資料由法律人 LawPlayer整理提供·U.S. federal law / curated by LawPlayer from GPO govinfo & eCFR
This part covers the policies governing the sale of surplus and exchange/sale personal property. Unless otherwise indicated, use of pronouns “we,” “you,” and their variants throughout this part refer to the executive agency responsible for the sale of the property.
Only an executive agency designated or authorized by the General Services Administration (GSA) may sell personal property, including on behalf of another agency. Only an authorized contracting officer may execute the sale award documents and bind the United States to the sales contract.
An executive agency's responsibilities in selling personal property are to:
(a) Ensure the sale complies with the provisions of title 40 U.S.C., the regulations of this part, and any other applicable laws;
(b) Issue internal guidance to promote uniformity of sales procedures;
(c) Assure that officials designated to conduct and finalize sales are adequately trained;
(d) Be accountable for the care and handling of the personal property prior to its removal by the buyer;
(e) Adjust your property and financial records to reflect the final disposition;
(f) Ensure all sales are made after publicly advertising for bids, except as provided for negotiated sales; and
(g) Ensure advertising for bids permits full and free competition consistent with the value and nature of the property involved.
The holding agency is responsible for the care and handling costs of the personal property until it is removed by the buyer or the buyer's designee.
Federal agencies have first claim to excess or surplus personal property reported to GSA. When a bona fide need for the property exists and is expressed by a Federal agency, you or the holding agency must make the property available for transfer to the maximum extent practicable and prior to transfer of title to the property.
You will sell personal property upon such terms and conditions as the head of your agency or designee deems proper to promote the fairness, openness, and timeliness necessary for the sale to be most advantageous to the Government. When you are selling property on behalf of another agency, you must consult with the holding agency to determine any special or unique sales terms and conditions. You must also document the required terms and conditions of each sale as applicable, including:
(a) Inspection.
(b) Condition and location of property.
(c) Eligibility of bidders.
(d) Consideration of bids.
(e) Bid deposits and payments.
(f) Submission of bids.
(g) Bid price determination.
(h) Title.
(i) Delivery, loading, and removal of property.
(j) Default, returns, or refunds.
(k) Modifications, withdrawals, or late bids.
(l) Requirements to comply with applicable laws and regulations.
(m) Certificate of independent price determinations.
(n) Covenant against contingent fees.
(o) Limitation on Government's liability.
(p) Award of contract.
(a) You may use any method of sale provided the sale is publicly advertised and the personal property is sold with full and free competition. You must select the method of sale that will bring maximum return at minimum cost, considering factors such as:
(1) Type and quantity of property;
(2) Location of property;
(3) Potential market;
(4) Cost to prepare and conduct the sale;
(5) Available facilities; and
(6) Sales experience of the selling activity.
(b) Methods of sale may include sealed bid sales, spot bid sales, auctions, or negotiated sales and may be conducted at a physical location or through any electronic media that is publicly accessible.
You may negotiate sales of personal property when:
(a) The personal property has an estimated fair market value that does not exceed $15,000;
(b) The disposal will be to a state, territory, possession, political subdivision, or tax-supported agency, and the estimated fair market value of the property and other satisfactory terms of disposal are obtained by negotiation;
(c) Bid prices after advertising are not reasonable and re-advertising would serve no useful purpose;
(d) Public exigency does not permit any delay;
(e) The sale promotes public health, safety, or national security;
(f) The sale is in the public interest under a national emergency declared by the President or Congress. This authority may be used only with specific lot(s) of property or for categories determined by GSA for a designated period but not more than three months; or
(g) Selling the property competitively would have an adverse impact on the national economy, provided that the estimated fair market value of the property and other satisfactory terms of disposal can be obtained by negotiation.
(a) In advance of the sale, report explanatory statements for each sale by negotiation of any personal property with an estimated fair market value of more than $15,000 to the GSA oversight committees. No statement is needed for negotiated sales at fixed price or for any sale made without advertising when authorized by law other than 40 U.S.C. 545; and
(b) Report a listing and description of all negotiated sales of personal property with an estimated fair market value more than $5,000 to GSA within 60 calendar days after the close of each fiscal year.
You may conduct negotiated sales of personal property at fixed prices (fixed price sale) under this section when:
(a) The items are authorized to be sold at fixed price by GSA, as reflected in GSA Bulletin FMR B-10;
(b) The head of your agency, or designee, determines in writing that such sales serve the best interest of the Government. When you are selling property on behalf of a holding agency, you must consult with the holding agency to determine whether a fixed price sale meets this criterion; and
(c) You must publicize such sales to the extent consistent with the value and nature of the property involved, and the prices established must reflect the estimated fair market value of the property. Property is sold on a first-come, first-served basis. You or the holding agency may also establish additional terms and conditions that must be met by the successful purchaser.
Before offering to the public, you may offer the property at fixed prices through the State Agency for Surplus Property (SASP) to any States, territories, possessions, political subdivisions, or tax-supported agencies, which have expressed an interest in obtaining the property.
(a) You must provide public notice of your sale of personal property to permit full and free competition. Public notice should be made far enough in advance of the sale to ensure adequate notice, and to target your advertising efforts toward the market that will provide the best return at the lowest cost. Public advertising is considered an announcement of the sale using any media that reaches the public and is appropriate to the type and value of personal property to be sold. You may also distribute mailings or flyers of your offer to sell to prospective purchasers on mailing lists.
(b) The public notice must include information necessary for potential buyers to participate in the sale, such as:
(1) Date, time and location of sale;
(2) General categories of property being offered for sale;
(3) Inspection period;
(4) Method of sale ( i.e., spot bid, sealed bid, auction);
(5) Selling agency; and
(6) Who to contact for additional information.
You must allow prospective bidders sufficient time to conduct inspections of the personal property to be sold. If physical inspections are prohibited due to agency circumstances, you must notify GSA in writing at least 3 days prior to the start of the screening period. The length of the inspection period depends on whether the inspection is electronic or physical. You should also consider the circumstances of sale; the accessibility of the sales facility; and the volume, type, and location of the property. Normally, you should provide at least 7 calendar days to ensure potential buyers can perform needed inspections.
The offer to sell must include:
(a) Sale date and time;
(b) Method of sale;
(c) Description of property being offered for sale;
(d) Selling agency;
(e) Location of property;
(f) Time and place for receipt of bids;
(g) Acceptable forms of bid deposits and payments; and
(h) Terms and conditions of sale, including any specific restrictions and limitations.
Terms and conditions in the offer to sell are normally incorporated into the sales contract and are binding once a bid is accepted.
Generally, you may sell Federal personal property to anyone of legal age. You must not enter into a contract with persons or entities debarred or suspended from purchasing Federal property unless your agency head or designee responsible for the disposal action determines there is a compelling reason to do so.
You may sell Federal personal property to any Federal employee whose agency does not prohibit their employees from purchasing such property. Employees with nonpublic information regarding property offered for sale may not participate in that sale unless allowed by Federal or agency regulations (see 5 CFR 2635.703). For purposes of this section, the term Federal employee also applies to an immediate member of the employee's household.
You will award the sales contract to the bidder with the highest responsive bid, unless a determination is made to reject the bid.
If no award is made, you may sell the personal property at another sale, or you may abandon or destroy it.
No specific form or format is designated for transferring title from the Government to the buyer for personal property sold. You must execute a bill of sale or another document as evidence of transfer of title or any other interest in Government personal property. You must also ensure that the buyer submits any additional certifications to comply with specific conditions and restrictions of the sale.
(a) You may retain that portion of the sales proceeds, in accordance with your agreement with the holding agency, equal to your direct costs and reasonably related indirect costs incurred in selling personal property.
(b) A holding agency may retain that portion of the sales proceeds equal to its costs of care and handling directly related to the sale of personal property.
(c) After accounting for amounts retained under paragraphs (a) and (b) of this section, a holding agency may retain the balance of proceeds from the sale of its agency's personal property when:
(1) It has the statutory authority to retain all proceeds from sales of personal property;
(2) The property sold was acquired with nonappropriated funds;
(3) The property sold was surplus Government property that was in the custody of a contractor or subcontractor, and the contract or subcontract provisions authorize the proceeds of sale to be credited to the price or cost of the contract or subcontract;
(4) The property was sold to obtain replacement property under the exchange/sale authority pursuant to part 102-39 of this subchapter; or
(5) The property sold was related to waste prevention and recycling programs, under the authority of section 706 of Public Law 115-31. Consult your General Counsel or Chief Financial Officer for guidance on use of this authority.
Any sales proceeds that are not retained pursuant to the authorities in § 102-38.105 must be deposited as miscellaneous receipts in the U.S. Treasury.
You may sell Government personal property to State and local governments through:
(a) Competitive sale to the public;
(b) Negotiated sale, through the appropriate SASP; or
(c) Negotiated sale at fixed price through the appropriate SASP. This method of sale can be used prior to a competitive sale to the public.
If a SASP wants to buy the personal property advertised for public sale, you are not required to withdraw the item.
You must waive the requirement for bid deposits and payment prior to removal of the property. However, payment must be made within 30 calendar days after purchase.
SASPs must follow the regulations in this part when conducting sales of Government personal property in their custody on behalf of GSA.
SALE OF PERSONAL PROPERTY (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-41-part-102-38
United States government works (U.S. Code, Code of Federal Regulations) are in the public domain under 17 U.S.C. § 105.
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