
DOE, to encourage research and development in the field of energy, awards grants of excess Laboratory Equipment Donation Program to eligible institutions for use in energy-oriented educational programs. Under the Used Laboratory Equipment Donation Program (LEDP) 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.
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.
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.
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 Workforce Development for Teachers and Scientists (WDTS) and approved by the OPMO, are made available under the program.
Equipment which will not be granted include:
(a) Equipment intended by the DOE institution for use in contractual research projects.
(b) Furniture, such as desks, tables, chairs, typewriters, etc. (exception is such equipment that may be an essential component of and physically attached to an energy-related laboratory equipment system);
(c) General supplies.
(a) After DOE utilization screening through EADS, items eligible for LEDP grants are extracted from the EADS system and Office of Workforce Development for Teachers and Scientists (WDTS).
(b) Office of Workforce Development for Teachers and Scientists (WDTS) 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 institutions 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.
(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.
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.
The provisions of this subpart are applicable to DOE offices and designated contractors.
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.
Elementary and secondary schools means individual public or private educational institutions encompassing kindergarten through twelfth grade, as well as public school districts.
Eligible recipient means local elementary and secondary schools and nonprofit organizations.
Facilities under DOE Field Organization cognizance means national laboratories, production plants, and project sites managed and operated by DOE contractors or subcontractors.
(a) Education-related and research equipment will include, but is not limited to the following FSCGs:
(b) Other related equipment may be provided if deemed appropriate and approved by the Director, Office of Laboratory Policy and Infrastructure Management.
(a) Excess and/or surplus education-related 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 Office of Workforce Development for Teachers and Scientists (WDTS) 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.
(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) 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 Office of Science's Office of Workforce Development for Teachers and Scientists (WDTS) or the HCA or designee, as appropriate, and an appropriate official representing the eligible recipient.
(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 Office of Workforce Development for Teachers and Scientists (WDTS).
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.
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 DOE-owned 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.
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 Property Executive, 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;
(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.
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.
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.
(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).
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.
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.
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.
(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.
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.
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).
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.
(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
(b) Arrows printed in the margin of a page indicate material changed, deleted, or added by the EPPMR Transmittal Notice cited at the bottom of that page. (See GSA, FPMR Amendment Transmittal pages for illustrations.)
The FPMR apply to all EPA activities unless otherwise specified, or unless a deviation is approved.
(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.
(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.
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 Support Systems (DSSD) for review and consideration.
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.
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.
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).
The JPMR will be cited in accordance with the
This subpart sets forth general definitions of terms used throughout the JPMR and states responsibilities and authorities within the Department of Justice as they pertain to personal property management functions.
To procure, purchase, or obtain in any manner, except by lease, including transfer, donation or forfeiture, manufacture, or production at Government-owned plants or facilities.
The Department of Justice, including all its Bureaus and their respective field operations in all locations.
The Attorney General of the United States.
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.
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.
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.
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.
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.
The sum of all actions taken in providing buildings, equipment, supplies, and services to support program areas.
(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 Department-wide 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.
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.
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.
(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 Government-furnished personal property in contractors or grantees.
(m) Acquiring excess personal property from other bureaus and from other Federal agencies.
(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 Administration 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.
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.
(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).
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.
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.
(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 case-by-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.
(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 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 enforcement purposes, education, or otherwise.
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.”
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.
(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.
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.
(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:
(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.
(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.
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 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.
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.
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.
The Department shall review and, as necessary, revise the Seismic Safety Program once every three years from August 12, 1993.
Nothing in this subpart is intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the Department of Justice, its Seismic Safety Coordinators, its officers, or any employee of the Department.
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.
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.
Forfeiture is achieved by direction of the seizing bureau in lieu of the courts. The phrase shall be interpreted to mean by administrative process.
(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 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.
(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.
(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.
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.
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.
This subpart sets forth the policies in regard to proper claims for abandoned or other unclaimed property.
The official who has the authority to grant or deny the claim for the abandoned or other unclaimed property.
The person who submitted the claim for the abandoned or other unclaimed property.
The person who has primary and direct title to property (see 28 CFR 9.2(e)).
An individual, partnership, corporation, joint venture, or other entity capable of owning property (see 28 CFR 9.2(f)).
(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 denying 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.
(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.
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.
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.
(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.
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.
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.
(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, 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.
(a) Applicability. Except as provided in paragraph (b) of this section, this part applies to the following:
(1) The membership and operations of the FASC, including all Federal Government and contractor personnel supporting the FASC's operations;
(2) Submission and dissemination of supply chain risk information; and
(3) Recommendations for, issuance of, and associated procedures related to removal orders and exclusion orders.
(b) Clarification of scope. This part does not require the following:
(1) Mandatory submission of supply chain risk information by non-Federal entities; or
(2) The removal or exclusion of any covered article by non-Federal entities, except to the extent that an exclusion or removal order issued pursuant to subpart C of this part applies to prime contractors and subcontractors to Federal agencies.
For the purposes of this part:
Appropriate congressional committees and leadership means:
(1) The Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and
(2) The Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives.
Council or FASC means the Federal Acquisition Security Council.
Covered article means any of the following:
(1) Information technology, as defined in 40 U.S.C. 11101, including cloud computing services of all types;
(2) Telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(3) The processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program or subsequent U.S. Government program for controlling sensitive unclassified information; or
(4) Hardware, systems, devices, software, or services that include embedded or incidental information technology.
Covered procurement means:
(1) A source selection for a covered article involving either a performance specification, as provided in subsection (a)(3)(B) of 41 U.S.C. 3306, or an evaluation factor, as provided in subsection (b)(1)(A) of 41 U.S.C. 3306, relating to a supply chain risk, or where supply chain risk considerations are included in the executive agency's determination of whether a source is a responsible source;
(2) The consideration of proposals for and issuance of a task or delivery order for a covered article, as provided in 41 U.S.C. 4106(d)(3), where the task or delivery order contract includes a contract clause establishing a requirement relating to a supply chain risk;
(3) Any contract action involving a contract for a covered article where the contract includes a clause establishing requirements relating to a supply chain risk; or
(4) Any other procurement in a category of procurements determined appropriate by the Federal Acquisition Regulatory Council, with the advice of the FASC.
Covered procurement action means any of the following actions, if the action takes place in the course of conducting a covered procurement:
(1) The exclusion of a source that fails to meet qualification requirements established under 41 U.S.C. 3311, for the purpose of reducing supply chain risk in the acquisition or use of covered articles;
(2) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order;
(3) The determination that a source is not a responsible source, based on considerations of supply chain risk; or
(4) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor to exclude a particular source from consideration for a subcontract under the contract.
Executive agency means:
(1) An executive department specified in 5 U.S.C. 101;
(2) A military department specified in 5 U.S.C. 102;
(3) An independent establishment as defined in 5 U.S.C. 104(1); and
(4) A wholly owned Government corporation fully subject to chapter 91 of title 31, United States Code.
Exclusion order means an order issued pursuant to 41 U.S.C. 1323(c)(5) that requires the exclusion of one or more sources or covered articles from executive agency procurement actions.
Information and communications technology means:
(1) Information technology as defined in 40 U.S.C. 11101;
(2) Information systems, as defined in 44 U.S.C. 3502; and
(3) Telecommunications equipment and telecommunications services, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
Information technology has the definition provided in 40 U.S.C. 11101.
Intelligence Community includes the following:
(1) The Office of the Director of National Intelligence;
(2) The Central Intelligence Agency;
(3) The National Security Agency;
(4) The Defense Intelligence Agency;
(5) The National Geospatial-Intelligence Agency;
(6) The National Reconnaissance Office;
(7) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs;
(8) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Coast Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy;
(9) The Bureau of Intelligence and Research of the Department of State;
(10) The Office of Intelligence and Analysis of the Department of the Treasury;
(11) The Office of Intelligence and Analysis of the Department of Homeland Security;
(12) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the Intelligence Community.
National security system has the definition provided in 44 U.S.C. 3552.
Removal order means an order issued pursuant to 41 U.S.C. 1323(c)(5) that requires the removal of one or more covered articles from executive agency information systems.
Responsible source means a responsible prospective contractor and subcontractors, at any tier, as defined in part 9 of the Federal Acquisition Regulation (48 CFR part 9).
Source means a non-Federal supplier, or potential supplier, of products or services, at any tier.
Supply chain risk means the risk that any person may sabotage, maliciously introduce unwanted functionality, extract data, or otherwise manipulate the design, integrity, manufacturing, production, distribution, installation, operation, maintenance, disposition, or retirement of covered articles so as to surveil, deny, disrupt, or otherwise manipulate the function, use, or operation of the covered articles or information stored or transmitted by or through covered articles.
Supply chain risk information includes, but is not limited to, information that describes or identifies:
(1) Functionality and features of covered articles, including access to data and information system privileges;
(2) The user environment where a covered article is used or installed;
(3) The ability of a source to produce and deliver covered articles as expected;
(4) Foreign control of, or influence over, a source or covered article (e.g., foreign ownership, personal and professional ties between a source and any foreign entity, legal regime of any foreign country in which a source is headquartered or conducts operations);
(5) Implications to government mission(s) or assets, national security, homeland security, or critical functions associated with use of a source or covered article;
(6) Vulnerability of Federal systems, programs, or facilities;
(7) Market alternatives to the covered source;
(8) Potential impact or harm caused by the possible loss, damage, or compromise of a product, material, or service to an organization's operations or mission;
(9) Likelihood of a potential impact or harm, or the exploitability of a system;
(10) Security, authenticity, and integrity of covered articles and their supply and compilation chain;
(11) Capacity to mitigate risks identified;
(12) Factors that may reflect upon the reliability of other supply chain risk information; and
(13) Any other considerations that would factor into an analysis of the security, integrity, resilience, quality, trustworthiness, or authenticity of covered articles or sources.
(a) Composition. The following agencies and agency components shall be represented on the FASC:
(1) Office of Management and Budget;
(2) General Services Administration;
(3) Department of Homeland Security;
(4) Cybersecurity and Infrastructure Security Agency;
(5) Office of the Director of National Intelligence;
(6) National Counterintelligence and Security Center;
(7) Department of Justice;
(8) Federal Bureau of Investigation;
(9) Department of Defense;
(10) National Security Agency;
(11) Department of Commerce;
(12) National Institute of Standards and Technology; and
(13) Any other executive agency, or agency component, as determined by the Chairperson of the FASC.
(b) FASC information requests. The FASC may request such information from executive agencies as is necessary for the FASC to carry out its functions, including evaluation of sources and covered articles for purposes of determining whether to recommend the issuance of removal or exclusion orders, and the receiving executive agency shall provide the requested information to the fullest extent possible.
(c) Consultation and coordination with other councils. The FASC will consult and coordinate, as appropriate, with other relevant councils and interagency committees, including the Chief Information Officers Council, the Chief Acquisition Officers Council, the Federal Acquisition Regulatory Council, and the Committee on Foreign Investment in the United States, with respect to supply chain risks posed by the acquisition and use of covered articles.
(d) Program office and committees. The FASC may establish a program office and any committees, working groups, or other constituent bodies the FASC deems appropriate, in its sole and unreviewable discretion, to carry out its functions. Such a committee, working group, or other constituent body is authorized to perform any function lawfully delegated to it by the FASC.
The Act requires the FASC to identify an appropriate executive agency—the FASC's information sharing agency (ISA)—to perform administrative information sharing functions on behalf of the FASC, as provided at 41 U.S.C. 1323(a)(3). The ISA facilitates and provides administrative support to a FASC supply chain and risk management Task Force, and serves as the liaison to the FASC on behalf of the Task Force, as the Task Force develops the processes under which the functions described in 41 U.S.C. 1323(a)(3) are implemented on behalf of the FASC. The Department of Homeland Security (DHS), acting primarily through the Cybersecurity and Infrastructure Security Agency, is named the appropriate executive agency to serve as the FASC's ISA. The ISA's administrative functions shall not be construed to limit or impair the authority or responsibilities of any other Federal agency with respect to information sharing.
(a) Submission of information. Information should be submitted to the FASC by sending it to the ISA, acting on behalf of the FASC.
(b) Receipt and dissemination functions. The ISA, the Task Force, and support personnel at the FASC member agencies will carry out administrative information receipt and dissemination functions on behalf of the FASC.
(c) Interagency supply chain risk management task force. The FASC may identify members for an interagency supply chain risk management (SCRM) task force (the Task Force) to assist the FASC with implementing its information sharing, analysis, and risk assessment functions as described in 41 U.S.C. 1323(a)(3). The purpose of the Task Force is to allow the FASC to capitalize on the various supply chain risk management and information sharing efforts across the Federal enterprise. This Task Force includes technical experts in SCRM and related interdisciplinary experts from agencies identified in § 201-1.102 and any other agency, or agency component, the FASC Chairperson identifies. The ISA facilitates the efforts of, and provide administrative support to, the Task Force and periodically reports to the FASC on Task Force efforts.
(d) Processes and procedures. The FASC will adopt and, as it deems necessary, revise:
(1) Processes and procedures describing how the ISA operates and supports FASC recommendations issued pursuant to 41 U.S.C. 1323(c);
(2) Processes and procedures describing how Federal and non-Federal entities must submit supply chain risk information (both mandatory and voluntary submissions of information) to the FASC, including any necessary requirements for information handling, protection, and classification;
(3) Processes and procedures describing the requirements for the dissemination of classified, controlled unclassified, or otherwise protected information submitted to the FASC by executive agencies;
(4) Processes and procedures describing how the ISA facilitates the sharing of information to support supply chain risk analyses under 41 U.S.C. 1326, recommendations issued by the FASC, and covered procurement actions under 41 U.S.C. 4713;
(5) Processes and procedures describing how the ISA will provide to the FASC and to executive agencies on behalf of the FASC information regarding covered procurement actions and any issued removal or exclusion orders; and
(6) Any other processes and procedures determined by the FASC Chairperson.
(a) Requirements for submission of information. All submissions of information to the FASC must be accomplished through the processes and procedures approved by the FASC pursuant to § 201-1.200. Any information submission to the FASC must comply with information sharing protections described in this subpart and be consistent with applicable law and regulations.
(b) Mandatory information submission requirements. Executive agencies must expeditiously submit supply chain risk information to the ISA in accordance with guidance approved by the FASC pursuant to § 201-1.200 when:
(1) The FASC requests information relating to a particular source, covered article, or covered procurement; or
(2) An executive agency has determined there is a reasonable basis to conclude that a substantial supply chain risk exists in connection with a source or covered article. In such instances, the executive agency shall provide the FASC with relevant information concerning the source or covered article, including:
(i) Supply chain risk information identified in the course of the agency's activities in furtherance of identifying, mitigating, or managing its supply chain risk;
(ii) Supply chain risk information regarding any covered procurement actions by the agency under 41 U.S.C. 4713; and
(iii) Supply chain risk information regarding any orders issued by the agency under 41 U.S.C. 1323.
(c) Voluntary information submission. All Federal and non-Federal entities may voluntarily submit to the FASC information relevant to SCRM, covered articles, sources, or covered procurement actions.
(d) Information protections—Federal agency submissions. To the extent that the law requires the protection of information submitted to the FASC, agencies providing such information must ensure that it bears proper markings to indicate applicable handling, dissemination, or use restrictions. Agencies shall also comply with any relevant handling, dissemination, or use requirements, including but not limited to the following:
(1) For classified information, the transmitting agency shall ensure that information is provided to designated ISA personnel who have an appropriate security clearance and a need to know the information. The ISA, Task Force, and the FASC will handle such information consistent with the applicable restrictions and the relevant processes and procedures adopted pursuant to § 201-1.200.
(2) With respect to controlled unclassified or otherwise protected unclassified information, the transmitting agency, the FASC, the ISA, and the Task Force will handle the information in a manner consistent with the markings applied to the information and the relevant processes and procedures adopted pursuant to § 201-1.200.
(e) Information protections—submissions by non-Federal entities. Information voluntarily submitted to the FASC by a non-Federal entity shall be subject to the following provisions:
(1) Supply chain risk information not otherwise publicly or commercially available that is voluntarily submitted to the FASC by non-Federal entities and marked “Confidential and Not to Be Publicly Disclosed” will not be released to the public, including pursuant to a request under 5 U.S.C. 552, except to the extent required by law.
(2) Notwithstanding paragraph (e)(1) of this section, the FASC may, to the extent permitted by law, and subject to appropriate handling and confidentiality requirements as determined by the FASC, disclose the supply chain risk information referenced in paragraph (e)(1) in the following circumstances:
(i) Pursuant to any administrative or judicial proceeding;
(ii) Pursuant to a request from any duly authorized committee or subcommittee of Congress;
(iii) Pursuant to a request from any domestic governmental entity or any foreign governmental entity of a United States ally or partner, but only to the extent necessary for national security purposes;
(iv) Where the non-Federal entity that submitted the information has consented to disclosure; or
(v) For any other purpose authorized by law.
(3) This paragraph (e) shall continue to apply to supply chain risk information referenced in paragraph (e)(1) even after the FASC issues a recommendation for exclusion or removal pursuant to 41 U.S.C. 1323.
(f) Dissemination of information by the FASC. The FASC may, in its sole discretion, disclose its recommendations and any supply chain risk information relevant to those recommendations to Federal or non-Federal entities if the FASC determines that such sharing may facilitate identification or mitigation of supply chain risk, and disclosure is consistent with the following paragraphs:
(1) The FASC may maintain its recommendations and any supply chain risk information as nonpublic, to the extent permitted by law, or release such information to impacted entities and appropriate stakeholders. The FASC shall have discretion to determine the circumstances under which information will be released, as well as the timing of any such release, the scope of the information to be released, and the recipients to whom information will be released.
(2) Any release by the FASC of recommendations or supply chain risk information will be in accordance title 41 U.S.C. 1323 and the provisions of this subpart.
(3) The FASC will not release a recommendation to a non-Federal entity, other than a source named in the recommendation, unless an exclusion or removal order has been issued based on that recommendation, and the named source has been notified.
(4) The FASC (including the ISA, Task Force, and any other FASC constituent bodies) shall comply with applicable limitations on dissemination of supply chain risk information submitted pursuant to this subpart, including but not limited to the following restrictions:
(i) Controlled Unclassified Information, such as Law Enforcement Sensitive, Proprietary, Privileged, or Personally Identifiable Information, may only be disseminated in compliance with the restrictions applicable to the information and in accordance with the FASC's processes and procedures for disseminating controlled unclassified information as required by this part.
(ii) Classified Information may only be disseminated consistent with the restrictions applicable to the information and in accordance with the FASC's processes and procedures for disseminating classified information as required by this part.
(a) Referral procedure. The FASC may commence an evaluation of a source or covered article in any of the following ways:
(1) Upon the referral of the FASC or any member of the FASC;
(2) Upon the request, in writing, of the head of an executive agency or a designee, accompanied by a submission of relevant information; or
(3) Based on information submitted to the FASC by any Federal or non-Federal entity that the FASC deems, in its discretion, to be credible.
(b) Relevant factors. In evaluating sources and covered articles, the FASC will analyze available information and consider, as appropriate, any relevant factors contained in the following non-exclusive list:
(1) Functionality and features of the covered article, including the covered article's or source's access to data and information system privileges;
(2) The user environment in which the covered article is used or installed;
(3) Security, authenticity, and integrity of covered articles and associated supply and compilation chains, including for embedded, integrated, and bundled software;
(4) The ability of the source to produce and deliver covered articles as expected;
(5) Ownership of, control of, or influence over the source or covered article(s) by a foreign government or parties owned or controlled by a foreign government, or other ties between the source and a foreign government, which may include the following considerations:
(i) Whether a Federal agency has identified the country as a foreign adversary or country of special concern;
(ii) Whether the source or its component suppliers have headquarters, research, development, manufacturing, testing, packaging, distribution, or service facilities or other operations in a foreign country, including a country of special concern or a foreign adversary;
(iii) Personal and professional ties between the source—including its officers, directors or similar officials, employees, consultants, or contractors—and any foreign government; and
(iv) Laws and regulations of any foreign country in which the source has headquarters, research development, manufacturing, testing, packaging, distribution, or service facilities or other operations.
(6) Implications for government missions or assets, national security, homeland security, or critical functions associated with use of the source or covered article;
(7) Potential or existing threats to or vulnerabilities of Federal systems, programs or facilities, including the potential for exploitability;
(8) Capacity of the source or the U.S. Government to mitigate risks;
(9) Credibility of and confidence in available information used for assessment of risk associated with proceeding, with using alternatives, and/or with enacting mitigation efforts;
(10) Any transmission of information or data by a covered article to a country outside of the United States; and
(11) Any other information that would factor into an assessment of supply chain risk, including any impact to agency functions, and other information as the FASC deems appropriate.
(c) Foreign Ownership. Nothing in this section shall be construed to authorize the issuance of an exclusion or removal order based solely on the fact of the foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government.
(d) Due Diligence. As part of the analysis performed pursuant to paragraph (b) of this section, the FASC will conduct appropriate due diligence. Such due diligence may include, but need not be limited to, the following actions:
(1) Reviewing any information the FASC considers appropriate; and
(2) Assessing the reliability of the information considered.
(e) Consultation with NIST. NIST will participate in FASC activities as a member and will advise the FASC on NIST standards and guidelines issued under 40 U.S.C. 11331.
(a) Content of recommendation. The FASC shall include the following in any recommendation for the issuance of an exclusion or removal order made to the Secretary of Homeland Security, Secretary of Defense, and/or Director of National Intelligence:
(1) Information necessary to positively identify any source or covered article recommended for exclusion or removal;
(2) Information regarding the scope and applicability of the recommended exclusion or removal order, including whether the order should apply to all executive agencies or a subset of executive agencies;
(3) A summary of the supply chain risk assessment reviewed or conducted in support of the recommended exclusion or removal order, including significant conflicting or contrary information, if any;
(4) A summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;
(5) A description of the actions necessary to implement the recommended exclusion or removal order; and,
(6) Where practicable, in the FASC's sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC's rescission of the recommendation.
(b) Information sharing in the absence of a recommendation: If the FASC decides not to issue a recommendation, information received and analyzed pursuant to the procedures in this section may be shared, as appropriate, in accordance with subpart B of this part.
(a) Notice to source. The FASC shall provide a notice of its recommendation to any source named in the recommendation.
(b) Content of notice. The notice under paragraph (a) of this section shall advise the source:
(1) That a recommendation has been made;
(2) Of the criteria the FASC relied upon and, to the extent consistent with national security and law enforcement interests, the information that forms the basis for the recommendation;
(3) That, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation;
(4) Of the procedures governing the review and possible issuance of an exclusion or removal order; and
(5) Where practicable, in the FASC's sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC rescinding the recommendation.
(c) Submission of response by source and potential rescission of recommendation. Subject to any applicable procedures or processes developed by the FASC, and in accordance with any instructions provided to the source pursuant to paragraph (b) of this section, a source may submit to the ISA information or argument in opposition to a FASC recommendation. If a source submits information or argument in opposition:
(1) The ISA will convey the source's submission to the FASC and any appropriate constituent bodies and to the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence.
(2) Upon receipt of such information or argument in opposition, the FASC may rescind the recommendation if the FASC, consistent with the sole and unreviewable discretion provided in paragraph (b)(5) of this section:
(i) Determines that the source has undertaken sufficient mitigation to reduce supply chain risk to an acceptable level; or
(ii) Decides that other grounds justify rescission.
(3) In the event that the FASC rescinds its recommendation, the ISA will communicate that decision to the source. The ISA will notify Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence of the rescission, and provide those officials with a summary of the FASC's reasoning.
(d) Confidentiality of notice issued to source. U.S. Government personnel shall:
(1) Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph (a) of this section until an exclusion order or removal order is issued and the source has been notified; and
(2) Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph (a) of this section if the FASC rescinds the associated recommendation or the Secretary of Homeland Security, Secretary of Defense, and Director of National Intelligence, as applicable, decide not to issue the recommended order.
(e) Confidentiality of information submitted by source. Information not otherwise publicly or commercially available that is submitted to the FASC by a source pursuant to paragraph (c) of this section and marked “Confidential and Not to Be Publicly Disclosed” will not be released to the public, including pursuant to a request under 5 U.S.C. 552, except to the extent required by law. That general rule notwithstanding, such information may be released as provided in § 201-1.201(d)(2).
(a) Consideration of recommendation and issuance of orders. The Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence shall each review the FASC's recommendation, any accompanying information and materials provided pursuant to § 201-1.301, and any information submitted by a source pursuant to § 201-1.302, and determine whether to issue an exclusion or removal order based upon the recommendation.
(b) Administrative record. The administrative record for judicial review of an exclusion or removal order issued pursuant to 41 U.S.C. 1323(c)(6) shall, subject to the limitations set forth in 41 U.S.C. 1327(b)(4)(B)(ii) through (v), consist only of:
(1) The recommendation issued pursuant to 41 U.S.C. 1323(c)(2);
(2) The notice of recommendation issued pursuant to 41 U.S.C. 1323(c)(3);
(3) Any information and argument in opposition to the recommendation submitted by the source pursuant to 41 U.S.C. 1323(c)(3)(C);
(4) The exclusion or removal order issued pursuant to 41 U.S.C. 1323(c)(5), and any information or materials relied upon by the deciding official in issuing the order; and
(5) The notification to the source issued pursuant to 41 U.S.C. 1323(c)(6)(A).
(6) Other information. Other information or material collected by, shared with, or created by the FASC or its member agencies shall not be included in the administrative record unless the deciding official relied on that information or material in issuing the exclusion or removal order.
(d) Issuing officials. Exclusion or removal orders may be issued as follows:
(1) The Secretary of Homeland Security may issue removal or exclusion orders applicable to civilian agencies, to the extent not covered by paragraph (d)(2) or (3) of this section.
(2) The Secretary of Defense may issue removal or exclusion orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems.
(3) The Director of National Intelligence may issue removal or exclusion orders applicable to the Intelligence Community and sensitive compartmented information systems, to the extent not covered by paragraph (d)(2) of this section.
(4) The officials identified in paragraphs (d)(1) through (3) of this section may not delegate the authority to issue exclusion and removal orders to an official below the level one level below the Deputy Secretary or Principal Deputy Director level, except that the Secretary of Defense may delegate authority for removal orders to the Commander of U.S. Cyber Command, who may not re-delegate such authority to an official below the level of the Deputy Commander.
(e) Applicability of issued orders to non-Federal entities. An exclusion or removal order may affect non-Federal entities, including as follows:
(1) An exclusion order may require the exclusion of sources or covered articles from any executive agency procurement action, including but not limited to source selection and consent for a contractor to subcontract. To the extent required by the exclusion order, agencies shall exclude the source or covered articles, as applicable, from being supplied by any prime contractor and subcontractor at any tier.
(2) A removal order may require removal of a covered article from an executive agency information system owned and operated by an agency; from an information system operated by a contractor on behalf of an agency; and from other contractor information systems to the extent that the removal order applies to contractor equipment or systems within the scope of “information technology,” as defined in § 201-1.101.
(f) Notification of order issuance. The official who issues an exclusion or removal order:
(1) Shall, upon issuance of an exclusion or removal order pursuant to paragraph (a) of this section:
(i) Notify any source named in the order of the order's issuance, and to the extent consistent with national security and law enforcement interests, of the information that forms the basis for the order;
(ii) Provide classified or unclassified notice of the order to the appropriate congressional committees and leadership;
(iii) Provide the order to the ISA; and
(iv) Notify the Interagency Suspension and Debarment Committee of the order.
(2) May provide a copy of the order to other persons, including through public disclosure, as the official deems appropriate and to the extent consistent with national security and law enforcement interests.
(g) Removal from Federal supply contracts. If the officials identified in paragraphs (d)(1) through (3) of this section, or their delegates, issue orders collectively resulting in a Government-wide exclusion, the Administrator for General Services and officials at other executive agencies responsible for management of the Federal Supply Schedules, Government-wide acquisition contracts, and multi-agency contracts shall facilitate implementation of such orders by removing the covered articles or sources identified in the orders from such contracts.
(h) Annual review of issued orders. The officials identified in paragraphs (d)(1) through (3) of this section shall review all issued exclusion and removal orders not less frequently than annually pursuant to procedures established by the FASC.
(i) Modification or rescission of issued orders. The officials identified in paragraphs (d)(1) through (3) of this section may modify or rescind an issued exclusion or removal order, provided that a modified order shall not apply more broadly than the order before the modification.
(a) Agency compliance. Executive agencies shall:
(1) Comply with exclusion and removal orders issued pursuant to § 201-1.303 and applicable to their agency, as required by 41 U.S.C. 1323(c)(7) and 44 U.S.C. 3554(a)(1)(B); and
(2) Comply with handling and/or dissemination restrictions placed upon the order or its contents by the issuing official.
(b) Exceptions to issued exclusion and removal orders. An executive agency required to comply with an exclusion or removal order may submit to the issuing official a request to be excepted from the order's provisions. The requesting agency:
(1) May ask to be excepted from some or all of the order's requirements. The agency may ask, for example, that the order not apply to the agency, to specific actions of the agency, or to actions of the agency for a period of time before compliance with the order is practicable.
(2) Shall submit the request in writing and include in it all necessary information for the issuing official to review and evaluate it, including—
(i) Identification of the applicable exclusion order or removal order;
(ii) A description of the exception sought, including, if limited to only a portion of the order, a description of the order provisions from which an exception is sought;
(iii) The name or a description sufficient to identify the covered article or the product or service provided by a source that is subject to the order from which an exception is sought;
(iv) Compelling justification for why an exception should be granted, such as the impact of the order on the agency's ability to fulfill its mission- critical functions, or considerations related to the national interest, including national security reviews, national security investigations, or national security agreements;
(v) Any alternative mitigations to be undertaken to reduce the risks addressed by the exclusion or removal order; and
(vi) Any other information requested by the issuing official.
Accompanied baggage. Government property and personal property of the traveler necessary for official travel.
Accommodation Party. An individual who signs an employee's financing agreement (e.g., a mortgage) to lend that individual's name (i.e., credit) to the arrangement.
Actual expense. Payment of authorized actual expenses incurred, up to the limit prescribed by the Administrator of General Services or other agency, as appropriate. Entitlement to reimbursement is contingent upon entitlement to per diem, and is subject to the same definitions and rules governing per diem.
Agency. (1) For purposes of temporary duty (TDY) allowances under chapter 301 of this subtitle, agency means:
(i) An Executive agency, as defined in 5 U.S.C. 105 (except for Government-Controlled Corporations, i.e., mixed ownership Government Corporation as defined in 31 U.S.C. 9101);
(ii) A military department;
(iii) An office, agency, or other establishment in the legislative branch; and
(iv) The Government of the District of Columbia.
(2) However, for purposes of TDY allowances, the term agency does not include:
(i) A Government-controlled corporation;
(ii) A Member of Congress;
(iii) An office or committee of either House of Congress or of the two Houses; or
(iv) An office, agency or other establishment in the judicial branch.
(3) For purposes of chapter 302 of this subtitle, agency means:
(i) An executive agency as defined in 5 U.S.C. 105 (an executive department, an independent establishment, the Government Accountability Office, or a wholly owned Government corporation as defined in section 101 of the Government Corporation Control Act, as amended (31 U.S.C. 9101), but excluding a Government controlled corporation);
(ii) A military department;
(iii) A court of the United States;
(iv) The Administrative Office of the United States Courts;
(v) The Federal Judicial Center;
(vi) The Library of Congress;
(vii) The United States Botanic Garden;
(viii) The Government Printing Office; and
(ix) The District of Columbia.
Aircraft management office. An agency component that has management control of Federal aircraft used by the agency or of aircraft hired as commercial aviation services (CAS).
Approved accommodation. Any place of public lodging that is listed on the national master list of approved accommodations. The national master list of all approved accommodations is compiled and periodically updated by the Federal Emergency Management Agency (FEMA). The list is available on the U.S. Fire Administration's website at https://apps.usfa.fema.gov/hotel/.
Automated Relocation Management System. An automated relocation management system is a system that integrates into a single, electronic environment, information related to all aspects of employee relocation.
Coach class. The class of accommodation that is normally the lowest class of fare offered by common carriers regardless of terminology used. For reference purposes only, coach class may also be referred to as tourist class, economy class, steerage, or standard class.
(1) If an airline flight has only two seating sections available but equips both with one type of seating, (i.e., seating girth and pitch are the same in both sections of the aircraft), and the seats in the front of the aircraft are fare coded as full fare economy class, and only restricted economy fares are available in the back of the aircraft, then the entire aircraft is to be classified as coach class.
(2) Coach class seating upgrade options are seat choices with increased amenities or services within the coach class seating area that are available for a fee, and are not considered a new or higher class of accommodation from coach as the seat is lower than other than coach class accommodations in terms of cost and amenities (e.g., seating girth and pitch, priority boarding, luggage allowance, expedited food/drink service). Use of upgraded coach class seating options is generally a traveler's personal choice and therefore is at the traveler's personal expense. However, the agency approving official may approve reimbursement of the additional seat choice fee according to part 301-13 of this subtitle or when determined by the agency to be advantageous to the Government.
Commercial Aviation Services (CAS). CAS include, for the exclusive use of an executive agency—
(1) Leased aircraft;
(2) Chartered or rented aircraft;
(3) Commercial contracts for full aviation services (i.e., aircraft plus related aviation services) or acquisition of full services through inter-service support agreements (ISSA) with other agencies; or
(4) Related services (i.e., services but not aircraft) obtained by commercial contract or ISSA, except those services acquired to support Federal aircraft.
Common carrier. Private sector supplier of air, rail, bus, ship, or other transit system.
Commuted rate. A price rate used to calculate a set amount to be paid to an employee for the transportation and temporary storage of their household goods. It includes cost of line-haul transportation, packing/unpacking, crating/uncrating, drayage incident to transportation and other accessorial charges and costs of temporary storage within applicable weight limit for storage including handling in/out charges and necessary drayage.
Conference. A meeting, retreat, seminar, symposium or event that involves attendee travel. The term “conference” also applies to training activities that are considered to be conferences under 5 CFR 410.404.
Continental United States (CONUS). The 48 contiguous States and the District of Columbia.
Contract carrier. U.S. certificated air carriers which are under contract with the Government to furnish Federal employees and other persons authorized to travel at Government expense with passenger transportation service. This also includes the General Services Administration's (GSA) scheduled airline passenger service between selected U.S. cities/airports and between selected U.S. and international cities/airports at reduced fares.
Contract City Pair Program. A mandatory use (see § 301-10.110 of this subtitle for required users) Government program that provides commercially available scheduled air passenger transportation services to persons authorized to travel directly at the Government's expense. The City Pair Program offers negotiated firm-fixed-price fares on one-way routes between airports that apply in either direction of travel. Fares may be issued using one of the following fare types, or others that the contract City Pair Program may solicit:
(1) Capacity-controlled coach class contract fare (_CA). A contract City Pair Program coach class fare that is less expensive than the unrestricted coach class contract fare (YCA), but has limited inventory availability, meaning, once the flight reaches a certain capacity, _CA fares may no longer be available for booking. Unlike YCA fares, _CA fares are restricted by the availability of seats. Accordingly, early booking may increase the likelihood of booking a _CA fare.
(2) Unrestricted coach class contract fare (YCA). A contract City Pair Program coach class fare that is more expensive than a _CA fare, but offers last seat (inventory) availability (unless a flight is already sold out), meaning, as long as coach class inventory is available to sell on the flight, the Government traveler can purchase it.
(3) Contract business fare (_CB). Contract fare offered by carriers in some domestic and international line item markets for business class service.
(4) Contract premium economy fare (_CP). Contract fare offered by carriers in international line items markets for premium economy service. This is a separate class of service from coach class.
Note 1 to definition of “Contract City Pair Program”:
For _CA, _CB, and _CP fares, the first character of the three character fare basis code varies by airline.
Crewmember. A person assigned to operate or assist in operating an aircraft. Performs 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). If a crewmember is on board for the purpose of travel (i.e., being transported from point to point) that crewmember must be authorized to travel in accordance with rules in §§ 301-10.260 through 301-10.265 and §§ 301-70.800 through 301-70.907 of this subtitle.
Dependent. An immediate family member of the employee.
Disposable pay. The part of the employee's compensation remaining after the deduction of any amounts required by law to be withheld. These deductions do not include discretionary deductions such as savings bonds, charitable contributions, etc. Deductions may be made from any type of pay, e.g., basic pay, special pay, retirement pay, or incentive pay.
Domestic partner. An adult in a domestic partnership with an employee of the same-sex.
Domestic partnership. A committed relationship between two adults of the same sex, in which they—
(1) Are each other's sole domestic partner and intend to remain so indefinitely;
(2) Maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);
(3) Are at least 18 years of age and mentally competent to consent to contract;
(4) Share responsibility for a significant measure of each other's financial obligations, this is not to be interpreted as excluding partnerships where one partner stays at home while the other partner is the primary breadwinner;
(5) Are not married or joined in a civil union to anyone else;
(6) Are not a domestic partner of anyone else;
(7) Are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which the domestic partnership was formed;
(8) Are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish that an individual is in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. 1001, and that the method for securing such certification, if required, shall be determined by the agency;
(9) Are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership; and
(10) Certify that they would marry but for the failure of their state or other jurisdiction (or foreign country) of residence to permit same-sex marriage. Duplicate reimbursement disclosure statement. A duplicate reimbursement disclosure statement is a written statement signed by the employee and submitted to the agency. It states that the employee and/or their immediate family have not accepted, and will not accept, duplicate reimbursement for relocation expenses. Furthermore, it states that, to the best of the employee's knowledge, no third party has accepted duplicate reimbursement for their relocation expenses. The duplicate reimbursement disclosure statement must be incorporated into the employee's service agreement.
E-Gov Travel Service (ETS). The Government-contracted, end-to-end travel and expense management service that automates and consolidates the Federal travel process in a self-service environment, covering all aspects of official travel, including travel planning, authorization, reservations, ticketing, expense reimbursement, and travel management reporting.
Employee. An employee for purposes of TDY allowances under chapter 301 of this subtitle is:
(1) An individual employed by an agency, regardless of status or rank;
(2) An individual employed intermittently in Government service as an expert or consultant and paid on a daily when-actually-employed (WAE) basis; or
(3) An individual serving without pay or at $1 a year (also referred to as “invitational traveler”).
Employee with a disability (also see Special needs). (1) An employee who has a disability as defined in paragraph (2) of this definition and is otherwise generally covered under the Rehabilitation Act of 1973, as amended (29 U.S.C. 701-797b).
(2) Disability with respect to an employee, means:
(i) Having a physical or mental impairment that substantially limits one or more major life activities;
(ii) Having a record of such an impairment;
(iii) Being regarded as having such an impairment; but
(iv) Does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
(3) Physical or mental impairment means:
(i) Any physiological disorder or condition; or
(ii) Any mental or psychological disorder.
(4) Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
(5) Has a record of such an impairment means the employee has a history of, or has been classified as having, a mental or physical impairment that substantially limits one or more major life activities.
(6) Is regarded as having such an impairment means the employee has:
(i) A physical or mental impairment that does not substantially limit major life activities but the impairment is treated by the agency as constituting such a limitation;
(ii) A physical or mental impairment that substantially limits major life activities as a result of the attitudes of others toward such an impairment; or
(iii) None of the impairments defined under “physical or mental impairment” in paragraph (3) of this definition, but is treated by the employing agency as having a substantially limiting impairment.
Executive agency. An entity of the executive branch that is an “executive agency” as defined in 5 U.S.C. 105.
Extended storage. Storage of household goods while an employee is assigned to an official station or post of duty to which the employee is not authorized to take or unable to use the household goods or is authorized in the public interest. Also referred to as non-temporary storage.
Extra-fare train. A train that operates at an increased fare due to the extra performance of the train, i.e., faster speed or fewer stops, or both.
Family (see Immediate family).
Federal traveler. For the purposes of §§ 301-10.260 through 301-10.265 and 301-70.800 through 301-70.907 of this subtitle, a person who travels on a Government aircraft and who is either—
(1) A civilian employee in the Government service;
(2) A member of the uniformed or foreign services of the United States Government; or
(3) A contractor working under a contract with an executive agency.
Foreign air carrier. An air carrier who is not holding a certificate issued by the United States under 49 U.S.C. 41102.
Fuel. The energy source needed to power a vehicle, e.g., petroleum, hydrogen, propane, and electricity.
Full coach fare. The price of a coach fare available to the general public on a scheduled air carrier between the day that the travel was planned and the day the travel occurred.
Government aircraft. An aircraft that is operated for the exclusive use of an executive agency and is a—
(1) Federal aircraft, which an executive agency owns (i.e., holds title to) or borrows for any length of time under a bailment or equivalent loan agreement. See chapter 102 of this title for definition of all terms related to Federal aircraft; or
(2) Commercial aircraft hired as commercial aviation services (CAS), which an executive agency—
(i) Leases or lease-purchases with the intent to take title;
(ii) Charters or rents; or
(iii) Hires as part of a full-service contract or ISSA.
Government contractor-issued individually billed travel charge card. A Government contractor-issued charge card used by authorized individuals to pay for official travel and transportation related expenses for which the contractor bills the employee.
Government-furnished automobile. An automobile (or “light truck,” as defined in chapter 102 of this title including vans and pickup trucks) that is:
(1) Owned by an agency;
(2) Assigned or dispatched to an agency from GSA Fleet; or
(3) Leased by the Government for a period of 120 days or longer from a commercial source.
Government-furnished vehicle. A Government-furnished automobile or a Government aircraft.
Government Transportation Request (GTR) (Optional Form 1169). A Government document used to procure common carrier transportation services. The document obligates the Government to pay for transportation services provided.
Household goods (HHG). Property, unless specifically excluded, associated with the home and all personal effects belonging to an employee and immediate family members on the effective date of the employee's change of official station orders (the day the employee reports for duty at the new official station) that legally may be accepted and transported by a commercial HHG carrier.
(1) HHG also includes:
(i) Professional books, papers, and equipment (PBP&E).
(ii) Spare parts of a POV (see definition of POV in this section) and a pickup truck tailgate when removed.
(iii) Integral or attached vehicle parts that must be removed due to high vulnerability to pilferage or damage (e.g., seats, tops, wench, spare tire, portable auxiliary gasoline can(s) and miscellaneous associated hardware).
(iv) Consumable goods for employees assigned to locations where the Department of State has determined that such goods are necessary.
(v) Vehicles other than POVs (such as motorcycles, mopeds, jet skis, snowmobiles, golf carts, boats (e.g., boat, sailboat, canoe, skiff, rowboat, dinghies, sculls and kayak, mounted or unmounted on trailers)) of reasonable size.
(vi) Ultralight vehicles (defined in 14 CFR part 103 as being single occupant, for recreation or sport purposes, weighing less than 155 pounds if unpowered or less than 254 pounds if powered, having a fuel capacity not to exceed (NTE) 5 gallons, airspeed NTE 55 knots, and power-off stall speed NTE 24 knots).
(vii) Unaccompanied air baggage (UAB). UAB includes personal items and equipment (e.g., pots, pans, light housekeeping items, collapsible items such as cribs, playpens, and baby carriages, and other articles required for the care of the immediate family) that may be shipped by air in accordance with chapter 302 of this subtitle. Household items (i.e., refrigerators, washing machines, and other major appliances or furniture) are not eligible as UAB.
(2) HHG does not include:
(i) Personal baggage when carried free on tickets;
(ii) Automobiles, trucks, vans and similar motor vehicles, mobile homes, camper trailers, and farming vehicles;
(iii) Live animals including birds, fish, reptiles;
(iv) Cordwood and building materials;
(v) HHG for resale, disposal, or commercial use rather than for use by employee and immediate family members;
(vi) Privately owned live ammunition; and
(vii) Propane gas tanks.
(3) Federal, State, and local laws or carrier regulations may prohibit commercial shipment of certain articles not included in paragraph (2) of this definition. These articles frequently include:
(i) Property liable to impregnate or otherwise damage equipment or other property (e.g., hazardous articles including explosives, flammable and corrosive material, poisons).
(ii) Articles that cannot be taken from the premises without damage to the article or premises.
(iii) Perishable articles (including frozen foods) articles requiring refrigeration, or perishable plants unless—
(A) Shipment is to be transported not more than 150 miles and/or delivery accomplished within 24 hours from the time of loading;
(B) No storage is required; and
(C) No preliminary or en route services (e.g., watering or other preservative method) is required of the carrier.
Household goods-weight additive. A weight, per linear foot of a specific item, added to the net weight of the household goods shipment to compensate for the excessive van space used by the item. The item must be stated in the household goods tariff as qualifying for a weight additive before a charge can be assessed. Weight additives do not apply if an article is capable of being conveniently hand-carried by one person and/or transported in a standard moving carton.
Househunting trip. The term “househunting trip” refers to a trip made by the employee and/or spouse to the employee's new official station locality to find permanent living quarters to rent or purchase. The term “living quarters” in part 302-5 of this subtitle includes apartments, condominiums, and cooperatives in addition to townhouses and single family homes. The allowance for househunting trip expenses is intended to facilitate and expedite the employee's move from their old official station to their new official station and to lower the Government's overall cost for the employee's relocation by reducing the amount of time an employee must occupy temporary quarters.
Immediate family. Any of the following named members of the employee's household at the time the employee reports for duty at the new permanent duty station or performs other authorized travel involving immediate family members:
(1) Spouse;
(2) Domestic partner;
(3) Children of the employee, of the employee's spouse, or of the employee's domestic partner, who are unmarried and under 21 years of age or who, regardless of age, are physically or mentally incapable of self-support (The term “children” shall include natural offspring; stepchildren; adopted children; grandchildren, legal minor wards or other dependent children who are under legal guardianship of the employee, of the employee's spouse, or of the domestic partner; and an unborn child(ren) born and moved after the employee's effective date of transfer.);
(4) Dependent parents (including step and legally adoptive parents) of the employee, of the employee's spouse, or of the employee's domestic partner; and
(5) Dependent siblings (including step and legally adoptive siblings) of the employee, of the employee's spouse, or of the employee's domestic partner, who are unmarried and under 21 years of age or who, regardless of age, are physically or mentally incapable of self-support.
Innovative mobility technology company. An organization, including a corporation, limited liability company, partnership, sole proprietorship, or any other entity, that applies technology to expand and enhance available transportation choices, better manages demand for transportation services, or provides alternatives to driving alone.
Interviewee. An individual who is being considered for employment by an agency. The individual may currently be a Government employee.
Invitational travel. Authorized travel of individuals either not employed or employed (under 5 U.S.C. 5703) intermittently in the Government service as consultants or experts and paid on a daily when-actually-employed basis and for individuals serving without pay or at $1 a year when they are acting in a capacity that is directly related to, or in connection with, official activities of the Government. Travel allowances authorized for such persons are the same as those normally authorized for employees in connection with TDY.
Lodgings-plus per diem. The method of computing per diem allowances in which the per diem allowance for each travel day is established on the basis of the actual amount the traveler pays for lodging, plus an allowance for meals and incidental expenses (M&IE), the total of which does not exceed the applicable maximum per diem rate for the location concerned.
Mandatory mobility agreement. Agreement requiring employee relocation to enhance career development and progression and/or achieve mission effectiveness.
Marriage. A legal union between individuals that was entered into in a State or other jurisdiction (or foreign country) whose laws authorize the marriage, even if the married couple is domiciled in a state or other jurisdiction (or foreign country) that does not recognize the validity of the marriage. The term also includes common law marriage in a state or other jurisdiction (or foreign country) where such marriages are recognized, so long as they are proven according to the applicable State, other jurisdiction, or foreign laws. The term marriage does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under State or other jurisdiction (or foreign country) law that are not denominated as a marriage under that State's or other jurisdiction (or foreign country's) law.
Mobile home. Any type of house trailer or mobile dwelling constructed for use as a residence and designed to be moved overland, either by self-propulsion or towing. Also, a boat (houseboat, yacht, sailboat, etc.) when used as the employee's primary residence.
New appointee. A new appointee is:
(1) An individual who is employed with the Federal Government for the very first time (including an individual who has performed transition activities under section 3 of the Presidential Transition Act of 1963 (3 U.S.C. 102 note), and is appointed in the same fiscal year as the Presidential inauguration);
(2) An employee who is returning to the Government after a break in service (except an employee separated as a result of reduction in force or transfer of functions and is re-employed within one year after such action); or
(3) A student trainee assigned to the Government upon completion of the student trainee's college work.
Non-Federal traveler. For the purposes of §§ 301-10.260 through 301-10.265 and §§ 301-70.800 through 301-70.907 of this subtitle, an individual who travels on a Government aircraft, but is not a Federal traveler. Dependents and other immediate family members of Federal travelers who travel on Government aircraft are considered to be non-Federal travelers within this definition.
Official station. An area defined by the agency that includes the location where the employee regularly performs their duties or an invitational traveler's home or regular place of business. The area may be a mileage radius around a particular point, a geographic boundary, or any other definite domain, provided no part of the area is more than 50 miles from where the employee regularly performs their duties or from an invitational traveler's home or regular place of business. If the employee's work involves recurring travel or varies on a recurring basis, the location where the work activities of the employee's position of record are based is considered the regular place of work.
Official travel. Travel under an official travel authorization from an employee's official station or other authorized point of departure to a temporary duty location and return from a temporary duty location, between two temporary duty locations, or relocation at the direction of a Federal agency.
Other than coach class. Any class of accommodations above coach class. If an airline flight has only two classes of accommodations available, i.e., two distinctly different seating types (such as girth and pitch) and the front of the aircraft is termed “premium economy class” or higher by the airline and the tickets are fare coded as premium economy class or higher, then the front of the aircraft is deemed to be other than coach class.
(1) First class. The highest class of accommodation offered by a common carrier in terms of cost and amenities.
(2) Business class. A class of accommodation offered by a common carrier that is lower than first class but higher than coach and premium economy, in cost and amenities.
(3) Premium economy class. A class of airline accommodation that is lower than both first class and business class, but higher than coach class in terms of cost and amenities. Airlines are constantly updating their offerings; however, for the purposes of this definition, premium economy class is considered a separate, higher class of accommodation from coach class and is not considered a coach class seating upgrade.
Outside the Continental United States (OCONUS). Any area beyond the 48 contiguous States and the District of Columbia, i.e., CONUS. OCONUS is further divided into foreign areas and non-foreign areas:
(1) Foreign area. Any area situated beyond both the CONUS and the non-foreign areas.
(2) Non-foreign area. The states of Alaska and Hawaii, the Commonwealths of Puerto Rico and the Northern Mariana Islands, Guam, the U.S. Virgin Islands, and the territories and possessions of the United States.
Overseas tour of duty. An overseas tour of duty is an assignment to a post of duty outside the continental United States, Alaska or Hawaii.
Overseas tour renewal travel. Overseas tour renewal travel refers to travel of the employee and the employee's immediate family returning to the employee's home in the continental U.S., Alaska, or Hawaii between overseas tours of duty. An allowance for overseas tour renewal travel is a reimbursement for the employee and their immediate family of roundtrip travel and transportation expenses between their overseas post of duty and their place of actual residence.
Passenger. In relation to use of Government aircraft, a passenger is any person who flies onboard a Government aircraft, but who is not a crewmember or qualified non-crewmember.
Per diem allowance. The per diem allowance is a daily payment instead of reimbursement for actual expenses for lodging, meals, and related incidental expenses. The per diem allowance is separate from transportation expenses and other miscellaneous expenses. The per diem allowance covers all charges and services, including any service charges where applicable. The per diem allowance covers the following:
(1) Lodging. Includes expenses and authorized fees as specified in Federal Travel Regulation (FTR) bulletins, except lodging taxes in the United States, for overnight sleeping facilities, baths, personal use of the room during daytime, telephone access fee, and service charges for fans, air conditioners, heaters and fires furnished in the room when such charges are not included in the room rate.
(2) Meals. Expenses for breakfast, lunch, dinner and related tips and taxes (specifically excluded are alcoholic beverage and entertainment expenses, and any expenses incurred for other persons).
(3) Incidental expenses. Fees and tips given to porters, baggage carriers, hotel staff, and staff on ships.
(4) Laundry/dry cleaning expenses. For the purposes of chapter 302 of this subtitle, laundry/dry cleaning expenses are part of the incidental expenses portion of the lodgings-plus per diem allowance for temporary quarters subsistence expenses (TQSE) and temporary quarters (TQ) lodging taxes are separately reimbursable TQSE miscellaneous expenses (see § 302-6.9(e) and part 302-16 of this subtitle).
Permanent Change of Station (PCS). A PCS is an assignment of a new appointee to an official station or the transfer of an employee from one official station to another on a permanent basis.
Post of duty. An official station outside CONUS.
Presidentially-Declared Disaster. A major disaster or emergency declared by the President of the United States pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121 et seq.).
Privately owned aircraft. An aircraft that is owned or leased by an employee for personal use. It is not owned, leased, chartered, or rented by a Government agency, nor is it rented or leased by an employee for use in carrying out official Government business.
Privately owned automobile. A car or light truck, including a van or a pickup truck, that is owned or leased for personal use by an individual, but not necessarily the traveler.
Privately Owned Vehicle (POV). Any vehicle such as an automobile, motorcycle, aircraft, or boat operated by an individual that is not owned or leased by a Government agency, and is not commercially leased or rented by an employee under a Government rental agreement for use in connection with official Government business.
Professional books, papers, and equipment (PBP&E). Includes, but is not limited to, the following items in the employee's possession when needed by the employee in the performance of the employee's official duties:
(1) Reference material;
(2) Instruments, tools, and equipment peculiar to technicians, mechanics, and members of the professions;
(3) Specialized clothing (e.g., diving suits, flying suits, helmets, band uniforms, religious vestments and other special apparel); and
(4) Communications equipment used by the employee in association with DoDI 4650.02, Military Auxiliary Radio System (MARS).
Qualified non-crewmember. A person flying onboard a Government aircraft whose skills or expertise are required to perform or are associated with performing the non-travel related governmental function for which the aircraft is being operated (qualified non-crewmembers may be researchers, law enforcement agents, firefighters, agricultural engineers, biologists, etc.). If a qualified non-crewmember is onboard for the purpose of travel (i.e., being transported from point to point) in addition to performing their duties related to the non-travel related governmental function for which the aircraft is being operated (e.g., when a scientist conducts an experiment at the same time they are also on the aircraft for the purpose of traveling from point to point), they must be authorized to travel in accordance with rules in parts 301-10 and 301-70 of this subtitle.
Reduced per diem. Agencies may authorize a reduced per diem rate when there are known reductions in lodging and meal costs or when the employee's subsistence costs can be determined in advance and are lower than the prescribed per diem rate.
Relocation services company (RSC). A third-party supplier under contract with an agency to assist an eligible individual who relocates. Services may include: Homesale programs, home inspection, home marketing assistance, home finding assistance, property management services, shipment and storage of household goods, voucher review and payment, relocation counseling, and similar items.
Required use travel. Travel by Federal travelers that requires use of a Government aircraft to meet bona fide communications needs (e.g., 24-hour secure communications), security requirements (e.g., highly unusual circumstances that present a clear and present danger), or exceptional scheduling requirements (e.g., a national emergency or other compelling operational considerations) of an executive agency. Required use travel must be approved according to § 301-10.262(a) of this subtitle.
Scheduled flight time. The flight time between the originating departure point and the ultimate arrival point, as scheduled by the airline, including scheduled non-overnight time spent at airports during plane changes. Scheduled non-overnight time does not include time spent at the originating or ultimate arrival airports.
Senior Federal official. An individual who is paid according to the Executive Schedule established by 5 U.S.C. 53, subchapter II, including Presidential appointees who are confirmed by the Senate; employed in the U.S. Government's Senior Executive Service or an equivalent “senior” service; who is a civilian employee of the Executive Office of the President; who is appointed by the President to a position under 3 U.S.C. 105(a)(2)(A)-(C) or by the Vice President to a position under 3 U.S.C. 106(a)(1)(A)-(C); or who is a contractor working under a contract with an executive agency, is paid at a rate equal to or more than the minimum rate for the Senior Executive Service, and has senior executive responsibilities. The term “senior Federal official”, as used in this subtitle does not mean an active duty military officer.
Service Agreement. A service agreement is a written and signed agreement between the employee and their agency. The service agreement states that the employee will remain in the service of the Government, after they have relocated, for a period of time specified in chapter 302 of this subtitle. A service agreement must also include the duplicate reimbursement disclosure statement.
Special conveyance. Commercially rented or hired vehicles other than a privately owned vehicle and other than those owned or under contract to an agency.
Special needs (also see Employee with a disability). Physical characteristics of a traveler not necessarily defined under disability. Such physical characteristics could include, but are not limited to, the weight or height of the traveler.
Spouse. 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 county), 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.
Subsistence expenses. Expenses such as:
(1) Lodging and service charges;
(2) Meals, including taxes and tips; and
(3) Incidental expenses.
Temporary Change of Station (TCS). A TCS is a relocation to a new official station for a temporary period while performing a long-term assignment, and subsequent return to the previous official station upon completion of that assignment. The employee's official station for the duration of their TCS is the location of their TCS.
Temporary duty (TDY) location. A place, away from an employee's official station, where the employee is authorized to travel.
Temporary storage. Storage of HHG for a limited period of time at origin, destination or en route in connection with transportation to, from, or between official station or post of duty or authorized alternate points. Also referred to as storage-in-transit (SIT).
Transferred employee. An employee who transfers from one official station to another. This may also include employees separated as a result of reduction in force or transfer of functions who are re-employed within one year after such separation.
Transit system. A form of transportation (e.g., air, rail, bus, ship, etc.) used between authorized locations in the performance of official travel.
Transportation network company (TNC). A corporation, partnership, sole proprietorship, or other entity, that uses a digital network to connect riders to drivers affiliated with the entity in order for the driver to transport the rider using a vehicle owned, leased, or otherwise authorized for use by the driver to a point chosen by the rider; and does not include a shared-expense carpool or vanpool arrangement that is not intended to generate profit for the driver.
Travel advance. Prepayment of estimated travel expenses paid to an employee.
Travel authorization (Orders). Written permission to travel on official business. There are three basic types of travel authorizations (orders):
(1) Unlimited open. An authorization allowing an employee to travel for any official purpose without further authorization.
(2) Limited open. An authorization allowing an employee to travel on official business without further authorization under certain specific conditions, i.e., travel to specific geographic area(s) for specific purpose(s), subject to trip cost ceilings, or for specific periods of time.
(3) Trip-by-trip. An authorization allowing an individual or group of individuals to take one or more specific official business trips, which must include specific purpose, itinerary, and estimated costs.
Travel claim (voucher). A written request, supported by documentation and receipts where applicable, for reimbursement of expenses incurred in the performance of official travel, including permanent change of station (PCS) travel. ETS uses the term “expense report” to refer to a travel claim (voucher).
Travel Management Service (TMS). A service for booking common carrier (e.g., air, rail, and bus confirmations and seat assignments), commercial lodging, and car rental services; fulfilling (i.e., ticketing) reservations; providing basic management information on those activities; and meeting other requirements as specified in the TMS' contract. A TMS may include a travel management company (TMC), Commercial Ticket Office (CTO), an electronically available system, other commercial methods of arranging travel, or an in-house system.
United States. The 48 contiguous States, the District of Columbia and the States and areas defined under the term “Non-Foreign Area.”
United States (U.S.) flag air carriers. For purposes of the use of United States flag air carriers, United States means the 50 States, the District of Columbia, and the territories and possessions of the United States, including the territorial sea and the overlying airspace (49 U.S.C. 40102(a)(46)).
Usually traveled route. The most direct route between the employee's official station (or invitational traveler's home) and the temporary duty location, as defined by maps or consistent with established scheduled services of contract or common carriers.
The Federal Travel Regulation (FTR) in this subtitle serves two principal purposes. First, it implements statutory and other policy requirements in a manner that balances the need to ensure that official travel is conducted responsibly while minimizing administrative costs. Second, it communicates the resulting policies in a clear manner to executive agencies (see § 300-1.1 of this subtitle) and civilian employees of executive agencies, both of which are subject to this subtitle.
This chapter covers the following individuals:
(a) Employees traveling on official business;
(b) Interviewees performing pre-employment interview travel;
(c) Employees who must interrupt official business travel to perform emergency travel as a result of an incapacitating illness or injury or a personal emergency situation; and
(d) Threatened law enforcement/investigative employees and members of their immediate family temporarily relocated to safeguard their lives because of a threat resulting from the employee's assigned duties.
Employees generally must have written or electronic authorization before incurring any travel expense. When it is not practicable or possible to obtain such authorization before travel begins, the agency may approve reimbursement for specific travel expenses after travel is completed. However, written or electronic advance authorization is required for specific items outlined in § 301-2.3.
Agencies may pay only those expenses essential to the transaction of official business as set forth in this chapter. Agencies will not pay for expenses over the reimbursement limits established in this chapter, nor will it pay for circuitous routes, delays, or luxury accommodations or services that are unnecessary or unjustified in the performance of official business. Employees must exercise the same care in incurring expenses that a prudent person would exercise if traveling on personal business.
(a) Specific authorization or prior approval is required for:
(1) Use of reduced fares for group or charter arrangements;
(2) Use of a foreign air carrier or foreign ship;
(3) Payment of a reduced per diem;
(4) Use of cash to pay for common carrier transportation;
(5) Travel expenses related to emergency travel;
(6) Acceptance of payment from a non-Federal source for travel expenses (see chapter 304 of this subtitle);
(7) Travel expenses related to conference attendance;
(8) Use of a Government aircraft;
(9) Use of extra-fare train service;
(10) Travel by ship; and
(11) Use of a rental car.
(b) Paragraphs (a)(1), (3), (6), and (7) of this section require a written or electronic advance authorization.
Employees are eligible for payment of authorized transportation expenses when performing official travel, including fares, rental fees, mileage payments, and other expenses related to transportation.
Agencies may authorize the following transportation methods:
(a) Common carrier transportation (including aircraft, train, bus, ship, or other transit system) under subpart B of this part;
(b) Government vehicle under subpart C of this part;
(c) Privately owned vehicle (POV) under subpart D of this part; or
(d) Special conveyance (such as taxi, transportation network company, innovative mobility technology company, or commercial automobile) under subpart E of this part.
The agency must select the transportation method that the agency determines is the most advantageous to the Government.
Employees will be reimbursed for only the constructive cost of traveling to their destination using the authorized method of transportation and by the usually traveled route, unless their agency authorizes a different route as officially necessary. Any additional expenses incurred will be borne by the employee.
Employees are authorized to use the least expensive class of accommodations (e.g., coach class) necessary to meet their needs and accomplish the agency's mission. Employees may be authorized to use accommodations other than coach class only when the agency head or designee specifically authorizes or approves such use under specific circumstances. Except as otherwise indicated in this section, agencies should authorize the lowest level of other than coach class accommodations, starting with premium economy, then business, then first, with much higher agency scrutiny on each increase in class level authorized. The agency head or designee may authorize other than coach class accommodations when—
(a) Such accommodations are required to accommodate a medical disability or other special need (see part 301-13 of this subchapter);
(b) Exceptional security circumstances, as determined by the agency, require other than coach class accommodations;
(c) Regularly scheduled service between origin and destination points provides only non-coach class accommodations;
(d) Common carrier costs are paid in full through agency acceptance of payment from a non-Federal source in accordance with chapter 304 of this subtitle;
(e) The use results in overall cost savings to the Government by avoiding additional subsistence costs, overtime, or lost productivity time;
(f) No coach class space is available that allows arrival in time to accomplish an urgent mission;
(g) Coach class accommodations on an authorized foreign carrier do not provide adequate health or sanitation standards;
(h) The origin and/or destination is/are OCONUS and scheduled flight time, including stopovers and change of planes, is in excess of eight hours, in which case agencies can authorize or approve premium economy class accommodations;
(i) The origin and/or destination is/are OCONUS and scheduled flight time, including stopovers and change of planes, is more than 14 hours, in which case agencies can authorize or approve business class accommodations;
(j) No coach class, premium economy class, or business class accommodations are available on a common carrier scheduled to leave within 24 hours of the proposed departure time, or scheduled to arrive within 24 hours of the proposed arrival time, in which case agencies can authorize or approve first class accommodations;
(k) Such accommodations are required because of agency mission; or
(l) The agency determines other than coach class accommodations are more advantageous than authorizing a rest period.
Employees must take action to change or cancel their common carrier reservation and report any changes or cancellations as prescribed by their agency. Failure to do so may subject the employee to liability for any resulting losses.
Any unused ticket or refund applications are the property of the Government and must be returned to the agency in accordance with agency procedures. Employees are not authorized to receive or keep a refund or credit for unused transportation, except as provided in § 301-10.123.
(a) Employees of an “agency” as defined in § 300-1.1 of this subtitle must use a contract City Pair Program fare for scheduled air passenger transportation service unless specific exceptions exist in § 301-10.111.
(b) When a carrier offers both a lower-cost capacity-controlled coach class contract fare (_CA) and an unrestricted coach class contract fare (YCA), employees must use the lower-cost fare when it is advantageous and meets mission needs.
(c) Employees of the Government of the District of Columbia, except the District of Columbia Courts, are not eligible to use contract City Pair Program fares.
The agency head or designee may authorize use of a non-contract fare when—
(a) There are no accommodations available on any scheduled contract City Pair Program flight arriving to the employee's destination in time to accomplish the travel purpose or use of contract service would require the employee to incur unnecessary overnight lodging costs which would increase the total cost of the trip;
(b) The contractor's flight schedule is inconsistent with explicit policies of the Federal department or agency with regard to scheduling travel during normal working hours;
(c) A non-contract carrier offers a lower fare to the general public that, if used, will result in a lower total trip cost to the Government (the combined costs of transportation, lodging, meals, and related expenses considered); or
(1) The exception in this paragraph (c) does not apply if the contract carrier offers the same or lower fare and has seats available at that fare, or if the fare offered by the non-contract carrier is restricted to Government and military travelers performing official business and may be purchased only with a contractor-issued charge card, centrally billed account (e.g., YDG, MDG, QDG, VDG, and similar fares) or GTR where the two previous options are not available.
(2) [Reserved]
(d) Cost effective rail transportation is available and is consistent with mission requirements.
(e) A group of 10 or more passengers traveling together on the same day, on the same flight, for the same mission, requiring group integrity and identified as a group by the travel management service upon booking is not a mandatory user of the Government's contract City Pair Program fares. For group travel, agencies are expected to obtain air passenger transportation service that is practical and cost effective to the Government.
(f) Contractors are not authorized to use contract City Pair Program fares to perform travel under their contracts.
(g) Carrier preference is not a valid exception for using a non-contract City Pair Program fare.
Employees are responsible for any additional costs or penalties incurred by using a non-contract carrier when contract service is available and no authorized exception applies.
When performing official travel and a carrier denies a confirmed reserved seat, employees must provide any liquidated damages payment to their agency in accordance with their agency's procedures.
(a) Employees may keep airline compensation for voluntarily vacating a seat under two conditions:
(1) Voluntarily vacating the seat will not interfere with performing official duties; and
(2) Any additional travel expenses resulting from vacating the seat are personally borne and not reimbursed by the Government.
(b) If volunteering causes travel delays during duty hours, the agency will charge the employee annual leave for the additional hours.
Employees may use reduced group or charter air fares only when the agency has determined, on an individual case basis before travel begins, that such a fare is cost-effective. Chartered aircraft are subject to Government aircraft rules, and executive branch agencies must follow Office of Management and Budget Circular A-126 and part 102-33 of this title when determining cost-effectiveness.
Anyone whose air travel is financed by U.S. Government funds must use a U.S. flag air carrier, except as provided in §§ 301-10.134, 301-10.135, and 301-10.136.
U.S. flag air carrier service is service provided on an air carrier holding a certificate under 49 U.S.C. 41102 (excluding a foreign air carrier operating under a permit), and which service is authorized by the carrier's certificate or by exemption or regulation. This also includes service provided under a code share agreement with a foreign air carrier in accordance with title 14, Code of Federal Regulations, when the ticket identifies the U.S. flag air carrier's designator code and flight number.
Employees are required by 49 U.S.C. 40118, commonly referred to as the “Fly America Act,” to use U.S. flag air carrier service for all air travel funded by the U.S. Government except as provided in §§ 301-10.135 and 301-10.136 or when one of the following exceptions applies. Exceptions can only be approved by the agency head or designated official.
(a) Use of a foreign air carrier is determined to be a matter of necessity in accordance with § 301-10.135.
(b) 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.
(c) The employee is an officer or employee of the Department of State or an Executive branch employee under Chief of Mission authority, and travel is paid with funds appropriated to one of these agencies and the employee's travel is between two places outside the United States.
(d) No U.S. flag air carrier provides service on a particular leg of the route, in which case foreign air carrier service may be used, but only to or from the nearest interchange point on a usually traveled route to connect with U.S. flag air carrier service.
(e) A U.S. flag carrier involuntarily reroutes the employee's travel onto a foreign carrier.
(f) Service on a foreign air carrier would be three hours or less, and use of the U.S. flag carrier would at least double the employee's en route travel time.
(g) When the costs of transportation are reimbursed in full by a third party, such as a foreign government, international agency, or other organization.
(h) For travel solely outside the U.S., use of an available U.S. flag air carrier when compared to using a foreign air carrier will increase the number of aircraft changes the employee must make en route by 2 or more; or extend the travel time by 6 hours or more; or require a connecting time of 4 hours or more at an overseas interchange point.
(i) The employee is an officer or employee of the Department of State or an executive branch employee under Chief of Mission authority, and travel meets the requirements of 22 U.S.C. 4081a.
(a) Foreign air carrier service is deemed necessary when U.S. flag air carrier service is available but—
(1) Cannot provide required air transportation; or
(2) Will not accomplish the agency's mission.
(b) Necessity includes circumstances such as:
(1) Medical reasons, including reducing connections and potential delays for individuals needing medical treatment.
(2) Avoiding unreasonable risks to employee safety, which requires a case-by-case agency determination and written agency approval.
(3) Threats against U.S. flag air carriers, which must be supported by a travel advisory notice from the Federal Aviation Administration and Department of State.
(4) Threats against a Government employee or other travelers, which must have evidence supporting the threat that form the basis of the agency's determination and approval.
(5) Inability to purchase a ticket in the authorized service class on a U.S. flag air carrier, and there is an available seat in the authorized service class on a foreign air carrier.
(a) If a U.S. flag air carrier offers nonstop or direct service (no aircraft change) from origin to destination, the employee must use the U.S. flag air carrier service unless such use would extend travel time, including delay at origin, by 24 hours or more.
(b) If a U.S. flag air carrier does not offer nonstop or direct service (no aircraft change) between origin and destination, the employee must use a U.S. flag air carrier on every portion of the route where it provides service unless, when compared to using a foreign air carrier, such use would:
(1) Increase the number of aircraft changes made outside of the U.S. by 2 or more;
(2) Extend travel time by at least 6 hours or more; or
(3) Require a connecting time of 4 hours or more at an overseas interchange point.
Employees must provide a certification as required in this section and any additional documents specified by the agency. The agency will not pay the foreign air carrier fare without the required certification. The certification must include—
(a) Employee's name;
(b) Travel dates;
(c) Origin and destination;
(d) Detailed travel itinerary, including air carrier and flight number for each leg of the trip; and
(e) Statement explaining compliance with exceptions in § 301-10.134 or § 301-10.136, or a copy of the agency's written approval deeming foreign air carrier service necessary in accordance with § 301-10.135.
Employees will not be reimbursed for transportation costs incurred through improper or unauthorized use of foreign air carrier service.
Employees may use extra-fare train service when the agency determines it is more advantageous to the Government or required for security reasons. Such use must be authorized or approved as other than coach class accommodations in accordance with § 301-10.100.
Employees may use the lowest class of sleeping accommodations aboard a train that meets mission needs when overnight travel is required, and the agency determines such accommodations are advantageous to the Government.
When authorized to travel by ship, employees must use a U.S. flag ship when available, unless the mission's necessity requires using a foreign ship. (See 46 U.S.C. 55302.)
Employees are required to travel by U.S. flag ship for the entire trip, unless the agency specifically authorizes use of a foreign ship. Any costs resulting from improper or unauthorized use of a foreign ship are the employee's responsibility.
Employees may use a transit system as a means of transportation in conjunction with official travel when such transportation is authorized and approved by the agency in the following manner:
(a) At the official station.
(1) From the employee's residence or other authorized point of departure, e.g., rail to airport;
(2) To the employee's residence or other authorized point of return, e.g., airport to rail;
(3) From the employee's residence to the office on the day of departure from the official station on official TDY that requires at least one night's lodging; or
(4) From the office to the employee's residence on the day of return to the official station from an official TDY assignment that requires at least one night's lodging.
(b) At the TDY location.
(1) From the TDY transit system station(s) to the place of lodging or place of official business and return;
(2) To, from, and between places of lodging and official business;
(3) Between places of official business; or
(4) To obtain meals at the nearest available place when the nature and location of the official business or the lodging at a TDY location are such that meals cannot be obtained there.
Employees may be authorized to use a Government-furnished automobile, a Government aircraft in accordance with §§ 301-10.260 through 301-10.265, and other types of Government vehicles in accordance with Government-issued rules governing their use.
Employees are responsible for any costs resulting from unauthorized use of a Government vehicle and may be subject to administrative and/or criminal liability for misuse of Government property.
Agencies may authorize Federal travelers, non-Federal travelers, and any other passengers, as defined in § 300-1.1 of this subtitle, to travel on Government aircraft, subject to the rules in this subpart. Because the taxpayers generally should pay no more than necessary for transportation of travelers, except for required use travel, agencies may authorize travel on Government aircraft only when a Government aircraft is the most cost-effective mode of travel and the traveler is traveling for governmental purposes. Employees may use Government aircraft for travel only when authorized by an executive agency under specific rules except with regard to travel under § 301-70.802 of this chapter.
Employees may use Government aircraft—
(a) For official travel only when—
(1) No scheduled commercial airline service is reasonably available (able to meet departure and/or arrival requirements within a 24-hour period, unless extraordinary circumstances require a shorter period) to fulfill the agency's travel requirement; or
(2) The cost of using a Government aircraft is less than the cost of the City Pair coach fare or the lowest available full coach fare for scheduled commercial airline service, considering costs of non-productive or lost work time.
(b) For required-use travel when required for bona fide communications, security reasons, or exceptional scheduling requirements, including travel for official, personal, or political purposes.
(c) For space available travel when—
(1) The aircraft is already scheduled for official purpose and additional use does not require a larger aircraft or result in more than minor additional cost;
(2) The traveler is a Federal traveler or dependent stationed in a remote location not accessible to commercial airline service; or
(3) The traveler is authorized to travel on a space available basis under 10 U.S.C. 2648 and in accordance with §§ 301-10.260 through 301-10.264.
The agency will authorize employee travel on Government aircraft as follows:
(a) Required use travelers. (1) The agency's senior legal official or principal deputy must authorize required-use travel on a trip-by-trip basis, in advance, in writing, and in compliance with agency policies, unless:
(i) The traveler is an agency head with Presidential determination that all travel (or travel in specified categories) is required-use travel; or
(ii) The traveler is not an agency head, and the agency head has determined in writing that all travel (or travel in specified categories) is required-use travel. Any determination by an agency head that travel by an officer or employee of that agency qualifies as required use travel must be in writing and set forth the basis for that determination.
(2) In emergency situations, prior verbal approval with after-the-fact written authorization is permitted.
(b) Senior Federal officials. The agency's senior legal official or principal deputy must authorize all travel on Government aircraft in advance and in writing, except for pre-authorized required-use travel under paragraphs (a)(1) and (2) of this section. Emergency situations allow prior verbal approval with after-the-fact written authorization.
(c) Non-Federal travelers. The senior legal official or principal deputy in the sponsoring agency must authorize travel on Government aircraft in advance and in writing. Emergency situations allow prior verbal approval with after-the-fact written authorization.
(d) Other Federal travelers. A designated travel-approving official (at least one organizational level above the traveler) or their delegate must authorize travel on Government aircraft in advance and in writing. Blanket travel authorizations must define, and such travel must meet, specific circumstances for aircraft use; otherwise, authorization must be on a trip-by-trip basis. Emergency situations allow prior verbal approval with after-the-fact written authorization.
(a) Employees must present to the aircraft management office that operates the Government aircraft:
(1) Valid picture identification, such as a Government identification card or a State-issued driver's license; and
(2) A copy of their written travel authorization, including any applicable blanket travel authorization, approved in accordance with § 301-10.262.
(b) The travel authorization for a senior Federal official or a non-Federal traveler must include the following information:
(1) Traveler's name with indication that the traveler is either a senior Federal official or a non-Federal traveler, whichever is appropriate.
(2) The traveler's organization and title or other appropriate descriptive information, e.g., dependent, press, etc.
(3) Name of the authorizing agency.
(4) The official purpose of the trip.
(5) The destination(s).
(6) For personal or political travel, the amount that the traveler must reimburse the Government (i.e., the full coach fare or appropriate share of that fare).
(7) For official travel, the comparable City Pair fare (if available to the traveler) or full coach fare if a City Pair fare is not available.
(a) No reimbursement is required for official travel on a Government aircraft.
(b) For personal travel on Government aircraft, reimbursement depends on specific circumstances:
(1) For required use travel, the employee must reimburse the Government the excess of the full coach fare for all flights taken over the full coach fare for flights that would have been taken without personal activities. For a wholly personal trip, the employee must pay the full coach fare for the entire trip.
(2) For travel authorized under 10 U.S.C. 2648 and in accordance with §§ 301-10.260 through 301-10.264, or for employees or their dependents stationed by the Government in remote locations without access to regularly scheduled commercial airline service, no reimbursement is required.
(c) For political travel on a Government aircraft, the Government must be reimbursed the excess of the full coach fare for all flights taken over the full coach fare for flights that would have been taken without political activities. If other laws or regulations specify a different reimbursement amount, that specified amount applies.
(d) Except for required use travel, any use of Government aircraft for personal or political activities must not increase the actual operating costs to the Government.
Information is available to the public in response to written requests under the Freedom of Information Act (5 U.S.C. 552), except for portions exempt from disclosure under that Act (such as classified information).
Employees compute mileage reimbursement by multiplying the distance traveled, determined by the applicable mileage rate as follows:
Table 1 to § 301-10.300
| If travel is by | The distance between origin and destination is |
|---|---|
| Privately owned automobile or privately owned motorcycle | As shown in paper or electronic standard highway mileage guides, or the actual miles driven as determined from odometer readings. |
| Privately owned aircraft | As determined from charts issued by the Federal Aviation Administration (FAA). Employees may include in their travel claim an explanation addressing any additional air mileage resulting from a detour necessary due to adverse weather, mechanical difficulty, or other unusual conditions. If a required deviation is such that airway mileage charts are not adequate to determine distance, employees may use the formula of flight time multiplied by cruising speed of the aircraft to determine distance. Employees must convert nautical miles to statute or regular miles when submitting a claim (1 nautical mile equals 1.15077945 statute miles). |
Employees will be reimbursed an applicable mileage rate based on the type of POV actually used, including privately owned airplane, automobile, or motorcycle. These rates will be published in an FTR bulletin and displayed on the General Services Administration website at https://www.gsa.gov/mileage.
Following is a table listing the reimbursable and non-reimbursable expenses:
Table 1 to § 301-10.302
| Reimbursable expenses in addition to mileage
allowance | Non-reimbursable expenses included in the mileage
allowance |
|---|---|
| Parking fees; ferry fees; bridge, road, and tunnel fees; | Charges for repairs, depreciation, replacements, grease, oil, antifreeze, towage and similar speculative expenses, fuel, insurance, state and Federal taxes. |
If another employee travels with the employee on the same trip in the same privately owned vehicle, mileage is payable to only one traveler. No deduction will be made from the mileage allowance if other passengers contribute to defraying expenses.
The agency may reimburse the parking fee as an allowable transportation expense, not exceeding the cost of using one of the following to/from the terminal, as determined by the agency: a taxi, transportation network company (TNC), or innovative mobility technology company.
Reimbursement is limited to the constructive cost of the authorized transportation method, which is the sum of travel and transportation expenses the employee would reasonably have incurred had they traveled by the method deemed most advantageous to the Government. The calculation involves assumptions and may include expenses such as: taxi and TNC fares, baggage fees, rental car costs, tolls, ferry fees, and parking charges.
Employees will be reimbursed based on a constructive mileage rate limited to the cost that would be incurred for use of a Government-furnished automobile. This rate will be published in an FTR bulletin available at https://www.gsa.gov/ftrbulletins.
The agency may authorize or approve use of:
(a) Taxis, TNCs, or innovative mobility technology companies as specified in § 301-10.420;
(b) Commercial rental automobiles as specified in §§ 301-10.450 through 301-10.452; or
(c) Any other special conveyance when determined to be advantageous to the Government.
Reimbursement is limited to actual expenses that the agency determines are necessary.
When authorized and approved by the agency, employee transportation expenses in the performance of official travel are reimbursable for the usual fare plus a tip which the agency determines to be reasonable for use of a taxi, TNC, innovative mobility technology company, shuttle service, or other courtesy transportation (if charges result). When selecting a TNC, first consideration should be given to the General Services Administration's Ridehail/Rideshare program.
(a) The agency must determine that a rental vehicle's use is advantageous to the Government and specifically authorize such use.
(b) When authorized, travelers should first consider renting from a vendor participating in the Defense Travel Management Office (DTMO) U.S. Government Car Rental Agreement to obtain insurance and damage liability benefits, unless traveling OCONUS where no agreement exists for the temporary duty location.
(c) Travelers must use the least expensive compact car available, with exceptions approved on a limited basis and documented on the travel authorization. Exceptions may include:
(1) Accommodating medical disabilities or special needs.
(2) Agency mission requirements.
(3) When the cost of other than a compact car is less than or equal to the cost of the least expensive compact car available.
(4) Requiring additional space for multiple travelers authorized to travel together in the same vehicle.
(5) Carrying large amounts of Government material.
(6) Safety considerations during severe weather or difficult terrain.
(d) Travelers will not be reimbursed for:
(1) Pre-paid refueling options. They should refuel before returning the vehicle, with vendor refueling charges reimbursable only if complete refueling is impossible due to safety issues or fueling station location.
(2) Rental car loyalty point fees or point transfer charges.
Employees may not be reimbursed for collision damage waiver (CDW) or theft insurance except that employees may be reimbursed for one or the other (or both) when traveling OCONUS and it is necessary due to rental agency requirements, foreign statutes, or legal procedures that could cause extreme difficulty for an employee involved in an accident.
Employees are responsible for any additional costs resulting from using a Government-funded commercial rental automobile for other than official purposes. Official purposes which include transportation:
(a) Between places of official business;
(b) Between such places and places of temporary lodging when public transportation is unavailable or its use is impractical; or
(c) Between either paragraph (a) or (b) of this section and restaurants, drug stores, barber shops/hair stylists, places of worship, cleaning establishments, and similar places necessary for the sustenance, comfort, or health of the employee to foster the continued efficient performance of Government business.
Employees are eligible for reimbursement of per diem or actual subsistence expenses when:
(a) Performing official travel away from their official station or other areas defined by their agency;
(b) Incurring subsistence expenses while performing official travel; and
(c) In a travel status for more than 12 hours.
The agency must pay subsistence expenses (either a per diem allowance or actual expense) unless:
(a) The travel is to a training event under the Government Employees Training Act (5 U.S.C. 4101-4121), and the employee agrees not to be paid subsistence expenses; or
(b) The travel is for a pre-employment interview, and the interviewing agency does not authorize subsistence expense payment.
Subsistence expenses will be reimbursed primarily using the lodgings-plus per diem method. Subsistence expenses may also be reimbursed using the actual expense or the reduced per diem methods. Agencies may allow a different method to be used each calendar day. See appendix A to this part to find out where to access per diem rates for various types of Government travel.
Generally, the temporary duty (TDY) location determines the per diem reimbursement rate. However, if lodging is obtained outside the TDY location, the agency may authorize or approve the per diem rate for an alternate location if it is advantageous to the government. If arriving at the lodging facility after 12 midnight, an employee may claim the lodging cost for the preceding calendar day.
The period for subsistence expense entitlement starts on the day the employee departs their residence, office, or other authorized point and ends on the day they return to their residence, office, or other authorized point.
(a) Employees must make their lodging reservations through their agency's travel management service.
(b) Employees should always stay in a “fire safe” facility. This is a facility that meets the fire safety requirements of the Hotel and Motel Fire Safety Act of 1990 (the Act), as amended (see 5 U.S.C. 5707a).
(c) When selecting a commercial lodging facility, first consideration should be given to Government lodging agreement programs such as FedRooms®.
(d) Section 5707a of title 5, U.S.C., does not apply to the government of the District of Columbia.
(a) The agency will reimburse employees for different types of lodging:
(1) Conventional lodging (hotel/motel, including extended stay hotels; boarding house). Reimbursed at the single occupancy rate.
(2) Government quarters. Reimbursed for the fee or service charge paid for use of the quarters.
(3) Lodging with friends or relatives. May be reimbursed for additional costs incurred by the host to accommodate the employee if substantiated and deemed reasonable by the agency. Reimbursement does not include the cost of comparable conventional lodging or a flat “token” amount.
(4) Nonconventional lodging. Reimbursable when no conventional lodging is available in the area or when conventional lodging is in short supply, such as during special events. Includes home-sharing or short-term rental properties (excluding extended-stay hotels), college dormitories, rooms that may or may not be offered commercially in private homes, or other non-commercial accommodations.
(5) Recreational vehicle (trailer/camper). Reimbursable for expenses such as parking fees, fees for use of and connection/disconnection of utilities, electricity, fuel, water, sewage, bath or shower fees, and dumping fees.
(b) The agency will not reimburse:
(1) Personally-owned residence. No lodging expenses for staying at a personal residence or real estate expenses related to purchase or sale, except during an authorized relocation.
(2) Personally-owned recreational vehicle. No expenses associated with purchasing, selling, or paying for a recreational vehicle or camper at the temporary duty location.
When obtaining lodging on a long-term basis (e.g., weekly or monthly), the daily lodging rate is computed by dividing the total lodging cost by the number of days of occupancy for which the employee is entitled to subsistence expense reimbursement for lodging. The daily rate may not exceed the daily per diem rate for the TDY location.
When renting lodging on a long-term basis (e.g., weekly, monthly), the following expenses may be considered part of the lodging cost:
(a) Rental cost for a furnished dwelling. If renting an unfurnished dwelling, the rental cost of the dwelling and necessary furniture and appliances (such as stove, refrigerator, chairs, tables, bed, sofa, television, or vacuum cleaner);
(b) Costs of connecting, disconnecting, and using utilities;
(c) Reasonable maid fees and cleaning charges;
(d) Monthly telephone use fee (excluding installation and long-distance calls);
(e) Monthly internet/wifi use fee (excluding installation); and
(f) Other costs typically included in a hotel/motel room price in the area.
If a temporary duty assignment is curtailed, canceled, or interrupted for official purposes or reasons beyond the employee's control and acceptable to the agency, the employee may be reimbursed for pre-paid expenses that are not refundable, including a forfeited rental deposit, provided the employee sought to obtain a refund or took steps to minimize costs.
When crossing the IDL, actual elapsed travel time will be used to compute an employee's subsistence entitlement rather than calendar days.
(a) The agency may authorize a rest period not exceeding 24 hours at an intermediate point or destination when:
(1) The origin or destination is outside the continental United States (OCONUS);
(2) Scheduled flight time, including stopovers, exceeds 14 hours;
(3) Travel is by a direct or usually traveled route; and
(4) The agency has determined that travel by business class is not advantageous and travel is by coach class or premium economy class.
(b) When a rest stop is authorized, the applicable per diem rate is the rate for the rest stop location. The agency may authorize a rest period exceeding 24 hours when no scheduled transportation service departs within 24 hours of arrival at an intermediate point. To qualify, the employee must be scheduled to board the first available scheduled departure. The agency will determine a reasonable additional length of time for rest periods exceeding 24 hours.
(a) Employees will generally be reimbursed for subsistence expenses during non-workdays (weekends, Federal holidays, or other scheduled non-workdays) when their travel status requires staying at the temporary duty location or traveling during these days. However, the agency should determine the most cost-effective approach, such as remaining in travel status or permitting return to the official station.
(b) For emergency travel due to incapacitating illness or injury, the rules in part 301-30 of this subchapter apply.
The agency may authorize per diem or actual expense and round-trip transportation expenses for periodic return travel to the employee's home or official station under the following circumstances:
(a) The agency requires the employee to return to their official station to perform official business;
(b) The agency will realize substantial cost savings by the employee's return home; or
(c) Periodic return travel home is justified as part of an extended TDY assignment.
If an employee voluntarily returns home or to their official station on non-workdays during a TDY assignment, the maximum reimbursement for round-trip transportation and subsistence expenses is limited to what would have been allowed had the employee remained at the TDY location.
(a) For CONUS and non-foreign OCONUS locations, lodging taxes paid by the employee are reimbursable as a miscellaneous travel expense limited to the taxes on reimbursable lodging costs.
(b) For foreign areas, separate claims for lodging taxes are not allowed because lodging taxes have not been removed from foreign per diem rates established by the Department of State.
(a) Employees may request reimbursement of their actual expenses up to 300 percent of the per diem rate. There is no authority to exceed this ceiling. However, subject to agency policy, a lesser amount may be authorized.
(b) Agencies may authorize the per diem rate for an alternative location where lodging is obtained if it is advantageous to the Government.
(c) Approval for reimbursement above the per diem amount or at an alternative location is typically provided in advance and at the agency's discretion.
Refer to § 301-70.201 for when an agency can issue a blanket actual expense authorization exceeding the per diem rate.
The agency may reimburse an advance room deposit required by a lodging facility to secure a room reservation before scheduled official travel. If the employee fails to perform the scheduled travel for reasons unacceptable to the agency and forfeits the deposit, the employee is indebted to the Government and must repay the amount as prescribed by the agency.
Employees are reimbursed for actual and necessary expenses, not to exceed the applicable lodging per diem rate.
(a) Except as provided in paragraph (b) of this section, when travel is more than 12 but less than 24 hours, employees receive a per diem allowance of 75 percent of the applicable M&IE rate for each calendar day they are in a travel status. If their travel is 24 hours or more, on the first day of departure and last day of travel, they receive 75 percent of the applicable M&IE rate. Full days of travel are reimbursed at 100 percent of the applicable M&IE rate.
(b) For travel by ship, whether commercial or Government, the agency will determine an appropriate rate within the applicable M&IE rate.
(a) Except as provided in paragraph (c) or (d) of this section, when M&IE per diem is authorized and meals are provided, either by the Government or included in the registration fee, including meals furnished under the authority of chapter 304 of this subtitle, employees must adjust the amount reimbursed by deducting the appropriate amount shown at https://www.gsa.gov/mie.
(b) For meals provided on the day of departure and the last day of travel, employees must deduct the entire allocated meal cost from the decreased M&IE rate. The total amount of meal deductions made will not cause employees to receive less than the amount allowed for incidental expenses.
(c) Employees do not need to deduct meals provided by a common carrier or a complimentary meal provided by a hotel/motel.
(d) Agencies may allow employees to claim the full M&IE amount if the employee was unable to take part in a Government-furnished meal due to the conduct of official business or:
(1) Was unable to consume the furnished meal(s) because of medical requirements or religious beliefs and purchased substitute meals instead; and
(2) If the employee had advance knowledge of the meals to be furnished:
(i) Requested specific approval to claim the full M&IE allowance prior to travel; and
(ii) Made a reasonable effort to make alternative meal arrangements but was unable to do so.
An agency may prescribe a reduced per diem rate lower than the prescribed per diem rate under the following circumstances:
(a) When the agency can determine in advance that lodging and/or meal costs will be lower than the per diem rate, such as when two employees share a room or kitchen facilities are available, reducing the need for buying prepared meals; and
(b) The lowest authorized rate must be stated in the travel authorization before travel or the traveler must be given sufficient notice once travel has begun to adjust spending (i.e., finding and occupying alternative lodging).
Employees must itemize all expenses, including meals (with each meal itemized separately), for which they will be reimbursed under the actual expense method. Receipts are required for:
(a) Lodging, regardless of amount; and
(b) Any individual meal exceeding $75 in cost.
A taxable extended TDY assignment is a TDY assignment that continues long enough that, under the Internal Revenue Code (IRC), the employee is no longer considered temporarily away from home during any period of employment exceeding one year. The status change becomes effective on the date when either the employee or the agency recognizes the assignment will exceed one year. As soon as either the employee or agency recognizes the assignment will exceed one year-
(a) The recognizing party must notify the other; and
(b) The agency must immediately change the employee's status.
(a) For a taxable extended TDY assignment, all travel expense allowances, reimbursements, and direct Government payments made on the employee's behalf in connection with the assignment become taxable income, starting from the date the assignment is recognized as exceeding one year. The agency will reimburse the employee for substantially all income taxes incurred as a result of their taxable extended TDY assignment, through two components:
(1) Withholding Tax Allowance (WTA); and
(2) Extended TDY Tax Reimbursement Allowance (ETTRA).
(b) The WTA and ETTRA cover only TDY benefits described in this subchapter. On an extended TDY assignment, the employee is not eligible for relocation benefits they would have received on a permanent relocation.
(a) If the agency knows from the beginning that the TDY assignment qualifies as taxable extended TDY, the agency will:
(1) Withhold a WTA;
(2) Pay the WTA as withholding tax to the Internal Revenue Service (IRS) until the assignment ends; and
(3) Increase (or “gross-up”) the WTA amount to reimburse the employee for additional taxes on the WTA.
(b) If the agency realizes during the TDY assignment that taxes will be incurred, the agency will:
(1) Compute the WTA for all taxable benefits received since recognizing the assignment is no longer “temporarily away from home”;
(2) Pay the computed amount to the IRS; and
(3) Begin paying WTA to the IRS until the extended TDY assignment ends.
(c) For the ETTRA, the agency will use the same one-year or two-year process chosen for the relocation income tax allowance (RITA). Additional information on WTA and RITA processes is available in part 302-17 of this subtitle.
(d) If the agency offers a choice, the WTA is optional for the employee.
Employees should provide the information their agency requires to make the ETTRA calculation. This will include tax information for any Federal and State tax returns filed for the year that the employee was on a taxable extended TDY assignment. Employees should submit this information at the beginning of the extended TDY assignment, or as soon as the employee or agency realizes the assignment will incur taxes.
(a) For the CONUS per diem rates, see applicable FTR Per Diem Rate Bulletins, issued periodically and available at https://www.gsa.gov/perdiem;
(b) For non-foreign areas, see applicable Per Diem Rate Bulletins issued by the Department of Defense and published periodically in the
(c) For foreign area per diem rates, see per diem rate supplement to section 925, Department of State Standardized Regulations (Government Civilians-Foreign Areas) and available at https://aoprals.state.gov/web920/per_diem.asp.
Miscellaneous expenses are costs related to official travel that are necessary, in the interest of the Government, and not covered by other specific allowances. Expenses that are authorized or approved by the agency will be reimbursed as miscellaneous expenses. Taxes for reimbursable lodging are considered approved when the lodging is authorized.
Agencies may approve reimbursement of common carrier fees for one standard size and weight checked bag. Agencies may approve additional baggage in accordance with agency internal policies.
In accordance with the Rehabilitation Act of 1973, as amended (29 U.S.C. 701 et seq.) and 5 U.S.C. 3102, an agency will pay additional travel expenses when necessary to reasonably accommodate a special physical need that is clearly visible and discernible; or substantiated in writing by a competent medical authority. Agencies should authorize and administer the payment to reasonably accommodate employee(s) with special needs.
The agency approving official may pay expenses deemed necessary by the agency to reasonably accommodate a special need, including:
(a) Transportation and per diem expenses for an immediate family member or attendant required to accompany the employee;
(b) Specialized transportation to, from, and at the temporary duty location;
(c) Specialized services from a common carrier to accommodate the special need;
(d) Baggage handling costs directly resulting from the special need;
(e) Renting and transporting a wheelchair;
(f) Other than coach class accommodations to accommodate the special need; and
(g) Services of an attendant when necessary to accommodate the special need.
For limits on attendant payments beyond travel expenses, refer to 5 U.S.C. 3102 and guidance available at https://www.opm.gov/FAQs.
Employee emergency travel is travel resulting from:
(a) Becoming incapacitated by illness or injury not due to the employee's own misconduct;
(b) The death or serious illness of a member of the employee's “immediate family” as defined in § 300-1.1 of this subtitle. The agency may, on a case-by-case basis, expand the definition of “immediate family” to include additional members of the employee's or spouse's/domestic partner's extended family; or
(c) A catastrophic occurrence or impending disaster, such as fire, flood, or act of God, directly affecting the employee's home.
Employees must contact their travel authorizing/approving official for instructions as soon as possible when needing to interrupt or discontinue TDY.
The agency may pay:
(a) Per diem expenses while the employee is on leave (annual or sick), not to exceed the per diem rate at the location where the employee incurred or was treated for the incapacitating illness or injury, for a reasonable period that generally may not to exceed 14 calendar days (including fractional days) for any one period of absence. Agencies may approve a longer period of time if justified.
(b) The following additional expenses when the employee discontinues a TDY assignment before its completion due to an incapacitating illness or injury:
(1) Transportation and per diem expenses for travel to an alternate location for medical treatment.
(2) Transportation and per diem expenses to return to the official station.
(3) Transportation costs for a medically necessary attendant.
Expenses are not payable when:
(a) The employee is confined to a medical facility within the proximity of their official station or the same medical facility they would have been admitted to if the incapacitating illness or injury had occurred at their official station.
(b) The Government provides or reimburses the employee for hospitalization under any Federal statute, including hospitalization in a Department of Veterans Affairs (VA) Medical center or military hospital. However, per diem expenses remain payable if the employee's hospitalization is covered under the Federal Employees Health Benefits Program (5 U.S.C. 8901 et seq.).
(c) If any of these expenses are paid to the employee by mistake, they must be collected from the employee by the agency.
To protect law enforcement/investigative employees and their “immediate family” (as defined in § 300-1.1 of this subtitle) when their lives are placed in jeopardy as a result of the employee's assigned duties. The agency may, on a case-by-case basis, expand the definition of “immediate family” to include other members of the employee's and/or the employee's spouse's or domestic partner's extended family.
The agency is not required to pay transportation and subsistence expenses. The decision to pay depends on the agency's assessment of the threat against the employee's or immediate family member's life.
The agency designates the area where the employee and/or immediate family should obtain lodging, which may be within the official station or at an alternate location. The employee and immediate family may occupy lodging at different locations if authorized by the agency.
The agency may pay transportation expenses authorized by part 301-10 of this subchapter to transport the employee and/or family to/from a temporary location.
Agencies may only pay lodging costs. However, the agency may pay for meals and laundry/cleaning expenses if:
(a) The temporary living accommodations do not have kitchen or laundry facilities; or
(b) The agency determines that other extenuating circumstances exist which necessitate payment of these expenses.
The agency may not pay a per diem allowance instead of actual expenses.
Employees must keep track of actual expenses as described in part 301-11 of this subchapter, and must provide receipts or any other documentation required by their agency for reimbursement. However, in instances when documentation might compromise the security of the individuals involved, the head of the agency may waive these requirements.
Employees may receive a travel advance under § 301-51.200 of this chapter for up to a 30-day period at a time to cover allowable expenses, subject to the requirement to reimburse the agency for any portion of the advance disallowed or not spent. The travel advance may not exceed the maximum allowable amount authorized in this part.
Employees of an agency as defined in § 300-1.1 of this subtitle must arrange all TDY travel using the online booking tool offered by ETS, unless extenuating circumstances prevent such use, such as when attending a conference where the conference sponsor has negotiated with one or more lodging facilities to set aside a number of rooms for attendees, and employees must book directly with the facility to receive the negotiated rate. If an exception to ETS use is granted in accordance with this part, employees must use their agency's TMS. Employees of the Department of Defense, the legislative branch, or the Government of the District of Columbia must arrange travel in accordance with their agency's TMS.
(a) The agency head or their designee may grant an individual case exception in writing or through electronic means to the required use of ETS, or the agency's TMC or TMS if otherwise exempted from ETS use per paragraph (b) of this section. Any exception granted must be consistent with any contractual terms applicable to the TMC, TMS, or ETS.
(b) The Administrator of General Services or the Administrator's designee may grant an agency-wide exception (or exempt a component thereof) from the required use of ETS when requested by the head of a Department (cabinet-level agency) or head of an independent agency when the agency has presented a business case analysis to the General Services Administration that proves that it has an alternative TMS to the ETS and is in the best interest of the Government.
(1) As a condition of receiving an exception, the agency must agree to conduct annual business case reviews of its TMS and must provide to the ETS Program Management Office (PMO) data elements required by the ETS PMO in a format prescribed by the ETS PMO.
(2) Requests for exceptions should be addressed to the Administrator of General Services and sent to travelpolicy@gsa.gov with full justification and/or analysis.
The employee is responsible for any additional costs resulting from the failure to use the ETS or their agency's TMS or TMC if they do not have an exception to use. In addition, the agency may take appropriate disciplinary actions.
Employees are required to use the Government contractor-issued travel charge card for all official travel expenses unless:
(a) Payment through the card is impractical (e.g., a vendor does not accept the travel charge card) or imposes unreasonable burdens or costs; or
(b) The Administrator of General Services or the agency head or their designee has granted an exemption under § 301-51.2.
(a) The Administrator of General Services exempts from mandatory use of the Government contractor-issued travel charge card any payment, person, type or class of payments, or type or class of personnel in any case in which—
(1) It is in the best interest of the United States to do so;
(2) Payment through a travel charge card is impractical or imposes unreasonable burdens or costs on Federal employees or Federal agencies; or
(3) The Secretary of Defense or the Secretary of Homeland Security (for the Coast Guard) requests an exemption for members of their uniformed services.
(4) The Administrator of General Services has exempted the following classes of employees from mandatory use of the Government contractor-issued travel charge card:
(i) Employees who have a pending application for the Government contractor-issued travel charge card;
(ii) Employees for which issuance of the Government contractor-issued travel charge card would adversely affect the mission or put the employee at risk; or
(iii) Employees who are not eligible to receive a Government contractor-issued travel charge card.
(b) The head of a Federal agency or their designee(s) may exempt any payment, person, type or class of payments, or type or class of agency personnel if the exemption is determined to be necessary in the interest of the agency. Agencies must notify the Administrator of General Services, Office of Government-wide Policy, at travelpolicy@gsa.gov, within 30 days after granting an exemption from the mandatory use of the Government contractor-issued travel charge card, stating the reasons for the exemption.
An agency-granted exemption does not prevent the employee from using the Government contractor-issued travel charge card on a voluntary basis for official travel expenses.
If an employee receives an exemption from use of the Government contractor-issued travel charge card, the agency may authorize use of personal funds, travel advances, or Government Transportation Request (GTR). The General Services Administration City Pair Program contractors are not required to accept payment by personal funds or travel advances.
Employees may not use the Government contractor-issued travel charge card for personal reasons. Agencies should establish internal policies and procedures defining what are considered to be misuses of the Government contractor-issued travel charge card. Appropriate action may be taken pursuant to those policies if an employee fails to activate the Government contractor-issued travel charge card within 60 days of receipt or misuses the travel charge card.
Employees must use a Government contractor-issued individually billed travel charge card, centrally billed account, GTR, or other method of payment authorized in accordance with their agency's internal policy to procure common carrier transportation.
(a) The following payment methods are considered the equivalent of cash:
(1) Personal credit cards;
(2) Cash withdrawals obtained from an ATM using a Government contractor-issued individually billed travel charge card; and
(3) Checks, both personal and travelers.
(b) Agencies must comply with § 102-118.30 of this title, which limits payment of transportation services to electronic fund transfer (EFT), unless excepted.
If an employee makes an unauthorized cash purchase of common carrier transportation, the agency may limit reimbursement to the cost of such transportation using the authorized method of payment.
(a) Limited reimbursement. For cash payments that an agency determines were made under non-emergency circumstances, reimbursement to the traveler is limited to the cost that would have been properly chargeable to the Government had the traveler used a government provided payment resource, such as an individual Government contractor-issued travel charge card, centrally billed account, or GTR.
(b) Full reimbursement. Agencies may choose to make full payment when circumstances justify it, such as for invitational travel, trips by infrequent travelers, and interviewee travel.
An employee is liable for any Government expenditure that is caused by the employee's negligence in safeguarding the GTR or tickets received in exchange for the GTR. To avoid liability, the employee should immediately report a lost or stolen GTR to their administrative office. If the lost or stolen GTR shows the carrier service desired and point of origin, the employee should promptly notify in writing the named carrier and other local initial carriers. The employee should not use a GTR recovered after having been reported as lost or stolen. Instead, the employee should report the recovered GTR to their administrative office.
Employees may receive a travel advance for expenses deemed necessary by the agency while on official travel. Advances for non-cash transaction expenses may be authorized in accordance with the agency's internal policies.
The amount the agency advances the employee may not exceed the following amounts:
Table 1 to § 301-51.201
| For | The maximum amount the agency may advance is |
|---|---|
| Cash transaction expenses | The estimated amount of the employee's cash transaction expenses. |
| Non-cash transaction expenses (See § 301-51.200) | Generally zero, however see § 301-51.200. If the employee is authorized a travel advance for non-cash transaction expenses, the agency will determine the maximum amount the employee is authorized to receive. |
Employees must account for their travel advance after completion of their assignment. The employee must file a travel claim which accounts for the advance in accordance with the agency's policy. If the employee is in continuous travel status or submits periodic reimbursement vouchers on an individual trip authorization, the agency may reimburse the full amount of the employee's travel expenses without any deduction of the advance until such time as the employee files a final voucher.
(a) If the amount advanced is less than the amount of the voucher on which it is deducted, the employee will be reimbursed the net amount.
(b) If the advance exceeds the reimbursable amount, the employee must immediately refund the excess.
If a trip is canceled or postponed indefinitely, the employee must notify the appropriate agency officials and refund any monies advanced.
Employees must file a travel claim and provide the following information:
(a) Receipts for any lodging expenses and other expenses costing over $75, and an itemized list of expenses and other information (specified in the listing of required standard data elements, and any additional information the agency may specifically require), except:
(1) The employee may aggregate official travel-related expenses incurred at the TDY location for authorized telephone calls, transit system fares, and parking meter fees, except any individual expenses costing over $75 must be listed separately.
(2) When the employee is authorized a reduced per diem rate for lodging, the employee must state the reduced daily rate the agency authorized.
(3) When the employee is authorized a reduced per diem rate for M&IE, the employee must state the reduced daily rate the agency authorized.
(4) The agency may choose whether or not to require itemization of M&IE when a reduced M&IE rate is authorized.
(5) Receipts must be retained for 6 years as prescribed by the National Archives and Records Administration (NARA) under General Records Schedule 1.1, item 010 (https://www.archives.gov/files/records-mgmt/grs/grs01-1.pdf).
(6) The employee must submit a travel claim within 5 working days after trip completion or period of travel; or at most every 30 days for if the employee is on a continuous travel status unless the agency administratively requires submission within a shorter timeframe.
(7) The agency may exempt an expenditure from the receipt requirement because the expenditure is confidential.
(b) Type of leave and the number of hours of leave for each day.
(c) The date of arrival and departure from the TDY station.
(d) Evidence of the employee's necessary travel expenses including any necessary special authorizations.
Employees must use the format prescribed by ETS to file travel claims, unless the agency has been granted, or has granted the employee, an exception from required use of the ETS in accordance with § 301-50.2 of this subchapter.
The agency may disallow payment of a claimed item if the employee:
(a) Does not provide proper itemization of an expense;
(b) Does not provide required receipt(s) or other documentation required to support their claim; or
(c) Claims an expense which is not authorized.
Employees may request reconsideration of the agency's disallowance of their claim if the employee has additional facts or documentation to support the request for reconsideration. To challenge a disallowed claim, the employee must:
(a) File a new claim.
(b) Provide full itemization for all disallowed items reclaimed.
(c) Provide receipts for all disallowed items reclaimed that require receipts, unless the agency already has the receipt.
(d) Provide a copy of the notice of disallowance.
(e) State the proper authority for the claim if the employee is challenging the agency's application of the law or statute.
(f) Follow the agency's procedures for challenging disallowed claims.
(g) If after reconsideration by the agency, the claim is still denied, the employee may submit the claim for adjudication to the Civilian Board of Contract Appeals in accordance with 48 CFR part 6104.
Employees must account for any travel advance outstanding at the time they submit their travel claim in accordance with the agency's procedures. Agencies are responsible for ensuring the collection of outstanding travel advances.
Employees must submit any unused tickets or other evidence of refund to their agency in accordance with the agency's procedures.
The agency must reimburse the employee within 30 calendar days after the employee submits a proper travel claim to the agency's designated approving official. The 30-day requirement in this section does not apply to the following relocation allowances:
(a) Transportation and storage of household goods and professional books, papers, and equipment;
(b) Transportation of a mobile home;
(c) Transportation of a privately owned vehicle;
(d) Temporary quarters subsistence expense;
(e) Residence transaction expenses;
(f) Relocation income tax allowance;
(g) Use of a relocation services company;
(h) Home marketing incentive payments; and
(i) Allowance for property management services.
After the employee submits a travel claim, the agency must notify the employee in seven working days of any errors that would prevent payment within 30 calendar days after submission.
Employees will receive a late payment fee if the agency fails to reimburse them within 30 calendar days after submission of a proper travel claim to the approving official.
(a) To calculate late payment fees, the agency must either—
(1) Use the prevailing Prompt Payment Act Interest Rate beginning on the 31st day after submission of a proper travel claim and ending on the date on which payment is made; or
(2) Reimburse a flat fee of not less than the prompt payment amount, based on an agencywide average of travel claim payments.
(b) In addition to the fee required by paragraphs (a)(1) and (2) of this section, the agency must also pay an amount equivalent to the late payment charge that the card contractor would have been able to charge the employee had the employee not paid the bill.
A late payment fee will only be paid when the computed fee is $1.00 or greater.
Late payment fees will not be reported as wages on a Form W-2. The Internal Revenue Service (IRS) has determined that the late payment fee is in the nature of interest (compensation for money use). The agency will report payments in accordance with IRS guidelines.
The agency will report payment of the additional fee, which is equal to any late payment charge that the card contractor would have been able to charge had the employee not paid the bill, as additional wages on Form W-2.
An employee forfeits reimbursement pursuant to 28 U.S.C. 2514 if the employee attempts to defraud the Government, and may be subject under 18 U.S.C. 287 and 1001 to one, or both, of the following:
(a) A fine of not more than $10,000; or
(b) Imprisonment for not more than 5 years.
Promotional benefits or materials, such as frequent flyer miles may be retained for subsequent official travel or for personal use if such items are obtained under the same conditions as those offered to the general public and at no additional cost to the Government. If an employee is offered such benefits in connection with planning an official conference or other group travel, they are considered property of the Government and cannot be retained for personal use, but may be accepted on behalf of the Government for use on official travel.
Employees must use the travel service provider for which their agency is a mandatory user.
A denied boarding benefit is not a promotional item given by an airline. See the provisions of § 301-10.122 of this chapter when an airline denies a seat (involuntary) and § 301-10.123 of this chapter when an employee vacates their seat (voluntary).
When administering travel expense authorization and payment, agencies—
(a) Must consider the need for travel and limit the authorization and payment of travel expenses to travel that is necessary to accomplish the mission in the most economical and effective manner, under rules stated throughout this chapter;
(b) Must ensure that travel is booked as far in advance as possible in order to capture the greatest transportation and lodging savings; for conference and training travel, book at least 30 days in advance when possible;
(c) Should consider the most cost effective routing and means of accomplishing travel;
(d) Should consider the employee's travel plans, including plans to take leave in conjunction with official travel;
(e) Should give consideration to budget constraints, adherence to travel policies, and reasonableness of expenses;
(f) Should always consider alternatives to travel, including teleconferencing, prior to authorizing travel; and
(g) Must require employees to use the ETS to process travel authorizations and claims for travel expenses, unless an exception has been granted under § 301-50.2 of this chapter.
Agencies must—
(a) Limit authorization and payment of transportation expenses to those expenses that result in the greatest advantage to the Government; and
(b) Ensure that travel is by the most expeditious means practicable.
In selecting a particular method of transportation agencies must consider the following:
(a) The total cost to the Government, including per diem, overtime, lost worktime, actual transportation cost, total distance of travel, number of points visited, and the number of travelers, and any other relevant costs (see 5 U.S.C. 5733).
(b) A determination that another method of transportation is more advantageous to the Government will not be made on the basis of personal preference or inconvenience to the traveler.
(c) When authorizing use of a privately owned vehicle (POV), agencies are reminded that they cannot mandate employees to use their POV for official reasons; the employee must agree to it.
Agencies must establish policies and procedures governing—
(a) Who will determine what method of transportation is more advantageous to the Government;
(b) Who will approve any of the following:
(1) Use of other than coach class accommodations under § 301-10.100 of this chapter;
(2) Use of a special-reduced fare or reduced group or charter fare;
(3) Use of an extra-fare train service under § 301-10.160 of this chapter;
(4) Use of ship service;
(5) Use of a foreign ship; and
(6) Use of a foreign air carrier;
(c) When the agency will authorize use of a Government vehicle on TDY;
(d) When the agency considers the use of a POV advantageous to the Government, such as travel to and from common carrier terminals or to the TDY location. When determining whether the use of a POV to a TDY location is the most advantageous method of transportation, the agency must consider the total cost of using a POV as compared to the total cost of using a rental vehicle, including rental costs, fuel, taxes, parking (at a common carrier terminal—not to exceed the cost of taxi or transportation network company fare, etc.), and any other relevant costs;
(e) Procedures for claiming POV reimbursement;
(f) Procedures for allowing the use of a special conveyance (e.g., taxis, TNCs, innovative mobility technology companies, or commercially rented vehicles), taking into account the requirements of § 301-10.450 of this chapter;
(g) What procedures employees must follow when they travel by an indirect route or interrupt travel by a direct route;
(h) Whether to reimburse the full amount of transportation costs and in conjunction with TDY or only the amount by which transportation costs exceed the employee's normal costs for transportation between:
(1) Office or duty point and another place of business;
(2) Places of business; and
(3) Residence and place of business other than office or duty point; and
(i) Develop and issue internal guidance on what specific mission criteria justify use of other than coach class under § 301-10.100(k) of this chapter and the use of other than the least expensive compact car available under § 301-10.450(c) of this chapter. The justification criteria shall be noted on the traveler's authorization.
Agencies may not prohibit an employee from using a POV on official travel, but if the employee elects to use a POV instead of the authorized method of transportation, agencies must limit reimbursement to the constructive cost of the authorized method of transportation (see § 301-10.305 of this chapter) and charge leave for any duty hours that are missed as a result of travel by POV.
Agencies must establish policies and procedures governing—
(a) Who will authorize a rest period;
(b) Circumstances allowing a rest period during prolonged travel (see § 301-11.12 of this chapter for minimum standards);
(c) What constitutes a rest period upon arrival at a temporary duty location;
(d) If, and in what instances, the agency will allow an employee to return to the official station on non-workdays;
(e) Who will determine if an employee will be allowed to return to the official station on a case-by-case basis;
(f) Who will determine in what instances the agency will pay a reduced per diem rate;
(g) Who will determine, and in what instances, to issue a blanket actual expense authorization under § 301-70.201;
(h) What circumstances necessitate the extension of a blanket actual expense authorization under § 301-70.201; and
(i) Who may submit requests for per diem rate reviews on behalf of the agency.
Agencies may issue a blanket authorization for their employees to be reimbursed their actual expenses up to 300 percent of the per diem rate when assigned to perform TDY travel in an area subject to a Presidentially-Declared Disaster. These authorizations must apply to a specific Declaration, and will expire one year from the date the Declaration is issued unless an agency head or their designee extends the blanket authorization based on a determination of necessity. A blanket authorization issued under this section shall not apply to any travel performed pursuant to chapter 302 of this subtitle.
If agency travelers frequent a location where the per diem rate is insufficient to meet necessary expenses, the agency senior travel official or other employee authorized in accordance with § 301-70.200(i) may submit a request, containing pertinent cost data, asking that the location be reviewed. Depending on the location in question the review request may be submitted to:
Table 1 to § 301-70.202
| For CONUS locations | For non-foreign OCONUS area locations | For foreign area locations |
|---|---|---|
| General Services Administration, Office of Government-wide Policy, | Department of Defense, Defense Travel Management Office, | Department of State, Office of Allowances, |
Agencies must establish policies and procedures governing who will determine what types of miscellaneous expenses are appropriate for reimbursement in connection with official travel. Agencies are reminded that payment of miscellaneous expenses should be limited to only those expenses that are necessary and in the interest of the Government.
Each agency must establish policies and procedures to determine—
(a) When the agency will authorize employee emergency travel under part 301-30 of this chapter;
(b) Who will determine if an employee's situation warrants payment for emergency travel expenses;
(c) When and by whom travel to an alternate location other than the official station or point of interruption will be authorized; and
(d) Who will determine when and if the definition of immediate family may be extended and to whom.
The agency should not continue using the existing travel authorization if the interrupted trip was authorized under a trip-by-trip authorization. If, when the employee's health has been restored, the agency decides that it is in the Government's interest to return the employee to the TDY location, such return is considered to be a new travel assignment at Government expense. An interrupted trip authorized under an open or limited open authorization may be continued without further authorization.
(a) When an employee interrupts a TDY assignment because of incapacitating illness or injury and takes leave of absence for travel to an alternate location to obtain medical services and returns to the TDY assignment, the agency may reimburse certain excess travel costs provided in this section. Specifically, the agency may reimburse the excess (if any) of actual costs of travel costs from the point of interruption to the alternate location and return to the TDY assignment, over the constructive costs of round-trip travel between the official station and the alternate location.
(b) An alternate location is a destination other than the employee's official station or the point of interruption. The nearest hospital or medical facility capable of treating the employee's illness will not, however, be considered an alternate location.
(a) Actual cost of travel will be the transportation expenses incurred and en route per diem expenses for the travel as actually performed from the point of interruption to the alternate location and from the alternate location to the TDY assignment. No per diem expenses are allowed for time spent at the alternate location if confined to a medical facility.
(b) Constructive cost is the sum of travel and transportation expenses the employee would reasonably have incurred for round-trip travel between the official station and the alternate location plus per diem expenses calculated for the appropriate en route travel time. The calculation will necessarily involve assumptions. Examples of related expenses that could be considered constructive costs include, but are not limited to, taxi and TNC fares, baggage fees, rental car costs, tolls, ferry fees, and parking charges.
The agency, with the approval of an appropriate agency official, may authorize reimbursement of appropriate transportation and per diem expenses while en route for return travel from the point of interruption to the official station.
The agency may reimburse certain excess travel costs (transportation and en route per diem expenses) to the same extent as provided in § 301-30.3(a) of this chapter for incapacitating illness or injury to the employee.
Agencies must consider on a case-by-case basis:
(a) The extent of the emergency;
(b) The employee's relationship to the individual involved in the emergency; and
(c) The degree of the employee's responsibility for the individual involved in the emergency.
Agencies must establish policies and procedures governing:
(a) When the agency will pay transportation and subsistence expenses of threatened law enforcement/investigative employees, under part 301-31 of this chapter;
(b) Who will determine the degree, legitimacy, and seriousness of threat to life in each individual case;
(c) Who will determine what protective action should be taken, including the location and duration of temporary lodging and whether relocating the employee permanently would be advantageous;
(d) Who will reevaluate the situation to determine whether protective action should be continued or discontinued and how often;
(e) What procedures must be followed to obtain authorization of transportation and subsistence expenses for threatened law enforcement/investigative employees; and
(f) What special procedures must an employee follow to claim expenses.
Agencies must reevaluate the payment of transportation and subsistence expenses to threatened law enforcement/investigative employees every 30 days based on the same factors the agency considered when the agency first authorized the payment of the expenses.
(a) Agencies must ensure that travel on a Government aircraft is the most cost-effective alternative that will meet the travel requirement. The designated travel approving official must—
(1) Compare the cost of all travel alternatives, as applicable, that is—
(i) Travel on a scheduled commercial airline;
(ii) Travel on a Federal aircraft;
(iii) Travel on a Government aircraft hired as a commercial aviation service (CAS); and
(iv) Travel by other available modes of transportation; and
(2) Approve only the most cost-effective alternative that meets the agency's needs.
(3) Consider the cost of non-productive or lost work time while in travel status and certain other costs when comparing the costs of using Government aircraft in lieu of scheduled commercial airline service and other available modes of transportation.
(b) The aircraft management office in the agency that owns or hires the Government aircraft must provide the employee's designated travel-approving official with cost estimates for a Government aircraft trip (i.e., a Federal aircraft trip cost or a CAS aircraft trip cost).
(c) When an agency operates a Government aircraft to fulfill a non-travel related governmental function or for required use travel, using any space available for passengers on official travel is presumed to result in cost savings.
Agencies must retain all travel authorizations and cost-comparisons for travel on Government aircraft for two years.
The rules in this part and §§ 301-10.260 through 301-10.265 of this chapter do not apply to travel on Government aircraft by the President and Vice President or by individuals traveling in support of the President and Vice President.
Agencies may use Government aircraft, i.e., aircraft that the agency owns, borrows, operates as a bailed aircraft, or hires as a CAS, to carry Federal and non-Federal travelers, but only in accordance with the rules in part 102 of this title and regulations in this part.
The agency head or their designee must approve use of the agency's Government aircraft for travel, i.e., for carrying passengers and any crewmembers or qualified non-crewmembers who are also traveling. This approval must be in writing and may be for recurring travel.
Except for travel authorized under 10 U.S.C. 2648, the agency must certify in writing before carrying passengers on a space available basis on the agency's Government aircraft that the aircraft is scheduled to perform a bona fide governmental function. Bona fide governmental functions may include support for official travel. The agency must also certify that carrying a passenger in space available does not cause the need for a larger aircraft and does not result in more than minor additional cost to the Government. The agency's aircraft management office must retain this certification for two years. In an emergency situation, prior verbal approval with an after-the-fact written certification is permitted.
To ensure Government aircraft are the most cost-effective alternative for travel, the agency's aircraft management office must calculate the cost of a trip on the Government aircraft, whether Federal aircraft Federal or CAS aircraft, and submit that information to the traveler's designated travel-approving official upon request. The designated travel-approving official must use that information to compare the cost of using Government aircraft with the cost of scheduled commercial airline service and the cost of using other available modes of transportation. When the agency operates a Government aircraft to fulfill a non-travel related governmental function or for required use travel, using any space available for passengers on official travel is presumed to result in cost savings.
Every traveler on one of the agency's Government aircraft must have a written travel authorization from an authorizing executive agency, and they must present that authorization, before the flight, to the aircraft management office or its representative in the organization that owns or hires the Government aircraft. In addition to all passengers, those crewmembers and qualified non-crewmembers on a flight in which they are also traveling (i.e., being transported from point to point) are considered travelers and must also be authorized to travel on Government aircraft.
(a) Agencies must retain for two years copies of travel authorizations for senior Federal officials and non-Federal travelers who travel on the agency's Government aircraft.
(b) Agencies must also retain for two years the following information for each flight:
(1) The tail number of the Government aircraft used.
(2) The dates used for travel.
(3) The name(s) of pilot(s), other crewmembers, and qualified non-crewmembers.
(4) The purpose(s) of the flight.
(5) The route(s) flown.
(6) The names of all passengers.
(a) Except when trips are classified, agencies that own or hire Government aircraft must report to the General Services Administration (GSA), Office of Government-wide Policy, all uses of the agency's aircraft for travel by any senior Federal official or non-Federal traveler, by using the electronic reporting tool found at https://www.travel.reporting.gov/TRAVEL/s/login/, unless travel is authorized under 10 U.S.C. 2648.
(b) Reports are due on a semi-annual basis. The reporting periods are October 1 through March 31 and April 1 through September 30 of each fiscal year. A report is due to GSA not later than 30 calendar days after the close of each reporting period and must contain the following information:
(1) The person's name with an indication that the traveler is either a senior Federal official or a non-Federal traveler, whichever is appropriate.
(2) The traveler's organization and title or other appropriate descriptive information, e.g., dependent, press, etc.
(3) Name of the authorizing agency.
(4) The official purposes of the trip.
(5) The destination(s).
(6) For personal or political travel, the amount that the traveler must reimburse the Government (i.e., the full coach fare or appropriate share of that fare).
(7) For official travel, the comparable City Pair fare (if available to the traveler) or the full coach fare if the City Pair fare is not available.
(8) The cost to the Government to carry this person (i.e., the appropriate allocated share of the Federal or CAS aircraft trip costs).
Most of the information required by paragraphs (b)(1) through (7) of this section can be found on the traveler's travel authorization.
(c) The aircraft management office must provide the information about crewmembers and qualified non-crewmembers required by paragraph (b)(2) of this section as well as the information required by paragraph (b)(8) of this section.
Agencies must give each person aboard their aircraft a copy of the following disclosure statement:
Note: The disclosure contained herein is not all-inclusive. Employees should contact the sponsoring agency for further assistance.
Generally, an aircraft used exclusively for the U.S. Government may be considered a 'public aircraft' as defined in 49 U.S.C. 40102 and 40125, unless it is 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 a U.S. Government agency transports passengers on a Government aircraft, that agency must comply with all Federal aviation regulations applicable to civil aircraft. If you have questions about the status of a particular flight, you should contact the agency sponsoring the flight.
You and your family have certain rights and benefits in the unlikely event you are injured or killed while riding aboard a Government 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 Department of Labor's Office of Workers' Compensation Programs at https://www.dol.gov/agencies/owcp/FECA/contacts/fecacont. (These rules also apply to travel on other Government-owned or operated conveyances such as cars, vans, or buses.)
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.
Some insurance policies may exclude coverage for injuries or death sustained while 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.
If you are the victim of an air disaster resulting from criminal activity, Victim and 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) is authorized by the Antiterrorism Act of 1996 to provide emergency financial assistance to state programs, as well as the U.S. Attorney's Office, for the benefit of victims of terrorist acts or mass violence.
If you are a Federal employee:
1. If you are injured or killed on the job during the performance of duty—including while traveling aboard a Government aircraft or other government-owned or operated conveyance for 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.
2. 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.
If you are a private citizen not employed by the Federal Government:
1. Even if you are not regularly employed by the Federal Government, 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 depart, you may wish to consult with the department or agency sponsoring the flight to clarify whether you are considered a Federal employee.
2. If there is a determination that you are not a Federal employee, you and your family will not be eligible to receive workman's compensation benefits under FECA. If you are traveling for business purposes, you may be eligible for workman's compensation benefits under state law. If the 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.
The agency travel accounting system is designed to:
(a) Pay authorized and allowable travel expenses of employees.
(b) Provide standard data necessary for managing official travel.
(c) Ensure comprehensive accounting for all travel and transportation expenses related to official travel.
The data elements are listed at https://ussm.gsa.gov/fibf-travel/ or can be sent to agencies upon request by emailing travelpolicy@gsa.gov; these elements must be on any travel claim form authorized for use by employees.
The travel authorization process serves to:
(a) Inform employees about authorized expenses.
(b) Provide travel service vendors with documentation for travel programs.
(c) Generate financial information for budgetary planning.
(d) Identify the specific purpose of travel.
Agencies may issue a single travel authorization for a group of employees when they are traveling together on the same trip. However, the agency must attach a list of all travelers to the authorization.
Open authorization (i.e., Unlimited Open or Limited Open) of other than coach class transportation accommodations is prohibited and shall be authorized on an individual trip by trip basis, unless the traveler has an up to date documented medical disability or special need (see § 301-10.100 of this chapter).
Travel authorizations must include:
(a) Name(s) of employee(s);
(b) Signature of the proper authorizing official;
(c) Purpose of travel;
(d) Conditions or limitations of the authorization;
(f) Estimated travel costs (including estimated costs for the entire period for open authorizations); and
(g) A statement confirming the employee(s) is/are authorized to travel.
Generally, the travel authorization must be signed by the agency head or their delegate; authority may be delegated; however, agencies should consult relevant sections in this subtitle for exceptions to the general rule regarding the appropriate official to sign the travel authorization. For example, the appropriate official to sign the authorization for travel on a Government aircraft is determined under §§ 301-10.260 through 301-10.265 and 301-70.800 through 301-70.907 of this chapter.
Agencies must establish clear guidelines for using different types of travel authorizations, consistent with the regulations in this chapter, and specific criteria identifying who is authorized to sign travel authorizations.
Travel claims must be reviewed and signed by the travel authorizing/approving official or designated representative (such as the traveler's supervisor).
The reviewing official must have full knowledge of the employee's activities. The reviewing official must ensure:
(a) The claim is properly prepared in accordance with the pertinent regulations in this subtitle and agency procedures;
(b) A copy of authorization for travel is provided;
(c) The types of expenses claimed are authorized and allowable expenses;
(d) The amounts claimed are accurate; and
(e) The required receipts, statements, justifications, etc., are attached to the electronic travel claim.
Agencies may pay a travel claim without a corresponding authorization if the claim is signed by the approving/authorizing official, except for the travel arrangements at § 301-2.3(a), (c), (f), and (g) of this chapter.
The certifying official assumes ultimate responsibility under 31 U.S.C. 3528 for the validity of the claim and certifies the voucher within the agency travel accounting system (Financial Management) prior to authorizing the voucher for payment; however:
(a) The traveler must ensure all travel expenses are prudent and necessary and submit the expenses in the form of a proper claim; and
(b) The authorizing/approving official shall review the completed claim to ensure that the claim is properly prepared in accordance with regulations in this subtitle and agency procedures prior to authorizing it for payment.
When disallowing a travel claim, the agency must:
(a) Pay the undisputed portion of the travel claim;
(b) Provide the employee with a detailed explanation for the claim's disallowance; and
(c) Inform the employee:
(1) How to appeal the disallowance;
(2) About the agency's appeal process; and
(3) Of the schedule for deciding the appeal.
Agencies should minimize the use of cash travel advances, and not require employees to pay travel expenses using personal funds.
Travel advances may be issued for a reasonable period, not to exceed 45 days.
The travel advance accounting system must capture:
(a) Names and Social Security numbers of employees with advances;
(b) Amount of each advance;
(c) Issuance date; and
(d) Reconciliation date for unused advance portions.
Exceptions apply when an employee is:
(a) In continuous travel status;
(b) The agency reviews outstanding travel advances periodically (within 45 days or less); and
(c) The agency determines and collects any excess balance beyond estimated travel expenses for the authorized period.
When the outstanding advance exceeds the amount owed to the employee, then the employee must reimburse the agency for the difference in accordance with internal agency policy. Failure to collect the amount in excess of substantiated expenses will cause a violation of the accountable plan rules contained in the Internal Revenue Code (title 26 of the United States Code).
If an employee does not repay a travel advance when filing a travel claim, the agency should:
(a) Offset against the employee's salary, retirement credit, or other amounts owed to the employee;
(b) Deduct from any Government-owed amount; or
(c) Pursue any other legally permissible method of debt recovery.
Accountability for cash advances for travel, recovery, and reimbursement shall be in accordance with 31 U.S.C. 3511 through 3513.
The travel accounting system must:
(a) Authorize the methods of payment outlined in the agency's internal policy in accordance with part 301-51 of this chapter;
(b) Correlate travel data accumulated by the agency's authorization and claims accounting systems with common carrier transportation documents and data for audit purposes;
(c) Identify unused tickets for refund;
(d) Collect unused, partially used, or downgraded/exchanged tickets, from travelers upon completion of travel;
(e) Track denied boarding compensation from employees;
(f) Identify and collect refunds due from carriers for overpayments, or unused, partially used, or downgraded/exchanged tickets; and
(g) Reconcile all centrally billed travel expenses (e.g., airline, lodging, car rentals, etc.) with travel authorizations and claims to assure that only authorized charges are paid.
Agencies must establish administrative procedures providing-
(a) Written instructions explaining traveler liability for the value of tickets issued until used or properly accounted for on the travel voucher;
(b) Instructions for submitting payments received from carriers for failure to provide confirmed reserved space;
(c) The traveler with a “bill charges to” address, so that the traveler can provide this information to the carrier for returned or exchanged tickets; and
(d) Procedures for promptly identifying any unused tickets or other evidence of refund due the Government.
(a) For unused or partially used tickets purchased with GTRs. The agency must obtain the unused or partially used ticket from the traveler, issue Standard Form 1170 (SF 1170), “Redemption of Unused Ticket,” to the airline and or travel agency that issued the ticket, maintain a suspense file to monitor the airline/travel agency refund, and record and deposit the airline/travel agency refund upon receipt.
(b) For unused or partially used tickets purchased under centrally billed accounts. The agency must obtain the unused ticket from the traveler, return it to the issuing office that furnished the airline ticket, obtain a receipt indicating a credit is due, and confirm that the value of the unused ticket has been credited to the centrally billed account.
(c) For exchanged tickets purchased with GTRs. The agency must obtain the airline/travel agency refund application or receipt from the traveler, and maintain a suspense file to monitor the airline/travel agency refund.
The Federal travel management program includes an ETS, a TMC that provides reservation and ticketing support, and management reports on reservation and ticketing activities, a travel payment system for paying travel service providers, contracts, and similar arrangements with transportation and lodging providers, and a travel management reporting system that covers financial and other travel characteristics required by the Travel Reporting Information Profile (TRIP) report (see § 301-80.1 of this subchapter).
Agencies must—
(a) Designate an authorized representative to administer the program, establish internal policies and procedures to govern use of the program, and require employees to use ETS instead of another Travel Management Service (TMS) or TMC, except when an exception has been granted under § 301-50.2 of this chapter; and
(b) Ensure agency-contracted TMC complements ETS and supports data exchange in an efficient and cost-effective manner.
Agencies are responsible for providing funds and personnel resources for ETS transition, and establishing interfaces between ETS standard data output and business systems (e.g., financial, human resources).
A travel payment system facilitates the payment of official travel and transportation expenses. Agencies must participate in GSA's travel payment system services program unless the agency is not a mandatory user of GSA's charge card program.
Agencies may pay pre-employment interview travel expenses if determined to be in the Government's best interest. However, pre-employment travel expenses may not be authorized to offset or defray other expenses not allowable under this part.
If the agency decides to pay per diem expenses or common carrier transportation costs, it must cover the full amount the interviewee would be entitled to if the interviewee were a Government employee traveling on official business.
Agencies may pay expenses consistent with those allowed for employees traveling on temporary duty, as specified in this subtitle with the exception of:
(a) Communication services for purposes other than communication directly related to travel arrangements for the Government interview.
(b) Hire of a room at a hotel or other place to transact official business.
Table 1 to § 301-75.4
| For | Agency will |
|---|---|
| Common carrier transportation expenses other than transit systems at the agency's location | Bill the expenses to a centrally billed or other agency established account. Agencies may provide the traveler with a GTR only if no other option is available or feasible.
Interviewees may not receive travel advances or use individual Government contractor-issued charge cards. |
| Other expenses | Require payment by the interviewee and reimburse the interviewee for allowable travel expenses upon submission and approval of the interviewee's travel claim. |
Agencies, upon written request from the contractor and in accordance with the procedures specified in § 301-76.100, may collect undisputed amounts owed to a Government travel charge card contractor from the delinquent employee's disposable pay. The agency must promptly forward all amounts deducted to the contractor.
Before collecting undisputed delinquent amounts, agencies must:
(a) Provide the employee written notice of the type and amount of the claim, the intention to collect the claim by deduction from the employee's disposable pay, and an explanation of the employee's rights as a debtor;
(b) Give the employee the opportunity to inspect and copy agency records related to the claim;
(c) Allow an opportunity for a review within the agency of the decision to collect the amount; and
(d) Provide the employee an opportunity to make a written agreement with the contractor to repay the delinquent amount.
The agency is responsible for ensuring all legal and due process requirements are met.
Agencies may only collect undisputed delinquent amounts after they have reimbursed the employee under the applicable travel regulations in this subtitle and in accordance with a proper travel claim. However, if the employee has not submitted a proper travel claim within the timeframe requirements of § 301-52.1(a)(6) of this chapter, and there are no extenuating circumstances, the agency may collect the undisputed delinquent amounts.
As set forth in the Travel and Transportation Reform Act of 1998 (5 U.S.C. 5701 note) the maximum amount an agency may deduct from the employee's disposable pay is 15 percent per pay period, unless the employee consents in writing to deduction of a greater percentage.
An agency as defined in § 300-1.1 of this subtitle must report total travel and transportation payments, including relocation, no later than November 30 of each year to GSA. This reporting includes specific information on payments for temporary duty travel in this subpart and specific information on employee relocation payments in part 302-1 of this subtitle. Information on agency reporting requirements is available at https://www.gsa.gov/trip.
Only the following categories of employees are generally eligible for relocation expense allowances under this chapter:
(a) A new appointee appointed to their first official station (as discussed in this chapter);
(b) An employee transferring in the interest of the Government from one agency or duty station to another for permanent duty, and their new duty station meets the distance test (see § 302-2.1 of this subchapter);
(c) An employee of the United States Postal Service transferred for permanent duty, under 39 U.S.C. 1006, from the Postal Service to an agency as defined in 5 U.S.C. 5721;
(d) An employee performing travel in accordance with an overseas tour renewal agreement (see §§ 302-3.203 through 302-3.209 of this chapter);
(e) An employee returning to the place of actual residence after completion of a prescribed tour of duty for the purposes of separation from Government service or separation from the overseas assignment for reassignment to the same or different Government agency;
(f) A student trainee assigned to any position upon completion of college work;
(g) A Department of Defense overseas dependents school system teacher;
(h) A career appointee to the Senior Executive Service (SES) as defined in 5 U.S.C. 3132(a)(4), and a prior SES appointee who is returning to their official residence for separation and who will be retaining SES retirement benefits; or
(i) An employee that is being assigned to a temporary duty station in connection with a long-term assignment.
An employee is not eligible to receive relocation expense allowances under this chapter if they are:
(a) A Foreign Service Officer or a Federal employee transferred under the rules of the Foreign Service Act of 1980, as amended;
(b) An officer or an employee transferred under the Central Intelligence Act of 1949, as amended;
(c) A person whose pay and allowances are prescribed under title 37 U.S.C., “Pay and Allowances of the Uniformed Services”;
(d) An employee of the Department of Veterans Affairs (VA) to whom 38 U.S.C. 707 applies; or
(e) A person not covered in § 302-1.1.
Agencies (as defined in § 300-1.1 of this subtitle) must report total travel and transportation payments, including relocation, no later than November 30 of each year to GSA, as described in this part (see also § 301-80.1 of this subtitle):
(a) Information on agency reporting requirements is available at https://www.gsa.gov/trip.
(b) The head of the agency or designee is responsible for ensuring this data is complete, timely, and accurate before submitting it to GSA.
(c) The report must cover all components of the agency.
(d) The agency's automated relocation management system will be used to provide required reporting data.
(a) A relocation must be in the interest of the Government. No relocation expenses will be allowed or paid from Government funds if a transfer is made primarily for the convenience or benefit of the employee.
(b) The employee may begin their relocation only after the agency has approved the travel authorization (TA) in writing (paper or electronic).
(c) The entitlements and allowances for relocation are determined by the regulatory provisions that are in effect at the time the employee reports for duty at their new official station. However, this does not change the requirement that all aspects of a relocation must be completed by the time specified in § 302-2.2.
(d) The effective transfer or appointment date is the date on which the employee reports for duty at their new or first official station, respectively.
(e) The employee may relocate from a place other than from where they are authorized. However, the employee will only be reimbursed up to their authorized travel and transportation costs.
(f) The employee may only be reimbursed for relocation expenses if they relocate to a new official station that meets the distance test outlined in paragraph (f)(1) of this section unless they are granted an exception as outlined in paragraph (f)(2) of this section.
(1) The distance test is met when the new official station is at least 50 miles further from the employee's current residence than the old official station is from the same residence. The distance between the official station and residence is the shortest of the commonly traveled routes between them.
(2) The head of the agency or designee may authorize an exception to the 50-mile threshold on a case-by-case basis when the authorizing official determines that it is in the best interest of the Government.
The employee and their immediate family member(s) must complete all aspects of relocation within one year from the employee's effective date of transfer or appointment, except as provided as follows:
(a) The 1-year time limit to complete all aspects of relocation is exclusive of time spent on furlough for active military service.
(b) The 1-year time limit does not include time that the employee cannot travel and/or transport their household effects due to shipping restrictions to or from a post of duty OCONUS.
(c) The 1-year time limit for completing all aspects of a relocation may be extended by the head of the agency or designee for up to one additional year, but only if the employee has received an extension for real estate transactions.
Agencies must require the employee to sign a service agreement for appointments or transfers to, from or within CONUS or OCONUS, for renewal agreement travel, DoD School teachers, or assignment under the Government Employees Training Act (GETA). If the employee fails to sign a required service agreement, the agency will not pay relocation expenses. The minimum periods of service are:
(a) Within CONUS for a period of service of not less than 12 months following the effective date of appointment or transfer;
(b) OCONUS for an agreed upon period of service of not more than 36 months or less than 12 months following the effective date of appointment or transfer;
(c) Department of Defense Overseas Dependent School System teachers for a period of not less than one school year as determined under 20 U.S.C. chapter 25;
(d) For renewal agreement travel, a period of not less than 12 months from the date of return to the same or different overseas official station; and
(e) For assignment under GETA, not less than three times the length of the training period as prescribed by the head of the agency.
If the employee violates a service agreement (other than for reasons beyond their control and which must be accepted by the agency), the employee will have incurred a debt due to the Government and must reimburse all costs that the agency has paid towards the relocation expenses including withholding tax allowance (WTA) and relocation income tax allowance (RITA).
For a transfer/appointment to an OCONUS location, the employee must immediately provide their agency with the information needed to determine their actual place of residence and to document it into their service agreement.
If the employee has multiple service agreements, they cannot be grouped together and must be adhered to separately. Each agreement is in effect for the period specified in the agreement.
Employees must sign a duplicate reimbursement disclosure statement to receive any relocation benefits.
Employees may only receive an advance of funds for their allowable travel and transportation expenses. The amount of the advance will be in accordance with their agency's internal relocation policies. Advances in conjunction with overseas tour renewal agreement travel are not authorized.
The agency head or designee must authorize and approve relocation expenses. Reimbursement of relocation expenses can only be authorized when it is determined that the relocation is in the interest of the Government. Before authorizing a relocation, agencies must set internal policies that address, among other things, all relocation allowances, timelines for relocation travel, who is authorized to approve relocation travel, the availability of counseling to relocating employees, and procedures to ensure compliance of the stated policies.
When an employee transfers between Federal agencies, all allowable expenses must be paid from the funds of the agency that the employee is transferring to. However, in the case of a reduction in force or transfer of function, an agreement may be made between the agencies concerned as to what relocation allowances will be paid by either agency or split between them. This should include the payment of expenses for the extended storage of the employee's household goods when assigned to an isolated permanent duty station within CONUS or a transfer to, from, or between foreign countries.
The agency head or designee may waive any statutory or regulatory limitations for employees relocating (to/from a remote or isolated location) when determining that failure to waive the limitation would cause an undue hardship on the employee.
The service agreement must include the following:
(a) The employee's name;
(b) The employee's effective date of transfer or appointment;
(c) The employee's actual place of residence at the time of appointment;
(d) The name of all dependents that are authorized to travel under the TA;
(e) Detailed information regarding the employee's obligation to repay funds spent on the employee's relocation as a debt due the Government if the service agreement is violated;
(f) The employee's agreed period of time (see § 302-2.3) to remain in service; and
(g) The employee's signature accepting the terms of the agreement.
For new appointees assigned to their first official station, the hiring agency determines if relocation expenses will be authorized. Once a decision is made to authorize relocation expenses, all mandatory relocation allowances are reimbursed, unless otherwise stated in the applicable parts of this chapter. The agency may also pay or reimburse the discretionary relocation expenses indicated for the type of assignment as follows:
(a) Assigned to first official station in the Continental United States (CONUS). (1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation of employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Subsistence expenses for employee only (part 302-4 of this chapter);
(iii) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(iv) Extended storage of household goods when assigned to a designated isolated official station in CONUS to which the new appointee cannot take household goods or at which they are unable to use their household goods because of the absence of residence quarters at the location (part 302-8 of this chapter);
(v) Transportation of a mobile home or boat used as a primary residence in lieu of the transportation of household goods (part 302-10 of this chapter); and
(vi) Relocation income tax allowance (RITA) (part 302-17 of this chapter).
(2) Discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of privately owned vehicle (POV) (part 302-9 of this chapter).
(ii) Use of a relocation services company (part 302-12 of this chapter).
(b) Assigned to first official station outside the Continental United States (OCONUS). (1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation of employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Subsistence expenses for employee only (part 302-4 of this chapter);
(iii) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(iv) Extended storage of household goods when assigned to a post to which the new appointee cannot take household goods or at which they cannot use their household goods, or when authorized by the head of the agency (part 302-8 of this chapter); and
(v) RITA (part 302-17 of this chapter).
(2) Discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of a POV (part 302-9 of this chapter).
(ii) Temporary quarters subsistence expenses (TQSE) are not authorized in a foreign area. However, the new appointee may be entitled to the following under the Department of State Standardized Regulations (DSSR) (Government Civilians—Foreign Areas):
(A) Foreign Transfer Allowance (FTA) (Subsistence Expense) for quarters occupied temporarily before departure from the 50 States or the District of Columbia for an official station in a foreign area incident to a permanent change of station and travel to first official station overseas.
(B) Temporary quarters subsistence allowance (TQSA) when a transfer is authorized to a foreign area.
(C) The miscellaneous expense portion of the FTA is authorized incident to first official station travel to a foreign area.
(iii) Use of a relocation services company (part 302-12 of this chapter).
Generally, appointees may not be reimbursed for relocation expenses incurred before they have been appointed to a Federal position and signed an agreement to remain in Government service for 12 months after appointment. However, there is an exception for appointees who have performed Presidential transition activities. Such appointees may be reimbursed allowable travel and transportation expenses incurred at any time following the most recent Presidential election once they have signed a service agreement. However, the appointment must occur in the same fiscal year as the Presidential transition activities.
For transferred employees or other relocated employees, the agency decides if relocation expenses will be authorized. Once a decision is made to authorize relocation expenses, all mandatory relocation allowances are reimbursed, unless otherwise stated in the applicable parts of this chapter. The agency may also pay or reimburse the discretionary relocation expenses indicated for the type of relocations in this section:
(a) Transfer between official stations in the Continental United States (CONUS). (1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation & subsistence expenses for employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Miscellaneous expense allowance (part 302-16 of this chapter);
(iii) Sell or buy residence transactions or lease termination expenses (part 302-11 of this chapter);
(iv) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(v) Extended storage of household goods when assigned to a designated isolated official station in CONUS to which the transferred employee cannot take household goods or at which they are unable to use their household goods because of the absence of residence quarters at the location (part 302-8 of this chapter);
(vi) Transportation of a mobile home or boat used as a primary residence in lieu of the transportation of household goods. Mobile homes may be shipped within CONUS, within Alaska, and through Canada en route between Alaska and CONUS or through Canada between one CONUS point and another (e.g., between Buffalo, NY, and Detroit, MI) (part 302-10 of this chapter); and
(vii) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Househunting trip transportation & subsistence expenses, employee & spouse only (part 302-5 of this chapter).
(ii) TQSE (part 302-6 of this chapter).
(iii) Shipment of POV (part 302-9 of this chapter).
(iv) Use of a relocation services company (part 302-12 of this chapter).
(v) Property management services (part 302-15 of this chapter).
(vi) Home marketing incentives (part 302-14 of this chapter).
(b) Transfer from CONUS to an official station outside the Continental United States (OCONUS). (1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation & subsistence expenses for employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Miscellaneous expense allowance (part 302-16 of this chapter);
(iii) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(iv) Extended storage of household goods when assigned to a post to which the transferred employee cannot take household goods or at which they cannot use their household goods, or when authorized by the head of the agency (part 302-8 of this chapter);
(v) Sell & buy residence transaction expenses or lease termination expenses when transfer is to a non-foreign area (part 302-11 of this chapter); and
(vi) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) TQSE when transfer is to a non-foreign area. In foreign areas the transferee may be entitled to the following under the DSSR (Government Civilians—Foreign Areas):
(A) FTA for quarters occupied temporarily before departure from the 50 states or the District of Columbia for an official station in a foreign area incident to a permanent change of station and travel to first official station overseas.
(B) TQSA.
(ii) Property management services (part 302-15 of this chapter).
(iii) Shipment of a privately owned vehicle (part 302-9 of this chapter).
(iv) Use of a relocation services company (part 302-12 of this chapter).
(v) Home marketing incentives when transfer is to a non-foreign area (part 302-14 of this chapter).
(vi) Househunting trip transportation & subsistence expenses, employee & spouse only when transfer is to a non-foreign area (part 302-5 of this chapter).
(c) Transfer from OCONUS official station to an official station in CONUS. (1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation & subsistence expenses for employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Miscellaneous expense allowance (part 302-16 of this chapter);
(iii) Sell & buy residence transaction expenses or lease termination expenses. Allowed when old and new official stations are located in the United States. Also allowed when instead of being returned to the former official station in the United States, an employee is transferred in the interest of the Government to a different official station in the United States than the official station from which an employee was transferred when assigned to the foreign official station (part 302-11 of this chapter);
(iv) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(v) Extended storage of household goods when assigned to a designated isolated official station in CONUS to which the transferred employee cannot take household goods or at which they are unable to use their household goods because of the absence of residence quarters at the location (part 302-8 of this chapter); and
(vi) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of a privately owned vehicle. Shipment is mandatory when a POV was shipped to the OCONUS location and the employee completed the service agreement (part 302-9 of this chapter).
(ii) TQSE (part 302-6 of this chapter).
(iii) A TQSA under the DSSR may be authorized preceding final departure subsequent to the necessary vacating of residence quarters.
(iv) Use of a relocation services company (part 302-12 of this chapter).
(v) Home marketing incentives when transfer is from a non-foreign area (part 302-14 of this chapter).
(vi) Househunting trip transportation & subsistence expenses, employee & spouse only when transfer is from an OCONUS non-foreign area (part 302-5 of this chapter).
(vii) Property Management Services. Allowed when old and new official stations are located in the United States. Also allowed when instead of being returned to the former official station in the United States, an employee is transferred in the interest of the Government to a different official station in the United States than the official station from which an employee was transferred when assigned to the foreign official station (part 302-15 of this chapter).
(d) Transfer between OCONUS official stations.
(1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation & subsistence expenses for employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(iii) Miscellaneous expense allowance (part 302-16 of this chapter);
(iv) Extended storage of household goods when assigned to a post to which the transferred employee cannot take household goods or at which they cannot use their household goods, or when authorized by the head of the agency (part 302-8 of this chapter);
(v) Sell & buy residence transaction expenses or lease termination expenses when transfer is between non-foreign areas (part 302-11 of this chapter); and
(vi) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of a POV (part 302-9 of this chapter).
(ii) Property management services (part 302-15 of this chapter).
(iii) Househunting trip transportation & subsistence expenses for employee & spouse only when transfer is between non-foreign areas (part 302-5 of this chapter).
(iv) TQSE when transfer is to or between non-foreign areas (part 302-6 of this chapter).
(v) TQSA may be authorized under the DSSR.
(vi) Use of a relocation services company (part 302-12 of this chapter).
(vii) Home marketing incentives when transfer is between non-foreign areas (part 302-14 of this chapter).
(e) Tour renewal agreement travel.
(1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation for employee & immediate family member(s) (part 302-4 of this chapter); and
(ii) Subsistence expenses for employee only (part 302-4 of this chapter).
(f) Return from OCONUS official station to place of actual residence for separation or transfer to a new duty station when relocation expenses are not authorized by gaining agency. In the case of an employee transferring to a new duty station whose relocation expenses are not authorized by the gaining agency, the employee is only eligible for return expenses from the OCONUS duty station to the employee's place of actual residence, payable by the losing agency.
(1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation for employee & immediate family member(s) (part 302-4 of this chapter);
(ii) Subsistence expenses for employee only (part 302-4 of this chapter);
(iii) Transportation & temporary storage of household goods (part 302-7 of this chapter); and
(iv) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of a POV (part 302-9 of this chapter).
(ii) Use of a relocation services company (part 302-12 of this chapter).
(iii) TQSA under the DSSR may be authorized preceding final departure subsequent to the necessary vacating of residence quarters.
(g) Last move home for SES career appointees upon separation from Government service.
(1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation for employee and immediate family member(s) (part 302-4 of this chapter);
(ii) Subsistence expenses for employee only (part 302-4 of this chapter);
(iii) Transportation & temporary storage of household goods (part 302-7 of this chapter);
(iv) Transportation of a mobile home or boat used as a primary residence in lieu of the transportation of household goods (part 302-10 of this chapter); and
(v) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Shipment of a POV (part 302-9, subpart B, of this chapter).
(ii) Use of a relocation services company (part 302-12 of this chapter).
(h) Temporary Change of Station (TCS).
(1) The following are mandatory relocation allowances that the agency must pay or reimburse:
(i) Transportation & subsistence expenses for employee and immediate family member(s) (part 302-4 of this chapter);
(ii) Miscellaneous expense allowance (part 302-16 of this chapter);
(iii) Transportation & temporary or extended storage of household goods. For OCONUS posts, extended storage is available only when assigned to a post to which the transferred employee cannot take household goods or at which they cannot use their household goods, or when authorized by the head of the agency. For CONUS duty stations, extended storage is available only when assigned to a designated isolated official station in CONUS and are unable to use the household goods and personal effects because of the absence of residence quarters at the location. Extended storage is only authorized for the duration of the TCS (parts 302-7 and 302-8 of this chapter);
(iv) Transportation of a mobile home or boat used as a primary residence in lieu of the transportation of household goods (part 302-10 of this chapter); and
(v) RITA (part 302-17 of this chapter).
(2) The following are discretionary relocation allowances that the agency may pay or reimburse:
(i) Househunting trip transportation & subsistence expenses. Househunting trips may only be authorized prior to the beginning of the TCS (part 302-5 of this chapter).
(ii) TQSE. Temporary quarters may be authorized at the beginning or at the conclusion of the TCS (part 302-6 of this chapter).
(iii) Transportation of a POV. Transportation of a POV may be authorized at the beginning or at the conclusion of the TCS (part 302-9 of this chapter).
(iv) Storage of one POV when assigned in support of a contingency operation as defined in 10 U.S.C. 1482a(c)(2). Storage of a POV, when authorized, is only for the duration of the TCS (part 302-9 of this chapter).
(v) Property management services. Property management, when authorized, is only for the duration of the TCS (part 302-15 of this chapter).
(i) Assignment under the Government Employees Training Act (GETA). The allowances listed in paragraphs (i)(1) through (4) of this section may be authorized in lieu of per diem or actual expense allowances. This is not considered a permanent change of station.
(1) Transportation of employee & immediate family member(s) (part 302-4 of this chapter).
(2) Per diem for employee only (part 302-4 of this chapter).
(3) Transportation & temporary storage of household goods (part 302-7 of this chapter).
(4) RITA (part 302-17 of this chapter).
(a) If an employee and an immediate family member(s) are both employees and are transferring to the same official station in the interest of the Government, the allowances under this chapter apply either to:
(1) Each employee separately and the other is not eligible as an immediate family member(s); or
(2) Only one of the employees considered as head of the household and the other is eligible as an immediate family member(s) on the first employee's TA.
(b) The employees must provide their agency with a signed document stating which method of authorization they select (separate or one single authorization).
(c) When separate allowances are authorized, the employing agency or agencies shall not make duplicate reimbursement for the same claimed expenses.
(d) When there are non-employee immediate family members also transferring, the employees must provide their agency with the name(s) of non-employee family member(s) who will receive allowances. Only one of the employees may claim allowances for a non-employee member(s) of their immediate family (non-employee members may only be on one TA).
If an employee is subject to an involuntary transfer (i.e., due to reduction in force, cessation, or transfer of work), the transfer is considered to be in the interest of the Government.
If an employee is re-employed after a separation by reduction in force or transfer of function, their agency may pay them a relocation allowance under the conditions of this chapter if:
(a) The employee is re-employed within one year of their involuntary separation date;
(b) The new appointment is not temporary; and
(c) The new appointment is at a different duty station from where their separation occurred and meets the distance criteria in § 302-2.1 of this chapter for a short distance relocation.
Employees are eligible to receive an allowance for overseas tour renewal travel if:
(a) The employee is on an overseas assignment outside the United States, and has completed the tour of duty and satisfactorily completed the service agreement time period; and
(b) The employee has signed a new service agreement to remain at their overseas post outside the United States or to transfer to another overseas post of duty outside the United States; or
(c) The employee meets the requirements and is eligible for tour renewal travel from Alaska or Hawaii under § 302-3.204.
Employees are eligible to receive an allowance for round trip tour renewal travel from Alaska or Hawaii only if the employee meets the criteria in paragraph (a) or (b) of this section:
(a) If on September 8, 1982, the employee was:
(1) Serving a tour of duty in Alaska or Hawaii and have continued to do so;
(2) Was en route to a post of duty in Alaska or Hawaii under a written service agreement to serve a tour of duty; or
(3) Was in the process of performing travel under a tour renewal travel and has since then entered into another tour of duty in Alaska or Hawaii.
(b) The agency head determines that authorization is necessary for the purpose of recruiting or retaining an employee for service of a tour of duty at a post of duty in Alaska or Hawaii.
(a) For employees performing a tour of duty in a foreign area or employees performing a tour of duty in Alaska or Hawaii who meet the criteria of § 302-3.204(a), the agency may reimburse for one overseas tour renewal trip prior to the employee commencing another overseas assignment under the same conditions, for each time the employee satisfactorily completes the required period of a service agreement.
(b) For employees performing a tour of duty in Alaska or Hawaii who meet the criteria of § 302-3.204(b), the agency may reimburse a maximum of two round trips which must begin within 5 years after the date of the first tour. Employees shall be advised in writing of this limitation.
The employee and their immediate family may travel to another U.S. location (other than to their place of actual residence) under a tour renewal agreement. However, the agency will only reimburse for the amount of authorized expenses from the post of duty to the place of actual residence and return (as appropriate) on a usually traveled route. The employee is not required to spend time at their place of actual residence to receive reimbursement; however, a substantial amount of time must be spent in the U.S. if the place of actual residence is located there.
If travel is to another overseas location (instead of the U.S.), the employee will be reimbursed only if their actual residence is within that country in which they are taking their leave, and then they will only be reimbursed for their authorized travel and transportation expenses.
If an employee fails to complete their period of service under the new service agreement for reasons that are not acceptable to the agency, the employee must pay the Government:
(a) All transportation and subsistence expenses that were received during the service agreement period for tour renewal travel of the employee and their immediate family;
(b) Transportation expenses for family members who traveled directly from the former post of duty to the current post of duty; and
(c) All transportation expenses for shipment of household goods from the former post to the current post of duty.
If the employee violates the new service agreement, the Government will reimburse the employee for return travel and transportation to the employee's place of actual residence only if the employee did not receive all of their allowances under a previous service agreement in which they successfully completed their required period of service. The Government will then authorize the reimbursement cost for return travel and transportation expenses from the former post of duty to the place of actual residence.
If the employee's immediate family member(s) return to the place of actual residence within or outside the United States before the employee, and the employee pays for their return, reimbursement will occur when the employee becomes eligible for return travel and transportation. The employee must provide their agency with all receipts and documentation to support the cost. Early return expenses for the immediate family are limited to transportation and shipment of household goods and personal effects. Early return expenses do not include other relocation expenses such as TQSE and miscellaneous expense allowance. For household goods, the employee will be reimbursed for transporting part of their household goods with the immediate family and the rest of the household goods when they return as long as the combined weight of the two shipments does not exceed the total authorized weight limit.
A dependent who turned 21 while overseas is entitled to return travel to the place of actual residence at the expense of the Government only if the dependent traveled overseas as a dependent of the employee under their TA, but not beyond the end of the current agreed tour of duty.
Once an employee has completed their duty OCONUS as specified in their service agreement, their agency must pay one-way transportation expenses for them, their immediate family member(s), and for their household goods. The agency may pay for their immediate family member(s) and their household goods to be returned to the United States before they complete their service agreement; however, the reason for not completing the service agreement must be determined by the agency as compassionate in nature or for circumstances beyond the employee's control. An employee can only claim reimbursement for the return of their immediate family members one time under each service agreement.
An employee who has successfully completed their service agreement, may transport their household goods to a location other than their place of actual residence when they separate from the Government. However, the cost cannot exceed what it would cost to the place of actual residence.
An employee is entitled to SES separation relocation allowances if they meet the conditions in § 302-3.303 and they are:
(a) A career appointee to the SES as defined in 5 U.S.C. 3132(a)(4); excluding those career appointees defined in 5 U.S.C. 3132(a)(5) through (7)); or
(b) A non-SES appointee who elects to retain SES retirement benefits and:
(1) Has a basic rate of pay at Level V of the Executive Schedule or higher;
(2) Was previously a career appointee in the SES; or
(3) Elected under 5 U.S.C. 3392(c) to retain SES retirement benefits; or
(c) A Medical Center Director who separated from Government service on or after October 2, 1992; or:
(d) An immediate family member of an SES employee who died:
(1) In Government service on or after January 1, 1994; or
(2) After separating from Government service but before travel and/or transportation authorized under this subpart was completed.
An employee may receive separation relocation travel for themselves and their immediate family if:
(a) They are a career appointee as defined in 5 U.S.C. 3132(a)(4), and was transferred or reassigned geographically in the interest of and at the expense of the Government from one official station to another for permanent duty from:
(1) An SES career appointment to another SES career appointment;
(2) An SES career appointment to an appointment outside the SES at a rate of pay equal to or higher than Level V of the Executive Schedule, and the employee elects to retain SES retirement benefits under 5 U.S.C. 3392; or
(3) A non-SES career appointment at the time of the transfer or assignment, which includes an appointment in a civil service position outside the SES, to an SES career appointment; and
(b) At the time of the transfer or reassignment:
(1) Was eligible to receive an annuity for optional retirement under section 8336(a), (b), (c), (e), (f), or (j) or subchapter III of chapter 83 (Civil Service Retirement System (CSRS)) or under section 8412 of subchapter II of chapter 84 (Federal Employees' Retirement System (FERS)) of title, 5 U.S.C.;
(2) Was within 5 years of eligibility to receive an annuity for optional retirement under one of the authorities in paragraph (b)(1) of this section; or
(3) Was eligible to receive an annuity based on discontinued service retirement or early voluntary retirement under an Office of Personnel Management (OPM) authorization, under section 8336(d) of subchapter III of chapter 83, or under 8414(b) of subchapter II of chapter 84 of title 5, U.S.C.; and
(c) Are eligible to receive an annuity upon separation (or, in the case of death, met the requirements for being considered eligible to receive an annuity, as of the date of death) under the provisions of subchapter III of chapter 83 (CSRS) or chapter 84 (FERS) of title 5, U.S.C., including an annuity based on optional retirement, discontinued service retirement, early voluntary retirement under an OPM authorization, or disability retirement; and
(d) Have not previously received separation relocation benefits from the Government for retirement.
Before receiving reimbursement for moving expenses, the employee must submit a request to their agency for authorization and approval of their moving expenses with their tentative moving dates and the origin and destination location of their planned move, within the timeframe and format specified by their agency.
(a) Travel and shipment of the HHG should begin from the last official station.
(b) The employee will be authorized to separate at the place where they have chosen to reside within the United States and will only be reimbursed for expenses up to the cost of travel and transportation expenses from their authorized official station to the place in the U.S. they have elected to reside.
(c) The employee will not receive last move home benefits if upon separation they elect to reside in a different geographical area which is less than 50 miles from their official station.
(d) The employee may have their household goods transported from more than one location. However, they will only receive reimbursement based on the cost of shipment from their official station, in one lot by the most economical route to the location where they elect to reside.
All travel and transportation of household goods must begin no later than six months after:
(a) The date of separation; or
(b) The date of death of the employee who died before separation.
Agencies may grant the employee or their immediate family member(s) (in case of the employee's death) an extension to the time limit for beginning the separation travel, for up to two years from the effective date of separation or death, if death occurs before separation.
An agency may authorize a TCS when it would be more advantageous than to authorize a long-term TDY assignment. Agencies should compare the cost of the long-term TDY allowances and other factors against the cost of the TCS. Employees are generally eligible for a TCS when:
(a) They are directed to perform a TCS at a long-term duty location for no less than 6 months, nor more than 30 months; and
(b) The employee would be eligible for payment of temporary duty travel allowances authorized under chapter 301 of this subtitle. For exceptions, see § 302-3.401.
The following individuals are not eligible for a TCS:
(a) A new appointee;
(b) An employee assigned to or from a State or local government under the Intergovernmental Personnel Act (5 U.S.C. 3372 et seq.);
(c) An individual employed intermittently in the Government service as a consultant or expert and paid on a daily when-actually-employed (WAE) basis;
(d) An individual serving without pay or at $1 a year; or
(e) An employee assigned under GETA (5 U.S.C. 4109).
If the assignment is extended to exceed 30 months, the agency:
(a) Must permanently immediately assign the employee to their temporary official station or immediately return the employee to their previous official station;
(b) May not pay for extended storage or property management services incurred after the last day of the thirtieth month; and
(c) Must pay the expenses of returning the employee and their immediate family and household goods to their previous official station unless they are permanently assigned to the temporary official station.
If the employee separates from Government service prior to completion of their TCS for reasons beyond their control that are acceptable to their agency, the agency will pay the same relocation expenses it would pay under § 302-3.100 for a TCS.
Payment of TCS expenses stops once the employee's temporary official station becomes their permanent official station. The agency may not pay any TCS expenses incurred beginning the day the employee's temporary official station becomes their permanent official station.
When an employee is permanently assigned to their temporary official station, the agency may pay the same entitlements it would pay for a transferred employee (subject to the limitations in this section and those detailed in § 302-3.407) plus those noted in this section:
(a) Travel, including subsistence expenses, in accordance with part 302-4 of this chapter, for one round trip between the temporary official station and the previous official station, for the employee and members of their immediate family who relocated to the temporary official station. The agency may also pay the same expenses for a one-way trip from the previous official station to the new permanent official station for any immediate family members who did not accompany the employee to the temporary official station;
(b) Transportation of household goods not previously transported to the temporary official station under part 302-7 of this chapter; and
(c) Transportation of a privately owned vehicle(s) not previously transported to the temporary official station.
If the employee is permanently assigned to their temporary official station, they are limited to 18,000 pounds net weight for household goods they may transport at Government expense to their official station. This maximum weight will be reduced by the weight of any household goods transported at Government expense to the temporary official station under the TCS authorization. Subject to the 18,000 pound limit, the agency will pay to transport any household goods in extended storage to the employee's official station. Additionally, if the employee's residence changes as a result of the permanent assignment to the temporary official station, the agency may pay for transporting the employee's household goods, subject to the 18,000-pound limit, between the residence that was occupied during the temporary assignment and the new residence.
If the employee is permanently assigned to their temporary official station, the agency may not pay:
(a) Expenses of a househunting trip for the employee and their spouse to the temporary official station under part 302-5 of this chapter; or
(b) Residence transaction expenses for selling a residence or breaking a lease at the temporary official station under part 302-11 of this chapter.
Agencies must establish governing policies and procedures that determine:
(a) When the agency will pay relocation expenses if an employee violates the service agreement;
(b) When the agency will authorize separate relocation allowances to an employee and an employee's immediate family member that are both transferring to the same official station;
(c) When the agency will grant an employee and/or the employee's immediate family member(s) an extension on beginning separation travel;
(d) When the agency will allow an employee to arrange their own relocation upon separation;
(e) When the agency will authorize a temporary change of station (TCS);
(f) When the agency will pay extended storage of household goods for TCS;
(g) When the agency will pay for the cost of storing, or provide for the storage without charge, of one POV when an employee is assigned a TCS in support of a contingency operation as defined in 10 U.S.C. 1482a(c)(2) and under part 302-9 of this chapter;
(h) The criteria in accordance with 5 CFR part 572 on how the agency will determine if a new appointee is eligible for the relocation allowances authorized therein; and
(i) The procedures which will provide new appointees with information surrounding relocation benefits.
When appointing an employee to an overseas assignment, agencies must:
(a) Establish the employee's actual place of residence at the time of appointment and state it in the service agreement;
(b) Use guidance in 8 U.S.C. 1101(a)(33) for establishing places of residence;
(c) Require the employee to sign the service agreement prior to the relocation;
(d) Pay transportation expenses for one-way return travel of immediate family members when the employee has successfully completed the service agreement period OCONUS;
(e) Determine when the public interest requires the return of the immediate family for compelling personal reasons of a humanitarian or compassionate nature; and
(f) Pay for return travel and transportation of an employee only once at the end of each agreed period of service.
A travel advance for tour renewal travel is not authorized. Agencies must pay tour renewal agreement travel when:
(a) The employee has completed the agreed upon period of service outside CONUS;
(b) The employee has agreed to serve another OCONUS tour of duty at the same or different duty station; and
(c) The agency has determined that the employee meets the provisions of §§ 302-3.204 and 302-3.205.
Before issuing payment for separation-relocation travel, agencies must establish timeframes for employees to submit a request for authorization and approval of relocation expenses. Travel advances for separation relocation may not be authorized.
Employees are eligible for subsistence and transportation allowances for PCS travel if their agency specifically authorizes relocation expenses under this part. Except as specifically provided in § 302-5.6 of this subchapter, the rules (for TDY travel) in chapter 301 of this subtitle will be used for payment of the travel expenses of the employee's immediate family members. If an alternate location for beginning or ending PCS is used, reimbursement is limited to the allowable cost by the usually traveled route between the old and new official stations. An attendant may be authorized to accompany an employee with a special need in accordance with § 301-13.2(a) and (g) of this subtitle.
The per diem rate for en route relocation travel between the old and new official stations will be at the standard CONUS rate (see applicable FTR Per Diem Rate Bulletins available at https://www.gsa.gov/perdiem). Reimbursement will be in accordance with §§ 301-11.19 through 301-11.22 of this subtitle.
The authorized en route travel days are determined by dividing the total miles between the old residence and the new official station by the minimum driving distance the agency sets consistent with § 302-4.400 and rounding up to the next whole day.
The maximum amount of per diem is calculated as:
(a) For the employee, 100% of the applicable rate.
(b) If the employee and their spouse or domestic partner travel together, the maximum amount the spouse or domestic partner may receive is three-fourths of the employee's daily rate. The employee and their spouse or domestic partner are considered to be traveling together if they travel on the same days along the same general route by using more than one POV.
(c) If the spouse or domestic partner does not travel with the employee but travels unaccompanied at a different time, they will receive the same rate to which the employee is entitled.
(d) Non-spouse immediate family members aged 12 or older receive three-fourths of the employee's rate, and those under 12 receive one-half of the employee's rate.
The mileage reimbursement rate is the same as the moving expense mileage rate established by the Internal Revenue Service (IRS) for moving expense deductions. See IRS guidance available at https://www.irs.gov. These rates will be published in an FTR bulletin and are also displayed at https://www.gsa.gov/mileage.
Agencies may authorize a higher mileage rate at a rate not to exceed the maximum rate prescribed in § 301-10.301 of this subtitle when:
(a) The POV is expected to be used on official business at the new official station;
(b) The common carrier rates for the facilities provided between the old and new official stations, the related constructive taxi or TNC fares, or the cost of utilizing an innovative mobility technology company to and from terminals, and the per diem allowances prescribed under this part justify a higher mileage rate as advantageous to the Government as determined by the agency; or
(c) The costs of driving the POV to, from, or between official stations located outside CONUS justify a higher mileage rate as advantageous to the Government.
For relocations within CONUS involving POV usage, the agency will reimburse mileage at the standard mileage rate specified in § 302-4.300. For an OCONUS relocation involving POV usage, the agency may allow reimbursement of certain actual expenses of using the POV (i.e., fuel plus the additional expenses listed in § 301-10.302 of this subtitle).
Agencies may establish a reasonable minimum driving distance that may be more than, but not less than an average of 300 miles per calendar day. Exceptions to the daily minimum driving distance may be granted by the agency when there is a delay beyond an employee's control such as acts of God, restrictions by governmental authorities, or other acceptable reasons (e.g., the employee is an individual with a disability as defined by Section 501 of the Rehabilitation Act of 1973 and its implementing regulations at 29 CFR 1614.203 or has special needs).
Employees may request an advance of funds for lodgings-plus per diem and mileage allowances for PCS travel, except for overseas tour renewal agreement travel.
Employees are eligible for a househunting trip expenses allowance if they are an employee who is authorized to transfer. Only one round trip may be authorized by the agency for the employee and their spouse in connection with a particular transfer. In addition:
(a) Both the old and new official stations must be located within the United States;
(b) The employee is not or will not be assigned to Government or other prearranged housing at the new official station;
(c) The employee's old and new official stations are 75 or more miles apart (as measured by map distance) via a usually traveled surface route; and
(d) The agency determines it is in the Government's interest to authorize a househunting trip.
Employees will receive a househunting trip expenses allowance and may begin the househunting trip when:
(a) The agency authorized a househunting trip in advance of the travel (the agency authorization must specify the mode of transportation and the period of time allowed for the trip);
(b) The employee has signed a service agreement;
(c) The agency has established and informed the employee of the date they are to report to their new official station;
(d) The employee is in a duty status when they perform a househunting trip; and
(e) Any additional conditions established by the agency have been met.
Only the employee and their spouse or domestic partner may travel on a househunting trip at Government expense. If traveling separately, the reimbursement will be limited to the cost that would have been incurred if the employee and their spouse or domestic partner had travelled together on one round trip.
A househunting trip should be for a reasonable period as authorized by the agency, but not to exceed 10 calendar days.
The househunting trip must be completed as follows:
(a) For the employee—the day before reporting to the new Official station.
(b) For the spouse or domestic partner—the earlier of:
(1) The day before the family relocates to the new Official station; or
(2) The day before the maximum time for beginning allowable travel expires.
Agencies will reimburse househunting trip expenses as follows:
(a) Transportation expenses—the employee and their spouse's actual transportation costs.
(b) Subsistence expenses—one of the following three:
(1) For a CONUS househunting trip, a lodgings-plus per diem allowance at the standard CONUS rate, for the employee and/or their spouse or domestic partner if they travel separately, or if both travel together, a lodgings-plus per diem allowance at the standard CONUS rate for the 10 days or less that the agency authorizes. The employee receives 100% of the rate and the spouse or domestic partner receives 75%;
(2) For an OCONUS househunting trip, a lodgings-plus per diem allowance at the locality rate, for the employee and/or their spouse or domestic partner if they travel separately, or if both travel together, a lodgings-plus per diem allowance at the locality rate for the 10 days or less that the agency authorizes. The employee receives 100% of the rate and the spouse or domestic partner receives 75%; or
(3) Only if offered by the agency and chosen by the employee, a lump sum, as follows:
(i) If the employee performs a househunting trip and the spouse or domestic partner does not, or if the spouse or domestic partner performs a househunting trip and the employee does not, multiply the applicable locality rate by 5.00.
(ii) If the employee and their spouse or domestic partner both perform a househunting trip, together or separately, multiply the applicable locality rate by 6.25.
(a) Agencies will authorize travel by any transportation mode(s) that it determines to be advantageous to the Government except as noted in paragraphs (b) and (c) of this section.
(b) For trips of less than 250 miles, agencies may only authorize travel by POV, unless there are reasons for not using a POV that are acceptable to the agency. POV mileage reimbursement will be in accordance with § 302-4.300 of this subchapter.
(c) For trips that are 250 miles or more, agencies may only authorize travel by common carrier, unless the agency performs a written cost comparison that demonstrates cost savings.
Employees must itemize their transportation expenses and provide receipts for any other claimed expenses except for meals. For lump sum househunting trip subsistence reimbursement, subsistence expenses do not need to be documented. If the lump sum househunting amount is more than adequate to cover the househunting expenses, any balance belongs to the employee. For lodgings-plus per diem househunting trip subsistence expense reimbursement, the employee must itemize their lodging expenses and must provide receipts as stated in this section.
Agencies may authorize an advance of funds, in accordance with § 302-2.8 of this chapter, for the househunting trip expenses. The agency may not advance funds in excess of the sum of the anticipated transportation costs and either the maximum amount allowable under part 302-4 of this subchapter for the location and duration of the househunting trip or the lump sum househunting trip subsistence expenses payment, whichever applies.
Agencies must establish policies and procedures governing:
(a) When the agency will authorize a househunting trip for an employee;
(b) Who will determine if a househunting trip is appropriate in each situation;
(c) If and when the agency will authorize the lump sum option for househunting trip subsistence expenses reimbursement;
(d) Who will determine the appropriate duration of a househunting trip for an employee who selects a lodgings-plus per diem allowance under part 302-4 of this subchapter to reimburse househunting trip subsistence expenses; and
(e) Who will determine the mode(s) of transportation to be used.
The term temporary quarters refers to lodging obtained for the purpose of temporary occupancy from a private or commercial source incident to an official relocation or temporary change of station. TQSE is a discretionary allowance that an agency may use to reimburse an employee reasonably and equitably for subsistence expenses incurred when it is necessary to occupy temporary quarters. Transportation expenses incurred in the vicinity of the temporary quarters are not TQSE expenses; there is no authority to pay such expenses under TQSE.
Employees are eligible for a TQSE allowance if their agency has authorized one and the following conditions are met:
(a) The agency authorizes TQSE before occupancy of the temporary quarters begins;
(b) The new official station is located within the United States;
(c) The relocation authorization specifies the number of days allowed to receive TQSE;
(d) The employee has signed a service agreement;
(e) The old and new official stations are at least 50 miles apart (as measured by map distance) via a usually traveled surface route; and
(f) The employee meets the distance test (Note: If a waiver to the distance test is granted, the employee is not eligible for TQSE.).
(a) Employees may not receive a TQSE allowance under this part when transferred to a foreign area. However, an employee may qualify for a comparable allowance under the DSSR (Government Civilians, Foreign Areas) (see § 302-3.100 of this chapter).
(b) Employees may receive a TQSE allowance under this part when transferred from a foreign area and temporary quarters are occupied in the United States. An employee may also be authorized a comparable allowance, prescribed by the Department of State, at the foreign area preceding final departure subsequent to the necessary vacating of residence quarters (see § 302-3.100 of this chapter).
When authorized to occupy temporary quarters—
(a) Only the employee and/or their immediate family, as annotated on the relocation authorization, may occupy temporary quarters at Government expense;
(b) Temporary quarters must be occupied within reasonable proximity (approximately 50 miles) of the geographical area of the old and/or new official stations. Neither the employee nor their immediate family may be reimbursed for occupying temporary quarters at any other location, unless justified by special circumstances (e.g., the temporary quarters location is subject to a Presidentially-Declared Disaster) that are reasonably related to the transfer;
(c) The eligibility period for which TQSE reimbursement is authorized to be claimed for the employee and for each member of their immediate family must run concurrently;
(d) The period for TQSE reimbursement ends at midnight on:
(1) The day before the employee and/or any member of their immediate family occupies permanent residence quarters (even if some, but not all household goods have been delivered such that the residence is suitable for permanent occupancy);
(2) The last day for completing all aspects of the relocation under § 302-2.2 of this chapter; or
(3) The day the authorized period for TQSE reimbursement expires, whichever occurs first. (See § 302-6.9 for details.)
Occupancy of temporary quarters is based on calendar days and partial days are counted as full days of TQSE. An employee may not receive reimbursement under both a TQSE allowance and another subsistence expenses allowance within the same day, except as follows:
(a) If the employee claims TQSE reimbursement on the same day that official travel en route to their new official station ends, the en route subsistence expenses will be computed under applicable partial day rules, and the employee may also be reimbursed for actual TQSE incurred after 6 p.m. of that day.
(b) If an employee's immediate family is claiming TQSE and the employee is performing separate official TDY travel, or receiving a cost-of-living allowance payable under 5 U.S.C. 5941 in addition to a TQSE allowance.
If the agency determines that an employee's temporary quarters have become their permanent residence quarters, the employee is no longer eligible for TQSE. The employee will be required to repay any TQSE they previously received for those quarters unless they show in a manner satisfactory to their agency that they initially intended to occupy the quarters temporarily. (See § 302-6.207 for details.)
Agencies may authorize TQSE for a reasonable time when the employee's residence at their old official station becomes temporary and no longer suitable for permanent residence (e.g., household goods have been shipped and are unavailable).
Agencies will reimburse for TQSE under the “lodgings-plus” method (TQSE-LP). The TQSE-LP Reimbursement Method is outlined as follows:
(a) The employee must use the Government contractor-issued travel charge card as the method of payment for all official relocation expenses, including TQSE, unless exempted under part § 301-51.2 of this subtitle.
(b) The employee must file a voucher and provide documentation for their temporary quarters lodging expenses, lodging taxes, and other miscellaneous expenses. There is no requirement to document M&IE.
(c) The employee may receive an advance of funds if authorized in accordance with agency policy and listed on the travel authorization. The agency may advance the amount of funds necessary to cover the estimated TQSE expenses for up to 30 days. The agency may subsequently advance additional funds for periods up to 30 days.
(d) The agency will pay the actual daily temporary quarters lodging cost and a daily M&IE allowance not to exceed the single maximum lodging amount and the single maximum M&IE amount for the applicable rate in effect for the locality at the old or new official station or combination thereof, wherever temporary quarters will be occupied. The applicable rate could be the standard CONUS, CONUS non-standard area (NSA), or OCONUS non-foreign locality rate as determined by GSA or the Department of Defense.
(e) TQSE expenses must be reasonable and if expenses exceed the maximum allowable amount, the employee will not be reimbursed for more than the maximum allowable amount. The “maximum allowable amount” is the “maximum daily amount” multiplied by the number of days TQSE is actually incurred not to exceed the number of days authorized, taking into account that the rates change after 30 days in temporary quarters. The “maximum daily amount” (see note 1 to this section) is determined by adding the rates for the employee and each member of their immediate family authorized to occupy temporary quarters.
(1) For the first 30 days of temporary quarters:
(i) The employee and/or their unaccompanied spouse or domestic partner (see note 2 to this section) may receive 100 percent of the temporary quarters lodging portion of the applicable locality rate and 100 percent of the M&IE portion of the applicable locality rate.
(ii) An accompanied spouse, domestic partner, or a member of the immediate family who is age 12 or older may receive 50 percent of the temporary quarters lodging portion of the applicable locality rate and 50 percent of the M&IE portion of the applicable locality rate.
(iii) A member of the immediate family who is under age 12 may receive 40 percent of the temporary quarters lodging portion of the applicable locality rate and 40 percent of the M&IE portion of the applicable locality rate.
(2) For the second 30 days of temporary quarters:
(i) The employee and/or their unaccompanied spouse or domestic partner (see note 2 to this section) may receive 75 percent of the temporary quarters lodging portion of the applicable locality rate and 75 percent of the M&IE portion of the applicable locality rate.
(ii) An accompanied spouse, domestic partner, or a member of the immediate family who is age 12 or older may receive 45 percent of the temporary quarters lodging portion of the applicable locality rate and 45 percent of the M&IE portion of the applicable locality rate.
(iii) A member of the immediate family who is under age 12 may receive 35 percent of the temporary quarters lodging portion of the applicable locality rate and 35 percent of the M&IE portion of the applicable locality rate.
(3) For any additional authorized days of temporary quarters:
(i) The employee and/or their unaccompanied spouse or domestic partner (see note 2 to this section) may receive 55 percent of the temporary quarters lodging portion of the applicable locality rate and 55 percent of the M&IE portion of the applicable locality rate.
(ii) An accompanied spouse, domestic partner, or a member of the immediate family who is age 12 or older may receive 40 percent of the temporary quarters lodging portion of the applicable locality rate and 40 percent of the M&IE portion of the applicable locality rate.
(iii) A member of the immediate family who is under age 12 may receive 30 percent of the temporary quarters lodging portion of the applicable locality rate and 30 percent of the M&IE portion of the applicable locality rate.
Temporary quarters lodging and M&IE remain as separate maximum amounts for purposes of calculating TQSE-LP. Examples of TQSE calculations are published in an FTR bulletin at https://gsa.gov/ftrbulletins.
That is, when the spouse or domestic partner necessarily occupies temporary quarters in lieu of the employee or in a location separate from the employee.
(a) Agencies may initially authorize an employee to claim TQSE for a period not to exceed 60 consecutive days. The agency may authorize an extension of up to 60 additional consecutive days, for a maximum total of 120 consecutive days, if the agency determines that there is a compelling reason for continued occupancy of temporary quarters. Under no circumstances can more than 120 days of TQSE be reimbursed.
(1) A “compelling reason” that may warrant an extension is an event that is beyond the employee's control and is acceptable to the agency.
(2) [Reserved]
(b) Agencies may reduce the total number of days that are authorized for TQSE by the number of househunting days (e.g., instead of authorizing 60 days of TQSE the agency can authorize 50 days to account for a 10-day househunting trip); however, the percentage multiplier used for calculating TQSE may not be reduced based on the number of days used for a househunting trip.
(c) The authorized period for claiming TQSE-LP reimbursement is measured on consecutive days, and once begun, continues to run whether or not occupancy of temporary quarters continues. However, the authorized period for claiming reimbursement may be interrupted in the following instances:
(1) For the time allowed for official travel en route between the old and new official stations;
(2) For circumstances attributable to official necessity such as an intervening temporary duty assignment or military duty; or
(3) For a non-official necessary interruption such as hospitalization, approved sick leave, or other reasons beyond the employee's control and acceptable to the agency.
(d) If the estimated daily amount of TQSE is determined in advance to be lower than the maximum daily amount, agencies may reduce the maximum allowable amount to the expected expenses provided the new applicable amount is annotated on the relocation travel authorization before occupancy of temporary quarters begins.
(e) Temporary quarters lodging taxes are not included in the daily temporary quarters lodging rate and may be documented as a separate TQSE-LP miscellaneous expense. Laundry/dry cleaning expenses are included in the incidental portion of the daily M&IE allowance and are not separately reimbursed.
(a) Agencies should consider delaying all non-essential relocations to Presidentially-Declared Disaster areas because the ability to secure temporary quarters lodgings in those areas may be compromised. If relocation cannot be delayed, or if an employee is already occupying temporary quarters that have been affected by the disaster in a Presidentially-Declared Disaster area, for temporary quarters located within CONUS the agency may:
(1) Authorize an employee to occupy temporary quarters outside of the proximity requirements at § 302-6.4; and
(2) Authorize TQSE-LP as outlined in this part or authorize actual expenses on an individual basis under chapter 301 of this subtitle, not to exceed 300 percent of the applicable per diem rate per § 301-11.17 of this subtitle; or
(3) Issue a blanket actual expense authorization for official relocation travel performed on or after the date of the Presidentially-Declared Disaster.
(b) The authorizations in paragraphs (a)(1) through (3) of this section must apply to a specific Presidential Disaster Declaration, and will expire one year from the date the Declaration is issued, unless an agency head or their designee extends the blanket authorization based on a determination of necessity. The maximum limit of 120 consecutive days that TQSE may be authorized is statutorily based and remains in effect in accordance with § 302-6.9. A blanket authorization issued under this section shall not apply to any travel performed pursuant to chapter 301 of this subtitle.
TQSE should be authorized only if, and only for as long as necessary. Agencies must administer the TQSE allowance to minimize or avoid other relocation expenses.
Agencies must establish policies and procedures governing:
(a) When the agency will authorize temporary quarters for employees;
(b) Who will determine if temporary quarters is appropriate in each situation;
(c) Who will determine the appropriate period of time for which TQSE reimbursement will be authorized, including approval of extensions and interruptions of temporary quarters occupancy;
(d) Who will determine whether quarters were indeed temporary;
(e) Who will determine, and in what instances, to issue the authorizations at § 302-6.10, including a blanket authorization for actual expenses;
(f) What circumstances necessitate the extension of a blanket actual expense authorization under § 302-6.10.
Eligibility for the transportation and temporary storage of household goods (HHG) at Government expense is indicated where applicable at §§ 302-3.1 and 302-3.100 of this chapter. Property acquired en route will not be eligible for transportation at Government expense.
(a) The maximum weight allowance of HHG that may be shipped or stored at Government expense is 18,000 pounds net weight. For uncrated or van line shipments, a 2,000 pound allowance is added to the 18,000 pounds net weight allowance to cover packing materials for the shipment. In no case may a shipment weigh over 20,000 gross pounds. The relocating employee is responsible for reimbursing the Government for all costs incurred if the shipment is overweight. For determining the weight of crated shipments, containerized shipments, and constructive weight for other types of HHG shipments, please see table 1 to § 302-7.8.
(b) An agency may establish a lower net weight allowance and a lower allowance for packing materials in special circumstances, such as transferring an employee into government-furnished quarters. When quarters are furnished or partly furnished by the Government OCONUS, the agency may limit the weight of HHG and temporary storage that can be transported to that location. Only the authorized weight allowance that was shipped to the OCONUS location may be returned to CONUS upon completion of the tour of duty, unless the agency makes an exception under conditions specified in agency internal regulations.
(c) Household goods may be transported and stored in multiple lots; however, the maximum HHG weight allowance is based upon shipping and storing all HHG as one lot.
(a) The agency may pay for shipping PBP&E as a discretionary item. When authorized, shipping PBP&E is considered an administrative cost to the agency. However, for ease of administration in calculating this allowance, PBP&E should be included as part of the HHG shipment, if possible. That is, if the net weight of the HHG plus the PBP&E is less than 18,000 pounds, the agency should ship the items together and pay for the HHG shipment in one payment.
(b) Any PBP&E that was transported as an administrative expense of the Government to the OCONUS assignment will be returned as an administrative expense of the Government to the place of actual residence or any other location, not to exceed the cost to the authorized destination.
(a) The agency should separate the PBP&E and have the HHG carrier estimate the weight of the PBP&E before the HHG shipment is picked up. Subtract 110 percent of the estimated PBP&E weight (to adjust for packing materials) from the estimated gross weight as shown on the shipping documents (i.e., net weight minus the PBP&E minus 10 percent of the PBP&E). If the result is more than the 18,000 pounds net weight allowance, then the shipment exceeds the net weight allowance.
(b) If it was not discovered that the HHG shipment exceeded the net weight allowance in advance, and if the PBP&E was not weighed or estimated before shipping, then the agency should weigh the PBP&E before it is delivered. Determine if the shipment exceeds the net weight allowance by applying the formula in paragraph (a) of this section.
(c) If the calculation in paragraph (a) of this section shows that the shipment does not exceed the net weight allowance, then the agency may transport and pay for shipping the PBP&E plus packing materials with the household goods.
(d) However, if the calculation in paragraph (a) of this section shows that the shipment may exceed the net weight allowance, and if the employee was authorized PBP&E, then the employee must pay for shipping all weight that exceeds the net weight allowance for their HHG, minus the PBP&E and packing materials for both. The agency may then pay for shipping the PBP&E as an administrative expense.
(e) The agency may require reasonable documentation of the items requesting to be shipped as PBP&E and the weight of the PBP&E.
(a) The authorized origin and destination points for the transportation of HHG and PBP&E vary by category of employee and are listed in paragraphs (a)(1) through (6) of this section:
(1) Employee transferred between official stations. Authorized between the old and new official stations (including to/from an extended storage location when authorized).
(2) New appointee. Authorized from place of actual residence to new official station (including to location of extended storage when authorized).
(3) Employee returning from OCONUS assignment for separation. Authorized from last official station and extended storage location, when authorized, to place of actual residence.
(4) Employee authorized separation travel to actual residence but retiring at the OCONUS location or an alternate location. Authorized from any location, including actual residence and extended storage location to any other location (including the OCONUS official station), not to exceed the constructive transportation cost from the official station and extended storage location (respectively) to the actual residence.
(5) SES last move home. Authorized from the last official station and extended storage location, when authorized, to the place of selection.
(6) TCS. Authorized from the current official station to the TCS location and return (includes to and from extended storage location when authorized).
(b) Shipments may originate or terminate at any location; however, reimbursement is limited to the cost of transporting the property in one lot from the authorized origin to the authorized destination.
HHG may be placed in temporary storage at origin, in transit, at destination, or any combination thereof upon agency approval.
(a) For CONUS-to-CONUS shipments. The initial period of temporary storage at Government expense may not exceed 60 days. An extension may be granted for a maximum of 90 additional days. Requests for an extension must be made prior to the expiration of the original 60 days. This extension must be approved by the agency official designated for such requests. Under no circumstances may temporary storage at Government expense for CONUS-to-CONUS shipments exceed a total of 150 days.
(b) For shipments that include an OCONUS origin or destination. The initial period of temporary storage at Government expense may not exceed 90 days. An extension may be granted for a maximum of 90 additional days. Requests for an extension must be made prior to the expiration of the original 90 days. This extension must be approved by the agency official designated for such requests. Under no circumstances may temporary storage for shipments at Government expense that include an OCONUS origin or destination exceed a total of 180 days.
(a) The Government's liability for loss or damage to HHG is determined by the agency under 31 U.S.C. 3721-3723 and agency implementing rules and regulations issued pursuant to the law.
(b) When transporting HHG under the commuted rate or actual expense method and a commercial HHG carrier is used, the carrier accepts limited liability for any loss or damage in accordance with HHG carrier tariffs. For transporting HHG by self drive equipment for a do-it-yourself-move and for any loss or damage not covered by the HHG carrier, see part 302-11 of this chapter.
(c) Items that are irreplaceable or of extremely high monetary or sentimental value should not be included in the HHG shipment. Additional insurance may be purchased, at personal expense, to cover any loss or damage, however, such items are not necessarily provided special security. Accordingly, it is advisable that such items be personally transported.
HHG should be shipped by the most economical method available. The various methods of shipment and weight calculations include the following:
Table 1 to § 302-7.8
| Method of shipment | How weight of shipment is determined |
|---|---|
| (a) Uncrated (shipped in HHG movers van or similar conveyance) | An allowance of up to 2,000 pounds, exclusive of the 18,000 pounds net weight of HHG shipment, is used for the packing weight covering barrels, boxes, cartons, and similar material but does not include pads, chains, dollies and other equipment to load and secure the shipment. |
| (b) Crated shipments | When crated, the net weight will not include the weight of the crating material. The net weight will be computed as being 60 percent of the gross weight. However, if the net weight computed in this manner exceeds the applicable weight limitation and if it is determined that, for reasons beyond the employee's control, unusually heavy crating and packing materials were necessarily used, the net weight may be computed at less than 60 percent of the gross weight. |
| (c) Containerized shipments (Special containers designed, | When the known tare weight does not include the weight of interior bracing and padding materials but only the weight of the container, the net weight will be 85 percent of the gross weight less the weight of the container. If the known tare weight includes such material, so that the net weight is the same as it would be for uncrated shipments in interstate commerce, the net weight will not be subject to reduction. |
| (d) Constructive weight | If adequate scales are not available at origin, en route or at destination, a constructive weight based on 7 pounds per cubic foot of properly loaded van space may be used. Such weight may be used for a part-load when its weight could not be obtained, without first unloading it or other part-loads being carried in the same vehicle or when the HHG are not weighed because the carrier's charges for local or metropolitan area moves are properly computed on the basis other than weight or volume of the shipment (as when payment is based on an hourly rate and distance involved). In such instances a statement from the carrier showing the properly loaded van space required for the shipment should be obtained with respect to proof of entitlement to a commuted rate payment when net weight cannot be shown. |
There are two authorized methods of transporting and paying for the movement of HHG, PBP&E, and temporary storage. Agencies determine which of the following methods will be authorized. Employees do not have to use the method selected by their agency for transportation and temporary storage of their HHG and PBP&E; however, reimbursement is limited to the actual cost incurred, not to exceed what the Government would have incurred under the method selected by the agency.
(a) Commuted rate system. Under the commuted rate system, the employee assumes total responsibility for arranging and paying for all aspects of transporting the HHG. When any PBP&E is transported as an administrative expense of the agency, all arrangements will be handled and paid for by the agency.
(b) Actual expense method. Under the actual expense method, the agency assumes the responsibility for arranging and paying for all aspects of transporting the HHG and PBP&E with a commercial HHG carrier.
(a) Employees will not be responsible for the shipping charges that result from a weight additive so long as the actual weight of the HHG without the additive does not exceed the 18,000 pound net weight allowance for relocation. However, employees are responsible for any amount of their HHG that exceeds the 18,000 pound net weight allowance prior to the addition of the weight additive (e.g., when a weight additive of 700 pounds is imposed by a HHG carrier for a 65-pound canoe and the total net weight of the HHG, including the weight additive, is 18,765 pounds, the employee is only responsible for the 65 pounds actually added by the canoe).
(b) Employees are also responsible for the cost of special packing, crating, and handling of the weight additive items, if any. See § 302-7.200 on how charges are paid and who makes the shipping arrangements.
Please see the commuted rate table published by GSA at https://www.gsa.gov/relocationpolicy to determine how the charges for transporting HHG, and temporary storage are computed using the commuted rate method. Reimbursement must not exceed the limits in the commuted rate table.
When claiming reimbursement under the commuted rate, employees must provide:
(a) A receipted copy of the bill of lading (reproduced copies are acceptable) including any attached weight certificate copies if issued, and if applicable, a receipted copy of the warehouse or other bill for storage;
(b) Other evidence showing points of origin and destination and the weight of the HHG, if no bill of lading was issued; or
(c) If a commercial HHG carrier is not used, employees are responsible for establishing the weight of the HHG, and temporary storage by obtaining proper certified weight certificates. Certified weight certificates include the gross and tare weights. This is required because payment at commuted rates on the basis of constructive weight usually is not possible.
An advance of funds may be authorized when the transportation of HHG and temporary storage is authorized under the commuted rate method. To receive an advance under the commuted rate method, employees must provide a copy of an estimate of costs from a commercial HHG carrier or a written statement that includes:
(a) Origin and destination;
(b) A signed copy of a commercial bill of lading annotated with actual weight (or other evidence of actual weight) or a reasonable estimate acceptable to the agency; and
(c) Anticipated temporary storage period (not to exceed 90 days) at Government expense.
HHG may be stored at Government expense incident to the transporting of such goods either at the HHG carrier storage facility or a self storage facility. Storage may be at any combination of origin, en route locations or destination. The following temporary storage expenses will be reimbursed:
(a) For storage at the HHG carriers facility:
(1) Handling in;
(2) Daily storage;
(3) Handling out; and
(4) Drayage to residence.
(b) For storage at a self storage facility—the cost of the storage space that will reasonably accommodate the HHG transported.
Agencies are responsible for making all the necessary arrangements for transporting HHG, PBP&E, and temporary storage under the actual expense method. The agency will issue a Bill of Lading or any other shipping document with all charges billed directly to the agency. Any cost or weight in excess of 18,000 pounds will be at the employee's expense. If the shipment exceeds the maximum weight prescribed in § 302-7.2, the Government will pay the total charges and the employee will reimburse the Government for the cost of transportation, temporary storage, and other charges applicable to the excess weight.
UAB is used in connection with permanent change of station OCONUS, renewal agreement travel, and temporary change of station OCONUS. Employees may be authorized a UAB shipment prior to transferring from a CONUS location to an OCONUS location, between OCONUS locations, or from an OCONUS location to a CONUS location. UAB for CONUS-to-CONUS shipments is not allowed under this subtitle. The UAB shipment is part of, not in addition to, the 18,000 pounds net weight allowance for HHG. The agency or the agency's designee should arrange for the transport of the UAB. In limited situations, the agency may ask the employee to make the arrangements for a UAB shipment. The agency must arrange and ship the UAB in time to ensure that the shipment arrives by the time the employee and/or their family reports to their new official station. The maximum weight allowance the agency may grant for a UAB shipment is—
(a) Up to 350 pounds actual weight (including the weight of the luggage or packing material) for the employee and each immediate family member 12 years of age and over; or
(b) Up to 175 pounds actual weight (including the weight of the luggage or packing material) for each immediate family member under 12 years of age.
Agencies may authorize the shipment of UAB by expedited means when:
(a) Shipment by a lower cost mode cannot deliver the items being shipped by the time the UAB will be needed by the employee and/or the employee's immediate family;
(b) The employee certifies, and the agency accepts, that expedited shipment of the UAB is necessary to carry out the assigned duties; or
(c) The agency determines that an expedited shipment is necessary to prevent undue hardship to the employee and/or members of their immediate family.
Agencies must establish policies and procedures as required for this subpart, including who will:
(a) Administer the household goods program;
(b) Authorize commuted rate or actual expense for transportation and payment for HHG, PBP&E, and temporary storage;
(c) Authorize PBP&E to be transported as an agency administrative expense;
(d) Authorize an employee to ship UAB;
(e) Collect any excess costs or charges;
(f) Advise the employee on the Government's liability for any personal property damage or loss claims (see 31 U.S.C. 3721 et seq.);
(g) Ensure that international HHG shipments by water are made on ships registered under the laws of the United States whenever such ships are available (see The Cargo Preference Act of 1904 (10 U.S.C. 2631) and The Cargo Preference Act of 1954 (46 U.S.C. 55302));
(h) Authorize temporary storage in excess of the initial 60-day limit for CONUS shipments or 90-day limit for OCONUS shipments; and
(i) Ensure pre-payment audits are completed.
(a) Agencies have the sole discretion to authorize transportation of PBP&E as an administrative expense and may do so provided that:
(1) The authorizing official has certified that the PBP&E is necessary for performance of the employee's duties at the new duty station;
(2) The authorizing official has certified that, if these items were not transported, the same or similar items would have to be obtained at Government expense for the employee's use at the new official station;
(3) The authorizing official has acquired evidence that transporting the PBP&E would cause the employee's HHG to exceed the 18,000 pounds net weight allowance; and
(4) If requested by the agency, the employee has provided reasonable documentation of the items requesting to be shipped as PBP&E and the weight of the PBP&E for review by the authorizing official (who is usually an official at the employee's new official station).
(b) PBP&E transported as an agency administrative expense to an OCONUS location may be returned to CONUS as an agency administrative expense for an employee separating from Government service or returning to the actual place of residence and continuing in Government service. Separate weight certificates are required when the PBP&E and its packing allowance pushes the shipment over the net weight allowance. Otherwise, for administrative efficiency, the HHG shipment should be billed and paid for as a single shipment.
(c) If separate weight certificates are required, then the weight of PBP&E and the administrative appropriation chargeable must be listed as separate items on the bill of lading or other shipping document.
When arranging transportation of HHG and UAB under the actual expense method, agencies must:
(a) Determine the constructive cost of transporting the HHG plus the UAB, as follows:
(1) Compute the cost of transporting the HHG (not including the UAB) in one lot, by the most economical means; be sure to include the cost of packing and unpacking.
(2) Compute the cost of transporting the UAB.
(3) If the HHG, including the UAB, exceeds the 18,000 pounds net weight allowance, then compute the cost of transporting only the net weight allowance as one shipment; again, be sure to include the cost of packing and unpacking.
(4) The constructive cost is either that described in paragraph (a)(3) of this section or the sum of paragraphs (a)(1) and (2) of this section, depending on whether the weight of the HHG, including the UAB, exceeds the net weight allowance.
(b) Limit the employee's HHG plus UAB transportation payment to the constructive cost as described in paragraph (a)(4) of this section, so long as it is equal to or less than the 18,000 pound net limit of this chapter.
(c) Make arrangements for transporting the employee's HHG and UAB under two separate bills of lading, with direct payment by the agency for both.
(d) Advise employees of this relocation entitlement limitation and its potential to result in out-of-pocket expenses to the employee. That is, advise employees that they will have to use their personal funds to pay for transporting HHG (including UAB) in excess of 18,000 pounds net weight allowance.
(a) Extended storage of HHG may only be authorized under the following circumstances:
(1) An employee is assigned to an isolated duty station within CONUS and will be unable to use the household goods or personal effects (see subpart B of this part);
(2) An employee is assigned to an overseas official station where the agency limits the amount of HHG that may be transported to that location (see subpart C of this part);
(3) An employee is assigned to an OCONUS official station and the agency determines extended storage is in the public interest or cost effective to do so; or
(4) It is authorized by the agency in conjunction with a temporary change of station (TCS).
(b) Agencies will indicate on the travel authorization the specific allowances that are authorized as provided in this chapter.
(c) Employees may not receive an advance of funds for storage allowances covered by this part.
Extended storage of HHG belonging to an employee transferred or a new appointee assigned to an official station at an isolated location in CONUS may be allowed only when it is clearly justified under the conditions in this part and is not primarily for the convenience, or at the request of, the employee or the new appointee.
(a) As determined by the agency, an official station at an isolated location is a place of permanent or temporary duty assignment in CONUS at which employees have no alternative except to live where they are unable to use their HHG because:
(1) The type of quarters required to be occupied at the isolated official station will not accommodate the HHG; or
(2) Residence quarters which would accommodate the HHG are not available within reasonable daily commuting distance of the official station.
(b) The designation of an official station as isolated in accordance with paragraph (a) of this section shall not preclude a determination in individual instances that adequate housing is available for some employees stationed there based on housing which may be available within daily commuting distance and the size and other characteristics of each employee's immediate family. In such instances the station shall not be considered isolated with regard to those employees if the agency determines adequate family housing is available.
Heads of agencies concerned are responsible for designating the isolated official station at which conditions exist for allowing extended storage of HHG at Government expense for some or all employees.
HHG may be stored either in:
(a) Available Government-owned storage space; or
(b) Suitable commercial storage space obtained by the Government if:
(1) Government-owned space is not available; or
(2) Commercial storage space is more economical or suitable because of location, transportation costs, or for other reasons.
Allowable costs for storage include the cost of:
(a) Necessary packing;
(b) Crating;
(c) Unpacking;
(d) Uncrating;
(e) Transportation to and from place of storage;
(f) Charges while in storage; and
(g) Other necessary charges directly relating to the storage as approved by the agency.
Employees may change from temporary to extended storage or from storage at personal expense to extended storage at Government expense, if authorized by their agency.
The authorized time period for extended storage of an employee's HHG is for the duration of the assignment not to exceed 3-years. However:
(a) Agencies will conduct periodic reviews to determine whether current housing conditions at the isolated official station warrant continuation of storage;
(b) Eligibility for extended storage at Government expense will terminate on the last day of active duty at the isolated official station. However, the HHG may remain in temporary storage for an additional period of time not to exceed 90 days, if approved by the agency.
(a) Extended storage of HHG belonging to an employee transferred or a new appointee assigned to an official station outside the CONUS (OCONUS) may be allowed only when it is clearly justified under the conditions in this part and is not primarily for the convenience, or at the request of, the employee or the new appointee.
(b) An employee is eligible for extended storage for an assignment OCONUS if their agency authorizes it in compliance with the requirements in this paragraph (b):
(1) The official station is one to which the employee is not authorized to take, or at which they are unable to use, their HHG;
(2) The agency authorizes it as being in the public interest; or
(3) The agency determines the estimated cost of storage would be less than the cost of round-trip transportation (including temporary storage) of the HHG to the new official station.
(c) The same allowable extended storage expenses and other provisions provided in §§ 302-8.101 through 302-8.103 apply to extended storage OCONUS.
Time limitations for extended storage of the HHG will be determined by the agency as follows:
(a) For the duration of the OCONUS assignment plus 30 days prior to the time the tour begins and plus 60 days after the tour is completed;
(b) Extensions may be allowed for subsequent service or tours of duty at the same or other overseas stations if the employee continues to be eligible as set forth in § 302-8.200; and
(c) When eligibility ceases, storage at Government expense may continue until the beginning of the second month after the month in which the tour at the official station OCONUS terminates, unless to avoid inequity the agency extends the period.
(a) Description. The Department of Defense Overseas Teachers Pay and Personnel Practices Act (20 U.S.C. 905) provides authority for the storage of the HHG of DoDDS teachers during the recess period between 2 consecutive school years.
(b) Regulations. See the DoD Joint Travel Regulations (JTR), published by the Per Diem, Travel and Transportation Allowance Committee and available at https://www.defensetravel.dod.mil/site/travelreg.cfm.
If the DoDDS teacher does not report for service at the beginning of the next school year, they must repay the Government for the cost of the extended storage of their HHG during the recess. Except for reasons beyond their control and acceptable to DoD, the teacher shall be obligated to reimburse DoD the amount paid for the commercial storage, including related services. If, however, the property was stored in a Government facility, the teacher shall pay DoD an amount equal to the reasonable value of the storage furnished, including related services.
(a) Agencies must establish policies and procedures governing this part including:
(1) When the agency will authorize payment;
(2) Who will determine whether payment is appropriate;
(3) How and when reimbursements will be paid;
(4) Which locations meet the criteria of this part for isolated official station at which conditions exist for allowing extended storage at Government expense for some or all employees; and
(5) Who will determine the duration and place of extended storage.
(b) Agencies should limit payment of extended storage of HHG to only those expenses that are necessary and in the interest of the Government.
(a) Agencies may authorize transportation of a POV when it is advantageous and cost effective to the Government.
(b) If the agency decides that driving the POV is more advantageous, reimbursement will be limited to the allowances provided in part 302-4 of this chapter.
(c) There is no authority for non-emergency storage of a POV under this subtitle; however, an agency may approve storage for a POV when an employee is assigned a temporary change of station in support of a contingency operation as defined in 10 U.S.C. 1482a(c)(2).
(a) When an agency authorizes transportation or emergency or temporary storage of a POV, it will pay for all necessary and customary expenses directly related to the transportation and/or storage of the POV, including readying the POV for storage, transportation to point of storage, storage, readying the POV for use after storage, transportation from the point of storage, crating and packing expenses, shipping charges, and port charges for readying the POV for shipment at the port of embarkation, and for use at the port of debarkation. Insurance on the POV is at the employee's expense, unless it is included in the expenses allowed by this paragraph (a).
(b) If an agency authorizes transportation of a POV to a post of duty and the employee completes their service agreement, the agency must pay for the cost of returning the POV.
(c) Only a passenger automobile, station wagon, light truck, or other similar vehicle that will be used primarily for personal transportation may be authorized to transport, and if necessary store under emergency or temporary circumstances. An employee may not transport or store a trailer, airplane, or any vehicle intended for commercial use.
(d) An employee is eligible for emergency storage of a POV transported to a post of duty at Government expense when the head of the agency determines that the post of duty is within a zone from which the employee's immediate family and/or household goods should be evacuated.
(e) When an employee receives notice to evacuate their immediate family and/or household goods from a post of duty, they may store their POV at a place determined to be reasonable by the agency whether the POV is already located at, or being transported to, the post of duty.
(f) An employee is eligible for temporary storage of a POV when they are assigned a TCS in support of a contingency operation (humanitarian operations, peacekeeping operations, and similar operations) as defined in 10 U.S.C. 1482a(c)(2) and are eligible for expenses as authorized in part 302-3, subpart E, of this chapter.
(g) The head of the agency determines it would be more advantageous, cost and other factors considered, to authorize the temporary storage of the POV.
(h) Employees may be authorized to store one POV at any given time during the period of the TCS assignment, subject to this subpart. A POV may be stored for the duration of the TCS.
(i) Agencies may provide for storage, without charge, or for the reimbursement of the cost of storage, of one POV that is owned or leased by an employee of that agency (or by an immediate family member of such employee) and that is for the personal use of the employee.
An advance of funds may be received in accordance with § 302-2.8 of this chapter, not to exceed the estimated amount of the expenses authorized under this part.
(a) Employees may only transport one POV to a post of duty. However, this does not limit the transportation of a replacement POV when authorized under § 302-9.171. The POV must be shipped to the actual post of duty.
(b) If there is no port or terminal at the point of origin and/or destination, the agency will pay the entire cost of transporting the POV from the point of origin to the destination. If preferred, however, the employee may choose to drive the POV from the point of origin at time of assignment to the nearest embarkation port or terminal, and/or from the debarkation port or terminal nearest the destination to the post of duty at any time. If driving is chosen, reimbursement will be the one-way mileage cost, at the rate specified in part 302-4 of this chapter, for driving the POV from the authorized origin to deliver it to the port of embarkation, or from the port of debarkation to the authorized destination. For the segment of travel from the port of embarkation back to the authorized origin after delivering the POV to the port or from the authorized destination to the port of debarkation to pick up the POV, reimbursement will be the one-way transportation cost. The total cost of round-trip travel, to deliver the POV to the port at the origin or to pick up the POV at the port at destination, may not exceed the cost of transporting the POV to or from the port involved. Reimbursement for a per diem allowance for round-trip travel to and from the port involved is not authorized.
(a) The “authorized point of origin” is determined based on the type of employee.
(1) For a transferee—the employee's old official station.
(2) For a new Appointee or student trainee—that person's place of actual residence.
(b) If transporting a POV from a point of origin that is different from the authorized point of origin, reimbursement is limited to the transportation costs incurred, not to exceed the cost of transporting the POV from the authorized point of origin to the post of duty.
An employee may have the manufacturer or the manufacturer's agent transport a new POV from the factory or other shipping point directly to the post of duty provided-
(a) The POV is purchased new from the manufacturer or manufacturer's agent;
(b) The POV is transported Free on Board (FOB)—shipping point, consigned to the employee and/or a member of their immediate family, or the employee's agent; and
(c) Ownership of the POV is not vested in the manufacturer or the manufacturer's agent during transportation. In this circumstance, reimbursement will be for the POV transportation costs, not to exceed the cost of transporting the POV from the authorized point of origin to the post of duty.
Agencies may authorize transportation of a POV to the post of duty subsequent to the time of assignment when:
(a) The employee does not have a POV at the post of duty;
(b) The employee has not previously been authorized to transport a POV to that post of duty;
(c) The employee has not previously transported a POV outside CONUS during their assignment to that post of duty;
(d) The agency has determined, in accordance with its internal policies, that it is in the interest of the Government for the employee to have use of a POV at the post of duty;
(e) The employee signed a service agreement at the time they were transferred in the interest of the Government, or assigned if they were a new appointee or student trainee, to the post of duty; and
(f) The employee meets any specific conditions the agency has established.
(a) Agencies may authorize transportation of a replacement POV to the post of duty when:
(1) The employee requires an emergency replacement POV and meets the following conditions:
(i) The employee had a POV which was transported to the post of duty at Government expense;
(ii) The employee requires a replacement POV for reasons beyond their control and acceptable to the agency, such as the POV is stolen, or seriously damaged or destroyed, or has deteriorated due to conditions at the post of duty; and
(iii) The agency determines in advance of authorization that a replacement POV is necessary and in the interest of the Government; or
(2) The employee requires a non-emergency replacement POV and meets the following conditions:
(i) The employee had a POV which was transported to a post of duty at Government expense;
(ii) The employee has been stationed continuously during a 4-year period at one or more posts of duty; and
(iii) The agency has determined that it is in the Government's interest for the employee to continue to have a POV at the post of duty.
(b) Agencies may authorize one emergency replacement POV within any 4-year period of continuous service. It may authorize one non-emergency replacement POV after every four years of continuous service beginning on the date the employee first has use of the POV being replaced.
Agencies determine the authorized point of origin within the United States when transporting a POV, including a replacement POV, to a post of duty subsequent to the time of an employee's assignment to that post of duty.
Employees are eligible for POV transportation from their post of duty when:
(a) They were transferred to a post of duty in the interest of the Government;
(b) They had a POV shipped to the post of duty and still have a POV at the post of duty;
(c) They are transferred back to the official station (including post of duty) from which they transferred to their current post of duty or they are transferred to a new official station within CONUS;
(d) They are transferred to a new post of duty, where the agency determines that use of a POV at that location is not in the interest of the Government;
(e) They separate from Government service after completion of an agreed period of service at the post of duty where the agency determined the use of a POV to be in the interest of the Government;
(f) They separate from Government service prior to completion of an agreed period of service at the post of duty where the agency determined the use of a POV to be in the interest of the Government, and the separation is for reasons beyond their control and acceptable to the agency; or
(g) Conditions change at the post of duty such that use of the POV no longer is in the best interest of the Government.
If conditions change at the post of duty such that use of a POV no longer is in the interest of the Government, or if the employee separates from Government service prior to completion of their service agreement for reasons beyond their control and acceptable to the agency, agencies may authorize return transportation to an authorized destination. When the return transportation is based on changed conditions, the employee is still required to complete their service agreement. If the employee does not, they will be required to repay the transportation costs.
The “authorized point of origin” when transporting a POV from a post of duty is the last post of duty to which the employee was authorized to transport their POV at Government expense.
(a) The “authorized destination” of a POV transported under this subpart is illustrated in the following table:
Table 1 to Paragraph (
| If | The authorized destination of the POV transported at Government expense is |
|---|---|
| Transferred to an Official station within CONUS | The official station. |
| Transferred to another post of duty and use of a POV at the new post is not in the interest of the Government | The place of actual residence. |
| Employee separates from Government service and is eligible for transportation of the POV from the post of duty | The place of actual residence. |
| Conditions change at the post of duty such that use of a POV no longer is in the interest of the Government at that post of duty | The place of actual residence. |
(b) If transporting a POV from a point of origin or to a destination that is different from the authorized origin or destination, reimbursement will be for the transportation costs actually incurred, not to exceed what it would have cost to transport the POV from the authorized origin to the authorized destination.
(c) If there is no port or terminal at the authorized point of origin or authorized destination, the agency will pay the entire cost of transporting the POV from the authorized origin to the authorized destination. If preferred, however, the employee may choose to drive their POV to the port of embarkation and/or from the port of debarkation. If driving is selected, reimbursement will be in the same manner as an employee under § 302-9.101.
Agencies will pay the transportation costs not to exceed the cost of transporting the POV to the authorized destination, provided all other conditions are met for transporting a POV.
Agencies may authorize transportation of a replacement POV purchased at a post of duty from the same post of duty only if:
(a) At the time the replacement POV was purchased, the employee met the conditions in § 302-9.171; and
(b) Prior to purchase of the replacement POV, the agency authorized purchase of a replacement POV at the post of duty.
Agencies may pay for transportation of a POV within CONUS at Government expense when the distance that the POV is to be shipped is 600 miles or more, and the employee is:
(a) An employee who transfers within CONUS in the interest of the Government; or
(b) A new appointee or student trainee relocating to the first official station within CONUS.
(c) Employees may be authorized to transport only the number of POVs equal to the number of people on the relocation travel orders, who are licensed drivers, not to exceed two, while relocating within CONUS.
If authorized to transport a POV within CONUS, the transportation must originate as shown in paragraphs (a) and (b) of this section; the destination must be the new official station:
(a) Transferee—old official station.
(b) New appointee or student trainee—place of actual residence.
To minimize costs and promote an efficient workforce, agencies should provide an employee use of a POV when it mutually benefits the Government and the employee. Agencies may authorize:
(a) Commercial means of transportation for POVs if available at reasonable rates and under reasonable conditions; or
(b) Government means of transportation for POVs on a space-available basis.
Agencies must establish policies governing:
(a) When they will authorize transportation and emergency storage of a POV;
(b) When they will authorize transportation of a replacement POV;
(c) Who will determine if transportation of a POV to or from a post of duty is in the interest of the Government;
(d) Who will determine if conditions have changed at an employee's post of duty to warrant transportation of a POV in the interest of the Government;
(e) Who will determine if transportation of a POV wholly within CONUS is more advantageous and cost effective than having the employee drive the POV to the new official station; and
(f) Who will determine whether to allow emergency storage of an employee's POV, including where to store the POV.
(a) When employees are eligible for the transportation of HHG, they will be reimbursed for transporting a mobile home instead of an HHG shipment, not to exceed what the Government would incur for the transportation of the HHG and 90-days temporary storage.
(b) Agencies may assume direct responsibility for the costs of preparing and transporting the mobile home if it is determined to be in the Government's interest.
(a) To have a mobile home transported at Government expense, employees must certify that the mobile home will be used at the new official station as their primary residence and/or the primary residence of their immediate family.
(b) Allowances for overland transportation of a mobile home may be made only for transportation within CONUS, within Alaska, and through Canada en route between Alaska and CONUS or through Canada between one CONUS point and another (e.g., between Buffalo, NY, and Detroit, MI). Allowances for transportation within limits prescribed may be paid even though the transportation involved originates, terminates, or passes through locations not covered, provided the amount of the allowance shall be computed on the basis of that part of the transportation which is within CONUS, within Alaska, or through Canada en route between Alaska and CONUS or between one CONUS point and another.
(c) Employees may transport a mobile home over water when both the points of origin and destination are within CONUS or Alaska.
Allowances for transporting a mobile home (including mileage when towed by a POV) are in addition to the reimbursement of subsistence expenses, mileage, and transportation expenses for the employee and their immediate family member(s). Allowances under parts 302-5, 302-6, and 302-11 of this chapter will be paid accordingly.
Agencies will allow for the distance shown in standard highway mileage guides or agency designated official table of distances or actual miles driven as determined from odometer readings, between the authorized origin and destination. Employees do not need to furnish odometer readings on the travel claim but must indicate the total miles traveled. Any deviation from the distances indicated in standard highway mileage guides or agency official table of distances must be fully explained and acceptable to the agency.
(a) Agencies will allow the following costs for transporting a mobile home:
(1) When transporting overland;
(i) The carrier's charge for actual transportation of the mobile home (not to exceed the applicable tariff for such movements approved by an appropriate regulatory body), provided any substantial deviation from standard highway mileage guides or agency official table of distances is explained;
(ii) Ferry fares, bridge, road, and tunnel tolls;
(iii) Taxes, charges or fees fixed by a State or other government authority for permits to transport mobile homes in or through its jurisdiction;
(iv) Carrier's service charges for obtaining necessary permits; and
(v) Charges for a pilot (flag) car or escort services, when required by State or local law.
(2) When transporting over water cost must include, but are not limited to the cost of:
(i) Fuel and oil used for propulsion of the boat;
(ii) Pilots or navigators in the open water;
(iii) A crew;
(iv) Charges for harbor pilots;
(v) Docking fees incurred in transit;
(vi) Harbor or port fees and similar charges related to entry in and navigation through ports; and
(vii) Towing, whether in tow or towing by pushing from behind.
(b) The mileage allowance when transporting a mobile home overland by other than commercial means (e.g., towed by a POV) is eleven cents per mile. This is in addition to the mileage allowance prescribed for driving the POV under part 302-4 of this chapter.
(c) When a mobile home is transported partly by commercial carrier and partly by POV, the allowances in this section apply to the respective portions of transportation by commercial carrier and POV.
Costs for preparing a mobile home for shipment are generally allowed, however, the following costs for transportation and preparation are not allowed:
(a) Costs for replacement parts, tires purchases, structural repairs, brake repairs or any other repairs or maintenance performed;
(b) Costs of insurance for valuation of mobile homes above carriers' maximum liabilities, or charges designated in the tariffs as “Special Service;”
(c) Cost of storage;
(d) Costs of connecting/disconnecting appliances, equipment, and utilities involved in relocation and costs of converting appliances for operation on available utilities; and
(e) Costs for preparing a mobile home located outside Alaska or CONUS for movement or the costs for resettling outside Alaska or CONUS are not allowed.
When a commercial carrier transports a mobile home, employees may receive an advance of funds when they are responsible for arranging and paying a commercial carrier to transport their mobile home. However, the advance may not exceed the estimated amount allowable. Employees are not authorized an advance of funds for any payment made directly to the carrier by the agency.
Agencies must establish policies for authorizing transportation of a mobile home that implements this part including when:
(a) It is considered in the best interest of the Government to assume direct responsibility for preparing and transporting an employee's mobile home; and
(b) To authorize an advance of funds for a commercial carrier transporting an employee's mobile home based on constructive or estimated cost when the employee assumes direct responsibility for payment.
(a) Eligibility to receive an allowance for expenses incurred in connection with residence transactions is indicated where applicable at § 302-3.100 of this chapter; new appointees and employees assigned under the Government Employees Training Act (GETA) are not eligible for such expenses. Employees may receive reimbursement for the one residence from which they regularly commute to and from work on a daily basis and which was their residence at the time they were officially notified by competent authority of the transfer to a new official station. Employees must occupy the residence at the time they are notified of their transfer, unless the transfer is from a foreign area to an official station within the United States other than the one the employee left when they transferred out of the United States. If an employee previously transferred from an official station in the United States to a foreign area and they are now transferring back to the United States, then, in addition to the eligibility requirements of this section, they must have completed the time period specified in their service agreement for the overseas tour of duty.
(b) The title to the property for which an employee is requesting an allowance for residence transaction must be:
(1) Solely in the employee's name;
(2) Solely in the name of one or more of their immediate family members; or
(3) Jointly in the employee's name and in the name of one or more of their immediate family members.
(c) Reimbursement of any residence transaction expenses (or settlement of an unexpired lease) that occurs prior to being officially notified (generally in the form of a change of station travel authorization) is prohibited.
(d) Employees may not receive an advance of funds for residence transaction expenses.
(a) If an employee qualifies for a residence transaction expense allowance, they may be reimbursed for the:
(1) Expenses of selling the old residence and purchasing a new residence in the United States; or
(2) Settlement of an unexpired lease at the old official station in the United States from which transferred to another official station in the United States or when assigned to a foreign post of duty; and
(3) Expenses of purchasing a new residence in the United States upon return to the United States upon completion of the foreign tour of duty and the return is to a different official station, and is 50 miles distance from the official station which the employee transferred from.
(b) Employees do not have to sell the residence at their old official station to be eligible for residence purchase transactions at their new official station.
When an employee has an unexpired lease (including month to month) that is for residence quarters at their old official station, they may be reimbursed for settlement expenses, including but not limited to broker's fees for obtaining a sublease or charges for advertising if:
(a) Applicable laws or the terms of the lease provide for payment of settlement expenses;
(b) Such expenses cannot be avoided by sublease or other arrangement;
(c) The employee has not contributed to the expenses by failing to give appropriate lease termination notice promptly after having definite knowledge of their transfer; or
(d) The broker's fees or advertising charges are not in excess of those customarily charged for comparable services in that locality.
As noted in § 302-2.2, all aspects of the relocation must be completed within 1 year; therefore, the settlement dates for the sale and purchase or lease termination transactions must occur not later than 1 year after the day an employee reports for duty at their new official station. Agencies may extend the 1-year limitation to complete residence transactions for up to one additional year for reasons beyond the employee's control and acceptable to the agency. An extension of time to complete residence transactions also extends the time to complete any other aspect of the relocation that is still pending. To have the initial time period extended, the employee must submit a request to their agency prior to the expiration date.
(a) The Government will determine who holds title to a property based on:
(1) Whose name(s) actually appears on the title document (e.g., the deed); or
(2) Who holds equitable title interest in the property as specified in § 302-11.101.
(b) If the employee or a member of their immediate family do not hold full title to the property for which they are requesting reimbursement, reimbursement will be on a pro rata basis to the extent of the employee's actual title interest plus their equitable title interest in the residence.
(c) To be eligible, the employee and/or a member(s) of their immediate family must have acquired title or equitable title interest in the residence as illustrated in the following table:
Table 1 to Paragraph (
| Type of transfer | Date |
|---|---|
| 1. Between official stations in the United States | 1. Prior to the date first notified of the transfer. |
| 2. Returning from completion of any foreign tour of duty to a different official station in the United States, which is 50 miles distance from the official station from which transferred to the foreign official station | 2. Prior to the date the employee transferred to the foreign area from which they are now returning. |
“Equitable title interest” in a residence is determined by the agency if:
(a) The title is held in trust, and:
(1) The property is the employee's residence;
(2) The employee and/or a member(s) of their immediate family are the only beneficiary(ies) of the trust during either of their lifetimes;
(3) The employee and/or a member(s) of their immediate family retain the right to distribute the property during their lifetimes;
(4) The employee and/or a member(s) of their immediate family retain the right to manage the property;
(5) The employee and/or a member(s) of their immediate family are the only grantor/settlor of the trust, or retain the right to direct distribution of the property upon dissolution of the trust or death; and
(6) The employee provides their agency with a copy of the trust document; or
(b) The title is held in the name of a financial institution, and:
(1) The property is the employee's residence;
(2) The employee and/or a member(s) of their immediate family executed a financing agreement (e.g., mortgage) with the financial institution;
(3) State or local law requires that lending parties take title to perfect (i.e., protect) a security interest in the property, or the financial institution requires that it take possession of title as a condition of the financing agreement; and
(4) The employee provides their agency with a copy of the financing document; or
(c) The title is held both in the names of:
(1) The employee solely, or jointly with one or more members of their immediate family, or solely by one or more members of their immediate family;
(2) An individual accommodation party as defined in § 300-1.1 of this subtitle who is not a member of the employee's immediate family; and
(3) These conditions apply:
(i) The property is the employee's residence.
(ii) The employee and/or a member(s) of their immediate family have the right to use the property and to direct conveyance of the property.
(iii) The lender requires signature of the accommodation party on the financing document.
(iv) The employee and/or a member of their immediate family, are liable for payments under the financing arrangement (e.g., mortgage).
(v) The accommodation party's name is on the title.
(vi) The accommodation party does not have a financial interest in the property unless the employee and/or a member(s) of the immediate family default on the financing arrangement.
(vii) The employee must provide documentation of the accommodation that is acceptable by the agency; or
(d) The title is held by the seller of the property and the following conditions are met:
(1) The property is the employee's residence;
(2) The employee and/or member(s) of their immediate family has the right to use the property and to direct conveyance of the property;
(3) The employee and/or member(s) of their immediate family must have signed a financing agreement with the seller of the property (e.g., a land contract) providing for fixed periodic payments and transfer of title to the employee and/or a member(s) of the immediate family upon completion of the payment schedule; and
(4) The employee provides their agency with a copy of the financing agreement; or
(e) Another equitable title situation exists where title is held in the employee's name only or jointly with the employee and one or more members of their immediate family or with the employee and an individual who is not an immediate family member, and the following conditions are met:
(1) The property is the employee's residence.
(2) The employee and/or a member(s) of their immediate family has the right to use the property and to direct conveyance of the property.
(3) Only the employee and/or a member(s) of their immediate family has made payments on the property.
(4) The employee and/or a member(s) of their immediate family received all proceeds from the sale of the property.
(5) The employee must provide suitable documentation to their agency that all conditions in paragraphs (e)(1) through (4) of this section are met.
Provided the residence transaction expenses are customarily charged to the seller of a residence in the locality of the old official station or paid by the purchaser at the new official station, agencies will, with appropriate supporting documentation provided by the employee, reimburse the following residence transaction expenses when they are incurred by the employee incident to the relocation:
(a) Broker's fee or real estate commission for the sale of the employee's residence at the old official station or purchase of a new residence at the new official station that the employee pays, not to exceed the rates that are generally charged in the locality of the old or new official stations;
(b) The customary cost for an appraisal;
(c) The costs of newspaper, bulletin board, multiple-listing services, and online or other advertising for sale of the residence at the old official station that is not included in the broker's fee or the real estate agent's commission;
(d) The cost of a title insurance policy, costs of preparing conveyances, other instruments, and contracts and related notary fees and recording fees; cost of making surveys, preparing drawings or plats when required for legal or financing purposes; and similar expenses incurred for selling the residence to the extent such costs:
(1) Have not been included in other residence transaction fees (i.e., brokers' fees or real estate agent fees);
(2) Do not exceed the charges, for such expenses, that are normally charged in the locality of the residence; and
(3) Are usually furnished by the seller;
(e) The costs of searching title, preparing abstracts, and the legal fees for a title opinion to the extent such costs:
(1) Have not been included in other related transaction costs (i.e., broker's fees or real estate agency fees); and
(2) Do not exceed the charges, for such expenses, that are customarily charged in the locality of the residence; and
(f) The following “other” miscellaneous expenses in connection with the sale and/or purchase of a residence, provided they are normally paid by the seller or the purchaser in the locality of the residence, to the extent that they do not exceed specifically stated limitations, or if not specifically stated, the amounts customarily paid in the locality of the residence:
(1) Federal Housing Administration or Department of Veterans Affairs fees for the loan application;
(2) Loan origination fees and similar charges such as loan assumption fees, loan transfer fees or other similar charges not to exceed 1 percent of the loan amount without itemization of the lender's administrative charges if the charges are assessed in lieu of a loan origination fee and reflect charges for services similar to those covered by a loan origination fee. Reimbursement may exceed 1 percent only when the employee provides evidence that the higher rate does not include prepaid interest, points, or a mortgage discount, and is customarily charged in the locality where the residence is located;
(3) Cost of preparing credit reports;
(4) Mortgage and transfer taxes;
(5) State revenue stamps;
(6) Other fees and charges similar in nature to those listed in paragraphs (f)(1) through (5) of this section, unless specifically prohibited in § 302-11.201;
(7) Charge for prepayment of a mortgage or other security instrument in connection with the sale of the residence at the old official station to the extent the terms in the mortgage or other security instrument provide for this charge. This prepayment penalty is also reimbursable when the mortgage or other security instrument does not specifically provide for prepayment, provided this penalty is customarily charged by the lender, but in that case the reimbursement may not exceed 3 months' interest on the loan balance;
(8) Mortgage title insurance policy, paid by the employee, on a residence purchased for the protection of, and required by, the lender;
(9) Owner's title insurance policy, provided it is a prerequisite to financing or the transfer of the property; or if the cost of the owner's title insurance policy is inseparable from the cost of other insurance which is a prerequisite;
(10) Expenses in connection with construction of a residence, which are comparable to expenses that are reimbursable in connection with the purchase of an existing residence;
(11) Expenses in connection with environmental testing and property inspection fees when required by Federal, State, or local law; or by the lender as a precondition to sale or purchase; and
(12) Other expenses of sale and purchase made for required services that are customarily paid by the seller of a residence at the old official station or if customarily paid by the purchaser of a residence at the new official station.
Agencies will not pay:
(a) Any fees that have been inflated or are higher than normally imposed for similar services in the locality;
(b) Owner's title insurance policy, “record title” insurance policy, mortgage insurance or insurance against loss or damage of property and optional insurance paid for in connection with the purchase of a residence for the employee's protection;
(c) Interest on loans, points, and mortgage discounts;
(d) Property taxes;
(e) Operating or maintenance costs;
(f) Any fee, cost, charge, or expense determined to be part of the finance charge under the Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z issued by the Board of Governors of the Federal Reserve System (12 CFR part 226), unless specifically authorized in § 302-11.200;
(g) Expenses paid by someone other than the employee or a member of their immediate family;
(h) Expenses that result from construction of a residence, except as provided in § 302-11.200(f)(10); and
(i) Losses incurred on the sale of the residence.
Agencies will reimburse no more than:
(a) Ten percent of the actual sales price for the sale of a residence at the old official station; and
(b) Five percent of the actual purchase price of the residence for the purchase of a residence at the new official station.
To determine if expenses are reasonable, employees should, in coordination with their agency, contact the local real estate association, or, if not available, at least three different realtors in the locality in which the expenses will be incurred and request:
(a) The current schedule of closing costs which applies to the area in which the employee is buying or selling;
(b) Information concerning local custom and practices with respect to charging of closing costs which relate to either the sale or purchase and whether such costs are customarily paid by the seller or purchaser; and
(c) Information on the local terminology used to describe the costs specified in paragraph (b) of this section.
When an employee purchases or sells land in excess of what reasonably relates to the residence site, reimbursement will be limited to a pro rata reimbursement of the land reasonably related to the residence site.
(a) To request reimbursement for settlement of an unexpired lease, employees must itemize expenses (list all expenses separately) on a travel voucher and submit the voucher to the agency.
(b) When a lease is shared with someone else, reimbursement will be on a pro rata basis for that portion of the lease that the employee is responsible for.
(a) Agencies must establish internal policies and procedures to implement this part. The policies must define what documentation is acceptable from an employee when requesting reimbursement of residence transaction expenses.
(b) When paying allowances for expenses incurred in connection with residence transactions, agencies must:
(1) Determine who will authorize and approve residence transactions expenses on the employee's travel authorization;
(2) Determine who will review applications for reimbursement of residence transaction expenses;
(3) Determine who will authorize extensions beyond the 1-year limitation for completing sales and purchase or lease termination transactions; and
(4) Require employees to submit a travel claim with appropriate documentation to support the payment of claimed expenses, which must include as a minimum:
(i) The sales agreement;
(ii) The purchase agreement;
(iii) Property settlement documents;
(iv) Loan closing statements; and
(v) Invoices or receipts for other bills paid.
When authorizing an extension of time limitation, agencies must determine that the:
(a) Employee has extenuating circumstances which have prevented them from completing the sale and purchase or lease termination transactions in the initial authorized time frame of one year; and
(b) The employee's residence transactions are reasonably related to the transfer of the official station.
Agencies determine whether an employee may use an RSC, choose which RSC they may use, and determine the contract terms to which they will be required to agree.
(a) Employees are required to participate in homesale counseling if they are going to use the RSC. The RSC and/or the agency must provide counseling to help employees understand the process, select a broker, prepare the home for sale, identify an appropriate selling price, set realistic expectations, etc.
(b) Employees are not required to accept a buyout offer from the RSC. Agencies must give employees the option to accept or reject an offer from the relocation services company.
(a) Agencies will pay the relocation services company's fees/expenses for the services employees are authorized to use. If an agency pays the relocation services company for actual expenses the company incurs on an employee's behalf, payment to the company is limited to what the employee would have received under the direct reimbursement provisions of this chapter.
(b) If an employee uses a relocation services company to sell or purchase a residence for which the employee and/or a member(s) of their immediate family do not have full title, the agency will pay the portion of the relocation services company's fee attributable to the employee's pro rata share of the residence, in accordance with § 302-11.100 of this subchapter. Employees must pay any portion of the fee attributable to other than the pro rata share of the residence.
(c) If an employee uses a contracted-for relocation service (i.e., a relocation service provided and handled directly by an RSC) that is a substitute for a reimbursable relocation allowance, the employee will not also be reimbursed for that relocation allowance. Employees must choose either the service or reimbursement, but not both.
If an employee uses a relocation services company to ship HHG in excess of the maximum weight allowance, the agency will pay the portion of the fee attributable to 18,000 pounds net weight. Employees must pay the rest.
Employees may incur income taxes on relocation services provided by a relocation services company and paid for by their agency. Section 82 of the Internal Revenue Code states there shall be included in gross income (as compensation for services) any amount received or accrued, directly or indirectly, by an individual as a payment for or reimbursement of expenses of moving from one residence to another residence which is attributable to employment. Employees will receive a relocation income tax allowance (RITA) if their agency determines that such expenses are taxable. The Government does not assume responsibility for payment of an employee's taxes.
(a) Agencies may enter into a contract with a relocation services company for the company to provide relocation services. “Relocation services” are services provided by a private company under a contract with an agency to assist an employee who relocates. Examples include homesale programs, home marketing assistance, home finding assistance, household goods management services, and property management services. Agencies may pay for contracted relocation services that are substitutes for reimbursable relocation allowances authorized throughout this chapter.
(b) Agencies may separately contract for each type of relocation service or they may combine several types of relocation services in a single contract.
When contracting for relocation services, agencies must follow the rules contained in the Federal Acquisition Regulation (FAR) (48 CFR) and/or all other acquisition regulations applicable to their agency.
If an agency chooses to offer the services of an RSC to their employees, the agency must establish policies governing:
(a) The conditions under which the agency will authorize an employee to use the contract with the RSC;
(b) Which employees the agency will allow to use the contract with the RSC;
(c) Which services the RSC will provide to the employee;
(d) Who will determine in each case if an employee may use the contract with the RSC and which services the RSC will provide;
(e) How the agency will monitor and evaluate the counseling provided by the agency and/or the RSC to their employees; and
(f) How the agency will monitor and maintain an appropriate balance between the types of homesale transactions in the homesale programs.
Agencies may not take title to an employee's residence except as specifically provided by statute. The statutes which form the basis for the provisions of this part do not provide such authority.
Under a home sale program, agencies may not pay an employee for losses incurred on the sale of a residence, but this does not preclude an agency reimbursing a relocation services company for losses incurred while the contractor holds the property.
A “homesale program” is a program offered by an agency through a contractual arrangement with a relocation services company. The relocation services company purchases a transferred employee's residence at fair market (appraised) value and then independently markets and sells the residence.
Agencies have the discretion to offer a home marketing incentive (HMI) payment. An employee is eligible if their agency offers the HMI to them.
An employee will receive a home marketing incentive payment when:
(a) The employee enters their residence in the agency's homesale program;
(b) The employee independently and aggressively markets their residence;
(c) The employee finds a bona fide buyer for their residence as a result of their independent marketing efforts;
(d) The employee transfers the residence to the relocation services company;
(e) The agency pays a reduced fee/expenses to the relocation services company as a result of the employee's independent marketing efforts;
(f) The employee meets any additional conditions the agency has established; and
(g) The agency has established a home marketing incentive program.
Agencies will determine the amount of the home marketing incentive payment. The incentive payment, however, may not exceed the lesser of:
(a) Five percent of the price the relocation services company paid when it purchased the residence; or
(b) The savings the agency realized from the reduced fee/expenses it paid as a result of the employee finding a bona fide buyer.
The home marketing incentive payment is considered income. Consequently, the employee will be taxed, and the agency will withhold income and employment taxes, on the home marketing incentive payment. Employees will not, however, receive a withholding tax allowance (WTA) to offset the withholding on the home marketing incentive payment, nor will they receive a relocation income tax allowance (RITA) payment.
Agencies must not make a home marketing incentive payment that exceeds the savings realized from the reduced fees/expenses paid to the relocation services company. Agencies must establish policies to govern:
(a) The conditions under which the agency will authorize a home marketing incentive payment for an employee;
(b) The amount of the home marketing incentive payment(s) the agency will offer or the method the agency will use to compute home marketing incentive payments; and
(c) Who will determine in each case whether a home marketing incentive payment is authorized.
“Property management services” are programs provided by private companies for a fee, which help an employee to manage a residence at the old official station as a rental property.
If authorized by the agency, employees are eligible for payment for property management services only for their residence at the last official station in the United States from which they regularly commuted to and from work on a daily basis, which was their residence at the time they were officially notified by competent authority to transfer to a new official station, and when the employee and/or a member(s) of their immediate family hold(s) title to a residence which they are eligible to receive a property management allowance for.
(a) For a relocation to an official station in the United States or between official stations in the CONUS, agencies may authorize payment under this part when:
(1) The employee is being returned from a foreign area post of duty to a different official station than the one from which they were transferred for their foreign tour of duty;
(2) The agency has determined that property management services is more advantageous and cost effective for the Government than having to sell the residence;
(3) If the employee is on a TCS, the agency has determined that property management services is in the Government's interest;
(4) The employee has signed a service agreement; and
(5) The employee meets any additional conditions that their agency has established.
(b) For relocations to official stations outside the United States, agencies may authorize payment under this part when the employee meets conditions set forth in paragraphs (a)(4) and (5) of this section.
(a) Employees are not obligated to use the authorized property management services allowance. Employees have the option of choosing to sell their residence at Government expense or to use the property management services allowance. In the case of a TCS where home sale is not authorized, employees have the option to not use the property management services.
(b) Employees are not required to repay any property management expenses paid by the agency if the employee elects to sell their former residence in the United States when transferred from their post of duty to an official station in the United States different from the official station from which they were transferred when assigned to the post of duty.
The length of time an agency may pay for property management services under this part depends on the type of transfer.
(a) If an employee transfers within the United States, agencies may pay for a period not to exceed one year from the employee's effective date of transfer, with up to a 1-year extension, under the same conditions required in § 302-11.4 of this subchapter.
(b) If an employee transfers to a foreign area post of duty, including successive foreign area tours of duty for which they signed a new service agreement, agencies may pay from the employee's effective date of transfer until they return to the last official station in the United States from which they transferred.
(c) If an employee transfers from a foreign area post of duty, including successive foreign area tours of duty for which they signed a new service agreement, to a different official station in the United States than the one from which they were transferred from for their foreign area tour of duty, agencies may pay for a period not to exceed one year from the employee's effective date of transfer to the United States, with up to a 1-year extension, under the same conditions required in § 302-11.4 of this subchapter.
(d) If an employee transfers to a foreign area post of duty, completes their service agreement, and remains there without signing a new service agreement, agencies may pay from the effective date of the employee's transfer to when the service agreement is completed.
(e) If an employee transfers to a foreign area post of duty and separates from Government service before completing their service agreement, agencies may pay from the effective date of the employee's transfer to the date of their separation.
(f) If an employee transfers within the United States or from a foreign area post of duty to a different official station in the United States than the one from which they were transferred for their foreign area tour of duty, and the employee separates from Government service before the time periods stated in paragraphs (a) and (c) of this section, agencies may pay from the effective date of the employee's transfer to the date of their separation.
When an employee has been authorized to receive property management services for a transfer within CONUS, from CONUS to an OCONUS non-foreign area, or from an OCONUS non-foreign area to CONUS, the employee may change their selection from receiving property management expenses to selling their residence at Government expense provided:
(a) Their agency allows them to change their election of payment from property management expenses to the sale of the residence at Government expense; and
(b) Payment for sale of the residence at Government expense is offset in accordance with the agency's policy established under § 302-15.70(d) and (e).
If an agency is paying for property management services under this part and the employee's service agreement expires, the employee must sign a new service agreement to continue to receive this benefit.
When an agency pays for property management services, the employee will be taxed on the amount of expenses the agency pays for property management services whether it reimburses the employee directly or whether it pays a relocation services company to manage the residence. Agencies must pay a relocation income tax allowance (RITA) for the additional Federal, State, and local income taxes the employee incurs on property management expenses the agency reimburses.
Agencies must establish policies and procedures governing:
(a) When the agency will authorize payment for property management services for an employee who transfers in the interest of the Government;
(b) When it is appropriate to authorize this service on a reimbursable basis to the employee, rather than paying the property management company directly, as long as any reimbursement is equal to or less than the agency negotiated rate for this service (agencies may require that employees hire only licensed and/or certified property managers);
(c) Who will determine, for relocations to official duty stations in the United States, whether payment for property management services is more advantageous and cost effective than sale of an employee's residence at Government expense;
(d) If and when the agency will allow an employee who was offered and accepted payment for property management services to sell the residence at Government expense in accordance with paragraph (e) of this section; and
(e) How the agency will offset expenses they have paid for property management services against payable expenses for sale of the residence when an eligible employee who elected payment for property management services later changes their mind and elects instead to sell the residence at Government expense.
(a) Eligibility for an MEA is indicated where applicable at § 302-3.100 of this chapter; new appointees, SES “last move home”, employees assigned under the Government Employees Training Act (GETA), and employees returning from an overseas assignment for separation from Government service are not eligible for MEA.
(b) Employees will be reimbursed the MEA in accordance with their agency's internal relocation policy. However, agencies cannot authorize an advance of funds for the MEA.
The following amount will be paid for miscellaneous expenses:
(a) A lump sum amount set in an FTR bulletin without support or documentation of expenses; or
(b) An amount in excess of the lump sum amount if authorized by an agency; and
(1) The claim is supported by acceptable statements of fact, paid bills or other acceptable evidence (documentation) justifying the amounts claimed; and
(2) The aggregate amount does not exceed an employee's basic gross pay (at the time they reported for duty, at their new official station) for:
(i) One week if the employee is relocating without immediate family; or
(ii) Two weeks if the employee is relocating with immediate family.
(3) The amount authorized in paragraph (b)(2) of this section cannot exceed the maximum rate of grade GS-13, Step 10 General Schedule (base) salary (excluding locality pay) (see 5 U.S.C. 5332) at the time the employee reported for duty at their new official station.
GSA publishes the lump sum amounts in an FTR bulletin on an intermittent basis at https://gsa.gov/ftrbulletins.
The MEA cannot be used to reimburse:
(a) Costs or expenses incurred which exceed maximums provided by statute or in this subtitle;
(b) Costs or expenses incurred but which are disallowed elsewhere in this subtitle;
(c) Costs reimbursed under other provisions of law or regulations;
(d) Costs or expenses incurred for reasons of personal taste or preference and not required because of the move;
(e) Losses covered by insurance;
(f) Fines or other penalties imposed upon the employee or members of their immediate family;
(g) Judgments, court costs, and similar expenses growing out of civil actions; or
(h) Any other expenses brought about by circumstances, factors, or actions in which the move to a new official station was not the proximate cause.
Under 5 U.S.C. 5724b, employees are reimbursed for substantially all, not exactly all, of the Federal, State, and local income taxes incurred as a result of relocation. The withholding tax allowance (WTA) and relocation income tax allowance (RITA) are the two allowances through which the Government reimburses an employee for substantially all of the income taxes that they incur as a result of the relocation.
Employees are eligible for the WTA and the RITA if-
(a) WTA and RITA are listed under their type of move at §§ 302-3.1 and 302-3.100 of this chapter;
(b) They are relocating in the interest of the Government; and
(c) The agency's reimbursements to the employee for relocation expenses result in the employee being liable for additional income taxes.
(a) Some relocation expenses reimbursed to employees or paid directly by the Government on or after January 1, 2018, and on or before December 31, 2025, must be reported as income and employees cannot claim them as deductible expenses on their Federal tax return.
(b) A table summarizing the allowances, limitations, and tax treatment of each reimbursement, allowance, or direct payment to a service provider or vendor set out in this subtitle is published at https://gsa.gov/ftrbulletins.
(c) Both the employee and their agency must know which reimbursements and direct payments to vendors are taxable and which are nontaxable in specific circumstances. When an employee submits a voucher for reimbursement, the agency must determine whether the reimbursement is taxable income at the Federal, State, and/or local level. Then, when an employee files their income tax returns, they must report the taxable allowances, reimbursements, and direct payments to vendors as income. Agencies are ultimately responsible for calculating and reporting withholding accurately and employees are ultimately responsible for filing their taxes correctly.
In most cases, the State tax return for the State an employee is leaving should reflect the reimbursement or allowance, if any, for househunting expenses and the reimbursement or direct payments to vendors for real estate expenses at the home the employee is leaving. All other taxable expenses should be shown as income on the tax return filed in the State into which the employee has moved. However, the employee and the agency must carefully study the rules in both States and include everything that each State considers to be income on each of the state tax returns.
A reimbursement, allowance, or direct payment to a vendor is considered completed in a specific tax year if the money was actually disbursed to the employee or vendor during the tax year in question.
(a) The purpose of the WTA is to protect an employee from having to use part of their relocation expense reimbursements to pay Federal income tax withholding; it does not cover State taxes, local taxes, Medicare taxes, or Social Security taxes (see § 302-17.21(c) and (d)).
(b) The WTA may be optional to employees. Employees should review § 302-17.61 for discussion about choosing whether or not to accept the WTA. See §§ 302-17.62 through 302-17.67 for procedures if an employee chooses not to accept the WTA.
The WTA covers certain allowances, reimbursements, and/or direct payments to vendors, to the extent that each of them is taxable income. However, the WTA does not cover the following relocation expenses:
(a) Any reimbursement, allowance, or direct payment to a vendor that should not be reported as taxable income when an employee files their Federal tax return; this includes but is not limited to expenses for transportation of POVs for OCONUS assignments.
(b) Reimbursed expenses for extended storage of household goods during an OCONUS assignment, if reimbursement is permitted under agency policy.
(c) State and local withholding tax obligations. To the extent that the employee's state or local tax authority requires periodic (such as quarterly) tax payments, the employee is responsible to pay these from their own funds. Agencies will reimburse employees for substantially all of these payments through the RITA process, but the agency does not provide a WTA for them. If required to by state or local law, the agency may withhold these from the reimbursement.
(d) There are additional taxes due under the Federal Insurance Contributions Act including Social Security tax, if applicable, and Medicare tax. Current law does not allow Federal agencies to reimburse transferees for these employment taxes on relocation benefits. However, agencies will deduct these taxes from any reimbursements for taxable items.
(e) Home marketing incentive payment. In accordance with part 302-14 of this chapter, agencies may not provide either a WTA or RITA for this incentive.
(f) Any recruitment, relocation, or retention incentive payment that an employee receives. Any withholding of taxes for such payments is outside the scope of this section. Rather, it is covered by regulations issued by the Office of Personnel Management, Treasury's Financial Management Service, and the Internal Revenue Service (IRS).
(g) Any allowances, reimbursements, and/or direct payments to vendors not related to the relocation; for example, a reimbursement for office supplies would not be covered by the WTA, even if it occurred during the relocation.
Each time an agency pays a covered, taxable relocation expense, regardless of whether it is a reimbursement, allowance, or direct payment to a vendor, it is considered “supplemental wages” as defined in 26 CFR 31.3402(g)-1(a) (see also IRS Publication 15, Employer's Tax Guide). Employees owe taxes on the WTA itself because, like most other relocation allowances, it is taxable income. To reimburse employees for the taxes on the WTA itself, agencies compute the WTA by using the grossed-up withholding formula in this section and the appropriate supplemental wage rate, as specified in IRS Publication 15. This rate, along with examples of how to calculate the WTA, is published in an FTR bulletin available at https://gsa.gov/ftrbulletins. The formula for calculating the WTA is: WTA = R/(1 − R) × Expense, where R is the withholding rate for supplemental wages.
The purpose of the RITA is to reimburse employees for any taxes that they owe that were not adequately reimbursed by the WTA. As discussed in § 302-17.22, the WTA calculation is based on the income tax withholding rate applicable to supplemental wages. This may be higher or lower than an employee's actual tax rate. The RITA, on the other hand, is based on an employee's marginal tax rate, determined by their actual taxable income and filing status, which allows the agency to reimburse the employee for substantially all of their Federal income taxes. The RITA also reimburses employees for any additional State and local taxes that were incurred as a result of the relocation, because they are not reimbursed in the WTA process.
The procedures for the calculation and payment of the RITA depend on whether the agency has chosen to use a one-year or two-year RITA process. See subpart F of this part for the one-year process and subpart G of this part for the two-year process. Agencies or a major component of the agency determines whether it will adopt a one-year or two-year RITA process. Agencies may use the one-year RITA process for one or more specific categories of employees and the two-year process for one or more other categories.
(a) Employees may ask their agency to recalculate their RITA provided the employee filed the required tax information and amended it, if necessary, in a timely manner. If an employee has completed all Federal, State, and local tax returns, and believes that their RITA should have been significantly different from the RITA that the agency calculated, the employee may ask the agency to recalculate the RITA. This is true for either the one-year or two-year process. With any request for recalculation, the employee must submit a statement explaining why they believe the RITA was incorrect.
(b) The agency may require that an employee also submit amended tax information, the actual tax returns, or both, as attachments to the request for recalculation.
(a) The CMTR is a key element that greatly enhances the accuracy of the calculation of the RITA. Agencies use the information the employee provides on their tax filing status and taxable income to determine the CMTR.
(b) The CMTR is, in essence, a combination of the employee's Federal, State, and local tax rates. However, the CMTR cannot be calculated by merely adding the Federal, State, and local marginal tax rates together because of the deductibility of State and local income taxes from income on the employee's Federal income tax return. The formula prescribed in paragraph (c) of this section for calculating the CMTR, therefore, is designed to adjust the state and local tax rates to compensate for their deductibility from income for Federal tax purposes. Examples of how to calculate the CMTR are published in an FTR bulletin available at https://gsa.gov/ftrbulletins.
(c) The formula for calculating the CMTR is:
(d) Agencies find the Federal marginal tax rate by comparing the taxable income, as shown in the tax information the employee provides, to the Federal tax tables in the current year's Form 1040-ES instructions.
(e) Agencies find the State and local marginal tax rates that apply to the employee (if any) by comparing the taxable income to the most current state and/or local tax tables provided by the States and localities.
(f) The procedures for calculating the CMTR are the same for the one-year and two-year RITA processes.
If two or more States that are involved in an employee's relocation impose an income tax on relocation benefits, then the employee's relocation benefits may be taxed by both States. Most commonly, the old and new duty stations are in the two States involved. The following table lays out the possibilities:
Table 1 to § 302-17.41
| If: | But: | The agency will use the following as the State marginal tax rate in the CMTR: | The RITA will include an appropriate allowance for: | Employee's
action: |
|---|---|---|---|---|
| Only one involved State has a State income tax | The marginal tax rate of the one State that taxes income | Taxes incurred in that State | Pay the taxes required by the State that taxes income. | |
| Each involved State taxes a different set of the relocation benefits, with no overlap | The average of the marginal tax rates for each State involved | Taxes incurred in all involved States | File tax returns in each involved State, and pay the applicable taxes. | |
| Two or more involved States tax some of the same relocation benefits | All involved States | The marginal tax rate of the State that has the highest State income tax rate | Taxes incurred in all involved States | File tax returns in each involved State, take the appropriate credits and/or adjustments, and pay the applicable taxes. |
| Two or more involved States tax some of the same relocation benefits | One or more involved States | The sum of all applicable State marginal tax rates | Taxes incurred in all involved States | File tax returns in each involved State, and pay the applicable taxes. This may result in paying taxes in more than one State on the same relocation benefits. |
(a) If an employee incurs a local tax liability, the agency will validate the applicable local marginal tax rate(s) and use it (them) in the CMTR formula.
(b) If an employee incurs a local income tax liability in more than one locality, then the agency should follow the rules described for State income taxes in § 302-17.41 to calculate the local marginal tax rate that will be used in the CMTR formula and to compute the RITA, and the employee should follow the rules in § 302-17.41 to determine their actions.
(c) If a locality in which an employee incurs income tax liability publishes its tax rates in terms of a percentage of the Federal or State taxes, then the agency must convert that tax rate to a percentage of the employee's income to use it in computing the CMTR. This is accomplished by multiplying the applicable Federal or State tax rate by the applicable local tax rate. For example, if the State marginal tax rate is 6 percent and the local tax rate is 50 percent of State income tax liability, the local marginal tax rate stated as a percentage of taxable income would be 3 percent.
A Federal employee who is relocated to or from a point, or between points, in the Commonwealth of Puerto Rico may be subject to income tax by both the Federal Government and the government of Puerto Rico. However, under current Puerto Rico law, an employee receives a credit on their Puerto Rico income tax for the amount of taxes paid to the Federal Government. Therefore:
(a) If the applicable Puerto Rico marginal tax rate, as shown in the tables provided by the Commonwealth of Puerto Rico, is equal to or lower than the applicable Federal marginal tax rate, then the agency uses the Federal marginal tax rates and the formula in § 302-17.40(c) in calculating the CMTR.
(b) If the applicable Puerto Rico marginal tax rate, as shown in the tables provided by the Commonwealth of Puerto Rico, is higher than the applicable Federal marginal tax rate, and if all of the States involved either have no income tax or allow an adjustment or credit for income taxes paid to the other state(s) and Puerto Rico, then the agency uses the rate for Puerto Rico in place of the Federal marginal tax rate in the formula in § 302-17.40(c).
(c) If the applicable Puerto Rico marginal tax rate, as shown in the tables provided by the Commonwealth of Puerto Rico, is higher than the applicable Federal marginal tax rate and one or more of the state(s) involved does not allow an adjustment or credit for income taxes paid to the other state(s) and/or Puerto Rico, then the agency uses the following formula:
If an employee is relocated to, from, or within the Commonwealth of the Northern Mariana Islands or any territory or possession of the United States, the agency will have to determine the tax rules of that locality and then include those taxes in the RITA calculation, as applicable.
If one or more of the States where an employee has incurred tax liability for relocation expenses treats one or more relocation expenses as taxable, even though it (they) are nontaxable under Federal tax rules, employees may be required to pay additional State income tax when they file tax returns with those States. In this case, the agency calculates a state gross-up to cover the additional tax liability resulting from the covered relocation expense reimbursement(s) that are nontaxable under Federal, but not State tax rules. The agency calculates the State gross-up and then adds that amount to the RITA. The agency will use this formula to calculate the state gross-up:
This calculation is the same, regardless of whether the agency has chosen to use the one-year or two-year RITA process.
Employees should provide the information their agency requires to make the RITA calculation. This will include tax information for any Federal and State tax returns filed for the year that the employee received covered taxable relocation expenses. Employees should submit this information as soon as they receive their relocation orders, or as soon as they file their tax returns for the most recent tax year, whichever occurs later.
Employees should submit amended tax information to their agency under the one-year process whenever the tax information previously provided changes, and employees should continue to amend the information until they have received the last W-2 from their agency in connection with a specific relocation. In particular, employees should submit amended information whenever:
(a) Their filing status changes;
(b) Their income changes enough that their income, including WTA and RITA, might put the employee into a different tax bracket; or
(c) They have taxable relocation expenses in a second or third calendar year.
If an employee does not provide their agency with the required tax information and/or amend it when necessary, the agency will switch to the 2-year process, and because the WTA is an advance of the income tax expenses, employees will be liable to repay the full amount of the WTA that the agency has paid to the IRS. See subpart G of this part.
(a) Agencies provide allowances to an employee, reimburse the employee for vouchers that are submitted, and pay certain relocation vendors directly, all during the calendar year as described in subpart B of this part. Some of these reimbursements, allowances, and direct payments to vendors are taxable income to the employee, as described in subpart A of this part. The agency computes a WTA and reports the WTA to the IRS as taxes withheld for the employee for each of these taxable reimbursements, allowances, and direct payments to vendors. The agency may make the WTA optional. However, if the agency is using a one-year RITA process, there is no advantage to an employee in choosing not to receive the WTA, because the agency will adjust the WTA payment to the IRS. See paragraph (f)(1) of this section.
(b) The agency establishes a cutoff date after which it will not issue reimbursements or allowances to an employee or make direct payments to relocation vendors for the rest of the calendar year.
(c) If the tax information provided changes after an employee has submitted the initial version, the employee must submit amended tax information no later than the agency's cutoff date.
(d) During the period between the cutoff date and the end of the calendar year, the agency calculates the RITA.
(e) The RITA is itself taxable income. To account for taxes on the RITA, the agency will gross-up the RITA by using a gross-up formula that multiplies the grossed-up CMTR by the total of all covered taxable relocation benefits, and then subtracts the grossed-up WTA from that total. That is:
(f) The RITA is likely to be different from the sum of the WTA computed and reported during the year, because the WTA is calculated using a flat rate, established by the IRC, while the RITA is calculated using the CMTR. Therefore:
(1) If the calculation in paragraph (e) of this section results in a negative value (that is, if the agency's calculation shows that it withheld and reported too much money as WTA), then the agency will send an adjustment to the IRS using Form 941. In this case, the agency does not make a RITA payment.
(2) If the calculation in paragraph (e) of this section results in a positive value (that is, if the agency's calculation shows that it did not withhold enough money for the income taxes), then the agency will pay a RITA to the employee before the end of the calendar year and report it to the IRS as part of the income for that year.
(g) Shortly after the end of the calendar year, the agency will provide one or two W-2 Forms. At the agency's discretion, an employee may receive one W-2 that includes all of the taxable relocation expenses, WTA, and RITA (if any), along with their payroll wages, or an employee may receive one W-2 for their payroll wages and a separate one for their taxable relocation expenses, WTA, and RITA.
(h) Employees must use all W-2(s) that they have received to file their tax returns. On those returns, employees must include all taxable relocation expenses shown on their W-2(s) as income, including the WTA and RITA (if any). Employees must also include all WTA as withholding, in addition to the standard withholding from their payroll wages.
(i) If an employee finished their relocation within one calendar year, and the agency paid all of the relocation reimbursements, allowances, and direct payments to vendors in the same calendar year, before the cutoff date, then the employee's tax returns for that calendar year are the end of their relocation tax process. If, on the other hand, the agency reimburses an employee for relocation expenses, or pays allowances or relocation vendors on the employee's behalf, during a second (and possibly a third) calendar year, then the employee and the agency repeat the process in this paragraph (i) for each of those years.
(a) Year 1 is the calendar year in which the agency reimburses the employee for a specific expense, provides an allowance, or pays a vendor directly. If an employee's reimbursements, allowances, and/or direct payments to vendors occur in more than one calendar year, the employee will have more than one Year 1.
(b) Year 2 is the calendar year in which the employee submits their RITA claim and the agency pays the RITA.
(c) In most cases:
(1) For every Year 1 an employee will have a corresponding Year 2;
(2) Every Year 2 immediately follows a Year 1; and
(3) Year 2 is the year in which the employee files a tax return reflecting the remaining tax liability for taxable reimbursement(s), allowance(s), and/or direct payments to vendors in each Year 1.
If an agency makes the WTA optional, an employee may choose to not receive the WTA. When deciding whether or not to receive the WTA, employees should consider the following:
(a) Whether their marginal Federal tax rate will be equal to or higher than the supplemental wage rate for the calendar year in which the employee received the majority of their relocation reimbursements. If this is expected, the employee may want to elect to receive the WTA.
(b) Whether their marginal Federal tax rate will be less than the supplemental wage rate for the calendar year in which the employee received the majority of their relocation reimbursements. If this is expected, the employee may want to decline receiving the WTA to avoid or limit possible overpayment of the WTA, the so-called “negative RITA” situation. In a “negative RITA” situation, employees must repay some of the WTA in Year 2. However, even if an employee's marginal Federal tax rate will be less than the supplemental wage rate, the employee may want to accept the WTA so that their initial reimbursement is larger.
(a) Agencies provide allowances to employees, reimburses employees for vouchers that they submit, and pays certain relocation vendors directly, all during the same calendar year, as described in subpart B of this part. Some of these reimbursements, allowances, and direct payments to vendors are taxable income to the employee. Agencies compute a WTA and report that withholding to the IRS for each of these that is taxable. This is Year 1 of the two-year process.
(b) If an agency makes the WTA optional to the employee and they have chosen not to receive the WTA, then the agency computes withholding tax for each taxable reimbursement, allowance, and direct payment, and reports that withholding to the IRS.
(c) Shortly after the end of the calendar year, agencies provide one or more W-2 forms to employees. At its discretion, an agency may include all of an employee's taxable relocation expenses and WTA (if any) in one W-2, along with the employee's regular payroll wages, or it may provide one W-2 for the regular payroll wages and a separate W-2 for the taxable relocation expenses and WTA (if any).
(d) At approximately the same time as the agency provides the employee a W-2(s), it also may provide an itemized list of all relocation benefits and the WTA (if any) for each benefit. Employees should use this statement to verify that the agency has included all covered taxable items in its calculations and to check the agency's calculations.
(e) Employees must submit all W-2s that they have received with their Year 1 tax returns. On those returns, employees must include all taxable relocation expenses during the previous year as income. Furthermore, employees must include the WTA (if any) as tax payments that the agency made for them during the previous year, in addition to the regular withholding of payroll taxes from their salary.
Employees must provide the information their agency requires to make the RITA calculation. This will include tax information for any Federal and State tax returns filed for the year that the employee received covered taxable relocation expenses. Employees must submit the “required tax information” in Year 2, along with their RITA claim, after they file their income tax return. If an agency pays any taxable expenses covered by the WTA in more than one year, then the employee will have to file a RITA claim each year. Agencies establish the deadline each year for filing of the RITA.
The WTA is an advance on an employee's income tax expenses, thus if an employee does not provide the required tax information and file the RITA claim in a timely manner, the agency will require the employee to repay the entire amount of the withholding and WTA (if any) that the agency has paid.
(a) To claim the RITA under the two-year process, employees must file a RITA claim and provide the required tax information that the agency requests.
(b) Agencies will calculate the actual RITA after the employee submits their RITA voucher and the required tax information. Employees should perform the RITA calculation for themselves, as a check on the agency's calculation, but they are not required to put the “right answer” on the voucher that is submitted to claim the RITA.
(a) Agencies will calculate the RITA after receipt of the RITA voucher.
(b) The RITA is itself taxable income to an employee. To account for taxes on the RITA, the agency will gross-up the RITA by applying the Combined Marginal Tax Rate (CMTR) to the final amount rather than the reimbursed amount.
(c) Thus, the agency calculates the RITA by multiplying the CMTR (using the State and local tax tables most current at the time of the RITA calculation) by the total of all covered taxable relocation benefits during the applicable Year 1, and then subtracting any WTA(s) from the same Year 1 from that total. That is:
If an agency offers the employee the choice, the WTA is optional. If the employee has declined the WTA, enter zero for element Z in the calculation in this paragraph (c).
(d) The RITA is likely to be different from the sum of the WTA(s) paid during Year 1, if any, because the WTA is calculated using a flat rate, established by the IRC, while the RITA is calculated using the CMTR. Therefore:
(1) If the RITA calculation this section results in a negative value (that is, if the agency's calculation shows that it withheld and reported too much money as income taxes), then the agency will report this result to the employee and will send the employee a bill for the difference, to repay the excess amount that it sent to the IRS on the employee's behalf as withheld income taxes. The IRS will credit the employee for the full amount of withheld taxes, including the excess amount, on the income tax return for Year 1; therefore, employees must repay the excess amount to their agency within 90 days, or within a time period set by the agency. If an employee is required to repay an amount in Year 2 that was included as wages on the W-2 in Year 1, employees may be entitled to a miscellaneous itemized deduction on their Federal income tax return in Year 2.
(2) If the RITA calculation in this section results in a positive value (that is, if the agency's calculation shows that it did not withhold enough money as income taxes), then the agency will pay the RITA before the end of Year 2 and will report it to the IRS as part of the employee's income for that year. Also, after the agency has paid the RITA, it will provide a W-2 that shows the RITA as taxable income.
(e) At an agency's discretion, employees may receive one W-2 that includes all of their taxable relocation expenses, WTA (if any), and RITA (if any), along with their regular payroll wages, or employees may receive one W-2 for their regular payroll wages and a separate one for their taxable relocation expenses, WTA, and RITA.
When income taxes are due for Year 2, employees must report the RITA, if any, as taxable income on their Federal, State, and local tax returns.
(a) If an employee's relocation process results in only one Year 2, or if the previous year was the last Year 1, the RITA is the only amount that an employee reports as income resulting from their relocation for that Year 2.
(b) If, on the other hand, an employee's relocation process results in more than one Year 2 (if, for example, the employee incurred relocation expenses during more than one calendar year), then, except for the last Year 2, the employee will need to report reimbursements, allowances, direct payments to vendors, and WTA(s), if any, for succeeding Year 1's at the same time that they report each Year 2's RITA.
To ensure that all provisions of this part are fulfilled, agencies must:
(a) Prepare a relocation travel authorization that includes an estimate of the WTA and RITA, to obligate the funds that will be needed.
(b) Determine, in light of the specific circumstances of each employee relocation, which reimbursements, allowances, and direct payments to vendors are taxable, and which are nontaxable.
(c) Decide whether or not the agency will allow individual employees and/or categories of employees to choose not to receive the WTA.
(d) Calculate the WTA and credit the amount of the WTA to the employee at the time of reimbursement.
(e) Prepare the employee's W-2 Form(s) and ensure that it (they) reflect(s) the WTA.
(f) Provide each employee an itemized list of relocation expenses after the end of each calendar year in which the agency provided an allowance, reimbursement, or direct payment to a vendor.
(g) Establish processes for identifying the relevant Federal, State, and local marginal tax rates and for keeping that information current.
(h) Establish processes for identifying states that treat a reimbursement or direct payment to a vendor as taxable even though it is nontaxable under the Federal IRC, and for keeping that information current.
(i) Calculate the employee's CMTR(s).
(j) Decide whether the agency will use the one-year or two-year RITA process and whether the agency will use different processes (that is, one-year or two-year) for different groups of employees within the agency.
(k) Make sure the RITA calculation is done correctly and in a timely manner, whether agency policies call for the calculation to be done by the agency or by a third party.
(l) Make sure that payment of the RITA occurs in a timely manner (this is especially critical for the one-year process).
(m) Develop criteria for accepting and rejecting requests for recalculation of RITA.
(n) Establish a process for recalculating the RITA when the employee's request for recalculation is accepted.
(o) Consult with the IRS for clarification of any confusion stemming from taxes on relocation expenses.
(a) If a relocating employee does not provide the required tax information prior to the required date, and the agency is using a one-year RITA process, the agency is to switch to a two-year RITA process and send a written warning to the employee reminding them of the requirement and informing them that if they do not submit the required information the agency may declare the entire amount of the WTA forfeited.
(b) If the relocating employee does not provide the required tax information prior to the required date, and the agency is using a two-year RITA process, the agency is to send the employee a written warning informing them they have 60 days to file or amend their RITA claim and provide the required tax information or the agency will declare the WTA that they have already paid forfeited and due as a debt to the Government.
(c) If the relocating employee chooses not to receive the WTA and fails to file a RITA claim or provide the required tax information prior to the required date, the agency is to send the employee a written warning that they have 60 days to file. If the employee still fails to file, the agency may close the case file and refuse any later claims for RITA related to this specific relocation.
(a) Test programs permit agencies to test new and innovative methods of reimbursing relocation expenses without seeking a waiver of current rules or authorizing legislation.
(b) The Administrator of General Services (Administrator) may authorize an agency to conduct a test program when the Administrator determines such tests to be in the interest of the Government. No more than 12 relocation expenses test programs may be conducted at the same time. When authorized by the Administrator, the agency may pay any necessary relocation expenses in lieu of payments authorized or required under 5 U.S.C. chapter 57, subchapter II.
The head of the agency or designee must design the test program to enhance cost savings or other efficiencies to the Government and submit in writing to the Administrator of General Services via the Office of Government-wide Policy at travelpolicy@gsa.gov:
(a) An explanation of the test program;
(b) If applicable, the specific provisions of this subtitle from which the agency is deviating;
(c) An analysis of the expected costs and benefits; and
(d) A set of criteria for evaluating the effectiveness of the program.
The following factors will be considered:
(a) Potential savings to the Government.
(b) Application of results to other agencies.
(c) Feasibility of successful implementation.
(d) Number of tests, if any, already authorized to the same activity.
(e) Whether the request meets the requirements of § 302-18.2.
(f) Other agency requests under consideration at the time of submission.
(g) Whether the proposed test is duplicative of any existing test programs.
(a) The duration of a test program is up to four years from the date of authorization unless terminated prior to that time by the Administrator. The agency conducting a test program may also terminate the test program at any time by providing written notice of the termination to the Administrator.
(b) The Administrator may grant test program extensions of up to an additional four years. To request an extension, the head of the agency or designee must submit a request to extend the test program to the Administrator of General Services via the Office of Government-wide Policy at travelpolicy@gsa.gov, not later than 120 days prior to the expiration of the test period. The request for extension must contain the test program results to that date and clearly enumerate the benefits, qualitatively or quantitatively or both, of granting a test program extension and must specify the duration of time for which an extension is requested.
(a) The Administrator must submit a copy of any test program approved or extended to Congress at least 30 days before the effective date of the authorized test program.
(b) The agency authorized to conduct the test program must submit the following reports:
(1) An annual report on the progress of the test, submitted to the Administrator via the Office of Government-wide Policy at travelpolicy@gsa.gov. The Administrator or designee may terminate the test program approval for failure to comply with these reporting requirements; and
(2) A final report on the results of the test program must be submitted to the Administrator via the Office of Government-wide Policy at travelpolicy@gsa.gov, and to the appropriate committees of Congress within 3 months after completion of the program.
(c) All reports must include quantitative or qualitative assessments, or both, clearly evaluating the results of the test program and enumerating benefits and costs.
Agencies must authorize payment of expenses when the employee, at the time of death, was:
(a) On official travel status away from the official station;
(b) Performing official duties OCONUS or in transit;
(c) Reassigned away from their actual place of residence under a mandatory mobility agreement;
(d) In direct support of or directly related to a military operation, including a contingency operation, or an operation in response to an emergency declared by the President as provided in § 303-70.600; or
(e) Performing official duties as determined by the head of agency and was a covered employee as provided in § 303-70.700.
Agencies must pay death-related expenses if the requirements in § 303-70.1 are met, even when the death is not work-related.
Agencies must pay death-related expenses when an employee dies while on leave or on a non-workday, while on TDY or stationed OCONUS, provided the requirements in § 303-70.1 are met. However, payment cannot exceed the amount allowed if death had occurred while on duty at the TDY station or at the official station OCONUS.
Agencies will not pay death-related expenses under this chapter when the same expenses are payable under other United States laws. Specifically, when an employee dies from injuries sustained while performing official duty, death-related expenses are payable under the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8134.
Agencies will not pay death-related expenses under this chapter to relocate the immediate family to another location for an employee who dies at the permanent official station, except when the employee dies while performing duties under the provisions of subparts F, G, and H of this part.
Agencies must pay all actual costs including but not limited to:
(a) Preparation of remains, including:
(1) Embalming or cremation;
(2) Necessary clothing;
(3) A casket or container suitable for shipment to place of interment; and
(4) Expenses necessary to comply with local laws at the port of entry in the United States; and
(b) Transportation of remains by common carrier (that is normally used for transportation of remains), hearse, other means, or a combination thereof, from the TDY station, OCONUS location, or CONUS location covered by § 303-70.1(e), to the employee's residence, official station, or place of interment, including but not limited to:
(1) Movement from place of death to a mortuary and/or cemetery;
(2) Shipping permits;
(3) Outside case for shipment and sealing of the case if necessary;
(4) Removal to and from the common carrier; and
(5) Ferry fares, bridge tolls, and similar charges.
No limitations exist on the place of interment; agencies may pay expenses to transport the remains for interment at the actual residence, the official station, or such other place appropriate for interment as determined by the head of the agency.
Agencies may authorize the escort of remains when the employee's death occurs:
(a) While in official travel status away from the official station inside CONUS;
(b) While assigned to official duties OCONUS or in transit thereto or therefrom; or
(c) While reassigned away from the actual place of residence under a mandatory mobility agreement.
No more than two persons may be authorized travel expenses to escort the remains of a deceased employee.
Agencies may authorize any travel expenses in accordance with chapter 301 of this subtitle that are necessary for the escort of remains to the place of internment.
(a) Mortuary services must be furnished when an immediate family member, residing with the employee, dies while the employee is stationed OCONUS if such services are requested by the employee, and when:
(1) Local commercial mortuary facilities or supplies are not available; or
(2) The cost of available mortuary facilities or supplies is prohibitive as determined by the agency head.
(b) The employee must reimburse the agency for all furnished mortuary facilities and supplies.
If requested by the employee, agencies must pay to transport the remains of an immediate family member, residing with the employee, who dies while the employee is stationed OCONUS. The remains may be transported to the residence of the immediate family member. The employee may elect an alternate destination, but it must be approved by the agency head or designated representative.
Agencies may not pay interment expenses when an immediate family member, residing with the employee, dies while the employee is stationed OCONUS.
Agencies must furnish transportation, if requested by the employee, when an immediate family member, residing with the employee, dies while in transit to or from the employee's duty station OCONUS. Agencies must follow § 303-70.301 for transportation expenses and furnish mortuary services only if the conditions in § 303-70.300 are met.
Agencies must pay transportation costs to return the deceased employee's baggage from an official TDY station to their official station or residence. However, agencies may not pay insurance of, or reimbursement for, loss or damage to baggage.
Agencies must only transport Government property and the employee's personal property, including professional books, papers, and equipment (PBP&E).
Agencies must pay costs associated with returning the POV from the TDY location to the employee's permanent official station, but only if the agency had authorized the use of the employee's POV at the TDY location as more advantageous to the Government than other means of transportation.
Agencies must return the immediate family, baggage, privately owned vehicle (POV), and household goods to the former residence, or transport them to the new official station CONUS, or to an alternate destination, if the immediate family chooses to continue relocation (see § 303-70.501). Travel and transportation must begin within one year from the date of the employee's death. A one-year extension may be granted if requested by the immediate family prior to the expiration of the one-year limit. The agency head or designated representative may approve the immediate family's relocation.
If the immediate family chooses to continue the relocation, agencies must continue payment of relocation expenses, provided the immediate family was included on the employee's relocation travel orders. (See § 303-70.502.)
When the immediate family chooses to continue the relocation, the following expenses must be authorized:
(a) Travel to the new duty station or alternate destination as approved by the agency.
(b) Shipment of household goods not to exceed 18,000 pounds net weight to the new duty station, or to an alternate destination selected by the immediate family and approved by the agency.
(c) Storage of household goods not to exceed 60 days with an additional 90 days extension, if approved by the agency, not to exceed a total of 150 days.
(d) Reimbursement of real estate expenses incident to the relocation, unless relocation is to the former actual residence.
(e) Temporary quarters subsistence expense (TQSE) not to exceed 60 days, to be paid using the TQSE payment method authorized in chapter 302-6 of this subtitle. The rate used for the TQSE will be the applicable per diem rate in effect for the locality of the TQ and will use the multiplier for an unaccompanied spouse or domestic partner, and immediate family, if the TQSE was originally authorized in the relocation travel orders.
(f) Shipment of one POV to the new duty station, or to an alternate destination selected by the immediate family and approved by the agency, if the POV shipment was originally authorized in the relocation travel orders.
Agencies must provide transportation for the employee's immediate family, baggage, and household goods from the current official station to the former actual residence or an alternate destination. However, the employee must have died as a result of disease or injury incurred while performing official duties:
(a) In an overseas location where the employee was performing such official duties;
(b) Within the area of responsibility of the Commander of the United States Central Command; and
(c) In direct support of or directly related to a military operation, including a contingency operation (as defined in 10 U.S.C. 101(a)(13)) or an operation in response to an emergency declared by the President.
When the immediate family selects to relocate to the former actual residence or alternate destination as approved by the agency, agencies must authorize the following expenses:
(a) Transportation of the immediate family;
(b) Transportation of household goods of the immediate family, including transporting, packing, crating, draying, and unpacking, not to exceed 18,000 pounds net weight; and
(c) Storage of household goods moved pursuant to paragraph (b) of this section, not to exceed 60 days with an additional 90 days extension, if approved by the agency, not to exceed a total of 150 days.
Agencies must pay costs associated with returning the POV from the following:
(a) TDY location to the employee's permanent official station, if the agency had authorized the use of the employees POV at the TDY location as more advantageous to the Government than other means of transportation; or
(b) Official station OCONUS to the employee's former actual residence or alternate destination as approved by the agency, if the agency had determined that the use of the employee's POV was required in accordance with part 302-9 of this subtitle.
Agencies must provide transportation for the employee's immediate family, baggage, and household goods to an alternate residential destination if the head of the agency (or a designee) determines that the employee died as a result of personal injury sustained while in the performance of the employee's duties, and the employee was—
(a) A law enforcement officer as defined in 5 U.S.C. 5541;
(b) An employee in or under the Federal Bureau of Investigation who is not described in paragraph (a) of this section; or
(c) A Customs and Border Protection officer as defined in 5 U.S.C. 8331(31).
If the place where the immediate family will reside is different from the place where the immediate family resided at the time of the employee's death, and within the United States, then the agency must approve the following expenses:
(a) Transportation of the immediate family;
(b) Moving the household goods of the immediate family, including transporting, packing, crating, draying, and unpacking, not to exceed 18,000 pounds net weight;
(c) Storage of household goods moved pursuant to paragraph (b) of this section, not to exceed 60 days with an additional 90 days extension, if approved by the agency, not to exceed a total of 150 days; and
(d) Transportation of one privately owned motor vehicle.
Agencies must pay cost associated with returning the POV from the following:
(a) TDY location to the employee's permanent official station if the agency had authorized the use of the employee's POV at the TDY location as being advantageous to the Government; or
(b) Official station OCONUS to the employee's former actual residence or alternate destination as approved by the agency, if the agency determined that the use of the employee's POV was required in accordance with part 302-9 of this subtitle.
Receipts are required for all claims of $75 or higher for reimbursement under this part.
Under the authority of this part and 31 U.S.C. 1353, employees may accept payment of travel expenses from a non-Federal source on behalf of their agency, but not personally, when specifically authorized to do so by their agency and only for official travel to a meeting. Except as provided in § 304-3.11 of this subchapter, the agency must approve acceptance of such payments in advance of travel.
The following definitions apply to this chapter:
Employee means an appointed officer or employee of an executive agency as defined in 5 U.S.C. 105, including a special Government employee as defined in 18 U.S.C. 202, or an expert or consultant appointed under the authority of 5 U.S.C. 3109.
Meeting(s) or similar functions (meeting) means a conference, seminar, speaking engagement, symposium, training course, or similar event that takes place away from the employee's official station. “Meeting” as defined in this chapter does not include a meeting or other event required to carry out an agency's statutory or regulatory functions such as investigations, inspections, audits, site visits, negotiations or litigation. “Meeting” also does not include promotional vendor training or other meetings held for the primary purpose of marketing the non-Federal sources products or services, or long term TDY or training travel. A meeting need not be widely attended for purposes of this definition and includes but is not limited to the following:
(1) An event where the employee will participate as a speaker or panel participant focusing on the employee's official duties or on the policies, programs or operations of the agency.
(2) A conference, convention, seminar, symposium or similar event where the primary purpose is to receive training other than promotional vendor training, or to present or exchange substantive information of mutual interest to a number of parties.
(3) An event where the employee will receive an award or honorary degree, which is in recognition of meritorious public service that is related to the employee's official duties, and which may be accepted by the employee consistent with the applicable standards of conduct regulations.
Non-Federal source means any person or entity other than the Government of the United States. The term includes any individual, private or commercial entity, nonprofit organization or association, international or multinational organization (irrespective of whether an agency holds membership in the organization or association), or foreign, State or local government (including the government of the District of Columbia).
Payment means a monetary payment from a non-Federal source to a Federal agency for travel, subsistence, related expenses by check or other monetary instrument payable to the Federal agency (i.e., EFT, money order, charge card, etc.) or payment in kind.
Payment in kind means transportation, food, lodging, or other travel-related services provided by a non-Federal source instead of monetary payments to the Federal agency for these services. Payment in kind also includes waiver or discount of any fees that a non-Federal source collects from meeting attendees (e.g., registration fees), but does not include waivers or discounts of an employee's fees on the day(s) they are participating in the meeting or similar function as a speaker, panelist, or presenter.
Travel, subsistence, and related expenses (travel expenses) means the same types of expenses payable under chapter 301 of this subtitle, the Foreign Affairs Manual (FAM), and the Joint Travel Regulations (JTR) for transportation, food, lodging or other travel-related services for official travel (e.g., baggage expenses, services of guides, drivers, interpreters, communication services, hire of conference rooms, lodging taxes, laundry/dry cleaning, taxi or TNC fares, or the cost of utilizing an innovative mobility technology company, etc.). These expenses also include conference or training fees (in whole or in part), as well as benefits that cannot be paid under the applicable travel regulations, but which are incident to the meeting, provided in kind, and made available by the meeting sponsor(s) to all attendees. For example, this definition as applied to this chapter would allow an employee or spouse to attend a sporting event hosted by the sponsor(s) in connection with the meeting that is available to all participants. However, it would not allow the employee to accept tickets to a professional sporting event, concert or similar event, for use at a later date even if such tickets were given to all other participants. The Foreign Affairs Manual is available at https://fam.state.gov. The Joint Travel Regulations are available at https://www.travel.dod.mil/Policy-Regulations/Joint-Travel-Regulations/.
Agencies may accept payments for an employee's travel to a meeting from a non-Federal source under this part and in accordance with agency policy. Employees may accept such a payment only when their agency specifically authorizes such acceptance under the requirements of this part. Except as provided in § 304-3.11, agencies must approve acceptance of such payment in advance of employee travel.
Agencies or employees may accept payments other than cash from a non-Federal source for all official travel expenses to attend a meeting of mutual interest, or any portion of those travel expenses mutually agreed upon between the agency and the non-Federal source. Agencies or employees may not accept payments for non-meeting travel under this part. However, agencies or employees may be able to accept payments under other authorities (see § 304-3.17).
Agencies and employees are prohibited from soliciting travel expense payments from non-Federal sources.
Agencies or employees may inform non-Federal sources about the agency's authority to accept travel expense payments.
When contacted directly by a non-Federal source offering to pay travel expenses, employees must inform their agency and allow the authorized agency official to determine whether to accept the payment.
Employees are not required to use U.S. flag air carrier service when receiving air transportation paid in full directly by the non-Federal source or fully reimbursed to the agency by the non-Federal source.
Employees may use non-coach class accommodations when the agency authorizes such use in accordance with § 304-5.5 of this chapter.
(a) Acceptance of a waived or discounted registration fee from the non-Federal sponsor of the event is not a payment in kind for the day(s) employees are participating as a speaker, panelist, or presenter.
(b) Acceptance of a waived or discounted registration fee is a payment in kind for the days employees only attend the event (i.e., on the day(s) employees are not participating as a speaker, panelist, or presenter).
(c) Lodging, transportation, meals, event tickets, or other similar items of value provided by a non-Federal source are a payment in kind. If these types of expenses are included in a registration fee that is waived or discounted on the day(s) employees are participating as a speaker, panelist, or presenter, the employee may accept them only with their agency's approval in accordance with this chapter.
(a) Acceptance of payment for, and when applicable, reimbursement by an agency to an employee and the accompanying spouse of such employee are not subject to the maximum per diem or actual subsistence expense rates when traveling in CONUS or in non-foreign areas under the following conditions:
(1) The non-Federal source pays the full amount of the subsistence expense, as authorized by the agency;
(2) The subsistence expense paid by the non-Federal source is comparable in value to that offered to or purchased by other meeting attendees; and
(3) The agency has approved acceptance of payment from the non-Federal source prior to employee's travel; if the agency has not approved any acceptance from the non-Federal source, employees may not exceed the maximum allowances. See § 304-3.11.
(b) The maximum subsistence allowances established by the Secretary of State for travel to foreign areas may not be exceeded.
Employees must receive advance agency approval before performing travel paid by a non-Federal source to attend a meeting, except as provided in § 304-3.11.
(a) If an employee's agency has already authorized acceptance of payment for some of their travel expenses for that meeting from a non-Federal source, then the employee may accept on behalf of the agency, payment for any of their additional travel expenses from the same non-Federal source as long as—
(1) The expenses paid or provided in kind are comparable in value to those offered to or purchased by other similarly situated meeting attendees; and
(2) The agency did not decline to accept payment for those particular expenses in advance of the employee's travel.
(b) If an agency did not authorize acceptance of any payment from a non-Federal source prior to travel, then—
(1) An employee may accept, on behalf of their agency, payment from a non-Federal source as authorized in this section—
(i) Only the types of travel expenses that are authorized by the travel authorization (i.e., meals, lodging, transportation, but not recreation or other personal expenses); and
(ii) Only travel expenses that are within the maximum allowances stated on the travel authorization;
(2) Employees must request their agency's authorization for acceptance from the non-Federal source within 7 working days after the trip ends; and
(3) If an agency does not authorize acceptance from the non-Federal source, the agency must either—
(i) Reimburse the non-Federal source for the reasonable approximation of the market value of the benefit provided, not to exceed the maximum allowance stated on the travel authorization; or
(ii) Require the employee to reimburse the non-Federal source that amount and allow the employee to claim that amount on their travel claim for the trip.
(c) If an employee accepts payment from a non-Federal source for travel expenses in violation of paragraph (a) or (b) of this section, the employee may be subject to the penalties specified in § 304-3.16.
A non-Federal source may pay for an employee's spouse to accompany them when it is in the interest of and authorized in advance by the employee's agency. All limitations and requirements of this part apply to the acceptance of payment from a non-Federal source for travel expenses and/or agency reimbursement of travel expenses for the employee's accompanying spouse. The agency may determine that a spouse's presence at an event is in the interest of the agency if the spouse will—
(a) Support the mission of the agency or substantially assist in carrying out the employee's official duties;
(b) Attend a ceremony at which the employee will receive an award or honorary degree; or
(c) Participate in substantive programs related to the agency's programs or operations.
Employees must provide their agency with information about payments received on the agency's behalf. The agency must submit to the U.S. Office of Government Ethics (OGE) a semiannual report (OGE Form 1353 or SF 326) of all payments it accepts under this part.
Employees must submit a travel claim listing all allowable travel expenses incurred which were not paid in kind by a non-Federal source. An employee may not claim travel expenses that were furnished in kind by a non-Federal source. The employee's reimbursement is limited to the types of expenses authorized in chapter 301 of this subtitle or analogous provisions of the Joint Travel Regulations or Foreign Affairs Manual. Reimbursement from the agency for expenses will not in any case exceed the amount of the expenses the employee incurs. Such reimbursement will also adhere to established regulatory limitations except where the agency accepts payments under § 304-5.4, § 304-5.5, or § 304-5.6 of this chapter.
Generally, employees are not required to report travel payments on financial disclosure reports when payments are made to or on behalf of the agency, or payments are not considered personal gifts.
(a) If an employee accepts a payment from a non-Federal source in violation of this part, they may be required, in addition to any other penalty provided by law and applicable regulations, to pay the general fund of the Treasury, an amount equal to any payment accepted; and
(b) For reimbursement under paragraph (a) of this section, an employee will not be entitled to any reimbursement from the Government for travel expenses that the payment was intended to cover.
Employees may accept payment of travel expenses from a non-Federal source under the following authorities, in addition to this part:
(a) Under 5 U.S.C. 4111 for acceptance of contributions, awards, and other payments from tax-exempt entities for non-Government sponsored training or meetings (see regulations issued by the Office of Personnel Management at 5 CFR part 410).
(b) Under 5 U.S.C. 7342 for travel taking place entirely outside the United States which is paid by a foreign government, where acceptance is permitted by the agency and any regulations which may be prescribed by the agency.
(c) Under 5 U.S.C. 7324(b) when payment is for travel to be performed for a partisan rather than an official purpose in accordance with the Hatch Act (5 U.S.C. 7321-7326).
(d) Pursuant to the applicable standards of ethical conduct regulations in 5 CFR part 2635 concerning personal acceptance of gifts. For example, under 5 CFR 2635.204(e), which authorizes executive branch employees to accept gifts based on outside business employment relationships. Employees may also be able to accept attendance at, but not other travel expenses to, a widely attended gathering under 5 CFR 2635.204(g) when the gathering is not a meeting, as defined in this part, and the employees are not attending in their official capacity. Unless authorized to do so by the agency, an employee may not accept travel, subsistence, or related expenses, including meals, offered by a non-Federal source for participation as a speaker, panelist, or presenter at a meeting or similar function that takes place away from the employee's permanent duty station. Such expenses are considered payments in kind and must be accepted, if at all, in accordance with this part.
Agencies may accept payment for travel expenses to events other than meetings from a non-Federal source pursuant to an agency gift statute or similar statutory authority. However, this part is the only authority agencies may use to accept (or authorize an employee to accept on the agency's behalf) payment for travel expenses from a non-Federal source to attend a meeting.
Agencies may accept payment from a non-Federal source or authorize an employee and/or the employee's spouse to accept payment on the agency's behalf only when—
(a) Agencies have issued the employee (and/or the employee's spouse, when applicable) a travel authorization before the travel begins;
(b) Agencies have determined that the travel is in the interest of the Government;
(c) The travel relates to the employee's official duties; and
(d) The non-Federal source is not disqualified due to a conflict of interest under § 304-5.3.
An official at the highest practical administrative level who can evaluate the requirements in § 304-5.3 must approve acceptance of such payments.
(a) The approving official must not authorize acceptance of the payment if the approving official determines that acceptance of the payment under the circumstances would cause a reasonable person with knowledge of all the facts relevant to a particular case to question the integrity of agency programs or operations. The approving official must be guided by all relevant considerations, including but not limited to the—
(1) Identity of the non-Federal source;
(2) Purpose of the meeting;
(3) Identity of other expected participants;
(4) Nature and sensitivity of any matter pending at the agency which may affect the interest of the non-Federal source;
(5) Significance of the employee's role in any such matter; and
(6) Monetary value and character of the travel benefits offered by the non-Federal source.
(b) The agency official may find that, while acceptance from the non-Federal source is permissible, it is in the interest of the agency to qualify acceptance of the offered payment by, for example, authorizing attendance at only a portion of the event or limiting the type or character of benefits that may be accepted.
(a) An agency may authorize employees to exceed subsistence allowances established by this subtitle and by the Secretary of Defense as long as—
(1) The agency authorized acceptance of payment from a non-Federal source for such allowances;
(2) The non-Federal source pays the full amount of the subsistence expense, as authorized by the agency; and
(3) The subsistence expense paid by the non-Federal source is comparable in value to that offered to or purchased by other meeting attendees.
(b) The maximum subsistence allowances prescribed by the Secretary of State for travel to foreign areas may not be exceeded.
Agencies may authorize an employee to use other than coach class accommodations on common carriers as long as—
(a) The non-Federal source makes full payment for such transportation services in advance of travel;
(b) The transportation accommodations furnished are comparable in value to those offered to, or purchased by other similarly situated meeting attendees; and
(c) Travel meets at least one of the conditions in § 301-10.100 of this subtitle.
Agencies may accept payment from more than one non-Federal source for a single trip, as long as the total of such payments do not exceed the total cost of the trip.
(a) If the non-Federal sponsor or organizer of a meeting or similar function offers to waive or discount the registration fee of an employee who is only attending the event, the agency is not required to separately authorize acceptance of any items included in the registration fee. If applicable, acceptance of the registration fee must be reported to the U.S. Office of Government Ethics (OGE) in accordance with part 304-6 of this subchapter.
(b) When a waived or discounted registration fee is not a payment in kind pursuant to § 304-3.8 of this chapter, the employee may only accept items that the agency authorizes separately. If applicable, the value of any payments in kind so accepted should be reported to OGE in accordance with part 304-6 of this subchapter. Review the reporting guidelines at § 304-6.3 of this subchapter to see if the aggregated meal amounts (if more than one meal, or meals of both an employee and spouse) will need to be reported to OGE.
Agencies may not accept a monetary payment in the form of cash from a non-Federal source. Monetary payment(s) received from a non-Federal source must be in the form of a check or similar instrument made payable to the agency.
When a non-Federal source provides partial payment for travel expenses, the agency should specify on the travel authorization that the employee will be reimbursed for the difference between the full allowances and the payment from the non-Federal source.
The agency head or designee must submit U.S. Office of Government Ethics (OGE) Form 1353 or Standard Form (SF) 326, Semiannual Report of Payments Accepted From a Non-Federal Source, to report payments received from non-Federal sources. This applies to all payments that are more than $250 per event for an employee and accompanying spouse. For purposes of the $250 threshold, payments for an employee and accompanying spouse shall be aggregated. If agencies wish to use a form other than OGE Form 1353 or SF 326 to report such payments, the agency may seek permission to do so by contacting the Office of Government Ethics at United States Office of Government Ethics, 1201 New York Avenue NW, Suite 500, Washington, DC 20005-3917, or at 1353Travel@oge.gov.
(a) Agencies must—
(1) Submit the completed report no later than May 31 for payments received from the preceding October 1 through March 31; and
(2) Submit the completed report no later than November 30 for payments received from the preceding April 1 through September 30; and
(b) Submit the completed report including negative reports, to: Director of the Office of Government Ethics (OGE), 1201 New York Avenue NW, Suite 500, Washington, DC 20005-3917 or at 1353Travel@oge.gov.
Information that is protected by statute from disclosure to the public should not be reported. However, if agencies omit otherwise reportable information from the OGE Form 1353 or SF 326 because the information may not be disclosed, agencies must notify OGE unless otherwise prohibited by law and, if requested by the Director of OGE, make the information available for inspection by an OGE employee with the requisite clearance.
OGE must make any report filed by an agency under this part (that is not protected from disclosure by statute) available for public inspection and copying on the later of the following two dates:
(a) Within 30 days after the applicable due date.
(b) Within 30 days after the date OGE actually receives the report.
OGE is responsible for making the information provided by the agencies available to the public. It is each agency's responsibility to file the accurate and complete reports and to make the appropriate conflict of interest analysis.
(a) For conference, training, or similar fees waived, discounted, or paid for by a non-Federal source on behalf of a meeting attendee, agencies must report the amount charged to other attendees. However, a waiver or discount of the registration fee by the non-Federal sponsor of the event for the day(s) the employee participated in the meeting or similar function as a speaker, panelist, or presenter is not a payment in kind and does not need to be reported.
(b) For transportation or lodging, agencies must report the cost that the non-Federal source paid or usually would have been charged for such an event.
(c) For chartered, corporate, or other private aircraft—
(1) When a common carrier is available, agencies must report the first-class rate that would have been charged by a commercial air carrier at the time the event took place.
(2) When a common carrier is not available, agencies must report the cost of chartering a similar aircraft using a commercially available service.
(d) For lodging where no commercial rate is available, agencies must report the daily per diem rate. These rates are available at https://www.gsa.gov/perdiem, with links to the non-foreign and foreign area rates.
The purpose of this subchapter is to provide for reductions in per diem and other travel reimbursement when employees receive contributions, awards and other payments from non-Federal sources for training in non-Government facilities and attendance at meetings under 5 U.S.C. 4111.
This subchapter applies to—
(a) Civilian officers and employees of—
(1) Executive departments as defined in 5 U.S.C. 101;
(2) Independent establishments as defined in 5 U.S.C. 104;
(3) Government corporations subject to 31 U.S.C. chapter 91.;
(4) The Library of Congress;
(5) The Government Publishing Office (GPO); and
(6) The government of the District of Columbia; and
(b) Commissioned officers of the National Oceanic and Atmospheric Administration.
The following, under 5 U.S.C. 4102 and the implementing regulation at 5 CFR 410.101(b), are exempt from this subchapter:
(a) A corporation supervised by the Farm Credit Administration if private interests elect or appoint a member of the board of directors.
(b) The Tennessee Valley Authority.
(c) An individual (except a commissioned officer of the National Oceanic and Atmospheric Administration) who is a member of a uniformed service during a period in which they are entitled to pay under 37 U.S.C. 204.
(d) The U.S. Postal Service, Postal Rate Commission, and their employees.
A donor, for the purpose of this subchapter, is a non-profit charitable organization described by 26 U.S.C. 501(c)(3), that is exempt from taxation under 26 U.S.C. 501(a).
Agencies may allow an employee to accept contributions and awards pertaining to training and payments incident to attendance at meetings when specifically authorized to do so in accordance with Office of Personnel Management guidelines (5 CFR part 410, subpart E).
Agencies may not reimburse an employee for expenses that are fully reimbursed by a donor for training in a non-Government facility, or travel expenses incident to attendance at a meeting.
Agencies may reimburse an employee for training expenses that are not fully paid by a donor, an amount considered sufficient to cover the balance of expenses to the extent authorized by law and regulation, including 5 U.S.C. 4109 and 5 U.S.C. 4110.
If agencies reimburse an employee for expenses that are also paid by a donor, agencies must establish and carry out policy in accordance with 5 U.S.C. 5514 and the Federal Claims Collection Standards (31 CFR parts 900 through 904) to recover any excess amount paid to the employee.
Agencies are not required to reduce employee reimbursement when a donor pays for expenses the government cannot reimburse, for example, travel expenses for an employee's immediate family.
Agencies must set an internal policy to ensure collection of expense data in such detail as the agency deems necessary to carry out this part.