2010-17176. Federal Management Regulation; Sale of Personal Property

AGENCY:

Office of Governmentwide Policy, General Services Administration (GSA).

ACTION:

Proposed rule.

SUMMARY:

The General Services Administration is amending the Federal Management Regulation (FMR) by amending the provisions for the sale of personal property through Federal Asset Sales (FAS) Sales Centers.

DATES:

Interested parties should submit comments in writing on or before August 13, 2010 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FMR case 2010-102-3 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Agency Web Site: http://www.gsa.gov/​fmr. Click on FMR Proposed Rules, and the FMR case number to submit comments.
• E-mail: [e-mail]. Include FMR case 2010-102-3 in the subject line of the message.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

Instructions: Please submit comments only and cite FMR case 2010-102-3 in all correspondence related to this case. All comments received will be posted without change to http://www.gsa.gov/​fmr,, including any personal information provided. Click on FMR Public Comments.

FOR FURTHER INFORMATION CONTACT:

The Regulatory Secretariat, Room 4041, GS Building, Washington, DC 20405, at [phone] for information pertaining to status or publication schedules. For clarification of content, contact Mr. Robert Holcombe, Office of Governmentwide Policy, Personal Property Management Policy, at [phone], or e-mail at [e-mail]. Please cite FMR case 2010-102-3.

SUPPLEMENTARY INFORMATION:

A. Background

This proposed amendment to part 102-38 of the Federal Management Regulation (41 CFR part 102-38) updates policy pursuant to the transfer of the oversight of the Federal Asset Sales program from GSA's Office of Governmentwide Policy to GSA's Federal Acquisition Service. Due to this transfer, and the incorporation of these practices into the way the Government sells its property, references to the Executive Steering Committee, Planning Office and the eFAS acronym are proposed to be removed.

This proposed amendment also—

1. Adds the definition for contractor inventory and revises the definitions for Federal Asset Sales and Sales Center (section 102-38.35);

2. Clarifies that contractor inventory may be disposed of by the contractor when required by the Federal contract (section 102-38.40);

3. Clarifies the reporting requirement for negotiated sales (section 102-38.115(a));

4. Removes reference to Standard Form (SF) 97A, as this form is no longer available from GSA. (Section 102.38.285.);

5. Clarifies the policy on antitrust requirements (section 102-38.325); and

6. Makes minor edits, updates organizational designations, and makes non-substantive changes to improve the readability and ease of use of this policy.

B. Executive Order 12866

It has been determined that this proposed rule is not a significant regulatory action for the purposes of Executive Order 12866.

C. Regulatory Flexibility Act

This proposed rule is not required to be published in the Federal Register for comment. Therefore, the Regulatory Flexibility Act does not apply. However, this proposed rule is being published to provide transparency in the promulgation of Federal policies.

D. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

E. Small Business Regulatory Enforcement Fairness Act

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

List of Subjects in 41 CFR Part 102-38

• Government property management
• Surplus Government property

Dated: May 17, 2010.

Kathleen M. Turco,

Associate Administrator, Office of Governmentwide Policy.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-38 as set forth below:

PART 102-38—SALE OF PERSONAL PROPERTY

1. The authority citation for part 102-38 continues to read as follows:

Authority: 40 U.S.C. 545 and 40 U.S.C. 121(c).

2. Amend § 102-38.15 by designating the existing paragraph as paragraph (a) and adding a new paragraph (b) to read as follows:

§ 102-38.15

Who must comply with these sales provisions?

* * * * *

(b) Sales of contractor inventory are not required to follow policy regarding the Federal Asset Sales program contained in Subpart H of this part. However, such sales must follow the policy contained in Subparts A through G of this part in addition to the terms of the Federal contract.

§ 102-38.30

[Amended]

3. Amend § 102-38.30 in the second sentence by removing “(eFAS)”, “initiative”, and “milestones”.

4. Amend § 102-38.35 by—

a. Adding the definition for “Contractor Inventory”;

b. Removing the definition for “Federal Asset Sales (eFAS)”;

c. Adding the definition for “Federal Asset Sales”;

d. Removing the definition for “Federal Asset Sales Planning Office (eFAS Planning Office)”;

e. Removing the definition for “Migration Plan”; and

f. Revising the definition for “Sales Center (SC)”.

The added and revised definitions read as follows:

§ 102-38.35

What definitions apply to this part?

* * * * *

Contractor Inventory means—

(1) Any property acquired by and in the possession of a contractor or subcontractor under a contract for which title is vested in the Government and which exceeds the amounts needed to complete full performance under the entire contract;

(2) Any property that the Government is obligated or has the option to take over under any type of contract, e.g., as a result either of any changes in the specifications or plans thereunder or of the termination of the contract (or subcontract thereunder), before completion of the work, for the convenience or at the option of the Government; and

(3) Government-furnished property that exceeds the amounts needed to complete full performance under the entire contract.

* * * * *

Federal Asset Sales refers to the program which seeks to improve the way the Federal Government manages and sells its real and personal property assets. Under this program, only an agency designated as a Sales Center (SC) may sell Federal personal property, unless a waiver has been granted in accordance with § 102-38.360.

* * * * *

Sales Center (SC) means an agency that has been nominated, designated, and approved by GSA's Personal Property Management Policy Division (MTA) as an official sales solution for Federal property. The criteria for becoming an SC, the selection process, and the ongoing SC requirements for posting property for sale to the Federal Asset Sales portal and reporting sales activity and performance data were established in collaboration with agency working groups, and may be obtained from GSA, Personal Property Management Policy Division (MTA), 1800 F Street, NW., Suite 1221, Washington, DC 20405. SCs may utilize (and should consider) private sector entities as well as Government activities and are expected to provide exemplary asset management solutions in one or more of the following areas: Online sales; off-line sales; and sales-related value added services. SCs will enter into agreements with holding agencies to sell property belonging to these holding agencies. A holding agency may employ the services of multiple SCs to maximize efficiencies.

* * * * *

5. Revise § 102-38.40 to read as follows:

§ 102-38.40

Who may sell personal property?

(a) An executive agency may sell personal property (including on behalf of another agency when so requested) only if—

(1) The agency is a designated SC; or

(2) The agency has received a waiver from GSA's Personal Property Management Policy Division.

(b) A contractor selling contractor inventory under terms of a Federal contract.

(c) SCs or agencies selling under the authority of a waiver may elect to engage contractor support in the sales process.

(d) Only a duly authorized agency official may execute the sale award documents and bind the United States.

§ 102-38.50

[Amended]

6. Amend § 102-38.50, paragraph (b)—

a. In the first sentence by removing “Property Management Division (FBP), 1800 F Street, NW., Washington, DC 20406” and adding “Office of Personal Property Management (QSC), 2200 Crystal Drive, Suite 706, Arlington, VA 22202” in its place; and

b. In the third sentence by removing “MTP” and adding “(MTA)” in its place; and adding “, Suite 1221,” after “1800 F Street, NW.”.

§ 102-38.115

[Amended]

7. Amend § 102-38.115—

a. In paragraph (a) by removing “the General Services Administration (GSA)” and adding “your agency” in its place; and

b. In paragraph (b) by—

1. Removing “(MTP)” and adding “(MTA)” in its place;

2. Adding “Suite 1221,” after “1800 F Street, NW.”; and

3. Removing “or manually (see § 102.38-330)” and adding “to https://GSA.INL.gov/​Property” in its place.

8. Amend § 102-38.130 by adding a second sentence to read as follows:

§ 102-38.130

Must we publicly advertise sales of Federal personal property?

* * * Listing of available items for sale via internet (online) auctions for the general public constitutes “public notice.”

§ 102.38-175

[Amended]

9. Amend § 102.38-175 by—

a. Removing the phrase “through subscription from the U.S. Government Printing Office, or”;

b. Removing the phrase “on the Internet”; and

c. Removing “http//epls.arnet.gov” and adding “https://www.epls.gov” in its place.

10. Amend § 102.38-285 by revising paragraph (b) to read as follows:

§ 102.38-285

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

* * * * *

(b) For sales of vehicles, you must issue to the purchaser a Standard Form (SF) 97, the United States Government Certificate to Obtain Title to a Vehicle, as evidence of transfer of title. For information on how to obtain this form, see § 102-2.135 of this chapter.

§ 102.38-295

[Amended]

11. Amend § 102.38-295 by removing from paragraph (a) “(including your share of the Governmentwide costs to support the eFAS Internet portal and Governmentwide reporting requirements)”.

12. Revise § 102-38.325 to read as follows:

§ 102-38.325

What are the requirements pertaining to antitrust laws?

(a) When the sale of personal property has an estimated fair market value of $3 million or more, or the sale involves a patent, process, technique, or invention, you must post a notice in the sales offering advising potential buyers of the applicable antitrust laws contained in 40 U.S.C. 559, whereby the Attorney General of the Department of Justice must review the proposed sale and determine, prior to the finalization of award, whether the disposal to a private interest would tend to create or maintain a situation inconsistent with antitrust laws.

(b) When the sale closes, you will:

(1) Notify the winning bidder advising them of their high bid and that you are awaiting clearance from the Attorney General before final award.

(2) Notify the Attorney General by providing the winning bid information, listed below, for his or her review and concurrence on sale.

(i) Item name;

(ii) Location of property;

(iii) Method of sale;

(iv) Location of sale, if different than location of property;

(v) Date and time of sale close;

(vi) Appraisal value;

(vii) Reserve amount, if different than appraised value;

(viii) Reference to the Sale Terms and Conditions; and

(ix) Listing of bidders, addresses and telephone numbers, as well as winning bidder's bid information.

(c) Once you are notified by the Attorney General, you will—

(1) Notify the high bidder via contract award if the Attorney General determines that the sale does not violate any antitrust laws; or

(2) Notify the high bidder and cancel potential award if the Attorney General determines that the sale violates any antitrust laws.

13. Amend § 102-38.330 introductory paragraph by removing “(MTP)” and adding “(MTA)” in its place, and adding paragraph (c) to read as follows:

§ 102-38.330

Are there any reports that we must submit to the General Services Administration?

* * * * *

(c) Beginning with FY 2010 reports, agencies will be required to report this information using the automated tool at https://gsa.inl.gov/​property.

14. Revise § 102-38.335 to read as follows:

§ 102-38.335

Is there any additional personal property sales information that we must submit to the General Services Administration?

Yes, all SCs, agencies selling property under a Federal Asset Sales program waiver, and agencies selling property under §§ 102-38.365 and 102-38.370 must report quarterly sales performance measures to the GSA Electronic Federal Asset Sales reporting tool at https://gsa.inl.gov/​efas. In addition, GSA may require additional sales data and information on an ad-hoc basis.

15. Revise § 102-38.360 to read as follows:

§ 102-38.360

What must an executive agency do to implement the Federal Asset Sales program?

(a) Unless a waiver has been granted, an executive agency must sell its personal property assets through an agency designated by GSA as an SC. To select a sales solution, an executive agency must review the effectiveness of all sales solutions, and compare them to the effectiveness (e.g., cost, level of service, and value added services) of the SCs. Agencies should give full consideration to sales solutions utilizing private sector entities, including small businesses, that are more effective than the solutions provided by any approved SC. If the agency decides that there are more effective sales solutions than those offered by the SCs, the agency must request a waiver. Waivers will be approved upon presentation of a business case showing that complying with the prescribed requirements is either impracticable or inefficient. Waiver approval will be coordinated with GSA's Office of Travel, Transportation, and Asset Management. Contact the Personal Property Management Policy Division (MTA) (see address at § 102-38.115(b)) to obtain these procedures and forms.

(b) An approved waiver only relieves the agency of the requirements specified in the waiver request and its approval. Waiver to the Federal Asset Sales program policies will not be permanent. See the definition of a “Sales Center” at § 102-38.35 for an overview of how agency sales solutions become SCs.

(c) An agency which receives a waiver from the Federal Asset Sales process must still comply with Subparts A through G of this part as if it were an SC.

(d) An executive agency must comply with all Federal Asset Sales program processes promulgated by GSA, including those regarding the reporting of pre- and post-sales data.

§ 102-38.370

[Amended]

16. Amend § 102-38.370—

a. In the heading by adding “selected” after “its”; and

b. In the last sentence by removing “in accordance with eFAS ESC-approved format and content.” and adding “using the reporting tool specified in § 102-38.335.” in its place.