DONATION OF SURPLUS PERSONAL PROPERTY

• Citation: 41 CFR Part 102-37
• Sections: 90

§ 102-37.5 Scope.

This part covers the donation of surplus Federal personal property located within a State, including foreign excess personal property returned to a State for handling as surplus property. You must comply with this part if you are a holding agency or a recipient of Federal surplus personal property approved by the General Services Administration (GSA) for donation. “You” means the holding agency in subpart C of this part. “You” means a State Agency for Surplus Property (SASP) in subparts D and E of this part, unless otherwise specified.

§ 102-37.10 Surplus property available for donation.

All surplus property (including property held by working capital funds established under 10 U.S.C. 2208 or in similar funds) is available for donation to eligible recipients, except for property in the following categories:

(a) Agricultural commodities, food, and cotton or woolen goods determined from time to time by the Secretary of Agriculture to be commodities requiring special handling with respect to price support or stabilization.

(b) Property acquired with trust funds ( e.g., Social Security Trust Funds).

(c) Nonappropriated fund property.

(d) Naval vessels of the following categories: Battleships, cruisers, aircraft carriers, destroyers, and submarines.

(e) Vessels of 1500 gross tons or more which the Maritime Administration determines to be merchant vessels or capable of conversion to merchant use.

(f) Records of the Federal Government.

(g) Property that requires reimbursement upon transfer (such as abandoned or other unclaimed property that is found on premises owned or leased by the Government).

(h) Controlled substances.

§ 102-37.15 Donation screening timeframe.

Authorized entities may screen property concurrently with Federal agencies. See § 102-36.60 of this subchapter.

§ 102-37.20 Requesting surplus property for donation.

(a) Donees should submit their requests for property directly to the appropriate SASP.

(b) SASPs and public airports should submit their requests to GSA. Requests must be submitted on Standard Form (SF) 123. The Federal Aviation Administration (FAA) must approve public airport transfer requests. GSA may ask SASPs or public airports to submit any additional information required to support and justify transfer of the property.

(c) The American National Red Cross should submit requests to GSA when obtaining property under the authority of 40 U.S.C. 551.

(d) Public bodies, when seeking to acquire property that is being abandoned or destroyed, should follow rules and procedures established by the donor agency.

§ 102-37.25 Transportation and other costs.

The transferee is responsible for any packing, shipping, or transportation charges associated with the transfer of surplus property for donation. Those costs may be passed on to donees that receive the property.

§ 102-37.30 Property removal timeframe.

The transferee or transferee's agent must remove property from the holding agency premises within 15 calendar days after being notified that the property is available for pickup, unless otherwise coordinated with the holding agency. The transferee must notify GSA if it no longer needs the property.

§ 102-37.35 GSA's responsibilities.

(a) Determines when property is surplus to the needs of the Government;

(b) Allocates and transfers surplus property on a fair and equitable basis to SASPs for further distribution to eligible donees;

(c) Oversees the care and handling of surplus property while it is in the custody of a SASP;

(d) Approves all transfers of surplus property to public airports, pursuant to the appropriate determinations made by the FAA (see subpart F of this part);

(e) Donates to the American National Red Cross property (generally blood plasma and related medical materials) originally provided by the Red Cross to a Federal agency, but that has subsequently been determined surplus to Federal needs;

(f) Approves, after consultation with the holding agency, foreign excess personal property to be returned to the United States (U.S.) for donation purposes;

(g) Imposes appropriate conditions on the donation of surplus property having characteristics that require special handling or use limitations (see § 102-37.350); and

(h) Keeps track of and reports on Federal donation programs.

§ 102-37.40 Competing transfer requests.

In case of requests from two or more SASPs, GSA will use the allocation factors in § 102-37.45. When competing requests are received from public airports and SASPs, GSA will transfer property fairly and equitably, based on such factors as need, proposed use, and interest of the holding agency in having the property donated to a specific public airport.

§ 102-37.45 Allocation factors.

(a) Extraordinary needs caused by disasters or emergency situations.

(b) Requests from the Department of Defense (DoD) for DoD-generated property to be allocated through a SASP for donation to a specific service educational activity (SEA).

(c) Need and usability of property. GSA will also give special consideration to requests transmitted through the SASPs by donees for specific items. Requests for property to be used “as is” will be given preference over cannibalization requests.

(d) Whether a SASP has already received similar property in the past, and how much.

(e) Past performance of a SASP in effecting timely pickup or removal of property approved for transfer and making prompt distribution of property to eligible donees.

(f) The property's condition and its original acquisition cost.

(g) Relative neediness of each State based on the State's population and per capita income.

§ 102-37.50 Holding agency responsibilities.

(a) Advise GSA if you have a donee in mind for foreign gift items or airport property;

(b) Cooperate with all entities authorized to participate in the donation program and their authorized representatives in locating, screening, and inspecting property for possible donation;

(c) Set aside or hold surplus property from further disposal upon notification of a pending transfer for donation. If GSA does not notify you of a pending transfer within 5 calendar days following the surplus release date, you may proceed with the sale or other authorized disposal of the property;

(d) Upon receipt of a GSA-approved transfer document, promptly ship or release property to the transferee (or the transferee's designated agent) in accordance with pickup or shipping instructions on the transfer document;

(e) Notify GSA if surplus property to be picked up is not removed within 15 calendar days after you notify the transferee (or its agent) of its availability. GSA will advise you of further disposal instructions; and

(f) Perform and bear the cost of care and handling of surplus property pending its disposal, except as provided in § 102-37.55.

§ 102-37.55 Holding agency costs reimbursement.

You may charge the transferee for the direct costs you incurred incident to a donation transfer, such as your packing, handling, crating, and transportation expenses. You may not include overhead or administrative costs.

§ 102-37.60 SASP responsibilities.

(a) Determine if an entity seeking to obtain surplus property is an eligible entity per § 102-37.275 or other approved entity.

(b) Distribute surplus property fairly, equitably, and promptly to eligible donees in your State based on their relative needs and resources, ability to use the property, and as provided in your State plan of operation.

(c) Enforce compliance with the terms and conditions imposed on donated property.

§ 102-37.65 SASP eligibility.

To receive transfers of surplus property, a SASP must:

(a) Have a GSA-approved State plan of operation; and

(b) Provide the certifications and agreements as set forth in §§ 102-37.110 and 102-37.115.

§ 102-37.70 State plan of operation.

A State plan of operation is a document that sets forth a plan for the management and administration of the SASP in the donation of property. The state legislature must develop the plan. The chief executive officer of the State must submit the plan to the GSA Administrator for acceptance and certify that the SASP is authorized to:

(a) Acquire and distribute property to eligible donees in the State;

(b) Enter into cooperative agreements; and

(c) Undertake other actions and provide other assurances required by 40 U.S.C. 549(e) and set forth in the plan.

§ 102-37.75 State plan requirements.

The State legislature must ensure the plan conforms to the provisions of 40 U.S.C. 549(e) and includes information and assurances as required by GSA. It may also include in the plan other provisions not inconsistent with the purposes of title 40, U.S. Code, and the requirements of this part.

§ 102-37.80 State plan effective date.

The plan takes effect on the date GSA notifies the chief executive officer of the State that the plan is approved.

§ 102-37.85 State plan amendments or modifications.

GSA must approve amendments or modifications to the plan. Proposed plans and major amendments to existing plans require general notice to the public for comment. A State must publish a general notice of the plan or amendment at least 60 calendar days in advance of filing the proposal with GSA and provide interested parties at least 30 calendar days to submit comments before filing the proposal.

§ 102-37.90 State plan nonconformance.

If a SASP does not operate in accordance with its plan, GSA may withhold allocation and transfer of surplus property until the nonconformance is corrected.

§ 102-37.95 Property available for donation.

(a) A SASP may conduct onsite screening at various Federal facilities, contact or submit want lists to GSA, or use GSA's or other agencies' inventory system to search for property that is potentially available for donation.

(b) To conduct onsite screening, the screener (SASP or SASP's representative) must coordinate with the individual holding agency or organization. The screener should ascertain the identification required and any special procedures for access to the facility or location.

§ 102-37.100 Authorized screener records.

You must maintain a current record of all individuals authorized to screen for your SASP, including their names, addresses, telephone numbers, qualifications to screen, and any additional identifying information. You should place donee screener records in the donee's eligibility file and review them each time a periodic review of the donee's file is undertaken.

§ 102-37.105 Surplus property requests.

Generally, you should have a firm requirement or an anticipated demand for any property that you request.

§ 102-37.110 SASP certifications.

You must certify that:

(a) You are the agency of the State designated under State law that has legal authority under 40 U.S.C. 549 and the regulations of this subchapter, to receive property for distribution within the state to eligible donees as defined in this part.

(b) No person with supervisory or managerial duties in your State's donation program is debarred, suspended, ineligible, or voluntarily excluded from participating in the donation program.

(c) The property is usable and needed within the State by an eligible entity per § 102-37.275 or other approved entity.

(d) When property is picked up by, or shipped to, your SASP, you have adequate and available funds, facilities, and personnel to provide accountability, warehousing, proper maintenance, and distribution of the property.

(e) When property is distributed by your SASP to a donee, or when delivery is made directly from a holding agency to a donee pursuant to a state distribution document, you have determined that the donee acquiring the property is eligible within the meaning of the Property Act and the regulations of this subchapter, and that the property is usable and needed by the donee.

§ 102-37.115 SASP agreements.

You must agree that:

(a) You will make prompt statewide distribution of such property, on a fair and equitable basis, to donees eligible to acquire property under 40 U.S.C. 549 and the regulations of this subchapter. You will distribute property only after such eligible donees have properly executed the appropriate certifications and agreements established by the SASP and/or GSA.

(b) Title to the property remains in the U.S. Government although a donee has taken possession of it. Conditional title to the property will pass to the eligible donee when the donee executes the required certifications and agreements and takes possession of the property.

(c) You will:

(1) Promptly pay the cost of care, handling, and shipping incident to taking possession of the property.

(2) During the time that title remains in the U.S. Government, be responsible as a bailee for the property from the time it is released to you or to the transportation agent you have designated.

(3) In the event of any loss of or damage to any or all the property during transportation or storage at a place other than a place under your control, take the necessary action to obtain restitution (fair market value) for the Government. In the event of loss or damage due to negligence or willful misconduct on your part, repair, replace, or pay to the GSA the fair market value of any such property, or take such other action as the GSA may direct.

(d) You may retain property to perform your donation program functions, but only when authorized by GSA in accordance with the provisions of a cooperative agreement entered into with GSA.

(e) When acting under an interstate cooperative distribution agreement (see § 102-37.235) as an agent and authorized representative of an adjacent State, you will:

(1) Make the certifications and agreements required in § 102-37.110 and this section on behalf of the adjacent SASP.

(2) Require the donee to execute the distribution documents of the State in which the donee is located.

(3) Forward copies of the distribution documents to the corresponding SASP.

(f) You will not discriminate on the basis of race, color, national origin, sex, age, or handicap in the distribution of property, and will comply with GSA regulations on nondiscrimination as set forth in part 101-4, part 101-6, subpart 101-6.2, and part 101-8, subpart 101-8.3, of this title.

(g) You will not seek to hold the U.S. Government liable for consequential or incidental damages or the personal injuries, disabilities, or death to any person arising from the transfer, donation, use, processing, or final disposition of this property. The Government's liability in any event is limited in scope to that provided for by the Federal Tort Claims Act (28 U.S.C. 2671, et seq. ).

§ 102-37.120 Additional certifications.

(a) You must certify that you will provide a drug-free workplace only as a condition for retaining surplus property for SASP use. Drug-free workplace certification requirements are found at part 105-74 of this title.

(b) You are subject to the anti-lobbying certification and disclosure requirements in part 105-69 of this title when all the following conditions apply:

(1) You have entered into a cooperative agreement with GSA that provides for your SASP to retain surplus property for use in performing donation functions or any other cooperative agreement;

(2) The cooperative agreement was executed after December 23, 1989; and

(3) The fair market value of the property requested under the cooperative agreement is more than $100,000.

§ 102-37.125 Written justification for special types of surplus property.

A SASP must obtain written justification from the intended donee, and submit it to GSA along with the transfer request, prior to allocation of:

(a) Aircraft and vessels covered by § 102-37.350;

(b) Items requested specifically for cannibalization;

(c) Foreign gifts and decorations (as defined in § 102-42.10 of this chapter); and

(d) Any item on which written justification will assist GSA in making allocation to states with the greatest need.

§ 102-37.130 Surplus aircraft and vessel documentation.

(a) For each SF 123 that you submit to GSA for transfer of a surplus aircraft or vessel covered by § 102-37.350, include:

(1) A letter of intent signed and dated by the authorized representative of the proposed donee setting forth a detailed plan of utilization for the property; and

(2) A letter, signed and dated by you, confirming and certifying the applicant's eligibility and containing an evaluation of the applicant's ability to use the aircraft or vessel for the purpose stated in its letter of intent and any other supplemental information concerning the needs of the donee which supports making the allocation.

(b) For each SF 123 that GSA approves, you must include:

(1) Your distribution document, signed and dated by the authorized donee representative; and

(2) A conditional transfer document (CTD), signed by you and the intended donee, and containing the special terms and conditions prescribed by GSA.

§ 102-37.135 Letter of intent requirements.

A letter of intent must include:

(a) A description of the aircraft or vessel requested. If the item is an aircraft, the description must include the manufacturer, date of manufacture, model, and serial number. If the item is a vessel, it must include the type, name, class, size, displacement, length, beam, draft, lift capacity, and the hull or registry number, if known;

(b) A detailed description of the donee's program and the number and types of aircraft or vessels in its inventory;

(c) A detailed description of how the aircraft or vessel will be used, its purpose, how often it will be used, and for how long. If an aircraft is requested for flight purposes, the donee must specify a source of pilot(s) and where the aircraft will be housed. If an aircraft is requested for cannibalization, the donee must provide details of the cannibalization process. If a vessel is requested for waterway purposes, the donee must specify a source of pilot(s) and where the vessel will be docked. If a vessel is requested for permanent docking on water or land, the donee must provide details of the process, including the time to complete the process; and

(d) Any supplemental information supporting the donee's need for the aircraft or vessel.

§ 102-37.140 Surplus property for cannibalization.

The SASP must notify GSA if a donee is requesting property for cannibalization and provide a detailed justification concerning the need for the components or accessories and an explanation of the effect removal will have on the item. GSA will approve requests for cannibalization only when it is clear from the justification that disassembly of the item for use of its component parts will provide greater potential benefit than use of the item in its existing form.

§ 102-37.145 Surplus property safeguards.

To safeguard surplus property in your custody, you must provide adequate protection of property in your custody, including protection against the hazards of fire, theft, vandalism, and weather.

§ 102-37.150 Surplus property damage or loss.

If you learn that surplus property in your custody has been damaged or lost, you must always notify GSA and notify the appropriate law enforcement officials if it appears a crime has been committed.

§ 102-37.155 Surplus property insurance.

You are not required to carry insurance on Federal surplus property in your custody. However, if you elect to carry insurance and the insured property is lost or damaged, you must submit a check made payable to GSA for any insurance proceeds received in excess of your actual costs of acquiring and rehabilitating the property prior to its loss, damage, or destruction.

§ 102-37.160 Distribution documentation.

All SASPs must document the distribution of Federal surplus property on forms that are prenumbered, provide for donees to indicate the primary purposes for which they are acquiring property, and include the:

(a) Certifications and agreements in §§ 102-37.340 and 102-37.345; and

(b) Period of restriction during which the donee must use the property for the purpose for which it was acquired.

§ 102-37.165 Surplus property distribution to eligible donees of another State.

You may distribute surplus property to eligible donees of another State, if you and the other SASP determine that such an arrangement will be of mutual benefit to you and the donees concerned. An interstate distribution cooperative agreement must be prepared as prescribed in § 102-37.235 and submitted to GSA for approval. When acting under an interstate distribution cooperative agreement, you must:

(a) Require the donee recipient to execute the distribution documents of its home SASP; and

(b) Forward copies of executed distribution documents to the donee's home SASP.

§ 102-37.170 Retention of surplus property for SASP use.

You can retain surplus property for use in operating the donation program if you have a cooperative agreement with GSA that allows you to do so. You must obtain prior written GSA approval before using any surplus property in the operation of the SASP. Make your needs known by submitting a list of needed property to GSA for approval. GSA will review the list to ensure that it is of the type and quantity of property that is reasonably needed and useful in performing SASP operations. GSA will notify you within 30 calendar days whether you may retain the property for use in your operations. Title to any surplus property GSA approves for your retention will vest in your SASP. You must maintain separate records for such property.

§ 102-37.175 Service charge payments.

Service charge payments must readily identify the donee institution as the payer (or the name of the parent organization when that organization pays the operational expenses of the donee). Personal checks, personal cashier checks, personal money orders, and personal credit cards are not acceptable.

§ 102-37.180 Use of service charge funds.

Funds accumulated from service charges may be deposited, invested, or used in accordance with State law to:

(a) Cover direct and reasonable indirect costs of operating the SASP;

(b) Purchase necessary equipment for the SASP;

(c) Maintain a reasonable working capital reserve;

(d) Rehabilitate surplus property, including the purchase of replacement parts;

(e) Acquire or improve office or distribution center facilities; or

(f) Pay for the costs of internal and external audits.

§ 102-37.185 Non-SASP State activities and programs.

Except as provided in § 102-37.390, you must use funds collected from service charges, or from other sources such as proceeds from sale of undistributed property or funds collected from compliance cases, solely for the operation of the SASP and the benefit of participating donees.

§ 102-37.190 Undistributed surplus property.

(a) As soon as it becomes clear that you cannot donate the surplus property, you should first determine whether the property is usable.

(1) If you determine that the undistributed surplus property is not usable, you should seek GSA approval to abandon or destroy the property in accordance with § 102-37.220.

(2) If you determine that the undistributed surplus property is usable, you should promptly report it to GSA for redisposal through retransfer, sale, or other means.

(b) Normally, any property not donated within a 1-year period should be processed in this manner.

§ 102-37.195 Transfers between SASPs.

The requesting SASP must submit an SF 123 to GSA. GSA will respond to the request within 30 calendar days of receipt of the transfer order.

§ 102-37.200 Reporting unneeded, usable property for disposal.

When reporting unneeded, usable property that is not required for transfer to another SASP, provide GSA with the:

(a) Description of each line item of property, current condition code, quantity, unit and total acquisition cost, State serial number, demilitarization code, and any special handling conditions;

(b) Date you received each line item of property listed; and

(c) Certification of reimbursement requested under § 102-37.215.

§ 102-37.205 GSA's agent in undistributed surplus property sales.

You may act as GSA's agent in selling undistributed surplus property if an established cooperative agreement with GSA permits such an action. You must notify GSA each time you propose to conduct a sale under the cooperative agreement. You may request approval to conduct a sale when reporting the property to GSA for disposal instructions. If no formal agreement exists, you may submit such an agreement at that time for approval.

§ 102-37.210 Undistributed surplus property proposal to sell.

(a) Your request to sell undistributed surplus property must include:

(1) The proposed sale date;

(2) A listing of the property;

(3) Location of the sale;

(4) Method of sale; and

(5) Proposed advertising to be used.

(b) If the request is approved, GSA will provide the necessary forms and instructions for you to use in conducting the sale.

§ 102-37.215 Recovering costs of undistributed surplus property.

(a) When undistributed surplus property is transferred to a Federal agency or another SASP, or disposed of by public sale, you are entitled to recoup:

(1) Direct costs you initially paid to the Federal holding agency, including but not limited to, packing, preparation for shipment, and loading. You will not be reimbursed for actions following receipt of the property.

(2) Transportation costs you incurred, but were not reimbursed by a donee, for initially moving the property from the Federal holding agency to your distribution facility or other point of receipt. You must document and certify the amount of reimbursement requested for these costs.

(b) Reimbursable arrangements should be made prior to the transfer of the property. In the case of a Federal transfer, GSA will secure agreement of the Federal agency to reimburse your authorized costs and annotate the amount of reimbursement on the transfer document. You must coordinate and make arrangements for reimbursement when property is transferred to another SASP. If you and the receiving SASP cannot agree on an appropriate reimbursement charge, GSA will determine appropriate reimbursement. The receiving SASP must annotate the reimbursement amount on the transfer document prior to its being forwarded to GSA for approval.

(c) When undistributed property is disposed of by public sale, GSA must approve the amount of sales proceeds you may receive to cover your costs. Generally, this will not exceed 50% of the total sales proceeds.

§ 102-37.220 Abandonment or destruction of undistributed surplus property.

(a) You may abandon or destroy undistributed surplus property when you have made a written finding that the property has no commercial value or the estimated cost of its continued care and handling would exceed the estimated proceeds from its sale. The abandonment or destruction finding must be sent to GSA for approval. You must include:

(1) The basis for the abandonment or destruction;

(2) A detailed description of the property, its condition, and total acquisition cost;

(3) The proposed method of destruction or the abandonment location;

(4) A statement confirming that the proposed abandonment or destruction will not be detrimental or dangerous to public health, public safety, or national security, and will not infringe on the rights of other persons; and

(5) The signature of the SASP director.

(b) GSA will notify you within 30 calendar days of receipt of the request whether you may abandon or destroy the property. GSA will provide alternate disposition instructions if it disapproves your request for abandonment or destruction.

§ 102-37.225 Cooperative agreement purposes.

Section 549(f) of title 40, U.S. Code, allows GSA, or Federal agencies designated by GSA, to enter into cooperative agreements with SASPs to carry out the surplus property donation program. Such agreements allow GSA, or the designated Federal agencies, to use the SASP's property, facilities, personnel, or services or to furnish such resources to the SASP. For example:

(a) GSA, or designated Federal agencies, may enter into a cooperative agreement to assist a SASP in distributing surplus property for donation. Assistance may include:

(1) Furnishing the SASP with available GSA or agency office space and related support such as office furniture and information technology equipment needed to screen and process property for donation.

(2) Permitting the SASP to retain items of surplus property transferred to the SASP that are needed by the SASP in performing its donation functions.

(b) GSA may help the SASP to enter into agreements with other GSA or Federal activities for the use of Federal telecommunications service or federally owned real property and related personal property.

§ 102-37.230 Costs related to providing support under a cooperative agreement.

The parties to a cooperative agreement must decide among themselves the extent to which the costs of the services they provide must be reimbursed. Their decision should be reflected in the cooperative agreement. Generally, the Economy Act (31 U.S.C. 1535) would require a Federal agency receiving services from a SASP to reimburse the SASP for those services. Since SASPs are not Federal agencies, the Economy Act would not require them to reimburse Federal agencies for services provided by such agencies. In this situation, the Federal agencies would have to determine if their own authorities would permit them to provide services to SASPs without reimbursement. If a Federal agency is reimbursed by a SASP for services provided under a cooperative agreement, it must credit that payment to the fund or appropriation that incurred the related costs.

§ 102-37.235 Cooperative agreements between SASPs.

With GSA's concurrence and where authorized by State law, a SASP may enter into an agreement with an adjacent State to act as its agent and authorized representative in disposing of surplus Federal property. Interstate cooperative agreements may be considered when donees, because of their geographic proximity to the property distribution centers of the adjoining State, could be more efficiently and economically serviced by surplus property facilities in the adjacent State. You and the other SASP must agree to the payment or reimbursement of service charges by the donee, and you also must agree to the requirements of § 102-37.115(e).

§ 102-37.240 Cooperative agreement termination.

You may terminate a cooperative agreement with GSA 60-calendar days after providing GSA with written notice. For other cooperative agreements with other authorized parties, you or the other party may terminate the agreement as mutually agreed. You must promptly notify GSA when such other agreements are terminated.

§ 102-37.245 SASP audits.

For each year in which a SASP receives $1,000,000 or more a year in surplus property or other Federal assistance, it must be audited in accordance with 2 CFR part 200. GSA's donation program should be identified by Catalog of Federal Domestic Assistance number 39.003 when completing the required schedule of Federal assistance.

§ 102-37.250 Federal reviews of SASPs.

Although SASPs are covered under the single audit process in 2 CFR part 200, the Government Accountability Office (GAO), GSA, or other authorized Federal activities may audit or review the operations of a SASP. GSA will notify the chief executive officer of the state of the reasons for a GSA audit. When requested, you must make available financial records and all other records of the SASP for inspection by representatives of GSA, GAO, or other authorized Federal activities.