[Federal Register Volume 67, Number 139 (Friday, July 19, 2002)]
[Proposed Rules]
[Pages 47494-47501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17495]


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GENERAL SERVICES ADMINISTRATION

41 CFR Parts 101-45 and 102-38

[FPMR Amendment H-  ]
RIN 3090-AH10


Sale of Personal Property

AGENCY: Office of Governmentwide Policy, GSA.

ACTION: Proposed rule.

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SUMMARY: The General Services Administration (GSA) is revising the 
Federal Property Management Regulations (FPMR) by revising coverage on 
the sale of personal property and moving it into the Federal Management 
Regulation (FMR). A cross-reference is added to the FPMR to direct 
readers to the coverage in the FMR. The FMR coverage is written in 
plain language to provide agencies with updated regulatory material 
that is easy to read and understand.

DATES: Your comments must reach us by August 19, 2002, to be considered 
in the formulation of a final rule.

ADDRESSES: Written comments should be submitted to: Rodney Lantier, 
Regulatory Secretariat (MVP), Office of Governmentwide Policy, General 
Services Administration, 1800 F Street, NW, Washington, DC 20405.
    Address e-mail comments to: [email protected].

FOR FURTHER INFORMATION CONTACT: Robert Holcombe, Director, Personal 
Property Management Policy Division (MTP), 202-501-3828.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule updates, streamlines, and clarifies FPMR part 
101-45 and moves the part into the Federal Management Regulation (FMR). 
The proposed rule is written in a plain language question and answer 
format. This style uses an active voice, shorter sentences, and 
pronouns. A question and its answer combine to establish a rule. The 
employee and the agency must follow the language contained in both the 
question and its answer.

B. Executive Order 12866

    GSA has determined that this proposed rule is not a significant 
rule for the purposes of Executive Order 12866 of September 30, 1993.

C. Regulatory Flexibility Act

    This proposed rule is not required to be published in the Federal 
Register for notice and comment; therefore the Regulatory Flexibility 
Act, 5 U.S.C. 601, et seq., does not apply.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this proposed 
rule does not impose recordkeeping or information collection 
requirements, or the collection of information from offerors, 
contractors, or members of the public which require the approval of the 
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

E. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is exempt from Congressional review prescribed 
under 5 U.S.C. 801 since it relates solely to agency management and 
personnel.

List of Subjects in 41 CFR Parts 101-45 and 102-38.

    Government property management, Surplus Government property.

    For the reasons set forth in the preamble, GSA proposes to amend 41 
CFR chapters 101 and 102 as follows:

CHAPTER 101--[AMENDED]

    1. Part 101-45 is revised to read as follows:

PART 101-45--SALE, ABANDONMENT, OR DESTRUCTION OF PERSONAL PROPERTY

    Authority: 40 U.S.C. 484 and 486(c).

[[Page 47495]]

Sec. 101-45.000  Cross-reference to the Federal Management Regulation 
(FMR) (41 CFR chapter 102, parts 102-1 through 102-220).

    For information on sale of personal property previously contained 
in this part, see FMR part 38 (41 CFR part 102-38).

CHAPTER 102--[AMENDED]

    2. Part 102-38 is added to subchapter B of chapter 102 to read as 
follows:

PART 102-38--SALE OF PERSONAL PROPERTY

Subpart A--General Provisions
Sec.
102-38.5  What does this part cover?
102-38.10  What is the governing authority for this part?
102-38.15  Who must comply with these sales provisions?
102-38.20  Must we follow the regulations of this part when selling 
all personal property?
102-38.25  To whom do ``we'', ``you'', and their variants refer?
102-38.30  How do we request a deviation from the provisions of this 
part?

Definitions

102-38.35  What definitions apply to this part?

Responsibilities

102-38.40  Who may sell personal property?
102-38.45  What are our responsibilities in selling personal 
property?
102-38.50  What must we do when we suspect non-compliance with the 
provisions of this part?
102-38.55  What must we do when selling personal property?
102-38.60  Who is responsible for the costs of care and handling of 
the personal property before it is sold?
102-38.65  What if we are notified of a Federal requirement for 
surplus personal property before the sale is complete?
102-38.70  May we abandon, destroy, or donate personal property 
either prior to or after trying to sell it?
Subpart B--Sales Process

Methods of Sale

102-38.75  How may we sell personal property?
102-38.80  Which method of sale should we use?

Competitive Sales

102-38.85  What is a sealed bid sale?
102-38.90  What is a spot bid sale?
102-38.95  What is an auction?

Negotiated Sales

102-38.100  What is a negotiated sale?
102-38.105  Under what conditions may we negotiate sales of personal 
property?
102-38.110  Who approves our determinations to conduct negotiated 
sales?
102-38.115  What are the specific reporting requirements for 
negotiated sales?
102-38.120  When may we sell personal property at fixed prices 
(fixed price sale)?
102-38.125   May we sell personal property at fixed prices to State 
agencies?

Advertising

102-38.130  Must we publicly advertise sales of Federal personal 
property?
102-38.135  What constitutes a public advertisement?
102-38.140  What must we include in the public notice on sale of 
personal property?

Pre-Sale Activities

102-38.145  Must we allow for inspection of the personal property to 
be sold?
102-38.150  How long is the inspection period?

Offer To Sell

102-38.155  What is an offer to sell?
102-38.160  What must be included in the offer to sell?
102-38.165  Are the terms and conditions in the offer to sell 
binding?
Subpart C--Bids

Buyer Eligibility

102-38.170  May we sell Federal personal property to anyone?
102-38.175  How do we find out if a person or entity has been 
suspended or debarred from doing business with the Government?
102-38.180  May we sell Federal personal property to a Federal 
employee?
102-38.185  May we sell Federal personal property to State or local 
governments?

Acceptance of Bids

102-38.190  What is considered a responsive bid?
102-38.195  Must bidders use authorized bid forms?
102-38.200  Who may accept bids?
102-38.205  Must we accept all bids?
102-38.210  What happens when bids have been rejected?
102-38.215  When may we disclose the bid results to the public?
102-38.220  What must we do when the highest bids received have the 
same bid amount?
102-38.225  What are the additional requirements in the bid process?

Bid Deposits

102-38.230  Is a bid deposit required to buy personal property?
102-38.235  What types of payment may we accept as bid deposits?
102-38.240  What happens to the deposit bond if the bidder defaults 
or wants to withdraw his/her bid?

Late Bids

102-38.245  Do we consider late bids for award?
102-38.250  How do we handle late bids that are not considered?

Modification or Withdrawal of Bids

102-38.255  May we allow a bidder to modify or withdraw a bid?

Mistakes in Bids

102-38.260  Who makes the administrative determinations regarding 
mistakes in bids?
102-38.265  Must we keep records on administrative determinations?
102-38.270  May a bidder protest the determinations made on sales of 
personal property?
Subpart D--Completion of Sale

Awards

102-38.275  To whom do we award the sales contract?
102-38.280  What happens when there is no award?

Transfer of Title

102-38.285  How do we transfer title from the Government to the 
buyer for personal property sold?

Payments

102-38.290  What types of payment may we accept?

Disposition of Proceeds

102-38.295  May we retain sales proceeds?
102-38.300  What happens to the remaining portion of the proceeds if 
we are authorized to retain only a portion of the proceeds from the 
sale of personal property?

Disputes

102-38.305  How do we handle disputes involved in the sale of 
Federal personal property?
102-38.310  Are we required to use the Disputes clause in the sale 
of personal property?
102-38.315  Are we required to use the Alternative Disputes 
Resolution for sales contracts?
Subpart E--Other Governing Statutes
102-38.320  Are there other statutory requirements governing the 
sale of Federal personal property?

Antitrust Requirements

102-38.325  What are the requirements pertaining to antitrust laws?
Subpart F--Reporting Requirements
102-38.330  Are there any reports that we must submit to GSA?
102-38.335  Is there any additional personal property sales 
information that we must submit to GSA?
Subpart G--Sales to State and Local Governments
102-38.340  How may we sell personal property to State and local 
governments?
102-38.345   Do we have to withdraw personal property advertised for 
public sale if a State Agency for Surplus Property (SASP) wants to 
buy it?
102-38.350   Are State and local governments subject to the same 
payment requirements as public buyers?
102-38.355   Do the regulations of this part apply to SASPs?

    Authority: 40 U.S.C. 484 and 40 U.S.C. 486(c).

[[Page 47496]]

Subpart A--General Provisions


Sec. 102-38.5  What does this part cover?

    This part prescribes the policies governing the sale of Federal 
personal property, including:
    (a) Surplus personal property that has completed all required 
Federal and/or donation screening; and
    (b) Personal property to be sold under the exchange/sale authority.

    Note to Sec. 102-38.5: You must follow additional guidelines in 
part 101-42 of this title for the sale of personal property that has 
special handling requirements or property containing hazardous 
materials, such as firearms, munitions list items (as defined in 
Sec. 102-36.40 of this chapter), animals, medical devices, all 
terrain vehicles, precious metals, etc. Additional requirements for 
the sale of aircraft and aircraft parts are provided in part 101-37 
of this title.

Sec. 102-38.10  What is the governing authority for this part?

    Sections 203 and 205(c) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 484 and 486(c)), as amended (Property 
Act), provide the authority for the regulations in this part governing 
the sale of Federal personal property.


Sec. 102-38.15  Who must comply with these sales provisions?

    All agencies in the executive, legislative, and judicial branches 
of the Government must comply with these sales provisions, except the 
Senate, House of Representatives, and activities under the direction of 
the Architect of the Capitol.


Sec. 102-38.20  Must we follow the regulations of this part when 
selling all personal property?

    Generally, yes, you must follow the regulations of this part when 
selling all personal property, however:
    (a) Materials acquired for the national stockpile or supplemental 
stockpile, or materials or equipment acquired under section 303 of the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2093) are 
excepted from this part;
    (b) The Maritime Administration, Department of Transportation, has 
jurisdiction over the disposal of vessels of 1,500 gross tons or more 
and determined by the Secretary to be merchant vessels or capable of 
conversion to merchant use; and
    (c) Sales made by the Secretary of Defense pursuant to 10 U.S.C. 
2576 (Sale of Surplus Military Equipment to State and Local Law 
Enforcement and Firefighting Agencies) are exempt from these 
provisions.


Sec. 102-38.25  To whom do ``we'', ``you'', and their variants refer?

    Unless otherwise indicated, use of pronouns ``we'', ``you'', and 
their variants throughout this part refer to the holding agency 
responsible for the sale of the property.


Sec. 102-38.30  How do we request a deviation from the provisions of 
this part?

    Refer to Sec. 102-2.60 of this chapter for information on how to 
obtain a deviation from this part.

Definitions


Sec. 102-38.35  What definitions apply to this part?

    The following definitions apply to this part:
    Bid means a response to an offer to sell that, if accepted, would 
bind the bidder to the terms and conditions of the contract (including 
the bid price).
    Bidder means any entity that is responding to or has responded to 
an offer to sell.
    Estimated fair market value means the selling agency's best 
estimate of what the property would be sold for if offered for public 
sale.
    Identical bids means bids for the same item of property having the 
same total price.
    Personal property means any property, except real property. For 
purposes of this part, the term excludes records of the Federal 
Government, and naval vessels of the following categories:
    (1) Battleships;
    (2) Cruisers;
    (3) Aircraft carriers;
    (4) Destroyers; and
    (5) Submarines.
    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 
subsection 203(j) of the Property Act (40 U.S.C. 484(j)).
    State or local government means a State, territory, possession, 
political subdivision thereof, or tax-supported agency therein.

Responsibilities


Sec. 102-38.40  Who may sell personal property?

    You may sell personal property as the holding agency or on behalf 
of another agency when so requested, or have GSA, a contractor, or 
another Federal agency conduct the sale for you, provided that only 
authorized Federal officials approve the sale.


Sec. 102-38.45  What are our responsibilities in selling personal 
property?

    Your responsibilities in selling personal property are to:
    (a) Ensure the sale complies with the provisions of the Property 
Act and regulations of this part, and any other applicable laws;
    (b) Issue internal guidance to promote uniformity of sales 
procedures;
    (c) Assure that officials designated to conduct and finalize sales 
are adequately trained;
    (d) Be accountable for the care and handling of the personal 
property prior to its removal by the buyer; and
    (e) Adjust your property and financial records to reflect the final 
disposition.


Sec. 102-38.50  What must we do when we suspect non-compliance with the 
provisions of this part?

    If you suspect non-compliance with the provisions of this part, you 
must:
    (a) Refer any violations of the regulations in this part, or fraud, 
bribery or criminal collusion against the Government to the Inspector 
General of your agency and/or the Attorney General, Department of 
Justice, Washington, DC 20530, for further investigation. You must 
cooperate with and provide evidence concerning the suspected violation 
to the investigating agency assuming jurisdiction of the matter; and
    (b) Submit to GSA, Property Management Division (FBP), Washington, 
DC, 20406, a report of any compliance investigations concerning 
violations of these provisions. The report must contain information 
concerning the noncompliance, including the corrective action taken or 
contemplated, and, for cases referred to the Department of Justice, a 
copy of the transmittal letter. A copy of each report must be submitted 
also to GSA, Personal Property Management Policy Division (MTP), 
Washington, DC 20405.


Sec. 102-38.55  What must we do when selling personal property?

    When selling personal property, you must ensure that:
    (a) All sales are made after publicly advertising for bids, except 
as provided for negotiated sales in Secs. 102-38.100 through 102-
38.125; and
    (b) Advertising for bids must permit full and free competition 
consistent with the value and nature of the property involved.


Sec. 102-38.60  Who is responsible for the costs of care and handling 
of the personal property before it is sold?

    You are responsible for the care and handling costs of the personal 
property until it is removed by the buyer or the

[[Page 47497]]

buyer's designee. When specified in the terms and conditions of sale, 
you may charge costs for storage when the buyer is delinquent in 
removing the property.


Sec. 102-38.65  What if we are notified of a Federal requirement for 
surplus personal property before the sale is complete?

    Federal agencies have first claim to excess or surplus personal 
property reported to GSA. When a need is expressed by a Federal agency, 
you must make the property available for transfer to the maximum extent 
practicable and prior to transfer of title to the property.


Sec. 102-38.70  May we abandon, destroy, or donate personal property 
either prior to or after trying to sell it?

    (a) Yes, you may abandon, destroy, or donate personal property 
either prior to or after trying to sell it, but only when you have made 
a written determination that:
    (1) The personal property has no commercial value; or
    (2) The estimated cost of continued care and handling would exceed 
the estimated sales proceeds.
    (b) In addition to the provisions in paragraph (a) of this section, 
see the regulations at Secs. 102-36.305 through 102-36.330 of this 
chapter that are applicable to the abandonment, destruction, or 
donation of personal property in general, and excess personal property 
in particular.

Subpart B--Sales Process

Methods of Sale


Sec. 102-38.75  How may we sell personal property?

    (a) You may sell personal property upon such terms and conditions 
as the Administrator of General Services deems proper to promote 
fairness, openness, and timeliness. In selling personal property, you 
must document the required terms and conditions of each sale, 
including, but not limited to, the following terms and conditions, as 
applicable:
    (1) Inspection;
    (2) Condition and location of property;
    (3) Eligibility of bidders;
    (4) Consideration of bids;
    (5) Bid deposits and payments;
    (6) Submission of bids;
    (7) Bid price determination;
    (8) Title;
    (9) Delivery, loading, and removal of property;
    (10) Default, returns, or refunds;
    (11) Modifications, withdrawals, or late bids;
    (12) Requirements to comply with applicable laws and regulations;
    (13) Certificate of independent price determinations;
    (14) Covenant against contingent fees;
    (15) Limitation on Government's liability; and
    (16) Award of contract.
    (b) When conducting and completing a sale through electronic media, 
the required terms and conditions must be included in your electronic 
sales documentation.


Sec. 102-38.80  Which method of sale should we use?

    (a) You may use any method of sale provided the sale is publicly 
advertised and the personal property is sold with full and open 
competition. Exceptions to the requirement for competitive bids for 
negotiated sales (including fixed price sales) are contained in 
Secs. 102-38.100 through 102-38.125. You must select the method of sale 
that will bring maximum return at minimum cost, considering factors 
such as:
    (1) Type and quantity of property;
    (2) Location of property;
    (3) Potential market;
    (4) Cost to prepare and conduct the sale;
    (5) Available facilities; and
    (6) Sales experience of the selling activity.
    (b) Methods of sale may include sealed bid sales, spot bid sales, 
auctions, or negotiated sales and may be conducted at a physical 
location or through any electronic media that is publicly accessible.

Competitive Sales


Sec. 102-38.85  What is a sealed bid sale?

    A sealed bid sale is a sale where bid prices are kept confidential 
until bid opening. Bids are submitted either electronically or in 
writing according to formats specified by the selling agency, and all 
bids are held for public disclosure at a designated time and place.


Sec. 102-38.90  What is a spot bid sale?

    A spot bid sale is a sale where immediately following the offering 
of the item or lot of property, bids are examined, and awards are made 
or bids rejected on the spot. Bids are either submitted electronically 
or in writing according to formats specified by the selling agency, and 
must not be disclosed prior to announcement of award.


Sec. 102-38.95  What is an auction?

    An auction is a sale where the bid amounts of different bidders are 
disclosed as they are submitted, providing bidders the option to 
increase their bids if they choose. Bids are submitted electronically 
and/or by those physically present at the sale. Normally, the bidder 
with the highest bid at the close of each bidding process is awarded 
the property. The Government reserves the right to reject any or all 
bids.

Negotiated Sales


Sec. 102-38.100  What is a negotiated sale?

    A negotiated sale is a sale where the selling price is arrived at 
between the seller and the buyer, subject to obtaining such competition 
as is feasible under the circumstances.


Sec. 102-38.105  Under what conditions may we negotiate sales of 
personal property?

    You may negotiate sales of personal property when:
    (a) The personal property has an estimated fair market value of 
less than $15,000;
    (b) The disposal will be to a State, territory, possession, 
political subdivision thereof, or tax-supported agency therein, and 
that the estimated fair market value of the property and other 
satisfactory terms of disposal are obtained by negotiation;
    (c) Bid prices after advertising are not reasonable and re-
advertising would serve no useful purpose;
    (d) Public exigency does not permit any delay such as that caused 
by the time required to advertise a sale;
    (e) The sale promotes public health, safety, or national security;
    (f) The sale is in the public interest under a national emergency 
declared by the President or the Congress. This authority may be used 
only with specific lot(s) of property or for categories determined by 
the Administrator of General Services for a designated period but not 
in excess of three months;
    (g) Selling the property competitively would have an adverse impact 
on the national economy, provided that the estimated fair market value 
of the property and other satisfactory terms of disposal can be 
obtained by negotiation, e.g., sale of large quantities of an 
agricultural product that impact domestic markets; or
    (h) Otherwise authorized by the Federal Property and Administrative 
Services Act of 1949, as amended, or other law.


Sec. 102-38.110  Who approves our determinations to conduct negotiated 
sales?

    The head of your agency (or his/her designee) must approve all 
negotiated sales of personal property.

[[Page 47498]]

Sec. 102-38.115  What are the specific reporting requirements for 
negotiated sales?

    For negotiated sales of personal property, you must:
    (a) In accordance with section 203(e)(6) of the Property Act (40 
U.S.C. 484(e)(6)), and in advance of the sale, submit to the oversight 
committees for GSA in the Senate and House, explanatory statements for 
each sale by negotiation of any personal property with an estimated 
fair market value in excess of $15,000. You must maintain copies of the 
explanatory statements in your disposal files. No statement is needed 
for negotiated sales at fixed price or for any sale made without 
advertising when authorized by law other than section 203(e) of the 
Property Act; and
    (b) Report annually to GSA, Personal Property Management Policy 
Division (MTP), Washington, DC, 20405, within 60 calendar days after 
the close of each fiscal year, a listing and description of all 
negotiated sales of personal property with an estimated fair market 
value in excess of $5,000. You may submit the report electronically or 
manually (see Sec. 102-38.330).


Sec. 102-38.120  When may we sell personal property at fixed prices 
(fixed price sale)?

    You may sell personal property at fixed prices (fixed price sale) 
when the head of your agency determines in writing that such sale 
serves the best interests of the Government. You must publicize such 
sale 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 may also establish additional terms and conditions 
that must be met by the successful purchaser.


Sec. 102-38.125  May we sell personal property at fixed prices to State 
agencies?

    Yes, before offering to the public, you may offer the property at 
fixed prices (through the State Agencies for Surplus Property) to any 
States, territories, possessions, political subdivisions thereof, or 
tax-supported agencies therein, which have expressed an interest in 
obtaining the property. For additional information, see Subpart G of 
this part.

Advertising


Sec. 102-38.130  Must we publicly advertise sales of Federal personal 
property?

    Yes, you must provide public notice of your sale of personal 
property to permit full and open competition.


Sec. 102-38.135  What constitutes a public advertisement?

    Announcement of the sale using any media that reaches the public 
and is appropriate to the type and value of personal property to be 
sold is considered public advertising. You may also distribute mailings 
or flyers of your offer to sell to prospective purchasers on mailing 
lists. Public notice should be made far enough in advance of the sale 
to ensure adequate notice, and to target your advertising efforts 
toward the market that will provide the best return at the lowest cost.


Sec. 102-38.140  What must we include in the public notice on sale of 
personal property?

    In the public notice, you must provide information necessary for 
potential buyers to participate in the sale, such as:
    (a) Date, time and location of sale;
    (b) General categories of property being offered for sale;
    (c) Inspection period;
    (d) Method of sale (i.e., spot bid, sealed bid, auction);
    (e) Selling agency; and
    (f) Who to contact for additional information.

Pre-Sale Activities


Sec. 102-38.145  Must we allow for inspection of the personal property 
to be sold?

    Yes, you must allow for an electronic or physical inspection of the 
personal property to be sold. You must allow prospective bidders 
sufficient time for inspection.


Sec. 102-38.150  How long is the inspection period?

    The length of the inspection period allowed depends upon whether 
the inspection is done electronically or physically. You should 
consider such factors as the circumstances of sale, volume of property, 
location of the property, and accessibility of the sales facility. 
Normally, you should provide at least 7 calendar days to ensure 
potential buyers have the opportunity to perform needed inspection.

Offer To Sell


Sec. 102-38.155  What is an offer to sell?

    An offer to sell is a notice listing the terms and conditions for 
bidding on an upcoming sale of personal property, where prospective 
purchasers are advised of the requirements for a responsive bid and the 
contractual obligations once a bid is awarded.


Sec. 102-38.160  What must be included in the offer to sell?

    The offer to sell must include:
    (a) Sale date and time;
    (b) Method of sale;
    (c) Description of property being offered for sale;
    (d) Selling agency;
    (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.


Sec. 102-38.165  Are the terms and conditions in the offer to sell 
binding?

    Yes, the terms and conditions in the offer to sell are normally 
incorporated into the sales contract, and therefore binding upon both 
the buyer and the seller once a bid is awarded.

Subpart C--Bids

Buyer Eligibility


Sec. 102-38.170  May we sell Federal personal property to anyone?

    Generally, you may sell Federal personal property to anyone. 
However, certain persons or entities are debarred or suspended from 
purchasing Federal property. You must not enter into a contract with 
such a person or entity unless your agency head or designee responsible 
for the disposal action determines that there is a compelling reason 
for such an action.


Sec. 102-38.175  How do we find out if a person or entity has been 
suspended or debarred from doing business with the Government?

    Refer to the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs to ensure you do not solicit from or award 
contracts to these persons or entities. The list is available through 
subscription from the U.S. Government Printing Office, or 
electronically on the Internet at http://epls.arnet.gov. For policies, 
procedures, and requirements for debarring/suspending a person or 
entity from the purchase of Federal personal property, follow the 
procedures in the Federal Acquisition Regulation (FAR) subpart 9.4 (48 
CFR part 9, subpart 9.4).


Sec. 102-38.180  May we sell Federal personal property to a Federal 
employee?

    Yes, you may sell Federal personal property to any Federal employee 
whose agency does not prohibit their employees from purchasing such 
property. For purposes of this section, the term ``Federal employee'' 
also applies to an immediate member of the employee's household.

[[Page 47499]]

Sec. 102-38.185  May we sell Federal personal property to State or 
local governments?

    Yes, you may sell Federal personal property to State or local 
governments. Additional guidelines on sale to State or local 
governments are contained in Subpart G of this part.

Acceptance of Bids


Sec. 102-38.190  What is considered a responsive bid?

    A responsive bid is a bid that complies with the terms and 
conditions of the sales offering, and satisfies the requirements as to 
the method and timeliness of submission. Only responsive bids may be 
considered for award.


Sec. 102-38.195  Must bidders use authorized bid forms?

    No, bidders do not have to use authorized bid forms; however if a 
bidder uses his/her own bid form to submit a bid, the bid may be 
considered only if:
    (a) The bidder accepts all the terms and conditions of the offer to 
sell; and
    (b) Award of the bid would result in a binding contract.


Sec. 102-38.200  Who may accept bids?

    Authorized agency representatives may accept bids for your agency. 
These individuals should meet your agency's requirements for approval 
of Government contracts.


Sec. 102-38.205  Must we accept all bids?

    No, the Government reserves the right to accept or reject any or 
all bids. You may reject any or all bids when such action is 
advantageous to the Government, or when it is in the public interest to 
do so.


Sec. 102-38.210  What happens when bids have been rejected?

    You may re-offer items for which all bids have been rejected at the 
same sale, if possible, or another sale.


Sec. 102-38.215  When may we disclose the bid results to the public?

    You may disclose bid results to the public after the sales award of 
any item or lot of property. On occasions when there is open bidding, 
usually at a spot bid sale or auction, all bids are disclosed as they 
are submitted. No information other than names will be disclosed 
regarding the bidder(s).


Sec. 102-38.220  What must we do when the highest bids received have 
the same bid amount?

    When the highest bids received have the same bid amount, you must 
consider other factors of the sale (e.g., timely removal of the 
property, terms of payment, etc.) that would make one offer more 
advantageous to the Government. However, if you are unable to make a 
determination based on available information, and the Government has an 
acceptable offer, you may re-offer the property for sale, or you may 
utilize random tiebreakers to avoid the expense of reselling the 
property.


Sec. 102-38.225  What are the additional requirements in the bid 
process?

    All sales except fixed price sales must contain a certification of 
independent price determination. If there is suspicion of false 
certification or an indication of collusion, you must refer the matter 
to the Department of Justice.

Bid Deposits


Sec. 102-38.230  Is a bid deposit required to buy personal property?

    No, a bid deposit is not required to buy personal property. 
However, should you require a bid deposit to protect the Government's 
interest, a deposit of 20 percent of the total amount of the bid is 
generally considered reasonable.


Sec. 102-38.235  What types of payment may we accept as bid deposits?

    In addition to the acceptable types of payments in Sec. 102-38.290, 
you may also accept a deposit bond. A deposit bond may be used in lieu 
of cash or other acceptable form of deposit when permitted by the offer 
to sell, such as the Standard Form (SF) 150, Deposit Bond--Individual 
Invitation, Sale of Government Personal Property, SF 151, Deposit 
Bond--Annual, Sale of Government Personal Property, and SF 28, 
Affidavit of Individual Surety. For information on how to obtain these 
forms, see Sec. 102-2.135 of this chapter.


Sec. 102-38.240  What happens to the deposit bond if the bidder 
defaults or wants to withdraw his/her bid?

    (a) When a bid deposit is secured by a deposit bond and the bidder 
defaults, you must issue a notice of default to the bidder and the 
surety company.
    (b) When a bid deposit is secured by a deposit bond and the bidder 
wants to withdraw his/her bid, then you should return the deposit bond 
to the bidder.

Late Bids


Sec. 102-38.245  Do we consider late bids for award?

    Consider late bids for award only when the bids were delivered 
timely to the address specified and your agency caused the delay in 
delivering the bids to the official designated to accept the bids.


Sec. 102-38.250  How do we handle late bids that are not considered?

    Late bids that are not considered must be returned to the bidder 
promptly. You must not disclose information contained in returned bids.

Modification or Withdrawal of Bids


Sec. 102-38.255  May we allow a bidder to modify or withdraw a bid?

    (a) Yes, a bidder may modify or withdraw a bid prior to the start 
of the sale or the time set for the opening of the bids. After the 
start of the sale, or the time set for opening the bids, the bidder 
will not be allowed to withdraw his/her bid.
    (b) You may consider late modifications to an otherwise successful 
bid at any time, but only when it makes the terms of the bid more 
favorable to the Government.

Mistakes in Bids


Sec. 102-38.260  Who makes the administrative determinations regarding 
mistakes in bids?

    The administrative procedures for handling mistakes in bids are 
contained in FAR part 14, subpart 14.407, Mistakes in Bids (48 CFR part 
14). Your agency head, or his/her designee, may delegate the authority 
to make administrative decisions regarding mistakes in bids to a 
central authority in your agency, who must not re-delegate this 
authority.


Sec. 102-38.265  Must we keep records on administrative determinations?

    Yes, you must:
    (a) Maintain records of all administrative determinations made, to 
include the pertinent facts and the action taken in each case. A copy 
of the determination must be attached to its corresponding contract; 
and
    (b) Provide a signed copy of any related determination with the 
copy of the contract you file with the Comptroller General.


Sec. 102-38.270  May a bidder protest the determinations made on sales 
of personal property?

    Yes, protests regarding the validity or the determinations made on 
the sale of personal property may be submitted to the Comptroller 
General.

Subpart D--Completion of Sale

Awards


Sec. 102-38.275  To whom do we award the sales contract?

    You must award the sales contract to the bidder with the highest 
responsive bid, unless a determination is made to reject the bid under 
Sec. 102-38.205.

[[Page 47500]]

Sec. 102-38.280  What happens when there is no award?

    When there is no award made, you may sell the personal property at 
another sale, or you may abandon or destroy it pursuant to Sec. 102-
36.305 of this chapter.

Transfer of Title


Sec. 102-38.285  How do we transfer title from the Government to the 
buyer for personal property sold?

    (a) Generally, no specific form or format is designated for 
transferring title from the Government to the buyer for personal 
property sold. For internal control and accountability, you must 
execute a bill of sale or another document as evidence of transfer of 
title or any other interest in Government personal property. You must 
also ensure that the buyer submits any additional certifications to 
comply with specific conditions and restrictions of the sale.
    (b) For sales of vehicles, you must issue to the purchaser a 
Standard Form (SF) 97, the United States Government Certificate to 
Obtain Title to a Vehicle, or a SF 97A, the United States Government 
Certificate to Obtain a Non-Repairable or Salvage Certificate, as 
appropriate, as evidence of transfer of title. For information on how 
to obtain these forms, see Sec. 102-2.135 of this chapter.

Payments


Sec. 102-38.290  What types of payment may we accept?

    You must adopt a payment policy that protects the Government 
against fraud. Acceptable payments include, but are not limited to, the 
following:
    (a) U.S. currency or any form of credit instrument made payable on 
demand in U.S. currency, e.g., cashier's check, money order. Promissory 
notes and postdated credit instruments are not acceptable.
    (b) Irrevocable commercial letters of credit issued by a United 
States bank payable to the Treasurer of the United States or to the 
Government agency conducting the sale.
    (c) Credit or debit cards.

Disposition of Proceeds


Sec. 102-38.295  May we retain sales proceeds?

    Generally, no, you may not retain sales proceeds. You must deposit 
all proceeds from the sale of personal property as miscellaneous 
receipts in the U.S. Treasury. However, you may retain sales proceeds 
if one of the following applies:
    (a) You have statutory authority to retain proceeds from sales of 
personal property;
    (b) You sold property acquired with non-appropriated funds as 
defined in Sec. 102-36.40 of this chapter;
    (c) You sold property that was contractor inventory and the 
contract provisions authorize the proceeds of sale to be credited to 
the cost of the contract or subcontract;
    (d) You sold property to obtain replacement property under the 
exchange/sale authority pursuant to part 102-39 of this chapter; or
    (e) You sold property related to waste prevention and recycling 
programs, under the authority of Section 608 of Public Law 105-277 
(Omnibus Consolidated and Emergency Supplemental Appropriations Act, 
1999, Public Law 105-277, 112 Stat. 2681-514). Consult your General 
Counsel or Chief Financial Officer for guidance on use of this 
authority.


Sec. 102-38.300  What happens to the remaining portion of the proceeds 
if we are authorized to retain only a portion of the proceeds from the 
sale of personal property?

    If you are authorized by law or another provision to retain a 
portion of the sales proceeds to cover your direct costs, you must 
deposit any remaining unused balance as miscellaneous receipts in the 
U.S. Treasury. Also, any unused balance not applied toward the purchase 
of replacement property under Sec. 102-38.295(d) must be deposited as 
miscellaneous receipts in the U.S. Treasury.

Disputes


Sec. 102-38.305  How do we handle disputes involved in the sale of 
Federal personal property?

    First contact your Office of General Counsel. Further guidance can 
be found in the Contract Disputes Act of 1978, as amended (41 U.S.C. 
601-613), and the Federal Acquisition Regulation (FAR) 48 CFR part 33.


Sec. 102-38.310  Are we required to use the Disputes clause in the sale 
of personal property?

    Yes, you must ensure the Disputes clause contained in Federal 
Acquisition Regulation (FAR) 52.233-1 (48 CFR part 52) is included in 
all offers to sell and contracts for the sale of personal property.


Sec. 102-38.315  Are we required to use the Alternative Disputes 
Resolution for sales contracts?

    No, you are not required to use the Alternative
    Disputes Resolution (ADR) for sales contracts. However, you are 
encouraged to use ADR procedures in accordance with the authority and 
the requirements of the Alternative Disputes Resolution Act of 1998 (28 
U.S.C. 651 et seq.).

Subpart E--Other Governing Statutes


Sec. 102-38.320  Are there other statutory requirements governing the 
sale of Federal personal property?

    Yes, in addition to the Property Act the sale of Federal personal 
property is governed by other statutory requirements, specifically 
antitrust requirements that are discussed in Sec. 102-38.325.

Antitrust Requirements


Sec. 102-38.325  What are the requirements pertaining to antitrust 
laws?

    When the sale of personal property has an estimated fair market 
value of $3 million or more, or if the sale involves a patent, process, 
technique, or invention, you must notify the Attorney General of the 
Department of Justice (DOJ) and get DOJ's opinion as to whether the 
sale would give the buyer an unfair advantage in the marketplace and 
violate any antitrust laws. Include in the notification the description 
and location of the property, method of sale and proposed selling 
price, and information on the proposed purchaser and intended use of 
the property. You must not complete the sale until you have received 
confirmation from the Attorney General that the proposed transaction 
would not violate any antitrust laws.

Subpart F--Reporting Requirements


Sec. 102-38.330  Are there any reports that we must submit to GSA?

    Yes, there are two sales reports you must submit to GSA, Personal 
Property Management Policy Division (MTP), Washington, DC 20405:
    (a) Negotiated sales report. Within 60 calendar days after the 
close of each fiscal year, you must provide GSA with a listing and 
description of all negotiated sales with an estimated fair market value 
in excess of $5,000 (see Sec. 102-38.115). For each negotiated sale 
meeting that criterion, provide the following:
    (1) Description of the property (including quantity and condition);
    (2) Acquisition cost and date (if not known, estimate and so 
indicate);
    (3) Estimated fair market value (including date of estimate and 
name of estimator);
    (4) Name and address of purchaser;
    (5) Date of sale;
    (6) Gross and net sales proceeds; and
    (7) Justification for conducting a negotiated sale.
    (b) Exchange/sale report. Within 90 calendar days after the close 
of each

[[Page 47501]]

fiscal year, you must provide a summary report to GSA of transactions 
conducted under the exchange/sale authority under part 102-39 of this 
chapter (see Sec. 102-39.75).


Sec. 102-38.335  Is there any additional personal property sales 
information that we must submit to GSA?

    Yes, you must report to GSA's Asset Disposition and
    Management System (ADMS), once that capability is established, any 
sales information that GSA deems necessary.

Subpart G--Sales to State and Local Governments


Sec. 102-38.340  How may we sell personal property to State and local 
governments?

    You may sell Government personal property to State and local 
governments through:
    (a) Competitive sale to the public;
    (b) Negotiated sale, through the appropriate State Agency for 
Surplus Property (SASP); or
    (c) Negotiated sale at fixed price (fixed price sale), through the 
appropriate SASP. (This method of sale can be used prior to a 
competitive sale to the public, if desired.)


Sec. 102-38.345  Do we have to withdraw personal property advertised 
for public sale if a State Agency for Surplus Property (SASP) wants to 
buy it?

    No, you are not required to withdraw the item from public sale if 
the property has been advertised.


Sec. 102-38.350  Are State and local governments subject to the same 
payment requirements as public buyers?

    Generally, yes, State and local governments have the same general 
payment requirements as other buyers, and payment must be made within 
30 calendar days after purchase. However, you may waive the requirement 
for bid deposits and payments prior to removal of the property. If 
payment is not made within 30 days, you may charge simple interest at 
the rate established by the Secretary of the Treasury as provided in 
section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611), from 
the date of written demand for payment.


Sec. 102-38.355  Do the regulations of this part apply to SASPs?

    Yes, SASPs must follow the regulations in this part when conducting 
sales on behalf of GSA of Government personal property in their 
custody.

    Dated: June 28, 2002.
G. Martin Wagner,
Associate Administrator, Office of Governmentwide Policy.
[FR Doc. 02-17495 Filed 7-18-02; 8:45 am]
BILLING CODE 6820-24-P