[Title 41 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2000 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    41


          Chapters 102 to 200

                         Revised as of July 1, 2000

Public Contracts and Property Management





          Containing a Codification of documents of general 
          applicability and future effect
          As of July 1, 2000
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

As a Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2000



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 41:
    Subtitle C--Federal Property Management Regulations System 
      (Continued):
          Chapter 102--Federal management regulation                 5
           Chapters 103-104 [Reserved]
          Chapter 105--General Services Administration              81
          Chapter 109--Department of Energy Property 
          Management Regulations                                   261
          Chapter 114--Department of the Interior                  327
          Chapter 115--Environmental Protection Agency             331
          Chapter 128--Department of Justice                       335
           Chapters 129- 200 [Reserved]
    Subtitle D--Other Provisions Relating to Property 
      Management [Reserved]
            
  Finding Aids:
      Table of CFR Titles and Chapters........................     355
      Alphabetical List of Agencies Appearing in the CFR......     373

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      Redesignation Table.....................................     383
      List of CFR Sections Affected...........................     385



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  41 CFR 102-2.5 
                       refers to title 41, part 
                       102-2, section .5.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2000, consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
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a day. For payment by check, write to the Superintendent of Documents, 
Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO 
Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

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    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2000.



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                               THIS TITLE

    Title 41--Public Contracts and Property Management consists of 
Subtitle A--Federal Procurement Regulations System [Note]; Subtitle B--
Other Provisions Relating to Public Contracts; Subtitle C--Federal 
Property Management Regulations System; Subtitle D is reserved for other 
provisions relating to property management, Subtitle E--Federal 
Information Resources Management Regulations System and Subtitle F--
Federal Travel Regulation System.

    As of July 1, 1985, the text of subtitle A is no longer published in 
the Code of Federal Regulations. For an explanation of the status of 
subtitle A, see 41 CFR chapters 1--100 (page 3).

    Other government-wide procurement regulations relating to public 
contracts appear in chapters 50 through 100, subtitle B.

    The Federal property management regulations in chapter 101 of 
subtitle C are government-wide property management regulations issued by 
the General Services Administration. In the remaining chapters of 
subtitle C are the implementing and supplementing property management 
regulations issued by individual Government agencies. Those regulations 
which implement chapter 101 are numerically keyed to it.

    The Federal Travel Regulation System in chapters 300-304 of subtitle 
F is issued by the General Services Administration.

    Title 41 is composed of four volumes. The chapters in these volumes 
are arranged as follows: Chapters 1--100, chapter 101, chapters 102--
200, and chapter 201 to End. These volumes represent all current 
regulations codified under this title of the CFR as of July 1, 2000.

    Redesignation tables appear in the finding aids section of the 
volumes containing chapter 101 and chapters 102 to 200.

    For this volume, Kenneth R. Payne was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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           TITLE 41--PUBLIC CONTRACTS AND PROPERTY MANAGEMENT




                (This book contains chapters 102 to 200)

  --------------------------------------------------------------------
                                                                    Part

 SUBTITLE C--Federal Property Management Regulations System (Continued):

chapter  102--Federal Management Regulation.................       102-2

chapters 103-104 [Reserved]

chapter 105--General Services Administration................       105-1

chapter 109--Department of Energy Property Management 
  Regulations...............................................       109-1

chapter 114--Department of the Interior.....................      114-51

chapter 115--Environmental Protection Agency................       115-1

chapter 128--Department of Justice..........................       128-1

chapters 129-200 [Reserved]

 SUBTITLE D--Other Provisions Relating to Property Management [Reserved]

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 Subtitle C--Federal Property Management Regulations System (Continued)

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               CHAPTER 102--FEDERAL MANAGEMENT REGULATION




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
102-1           General [Reserved]
102-2           Federal management regulation system........           7
102-3           Advisory committee management [Reserved]
102-4           Nondiscrimination in Federal financial assistance programs
                  [Reserved]
102-5--102-30   [Reserved]


                     SUBCHAPTER B--PERSONAL PROPERTY
102-31          General [Reserved]
102-32          Management of personal property [Reserved]
102-33          Management of aircraft [Reserved]
102-34          Motor vehicle management....................          12
102-35          Disposition of personal property [Reserved]
102-36          Disposition of excess personal property.....          27
102-37--102-70  [Reserved]


                       SUBCHAPTER C--REAL PROPERTY
102-71          General [Reserved]
102-72          Delegation of authority [Reserved]
102-73          Real estate acquisition [Reserved]
102-74          Facility management [Reserved]
102-75          Disposition of real property [Reserved]
102-76          Design and construction [Reserved]
102-77          Art-in-architecture [Reserved]
102-78          Historic preservation [Reserved]
102-79          Assignment and utilization of space [Reserved]
102-80          Safety and environmental management [Reserved]
102-81          Security [Reserved]
102-82          Utility services [Reserved]
102-83          Centralized services in Federal buildings and complexes
                  [Reserved]
102-84          Annual real property inventories [Reserved]

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102-85--102-115   [Reserved]


                      SUBCHAPTER D--TRANSPORTATION
102-116         General [Reserved]

102-117         Transportation management [Reserved]
102-118         Transportation payment and audit............          52
102-119--102-140  [Reserved]


                     SUBCHAPTER E--TRAVEL MANAGEMENT
102-141         General [Reserved]

102-142--102-170  [Reserved]


                    SUBCHAPTER F--TELECOMMUNICATIONS
102-171         General [Reserved]
102-172         Telecommunications management policy [Reserved]
102-173--102-190  [Reserved]


                  SUBCHAPTER G--ADMINISTRATIVE PROGRAMS
102-191         General [Reserved]
102-192         Mail management [Reserved]
102-193         Records management [Reserved]
102-194         Standard and optional forms program [Reserved]
102-195         Interagency reports management program [Reserved]
102-196         Federal facility ridesharing [Reserved]
102-197--102-220  [Reserved]


                  SUBCHAPTER H-SUBCHAPTER Z [RESERVED]

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                          SUBCHAPTER A--GENERAL



                      PART 102--GENERAL [RESERVED]



PART 102-2--FEDERAL MANAGEMENT REGULATION SYSTEM--Table of Contents




                      Subpart A--Regulation System

                                 General

Sec.
102-2.5   What is the Federal Management Regulation (FMR)?
102-2.10  What is the FMR's purpose?
102-2.15  What is the authority for the FMR system?
102-2.20  Which agencies are subject to the FMR?
102-2.25  When are other agencies involved in developing the FMR?
102-2.30  Where and in what formats is the FMR published?
102-2.35  How is the FMR distributed?
102-2.40  May an agency issue implementing and supplementing regulations 
          for the FMR?

                                Numbering

102-2.45  How is the FMR numbered?
102-2.50  How do I number my agency's implementing regulations?
102-2.55  How do I number my agency's supplementing regulations?

                               Deviations

102-2.60  What is a deviation from the FMR?
102-2.65  When may agencies deviate from the FMR?
102-2.70  What are individual and class deviations?
102-2.75  What timeframes apply to deviations?
102-2.80  What steps must an agency take to deviate from the FMR?
102-2.85  What are the reasons for writing to GSA about FMR deviations?
102-2.90  Where should my agency send its correspondence on an FMR 
          deviation?
102-2.95  What information must agencies include in their deviation 
          letters to GSA?
102-2.100  Must agencies provide GSA with a follow-up analysis of their 
          experience in deviating from the FMR?
102-2.105  What information must agencies include in their follow-up 
          analysis?
102-2.110  When must agencies provide their follow-up analysis?

                         Non-Regulatory Material

102-2.115  What kinds of non-regulatory material does GSA publish 
          outside of the FMR?
102-2.120  How do I know whom to contact to discuss the regulatory 
          requirements of programs addressed in the FMR?
102-2.125  What source of information can my agency use to identify 
          materials that describe how to do business with GSA?

                            Subpart B--Forms

102-2.130  Where are FMR forms prescribed?
102-2.135  How do agencies obtain forms prescribed by the FMR?

               Subpart C--Plain Language Regulatory Style

102-2.140  What elements of plain language appear in the FMR?
102-2.145  To what do pronouns refer when used in the FMR?

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

    Source: 64 FR 39085, July 21, 1999, unless otherwise noted.



                      Subpart A--Regulation System

                                 General



Sec. 102-2.5  What is the Federal Management Regulation (FMR)?

    The Federal Management Regulation (FMR) is the successor regulation 
to the Federal Property Management Regulations (FPMR). It contains 
updated regulatory policies originally found in the FPMR. However, it 
does not contain FPMR material that described how to do business with 
the General Services Administration (GSA). ``How to'' materials on this 
and other subjects are available in customer service guides, handbooks, 
brochures and Internet websites provided by GSA. (See Sec. 102-2.125.)



Sec. 102-2.10  What is the FMR's purpose?

    The FMR prescribes policies concerning property management and 
related administrative activities. GSA issues the FMR to carry out the 
Administrator of General Services' functional responsibilities, as 
established by statutes, Executive orders, Presidential memoranda, 
Circulars and bulletins issued by the Office of Management and Budget 
(OMB), and other policy directives.

[[Page 8]]



Sec. 102-2.15  What is the authority for the FMR system?

    The Administrator of General Services prescribes and issues the FMR 
under the authority of the Federal Property and Administrative Services 
Act of 1949, as amended, 40 U.S.C. 486(c), as well as other applicable 
Federal laws and authorities.



Sec. 102-2.20  Which agencies are subject to the FMR?

    The FMR applies to executive agencies unless otherwise extended to 
Federal agencies in various parts of this chapter. The difference 
between the two terms is that Federal agencies include executive 
agencies plus establishments in the legislative or judicial branch of 
the Government. See paragraphs (a) and (b) of this section for the 
definitions of each term.
    (a) What is an executive agency? An executive agency is any 
executive department or independent establishment in the executive 
branch of the Government, including any wholly-owned Government 
corporation. (See 40 U.S.C. 472(a).)
    (b) What is a Federal agency? A Federal agency is any executive 
agency or any establishment in the legislative or judicial branch of the 
Government (except the Senate, the House of Representatives, and the 
Architect of the Capitol and any activities under that person's 
direction). (See 40 U.S.C. 472(b).)



Sec. 102-2.25  When are other agencies involved in developing the FMR?

    Normally, GSA will ask agencies to collaborate in developing parts 
of the FMR.



Sec. 102-2.30  Where and in what formats is the FMR published?

    Proposed rules are published in the Federal Register. FMR bulletins 
are published in looseleaf format. FMR interim and final rules are 
published in the following formats--
    (a) Federal Register under the ``Rules and Regulations'' section.
    (b) Loose-leaf. (See Sec. 102-2.35.)
    (c) Code of Federal Regulations (CFR), which is an annual 
codification of the general and permanent rules published in the Federal 
Register. The CFR is available on line and in a bound-volume format.
    (d) Electronically on the Internet.



Sec. 102-2.35  How is the FMR distributed?

    (a) A liaison appointed by each agency provides GSA with their 
agency's distribution requirements of the looseleaf version of the FMR. 
Agencies must submit GSA Form 2053, Agency Consolidated Requirements for 
GSA Regulations and Other External Issuances, to--General Services 
Administration, Office of Communications (X), 1800 F Street, NW, 
Washington, DC 20405.
    (b) Order Federal Register and Code of Federal Regulations copies of 
FMR material through your agency's authorizing officer.



Sec. 102-2.40  May an agency issue implementing and supplementing regulations for the FMR?

    Yes, an agency may issue implementing regulations (see Sec. 102-
2.50) to expand upon related FMR material and supplementing regulations 
(see Sec. 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.

                                Numbering



Sec. 102-2.45  How is the FMR numbered?

    (a) All FMR sections are designated by three numbers. The following 
example illustrates the chapter (it's always 102), part, and section 
designations:

[[Page 9]]

[GRAPHIC] [TIFF OMITTED] TR21JY99.001

    (b) In the looseleaf version, the month, year, and number of FMR 
amendments appear at the bottom of each page.



Sec. 102-2.50  How do I number my agency's implementing regulations?

    The first three-digit number represents the chapter number assigned 
to your agency in Title 41 of the CFR. The part and section numbers 
correspond to FMR material. For example, if your agency is assigned 
Chapter 130 in Title 41 of the CFR and you are implementing Sec. 102-
2.60 of the FMR, your implementing section would be numbered Sec. 130-
2.60.



Sec. 102-2.55  How do I number my agency's supplementing regulations?

    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 Sec. 130-601.5.

                               Deviations



Sec. 102-2.60  What is a deviation from the FMR?

    A deviation from the FMR is an agency action or policy that is 
inconsistent with the regulation. (The deviation policy for the FPMR is 
in 41 CFR part 101-1.)



Sec. 102-2.65  When may agencies deviate from the FMR?

    Because, it consists primarily of set policies and mandatory 
requirements, deviation from the FMR should occur infrequently. However, 
to address unique circumstances or to test the effectiveness of 
potential policy changes, agencies may be able to deviate from the FMR 
after following the steps described in Sec. 102-2.80.



Sec. 102-2.70  What are individual and class deviations?

    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).



Sec. 102-2.75  What timeframes apply to deviations?

    Timeframes vary based on the nature of the deviation. However, 
deviations cannot be open-ended. When consulting with GSA about using an 
individual or class deviation, you must set a timeframe for the 
deviation's duration.



Sec. 102-2.80  What steps must an agency take to deviate from the FMR?

    (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 
Sec. 102-2.90.) The written request must fully explain the reasons for 
the deviation, including the benefits that the agency expects to 
achieve.



Sec. 102-2.85  What are the reasons for writing to GSA about FMR deviations?

    The reasons for writing are to:

[[Page 10]]

    (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.



Sec. 102-2.90  Where should my agency send its correspondence on an FMR deviation?

    Send correspondence to: General Services Administration, Regulatory 
Secretariat (MVRS), Office of Governmentwide Policy, 1800 F Street, NW, 
Washington, DC 20405.



Sec. 102-2.95  What information must agencies include in their deviation letters to GSA?

    Agencies must include:
    (a) The title and citation of the FMR provision from which the 
agency wishes to deviate;
    (b) The name and telephone number of an agency contact who can 
discuss the reason for the deviation;
    (c) The reason for the deviation;
    (d) A statement about the expected benefits of using the deviation 
(to the extent possible, expected benefits should be stated in 
measurable terms);
    (e) A statement about possible use of the deviation in other 
agencies or Governmentwide; and
    (f) The duration of the deviation.



Sec. 102-2.100  Must agencies provide GSA with a follow-up analysis of their experience in deviating from the FMR?

    Yes, agencies that deviate from the FMR must also write to the 
relevant GSA program office at the Regulatory Secretariat's address (see 
Sec. 102-2.90) to describe their experiences in using a deviation.



Sec. 102-2.105  What information must agencies include in their follow-up analysis?

    In your follow-up analysis, provide information that may include, 
but should not be limited to, specific actions taken or not taken as a 
result of the deviation, outcomes, impacts, anticipated versus actual 
results, and the advantages and disadvantages of taking an alternative 
course of action.



Sec. 102-2.110  When must agencies provide their follow-up letters?

    (a) For an individual deviation, once the action is complete.
    (b) For a class deviation, at the end of each twelve-month period 
from the time you first took the deviation and at the end of the 
deviation period.

                         Non-Regulatory Material



Sec. 102-2.115  What kinds of non-regulatory material does GSA publish outside of the FMR?

    As GSA converts the FPMR to the FMR, non-regulatory materials in the 
FPMR, such as guidance, procedures, standards, and information, that 
describe how to do business with GSA, will become available in separate 
documents. These documents may include customer service guides, 
handbooks, brochures, Internet websites, and FMR bulletins. GSA will 
eliminate non-regulatory material that is no longer needed.



Sec. 102-2.120  How do I know whom to contact to discuss the regulatory requirements of programs addressed in the FMR?

    Periodically, GSA will issue for your reference an FMR bulletin that 
lists program contacts with whom agencies can discuss regulatory 
requirements. At a minimum, the list will contain organization names and 
telephone numbers for each program addressed in the FMR.



Sec. 102-2.125  What source of information can my agency use to identify materials that describe how to do business with GSA?

    The FMR establishes policy; it does not specify procedures for the 
acquisition of GSA services. However, as a service to users during the 
transition

[[Page 11]]

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.



                            Subpart B--Forms



Sec. 102-2.130  Where are FMR forms prescribed?

    In any of its parts, the FMR may prescribe forms and the 
requirements for using them.



Sec. 102-2.135  How do agencies obtain forms prescribed by the FMR?

    For copies of the forms prescribed by in the FMR, do any of the 
following:
    (a) Write to us at: General Services Administration, National Forms 
and Publications Center (7CPN), Warehouse 4, Dock No. 1, 501 West Felix 
Street, Fort Worth, TX 76115.
    (b) Send e-mail messages to: NFPC@gsa-7FDepot.
    (c) Visit our web site at: www.gsa.gov/forms/forms.htm.



               Subpart C--Plain Language Regulatory Style



Sec. 102-2.140  What elements of plain language appear in the FMR?

    The FMR is written in a ``plain language'' regulatory style. This 
style is easy to read and uses a question and answer format directed at 
the reader, active voice, shorter sentences, and, where appropriate, 
personal pronouns.



Sec. 102-2.145  To what do pronouns refer when used in the FMR?

    Throughout its text, the FMR may contain pronouns such as, but not 
limited to, we, you, and I. When pronouns are used, each subchapter of 
the FMR will indicate whether they refer to the reader, an agency, GSA, 
or some other entity. In general, pronouns refer to who or what must 
perform a required action.

          PART 102-3--ADVISORY COMMITTEE MANAGEMENT [RESERVED]

 PART 102-4--NONDISCRIMINATION IN FEDERAL FINANCIAL ASSISTANCE PROGRAMS 
                               [RESERVED]

                     PARTS 102-5--102-30 [RESERVED]

[[Page 12]]





                     SUBCHAPTER B--PERSONAL PROPERTY



                     PART 102-31--GENERAL [RESERVED]

         PART 102-32--MANAGEMENT OF PERSONAL PROPERTY [RESERVED]

             PART 102-33--MANAGEMENT OF AIRCRAFT [RESERVED]



PART 102-34--MOTOR VEHICLE MANAGEMENT--Table of Contents




Sec.
102-34.5  Preamble.
102-34.10  What definitions apply to motor vehicle management?
102-34.15  What motor vehicles are not covered by this part?
102-34.20  What types of motor vehicle fleets are there?
102-34.25  What sources of supply are available for obtaining motor 
          vehicles?

           Subpart A--Obtaining Fuel Efficient Motor Vehicles

102-34.30  Who must comply with motor vehicle fuel efficiency 
          requirements?
102-34.35  What are the procedures for purchasing and leasing motor 
          vehicles?
102-34.40  How are passenger automobiles classified?
102-34.45  What size motor vehicles may we purchase and lease?
102-34.50  What are fleet average fuel economy standards?
102-34.55  What are the minimum fleet average fuel economy standards?
102-34.60  How do we calculate the average fuel economy for our fleet?
102-34.65  How may we request an exemption from the fuel economy 
          standards?
102-34.70  How does GSA monitor the fuel economy of purchased and leased 
          motor vehicles?
102-34.75  How must we report fuel economy data for passenger 
          automobiles and light trucks we purchase or commercially 
          lease?
102-34.80  Do we report fuel economy data for passenger automobiles and 
          light trucks purchased for our agency by the GSA Automotive 
          Division?
102.-34.85  Do we have to submit a negative report if we don't purchase 
          or lease any motor vehicles in a fiscal year?
102-34.90  Are any motor vehicles exempted from these reporting 
          requirements?
102-34.95  Does fleet average fuel economy reporting affect our 
          acquisition plan?
102-34.100  Where may we obtain help with our motor vehicle acquisition 
          plan?

          Subpart B--Identifying and Registering Motor Vehicles

                      Motor Vehicle Identification

102-34.105  What motor vehicles require motor vehicle identification?
102-34.110  What motor vehicle identification must we put on motor 
          vehicles we purchase or lease?
102-34.115  What motor vehicle identification must the Department of 
          Defense (DOD) put on motor vehicles it purchases or leases?
102-34.120   Where is motor vehicle identification placed on purchased 
          and leased motor vehicles?
102-34.125  Before we sell a motor vehicle, what motor vehicle 
          identification or markings must we remove?

                             License Plates

102-34.130  Must our motor vehicles use Government license plates?
102-34.135  Do we need to register motor vehicles owned or leased by the 
          Government?
102-34.140  Where may we obtain U.S. Government license plates?
102-34.145  How do we display license plates on motor vehicles?
102-34.150  What do we do about a lost or stolen license plate?
102-34.155  What records do we need to keep on U.S. Government license 
          plates?
102-34.160  How are U.S. Government license plates coded and numbered?
102-34.165  How can we get a new license plate code designation?
102-34.170  Are there special licensing procedures for motor vehicles 
          operating in the District of Columbia (DC)?

                        Identification Exemptions

102-34.175  What types of exemptions are there?
102-34.180  May we have a limited exemption from displaying U.S. 
          Government license plates and other motor vehicle 
          identification?
102-34.185  What information must the certification contain?
102-34.190  For how long is a limited exemption valid?
102-34.195  What agencies have an unlimited exemption from displaying 
          U.S. Government license plates and motor vehicle 
          identification?

[[Page 13]]

102-34.200  What agencies have a special exemption from displaying U.S. 
          Government license plates and motor vehicle identification?
102-34.205  What license plates and motor vehicle identification do we 
          use on motor vehicles that are exempt from motor vehicle 
          identification and U.S. Government license plates?
102-34.210  What special requirements apply to exempted motor vehicles 
          operating in the District of Columbia?
102-34.215  Can GSA ask for a listing of exempted motor vehicles?

          Subpart C--Official Use of Government Motor Vehicles

102-34.220  What is official use of a motor vehicle owned or leased by 
          the Government?
102-34.225  May I use a motor vehicle owned or leased by the Government 
          for transportation between my residence and place of 
          employment?
102-34.230  May Government contractors use motor vehicles owned or 
          leased by the Government?
102-34.235  What does GSA do if it learns of unofficial use of a motor 
          vehicle owned or leased by the Government?
102-34.240  How are Federal employees disciplined for misuse of motor 
          vehicles owned or leased by the Government?
102-34.245  How am I responsible for protecting motor vehicles?
102-34.250  Am I bound by State and local traffic laws?
102-34.255  Who pays for parking fees and fines?
102-34.260  Do Federal employees in motor vehicles owned or leased by 
          the Government have to use safety belts?

                Subpart D--Replacement of Motor Vehicles

102-34.265  What are motor vehicle replacement standards?
102-34.270  May we replace a Government-owned motor vehicle sooner?
102-34.275  May we keep a Government-owned motor vehicle even though the 
          standard permits replacement?
102-34.280  How long must we keep a Government-owned motor vehicle?

           Subpart E--Scheduled Maintenance of Motor Vehicles

102-34.285  What kind of maintenance programs must we have?
102-34.290  Must our motor vehicles pass State inspections?
102-34.295  Where can we obtain help in setting up a maintenance 
          program?

               Subpart F--Motor Vehicle Accident Reporting

102-34.300  What forms do I use to report an accident involving a motor 
          vehicle owned or leased by the Government?
102-34.305  To whom do we send accident reports?

                  Subpart G--Disposal of Motor Vehicles

102-34.310  How do we dispose of a motor vehicle in any State, 
          Commonwealth, territory or possession of the United States, or 
          the District of Columbia?
102-34.315  What forms do we use to transfer ownership when selling a 
          motor vehicle?
102-34.320  How do we distribute the completed Standard Form 97?

                    Subpart H--Motor Vehicle Fueling

102-34.325  How do we obtain fuel for motor vehicles?
102-34.330  What Government-issued charge cards may I use to purchase 
          fuel and motor vehicle related services?
102-34.335  What type of fuel do I use in motor vehicles?
102-34.340  Do I have to use self-service fuel pumps?

              Subpart I--Federal Motor Vehicle Fleet Report

102-34.345  What is the Federal Motor Vehicle Fleet Report?
102-34.350  What records do we need to keep?
102-34.355  When and how do we report motor vehicle data?

                            Subpart J--Forms

102-34.360  How do we obtain the forms prescribed in this part?

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).

    Source: 64 FR 59593, Nov. 2, 1999, unless otherwise noted.



Sec. 102-34.5  Preamble.

    (a) This part governs the economical and efficient management and 
control of motor vehicles that the Government owns or leases. Agencies 
will incorporate appropriate provisions of this part into contracts 
offering Government-furnished equipment in order to ensure adequate 
control over the use of motor vehicles.
    (b) The questions and associated answers in this part are regulatory 
in effect. Thus compliance with the written text of this part is 
required by all executive agencies.

[[Page 14]]

    (c) The terms ``we,'' ``I,'' ``our,'' ``you,'' and ``your,'' when 
used in this part, mean you as an executive agency, as your agency's 
fleet manager, or as a motor vehicle user or operator, as appropriate.



Sec. 102-34.10  What definitions apply to motor vehicle management?

    The following definitions apply to motor vehicle management:
    Commercial design motor vehicle means a motor vehicle procurable 
from regular production lines and designed for use by the general 
public.
    Domestic fleet (see Sec. 102-34.20(a)).
    Foreign fleet (see Sec. 102-34.20(b)).
    GSA Fleet lease (see Sec. 102-34.25(d)).
    Large fleet (see Sec. 102-34.20(d)).
    Law enforcement motor vehicle means a passenger automobile or light 
truck 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.
    (4) A motor vehicle seized by a Federal agency that is subsequently 
used for the purpose of performing law enforcement activities.
    Light duty motor vehicle means any motor vehicle with a gross motor 
vehicle weight rating (GVWR) of 8,500 pounds or less.
    Light truck means a motor vehicle on a truck chassis with a gross 
motor vehicle weight rating (GVWR) of 8,500 pounds or less.
    Military design motor vehicle means a motor vehicle (excluding 
general-purpose motor vehicles) designed according to military 
specifications to support directly combat or tactical operations or 
training for such operations.
    Motor vehicle means any vehicle, self-propelled or drawn by 
mechanical power, designed and operated principally for highway 
transportation of property or passengers, but does not include a 
military design motor vehicle or vehicles not covered by this part (see 
Sec. 102-34.15).
    Motor vehicle identification (also referred to as ``motor vehicle 
markings'') means the legends ``For Official Use Only'' and ``U.S. 
Government'' placed on a motor vehicle plus other legends showing the 
full name of the department, agency, establishment, corporation, or 
service by which the motor vehicle is used. This identification is 
usually a decal placed in the rear window or on the side of the motor 
vehicle.
    Motor vehicle lease (see Sec. 102-34.25(b)).
    Motor vehicle markings (see ``Motor vehicle identification'' in this 
section).
    Motor vehicle purchase (see Sec. 102-34.25(a)).
    Motor vehicle rental (see Sec. 102-34.25(c)).
    Motor vehicles transferred from excess (see Sec. 102-34.25(e)).
    Owning agency means the executive agency that holds the vehicle 
title, manufacturer's Certificate of Origin, or is the lessee of a motor 
vehicle lease. This term does not apply to agencies that lease motor 
vehicles from the GSA Fleet.
    Passenger automobile means a sedan or station wagon designed 
primarily to transport people.
    Reportable motor vehicles are vehicles which are reported to GSA as 
outlined in Subpart I of this part:
    (1) Included are sedans, station wagons, buses, ambulances, vans, 
utility motor vehicles, trucks and truck tractors, regardless of fuel 
type.
    (2) Excluded are fire trucks, motorcycles, military-design motor 
vehicles, semi-trailers, trailers and other trailing equipment such as 
pole trailers, dollies, cable reels, trailer coaches and bogies, and 
trucks with permanently mounted equipment such as generators and air 
compressors.
    Small fleet (see Sec. 102-34.20(c)).

[[Page 15]]

    Using agency means a Federal agency that obtains motor vehicles from 
the GSA Fleet, commercial firms or another Federal agency and does not 
hold the vehicle title or manufacturer's Certificate of Origin. However, 
this does not include a Federal agency that obtains a motor vehicle by 
motor vehicle rental.



Sec. 102-34.15  What motor vehicles are not covered by this part?

    Motor vehicles not covered are:
    (a) Designed or used for military field training, combat, or 
tactical purposes;
    (b) Used principally within the confines of a regularly established 
military post, camp, or depot; or
    (c) Used by an agency in the performance of investigative, law 
enforcement, or intelligence duties if the head of such agency 
determines that exclusive control of such vehicle is essential to the 
effective performance of such duties, although such vehicles are subject 
to subpart C and subpart I of this part.



Sec. 102-34.20  What types of motor vehicle fleets are there?

    The types of motor vehicle fleets are:
    (a) Domestic fleet means all reportable agency-owned motor vehicles 
operated in any State, Commonwealth, territory or possession of the 
United States, and the District of Columbia.
    (b) Foreign fleet means all reportable agency-owned motor vehicles 
operated in areas outside any State, Commonwealth, territory or 
possession of the United States, and the District of Columbia.
    (c) Small fleet means a fleet of fewer than 2,000 reportable agency-
owned motor vehicles, worldwide.
    (d) Large fleet means a fleet of 2,000 or more reportable agency-
owned motor vehicles, worldwide.



Sec. 102-34.25  What sources of supply are available for obtaining motor vehicles?

    The following sources of supply are available:
    (a) Motor vehicle purchase means buying a motor vehicle from a 
commercial source, usually a motor vehicle manufacturer or a motor 
vehicle manufacturer's dealership.
    (b) Motor vehicle lease means obtaining a motor vehicle by contract 
or other arrangement from a commercial source for 60 continuous days or 
more.
    (c) Motor vehicle rental means obtaining a motor vehicle by contract 
or other arrangement from a commercial source for less than 60 
continuous days.
    (d) GSA Fleet lease means obtaining a motor vehicle from the General 
Services Administration (GSA Fleet). Where ``lease'' is used alone 
within this part, it refers to ``motor vehicle lease'' in paragraph (b) 
of this section and not GSA Fleet lease.
    (e) Motor vehicles transferred from excess means obtaining a motor 
vehicle reported as excess and transferred with or without cost.



           Subpart A--Obtaining Fuel Efficient Motor Vehicles



Sec. 102-34.30  Who must comply with motor vehicle fuel efficiency requirements?

    Executive agencies located in any State, Commonwealth, territory or 
possession of the United States, and the District of Columbia which 
operate motor vehicles owned or leased by the Government in the conduct 
of official business. This subpart does not apply to motor vehicles 
exempted by law or other regulations, such as law enforcement and motor 
vehicles in foreign areas. Other Federal agencies are encouraged to 
comply so that maximum energy conservation benefits may be realized in 
obtaining, operating, and managing motor vehicles owned or leased by the 
Government.



Sec. 102-34.35  What are the procedures for purchasing and leasing motor vehicles?

    Procedures for purchasing and leasing motor vehicles can be found in 
subpart 101-26.5 of this title.



Sec. 102-34.40  How are passenger automobiles classified?

    Passenger automobiles are classified in the following table:

------------------------------------------------------------------------
                                     Station wagon
            Sedan class                  class        Descriptive name
------------------------------------------------------------------------
I.................................  I               Subcompact.
II................................  II              Compact.

[[Page 16]]

 
III...............................  III             Midsize
IV................................  IV              Large.
V.................................  ..............  Limousine.
------------------------------------------------------------------------



Sec. 102-34.45  What size motor vehicles may we purchase and lease?

    (a) You must select motor vehicles to achieve maximum fuel 
efficiency.
    (b) Limit motor vehicle body size, engine size and optional 
equipment to what is essential to meet your agency's mission.
    (c) With the exception of motor vehicles used by the President and 
Vice President and motor vehicles for security and highly essential 
needs, you must purchase and lease midsize (class III) or smaller 
sedans.
    (d) Purchase and lease large (class IV) sedans only when such motor 
vehicles are essential to your agency's mission.



Sec. 102-34.50  What are fleet average fuel economy standards?

    (a) The minimum miles per gallon that a fleet of motor vehicles 
purchased or leased by an executive agency must obtain. The need to meet 
these standards is set forth in 49 U.S.C. 32917, Standards for Executive 
Agency Automobiles, and Executive Order 12375, Motor Vehicles. These 
standards have two categories:
    (1) Average fuel economy standard for all passenger automobiles.
    (2) Average fuel economy standard for light trucks.
    (b) These standards do not apply to passenger automobiles and light 
trucks designed to perform combat-related missions for the U.S. Armed 
Forces or motor vehicles designed for use in law enforcement or 
emergency rescue work.



Sec. 102-34.55  What are the minimum fleet average fuel economy standards?

    The minimum fleet average fuel economy standards appear in the 
following table:

                Fleet Average Fuel Economy Standards \a\
------------------------------------------------------------------------
                                                 Passsenger      Light
                 Fiscal year                   automobile \1\  truck \2\
------------------------------------------------------------------------
1995.........................................          27.5     20.6 \3\
1996.........................................          27.5     20.7 \3\
1997.........................................          27.5     20.7 \3\
1998.........................................          27.5     20.7 \3\
1999.........................................          27.5     20.7 \3\
2000 & beyond................................          27.5        (\4\)
------------------------------------------------------------------------
\a\ These figures represent miles/gallon.
\1\ Established by section 49 U.S.C. 32902 and the Secretary of
  Transportation.
\2\ Fleet average fuel economy standard set by the Secretary of
  Transportation and mandated by Executive Order 12375 beginning in
  fiscal year 1982.
\3\ Fleet average fuel economy for light trucks is the combined fleet
  average fuel economy for all 4  x  2 and 4  x  4 light trucks.
\4\ Requirements not yet set by the Secretary of Transportation.



Sec. 102-34.60  How do we calculate the average fuel economy for our fleet?

    (a) Due to the variety of motor vehicle configurations, you must 
take an average of all motor vehicles, by category (passenger 
automobiles or light truck) purchased and leased by your agency during 
the fiscal year. This calculation is the sum of passenger automobiles or 
light trucks that your executive agency purchases or leases from 
commercial sources divided by the sum of the fractions representing the 
number of motor vehicles of each category by model divided by the 
unadjusted city/highway mile-per-gallon ratings for that model, 
developed by the Environmental Protection Agency (EPA) for each fiscal 
year. The EPA mile-per-gallon rating for each motor vehicle make, model, 
and model year may be obtained from the: General Services 
Administration, Attn: FFA, Washington, DC 20406.
    (b) An example follows:

    Light trucks: i. 600 light trucks acquired in a specific year. These 
are broken down into:
    A. 200 Six cylinder automatic transmission pick-up trucks, EPA 
rating: 24.3 mpg, plus
    B. 150 Six cylinder automatic transmission mini-vans, EPA rating 
24.8 mpg, plus
    C. 150 Eight cylinder automatic transmission pick-up trucks, EPA 
rating: 20.4 mpg, plus
    D. 100 Eight cylinder automatic transmission cargo vans, EPA rating: 
22.2 mpg.

[[Page 17]]

[GRAPHIC] [TIFF OMITTED] TR02NO99.009

    ii. Fleet average fuel economy for light trucks in this case is 23.0 
mpg.



Sec. 102-34.65  How may we request an exemption from the fuel economy standards?

    (a) You must submit your reasons for the exemption in a written 
request to the: Administrator of General Services, ATTN: MTV, 
Washington, DC 20405.
    (b) GSA will review the request and advise you of the determination 
within 30 days of receipt. Passenger automobiles and light trucks 
exempted under the provisions of this section must not be included in 
calculating your fleet average fuel economy.



Sec. 102-34.70  How does GSA monitor the fuel economy of purchased and leased motor vehicles?

    (a) Executive agencies report to GSA their leases and purchases of 
passenger automobiles and light trucks. GSA keeps a master record of the 
miles per gallon for passenger automobiles and light trucks acquired by 
each agency during the fiscal year. GSA verifies that each agency's 
passenger automobile and light truck leases and purchases achieve the 
fleet average fuel economy for the applicable fiscal year, as required 
by Executive Order 12375.
    (b) The GSA Federal Vehicle Policy Division (MTV) issues information 
about the EPA miles-per-gallon ratings to executive agencies at the 
beginning of each fiscal year to help agencies with their acquisition 
plans.



Sec. 102-34.75  How must we report fuel economy data for passenger automobiles and light trucks we purchase or commercially lease?

    (a) You must send copies or synopses of motor vehicle leases and 
purchases to GSA. Use the unadjusted combined city/highway mile-per-
gallon ratings for passenger automobiles and light trucks developed each 
fiscal year by the Environmental Protection Agency (EPA). All 
submissions for a fiscal year must reach GSA by December 1 of the next 
fiscal year. Submit the information as soon as possible after the 
purchase or effective date of each lease to the: General Services 
Administration, ATTN: MTV, Washington, DC 20405. Email: 
vehicle.policy@gsa.gov.
    (b) Include in your submission to GSA motor vehicles purchased or 
leased by your agency for use in any State, Commonwealth, territory or 
possession of the United States, and the District of Columbia.
    (c) Your submission to GSA must include:
    (1) Number of passenger automobiles and light trucks, by category.
    (2) Year.
    (3) Make.
    (4) Model.
    (5) Transmission type (if manual, number of forward speeds).
    (6) Cubic inch displacement of engine.
    (7) Fuel type (i.e., gasoline, diesel, or type of alternative fuel).
    (8) Monthly lease cost, if applicable.

    Note to Sec. 102-34.75: Do not include passenger automobile and 
light truck lease renewal options as new acquisition motor vehicle 
leases. Do not report passenger automobiles and light trucks exempted 
from fleet

[[Page 18]]

average fuel economy standards (see Sec. 102-34.50(b) and Sec. 102-
34.65).



Sec. 102-34.80  Do we report fuel economy data for passenger automobiles and light trucks purchased for our agency by the GSA Automotive Division?

    No. The GSA Automotive Division provides information for passenger 
automobiles and light trucks it purchases for agencies.



Sec. 102-34.85  Do we have to submit a negative report if we don't purchase or lease any motor vehicles in a fiscal year?

    Yes, you must submit a negative report if you don't purchase or 
lease any motor vehicles in a fiscal year.



Sec. 102-34.90  Are any motor vehicles exempted from these reporting requirements?

    Yes. You do not need to report passenger automobiles and light 
trucks that are:
    (a) Purchased or leased for use outside any State, Commonwealth, 
territory or possession of the United States, or the District of 
Columbia.
    (b) Designed to perform combat-related missions for the U.S. Armed 
Forces.
    (c) Designed for use in law enforcement or emergency rescue work.



Sec. 102-34.95  Does fleet average fuel economy reporting affect our acquisition plan?

    It may. If previous motor vehicle purchases and leases have caused 
your fleet to fail to meet the required fuel economy by the end of the 
fiscal year, GSA may encourage you to adjust future requests to meet 
fuel economy requirements.



Sec. 102-34.100  Where may we obtain help with our motor vehicle acquisition plans?

    For help with your motor vehicle acquisition plan, contact the: 
General Services Administration, Attn: MTV, Washington, DC 20405. Email: 
vehicle.policy@gsa.gov



          Subpart B--Identifying and Registering Motor Vehicles

                      Motor Vehicle Identification



Sec. 102-34.105  What motor vehicles require motor vehicle identification?

    All motor vehicles owned or leased by the Government must display 
motor vehicle identification unless exempted under Sec. 102-34.180, 
Sec. 102-34.195, or Sec. 102-34.200.



Sec. 102-34.110  What motor vehicle identification must we put on motor vehicles we purchase or lease?

    (a) For motor vehicles with rear windows, display:
    (1) ``For Official Use Only,'' in letters \1/2\ to \3/4\ inch high.
    (2) ``U.S. Government'' in letters \3/4\ to 1 inch high; and
    (3) The full name of the department, agency, establishment, 
corporation, or service owning or leasing the motor vehicle (in letters 
1 to 1\1/2\ inch high), or in the alternative, a title that describes 
the activity in which it is operated (if the title readily identifies 
the department, agency, establishment, corporation, or service 
concerned).
    (b) For other than motor vehicle rear windows, display the motor 
vehicle identification in paragraphs (a)(1) through (3) of this section, 
but:
    (1) Use letters 1 to 1\1/2\ inches high in colors contrasting to the 
motor vehicle.
    (2) If you use subsidiary words or titles of subordinate units, use 
letters \1/2\ inch to \3/4\ inch high.
    (c) The preferred material is a decal of elastomeric pigmented film 
type for ease of application and removal.

    Note to Sec. 102-34.110: Each agency or activity is responsible for 
acquiring its own decals. Replace this motor vehicle identification when 
necessary due to damage or wear.



Sec. 102-34.115  What motor vehicle identification must the Department of Defense (DOD) put on motor vehicles it purchases or leases?

    The following must appear on DOD purchased or leased motor vehicles:
    (a) ``For Official Use Only;''
    (b) An appropriate title for the DOD component; and

[[Page 19]]

    (c) The DOD code and registration number assigned by the DOD 
component accountable for the motor vehicle.



Sec. 102-34.120  Where is motor vehicle identification placed on purchased and leased motor vehicles?

    (a) On most motor vehicles. On the left side of the rear window, 
1\1/2\ inches or less from the bottom of the window.
    (b) On motor vehicles without rear windows or where identification 
on the rear window would not be easily seen. Centered on both front 
doors or in any appropriate position on each side of the motor vehicle.
    (c) On trailers. Centered on both sides of the front quarter of the 
trailer in a conspicuous location.



Sec. 102-34.125  Before we sell a motor vehicle, what motor vehicle identification or markings must we remove?

    You must remove all motor vehicle identification before you transfer 
the title or deliver the motor vehicle.

                             License Plates



Sec. 102-34.130  Must our motor vehicles use Government license plates?

    Yes you must use Government license plates, with the exception of 
motor vehicles exempted under Sec. 102-34.180, Sec. 102-34.195, and 
Sec. 102-34.200.



Sec. 102-34.135  Do we need to register motor vehicles owned or leased by the Government?

    For a motor vehicle owned or leased by the Government that is 
regularly based or operated outside the District of Columbia and 
displaying U.S. Government license plates and motor vehicle 
identification, you need not register it in a State, Commonwealth, 
territory or possession of the United States. Motor vehicles exempted 
under Sec. 102-34.180, Sec. 102-34.195, or Sec. 102-34.200 must be 
registered and inspected in accordance with the laws of the State, 
Commonwealth, territory or possession of the United States where the 
motor vehicle is regularly operated.



Sec. 102-34.140  Where may we obtain U.S. Government license plates?

    For detailed instructions and an ordering form to obtain U.S. 
Government license plates, contact the: Superintendent of Industries, 
District of Columbia, Department of Corrections, Lorton, VA 22079.

    Note to Sec. 102-34.140: You may, but are not required to obtain 
license plates from the District of Columbia, Department of Corrections.



Sec. 102-34.145  How do we display license plates on motor vehicles?

    (a) Display official U.S. Government license plates on the front and 
rear of all motor vehicles owned or leased by the Government. The 
exception is two-wheeled motor vehicles, which require rear license 
plates only.
    (b) You must display U.S. Government license plates on the motor 
vehicle to which the license plates were assigned.
    (c) Display the U.S. Government license plates until the motor 
vehicle is removed from Government service or is transferred, or until 
the plates are damaged and require replacement.
    (d) For motor vehicles owned or leased by DOD, follow DOD 
regulations.



Sec. 102-34.150  What do we do about a lost or stolen license plate?

    You should report the loss or theft of license plates as follows:
    (a) U.S. Government license plates. Tell your local security office 
(or equivalent) and local police.
    (b) District of Columbia or State license plates. Tell your local 
security office (or equivalent) and either the District of Columbia, 
Department of Transportation, or the State agency, as appropriate.



Sec. 102-34.155  What records do we need to keep on U.S. Government license plates?

    You must keep a central record of all U.S. Government license plates 
for your agency's motor vehicle purchases and motor vehicle leases. The 
GSA Fleet must keep such a record for GSA Fleet vehicles. The record 
must identify:
    (a) The motor vehicle to which each set of plates is assigned.
    (b) The complete history of any reassigned plates.
    (c) A list of destroyed or voided license plate numbers.

[[Page 20]]



Sec. 102-34.160  How are U.S. Government license plates coded and numbered?

    U.S. Government license plates, except those issued by the District 
of Columbia, Department of Transportation, under Sec. 102-34.170, will 
be numbered serially for each executive agency, beginning with 101, and 
preceded by a letter code that designates the owning agency for the 
motor vehicle as follows:

Agriculture, Department of--A
Air Force, Department of the--AF
Army, Department of the--W
Commerce, Department of--C
Consumer Product Safety Commission--CPSC
Corps of Engineers, Civil Works--CE
Defense, Department of--D
Defense Commissary Agency--DECA
Defense Contract Audit Agency--DA
Defense Logistics Agency--DLA
District of Columbia Redevelopment Land Agency--LA
Energy, Department of--E
Enrichment Corporation, U.S--EC
Environmental Protection Agency--EPA
Executive Office of the President--EO Council of Economic Advisers, 
National Security Council, Office of Management and Budget--EO
Federal Communications Commission--FC
Federal Deposit Insurance Corporation--FD
Federal Emergency Management Agency--FE
Federal Mediation and Conciliation Service--FM
General Services Administration--GS
Government Printing Office--GP
GSA Fleet--G
Health and Human Services, Department of--HHS
Interior, Department of the--I
Judicial Branch of the Government--JB
Justice, Department of--J
Labor, Department of--L
Legislative Branch--LB
Marine Corps--MC
National Aeronautics and Space Administration--NA
National Capital Planning Commission--NP
National Guard Bureau--NG
National Labor Relations Board--NL
National Science Foundation--NS
Navy, Department of the--N
Nuclear Regulatory Commission--NRC
Office of Personnel Management--OPM
Panama Canal Commission--PC
Railroad Retirement Board--RR
Selective Service System--SS
Small Business Administration--SB
Smithsonian Institution, National Gallery of Art--SI
Soldiers' and Airmen's Home, U.S--SH
State, Department of--S
Tennessee Valley Authority--TV
Transportation, Department of--DOT
Treasury, Department of the--T
United States Information Agency--IA
United States Postal Service--P
Veterans Affairs, Department of--VA



Sec. 102-34.165  How can we get a new license plate code designation?

    To get a new license plate code designation, write to the: General 
Services Administration, Attn: MTV, Washington, DC 20405. Email: 
vehicle.policy@gsa.gov



Sec. 102-34.170  Are there special licensing procedures for motor vehicles operating in the District of Columbia (DC)?

    Yes. DC Code, section 40-102(d)(2), requires the issuance of license 
plates, without charge, for all motor vehicles owned or leased by the 
Government at the time the motor vehicle is registered or reregistered.
    (a) You must register motor vehicles that are regularly based or 
operated in DC with the DC Department of Transportation. Your 
application to register must include a manufacturer's Certificate of 
Origin, bill of sale, or other document attesting Government ownership. 
Forms for registering motor vehicles are available from the District of 
Columbia, Department of Transportation.
    (b) Motor vehicles owned or leased by the Government and licensed in 
the District of Columbia may have the letter code designation prescribed 
in Sec. 102-34.160 stenciled in the blank space beside the embossed 
numbers. If you add a letter code designation, stencil it on the license 
plate so that the letters resemble the embossed numbers in size and 
color. License plates issued by the District of Columbia without an 
agency letter code designation will usually have the letter code 
designation ``US''.
    (c) Transfer of U.S. Government license plates issued by the 
District of Columbia between your agency's own motor vehicles requires 
prior approval from the District of Columbia, Department of 
Transportation.
    (d) You must have each registered motor vehicle inspected annually 
according to section 40-204 of the District of Columbia Code and 
applicable regulations. The District of Columbia

[[Page 21]]

issues an inspection verification sticker for each motor vehicle that 
passes inspection. Inspections and stickers are free.
    (e) Return damaged or mutilated license plates to the District of 
Columbia, Department of Transportation, for cancellation. Also return 
license plates when you transfer a motor vehicle regularly based or 
operated in the District of Columbia to operation in a field area, 
another agency, or remove the motor vehicle from Government service.

[64 FR 59593, Nov. 2, 1999; 64 FR 66967, Nov. 30, 2000]

                        Identification Exemptions



Sec. 102-34.175  What types of exemptions are there?

    (a) Limited exemption.
    (b) Unlimited exemption.
    (c) Special exemption.



Sec. 102-34.180  May we have a limited exemption from displaying U.S. Government license plates and other motor vehicle identification?

    Yes. The head of your agency or designee may authorize a limited 
exemption to the display of U.S. Government license plates and motor 
vehicle identification upon written certification. (See Sec. 102-
34.185.) For motor vehicles leased from the GSA Fleet, send an 
information copy of this certification to the: General Services 
Administration, Attn: FFF, Washington, DC 20406.

    Note to Sec. 102-34.180: Not eligible for exemption are motor 
vehicles regularly used for common administrative purposes and not 
directly connected to investigative, law enforcement or intelligence 
duties involving security activities.



Sec. 102-34.185  What information must the certification contain?

    The certification must state either:
    (a) That the motor vehicle is used primarily for investigative, law 
enforcement or intelligence duties involving security activities and 
that identifying the motor vehicle would interfere with those duties; or
    (b) That identifying the motor vehicle would endanger the security 
of the vehicle occupants.



Sec. 102-34.190  For how long is a limited exemption valid?

    An exemption granted in accordance with Sec. 102-34.180 and 
Sec. 102-34.185 may last from one day up to one year. If the requirement 
for exemption still exists at the end of the year, your agency must re-
certify the continued exemption. For a motor vehicle leased from the GSA 
Fleet, send a copy of the re-certification to the: General Services 
Administration, ATTN: FFF, Washington, DC 20406.



Sec. 102-34.195  What agencies have an unlimited exemption from displaying U.S. Government license plates and motor vehicle identification?

    The following Federal agencies, or activities within agencies, are 
granted an unlimited exemption based on ongoing mission requirements and 
do not need to certify:
    (a) Administrative Office of the United States Courts. All motor 
vehicles used by United States probation offices and pretrial services 
agencies of the judicial branch of the U.S. Government.
    (b) Department of Agriculture. Motor vehicles used for investigative 
or law enforcement activities by the Agricultural Marketing Service, 
Animal and Plant Health Inspection Service, Food Safety and Inspection 
Service, Forest Service, Grain Inspection, Packers and Stockyard 
Administration, Packers and Stockyard Program, Food and Consumers 
Service, and Office of the Inspector General.
    (c) Department of Commerce. Motor vehicles used for surveillance and 
other law enforcement activities by the Office of Export Enforcement, 
International Trade Administration, the National Marine Fisheries 
Service, and the National Oceanic and Atmospheric Administration.
    (d) Department of Defense. Motor vehicles used for intelligence, 
investigative, or security activities by the U.S. Army Intelligence 
Agency and the Criminal Investigation Command of the Department of the 
Army; Office of Naval Intelligence of the Department of the Navy; Office 
of Special Investigations of the Department of the Air Force; the 
Defense Criminal Investigation Service, Office of the Inspector

[[Page 22]]

General; and the Defense Logistics Agency.
    (e) District of Columbia. Motor vehicles used by St. Elizabeth's 
Hospital in outpatient work where identifying the motor vehicles would 
be prejudicial to patients.
    (f) Department of Education. Motor vehicles used for investigative 
and law enforcement activities by the Office of the Inspector General.
    (g) Department of Energy. Motor vehicles used for investigative or 
security activities.
    (h) Environmental Protection Agency. Motor vehicles used for 
investigative and law enforcement activities by the Office of Inspector 
General and the Office of Enforcement and Compliance Assurance.
    (i) Federal Communications Commission. Motor vehicles used for 
investigative activities by the Field Operations Bureau.
    (j) General Services Administration. Motor vehicles used for 
investigative, surveillance, and security activities by special agents 
of the Federal Protective Service, and Office of the Inspector General.
    (k) Department of Health and Human Services. Motor vehicles used for 
undercover law enforcement and similar investigative work by the Food 
and Drug Administration; motor vehicles used to transport mentally 
disturbed children by the National Institutes of Health; and motor 
vehicles used for law enforcement and investigative purposes by the 
Office of Investigations and the Office of the Inspector General.
    (l) Department of Housing and Urban Development. Motor vehicles used 
for law enforcement or investigative purposes by the Office of the 
Inspector General.
    (m) Department of the Interior. Motor vehicles used to enforce game 
laws by the U.S. Fish and Wildlife Service; motor vehicles assigned to 
special agents of the Bureau of Land Management who investigate crimes 
against public lands; motor vehicles assigned to special officers of the 
Bureau of Indian Affairs; motor vehicles used for investigating crimes 
against public lands by the National Park Service and assigned to the 
U.S. Park Police; and motor vehicles assigned to the special agents of 
the Office of the Inspector General who investigate possible crimes of 
fraud and abuse by departmental employees, contractors, and grantees.
    (n) Department of Justice. All motor vehicles used for undercover 
law enforcement activities or investigative work by the Department.
    (o) Department of Labor. All motor vehicles used for investigative, 
law enforcement, and compliance activities by the Employment and 
Training Administration, Occupational Safety and Health Administration, 
Employment Standards Administration, and the Mine Safety and Health 
Administration.
    (p) National Aeronautics and Space Administration. Motor vehicles 
used for investigative or law enforcement activities.
    (q) National Labor Relations Board. Motor vehicles used for 
investigative activities by field offices.
    (r) National Security Council. Motor vehicles used by the Central 
Intelligence Agency.
    (s) Nuclear Regulatory Commission. Motor vehicles used for the 
conduct of security operations or in the enforcement of security 
regulations.
    (t) Office of Personnel Management. Motor vehicles used for the 
investigative program of the Office of Personnel Investigations and 
regional investigation activities.
    (u) United States Postal Service. Motor vehicles that the Postal 
Inspection Service uses for investigative and law enforcement 
activities.
    (v) Department of State. Motor vehicles used for protecting domestic 
and foreign dignitaries and investigating passport and visa fraud.
    (w) Department of Transportation. Motor vehicles used for 
intelligence, investigative, or security activities by the Office of the 
Inspector General, the OST Office of Security, the Investigations and 
Security Division and field counterparts in the U.S. Coast Guard, the 
Office of Civil Aviation Security and field counterparts in the Federal 
Aviation Administration, and the Idaho Division Office of Motor Carriers 
in the Federal Highway Administration.

[[Page 23]]

    (x) Department of Treasury. Motor vehicles used by the U.S. Secret 
Service; the Criminal Investigation Division and the Internal Security 
Division of the Internal Revenue Service; motor vehicles used for 
investigative activities by the Collection Division of the Internal 
Revenue Service; motor vehicles used by the Office of Enforcement and 
the Office of Inspection at the Bureau of Alcohol, Tobacco, and 
Firearms; and motor vehicles used by the Office of Enforcement, Office 
of Compliance Operations, and the Office of Internal Affairs at the U.S. 
Customs Service.
    (y) Department of Veterans Affairs. Motor vehicles used for 
investigative activities by the Office of the Inspector General and 
regional Field Examiners and Property Management Inspectors.



Sec. 102-34.200  What agencies have a special exemption from displaying U.S. Government license plates and motor vehicle identification?

    Motor vehicles assigned for the use of the President and the heads 
of executive departments specified in 5 U.S.C. 101 are exempt from the 
requirement to display motor vehicle identification. All motor vehicles, 
other than those assigned for the personal use of the President, will 
display official U.S. Government license plates.



Sec. 102-34.205  What license plates and motor vehicle identification do we use on motor vehicles that are exempt from motor vehicle identification and U.S. 
          Government license plates?

    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.



Sec. 102-34.210  What special requirements apply to exempted motor vehicles operating in the District of Columbia?

    If your agency wants to use regular District of Columbia license 
plates for motor vehicles exempt from displaying U.S. government license 
plates and motor vehicle identification, your agency head must designate 
an official to authorize them. Provide the name and facsimile signature 
of that official to the District of Columbia, Department of 
Transportation, annually.



Sec. 102-34.215  Can GSA ask for a listing of exempted motor vehicles?

    Yes. If asked, the head of each executive agency must submit a 
report concerning motor vehicles exempted under this subpart. This 
report, which has been assigned interagency report control number 1537-
GSA-AR, should be submitted to the: General Services Administration, 
ATTN: MTV, Washington, DC 20405. Email: vehicle.policy@gsa.gov



          Subpart C--Official Use of Government Motor Vehicles



Sec. 102-34.220  What is official use of a motor vehicle owned or leased by the Government?

    Official use of a motor vehicle is using a motor vehicle to perform 
your agency's mission(s), as authorized by your agency.



Sec. 102-34.225  May I use a motor vehicle owned or leased by the Government for transportation between my residence and place of employment?

    No, you may not use a Government motor vehicle for transportation 
between your residence and place of employment unless your agency 
authorizes such use after making the necessary determination under 31 
U.S.C. 1344 and subpart 101-6.4 of this title. Your agency must keep a 
copy of the written authorization within the agency and monitor the use 
of these motor vehicles.



Sec. 102-34.230  May Government contractors use motor vehicles owned or leased by the Government?

    Yes, Government contractors may use Government motor vehicles when 
authorized under applicable procedures and the following conditions:
    (a) Motor vehicles are used for official purposes only and solely in 
the performance of the contract.
    (b) Motor vehicles cannot be used for transportation between 
residence and place of employment, unless authorized in accordance with 
31 U.S.C. 1344 and subpart 101-6.4 of this title.
    (c) Contractors must:

[[Page 24]]

    (1) Establish and enforce suitable penalties against employees who 
use, or authorize the use of, such motor vehicles for unofficial 
purposes or for other than in the performance of the contract; and
    (2) Pay any expenses or cost, without Government reimbursement, for 
using such motor vehicles other than in the performance of the contract.



Sec. 102-34.235  What does GSA do if it learns of unofficial use of a motor vehicle owned or leased by the Government?

    GSA reports the matter to the head of the agency employing the motor 
vehicle operator. The employing agency investigates and may, if 
appropriate, take disciplinary action under 31 U.S.C. 1349 or may report 
the violation to the Attorney General for prosecution under 18 U.S.C. 
641.



Sec. 102-34.240  How are Federal employees disciplined for misuse of motor vehicles owned or leased by the Government?

    If an employee willfully uses, or authorizes the use of, a motor 
vehicle for other than official purposes, the employee is subject to 
suspension of at least one month or, up to and including, removal by the 
head of the agency (31 U.S.C. 1349).



Sec. 102-34.245  How am I responsible for protecting motor vehicles?

    When a Government-owned or -leased motor vehicle is under your 
control, you must:
    (a) Park or store the vehicle in a manner that reasonably protects 
it from theft or damage.
    (b) Lock the unattended motor vehicle. (The only exception to this 
requirement is when fire regulations or other directives prohibit 
locking motor vehicles in closed buildings or enclosures.)



Sec. 102-34.250  Am I bound by State and local traffic laws?

    Yes. You must obey all motor vehicle traffic laws of the State and 
local jurisdiction, except when the duties of your position require 
otherwise. You are personally responsible if you violate State or local 
traffic laws. If you are fined or otherwise penalized for an offense you 
commit while performing your official duties, but which was not required 
as part of your official duties, payment is your personal 
responsibility.



Sec. 102-34.255  Who pays for parking fees and fines?

    You must pay parking fees while operating a motor vehicle owned or 
leased by the Government. However, you can expect to be reimbursed for 
parking fees incurred while performing official duties. Conversely, if 
you are fined for a parking violation while operating a motor vehicle 
owned or leased by the Government, payment is your personal 
responsibility and you will not be reimbursed.



Sec. 102-34.260  Do Federal employees in motor vehicles owned or leased by the government have to use safety belts?

    Yes Federal employees must use safety belts, when there is a safety 
belt.



                Subpart D--Replacement of Motor Vehicles



Sec. 102-34.265  What are motor vehicle replacement standards?

    Motor vehicle replacement standards specify the minimum number of 
years in use or miles traveled at which an executive agency may replace 
a Government-owned motor vehicle (see Sec. 102-34.280) .



Sec. 102-34.270  May we replace a Government-owned motor vehicle sooner?

    Yes. You may replace a Government-owned motor vehicle if it needs 
body or mechanical repairs that exceed the fair market value of the 
motor vehicle. Determine the fair market value by adding the current 
market value of the motor vehicle plus any capitalized motor vehicle 
additions (such as a utility body or liftgate) or repairs. Your agency 
head or designee must review the replacement in advance.



Sec. 102-34.275  May we keep a Government-owned motor vehicle even though the standard permits replacement?

    Yes. The replacement standard is a minimum only, and therefore, you 
may

[[Page 25]]

keep a Government-owned motor vehicle longer than shown in Sec. 102-
34.280 if the motor vehicle can be operated without excessive 
maintenance costs or substantial reduction in resale value.



Sec. 102-34.280  How long must we keep a Government-owned motor vehicle?

    You must keep a motor vehicle owned or leased by the Government for 
at least the years or miles shown in the following table:

                 Table of Minimum Replacement Standards
------------------------------------------------------------------------
                                                                or Miles
                Motor vehicle type                  Years \a\     \a\
------------------------------------------------------------------------
Sedans/Station Wagons.............................          3     60,000
Ambulances........................................          7     60,000
Buses:
  Intercity.......................................        n/a    280,000
  City............................................        n/a    150,000
  School..........................................        n/a     80,000
Trucks:
  Less than 12,500 pounds GVWR....................          6     50,000
  12,500-23,999 pounds GVWR.......................          7     60,000
  24,000 pounds GVWR and over.....................          9     80,000
  4- or 6-wheel drive motor vehicles..............          6     40,000
------------------------------------------------------------------------
\a\ Minimum standards are stated in both years and miles; use whichever
  occurs first.



           Subpart E--Scheduled Maintenance of Motor Vehicles



Sec. 102-34.285  What kind of maintenance programs must we have?

    You must have a scheduled maintenance program for each motor vehicle 
you own or lease. This requirement applies to motor vehicles operated in 
any State, Commonwealth, territory or possession of the United States, 
and the District of Columbia. The GSA Fleet will develop maintenance 
programs for GSA Fleet vehicles. The scheduled maintenance program must:
    (a) Meet Federal, State, and local emission standards;
    (b) Meet manufacturer warranty requirements;
    (c) Ensure the safe and economical operating condition of the motor 
vehicle throughout its life; and
    (d) Ensure that inspections and servicing occur as recommended by 
the manufacturer or more often if local operating conditions require.



Sec. 102-34.290  Must our motor vehicles pass State inspections?

    Yes your motor vehicles must pass State inspections, where mandated.
    (a) Each motor vehicle owned or leased by the Government must pass 
Federally-mandated emission inspections in the jurisdictions in which 
they operate when required by State motor vehicle administrations or 
State environmental departments. You must reimburse State activities for 
the cost of these inspections if the fee is not waived. GSA will pay the 
cost of these inspections for motor vehicles leased from the GSA Fleet.
    (b) Motor vehicles owned or leased by the Government that are 
exempted from the display of U.S. Government license plates and motor 
vehicle identification must comply with emission and mechanical 
inspection programs of the State, Commonwealth, territory or possession 
of the United States or the District of Columbia in which they are 
regularly operated. Your agency must pay for these inspections, unless 
the fee is waived. Payment for these inspections for motor vehicles 
leased from the GSA Fleet are the responsibility of the using agency.



Sec. 102-34.295  Where can we obtain help in setting up a maintenance program?

    For help in setting up a maintenance programs, contact the: General 
Services Administration, Attn: MTV, Washington, DC 20405. Email: 
vehicle.policy@gsa.gov



               Subpart F--Motor Vehicle Accident Reporting



Sec. 102-34.300  What forms do I use to report an accident involving a motor vehicle owned or leased by the Government?

    GSA recommends the following forms for use to report an accident in 
any State, Commonwealth, territory or possession of the United States 
and the District of Columbia. The forms should be carried in any motor 
vehicle owned or leased by the Government.
    (a) Standard Form 91, Motor Vehicle Accident Report. The motor 
vehicle operator should complete this form at the time and scene of the 
accident if possible, even if damage to the motor vehicle is not 
noticeable.

[[Page 26]]

    (b) Standard Form 94, Statement of Witness. This form should be 
completed by any witness to the accident.



Sec. 102-34.305  To whom do we send accident reports?

    Send accident reports as follows:
    (a) If the motor vehicle is owned or leased by your agency, follow 
your internal agency directives.
    (b) If the motor vehicle is managed by the GSA Fleet, report the 
accident to GSA in accordance with subpart 101-39.4 of this title.



                  Subpart G--Disposal of Motor Vehicles



Sec. 102-34.310  How do we dispose of a motor vehicle in any State, Commonwealth, territory or possession of the United States, or the District of Columbia?

    After meeting the replacement standards under subpart D of this 
part, you may dispose of a Government-owned motor vehicle by 
transferring the motor vehicle title, or manufacturer's Certificate of 
Origin, to the new owner. Detailed instructions on the disposal process 
are in parts 101-45 and 101-46 of this title.



Sec. 102-34.315  What forms do we use to transfer ownership when selling a motor vehicle?

    Use the following forms to transfer ownership:
    (a) Standard Form 97, The United States Government Certificate to 
Obtain Title to a Motor Vehicle, if both of the following apply:
    (1) The motor vehicle will be retitled by a State, Commonwealth, 
territory or possession of the United States or the District of 
Columbia; and
    (2) The purchaser intends to operate the motor vehicle on highways.

    Note to Sec. 102-34.315(a)(2):
    Do not use Standard Form 97 if the Government-owned motor vehicle is 
either not designed or not legal for operation on highways. Examples are 
construction equipment, farm machinery, and certain military-design 
motor vehicles. Instead, use an appropriate bill of sale or award 
document. Examples are Optional Form 16, Sales Slip-Sale of Government 
Personal Property, and Standard Form 114, Sale of Government Property--
Bid and Award.

    (b) Standard Form 97 is optional in foreign countries because 
foreign governments may require the use of other forms.

    Note to Sec. 102-34.315: The original Standard Form 97 is printed on 
secure paper to identify readily any attempt to alter the form. The form 
is also pre-numbered to prevent duplicates. State motor vehicle agencies 
may reject certificates showing erasures or strikeovers.



Sec. 102-34.320  How do we distribute the completed Standard Form 97?

    Standard Form 97 is a 4-part set printed on continuous-feed paper. 
Distribute the form as follows:
    (a) Original SF 97 to the purchaser or donee.
    (b) One copy to the owning agency.
    (c) One copy to the contracting officer making the sale or transfer 
of the motor vehicle.
    (d) One copy under owning-agency directives.



                    Subpart H--Motor Vehicle Fueling



Sec. 102-34.325  How do we obtain fuel for motor vehicles?

    You may obtain fuel for any motor vehicle owned or leased by the 
Government by using:
    (a) A Government-issued charge card;
    (b) A Government agency fueling facility; or
    (c) Personal funds and obtaining reimbursement from your agency.



Sec. 102-34.330  What Government-issued charge cards may I use to purchase fuel and motor vehicle related services?

    (a) You may use a fleet charge card specifically issued for this 
purpose. These cards are designed to collect motor vehicle data at the 
time of purchase. Where appropriate, State sales and motor fuel taxes 
are deducted from fuel purchases by the fleet charge card services 
contractor before your agency is billed. The GSA contractor issued fleet 
charge card is the only Government-issued charge card that may be used 
for GSA Fleet motor vehicles. For further information on acquiring these 
fleet charge cards and their use, contact the: General Services 
Administration, Attn: FCX, Washington, DC 20406.

[[Page 27]]

    (b) You may use a Government purchase card if you do not have a 
fleet charge card or if the use of such a government purchase card is 
required by your agency mission. However, the Government purchase card 
does not collect motor vehicle data nor does it deduct State sales and 
motor fuel taxes.



Sec. 102-34.335  What type of fuel do I use in motor vehicles?

    (a) Use the grade (octane rating) of fuel recommended by the motor 
vehicle manufacturer when fueling motor vehicles owned or leased by the 
Government.
    (b) Do not use premium grade gasoline in any motor vehicle owned or 
leased by the Government unless the motor vehicle specifically requires 
premium grade gasoline.
    (c) Use unleaded gasoline in all Government owned or leased motor 
vehicles designed to operate on gasoline and used overseas unless:
    (1) Such use would be in conflict with country-to-country or multi-
national logistics agreements; or
    (2) Such gasoline is not available locally.



Sec. 102-34.340  Do I have to use self-service fuel pumps?

    Yes. You must use self-service fuel pumps to the fullest extent 
possible.



              Subpart I--Federal Motor Vehicle Fleet Report



Sec. 102-34.345  What is the Federal Motor Vehicle Fleet Report?

    The Federal Motor Vehicle Fleet Report is compiled by GSA annually 
from information submitted by Federal agencies on motor vehicle 
inventory, cost, and use data. GSA supplies copies of the report to the 
Congress, Federal agencies, and other organizations upon request.
    Recipients of this report use it to evaluate and analyze operations 
and management of the Federal motor vehicle fleet.



Sec. 102-34.350  What records do we need to keep?

    For owned motor vehicles, you are responsible for developing 
adequate accounting and reporting procedures to ensure accurate 
reporting of inventory, cost, and operational data needed to manage and 
control motor vehicles.



Sec. 102-34.355  When and how do we report motor vehicle data?

    (a) Within 75 calendar days after the end of the fiscal year, use 
Standard Form 82, Agency Report of Motor Vehicle Data, to report motor 
vehicle inventory, cost, and operating information. Send the Standard 
Form 82 to the: General Services Administration, Attn: MTV, Washington, 
DC 20405. Email: vehicle.policy@gsa.gov
    (b) Use separate forms to report data for domestic and foreign 
fleets.
    (1) For motor vehicles lent to another agency during the reporting 
period, the owning agency reports all data.
    (2) For motor vehicles transferred from one owning agency to 
another, each agency reports data for the time it retained 
accountability.
    (c) Detailed instructions are included as part of the form. You can 
also complete the Standard Form 82 electronically using a computerized 
input medium. For further information, contact the: General Services 
Administration, Attn: MTV, Washington, DC 20405. Email: 
vehicle.policy@gsa.gov



                            Subpart J--Forms



Sec. 102-34.360  How do we obtain the forms prescribed in this part?

    See Sec. 102-2.135 of this chapter for how to obtain forms 
prescribed in this part.

        PART 102-35--DISPOSITION OF PERSONAL PROPERTY [RESERVED]



PART 102-36--DISPOSITION OF EXCESS PERSONAL PROPERTY--Table of Contents




                      Subpart A--General Provisions

Sec.
102-36.5  What is the governing authority for this part?
102-36.10  What does this part cover?
102-36.15  Who must comply with the provisions of this part?
102-36.20  To whom do ``we'', ``you'', and their variants refer?

[[Page 28]]

102-36.25  How do we request a deviation from these requirements and who 
          can approve it?
102-36.30  When is personal property excess?
102-36.35  What is the typical process for disposing of excess personal 
          property?

                               Definitions

102-36.40  What definitions apply to this part?

                             Responsibility

102-36.45  What are our responsibilities in the management of excess 
          personal property?
102-36.50  May we use a contractor to perform the functions of excess 
          personal property disposal?
102-36.55  What is GSA's role in the disposition of excess personal 
          property?

      Subpart B--Acquiring Excess Personal Property For Our Agency

                            Acquiring Excess

102-36.60  Who is eligible to acquire excess personal property as 
          authorized by the Property Act?
102-36.65  Why must we use excess personal property instead of buying 
          new property?
102-36.70  What must we consider when acquiring excess personal 
          property?
102-36.75  Do we pay for excess personal property we acquire from 
          another Federal agency under a transfer?
102-36.80  How much do we pay for excess personal property on a transfer 
          with reimbursement?
102-36.85  Do we pay for personal property we acquire when it is 
          disposed of by another agency under the exchange/sale 
          authority, and how much do we pay?

                           Screening of Excess

102-36.90  How do we find out what personal property is available as 
          excess?
102-36.95  How long is excess personal property available for screening?
102-36.100  When does the screening period start for excess personal 
          property?
102-36.105  Who is authorized to screen and where do we go to screen 
          excess personal property on-site?
102-36.110  Do we need authorization to screen excess personal property?
102-36.115  What information must we include in the authorization form 
          for non-Federal persons to screen excess personal property?
102-36.120  What are our responsibilities in authorizing a non-Federal 
          individual to screen excess personal property?

                          Processing Transfers

102-36.125  How do we process a Standard Form 122 (SF 122), Transfer 
          Order Excess Personal Property, through GSA?
102-36.130  What are our responsibilities in processing transfer orders 
          of excess personal property?
102-36.135  How much time do we have to pick up excess personal property 
          that has been approved for transfer?
102-36.140  May we arrange to have the excess personal property shipped 
          to its final destination?

                            Direct Transfers

102-36.145  May we obtain excess personal property directly from another 
          Federal agency without GSA approval?

Subpart C--Acquiring Excess Personal Property for Non-Federal Recipients

102-36.150  For which non-Federal activities may we acquire excess 
          personal property?
102-36.155  What are our responsibilities when acquiring excess personal 
          property for use by a non-Federal recipient?
102-36.160  What additional information must we provide on the SF 122 
          when acquiring excess personal property for non-Federal 
          recipients?

                     Nonappropriated Fund Activities

102-36.165  Do we retain title to excess personal property furnished to 
          a nonappropriated fund activity within our agency?
102-36.170  May we transfer personal property owned by one of our 
          nonappropriated fund activities?

                               Contractors

102-36.175  Are there restrictions to acquiring excess personal property 
          for use by our contractors?

                              Cooperatives

102-36.180  Is there any limitation/condition to acquiring excess 
          personal property for use by cooperatives?

                            Project Grantees

102-36.185  What are the requirements for acquiring excess personal 
          property for use by our grantees?
102-36.190  Must we always pay 25 percent of the original acquisition 
          cost when furnishing excess personal property to project 
          grantees?
102-36.195  What type of excess personal property may we furnish to our 
          project grantees?

[[Page 29]]

102-36.200  May we acquire excess personal property for cannibalization 
          purposes by the grantee?
102-36.205  Is there a limit to how much excess personal property we may 
          furnish to our grantees?

           Subpart D--Disposition of Excess Personal Property

102-36.210  Why must we report excess personal property to GSA?

                   Reporting Excess Personal Property

102-36.215  How do we report excess personal property?
102-36.220  Must we report all excess personal property to GSA?
102-36.225  Must we report excess related personal property?
102-36.230  Where do we send the reports of excess personal property?
102-36.235  What information do we provide when reporting excess 
          personal property?
102-36.240  What are the disposal condition codes?

                  Disposing of Excess Personal Property

102-36.245  Are we accountable for the personal property that has been 
          reported excess, and who is responsible for the care and 
          handling costs?
102-36.250  Does GSA ever take physical custody of excess personal 
          property?
102-36.255  What options do we have when unusual circumstances do not 
          allow adequate time for disposal through GSA?
102-36.260  How do we promote the expeditious transfer of excess 
          personal property?
102-36.265  What if there are competing requests for the same excess 
          personal property?
102-36.270  What if a Federal agency requests personal property that is 
          undergoing donation screening or in the sales process?
102-36.275  May we dispose of excess personal property without GSA 
          approval?
102-36.280  May we withdraw from the disposal process excess personal 
          property that we have reported to GSA?

                      Transfers With Reimbursement

102-36.285  May we charge for personal property transferred to another 
          Federal agency?
102-36.290  How much do we charge for excess personal property on a 
          transfer with reimbursement?

                       Report of Disposal Activity

102-36.295  Is there any reporting requirement on the disposition of 
          excess personal property?
102-36.300  How do we report the furnishing of personal property to non-
          Federal recipients?

                         Abandonment/Destruction

102-36.305  May we abandon or destroy excess personal property without 
          reporting it to GSA?
102-36.310  Who makes the determination to abandon or destroy excess 
          personal property?
102-36.315  Are there any restrictions to the use of the abandonment/
          destruction authority?
102-36.320  May we transfer or donate excess personal property that has 
          been determined appropriate for abandonment/destruction 
          without GSA approval?
102-36.325  What must be done before the abandonment/destruction of 
          excess personal property?
102-36.330  Are there occasions when public notice is not needed 
          regarding abandonment/destruction of excess personal property?

  Subpart E--Personal Property Whose Disposal Requires Special Handling

102-36.335  Are there certain types of excess personal property that 
          must be disposed of differently from normal disposal 
          procedures?

                       Aircraft and Aircraft Parts

102-36.340  What must we do when disposing of excess aircraft?
102-36.345  May we dispose of excess Flight Safety Critical Aircraft 
          Parts (FSCAP)?
102-36.350  How do we identify a FSCAP?
102-36.355  What are the FSCAP Criticality Codes?
102-36.360  How do we dispose of aircraft parts that are life-limited 
          but have no FSCAP designation?

                        Canines, Law Enforcement

102-36.365  May we transfer or donate canines that have been used in the 
          performance of law enforcement duties?

                        Disaster Relief Property

102-36.370  Are there special requirements concerning the use of excess 
          personal property for disaster relief?

                                Firearms

102-36.375  May we dispose of excess firearms?

                    Foreign Excess Personal Property

102-36.380  Who is responsible for disposing of foreign excess personal 
          property?
102-36.385  What are our responsibilities in the disposal of foreign 
          excess personal property?

[[Page 30]]

102-36.390  How may we dispose of foreign excess personal property?
102-36.395  How may GSA assist us in disposing of foreign excess 
          personal property?
102-36.400  Who pays for the transportation costs when foreign excess 
          personal property is returned to the United States?

                                  Gifts

102-36.405  May we keep gifts given to us from the public?
102-36.410  How do we dispose of a gift in the form of money or 
          intangible personal property?
102-36.415  How do we dispose of gifts other than intangible personal 
          property?
102-36.420  How do we dispose of gifts from foreign governments or 
          entities?

                       Hazardous Personal Property

102-36.425  May we dispose of excess hazardous personal property?

      Munitions List Items/Commerce Control List Items (MLIs/CCLIs)

102-36.430  May we dispose of excess Munitions List Items (MLIs)/
          Commerce Control List Items (CCLIs)?
102-36.435  How do we identify Munitions List Items (MLIs)/Commerce 
          Control List Items (CCLIs) requiring demilitarization?

                     Printing Equipment and Supplies

102-36.440  Are there special procedures for reporting excess printing 
          and binding equipment and supplies?

                           Red Cross Property

102-36.445  Do we report excess personal property originally acquired 
          from or through the American National Red Cross?

                            Shelf-Life Items

102-36.450  Do we report excess shelf-life items?
102-36.455  How do we report excess shelf-life items?
102-36.460  Do we report excess medical shelf-life items held for 
          national emergency purposes?
102-36.465  May we transfer or exchange excess medical shelf-life items 
          with other Federal agencies?

                                 Vessels

102-36.470  What must we do when disposing of excess vessels?

                  Subpart F--Miscellaneous Disposition

102-36.475  What is the authority for transfers under ``Computers for 
          Learning''?

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

    Source: 65 FR 31218, May 16, 2000, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 102-36.5  What is the governing authority for this part?

    Section 205(c) of the Federal Property and Administrative Services 
Act of 1949, as amended (the Property Act) (40 U.S.C. 486), authorizes 
the Administrator of General Services to prescribe regulations as he 
deems necessary to carry out his functions under the Property Act. 
Section 202 of the Property Act (40 U.S.C. 483) authorizes the General 
Services Administration (GSA) to prescribe policies to promote the 
maximum use of excess Government personal property by executive 
agencies.



Sec. 102-36.10  What does this part cover?

    This part covers the acquisition, transfer, and disposal, by 
executive agencies, of excess personal property located in the United 
States, the U.S. Virgin Islands, American Samoa, Guam, the Commonwealth 
of Puerto Rico, and the Commonwealth of the Northern Mariana Islands.



Sec. 102-36.15  Who must comply with the provisions of this part?

    All executive agencies must comply with the provisions of this part. 
The legislative and judicial branches are encouraged to report and 
transfer excess personal property and fill their personal property 
requirements from excess in accordance with these provisions.



Sec. 102-36.20  To whom do ``we'', ``you'', and their variants refer?

    Use of pronouns ``we'', ``you'', and their variants throughout this 
part refer to the agency.



Sec. 102-36.25  How do we request a deviation from these requirements and who can approve it?

    See Secs. 102-2.60 through 102-2.110 of this chapter to request a 
deviation from the requirements of this part.

[[Page 31]]



Sec. 102-36.30  When is personal property excess?

    Personal property is excess when it is no longer needed by the 
activities within your agency to carry out the functions of official 
programs, as determined by the agency head or designee.



Sec. 102-36.35  What is the typical process for disposing of excess personal property?

    (a) You must ensure personal property not needed by your activity is 
offered for use elsewhere within your agency. If the property is no 
longer needed by any activity within your agency, your agency declares 
the property excess and reports it to GSA for possible transfer to 
eligible recipients, including Federal agencies for direct use or for 
use by their contractors, project grantees, or cooperative agreement 
recipients. All executive agencies must, to the maximum extent 
practicable, fill requirements for personal property by using existing 
agency property or by obtaining excess property from other Federal 
agencies in lieu of new procurements.
    (b) If GSA determines that there are no Federal requirements for 
your excess personal property, it becomes surplus property and is 
available for donation to State and local public agencies and other 
eligible non-Federal activities. The Property Act requires that surplus 
personal property be distributed to eligible recipients by an agency 
established by each State for this purpose, the State Agency for Surplus 
Property.
    (c) Surplus personal property not selected for donation is offered 
for sale to the public by competitive offerings such as sealed bid 
sales, spot bid sales or auctions. You may conduct or contract for the 
sale of your surplus personal property, or have GSA or another executive 
agency conduct the sale on behalf of your agency in accordance with part 
101-45 of this title. You must inform GSA at the time the property is 
reported as excess if you do not want GSA to conduct the sale for you.
    (d) If a written determination is made that the property has no 
commercial value or the estimated cost of its continued care and 
handling would exceed the estimated proceeds from its sale, you may 
dispose of the property by abandonment or destruction, or donate it to 
public bodies.

                               Definitions



Sec. 102-36.40  What definitions apply to this part?

    The following definitions apply to this part:
    Commerce Control List Items (CCLIs) are dual use (commercial/
military) items that are subject to export control by the Bureau of 
Export Administration, Department of Commerce. These items have been 
identified in the U.S. Export Administration Regulations (15 CFR part 
774) as export controlled for reasons of national security, crime 
control, technology transfer and scarcity of materials.
    Cooperative means the organization or entity that has a cooperative 
agreement with a Federal agency.
    Cooperative agreement means a legal instrument reflecting a 
relationship between a Federal agency and a 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 of the following 
circumstances:
    (1) The purpose of the relationship is the transfer, between a 
Federal agency and a non-Federal entity, of money, property, services, 
or anything of value to accomplish a public purpose authorized by law, 
rather than by purchase, lease, or barter, for the direct benefit or use 
of the Federal Government.
    (2) Substantial involvement is anticipated between the Federal 
agency and the cooperative during the performance of the agreed upon 
activity.
    (3) The cooperative is a State or local government entity or any 
person or organization authorized to receive Federal assistance or 
procurement contracts.
    Demilitarization means, as defined by the Department of Defense, the 
act of destroying the military capabilities inherent in certain types of 
equipment or material. Such destruction may include deep sea dumping, 
mutilation, cutting, crushing, scrapping, melting, burning, or 
alteration so as to prevent the further use of the item for its 
originally intended purpose.

[[Page 32]]

    Excess personal property means any personal property under the 
control of any Federal agency that is no longer required for that 
agency's needs, as determined by the agency head or designee.
    Exchange/sale property means property not excess to the needs of the 
holding agency but eligible for replacement, which is exchanged or sold 
under the provisions of part 101-46 of this title in order to apply the 
exchange allowance or proceeds of sale in whole or part payment for 
replacement with a similar item.
    Executive agency means any executive department or independent 
establishment in the executive branch of the Government, including any 
wholly owned Government corporation.
    Fair market value means the best estimate of the gross sales 
proceeds if the property were to be sold in a public sale.
    Federal agency means any executive agency or any establishment in 
the legislative or judicial branch of the Government (except the Senate, 
the House of Representatives, and the Architect of the Capitol and any 
activities under his/her direction).
    Federal Disposal System (FEDS) is GSA's automated excess personal 
property system. For additional information on using FEDS, access http:/
/pub.fss.gsa.gov/property/.
    Flight Safety Critical Aircraft Part (FSCAP) is any aircraft part, 
assembly, or installation containing a critical characteristic whose 
failure, malfunction, or absence could cause a catastrophic failure 
resulting in engine shut-down or loss or serious damage to the aircraft 
resulting in an unsafe condition.
    Foreign excess personal property is any U.S. owned excess personal 
property located outside the United States (U.S.), the U.S. Virgin 
Islands, American Samoa, Guam, the Commonwealth of Puerto Rico, and the 
Commonwealth of the Northern Mariana Islands.
    Grant means a type of assistance award and a legal instrument which 
permits a Federal agency to transfer money, property, services or other 
things of value to a grantee when no substantial involvement is 
anticipated between the agency and the recipient during the performance 
of the contemplated activity.
    Hazardous personal property means property that is deemed a 
hazardous material, chemical substance or mixture, or hazardous waste 
under the Hazardous Materials Transportation Act (HMTA) (49 U.S.C. 
5101), the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 
6901-6981), or the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601-
2609).
    Holding agency means the Federal agency having accountability for, 
and generally possession of, the property involved.
    Intangible personal property means personal property in which the 
existence and value of the property is generally represented by a 
descriptive document rather than the property itself. Some examples are 
patents, patent rights, processes, techniques, inventions, copyrights, 
negotiable instruments, money orders, bonds, and shares of stock.
    Life-limited aircraft part is an aircraft part that has a finite 
service life expressed in either total operating hours, total cycles, 
and/or calendar time.
    Line item means a single line entry, on a reporting form or transfer 
order, for items of property of the same type having the same 
description, condition code, and unit cost.
    Munitions List Items (MLIs) are commodities (usually defense 
articles/defense services) listed in the International Traffic in Arms 
Regulation (22 CFR part 121), published by the U.S. Department of State.
    Nonappropriated fund activity means an activity or entity that is 
not funded by money appropriated from the general fund of the U.S. 
Treasury, such as post exchanges, ship stores, military officers' clubs, 
veterans' canteens, and similar activities. Such property is not Federal 
property.
    Personal property means any property, except real property. For 
purposes of this part, the term excludes records of the Federal 
Government, and naval vessels of the following categories: battleships, 
cruisers, aircraft carriers, destroyers, and submarines.
    Project grant means a grant made for a specific purpose and with a 
specific termination date.

[[Page 33]]

    Property Act means the Federal Property and Administrative Services 
Act of 1949 (63 Stat. 386), as amended.
    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.
    Related personal property means any personal property that is an 
integral part of real property. It is:
    (1) Related to, designed for, or specifically adapted to the 
functional capacity of the real property and removal of this personal 
property would significantly diminish the economic value of the real 
property; or
    (2) Determined by the Administrator of General Services to be 
related to the real property.
    Salvage means property that has value greater than its basic 
material content but for which repair or rehabilitation is clearly 
impractical and/or uneconomical.
    Scrap means property that has no value except for its basic material 
content.
    Screening period means the period in which excess and surplus 
personal property are made available for excess transfer or surplus 
donation to eligible recipients.
    Shelf-life item is any item that deteriorates over time or has 
unstable characteristics such that a storage period must be assigned to 
assure the item is issued within that period to provide satisfactory 
performance. Management of such items is governed by part 101-27, 
subpart 27.2, of this title and by DOD instructions, for executive 
agencies and DOD respectively.
    Surplus personal property (surplus) means excess personal property 
no longer required by the Federal agencies as determined by GSA.
    Surplus release date means the date when Federal screening has been 
completed and the excess property becomes surplus.
    Transfer with reimbursement means a transfer of excess personal 
property between Federal agencies where the recipient is required to 
pay, i.e. reimburse the holding agency, for the property.
    Unit cost means the original acquisition cost of a single item of 
property.
    United States means all the 50 States and the District of Columbia.
    Vessels means ships, boats and craft designed for navigation in and 
on the water, propelled by oars or paddles, sail, or power.

                             Responsibility



Sec. 102-36.45  What are our responsibilities in the management of excess personal property?

    (a) Agency procurement policies should require consideration of 
excess personal property before authorizing procurement of new personal 
property.
    (b) You are encouraged to designate national and regional property 
management officials to:
    (1) Promote the use of available excess personal property to the 
maximum extent practicable by your agency.
    (2) Review and approve the acquisition and disposal of excess 
personal property.
    (3) Ensure that any agency implementing procedures comply with this 
part.
    (c) When acquiring excess personal property, you must:
    (1) Limit the quantity acquired to that which is needed to 
adequately perform the function necessary to support the mission of your 
agency.
    (2) Establish controls over the processing of excess personal 
property transfer orders.
    (3) Facilitate the timely pickup of acquired excess personal 
property from the holding agency.
    (d) While excess personal property you have acquired is in your 
custody, or the custody of your non-Federal recipients and the 
Government retains title, you and/or the non-Federal recipient must do 
the following:
    (1) Establish and maintain a system for property accountability.
    (2) Protect the property against hazards including but not limited 
to fire, theft, vandalism, and weather.

[[Page 34]]

    (3) Perform the care and handling of personal property. ``Care and 
handling'' includes completing, repairing, converting, rehabilitating, 
operating, preserving, protecting, insuring, packing, storing, handling, 
conserving, and transporting excess and surplus personal property, and 
destroying or rendering innocuous property which is dangerous to public 
health or safety.
    (4) Maintain appropriate inventory levels as set forth in part 101-
27 of this title.
    (5) Continuously monitor the personal property under your control to 
assure maximum use, and develop and maintain a system to prevent and 
detect nonuse, improper use, unauthorized disposal or destruction of 
personal property.
    (e) When you no longer need personal property to carry out the 
mission of your program, you must:
    (1) Offer the property for reassignment to other activities within 
your agency.
    (2) Promptly report excess personal property to GSA when it is no 
longer needed by any activity within your agency for further reuse by 
eligible recipients.
    (3) Continue the care and handling of excess personal property while 
it goes through the disposal process.
    (4) Facilitate the timely transfer of excess personal property to 
other Federal agencies or authorized eligible recipients.
    (5) Provide reasonable access to authorized personnel for inspection 
and removal of excess personal property.
    (6) Ensure that final disposition complies with applicable 
environmental, health, safety and national security regulations.



Sec. 102-36.50  May we use a contractor to perform the functions of excess personal property disposal?

    Yes, you may use service contracts to perform disposal functions 
that are not inherently Governmental, such as warehousing or custodial 
duties. You are responsible for ensuring that the contractor conforms 
with the requirements of the Property Act and the Federal Management 
Regulation (41 CFR chapter 102), and any other applicable statutes and 
regulations when performing these functions.



Sec. 102-36.55  What is GSA's role in the disposition of excess personal property?

    In addition to developing and issuing regulations for the management 
of excess personal property, GSA:
    (a) Screens and offers available excess personal property to Federal 
agencies and eligible non-Federal recipients.
    (b) Approves and processes transfers of excess personal property to 
eligible activities.
    (c) Determines the amount of reimbursement for transfers of excess 
personal property when appropriate.
    (d) Conducts sales of surplus and exchange/sale personal property 
when requested by an agency.
    (e) Maintains an automated system, FEDS, to facilitate the reporting 
and transferring of excess personal property.



      Subpart B--Acquiring Excess Personal Property For Our Agency

                            Acquiring Excess



Sec. 102-36.60  Who is eligible to acquire excess personal property as authorized by the Property Act?

    The following are eligible to acquire excess personal property:
    (a) Federal agencies (for their own use or use by their authorized 
contractors, cooperatives, and project grantees).
    (b) The Senate.
    (c) The House of Representatives.
    (d) The Architect of the Capitol and any activities under his 
direction.
    (e) The DC Government.
    (f) Mixed-ownership Government corporations as defined in 31 U.S.C. 
9101.



Sec. 102-36.65  Why must we use excess personal property instead of buying new property?

    Using excess personal property to the maximum extent practicable 
maximizes the return on Government dollars spent and minimizes 
expenditures for new procurement. Before purchasing new property, check 
with the appropriate regional GSA Personal Property Management office or 
access

[[Page 35]]

FEDS for any available excess personal property that may be suitable for 
your needs. You must use excess personal property unless it would cause 
serious hardship, be impractical, or impair your operations.



Sec. 102-36.70  What must we consider when acquiring excess personal property?

    Consider the following when acquiring excess personal property:
    (a) There must be an authorized requirement.
    (b) The cost of acquiring and maintaining the excess personal 
property (including packing, shipping, pickup, and necessary repairs) 
does not exceed the cost of purchasing and maintaining new material.
    (c) The sources of spare parts or repair/maintenance services to 
support the acquired item are readily accessible.
    (d) The supply of excess parts acquired must not exceed the life 
expectancy of the equipment supported.
    (e) The excess personal property will fulfill the required need with 
reasonable certainty without sacrificing mission or schedule.
    (f) You must not acquire excess personal property with the intent to 
sell or trade for other assets.



Sec. 102-36.75  Do we pay for excess personal property we acquire from another Federal agency under a transfer?

    (a) No, except for the situations listed in paragraph (b) of this 
section, you do not pay for the property. However, you are responsible 
for shipping and transportation costs. Where applicable, you may also be 
required to pay packing, loading, and any costs directly related to the 
dismantling of the property when required for the purpose of 
transporting the property.
    (b) You may be required to reimburse the holding agency for excess 
personal property transferred to you (i.e., transfer with reimbursement) 
when:
    (1) Reimbursement is directed by GSA.
    (2) The property was originally acquired with funds not appropriated 
from the general fund of the Treasury or appropriated therefrom but by 
law reimbursable from assessment, tax, or other revenue and the holding 
agency requests reimbursement. It is executive branch policy that 
working capital fund property shall be transferred without 
reimbursement.
    (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).



Sec. 102-36.80  How much do we pay for excess personal property on a transfer with reimbursement?

    (a) You may be required to reimburse the holding agency the fair 
market value when the transfer involves any of the conditions in 
Sec. 102-36.75(b)(1) through (b)(4).
    (b) When acquiring excess personal property for your project 
grantees (Sec. 102-36.75(b)(5)), you are required to deposit into the 
miscellaneous receipts fund of the U.S. Treasury an amount equal to 25 
percent of the original acquisition cost of the property, except for 
transfers under the conditions cited in Sec. 102-36.190.
    (c) When you or the holding agency is the DC Government or a wholly 
owned or mixed-ownership Government corporation (Sec. 102-36.75(b)(6) or 
(b)(7)), you are required to reimburse the holding agency using fair 
value reimbursement. Fair value reimbursement is 20 percent of the 
original acquisition cost for new or unused property (i.e., condition 
code 1), and zero percent for other personal property. Where 
circumstances warrant, a higher fair value may be used if the agencies 
concerned agree. Due to special circumstances or the unusual nature of 
the property, the holding agency may use other criteria for establishing 
fair value if approved or directed by GSA. You must refer any 
disagreements to the appropriate regional

[[Page 36]]

GSA Personal Property Management office.



Sec. 102-36.85  Do we pay for personal property we acquire when it is disposed of by another agency under the exchange/sale authority, and how much do we pay?

    Yes, you must pay for personal property disposed of under the 
exchange/sale authority, in the amount required by the holding agency. 
The amount of reimbursement is normally the fair market value.

                           Screening of Excess



Sec. 102-36.90  How do we find out what personal property is available as excess?

    You may use the following methods to find out what excess personal 
property is available:
    (a) Check GSA's automated excess personal property system FEDS. For 
information on FEDS access http://pub.fss.gsa.gov/property/.
    (b) Contact or submit want lists to regional GSA Personal Property 
Management offices.
    (c) Check any available holding agency websites (see http://
www.policyworks.gov/surplus for a list of Federal agency websites.).
    (d) Conduct on-site screening at various Federal facilities.



Sec. 102-36.95  How long is excess personal property available for screening?

    The screening period for excess personal property is normally 21 
calendar days. GSA may extend or shorten the screening period in 
coordination with the holding agency. For screening timeframes for 
Government property in the possession of contractors see the Federal 
Acquisition Regulation (48 CFR part 45).



Sec. 102-36.100  When does the screening period start for excess personal property?

    Screening starts when GSA receives the report of excess personal 
property (see Sec. 102-36.230).



Sec. 102-36.105  Who is authorized to screen and where do we go to screen excess personal property on-site?

    You may authorize your agency employees, contractors, or non-Federal 
recipients that you sponsor to screen excess personal property. You may 
visit Defense Reutilization and Marketing Offices (DRMOs) and DOD 
contractor facilities to screen excess personal property generated by 
the Department of Defense. You may also inspect excess personal property 
at various civilian agency facilities throughout the United States.



Sec. 102-36.110  Do we need authorization to screen excess personal property?

    (a) Yes, when entering a Federal facility, Federal agency employees 
must present a valid Federal ID. Non-Federal individuals will need proof 
of authorization from their sponsoring Federal agency in addition to a 
valid picture identification.
    (b) Entry on some Federal and contractor facilities may require 
special authorization from that facility. Persons wishing to screen 
excess personal property on such a facility must obtain approval from 
that agency. Contact your regional GSA Personal Property Management 
office for locations and accessibility.



Sec. 102-36.115  What information must we include in the authorization form for non-Federal persons to screen excess personal property?

    (a) For non-Federal persons to screen excess personal property, you 
must provide on the authorization form:
    (1) The individual's name and the organization he/she represents;
    (2) The period of time and location(s) in which screening will be 
conducted; and
    (3) The number and completion date of the applicable contract, 
cooperative agreement, or grant.
    (b) An authorized official of your agency must sign the 
authorization form.



Sec. 102-36.120  What are our responsibilities in authorizing a non-Federal individual to screen excess personal property?

    You must do the following:

[[Page 37]]

    (a) Ensure that the non-Federal screener certifies that any and all 
property requested will be used for authorized official purpose(s).
    (b) Maintain a record of the authorized screeners under your 
authority, to include names, addresses and telephone numbers, and any 
additional identifying information such as driver's license or social 
security numbers.
    (c) Retrieve any expired or invalid screener's authorization forms.

                          Processing Transfers



Sec. 102-36.125  How do we process a Standard Form 122 (SF 122), Transfer Order Excess Personal Property, through GSA?

    (a) You must first contact the appropriate regional GSA Personal 
Property Management office to assure the property is available to you. 
Submit your request on a SF 122, Transfer Order Excess Personal 
Property, to the region in which the property is located. For the types 
of property listed in the table in paragraph (b) of this section, submit 
the SF 122 to the corresponding GSA regions. You may submit the SF 122 
manually or transmit the required information by electronic media (FEDS) 
or any other transfer form specified and approved by GSA.
    (b) For the following types of property, you must submit the SF 122 
to the corresponding GSA regions:

------------------------------------------------------------------------
         Type of property             GSA region          Location
------------------------------------------------------------------------
Aircraft.........................  9 FBP            San Francisco, CA
                                                     94102.
Firearms.........................  7 FP-8           Denver, CO 80225.
Foreign Gifts....................  FBP              Washington, DC
                                                     20406.
Forfeited Property...............  3 FP             Washington, DC
                                                     20407.
Standard Forms...................  7 FMP            Ft. Worth, TX 76102.
Vessels, civilian................  4 FD             Atlanta, GA 30365.
Vessels, DOD.....................  3 FPD            Philadelphia, PA
                                                     19107.
------------------------------------------------------------------------


[65 FR 31218, May 16, 2000; 65 FR 33889, May 25, 2000]



Sec. 102-36.130  What are our responsibilities in processing transfer orders of excess personal property?

    Whether the excess is for your use or for use by a non-Federal 
recipient that you sponsor, you must:
    (a) Ensure that only authorized Federal officials of your agency 
sign the 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.



Sec. 102-36.135  How much time do we have to pick up excess personal property that has been approved for transfer?

    When the holding agency notifies you that the property is ready for 
removal, you normally have 15 calendar days to pick up the property, 
unless otherwise coordinated with the holding agency.



Sec. 102-36.140  May we arrange to have the excess personal property shipped to its final destination?

    Yes, when the holding agency agrees to provide assistance in 
preparing the property for shipping. You may be required to pay the 
holding agency any direct costs in preparing the property for shipment. 
You must provide shipping instructions and the appropriate fund code for 
billing purposes on the SF 122.

                            Direct Transfers



Sec. 102-36.145  May we obtain excess personal property directly from another Federal agency without GSA approval?

    Yes, but only under the following situations:
    (a) You may obtain excess personal property that has not yet been 
reported to GSA, provided the total acquisition cost of the excess 
property does not exceed $10,000 per line item. You must ensure that a 
SF 122 is completed for the direct transfer and that an authorized 
official of your agency signs the SF 122. You must provide a copy of the 
SF 122 to the appropriate regional GSA office within 10 workdays from 
the date of the transaction.
    (b) You may obtain excess personal property exceeding the $10,000 
per line item limitation, provided you first contact the appropriate 
regional GSA Personal Property Management office for verbal approval of 
a prearranged transfer. You must annotate the SF 122 with the name of 
the GSA approving official and the date of the verbal approval,

[[Page 38]]

and provide a copy of the SF 122 to GSA within 10 workdays from the date 
of transaction.
    (c) You are subject to the requirement to pay reimbursement for the 
excess personal property under a direct transfer when any of the 
conditions in Sec. 102-36.75(b) applies.
    (d) You may obtain excess personal property directly from another 
Federal agency without GSA approval when that Federal agency has 
statutory authority to dispose of such excess personal property and you 
are an eligible recipient.



Subpart C--Acquiring Excess Personal Property for Non-Federal Recipients



Sec. 102-36.150  For which non-Federal activities may we acquire excess personal property?

    Under the Property Act you may acquire and furnish excess personal 
property for use by your nonappropriated fund activities, contractors, 
cooperatives, and project grantees. You may acquire and furnish excess 
personal property for use by other eligible recipients only when you 
have specific statutory authority to do so.



Sec. 102-36.155  What are our responsibilities when acquiring excess personal property for use by a non-Federal recipient?

    When acquiring excess personal property for use by a non-Federal 
recipient, your authorized agency official must:
    (a) Ensure the use of excess personal property by the non-Federal 
recipient is authorized and complies with applicable Federal regulations 
and agency guidelines.
    (b) Determine that the use of excess personal property will reduce 
the costs to the Government and/or that it is in the Government's best 
interest to furnish excess personal property.
    (c) Review and approve transfer documents for excess personal 
property as the sponsoring Federal agency.
    (d) Ensure the non-Federal recipient is aware of his obligations 
under the FMR and your agency regulations regarding the management of 
excess personal property.
    (e) Ensure the non-Federal recipient does not stockpile the property 
but places the property into use within a reasonable period of time, and 
has a system to prevent nonuse, improper use, or unauthorized disposal 
or destruction of excess personal property furnished.
    (f) Establish provisions and procedures for property accountability 
and disposition in situations when the Government retains title.
    (g) Report annually to GSA excess personal property furnished to 
non-Federal recipients during the year (see Sec. 102-36.295).



Sec. 102-36.160  What additional information must we provide on the SF 122 when acquiring excess personal property for non-Federal recipients?

    Annotate on the SF 122, the name of the non-Federal recipient and 
the contract, grant or agreement number, when applicable, and the 
scheduled completion/expiration date of the contract, grant or 
agreement. If the remaining time prior to the expiration date is less 
than 60 calendar days, you must certify that the contract, grant or 
agreement will be extended or renewed or provide other written 
justification for the transfer.

                     Nonappropriated Fund Activities



Sec. 102-36.165  Do we retain title to excess personal property furnished to a nonappropriated fund activity within our agency?

    Yes, title to excess personal property furnished to a 
nonappropriated fund activity remains with the Federal Government and 
you are accountable for establishing controls over the use of such 
excess property in accordance with Sec. 102-36.45(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.



Sec. 102-36.170  May we transfer personal property owned by one of our nonappropriated fund activities?

    Property purchased by a nonappropriated fund activity is not Federal 
property. A nonappropriated fund activity has the option of making its

[[Page 39]]

privately owned personal property available for transfer to a Federal 
agency, usually with reimbursement. If such reimbursable personal 
property is not transferred to another Federal agency, it may be offered 
for sale. Such property is not available for donation.

[65 FR 31218, May 16, 2000, as amended at 65 FR 33778, May 25, 2000]

                               Contractors



Sec. 102-36.175  Are there restrictions to acquiring excess personal property for use by our contractors?

    Yes, you may acquire and furnish excess personal property for use by 
your contractors subject to the criteria and restrictions in the Federal 
Acquisition Regulation (48 CFR part 45). When such property is no longer 
needed by your contractors or your agency, you must dispose of the 
excess personal property in accordance with the provisions of this part.

                              Cooperatives



Sec. 102-36.180  Is there any limitation/condition to acquiring excess personal property for use by cooperatives?

    Yes, you must limit the total dollar amount of property transfers 
(in terms of original acquisition cost) to the dollar value of the 
cooperative agreement. For any transfers in excess of such amount, you 
must ensure that an official of your agency at a level higher than the 
officer administering the agreement approves the transfer. The Federal 
Government retains title to such property, except when provided by 
specific statutory authority.

                            Project Grantees



Sec. 102-36.185  What are the requirements for acquiring excess personal property for use by our grantees?

    You may furnish excess personal property for use by your grantees 
only when:
    (a) The grantee holds a Federally sponsored project grant;
    (b) The grantee is a public agency or a nonprofit tax-exempt 
organization under section 501 of the Internal Revenue Code of 1986 (26 
U.S.C. 501);
    (c) The property is for use in connection with the grant; and
    (d) You pay 25 percent of the original acquisition cost of the 
excess personal property, such funds to be deposited into the 
miscellaneous receipts fund of the U.S. Treasury. Exceptions to paying 
this 25 percent are provided in Sec. 102-36.190. Title to property vests 
in the grantee when your agency pays 25 percent of the original 
acquisition cost.



Sec. 102-36.190  Must we always pay 25 percent of the original acquisition cost when furnishing excess personal property to project grantees?

    No, you may acquire excess personal property for use by a project 
grantee without paying the 25 percent fee when any of the following 
conditions apply:
    (a) The personal property was originally acquired from excess 
sources by your agency and has been placed into official use by your 
agency for at least one year. The Federal Government retains title to 
such property.
    (b) The property is furnished under section 203 of the Department of 
Agriculture Organic Act of 1944 (16 U.S.C. 580a) through the U.S. Forest 
Service in connection with cooperative State forest fire control 
programs. The Federal Government retains title to such property.
    (c) The property is furnished by the U.S. Department of Agriculture 
to State or county extension services or agricultural research 
cooperatives under 40 U.S.C. 483(d)(2)(E). The Federal Government 
retains title to such property.
    (d) The property is not needed for donation under part 101-44 of 
this title, and is transferred under section 608 of the Foreign 
Assistance Act of 1961, as amended (22 U.S.C. 2358). Title to such 
property transfers to the grantee. (You need not wait until after the 
donation screening period when furnishing excess personal property to 
recipients under the Agency for International Development (AID) 
Development Loan Program.)
    (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

[[Page 40]]

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.



Sec. 102-36.195  What type of excess personal property may we furnish to our project grantees?

    You may furnish to your project grantees any property, except for 
consumable items, determined to be necessary and usable for the purpose 
of the grant. Consumable items are generally not transferable to project 
grantees. GSA may approve transfers of excess consumable items when 
adequate justification for the transfer accompanies such requests. For 
the purpose of this section ``consumable items'' are items which are 
intended for one-time use and are actually consumed in that one time; 
e.g., drugs, medicines, surgical dressings, cleaning and preserving 
materials, and fuels.



Sec. 102-36.200  May we acquire excess personal property for cannibalization purposes by the grantees?

    Yes, subject to GSA approval, you may acquire excess personal 
property for cannibalization purposes. You may be required to provide a 
supporting statement that indicates disassembly of the item for 
secondary use has greater benefit than utilization of the item in its 
existing form and cost savings to the Government will result.



Sec. 102-36.205  Is there a limit to how much excess personal property we may furnish to our grantees?

    Yes, you must monitor transfers of excess personal property so the 
total dollar amount of property transferred (in original acquisition 
cost) does not exceed the dollar value of the grant. Any transfers above 
the grant amount must be approved by an official at an administrative 
level higher than the officer administering the grant.



           Subpart D--Disposition of Excess Personal Property



Sec. 102-36.210  Why must we report excess personal property to GSA?

    You must report excess personal property to promote reuse by the 
Government to enable Federal agencies to benefit from the continued use 
of property already paid for with taxpayers' money, thus minimizing new 
procurement costs. Reporting excess personal property to GSA helps 
assure that the information on available excess personal property is 
accessible and disseminated to the widest range of reuse customers.

                   Reporting Excess Personal Property



Sec. 102-36.215  How do we report excess personal property?

    Report excess personal property as follows:
    (a) Electronically submit the data elements required on the Standard 
Form 120 (SF 120), Report of Excess Personal Property, in a format 
specified and approved by GSA; or
    (b) Submit a paper SF 120 to the regional GSA Personal Property 
Management office.



Sec. 102-36.220  Must we report all excess personal property to GSA?

    (a) Generally yes, regardless of the condition code, except as 
authorized in Sec. 102-36.145 for direct transfers or as exempted in 
paragraph (b) of this section. Report all excess personal property, 
including excess personal property to which the Government holds title 
but is in the custody of your contractors, cooperatives, or project 
grantees.
    (b) You are not required to report the following types of excess 
personal property to GSA for screening:
    (1) Property determined appropriate for abandonment/destruction (see 
Sec. 102-36.305).
    (2) Nonappropriated fund property (see Sec. 102-36.165).

[[Page 41]]

    (3) Foreign excess personal property (see Sec. 102-36.380).
    (4) Scrap, except aircraft in scrap condition.
    (5) Perishables, defined for the purposes of this section as any 
personal property subject to spoilage or decay.
    (6) Trading stamps and bonus goods.
    (7) Hazardous waste.
    (8) Controlled substances.
    (9) Nuclear Regulatory 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.
    (c) Refer to part 101-42 of this title for additional guidance on 
the disposition of classes of property under paragraphs (b)(7) through 
(b)(11) of this section.



Sec. 102-36.225  Must we report excess related personal property?

    Yes, you must report excess related personal property to the Office 
of Real Property, GSA, in accordance with part 101-47 of this title.



Sec. 102-36.230  Where do we send the reports of excess personal property?

    (a) You must direct electronic submissions of excess personal 
property to the Federal Disposal System (FEDS) maintained by the 
Property Management Division (FBP), GSA, Washington, DC 20406.
    (b) For paper submissions, you must send the SF 120 to the regional 
GSA Personal Property Management office for the region in which the 
property is located. For the categories of property listed in Sec. 102-
36.125(b), forward the SF 120 to the corresponding regions.



Sec. 102-36.235  What information do we provide when reporting excess personal property?

    (a) You must provide the following data on excess personal property:
    (1) The reporting agency and the property location.
    (2) A report number (6-digit activity address code and 4-digit 
Julian date).
    (3) 4-digit Federal Supply Class (use National Stock Number whenever 
available).
    (4) Description of item, in sufficient detail.
    (5) Quantity and unit of issue.
    (6) Disposal Condition Code (see Sec. 102-36.240).
    (7) Original acquisition cost per unit and total cost (use estimate 
if original cost not available).
    (8) Manufacturer, date of manufacture, part and serial number, when 
required by GSA.
    (b) In addition, provide the following information on your report of 
excess, when applicable:
    (1) Major parts/components that are missing.
    (2) If repairs are needed, the type of repairs.
    (3) Special requirements for handling, storage, or transportation.
    (4) The required date of removal due to moving or space 
restrictions.
    (5) If reimbursement is required, the authority under which the 
reimbursement is requested, the amount of reimbursement and the 
appropriate fund code to which money is to be deposited.
    (6) If you will conduct the sale of personal property that is not 
transferred or donated.



Sec. 102-36.240  What are the disposal condition codes?

    The disposal condition codes are contained in the following table:

------------------------------------------------------------------------
    Disposal condition code                    Definition
------------------------------------------------------------------------
1.............................  New. Property which is in new condition
                                 or unused condition and can be used
                                 immediately without modifications or
                                 repairs.
4.............................  Usable. Property which shows some wear,
                                 but can be used without significant
                                 repair.
7.............................  Repairable. Property which is unusable
                                 in its current condition but can be
                                 economically repaired.
X.............................  Salvage. Property which has value in
                                 excess of its basic material content,
                                 but repair or rehabilitation is
                                 impractical and/or uneconomical.
S.............................  Scrap. Property which has no value
                                 except for its basic material content.
------------------------------------------------------------------------


[[Page 42]]

                  Disposing of Excess Personal Property



Sec. 102-36.245  Are we accountable for the personal property that has been reported excess, and who is responsible for the care and handling costs?

    Yes, you are accountable for the excess personal property until the 
time it is picked up by the designated recipient or its agent. You are 
responsible for all care and handling charges while the excess personal 
property is going through the screening and disposal process.



Sec. 102-36.250  Does GSA ever take physical custody of excess personal property?

    Generally you retain physical custody of the excess personal 
property prior to its final disposition. Very rarely GSA may consider 
accepting physical custody of excess personal property. Under special 
circumstances, GSA may take custody or may direct the transfer of 
partial or total custody to other executive agencies, with their 
consent.



Sec. 102-36.255  What options do we have when unusual circumstances do not allow adequate time for disposal through GSA?

    Contact your regional GSA Personal Property Management office for 
any existing interagency agreements that would allow you to turn in 
excess personal property to a Federal facility. You are responsible for 
any turn-in costs and all costs related to transporting the excess 
personal property to these facilities.



Sec. 102-36.260  How do we promote the expeditious transfer of excess personal property?

    For expeditious transfer of excess personal property you should:
    (a) Provide complete and accurate property descriptions and 
condition codes on the report of excess to facilitate the selection of 
usable property by potential users.
    (b) Ensure that any available operating manual, parts list, diagram, 
maintenance log, or other instructional publication is made available 
with the property at the time of transfer.
    (c) Advise the designated recipient of any special requirements for 
dismantling, shipping/transportation.
    (d) When the excess personal property is located at a facility due 
to be closed, provide advance notice of the scheduled date of closing, 
and ensure there is sufficient time for screening and removal of 
property.



Sec. 102-36.265  What if there are competing requests for the same excess personal property?

    (a) GSA will generally approve transfers on a first-come, first-
served basis. When more than one Federal agency requests the same item, 
and the quantity available is not sufficient to meet the demand of all 
interested agencies, GSA will consider factors such as national defense 
requirements, emergency needs, avoiding the necessity of a new 
procurement, energy conservation, transportation costs, and retention of 
title in the Government. GSA will normally give preference to the agency 
that will retain title in the Government.
    (b) Requests for property for the purpose of cannibalization will 
normally be subordinate to requests for use of the property in its 
existing form.



Sec. 102-36.270  What if a Federal agency requests personal property that is undergoing donation screening or in the sales process?

    Prior to final disposition, GSA will consider requests from 
authorized Federal activities for excess personal property undergoing 
donation screening or in the sales process. Federal transfers may be 
authorized prior to removal of the property under a donation or sales 
action.



Sec. 102-36.275  May we dispose of excess personal property without GSA approval?

    No, you may not dispose of excess personal property without GSA 
approval except under the following limited situations:
    (a) You may transfer to another Federal agency excess personal 
property that has not yet been reported to GSA, under direct transfer 
procedures contained in Sec. 102-36.145.

[[Page 43]]

    (b) You may dispose of excess personal property that is not required 
to be reported to GSA (see Sec. 102-36.220(b)).
    (c) You may dispose of excess personal property without going 
through GSA when such disposal is authorized by law.



Sec. 102-36.280  May we withdraw from the disposal process excess personal property that we have reported to GSA?

    Yes, you may withdraw excess personal property from the disposal 
process, but only with the approval of GSA and to satisfy an internal 
agency requirement. Property that has been approved for transfer or 
donation or offered for sale by GSA may be returned to your control with 
proper justification.

                      Transfers With Reimbursement



Sec. 102-36.285  May we charge for personal property transferred to another Federal agency?

    (a) When any one of the following conditions applies, you may 
require and retain reimbursement for the excess personal property from 
the recipient:
    (1) Your agency has the statutory authority to require and retain 
reimbursement for the property.
    (2) You are transferring the property under the exchange/sale 
authority.
    (3) You had originally acquired the property with funds not 
appropriated from the general fund of the Treasury or appropriated 
therefrom but by law reimbursable from assessment, tax, or other 
revenue. It is current executive branch policy that working capital fund 
property shall be transferred without reimbursement.
    (4) You or the recipient is the U.S. Postal Service.
    (5) You or the recipient is the DC Government.
    (6) You or the recipient is a wholly owned or mixed-ownership 
Government corporation.
    (b) You may charge for direct costs you incurred incident to the 
transfer, such as packing, loading and shipping of the property. The 
recipient is responsible for such charges unless you waive the amount 
involved.
    (c) You may not charge for overhead or administrative expenses or 
the costs for care and handling of the property pending disposition.



Sec. 102-36.290  How much do we charge for excess personal property on a transfer with reimbursement?

    (a) You may require reimbursement in an amount up to the fair market 
value of the property when the transfer involves property meeting 
conditions in Sec. 102-36.285(a)(1) through (a)(4).
    (b) When you or the recipient is the DC Government or a wholly owned 
or mixed-ownership Government corporation (Sec. 102-36.285(a)(5) and 
(a)(6)), you may only require fair value reimbursement. Fair value 
reimbursement is 20 percent of the original acquisition cost for new or 
unused property (i.e., condition code 1), and zero percent for other 
personal property. A higher fair value may be used if you and the 
recipient agency agree. Due to special circumstances or the nature of 
the property, you may use other criteria for establishing fair value if 
approved or directed by GSA. You must refer any disagreements to the 
appropriate regional GSA Personal Property Management office.

                       Report of Disposal Activity



Sec. 102-36.295  Is there any reporting requirement on the disposition of excess personal property?

    Yes, you must report annually to GSA personal property furnished in 
any manner in that year to any non-Federal recipients, with respect to 
property obtained as excess or as property determined to be no longer 
required for the purposes of the appropriation from which it was 
purchased. GSA will subsequently submit a summary of these Non-Federal 
Recipients Reports to Congress.



Sec. 102-36.300  How do we report the furnishing of personal property to non-Federal recipients?

    (a) Submit your annual report of personal property furnished to non-
Federal recipients, in letter form, to GSA, Personal Property Management 
Policy Division (MTP), 1800 F Street, NW, Washington, DC 20405, within 
90 calendar days after the close of each fiscal

[[Page 44]]

year. The report must cover personal property disposed during the fiscal 
year in all areas within the United States, the U.S. Virgin Islands, 
American Samoa, Guam, the Commonwealth of Puerto Rico, and the 
Commonwealth of the Northern Mariana Islands. Negative reports are 
required.
    (b) The report (interagency report control number 0154--GSA--AN) 
must reference this part and contain the following:
    (1) Names of the non-Federal recipients.
    (2) Status of the recipients (contractor, cooperative, project 
grantee, etc.).
    (3) Total original acquisition cost of excess personal property 
furnished to each type of recipient, by type of property (two-digit FSC 
groups).

                         Abandonment/Destruction



Sec. 102-36.305  May we abandon or destroy excess personal property without reporting it to GSA?

    Yes, you may abandon or destroy excess personal property when you 
have made a written determination that the property has no commercial 
value or the estimated cost of its continued care and handling would 
exceed the estimated proceeds from its sale. An item has no commercial 
value when it has neither utility nor monetary value (either as an item 
or as scrap).



Sec. 102-36.310  Who makes the determination to abandon or destroy excess personal property?

    To abandon or destroy excess personal property, an authorized 
official of your agency makes a written finding that must be approved by 
a reviewing official who is not directly accountable for the property.



Sec. 102-36.315  Are there any restrictions to the use of the abandonment/destruction authority?

    Yes, the following restrictions apply:
    (a) You must not abandon or destroy property in a manner which is 
detrimental or dangerous to public health or safety. Additional 
guidelines for the abandonment/destruction of hazardous materials are 
prescribed in part 101-42 of this title.
    (b) If you become aware of an interest from an entity in purchasing 
the property, you must implement sales procedures in lieu of 
abandonment/destruction.



Sec. 102-36.320  May we transfer or donate excess personal property that has been determined appropriate for abandonment/destruction without GSA approval?

    In lieu of abandonment/destruction, you may donate such excess 
personal property only to a public body without going through GSA. A 
public body is any department, agency, special purpose district, or 
other instrumentality of a State or local government; any Indian tribe; 
or any agency of the Federal Government. If you become aware of an 
interest from an eligible non-profit organization (see part 101-44 of 
this title) that is not a public body in acquiring the property, you 
must contact the regional GSA Personal Property Management office and 
implement donation procedures in accordance with part 101-44 of this 
title.



Sec. 102-36.325  What must be done before the abandonment/destruction of excess personal property?

    Except as provided in Sec. 102-36.330, you must provide public 
notice of intent to abandon or destroy excess personal property, in a 
format and timeframe specified by your agency regulations (such as 
publishing a notice in a local newspaper, posting of signs in common use 
facilities available to the public, or providing bulletins on your 
website through the internet). You must also include in the notice an 
offer to sell in accordance with part 101-45 of this title.



Sec. 102-36.330  Are there occasions when public notice is not needed regarding abandonment/destruction of excess personal property?

    Yes, you are not required to provide public notice when:
    (a) The value of the property is so little or the cost of its care 
and handling, pending abandonment/destruction, is so great that its 
retention for advertising for sale, even as scrap, is clearly not 
economical;

[[Page 45]]

    (b) Abandonment or destruction is required because of health, 
safety, or security reasons; or
    (c) When the original acquisition cost of the item (estimated if 
unknown) is less than $500.

[65 FR 31218, May 16, 2000, as amended at 65 FR 34983, June 1, 2000]



  Subpart E--Personal Property Whose Disposal Requires Special Handling



Sec. 102-36.335  Are there certain types of excess personal property that must be disposed of differently from normal disposal procedures?

    Yes, you must comply with the additional provisions in this subpart 
when disposing of the types of personal property listed in this subpart.

                       Aircraft and Aircraft Parts



Sec. 102-36.340  What must we do when disposing of excess aircraft?

    (a) You must report to GSA all excess aircraft, regardless of 
condition or dollar value, and provide the following information on the 
SF 120:
    (1) Manufacturer, date of manufacture, model, serial number.
    (2) Major components missing from the aircraft (such as engines, 
electronics).
    (3) Whether or not the:
    (i) Aircraft is operational;
    (ii) Dataplate is available;
    (iii) Historical and maintenance records are available;
    (iv) Aircraft has been previously certificated by the Federal 
Aviation Administration (FAA) and/or has been maintained to FAA 
airworthiness standards;
    (v) Aircraft was previously used for non-flight purposes (i.e., 
ground training or static display), and has been subjected to extensive 
disassembly and re-assembly 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 DOD, as follows:

------------------------------------------------------------------------
     Category of aircraft                     Description
------------------------------------------------------------------------
A............................  Aircraft authorized for sale and exchange
                                for commercial use.
B............................  Aircraft previously used for ground
                                instruction and/or static display.
C............................  Aircraft that are combat configured as
                                determined by DOD.
------------------------------------------------------------------------

    Note to Sec. 102-36.340(a)(4): For additional information on 
military aircraft see Defense Materiel Disposition Manual, DOD 4160.21-
M, accessible at www.drms.dla.mil under Publications.
    (b) When the designated transfer or donation recipient's intended 
use is for non-flight purposes, you must remove and return the dataplate 
to GSA Property Management Branch, San Francisco, California prior to 
releasing the aircraft to the authorized recipient. GSA will forward the 
dataplates to FAA.
    (c) You must also submit a report of the final disposition of the 
aircraft to the Federal Aviation Interactive Reporting System (FAIRS) 
maintained by the Aircraft Management Policy Division (MTA), GSA, 1800 F 
Street, NW, Washington, DC 20405. For additional instructions on 
reporting to FAIRS see part 101-37 of this title.



Sec. 102-36.345  May we dispose of excess Flight Safety Critical Aircraft Parts (FSCAP)?

    Yes, you may dispose of excess FSCAP, but first you must determine 
whether the documentation available is adequate to allow transfer, 
donation, or sale of the part in accordance with part 101-37, subpart 
101-37.6, of this title. Otherwise, you must mutilate undocumented FSCAP 
that has no traceability to its original equipment manufacturer and 
dispose of it as scrap. When reporting excess FSCAP, annotate the 
manufacturer, date of manufacture, part number, serial number, and the 
appropriate Criticality Code on the SF 120, and ensure that all 
available historical and maintenance records accompany the part at the 
time of issue.



Sec. 102-36.350  How do we identify a FSCAP?

    Any aircraft part designated as FSCAP is assigned an alpha 
Criticality

[[Page 46]]

Code, and the code is annotated on the original transfer document when 
you acquire the part. You must perpetuate the appropriate FSCAP 
Criticality Code on all personal property records. You may contact the 
Federal agency or Military service that originally owned the part for 
assistance in making this determination, or query DOD's Federal 
Logistics Information System (FLIS) using the National Stock Number 
(NSN) for the part. For assistance in subscribing to the FLIS service 
contact the FedLog Consumer Support Office, 800-351-4381.



Sec. 102-36.355  What are the FSCAP Criticality Codes?

    The FSCAP Criticality Codes are contained in the following table:

------------------------------------------------------------------------
          FSCAP code                          Description
------------------------------------------------------------------------
E............................  FSCAP specially designed to be or
                                selected as being nuclear hardened.
F............................  Flight Safety Critical Aircraft Part.
------------------------------------------------------------------------



Sec. 102-36.360  How do we dispose of aircraft parts that are life-limited but have no FSCAP designation?

    When disposing of life-limited aircraft parts that have no FSCAP 
designation, you must ensure that tags and labels, historical data and 
maintenance records accompany the part on any transfers, donations or 
sales. For additional information regarding the disposal of life-limited 
parts with or without tags or documentation refer to part 101-37 of this 
title.

                        Canines, Law Enforcement



Sec. 102-36.365  May we transfer or donate canines that have been used in the performance of law enforcement duties?

    Yes, under Public Law 105-27 (111 Stat. 244), when the canine is no 
longer needed for law enforcement duties, you may donate the canine to 
an individual who has experience handling canines in the performance of 
those official duties.

                        Disaster Relief Property



Sec. 102-36.370  Are there special requirements concerning the use of excess personal property for disaster relief?

    Yes, upon declaration by the President of an emergency or a major 
disaster, you may loan excess personal property to State and local 
governments, with or without compensation and prior to reporting it as 
excess to GSA, to alleviate suffering and damage resulting from any 
emergency or major disaster (Disaster Relief Act of 1974 (Public Law 93-
288 (42 U.S.C. 5121)) and Executive Orders 11795 (3 CFR, 1971-1975 
Comp., p. 887) and 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.

                                Firearms



Sec. 102-36.375  May we dispose of excess firearms?

    Yes, unless you have specific statutory authority to do otherwise, 
excess firearms may be transferred only to those Federal agencies 
authorized to acquire firearms for official use. GSA may donate certain 
classes of surplus firearms to State and local government activities 
whose primary function is the enforcement of applicable Federal, State, 
and/or local laws and whose compensated law enforcement officers have 
the authority to apprehend and arrest. Firearms not transferred or 
donated must be destroyed and sold as scrap. For additional guidance on 
the disposition of firearms refer to part 101-42 of this title.

[[Page 47]]

                    Foreign Excess Personal Property



Sec. 102-36.380  Who is responsible for disposing of foreign excess personal property?

    Your agency is responsible for disposing of your foreign excess 
personal property, as provided by title IV of the Property Act.



Sec. 102-36.385  What are our responsibilities in the disposal of foreign excess personal property?

    When disposing of foreign excess personal property you must:
    (a) Determine whether it is in the interest of the U.S. Government 
to return foreign excess personal property to the U.S. for further re-
use or to dispose of the property overseas.
    (b) Ensure that any disposal of property overseas conforms to the 
foreign policy of the United States and the terms and conditions of any 
applicable Host Nation Agreement.
    (c) Ensure that, when foreign excess personal property is donated or 
sold overseas, donation/sales conditions include a requirement for 
compliance with U.S. Department of Commerce and Department of 
Agriculture regulations when transporting any personal property back to 
the U.S.
    (d) Inform the U.S. State Department of any disposal of property to 
any foreign governments or entities.



Sec. 102-36.390  How may we dispose of foreign excess personal property?

    To dispose of foreign excess personal property, you may:
    (a) Offer the property for re-use by U.S. Federal agencies overseas;
    (b) Return the property to the U.S. for re-use by eligible 
recipients;
    (c) Sell, exchange, lease, or transfer such property for cash, 
credit, or other property;
    (d) Donate medical materials or supplies to nonprofit medical or 
health organizations, including those qualified under sections 214(b) 
and 607 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 
2174, 2357); or
    (e) Abandon, destroy or donate such property when you determine that 
it has no commercial value or the estimated cost of care and handling 
would exceed the estimated proceeds from its sale, in accordance with 
sec. 402(a) of the Property Act. Abandonment, destruction or donation 
actions must also comply with the laws of the country in which the 
property is located.



Sec. 102-36.395  How may GSA assist us in disposing of foreign excess personal property?

    You may request GSA's assistance in the screening of foreign excess 
personal property for possible re-use by eligible recipients within the 
U.S. GSA may, after consultation with you, designate property for return 
to the United States for transfer or donation purposes.



Sec. 102-36.400  Who pays for the transportation costs when foreign excess personal property is returned to the United States?

    When foreign excess property is to be returned to the U.S. for the 
purpose of an approved transfer or donation under the provisions of 
Sections 202 and 203 of the Property Act, the receiving agency is 
responsible for all direct costs involved in the transfer, which include 
packing, handling, crating, and transportation.

                                  Gifts



Sec. 102-36.405  May we keep gifts given to us from the public?

    If your agency has gift retention authority, you may retain gifts 
from the public. Otherwise, you must report gifts you receive on a SF 
120 to GSA. You must report gifts received from a foreign government in 
accordance with part 101-49 of this title.



Sec. 102-36.410  How do we dispose of a gift in the form of money or intangible personal property?

    Report intangible personal property to GSA, Personal Property 
Management Division (FBP), Washington, D.C. 20406. You must not transfer 
or dispose of this property without prior approval of GSA. The Secretary 
of the Treasury will dispose of money and negotiable instruments such as 
bonds, notes, or other securities under the authority of 31 U.S.C. 324.

[[Page 48]]



Sec. 102-36.415  How do we dispose of gifts other than intangible personal property?

    (a) When the gift is offered with the condition that the property be 
sold and the proceeds used to reduce the public debt, report the gift to 
the regional GSA Personal Property Management office in which the 
property is located. GSA will convert the gift to money upon acceptance 
and deposit the proceeds into a special account of the U.S. Treasury.
    (b) When the gift is offered with no conditions or restrictions, and 
your agency has gift retention authority, you may use the gift for an 
authorized official purpose without reporting to GSA. The property will 
then lose its identity as a gift and you must account for it in the same 
manner as Federal personal property acquired from authorized sources. 
When the property is no longer needed, you must report it as excess 
personal property to GSA.
    (c) When the gift is offered with no conditions or restrictions, but 
your agency does not have gift retention authority, you must report it 
to the regional GSA Personal Property Management office. GSA will offer 
the property for screening for possible transfer to a Federal agency or 
convert the gift to money and deposit the funds with U.S. Treasury. If 
your agency is interested in keeping the gift for an official purpose, 
you must annotate your interest on the SF 120 and also submit a SF 122.



Sec. 102-36.420  How do we dispose of gifts from foreign governments or entities?

    Report foreign gifts on a SF 120 to GSA, Personal Property 
Management Division (FBP), Washington, DC 20406, for possible use by 
your agency, or for transfer, donation or sale in accordance with the 
provisions of part 101-49 of this title.

                       Hazardous Personal Property



Sec. 102-36.425  May we dispose of excess hazardous personal property?

    Yes, but only in accordance with part 101-42 of this title. When 
reporting excess hazardous property to GSA, certify on the SF 120 that 
the property has been packaged and labeled as required. Annotate any 
special requirements for handling, storage, or use, and provide a 
description of the actual or potential hazard.

      Munitions List Items/Commerce Control List Items (MLIs/CCLIs)



Sec. 102-36.430  May we dispose of excess Munitions List Items (MLIs)/Commerce Control List Items (CCLIs)?

    You may dispose of excess MLIs/CCLIs only when you comply with the 
additional disposal and demilitarization (DEMIL) requirements contained 
in part 101-42 of this title. MLIs may require demilitarization when 
issued to any non-DoD entity, and will require appropriate licensing 
when exported from the U.S. CCLIs usually require export licensing when 
transported from the U.S.



Sec. 102-36.435  How do we identify Munitions List Items (MLIs)/Commerce Control List Items (CCLIs) requiring demilitarization?

    You identify MLIs/CCLIs requiring demilitarization by the 
demilitarization code that is assigned to each MLI or CCLI. The code 
indicates the type and scope of demilitarization and/or export controls 
that must be accomplished, when required, before issue to any non-DOD 
activity. For a listing of the codes and additional guidance on DEMIL 
procedures see DOD Demilitarization and Trade Security Control Manual, 
DOD 4160.21-M-1.

                     Printing Equipment and Supplies



Sec. 102-36.440  Are there special procedures for reporting excess printing and binding equipment and supplies?

    Yes, in accordance with 44 U.S.C. 312, you must submit reports of 
excess printing and binding machinery, equipment, materials, and 
supplies to the Public Printer, Government Printing Office (GPO), 
Customer Service Manager, North Capitol and H Streets, NW, Washington, 
DC 20401. If GPO has no requirement for the property, you must then 
submit the report to GSA.

[[Page 49]]

                           Red Cross Property



Sec. 102-36.445  Do we report excess personal property originally acquired from or through the American National Red Cross?

    Yes, when reporting excess personal property which was processed, 
produced, or donated by the American National Red Cross, note ``RED 
CROSS PROPERTY'' on the SF 120 or report document. GSA will offer to 
return this property to the Red Cross if no other Federal agency has a 
need for it. If the Red Cross has no requirement the property continues 
in the disposal process and is available for donation.

                            Shelf-Life Items



Sec. 102-36.450  Do we report excess shelf-life items?

    (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 
accordance with Sec. 102-36.305 and in compliance with Federal, State, 
and local waste disposal and air and water pollution control standards.



Sec. 102-36.455  How do we report excess shelf-life items?

    You must identify the property as shelf-life items by ``SL'', 
indicate the expiration date, whether the date is the original or an 
extended date, and if the date is further extendable. GSA may adjust the 
screening period based on re-use potential and the remaining useful 
shelf life.



Sec. 102-36.460  Do we report excess medical shelf-life items held for national emergency purposes?

    When the remaining shelf life of any medical materials or supplies 
held for national emergency purposes is of too short a period to justify 
their continued retention, you should report such property excess for 
possible transfer and disposal. You must make such excess determinations 
at such time as to ensure that sufficient time remains to permit their 
use before their shelf life expires and the items are unfit for human 
use. You must identify such items with ``MSL'' and the expiration date, 
and indicate any specialized storage requirements.



Sec. 102-36.465  May we transfer or exchange excess medical shelf-life items with other Federal agencies?

    Yes, you may transfer or exchange excess medical shelf-life items 
held for national emergency purposes with any other Federal agency for 
other medical materials or supplies, without GSA approval and without 
regard to part 101-46 of this title. 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.

                                 Vessels



Sec. 102-36.470  What must we do when disposing of excess vessels?

    (a) When you dispose of excess vessels you must indicate on the SF 
120 the following information:
    (1) Whether the vessel has been inspected by the Coast Guard.
    (2) Whether testing for hazardous materials has been done. And if 
so, the result of the testing, specifically the presence or absence of 
PCB's and asbestos and level of contamination.
    (3) Whether hazardous materials clean-up is required, and when it 
will be accomplished by your agency.
    (b) In accordance with section 203(i) of the Property Act, 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, and 
submarines.

[[Page 50]]



                  Subpart F--Miscellaneous Disposition



Sec. 102-36.475  What is the authority for transfers under ``Computers for Learning''?

    (a) The Stevenson-Wydler Technology Innovation Act of 1980, as 
amended (15 U.S.C. 3710(i)), authorizes Federal agencies to transfer 
excess education-related Federal equipment to educational institutions 
or nonprofit organizations for educational and research activities. 
Executive Order 12999 (3 CFR, 1996 Comp., p. 180) requires, to the 
extent permitted by law and where appropriate, the transfer of computer 
equipment for use by schools or non-profit organizations.
    (b) Each Federal agency is required to identify a point of contact 
within the agency to assist eligible recipients, and to publicize the 
availability of such property to eligible communities. Excess education-
related equipment may be transferred directly under established agency 
procedures, or reported to GSA as excess for subsequent transfer to 
potential eligible recipients as appropriate. You must include transfers 
under this authority in the annual Non-Federal Recipients Report (See 
Sec. 102-36.295) to GSA.
    (c) The ``Computers for Learning'' website has been developed to 
streamline the transfer of excess and surplus Federal computer equipment 
to schools and nonprofit educational organizations. For additional 
information about this program access the ``Computers for Learning'' 
website, http://www.computers.fed.gov.

                     PARTS 102-37--102-70 [RESERVED]

[[Page 51]]





                       SUBCHAPTER C--REAL PROPERTY



                     PART 102-71--GENERAL [RESERVED]

             PART 102-72--DELEGATION OF AUTHORITY [RESERVED]

             PART 102-73--REAL ESTATE ACQUISITION [RESERVED]

               PART 102-74--FACILITY MANAGEMENT [RESERVED]

          PART 102-75--DISPOSITION OF REAL PROPERTY [RESERVED]

             PART 102-76--DESIGN AND CONSTRUCTION [RESERVED]

               PART 102-77--ART-IN-ARCHITECTURE [RESERVED]

              PART 102-78--HISTORIC PRESERVATION [RESERVED]

       PART 102-79--ASSIGNMENT AND UTILIZATION OF SPACE [RESERVED]

       PART 102-80--SAFETY AND ENVIRONMENTAL MANAGEMENT [RESERVED]

                    PART 102-81--SECURITY [RESERVED]

                PART 102-82--UTILITY SERVICES [RESERVED]

  PART 102-83--CENTRALIZED SERVICES IN FEDERAL BUILDINGS AND COMPLEXES 
                               [RESERVED]

        PARTS 102-84--ANNUAL REAL PROPERTY INVENTORIES [RESERVED]

                     PART 102-85--102-115 [RESERVED]

[[Page 52]]





                      SUBCHAPTER D--TRANSPORTATION



                    PART 102-116--GENERAL [RESERVED]

           PART 102-117--TRANSPORTATION MANAGEMENT [RESERVED]



PART 102-118--TRANSPORTATION PAYMENT AND AUDIT--Table of Contents






                           Subpart A--General

                              Introduction

Sec.
102-118.5  What is the purpose of this part?
102-118.10  What is a transportation audit?
102-118.15  What is a transportation payment?
102-118.20  Who is subject to this part?
102-118.25  Does GSA still require my agency to submit its overall 
          transportation policies for approval?
102-118.30  Are Government corporations bound by this part?

                               Definitions

102-118.35  What definitions apply to this part?

  Subpart B--Ordering and Paying for Transportation and Transportation 
                                Services

102-118.40  How does my agency order transportation and transportation 
          services?
102-118.45  How does a transportation service provider (TSP) bill my 
          agency for transportation and transportation services?
102-118.50  How does my agency pay for transportation services?
102-118.55  What administrative procedures must my agency establish for 
          payment of freight, household goods, or other transportation 
          services?
102-118.60  To what extent must my agency use electronic commerce?
102-118.65  Can my agency receive electronic billing for payment of 
          transportation services?
102-118.70  Must my agency make all payments via electronic funds 
          transfer?
102-118.75  What if my agency or the TSP does not have an account with a 
          financial institution or approved payment agent?
102-118.80  Who is responsible for keeping my agency's electronic 
          commerce transportation billing records?
102-118.85  Can my agency use a Government contractor issued charge card 
          to pay for transportation services?
102-118.90  If my agency orders transportation and/or transportation 
          services with a Government contractor issued charge card or 
          charge account citation, is this subject to prepayment audit?
102-118.95  What forms can my agency use to pay transportation bills?
102-118.100  What must my agency ensure is on each SF 1113?
102-118.105  Where can I find the rules governing the use of a 
          Government Bill of Lading?
102-118.110  Where can I find the rules governing the use of a 
          Government Transportation Request?
102-118.115  Must my agency use a GBL?
102-118.120  Must my agency use a GTR?
102-118.125  What if my agency uses a TD other than a GBL?
102-118.130  Must my agency use a GBL for express, courier, or small 
          package shipments?
102-118.135  Where are the mandatory terms and conditions governing the 
          use of bills of lading?
102-118.140  What are the major mandatory terms and conditions governing 
          the use of GBLs and bills of lading?
102-118.145  Where are the mandatory terms and conditions governing the 
          use of passenger transportation documents?
102-118.150  What are the major mandatory terms and conditions governing 
          the use of passenger transportation documents?
102-118.155  How does my agency handle supplemental billings from the 
          TSP after payment of the original bill?
102-118.160  Who is liable if my agency makes an overpayment on a 
          transportation bill?
102-118.165  What must my agency do if it finds an error on a TSP bill?
102-118.170  Will GSA continue to maintain a centralized numbering 
          system for Government transportation documents?

             Subpart C--Use of Government Billing Documents

 Terms and Conditions Governing Acceptance and Use of a Government Bill 
 of Lading (GBL) or Government Transportation Request (GTR) (Until Form 
                               Retirement)

102-118.175  Must my agency prepare for the GBL retirement?
102-118.180  Must my agency prepare for the GTR retirement?
102-118.185  When buying freight transportation, must my agency 
          reference the applicable contract or tender on the bill of 
          lading (including GBLs)?

[[Page 53]]

102-118.190  When buying passenger transportation, must my agency 
          reference the applicable contract?
102-118.195  What documents must a transportation service provider (TSP) 
          send to receive payment for a transportation billing?
102-118.200  Can a TSP demand advance payment for the transportation 
          charges submitted on a bill of lading (including GBL)?
102-118.205  May my agency pay an agent functioning as a warehouseman 
          for the TSP providing service under the bill of lading?
102-118.210  May my agency use bills of lading other than the GBL for a 
          transportation shipment?
102-118.215  May my agency pay a TSP any extra fees to pay for the 
          preparation and use of the GBL or GTR?
102-118.220  If a transportation debt is owed to my agency by a TSP 
          because of loss or damage to property, does my agency report 
          it to GSA?
102-118.225  What constitutes final receipt of shipment?
102-118.230  What if my agency creates or eliminates a field office 
          approved to prepare transportation documents?

Agency Responsibilities When Using Government Bills of Lading (GBLs) or 
                Government Transportation Requests (GTRs)

102-118.235  Must my agency keep physical control and accountability of 
          the GBL and GTR forms or GBL and GTR numbers?
102-118.240  How does my agency get GBL and GTR forms?
102-118.245  How does my agency get an assigned set of GBL or GTR 
          numbers?
102-118.250  Who is accountable for the issuance and use of GBL and GTR 
          forms?
102-118.255  Are GBL and GTR forms numbered and used sequentially?

                    Quotations, Tenders or Contracts

102-118.260  Must my agency send all quotations, tenders, or contracts 
          with a TSP to GSA?

         Subpart D--Prepayment Audits of Transportation Services

                Agency Requirements for Prepayment Audits

102-118.265  What is a prepayment audit?
102-118.270  Must my agency establish a prepayment audit program?
102-118.275  What must my agency consider when designing and 
          implementing a prepayment audit program?
102-118.280  What advantages does the prepayment audit offer my agency?
102-118.285  What options for performing a prepayment audit does my 
          agency have?
102-118.290  Must every electronic and paper transportation bill undergo 
          a prepayment audit?
102-118.295  What are the limited exceptions to every bill undergoing a 
          prepayment audit?
102-118.300  How does my agency fund its prepayment audit program?
102-118.305  Must my agency notify the TSP of any adjustment to the 
          TSP's bill?
102-118.310  Must my agency prepayment audit program establish appeal 
          procedures whereby a TSP may appeal any reduction in the 
          amount billed?
102-118.315  What must my agency do if the TSP disputes the findings and 
          my agency cannot resolve the dispute?
102-118.320  What information must be on transportation bills which have 
          completed my agency's prepayment audit?

                     Maintaining an Approved Program

102-118.325  Must I get approval for my agency's prepayment audit 
          program?
102-118.330  What are the elements of an acceptable prepayment audit 
          program?
102-118.335  What does the GSA Audit Division consider when verifying an 
          agency prepayment audit program?
102-118.340  How does my agency contact the GSA Audit Division?
102-118.345  If my agency chooses to change an approved prepayment audit 
          program, does the program need to be re-approved?

            Liability for Certifying and Disbursing Officers

102-118.350  Does establishing a prepayment audit system or program 
          change the responsibilities of the certifying officers?
102-118.355  Does a prepayment audit waiver, change any liabilities of 
          the certifying officer?
102-118.360  What relief from liability is available for the certifying 
          official under a postpayment audit?
102-118.365  Do the requirements of a prepayment audit change the 
          disbursing official's liability for overpayment?
102-118.370  Where does relief from prepayment audit liability for 
          certifying, accountable, and disbursing officers reside in my 
          agency?

                 Waivers From Mandatory Prepayment Audit

102-118.375  Who has the authority to grant a waiver of the prepayment 
          audit requirement?
102-118.380  How does my agency apply for a waiver from the prepayment 
          audit requirement?
102-118.385  What must a waiver request include?

[[Page 54]]

102-118.390  On what basis does GSA grant a waiver to the prepayment 
          audit requirement?
102-118.395  How long will GSA take to respond to a waiver request?
102-118.400  Must my agency renew a waiver of the prepayment audit 
          requirements?
102-118.405  Are my agency's prepayment audited transportation bills 
          subject to periodic postpayment audit oversight from the GSA 
          Audit Division?

             Suspension of Agency Prepayment Audit Programs

102-118.410  Can GSA suspend my agency's prepayment audit program?

              Subpart E--Postpayment Transportation Audits

102-118.415  Will the widespread mandatory use of prepayment audits 
          eliminate postpayment audits?
102-118.420  Can the Administrator of General Services waive the 
          postpayment auditing provisions of this subpart?
102-118.425  Is my agency allowed to perform a postpayment audit on our 
          transportation bills?
102-118.430  What information must be on my agency's transportation 
          bills submitted for a postpayment audit?
102-118.435  What procedures does GSA use to perform a postpayment 
          audit?
102-118.440  What are the postpayment audit responsibilities and roles 
          of the GSA Audit Division?
102-118.445  Must my agency pay for a postpayment audit when using the 
          GSA Audit Division?

                 Subpart F--Claims and Appeal Procedures

                General Agency Information for All Claims

102-118.450  Can a TSP file a transportation claim against my agency?
102-118.445  What is the time limit for a TSP to file a transportation 
          claim against my agency?
102-118.460  What is the time limit for my agency to file a court claim 
          with a TSP for freight charges, reparations, and loss or 
          damage to the property?
102-118.465  Must my agency pay interest on a disputed amount claimed by 
          a TSP?
102-118.470  Are there statutory time limits for a TSP on filing an 
          administrative claim with the GSA Audit Division?
102-118.475  Does interest apply after certification of payment of 
          claims?
102-118.480  How does my agency settle disputes with a TSP?
102-118.485  Is there a time limit for my agency to issue a decision on 
          disputed claims?
102-118.490  What if my agency fails to settle a dispute within 30 days?
102-118.495  May my agency appeal a decision by the General Services 
          Board of Contract Appeals (GSBCA)?
102-118.500  How does my agency handle a voluntary refund submitted by a 
          TSP?
102-118.505  Must my agency send a voluntary refund to the Treasurer of 
          the United States?
102-118.510  Can my agency revise or alter a GSA Form 7931, Certificate 
          of Settlement?
102-118.515  Does my agency have any recourse not to pay a Certificate 
          of Settlement?
102-118.520  Who is responsible for determining the standards for 
          collection, compromise, termination, or suspension of 
          collection action on any outstanding debts to my agency?
102-118.525  What are my agency's responsibilities for verifying the 
          correct amount of transportation charges?
102-118.530  Will GSA instruct my agency's disbursing offices to offset 
          unpaid TSP billings?
102-118.535  Are there principles governing my agency's TSP debt 
          collection procedures?
102-118.540  Who has the authority to audit, settle accounts, and/or 
          start collection action for all transportation services 
          provided for my agency?

        Transportation Service Provider (TSP) Filing Requirements

102-118.545  What information must a TSP claim include?
102-118.550  How does a TSP file an administrative claim using EDI or 
          other electronic means?
102-118.555  Can a TSP file a supplemental administrative claim?
102-118.560  What is the required format that a TSP must use to file an 
          administrative claim?
102-118.565  What documentation is required when filing an 
          administrative claim?

 Transportation Service Provider (TSP) and Agency Appeal Procedures for 
                            Prepayment Audits

102-118.570  If my agency denies the TSP's challenge to the Statement of 
          Difference, may the TSP appeal?
102-118.575  If a TSP disagrees with the decision of my agency, can the 
          TSP appeal?
102-118.580  May a TSP appeal a prepayment audit decision of the GSA 
          Audit Division?
102-118.585  May a TSP appeal a prepayment audit decision of the GSBCA?
102-118 .590  May my agency appeal a prepayment audit decision of the 
          GSA Audit Division?

[[Page 55]]

102-118.595  May my agency appeal a prepayment audit decision by the 
          GSBCA?

 Transportation Service Provider (TSP) and Agency Appeal Procedures for 
                           Postpayment Audits

102-118.600  When a TSP disagrees with a Notice of Overcharge resulting 
          from a postpayment audit, what are the appeal procedures?
102-118.605  What if a TSP disagrees with the Notice of Indebtedness?
102-118.610  Is a TSP notified when GSA allows a claim?
102-118.615  Will GSA notify a TSP if they internally offset a payment?
102-118.620  How will a TSP know if the GSA Audit Division disallows a 
          claim?
102-118.625  Can a TSP request a reconsideration of a settlement action 
          by the GSA Audit Division?
102-118.630  How must a TSP refund amounts due to GSA?
102-118.635  Can the Government charge interest on an amount due from a 
          TSP?
102-118.640  If a TSP fails to pay or to appeal an overcharge, what 
          actions will GSA pursue to collect the debt?
102-118.645  Can a TSP file an administrative claim on collection 
          actions?
102-118.650  Can a TSP request a review of a settlement action by the 
          Administrator of General Services?
102-118.655  Are there time limits on a TSP request for an 
          administrative review by the GSBCA?
102-118.660  May a TSP appeal a postpayment audit decision of the GSBCA?
102-118.665  May my agency appeal a postpayment audit decision by the 
          GSBCA?

      Transportation Service Provider (TSP) Non-Payment of a Claim

102-118.670  If a TSP cannot immediately pay a debt, can they make other 
          arrangements for payment?
102-118.675  What recourse does my agency have if a TSP does not pay a 
          transportation debt?

    Authority: 31 U.S.C. 3726; and 40 U.S.C. 481, et seq.

    Source: 65 FR 24569, Apr. 26, 2000, unless otherwise noted.



                           Subpart A--General

                              Introduction



Sec. 102-118.5  What is the purpose of this part?

    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 Sec. 102-118.35 for the definition of TSP.)



Sec. 102-118.10  What is a transportation audit?

    A transportation audit is a thorough review and validation of 
transportation related bills. The audit must examine the validity, 
propriety, and conformity of the charges with tariffs, quotations, 
agreements, or tenders, as appropriate. Each agency must ensure that its 
internal transportation audit procedures prevent duplicate payments and 
only allow payment for authorized services, and that the TSP's bill is 
complete with required documentation.



Sec. 102-118.15  What is a transportation payment?

    A transportation payment is a payment made by an agency to a TSP for 
the movement of goods or people and/or transportation related services.



Sec. 102-118.20  Who is subject to this part?

    All agencies and TSPs defined in Sec. 102-118.35 are subject to this 
part. Your agency is required to incorporate this part into its internal 
regulations.



Sec. 102-118.25  Does GSA still require my agency to submit its overall transportation policies for approval?

    GSA no longer requires your agency to submit its overall 
transportation policies for approval. However, as noted in Sec. 102-
118.325, agencies must submit their prepayment audit plans for approval. 
In addition, GSA may from time to time request to examine your agency's 
transportation policies to verify the correct performance of the 
prepayment audit of your agency's transportation bills.



Sec. 102-118.30  Are Government corporations bound by this part?

    No, Government corporations are not bound by this part. However, 
they may choose to use it if they wish.

[[Page 56]]

                               Definitions



Sec. 102-118.35  What definitions apply to this part?

    The following definitions apply to this part:
    Agency means Executive agency, but does not include:
    (1) A Government Controlled Corporation;
    (2) The Tennessee Valley Authority;
    (3) The Virgin Islands Corporation;
    (4) The Atomic Energy Commission;
    (5) The Central Intelligence Agency;
    (6) The Panama Canal Commission; and
    (7) The National Security Agency, Department of Defense.
    Note to the definition of Agency: All agencies' payments for 
transportation services are subject to the transportation audit 
provisions of section 322 of the Transportation Act of 1940, as amended 
(31 U.S.C. 3726).
    Agency claim means any demand by an agency upon a TSP for the 
payment of overcharges, ordinary debts, fines, penalties, administrative 
fees, special charges, and interest.
    Bill of lading, sometimes referred to as a commercial bill of lading 
(but includes GBLs), is the document used as a receipt of goods, and 
documentary evidence of title. It is also a contract of carriage when 
movement is under 49 U.S.C. 10721 and 49 U.S.C. 13712.
    Document reference number means the unique number on a bill of 
lading, Government Bill of Lading, Government Transportation Request, or 
transportation ticket, used to track the movement of shipments and 
individuals.
    EDI signature means a discrete authentication code which serves in 
place of a paper signature and binds parties to the terms and conditions 
of a contract in electronic communication.
    Electronic commerce means electronic techniques for performing 
business transactions (ordering, billing, and paying for goods and 
services), including electronic mail or messaging, Internet technology, 
electronic bulletin boards, charge cards, electronic funds transfers, 
and electronic data interchange.
    Electronic data interchange means electronic techniques for carrying 
out transportation transactions using electronic transmissions of the 
information between computers instead of paper documents. These 
electronic transmissions must use established and published formats and 
codes as authorized by the applicable Federal Information Processing 
Standards.
    Electronic funds transfer means any transfer of funds, other than 
transactions initiated by cash, check, or similar paper instrument, that 
is initiated through an electronic terminal, telephone, computer, or 
magnetic tape, for the purpose of ordering, instructing, or authorizing 
a financial institution to debit or credit an account. The term includes 
Automated Clearinghouse transfers, Fed Wire transfers, and transfers 
made at automatic teller machines and point of sale terminals.
    Government Bill of Lading (GBL) means Optional Forms 1103 and 1203, 
the transportation documents issued by GSA and used as a receipt of 
goods, evidence of title, and generally a contract of carriage.
    Government contractor-issued charge card means both an individually 
billed travel card, which the individual is required to pay, and a 
centrally billed account for paying travel expenses, which the agency is 
required to pay.
    Government Transportation Request (GTR) means Optional Form 1169, 
the Government document used to buy transportation services. The 
document normally obligates the Government to pay for the transportation 
services provided.
    Offset means agency use of money owed by the agency to a 
transportation service provider (TSP) to cover a previous debt incurred 
to the agency by the TSP.
    Ordinary debt means an amount that a TSP owes an agency other than 
for the repayment of an overcharge. Ordinary debts include, but are not 
limited to, payments for transportation services ordered and not 
provided (including unused transportation tickets), duplicate payments, 
and amounts for which a TSP is liable because of loss and/or damage to 
property it transported.
    Overcharge means those charges for transportation and travel 
services that exceed those applicable under the contract for carriage. 
This also includes charges more than those applicable

[[Page 57]]

under rates, fares and charges established pursuant to section 13712 and 
10721 of the Revised Interstate Commerce Act, as amended (49 U.S.C. 
13712 and 10721), or other equivalent contract, arrangement or exemption 
from regulation.
    Postpayment audit means an audit of transportation billing documents 
after payment to decide their validity, propriety, and conformity with 
tariffs, quotations, agreements, or tenders. This process may also 
include subsequent adjustments and collections actions taken against a 
TSP by the Government.
    Prepayment audit means an audit of transportation billing documents 
before payment to determine their validity, propriety, and conformity 
with tariffs, quotations, agreements, or tenders.
    Privately Owned Personal Property Government Bill of Lading, 
Optional Form 1203, means the agency transportation document used as a 
receipt of goods, evidence of title, and generally a contract of 
carriage. It is only available for the transportation of household 
goods. Use of this form is mandatory for Department of Defense, but 
optional for other agencies.
    Rate authority means the document that establishes the legal charges 
for a transportation shipment. Charges included in a rate authority are 
those rates, fares, and charges for transportation and related services 
contained in tariffs, tenders, and other equivalent documents.
    Released value is stated in dollars and is considered the assigned 
value of the cargo for reimbursement purposes, not necessarily the 
actual value of the cargo. Released value may be more or less than the 
actual value of the cargo. The released value is the maximum amount that 
could be recovered by the agency in the event of loss or damage for the 
shipments of freight and household goods. In return, when negotiating 
for rates and the released value is proposed to be less than the actual 
value of the cargo, the TSP should offer a rate lower than other rates 
for shipping cargo at full value. The statement of released value may be 
shown on any applicable tariff, tender, contract, transportation 
document or other documents covering the shipment.
    Reparation means the payment involving a TSP to or from an agency of 
an improper transportation billing as determined by a postpayment audit. 
Improper routing, overcharges, or duplicate payments may cause such 
improper billing. This is different from payments to settle a claim for 
loss and damage to items shipped under those rates.
    Standard carrier alpha code (SCAC) means an unique four-letter code 
assigned to each TSP by the National Motor Freight Traffic Association, 
Inc.
    Statement of difference means a statement issued by an agency or its 
designated audit contractor during a prepayment audit when they 
determine that a TSP has billed the agency for more than the proper 
amount for the services. This statement tells the TSP on the invoice, 
the amount allowed and the basis for the proper charges. The statement 
also cites the applicable rate references and other data relied on for 
support. The agency issues a separate statement of difference for each 
transportation transaction.
    Statement of difference rebuttal means a document used by the agency 
to respond to a TSP's claim about an improper reduction made against the 
TSP's original bill by the paying agency.
    Supplemental bill means a bill for services that the TSP submits to 
the agency for additional payment after reimbursement for the original 
bill. The need to submit a supplemental bill may occur due to an 
incorrect first bill or due to charges which were not included on the 
original bill.
    Taxpayer identification number (TIN) means the number required by 
the Internal Revenue Service to be used by the TSP in reporting income 
tax or other returns. For a TSP, the TIN is an employer identification 
number.
    Transportation document (TD) means any executed agreement for 
transportation service, such as a bill of lading (including a Government 
Bill of Lading), a Government Transportation Request, or transportation 
ticket.
    Transportation service means service involved in the physical 
movement

[[Page 58]]

(from one location to another) of products, people, household goods, and 
any other objects by a TSP for an agency as well as activities directly 
relating to or supporting that movement. Examples of this are storage, 
crating, or connecting appliances.
    Transportation service provider (TSP) means any party, person, 
agent, or carrier that provides freight or passenger transportation and 
related services to an agency. For a freight shipment this would include 
packers, truckers, and storers. For passenger transportation this would 
include airlines, travel agents and travel management centers.
    Transportation service provider claim means any demand by the TSP 
for amounts not included in the original bill that the TSP believes an 
agency owes them. This includes amounts deducted or offset by an agency; 
amounts previously refunded by the TSP, which they now believe they are 
owed; and any subsequent bills from the TSP resulting from a transaction 
that was pre- or postpayment audited by the GSA Audit Division.
    Virtual GBL (VGBL) means the use of a unique GBL number on a 
commercial document, which binds the TSP to the terms and conditions of 
a GBL.

    Note to Sec. 102-118.35: 49 U.S.C. 13102, et seq., defines 
additional transportation terms not listed in this section.



  Subpart B--Ordering and Paying for Transportation and Transportation 
                                Services



Sec. 102-118.40  How does my agency order transportation and transportation services?

    Your agency orders:
    (a) Transportation of freight and household goods and related 
transportation services (e.g., packing, storage) with a charge card, 
bill of lading, purchase order (or electronic equivalent), or for 
domestic shipments until September 30, 2001, a Government Bill of Lading 
(GBL). GBLs will continue to be available after that date, if needed, 
for international shipments (including domestic overseas shipments).
    (b) Transportation of people through the purchase of transportation 
tickets with a Government issued charge card (or centrally billed travel 
account citation), Government issued individual travel charge card, 
personal charge card, cash (in accordance with Department of the 
Treasury regulations), or in limited prescribed situations, a Government 
Transportation Request (GTR). See the ``U.S. Government Passenger 
Transportation--Handbook,'' obtainable from:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.45  How does a transportation service provider (TSP) bill my agency for transportation and transportation services?

    The manner in which your agency orders transportation and 
transportation services determines the manner in which a TSP bills for 
service. This is shown in the following table:

                 Transportation Service Provider Billing
------------------------------------------------------------------------
          (a) Ordering method                   (b) Billing method
------------------------------------------------------------------------
(1)(i) Government issued agency charge   (1) Bill from charge card
 card,.                                   company (may be electronic).
(ii) Centrally billed travel account
 citation.
------------------------------------------------------------------------
(2)(i) Purchase order,.................  (2) Bill from TSP (may be
                                          electronic).
(ii) Bill of lading,
(iii) Government Bill of Lading,

[[Page 59]]

 
(iv) Government Transportation Request.
------------------------------------------------------------------------
(3)(i) Contractor issued individual      (3) Voucher from employee (may
 travel charge card.                      be electronic).
(ii) Personal charge card,
(iii) Personal cash.
------------------------------------------------------------------------



Sec. 102-118.50  How does my agency pay for transportation services?

    Your agency may pay for transportation services in three ways:
    (a) Electronic funds transfer (EFT) (31 U.S.C. 3332, et seq.). Your 
agency is required by statute to make all payments by EFT unless your 
agency receives a waiver from the Department of the Treasury.
    (b) Check. For those situations where EFT is not possible and the 
Department of the Treasury has issued a waiver, your agency may make 
payments by check.
    (c) Cash. In very unusual circumstances and as a last option, your 
agency payments may be made in cash in accordance with Department of the 
Treasury regulations (31 CFR part 208).



Sec. 102-118.55  What administrative procedures must my agency establish for payment of freight, household goods, or other transportation services?

    Your agency must establish administrative procedures which assure 
that the following conditions are met:
    (a) The negotiated price is fair and reasonable;
    (b) A document of agreement signifying acceptance of the 
arrangements with terms and conditions is filed with the participating 
agency by the TSP;
    (c) The terms and conditions are included in all transportation 
agreements and referenced on all transportation documents (TDs);
    (d) Bills are only paid to the TSP providing service under the bill 
of lading to your agency and may not be waived;
    (e) All fees paid are accounted for in the aggregate delivery costs;
    (f) All payments are subject to applicable statutory limitations;
    (g) Procedures (such as an unique numbering system) are established 
to prevent and detect duplicate payments, properly account for 
expenditures and discrepancy notices;
    (h) All transactions are verified with any indebtedness list. On 
charge card transactions, your agency must consult any indebtedness list 
if the charge card contract provisions allow for it; and
    (i) Procedures are established to process any unused tickets.



Sec. 102-118.60  To what extent must my agency use electronic commerce?

    Your agency should use electronic commerce (i.e., electronic methods 
for ordering, receiving bills, and paying for transportation and 
transportation services) to the maximum extent possible.



Sec. 102-118.65  Can my agency receive electronic billing for payment of transportation services?

    Yes, when mutually agreeable to the agency and the GSA Audit 
Division, your agency is encouraged to use electronic billing for the 
procurement and billing of transportation services.



Sec. 102-118.70  Must my agency make all payments via electronic funds transfer?

    Yes, under 31 U.S.C. 3332, et seq., your agency must make all 
payments for goods and services via EFT (this includes goods and 
services ordered using charge cards).

[[Page 60]]



Sec. 102-118.75  What if my agency or the TSP does not have an account with a financial institution or approved payment agent?

    Under 31 U.S.C. 3332, et seq., your agency must obtain an account 
with a financial institution or approved payment agent in order to meet 
the statutory requirements to make all Federal payments via EFT unless 
your agency receives a waiver from the Department of the Treasury. To 
obtain a waiver, your agency must contact:

The Commissioner
Financial Management Service
Department of the Treasury
401 Fourteenth Street, SW.
Washington, DC 20227
http://www.fms.treas.gov/



Sec. 102-118.80  Who is responsible for keeping my agency's electronic commerce transportation billing records?

    Your agency's internal financial regulations will identify 
responsibility for recordkeeping. In addition, the GSA Audit Division 
keeps a central repository of electronic transportation billing records 
for legal and auditing purposes. Therefore, your agency must forward all 
relevant electronic transportation billing documents to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.85  Can my agency use a Government contractor issued charge card to pay for transportation services?

    Yes, your agency may use a Government contractor issued charge card 
to purchase transportation services if permitted under the charge card 
contract or task order. In these circumstances your agency will receive 
a bill for these services from the charge card company.



Sec. 102-118.90  If my agency orders transportation and/or transportation services with a Government contractor issued charge card or charge account citation, 
          is this subject to prepayment audit?

    Generally, no transportation or transportation services ordered with 
a Government contractor issued charge card or charge account citation 
can be prepayment audited because the bank or charge card contractor 
pays the TSP directly, before your agency receives a bill that can be 
audited from the charge card company. However, if your agency contracts 
with the charge card or charge account provider to provide for a 
prepayment audit, then, as long as your agency is not liable for paying 
the bank for improper charges (as determined by the prepayment audit 
verification process), a prepayment audit can be used. As with all 
prepayment audit programs, the charge card prepayment audit must be 
approved by the GSA Audit Division prior to implementation. If the 
charge card contract does not provide for a prepayment audit, your 
agency must submit the transportation line items on the charge card to 
the GSA Audit Division for a postpayment audit.



Sec. 102-118.95  What forms can my agency use to pay transportation bills?

    Your agency must use commercial payment practices and forms to the 
maximum extent possible; however, when viewed necessary by your agency, 
your agency may use the following Government forms to pay transportation 
bills:
    (a) Standard Form (SF) 1113, Public Voucher for Transportation 
Charges, and SF 1113-A, Memorandum Copy;
    (b) Optional Form (OF) 1103, Government Bill of Lading and OF 1103A 
Memorandum Copy (used for movement of things, both privately owned and 
Government property for official uses);
    (c) OF 1169, Government Transportation Request (used to pay for 
tickets to move people); and
    (d) OF 1203, Privately Owned Personal Property Government Bill of 
Lading, and OF 1203A, Memorandum Copy (used by the Department of Defense 
to move private property for official transfers).

    Note to Sec. 102-118.95: By September 30, 2001, your agency may no 
longer use the GBLs (OF 1103 and OF 1203) for domestic shipments. After 
September 30, 2000, your agency should minimize the use of GTRs (OF 
1169).

[[Page 61]]



Sec. 102-118.100  What must my agency ensure is on each SF 1113?

    Your agency must ensure during its prepayment audit of a TSP bill 
that the TSP filled out the Public Vouchers, SF 1113, completely 
including the taxpayer identification number (TIN), and standard carrier 
alpha code (SCAC). An SF 1113 must accompany all billings.



Sec. 102-118.105  Where can I find the rules governing the use of a Government Bill of Lading?

    The ``U.S. Government Freight Transportation--Handbook'' contains 
information on how to prepare this GBL form. To get a copy of this 
handbook, you may write to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.110  Where can I find the rules governing the use of a Government Transportation Request?

    The ``U.S. Government Passenger Transportation--Handbook'' contains 
information on how to prepare this GTR form. To get a copy of this 
handbook, you may write to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.115  Must my agency use a GBL?

    No, your agency is not required to use a GBL and must use commercial 
payment practices to the maximum extent possible. Effective September 
30, 2001, your agency must phase out the use of the Optional Forms 1103 
and 1203 for domestic shipments. After this date, your agency may use 
the GBL solely for international shipments.



Sec. 102-118.120  Must my agency use a GTR?

    No, your agency is not required to use a GTR. Your agency must adopt 
commercial practices and eliminate GTR use to the maximum extent 
possible.



Sec. 102-118.125  What if my agency uses a TD other than a GBL?

    If your agency uses any other TD for shipping under its account, the 
requisite and the named safeguards must be in place (i.e., terms and 
conditions found herein and in the ``U.S. Government Freight 
Transportation--Handbook,'' appropriate numbering, etc.).



Sec. 102-118.130  Must my agency use a GBL for express, courier, or small package shipments?

    No, however, in using commercial forms all shipments must be subject 
to the terms and conditions set forth for use of a bill of lading for 
the Government. Any other non-conflicting applicable contracts or 
agreements between the TSP and an agency involving buying transportation 
services for Government traffic remain binding. This purchase does not 
require a SF 1113. When you are using GSA's schedule for small package 
express delivery, the terms and conditions of that contract are binding.



102-118.135  Where are the mandatory terms and conditions governing the use of bills of lading?

    The mandatory terms and conditions governing the use of bills of 
lading are contained in this part and the ``U.S. Government Freight 
Transportation Handbook.''



102-118.140  What are the major mandatory terms and conditions governing the use of GBLs and bills of lading?

    The mandatory terms and conditions governing the use of GBLs and 
bills of lading are:
    (a) Unless otherwise permitted by statute, the TSP must not demand 
prepayment or collect charges from the consignee. The TSP, providing 
service under the bill of lading, must present the original, properly 
certified GBL or bill of lading attached to an SF 1113, Public Voucher 
for Transportation Charges, to the paying office for payment;
    (b) The shipment must be made at the restricted or limited valuation 
specified in the tariff or classification or limited contract, 
arrangement or exemption at or under which the lowest

[[Page 62]]

rate is available, unless indicated on the GBL or bill of lading. (This 
is commonly referred to as an alternation of rates);
    (c) Receipt for the shipment is subject to the consignee's 
annotation of loss, damage, or shrinkage on the delivering TSP's 
documents and the consignee's copy of the same documents. If loss or 
damage is discovered after delivery or receipt of the shipment, the 
consignee must promptly notify the nearest office of the last delivering 
TSP and extend to the TSP the privilege of examining the shipment;
    (d) The rules and conditions governing commercial shipments for the 
time period within which notice must be given to the TSP, or a claim 
must be filed, or suit must be instituted, shall not apply if the 
shipment is lost, damaged or undergoes shrinkage in transit. Only with 
the written concurrence of the Government official responsible for 
making the shipment is the deletion of this item considered to valid;
    (e) Interest shall accrue from the voucher payment date on the 
overcharges made and shall be paid at the same rate in effect on that 
date as published by the Secretary of the Treasury pursuant to the Debt 
Collection Act of 1982 31 U.S.C. 3717); and
    (f) Additional mandatory terms and conditions are in this part and 
the ``U.S. Government Freight Transportation--Handbook.''



102-118.145  Where are the mandatory terms and conditions governing the use of passenger transportation documents?

    The mandatory terms and conditions governing the use of passenger 
transportation documents are contained in this part and the ``U.S. 
Government Passenger Transportation--Handbook.''



102-118.150  What are the major mandatory terms and conditions governing the use of passenger transportation documents?

    The mandatory terms and conditions governing the use of passenger 
transportation documents are:
    (a) Government travel must be via the lowest cost available, that 
meets travel requirements; e.g., Government contract, fare, through, 
excursion, or reduced one way or round trip fare. This should be done by 
entering the term ``lowest coach'' on the Government travel document if 
the specific fare basis is not known;
    (b) The U.S. Government is not responsible for charges exceeding 
those applicable to the type, class, or character authorized in 
transportation documents;
    (c) The U.S. Government 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 Chapters 300 and 301 (41 CFR 
chapters 300 and 301), and the ``U.S. Government Passenger 
Transportation--Handbook'';
    (e) Interest shall accrue from the voucher payment date on 
overcharges made hereunder and shall be paid at the same rate in effect 
on that date as published by the Secretary of the Treasury pursuant to 
the Debt Collection Act of 1982;
    (f) The TSP must insert on the TD any known dates on which travel 
commenced;
    (g) The issuing official or traveler, by signature, certifies that 
the requested transportation is for official business;
    (h) The TSP must not honor any request containing erasures or 
alterations unless the TD contains the authentic, valid initials of the 
issuing official; and
    (i) Additional mandatory terms and conditions are in this part and 
the ``U. S. Government Passenger Transportation--Handbook.''



Sec. 102-118.155  How does my agency handle supplemental billings from the TSP after payment of the original bill?

    Your agency must process, review, and verify supplemental billings 
using the same procedures as on an original billing. If the TSP disputes 
the findings, your agency must attempt to resolve the disputed amount.

[[Page 63]]



Sec. 102-118.160  Who is liable if my agency makes an overpayment on a transportation bill?

    If the agency conducts prepayment audits of its transportation 
bills, agency transportation certifying and disbursing officers are 
liable for any overpayments made. If GSA has granted a waiver to the 
prepayment audit requirement and the agency performs a postpayment audit 
(31 U.S.C. 3528 and 31 U.S.C. 3322) neither the certifying nor 
disbursing officers are liable for the reasons listed in these two cited 
statutes.



Sec. 102-118.165  What must my agency do if it finds an error on a TSP bill?

    Your agency must advise the TSP via statement of difference of any 
adjustment that you make either electronically or in writing within 7 
days of receipt of the bill, as required by the Prompt Payment Act (31 
U.S.C. 3901, et seq.). This notice must include the TSP's taxpayer 
identification number, standard carrier alpha code, bill number and 
document reference number, agency name, amount requested by the TSP, 
amount paid, payment voucher number, complete tender or tariff 
authority, the applicable rate authority and the complete fiscal 
authority including the appropriation.



Sec. 102-118.170  Will GSA continue to maintain a centralized numbering system for Government transportation documents?

    Yes, GSA will maintain a numbering system for GBLs and GTRs. For 
commercial TDs, each agency must create a unique numbering system to 
account for and prevent duplicate numbers. The GSA Audit Division must 
approve this system. Write to:

General Services Administration
Federal supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



             Subpart C--Use of Government Billing Documents

 Terms and Conditions Governing Acceptance and Use of a Government Bill 
 of Lading (GBL) or Government Transportation Request (GTR) (Until Form 
                               Retirement)



Sec. 102-118.175  Must my agency prepare for the GBL retirement?

    Yes, your agency must prepare for the GBL retirement. Effective 
September 30, 2001, your agency must phase out the use of the SF 1103, 
Government Bill of Lading, GBL, and SF 1203, Privately Owned Personal 
Property Government Bill of Lading (PPGBLs), for domestic shipments. 
After September 30, 2001, your agency may use the GBL or PPGBL solely 
for international shipments (including domestic overseas shipments).



Sec. 102-118.180  Must my agency prepare for the GTR retirement?

    Yes, your agency must use the GTR only in situations that do not 
lend themselves to the use of commercial payment methods.



Sec. 102-118.185  When buying freight transportation, must my agency reference the applicable contract or tender on the bill of lading (including a GBL)?

    Yes, your agency must reference the applicable contract or tender 
when buying transportation on a bill of lading (including GBLs). 
However, the referenced information on a GBL or bill of lading does not 
limit an audit of charges.



Sec. 102-118.190  When buying passenger transportation must my agency reference the applicable contract?

    Yes, when buying passenger transportation, your agency must 
reference the applicable contract on a GTR or passenger transportation 
document (e.g., ticket).

[[Page 64]]



Sec. 102-118.195  What documents must a transportation service provider (TSP) send to receive payment for a transportation billing?

    For shipments bought on a TD, the TSP must submit an original 
properly certified GBL, PPGBL, or bill of lading attached to an SF 1113, 
Public Voucher for Transportation Charges. The TSP must submit this 
package and all supporting documents to the agency paying office.



Sec. 102-118.200  Can a TSP demand advance payment for the transportation charges submitted on a bill of lading (including GBL)?

    No, a TSP cannot demand advance payment for transportation charges 
submitted on a bill of lading (including GBL), unless authorized by law.



Sec. 102-118.205  May my agency pay an agent functioning as a warehouseman for the TSP providing service under the bill of lading?

    No, your agency may only pay the TSP with whom it has a contract. 
The bill of lading will list the TSP with whom the Government has a 
contract.



Sec. 102-118.210  May my agency use bills of lading other than the GBL for a transportation shipment?

    Yes, as long as the mandatory terms and conditions contained in this 
part (as also stated on a GBL) apply. The TSP must agree in writing to 
the mandatory terms and conditions (also found in the ``U.S. Government 
Freight Transportation Handbook'') contained in this part.



Sec. 102-118.215  May my agency pay a TSP any extra fees to pay for the preparation and use of the GBL or GTR?

    No, your agency must not pay any additional charges for the 
preparation and use of the GBL or GTR. Your agency may not pay a TSP a 
higher rate than comparable under commercial procedures for 
transportation bought on a GBL or GTR.



Sec. 102-118.220  If a transportation debt is owed to my agency by a TSP because of loss or damage to property, does my agency report it to GSA?

    No, if your agency has administratively determined that a TSP owes a 
debt resulting from loss or damage, follow your agency regulations.



Sec. 102-118.225  What constitutes final receipt of shipment?

    Final receipt of the shipment occurs when the consignee or a TSP 
acting on behalf of the consignee with the agency's permission, fully 
signs and dates both the delivering TSP's documents and the consignee's 
copy of the same documents indicating delivery and/or explaining any 
delay, loss, damage, or shrinkage of shipment.



Sec. 102-118.230  What if my agency creates or eliminates a field office approved to prepare transportation documents?

    Your agency must tell the GSA Audit Division whenever it approves a 
new or existing agency field office to prepare transportation documents 
or when an agency field office is no longer authorized to do so. This 
notice must show the name, field office location of the bureau or 
office, and the date on which your agency granted or canceled its 
authority to schedule payments for transportation service.

Agency Responsibilities When Using Government Bills of Lading (GBLs) or 
                Government Transportation Requests (GTRs)



Sec. 102-118.235  Must my agency keep physical control and accountability of the GBL and GTR forms or GBL and GTR numbers?

    Yes, your agency is responsible for the physical control and 
accountability of the GBL and GTR stock and must have procedures in 
place and available for inspection by GSA. Your agency must consider 
these Government transportation documents to be the same as money.



Sec. 102-118.240  How does my agency get GBL and GTR forms?

    Your agency can get GBL and GTR forms, in either blank or 
prenumbered formats, from:


[[Page 65]]


General Services Administration
Federal Supply Service
General Products Commodity Center (7FXM-WS)
819 Taylor Street, Room 6A24
Fort Worth, TX 76102



Sec. 102-118.245  How does my agency get an assigned set of GBL or GTR numbers?

    If your agency does not use prenumbered GBL and GTR forms, you may 
get an assigned set of numbers from:

General Services Administration
Federal Supply Service
General Products Commodity Center (7FXM-WS)
819 Taylor Street, Room 6A24
Fort Worth, TX 76102



Sec. 102-118.250  Who is accountable for the issuance and use of GBL and GTR forms?

    Agencies and employees are responsible for the issuance and use of 
GBL and GTR forms and are accountable for their disposition.



Sec. 102-118.255  Are GBL and GTR forms numbered and used sequentially?

    Yes, GBL and GTR forms are always sequentially numbered when printed 
and/or used. No other numbering of the forms, including additions or 
changes to the prefixes or additions of suffixes, is permitted.

                    Quotations, Tenders or Contracts



Sec. 102-118.260  Must my agency send all quotations, tenders, or contracts with a TSP to GSA?

    (a) Yes, your agency must send two copies of each quotation, tender, 
or contract of special rates, fares, charges, or concessions with TSPs 
including those authorized by 49 U.S.C. 10721 and 13712, upon execution 
to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav

    (b) When this information is in an electronic format approved by the 
GSA Audit Division, your agency will transfer the information 
electronically.



         Subpart D--Prepayment Audits of Transportation Services

                Agency Requirements for Prepayment Audits



Sec. 102-118.265  What is a prepayment audit?

    A prepayment audit is a review of a transportation service provider 
(TSP) bill that occurs prior to your agency making payment to a TSP. 
This review compares the charges on the bill against the charge 
permitted under the contract, rate tender, or other agreement under 
which the TSP provided the transportation and/or transportation related 
services.



Sec. 102-118.270  Must my agency establish a prepayment audit program?

    (a) Yes, under 31 U.S.C. 3726, your agency is required to establish 
a prepayment audit program. Your agency must send a preliminary copy of 
your prepayment audit program to:

General Services Administration
Office of Transportation and Personal Property (MT)
1800 F Street, NW.
Washington, DC 20405
http://policyworks.gov/org/main/MT

    (b) The final plan must be approved and in place by April 20, 2000.



Sec. 102-118.275  What must my agency consider when designing and implementing a prepayment audit program?

    As shown in Sec. 102-118.45, the manner in which your agency orders 
transportation services determines how and by whom the bill for those 
services will be presented. Your agency's prepayment audit program must 
consider all of the methods that you use to order and pay for 
transportation services. With each method of ordering transportation 
services, your agency should ensure that each TSP bill or employee 
travel voucher contains enough information for the prepayment audit to 
determine which contract or rate tender is used and that the type and 
quantity of any additional services are clearly delineated. Each method 
of ordering transportation and transportation services may require a 
different kind of prepayment audit.

[[Page 66]]



Sec. 102-118.280  What advantages does the prepayment audit offer my agency?

    Prepayment auditing will allow your agency to detect and eliminate 
billing errors before payment and will eliminate the time and cost of 
recovering agency overpayments.



Sec. 102-118.285  What options for performing a prepayment audit does my agency have?

    Your agency may perform a prepayment audit by:
    (a) Creating an internal prepayment audit program;
    (b) Contracting directly with a prepayment audit service provider; 
or
    (c) Using the services of a prepayment audit contractor under GSA's 
multiple award schedule covering audit and financial management 
services.

    Note to Sec. 102-118.285: Either of the choices in paragraph (a), 
(b) or (c) of this section might include contracts with charge card 
companies that provide prepayment audit services.



Sec. 102-118.290  Must every electronic and paper transportation bill undergo a prepayment audit?

    Yes, all transportation bills and payments must undergo a prepayment 
audit unless your agency's prepayment audit program uses a statistical 
sampling technique of the bills or the Administrator of General Services 
grants a specific waiver from the prepayment audit requirement. If your 
agency chooses to use statistical sampling, all bills must be at or 
below the Comptroller General specified limit of $2,500.00 (31 U.S.C. 
3521(b) and General Accounting Office Policy and Procedures Manual 
Chapter 7, obtainable from:

U.S. General Accounting Office
P.O. Box 6015
Gaithersburg, MD 20884-6015
http://www.gao.gov



Sec. 102-118.295  What are the limited exceptions to every bill undergoing a prepayment audit?

    The limited exceptions to bills undergoing a prepayment audit are 
those bills subject to a waiver from GSA (which may include bills 
determined to be below your agency's threshold). The waiver to 
prepayment audit requirements may be for bills, mode or modes of 
transportation or for an agency or subagency.



Sec. 102-118.300  How does my agency fund its prepayment audit program?

    Your agency must pay for the prepayment audit from those funds 
appropriated for transportation services.



Sec. 102-118.305  Must my agency notify the TSP of any adjustment to the TSP's bill?

    Yes, your agency must notify the TSP of any adjustment to the TSP's 
bill either electronically or in writing within 7 days of receipt of the 
bill. This notice must refer to the TSP's bill number, agency name, 
taxpayer identification number, standard carrier alpha code, document 
reference number, amount billed, amount paid, payment voucher number, 
complete tender or tariff authority, including item or section number.



Sec. 102-118.310  Must my agency prepayment audit program establish appeal procedures whereby a TSP may appeal any reduction in the amount billed?

    Yes, your agency must establish an appeal process that directs TSP 
appeals to an agency official who is able to provide adequate 
consideration and review of the circumstances of the claim. Your agency 
must complete the review of the appeal within 30 days.



Sec. 102-118.315  What must my agency do if the TSP disputes the findings and my agency cannot resolve the dispute?

    (a) If your agency is unable to resolve the disputed amount with the 
TSP, your agency should forward all relevant documents including a 
complete billing history, and the appropriation or fund charged, to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav

    (b) The GSA Audit Division will review the appeal of an agency's 
final, full or partial denial of a claim and

[[Page 67]]

issue a decision. A TSP must submit claims within 3 years under the 
guidelines established in Sec. 102-118.460.



Sec. 102-118.320  What information must be on transportation bills that have completed my agency's prepayment audit?

    (a) The following information must be annotated on all 
transportation bills that have completed a prepayment audit:
    (1) The date received from a TSP;
    (2) A TSP's bill number;
    (3) Your agency name;
    (4) A Document Reference Number (DRN);
    (5) The amount billed;
    (6) The amount paid;
    (7) The payment voucher number;
    (8) Complete tender or tariff authority, including item or section 
number;
    (9) The TSP's taxpayer identification number (TIN);
    (10) The TSP's standard carrier alpha code (SCAC);
    (11) The auditor's authorization code or initials; and
    (12) A copy of any statement of difference sent to the TSP.
    (b) Your agency can find added guidance in the ``U.S. Government 
Freight Transportation--Handbook,'' obtainable from:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav

                     Maintaining an Approved Program



Sec. 102-118.325  Must I get approval for my agency's prepayment audit program?

    Yes, your agency must get approval for your prepayment audit 
program. The highest level budget or financial official of each agency, 
such as the Chief Financial Officer, initially approves your agency's 
prepayment audit program. After internal agency approval, your agency 
submits the plan in writing to the GSA Audit Division for final 
approval.



Sec. 102-118.330  What are the elements of an acceptable prepayment audit program?

    An acceptable prepayment audit program must:
    (a) Verify all transportation bills against filed rates and charges 
before payment;
    (b) Comply with the Prompt Payment Act (31 U.S.C. 3901, et seq.);
    (c) Allow for your agency to establish minimum dollar thresholds for 
transportation bills subject to audit;
    (d) Require your agency's paying office to offset debts from amounts 
owed to the TSP within the 3 years as per 31 U.S.C. 3726(b);
    (e) Be approved by the GSA Audit Division. After the initial 
approval, the agency may be subject to periodic program review and 
reapproval;
    (f) Complete accurate audits of transportation bills and notify the 
TSP of any adjustment within 7 calendar days of receipt;
    (g) Create accurate notices to the TSPs that describe in detail the 
reasons for any full or partial rejection of the stated charges on the 
invoice. An accurate notice must include the TSP's invoice number, the 
billed amount, TIN, standard carrier alpha code, the charges calculated 
by the agency, and the specific reasons including applicable rate 
authority for the rejection;
    (h) Forward documentation monthly to the GSA Audit Division, which 
will store paid transportation bills under the General Records Schedule 
9, Travel and Transportation (36 CFR Chapter XII, 1228.22) which 
requires keeping records for 3 years. GSA will arrange for storage of 
any document requiring special handling (e.g., bankruptcy, court case, 
etc.). These bills will be retained pursuant to 44 U.S.C. 3309 until 
claims have been settled;
    (i) Establish procedures in which transportation bills not subject 
to prepayment audit (i.e., bills for unused tickets and charge card 
billings) are handled separately and forwarded to the GSA Audit 
Division; and
    (j) Implement a unique agency numbering system to handle commercial 
paper and practices (see Sec. 102-118.55).

[[Page 68]]



Sec. 102-118.335  What does the GSA Audit Division consider when verifying an agency prepayment audit program?

    The GSA Audit Division bases verification of agency prepayment audit 
programs on objective cost-savings, paperwork reductions, current audit 
standards and other positive improvements, as well as adherence to the 
guidelines listed in this part.



Sec. 102-118.340  How does my agency contact the GSA Audit Division?

    Your agency may contact the GSA Audit Division by writing to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.345  If my agency chooses to change an approved prepayment audit program, does the program need to be reapproved?

    Yes, you must receive approval of any changes in your agency's 
prepayment audit program from the GSA Audit Division.

            Liability for Certifying and Disbursing Officers



Sec. 102-118.350  Does establishing a prepayment audit system or program change the responsibilities of the certifying officers?

    Yes, in a prepayment audit environment, an official certifying a 
transportation voucher is held liable for verifying transportation 
rates, freight classifications, and other information provided on a 
transportation billing instrument or transportation request undergoing a 
prepayment audit (31 U.S.C. 3528).



Sec. 102-118.355  Does a prepayment audit waiver change any liabilities of the certifying officer?

    Yes, a certifying official is not personally liable for verifying 
transportation rates, freight classifications, or other information 
provided on a GBL or passenger transportation request when the 
Administrator of General Services or designee waives the prepayment 
audit requirement and your agency uses postpayment audits.



Sec. 102-118.360  What relief from liability is available for the certifying official under a postpayment audit?

    The agency counsel relieves a certifying official from liability for 
overpayments in cases where postpayment is the approved method of 
auditing and:
    (a) The overpayment occurred solely because the administrative 
review before payment did not verify transportation rates; and
    (b) The overpayment was the result of using improper transportation 
rates or freight classifications or the failure to deduct the correct 
amount under a land grant law or agreement.



Sec. 102-118.365  Do the requirements of a prepayment audit change the disbursing official's liability for overpayment?

    Yes, the disbursing official has a liability for overpayments on all 
transportation bills subject to prepayment audit (31 U.S.C. 3322).



Sec. 102-118.370  Where does relief from prepayment audit liability for certifying, accountable, and disbursing officers reside in my agency?

    Your agency's counsel has the authority to relieve liability and 
give advance opinions on liability issues to certifying, accountable, 
and disbursing officers (31 U.S.C. 3527).

                 Waivers from Mandatory Prepayment Audit



Sec. 102-118.375  Who has the authority to grant a waiver of the prepayment audit requirement?

    Only the Administrator of General Services or designee has the 
authority to grant waivers from the prepayment audit requirement.



Sec. 102-118.380  How does my agency apply for a waiver from a prepayment audit of requirement?

    Your agency must submit a request for a waiver from the requirement 
to perform a prepayment in writing to:

General Services Administration
Office of Transportation and Personal Property (MT)

[[Page 69]]

1800 F Street, NW.
Washington, DC 20405
 http://policyworks.gov/org/main/MT



Sec. 102-118.385  What must a waiver request include?

    A waiver request must explain in detail how the use of a prepayment 
audit increases costs over a postpayment audit, decreases efficiency, 
involves a relevant public interest, adversely affects the agency's 
mission, or is not feasible for the agency. A waiver request must 
identify the mode or modes of transportation, agency or subagency to 
which the waiver would apply.



Sec. 102-118.390  On what basis does GSA grant a waiver to the prepayment audit requirement?

    GSA issues waivers to the prepayment audit requirement based on:
    (a) Cost-effectiveness;
    (b) Government efficiency;
    (c) Public interest; or
    (d) Other factors the Administrator of General Services considers 
appropriate.



Sec. 102-118.395  How long will GSA take to respond to a waiver request?

    GSA will respond to a written waiver request within 30 days from the 
receipt of the request.



Sec. 102-118.400  Must my agency renew a waiver of the prepayment audit requirements?

    Yes, your agency waiver to the prepayment audit requirement will not 
exceed 2 years. Your agency must reapply to ensure the circumstances at 
the time of approval still apply.



Sec. 102-118.405  Are my agency's prepayment audited transportation bills subject to periodic postpayment audit oversight from the GSA Audit Division?

    Yes, two years or more after starting prepayment audits, the GSA 
Audit Division (depending on its evaluation of the results) may subject 
your agency's prepayment audited transportation bills to periodic 
postpayment audit oversight rather than blanket postpayment audits. The 
GSA Audit Division will then prepare a report analyzing the success of 
your agency's prepayment audit program. This report will be on file at 
GSA and available for your review.

             Suspension of Agency Prepayment Audit Programs



Sec. 102-118.410  Can GSA suspend my agency's prepayment audit program?

    (a) Yes, the Director of the GSA Audit Division may suspend your 
agency's prepayment audit program based on his or her determination of a 
systematic or frequent failure of the program to:
    (1) Conduct an accurate prepayment audit of your agency's 
transportation bills;
    (2) Abide by the terms of the Prompt Payment Act;
    (3) Adjudicate TSP claims disputing prepayment audit positions of 
the agency regularly within 30 days of receipt;
    (4) Follow Comptroller General decisions, GSA Board of Contract 
Appeals decisions, the Federal Management Regulation and GSA 
instructions or precedents about substantive and procedure matters; and/
or
    (5) Provide information and data or to cooperate with on-site 
inspections necessary to conduct a quality assurance review.
    (b) A systematic or a multitude of individual failures will result 
in suspension. A suspension of an agency's prepayment audit program may 
be in whole or in part for failure to conduct proper prepayment audits.



              Subpart E--Postpayment Transportation Audits



Sec. 102-118.415  Will the widespread mandatory use of prepayment audits eliminate postpayment audits?

    No, the mandatory use of prepayment audits will not eliminate 
postpayment audits because:
    (a) Postpayment audits will continue for those areas which do not 
lend themselves to the prepayment audit; and
    (b) The GSA Audit Division will continue to review and survey the 
progress of the prepayment audit by performing a postpayment audit on 
the bills. The GSA Audit Division has a Congressionally mandated 
responsibility under 31

[[Page 70]]

U.S.C. 3726 to perform oversight on transportation bill payments. During 
the early startup period for prepayment audits, transportation bills are 
subject to a possible postpayment audit to discover the effectiveness of 
the prepayment audit process.



Sec. 102-118.420  Can the Administrator of General Services waive the postpayment auditing provisions of this subpart?

    Yes, in certain circumstances, the Administrator of General Services 
or designee may waive the postpayment audit oversight requirements of 
this subpart on a case by case basis.



Sec. 102-118.425  Is my agency allowed to perform a postpayment audit on our transportation bills?

    No, your agency must forward all transportation bills to GSA for a 
postpayment audit regardless of any waiver allowing for postpayment 
audit.



Sec. 102-118.430  What information must be on my agency's transportation bills submitted for a postpayment audit?

    Your agency must annotate all of its transportation bills submitted 
for postpayment audit with:
    (a) The date received from a TSP;
    (b) A TSP's bill number;
    (c) Your agency name;
    (d) A Document Reference Number;
    (e) The amount requested;
    (f) The amount paid;
    (g) The payment voucher number;
    (h) Complete tender or tariff authority, including contract price 
(if purchased under the Federal Acquisition Regulation), item or section 
number;
    (i) The TSP's taxpayer identification number; and
    (j) The TSP's standard carrier alpha code (SCAC).



Sec. 102-118.435  What procedures does GSA use to perform a postpayment audit?

    When GSA performs a postpayment audit, the GSA Audit Division has 
the delegated authority to implement the following procedures:
    (a) Audit selected TSP bills after payment;
    (b) Audit selected TSP bills before payment as needed to protect the 
Government's interest (i.e., bankruptcy, fraud);
    (c) Examine, settle, and adjust accounts involving payment for 
transportation and related services for the account of agencies;
    (d) Adjudicate and settle transportation claims by and against 
agencies;
    (e) Offset an overcharge by any TSP from an amount subsequently 
found to be due that TSP;
    (f) Issue a Notice of Overcharge stating that a TSP owes a debt to 
the agency. This notice states the amount paid, the basis for the proper 
charge for the document reference number, and cites applicable tariff or 
tender along with other data relied on to support the overcharge. A 
separate Notice of Overcharge is prepared and mailed for each bill; and
    (g) Issue a GSA Notice of Indebtedness when a TSP owes an ordinary 
debt to an agency. This notice states the basis for the debt, the TSP's 
rights, interest, penalty, and other results of nonpayment. The debt is 
due immediately and subject to interest charges, penalties, and 
administrative cost under 31 U.S.C. 3717.



Sec. 102-118.440  What are the postpayment audit responsibilities and roles of the GSA Audit Division?

    When the GSA Audit Division performs a postpayment audit for your 
agency, GSA will:
    (a) Examine and analyze payments to discover their validity, 
relevance and conformity with tariffs, quotations, contracts, agreements 
or tenders and make adjustments to protect the interest of an agency;
    (b) Examine, adjudicate, and settle transportation claims by and 
against the agency;
    (c) Collect from TSPs by refund, setoff, offset or other means, the 
amounts determined to be due the agency;
    (d) Adjust, terminate or suspend debts due on TSP overcharges;
    (e) Prepare reports to the Attorney General of the United States 
with recommendations about the legal and technical bases available for 
use in prosecuting or defending suits by or

[[Page 71]]

against an agency and provide technical, fiscal, and factual data from 
relevant records;
    (f) Provide transportation specialists and lawyers to serve as 
expert witnesses, assist in pretrial conferences, draft pleadings, 
orders, and briefs, and participate as requested in connection with 
transportation suits by or against an agency;
    (g) Review agency policies, programs, and procedures to determine 
their adequacy and effectiveness in the audit of freight or passenger 
transportation payments, and review related fiscal and transportation 
practices;
    (h) Furnish information on rates, fares, routes, and related 
technical data upon request;
    (i) Tell an agency of irregular shipping routing practices, 
inadequate commodity descriptions, excessive transportation cost 
authorizations, and unsound principles employed in traffic and 
transportation management; and
    (j) Confer with individual TSPs or related groups and associations 
presenting specific modes of transportation to resolve mutual problems 
concerning technical and accounting matters and acquainting them with 
agency requirements.



Sec. 102-118.445  Must my agency pay for a postpayment audit when using the GSA Audit Division?

    No, the expenses of postpayment audit contract administration and 
audit-related functions are financed from overpayments collected from 
the TSP's bills previously paid by the agency and similar type of 
refunds.



                 Subpart F--Claims and Appeal Procedures

                General Agency Information for All Claims



Sec. 102-118.450  Can a TSP file a transportation claim against my agency?

    Yes, a TSP may file a transportation claim against your agency under 
31 U.S.C. 3726 for:
    (a) Amounts owed but not included in the original billing;
    (b) Amounts deducted or set off by an agency that are disputed by 
the TSP;
    (c) Requests by a TSP for amounts previously refunded in error by 
that TSP; and/or
    (d) Unpaid original bills requiring direct settlement by GSA, 
including those subject to doubt about the suitability of payment 
(mainly bankruptcy or fraud).



Sec. 102-118.455  What is the time limit for a TSP to file a transportation claim against my agency?

    The time limits on a TSP transportation claim against the Government 
differ by mode as shown in the following table:

                   Time Limits on Actions Taken by TSP
------------------------------------------------------------------------
             Mode                Freight charges          Statute
------------------------------------------------------------------------
(a) Air Domestic..............  6 years..........  28 U.S.C. 2401, 2501.
------------------------------------------------------------------------
(b) Air International.........  6 years..........  28 U.S.C. 2401, 2501.
------------------------------------------------------------------------
(c) Freight Forwarders          3 years..........  49 U.S.C. 14705(f).
 (subject to the IC Act).
------------------------------------------------------------------------
(d) Motor.....................  3 years..........  49 U.S.C. 14705(f).
------------------------------------------------------------------------
(e) Rail......................  3 years..........  49 U.S.C. 14705(f).
------------------------------------------------------------------------
(f) Water (subject to the IC    3 years..........  49 U.S.C. 14705(f).
 Act).
------------------------------------------------------------------------

[[Page 72]]

 
(g) Water (not subject to the   2 years..........  46 U.S.C. 745.
 IC Act).
------------------------------------------------------------------------
(h) TSPs exempt from            6 years..........  28 U.S.C. 2401, 2501.
 regulation.
------------------------------------------------------------------------



Sec. 102-118.460  What is the time limit for my agency to file a court claim with a TSP for freight charges, reparations, and loss or damage to the property?

    Statutory time limits vary depending on the mode and the service 
involved and may involve freight charges. The following tables list the 
time limits:

                     (A) Time Limits on Actions Taken by the Federal Government Against TSPs
----------------------------------------------------------------------------------------------------------------
                 Mode                      Freight charges            Reparations            Loss and damage
----------------------------------------------------------------------------------------------------------------
(1) Rail.............................  3 years................  3 years................  6 years.
                                       49 U.S.C. 11705........  49 U.S.C. 11705........  28 U.S.C. 2415.
----------------------------------------------------------------------------------------------------------------
(2) Motor............................  3 years................  3 years................  6 years.
                                       49 U.S.C...............  49 U.S.C...............  28 U.S.C. 2415.
                                       14705(f)...............  14705(f)...............
----------------------------------------------------------------------------------------------------------------
(3) Freight Forwarders subject to the  3 years................  3 years................  6 years.
 IC Act.                               49 U.S.C...............  49 U.S.C...............  28 U.S.C. 2415.
                                       14705(f)...............  14705(f)...............
----------------------------------------------------------------------------------------------------------------
(4) Water (subject to the IC Act)....  3 years................  3 years................  6 years.
                                       49 U.S.C...............  49 U.S.C...............  28 U.S.C. 2415.
                                       14705(f)...............  14705(f)...............
----------------------------------------------------------------------------------------------------------------
(5) Water (not subject to the IC Act)  6 years 28 U.S.C. 2415.  2 years 46 U.S.C. 821..  1 year.
                                                                                         46 U.S.C.
                                                                                         1303(6) (if subject to
                                                                                          Carriage of Goods by
                                                                                          Sear Act, 46 U.S.C.
                                                                                          1300-1315).
----------------------------------------------------------------------------------------------------------------
(6) Domestic Air.....................  6 years................  .......................  6 years.
                                       28 U.S.C. 2415.........                           28 U.S.C. 2415.
----------------------------------------------------------------------------------------------------------------
(7) International Air................  6 years................  .......................  2 years.
                                       28 U.S.C. 2415.........                           49 U.S.C. 40105.
----------------------------------------------------------------------------------------------------------------


[[Page 73]]


         (B) Time Limits on Actions Taken by the Federal Government Against TSPs Exempt From Regulation
----------------------------------------------------------------------------------------------------------------
                 Mode                          Freight                Reparations            Loss and damage
----------------------------------------------------------------------------------------------------------------
(1) All..............................  6 years................  .......................  6 years.
                                       28 U.S.C. 2415.........                           28 U.S.C. 2415.
----------------------------------------------------------------------------------------------------------------



Sec. 102-118.465  Must my agency pay interest on a disputed amount claimed by a TSP?

    No, interest penalties under the Prompt Payment Act, (31 U.S.C. 
3901, et seq.), are not required when payment is delayed because of a 
dispute between an agency and a TSP.



Sec. 102-118.470  Are there statutory time limits for a TSP on filing an administrative claim with the GSA Audit Division?

    Yes, an administrative claim must be received by the GSA Audit 
Division or its designee (the agency where the 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.



Sec. 102-118.475  Does interest apply after certification of payment of claims?

    Yes, interest under the Prompt Payment Act (31 U.S.C. 3901, et seq.) 
begins 30 days after certification for payment by GSA.



Sec. 102-118.480  How does my agency settle disputes with a TSP?

    As a part of the prepayment audit program, your agency must have a 
plan to resolve disputes with a TSP. This program must allow a TSP to 
appeal payment decisions made by your agency.



Sec. 102-118.485  Is there a time limit for my agency to issue a decision on disputed claims?

    Yes, your agency must issue a ruling on a disputed claim within 30 
days of receipt of the claim.



Sec. 102-118.490  What if my agency fails to settle a dispute within 30 days?

    (a) If your agency fails to settle a dispute within 30 days, the TSP 
may appeal to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
Code: CC 1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav

    (b) If the TSP disagrees with the administrative settlement by the 
Audit Division, the TSP may appeal to the General Services Board of 
Contract Appeals.



Sec. 102-118.495  May my agency appeal a decision by the General Services Board of Contract Appeals (GSBCA)?

    No, your agency may not appeal a decision made by the GSBCA.



Sec. 102-118.500  How does my agency handle a volunary refund submitted by a TSP?

    (a) An agency must report all voluntary refunds to the GSA Audit 
Division (so that no Notice of Overcharge or financial offset occurs), 
unless other arrangements are made (e.g., charge card refunds, etc.). 
These reports must be addressed to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
Code: CC
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav


[[Page 74]]


    (b) Once a Notice of Overcharge is issued by the GSA Audit Division, 
then any refund is no longer considered voluntary and the agency must 
forward the refund to the GSA Audit Division.



Sec. 102-118.505  Must my agency send a voluntary refund to the Treasurer of the United States?

    No, your agency may keep and use voluntary refunds submitted by a 
TSP, if the refund was made prior to a Notice of Overcharge issued by 
the GSA Audit Division.



Sec. 102-118.510  Can my agency revise or alter a GSA Form 7931, Certificate of Settlement?

    Generally, no, an agency must not revise or alter amounts on a GSA 
Form 7931. The only change an agency can make to a GSA Form 7931 is to 
change the agency financial data to a correct cite. Any GSA Form 7931 
that cannot be paid (e.g., an amount previously paid), must be 
immediately returned to the GSA Audit Division with an explanation.



Sec. 102-118.515  Does my agency have any recourse not to pay a Certificate of Settlement?

    No, a Certificate of Settlement is the final administrative action.



Sec. 102-118.520  Who is responsible for determining the standards for collection, compromise, termination, or suspension of collection action on any 
          outstanding debts to my agency?

    Under the Federal Claims Collection Act of 1966, as amended (31 
U.S.C. 3711, et seq.), the Comptroller General and the Attorney General 
have joint responsibility for issuing standards for your agency.



Sec. 102-118.525  What are my agency's responsibilities for verifying the correct amount of transportation charges?

    Your agency's employees are responsible for diligently verifying the 
correct amount of transportation charges prior to payment (31 U.S.C. 
3527).



Sec. 102-118.530  Will GSA instruct my agency's disbursing offices to offset unpaid TSP billings?

    Yes, GSA will instruct one or more of your agency's disbursing 
offices to deduct the amount due from an unpaid TSP's bill. A 3-year 
limitation applies on the deduction of overcharges from amounts due a 
TSP (31 U.S.C. 3726) and a 10-year limitation applies on the deduction 
of ordinary debts (31 U.S.C. 3716).



Sec. 102-118.535  Are there principles governing my agency's TSP debt collection procedures?

    Yes, the principles governing your agency collection procedures for 
reporting debts to the General Accounting Office (GAO) or the Department 
of Justice are found in 4 CFR parts 101 through 105 and in the GAO 
Policy and Procedures Manual for Guidance of Federal Agencies. The 
manual may be obtained by writing:

Superintendent of Documents
Government Printing Office
Washington, DC 20402
http://www.access.gpo.gov/



Sec. 102-118.540  Who has the authority to audit, settle accounts, and/or start collection action for all transportation services provided for my agency?

    The Director of the GSA Audit Division has the authority and 
responsibility to audit and settle all transportation related accounts 
(31 U.S.C. 3726). The reason for this is that he or she has access to 
Governmentwide data on a TSP's payments and billings with the 
Government. Your agency has the responsibility to correctly pay 
individual transportation claims.

        Transportation Service Provider (TSP) Filing Requirements



Sec. 102-118.545  What information must a TSP claim include?

    Transportation service provider (TSP) claims received by GSA or its 
designee must include one of the following:
    (a) The signature of an individual or party legally entitled to 
receive payment for services on behalf of the TSP;

[[Page 75]]

    (b) The signature of the TSP's agent or attorney accompanied by a 
duly executed power of attorney or other documentary evidence of the 
agent's or attorney's right to act for the TSP; or
    (c) An electronic signature, when mutually agreed upon.



Sec. 102-118.550  How does a TSP file an administrative claim using EDI or other electronic means?

    The medium and precise format of data for an administrative claim 
filed electronically must be approved in advance by the GSA Audit 
Division. GSA will use an authenticating EDI signature to certify 
receipt of the claim. The data on the claim must contain proof of the 
delivery of goods, and an itemized bill reflecting the services 
provided, with the lowest charges available for service. The TSP must be 
able to locate, identify, and reproduce the records in readable form 
without loss of clarity.



Sec. 102-118.555  Can a TSP file a supplemental administrative claim?

    Yes, a TSP may file a supplemental administrative claim. Each 
supplemental claim must cover charges relating to one paid 
transportation document.



Sec. 102-118.560  What is the required format that a TSP must use to file an administrative claim?

    A TSP must bill for charges claimed on a SF 1113, Public Voucher for 
Transportation Charges, in the manner prescribed in the ``U.S. 
Government Freight Transportation--Handbook'' or the ``U.S. Government 
Passenger Transportation--Handbook.'' To get a copy of these handbooks, 
you may write to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.565  What documentation is required when filing an administrative claim?

    An administrative claim must be accompanied by the transportation 
document, payment record, reports and information available to GSA and/
or to the agency involved and the written and documentary records 
submitted by the TSP. Oral presentations supplementing the written 
record are not acceptable.

 Transportation Service Provider (TSP) and Agency Appeal Procedures for 
                            Prepayment Audits



Sec. 102-118.570  If my agency denies the TSP's challenge to the statement of difference, may the TSP appeal?

    Yes, the TSP may appeal if your agency denies its challenge to the 
statement of difference. However, the appeal must be handled at a higher 
level in your agency.



Sec. 102-118.575  If a TSP disagrees with the decision of my agency, can the TSP appeal?

    Yes, the TSP may file a claim with the GSA Audit Division, which 
will review the TSP's appeal of your agency's final full or partial 
denial of a claim. The TSP may also appeal to the GSA Audit Division if 
your agency has not responded to a challenge within 30 days.



Sec. 102-118.580  May a TSP appeal a prepayment audit decision of the GSA Audit Division?

    (a) Yes, the TSP may appeal to the GSA's Board of Contract Appeals 
(GSBCA), under guidelines established in this subpart, or file a claim 
with the United States Court of Federal Claims. The TSP's request for 
review must be received by the GSBCA in writing within 6 months (not 
including time 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. The TSP must address requests to:

GSA Board of Contract Appeals
1800 F Street, NW.
Room 7022
Washington, DC 20405

    (b) The GSBCA will accept legible submissions via facsimile (FAX) on 
(202) 501-0664.

[[Page 76]]



Sec. 102-118.585  May a TSP appeal a prepayment audit decision of the GSBCA?

    No, a ruling by the GSBCA 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.



Sec. 102-118.590  May my agency appeal a prepayment audit decision of the GSA Audit Division?

    No, your agency may not appeal. A GSA Audit Division decision is 
administratively final for your agency.



Sec. 102-118.595  May my agency appeal a prepayment audit decision by the GSBCA?

    No, your agency may not appeal a prepayment audit decision. Your 
agency must follow the ruling of the GSBCA.

 Transportation Service Provider (TSP) and Agency Appeal Procedures for 
                           Postpayment Audits



Sec. 102-118.600  When a TSP disagrees with a Notice of Overcharge resulting from a postpayment audit, what are the appeal procedures?

    A TSP who disagrees with the Notice of Overcharge may submit a 
written request for reconsideration to the GSA Audit Division at:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.605  What if a TSP disagrees with the Notice of Indebtedness?

    If a TSP disagrees with an ordinary debt, as shown on a Notice of 
Indebtedness, it may:
    (a) Inspect and copy the agency's records related to the claim;
    (b) Seek administrative review by the GSA Audit Division of the 
claim decision; and/or
    (c) Enter a written agreement for the payment of the claims.



Sec. 102-118.610  Is a TSP notified when GSA allows a claim?

    Yes, the GSA Audit Division will acknowledge each payable claim 
using GSA Form 7931, Certificate of Settlement. The certificate will 
give a complete explanation of any amount that is disallowed. GSA will 
forward the certificate to the agency whose funds are to be charged for 
processing and payment.



Sec. 102-118.615  Will GSA notify a TSP if they internally offset a payment?

    Yes, the GSA Audit Division will inform the TSP if they internally 
offset a payment.



Sec. 102-118.620  How will a TSP know if the GSA Audit Division disallows a claim?

    The GSA Audit Division will furnish a GSA Form 7932, Settlement 
Certificate, to the TSP explaining the disallowance.



Sec. 102-118.625  Can a TSP request a reconsideration of a settlement action by the GSA Audit Division?

    Yes, a TSP desiring a reconsideration of a settlement action may 
request a review by the Administrator of General Services.



Sec. 102-118.630  How must a TSP refund amounts due to GSA?

    (a) TSPs must promptly refund amounts due to GSA, preferably by EFT. 
If an EFT is not used, checks must be made payable to ``General Services 
Administration'', including the document reference number, TSP name, 
bill number(s), taxpayer identification number and standard carrier 
alpha code, then mailed to:

General Services Administration
P.O. Box 93746
Chicago, IL 60673

    (b) If an EFT address is needed, please contact the GSA Audit 
Division at:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav


[[Page 77]]


    Note to Sec. 102-118.630: Amounts collected by GSA are returned to 
the Treasurer of the United States (31 U.S.C. 3726).



Sec. 102-118.635  Can the Government charge interest on an amount due from a TSP?

    Yes, the Government can charge interest on an amount due from a TSP. 
This procedure is provided for under the Debt Collection Act (31 U.S.C. 
3717), the Federal Claims Collection Standards (4 CFR parts 101 through 
105), and 41 CFR part 105-55.



Sec. 102-118.640  If a TSP fails to pay or to appeal an overcharge, what actions will GSA pursue to collect the debt?

    GSA will pursue debt collection through one of the following 
methods:
    (a) When an indebted TSP files a claim, GSA will apply all or any 
portion of the amount it determines to be due the TSP, to the 
outstanding balance owed by the TSP, under the Federal Claims Collection 
Standards (4 CFR parts 101 through 105) and 41 CFR part 105-55;
    (b) When the action outlined in paragraph (a) of this section cannot 
be taken by GSA, GSA will instruct one or more Government disbursing 
offices to deduct the amount due to the agency from an unpaid TSP's 
bill. A 3-year limitation applies on the deduction of overcharges from 
amounts due a TSP (31 U.S.C. 3726) and a 10-year limitation applies on 
the deduction of ordinary debt (31 U.S.C. 3716);
    (c) When collection cannot be accomplished through either of the 
procedures in paragraph (a) or (b) of this section, GSA normally sends 
two additional demand letters to the indebted TSP requesting payment of 
the amount due within a specified time. Lacking a satisfactory response, 
GSA may place a complete stop order against amounts otherwise payable to 
the indebted TSP by adding the name of that TSP to the Department of the 
Army ``List of Contractors Indebted to the United States''; and/or
    (d) When collection actions, as stated in paragraphs (a) through (c) 
of this section are unsuccessful, GSA may report the debt to the 
Department of Justice for collection, litigation, and related 
proceedings, as prescribed in 4 CFR parts 101 through 105.



Sec. 102-118.645  Can a TSP file an administrative claim on collection actions?

    Yes, a TSP may file an administrative claim involving collection 
actions resulting from the transportation audit performed by the GSA 
directly with the GSA Audit Division. Any claims submitted to GSA will 
be considered ``disputed claims'' under section 4(b) of the Prompt 
Payment Act (31 U.S.C. 3901, et seq.). The TSP must file all other 
transportation claims with the agency out of whose activities they 
arose. If this is not feasible (e.g., where the responsible agency 
cannot be determined or is no longer in existence) claims may be sent to 
the GSA Audit Division for forwarding to the responsible agency or for 
direct settlement by the GSA Audit Division. Claims for GSA processing 
must be addressed to:

General Services Administration
Federal Supply Service
Audit Division (FBA)
1800 F Street, NW.
Washington, DC 20405
http://pub.fss.gsa.gov/transtrav



Sec. 102-118.650  Can a TSP request a review of a settlement action by the Administrator of General Services?

    Yes, a TSP desiring a review of a settlement action taken by the 
Administrator of General Services may request a review by the GSA Board 
of Contract Appeals (GSBCA) or file a claim with the United States Court 
of Federal Claims (28 U.S.C. 1491).



Sec. 102-118.655  Are there time limits on a TSP request for an administrative review by the GSBCA?

    (a) Yes, the GSBCA must receive a request for review from the TSP 
within six months (not including time 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. The request 
must be addressed to:

GSA Board of Contract Appeals
1800 F Street, NW.
Room 7022
Washington, DC 20405

    (b) The GSBCA will accept legible submissions via facsimile (FAX) on 
(202) 501-0664.

[[Page 78]]



Sec. 102-118.660  May a TSP appeal a postpayment audit decision of the GSBCA?

    No, a ruling by the GSBCA is the final administrative remedy and the 
TSP has no statutory right of appeal. This subpart governs 
administrative actions only and does not affect any rights of the TSPs. 
A TSP may still pursue a legal remedy through the courts.



Sec. 102-118.665  May my agency appeal a postpayment audit decision by the GSBCA?

    No, your agency may not appeal a postpayment audit decision and must 
follow the ruling of the GSBCA.

      Transportation Service Provider (TSP) Non-Payment of a Claim



Sec. 102-118.670  If a TSP cannot immediately pay a debt, can they make other arrangements for payment?

    Yes, if a TSP is unable to pay the debt promptly, the Director of 
the GSA Audit Division has the discretion to enter into alternative 
arrangements for payment.



Sec. 102-118.675  What recourse does my agency have if a TSP does not pay a transportation debt?

    If a TSP does not pay a transportation debt, GSA may refer 
delinquent debts to consumer reporting agencies and Federal agencies 
including the Department of the Treasury and Department of Justice.

                    PARTS 102-119--102-140 [RESERVED]

[[Page 79]]





                     SUBCHAPTER E--TRAVEL MANAGEMENT




                    PART 102-141--GENERAL [RESERVED]


                    PARTS 102-142--102-170 [RESERVED]



                    SUBCHAPTER F--TELECOMMUNICATIONS




                    PART 102-171--GENERAL [RESERVED]


      PART 102-172--TELECOMMUNICATIONS MANAGEMENT POLICY [RESERVED]


                    PARTS 102-173--102-190 [RESERVED]



                  SUBCHAPTER G--ADMINISTRATIVE PROGRAMS




                    PART 102-191--GENERAL [RESERVED]


                PART 102-192--MAIL MANAGEMENT [RESERVED]


               PART 102-193--RECORDS MANAGEMENT [RESERVED]


      PART 102-194--STANDARD AND OPTIONAL FORMS PROGRAM [RESERVED]


     PART 102-195--INTERAGENCY REPORTS MANAGEMENT PROGRAM [RESERVED]


          PART 102-196--FEDERAL FACILITY RIDESHARING [RESERVED]


                    PARTS 102-197--102-220 [RESERVED]



                       SUBCHAPTERS H-Z [RESERVED]



[[Page 81]]



                       CHAPTERS 103-104 [RESERVED]






              CHAPTER 105--GENERAL SERVICES ADMINISTRATION




  --------------------------------------------------------------------
Part                                                                Page
105-1           Introduction................................          83
105-8           Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by General Services 
                    Administration..........................          85
105-50          Provision of special or technical services 
                    to State and local units of government..          96
105-51          Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         101
105-53          Statement of organization and functions.....         101
105-54          Advisory committee management...............         108
105-55          Collection of claims owed the United States.         119
105-56          Salary offset for indebtedness of General 
                    Services Adminstration employees to the 
                    United States...........................         123
105-57          Collection of debts by tax refund offset....         128
105-60          Public availability of agency records and 
                    informational materials.................         129
105-62          Document security and declassification......         146
105-64          Regulations implementing the Privacy Act of 
                    1974....................................         151
105-67          Sale of personal property...................         160
105-68          Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         161
105-69          New restrictions on lobbying................         180
105-70          Implementation of the Program Fraud Civil 
                    Remedies Act of 1986....................         191
105-71          Uniform administrative requirements for 
                    grants and cooperative agreements with 
                    State and local governments.............         206
105-72          Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         233

[[Page 82]]

105-735         Standards of conduct........................         260

[[Page 83]]



PART 105-1--INTRODUCTION--Table of Contents




Sec.
105-1.000-50  Scope of part.

                   Subpart 105-1.1--Regulations System

105-1.100  Scope of subpart.
105-1.101  General Services Administration Property Management 
          Regulations.
105-1.101-50  Exclusions.
105-1.102  Relationship of GSPMR to FPMR.
105-1.104  Publication of GSPMR.
105-1.106  Applicability.
105-1.109  Numbering.
105-1.109-50  General plan.
105-1.109-51  Arrangement.
105-1.109-52  Cross-references.
105-1.110  Deviation.
105-1.150  Citation.

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).

    Source: 39 FR 25231, July 9, 1974, unless otherwise noted.



Sec. 105-1.000-50  Scope of part.

    This part describes the method by which the General Services 
Administration (GSA) implements and supplements the Federal Property 
Management Regulations (FPMR) and implements certain regulations 
prescribed by other agencies. It contains procedures that implement and 
supplement part 101-1 of the FPMR.



                   Subpart 105-1.1--Regulations System



Sec. 105-1.100  Scope of subpart.

    This subpart establishes the General Services Administration 
Property Management Regulations (GSPMR) and provides certain 
introductory material.



Sec. 105-1.101  General Services Administration Property Management Regulations.

    The General Services Administration Property Management Regulations 
(GSPMR) include the GSA property management policies and procedures 
which, together with the Federal Property Management Regulations, 
certain regulations prescribed by other agencies, and various GSA orders 
govern the management of property and records and certain related 
activities of GSA. They may contain policies and procedures of interest 
to other agencies and the general public and are prescribed by the 
Administrator of General Services in this chapter 105.



Sec. 105-1.101-50  Exclusions.

    (a) Certain GSA property management and related policies and 
procedures which come within the scope of this chapter 105 nevertheless 
may be excluded therefrom when there is justification. These exclusions 
may include the following categories:
    (1) Subject matter that bears a security classification;
    (2) Policies and procedures that are expected to be effective for a 
period of less than 6 months;
    (3) Policies and procedures that are effective on an experimental 
basis for a reasonable period;
    (4) Policies and procedures pertaining to other functions of GSA as 
well as property management functions and there is need to make the 
issuance available simultaneously to all GSA employees involved; and
    (5) Where speed of issuance is essential, numerous changes are 
required in chapter 105, and all necessary changes cannot be made 
promptly.
    (b) Property management policies and procedures issued in other than 
the FPMR system format under paragraphs (a)(4) and (5) of this section, 
shall be codified into chapter 105 at the earliest practicable date, but 
in any event not later than 6 months from date of issuance.



Sec. 105-1.102  Relationship of GSPMR to FPMR.

    (a) GSPMR implement and supplement the FPMR and implement certain 
other regulations. They are part of the General Services Administration 
Regulations System. Material published in the FPMR (which has 
Governmentwide applicability) becomes effective throughout GSA upon the 
effective date of the particular FPMR material. In general, the FPMR 
that are implemented and supplemented shall not be repeated, 
paraphrased, or otherwise restated in chapter 105.
    (b) Implementing is the process of expanding upon the FPMR or other 
Government-wide regulations.

[[Page 84]]

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 Sec. 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.



Sec. 105-1.104  Publication of GSPMR.

    (a) Most GSPMR are published in the Federal Register. This practice 
helps to ensure that interested business concerns, other agencies, and 
the public are apprised of GSA policies and procedures pertaining to 
property and records management and certain related activities.
    (b) Most GSPMR are published in cumulative form in chapter 105 of 
title 41 of the Code of Federal Regulations. The Federal Register and 
title 41 of the Code of Federal Regulations may be purchased from the 
Superintendent of Documents, Government Printing Office, Washington, 
D.C. 20402.



Sec. 105-1.106  Applicability.

    Chapter 105 applies to the management of property and records and to 
certain other programs and activities of GSA. Unless otherwise 
specified, chapter 105 applies to activities outside as well as within 
the United States.



Sec. 105-1.109  Numbering.



Sec. 105-1.109-50  General plan.

    Chapter 105 is divided into parts, subparts, and further 
subdivisions as necessary.



Sec. 105-1.109-51  Arrangement.

    (a) Parts 105-2 through 105-49 are used for GSPMR that implement 
regulations in the corresponding parts of chapter 101. This practice 
results in comparable grouping by subject area without establishment of 
subchapters.
    (b) Parts 105-50 and above are used for GSPMR that supplement 
regulations in the FPMR and implement regulations of other agencies. 
Part numbers are assigned so as to accomplish a similar subject area 
grouping. Regulations on advisory committee 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.



Sec. 105-1.109-52  Cross-references.

    (a) Within chapter 105, cross-references to the FPMR shall be made 
in the same manner as used within the FPMR. Illustrations of cross-
references to the FPMR are:
    (1) Part 101-3;
    (2) Subpart 101-3.1;
    (3) Sec. 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 Sec. 105-1.109-52(b).



Sec. 105-1.110  Deviation.

    (a) In the interest of establishing and maintaining uniformity to 
the greatest extent feasible, deviations; i.e., the use of any policy or 
procedure in any manner that is inconsistent with a policy or procedure 
prescribed in the Federal Property Management Regulations, are 
prohibited unless such deviations have been requested from and approved 
by the Administrator of General Services or his authorized designee. 
Deviations may be authorized by the Administrator of General Services or 
his authorized designee when so doing will be in the best interest of 
the Government. Request for deviations shall clearly state the nature of 
the deviation and the reasons for such special action.
    (b) Requests for deviations from the FPMR shall be sent to the 
General Services Administration for consideration in accordance with the 
following:
    (1) For onetime (individual) deviations, requests shall be sent to 
the address provided in the applicable regulation. Lacking such 
direction, requests shall be sent to the Administrator of General 
Services, Washington, DC 20405.

[[Page 85]]

    (2) For class deviations, requests shall be sent to only the 
Administrator of General Services.

[55 FR 1673, Jan. 18, 1990]



Sec. 105-1.150  Citation.

    (a) In formal documents, such as legal briefs, citations of chapter 
105 material shall include a citation to title 41 of the Code of Federal 
Regulations or other titles as appropriate; e.g., 41 CFR 105-1.150.
    (b) Any section of chapter 105, for purpose of brevity, may be 
informally identified as ``GSPMR'' followed by the section number. For 
example, this paragraph would be identified as ``GSPMR 105-1.150(b).''



PART 105-8--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY GENERAL SERVICES ADMINISTRATION--Table of Contents




Sec.
105-8.101  Purpose.
105-8.102  Application.
105-8.103  Definitions.
105-8.104--105-8.109  [Reserved]
105-8.110  Self-evaluation.
105-8.111  Notice.
105-8.112--105-8.129  [Reserved]
105-8.130  General prohibitions against discrimination.
105-8.131--105-8.139  [Reserved]
105-8.140  Employment.
105-8.141--105-8.147  [Reserved]
105-8.148  Consultation with the Architectural and Transportation 
          Barriers Compliance Board.
105-8.149  Program accessibility: Discrimination prohibited.
105-8.150  Program accessibility: Existing facilities.
105-8.150-1  General.
105-8.150-2  Methods.
105-8.150-3  Time period for compliance.
105-8.150-4  Transition plan.
105-8.151  rogram accessibility: New construction and alterations.
105-8.152  Program accessibility: Assignment of space.
105-8.153  Program accessibility: Interagency cooperation.
105-8.153-1  General.
105-8.153-2  Requests from occupant agencies.
105-8.154  Program accessibility: Exceptions.
105-8.155--105-8.159  [Reserved]
105-8.160  Communications.
105-8.161--105-8.169  [Reserved]
105-8.170  Compliance procedures.
105-8.170-1  Applicability.
105-8.170-2  Employment complaints.
105-8.170-3  Responsible Official.
105-8.170-4  Filing a complaint.
105-8.170-5  Notification to the Architectural and Transportation 
          Barriers Compliance Board.
105-8.170-6  Acceptance of complaint.
105-8.170-7  Investigation/conciliation.
105-8.170-8  Letter of findings.
105-8.170-9  Filing an appeal.
105-8.170-10  Acceptance of appeals.
105-8.170-11  Hearing.
105-8.170-12  Decision.
105-8.170-13  Delegation.
105-8.171  Complaints against an occupant agency.

    Authority: 29 U.S.C. 794.

    Source: 56 FR 9871, Mar. 8, 1991, unless otherwise noted.



Sec. 105-8.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 105-8.102  Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec. 105-8.103  Definitions.

    For purposes of this part, the term--
    Agency means the General Services Administration (GSA), except when 
the context indicates otherwise.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in and enjoy the benefits of programs or 
activities conducted by GSA. For example, auxiliary aids useful for 
persons with impaired vision include readers, Brailed materials, audio

[[Page 86]]

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

[[Page 87]]

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 Sec. 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.



Secs. 105-8.104--105-8.109  [Reserved]



Sec. 105-8.110  Self-evaluation.

    (a) The agency shall, by March 9, 1992, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the 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.



Sec. 105-8.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the Administrator finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this part.



Secs. 105-8.112--105-8.129  [Reserved]



Sec. 105-8.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (1) The agency, in providing any aid, benefit, or service, may not, 
directly or through contractual, licensing, or other arrangements, on 
the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to

[[Page 88]]

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.



Secs. 105-8.131--105-8.139  [Reserved]



Sec. 105-8.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Secs. 105-8.141--105-8.147  [Reserved]



Sec. 105-8.148  Consultation with the Architectural and Transportation Barriers Compliance Board.

    GSA shall consult with the Architectural and Transportation Barriers 
Compliance Board (ATBCB) in carrying out its responsibilities under this 
part concerning architectural barriers in facilities that are subject to 
GSA control. GSA shall also consult with the ATBCB in providing 
technical assistance to other Federal agencies with respect to 
overcoming architectural barriers in facilities. The agency's Public 
Buildings Service shall implement this section.



Sec. 105-8.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Secs. 105-8.150 and 105-8.154, no 
qualified individual with handicaps shall, because

[[Page 89]]

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.



Sec. 105-8.150  Program accessibility: Existing facilities.



Sec. 105-8.150-1  General.

    The agency shall operate each program or activity so that the 
program or activity, when viewed in its entirety, is readily accessible 
to and usable by individuals with handicaps. This section does not--
    (a) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (b) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property.



Sec. 105-8.150-2  Methods.

    (a) General. The agency may comply with the requirements of 
Sec. 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 
Sec. 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 Secs. 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.



Sec. 105-8.150-3  Time period for compliance.

    The agency shall comply with the obligations established under 
Sec. 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.



Sec. 105-8.150-4  Transition plan.

    In the event that structural changes to facilities will be 
undertaken to achieve program accessibility, the agency shall develop, 
by March 9, 1992; the transition plan setting forth the steps necessary 
to complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps or 
organizations representing individuals with handicaps, to participate in 
the development of the transition plan by submitting comments (both oral 
and written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (a) Identify physical obstacles in the facilities occupied by GSA 
that limit the accessibility of its programs or activities to 
individuals with handicaps;

[[Page 90]]

    (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 Sec. 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.



Sec. 105-8.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, of for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. 105.8.152  Program accessibility: Assignment of space.

    (a) When GSA assigns or reassigns space to an agency, it shall 
consult with the agency to ensure that the assignment or reassignment 
will not result in one or more of the agency's programs or activities 
being inaccessible to individuals with handicaps.
    (b) Prior to the assignment or reassignment of space to an agency, 
GSA shall inform the agency of the accessibility, and/or the absence of 
accessibility features, of the space in which GSA intends to locate the 
agency. If the agency informs GSA that the use of the space will result 
in one or more of the agency's programs being inaccessible, GSA shall 
take one or more of the following actions to make the programs 
accessible:
    (1) Arrange for alterations, improvements, and repairs to buildings 
and facilities;
    (2) Locate and provide alternative space that will not result in one 
or more of the agency's programs being inaccessible; or
    (3) Take any other actions that result in making this agency's 
programs accessible.

The responsibility for payment to make the physical changes in the space 
shall be assigned on a case-by-case basis as agreed to by GSA and the 
user agency, dependent on individual circumstances.
    (c) GSA may not require the agency to accept space that results in 
one or more of the agency's programs being inaccessible.



Sec. 105-8.153  Program accessibility: Interagency cooperation.



Sec. 105-8.153-1  General.

    GSA, upon request from an occupant agency engaged in the development 
of a transition plan under section 504, shall participate with the 
occupant agency in the development and implementation of the transition 
plan and shall provide information and guidance to the occupant agency. 
Upon request, GSA shall conduct space inspections to assist the agency 
in determining whether a current assignment of space results in one or 
more of the occupant agency's programs or activities being inaccessible. 
GSA shall provide the occupant agency with a written summary of 
significant findings and recommendations, together with data concerning 
programmed repairs and alterations planned by GSA and alterations that 
can be effected by the agency.



Sec. 105-8.153-2  Requests from occupant agencies.

    (a) Upon receipt of an occupant agency's request for new space, 
additional space, relocation to accessible space, alterations, or other 
actions under GSA's control that are needed to ensure program 
accessibility in the requesting agency's program(s) as required by the 
agency's section 504 transition plan, GSA shall assist or advise the 
requesting agency in providing or arranging for the requested action 
within the timeframes specified in the requesting agency's transition 
plan.
    (b) If the requested action cannot be completed within the time 
frame specified in an agency's transition plan, GSA shall so advise the 
requesting agency within 30 days of the request by submitting, after 
consultation with the agency, a revised schedule specifying the date by 
which the action shall be

[[Page 91]]

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.



Sec. 105-8.154  Program accessibility: Exceptions.

    Sections 105-8.150, 105-8.152, and 105-8.153 do not require GSA to 
take any action that it can demonstrate would result in a fundamental 
alteration in the nature of a program or activity or in undue financial 
and administrative burdens. In those circumstances where GSA personnel 
believe that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the agency has the burden of proving that compliance would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Administrator 
or his or her designee after considering all resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.



Secs. 105-8.155--105-8.159  [Reserved]



Sec. 105-8.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 150.8.160 would 
result in such alteration or burdens.

[[Page 92]]

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 Sec. 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.



Secs. 105-8.161--105-8.169  [Reserved]



Sec. 105-8.170  Compliance procedures.



Sec. 105-8.170-1  Applicability.

    Except as provided in Sec. 105-8.170-2, Secs. 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.



Sec. 105-8.170-2  Employment complaints.

    The agency shall process complaints alleging violations of section 
504 with respect to employment according to the procedures established 
by the Equal Employment Opportunity Commission in 29 CFR part 1613 
pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791).



Sec. 105-8.170-3  Responsible Official.

    The Responsible Official shall coordinate implementation of 
Secs. 105-8.170 through 105-8.170-13.



Sec. 105-8.170-4  Filing a complaint.

    (a) Who may file a complaint. Any person who believes that he or she 
has been subjected to discrimination prohibited by this part may by him 
or herself or by his or her authorized representative file a complaint 
with the Official. Any persons who believes that any specific class of 
persons has been subjected to discrimination prohibited by this part and 
who is a member of that class or the authorized 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 Responsibile 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 immediatley.



Sec. 105-8.170-5  Notification to the Architectural and Transportation Barriers Compliance Board.

    The agency shall prepare and forward comprehensive quarterly reports 
to the Architectural and Transportation Barriers Compliance Board 
containing information regarding complaints received alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps. The agency shall not include 
in the report the identity of any complainant.



Sec. 105-8.170-6  Acceptance of complaint.

    (a) The Official shall accept a complete complaint that is filed in 
accordance with Sec. 105-8.170-4 and over which the agency has 
jurisdiction. The Official shall notify the complainant and

[[Page 93]]

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 Sec. 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.



Sec. 105-8.170-7  Investigation/conciliation.

    (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.



Sec. 105-8.170-8  Letter of findings.

    If an informal resolution of the complaint is not reached, the 
Official shall, within 180 days of receipt of the complete complaint, 
notify the complainant and the respondent of the results of the 
investigation in a letter sent by certified mail, return receipt 
requested. The letter shall contain, at a minimum, the following:
    (a) Findings of fact and conclusions of law;
    (b) A description of a remedy for each violation found;
    (c) A notice of the right of the complainant and the respondent to 
appeal to the Special Counsel for Ethics and Civil Rights; and
    (d) A notice of the right of the complainant and the respondent to 
request a hearing.



Sec. 105-8.170-9  Filing an appeal.

    (a) Notice of appeal to the Special Counsel for Ethics and Civil 
Rights, with or without a request for hearing, shall be filed by the 
complainant or the

[[Page 94]]

respondent with the Responsible Official within 30 days of receipt of 
the letter of findings required by

Sec. 105-8.170-7.
    (b) If a timely appeal without a request for hearing is filed by a 
party, any other party may file a written request for a hearing within 
the time limit specified in Sec. 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 
Sec. 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.



Sec. 105-8.170-10  Acceptance of appeals.

    The Special Counsel shall accept and process any timely appeal. A 
party may appeal to the Deputy Administrator from a decision of the 
Special Counsel that an appeal is untimely. This appeal shall be filed 
within 15 days of receipt of the decision from the Special Counsel.



Sec. 105-8.170-11  Hearing.

    (a) Upon a timely request for a hearing, the Special Counsel shall 
take the necessary action to obtain the services of an Administrative 
law judge (ALJ) to conduct the hearing. The ALJ shall issue a notice to 
all parties specifying the date, time, and place of the scheduled 
hearing. The hearing shall be commenced no earlier than 15 days after 
the notice is issued and no later than 60 days after the request for a 
hearing is filed, unless all parties agree to a different date, or there 
are other extenuating circumstances.
    (b) The complainant and respondent shall be parties to the hearing. 
Any interested person or organization may petition to become a party or 
amicus curiae. The ALJ may, in his or her discretion, grant such a 
petition if, in his or her opinion, the petitioner has a legitimate 
interest in the proceedings and the participation will not unduly delay 
the outcome and may contribute materially to the proper disposition of 
the proceedings.
    (c) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of 
the Administrative Procedure Act). The ALJ shall have the duty to 
conduct a fair hearing, to take all necessary action to avoid delay, and 
to maintain order. He or she shall have all powers necessary to these 
ends, including (but not limited to) the power to--
    (1) Arrange and change the date, time, and place of hearings and 
prehearing conferences and issue notices thereof;
    (2) Hold conferences to settle, simplify, or determine the issue in 
a hearing, or to consider other matters that may aid in the expeditious 
disposition of the hearing;
    (3) Require parties to state their position in writing with respect 
to the various issues in the hearing and to exchange such statements 
with all other parties;
    (4) Examine witnesses and direct witnesses to testify;
    (5) Receive, rule on, exclude, or limit evidence;
    (6) Rule on procedural items pending before him or her; and
    (7) Take any action permitted to the ALJ as authorized by this part, 
or by the provisions of the Administrative Procedure Act (5 U.S.C. 551-
559).
    (d) Technical rules of evidence shall not apply to hearings 
conducted pursuant to Sec. 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.

[[Page 95]]

    (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.



Sec. 105-8.170-12  Decision.

    (a) The Special Counsel shall make the decision of the agency based 
on information in the investigative record and, if a hearing is held, on 
the hearing record. The decision shall be made within 60 days of receipt 
of the transmittal of the notice of appeal and investitive record 
pursuant to Sec. 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.



Sec. 105-8.170-13  Delegation.

    The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.



Sec. 105-8.171  Complaints against an occupant agency.

    (a) Upon notification by an occupant agency that it has received a 
complete complaint alleging that the agency's

[[Page 96]]

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 Sec. 105-8.171(a).



PART 105-50--PROVISION OF SPECIAL OR TECHNICAL SERVICES TO STATE AND LOCAL UNITS OF GOVERNMENT--Table of Contents




Sec.
105-50.000  Scope of part.
105-50.001  Definitions.
105-50.001-1  State.
105-50.001-2  Political subdivision or local government.
105-50.001-3  Unit of general local government.
105-50.001-4  Special-purpose unit of local government.
105-50.001-5  Specialized or technical services.
105-50.001-6  GSA.

                  Subpart 105-50.1--General Provisions

105-50.101  Purpose.
105-50.102  Applicability.
105-50.103  Policy.
105-50.104  Limitations.
105-50.105  Coordination of requests.
105-50.106  GSA response to requests.

       Subpart 105-50.2--Services Available From General Services 
                             Administration

105-50.201  Agencywide mission.
105-50.202  Specific services.
105-50.202-1  Copies of statistical or other studies.
105-50.202-2  Preparation of or assistance in the conduct of statistical 
          or other studies.
105-50.202-3  Training.
105-50.202-4  Technical assistance incident to Federal surplus personal 
          property.
105-50.202-5  Data processing services.
105-50.202-6  Communications services.
105-50.202-7  Technical information and advice.

      Subpart 105-50.3--Principles Governing Reimbursements to GSA

105-50.301  Established fees.
105-50.302  Special fee schedules.
105-50.303  Cost basis in lieu of fees.
105-50.304  Services provided through revolving funds.
105-50.304a  Deposits.
105-50.305  Exemptions.

                        Subpart 105-50.4--Reports

105-50.401  Reports submitted to the Congress.
105-50.402  Reports submitted to the Office of Management and Budget.

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c) and sec. 302, 
82 Stat. 1102; 42 U.S.C. 4222.

    Source: 41 FR 21451, May 26, 1976, unless otherwise noted.



Sec. 105-50.000  Scope of part.

    This part prescribes rules and procedures governing the provision of 
special or technical services to State and local units of government by 
GSA. This part also prescribes principles governing reimbursements for 
such services.



Sec. 105-50.001  Definitions.

    The following definitions are established for terms used in this 
part.



Sec. 105-50.001-1  State.

    State means any of the several States of the United States, the 
District of Columbia, Puerto Rico, any territory or possession of the 
United States, or any agency or instrumentality of a State, but does not 
include the governments of the political subdivisions of the State.



Sec. 105-50.001-2  Political subdivision or local government.

    Political subdivision or local government means a local unit of 
government, including specifically a county, municipality, city, town, 
township, or a school or other special district created by or pursuant 
to State law.

[[Page 97]]



Sec. 105-50.001-3  Unit of general local government.

    Unit of general local government means any city, county, town, 
parish, village, or other general purpose political subdivision of a 
State.



Sec. 105-50.001-4  Special-purpose unit of local government.

    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.



Sec. 105-50.001-5  Specialized or technical services.

    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.



Sec. 105-50.001-6  GSA.

    GSA means the General Services Administration.



                  Subpart 105-50.1--General Provisions



Sec. 105-50.101  Purpose.

    (a) This part 105-50 implements the provisions of Title III of the 
Intergovernmental Cooperation Act of 1968 (82 Stat. 1102, 42 U.S.C. 
4221-4225), the purpose of which is stated as follows:

    It is the purpose of this title to encourage intergovernmental 
cooperation in the conduct of specialized or technical services and 
provision of facilities essential to the administration of State or 
local governmental activities, many of which are nationwide in scope and 
financed in part by Federal funds; to enable state and local governments 
to avoid unnecessary duplication of special service functions; and to 
authorize all departments and agencies of the executive branch of the 
Federal Government which do not have such authority to provide 
reimbursable specialized or technical services to State and local 
governments.

    (b) This part is consistent with the rules and regulations 
promulgated by the Director, Office of Management and Budget, in the 
Office of Management and Budget Circular No. A-97, dated August 29, 
1969, issued pursuant to section 302 of the cited Act (42 U.S.C. 4222).



Sec. 105-50.102  Applicability.

    This part is applicable to all organizational elements of GSA 
insofar as the services authorized to be performed in subpart 105-50.2 
fall within their designated functional areas.



Sec. 105-50.103  Policy.

    It is the policy of GSA to cooperate to the maximum extent possible 
with State and local units of government in providing the specialized or 
technical services authorized within the limitations set forth in 
Sec. 105-50.104.



Sec. 105-50.104  Limitations.

    The specialized or technical services provided under this part may 
be provided, in the discretion of the Administrator of General Services, 
only under the following conditions:
    (a) Such services will be provided only to the States, political 
subdivisions thereof, and combinations or associations of such 
governments or their agencies and instrumentalities.
    (b) Such services will be provided only upon the written request of 
a State or political subdivision thereof. Requests normally will be made 
by the chief executives of such entities and will be addressed to the 
General Services Administration as provided in Sec. 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

[[Page 98]]

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.



Sec. 105-50.105  Coordination of requests.

    (a) All inquiries of a general nature concerning services GSA can 
provide shall be addressed to the General Services Administration (BR), 
Washington, D.C. 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.



Sec. 105-50.106  GSA response to requests.

    (a) Direct response to each request shall be made by the Head of the 
applicable Service or Staff Office or Regional Administrator. He shall 
outline the service to be provided and the fee or reimbursement 
required. Any special conditions concerning time and priority, etc., 
shall be stated. Written acceptance by the authorized State or local 
governmental entity shall constitute a binding agreement.
    (b) Heads of Services and Staff Offices and Regional Administrators 
shall maintain complete records and controls of services provided on a 
calendar year basis to facilitate accurate, annual reporting, as 
required in Sec. 105-50.401.



       Subpart 105-50.2--Services Available From General Services 
                             Administration



Sec. 105-50.201  Agencywide mission.

    (a) In its role as a central property management agency, GSA 
constructs, leases, operates, and maintains office and other space: 
procures and distributes supplies; coordinates and provides for the 
economic and efficient purchase, lease, sharing, and maintenance of 
automatic data processing equipment by Federal agencies; manages 
stockpiles of materials maintained for use in national emergencies; 
transfers excess real and personal property among Federal agencies for 
further use; disposes of surplus real and personal property, by donation 
or otherwise, as well as materials excess to stockpile requirements; 
operates centralized data processing centers and telecommunications and 
motor pool systems; operates the National Archives and Presidential 
libraries; and provides a variety of records management services, 
including the operation of centers for storing and administering 
records, as well as other common services.
    (b) Special or technical services may be provided by many 
organizational elements of GSA with respect to their functional areas, 
but the requesting State or local agency needs only to know that the 
service desired is related to one or more of the functional areas 
described above and direct its request as provided for under Sec. 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

[[Page 99]]

Documents, Government Printing Office, Washington, DC 20402.



Sec. 105-50.202  Specific services.

    Within the functional areas identified in Sec. 105-50.201, GSA can 
provide the services hereinafter described.



Sec. 105-50.202-1  Copies of statistical or other studies.

    This material includes a copy of any existing statistical or other 
studies and compilations, results of technical tests and evaluations, 
technical information, surveys, reports, and documents, and any such 
materials which may be developed or prepared in the future to meet the 
needs of the Federal Government or to carry out normal program 
responsibilities of GSA.



Sec. 105-50.202-2  Preparation of or assistance in the conduct of statistical or other studies.

    (a) This service includes preparation of statistical or other 
studies and compilations, technical tests and evaluations, technical 
information, surveys, reports, and documents and assistance in the 
conduct of such activities and in the preparation of such materials, 
provided they are of a type similar to those which GSA is authorized by 
law to conduct or prepare and when resources are available.
    (b) Specific areas in which GSA can conduct or participate in the 
conduct of studies include:
    (1) Space management, including assignment and utilization;
    (2) Supply management, including laboratory tests and evaluations;
    (3) Management of motor vehicles;
    (4) Archives and records management;
    (5) Automatic data processing systems; and
    (6) Telecommunications and teleprocessing systems and services.



Sec. 105-50.202-3  Training.

    (a) This training consists of the type which GSA is authorized by 
law to conduct for Federal personnel and others or which is similar to 
such training.
    (b) Descriptions of the specific training courses conducted by GSA 
are published annually in the Interagency Training Programs bulletin, 
copies of which are available from the U.S. Civil Service Commission, 
Washington, D.C. 20415.



Sec. 105-50.202-4  Technical assistance incident to Federal surplus personal property.

    Technical assistance will be provided in the screening and selection 
of surplus personal property under existing laws, provided such aid 
primarily strengthens the ability of the recipient in developing its own 
capacity to prepare proposals.



Sec. 105-50.202-5  Data processing services.

    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.



Sec. 105-50.202-6  Communications services.

    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.



Sec. 105-50.202-7  Technical information and advice.

    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.

[[Page 100]]



      Subpart 105-50.3--Principles Governing Reimbursements to GSA



Sec. 105-50.301  Established fees.

    Where there is an established schedule of fees for services to other 
Government agencies or the public, the schedule shall be used as the 
basis for reimbursement for like services furnished to State and local 
governments.



Sec. 105-50.302  Special fee schedules.

    Where there is no established schedule of fees for types of service 
which are ordinarily reimbursed on a fee basis, such schedules may be 
developed and promulgated in conjunction with the Office of 
Administration. The fees so established shall cover all direct costs, 
such as salaries of personnel involved plus personnel benefits, travel, 
and other related expenses and all indirect costs such as management, 
supervisory, and staff support expenses determined or estimated from the 
best available records in GSA. Periodically, fees shall be reviewed for 
adequacy of recovery and adjusted as necessary.



Sec. 105-50.303  Cost basis in lieu of fees.

    Where the cost of services is to be recovered on other than a fee 
basis, upon receipt of a request from a State or local government for 
such services, a written reply shall be prepared by the service or staff 
office receiving the request stating the basis for reimbursement for the 
services to be performed. The proposal shall be based on an estimate of 
all direct costs, such as salaries of personnel involved plus personnel 
benefits, travel, and other related expenses and on such indirect costs 
as management, supervisory, and staff support expenses. An appropriate 
surcharge may be developed to recover these indirect costs. The terms 
thereof shall be concurred in by the Director of Administration. 
Acceptance in writing by the requester shall constitute a binding 
agreement between GSA and the requesting governmental unit.



Sec. 105-50.304  Services provided through revolving funds.

    Where the service furnished is of the type which GSA is now billing 
through revolving funds, reimbursement shall be obtained from State and 
local governments on the same basis; i.e., the same pricing method, 
billing forms, and billing support shall be used.



Sec. 105-50.304a  Deposits.

    Reimbursements to GSA for furnishing special or technical services 
to State and local units of government will be deposited to the credit 
of the appropriation from which the cost of providing such services has 
been paid or is to be charged if such reimbursements are authorized. 
Otherwise, the reimbursements will be credited to miscellaneous receipts 
in the U.S. Treasury (42 U.S.C. 4223).



Sec. 105-50.305  Exemptions.

    (a) Single copies of existing reports covering studies and 
statistical compilations and other data or publications for which there 
is no established schedule of fees shall be furnished without charge 
unless significant expense is incurred in reproducing the material, in 
which instance the actual cost thereof shall be charged.
    (b) GSA may, pursuant to section 302 of the Intergovernmental 
Personnel Act of 1970 (42 U.S.C. 4742), admit employees of State and 
local units of government to training programs established for 
professional, administrative, or technical personnel and may waive the 
requirement for reimbursement in whole or in part.



                        Subpart 105-50.4--Reports



Sec. 105-50.401  Reports submitted to the Congress.

    (a) The Administrator of General Services will furnish annually to 
the respective Committees on Government Operations of the Senate and the 
House of Representatives a summary report on the scope of the services 
provided under Title III of the act and this part.
    (b) Heads of Services and Staff Offices and all Regional 
Administrators shall furnish the Director of Management Services, OAD, 
by no later than January 15 of each year, the following information 
concerning services provided during the preceding calendar year to State 
and local units of government:

[[Page 101]]

    (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.



Sec. 105-50.402  Reports submitted to the Office of Management and Budget.

    Copies of the foregoing reports will be submitted by the 
Administrator to the Office of Management and Budget not later than 
March 30 of each year.



PART 105-51--UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Sec. 213, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 105-51.001  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48024, Dec. 17, 1987; 54 FR 8913, Mar. 2, 1989]



PART 105-53--STATEMENT OF ORGANIZATION AND FUNCTIONS--Table of Contents




Sec.
105-53.100  Purpose.

                           Subpart A--General

105-53.110  Creation and authority.
105-53.112  General statement of functions.
105-53.114  General statement of organization.
105-53.116  General regulations.
105-53.118  Locations of material available for public inspection.
105-53.120  Address and telephone numbers.

                       Subpart B--Central Offices

105-53.130  Office of the Administrator.
105-53.130-1  [Reserved]
105-53.130-2  Office of Ethics and Civil Rights.
105-53.130-3  Office of the Executive Secretariat.
105-53.130-4  Office of Small and Disadvantaged Business Utilization.
105-53.131  Office of Inspector General.
105-53.132  GSA Board of Contract Appeals.
105-53.133  Information Security Oversight Office.
105-53.134  Office of Administration.
105-53.135  [Reserved]
105-53.136  Office of Congressional Affairs
105-53.137  Office of Acquisition Policy.
105-53.138  Office of General Counsel.
105-53.139  Office of the Comptroller.
105-53.140  Office of Operations and Industry Relations.
105-53.141  Office of Policy Analysis.
105-53.142  Office of Public Affairs.
105-53.143  Information Resources Management Service.
105-53.144  Federal Property Resources Service.
105-53.145  Federal Supply Service.
105-53.146  [Reserved]
105-53.147  Public Buildings Service.

                       Subpart C--Regional Offices

105-53.150  Organization and functions.
105-53.151  Geographic composition, addresses, and telephone numbers.

    Authority: 5 U.S.C. 552(a)(1), Pub. L. 90-23, 81 Stat. 54 sec. 
(a)(1); 40 U.S.C. 486(c), Pub. L. 81-152, 63 Stat. 390, sec. 205(c).

    Source: 48 FR 25200, June 6, l983, unless otherwise noted.



Sec. 105-53.100  Purpose.

    This part is published in accordance with 5 U.S.C. 552 and is a 
general description of the General Services Administration.



                           Subpart A--General



Sec. 105-53.110  Creation and authority.

    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

[[Page 102]]

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.



Sec. 105-53.112  General statement of functions.

    The General Services Administration, as a major policy maker, 
provides guidance and direction to Federal agencies in a number of 
management fields. GSA formulates and prescribes a variety of 
Governmentwide policies relating to procurement and contracting; real 
and personal property management; transportation, public transportation, 
public utilities and telecommunications management; automated data 
processing management; records management; the use and disposal of 
property; and the information security program. In addition to its 
policy role, GSA also provides a variety of basic services in the 
aforementioned areas to other Government agencies. A summary description 
of these services is presented by organizational component in subpart B.

[54 FR 26741, June 26, 1989]



Sec. 105-53.114  General statement of organization.

    The General Services Administration is an independent agency in the 
executive branch of the Government. The work of the agency as a whole is 
directed by the Administrator of General Services, who is assisted by 
the Deputy Administrator. A summary description of each of GSA's major 
functions and organizational components is presented in subparts B and 
C.



Sec. 105-53.116  General regulations.

    Regulations of the General Services Administration and its 
components are codified in the Code of Federal Regulations in title 1, 
chapters I and II; title 32, chapter XX; title 41, chapters 1, 5, 101, 
105, and 201; and title 48, chapters 1 and 5. Titles 1, 32, 41, and 48 
of the Code of Federal Regulations are available for review at most 
legal and depository libraries and at the General Services 
Administration Central Office and regional offices. Copies may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.

[49 FR 24995, June 19, 1984]



Sec. 105-53.118  Locations of material available for public inspection.

    GSA maintains reading rooms containing materials available for 
public inspection and copying at the following locations:
    (a) General Services Administration, 18th & F Streets, NW., Library 
(Room 1033), Washington, DC 20405. Telephone 202-535-7788.
    (b) Business Service Center, General Services Administration, 10 
Causeway Street, Boston, MA 02222. Telephone: 617-565-8100.
    (c) Business Service Center, General Services Administration, 26 
Federal Plaza, NY, NY 10278. Telephone: 212-264-1234.
    (d) Business Service Center, General Services Administration, 
Seventh & D Streets, SW., Room 1050, Washington, DC 20407. Telephone: 
202-472-1804.
    (e) Business Service Center, General Services Administration, Ninth 
& Market Streets, Room 5151, Philadelphia, PA 19107. Telephone: 215-597-
9613.
    (f) Business Service Center, General Services Administration, 
Richard B. Russell Federal Building, U.S. Courthouse, 75 Spring Street, 
SW., Atlanta, GA 30303, Telephone: 404/331-5103.
    (g) Business Service Center, General Services Administration, 230 
South Dearborn Street, Chicago, IL 60604. Telephone: 312-353-5383.
    (h) Business Service Center, General Services Administration, 1500 
East Bannister Road, Kansas City, MO 64131. Telephone: 816-926-7203.
    (i) Business Service Center, General Services Administration, 819 
Taylor Street, Fort Worth, TX 76102. Telephone: 817-334-3284.
    (j) Business Service Center, General Services Administration, Denver 
Federal Center, Denver, CO 80225. Telephone: 303-236-7408.
    (k) Business Service Center, General Services Administration, 525 
Market Street, San Francisco, CA 94105. Telephone: 415-974-9000.
    (l) Business Service Center, General Services Administration, 300 
North Los Angeles Street, Room 3259, Los Angeles, CA 90012. Telephone: 
213-688-3210.

[[Page 103]]

    (m) Business Service Center, General Services Administration, GSA 
Center, Auburn, WA 98001. Telephone: 206-931-7957.

[48 FR 25200, June 6, 1983, as amended at 49 FR 24995, June 19, 1984; 50 
FR 26363, June 26, 1985; 51 FR 23229, June 26, 1986; 52 FR 23657, June 
24, 1987; 53 FR 23761, June 24, 1988]



Sec. 105-53.120  Address and telephone numbers.

    The Office of the Administrator; Office of Ethics and Civil Rights; 
Office of the Executive Secretariat; Office of Small and Disadvantaged 
Business Utilization; Office of Inspector General; GSA Board of Contract 
Appeals; Information Security Oversight Office; Office of 
Administration; Office of Congressional Affairs; Office of Acquisition 
Policy; Office of General Counsel; Office of the Comptroller; Office of 
Operations and Industry Relations; Office of Policy Analysis; Office of 
Public Affairs; Information Resources Management Service; Federal 
Property Resources Service; and Public Buildings Service are located at 
18th and F Streets NW., Washington, DC 20405. The Federal Supply Service 
is located at Crystal Mall Building 4, 1941 Jefferson Davis Highway, 
Arlington, VA, however, the mailing address is Washington, DC 20406. The 
telephone number for the above addresses is 202-472-1082. The addresses 
of the eleven regional offices are provided in Sec. 105-53.151.

[54 FR 26741, June 26, 1989]



                       Subpart B--Central Offices



Sec. 105-53.130  Office of the Administrator.

    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.



Sec. 105-53.130-1  [Reserved]



Sec. 105-53.130-2  Office of Ethics and Civil Rights.

    The Office of Ethics and Civil Rights, headed by the Special Counsel 
for Ethics and Civil Rights, is responsible for developing, directing, 
and monitoring the agency's programs governing employee standards of 
ethical conduct, equal employment opportunity, and civil rights. It is 
the focal point for the agency's implementation of the Ethics in 
Government Act of 1978. The principal statutes covering the Civil Rights 
Program are Titles VI and VII of the Civil Rights Act of 1964, Title IX 
of the Educational Amendments Act of 1972, sections 501 and 504 of the 
Vocational Rehabilitation Act of 1973, the Age Discrimination in 
Employment Act of 1975, and the Equal Pay Act.

[53 FR 23761, June 24, 1988]



Sec. 105-53.130-3  Office of the Executive Secretariat.

    The Office of the Executive Secretariat, headed by the Director of 
the Executive Secretariat, is responsible for policy coordination, 
correspondence control, and various administrative tasks in support of 
the Administrator and Deputy Administrator.



Sec. 105-53.130-4  Office of Small and Disadvantaged Business Utilization.

    (a) Creation and authority. Public Law 95-507, October 14, 1978, an 
amendment to the Small Business Act and the Small Business Investment 
Act of 1958, established in each Federal agency having procurement 
authority the Office of Small and Disadvantaged Business Utilization. 
Each office is headed by a Director of Small and Disadvantaged Business 
Utilization. The Director is appointed by the head of the agency or 
department.
    (b) Functions. The Director of Small and Disadvantaged Business 
Utilization is responsible for the implementation and execution of the 
functions and duties under Sections 8 and 15 of the Small Business Act 
to include the issuance of policy direction and guidance. The office 
provides information, assistance, and counseling to business concerns, 
including small businesses,

[[Page 104]]

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.



Sec. 105-53.131  Office of Inspector General.

    (a) Creation and authority. Public Law 95-452, known as the 
Inspector General Act of 1978, consolidated existing audit and 
investigation functions and established an Office of Inspector General 
in 11 major domestic departments and agencies, including GSA. Each 
office is headed by an Inspector General appointed by the President with 
the advice and consent of the Senate.
    (b) Functions. The Office of Inspector General is responsible for 
policy direction and conduct of audit, inspection, and investigation 
activities relating to programs and operations of GSA; and maintaining 
liaison with other law enforcement agencies, the Department of Justice, 
and United States Attorneys on all matters relating to the detection and 
prevention of fraud and abuse. The Inspector General reports 
semiannually to the Congress through the Administrator concerning fraud, 
abuses, other serious problems, and deficiencies of agency programs and 
operations; recommends corrective action; and reports on progress made 
in implementing these actions.



Sec. 105-53.132  GSA Board of Contract Appeals.

    (a) Creation and Authority. The GSA Board of Contract Appeals 
(GSBCA), headed by the Chairman, GSA Board of Contract Appeals, was 
established on February 28, 1979, by the Administrator of General 
Services as an independent administrative/judicial tribunal under the 
provisions of the Contract Disputes Act of 1978 (Pub. L. 95-563). The 
Board was granted additional authority pursuant to the Brooks Act, 40 
U.S.C. 759(f) (Pub. L. 99-591).
    (b) Functions. The GSBCA hears, considers, and decides disputes 
between contractors and GSA and other executive departments, agencies, 
and commissions under the provisions of the Contract Disputes Act of 
1978, the ``Disputes'' clause of contracts, and in connection with 
contract related claims. The Board furnishes hearing examiners for the 
Suspension and Debarment Board which serves as the factfinder in 
suspension and proposed debarment matters. The Suspension and Debarment 
Board provides the suspending official with a determination as to 
whether adequate evidence exists to support the cause for suspension, 
delivers written findings of fact to the debarring official which 
resolve any facts in dispute based on a preponderance of the evidence 
and determines whether a cause for debarment exists. The Board also 
serves as an ad hoc body convened to consider any other type of dispute, 
including appeals involving violations of post-Federal employment 
restrictions pursuant to the Ethics in Govenment Act of 1978. 
Additionally, the Board hears, considers, and decides ADP protests by 
interested parties pursuant to the Brooks Act, 40 U.S.C. 759(f).
    (c) Regulations. Regulations pertaining to GSBCA programs are 
published in 41 CFR part 5A-60. Information on availability of the 
regulations is provided in Sec. 105-53.116.

[48 FR 25200, June 6, 1983, as amended at 53 FR 23761, June 24, 1988]



Sec. 105-53.133  Information Security Oversight Office.

    (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.

[[Page 105]]

    (c) Regulations. Regulations pertaining to ISOO Programs are 
published in 32 CFR chapter XX, part 2000 et seq.



Sec. 105-53.134  Office of Administration.

    The Office of Administration, headed by the Associate Administrator 
for Administration, participates in the executive leadership of the 
agency; providing advice on the formulation of major policies and 
procedures, particularly those of a critical or controversial nature, to 
the Administrator and Deputy Administrator. The Office plans and 
administers programs in organization, productivity improvement, position 
management, training, staffing, position classification and pay 
administration, employee relations, workers' compensation, career 
development, GSA internal security, reporting requirements, regulations, 
internal directives, records correspondence procedures, Privacy and 
Freedom of Information Acts, printing and duplicating, mail, 
telecommunications, graphic design, cooperative administrative support, 
and support for congressional field offices. The office also serves as 
the central point of control for audit and inspection reports from the 
Inspector General and the Comptroller General of the United States; and 
manages the GSA internal controls evaluation, improvement, and reporting 
program. In addition, the office includes a secretariat to oversee 
Federal advisory committees.

[54 FR 26741, June 26, 1989]



Sec. 105-53.135  [Reserved]



Sec. 105-53.136  Office of Congressional Affairs.

    The Office of Congressional Affairs, headed by the Associate 
Administrator for Congressional Affairs, is responsible for directing 
and coordinating the legislative and congressional activities of GSA.

[54 FR 26742, June 26, 1989]



Sec. 105-53.137  Office of Acquisition Policy.

    (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 Sec. 105-
53.116.

[52 FR 23657, June 24, 1987]



Sec. 105-53.138  Office of General Counsel.

    Functions. The Office of General Counsel (OGC), headed by the 
General Counsel, is responsible for providing all legal services to the 
services, programs offices, staff offices, and regions of GSA with the 
exception of certain legal activities of the Office of Inspector General 
and legal activities of the 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.



Sec. 105-53.139  Office of the Comptroller.

    (a) Functions. The Office of the Comptroller, headed by the 
Comptroller, is responsible for centralized agencywide budget and 
accounting functions; overall allocation and administrative control of 
agencywide resources and financial management programs; planning, 
developing, and directing GSA's executive management information system; 
and overseeing implementation of OMB Circular A-76 agencywide.
    (b) Regulations. Regulations pertaining to the Office of the 
Comptroller's programs are published in 41 CFR

[[Page 106]]

part 101-2. Information on availability of the regulations is provided 
in Sec. 105-53.116.

[51 FR 23230, June 26, 1986, as amended at 53 FR 23762, June 24, 1988; 
54 FR 26742, June 26, 1989]



Sec. 105-53.140  Office of Operations and Industry Relations.

    The Office of Operations and Industry Relations, headed by the 
Associate Administrator for Operations and Industry Relations, is 
responsible for formulating GSA-wide policy that relates to regional 
operations, supervising GSA's Regional Administrators, and planning and 
coordinating GSA business and industry relations and customer liaison 
activities.

[54 FR 26742, June 26, 1989]



Sec. 105-53.141  Office of Policy Analysis.

    The Office of Policy Analysis, headed by the Associate Administrator 
for Policy Analysis, is responsible for providing analytical support, 
independent, objective information concerning management policies and 
programs, and technical and analytical assistance in the areas of policy 
analysis and resource allocation to the Administrator, senior officials, 
and organizations in GSA.

[51 FR 23230, June 26, 1986]



Sec. 105-53.142  Office of Public Affairs.

    The Office of Public Affairs, headed by the Associate Administrator 
for Public Affairs, is responsible for the planning, implementation, and 
coordination of GSA public information and public events and employee 
communication activities, and managing and operating the Consumer 
Information Center.

[51 FR 23230, June 26, 1986]



Sec. 105-53.143  Information Resources Management Service.

    (a) Creation and authority. The Information Resources Management 
Service (IRMS), headed by the Commissioner, Information Resources 
Management Service, was established as the Office of Information 
Resources Management on August 17, 1982 and subsequently redesignated as 
IRMS on November 17, 1985, by the Administrator of General Services. The 
Information Resources Management Service was assigned responsibility for 
administering the Governmentwide information resources management 
program, including records management, and procurement, management, and 
use of automatic data processing and telecommunications resources.
    (b) Functions. IRMS is responsible for directing and managing 
Governmentwide programs for the procurement and use of automatic data 
processing (ADP), office information systems, and telecommunications 
equipment and services; developing and coordinating Governmentwide 
plans, policies, procedures, regulations, and publications pertaining to 
ADP; telecommunications and records management activities; managing and 
operating the Information Technology Fund; managing and operating the 
Federal Telecommunications System (FTS); planning and directing programs 
for improving Federal records and information management practices 
Governmentwide; managing and operating the 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 Sec. 105-53.116.

[51 FR 23230, June 26, 1986, as amended at 52 FR 23657, June 24, 1987]



Sec. 105-53.144  Federal Property Resources Service.

    (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.

[[Page 107]]

    (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 Sec. 105-53.116

[54 FR 26742, June 26, 1989]



Sec. 105-53.145  Federal Supply Service.

    (a) Creation and authority. The Federal Supply Service (FSS), headed 
by the Commissioner, FSS, was established on December 11, 1949, by the 
Administrator of General Services to supersede the Bureau of Federal 
Supply of the Department of the Treasury which was abolished by the 
Federal Property and Administrative Services Act of 1949. The Federal 
Supply Service has been known previously as the Office of Personal 
Property and the Office of Federal Supply and Services.
    (b) Functions. FSS is responsible for determining supply 
requirements; procuring personal property and nonpersonal services; 
transferring excess (except ADP equipment) and donating and selling 
surplus personal property; managing GSA's Governmentwide transportation, 
traffic management, travel, fleet management, and employee relocation 
programs; auditing of transportation bills paid by the Government and 
subsequent settlement of claims; developing Federal standard purchase 
specifications and Commercial Item Descriptions; standardizing 
commodities purchased by the Federal Government; cataloging items of 
supply procured by civil agencies; and ensuring continuity of supply 
operations during defense emergency conditions.
    (c) Regulations. Regulations pertaining to FSS programs are 
published in 41 CFR chapters 1 and 5; 41 CFR chapter 101, subchapters A, 
E, G, and H; and in 48 CFR chapters 1 and 5. Information on availability 
of the regulations is provided in Sec. 105-53.116.

[49 FR 24996, June 19, 1984, as amended at 51 FR 23230, June 26, 1986]



Sec. 105-53.146  [Reserved]



Sec. 105-53.147  Public Buildings Service.

    (a) Creation and authority. The Public Buildings Service (PBS), 
headed by the Commissioner, Public Buildings Service, was established on 
December 11, 1949, by the Administrator of General Services to supersede 
the Public Buildings Administration, which was abolished by the Federal 
Property and Administrative Services Act of 1949.
    (b) Functions. PBS is responsible for the design, construction, 
management, maintenance, operation, alteration, extension, remodeling, 
preservation, repair, improvement, protection, and control of buildings, 
both federally owned and leased, in which are provided housing 
accommodations for Government activities; the acquisition, utilization, 
custody, and accountability for GSA real property and related personal 
property; representing the consumer interests of the Federal executive 
agencies before Federal and State rate regulatory commissions and 
providing procurement support and contracting for public utilities 
(except 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 Sec. 105-53.116.

[48 FR 25200, June 6, 1983, as amended at 49 FR 24996, June 19, 1984; 52 
FR 23658, June 24, 1987]

[[Page 108]]



                       Subpart C--Regional Offices



Sec. 105-53.150  Organization and functions.

    Regional offices have been established in 11 cities throughout the 
United States. Each regional office is headed by a Regional 
Administrator who reports to the Associate Administrator for Operations 
and Industry Relations. The geographic composition of each region is 
shown in Sec. 105-53.151.

[54 FR 26742, June 26, 1989]



Sec. 105-53.151  Geographic composition, addresses, and telephone numbers.

            Regional Offices--General Services Administration

                           Region and Address

    No. 1. (Comprising the States of Connecticut, Maine, Massachusetts, 
New Hampshire, Rhode Island, and Vermont); Boston FOB, 10 Causeway 
Street, Boston, MA 02222. Telephone: 617-565-5860.
    No. 2. (Comprising the States of New Jersey and New York, the 
Commonwealth of Puerto Rico, and the Virgin Islands); 26 Federal Plaza, 
New York, NY 10278. Telephone: 212-264-2600.
    No. 3. (Comprising the States of Maryland, Virginia (except those 
jurisdictions within the National Capital Region boundaries), West 
Virginia, Pennsylvania, and Delaware); Ninth and Market Streets, 
Philadelphia, PA 19107. Telephone 215-597-1237.
    No. 4. (Comprising the States of Alabama, Florida, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee); 
75 Spring Street, SW., Atlanta, GA 30303. Telephone: 404-331-3200.
    No. 5. (Comprising the States of Illinois, Indiana, Michigan, 
Minnesota, Ohio, and Wisconsin); 230 South Dearborn Street, Chicago, IL 
60604. Telephone: 312-353-5395.
    No. 6. (Comprising the States of Iowa, Kansas, Missouri, and 
Nebraska); 1500 East Bannister Road, Kansas City, MO 64131. Telephone: 
816-926-7201.
    No. 7. (Comprising the States of Arkansas, Louisiana, New Mexico, 
Oklahoma, and Texas); 819 Taylor Street, Fort Worth, TX 76102. 
Telephone: 817-334-2321.
    No. 8. (Comprising the States of Colorado, Montana, North Dakota, 
South Dakota, Utah, and Wyoming); Building 41, Denver Federal Center, 
Denver, CO 80225. Telephone: 303-236-7329.
    No. 9. (Comprising Guam and the States of Arizona, California, 
Hawaii, and Nevada); 525 Market Street, San Francisco, CA 94105. 
Telephone : 415-974-9147.
    No. 10. (Comprising the States of Alaska, Idaho, Oregon, and 
Washington); GSA Center, Auburn, WA 98001. Telephone: 206-931-7000.
    National Capital Region. (Comprising the District of Columbia; 
Counties of Montgomery and Prince Georges in Maryland; and the City of 
Alexandria and the Counties of Arlington, Fairfax, Loudoun, and Prince 
William in Virginia); Seventh and D Streets, SW., Washington, DC 20407. 
Telephone: 202-472-1100.

[51 FR 23231, June 26, 1986, as amended at 52 FR 23658, June 24, 1987; 
53 FR 23762, June 24, 1988; 54 FR 26742, June 26, 1989]



PART 105-54 ADVISORY COMMITTEE MANAGEMENT--Table of Contents




Sec.
105-54.000  Scope of part.

                  Subpart 105-54.1--General Provisions

105-54.101  Applicability.
105-54.102  Definitions.
105-54.103  Policy.
105-54.104  Responsibilities.

         Subpart 105-54.2--Establishment of Advisory Committees

105-54.200  Scope of subpart.
105-54.201  Proposals for establishing advisory committees.
105-54.202  Review and approval of proposals.
105-54.203  Advisory committee charters.
105-54.203-1  Preparation of charters.
105-54.203-2  Active charters file.
105-54.203-3  Submission to Library of Congress.
105-54.204  Advisory committee membership.

             Subpart 105-54.3--Advisory Committee Procedures

105-54.300  Scope of subpart.
105-54.301  Meetings.
105-54.302  Committee records and reports.
105-54.303  Fiscal and administrative provisions.
105-54.304  Cost guidelines.
105-54.305  Renewal of advisory committees.
105-54.306  Amendment of advisory committee charters.
105-54.307  Termination of advisory committees.
105-54.308  Responsibilities of the Administrator.
105-54.309  Added responsibilities of service and staff office heads and 
          regional administrators.
105-54.310  Advisory committee duties of the GSA Committee Management 
          Officer.
105-54.311  Complaint procedures.

[[Page 109]]

                        Subpart 105-54.4--Reports

105-54.400  Scope of subpart.
105-54.401  Reports on GSA Federal Advisory Committees.

    Authority: Pub. L. 92-463 dated October 6, 1972, as amended; and 5 
U.S.C. 552.

    Source: 53 FR 40224, Oct. 14, 1988, unless otherwise noted.



Sec. 105-54.000  Scope of part.

    This part sets forth policies and procedures in GSA regarding the 
establishment, operation, termination, and control of advisory 
committees for which GSA has responsibility. It implements the Federal 
Advisory Committee Act (Pub. L. 92-463), which authorizes a system 
governing the establishment and operation of advisory committees in the 
executive branch of the Federal Government, and Executive Order 11686 of 
October 7, 1972, which directs the heads of all executive departments 
and agencies to take appropriate action to ensure their ability to 
comply with the provisions of the Act.



                  Subpart 105-54.1--General Provisions



Sec. 105-54.101  Applicability.

    This part 105-54 applies to all advisory committees for which GSA 
has responsibility. This part also applies to any committee that advises 
GSA officials even if the committee were not established for that 
purpose. This applicability, however, is limited to the period of the 
committee's use as an advisory body. This part does not apply to:
    (a) An advisory committee exempted by an Act of Congress;
    (b) A local civic group whose primary function is to render a public 
service in connection with a Federal program;
    (c) A State or local committee, council, board, commission, or 
similar group established to advise or make recommendations to State or 
local officials or agencies;
    (d) A meeting initiated by the President or one or more Federal 
official(s) for the purpose of obtaining advice or recommendations from 
one individual;
    (e) A meeting with a group initiated by the President or one or more 
Federal official(s) for the sole purpose of exchanging facts or 
information;
    (f) A meeting initiated by a group with the President or one or more 
Federal official(s) for the purpose of expressing the group's views, 
provided that the President or Federal official(s) does not use the 
group recurrently as a preferred source of advice or recommendations;
    (g) A committee that is established to perform primarily operational 
as opposed to advisory functions. Operational functions are those 
specifically provided by law, such as making or implementing Government 
decisions or policy. An operational committee would be covered by the 
Act if it becomes primarily advisory in nature;
    (h) A meeting initiated by a Federal official(s) with more than one 
individual for the purpose of obtaining the advice of individual 
attendees and not for the purpose of utilizing the group to obtain 
consensus advice or recommendations. However, such a group would be 
covered by the Act when an 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.



Sec. 105-54.102  Definitions.

    (a) The term ``advisory committee'' means any committee, board, 
commission, council, conference, panel, task force, or other similar 
group or any subcommittee thereof that is:
    (1) Established by statute,
    (2) Established or utilized by the President, or
    (3) Established or utilized by any agency official to obtain advice 
or recommendations that are within the scope of his/her responsibilies.

The term ``advisory committee'' excludes the Advisory Committee on 
Intergovernmental Relations and any

[[Page 110]]

committees composed wholly of full-time officers or employees of the 
Federal Government.
    (b) ``Presidential advisory committee'' means any committee that 
advises the President. It may be established by the President or by the 
Congress, or may be used by the President to obtain advice or 
recommendations.
    (c) ``Independent Presidential advisory committee'' means any 
Presidential advisory committee not assigned by the President, or the 
President's delegate, or by the Congress in law, to an agency for 
administrative and other support and for which the Administrator of 
General Services may provide administrative and other support on a 
reimbursable basis.
    (d) ``Committee member'' means an individual who serves by 
appointment on a committee and has the full right and obligation to 
participate in the activities of the committee, including voting on 
committee recommendations.
    (e) ``Staff member'' means any individual who serves in a support 
capacity to an advisory committee.
    (f) ``Secretariat'' means the General Services Administration's 
Committee Management Secretariat. Established pursuant to the Federal 
Advisory Committee Act, it is responsible for all matters relating to 
advisory committees, and carries out the Administrator's 
responsibilities under the Act and Executive Order 12024.
    (g) ``Utilized'' (or used), as stated in the definition of 
``advisory committee'' above, refers to a situation in which a GSA 
official adopts a committee or other group composed in whole or in part 
of other than full-time Federal officers or employees with an 
established existence outside GSA as a preferred source from which to 
obtain advice or recommendations on a specific issue or policy within 
the scope of his/her responsibilities in the same manner as that 
official would obtain advice or recommendations from an established 
advisory committee.



Sec. 105-54.103  Policy.

    The basic GSA policy on committee management is as follows:
    (a) Advisory committees will be formed or used by GSA only when 
specifically authorized by law, or by the President, or specifically 
determined as a matter of formal record by the Administrator of General 
Services to be in the public interest in connection with the performance 
of duties imposed on GSA by law;
    (b) Advisory committees will not be used to administer a function 
that is the assigned responsibility of a service or staff office;
    (c) The assigned responsibility of a GSA official may not be 
delegated to any committee;
    (d) No advisory committee may be used for functions that are not 
solely advisory unless specifically authorized by statute or 
Presidential directive. Making policy decisions and determining action 
to be taken with respect to any matter considered by an advisory 
committee is solely the responsibility of GSA; and
    (e) In carrying out its responsibilities, GSA will consult with and 
obtain 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.



Sec. 105-54.104  Responsibilities.

    (a) Responsibility for coordination and control of committee 
management in GSA is vested in the Associate Administrator for 
Administration, who serves as the GSA Committee Management Officer 
(CMO). This Officer carries out the functions prescribed in section 8(b) 
of the Federal Advisory Committee Act. In doing so, the Officer controls 
and supervises the establishment, procedures, and accomplishments of 
GSA-sponsored advisory committees. The Organization and Productivity 
Improvement Division, Office of Management Services, Office of 
Administration, provides staff resources and furnishes the Staff Contact 
Person (SCP) to the CMO.
    (b) The Head of each Service and Staff Office and each Regional 
Administrator selects a Committee Management Officer (CMO) to coordinate 
and control committee management within the service, staff office, or 
regional office and to act as liaison to the GSA

[[Page 111]]

Committee Management Officer. The duties of the CMOs are as follows:
    (1) Assemble and maintain the reports, records, and other papers of 
any GSA-sponsored committee during its existence (Arrangements may be 
made, however, for the Government chairperson or other GSA 
representative to retain custody of reports, records, and other papers 
to facilitate committee operations. After the committee is terminated, 
all committee records are disposed of following existing regulations.); 
and
    (2) Under agency regulations in 41 CFR 105-60, carry out the 
provisions of 5 U.S.C. 552 with respect to the reports, records, and 
other papers of GSA-sponsored advisory committees.



         Subpart 105-54.2--Establishment of Advisory Committees



Sec. 105-54.200  Scope of subpart.

    This subpart prescribes the policy and procedures for establishing 
advisory committees within GSA.



Sec. 105-54.201  Proposals for establishing advisory committees.

    (a) The Administrator approves the establishment of all GSA Federal 
Advisory Committees.
    (b) When it is decided that it is necessary to establish a 
committee, the appropriate Head of the Service or Staff Office (HSSO) 
must consider the functions of similar committees in GSA to ensure that 
no duplication of effort will occur.
    (c) The HSSO proposes the establishment of a Central Office or 
regional advisory committee within the scope of assigned program 
responsibilities. In doing so, the HSSO assures that advisory committees 
are established only if they are essential to the conduct of agency 
business. Advisory committees are established only if there is a 
compelling need for the committees, the committees have a truly balanced 
membership, and the committees conduct their business as openly as 
possible under the law and their mandate. Each proposal is submitted to 
the GSA Committee Management Officer for review and coordination and 
includes:
    (1) A letter addressed to the Committee Management Secretariat 
signed by the HSSO with information copies for the Administrator, Deputy 
Administrator, the Associate Administrator for Congressional and 
Industry Relations, and the Special Counsel for Ethics and Civil Rights, 
describing the nature and purpose of the proposed advisory committee; 
why it is essential to agency business and in the public interest; why 
its functions cannot be performed by an existing committee of GSA, by 
GSA, or other means such as a public hearing; and the plans to ensure 
balanced membership;
    (2) A notice for publication in the Federal Register containing the 
Administrator's certification that creation of the advisory committee is 
in the public interest and describing the nature and purpose of the 
committee; and
    (3) A draft charter for review by the Committee Management 
Secretariat.
    (d) Subcommittees that do not function independently of the full or 
parent advisory committee need not follow the requirements of paragraph 
(c) of this section. However, they are subject to all other requirements 
of the Federal Advisory Committee Act.
    (e) The requirements of paragraphs (a) through (c) of this section 
apply to any subcommittee of a chartered committee, whether its members 
are drawn in whole or in part from the full or parent advisory 
committee, that functions independently of the parent advisory 
committee, such as by making recommendations directly to a GSA official 
rather than for consideration by the chartered advisory committee.



Sec. 105-54.202  Review and approval of proposals.

    (a) The GSA Committee Management Officer reviews each proposal to 
make sure it conforms with GSA policies and procedures. The Officer 
sends the letter of justification, including the draft charter, to the 
Committee Management Secretariat. The Secretariat reviews the proposal 
and provides its views within 15 calendar days of receipt, if possible. 
The Administrator retains final authority for establishing a particular 
advisory committee.

[[Page 112]]

    (b) When the Secretariat notifies the Officer that establishing the 
committee conforms with the Federal Advisory Committee Act, the Officer 
obtains the Administrator's approval of the charter and the Federal 
Register notice. The Officer publishes the notice in the Federal 
Register at least 15 calendar days before the filing of the charter 
under Sec. 105-54.203 with the standing committees of the Senate and the 
House of Representatives having legislative jurisdiction over GSA. The 
date of filing constitutes the date of establishment.



Sec. 105-54.203  Advisory committee charters.

    No advisory committee may operate, meet, or take any action until 
the Administrator approves its charter and the Committee Management 
Officer sends a copy of it to the standing committees of the Senate and 
the House of Representatives having legislative jurisdiction over GSA.



Sec. 105-54.203-1  Preparation of charters.

    Each committee charter contains the following information:
    (a) The committee's official designation;
    (b) The committee's objectives and the scope of its activities;
    (c) The period of time necessary for the committee to carry out its 
purpose (if the committee is intended to function as a standing advisory 
committee, this should be made clear);
    (d) The official to whom the committee reports, including the 
official's name, title, and organization;
    (e) The agency and office responsible for providing the necessary 
support for the committee;
    (f) A description of the duties for which the committee is 
responsible (if the duties are not solely advisory, the statutory or 
Presidential authority for additional duties shall be specified);
    (g) The estimated annual operating costs in dollars and person-years 
for the committee;
    (h) The estimated number and frequency of committee meetings;
    (i) The committee's termination date, if it is less than 2 years 
from the date of its establishment; and
    (j) The date the charter is filed. This date is inserted by the GSA 
Committee Management Officer after the Administrator approves the 
charter.



Sec. 105-54.203-2  Active charters file.

    The GSA Committee Management Officer retains each original signed 
charter in a file of active charters.



Sec. 105-54.203-3  Submission to Library of Congress.

    The GSA Committee Management Officer furnishes a copy of each 
charter to the Library of Congress when or shortly after copies are 
filed with the requisite committees of the Congress. Copies for the 
Library are addressed: Library of Congress, Exchange and Gift Division, 
Federal Documents Section, Federal Advisory Committee Desk, Washington, 
DC 20540.



Sec. 105-54.204  Advisory committee membership.

    (a) Advisory committees that GSA establishes represent the points of 
view of the profession, industry, or other group to which it relates, 
taking into account the size, function, geographical location, 
affiliation, and other considerations affecting the character of a 
committee. To ensure balance, the agency considers for membership a 
cross-section of interested persons and groups with professional or 
personal qualifications or experience to contribute to the functions and 
tasks to be performed. This should be construed neither to limit the 
participation nor to compel the selection of any particular individual 
or group to obtain different points of view relevant to committee 
business. The Administrator designates members, alternates, and 
observers, as appropriate, of advisory committees. He/she designates a 
Federal officer or employee to chair or attend each meeting of each 
advisory committee. The Administrator also designates GSA employees to 
serve on advisory committees sponsored by other Government agencies. The 
HSSO or Regional Administrator submits nominations and letters of 
designation for the Administrator's signature to

[[Page 113]]

the GSA Committee Management Officer and to the Special Counsel for 
Ethics and Civil Rights for review and forwarding to the Administrator.
    (b) Discrimination is prohibited on the basis of race, color, age, 
national origin, religion, sex, or mental and physical handicap in 
selecting advisory committee members.
    (c) Nominees for membership must submit a Statement of Employment 
and Financial Interests (provided to the nominee by the HSSO or Regional 
Administrator) and may not be appointed until cleared by the Designated 
Agency Ethics Official.



             Subpart 105-54.3--Advisory Committee Procedures



Sec. 105-54.300  Scope of subpart.

    This subpart sets forth the procedures that will be followed in the 
operation of advisory committees within GSA.



Sec. 105-54.301  Meetings.

    (a) Each GSA advisory committee meeting is open to the public unless 
the Administrator decides otherwise;
    (b) Each meeting is held at a reasonable time and in a place 
reasonably accessible to the public;
    (c) The meeting room size is sufficient to accommodate committee 
members, committee or GSA staff, and interested members of the public;
    (d) Any private citizen is permitted to file a written statement 
with the advisory committee;
    (e) Any private citizen is permitted to speak at the advisory 
committee meeting, at the chairperson's discretion;
    (f) All persons attending committee meetings at which classified 
information will be considered are required to have an adequate security 
clearance;
    (g) The Designated Federal Officer (who may be either full time or 
permanent part-time) for each advisory committee and its subcommittees 
does the following:
    (1) Approves or calls the meetings of the advisory committee;
    (2) Approves the meeting agenda, which lists the matters to be 
considered at the meeting and indicates whether any part of the meeting 
will be closed to the public under the Government in the Sunshine Act (5 
U.S.C. 552b(c)). Ordinarily, copies of the agenda are distributed to 
committee members before the date of the meeting;
    (3) Attends all meetings (no part of a meeting may proceed in the 
Designated Federal Officer's absence);
    (4) Adjourns the meeting when he or she determines that adjournment 
is in the public interest; and
    (5) Chairs the meeting when asked to do so.
    (h) The Committee Chairperson makes sure that detailed minutes of 
each meeting are kept and certifies to their accuracy. The minutes 
include:
    (1) Time, date, and place;
    (2) A list of the following persons who were present;
    (i) Advisory committee members and staff;
    (ii) Agency employees; and
    (iii) Private citizens who presented oral or written statements;
    (3) The estimated number of private citizens present;
    (4) An accurate description of each matter discussed and the 
resolution of the matter, if any; and
    (5) Copies of each report or other document the committee received, 
issued, or approved.
    (i) The responsible HSSO or the Regional Administrator publishes at 
least 15 calendar days before the meeting a notice in the Federal 
Register that includes:
    (1) The name of the advisory committee as chartered;
    (2) The time, date, place, and purpose of the meeting;
    (3) A summary of the agenda; and
    (4) A statement whether all or part of the meeting is open to the 
public of closed; and if closed, the reasons why, and citing the 
specific exemptions of the Government is the Sunshine Act (5 U.S.C. 
552b) as the basis for closure;
    (j) In exceptional circumstances and when approved by the General 
Counsel or designee, less than 15 calendar days notice may be given, 
provided the reasons for doing so are included in the committee meeting 
notice published in the Federal Register;
    (k) Notices to be published in the Federal Register are submitted to 
the Federal Register Liaison Officer

[[Page 114]]

(CAID). At least five workdays are needed for printing of the notice;
    (l) Meetings may also be announced by press release, direct mail, 
publication in trade and professional journals, or by notice to special 
interest and community groups affected by the Committee's deliberations. 
This procedure cannot be a substitute for Federal Register publication;
    (m) The fact that a meeting may be closed to the public under the 
exemptions of the Government in the Sunshine Act does not relieve GSA of 
the requirement to publish a notice of it in the Federal Register. The 
Administrator may authorize an exception to this requirement for reasons 
of national security if the HSSO requests it at least 30 calendar days 
before the meeting, with the concurrence of the General Counsel of 
designee.
    (n) An advisory committee meeting is not open to the public, nor is 
the attendance, appearance, or filing of statements by interested 
persons permitted, if the Administrator decides that the meeting is 
exempted under the Government in the Sunshine Act (5 U.S.C. 552b (c)) 
and there is sufficient reason to invoke the exemption. If only part of 
the meeting concerns exempted matters, only that part is closed. The 
HSSO or Regional Administrator submits any decisions concerning the 
closing of meetings in writing to the Administrator for approval at 
least 30 calendar days in advance of the meeting. These decisions 
clearly set forth the reasons for doing so, citing the specific 
exemptions used from the Government in the Sunshine Act in the meeting 
notice published in the Federal Register. They are made available to the 
public on request. The Administrator may waive the 30-day requirement 
when a lesser period of time is requested and adequately justified.
    (o) If any meeting or portion of a meeting is closed to public 
attendance, the advisory committee issues a report at lease annually 
setting forth a summary of its activities and such related matters as 
would be informative to the public, consistent with the policy of 5 
U.S.C. 552(b). Notice of the availability of the report and instructions 
on how to gain access to it are published in the Federal Register no 
later than 60 days after its completion. In addition, copies of the 
report are filed with the Library of Congress.
    (p) The General Counsel reviews all requests to close meetings.
    (q) The HSSO or Regional Administrator publishes the meeting notices 
in the Federal Register, including the reasons why all or part of the 
meeting is closed, citing the specified exemptions used from the 
Government in the Sunshine Act.



Sec. 105-54.302  Committee records and reports.

    (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.

[[Page 115]]



Sec. 105-54.303  Fiscal and administrative provisions.

    (a) Each HSSO and each Regional Administrator ensures that under 
established GSA procedures, records are kept that fully disclose the 
disposition of funds at the disposal of an advisory committee and the 
nature and extent of the committee's activities.
    (b) When GSA is assigned to provide administrative support for a 
Presidential advisory committee, the Agency Liaison Coordinator in the 
Office of the Deputy Regional Administrator, National Capital Region, as 
a part of its support, arranges with the Office of Finance, Office of 
the Comptroller, for maintaining all financial records.
    (c) Unless otherwise provided in a Presidential order, statute, or 
other authority, the GSA service or staff office sponsoring an advisory 
committee provides support services for the committee.
    (d) The guidelines in paragraph (e) through (l) of this section are 
established under section 7(d) of the Federal Advisory Committee Act, 86 
Stat. 773. They apply to the pay of members, staff, and consultants of 
an advisory committee, except that nothing in this paragraph will affect 
a rate of pay or a limitation on a rate of pay that is established by 
statute or a rate of pay established under the General Schedule 
classification and pay system in Chapter 51 and Subchapter III of 
Chapter 53 of Title 5, U.S.C.
    (e) The members of GSA advisory committee established pursuant to 
the Administrator's authority under section 205(g) of the Federal 
Property and Administrative Services Act of 1949, as amended (40 U.S.C. 
486(g)), are not compensated, since, by law, members so appointed shall 
service without compensation. A person who (without regard to his or her 
service with an advisory committee) is a full-time Federal employee will 
normally receive compensation at the rate at which he or she would 
otherwise be compensated.
    (f) When required by law, the pay of the members of GSA advisory 
committees will be fixed to the daily equivalent of a rate of the 
General Schedule in 5 U.S.C. 5332 unless the members are appointed as 
consultants and compensated as provided in paragraph (h) of this 
section. In determining an appropriate rate of pay for the members, GSA 
must give consideration to the significance, scope, and technical 
complexity of the matters with which the advisory committee is concerned 
and the qualifications required of the members of the advisory 
committee. GSA may not fix the pay of the members of an advisory 
committee at a rate higher than the daily equivalent of the maximum rate 
for a GS-15 under the General Schedule, unless a higher rate is mandated 
by statute, or the Administrator has personally determined that a higher 
rate of pay under the General Schedule is justified and necessary. Such 
a determination must be reviewed by the Administrator annually. 
Accordingly, the Administrator may not fix the pay of the members of an 
advisory committee at a rate of pay higher than the daily equivalent of 
a rate for a GSA 18, as provided in 5 U.S.C. 5332.
    (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

[[Page 116]]

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.



Sec. 105-54.304  Cost guidelines.

    (a) The reporting and estimating of the costs of advisory committees 
include direct obligations for the following items:
    (1) Pay compensation of committee members; consultants to the 
committee; all permanent, temporary, or part-time (GM, GS, WB, or other) 
positions which are a part of or support the committee; and all overtime 
related to committee functions (Compensation should reflect actual or 
estimated Federal person-years or parts thereof devoted to a committee's 
activities. It includes the compensation of Federal employees assigned 
to committees, on a reimbursable or nonreimbursable basis, from agencies 
or departments other than to which the committee reports.);
    (2) Personnel benefits associated with the above compensation (13 
percent of basic payroll);
    (3) Travel costs (including per diem) of committee members; 
consultants; and all permanent, temporary, or 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.).



Sec. 105-54.305  Renewal of advisory committees.

    (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:

[[Page 117]]

    (A) An explanation of why the committee is essential to the conduct 
of agency business and is in the public interest;
    (B) GSA's plan to attain balanced membership of the committee; and
    (C) An explanation of why the committee's functions cannot be 
performed by GSA, another existing GSA advisory committee, or other 
means such as a public hearing;
    (iii) A notice for publication in the Federal Register describing 
the nature and purpose of the committee and containing a certification 
by the Administrator that renewing the advisory committee is in the 
public interest.
    (3) On receiving the above documents, the GSA Committee Management 
Officer submits the renewal letter to the Committee Management 
Secretariat not more than 60 calendar days nor less than 30 days before 
the committee expires. Following receipt of the Committee Management 
Secretariat's views on the committee renewal, the Officer obtains the 
Administrator's approval of the charter and the Federal Register notice. 
The Officer publishes notice of the renewal in the Federal Register and 
files copies of the updated charter. The 15-day notice requirement does 
not apply to committee renewals, notices of which may be published 
concurrently with the filing of the charter.
    (b) Each statutory advisory committee is renewed by the filing of a 
renewal charter upon the expiration of each successive 2-year period 
following the date of enactment of the statute establishing the 
committee according to the following:
    (1) The procedures in paragraph (a)(2) of this section apply to the 
renewal of a statutory committee except that neither prior consultation 
with the Committee Management Secretariat nor a Federal Register notice 
is required. Accordingly, the letter that paragraph a(2)(ii) requires is 
sent to the Administrator rather than the Committee Mangement 
Secretariat. Due to the nature of a committee the law established, the 
explanation of the need to continue the committee's existence is less 
extensive than the explanation for the continuation of a non-statutory 
committee; and
    (2) The GSA Committee Management Officer provides the Committee 
Management Secretariat with a copy of the filed charter.
    (c) An advisory commitee 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.



Sec. 105-54.306  Amendment of advisory committee charters.

    (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 Sec. 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 Sec. 105-54.203-1.
    (d) Amending an existing charter does not constitute renewal of the 
committee.



Sec. 105-54.307  Termination of advisory committees.

    (a) The sponsoring HSSO terminates an advisory commitee 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

[[Page 118]]

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.



Sec. 105-54.308  Responsibilities of the Administrator.

    The Administrator must ensure:
    (a) Compliance with the Federal Advisory Committee Act and this 
chapter;
    (b) Issuance of administrative guidelines and management controls 
that apply to all advisory committees established or used by the agency;
    (c) Designation of a Committee Management Officer to carry out the 
functions specified in section 89(b) of the Federal Advisory Committee 
Act;
    (d) Provision of a written determination stating the reasons for 
closing any advisory committee meeting to the public;
    (e) A review, at least annually, of the need to continue each 
existing advisory committee, consistent with the public interest and the 
purpose and functions of each committee;
    (f) The appointment of a Designated Federal Officer for each 
advisory committee and its subcommittee;
    (g) The opportunity for reasonable public participation in advisory 
committee activities; and
    (h) That the number of committee members is limited to the fewest 
necessary to accomplish committee objectives.



Sec. 105-54.309  Added responsibilities of service and staff office heads and regional administrators.

    (a) No later than the first meeting of an advisory committee, submit 
to committee members, committee staff, consultants, and appropriate 
agency management personnel a written statement of the purpose, 
objectives, and expected accomplishments of the committee;
    (b) Solicit in writing or in a formal meeting at least annually the 
views of committee members on the effectiveness, activities, and 
management of the committee, including recommendations for improvement. 
Review comments to determine whether improvements or corrective action 
is warranted. Retain recommendations until the committee is terminated 
or renewed.
    (c) Involve key management personnel of the agency whose interests 
are affected by the committee in committee meetings, including reviewing 
reports and establishing agendas.
    (d) Periodically, but not less than annually, review the level of 
committee staff suport to make sure that expenditures are justified by 
committee activity and benefit to the Government.
    (e) Monitor the attendance and participation of committee members 
and consider replacing any member who misses a substantial number of 
scheduled meetings.
    (f) Establish meeting dates and distribute agendas and other 
materials well in advance.



Sec. 105-54.310  Advisory committee duties of the GSA Committee Management Officer.

    In addition to implementing the provisions of section 8(b) of the 
Federal Advisory Committee Act, the GSA Committee Management Officer 
carries out all responsibilities delegated by the Administrator. The 
Officer ensures that sections 10(b), 12(a), and 13 of the Act are 
implemented by GSA to provide for appropriate record keeping. Records 
include, but are not limited to:
    (a) A set of approved charters and membership lists for each 
advisory committee;
    (b) Copies of GSA's portion of the Annual Report of Federal Advisory 
Committees.
    (c) Guidelines on committee management operations and procedures as 
maintained and updated; and
    (d) Determinations to close advisory committee meetings.



Sec. 105-54.311  Complaint procedures.

    (a) Any person whose request for access to an advisory committee 
document is denied may seek administrative review under 41 CFR 105-60, 
which implements the Freedom of Information Act. (See GSA Order, GSA 
regulations under the ``Freedom of Information Act'' (ADM 7900.3A).)
    (b) Aggrieved individuals or organizations may file written 
complaints on

[[Page 119]]

matters not involving access to documents with the Deputy Administrator, 
General Services Administration, Washington, DC 20405. Complaints must 
be filed within 90 calendar days from the date the grievance arose. The 
Deputy Administrator promptly acts on each complaint and notifies the 
complainant in writing of the decision.



                        Subpart 105-54.4--Reports



Sec. 105-54.400  Scope of subpart.

    This subpart sets forth the reports required by this part 105-54 and 
prescribes instructions for submission of the reports.



Sec. 105-54.401  Reports on GSA Federal Advisory Committees.

    (a) The Committee Management Secretariat periodically issues 
reporting instructions and procedures. The GSA Committee Management 
Officer files a report each fiscal year providing program, financial, 
and membership information. The Secretariat uses the information in 
preparing recommendations and status reports on advisory committee 
matters and in assisting the President in preparing and submitting a 
fiscal year report to the Congress. Instructions for preparing GSA's 
submission are provided by the GSA Committee Management Officer.
    (b) Reports on closed meetings are required as specified in 
Sec. 105-54.301(o).



PART 105-55--COLLECTION OF CLAIMS OWED THE UNITED STATES--Table of Contents




Sec.
105-55.001  Background.
105-55.002  Purpose.
105-55.003  Applicability.
105-55.004  Demand for payment.
105-55.005  Interest, administrative charges, and penalty charges.
105-55.006  Responsibility for collection.
105-55.007  Collection by offset.
105-55.008  Settlement of claims.
105-55.009  Referral for litigation.
105-55.010  Disclosure to credit reporting agencies and referrals to 
          collection agencies.
105-55.011  Credit report.

    Authority: 31 U.S.C. 3701-3719; Pub. L. 97-365, 96 Stat. 1754.

    Source: 50 FR 37531, Sept. 16, 1985, unless otherwise noted.



Sec. 105-55.001  Background.

    The Department of Justice and the General Accounting Office have 
jointly issued amended Federal Claims Collection Standards (4 CFR parts 
101-105) which reflect changes to the Federal Claims Collection Act of 
1966 (31 U.S.C. 3701-3719) made by the passage of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1754). The preamble to the amended 
Federal Claims Collection Standards instructs individual agencies to 
adopt their own regulations as to detailed procedures in furtherance of 
the Federal Claims Collection Standards. Additionally, the Debt 
Collection Act of 1982 directs, as reflected in the Federal Claims 
Collection Standards, that each agency must prescribe regulations on 
collecting by administrative offset and that each agency may prescribe 
regulations identifying circumstances appropriate to waive collection of 
interest and charges in conformity with the Federal Claims Collection 
Standards.



Sec. 105-55.002  Purpose.

    In keeping with the suggestion in the preamble to the amended 
Federal Claims Collection Standards and the directives in the Debt 
Collection Act of 1982 and the Federal Claims Collection Standards as to 
administrative offset and the collection of interest and charges, this 
part provides procedures for the General Services Administration to 
collect, compromise, or terminate collection action on claims owed to 
the United States arising from activities under GSA jurisdiction. It 
implements the Federal Claims Collection Act as amended by the Debt 
Collection Act. It supplements the regulations published jointly by the 
General Accounting Office and the Department of Justice. It sets forth 
procedures by which GSA:
    (a) Will collect claims owed to the United States;
    (b) Will determine and collect interest and other charges on those 
claims;
    (c) Will compromise claims; and
    (d) Will refer unpaid claims for litigation.



Sec. 105-55.003  Applicability.

    (a) This part applies to all claims due the United States under the 
Federal

[[Page 120]]

Claims Collection Act, as amended by the Debt Collection Act, arising 
from activities under the jurisdiction of the General Services 
Administration, except for the collection by administrative offset of 
those claims arising out of contracts subject to the Contracts Disputes 
Act of 1982, 41 U.S.C. 601 et. seq. The word ``claims'' includes but is 
not limited to amounts due the United States from fees, overpayments, 
fines, civil penalties, damages, interest and other sources.
    (b) Claims arising from the audit of transportation accounts 
pursuant to 31 U.S.C. 3726 shall 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 excepted 
from these regulations.

[50 FR 37531, Sept. 16, 1985, as amended at 52 FR 46468, Dec. 8, 1987]



Sec. 105-55.004  Demand for payment.

    (a) A total of three progressively stronger written demands at 
approximately 30-day intervals will normally be made, unless a response 
or other information indicates that additional written demands would 
either be unnecessary or futile. When necessary to protect the 
Government's interest, written demand may be preceded by other 
appropriate actions under the Federal Claims Collection Standards, 
including immediate referral for litigation and/or offset.
    (b) The initial written demand for payment shall inform the debtor 
of:
    (1) The basis for the claim;
    (2) The amount of the claim;
    (3) The date when payment is due; (30 days from date of mailing or 
hand delivery of the initial demand for payment);
    (4) The provision for interest, penalties, and administrative 
charges in accordance with 31 U.S.C. 3717, if payment is not received by 
the due date (See Sec. 105-55.005 for details regarding interest, 
administrative charges, and penalty charges.)
    (5) The intent of the agency to collect by administrative offset, 
including asking the assistance of other Federal agencies to help in the 
offset whenever possible, if the debtor has not made payment by the 
payment due date, has not requested a review of the claim within the 
agency as set out in paragraph (b)(8) of this section or has not made an 
arrangement for payment by the payment due date;
    (6) The right of the debtor to inspect and copy the records of the 
agency related to the claim. Any costs associated therewith shall be 
borne by the debtor. The debtor shall give reasonable notice in advance 
to the agency of the date upon which it intends to inspect and copy the 
records involved;
    (7) The right of the debtor to a review of the claim within the 
agency. If the claim is disputed in full or part, the debtor shall 
respond to the demand in writing by making a request for a review of the 
claim within the agency by the payment due date stated in the demand. 
The debtor's written response shall state the basis for the dispute. If 
only part of the claim is disputed, the undisputed portion should be 
paid by the date stated in the initial demand. The agency shall 
acknowledge receipt of the request for a review, and upon completion of 
consideration shall notify the debtor whether its determination has been 
sustained, amended, or canceled within 15 days of the receipt of the 
request for a review. If the agency either sustains or amends its 
determination, it shall notify the debtor of its intent to collect by 
administrative offset unless payment is received within 15 days of the 
mailing of the notification of its decision following a review of the 
claim.
    (8) The right of the debtor to offer to make a written agreement to 
repay the amount of the claim. The acceptance of such an agreement is 
discretionary with the agency. If the debtor requests a repayment 
arrangement because a payment of the amount due would create a financial 
hardship, the appropriate GSA Regional Finance Division will analyze the 
debtor's financial condition. Dependent upon the Regional Finance 
Division's evaluation of the financial strength of the debtor, the 
Comptroller or the appropriate designee and the debtor may agree to a 
written installment repayment schedule. The debtor shall execute a 
confess-judgment note which specifies all of

[[Page 121]]

the terms of the arrangement. The size and frequency of installment 
payments should bear a reasonable relation to the size of the debt and 
the debtor's ability to pay. Interest, administrative charges, and 
penalty charges shall be provided for in the note. The debtor shall be 
provided with a written explanation of the consequences of signing a 
confess-judgment note. The debtor shall sign a statement acknowledging 
receipt of the written explanation which shall recite that the statement 
was read and understood before execution of the notice and that the note 
is being signed knowingly and voluntarily. Some form of objective 
evidence of these facts should be maintained in the agency's file on the 
debtor.
    (c) If no response to the demand is received by the date stated in 
the demand, GSA will take further action under this subpart or under the 
Federal Claims Collection Standards. These actions may include reports 
to credit bureaus, referrals to collection agencies, termination of 
contract, debarment, offset of Federal salary, and other administrative 
offset, as authorized in 31 U.S.C. 3701-3719.



Sec. 105-55.005  Interest, administrative charges, and penalty charges.

    (a) GSA shall assess interest on unpaid claims at the rate of the 
current value of funds to the Treasury as prescribed by the Secretary of 
the Treasury on the date interest begins to run. GSA shall assess 
administrative charges to cover the costs of processing and handling 
overdue claims. GSA shall assess penalty charges of six percent a year 
on any part of a debt more than 90 days past due. The imposition of 
interest, administrative charges, and penalty charges are made in 
accordance with 31 U.S.C. 3717.
    (b) Interest will be computed from the date of mailing or hand 
delivery of the initial demand if the amount of the claim is not paid 
within 30 days. The 30-day period may be extended in individual cases if 
there is good cause to do so and it is in the public interest. Interest 
will only be computed on the principal of the claim and the interest 
rate will remain fixed for the duration of the indebtedness, except 
where a debtor has defaulted on a repayment agreement and seeks to enter 
into a new agreement. A new rate which reflects the current value of 
funds to the Treasury at the time the new agreement is executed may be 
set if applicable and interest on interest and related charges may be 
charged where the debtor has defaulted on a previous repayment 
agreement. Charges which accrued but were not collected under the 
defaulted agreement shall be added to the principal to be paid under the 
new repayment schedule.
    (c) GSA may waive interest, administrative charges, or penalty 
charges if it finds that:
    (1) The debtor is unable to pay any significant sum toward the claim 
within a reasonable period of time;
    (2) Collection of interest, administrative charges, or penalty 
charges will jeopardize collection of the principal of the claim; or
    (3) It is otherwise in the best interests of the United States, 
including the situation where an offset or installment payment agreement 
is in effect.



Sec. 105-55.006  Responsibility for collection.

    (a) Heads of Central Office Services and Staff Offices and Regional 
Administrators must initiate actions on claims arising from their 
program operations and immediately notify the appropriate Regional 
Finance Division. A claim will be recorded and controlled by the 
Regional Finance Division upon receipt of documentation from a competent 
authority establishing the amount due.
    (b) The collection of claims under the control of Regional Finance 
Divisions will be aggressively pursued in accordance with the provisions 
of part 102 of the Federal Claims Collection Standards (4 CFR part 102). 
Whenever feasible, debts owed to the United States, together with 
interest, administrative charges and penalty charges, should be 
collected in full in one lump sum. If the debtor requests installment 
payments, the Regional Finance Divisions shall be responsible for 
determining the financial hardship of debtors and when appropriate shall 
arrange installment payment schedules. Claims which cannot be collected 
either directly or by administrative offset shall either be

[[Page 122]]

written off as administratively uncollectible in accordance with 
authority delegated to the Director, Office of Finance and the 
Directors, Regional Finance Divisions, or referred to the appropriate 
Assistant General Counsel or Regional Counsel for further consideration.
    (c) The General Counsel, delegated officials in the Office of 
General Counsel, and each Regional Counsel may compromise or suspend or 
terminate the collection of, referred claims under $20,000, exclusive of 
interest, penalties and administrative charges under the Act and the 
Federal Claims Collection Standards 4 CFR parts 103 and 104.
    (d) The Office of General Counsel officials listed in paragraph (c) 
of this section have the responsibility for referring to the Department 
of Justice all claims over $20,000 exclusive of interest, penalties and 
administrative charges which cannot be compromised, suspended or 
terminated in accordance with the Federal Claims Collection Act and the 
Federal Claims Collections Standards. Referrals to the Department of 
Justice shall be made in accordance with 4 CFR part 105 of the Federal 
Claims Collections Standards.



Sec. 105-55.007  Collection by offset.

    (a) Whenever feasible, after a debtor fails to pay the claim, 
request a review of the claim, or make an arrangement for payment. The 
Comptroller or his appropriate regional designee will collect claims 
under this part by means of administrative offset against obligations of 
the United States to the debtor, pursuant to 31 U.S.C. 3716, except 
offset of Federal salaries and claims arising out of contracts subject 
to the Contract Disputes Act of 1978, 41 U.S.C. 601 et. seq.
    (b) Salary offsets and offsets against military retired pay are 
governed by 5 U.S.C. 5514.
    (c) Collection by administrative offset of amounts payable from 
Civil Service Retirement and Disability Fund will be made pursuant to 5 
U.S.C. 5514 and 5 U.S.C. 5705 and regulations thereunder.
    (d) The offset of claims arising out of contracts subject to the 
Contract Disputes Act of 1978, 41 U.S.C. 601 et. seq. will be made 
pursuant to the Government common law right of offset.
    (e) GSA will promptly make requests for offset to other agencies 
holding funds payable to a debtor and provide instructions for the 
transfer of these funds. Requests for offset received from other 
agencies shall be processed promptly and the funds transferred to the 
requesting agency.
    (f) If administrative offset cannot be effected through GSA or other 
known agency accounts receivable, then GSA will place a complete stop 
order against amounts otherwise payable to the debtor by placing the 
name of that debtor on the Department of the Army ``List of Contractors 
Indebted to the United States.'' If any amounts are discovered under 
this procedure, they will be offset against the debt owed to GSA.
    (g) GSA should not attempt to effect collection by administrative 
offset when:
    (1) The debtor has ceased to do business and there are no known or 
potential obligations payable by any agency of the United States 
Government to the debtor.
    (2) The debt in question is over ten years old.
    (3) The debtor has either gone into receivership and has liquidated 
all of its assets or has filed a petition in bankruptcy as a no asset 
debtor, and there is no likelihood of the debtor resuming operations; 
and there are no known or potential obligations payable by any agency of 
the United States Government to the debtor. In the case of a bankruptcy 
petition, the automatic stay against setoff must be honored pending 
release from the stay.
    (4) The debtor is deceased, and there are no attachable assets in 
the estate.
    (5) Any other circumstances which would indicate that the likelihood 
of collection by administrative offset is less than probable.

[50 FR 37531, Sept. 16, 1985, as amended at 52 FR 46468, Dec. 8, 1987]



Sec. 105-55.008  Settlement of claims.

    (a) In accordance with the provisions of 4 CFR part 103, GSA 
officials listed in Sec. 105-55.006(c) may settle claims not exceeding 
$20,000 exclusive of interest, penalties and administrative charges

[[Page 123]]

by compromise at less than the principal of the claim if:
    (1) The debtor shows an inability to pay the full amount within a 
reasonable time;
    (2) The Government would be unable to enforce complete collection by 
any means within a reasonable time;
    (3) The amount of the claim does not justify the actual foreseable 
collection cost of the claim; or
    (4) A combination of the above reasons.
    (b) GSA may suspend or terminate collection action in accordance 
with the terms and procedures contained in 4 CFR part 104.



Sec. 105-55.009  Referral for litigation.

    Claims which cannot be settled under Sec. 105-55.008 or for which 
collection action cannot be suspended or terminated under 4 CFR parts 
103 and 104, will be referred to the General Accounting Office or the 
Department of Justice, whichever is appropriate, in accordance with the 
procedures in 4 CFR part 105.



Sec. 105-55.010  Disclosure to credit reporting agencies and referrals to collection agencies.

    The Comptroller and his designees may disclose debtor information to 
credit reporting agencies and may refer delinquent debts to debt 
collection agencies under the Federal Claims Collection Act, as amended, 
and other applicable authorities, provided, however, that no claim 
arising from the dishonor of any check or other negotiable instrument 
shall be disclosed to a credit reporting agency or referred to a 
collection agency without the concurrence of the appropriate Regional 
Inspector General for Investigations. Information will be disclosed to 
reporting agencies and referred to debt collection agencies in 
accordance with the terms and conditions of agreements entered into 
between GSA and the reporting and collection agencies. The terms and 
conditions of such agreements shall specify that all of the rights and 
protections afforded to the debtor under 31 U.S.C. 3711(f) have been 
fulfilled.



Sec. 105-55.011  Credit report.

    In order to aid the agency in making appropriate determinations as 
to the collection and compromise of claims; the collection of interest, 
administrative charges, and penalty charges; the use of administrative 
offset; the use of other collection methods; and the likelihood of 
collecting the claim, the Comptroller or his designees may institute a 
credit investigation of the debtor immediately following receipt of 
knowledge of the claim.



PART 105-56--SALARY OFFSET FOR INDEBTEDNESS OF GENERAL SERVICES ADMINISTRATION EMPLOYEES TO THE UNITED STATES--Table of Contents




Sec.
105-56.001  Scope.
105-56.002  Excluded debts or claims.
105-56.003  Definitions.
105-56.004  Pre-offset notice.
105-56.005  Employee response.
105-56.006  Petition for pre-offset hearing.
105-56.007  Pre-offset oral hearing.
105-56.008  Pre-offset ``paper hearing.''
105-56.009  Written decision.
105-56.010  Deductions.
105-56.011  Non-waiver of rights.
105-56.012  Refunds.
105-56.013  Coordinating offset with another Federal agency.

    Authority: 5 U.S.C. 5514; Pub. L. 97-365, 96 Stat. 1754.

    Source: 53 FR 31864, Aug. 22, 1988, unless otherwise noted.



Sec. 105-56.001  Scope.

    (a) This part covers both internal and Government-wide collections 
under 5 U.S.C. 5514. It applies when certain debts to the U.S. are 
recovered by administrative offset from the disposable pay of an 
employee of the U.S. Government, except in situations where the employee 
consents to the recovery.
    (b) The collection of any amount under this section shall be in 
accordance with the standards promulgated pursuant to the Federal Claims 
Collection Act of 1966 (31 U.S.C. 3701 et seq.) or in accordance with 
any other statutory authority for the collection of claims of the U.S. 
or any Federal agency.



Sec. 105-56.002  Excluded debts or claims.

    This part does not apply to:

[[Page 124]]

    (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 (41 U.S.C. 301 
et seq.), or the tariff laws of the United States.
    (b) To any case where collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute, such as travel 
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 
4108. Debt collection procedures under other statutory authorities, 
however, must be consistent with the provisions of FCCS, defined below..
    (c) An employee election of coverage or of a change of coverage 
under a Federal benefits program which requires periodic deductions from 
pay if the amount to be recovered was accumulated over four pay periods 
or less.



Sec. 105-56.003  Definitions.

    The following definitions apply to this part:
    ``Administrator'' means the Administrator of the General Services or 
the Administrator's designee.
    ``Debt'' means an amount owed to the United States 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.
    ``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; premiums for life and health insurance benefits; 
and such other deductions that are required by law to be withheld.
    ``Employee'' means a current employee of the General Services 
Administration, or other executive agency.
    ``FCCS'' means the Federal Claims Collection Standards jointly 
published by the Justice Department and the General Accounting Office at 
4 CFR 101.1 et seq.
    ``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.
    ``Program official'' means a supervisor or management official of 
the employee's service or staff office.
    ``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.
    ``Waiver'' means the cancellation, remission, forgiveness, or 
nonrecovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 U.S.C. 716, 
5 U.S.C. 8346(b), or any other law.



Sec. 105-56.004  Pre-offset notice.

    The employee is entitled to written notice from an appropriate 
program officer in his or her employing activity 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 
the General Services Administration or another agency to be due;
    (b) The intention of the agency to initiate proceedings to collect 
the debt through deductions from the employee's current disposable pay;
    (c) The amount, frequency, proposed beginning date, and duration of 
the intended deductions;
    (d) GSA's policy concerning how interest is charged and penalties 
and administrative cost assessed, including a statement that such 
assessments must be made unless excused under 31 U.S.C. 3717 and the 
FCCS, 4 CFR 101.1 et seq.;
    (e) The employee's right to inspect and copy Government records 
relating to the debt if Government records of the debt are not attached, 
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 therewith shall be borne by the debtor. The debtor 
shall give reasonable notice in advance to GSA of the date on which he 
or she intends to inspect and copy the records involved;

[[Page 125]]

    (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 written 
repayment agreement of the debt in lieu of offset;
    (g) The employee's right to request a waiver from the General 
Accounting Office if a waiver of repayment is authorized by law;
    (h) The employee's right to pre-offset hearing conducted by a 
hearing official arranged by the appropriate program official of his or 
her employing activity if a petition is filed as prescribed by Sec. 105-
56.005. Such hearing official will be either an administrative law judge 
or a hearing official not under the control of the head of the agency 
and will be designated in accordance with the procedures established in 
5 CFR 550.1107;
    (i) The method and time period for petitioning for a hearing, 
including a statement that the timely filing of a petition for hearing 
will stay the commencement of collection proceedings;
    (j) The issuance of a final decision on the hearing, if requested, 
at the earliest practicable date, but no later than 60 days after the 
petition is filed unless a delay is requested and granted;
    (k) 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;
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or 
any other applicable statutory authority.
    (l) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made.
    (m) 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;
    (n) The specific address to which all correspondence shall be 
directed regarding the debt.



Sec. 105-56.005  Employee response.

    (a) Voluntary repayment agreement. An employee may submit a request 
to the official who signed the demand letter 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 Sec. 105-56.004. The 
agreement must be in writing, signed by both the employee and the 
program official making the demand and a signed copy must be sent to the 
regional finance division 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. Where a waiver of repayment is authorized by law, the 
employee may request a waiver from the General Accounting Office.
    (c) Reconsideration. (1) An employee may seek a reconsideration of 
the Agency's determination regarding the existence or amount of the 
debt. The request must be submitted to the official who signed the 
demand letter within 7 days of receipt of notice under Sec. 105-56.004. 
Within 20 days of receipt of this notice, the employee shall submit a 
detailed statement of reasons for reconsideration which 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 program official who 
signed the demand letter within 7 days of receipt of notice under 
Sec. 105-56.004. Within 20 days of receipt of this notice, the employee 
shall submit an alternative repayment schedule accompanied by a detailed 
statement supported by documentation evidencing financial hardship 
resulting from the agency's proposed schedule. Acceptance of the request 
is discretionary with the agency. The agency must notify the employee in 
writing of its decision concerning the request to reduce the rate of an 
involuntary deduction.



Sec. 105-56.006  Petition for pre-offset hearing.

    (a) The employee may petition for a pre-offset hearing by filing a 
written petition with the program official who

[[Page 126]]

signed the demand letter within 15 days of receipt of the written 
notice. The petition must state why the employee believes the agency's 
determination concerning the existence or amount of the debt is in 
error, and set forth objections to the involuntary repayment schedule. 
The timely filing of a petition will suspend the commencement of 
collection proceedings.
    (b) The employee's petition or statement must be signed 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 program official must:
    (1) Notify the employee whether the employee may elect an oral 
hearing or whether he or she may have only a ``paper hearing,'' i.e., a 
review on the written record (see 4 CFR 102.3(c)). In either case, the 
program official will arrange for a hearing official; and
    (2) The program official will 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) An employee who elects an oral hearing must notify the hearing 
official and the program official in writing within 5 days of receipt of 
the notice under paragraph (d)(1) of this section and within 20 days of 
receipt of the notice under (d)(1) the employee shall fully identify and 
explain with reasonable specificity all the facts, evidence and 
witnesses which the employee believes support his or her position.
    (f) The hearing official shall notify the program official and the 
employee of the date, time and location of the hearing.
    (g) 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 program official at least 3 calendar days before the 
date of the oral hearing. The hearing official may waive the 3-day 
requirement for good cause.
    (h) Failure of the employee to appear at the oral hearing can result 
in dismissal of the petition and affirmation of the agency's decision.



Sec. 105-56.007  Pre-offset oral hearing.

    (a) Oral hearings are informal in nature. The agency, represented by 
a program official or a representative of the Office of General Counsel, 
and the employee, or his or her representative, shall 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 where the 
hearing official determines the testimony to be relevant and not 
redundant.
    (b) The hearing official shall--
    (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 at the hearing. The employee may not be 
represented by a person who creates an actual or apparent conflict of 
interest.
    (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 public.
    (e) Oral hearings may be conducted by conference call at the request 
of the employee or at the discretion of the hearing official.



Sec. 105-56.008  Pre-offset ``paper hearing.''

    If a hearing is to be held only upon written submissions, the 
hearing official shall issue a decision based upon the record and 
responses submitted by both the agency and the employee.



Sec. 105-56.009  Written decision.

    Within 60 days of filing of the employee's petition for a pre-offset 
hearing, the hearing official will issue a written decision setting 
forth: The facts supporting the nature and origin of the debt; the 
hearing official's analysis, findings and conclusions as to the 
employee's or agency's grounds, the amount and validity of the debt and 
the repayment schedule.

[[Page 127]]



Sec. 105-56.010  Deductions.

    (a) When deductions may begin. If the employee filed a petition for 
hearing with the program official before the expiration of the period 
provided for in Sec. 105-56.006, then deductions will begin after the 
hearing official has provided the employee with a hearing, and the final 
written decision is in favor of the agency. It is the responsibility of 
the employee's program official to issue the pre-offset notice to the 
employee and to instruct 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 amount 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 must be collected 
according to the procedures for administrative offset pursuant to 31 
U.S.C. 3716.
    (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 demand letter 
that he or she is financially unable to pay in one lump-sum. In these 
cases, collection will be by installment deductions.
    (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 program official agree to an alternative repayment 
schedule. The alternative arrangement must be in writing and signed by 
both the employee and the 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 will be 
sufficient in size and frequency to pay the debt over the shortest 
period possible and never to exceed three years. 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 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) Interest, penalties and administrative costs on debts under this 
part will be assessed according to the provisions of 4 CFR 102.13.



Sec. 105-56.011  Non-waiver of rights.

    An employee's involuntary payment of all or any portion of a debt 
being collected under 5 U.S.C. 5514 shall 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.



Sec. 105-56.012  Refunds.

    GSA will refund promptly to the appropriate individual amounts 
offset under these regulations when:
    (a) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (b) GSA is directed by an administrative or judicial order to refund 
amounts deducted from the employee's current pay.



Sec. 105-56.013  Coordinating offset with another Federal agency.

    (a) When GSA is owed the debt. When GSA is owed a debt by an 
employee of another agency, the other agency shall not initiate the 
requested offset until GSA provides the agency with a written 
certification that the debtor owes GSA a debt and that GSA has complied 
with these regulations. This certification shall include the amount and 
basis of the debt and the due date of the payment.
    (b) When another agency is owed the debt. GSA may use salary offset 
against one of its employees who is indebted to another agency if 
requested to do so by that agency. Any such request must be

[[Page 128]]

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.



PART 105-57--COLLECTION OF DEBTS BY TAX REFUND OFFSET--Table of Contents




Sec.
105-57.001  Purpose.
105-57.002  Applicability and scope.
105-57.003  Administrative charges.
105-57.004  Reasonable attempt to notify.
105-57.005  Notice requirement before offset.
105-57.006  Consideration of evidence.
105-57.007  Change in conditions after submission to IRS.

    Authority: 31 U.S.C. 3720A.

    Source: 59 FR 1277, Jan. 10, 1994, unless otherwise noted.



Sec. 105-57.001  Purpose.

    This part establishes procedures for the General Services 
Administration (GSA) to refer past due debts to the Internal Revenue 
Service (IRS) for offset against income tax refunds of taxpayers owing 
debts to GSA.



Sec. 105-57.002  Applicability and scope.

    (a) This part implements 31 U.S.C. 3720A which authorizes the IRS to 
reduce a tax refund by the amount of a past due legally enforceable debt 
owed to the United States.
    (b) For purposes of this section, a past due legally enforceable 
debt referable to the IRS is a debt which is owed to the United States 
and:
    (1) Has been delinquent for at least three months but, except in the 
case of a judgment debt, has not been delinquent more than ten years at 
the time the offset is made;
    (2) With respect to which, GSA has given the taxpayer at least 60 
days, from the date of notification, to present evidence that all or 
part of the debt is not past due or legally enforceable, has considered 
such evidence, and has determined that the debt is past due and legally 
enforceable;
    (3) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (4) Cannot be currently collected pursuant to the administrative 
offset provisions of 31 U.S.C. 3716;
    (5) Has been disclosed by GSA to a credit reporting agency, 
including a consumer reporting agency as authorized by 31 U.S.C. 
3711(f);
    (6) With respect to which, GSA has notified, or has made a 
reasonable attempt to notify, the taxpayer that the debt is past due 
and, unless repaid within 60 days thereafter, will be referred to the 
IRS for offset against any income tax refunds due the taxpayer;
    (7) Is at least $25.00;
    (8) All other requirements of 31 U.S.C. 3720A and the Department of 
the Treasury regulations relating to eligibility of a debt for tax 
refund offset, at 26 CFR 301.6402-6T, have been satisfied.



Sec. 105-57.003  Administrative charges.

    All administrative charges incurred in connection with the referral 
of debts to the IRS will be added to the debt, thus increasing the 
amount of the offset.



Sec. 105-57.004  Reasonable attempt to notify.

    In order to constitute a reasonable attempt to notify the debtor, 
GSA must have used a mailing address for the debtor obtained from the 
IRS pursuant to the Internal Revenue Code, 26 U.S.C. 6103 (m)(2) or 
(m)(4), within one year preceding the attempt to notify the debtor.



Sec. 105-57.005  Notice requirement before offset.

    The notification provided by GSA to the debtor will inform the 
debtor how to go about presenting evidence to GSA that all or part of 
the debt is either not past due or is not legally enforceable.



Sec. 105-57.006  Consideration of evidence.

    Evidence submitted by the debtor will be considered by officials or 
employees of GSA. Any determination that an amount of such debt is past 
due and legally enforceable will be made by such officials or employees. 
Evidence that the debt is affected by a bankruptcy proceeding involving 
the debtor shall bar referral of the debt.

[[Page 129]]



Sec. 105-57.007  Change in conditions after submission to IRS.

    If the amount of a debt is reduced after submission by GSA and 
offset by IRS, GSA will refund to the debtor any excess amount and will 
promptly notify IRS of the refund. GSA will also promptly notify the IRS 
if, after submission of a debt to the IRS for offset, GSA:
    (a) Determines that an error has been made with respect to the 
information submitted;
    (b) Receives a payment or credits a payment to an account submitted; 
or
    (c) Receives notification that the debtor has filed for bankruptcy 
under title 11 of the United States Code or has been adjudicated 
bankrupt and the debt has been discharged.



PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND INFORMATIONAL MATERIALS--Table of Contents




Sec.
105-60.000  Scope of part.

                  Subpart 105-60.1--General Provisions

105-60.101  Purpose.
105-60.102  Application.
105-60.103  Policy.
105-60.103-1  Availability of records.
105-60.103-2  Applying exemptions.
105-60.104  Records of other agencies.

Subpart 105-60.2--Publication of General Agency Information and Rules in 
                          the Federal Register

105-60.201  Published information and rules.
105-60.202  Published materials available for sale to the public.

     Subpart 105-60.3--Availability of Opinions, Orders, Policies, 
               Interpretations, Manuals, and Instructions

105-60.301  General.
105-60.302  Available materials.
105-60.303  Rules for public inspection and copying.
105-60.304  Public information handbook and index.
105-60.305  Fees.
105-60.305-1  Definitions.
105-60.305-2  Scope of this subpart.
105-60.305-3  GSA records available without charge.
105-60.305-4  GSA records available at a fee.
105-60.305-5  Searches.
105-60.305-6  Reviews.
105-60.305-7  Assurance of payment.
105-60.305-8  Prepayment of fees.
105-60.305-9  Form of payment.
105-60.305-10  Fee schedule.
105-60.305-11  Fees for authenticated and attested copies.
105-60.305-12  Administrative actions to improve assessment and 
          collection of fees.
105-60.305-13  Waiver of fee.

                   Subpart 105-60.4--Described Records

105-60.401  General.
105-60.402  Procedures for making records available.
105-60.402-1  Submission of requests.
105-60.402-2  Response to initial requests.
105-60.403  Appeal within GSA.
105-60.404  Extension of time limits.
105-60.405  Processing requests for confidential commercial information.

                      Subpart 105-60.5--Exemptions

105-60.501  Categories of records exempt from disclosure under the FOIA.

Subpart 105-60.6--Production or Disclosure by Present or Former General 
 Services Administration Employees in Response to Subpoenas or Similar 
            Demands in Judicial or Administrative Proceedings

105-60.601  Purpose and scope of subpart.
105-60.602  Definitions.
105-60.603  Acceptance of service of a subpoena duces tecum or other 
          legal demand on behalf of the General Services Administration.
105-60.604  Production or disclosure prohibited unless approved by the 
          Appropriate Authority.
105-60.605  Procedure in the event of a demand for production or 
          disclosure.
105-60.606  Procedure where response to demand is required prior to 
          receiving instructions.
105-60.607  Procedure in the event of an adverse ruling.
105-60.608  Fees, expenses, and costs.

    Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).

    Source: 63 FR 56839, Oct. 23, 1998, unless otherwise noted.



Sec. 105-60.000  Scope of part.

    (a) This part sets forth policies and procedures of the General 
Services Administration (GSA) regarding public access to records 
documenting:
    (1) Agency organization, functions, decisionmaking channels, and 
rules and regulations of general applicability;

[[Page 130]]

    (2) Agency final opinions and orders, including policy statements 
and staff manuals;
    (3) Operational and other appropriate agency records; and
    (4) Agency proceedings.
    (b) This part also covers exemptions from disclosure of these 
records; procedures for the public to inspect or obtain copies of GSA 
records; and instructions to current and former GSA employees on the 
response to a subpoena or other legal demand for material or information 
received or generated in the performance of official duty or because of 
the person's official status.
    (c) Any policies and procedures in any GSA internal or external 
directive inconsistent with the policies and procedures set forth in 
this part are superseded to the extent of that inconsistency.



                  Subpart 105-60.1--General Provisions



Sec. 105-60.101  Purpose.

    This part 105-60 implements the provisions of the Freedom of 
Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in 
this part also implement Executive Order 12600, Predisclosure 
Notification Procedures for Confidential Commercial Information, of June 
23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes procedures by 
which the public may inspect and obtain copies of GSA records under the 
FOIA, including administrative procedures which must be exhausted before 
a requester invokes the jurisdiction of an appropriate United States 
District Court for GSA's failure to respond to a proper request within 
the statutory time limits, for a denial of agency records or challenge 
to the adequacy of a search, or for a denial of a fee waiver.



Sec. 105-60.102  Application.

    This part applies to all records and informational materials 
generated, maintained, and controlled by GSA that come within the scope 
of 5 U.S.C. 552.



Sec. 105-60.103  Policy.



Sec. 105-60.103-1  Availability of records.

    The policies of GSA with regard to the availability of records to 
the public are:
    (a) GSA records are available to the greatest extent possible in 
keeping with the spirit and intent of the FOIA. GSA will disclose 
information in any existing GSA record, with noted exceptions, 
regardless of the form or format of the record. GSA will provide the 
record in the form or format requested if the record is reproducible by 
the agency in that form or format without significant expenditure of 
resources. GSA will make reasonable efforts to maintain its records in 
forms or formats that are reproducible for purposes of this section.
    (b) The person making the request does not need to demonstrate an 
interest in the records or justify the request.
    (c) The FOIA does not give the public the right to demand that GSA 
compile a record that does not already exist. For example, FOIA does not 
require GSA to collect and compile information from multiple sources to 
create a new record. GSA may compile records or perform minor 
reprogramming to extract records from a database or system when doing so 
will not significantly interfere with the operation of the automated 
system in question or involve a significant expenditure of resources.
    (d) Similarly, FOIA does not require GSA to reconstruct records that 
have been destroyed in compliance with disposition schedules approved by 
the Archivist of the United States. However, GSA will not destroy 
records after a member of the public has requested access to them and 
will process the request even if destruction would otherwise be 
authorized.
    (e) If the record requested is not complete at the time of the 
request, GSA may, at its discretion, inform the requester that the 
complete record will be provided when it is available, with no 
additional request required, if the record is not exempt from 
disclosure.
    (f) Requests must be addressed to the office identified in Sec. 105-
60.402-1.

[[Page 131]]

    (g) Fees for locating and duplicating records are listed in 
Sec. 105-60,305-10.



Sec. 105-60.103-2  Applying exemptions.

    GSA may deny a request for a GSA record if it falls within an 
exemption under the FOIA outlined in subpart 105-60.5 of this part. 
Except when a record is classified or when disclosure would violate any 
Federal statute, the authority to withhold a record from disclosure is 
permissive rather than mandatory. GSA will not withhold a record unless 
there is a compelling reason to do so; i.e., disclosure will likely 
cause harm to a Governmental or private interest. In the absence of a 
compelling reason, GSA will disclose a record even if it otherwise is 
subject to exemption. GSA will cite the compelling reason(s) to 
requesters when any record is denied under FOIA.



Sec. 105-60.104  Records of other agencies.

    If GSA receives a request for access to records that are known to be 
the primary responsibility of another agency, GSA will refer the request 
to the agency concerned for appropriate action. For example, GSA will 
refer requests to the appropriate agency in cases in which GSA does not 
have sufficient knowledge of the action or matter that is the subject of 
the requested records to determine whether the records must be released 
or may be withheld under one of the exemptions listed in Subpart 105-
60.5 of this part. If GSA does not have the requested records, the 
agency will attempt to determine whether the requested records exist at 
another agency and, if possible, will forward the request to that 
agency. GSA will inform the requester that GSA has forwarded the request 
to another agency.



Subpart 105-60.2--Publication of General Agency Information and Rules in 
                          the Federal Register



Sec. 105-60.201  Published information and rules.

    In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal 
Register, for the guidance of the public, the following general 
information concerning GSA:
    (a) Description of the organization of the Central Office and 
regional offices and the established places at which, the employees from 
whom, and the methods whereby, the public may obtain information, make 
submittals or requests, or obtain decisions;
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available or the 
places where forms may be obtained, and instructions on the scope and 
contents of all papers, reports, or examinations;
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by GSA; and
    (e) Each amendment, revision, or repeal of the materials described 
in this section.



Sec. 105-60.202  Published materials available for sale to the public.

    (a) Substantive rules of general applicability adopted by GSA as 
authorized by law that this agency publishes in the Federal Register and 
which are available for sale to the public by the Superintendent of 
Documents at pre-established prices are: The General Services 
Administration Acquisition Regulation (48 CFR Ch. 5), the Federal 
Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management 
Regulations (41 CFR Ch. 101), and the Federal Travel Regulation (41 CFR 
Ch. 301-304).
    (b) GSA provides technical information, including manuals and 
handbooks, to other Federal entities, e.g., the National Technical 
Information Service, with separate statutory authority to make 
information available to the public at pre-established fees.
    (c) Requests for information available through the sources in 
paragraphs (a) and (b) of this section will be referred to those 
sources.

[[Page 132]]



     Subpart 105-60.3--Availability of Opinions, Orders, Policies, 
               Interpretations, Manuals, and Instructions



Sec. 105-60.301  General.

    GSA makes available to the public the materials described under 5 
U.S.C. 552(a)(2), which are listed in Sec. 105-60.302 through an 
extensive electronic home page, http://www.gsa.gov/. A public handbook 
listing those materials as described in Sec. 105-60.304 is available at 
GSA's Central Office in Washington, DC, and at the website at http://
www.gsa.gov/staff/c/ca/pub1.htm. Members of the public who do not have 
the means to access this information electronically, and who are not 
located in the Washington, DC area, may contact the Freedom of 
Information Act office in any of the regional offices listed in this 
regulation. These offices will make arrangements for members of the 
public to access the information at a computer located at the FOIA 
office. Reasonable copying services are provided at the fees specified 
in Sec. 105-60.305.



Sec. 105-60.302  Available materials.

    GSA materials available under this subpart 105-60.3 are as follows:
    (a) Final opinions, including concurring and dissenting opinions and 
orders, made in the adjudication of cases.
    (b) Those statements and policy and interpretations that have been 
adopted by GSA and are not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff affecting 
a member of the public unless these materials are promptly published and 
copies offered for sale.



Sec. 105-60.303  Rules for public inspection and copying.

    (a) Locations. Selected areas containing the materials available for 
public inspection and copying, described in this Sec. 105-60.302, are 
located in the following places:

Central Office (GSA Headquarters),
    General Services Administration, Washington, DC.
    Telephone: 202-501-2262
    FAX: 202-501-2727,
    Email: gsa.foia@gsa.gov
    1800 F Street, NW. (CAI), Washington, DC 20405
Office of the Inspector General
    FOIA Officer, Office of Inspector General (J)
    General Services Administration
    1800 F Street NW., Room 5324
    Washington, DC 20405
New England Region
    General Services Administration (1AB)
    (Comprised of the States of Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont)
    Thomas P. O'Neill, Jr., Federal Building, 10 Causeway Street, 
Boston, MA 02222
    Telephone: 617-565-8100
    FAX: 617-565-8101
Northeast and Caribbean Region
    (Comprised of the States of New Jersey, New York, the Commonwealth 
of Puerto Rico, and the Virgin Islands)
    General Services Administration (2AR)
    26 Federal Plaza, New York, NY 10278
    Telephone: 212-264-1234
    FAX: 212-264-2760
Mid-Atlantic Region
    (Comprised of the States of Delaware, Maryland, Pennsylvania, 
Virginia, and West Virginia, excluding the Washington, DC metropolitan 
area)
    General Services Administration (3ADS), 100 Penn Square East, 
Philadelphia, PA 19107
    Telephone: 215-656-5530
    FAX: 215-656-5590
Southeast Sunbelt Region
    (Comprised of the States of Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, and Tennessee)
    General Services Administration (4E), 401 West Peachtree Street, 
Atlanta, GA 30365
    Telephone: 404-331-5103
    FAX: 404-331-1813
Great Lakes Region
    (Comprised of the States of Illinois, Indiana, Ohio, Minnesota, 
Michigan, and Wisconsin)
    General Services Administration (5ADB), 230 South Dearborn Street, 
Chicago, IL 60604
    Telephone: 312-353-5383
    FAX: 312-353-5385
Heartland Region
    (Comprised of the States of Iowa, Kansas, Missouri, and Nebraska)
    General Services Administration (6ADB), 1500 East Bannister Road, 
Kansas City, MO 64131
    Telephone: 816-926-7203
    FAX: 816-823-1167
Greater Southwest Region
    (Comprised of the States of Arkansas, Louisiana, New Mexico, Texas, 
and Oklahoma)
    General Services Administration (7ADQ), 819 Taylor Street, Fort 
Worth, TX 76102

[[Page 133]]

    Telephone: 817-978-3902
    FAX: 817-978-4867
Rocky Mountain Region
    (Comprised of the States of Colorado, North Dakota, South Dakota, 
Montana, Utah, and Wyoming)
    Business Service Center, General Services Administration (8PB-B), 
Building 41, Denver Federal Center, Denver, CO 80225
    Telephone: 303-236-7408
    FAX: 303-236-7403
Pacific Rim Region
    (Comprised of the States of Hawaii, California, Nevada, Arizona, 
Guam, and Trust Territory of the Pacific)
    Business Service Center, General Services Administration (9ADB), 525 
Market Street, San Francisco, CA 941105
    Telephone: 415-522-2715
    FAX: 415-522-2705
Northwest/Arctic Region
    (Comprised of the States of Alaska, Idaho, Oregon, and Washington)
    General Services Administration (10L), GSA Center, 15th and C 
Streets, SW., Auburn, WA 98002
    Telephone: 206-931-7007
    FAX: 206-931-7195
National Capital Region
    (Comprised of the District of Columbia and the surrounding 
metropolitan area)
    General Services Administration (WPFA-L), 7th and D Streets SW., 
Washington, DC 20407
    Telephone: 202-708-5854
    FAX: 202-708-4655.

    (b) Time. The offices listed above will be open to the public during 
the business hours of the GSA office where they are located.
    (c) Reproduction services and fees. The GSA Central Office or the 
Regional Business Service Centers will furnish reasonable copying and 
reproduction services for available materials at the fees specified in 
Sec. 105-60.305.



Sec. 105-60.304   Public information handbook and index.

    GSA publishes a handbook for the public that identifies information 
regarding any matter described in Sec. 105-60.302. This handbook also 
lists published information available from GSA and describes the 
procedures the public may use to obtain information using the Freedom of 
Information Act (FOIA). This handbook may be obtained without charge 
from any of the GSA FOIA offices listed in Sec. 105-60.303(a), or at the 
GSA Internet Homepage 
(http://www.gsa.gov/staff/c/ca/cai/links.htm).



Sec. 105-60.305  Fees.



Sec. 105-60.305-1  Definitions.

    For the purpose of this part:
    (a) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any 
statute that specifically requires a Government agency to set the level 
of fees for particular types of records, as opposed to a statute that 
generally discusses such fees. Fees are required by statute to:
    (1) Make Government information conveniently available to the public 
and to private sector organizations;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services which are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on self-sustaining 
basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in part, 
appropriated funds used to pay the cost of disseminating Government 
information.
    (b) The term direct costs means those expenditures which GSA 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing and redacting) documents to respond to 
a FOIA request. Direct costs include, for example, the salary of the 
employee performing the work (the basic rate of pay for the employee 
plus 16 percent of that rate to cover benefits), and the cost of 
operating duplicating machinery. Overhead expenses such as costs of 
space, and heating or lighting the facility where the records are stored 
are not included in direct costs.
    (c) The term search includes all time spent looking for material 
that is responsive to a request, including line-by-line identification 
of material within documents. Searches will be performed in the most 
efficient and least expensive manner so as to minimize costs for both 
the agency and the requester. Line-by-line searches will not be 
undertaken when it would be more efficient to duplicate the entire 
document. Search for responsive material is not the same as review of a 
record to

[[Page 134]]

determine whether it is exempt from disclosure in whole or in part (see 
paragraph (e) of this section. Searches may be done manually or by 
computer using existing programming or new programming when this would 
not significantly interfere with the operation of the automated system 
in question.
    (d) The term duplication means the process of making a copy of a 
document in response to a FOIA request. Copies can take the form of 
paper, microform audiovisual materials, or magnetic types or disks. To 
the extent practicable, GSA will provide a copy of the material in the 
form specified by the requester.
    (e) The term review means the process of examining documents located 
in response to a request to determine if any portion of that document is 
permitted to be withheld and processing any documents for disclosure. 
See Sec. 105-60.305-6.
    (f) The term commercial-use request means a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or person on 
whose behalf the request is made. GSA will determine whether a requester 
properly belongs in this category by determining how the requester will 
use the documents.
    (g) The term educational institution means a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education which operates a program or programs of scholarly research.
    (h) The term noncommercial scientific institution means an 
institution that is not operated on a ``commercial'' basis as that term 
is used in paragraph (f) of this section and which is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry.
    (i) The term representative of the news media means any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of 
``news'') who make their products available for purchase or subscription 
by the general public. ``Freelance'' journalists will be regarded as 
working for a news organization if they can demonstrate a solid basis 
for expecting publication through that organization even though they are 
not actually employed by it.



Sec. 105-60.305-2  Scope of this subpart.

    This subpart sets forth policies and procedures to be followed in 
the assessment and collection of fees from a requester for the search, 
review, and reproduction of GSA records.



Sec. 105-60.305-3  GSA records available without charge.

    GSA records available to the public are displayed in the Business 
Service Center for each GSA region. The address and phone number of the 
Business Service Centers are listed in Sec. 105-60.303. Certain material 
related to bids (excluding construction plans and specifications) and 
any material displayed are available without charge upon request.



Sec. 105-60.305-4  GSA records available at a fee.

    (a) GSA will make a record not subject to exemption available at a 
time and place mutually agreed upon by GSA and the requester at fees 
shown in Sec. 105-60.305-10. Waivers of these fees are available under 
the conditions described in Sec. 105-60.305-13. GSA will agree to:
    (1) Show the originals to the requester;
    (2) Make one copy available at a fee; or
    (3) A combination of these alternatives.
    (b) GSA will make copies of voluminous records as quickly as 
possible. GSA may, in its discretion, make a reasonable number of 
additional copies for a fee when commercial reproduction services are 
not available to the requester.

[[Page 135]]



Sec. 105-60.305-5  Searches.

    (a) GSA may charge for the time spent in the following activities in 
determining ``search time'' subject to applicable fees as provided in 
Sec. 105-60.305-10:
    (1) Time spent in trying to locate GSA records which come within the 
scope of the request;
    (2) Time spent in either transporting a necessary agency searcher to 
a place of record storage, or in transporting records to the locations 
of a necessary agency searcher; and
    (3) Direct costs of the use of computer time to locate and extract 
requested records.
    (b) GSA will not charge for the time spent in monitoring a 
requester's inspection of disclosed agency records.
    (c) GSA may assess fees for search time even if the search proves 
unsuccessful or if the records located are exempt from disclosure.



Sec. 105-60.305-6  Reviews.

    (a) GSA will charge only commercial-use requesters for review time.
    (b) GSA will charge for the time spent in the following activities 
in determining ``review time'' subject to applicable fees as provided in 
Sec. 105-60.305-10:
    (1) Time spent in examining a requested record to determine whether 
any or all of the record is exempt from disclosure, including time spent 
consulting with submitters of requested information; and
    (2) Time spent in deleting exempt matter being withheld from records 
otherwise made available.
    (c) GSA will not charge for:
    (1) Time spent in resolving issues of law or policy regarding the 
application of exemptions; or
    (2) Review at the administrative appeal level of an exemption 
already applied. However, records or portions of records withheld in 
full under an exemption which is subsequently determined not to apply 
may be reviewed again to determine the applicability of other exemptions 
not previously considered. GSA will charge for such subsequent review.



Sec. 105-60.305-7  Assurance of payment.

    If fees for search, review, and reproduction will exceed $25 but 
will be less than $250, the requester must provide written assurance of 
payment before GSA will process the request. If this assurance is not 
included in the initial request, GSA will notify the requester that 
assurance of payment is required before the request is processed. GSA 
will offer requesters an opportunity to modify the request to reduce the 
fee.



Sec. 105-60.305-8  Prepayment of fees.

    (a) Fees over $250. GSA will require prepayment of fees for search, 
review, and reproduction which are likely to exceed $250. When the 
anticipated total fee exceeds $250, the requester will receive notice to 
prepay and at the same time will be given an opportunity to modify his 
or her request to reduce the fee. When fees will exceed $250, GSA will 
notify the requester that it will not start processing a request until 
payment is received.
    (b) Delinquent payments. As noted in Sec. 105-6.305-12(d), 
requesters who are delinquent in paying for previous requests will be 
required to repay the old debt and to prepay for any subsequent request. 
GSA will inform the requester that it will process no additional 
requests until all fees are paid.



Sec. 105-60.305-9  Form of payment.

    Requesters should pay fees by check or money order made out to the 
General Services Administration and addressed to the official named by 
GSA in its correspondence. Payment may also be made by means of 
Mastercard or Visa. For information concerning payment by credit cards, 
call 816-926-7551.



Sec. 105-60.305-10  Fee schedule.

    (a) When GSA is aware that documents responsive to a request are 
maintained for distribution by an agency operating a statutory fee based 
program, GSA will inform the requester of the procedures for obtaining 
records from those sources.
    (b) GSA will consider only the following costs in fees charged to 
requesters of GSA records:
    (1) Review and search fees.


[[Page 136]]


    Manual searches by clerical staff: $13 per hour or fraction of an 
hour.
    Manual searches and reviews by professional staff in cases in which 
clerical staff would be unable to locate the requested records: $29 per 
hour or fraction of an hour.
    Computer searches: Direct cost to GSA.
    Transportation or special handling of records: Direct cost to GSA.

    (2) Reproduction fees.

    Pages no larger than 8\1/2\ by 14 inches, when reproduced by routine 
electrostatic copying: 10 cents per page.
    Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to GSA.
    Pages requiring reduction, enlargement, or other special services: 
Direct cost of reproduction to GSA.
    Reproduction by other than routine electrostatic copying: Direct 
cost of reproduction to GSA.

    (c) Any fees not provided for under paragraph (b) of this section, 
shall be calculated as direct costs, in accordance with Sec. 105-60.305-
1(b).
    (d) GSA will assess fees based on the category of the requester as 
defined in Sec. 105-60.305-1(f)-(1); i.e., commercial-use, educational 
and noncommercial scientific institutions, news media, and all other. 
The fees listed in paragraph (b) of this section apply with the 
following exceptions:
    (1) GSA will not charge the requester if the fee is $25 or less as 
the cost of collection is greater than the fee.
    (2) Educational and noncommercial scientific institutions and the 
news media will be charged for the cost of reproduction alone. These 
requesters are entitled to the first 100 pages (paper copies) of 
duplication at no cost. The following are examples of how these fees are 
calculated:
    (i) A request that results in 150 pages of material. No fee would be 
assessed for duplication of 150 pages. The reason is that these 
requesters are entitled to the first 100 pages at no charge. The charge 
for the remaining 50 pages would be $5.00. This amount would not be 
billed under the preceding section.
    (ii) A request that results in 450 pages of material. The requester 
in this case would be charged $35.00. The reason is that the requester 
is entitled to the first 100 pages at no charge. The charge for the 
remaining 350 pages would be $35.
    (3) Noncommercial requesters who are not included under paragraph 
(d)(2) of this section will be entitled to the first 100 pages (page 
copies) of duplication at not cost and two hours of search without 
charge. The term search time generally refers to manual search. To apply 
this term to searches made by computer, GSA will determine the hourly 
cost of operating the central processing unit and the operator's hourly 
salary plus 16 percent. When the cost of search (including the operator 
time and the cost of operating the computer to process a request) 
reaches the equivalent dollar amount of two hours of the salary of the 
person performing a manual search, i.e., the operator, GSA will begin 
assessing charges for computer search.
    (4) GSA will charge commercial-use requesters fees which recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the records sought. Commercial-use requesters are not 
entitled to two hours of free search time.
    (e) Determining category of requester. GSA may ask any requester to 
provide additional information at any time to determine what fee 
category he or she falls under.



Sec. 105-60.305-11  Fees for authenticated and attested copies.

    The fees set forth in Sec. 105-60.305-10 apply to requests for 
authenticated and attested copies of GSA records.



Sec. 105-60.305-12  Administrative actions to improve assessment and collection of fees.

    (a) Charging interest. GSA may charge requesters who fail to pay 
fees interest on the amount billed starting on the 31st day following 
the day on which the billing was sent. Interest will be at the rate 
prescribed in 31 U.S.C. 3717.
    (b) Effect of the Debt Collection Act of 1982. GSA will take any 
action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365, 96 
Stat. 1749), including disclosure to consumer reporting agencies, use of 
collection agencies, and assessment of penalties and administrative 
costs, where appropriate, to encourage payment.
    (c) Aggregating requests. When GSA reasonably believes that a 
requester, or

[[Page 137]]

group of requesters acting in concert, is attempting to break down a 
request into a series of requests related to the same subject for the 
purpose of evading the assessment of fees, GSA will combine any such 
requests and charge accordingly, including fees for previous requests 
where charges were not assessed. GSA will presume that multiple requests 
of this type within a 30-day period are made to avoid fees.
    (d) Advanced payments. Whenever a requester is delinquent in paying 
the fee for a previous request (i.e., within 30 days of the date of the 
billing), GSA will require the requester to pay the full amount owed 
plus any applicable interest penalties and administrative costs as 
provided in paragraph (a) of this section or to demonstrate that he or 
she has, in fact, paid the fee. In such cases, GSA will also require 
advance payment of the full amount of the estimated fee before the 
agency begins to process a new request or a pending request from that 
requester. When advance payment is required under this selection, the 
administrative time limits in subsection (a)(6) of the FOIA (i.e., 10 
working days from receipt of appeals from initial denial plus 
permissible time extensions) will begin only after GSA has received the 
fee payments described in Sec. 105-60.305-8.



Sec. 105-60.305-13  Waiver of fee.

    (a) Any request for a waiver or the reduction of a fee should be 
included in the initial letter requesting access to GSA records under 
Sec. 105-60.402-1. The waiver request should explain how disclosure of 
the information would contribute significantly to public's understanding 
of the operations or activities of the Government and would not be 
primarily in the commercial interest of the requester. In responding to 
a requester, GSA will consider the following factors:
    (1) Whether the subject of the requested records concerns ``the 
operations or activities of the Government.'' The subject matter of the 
requested records must specifically concern identifiable operations or 
activities of the Federal Government. The connection between the records 
and the operations or activities must be direct and clear, not remote or 
attenuated.
    (2) Whether the disclosure is ``likely to contribute'' to an 
understanding of Government operations or activities. In this 
connection, GSA will consider whether the requested information is 
already in the public domain. If it is, then disclosure of the 
information would not be likely to contribute to an understanding of 
Government operations or activities, as nothing new would be added to 
the public record.
    (3) Whether disclosure of the requested information will contribute 
to ``public's understanding.'' The focus here must be on the 
contribution to public's understanding rather than personal benefit to 
be derived by the requester. For purposes of this analysis, the identity 
and qualifications of the requester should be considered to determine 
whether the requester is in a position to contribute to public's 
understanding through the requested disclosure.
    (4) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and if so: whether the magnitude 
of the identified commercial interest of the requester is sufficiently 
large, in comparison with the public's interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (b) GSA will ask the requester to furnish additional information if 
the initial request is insufficient to evaluate the merits of the 
request. GSA will not start processing a request until the fee waiver 
issue has been resolved unless the requester has provided written 
assurance of payment in full if the fee waiver is denied by the agency.



                   Subpart 105-60.4--Described Records



Sec. 105-60.401  General.

    (a) Except for records made available in accordance with subparts 
105-60.2 and 105-60.3 of this part, GSA will make records available to a 
requester promptly when the request reasonably describes the records 
unless GSA invokes an exemption in accordance with subpart 105-60.5 of 
this part. Although the burden of reasonable description of the records 
rests with the requester,

[[Page 138]]

whenever practical GSA will assist requesters to describe records more 
specifically.
    (b) Whenever a request does not reasonably describe the records 
requested, GSA may contact the requester to seek a more specific 
description. The 20-workday time limit set forth in Sec. 105-60.402-2 
will not start until the official identified in Sec. 105-60.402-1 or 
other responding official receives a request reasonably describing the 
records.



Sec. 105-60.402  Procedures for making records available.

    This subpart sets forth initial procedures for making records 
available when they are requested, including administrative procedures 
to be exhausted prior to seeking judicial review by an appropriate 
United States District Court.



Sec. 105-60.402-1  Submission of requests.

    For records located in the GSA Central Office, the requester must 
submit a request in writing to the GSA FOIA Officer, General Services 
Administration (CAI), Washington, DC 20405. Requesters may FAX requests 
to (202) 501-2727, or submit a request by electronic mail to 
gsa.foi@gsa.gov. For records located in the Office of Inspector General, 
the requester must submit a request to the FOIA Officer, Office of 
Inspector General, General Services Administration, 1800 F Street NW., 
Room 5324, Washington, DC 20405. For records located in the GSA regional 
offices, the requester must submit a request to the FOIA Officer for the 
relevant region, at the address listed in Sec. 105-60.303(a). Requests 
should include the words ``Freedom of Information Act Request'' 
prominently marked on both the face of the request letter and the 
envelope. The 20-workday time limit for agency decisions set forth in 
Sec. 105-60.402-2 begins with receipt of a request in the office of the 
official identified in this section, unless the provisions under 
Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure to include the 
words ``Freedom of Information Act Request'' or to submit a request to 
the official identified in this section will result in processing 
delays. A requester with questions concerning a FOIA request should 
contact the GSA FOIA Office, General Services Administration (CAI), 18th 
and F Streets, NW., Washington, DC 20405, (202) 501-2262.



Sec. 105-60.402-2  Response to initial requests.

    (a) GSA will respond to an initial FOIA request that reasonably 
describes requested records, including a fee waiver request, within 20 
workdays (that is, excluding Saturdays, Sundays, and legal holidays) 
after receipt of a request by the office of the appropriate official 
specified in Sec. 105-60.402-1. This letter will provide the agency's 
decision with respect to disclosure or nondisclosure of the requested 
records, or, if appropriate, a decision on a request for a fee waiver. 
If the records to be disclosed are not provided with the initial letter, 
the records will be sent as soon as possible thereafter.
    (b) In unusual circumstances, as described in Sec. 105-60.404, GSA 
will inform the requester of the agency's need to take an extension of 
time, not to exceed an additional 10 workdays. This notice will afford 
requesters an opportunity to limit the scope of the request so that it 
may be processed within prescribed time limits or an opportunity to 
arrange an alternative time frame for processing the request or a 
modified request. Such mutually agreed time frames will supersede the 10 
day limit for extensions.
    (c) GSA will consider requests for expedited processing from 
requesters who submit a statement describing a compelling need and 
certifying that this need is true and correct to the best of such 
person's knowledge and belief. A compelling need means:
    (1) Failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged Federal Government activity. An individual 
primarily engaged in dissmeninating information means a person whose 
primary activity involves publishing or otherwise disseminating 
information to the public. ``Urgently needed'' information has a 
particular

[[Page 139]]

value that will be lost if not disseminated quickly, such as a breaking 
news story or general public interest. Information of historical 
interest only, or information sought for litigation or commercial 
activities would not qualify, nor would a news media publication or 
broadcast deadline unrelated to the newsbreaking nature of the 
information.
    (d) GSA will decide whether to grant expedited processing within 
five working days of receipt of the request. If the request is granted, 
GSA will process the request ahead of non-expedited requests, as soon as 
practicable. If the request is not granted, GSA will give expeditious 
consideration to administrative appeals of this denial.
    (e) GSA may, at its discretion, establish three processing queues 
based on whether any requests have been granted expedited status and on 
the difficulty and complexity of preparing a response. Within each 
queue, responses will be prepared on a ``first in, first out'' basis. 
One queue will be made up of expedited requests; the second, of simple 
responses that clearly can be prepared without requesting an extension 
of time; the third, of responses that will require an extension of time.



Sec. 105-60.403  Appeal within GSA.

    (a) A requester who receives a denial of a request, in whole or in 
part, a denial of a request for expedited processing or of a fee waiver 
request may appeal that decision within GSA. A requester may also appeal 
the adequacy of the search if GSA determines that it has searched for 
but has not requested records. The requester must send the appeal to the 
GSA FOIA Officer, General Services Administration (CAI), Washington, DC 
20405, regardless of whether the denial being appealed was made in the 
Central Office or in a regional office. For denials which originate in 
the Office of Inspector General, the requester must send the appeal to 
the Inspector General, General Services Administration, 1800 F Street 
NW., Washington, DC 20405.
    (b) The GSA FOIA Officer must receive an appeal no later than 120 
calendar days after receipt by the requester of the initial denial of 
access or fee waiver.
    (c) An appeal must be in writing and include a brief statement of 
the reasons he or she thinks GSA should release the records or provide 
expedited processing and enclose copies of the initial request and 
denial. The appeal letter must include the words ``Freedom of 
Information Act Appeal'' on both the face of the appeal letter and on 
the envelope. Failure to follow these procedures will delay processing 
of the appeal. GSA has 20 workdays after receipt of a proper appeal of 
denial of records to issue a determination with respect to the appeal. 
The 20-workday time limit shall not begin until the GSA FOIA Officer 
receives the appeal. As noted in Sec. 105-60.404, 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.
    (d) A requester who receives a denial of an appeal, or who has not 
received a response to an appeal or initial request within the statutory 
time frame may seek judicial review in the United States District Court 
in the district in which the requester resides or has a principal place 
of business, or where the records are situated, or in the United States 
District Court for the District of Columbia.



Sec. 105-60.404  Extension of time limits.

    (a) In unusual circumstances, the GSA FOIA Officer or the regional 
FOIA Officer may extend the time limits prescribed in Secs. 105-60.402 
and 105-60.403. For purposes of this section, the term unusual 
circumstances means:
    (1) The need to search for an collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are described 
in a single request;
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or

[[Page 140]]

more components of GSA having substantial subject-matter interest 
therein; or
    (4) The need to consult with the submitter of the requested 
information.
    (b) If necessary, GSA may take more than one extension of time. 
However, the total extension of time to respond to any single request 
shall not exceed 10 workdays. The extension may be divided between the 
initial and appeal stages or within a single stage. GSA will provide 
written notice to the requester of any extension of time limits.



Sec. 105-60.405  Processing requests for confidential commercial information.

    (a) General. The following additional procedures apply when 
processing requests for confidential commercial information.
    (b) Definitions. For the purposes of this section, the following 
definitions apply:
    (1) Confidential commercial information means records provided to 
the Government by a submitter that contain material arguably exempt from 
release under 5 U.S.C. 552(b)(4), because disclosure could reasonably be 
expected to cause substantial competitive harm.
    (2) Submitter means a person or entity which provides to the 
Government information which may constitute confidential commercial 
information. The term submitter includes, but is not limited to, 
individuals, partnerships, corporations, State governments, and foreign 
governments.
    (c) Designating confidential commercial information. Since January 
1, 1988, submitters have been required to designate confidential 
commercial information as such when it is submitted to GSA or at a 
reasonable time thereafter. For information submitted in connection with 
negotiated procurements, the requirements of Federal Acquisition 
Regulation 48 CFR 15.407(c)(8) and 52.215-12 also apply.
    (d) Procedural requirements--consultation with the submitter.(1) If 
GSA receives a FOIA request for potentially confidential commercial 
information, it will notify the submitter immediately by telephone and 
invite an opinion whether disclosure will or will not cause substantial 
competitive harm.
    (2) GSA will follow up the telephonic notice promptly in writing 
before releasing any records unless paragraph (f) of this section 
applies.
    (3) If the submitter indicates an objection to disclosure GSA will 
give the submitter seven workdays from receipt of the letter to provide 
GSA with a detailed written explanation of how disclosure of any 
specified portion of the records would be competitively harmful.
    (4) If the submitter verbally states that there is no objection to 
disclosure, GSA will confirm this fact in writing before disclosing any 
records.
    (5) At the same time GSA notifies the submitter, it will also advise 
the requester that there will be a delay in responding to the request 
due to the need to consult with the submitter.
    (6) GSA will review the reasons for nondisclosure before 
independently deciding whether the information must be released or 
should be withheld. If GSA decides to release the requested information, 
it will provide the submitter with a written statement explaining why 
his or her objections are not sustained. The letter to the submitter 
will contain a copy of the material to be disclosed or will offer the 
submitter an opportunity to review the material in none of GSA's 
offices. If GSA decides not to release the material, it will notify the 
submitter orally or in writing.
    (7) If GSA determines to disclose information over a submitter's 
objections, it will inform the submitter the GSA will delay disclosure 
for 5 workdays from the estimated date the submitter receives GSA's 
decision before it releases the information. The decision letter to the 
requester shall state that GSA will delay disclosure of material it has 
determined to disclose to allow for the notification of the submitter.
    (e) When notice is required. (1) For confidential commercial 
information submitted prior to January 1, 1988, GSA will notify a 
submitter whenever it receives a FOIA request for such information:
    (i) If the records are less than 10 years old and the information 
has been

[[Page 141]]

designated by the submitter as confidential commercial information; or
    (ii) If GSA has reason to believe that disclosure of the information 
could reasonably be expected to cause substantial competitive harm.
    (2) For confidential commercial information submitted on or after 
January 1, 1988, GSA will notify a submitter whenever it determines that 
the agency may be required to disclose records:
    (i) That the submitter has previously designated as privileged or 
confidential; or
    (ii) That GSA believes could reasonably be expected to cause 
substantial competitive harm if disclosed.
    (3) GSA will provide notice to a submitter for a period of up to 10 
years after the date of submission.
    (f) When notice is not required. The notice requirements of this 
section will not apply if:
    (1) GSA determines that the information should not be disclosed;
    (2) The information has been published or has been officially made 
available to the public;
    (3) Disclosure of the information is required by law other than the 
FOIA;
    (4) Disclosure is required by an agency rule that
    (i) Was adopted pursuant to notice and public comment;
    (ii) specifies narrow classes of records submitted to the agency 
that are to be released under FOIA; and
    (iii) provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information is 
submitted for a reasonable time thereafter, that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm;
    (5) The information is not designated by the submitter as exempt 
from disclosure under paragraph (c) of this section, unless GSA has 
substantial reason to believe that disclosure of the information would 
be competitively harmful; or
    (6) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such cases, the agency must provide the submitter with written notice 
of any final administrative decision five workdays prior to disclosing 
the information.
    (g) Lawsuits. If a FOIA requester sues the agency to compel 
disclosure of confidential commercial information, GSA will notify the 
submitter as soon as possible. If the submitter sues GSA to enjoin 
disclosure of the records, GSA will notify the requester.



                      Subpart 105-60.5--Exemptions



Sec. 105-60.501  Categories of records exempt from disclosure under the FOIA.

    (a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do 
not apply to matters that are:
    (1) Specifically authorized under the criteria established by an 
executive order to be kept secret in the interest of national defense or 
foreign policy and are in fact properly classified pursuant to such 
executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 
section 552b of this title), provided that such statute
    (i) requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information
    (i) could reasonably be expected to interfere with enforcement 
proceedings;

[[Page 142]]

    (ii) would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) GSA will provide any reasonably segregable portion of a record 
to a requester after deletion of the portions that are exempt under this 
section. If GSA must delete information from a record before disclosing 
it, this information, and the reasons for withholding it, will be 
clearly described in the cover letter to the requester or in an 
attachment. Unless indicating the extent of the deletion would harm an 
interest protected by an exemption, the amount of deleted information 
shall be indicated on the released portion of paper records by use of 
brackets or darkened areas indicating removal of information. In the 
case of electronic deletion, the amount of redacted information shall be 
indicated at the place in the record where such deletion was made, 
unless including the indication would harm an interest protected by the 
exemption under which the exemption was made.
    (c) GSA will invoke no exemption under this section to deny access 
to records that would be available pursuant to a request made under the 
Privacy Act of 1974 (5 U.S.C. 552a) and implementing regulations, 41 CFR 
part 105-64, or if disclosure would cause no demonstrable harm to any 
governmental or private interest.
    (d) Pursuant to National Defense Authorization Act of Fiscal Year 
1997, Pub. L. No. 104-201, section 821, 110 Stat. 2422, GSA will invoke 
Exemption 3 to deny access to any proposal submitted by a vendor in 
response to the requirements of a solicitation for a competitive 
proposal unless the proposal is set forth or incorporated by reference 
in a contract entered into between the agency and the contractor that 
submitted the proposal.
    (e) Whenever a request is made which involves access to records 
described in Sec. 105-60.501(a)(7)(i) and the investigation or 
proceeding involves a possible violation of criminal law, and there is 
reason to believe that the subject of the investigation or proceeding is 
not aware of it, and disclosure of the existence of the records could 
reasonably be expected to interfere with enforcement proceedings, the 
agency may, during only such time as that circumstance continues, treat 
the records as not subject to the requirements of this section.
    (f) Whenever informant records maintained by a criminal law 
enforcement agency under an informant's name or personal identifier are 
requested by a third party according to the informant's name or personal 
identifier, the agency may treat the records as not subject to the 
requirements of this section unless the informant's status as an 
informant has been officially confirmed.
    (g) Whenever a request is made that involves access to records 
maintained by the Federal Bureau of Investigation pertaining to foreign 
intelligence or counterintelligence, or international terrorism, and the 
existence of the

[[Page 143]]

records is classified information as provided in paragraph (a)(1) of 
this section, the Bureau may, as long as the existence of the records 
remains classified information, treat the records are not subject to the 
requirements of this section.



Subpart 105-60.6--Production or Disclosure by Present or Former General 
 Services Administration Employees in Response to Subpoenas or Similar 
            Demands in Judicial or Administrative Proceedings



Sec. 105--60.601  Purpose and scope of subpart.

    (a) By virtue of the authority vested in the Administrator of 
General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart 
establishes instructions and procedures to be followed by current and 
former employees of the General Services Administration in response to 
subpoenas or similar demands issued in judicial or administrative 
proceedings for production or disclosure of material or information 
obtained as part of the performance of a person's official duties or 
because of the person's official status. Nothing in these instructions 
applies to responses to subpoenas or demands issued by the Congress or 
in Federal grand jury proceedings.
    (b) This subpart provides instructions regarding the internal 
operations of GSA and the conduct of its employees, and is not intended 
and does not, and may not, be relied upon to create any right or 
benefit, substantive or procedural, enforceable at law by a party 
against GSA.



Sec. 105--60.602  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Material means any document, record, file or data, regardless of 
the physical form or the media by or through which it is maintained or 
recorded, which was generated or acquired by a current or former GSA 
employee by reason of the performance of that person's official duties 
or because of the person's official status, or any other tangible item, 
e.g., personal property possessed or controlled by GSA.
    (b) Information means any knowledge or facts contained in material, 
and any knowledge or facts acquired by current or former GSA employee as 
part of the performance of that person's official duties or because of 
that person's official status.
    (c) Demand means any subpoena, order, or similar demand for the 
production or disclosure of material, information or testimony regarding 
such material or information, issued by a court or other authority in a 
judicial or administrative proceeding, excluding congressional subpoenas 
or demands in Federal grand jury proceedings, and served upon a present 
or former GSA employee.
    (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.



Sec. 105-60.603  Acceptance of service of a subpoena duces tecum or other legal demand on behalf of the General Services Administration.

    (a) The Administrator of General Services and the following 
officials are the only GSA personnel authorized to accept service of a 
subpoena or other legal demand on behalf of GSA: The GSA General Counsel 
and Associate General Counsel(s) and, with respect to material or 
information which is the responsibility of a regional office, the 
Regional Administrator and Regional Counsel. The Inspector General and 
Counsel to the Inspector General, as

[[Page 144]]

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.



Sec. 105-60.604  Production or disclosure prohibited unless approved by the Appropriate Authority.

    No current or former GSA employee shall, in response to a demand, 
produce any material or disclose, through testimony or other means, any 
information covered by this subpart, without prior approval of the 
Appropriate Authority.



Sec. 105-60.605  Procedure in the event of a demand for production or disclosure.

    (a) Whenever service of a demand is attempted in person or via mail 
upon a current or former GSA employee for the production of material or 
the disclosure of information covered by this subpart, the employee or 
former employee shall immediately notify the Appropriate Authority 
through his or her supervisor or his or her former service, staff 
office, or regional office. The supervisor shall notify the Appropriate 
Authority. For current or former employees of the Office of Inspector 
General located in regional offices, Counsel to the Inspector General 
shall be notified through the immediate supervisor or former employing 
field office.
    (b) The Appropriate Authority shall require that the party seeking 
material or testimony provide the Appropriate Authority with an 
affidavit, declaration, statement, and/or a plan as described in 
paragraphs (c) (1), (2), and (3) of this section if not included with or 
described in the demand. The Appropriate Authority may waive this 
requirement for a demand arising out of proceedings to which GSA or the 
United States is a party. Any waiver will be coordinated with the United 
States Department of Justice (DOJ) in proceedings in which GSA, its 
current or former employees, or the United States are represented by 
DOJ.
    (c)(1) Oral testimony. If oral testimony is sought by a demand, the 
Appropriate Authority shall require the party seeking the testimony or 
the party's attorney to provide, by affidavit or other statement, a 
detailed summary of the testimony sought and its relevance to the 
proceedings. Any authorization for the testimony of a current or former 
GSA employee shall be limited to the scope of the demand as summarized 
in such statement or affidavit.
    (2) Production of material. When information other than oral 
testimony is sought by a demand, the Appropriate Authority shall require 
the party seeking production or the party's attorney to provide a 
detailed summary, by affidavit or other statement, of the information 
sought and its relevance to the proceeding.
    (3) The Appropriate Authority may require a plan or other 
information from the party seeking testimony or production of material 
of all demands reasonably foreseeable, including, but not limited to, 
names of all current and former GSA employees from whom testimony or 
production is or will likely be sought, areas of inquiry, for current 
employees the length of time away from duty anticipated, and 
identification of documents to be used in each deposition or other 
testimony, where appropriate.
    (d) The Appropriate Authority will notify the current or former 
employee, the appropriate supervisor, and such other persons as 
circumstances may warrant, whether disclosure or production is 
authorized, and of any conditions or limitations to disclosure or 
production.
    (e) Factors to be considered by the Appropriate Authority in 
responding to demands:

[[Page 145]]

    (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.



Sec. 105-60.606  Procedure where response to demand is required prior to receiving instructions.

    (a) If a response to a demand is required before the Appropriate 
Authority's decision is issued, a GSA attorney designated by the 
Appropriate Authority for the purpose shall appear with the employee or 
former employee upon whom the demand has been made, and shall furnish 
the judicial or other authority with a copy of the instructions 
contained in this subpart. The attorney shall inform the court or other 
authority that the demand has been or is being referred for the prompt 
consideration by the Appropriate Authority. The attorney shall 
respectfully request the judicial or administrative authority to stay 
the demand pending receipt of the requested instructions.
    (b) The designated GSA attorney shall coordinate GSA's response with 
DOJ's Civil Division or the relevant Office of the United States 
Attorney and may request that a DOJ or Assistant United States Attorney 
appear with the employee in addition to or in lieu of a designated GSA 
attorney.
    (c) If an immediate demand for production or disclosure is made in 
circumstances which preclude the appearance of a GSA or DOJ attorney on 
the behalf of the employee or the former employee, the employee or 
former employee shall respectfully make a request to the demanding 
authority for sufficient time to obtain advice of counsel.



Sec. 105-60.607  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand

[[Page 146]]

in response to a request made in accordance with Sec. 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).



Sec. 105-60.608  Fees, expenses, and costs.

    (a) In consultation with the Appropriate Authority, a current 
employee who appears as a witness pursuant to a demand shall ensure that 
he or she receives all fees and expenses, including travel expenses, to 
which witnesses are entitled pursuant to rules applicable to the 
judicial or administrative proceedings out of which the demand arose.
    (b) Witness fees and reimbursement for expenses received by a GSA 
employee shall be disposed of in accordance with rules applicable to 
Federal employees in effect at the time.
    (c) Reimbursement to the GSA for costs associated with producing 
material pursuant to a demand shall be determined in accordance with 
rules applicable to the proceedings out of which the demand arose.



PART 105-62--DOCUMENT SECURITY AND DECLASSIFICATION--Table of Contents




Sec.
105-62.000  Scope of part.

                 Subpart 105.62.1--Classified Materials

105-62.101  Security classification categories.
105-62.102  Authority to originally classify.
105-62.103  Access to GSA-originated materials.

           Subpart 105-62.2--Declassification and Downgrading

105-62.201  Declassification and downgrading.
105-62.202  Review of classified materials for declassification 
          purposes.

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c); and E.O. 
12065 dated June 28, 1978.

    Source: 44 FR 64805, Nov. 8, 1979, unless otherwise noted.



Sec. 105-62.000  Scope of part.

    This part prescribes procedures for safeguarding national security 
information and material within GSA. They explain how to identify, 
classify, downgrade, declassify, disseminate, and protect such 
information in the interests of national security. They also supplement 
and conform with Executive Order 12065 dated June 28, 1978, subject: 
National Security Information, and the Implementing Directive dated 
September 29, 1978, issued through the Information Security Oversight 
Office.



                 Subpart 105-62.1--Classified Materials



Sec. 105-62.101  Security classification categories.

    As set forth in Executive Order 12065, official information or 
material which requires protection against unauthorized disclosure in 
the interests of the national defense or foreign relations of the United 
States (hereinafter collectively termed ``national security'') shall be 
classified in one of three categories: Namely, Top Secret, Secret, or 
Confidential, depending on its degree of significance to the national 
security. No other categories shall be used to identify official 
information or material as requiring protection in the interests of 
national security except as otherwise expressly provided by statute. The 
three classification categories are defined as follows:
    (a) Top Secret. Top Secret refers to that national security 
information which requires the highest degree of protection, and shall 
be applied only to such information as the unauthorized disclosure of 
which could reasonably be expected to cause exceptionally grave damage 
to the national security. Examples of exceptionally grave damage include 
armed hostilities against the United States or its allies, disruption of 
foreign relations vitally affecting the national security, intelligence 
sources and methods, and the compromise of vital national defense plans 
or complex cryptologic and communications systems. This classification

[[Page 147]]

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.



Sec. 105-62.102  Authority to originally classify.

    (a) Top secret, secret, and confidential. The authority to 
originally classify information as Top Secret, Secret, or Confidential 
may be exercised only by the Administrator and is delegable only to the 
Director, Information Security Oversight Office.
    (b) Limitations on delegation of classification authority. 
Delegations of original classification authority are limited to the 
minimum number absolutely required for efficient administration. 
Delegated original classification authority may not be redelegated.

[47 FR 5416, Feb. 5, 1982]



Sec. 105-62.103  Access to GSA-originated materials.

    Classified information shall not be disseminated outside the 
executive branch of the Government without the express permission of the 
GSA Security Officer except as otherwise provided in this Sec. 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 Sec. 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

[[Page 148]]

by a Federal court, the Administrator may authorize the limited release 
of classified information if he or she determines that the interests of 
justice cannot otherwise be served. Appropriate safeguards will be 
established to protect such classified material released for use in 
judicial proceedings.
    (d) Access to material in NARS custody. The Archivist of the United 
States prepares procedures governing access to materials transferred to 
NARS custody. These procedures are issued by the Administrator of 
General Services in 41 CFR part 105-61.
    (e) Access by the General Accounting Office and congressional 
committees. Classified information may be released to the General 
Accounting Office (GAO) and congressional committees when specifically 
authorized by the GSA Security Officer except as otherwise provided by 
law.



           Subpart 105-62.2--Declassification and Downgrading



Sec. 105-62.201  Declassification and downgrading.

    (a) Authority to downgrade and declassify. The authority to 
downgrade and declassify national security information or material shall 
be exercised as follows:
    (1) Information or material may be downgraded or declassified by the 
GSA official authorizing the original classification, by a successor in 
capacity, by a supervisory official of either, or by the Information 
Security Oversight Committee on appeal.
    (2) Downgrading and declassification authority may also be exercised 
by an official specifically authorized by the Administrator.
    (3) In the case of classified information or material officially 
transferred to GSA by or under statute or Executive order in conjunction 
with a transfer of functions and not merely for storage purposes, GSA 
shall be deemed the originating agency for all purposes under these 
procedures including downgrading and declassification.
    (4) In the case of classified information or material held in GSA 
not officially transferred under paragraph (a)(3) of this section but 
originated in an agency which has since ceased to exist, GSA is deemed 
the originating agency. Such information or material may be downgraded 
and declassified 30 calendar days after consulting with any other 
agencies having an interest in the subject matter.
    (5) Classified information or material under the final 
declassification jurisdiction of GSA which has been transferred to NARS 
for accession into the Archives of the United States may be 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 Sec. 105-62.202(b).
    (b) Declassification. Declassification of information shall be given 
emphasis comparable to that acccorded 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 Sec. 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

[[Page 149]]

official authorized to declassify the same information. Notice of 
downgrading shall be provided to known holders of the information.



Sec. 105-62.202  Review of classified materials for declassification purposes.

    (a) Systematic review for declassification. Except for foreign 
government information, classified information constituting permanently 
valuable records of GSA as defined by 44 U.S.C. 2103, and information in 
the possession and under control of NARA, under 44 U.S.C. 2107 or 2107 
note, shall be reviewed for declassification as it becomes 20 years old. 
Transition to systematic review at 20 years shall be implemented as 
rapidly as practicable and shall be completed by December 1, 1988. 
Foreign government information shall be reviewed for declassification as 
it becomes 30 years old.
    (b) Mandatory review for declassification. All classified 
information upon request by a member of the public or a Government 
employee or agency to declassify and release such information under the 
provisions of Executive Order 12065 shall be reviewed by the responsible 
GSA element for possible declassification in accordance with the 
procedures set forth in paragraphs (c) through (g) of this section.
    (c) Submission of requests for review. Requests for mandatory review 
of classified information shall be submitted in accordance with the 
following:
    (1) Requests originating within GSA shall in all cases be submitted 
directly to the service or staff office that originated the information.
    (2) For expeditious action, requests from other governmental 
agencies or from members of the public should be submitted directly to 
the service or staff office that originated the material, or, if the 
originating element is not known, or no longer exists, the requester 
shall submit the request to the GSA Security Officer who shall cause 
such request to be reviewed.
    (d) Requirements for processing. Requests for declassification 
review and release of information shall be processed in accordance with 
the provisions set forth in paragraphs (e) through (h) of this section 
subject to the following conditions:
    (1) The request is in writing and reasonably describes the 
information sought with sufficient particularity to enable the element 
to identify it.
    (2) The requester shall be asked to correct a request that does not 
comply with paragraph (d)(1) of this section, to provide additional 
information.
    (3) If within 30 days the requester does not correct the request, 
describe the information sought with sufficient 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

[[Page 150]]

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.

[[Page 151]]



PART 105-64--REGULATIONS IMPLEMENTING THE PRIVACY ACT OF 1974--Table of Contents




Sec.
105-64.000  Scope of part.
105-64.001  Purpose.
105-64.002  Definitions.

                    Subpart 105-64.1--General Policy

105-64.101  Maintenance of records.
105-64.101-1  Collection and use.
105-64.101-2  Standards of accuracy.
105-64.101-3  Rules of conduct.
105-64.101-4  Safeguarding systems of records.
105-64.101-5  Inconsistent directives of GSA superseded.
105-64.102  Records of other agencies.
105-64.103  Subpoenas and other legal demands.

                 Subpart 105-64.2--Disclosure of Records

105-64.201  Conditions of disclosure.
105-64.202  Procedures for disclosure.
105-64.203  Accounting of disclosure.

             Subpart 105-64.3--Individual Access to Records

105-64.301  Access procedures.
105-64.301-1  Form of requests.
105-64.301-2  Special requirements for medical records.
105-64.301-3  Granting access.
105-64.301-4  Denials of access.
105-64.301-5  Appeal of denial of access within GSA.
105-64.301-6  Geographic composition, addresses and telephone numbers of 
          regional Administrative Services Division directors.
105-64.302  Fees.
105-64.302-1  Records available at a fee.
105-64.302-2  Additional copies.
105-64.302-3  Waiver of fee.
105-64.302-4  Prepayment of fees over $25.
105-64.302-5  Form of payment.
105-64.302-6  Reproduction fee schedule.

               Subpart 105-64.4--Requests to Amend Records

105-64.401  Submission of requests to amend records.
105-64.402  Review of requests to amend records.
105-64.403  Approval of requests to amend.
105-64.404  Denial of requests to amend.
105-64.405  Agreement to alternative amendments.
105-64.406  Appeal of denial of request to amend a record.
105-64.407  Statements of disagreement.
105-64.408  Judicial review.

  Subpart 105-64.5--Reporting New Systems and Altering Existing Systems

105-64.501  Reporting requirement.
105-64.502  Federal Register notice of establishment of new system or 
          alteration of existing system.
105-64.503  Effective date of new systems of records or alteration of an 
          existing system of records.

                      Subpart 105-64.6--Exemptions

105-64.601  General exemptions.
105-64.602  Specific exemptions.

               Subpart 105-64.7--Assistance and Referrals

105-64.701  Requests for assistance and referral.

    Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); 88 Stat. 
1897 (5 U.S.C. 552a).

    Source: 50 FR 43139, Oct. 24, 1985, unless otherwise noted.



Sec. 105-64.000  Scope of part.

    The policies and procedures for collecting, using, and disseminating 
records maintained by GSA are subject to 5 U.S.C. 552a, and defined in 
Sec. 105-64.002. Policies and procedures governing availability of 
records in general are in parts 105-60 and 61 of this chapter. This part 
also covers exemptions from disclosing personal information; procedures 
guiding persons who wish to obtain information, or to inspect or correct 
the content of records; accounting for disclosure of information; 
requirements for medical records; and fees.



Sec. 105-64.001  Purpose.

    This part implements 5 U.S.C. 552a (Pub. L. 93-579), known as the 
Privacy Act of 1974 (referred to as the Act). This part states 
procedures for notifying an individual of a GSA system of records 
containing a record pertaining to him or her, procedures for gaining 
access to or contesting the content of records, and other procedures for 
carrying out the Act.



Sec. 105-64.002  Definitions.

    For the purpose of this part 105-64, the terms listed below are 
defined as follows:

[[Page 152]]

    (a) Agency means agency as defined in 5 U.S.C. 552(e);
    (b) Individual means a citizen of the United States or a legal alien 
admitted for permanent residence;
    (c) Maintain means keep, collect, use, and disseminate;
    (d) A record means any item, collection, or grouping of information 
an agency maintains about a person, including, but not limited to, his 
or her educational background, financial transactions, medical history, 
and employment or criminal history, and that contains his or her name or 
other identifying number of symbols such as a fingerprint, voiceprint, 
or photograph;
    (e) A system of records means any group of records under the control 
of the agency from which information is retrieved by a person's name or 
by an identifying number, symbols, or other identifiers assigned to that 
individual;
    (f) A statistical record means an item of information maintained for 
statistical research or reporting purposes that is not used in making 
any determination about an identifiable person, except as provided by 
Section 8 of Title 13 U.S.C.;
    (g) Routine use means using a record for the purpose for which it 
was intended;
    (h) System manager means the GSA employee who maintains a system of 
records and who collects, uses, and disseminates the information in it;
    (i) The subject individual means the person named or discussed in a 
record or the person to whom a record refers;
    (j) Disclosure means transferring a record, a copy of a record, or 
the information contained in a record to someone other than the subject 
individual, or the reviewing of a record by someone other than the 
subject individual;
    (k) Access means a transfer of a record, a copy of a record, or the 
information in a record to the subject individual, or the review of a 
record by the subject individual; and
    (l) Solicitation means a request by an officer or employee of GSA 
for a person to provide information about himself or herself.



                    Subpart 105-64.1--General Policy



Sec. 105-64.101  Maintenance of records.



Sec. 105-64.101-1  Collection and use.

    (a) General. The system manager (also called the manager) should 
collect information used for determining an individual's rights, 
benefits, or privileges under GSA programs directly from the subject 
individual if practical. The system manager should ensure that 
information collected is used only as intended by the Act and these 
regulations.
    (b) Soliciting information. Manager must ensure that when 
information is solicited, the person is informed of the authority for 
collecting it; whether providing it is mandatory or voluntary; the 
purpose for which it will be used; routine uses of the information; and 
the effect on the individual, if any, of not providing the information. 
Heads of Services and Staff Offices and Regional Administrators must 
ensure that forms used to solicit information comply with the Act and 
these regulations.
    (c) Soliciting a social security number. Before requesting a person 
to disclose his or her social security number, ensure either:
    (1) The disclosure is required by Federal statute, or;
    (2) Disclosure is required under a statute or regulation adopted 
before January 1, 1975, to verify the person's identity, and that it was 
part of a system of records in existence before January 1, 1975.

If soliciting a social security number is authorized under paragraph (c) 
(1) or (2) of this section, inform the person beforehand whether the 
disclosure is mandatory or voluntary, by what legal or other authority 
the number is requested, and the use that is to be made of it.
    (d) Soliciting information from third parties. Officers or employees 
must inform third parties requested to provide information about another 
person of the reason for collecting the information.



Sec. 105-64.101-2  Standards of accuracy.

    Managers should ensure that the records used by the Agency to make

[[Page 153]]

determinations about an individual are maintained with the accuracy, 
relevance, timeliness, and completeness needed to ensure fairness to the 
individual.



Sec. 105-64.101-3  Rules of conduct.

    Those who design, develop, operate, or maintain a system of records, 
or any record, must review 5 U.S.C. 552a and the regulations in this 
part and follow 41 CFR part 105-735, Standards of Conduct, for 
protecting personal information.



Sec. 105-64.101-4  Safeguarding systems of records.

    Managers must ensure that administrative, technical, and physical 
safeguards are established to ensure the security and confidentiality of 
records and to protect against possible threats or hazards which could 
be harmful, embarrassing, inconvenient, or unfair to any individual. 
They must protect personnel information contained in manual and 
automated systems of records by using the following safeguards:
    (a) Storing official personnel folders and work folders in a 
lockable filing cabinet when not in use. The system manager may use an 
alternative storage system if it provides the same security as a locked 
cabinet.
    (b) Designating other sensitive records that need safeguards similar 
to those described in paragraph (a) of this section.
    (c) Permitting access to and use of automated or manual personnel 
records only to persons whose official duties require it, or to a 
subject individual or to his or her representative.



Sec. 105-64.101-5  Inconsistent directives of GSA superseded.

    This part 105-64 applies or takes precedence when any GSA directive 
disagrees with it.



Sec. 105-64.102  Records of other agencies.

    If a GSA employee receives a request to review records that are the 
primary responsibility of another agency, but are maintained by or in 
the temporary possession of GSA, the employee should consult with the 
other agency before releasing the records. Records in the custody of GSA 
that are the responsibility of the Office of Personnel Management (OPM) 
are governed by rules issued by OPM under the Privacy Act.



Sec. 105-64.103  Subpoenas and other legal demands.

    Access to systems of records by subpoena or other legal process must 
meet the provisions of ubpart 105-60.6 of this chapter.



                 Subpart 105-64.2--Disclosure of Records



Sec. 105-64.201  Conditions of disclosure.

    GSA employees may not disclose any record to a person or another 
agency without the express written consent of the subject individual 
unless the disclosure is:
    (a) To GSA officials or employees who need the information to 
perform their official duties;
    (b) Required by the Freedom of Information Act;
    (c) For a routine use identified in the Federal Register;
    (d) For Bureau of the Census use under Title 13 of the United States 
Code;
    (e) To someone who has assured GSA in writing that the record is to 
be used solely for statistical research or reporting, and if it does not 
identify an individual;
    (f) To the National Archives of the United States as a record that 
has historical or other value warranting permanent retention;
    (g) To another agency or instrumentality under the jurisdiction or 
control of the United States for a civil or criminal law enforcement 
activity, if the head of the agency or instrumentality or the designated 
representative has made a written request to GSA specifying the part 
needed and the law enforcement agency seeking it;
    (h) To a person showing compelling circumstances affecting someone's 
health and safety not necessarily the subject individual (Upon 
disclosure, a notification must be sent to the subject individual's last 
known address);
    (i) To either House of Congress or to a committee or subcommittee 
(joint or of either House), to the extent that the matter falls within 
its jurisdiction;

[[Page 154]]

    (j) To the Comptroller General or an authorized representative while 
performing the duties of the General Accounting Office;
    (k) Under an order of a court of competent jurisdiction; or
    (l) To a consumer reporting agency under section 3(d) of the Federal 
Claims Collection Act of 1966 (31 U.S.C. 3711(f)(1)).



Sec. 105-64.202  Procedures for disclosure.

    (a) On receiving a request to disclose a record, the manager should 
verify the requester's right to obtain the information under Sec. 105-
64.201. Upon verification, the manager may make the records available.
    (b) If the manager decides the record can't be disclosed, he or she 
must inform the requester in writing and state that the denial can be 
appealed to the GSA Privacy Act Officer, General Services Administration 
(ATRAI), for a final decision.



Sec. 105-64.203  Accounting of disclosure.

    (a) Except for disclosures made under Sec. 105-64.201 (a) and (b), 
an accurate account of each disclosure is kept and retained for 5 years 
or for the life of the record, whichever is longer. The date, reason, 
and type of information disclosed, as well as the name and address of 
the person or agency to whom you disclosed it are noted.
    (b) The manager also keeps with the account of information 
disclosed:
    (1) A statement justifying the disclosure;
    (2) Any documentation related to disclosing a record for statistical 
or law enforcement use; and
    (3) The written consent of the person concerned.
    (c) Except when records are disclosed to agencies or 
instrumentalities for law enforcement under Sec. 105-64.201(g) or from 
exempt systems (see subpart 105-64.6), accounts of information disclosed 
must be opened to the person concerned, upon request. Procedures to 
request such access are given in the following subpart.



             Subpart 105-64.3--Individual Access to Records



Sec. 105-64.301  Access procedures.



Sec. 105-64.301-1  Form of requests.

    (a) A person who wants to see a record or any information concerning 
him or her that is contained in a system or records maintained in the 
GSA Central Office should send a written request to the GSA Privacy Act 
Officer, General Services Administration (ATRAI), Washington, DC 20405. 
For records maintained in GSA regional offices, send the request to the 
Director, Administrative Services Division at the address shown in 
Sec. 105-64.301-6.
    (b) Requests must be made in writing and must be labeled Privacy Act 
Request both on the letter and on the envelope. The letter should 
contain the full name and identifying number of the system as published 
in the Federal Register; the full name and address of the subject 
individual; a brief description of the nature, time, place, and 
circumstances of the person's association with GSA; and any other 
information that would indicate whether the information is in the system 
of records. The 10-workday time limit for the agency to reply under 
Sec. 105-64.301-3, begins when a request is received in the office of 
the official identified in this section.
    (c) Managers may accept oral requests for access, if the requester 
is properly identified.



Sec. 105-64.301-2  Special requirements for medical records.

    (a) A manager who receives a request for access to official medical 
records belonging to the Office of Personnel Management and described in 
Chapter 339, Federal Personnel Manual (records about entrance 
qualification, fitness for duty, or records filed in the official 
personnel folder), should refer the matter to a Federal medical officer 
for a decision under this section. If no medical officer is available, 
the manager should send the request and the medical reports to the 
Office of Personnel Management for a decision.

[[Page 155]]

    (b) If the Federal medical officer believes the medical records 
requested by the subject individual discuss a condition that a physician 
would hesitate to reveal to the person, the manager may release the 
information only to a physician designated in writing by the subject 
individual, his or her guardian, or conservator. If the records contain 
information the physician would likely disclose to the person, the 
information may be released to anyone the person authorizes in writing 
to receive it.



Sec. 105-64.301-3  Granting access.

    (a) Upon receiving a request for access to nonexempt records, the 
manager must make them available to the subject individual or 
acknowledge the request within 10 workdays after it is received, stating 
when the records will be available.
    (b) If the manager expects a delay of more than the 10 days allowed, 
he or she should state the reason why in the acknowledgement.
    (c) If a request for access does not contain enough information to 
find the records, the manager should request additional information from 
the individual and is allowed 10 more workdays after receiving it to 
make the records available or acknowledge receiving the request.
    (d) Records are available during normal business hours at the 
offices where the records are maintained. Requesters should be prepared 
to identify themselves by signature and to show other identification 
verifying their signature.
    (e) Managers may permit an individual to examine the original of a 
nonexempt record and, if asked, provide the person with a copy of the 
record. Fees are charged only for copies given to the person, not for 
copies made for the agency's convenience.
    (f) A requester may pick up a record in person or receive it by 
mail, directed to an address provided in the request. The manager should 
not give a record to a third party to deliver to the subject individual, 
except medical records as outlined in Sec. 105-64.301-2 or as described 
in paragraph (g) of this section.
    (g) If a person wants to have someone else accompany him or her 
while reviewing a record or when obtaining a copy of it, he or she must 
first sign a statement authorizing the disclosure of the record. The 
system manager shall maintain this statement with the record.
    (h) The procedure to review the account of disclosures is the same 
as the procedures for reviewing a record.



Sec. 105-64.301-4  Denials of access.

    (a) A manager may deny access to a record only if the information is 
being compiled in reasonable acticipation of a civil action or 
proceeding as provided under 5 U.S.C. 552(d)(5) or if rules published in 
the Federal Register state that it is in a system of records that may 
not be disclosed. These systems are described in Subpart 105-64.6.
    (b) If a manager receives a request for access to a record in an 
exempt system of record, he or she should forward it to the Head of the 
Service or Staff Office or Regional Administrator, attaching an 
explanation and recommending the request be denied or granted.
    (c) If the manager is the Head of a Service or Staff Office or a 
Regional Administrator, he or she retains the responsibility for 
granting or denying the request.
    (d) The head of the Service or Staff Office or Regional 
Administrator, in consultation with legal counsel and other officials 
concerned, should decide whether the requested record is exempt from 
disclosure and,
    (1) If the record is not exempt, notify the system manager to grant 
the request under Sec. 105-64.301-3; or
    (2) If the record is part of an exempt system he or she should:
    (i) Notify the requester that the request is denied, explain why it 
is denied, and inform the requester of his or her right to have GSA 
review the decision; or
    (ii) Notify the manager to make the record available under Sec. 105-
64.301-3, even though it is in an exempted system.
    (e) A copy of any denial of a request should be sent to the GSA 
Privacy Act Officer (ATRAI).

[[Page 156]]



Sec. 105-64.301-5  Appeal of denial of access within GSA.

    (a) A requester who is denied access, in whole or in part, to 
records pertaining to him or her may file an administrative appeal. 
Appeals should be addressed to the GSA Privacy Act Officer, General 
Services Administration (ATRAI), Washington, DC 20405, regardless 
whether the denial was made by a Central Office or a regional official.
    (b) Each appeal to the Privacy Act Officer must be in writing. The 
appeal should be marked Privacy Act-Access Appeal, on the face of the 
letter and on the envelope.
    (c) On receiving an appeal, the Privacy Act Officer consults with 
the manager, the official who made the denial, legal counsel, and other 
officials concerned. If the Privacy Act Officer, after consultation, 
decides to grant the request, he or she notifies the manager in writing 
to grant access to the record under Sec. 105-64.301-3, or grants access 
himself or herself and notifies the requester of that action.
    (d) If the Privacy Act Officer decides the appeal should be 
rejected, he or she sends the request file and any appeal, with a 
recommendation, to the Deputy Administrator for a final administrative 
decision.
    (e) If the Deputy Administrator decides to grant a request, he or 
she promptly instructs the system manager in writing to grant access to 
the record under Sec. 105-64.301-3. The Deputy Administrator sends a 
copy of the instructions to the Privacy Act Officer, who notifies the 
requester.
    (f) If the Deputy Administrator rejects an appeal, he or she should 
promptly notify the requester in writing. This action constitutes the 
final administrative decision on the request and should state:
    (1) The reason for rejecting the appeal; and
    (2) That the requester has the right to have a court review the 
final decision under Sec. 105-64.408.
    (g) The final decision must be made within 30 workdays from the date 
the appeal is received by the Privacy Act Officer. The Deputy 
Administrator may extend the time limit by notifying the requester in 
writing before the 30 days are up. The Deputy Administrator's letter 
should explain why the time was extended.



Sec. 105-64.301-6  Geographic composition, addresses and telephone numbers of regional Administrative Services Division directors.

                                Region 1

Boston (includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont) Telephone: 617-223-5212
Director, Administrative Services Division, General Services 
Administration (1BR), John W. McCormack Post Office and Courthouse, 
Boston, MA 02109

                                Region 2

New York (includes New Jersey, New York, the Commonwealth of Puerto 
Rico, and the Virgin Islands) Telephone: 212-264-8262
Director, Administrative Services Division, General Services 
Administration (2BR), 26 Federal Plaza, New York, NY 10278

                                Region 3

Philadelphia (includes Delaware, Maryland, Pennsylvania, Virginia, and 
West Virginia with the exception of the National Capital Region) 
Telephone: 215-597-7926
Director, Administrative Services Division, General Services 
Administration (3BR), Ninth and Market Streets, Philadelphia, PA 19107

                                Region 4

Atlanta (includes Alabama, Florida, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina, and Tennessee) Telephone: 404-221-3240
Director, Administrative Services Division, General Services 
Administration (4BR), 75 Spring Street, SW, Atlanta, GA 30303

                                Region 5

Chicago (includes Illinois, Indiana, Michigan, Ohio, Minnesota, and 
Wisconsin) Telephone: 312-353-8421
Director, Administrative Services Division, General Services 
Administration (5BR), 230 South Dearborn Street, Chicago, IL 60604

                                Region 6

Kansas City (includes Iowa, Kansas, Missouri, and Nebraska) Telephone: 
816-374-7581
Director, Administrative Services Division, General Services 
Administration (6BR), 1500 East Bannister Road, Kansas City, MO 64131

                                Region 7

Fort Worth (includes Arkansas, Louisiana, New Mexico, Texas, and 
Oklahoma) Telephone: 817-334-2350

[[Page 157]]

Director, Administrative Services Division, General Services 
Administration (7BR), 819 Taylor Street, Fort Worth, TX 76102

                                Region 8

Denver (includes Colorado, North Dakota, South Dakota, Montana, Utah, 
and Wyoming) Telephone: 303-776-2231
Director, Administrative Services Division, General Services 
Administration (8BR), Building 41, Denver Federal Center, Denver, CO 
80225

                                Region 9

San Francisco (includes Hawaii, California, Nevada, and Arizona) 
Telephone: 415-556-9130
Director, Administrative Services Division, General Services 
Administration (9BR), 525 Market Street, San Francisco, CA 95105

                                Region 10

Auburn (includes Alaska, Idaho, Oregon, and Washington) Telephone: 206-
931-7128
Director, Administrative Services Division, General Services 
Administration (10BR), GSA Center, Auburn, WA 98002

                         National Capital Region

Washington, DC (includes the District of Columbia, the counties of 
Montgomery and Prince Georges in Maryland; the city of Alexandria and 
the counties of Arlington, Fairfax, Loudoun, and Prince William in 
Virginia) Telephone: 202-472-1650
Director, Adminstrative Services Division, General Services 
Administration (WBR), Seventh and D Streets, SW, Washington, DC 20407



Sec. 105-64.302  Fees.



Sec. 105-64.302-1  Records available at a fee.

    The manager shall provide one copy of a record to a requester for 
the fee stated in Sec. 105-64.302-6.



Sec. 105-64.302-2  Additional copies.

    A reasonable number of additional copies shall be provided for a fee 
if a requester cannot get copies made commercially.



Sec. 105-64.302-3  Waiver of fee.

    The manager should make a copy of a record of up to 50 pages at no 
charge to a requester who is a GSA employee. The manager may waive the 
fee if the cost of collecting it is nearly as large as or greater than 
the fee, or if furnishing the record without charge is customary or in 
the public interest.



Sec. 105-64.302-4  Prepayment of fees over $25.

    If a fee is likely to exceed $25, the manager notifies the person to 
pay the fee before GSA can make the records available. GSA will remit 
any overpayment or will send the requester a bill for any change over 
the amount paid.



Sec. 105-64.302-5  Form of payment.

    Copies must be paid for by check or money order made out to the 
General Services Administration and addressed to the system manager.



Sec. 105-64.302-6  Reproduction fee schedule.

    (a) The fee for copying a GSA record (by electrostatic copier) of 8 
by 14 inches or less is 10 cents a page.
    (b) The fee for copying a GSA record more than 8 by 14 inches or one 
that does not permit copying by routine procedures is the same as that 
charged commercially.



               Subpart 105-64.4--Requests To Amend Records



Sec. 105-64.401  Submission of requests to amend records.

    A person who wants to amend a record containing personal information 
should send a written request to the GSA Privacy Act Officer. A GSA 
employee who want to amend personnel records should send a written 
request to the General Services Administration, Director of Personnel 
(EP), Washington, DC 20405. It should show evidence of and justify the 
need to amend the record. Both the letter and the envelope should be 
marked ``Privacy Act-Request to Amend Record''.



Sec. 105-64.402  Review of requests to amend records.

    (a) Managers must acknowledge a request to amend a record within 10 
workdays after receiving it. If possible, the acknowledgment should 
state whether the request will be granted or denied, under Sec. 105-
64.404.
    (b) In reviewing a record in response to a request to amend, the 
manager should weigh the accuracy, relevance, timeliness, and 
completeness of the existing record compared to the proposed

[[Page 158]]

amendment to decide whether the amendment is justified. On a request to 
delete information, the manager should also review the request and the 
existing record to decide whether the information is needed by the 
agency under a statute or an Executive order.



Sec. 105-64.403  Approval of requests to amend.

    If a manager decides that a record should be amended, he or she must 
promptly correct it and send the person a corrected copy. If an 
accounting of disclosure was created to document disclosure of a record, 
anyone who previously received the record must be informed of the 
substance of the correction and sent a copy of the corrected record. The 
manager should advise the Privacy Act Officer that the request to amend 
was approved.



Sec. 105-64.404  Denial of requests to amend.

    (a) If a manager decides that amending a record is improper or that 
it should be amended in a different way, he or she refers the request 
and recommendation to the Head of the Service or Staff Office or 
Regional Administrator through channels.
    (b) If the Head of the Service or Staff Office or Regional 
Administrator decides to amend the record as requested, he or she should 
promptly return the request to the manager with instructions to make the 
amendment under Sec. 105-64.403.
    (c) If the Head of the Service or Staff Officer or Regional 
Administrator decides not to amend the record as requested, he or she 
should promptly advise the requester in writing of the decision. The 
letter shall (1) state the reason for denying the request; (2) include 
proposed alternate amendments, if appropriate; (3) state the requester's 
right to appeal the denial; and (4) tell how to proceed with an appeal.
    (d) The Privacy Act Officer must be sent a copy of the original 
denial of a request to amend a record.



Sec. 105-64.405  Agreement to alternative amendments.

    If the letter denying a request to amend a record proposes alternate 
amendments and the requester agrees to them, he or she must notify the 
official who signed the letter. The official should promptly instruct 
the manager to amend the record under Sec. 105-64.403.



Sec. 105-64.406  Appeal of denial of request to amend a record.

    (a) A requester who is denied a request to amend a record may appeal 
the denial. The appeal should be sent to the General Services 
Administration, Privacy Act Officer (ATRAI), Washington, DC 20405. If 
the request involves a record in a GSA employee's official personnel 
folder, as described in Chapter 293 of the Federal Personnel Manual, the 
appeal should be addressed to the Director, Bureau of Manpower 
Information Systems, Office of Personnel Management, Washington, DC 
20415.
    (b) The appeal to the Privacy Act Officer must be in writing and be 
received within 30 calendar days after the requester receives the letter 
stating the request was denied. It should be marked ``Privacy Act--
Appeal,'' both on the front of the letter and the envelope.
    (c) On receiving an appeal, the Privacy Act Officer should consult 
with the manager, the official who made the denial, legal counsel, and 
other officials involved. If the Privacy Act Officer, after consulting 
with these officials, decides that the record should be amended as 
requested, he or she must promptly inform the manager to amend it under 
Sec. 105-64.403 and shall notify the requester.
    (d) If the Privacy Act Officer, after consulting with the officials 
listed in the above paragraph, decides to reject an appeal, he or she 
should send the file, with a recommendation, to the Deputy Administrator 
for a final administrative decision.
    (e) If the Deputy Administrator decides to change the record, he or 
she should promptly instruct the manager in writing to amend it under 
Sec. 105-64.403 and send a copy of the instruction to the Privacy Act 
Officer, who shall notify the requester.
    (f) If the Deputy Administrator rejects an appeal, he or she should

[[Page 159]]

promptly notify the requester in writing. This is the final 
administrative decision on the request and should include:
    (1) Why the appeal is rejected;
    (2) Alternate amendments that the requester may accept under 
Sec. 105-64.405;
    (3) Notice of the requester's right to file a Statement of 
Disagreement that must be distributed under Sec. 105-64.407; and
    (4) Notice of requester's right to seek court review of the final 
administrative decision under Sec. 105-64.408.
    (g) The final agency decision must be made within 30 workdays from 
the date the Privacy Act Officer receives the appeal. In unusual 
circumstances, the Deputy Administrator may extend this time limit by 
notifying the requester in writing before the 30 days are up. The notice 
should explain why the limit was extended.



Sec. 105-64.407  Statements of disagreement.

    On receiving a final decision not to amend a record, the requester 
may file a Statement of Disagreement with the manager. The statement 
should explain why the requester believes the record to be inaccurate, 
irrelevant, untimely, or incomplete. The manager must file the statement 
with the records and include a copy of it in any disclosure of the 
record. The manager must also provide a copy of the Statement of 
Disagreement to any person or agency to whom the record has been 
disclosed if the disclosure was made under the accounting requirement of 
Sec. 105-64.202.



Sec. 105-64.408  Judicial review.

    For up to 2 years after the final administrative decision under 
Sec. 105-64.301-4 or Sec. 105-64.406, a requester may seek to have the 
court overturn the decision. A civil action must be filed in the Federal 
District Court where the requester lives or has his or her principal 
place of business, where the agency records are maintained, or in the 
District of Columbia.



  Subpart 105-64.5--Reporting New Systems and Altering Existing Systems



Sec. 105-64.501  Reporting requirement.

    (a) At least 90 calendar days before establishing a new system of 
records, the manager must notify the Associate Administrator for Policy 
and Management Systems. The notification must describe and justify each 
system of records. If the Associate Administrator decides to establish 
the system, he or she should submit a proposal, at least 60 days before 
establishing the system, to the President of the Senate, the Speaker of 
the House of Representatives and the Director of the Office of 
Management and Budget for evaluating the effect on the privacy and other 
rights of individuals.
    (b) At least 90 calendar days before altering a system of records, 
the responsible manager must notify the Associate Administrator for 
Policy and Management Systems. The notification must describe and 
justify altering the system of records. If the Associate Administrator 
decides to alter the system, he or she should submit a proposal, at 
least 60 calendar days before altering the system, to the President of 
the Senate, the Speaker of the House of Representatives, and the 
Director of the Office of Management and Budget for evaluating the 
effect on the privacy and other rights of individuals.
    (c) Reports required by this regulation are exempt from reports 
control.



Sec. 105-64.502  Federal Register notice of establishment of new system or alteration of existing system.

    The Associate Administrator for Policy and Management Systems must 
publish in the Federal Register a notice of intent to establish or alter 
a system of records:
    (a) If he or she receives notice that the Senate, the House of 
Representatives, and the Office of Management and Budget (OMB) do not 
object to establishing or altering a system of records, or

[[Page 160]]

    (b) If 30 calendar days after submitting the proposal neither OMB 
nor the Congress objects.



Sec. 105-64.503  Effective date of new systems of records or alteration of an existing system of records.

    When there is no objection to establishing or changing a system of 
records, it becomes effective 30 calendar days after the notice is 
published in the Federal Register.



                      Subpart 105-64.6--Exemptions



Sec. 105-64.601  General exemptions.

    The following systems of records are exempt from the Privacy Act of 
1974, except subsections (b); (c) (1) and (2); (e)(4) (A) through (F); 
(e) (6), (7), (9), (10), and (11); and (i) of the Act:
    (a) Incident Reporting System, GSA/PBS-3.
    (b) Investigation Case Files, ADM-24.

The systems of records GSA/PBS-3 and GSA/ADM-24 are exempt to the extent 
that information in them relates to enforcing the law, including police 
efforts to prevent, control, or reduce crime or to apprehend criminals; 
to the activities of prosecutors, courts, and correctional, probation, 
pardon, or parole authorities; and to (1) information compiled to 
identify criminal offenders and alleged offenders, consisting of records 
of arrests, disposition of criminal charges, sentencing, confinement, 
release, parole, and probation; (2) information compiled for a criminal 
investigation, including reports of informants and investigators that 
identify a person; or (3) reports that identify a person and were 
prepared while enforcing criminal laws, from arrest or indictment 
through release from parole. The law exempts these systems to maintain 
the effectiveness and integrity of the Federal Protective Service and 
the Office of Inspector General.



Sec. 105-64.602  Specific exemptions.

    The following systems of records are exempt from subsections (c)(3); 
(d); (e)(1); (e)(4) (G), (H), and (I); and (f) of the Privacy Act of 
1974;
    (a) Incident Reporting System, GSA/PBS-3.
    (b) Investigation Case Files, GSA/ADM-24.
    (c) Security Files, HSA/HRO-37.

The systems are exempt (1) if they contain investigatory material 
compiled for law enforcement. However, if anyone is denied a right, 
privilege, or benefit for which they would otherwise be eligible because 
of the material, it should be provided to the person, except if it 
discloses the identify of a Government source of information which there 
is an express promise of confidentiality or before the effective date of 
this section, under an implied promise of confidentiality and (2) 
investigatory material compiled solely to decide suitability, 
eligibility, or qualification for Federal employment, military service, 
Federal contracts, or access to classified information, when disclosing 
the material would reveal the identity of a confidential Government 
informant, or prior to the effective date of this section, under an 
implied promise that their identity is to be held in confidence. The 
systems are exempted to maintain the effectiveness and integrity of 
investigations conducted as part of the Federal Protective Service, 
Office of Inspector General, and Office of Internal Security law 
enforcement duties or their responsibilities in the areas of Federal 
employment, Government contracts, and access to security classified 
information.



               Subpart 105-64.7--Assistance and Referrals



Sec. 105-64.701  Requests for assistance and referral.

    Requests for assistance and referral to a system manager or other 
GSA employee charged with implementing these regulations are made to the 
GSA Privacy Officer (ATRAI), General Services Administration, 
Washington, DC 20405.



PART 105-67--SALE OF PERSONAL PROPERTY--Table of Contents




Sec.
105-67.100  Scope of subpart.
105-67.101  Debarred, suspended and ineligible contractors.

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

[[Page 161]]



Sec. 105-67.100  Scope of subpart.

    This subpart prescribes policies and procedures governing the 
debarment or suspension of contractors from purchases of Federal 
personal property (see FPMR part 101-45).

[51 FR 13500, Apr. 21, 1986]



Sec. 105-67.101  Debarred, suspended and ineligible contractors.

    The policies, procedures and requirements of subpart 509.4 of the 
General Services Administration Acquisition Regulation (GSAR) are 
incorporated by reference and made applicable to contracts for, and to 
contractors who engage in, the purchase of Federal personal property.

[51 FR 13500, Apr. 21, 1986]



PART 105-68--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                        Subpart 105-68.1--General

Sec.
105-68.100  Purpose.
105-68.105  Definitions.
105-68.110  Coverage.
105-68.115  Policy.

                   Subpart 105-68.2--Effect of Action

105-68.200  Debarment or suspension.
105-68.205  Ineligible persons.
105-68.210  Voluntary exclusion.
105-68.215  Exception provision.
105-68.220  Continuation of covered transactions.
105-68.225  Failure to adhere to restrictions.

                       Subpart 105-68.3--Debarment

105-68.300  General.
105-68.305  Causes for debarment.
105-68.310  Procedures.
105-68.311  Investigation and referral.
105-68.312  Notice of proposed debarment.
105-68.313  Opportunity to contest proposed debarment.
105-68.314  Debarring official's decision.
105-68.315  Settlement and voluntary exclusion.
105-68.320  Period of debarment.
105-68.325  Scope of debarment.

                      Subpart 105-68.4--Suspension

105-68.400  General.
105-68.405  Causes for suspension.
105-68.410  Procedures.
105-68.411  Notice of suspension.
105-68.412  Opportunity to contest suspension.
105-68.413  Suspending official's decision.
105-68.415  Period of suspension.
105-68.420  Scope of suspension.

   Subpart 105-68.5--Responsibilities of GSA, Agency and Participants

105-68.500  GSA responsibilities (information dissemination).
105-68.505  GSA responsibilities.
105-68.510  Participants' responsibilities.

       Subpart 105-68.6--Drug-Free Workplace Requirements (Grants)

105-68.600  Purpose.
105-68.605  Definitions.
105-68.610  Coverage.
105-68.615  Grounds for suspension of payments, suspension or 
          termination of grants, or suspension or debarment.
105-68.620  Effect of violation.
105-68.625  Exception provision.
105-68.630  Certification requirements and procedures.
105-68.635  Reporting of and employee sanctions for convictions of 
          criminal drug offenses.

Appendix A to Part 105-68--Certification Regarding Debarment, 
          Suspension, and Other Responsibility Matters--Primary Covered 
          Transactions
Appendix B to Part 105-68--Certification Regarding Debarment, 
          Suspension, Ineligibility and Voluntary Exclusion--Lower Tier 
          Covered Transactions
Appendix C to Part 105-68--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: E.O. 12549; sec. 5151-5160 of the Drug-Free Workplace Act 
of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq); 40 
U.S.C. 486(c).

    Source: 53 FR 19198, 19204, May 26, 1988, unless otherwise noted. 
Redesignated at 54 FR 4962, Jan. 31, 1989.

    Cross Reference: See also Office of Management and Budget notices 
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.

    Editorial Note: For additional information, see related documents 
published at 53 FR 19160, May 26, 1988, and 53 FR 34474, Sept. 6, 1988.

[[Page 162]]



                        Subpart 105-68.1--General



Sec. 105-68.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 105-68.105), and participants who have 
voluntarily excluded themselves from participation in covered 
transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[60 FR 33040 and 33059, June 26, 1995]



Sec. 105-68.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person

[[Page 163]]

from participating in covered transactions. A person so excluded is 
``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    GSA. General Services Administration.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United

[[Page 164]]

States, or any agency of a State, exclusive of institutions of higher 
education, hospitals, and units of local government. A State 
instrumentality will be considered part of the State government if it 
has a written determination from a State government that such State 
considers that instrumentality to be an agency of the State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.

[53 FR 19198 and 19204, May 26, 1988, as amended at 53 FR 19198, May 26, 
1988; 60 FR 33041 and 33059, June 26, 1995]



Sec. 105-68.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits 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);

[[Page 165]]

    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart 105-68.2, ``Effect of Action,'' Sec. 105-68.200, 
``Debarment or suspension,'' sets forth the consequences of a debarment 
or suspension. Those consequences would obtain only with respect to 
participants and principals in the covered transactions and activities 
described in Sec. 105-68.110(a). Sections 105-68.325, ``Scope of 
debarment,'' and 105-68.420, ``Scope of suspension,'' govern the extent 
to which a specific participant or organizational elements of a 
participant would be automatically included within a debarment or 
suspension action, and the conditions under which affiliates or persons 
associated with a participant may also be brought within the scope of 
the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995, shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995, shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[53 FR 19198, 19204, May 26, 1988, as amended at 54 FR 4962, Jan. 31, 
1989; 60 FR 33041, 33059, June 26, 1995]



Sec. 105-68.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.



                   Subpart 105-68.2--Effect of Action



Sec. 105-68.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 105-68.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 105-68.110(a)(1)(ii)) for the period of 
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;

[[Page 166]]

    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits 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);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[60 FR 33041 and 33059, June 26, 1995]



Sec. 105-68.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 105-68.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 105-68.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 105-68.315 are 
excluded in accordance with the terms of their settlements. GSA shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 105-68.215  Exception provision.

    GSA may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and Sec. 105-
68.200. However, in accordance with the President's stated intention in 
the Executive Order, exceptions shall be granted only infrequently. 
Exceptions shall be reported in accordance with Sec. 105-68.505(a).

[60 FR 33041 and 33059, June 26, 1995]



Sec. 105-68.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in Sec. 105-
68.215.

[60 FR 33041 and 33059, June 26, 1995]



Sec. 105-68.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 105-68.215 or Sec. 105-68.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded

[[Page 167]]

from the covered transaction (See appendix B of these regulations), 
unless it knows that the certification is erroneous. An agency has the 
burden of proof that a participant did knowingly do business with a 
person that filed an erroneous certification.

[60 FR 33041 and 33059, June 26, 1995]



                       Subpart 105-68.3--Debarment



Sec. 105-68.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 105-68.305, using procedures established in Secs. 105-68.310 
through 105-68.314. The existence of a cause for debarment, however, 
does not necessarily require that the person be debarred; the 
seriousness of the person's acts or omissions and any mitigating factors 
shall be considered in making any debarment decision.



Sec. 105-68.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 105-68.300 through 105-68.314 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, 
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 the 
present responsibility of a person.
    (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, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 105-68.215 or Sec. 105-68.220;
    (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 Sec. 105-68.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart 105-68.6 of this part, 
relating to providing a drug-free workplace, as set forth in Sec. 105-
68.615 of this part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19198, 19204, May 26, 1988, as amended at 54 FR 4950 and 4962, 
Jan. 31, 1989; 56 FR 29438, June 27, 1991]



Sec. 105-68.310  Procedures.

    GSA shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Secs. 105-68.311 through 105-68.314 and 48 CFR subpart 
509.4.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29438, June 27, 
1991]

[[Page 168]]



Sec. 105-68.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 105-68.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 105-68.305 for proposing 
debarment;
    (d) Of the provisions of Sec. 105-68.311 through Sec. 105-68.314, 
and any other GSA procedures, if applicable, governing debarment 
decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 105-68.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 105-68.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and

[[Page 169]]

    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 105-68.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 105-68.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, GSA may, at any 
time, settle a debarment or suspension action.
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart 105-68.5).

[53 FR 19198, 19204, May 26, 1988, as amended at 54 FR 4962, Jan. 31, 
1989]



Sec. 105-68.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart 105-68.6 of this part generally should not 
exceed three years. Where circumstances warrant, a longer period of 
debarment may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart 105-68.6 of this part (see 105-68.305(c)(5)), the period of 
debarment shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Secs. 105-68.311 through 105-68.314 shall be followed to extend the 
debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.

[53 FR 19198, 19204, May 26, 1988, as amended at 54 FR 4950 and 4962, 
Jan. 31, 1989; 56 FR 29438, June 27, 1991]



Sec. 105-68.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Secs. 105-68.311 through 
105-68.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall

[[Page 170]]

be evidence of such knowledge, approval, or acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement or with the 
knowledge, approval, or acquiescence of these participants. Acceptance 
of the benefits derived from the conduct shall be evidence of such 
knowledge, approval, or acquiescence.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29438, June 27, 
1991]



                      Subpart 105-68.4--Suspension



Sec. 105-68.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 105-68.405 using procedures established in Secs. 105-
68.410 through 105-68.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 105-68.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider 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. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 105-68.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 105-68.400 through 105-68.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in Sec. 105-
68.305(a); or
    (2) That a cause for debarment under Sec. 105-68.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 105-68.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. GSA shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 105-68.411 through Sec. 105-
68.413 and 48 CFR subpart 509.4.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29438, June 27, 
1991]



Sec. 105-68.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 105-68.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 105-68.411 through Sec. 105-68.413 and 
any other GSA

[[Page 171]]

procedures, if applicable, governing suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 105-68.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 105-68.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 105-68.320(c) for reasons for reducing the period or 
scope of debarment) or may leave it in force. However, a decision to 
modify or terminate the suspension shall be without prejudice to the 
subsequent imposition of suspension by any other agency or debarment by 
any agency. The decision shall be rendered in accordance with the 
following provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 105-68.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an

[[Page 172]]

impending termination of a suspension, at least 30 days before the 12-
month period expires, to give that Department an opportunity to request 
an extension.



Sec. 105-68.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 105-68.325), except that the procedures of Secs. 105-68.410 
through 105-68.413 shall be used in imposing a suspension.



   Subpart 105-68.5--Responsibilities of GSA, Agency and Participants



Sec. 105-68.500  GSA responsibilities (information dissemination).

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or voluntarily excluded by agencies under Executive Order 
12549 and these regulations, and those who have been determined to be 
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when 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 each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.

[53 FR 19198 and 19204, May 26, 1988, as amended at 53 FR 19198, May 26, 
1988]



Sec. 105-68.505  GSA responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which GSA has granted exceptions under Sec. 105-68.215 permitting 
participation by debarred, suspended, or voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 105-68.500(b) and 
of the exceptions granted under Sec. 105-68.215 within five working days 
after taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (202) 501-0688.
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29439, June 27, 
1991]



Sec. 105-68.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In addition, each participant may, 
but is not required to, check the Nonprocurement List for its principals 
(202) 501-0688. Adverse information on the certification will not 
necessarily result in denial of participation. However, the 
certification, and any additional information pertaining to the 
certification submitted by the participant, shall be considered in the 
administration of covered transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in appendix B

[[Page 173]]

to this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(202) 501-0688.
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to GSA if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances. Participants 
in lower tier covered transactions shall provide the same updated notice 
to the participant to which it submitted its proposals.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29439, June 27, 
1991]



       Subpart 105-68.6--Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21701, May 25, 1990; 55 FR 26442, June 28, 
1990, unless otherwise noted.



Sec. 105-68.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 105-68.605  Definitions.

    (a) Except as amended in this section, the definitions of Sec. 105-
68.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) 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;
    (2) 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;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (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);

[[Page 174]]

    (6) 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;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any 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;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the 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 of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 105-68.610  Coverage.

    (a) This subpart applies to any grantee of the agency.
    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts 105-68.1, 105-68.2, 105-68.3, 105-
68.4 and 105-68.5 of this part apply to matters covered by this subpart, 
except where specifically modified by this subpart. In the event of any 
conflict between provisions of this subpart and other provisions of this 
part, the provisions of this subpart are deemed to control with respect 
to the implementation of drug-free workplace requirements concerning 
grants.

[53 FR 19198, 19204, May 26, 1988, as amended at 56 FR 29438, June 27, 
1991]



Sec. 105-68.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 105-
68.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a) through (g) and/or (B) of the 
certification (Alternate I to Appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to Appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 105-68.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 105-68.615, and in accordance with applicable law, the

[[Page 175]]

grantee shall be subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 105-68.320(a)(2) of this 
part).



Sec. 105-68.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 105-68.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in appendix C to this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific

[[Page 176]]

grant, the grant officer may determine a different date on which the 
policy statement and program shall be in place.



Sec. 105-68.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

     Appendix A to Part 105-68--Certification Regarding Debarment, 
     Suspension, and Other Responsibility Matters--Primary Covered 
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.

[[Page 177]]

    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them for 
commission of fraud or a criminal offense in connection with obtaining, 
attempting to obtain, or performing a public (Federal, State or local) 
transaction or contract under a public transaction; violation of Federal 
or State antitrust statutes or commission of embezzlement, theft, 
forgery, bribery, falsification or destruction of records, making false 
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042 and 33059, June 26, 1995]

     Appendix B to Part 105-68--Certification Regarding Debarment, 
 Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered 
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with

[[Page 178]]

a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, 
debarred, suspended, declared ineligible, or voluntarily excluded from 
participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042 and 33059, June 26, 1995]

 Appendix C to Part 105-68--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant 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).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    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 (21 CFR 1308.11 through 1308.15);

[[Page 179]]

    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;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, state, zip code)

_______________________________________________________________________
_______________________________________________________________________

Check {time}  if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include

[[Page 180]]

the identification number(s) of each affected grant.

[55 FR 21690, 21701, May 25, 1990]



PART 105-69--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
105-69.100  Conditions on use of funds.
105-69.105  Definitions.
105-69.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

105-69.200  Agency and legislative liaison.
105-69.205  Professional and technical services.
105-69.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

105-69.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

105-69.400  Penalties.
105-69.405  Penalty procedures.
105-69.410  Enforcement.

                          Subpart E--Exemptions

105-69.500  Secretary of Defense.

                        Subpart F--Agency Reports

105-69.600  Semi-annual compilation.
105-69.605  Inspector General report.

Appendix A to Part 105-69--Certification Regarding Lobbying
Appendix B to Part 105-69--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 40 U.S.C. 
486(c).

    Source: 55 FR 6737 and 6753, Feb. 26, 1990, unless otherwise noted.

    Cross reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                           Subpart A--General



Sec. 105-69.100  Conditions on use of funds.

    (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.

[[Page 181]]



Sec. 105-69.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct 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

[[Page 182]]

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.



Sec. 105-69.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,

[[Page 183]]

    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 105-69.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 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.



Sec. 105-69.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 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,

[[Page 184]]

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.



Sec. 105-69.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 105-69.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 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 Sec. 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

[[Page 185]]

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.



                  Subpart D--Penalties and Enforcement



Sec. 105-69.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 105-69.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.

[[Page 186]]



Sec. 105-69.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 105-69.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 105-69.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the 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.



Sec. 105-69.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.

[[Page 187]]

    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

       Appendix A to Part 105-69--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 188]]


          Appendix B to Part 105-69--Disclosure Form to Report 
                               Lobbying
    [GRAPHIC] [TIFF OMITTED] TC21OC91.008
    

[[Page 189]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.009


[[Page 190]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.010


[[Page 191]]





PART 105-70--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986--Table of Contents




Sec.
105-70.000  Scope.
105-70.001  Basis.
105-70.002  Definitions.
105-70.003  Basis for civil penalties and assessments.
105-70.004  Investigation.
105-70.005  Review by the reviewing official.
105-70.006  Prerequisites for issuing a complaint.
105-70.007  Complaint.
105-70.008  Service of complaint.
105-70.009  Answer.
105-70.010  Default upon failure to file an answer.
105-70.011  Referral of complaint and answer to the ALJ.
105-70.012  Notice of hearing.
105-70.013  Parties to the hearing.
105-70.014  Separation of functions.
105-70.015  Ex parte contacts.
105-70.016  Disqualification of reviewing official or ALJ.
105-70.017  Rights of parties.
105-70.018  Authority of the ALJ.
105-70.019  Prehearing conferences.
105-70.020  Disclosure of documents.
105-70.021  Discovery.
105-70.022  Exchange of witness lists, statements, and exhibits.
105-70.023  Subpoena for attendance at hearing.
105-70.024  Protective order.
105-70.025  Fees.
105-70.026  Form, filing and service of papers.
105-70.027  Computation of time.
105-70.028  Motions.
105-70.029  Sanctions.
105-70.030  The hearing and burden of proof.
105-70.031  Determining the amount of penalties and assessments.
105-70.032  Location of hearing.
105-70.033  Witnesses.
105-70.034  Evidence.
105-70.035  The record.
105-70.036  Post-hearing briefs.
105-70.037  Initial decision.
105-70.038  Reconsideration of initial decision.
105-70.039  Appeal to Authority Head.
105-70.040  Stays ordered by the Department of Justice.
105-70.041  Stay pending appeal.
105-70.042  Judicial review.
105-70.043  Collection of civil penalties and assessments.
105-70.044  Right to administrative offset.
105-70.045  Deposit in Treasury of United States.
105-70.046  Compromise or settlement.
105-70.047  Limitations.

    Authority: 40 U.S.C. 486(c); 31 U.S.C. 3809.

    Source: 52 FR 45188, Nov. 25, 1987, unless otherwise noted.



Sec. 105-70.000  Scope.

    This part (a) establishes administrative procedures for imposing 
civil penalties and assessments against persons who make, submit, or 
present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents, and (b) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec. 105-70.001  Basis.

    This part implements the Program Fraud Civil Remedies Act of 1986, 
Pub. L. No. 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986), to be 
codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute requires 
each authority head to promulgate regulations necessary to implement the 
provisions of the statute.



Sec. 105-70.002  Definitions.

    The following shall have the meanings ascribed to them below unless 
the context clearly indicates otherwise:
    (a) ALJ means an Administrative Law Judge in the Authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the Authority pursuant to 5 
U.S.C. 3344.
    (b) Authority means the General Services Administration.
    (c) Authority Head means the Administrator or Deputy Administrator 
of General Services.
    (d) Benefit means, in the context of statements, anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    (e) Claim means any request, demand or submission--
    (1) Made to the Authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (2) Made to a recipient of property, services, or money from the 
Authority or to a party to a contract with the Authority--
    (i) For property or services if the United States--

[[Page 192]]

    (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 Sec. 105-70.007.
    (g) Defendant means any person alleged in a complaint under 
Sec. 105-70.007 to be liable for a civil penalty or assessment under 
Sec. 105-70.003.
    (h) Individual means a natural person.
    (i) Initial Decision means the written decision of the ALJ required 
by Sec. 105-70.010 or Sec. 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.

[[Page 193]]



Sec. 105-70.003  Basis for civil penalties and assessments.

    (a) Claims. (1) Any person who makes a claim that the person knows 
or has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed,

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,500 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the Authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the Authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,500 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the Authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the Authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[52 FR 45188, Nov. 25, 1987, as amended at 61 FR 67235, Dec. 20, 1996]



Sec. 105-70.004  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her

[[Page 194]]

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.



Sec. 105-70.005  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 105-70.004(b), the reviewing official determines that there is 
adequate evidence to believe that a person is liable under Sec. 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 Sec. 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 
Sec. 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.



Sec. 105-70.006  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 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 Sec. 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 Sec. 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.



Sec. 105-70.007  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 105-70.008.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the

[[Page 195]]

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 
Sec. 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.



Sec. 105-70.008  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his 
representative.



Sec. 105-70.009  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in 
Sec. 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.



Sec. 105-70.010  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 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 Sec. 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 Sec. 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.

[[Page 196]]

    (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 
Sec. 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.



Sec. 105-70.011  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 105-70.012  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 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.



Sec. 105-70.013  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 105-70.014  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the Authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the Authority Head, except as a witness or a 
representative in public proceedings; or

[[Page 197]]

    (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.



Sec. 105-70.015  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 105-70.016  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed not further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 105-70.017  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral argument at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 105-70.018  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;

[[Page 198]]

    (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.



Sec. 105-70.019  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 105-70.020  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 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 Sec. 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 
Sec. 105-70.009.



Sec. 105-70.021  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Secs. 105-70.022 and 105-
70.023, the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and

[[Page 199]]

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 Sec. 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 
Sec. 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 Sec. 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.



Sec. 105-70.022  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 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.



Sec. 105-70.023  Subpoena for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is

[[Page 200]]

to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 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.



Sec. 105-70.024  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 105-70.025  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United 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.



Sec. 105-70.026  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 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

[[Page 201]]

forth the manner of service, shall be proof of service.



Sec. 105-70.027  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or 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.



Sec. 105-70.028  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 105-70.029  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 105-70.030  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 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.

[[Page 202]]

    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 105-70.031  Determining the amount of penalties and assessments.

    In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Authority 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.



Sec. 105-70.032  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present arguments with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 105-70.033  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 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 harrassment 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.



Sec. 105-70.034  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.

[[Page 203]]

    (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 Sec. 105-70.024.



Sec. 105-70.035  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Authority Head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 105-70.024.



Sec. 105-70.036  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 105-70.037  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 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.



Sec. 105-70.038  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the Authority Head and 
shall be final and

[[Page 204]]

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 Sec. 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 Sec. 105-
70.039.



Sec. 105-70.039  Appeal to Authority Head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the Authority Head by filing a 
notice of appeal with the Authority Head in accordance with this 
section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 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 
Sec. 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 Sec. 105-70.003 is final 
and is not subject to judicial review.



Sec. 105-70.040  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Authority Head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the Authority Head shall stay the 
process immediately. The Authority Head may order the process resumed 
only upon

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receipt of the written authorization of the Attorney General.



Sec. 105-70.041  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Authority Head.
    (b) No administrative stay is available following a final decision 
of the Authority Head.



Sec. 105-70.042  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the Authority Head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 105-70.043  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
action for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 105-70.044  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 105-70.042 or Sec. 105-
70.043, or any amount agreed upon in a compromise or settlement under 
Sec. 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.



Sec. 105-70.045  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 105-70.046  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The Authority Head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 105-70.042 or during the pendency of any action to collect 
penalties and assessments under Sec. 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 
Sec. 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.



Sec. 105-70.047  Limitations.

    (a) The Program Fraud Civil Remedies Act of 1986 provides that a 
hearing shall be commenced within 6 years after the date on which a 
claim or statement is made. 31 U.S.C. 3808(a). The statute also provides 
that the hearing is commenced by the mailing or delivery of the 
presiding officer's (ALJ's) notice. 31 U.S.C. 3803(d)(2)(B). 
Accordingly, the notice of hearing provided for in Sec. 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 Sec. 105-70.010(b) shall be deemed a

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notice of hearing for purposes of this section.



PART 105-71--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS WITH STATE AND LOCAL GOVERNMENTS--Table of Contents




                        Subpart 105-71.1--General

Sec.
105-71.100  Purpose and scope of this part.
105-71.101  Scope of Secs. 105-71.100 through 105-71.105.
105-71.102  Definitions.
105-71.103  Applicability.
105-71.104  Effect on other issuances.
105-71.105  Additions and exceptions.

                Subpart 105-71.11--Pre-Award Requirements

105-71.110  Forms for applying for grants.
105-71.111  State plans.
105-71.112  Special grant or subgrant conditions for ``high-risk'' 
          grantees.

   Subpart 105-71.12--Post-Award Requirements/Financial Administration

105-71.120  Standards for financial management systems.
105-71.121  Payment.
105-71.122  Allowable costs.
105-71.123  Period of availability of funds.
105-71.124  Matching or cost sharing.
105-71.125  Program income.
105-71.126  Non-Federal audit.

   Subpart 105-71.13--Post-Award Requirements/Changes, Property, and 
                                Subawards

105-71.130  Changes.
105-71.131  Real property.
105-71.132  Equipment.
105-71.133  Supplies.
105-71.134  Copyrights.
105-71.135  Subawards to debarred and suspended parties.
105-71.136  Procurement.
105-71.137  Subgrants.

Subpart 105-71.14--Post-Award Requirements/Reports, Records, Retention, 
                             and Enforcement

105-71.140  Monitoring and reporting program performance.
105-71.141  Financial reporting.
105-71.142  Retention and access requirements for records.
105-71.143  Enforcement.
105-71.144  Termination for convenience.

             Subpart 105-71.15--After-the-Grant Requirements

105-71.150  Closeout.
105-71.151  Later disallowances and adjustments.
105-71.152  Collection of amounts due.

Subpart 105-71.16--Entitlements [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, (40 U.S.C. 486(c)).

    Source: 58 FR 43270, Aug. 16, 1993, unless otherwise noted.



                        Subpart 105-71.1--General



Sec. 105-71.100  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 105-71.101  Scope of Secs. 105-71.100 through 105-71.105.

    This section contains general rules pertaining to this part and 
procedures for control of exceptions from this subpart.



Sec. 105-71.102  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.

[[Page 207]]

    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,

[[Page 208]]

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

[[Page 209]]

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.



Sec. 105-71.103  Applicability.

    (a) General. Sections 105-71.100 through 105-71.152 of this subpart 
apply to all grants and subgrants to governments, except where 
inconsistent with Federal statutes or with regulations authorized in 
accordance with the exception provision of Sec. 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).

[[Page 210]]

    (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 
Sec. 105-71.103(a)(3) through (8) are subject to Subpart--Entitlement.



Sec. 105-71.104  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 105-71.105.



Sec. 105-71.105  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                Subpart 105-71.11--Pre-Award Requirements



Sec. 105-71.110  Forms for applying for grants.

    (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.

[[Page 211]]

Previously submitted pages with information that is still current need 
not be resubmitted.



Sec. 105-71.111  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect:
    (1) New or revised Federal statutes or regulations or
    (2) A material change in any State law, organization, policy, or 
State agency operation.

The State will obtain approval for the amendment and its effective date 
but need submit for approval only the amended portions of the plan.



Sec. 105-71.112  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible, and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grantee or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



   Subpart 105-71.12--Post-Award Requirements/Financial Administration



Sec. 105-71.120  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--

[[Page 212]]

    (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.



Sec. 105-71.121  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this

[[Page 213]]

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 Sec. 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.



Sec. 105-71.122  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and

[[Page 214]]

    (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   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21
For-profit organization other than a        48 CFR part 31, Contract
 hospital and an organization named in OMB   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 105-71.123  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover or unobligated balances are permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 105-71.124  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or cost-type 
contractor under the assistance agreement. This includes allowable costs 
borne by non-Federal grants or by other cash donations from non-Federal 
third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements apply.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 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 Sec. 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

[[Page 215]]

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

[[Page 216]]

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 Sec. 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.



Sec. 105-71.125  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Government revenues. Taxes, special assessments, levies, fines, 
and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 105-71.134.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. 105-71.131 
and Sec. 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

[[Page 217]]

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.



Sec. 105-71.126  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure the appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 105-
71.136 shall be followed.

[58 FR 43270, Aug. 16, 1993, as amended at 62 FR 45939, 45944, Aug. 29, 
1997]

[[Page 218]]



   Subpart 105-71.13--Post-Award Requirements/Changes, Property, and 
                                Subawards



Sec. 105-71.130  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 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 Sec. 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 Sec. 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

[[Page 219]]

project which requires Federal prior approval, the grantee will obtain 
the Federal agency's approval before approving the subgrantee's request.



Sec. 105-71.131  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purpose, and the grantee or subgrantee shall not dispose 
of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives.
    (1) Retention of title. Retain title after compensating the awarding 
agency. 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.



Sec. 105-71.132  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was 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 Sec. 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

[[Page 220]]

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 Sec. 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.



Sec. 105-71.133  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are

[[Page 221]]

not needed for any other federally sponsored programs or projects, the 
grantee or subgrantee shall compensate the awarding agency for its 
share.



Sec. 105-71.134  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 105-71.135  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension''.



Sec. 105-71.136  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will allow the same policies and procedures it uses for 
procurements from its 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

[[Page 222]]

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 Sec. 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

[[Page 223]]

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 Sec. 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

[[Page 224]]

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.

[[Page 225]]

    (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 Sec. 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

[[Page 226]]

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

[[Page 227]]

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).

[58 FR 43270, Aug. 16, 1993, as amended at 60 FR 19639, 19644, Apr. 19, 
1995]



Sec. 105-71.137  Subgrants.

    (a) States. States shall follow State law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 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 Sec. 105-71.121; and
    (4) Section 105-71.150.



Subpart 105-71.14--Post-Award Requirements/Reports, Records, Retention, 
                             and Enforcement



Sec. 105-71.140  Monitoring and reporting program performance.

    (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

[[Page 228]]

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.



Sec. 105-71.141  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB

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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

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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 
Sec. 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 
Sec. 105-71.141(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 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 Sec. 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 Sec. 105-71.141(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 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 
Sec. 105-71.141(b)(2).



Sec. 105-71.142  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees of subgrantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 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

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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.



Sec. 105-71.143  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporary withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Without further awards for the program, or
    (5) Take other remedies that may be legally available,
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency

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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 Sec. 105-71.135).



Sec. 105-71.144  Termination for convenience.

    Except as provided in Sec. 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 Sec. 105-
71.143 or paragraph (a) of this section.



             Subpart 105-71.15--After-the-Grant Requirements



Sec. 105-71.150  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report: In accordance with Sec. 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

[[Page 233]]

advanced that is not authorized to be retained for use on other grants.



Sec. 105-71.151  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 105-71.142;
    (d) Property management requirements in Sec. 105-71.131 and 
Sec. 105-71.132; and
    (e) Audit requirements in Sec. 105-71.126.



Sec. 105-71.152  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled 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.

Subpart 105-71.16--Entitlements [Reserved]



PART 105-72--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS--Table of Contents




                        Subpart 105-72.1--General

Sec.
105-72.100  Purpose.
105-72.101  Definitions.
105-72.102  Effect on other issuances.
105-72.103  Deviations.
105-72.104  Subawards.

                Subpart 105-72.2--Pre-Award Requirements

105-72.200  Purpose.
105-72.201  Pre-award policies.
105-72.202  Forms for applying for Federal assistance.
105-72.203  Debarment and suspension.
105-72.204  Special award conditions.
105-72.205  Metric system of measurement.
105-72.206  Resource Conservation and Recovery Act.
105-72.207  Certifications and representations.

    Subpart 105-72.30--Post-Award Requirements/Financial and Program 
                               Management

105-72.300  Purpose of financial and program management.
105-72.301  Standards for financial management systems.
105-72.302  Payment.
105-72.303  Cost sharing or matching.
105-72.304  Program income.
105-72.305  Revision of budget and program plans.
105-72.306  Non-Federal audits.
105-72.307  Allowable costs.
105-72.308  Period of availability of funds.

      Subpart 105-72.40--Post-Award Requirements/Property Standards

105-72.400  Purpose of property standards.
105-72.401  Insurance coverage.
105-72.402  Real property.
105-72.403  Federally-owned and exempt property.
105-72.404  Equipment.
105-72.405  Supplies and other expendable property.

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105-72.406  Intangible property.
105-72.407  Property trust relationship.

    Subpart 105-72.50--Post-Award Requirements/Procurement Standards

105-72.500  Purpose of procurement standards.
105-72.501  Recipient responsibilities.
105-72.502  Codes of conduct.
105-72.503  Competition.
105-72.504  Procurement procedures.
105-72.505  Cost and price analysis.
105-72.506  Procurement records.
105-72.507  Contract administration.
105-72.508  Contract provisions.

     Subpart 105-72.60--Post-Award Requirements/Reports and Records

105-72.600  Purpose of reports and records.
105-72.601  Monitoring and reporting program performance.
105-72.602  Financial reporting.
105-72.603  Retention and access requirements for records.

 Subpart 105-72.70--Post-Award Requirements/Termination and Enforcement

105-72.700  Purpose of termination and enforcement.
105-72.701  Termination.
105-72.702  Enforcement.

             Subpart 105-72.80--After-the-Award Requirements

105-72.800  Purpose.
105-72.801  Closeout procedures.
105-72.802  Subsequent adjustments and continuing responsibilities.
105-72.803  Collection of amounts due.

Appendix A to Part 105-72--Contract Provisions

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

    Source: 59 FR 47268, Sept. 15, 1994, unless otherwise noted.



                        Subpart 105-72.1--General



Sec. 105-72.100  Purpose.

    This part establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. Federal 
awarding agencies shall not impose additional or inconsistent 
requirements, except as provided in Sec. 105-72.103, and Sec. 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.



Sec. 105-72.101  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:
    (1) Earnings during a given period from
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of

[[Page 235]]

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

[[Page 236]]

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 Sec. 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.

[[Page 237]]

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.



Sec. 105-72.102  Effect on other issuances.

    For awards subject to this regulation, all administrative 
requirements of codified program regulations, program manuals, handbooks 
and other nonregulatory materials which are inconsistent with the 
requirements of this regulation shall be superseded, except to the 
extent they are required by statute, or authorized in accordance with 
the deviations provision in Sec. 105-72.103.



Sec. 105-72.103  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this 
regulation when exceptions are not prohibited by statute. However, in 
the interest of maximum uniformity, exceptions from the requirements of 
this regulation shall be permitted only in unusual circumstances. 
Federal awarding agencies may apply more restrictive requirements to a 
class of recipients when approved by OMB. Federal awarding agencies may 
apply less restrictive requirements when awarding small awards, except 
for those requirements which are statutory. Exceptions on a case-by-case 
basis may also be made by Federal awarding agencies.

[[Page 238]]



Sec. 105-72.104  Subawards.

    Unless sections of this regulation specifically exclude 
subrecipients from coverage, the provisions of this regulation shall be 
applied to subrecipients performing work under awards if such 
subrecipients are institutions of higher education, hospitals or other 
non-profit organizations. State and local government subrecipients are 
subject to the provisions of regulations implementing the grants 
management common rule, ``Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments,'' 41 CFR 105-
71.



                Subpart 105-72.2--Pre-Award Requirements



Sec. 105-72.200  Purpose.

    Sections 105-72.201 through 105-72.207 prescribes forms and 
instructions and other pre-award matters to be used in applying for 
Federal awards.



Sec. 105-72.201  Pre-award policies.

    (a) Use of grants and cooperative agreements, and contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative 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.



Sec. 105-72.202  Forms for applying for Federal assistance.

    (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.



Sec. 105-72.203  Debarment and suspension.

    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.



Sec. 105-72.204  Special award conditions.

    If an applicant or recipient:
    (a) Has a history of poor performance,
    (b) Is not financially stable,

[[Page 239]]

    (c) Has a management system that does not meet the standards 
prescribed in this regulation,
    (d) Has not conformed to the terms and conditions of a previous 
award, or
    (e) Is not otherwise responsible;

Federal awarding agencies may impose additional requirements as needed, 
provided that such applicant or recipient is notified in writing as to: 
the nature of the additional requirements, the reason why the additional 
requirements are being imposed, the nature of the corrective action 
needed, the time allowed for completing the corrective actions, and the 
method for requesting reconsideration of the additional requirements 
imposed. Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.



Sec. 105-72.205  Metric system of measurement.

    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.''



Sec. 105-72.206  Resource Conservation and Recovery Act.

    Under the Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-
580 codified at 42 U.S.C. 6962), any State agency or agency of a 
political subdivision of a State which is using appropriated Federal 
funds must comply with section 6002. Section 6002 requires that 
preference be given in procurement programs to the purchase of specific 
products containing recycled materials identified in guidelines 
developed by the Environmental Protection Agency (EPA) (40 CFR parts 247 
through 254). Accordingly, State and local institutions of higher 
education, hospitals, and non-profit organizations that receive direct 
Federal awards or other Federal funds shall give preference in their 
procurement programs funded with Federal funds to the purchase of 
recycled products pursuant to the EPA guidelines.



Sec. 105-72.207  Certifications and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit certifications and representations required by statute, executive 
order, or regulation on an annual basis, if the recipients have ongoing 
and continuing relationships with the agency. Annual certifications and 
representations shall be signed by responsible officials with the 
authority to ensure recipients' compliance with the pertinent 
requirements.



    Subpart 105-72.30--Post-Award Requirements/Financial and Program 
                               Management



Sec. 105-72.300  Purpose of financial and program management.

    Sections 105-72.301 through 105-72.308 prescribe standards for 
financial management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 105-72.301  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 105-

[[Page 240]]

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.''



Sec. 105-72.302  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b)(1) Recipients are to be paid in advance, provided they maintain 
or demonstrate the willingness to maintain:
    (i) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (ii) Financial management systems that meet the standards for fund 
control and accountability as established in Sec. 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

[[Page 241]]

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

[[Page 242]]

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.



Sec. 105-72.303  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
Federal awarding agency.
    (7) Conform to other provisions of this regulation, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the Federal awarding 
agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency authorizes recipients to donate buildings 
or land for construction/facilities acquisition projects or 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

[[Page 243]]

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.



Sec. 105-72.304  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one

[[Page 244]]

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 
Sec. 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 
Sec. 105-72.400 through Sec. 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.



Sec. 105-72.305  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the 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

[[Page 245]]

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 Sec. 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

[[Page 246]]

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.



Sec. 105-72.306  Non-Federal audits.

    (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.

[59 FR 47268, Sept. 15, 1994, as amended at 62 FR 45939, 45944, Aug. 29, 
1997]



Sec. 105-72.307  Allowable costs.

    For each kind of recipient, there is a set of Federal principles for 
determining allowable costs. Allowability of costs shall be determined 
in accordance with the cost principles applicable to the entity 
incurring the costs. Thus, allowability of costs incurred by State, 
local or federally-recognized Indian tribal governments is determined in 
accordance with the provisions of OMB Circular A-87, ``Cost Principles 
for State and Local Governments.'' The allowability of costs incurred by 
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.



Sec. 105-72.308  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Federal 
awarding agency.

[[Page 247]]



      Subpart 105-72.40--Post-Award Requirements/Property Standards



Sec. 105-72.400  Purpose of property standards.

    Sections 105-72.401 through 105-72.407 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government whose cost was charged to a project supported by a 
Federal award. Federal awarding agencies shall require recipients to 
observe these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Sec. 105-72.401 through Sec. 105-
72.407.



Sec. 105-72.401  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 105-72.402  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of 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.



Sec. 105-72.403  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to the Federal awarding agency. Upon completion of the award or 
when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further Federal agency 
utilization.

[[Page 248]]

    (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.



Sec. 105-72.404  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long 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

[[Page 249]]

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.

[[Page 250]]

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.



Sec. 105-72.405  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 105-72.406  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserve a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including governmentwide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) Unless waived by the Federal awarding agency, the Federal 
Government has the right to paragraph (c)(1) and (2) of this section.
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of Sec. 105-72.404(g).



Sec. 105-72.407  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

[[Page 251]]



    Subpart 105-72.50--Post-Award Requirements/Procurement Standards



Sec. 105-72.500  Purpose of procurement standards.

    Sections 105-72.501 through 105-72.508 set forth standards for use 
by recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by the Federal awarding agencies upon recipients, 
unless specifically required by Federal statute or executive order or 
approved by OMB.



Sec. 105-72.501  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. Matters concerning violation of statute are to 
be referred to such Federal, State or local authority as may have proper 
jurisdiction.



Sec. 105-72.502  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, 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.



Sec. 105-72.503  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 105-72.504  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that paragraphs 
(a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be

[[Page 252]]

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.

[[Page 253]]

    (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.



Sec. 105-72.505  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 105-72.506  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection,
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained, and
    (c) Basis for award cost or price.



Sec. 105-72.507  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 105-72.508  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency has made a determination 
that the Federal Government's interest is adequately protected. If such 
a determination has not been made, the minimum requirements shall be as 
follows.
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the

[[Page 254]]

contractor's obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the Federal awarding agency, the 
Comptroller General of the United States, or any of their duly 
authorized representatives, shall have access to any books, documents, 
papers and records of the contractor which are directly pertinent to a 
specific program for the purpose of making audits, examinations, 
excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
appendix A to this part, as applicable.



     Subpart 105-72.60--Post-Award Requirements/Reports and Records



Sec. 105-72.600  Purpose of reports and records.

    Sections 105-72.601 through 105-72.603 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 105-72.601  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 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.

[[Page 255]]

    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 105-72.602  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report. (i) Each Federal 
awarding agency shall require recipients to use the SF-269 or SF-269A to 
report the status of funds for all nonconstruction projects or programs. 
A Federal awarding agency may, however, have the option of not requiring 
the SF-269 or SF-269A when the SF-270, Request for Advance or 
Reimbursement, or SF-272, Report of Federal Cash Transactions, is 
determined to provide adequate information to meet its needs, except 
that a final SF-269 or SF-269A shall be required at the completion of 
the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the 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.

[[Page 256]]

    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 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.



Sec. 105-72.603  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
shall not impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the Federal awarding agency. The only 
exceptions are the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 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

[[Page 257]]

plans, and any similar accounting computations of the rate at which a 
particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.



 Subpart 105-72.70--Post-Award Requirements/Termination and Enforcement



Sec. 105-72.700  Purpose of termination and enforcement.

    Section 105-72.701 and Sec. 105-72.702 set forth uniform suspension, 
termination and enforcement procedures.



Sec. 105-72.701  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a)(1), (2) or (3) of this section apply.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency with the consent of the 
recipient, in which case the two parties shall agree upon the 
termination conditions, including the effective date and, in the 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 Sec. 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.



Sec. 105-72.702  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 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

[[Page 258]]

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 Sec. 105-72.203).



             Subpart 105-72.80--After-the-Award Requirements



Sec. 105-72.800  Purpose.

    Sections 105-72.801 through 105-72.803 contain closeout procedures 
and other procedures for subsequent disallowances and adjustments.



Sec. 105-72.801  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency authorizes an extension, a 
recipient shall liquidate all obligations incurred under the award not 
later than 90 calendar days after the funding period or 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 Sec. 105-72.401 through Sec. 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.



Sec. 105-72.802  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 105-72.306.
    (4) Property management requirements in Sec. 105-72.401 through 
Sec. 105-72.407.
    (5) Records retention as required in Sec. 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 Sec. 105-72.803(a), 
including those for property management

[[Page 259]]

as applicable, are considered and provisions made for continuing 
responsibilities of the recipient, as appropriate.



Sec. 105-72.803  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Federal awarding agency may reduce the debt by paragraph (a) (1), (2) or 
(3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
Chapter II, Federal Claims Collection Standards.

             Appendix A to Part 105-72--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or 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\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative

[[Page 260]]

Agreements,'' and any implementing regulations issued by the awarding 
agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (E.O.s 12549 and 12689)--No contract 
shall be made to parties listed on the General Services Administration's 
List of Parties Excluded from Federal Procurement or Nonprocurement 
Programs in accordance with E.O.s 12549 and 12689, ``Debarment and 
Suspension.'' This list contains the names of parties debarred, 
suspended, or otherwise excluded by agencies, and contractors declared 
ineligible under statutory or regulatory authority other than E.O. 
12549. Contractors with awards that exceed the small purchase threshold 
shall provide the required certification regarding its exclusion status 
and that of its principal employees.



PART 105-735--STANDARDS OF CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301.

    Source: 61 FR 56403, Nov. 1, 1996, unless otherwise noted.



Sec. 105-735.1  Cross-references to employee ethical conduct standards, financial disclosure regulations, and other regulations.

    Employees of the General Services Administration are subject to the 
executive branch-wide standards of ethical conduct at 5 CFR part 2635, 
GSA's regulations at 5 CFR part 6701 which supplement the executive 
branch-wide standards, the regulations on employee responsibilities and 
conduct at 5 CFR part 735, and the executive branch financial disclosure 
regulations contained in 5 CFR part 2634, and GSA Order ADM 7900.9A, 
which can be obtained from the GSA Office of General Counsel.

[[Page 261]]



    CHAPTER 109--DEPARTMENT OF ENERGY PROPERTY MANAGEMENT REGULATIONS




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
109-1           Introduction................................         263
109-6           Miscellaneous regulations...................         277
                       SUBCHAPTERS B-D [RESERVED]
                  SUBCHAPTER E--SUPPLY AND PROCUREMENT
109-25          General.....................................         279
109-26          Procurement sources and program.............         280
109-27          Inventory management........................         282
109-28          Storage and distribution....................         288
109-30          Federal catalog system......................         291
                         SUBCHAPTER F [RESERVED]
       SUBCHAPTER G--AVIATION, TRANSPORTATION, AND MOTOR VEHICLES
109-37

[Reserved]

109-38          Motor equipment management..................         292
109-39          Interagency fleet management systems........         300
109-40          Transportation and traffic management.......         301
                 SUBCHAPTER H--UTILIZATION AND DISPOSAL
109-42          Utilization and disposal of hazardous 
                    materials and certain categories of 
                    property................................         307
109-43          Utilization of personal property............         307
109-44          Donation of personal property...............         312
109-45          Sale, abandonment, or destruction of 
                    personal property.......................         312
109-46          Utilization and disposal of personal 
                    property pursuant to exchange/sale 
                    authority...............................         319
109-48          Utilization, donation, or disposal of 
                    abandoned and forfeited personal 
                    property................................         320
109-50          Special DOE disposal authorities............         320

[[Page 263]]





                          SUBCHAPTER A--GENERAL





PART 109-1--INTRODUCTION--Table of Contents




                   Subpart 109-1.1--Regulation System

Sec.
109-1.100-50  Scope of subpart.
109-1.100-51  Definitions and acronyms.
109-1.101  Federal Property Management Regulations System.
109-1.101-50  DOE-PMR System.
109.1.102  Federal Property Management Regulations.
109-1.102-50  DOE-PMRs.
109-1.103  FPMR temporary regulations.
109-1.103-50  DOE-PMR temporary policies and bulletins.
109-1.104  Publication and distribution of FPMR.
109-1.104-50  Publication and distribution of DOE-PMR.
109-1.106  Applicability of FPMR.
109-1.106-50  Applicability of FPMR and DOE-PMR.
109-1.107  Agency consultation regarding FPMR.
109-1.107-50  Consultation regarding DOE-PMR.
109-1.108  Agency implementation and supplementation of FPMR.
109-1.110-50  Deviation procedures.

         Subpart 109-1.50--Personal Property Management Program

109-1.5000  Scope of subpart.
109-1.5001  Policy.
109-1.5002  Personal property management program objectives.

 Subpart 109-1.51--Personal Property Management Standards and Practices

109-1.5100  Scope of subpart.
109-1.5101  Official use of personal property.
109-1.5102  Maximum use of personal property.
109-1.5103  Loan of personal property.
109-1.5104  Borrowing of personal property.
109-1.5105  Identification marking of personal property.
109-1.5106  Segregation of personal property.
109-1.5107  Physical protection of personal property.
109-1.5108  Personal property records requirements.
109-1.5108-1  Equipment.
109-1.5108-2  Sensitive items.
109-1.5108-3  Stores inventories.
109-1.5108-4  Precious metals.
109-1.5108-5  Administratively controlled items.
109-1.5109  Control of sensitive items.
109-1.5110  Physical inventories of personal property.
109-1.5111  Retirement of property.
109-1.5112  Loss, damage, or destruction of personal property in 
          possession of DOE direct operations.
109-1.5113  Loss, damage, or destruction of personal property in 
          possession of designated contractors.
109-1.5114  Use of non-Government-owned property.
109-1.5148  Personal property management reports.

 Subpart 109-1.52--Personal Property Management Program for Designated 
                               Contractors

109-1.5200  Scope of subpart.
109-1.5201  Policy.
109-1.5202  Establishment of a personal property holdings baseline.
109-1.5203  Management of subcontractor-held personal property.
109-1.5204  Review and approval of a designated contractor's personal 
          property management system.
109-1.5205  Personal property management system changes.

       Subpart 109-1.53--Management of High Risk Personal Property

109-1.5300  Scope of subpart.
109-1.5301  Applicability.
109-1.5302  Policies.
109-1.5303  Procedures.
109-1.5304  Deviations.

    Authority: Sec. 644, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254).

    Source: 63 FR 19616, Apr. 20, 1998, unless otherwise noted.



                   Subpart 109-1.1--Regulation System



Sec. 109-1.100-50  Scope of subpart.

    This subpart sets forth the Department of Energy (DOE) Property 
Management Regulations (DOE-PMR) which establish uniform DOE property 
management policies, regulations, and procedures that implement and 
supplement the Federal Property Management Regulations. Property 
management statutory authorities that are unique to the Department 
(e.g., section 161g of the Atomic Energy Act of 1954 (42 U.S.C. 2201(g)) 
and section 3155 of

[[Page 264]]

the National Defense Authorization Act for Fiscal Year 1994 (42 U.S.C. 
72741)) are not addressed in these regulations.



Sec. 109-1.100-51  Definitions and acronyms.

    (a) Definitions. As used in this chapter, the terms personal 
property and property are synonymous. In addition, the following 
definitions apply:
    Administratively controlled items means personal property controlled 
at the discretion of individual DOE offices, but for which there is no 
DOE requirement to maintain formal records.
    Automatic data processing equipment means, as used in this part and 
to the extent that such equipment is used to process export controlled 
information or unclassified controlled nuclear information, any 
equipment or interconnected system or subsystems of equipment that is 
used in the automatic acquisition, storage, manipulation, management, 
movement, control, display, switching, interchange, transmission, or 
reception of data or information.
    Designated contractors means those on-site DOE contractors to which 
the DOE-PMR is made applicable when included as a contractual 
requirement. The contractors to which these regulations may be made 
applicable include management and operating (M&O) contractors, 
environmental restoration and management contractors, and other major 
prime contractors located at DOE sites.
    Direct operations means operations conducted by DOE personnel.
    Disposal means the process of reutilizing, transferring, donating, 
selling, abandoning, destroying, or other disposition of Government-
owned personal property.
    Dual-Use List means nuclear-related material, equipment, and related 
technology as described in the International Atomic Energy Agency 
Information Circular (INFCIRC) 254 Part 2.
    Equipment means any item of personal property having a unit 
acquisition cost of $5,000 or more and having the potential for 
maintaining its integrity (i.e., not expendable due to use) as an item.
    Especially designed or prepared property means equipment and 
material designed or prepared especially for use in the nuclear fuel 
cycle and described in the Nuclear Suppliers Group Trigger List (INFCIRC 
254 Part 1).
    Export controlled information means unclassified U.S. Government 
information under DOE cognizance that, if proposed for export by the 
private sector, would require a U.S. Department of Commerce or U.S. 
Department of State validated license, or a DOE authorization for 
export, and which, if given uncontrolled release, could reasonably be 
expected to adversely affect U.S. national security or nuclear 
nonproliferation objectives.
    Export controlled property means property the export of which is 
subject to licensing by the U.S. Department of Commerce, the U.S. 
Department of State, the U.S. Nuclear Regulatory Commission, or 
authorized by the U.S. Department of Energy.
    Hazardous property means any personal property, including scrap or 
waste but excluding property involving a radiological hazard, that is 
ignitable, corrosive, reactive, or toxic because of its quantity, 
concentration, or physical, chemical, or infectious characteristics, or 
that is deemed a hazardous material, chemical substance or mixture, or 
hazardous waste under the Hazardous Material Transportation Act, the 
Resource Conservation and Recovery Act, or the Toxic Substances Control 
Act. Such property may be in solid, liquid, semi-liquid, or contained 
gas form and may cause or significantly contribute to an increase in 
mortality or illness, or pose present or potential hazard to human 
health or the environment when improperly used, treated, stored, 
transported, disposed of, or mismanaged.
    Heads of field organizations means the heads of any Departmental 
office located outside the Washington, D.C. metropolitan area. In 
addition, the Federal Energy Regulatory Commission, and the Office of 
Headquarters Procurement Operations, shall be considered a field 
organization for purposes of these regulations.
    High risk personal property means property that, because of its 
potential impact on public health and safety, the

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environment, national security interests, or proliferation concerns, 
must be controlled, and disposed of in other than the routine manner. 
The categories of high risk property are automatic data processing 
equipment, especially designed or prepared property, export controlled 
information, export controlled property, hazardous property, nuclear 
weapon components or weapon-like components, proliferation sensitive 
property, radioactive property, special nuclear material, and 
unclassified controlled nuclear information.
    Munitions list means articles, services, and related technical data 
designated as defense articles and defense services by the Arms Export 
Control Act of 1968, as amended.
    Nuclear weapon component or 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.
    Personal property means property of any kind, except for real estate 
and interests therein (such as easements and rights-of-way), and 
permanent fixtures which are Government-owned, chartered, rented, or 
leased from commercial sources by and in the custody of DOE or its 
designated contractors; source, byproduct, special nuclear materials, 
and atomic weapons as defined in section 11 of the Atomic Energy Act of 
1954 (42 U.S.C. 2014), as amended; and petroleum in the Strategic 
Petroleum Reserve and the Naval Petroleum Reserves.
    Personal property management means the development, implementation, 
and administration of policies, standards, programs, practices and 
procedures for effective and economical acquisition, receipt, storage, 
issue, use, control, physical protection, care and maintenance, 
determination of requirements, maintenance of related operating records, 
and disposal of personal property (exclusive of the property accounting 
records).
    Proliferation-sensitive property means nuclear-related or dual-use 
equipment, material, or technology as described in the Nuclear Suppliers 
Group Trigger List and Dual-Use List, or equipment, material or 
technology used in the research, design, development, testing, or 
production of nuclear or other weapons.
    Radioactive property means any item or material that is contaminated 
with radioactivity and which emits ionizing radiation in excess of 
background radiation as measured by appropriate instrumentation.
    Sensitive items means those items of personal property which are 
considered to be susceptible to being appropriated for personal use or 
which can be readily converted to cash, for example: Firearms, portable 
photographic equipment, binoculars, portable tape recorders, portable 
calculators, portable power tools, portable computers, and portable 
communications equipment.
    Special nuclear material means plutonium, uranium 233, uranium 
enriched in the isotope 233 or 235, any other materials which the 
Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954, 
as amended, determines to be special nuclear material, or any material 
artificially enriched by any of the foregoing, but does not include 
source material.
    Trigger List means nuclear material, equipment, and related 
technology as described in the INFCIRC 254, Part 1.
    Unclassified controlled nuclear information means U.S. Government 
information pertaining to atomic energy defense activities as defined in 
section 148 of the Atomic Energy Act. Such information can relate to 
aspects of nuclear weapons design, development, testing, physical 
security, production, or utilization facilities.
    (b) Acronyms. As used in this chapter, the following acronyms apply:

ADPE: Automatic Data Processing Equipment
CFR: Code of Federal Regulations
CSC: Customer Supply Center
DEAR: Department of Energy Acquisition Regulation
DOD: Department of Defense
DOE: Department of Energy
DOE-PMR: Department of Energy Property Management Regulations
DPMO: Departmental Property Management Officer
ECCN: Export Control Classification Number
ECI: Export Controlled Information
EHFFP: Equipment Held For Future Projects
EOQ: Economic Order Quantity

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ERLE: Energy-Related Laboratory Equipment
FAR: Federal Acquisition Regulation
FPMR: Federal Property Management Regulations
FSC: Federal Supply Classification
FSCG: Federal Supply Classification Group
GAO: General Accounting Office
GSA: General Services Administration
GVWR: Gross Vehicle Weight Rating
INFCIRC: International Atomic Energy Agency Information Circular
IFMS: Interagency Fleet Management System
M&O: Management and Operating
MCTL: Military Critical Technologies List
OCRM: Office of Contract and Resource Management
OPMO: Organizational Property Management Officer
OPSEC: Operations Security
PPL: Personal Property Letter
REAPS: Reportable Excess Automated Property System
SNM: Special Nuclear Material
UCNI: Unclassified Controlled Nuclear Information
U.S.C.: United States Code



Sec. 109-1.101  Federal Property Management Regulations System.



Sec. 109-1.101-50  DOE-PMR System.

    The DOE-PMR system described in this subpart is established to 
provide uniform personal property management policies, standards, and 
practices within the Department.



Sec. 109-1.102  Federal Property Management Regulations.



Sec. 109-1.102-50  DOE-PMRs.

    The DOE-PMRs (41 CFR Ch. 109) implements and supplements the FPMR 
(41 CFR Ch. 101) issued by the General Services Administration (GSA), 
Public Laws, Executive Orders, Office of Management and Budget 
directives, and other agency issuances affecting the Department's 
personal property management program.



Sec. 109-1.103  FPMR temporary regulations.



Sec. 109-1.103-50  DOE-PMR temporary policies and bulletins

    (a) Subject to applicable procedural requirements in 41 U.S.C. 418b, 
42 U.S.C 7191 and 5 U.S.C 553, Personal Property Letters are authorized 
for publication of temporary policies that should not be codified in the 
Code of Federal Regulations (CFR).
    (b) DOE-PMR Bulletins are used to disseminate information concerning 
personal property management matters not affecting policy or to clarify 
instructions in actions required by the FPMR or DOE-PMR.



Sec. 109-1.104  Publication and distribution of FPMR.



Sec. 109-1.104-50  Publication and distribution of DOE-PMR.

    The DOE-PMR will be published in the Federal Register and will 
appear in the CFR as Chapter 109 of Title 41, Public Contracts and 
Property Management. Loose leaf publications of the DOE-PMR will be 
distributed to DOE offices.



Sec. 109-1.106  Applicability of FPMR.



Sec. 109-1.106-50  Applicability of FPMR and DOE-PMR.

    (a) The FPMR and DOE-PMR apply to all direct operations.
    (b) The DOE-PMR does not apply to facilities and activities 
conducted under Executive Order 12344 and Pub. L. 98-525.
    (c) Unless otherwise provided in the appropriate part or subpart, 
the FPMR and DOE-PMR apply to designated contractors.
    (d) The Procurement Executive or head of a contracting activity may 
designate contractors other than designated contractors to which the 
FPMR and DOE-PMR apply.
    (e) The FPMR and DOE-PMR shall be used by contracting officers in 
the administration of applicable contracts, and in the review, approval, 
or appraisal of such contractor operations.
    (f) Regulations for the management of Government property in the 
possession of other DOE contractors are contained in the Federal 
Acquisition Regulation (FAR), 48 CFR part 45, and in the DOE Acquisition 
Regulation (DEAR), 48 CFR part 945.
    (g) Regulations for the management of personal property held by 
financial assistance recipients are contained in the DOE Financial 
Assistance Rules (10 CFR part 600) and DOE Order 534.1, Accounting.

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Sec. 109-1.107  Agency consultation regarding FPMR.



Sec. 109-1.107-50  Consultation regarding DOE-PMR.

    The DOE-PMR shall be fully coordinated with all Departmental 
elements substantively concerned with the subject matter.



Sec. 109-1.108  Agency implementation and supplementation of FPMR.

    (a) The DOE-PMR includes basic and significant Departmental personal 
property management policies and standards which implement, supplement, 
or deviate from the FPMR. In the absence of any DOE-PMR issuance, the 
basic FPMR material shall govern.
    (b) The DOE-PMR shall be consistent with the FPMR and shall not 
duplicate or paraphrase the FPMR material.
    (c) Implementing procedures, instructions, and guides which are 
necessary to clarify or to implement the DOE-PMR may be issued by 
Headquarters or field organizations, provided that the implementing 
procedures, instructions and guides:
    (1) Are consistent with the policies and procedures contained in 
this regulation;
    (2) To the extent practicable, follow the format, arrangement, and 
numbering system of this regulation; and
    (3) Contain no material which duplicates, paraphrases, or is 
inconsistent with the contents of this regulation.



Sec. 109-1.110-50  Deviation procedures.

    (a) Each request for deviation shall contain the following:
    (1) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the DOE-PMR;
    (2) The reason why the deviation is considered necessary or would be 
in the best interest of the Government;
    (3) If applicable, the name of the contractor and identification of 
the contractor affected;
    (4) A statement as to whether the deviation has been requested 
previously and, if so, circumstances of the previous request;
    (5) A description of the intended effect of the deviation;
    (6) A statement of the period of time for which the deviation is 
needed; and
    (7) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.
    (b)(1) Requests for deviations from applicable portions of the FPMR 
and DOE-PMR (except aviation related portions) shall be forwarded with 
supporting documentation by the Organizational Property Management 
Officer (OPMO) to the Departmental Property Management Officer (DPMO).
    (2) Requests for deviations from aviation related portions of the 
FPMR and DOE-PMR concerning aviation operations shall be forwarded by 
the OPMO or on-site DOE Aviation Management Officer with supporting 
documentation to the DOE Senior Aviation Management Official.
    (c) The Deputy Assistant Secretary for Procurement and Assistance 
Management is authorized to grant deviations to the DOE-PMR.
    (d) Requests for deviations from the FPMR will be coordinated with 
GSA by the DPMO.



         Subpart 109-1.50--Personal Property Management Program



Sec. 109-1.5000  Scope of subpart.

    This subpart supplements the FPMR, states DOE personal property 
management policy and program objectives, and prescribes authorities and 
responsibilities for the conduct of an efficient personal property 
management program in DOE.



Sec. 109-1.5001  Policy.

    It is DOE policy that a program for the management of personal 
property shall be established and maintained to meet program needs 
efficiently and in accordance with applicable Federal statutes and 
regulations.



Sec. 109-1.5002  Personal property management program objectives.

    The objectives of the DOE personal property management program are 
to provide:
    (a) A system for efficiently managing personal property in the 
custody or possession of DOE organizations and designated contractors; 
and

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    (b) Uniform principles, policies, and standards for efficient 
management of personal property that are sufficiently broad in scope and 
flexible in nature to facilitate adaptation to local needs and various 
kinds of operations.



 Subpart 109-1.51--Personal Property Management Standards and Practices



Sec. 109-1.5100  Scope of subpart.

    This subpart provides guidance on DOE standards and practices to be 
applied in the management of personal property. The standards and 
practices that apply to equipment shall be based on the unit acquisition 
cost threshold specified in the definition of equipment contained in 
section Sec. 109-1.100-51 of this part. No other acquisition cost 
threshold shall apply.



Sec. 109-1.5101  Official use of personal property.

    Personal property shall be used only in the performance of official 
work of the United States Government, except:
    (a) In emergencies threatening loss of life or property as 
authorized by law;
    (b) As otherwise authorized by law and approved by the Director, 
Office of Administrative Services; heads of field organizations for 
their respective organizations; or a contracting officer for contractor-
held property.



Sec. 109-1.5102  Maximum use of personal property.

    Personal property management practices shall assure the best 
possible use of personal property. Supplies and equipment shall be 
generally limited to those items essential for carrying out the programs 
of DOE efficiently.



Sec. 109-1.5103  Loan of personal property.

    (a) Personal property which is not excess and would otherwise be out 
of service for temporary periods may be loaned to other DOE offices and 
contractors, other Federal agencies, and to others for official 
purposes. The loan request shall be in writing, stating the purpose of 
the loan and period of time required. The loan shall be executed on DOE 
Form 4420.2, Personal Property Loan Agreement or computer generated 
equivalent when approved in writing by the OPMO or on-site DOE property 
administrator. When approved, a memorandum transmitting the loan 
agreement shall be prepared identifying the loan period, delivery time, 
method of payment and transportation, and point of delivery and return, 
to ensure proper control and protect DOE's interest. The loan period 
shall not exceed one year, but may be renewed in one year increments. 
Second renewals of loan agreements shall be reviewed and justified at a 
level of management at least two levels above that of the individual 
making the determination to loan the property. Third renewals shall be 
approved by the head of the field organization or designee.
    (b) Requests for loans to foreign Governments and other foreign 
organizations shall be submitted to the Deputy Assistant Secretary for 
International Energy Policy, Trade and Investment for approval, with a 
copy to the cognizant Headquarters program office.



Sec. 109-1.5104  Borrowing of personal property.

    (a) DOE organizations and designated contractors are encouraged to 
borrow personal property within DOE to further DOE programs. Property 
classified as Equipment Held For Future Projects (EHFFP) or as In 
Standby should be reviewed by those receiving availability inquiries for 
short-term use (one year or less). Borrowing of Government personal 
property from other Federal agencies is also encouraged when required 
for short periods of time. Such transactions shall be covered by written 
agreements which include all terms of the transaction.
    (b) In determining whether it is practical and economical to borrow 
personal property, consideration shall be given to suitability, 
condition, value, extent and nature of use, extent of availability, 
portability, cost of transportation, and other similar factors.
    (c) Adequate records and controls shall be established and 
maintained for borrowed property to ensure its proper control and prompt 
return to the lender.

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Sec. 109-1.5105  Identification marking of personal property.

    (a) Personal property shall be marked ``U.S. Government property'' 
(if marking space is limited, property may be marked ``U.S. DOE'') 
subject to the criteria below. The markings shall be securely affixed to 
the property, legible, and conspicuous. Examples of appropriate marking 
media are bar code labels, decals, and stamping.
    (1) Equipment and sensitive items shall be marked ``U.S. Government 
property'' and numbered for control purposes.
    (2) Administratively controlled property and other personal property 
susceptible to unauthorized personal use should be marked ``U.S. 
Government property'' and numbered for control purposes.
    (b) Personal property which by its nature cannot be marked, such as 
stores items, metal stock, etc., is exempted from this requirement.
    (c) To the extent practicable and economical, markings shall be 
removed prior to disposal outside of DOE, or, if removal is impractical, 
additional permanent markings must be added to indicate such disposal.



Sec. 109-1.5106  Segregation of personal property.

    Ordinarily, contractor-owned personal property shall be segregated 
from Government personal property. Commingling of Government and 
contractor-owned personal property may be allowed only when:
    (a) The segregation of the property would materially hinder the 
progress of the work (i.e., segregation is not feasible for reasons such 
as small quantities, lack of space, or increased costs); and
    (b) Control procedures are adequate (i.e., the Government property 
is specifically marked or otherwise identified as Government property).



Sec. 109-1.5107  Physical protection of personal property.

    Controls such as property pass systems, memorandum records, regular 
or intermittent gate checks, and/or perimeter fencing shall be 
established as appropriate to prevent loss, theft, or unauthorized 
removal of property from the premises on which such personal property is 
located.



Sec. 109-1.5108  Personal property records requirements.

    The contractor's property control records shall provide the 
following basic information for every accountable item of Government 
personal property in the contractor's possession and any other data 
elements required by specific contract provisions:
    (a) Contract number or equivalent code designation.
    (b) Asset type.
    (c) Description of item (name, serial number, national stock number 
(if available)).
    (d) Property control number (Government ownership identity).
    (e) Unit acquisition cost (including delivery and installation cost, 
when appropriate, and unit of measure).
    (f) Acquisition document reference and date.
    (g) Manufacturer's name, model and serial number.
    (h) Quantity received, fabricated, issued or on hand.
    (i) Location (physical area)
    (j) Custodian name and organization code.
    (k) Use status (active, storage, excess, etc.)
    (l) High risk designation.
    (m) Disposition document reference and date.



Sec. 109-1.5108-1  Equipment.

    An individual property record will be developed and maintained for 
each item of equipment.



Sec. 109-1.5108-2  Sensitive items.

    Individual item records will be maintained for each sensitive item. 
Minimum dollar value thresholds for controlling sensitive items, if 
used, will be determined by the OPMO for each DOE organization in 
consultation with appropriate management officials. This threshold may 
be applied organization-wide or by individual contractors or location. 
Identification of types of property meeting the DOE-PMR definition of 
sensitive property should be the primary determinant of sensitive 
category, with dollar thresholds, if any,

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considered as a guideline only. Sensitive items which are also equipment 
will be controlled as both sensitive items and equipment.



Sec. 109-1.5108-3  Stores inventories.

    Perpetual inventory records are to be maintained for stores 
inventory items.



Sec. 109-1.5108-4  Precious metals.

    Perpetual inventory records are to be maintained for precious 
metals.



Sec. 109-1.5108-5  Administratively controlled items.

    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.



Sec. 109-1.5109  Control of sensitive items.

    (a) A list of types of personal property considered to be sensitive 
shall be developed and maintained by each DOE activity/site, taking into 
consideration value, costs of administration, need for control, and 
other factors that management determines should apply.
    (b) Items of equipment which are also designated as sensitive items 
will be controlled as sensitive items and as equipment.
    (c) Written procedures shall be established for control of sensitive 
items and shall address:
    (1) Approval of purchase requisitions or issue documents at an 
appropriate supervisory level;
    (2) Establishment of controls in the central receiving and 
warehousing department, such as extraordinary physical protection, 
handling, and maintenance of a current listing of sensitive items;
    (3) Establishment and maintenance of appropriate records;
    (4) Requirement for tagging and identification;
    (5) Use of memorandum receipts or custody documents at time of 
assignment or change in custody;
    (6) Establishment of custodial responsibilities describing:
    (i) Need for extraordinary physical protection;
    (ii) Requirement for efficient physical and administrative control 
of sensitive items assigned for general use within an organizational 
unit as appropriate to the type of property and the circumstances;
    (iii) Requirement for prompt reporting and investigation of loss, 
damage or destruction; and
    (iv) Requirement for promptly reporting changes in custody.
    (7) Requirement for periodic physical inventories (see Sec. 109-
1.5110 of this part).
    (8) Requirement for an employee transfer or termination check-out 
procedure and examination and adjustment of records;
    (9) Reminder of prohibition of use for other than official purposes 
and penalties for misuse;
    (10) A clear statement of the extent of responsibility for financial 
accountability depending upon contractor policy; and
    (11) Other procedures which have demonstrated efficient physical and 
administrative control over sensitive items.



Sec. 109-1.5110  Physical inventories of personal property.

    (a) Physical inventories of those categories of personal property as 
specified in paragraph (f) of this section shall be conducted at all DOE 
and designated contractor locations.
    (b) Physical inventories shall be performed by the use of personnel 
other than custodians of the property. Where staffing restraints or 
other considerations apply, the inventory may be performed by the 
custodian with verification by a second party.

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    (c) Detailed procedures for the taking of physical inventories shall 
be developed for each DOE office and designated contractor. The OPMO 
shall review and approve the DOE office and contractor procedures.
    (d) The conduct of a physical inventory will be observed, or follow-
on audits made, by independent representatives, e.g., finance, audit, or 
property personnel, to the extent deemed necessary to assure that 
approved procedures are being followed and results are accurate. These 
observations or audits shall be documented and the documentation 
retained in the inventory record file.
    (e) Procedures that are limited to a check-off of a listing of 
recorded property without actual verification of the location and 
existence of such property do not meet the requirements of a physical 
inventory.
    (f) The frequency of physical inventories of personal property shall 
be as follows:
    (1) Equipment--biennial.
    (2) Sensitive items--annual (see paragraph 109-1.5110(l) of this 
section).
    (3) Stores inventories--annual.
    (4) Precious metals--annual.
    (5) Administratively controlled items--There is no formal Department 
requirement for the performance of physical inventories of this 
property. However, OPMOs should determine such requirements based on 
management needs.
    (g) Physical inventories shall be performed at intervals more 
frequently than required when experience at any given location or with 
any given item or items indicates that this action is necessary for 
effective property accounting, utilization, or control.
    (h) Physical inventories of equipment may be conducted by the 
``inventory by exception'' method. The system and procedures for taking 
physical inventories by this method must be fully documented and 
approved in writing by the OPMO.
    (i) The results of physical inventories shall be reconciled with the 
property records, and with applicable financial control accounts.
    (j) The results of physical inventories shall be reported to the 
OPMO within 30 days after the reconciliation required above.
    (k) Physical inventories of equipment and stores inventories may be 
conducted using statistical sampling methods in lieu of the normal wall-
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.
    (l) Physical inventories of sensitive items (excluding arms, 
ammunition, and military property) having an acquisition cost of $2,000 
or less may also be conducted using statistical sampling methods. 
However if statistical sampling methods are used, a wall-to-wall 
inventory is required no less frequently than every three years and at 
contract completion (unless there is a follow-on contract with the same 
contractor).



Sec. 109-1.5111  Retirement of property.

    When Government property is worn out, lost, stolen, destroyed, 
abandoned, or damaged beyond economical repair, it shall be listed on a 
retirement work order. A full explanation shall be supported by an 
investigation, if necessary, as to the date and circumstances 
surrounding the wear, loss, theft, destruction, abandonment, or damage. 
The retirement work order shall be signed by the responsible official 
initiating the report and reviewed and approved by an official at least 
one supervisory level above the official initiating the report.



Sec. 109-1.5112  Loss, damage, or destruction of personal property in possession of DOE direct operations.

    DOE offices shall establish procedures to provide for the reporting, 
documentation, and investigation of instances of loss, damage, or 
destruction of personal property including:
    (a) Notification to appropriate DOE organizations and law 
enforcement offices;
    (b) Determination of cause or origin;
    (c) Liability and responsibility for repair or replacement; and

[[Page 272]]

    (d) Actions taken to prevent further loss, damage, or destruction, 
and to prevent repetition of similar incidents.



Sec. 109-1.5113  Loss, damage, or destruction of personal property in possession of designated contractors.

    (a) Designated contractors shall report any loss, damage, or 
destruction of personal property in its possession or control, including 
property in the possession or control of subcontractors, to the property 
administrator as soon as it becomes known.
    (b) When physical inventories, consumption analyses, or other 
actions disclose consumption of property considered unreasonable by the 
property administrator; or loss, damage, or destruction of personal 
property not previously reported by the contractor, the property 
adm