41 C.F.R. Subpart B—Utilization of Excess Real Property
Title 41 - Public Contracts and Property Management
Landholding agencies' responsibilities concerning the utilization of excess property are to— (a) Achieve maximum use of their real property, in terms of economy and efficiency, to minimize expenditures for the purchase of real property; (b) Increase the identification and reporting of their excess real property; and (c) Fulfill its needs for real property, so far as practicable, by utilization of real property determined excess by other agencies, pursuant to the provision of this part, before it purchases non-Federal real property. Disposal agencies' responsibilities concerning the utilization of excess property are to— (a) Provide for the transfer of excess real property among Federal agencies, to mixed-ownership Government corporations, and to the municipal government of the District of Columbia; and (b) Resolve conflicting requests for transferring real property that the involved agencies cannot resolve.
Title 41: Public Contracts and Property Management
PART 102–75—REAL PROPERTY DISPOSAL
Subpart B—Utilization of Excess Real Property
§ 102-75.25 What are landholding agencies' responsibilities concerning the utilization of excess property?
§ 102-75.30 What are disposal agencies' responsibilities concerning the utilization of excess property?
§ 102-75.35 [Reserved]
Standards
§ 102-75.40 What are the standards that each Executive agency must use to identify unneeded Federal real property?
Each Executive agency must identify unneeded Federal property using the following standards:
(a) Not utilized.
(b) Underutilized.
(c) Not being put to optimum use.
§ 102-75.45 What does the term “Not utilized” mean?
Not utilized means an entire property or portion thereof, with or without improvements, not occupied for current program purposes of the accountable Executive agency, or occupied in caretaker status only.
§ 102-75.50 What does the term “Underutilized” mean?
Underutilized means an entire property or portion thereof, with or without improvements, which is used—
(a) Irregularly or intermittently by the accountable Executive agency for current program purposes of that agency; or
(b) For current program purposes that can be satisfied with only a portion of the property.
§ 102-75.55 What does the term “Not being put to optimum use” mean?
Not being put to optimum use means an entire property or portion thereof, with or without improvements, which—
(a) Even though used for current program purposes, the nature, value, or location of the property is such that it could be utilized for a different and significantly higher and better purpose; or
(b) The costs of occupying are substantially higher than other suitable properties that could be made available through transfer, purchase, or lease with total net savings to the Government, after considering property values, costs of moving, occupancy, operational efficiency, environmental effects, regional planning, and employee morale.
Guidelines
§ 102-75.60 What are landholding agencies' responsibilities concerning real property surveys?
A landholding agency's responsibilities concerning real property utilization surveys are to—
(a) Survey real property under its control (i.e., property reported on its financial statements) at least annually to identify property that is not utilized, underutilized, or not being put to optimum use. When other needs for the property are identified or recognized, the agency must determine whether continuation of the current use or another use would better serve the public interest, considering both the Federal agency's needs and the property's location. In conducting annual reviews of their property holdings, the GSA Customer Guide to Real Property Disposal can provide guidelines for Executive agencies to consider in identifying unneeded Federal real property;
(b) Maintain its inventory of real property at the absolute minimum consistent with economical and efficient conduct of the affairs of the agency; and
(c) Promptly report to GSA real property that it has determined to be excess.
§ 102-75.65 Why is it important for Executive agencies to notify the disposal agency of its real property needs?
It is important that each Executive agency notify the disposal agency of its real property needs to determine whether the excess or surplus property of another agency is available that would meet its need and prevent the unnecessary purchase or lease of real property.
§ 102-75.70 Are there any exceptions to this notification policy?
Yes, Executive agencies are not required to notify the disposal agency when an agency's proposed acquisition of real property is dictated by such factors as exact geographical location, topography, engineering, or similar characteristics that limit the possible use of other available property. For example, Executive agencies are not required to notify disposal agencies concerning the acquisition of real property for a dam site, reservoir area, or the construction of a generating plant or a substation, since specific lands are needed, which limit the possible use of other available property. Therefore, no useful purpose would be served by notifying the disposal agency.
§ 102-75.75 What is the most important consideration in evaluating a proposed transfer of excess real property?
In every case of a proposed transfer of excess real property, the most important consideration is the validity and appropriateness of the requirement upon which the proposal is based. Also, a proposed transfer must not establish a new program that has never been reflected in any previous budget submission or congressional action. Additionally, a proposed transfer must not substantially increase the level of an agency's existing programs beyond that which has been contemplated in the President's budget or by the Congress.
(Note: See Subpart I—Screening of Excess Federal Real Property (§§102–75.1220 through 102–75.1290) for information on screening and transfer requests.)
§ 102-75.80 What are an Executive agency's responsibilities before requesting a transfer of excess real property?
Before requesting a transfer of excess real property, an Executive agency must—
(a) Screen its own property holdings to determine whether the new requirement can be met through improved utilization of existing real property; however, the utilization must be for purposes that are consistent with the highest and best use of the property under consideration;
(b) Review all real property under its accountability that has been permitted or outleased and terminate the permit or lease for any property, or portion thereof, suitable for the proposed need, if termination is not prohibited by the terms of the permit or lease;
(c) Utilize property that is or can be made available under §102–75.80(a) or (b) for the proposed need in lieu of requesting a transfer of excess real property and reassign the property, when appropriate;
(d) Confirm that the appraised fair market value of the excess real property proposed for transfer will not substantially exceed the probable purchase price of other real property that would be suitable for the intended purpose;
(e) Limit the size and quantity of excess real property to be transferred to the actual requirements and separate, if possible, other portions of the excess installation for possible disposal to other agencies or to the public; and
(f) Consider the design, layout, geographic location, age, state of repair, and expected maintenance costs of excess real property proposed for transfer; agencies must be able to demonstrate that the transfer will be more economical over a sustained period of time than the acquisition of a new facility specifically planned for the purpose.
§ 102-75.85 Can disposal agencies transfer excess real property to agencies for programs that appear to be scheduled for substantial curtailment or termination?
Yes, but only on a temporary basis with the condition that the property will be released for further Federal utilization or disposal as surplus property at an agreed upon time when the transfer is arranged.
§ 102-75.90 How is excess real property needed for office, storage, and related purposes normally transferred to the requesting agency?
GSA may temporarily assign or direct the use of such excess real property to the requesting agency. See §102–75.240.
§ 102-75.95 Can Federal agencies that normally do not require real property (other than for office, storage, and related purposes) or that may not have statutory authority to acquire such property, obtain the use of excess real property?
Yes, GSA can authorize the use of excess real property for an approved program. See §102–75.240.
Land Withdrawn or Reserved From the Public Domain
§ 102-75.100 When an agency holds land withdrawn or reserved from the public domain and determines that it no longer needs this land, what must it do?
An agency holding unneeded land withdrawn or reserved from the public domain must submit to the appropriate GSA Regional Office a Report of Excess Real Property (Standard Form 118), with appropriate Schedules A, B, and C, only when—
(a) It has filed a notice of intention to relinquish with the Department of the Interior (43 CFR part 2372 et seq.) and sent a copy of the notice to the appropriate GSA Regional Office;
(b) The Department of the Interior has notified the agency that the Secretary of the Interior has determined that the lands are not suitable for return to the public domain for disposition under the general public land laws because the lands are substantially changed in character by improvements or otherwise; and
(c) The Department of the Interior provides a report identifying whether or not any other agency claims primary, joint, or secondary jurisdiction over the lands and whether its records show that the lands are encumbered by rights or privileges under the public land laws.
§ 102-75.105 What responsibility does the Department of the Interior have if it determines that minerals in the land are unsuitable for disposition under the public land mining and mineral leasing laws?
In such cases, the Department of the Interior must—
(a) Notify the appropriate GSA Regional Office of such a determination; and
(b) Authorize the landholding agency to identify in the Standard Form 118 any minerals in the land that the Department of the Interior determines to be unsuitable for disposition under the public land mining and mineral leasing laws.
Transfers Under Other Laws
§ 102-75.110 Can transfers of real property be made under authority of laws other than those codified in Title 40 of the United States Code?
Yes, the provisions of this section shall not apply to transfers of real property authorized to be made by 40 U.S.C. 113(e) or by any special statute that directs or requires an Executive agency to transfer or convey specifically described real property in accordance with the provisions of that statute. Transfers of real property must be made only under the authority of Title 40 of the United States Code, unless the independent authority granted to such agency specifically exempts the authority from the requirements of Title 40.
Reporting of Excess Real Property
§ 102-75.115 Must reports of excess real property and related personal property be prepared on specific forms?
Yes, landholding agencies must prepare reports of excess real property and related personal property on—
(a) Standard Form 118, Report of Excess Real Property, and accompanying Standard Form 118a, Buildings Structures, Utilities, and Miscellaneous Facilities, Schedule A;
(b) Standard Form 118b, Land, Schedule B; and
(c) Standard Form 118c, Related Personal Property, Schedule C.
§ 102-75.120 Is there any other information that needs to accompany (or be submitted with) the Report of Excess Real Property (Standard Form 118)?
Yes, in all cases where Government-owned land is reported excess, Executive agencies must include a title report, prepared or approved by a qualified employee of the landholding agency, documenting the Government's title to the property.
Title Report
§ 102-75.125 What information must agencies include in the title report?
When completing the title report, agencies must include—
(a) The description of the property;
(b) The date title vested in the United States;
(c) All exceptions, reservations, conditions, and restrictions, relating to the title;
(d) Detailed information concerning any action, thing, or circumstance that occurred from the date the United States acquired the property to the date of the report that in any way affected or may have affected the United States' right, title, or interest in and to the real property (including copies of legal comments or opinions discussing the manner in which and the extent to which such right, title, or interest may have been affected). In the absence of any such action, thing, or circumstance, a statement to that effect must be made a part of the report;
(e) The status of civil and criminal jurisdiction over the land that is peculiar to the property by reason of it being Government-owned land. In the absence of any special circumstances, a statement to that effect must be made a part of the report;
(f) Detailed information regarding any known flood hazards or flooding of the property, and, if the property is located in a flood-plain or on wetlands, a listing of restricted uses (along with the citations) identified in Federal, State, or local regulations as required by Executive Orders 11988 and 11990 of May 24, 1977;
(g) The specific identification and description of fixtures and related personal property that have possible historic or artistic value;
(h) The historical significance of the property and whether the property is listed, is eligible for, or has been nominated for listing in the National Register of Historic Places or is in proximity to a property listed in the National Register. If the landholding agency is aware of any effort by the public to have the property listed in the National Register, it must also include this information;
(i) A description of the type, location, and condition of asbestos incorporated in the construction, repair, or alteration of any building or improvement on the property (e.g., fire-proofing, pipe insulation, etc.) and a description of any asbestos control measures taken for the property. Agencies must also provide to GSA any available indication of costs and/or time necessary to remove all or any portion of the asbestos-containing materials. Agencies are not required to conduct any specific studies and/or tests to obtain this information. (The provisions of this subpart do not apply to asbestos on Federal property that is subject to section 120(h) of the Superfund Amendments and Reauthorization Act of 1986, Public Law 99–499);
(j) A statement indicating whether or not lead-based paint is present on the property. Additionally, if the property is target housing (all housing except housing for the elderly or persons with disabilities or any zero bedroom dwelling) constructed prior to 1978, provide a risk assessment and paint inspection report that details all lead-based paint hazards; and
(k) A statement indicating whether or not, during the time the property was owned by the United States, any hazardous substance activity, as defined by regulations issued by the U.S. Environmental Protection Agency (EPA) at 40 CFR part 373, took place on the property. Hazardous substance activity includes situations where any hazardous substance was stored for one year or more, known to have been released, or disposed of on the property. Agencies reporting such property must review the regulations issued by EPA at 40 CFR part 373 for details on the information required and must comply with these requirements. In addition, agencies reporting such property shall review and comply with the regulations for the utilization and disposal of hazardous materials and certain categories of property set forth at 41 CFR part 101–42.
§ 102-75.130 If hazardous substance activity took place on the property, what specific information must an agency include in the title report?
If hazardous substance activity took place on the property, the reporting agency must include information on the type and quantity of such hazardous substance and the time at which such storage, release, or disposal took place. The reporting agency must also advise the disposal agency if all remedial action necessary to protect human health and the environment with respect to any such hazardous substance activity was taken before the date the property was reported excess. If such action was not taken, the reporting agency must advise the disposal agency when such action will be completed or how the agency expects to comply with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the disposal. See §§102–75.340 and 102–75.345.
§ 102-75.135 If no hazardous substance activity took place on the property, what specific information must an agency include in the title report?
If no hazardous substance activity took place, the reporting agency must include the following statement:
The (reporting agency) has determined, in accordance with regulations issued by EPA at 40 CFR part 373, that there is no evidence indicating that hazardous substance activity took place on the property during the time the property was owned by the United States.
Other Necessary Information
§ 102-75.140 In addition to the title report, and all necessary environmental information and certifications, what information must an Executive agency transmit with the Report of Excess Real Property (Standard Form 118)?
Executive agencies must provide—
(a) A legible, reproducible copy of all instruments in possession of the agency that affect the United States' right, title, or interest in the property reported or the use and operation of such property (including agreements covering and licenses to use, any patents, processes, techniques, or inventions). If it is impracticable to transmit the abstracts of title and related title evidence, agencies must provide the name and address of the custodian of such documents in the title report referred to in §102–75.120;
(b) Any appraisal reports indicating or providing the fair market value or the fair annual rental of the property, if requested by the disposal agency; and
(c) A certification by a responsible person that the property does or does not contain polychlorinated biphenyl (PCB) transformers or other equipment regulated by EPA under 40 CFR part 761, if requested by the disposal agency. If the property does contain any equipment subject to EPA regulation under 40 CFR part 761, the certification must include the landholding agency's assurance that each piece of equipment is now and will continue to be in compliance with the EPA regulations until disposal of the property.
Examination for Acceptability
§ 102-75.145 Is GSA required to review each report of excess?
Yes, GSA must review each report of excess to ascertain whether the report was prepared according to the provisions of this part. GSA must notify the landholding agency, in writing, whether the report is acceptable or other information is needed within 15 calendar days after receipt of the report.
§ 102-75.150 What happens when GSA determines that the report of excess is adequate?
When GSA determines that a report is adequate, GSA will accept the report and inform the landholding agency of the acceptance date. However, the landholding agency must, upon request, promptly furnish any additional information or documents relating to the property required by GSA to accomplish a transfer or a disposal.
§ 102-75.155 What happens if GSA determines that the report of excess is insufficient?
Where GSA determines that a report is insufficient, GSA will return the report and inform the landholding agency of the facts and circumstances that make the report insufficient. The landholding agency must promptly take appropriate action to submit an acceptable report to GSA. If the landholding agency is unable to submit an acceptable report, the property will no longer be considered as excess property and the disposal agency will cease activity for the disposal of the property. However, GSA may accept the report of excess on a conditional basis and identify what deficiencies in the report must be corrected in order for the report to gain full acceptance.
Designation as Personal Property
§ 102-75.160 Should prefabricated movable structures be designated real or personal property for disposition purposes?
Prefabricated movable structures such as Butler-type storage warehouses, Quonset huts, and house trailers (with or without undercarriages) reported to GSA along with the land on which they are located may, at GSA's discretion, be designated for disposition as personal property for off-site use or as real property for disposal with the land.
§ 102-75.165 Should related personal property be designated real or personal property for disposition purposes?
Related personal property may, at the disposal agency's discretion, be designated as personal property for disposal purposes. However, for fine artwork and sculptures, GSA's policy is that artwork specifically created for a Federal building is considered as a fixture of the building. This also applies to sculptures created for a Federal building or a public park. Disposal agencies must follow the policies and guidance for disposal of artwork and sculptures developed by the GSA Office of the Chief Architect, Center for Design Excellence and the Arts, and the Bulletin dated March 26, 1934, entitled “Legal Title to Works Produced under the Public Works of Art Project.”
§ 102-75.170 What happens to the related personal property in a structure scheduled for demolition?
When a structure is to be demolished, any fixtures or related personal property therein may, at the disposal agency's discretion, be designated for disposition as personal property where a ready disposition can be made of these items. As indicated in §102–75.165, particular consideration should be given to designating items having possible historical or artistic value as personal property.
Transfers
§ 102-75.175 What are GSA's responsibilities regarding transfer requests?
Before property can be transferred among Federal agencies, to mixed-ownership Government corporations, and to the municipal government of the District of Columbia, GSA must determine that—
(a) The transfer is in the best interest of the Government;
(b) The requesting agency is the appropriate agency to hold the property; and
(c) The proposed land use will maximize use of the real property, in terms of economy and efficiency, to minimize expenditures for the purchase of real property.
(Note: See Subpart I—Screening of Excess Federal Real Property (§§102–75.1220 through 102–75.1290) for information on screening and transfer requests.)
§ 102-75.180 May landholding agencies transfer excess real property without notifying GSA?
Landholding agencies may, without notifying GSA, transfer excess real property that they use, occupy, or control under a lease, permit, license, easement, or similar instrument when—
(a) The lease or other instrument is subject to termination by the grantor or owner of the premises within nine months;
(b) The remaining term of the lease or other instrument, including renewal rights, will provide for less than nine months of use and occupancy; or
(c) The lease or other instrument provides for use and occupancy of space for office, storage, and related facilities, which does not exceed a total of 2,500 square feet.
§ 102-75.185 In those instances where landholding agencies may transfer excess real property without notifying GSA, which policies must they follow?
In those instances, landholding agencies must transfer property following the policies in this subpart.
§ 102-75.190 What amount must the transferee agency pay for the transfer of excess real property?
The transferee agency must pay an amount equal to the property's fair market value (determined by the Administrator)—
(a) Where the transferor agency has requested the net proceeds of the transfer pursuant to 40 U.S.C. 574; or
(b) Where either the transferor or transferee agency (or organizational unit affected) is subject to the Government Corporation Control Act (31 U.S.C. 841), is a mixed-ownership Government corporation, or the municipal government of the District of Columbia.
§ 102-75.195 If the transferor agency is a wholly owned Government corporation, what amount must the transferee agency pay?
As may be agreed upon by GSA and the corporation, the transferee agency must pay an amount equal to—
(a) The estimated fair market value of the property; or
(b) The corporation's book value of the property.
§ 102-75.200 What amount must the transferee agency pay if property is being transferred for the purpose of upgrading the transferee agency's facilities?
Where the transfer is for the purpose of upgrading facilities (i.e., for the purpose of replacing other property of the transferee agency, which because of the location, nature, or condition thereof, is less efficient for use), the transferee must pay an amount equal to the difference between the fair market value of the property to be replaced and the fair market value of the property requested, as determined by the Administrator.
§ 102-75.205 Are transfers ever made without reimbursement by the transferee agency?
Transfers may be made without reimbursement by the transferee agency only if—
(a) Congress has specifically authorized the transfer without reimbursement, or
(b) The Administrator, with the approval of the Director of the Office of Management and Budget (OMB), has approved a request for an exception from the 100 percent reimbursement requirement.
§ 102-75.210 What must a transferee agency include in its request for an exception from the 100 percent reimbursement requirement?
The request must include an explanation of how granting the exception would further essential agency program objectives and at the same time be consistent with Executive Order 12512, Federal Real Property Management, dated April 29, 1985. The transferee agency must attach the explanation to the Request for Transfer of Excess Real and Related Personal Property (GSA Form 1334) prior to submitting the form to GSA. The unavailability of funds alone is not sufficient to justify an exception.
§ 102-75.215 Who must endorse requests for exception to the 100 percent reimbursement requirement?
Agency heads must endorse requests for exceptions to the 100 percent reimbursement requirement.
§ 102-75.220 Where should an agency send a request for exception to the 100 percent reimbursement requirement?
Agencies must submit all requests for exception from the 100 percent reimbursement requirement to the appropriate GSA regional property disposal office.
§ 102-75.225 Who must review and approve a request for exception from the 100 percent reimbursement requirement?
The Administrator must review all requests for exception from the 100 percent reimbursement requirement. If the Administrator approves the request, it is then submitted to OMB for final concurrence. If OMB approves the request, then GSA may complete the transfer.
§ 102-75.230 Who is responsible for property protection and maintenance costs while the request for exception is being reviewed?
The agency requesting the property will assume responsibility for protection and maintenance costs not more than 40 days from the date of the Administrator's letter to OMB requesting concurrence for an exception to the 100 percent reimbursement requirement. If the request is denied, the requesting agency may pay the fair market value for the property or withdraw its request. If the request is withdrawn, responsibility for protection and maintenance cost will return to the landholding agency at that time.
§ 102-75.235 May disposal agencies transfer excess property to the Senate, the House of Representatives, and the Architect of the Capitol?
Yes, disposal agencies may transfer excess property to the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his or her direction, pursuant to the provisions of 40 U.S.C. 113(d). The amount of reimbursement for such transfer must be the same as would be required for a transfer of excess property to an Executive agency under similar circumstances.
Temporary Utilization
§ 102-75.240 May excess real property be temporarily assigned/reassigned?
Yes, whenever GSA determines that it is more advantageous to assign property temporarily rather than permanently, it may do so. If the space is for office, storage, or related facilities, GSA will determine the length of the assignment/reassignment. Agencies are required to reimburse the landholding agency (or GSA, if GSA has become responsible for seeking an appropriation for protection and maintenance expenses) (see §102–75.970) for protection and maintenance expenses. GSA may also temporarily assign/reassign excess real property for uses other than storage, office or related facilities. In such cases, the agency receiving the temporary assignment may be required to pay a rental or users charge based upon the fair market value of the property, as determined by GSA. If the property will be required by the agency for a period of more than 1 year, it may be transferred on a conditional basis, with an understanding that the property will be reported excess at an agreed upon time (see §102–75.85). The requesting agency is responsible for protection and maintenance expenses.
Non-Federal Interim Use of Excess Property
§ 102-75.245 When can landholding agencies grant rights for non-Federal interim use of excess property reported to GSA?
Landholding agencies, upon approval from GSA, may grant rights for non-Federal interim use of excess property reported to GSA, when it is determined that such excess property is not required for the needs of any Federal agency and when the interim use will not impair the ability to dispose of the property.
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