Federal Management Regulation; Transportation Payment and Audit Regulations

<RULE> GENERAL SERVICES ADMINISTRATION <CFR>41 CFR Part 102-118</CFR> <DEPDOC>[FMR Case 2023-02; Docket No. GSA-FMR-2023-0014; Sequence No. 2]</DEPDOC> <RIN>RIN 3090-AK73</RIN> <SUBJECT>Federal Management Regulation; Transportation Payment and Audit Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Government-Wide Policy (OGP), General Services Administration (GSA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The United States General Services Administration (GSA) is issuing a final rule amending the Federal Management Regulation (FMR). This amendment executes changes that include the removal, addition, and revision of definitions, the elimination of gender pronouns, the simplification of requirements, the alteration of statutory references, and the clarification of GSA's role in adjudicating disputes arising from audits of transportation bills. These adjustments are necessary to furnish accurate guidance for agencies, facilitate proper management and compliance with transportation invoice payment and audit obligations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> December 26, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Ron Siegel, Policy Analyst, at 202-702-0840 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or <E T="03">GSARegSec@gsa.gov.</E> Please cite FMR Case 2023-02. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The Travel and Transportation Reform Act of 1998 (Pub. L. 105-264) established the statutory requirement for agencies to perform an audit of transportation expenses prior to payment, assigned to the Administrator of GSA (Administrator) the authority to prescribe regulations for the audit of transportation invoices prior to payment, and the statutory authority for audit oversight of transportation invoices to protect the financial interests of the Government (31 U.S.C. 3726). The law also provides the Administrator the power to conduct prepayment or postpayment audits of transportation bills of any Federal agency. GSA has codified these requirements in 41 CFR part 102-118, Transportation Payment and Audit (Federal Management Regulation (FMR) part 102-118). Certain other statutes collectively empower the Administrator to create regulations governing various aspects of Federal procurement for transportation, ensuring compliance with Federal laws, and promoting the efficient use of Government resources. These include 40 U.S.C. 501, which grants the Administrator the authority to establish regulations for executive agencies regarding the procurement and supply of personal property, nonpersonal services, and related functions, including transportation and transportation services. Additionally, 49 U.S.C. 40118 authorizes the Administrator to prescribe regulations allowing agencies to expend appropriations for transportation in violation of the requirements of said section. GSA last amended FMR part 102-118 on May 31, 2022 (87 FR 32320), to perform editorial and technical changes. That direct final rule introduced the GSA Transportation Audit Management System (TAMS), corrected inaccurate and outdated information, and removed obsolete references to programs, legal citations, and forms. It revised general contact information, corrected hyperlinks, clarified conditions for using certain forms and revised outdated and inaccurate administrative procedures. This final rule modifies definitions that apply to this part, which include incorporating previously undefined terms such as Civilian Board of Contract Appeals (CBCA), refund, and Transportation Audits Management System (TAMS). Furthermore, definitions of forms used exclusively by the GSA Transportation Audits Division have been removed from individual sections and added to the definitions, while terms such as EDI signature, reparation, statement of difference rebuttal, and virtual Government Bill of Lading (GBL), have been removed from the definitions section because the terms are not utilized in this part. Additionally, some definitions have been amended to enhance clarity including the terms cash, Government contractor-issued charge card, and offset. GSA updated the definition of a Government contractor-issued charge card and introduced a new definition for an individually billed travel card. This change was made to define and explain the distinction between the two types of charge cards that the Government may use to procure transportation. The revised definitions clarify agency responsibilities, thereby significantly reducing ambiguity and the potential for non-compliance. This final rule continues to improve upon the changes introduced in the aforementioned direct final rule published on May 31, 2022. That rule eliminated unnecessary procedures for agencies to request GBL and Government Transportation Request (GTR) forms, along with their corresponding control numbers. GSA has amended this FMR part to provide agencies with additional information regarding the requirement to assign numbers to these forms and to manage and track each issued GBL and GTR transportation document. With the publication of this rule, GSA grants agencies discretion in using a GBL for domestic shipping. Agencies, and not GSA, are responsible for maintaining physical control and accountability of the GBLs they issue. In its present form, this FMR part restricts the use of a GBL to international shipments, however GSA acknowledges that agencies might occasionally need to issue a GBL for domestic shipments. Therefore, since agencies are obligated to manage the GBLs they issue, they should have the flexibility to decide when using a GBL is necessary to fulfill their mission. Providing Federal agencies with the latitude to issue GBLs when it is mission-essential enhances their ability to respond promptly and efficiently to critical needs, ensures better control and oversight of transportation processes, optimizes resource use, and can result in cost savings and legal protections. This flexibility is crucial for maintaining the effectiveness and efficiency of Federal operations, especially in times of urgency. Additionally, GSA clarifies that a bill of lading can be used to procure both transportation and transportation services. This rule updates the requirement for agencies to provide a copy of each quotation, tender, or contract of special rates, fares, charges, or concessions with TSPs to the GSA Transportation Audits Division. The revised regulation now requires agencies to send copies of rates provided by pipeline carriers as well. GSA corrected information including legal references related to actions by and against the Government. The revised information now lists proper authorities and deadlines for filing freight charges, loss and damage claims, and filing claims against a TSP for the collection of overcharges. Lastly, GSA has removed gender pronouns from this FMR part. The removal of gender pronouns promotes inclusivity and modernizes the language of the regulation. <HD SOURCE="HD1">II. Discussion of the Final Rule</HD> <HD SOURCE="HD2">A. Summary of Significant Changes</HD> This final rule provides agencies with additional clarification on the role of the TAMS and its benefit to TSPs, specifically when filing certain claims. It also outlines the circumstances under which Federal agencies use the TAMS. Additionally, when agencies submit their paid transportation invoices and other documentation through the TAMS, it allows the GSA Transportation Audits Division to maintain and store these transportation records in accordance with the General Records Schedule. The GSA Transportation Audits Division maintains a central repository of electronic transportation billing records for legal and auditing purposes. Therefore, to comply with the Office of Management and Budget Memorandum M-23-07, GSA now requires agencies to submit their payment documentation for a post payment audit via the TAMS. Other documents that may need to be sent to GSA Transportation Audits Division will only be accepted electronically via email. Consequently, physical mailing addresses have been removed from this FMR part. This change is expected to reduce costs for agencies, streamline the reporting process, and eliminate the need for mailing documents to the GSA Transportation Audits Division. TSPs are also permitted to use the TAMS to file a claim with the GSA Transportation Audits Division; however, its use by TSPs is not required. It is also important to note that as of July 2022, all department level agencies were compliant with this requirement, therefore mandating this requirement should have no additional effect on agency procedures. GSA has also included updated regulatory language addressing the agency's role in adjudicating disputes arising from audits of transportation bills. The Administrator of GSA has the authority to “adjudicate transportation claims which cannot be resolved by the agency procuring the transportation services, or the carrier or freight-forwarder presenting the bill” (31 U.S.C. 3726(c)). GSA acknowledges that its notice of proposed rulemaking (89 FR 12296, February 16, 2024) did not expressly state that such authority is limited to “transportation claims which cannot be resolved by the agency procuring the transportation services, or the carrier or freight-forwarder presenting the bill.” 31 U.S.C. 3726(c). Upon further review of the statute and other relevant factors, including judicial decisions interpreting these provisions, GSA has updated the regulatory text in this final rule to accurately reflect the statutory text. GSA's procedures for performing an audit are incorporated in subpart F of this FMR part an ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 43k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━