Table of Contents
§102-38.5—What does this part cover?
This part prescribes the policies governing the sale of Federal personal property, including—
Note to §102-38.5: You must follow additional guidelines in 41 CFR parts 101-42 and 101-45 of the Federal Property Management Regulations (FPMR) for the sale of personal property that has special handling requirements or property containing hazardous materials. Additional requirements for the sale of aircraft and aircraft parts are provided in part 102-33 of this chapter.
§102-38.10—What is the governing authority for this part?
The authority for the regulations in this part governing the sale of Federal personal property is 40 U.S.C. 541 through 548, 571, 573 and 574.
§102-38.15—Who must comply with these sales provisions?
All executive agencies must comply with the provisions of this part. The legislative and judicial branches are encouraged to follow these provisions.
§102-38.20—Must we follow the regulations of this part when selling all personal property?
Generally, yes, you must follow the regulations of this part when selling all personal property; however—
§102-38.25—To whom do “we”, “you”, and their variants refer?
Unless otherwise indicated, use of pronouns “we”, “you”, and their variants throughout this part refer to the holding agency responsible for the sale of the property.
§102-38.30—How do we request a deviation from the provisions of this part?
Refer to §§102-2.60 through 102-2.110 of this chapter for information on how to obtain a deviation from this part.
§102-38.35—What definitions apply to this part?
The following definitions apply to this part:
§102-38.40—Who may sell personal property?
You may sell personal property as the holding agency or on behalf of another agency when so requested, or have the General Services Administration, a contractor, or another Federal agency conduct the sale for you, provided that only Federal officials authorized by your agency approve the sale and bind the United States.
§102-38.45—What are our responsibilities in selling personal property?
Your responsibilities in selling personal property are to—
§102-38.50—What must we do when we suspect violations of 40 U.S.C. 559, fraud, bribery, or criminal collusion in connection with the disposal of personal property?
If you suspect violations of 40 U.S.C. 559, fraud, bribery, or criminal collusion in connection with the disposal of personal property, you must—
§102-38.55—What must we do when selling personal property?
When selling personal property, you must ensure that—
§102-38.60—Who is responsible for the costs of care and handling of the personal property before it is sold?
You are responsible for the care and handling costs of the personal property until it is removed by the buyer or the buyer's designee. When specified in the terms and conditions of sale, you may charge costs for storage when the buyer is delinquent in removing the property.
§102-38.65—What if we are notified of a Federal requirement for surplus personal property before the sale is complete?
Federal agencies have first claim to excess or surplus personal property reported to the General Services Administration. When a bona fide need for the property exists and is expressed by a Federal agency, and when no like item(s) are located elsewhere, you must make the property available for transfer to the maximum extent practicable and prior to transfer of title to the property.
§102-38.70—May we abandon or destroy personal property either prior to or after trying to sell it?
§102-38.75—How may we sell personal property?
§102-38.80—Which method of sale should we use?
§102-38.85—What is a sealed bid sale?
A sealed bid sale is a sale in which bid prices are kept confidential until bid opening. Bids are submitted either electronically or in writing according to formats specified by the selling agency, and all bids are held for public disclosure at a designated time and place.
§102-38.90—What is a spot bid sale?
A spot bid sale is a sale where immediately following the offering of the item or lot of property, bids are examined, and awards are made or bids rejected on the spot. Bids are either submitted electronically or in writing according to formats specified by the selling agency, and must not be disclosed prior to announcement of award.
§102-38.95—What is an auction?
An auction is a sale where the bid amounts of different bidders are disclosed as they are submitted, providing bidders the option to increase their bids if they choose. Bids are submitted electronically and/or by those physically present at the sale. Normally, the bidder with the highest bid at the close of each bidding process is awarded the property.
§102-38.100—What is a negotiated sale?
A negotiated sale is a sale where the selling price is arrived at between the seller and the buyer, subject to obtaining such competition as is feasible under the circumstances.
§102-38.105—Under what conditions may we negotiate sales of personal property?
You may negotiate sales of personal property when—
§102-38.110—Who approves our determinations to conduct negotiated sales?
The head of your agency (or his/her designee) must approve all negotiated sales of personal property.
§102-38.115—What are the specific reporting requirements for negotiated sales?
For negotiated sales of personal property, you must—
§102-38.120—When may we conduct negotiated sales of personal property at fixed prices (fixed price sale)?
You may sell personal property at fixed prices when the head of your agency, or designee, determines in writing that such sale serves the best interests of the Government. You must publicize such sale to the extent consistent with the value and nature of the property involved, and the prices established must reflect the estimated fair market value of the property. Property is sold on a first-come, first-served basis. You may also establish additional terms and conditions that must be met by the successful purchaser.
§102-38.125—May we sell personal property at fixed prices to State agencies?
Yes, before offering to the public, you may offer the property at fixed prices (through the State Agencies for Surplus Property) to any States, territories, possessions, political subdivisions thereof, or tax-supported agencies therein, which have expressed an interest in obtaining the property. For additional information, see subpart G of this part.
§102-38.130—Must we publicly advertise sales of Federal personal property?
Yes, you must provide public notice of your sale of personal property to permit full and open competition.
§102-38.135—What constitutes a public advertisement?
Announcement of the sale using any media that reaches the public and is appropriate to the type and value of personal property to be sold is considered public advertising. You may also distribute mailings or flyers of your offer to sell to prospective purchasers on mailing lists. Public notice should be made far enough in advance of the sale to ensure adequate notice, and to target your advertising efforts toward the market that will provide the best return at the lowest cost.
§102-38.140—What must we include in the public notice on sale of personal property?
In the public notice, you must provide information necessary for potential buyers to participate in the sale, such as—
§102-38.145—Must we allow for inspection of the personal property to be sold?
Yes, you must allow for an electronic or physical inspection of the personal property to be sold. You must allow prospective bidders sufficient time for inspection. If inspection is restricted to electronic inspections only, due to unusual circumstances prohibiting physical inspection, you must notify your General Services Administration Regional Personal Property Office in writing, with the circumstances surrounding this restriction at least 3 days prior to the start of the screening period.
§102-38.150—How long is the inspection period?
The length of the inspection period allowed depends upon whether the inspection is done electronically or physically. You should also consider such factors as the circumstances of sale, volume of property, type of property, location of the property, and accessibility of the sales facility. Normally, you should provide at least 7 calendar days to ensure potential buyers have the opportunity to perform needed inspections.
§102-38.155—What is an offer to sell?
An offer to sell is a notice listing the terms and conditions for bidding on an upcoming sale of personal property, where prospective purchasers are advised of the requirements for a responsive bid and the contractual obligations once a bid is accepted.
§102-38.160—What must be included in the offer to sell?
The offer to sell must include—
§102-38.165—Are the terms and conditions in the offer to sellbinding?
Yes, the terms and conditions in the offer to sell are normally incorporated into the sales contract, and therefore binding upon both the buyer and the seller once a bid is accepted.
§102-38.170—May we sell Federal personal property to anyone?
Generally, you may sell Federal personal property to anyone of legal age. However, certain persons or entities are debarred or suspended from purchasing Federal property. You must not enter into a contract with such a person or entity unless your agency head or designee responsible for the disposal action determines that there is a compelling reason for such an action.
§102-38.175—How do we find out if a person or entity has been suspended or debarred from doing business with the Government?
Refer to the List of Parties Excluded from Federal Procurement and Nonprocurement Programs to ensure you do not solicit from or award contracts to these persons or entities.
The list is available through subscription from the U.S. Government Printing Office, or electronically on the Internet at http://epls.arnet.gov. For policies, procedures, and requirements for debarring/suspending a person or entity from the purchase of Federal personal property, follow the procedures in the Federal Acquisition Regulation (FAR) subpart 9.4 (48 CFR part 9, subpart 9.4).
§102-38.180—May we sell Federal personal property to a Federal employee?
Yes, you may sell Federal personal property to any Federal employee whose agency does not prohibit their employees from purchasing such property. However, unless allowed by Federal or agency regulations, employees having nonpublic information regarding property offered for sale may not participate in that sale (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.
§102-38.185—May we sell Federal personal property to State or local governments?
Yes, you may sell Federal personal property to State or local governments. Additional guidelines on sales to State or local governments are contained in subpart G of this part.
§102-38.190—What is considered a responsive bid?
A responsive bid is a bid that complies with the terms and conditions of the sales offering, and satisfies the requirements as to the method and timeliness of the submission. Only responsive bids may be considered for award.
§102-38.195—Must bidders use authorized bid forms?
No, bidders do not have to use authorized bid forms; however if a bidder uses his/her own bid form to submit a bid, the bid may be considered only if—
§102-38.200—Who may accept bids?
Authorized agency representatives may accept bids for your agency. These individuals should meet your agency's requirements for approval of Government contracts.
§102-38.205—Must we accept all bids?
No, the Government reserves the right to accept or reject any or all bids. You may reject any or all bids when such action is advantageous to the Government, or when it is in the public interest to do so.
§102-38.210—What happens when bids have been rejected?
You may re-offer items for which all bids have been rejected at the same sale, if possible, or another sale.
§102-38.215—When may we disclose the bid results to the public?
You may disclose bid results to the public after the sales award of any item or lot of property. On occasions when there is open bidding, usually at a spot bid sale or auction, all bids are disclosed as they are submitted. No information other than names may be disclosed regarding the bidder(s).
§102-38.220—What must we do when the highest bids received have the same bid amount?
When the highest bids received have the same bid amount, you must consider other factors of the sale (e.g., timely removal of the property, terms of payment, etc.) that would make one offer more advantageous to the Government. However, if you are unable to make a determination based on available information, and the Government has an acceptable offer, you may re-offer the property for sale, or you may utilize random tiebreakers to avoid the expense of reselling the property.
§102-38.225—What are the additional requirements in the bid process?
All sales except fixed price sales must contain a certification of independent price determination. If there is suspicion of false certification or an indication of collusion, you must refer the matter to the Department of Justice or your agency's Office of the Inspector General.
§102-38.230—Is a bid deposit required to buy personal property?
No, a bid deposit is not required to buy personal property. However, should you require a bid deposit to protect the Government's interest, a deposit of 20 percent of the total amount of the bid is generally considered reasonable.
§102-38.235—What types of payment may we accept as bid deposits?
In addition to the acceptable types of payments in §102-38.290, you may also accept a deposit bond. A deposit bond may be used in lieu of cash or other acceptable form of deposit when permitted by the offer to sell, such as the Standard Form (SF) 150, Deposit Bond—Individual Invitation, Sale of Government Personal Property, SF 151, Deposit
Bond—Annual, Saleof Government Personal Property, and SF 28, Affidavit of Individual Surety. For information on how to obtain these forms, see §102-2.135 of subchapter A.
§102-38.240—What happens to the deposit bond if the bidder defaults or wants to withdraw his/her bid?
§102-38.245—Do we consider late bids for award?
Consider late bids for award only when the bids were delivered timely to the address specified and your agency caused the delay in delivering the bids to the official designated to accept the bids.
§102-38.250—How do we handle late bids that are not considered?
Late bids that are not considered must be returned to the bidder promptly. You must not disclose information contained in returned bids.
§102-38.255—May we allow a bidder to modify or withdraw a bid?
§102-38.260—Who makes the administrative determinations regarding mistakes in bids?
The administrative procedures for handling mistakes in bids are contained in FAR 14.407, Mistakes in Bids (48 CFR 14.407). Your agency head, or his/her designee, may delegate the authority to make administrative decisions regarding mistakes in bids to a central authority, or a limited number of authorities in your agency, who must not re-delegate this authority.
§102-38.265—Must we keep records on administrative determinations?
Yes, you must—
§102-38.270—May a bidder protest the determinations made on sales of personal property?
Yes, protests regarding the validity or the determinations made on the sale of personal property may be submitted to the Comptroller General.
§102-38.275—To whom do we award the sales contract?
You must award the sales contract to the bidder with the highest responsive bid, unless a determination is made to reject the bid under §102-38.205.
§102-38.280—What happens when there is no award?
When there is no award made, you may sell the personal property at another sale, or you may abandon or destroy it pursuant to §102-36.305 of this subchapter B.
§102-38.285—How do we transfer title from the Government to the buyer for personal property sold?
§102-38.290—What types of payment may we accept?
You must adopt a payment policy that protects the Government against fraud. Acceptable payments include, but are not limited to, the following:
§102-38.295—May we retain sales proceeds?
§102-38.300—What happens to sales proceeds that we are not authorized to retain or that are unused?
Any sales proceeds that are not retained pursuant to the authorities in §102-38.295 must be deposited as miscellaneous receipts in the U. S. Treasury.
§102-38.305—How do we handle disputes involved in the sale of Federal personal property?
First contact your Office of General Counsel. Further guidance can be found in the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), and the Federal Acquisition Regulation (FAR) at 48 CFR part 33.
§102-38.310—Are we required to use the Disputes clause in the sale of personal property?
Yes, you must ensure the Disputes clause contained in Federal Acquisition Regulation (FAR) 52.233-1 (48 CFR part 52) is included in all offers to sell and contracts for the sale of personal property.
§102-38.315—Are we required to use Alternative Disputes Resolution for sales contracts?
No, you are not required to use Alternative Disputes Resolution (ADR) for sales contracts. However, you are encouraged to use ADR procedures in accordance with the authority and the requirements of the Alternative Disputes Resolution Act of 1998 (28 U.S.C. 651—658).
§102-38.320—Are there other statutory requirements governing the sale of Federal personal property?
Yes, in addition to Title 40 of the U.S. Code the sale of Federal personal property is governed by other statutory requirements, such as the Debt Collection Improvement Act of 1996 (Public Law 104-134, sec. 31001, 110 Stat. 1321-358) and antitrust requirements that are discussed in §102-38.325.