General Services Administration Acquisition Regulation; GSAR Case 2006-G508; Rewrite of Part 570, Acquiring Leasehold Interests in Real Property, 63704-63715 [E9-28246]
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Federal Register / Vol. 74, No. 232 / Friday, December 4, 2009 / Proposed Rules
A. Background
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 552 and 570
[GSAR Case 2006–G508; Docket 2009–0017;
Sequence 1]
RIN 3090–AI96
General Services Administration
Acquisition Regulation; GSAR Case
2006–G508; Rewrite of Part 570,
Acquiring Leasehold Interests in Real
Property
AGENCY: Office Acquisition Policy,
General Services Administration (GSA).
ACTION: Proposed rule.
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SUMMARY: The General Services
Administration (GSA) is proposing to
amend the GSA Acquisition Regulation
(GSAR) to revise sections of GSAR part
570 that provide requirements for
acquiring leasehold interests in real
property.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat on or before February 2, 2010
to be considered in the formulation of
a final rule.
ADDRESSES: Submit comments
identified by GSAR Case 2006–G508 by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘GSAR Case 2006–G508’’
under the heading ‘‘Enter Key Word or
ID’’. Follow the instructions provided to
‘‘Submit a Comment’’. Please include
your name, company name (if any), and
‘‘GSAR Case 2006–G508’’ on your
attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat,
1800 F Street, NW., Room 4041, ATTN:
Hada Flowers, Washington, DC 20405.
Instructions: Please submit comments
only and cite GSAR Case 2006–G508 in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Beverly Cromer at (202) 501–1448. For
information pertaining to the status or
publication schedules, contact the
Regulatory Secretariat (MVPR), Room
4041, 1800 F Street, NW., Washington,
DC 20405, (202) 501–4755. Please cite
GSAR Case 2006–G508.
SUPPLEMENTARY INFORMATION:
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GSA is amending the GSAR to revise
GSAR part 570, Acquiring Leasehold
Interests in Real Property. This
proposed rule is a result of the GSA
Acquisition Manual (GSAM) rewrite
initiative. The initiative was undertaken
by GSA to revise the GSAM to maintain
consistency with the Federal
Acquisition Regulation (FAR) and
implement streamlined and innovative
acquisition procedures that contractors,
offerors, and GSA contracting personnel
can use when entering into and
administering contractual relationships.
The GSAM incorporates the GSAR as
well as internal agency acquisition
policy.
GSA will rewrite each part of the
GSAR and GSAM, and as each GSAR
part is rewritten, GSA will publish it in
the Federal Register.
This proposed rule revises GSAR part
570 as follows: Overall changes were
made throughout the text to change
‘‘you’’ to ‘‘contracting officer’’, and to
edit language for clarity.
GSAR 570.101(b) is revised to delete
GSAR rules that are no longer
applicable to the acquisition of
leasehold interests in real property and
to add current references to GSAR
522.805, 522.807, and 532.111.
GSAR 570.101(c) is revised to update
the GSAR provisions that are applicable
in leasing transactions. This section is
revised to delete GSAM sections from
the GSAR and move them to the GSAM,
the non-regulatory portion of the
manual. GSAR 570.101(d) is added to
explain that the FAR does not apply to
leasehold acquisitions of real property
and to further explain that references to
the FAR in GSAR part 570 are used as
a matter of policy where the underlying
statute behind the FAR provision
applies to leasing or as matter of
administrative convenience.
GSAR 570.102 is revised to add
definitions for ‘‘lease acquisition’’,
‘‘lease extension’’, ‘‘lease renewal
(option)’’, ‘‘succeeding lease’’,
‘‘superseding lease,’’ and ‘‘usable square
feet’’. The definition for ‘‘simplified
lease acquisition threshold’’ is revised
to delete the dollar value, and instead
reference FAR 2.101 for information
about the threshold. The definition for
‘‘small business’’ is revised to delete the
dollar limit for annual average gross
receipts and to reference the size
standard established by the Small
Business Administration. Further
revisions were made to include where
the size standards may be found on the
Web. The definition for ‘‘space in
buildings’’ is deleted because this
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definition was only referenced at GSAR
570.105–3, which is also being deleted.
GSAR 570.103 is revised to update the
statutory reference to leasing authority.
In addition, GSAR 570.103 is revised,
consistent with statute and regulation,
to allow the contracting officer to
designate a contracting officer’s
representative.
GSAR 570.105–2 is re-titled Criteria
for the use of two-phase design-build.
GSAR 570.105–2 is revised to update
the statutory reference to leasing
authority. GSAR 570.105–2(c) is added
to reference 570.305, where additional
procedures can be found regarding twophase design-build selections that apply
to acquisition of leasehold interests.
GSAR 570.105–3 is deleted in its
entirety because sealed bidding is not
used in GSA leasing transactions.
GSAR 570.106 is re-titled Advertising,
Publicizing, and Notifications to
Congress, and revised to incorporate
advertising requirements from GSAR
part 505, because most of the exceptions
to advertising requirements contained in
GSAR part 505 relate to the leasing
program.
GSAR 570.106–1, Synopsis of lease
awards, is added to incorporate
synopsizing requirements of lease
awards from GSAR part 505.
GSAR 570.108 is revised to update
reference to ‘‘Excluded Parties List
System’’ (EPLS).
GSAR 570.109 is revised to add the
language ‘‘representations and’’ for
clarification.
GSAR 570.110 is revised to require
the contracting officer to obtain two bids
or cost and pricing data for price
analysis of offered tenant improvement
costs.
GSAR 570.111 is revised to require
that the inspection and acceptance
document contain the usable square
footage accepted and the acceptance
date.
GSAR 570.115, Novation and Change
of Ownership, is added to include
language stating that FAR subpart 42.12
applies in the event of a transfer of
ownership of the leased premises or a
change in the lessor’s legal name.
GSAR 570.116, Contract Format, is
added to include language stating that
the uniform contract format is not
required for leases of real property.
GSAR 570.117, Sustainable
requirements for lease acquisitions, is
added to add a requirement for the
contracting officer to include
sustainable design requirements
appropriate for the type of leasing action
in solicitations for offers and to provide
that the solicitation requirements and
instructions are listed on https://gsa.gov/
leasing.
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GSAR 570.203–3(a), is revised to add
a reference to ‘‘GSA Form 3626’’ for
clarity and to require the contracting
officer to include sustainable design
requirements in offers.
GSAR 570.203–4 is revised to include
a reference to the thresholds at FAR
15.403–4 and 19.702(a). It is further
revised to require that the contracting
officer make an affirmative
determination of price reasonableness.
GSAR subpart 570.3 is renamed
Acquisition Procedures for Leasehold
Interests in Real Property Over the
Simplified Lease Acquisition Threshold.
GSAR 570.303–1 is revised to add a
requirement that each solicitation of
offers (SFO) must include sustainable
design requirements.
GSAR 570.303–2 is revised to allow
electronic issuance of solicitations.
GSAR 570.303–4 is revised to require
contracting officers to re-advertise and
reissue a solicitation when a complete
revision of a solicitation is required in
accordance with GSAR 570.106.
GSAR 570.304 is revised to
adequately distinguish between best
value and low price technically
acceptable acquisitions.
GSAR 570.305 is revised to require
the contracting officer to consider
planned subcontracting opportunities
for small disadvantaged business
concerns during phase one evaluations.
GSAR 570.306(b) is revised to require
the contracting officer to review the
elements of the lessor’s proposed rent to
analyze whether the individual
elements are realistic and reflect the
lessor’s understanding of work to be
performed.
GSAR 570.306(c) is revised to add
information on past performance
evaluations.
GSAR 570.306(f) is revised to direct
the reader to important paragraphs in
part 570 concerning the evaluation of
offers.
GSAR 570.401 is revised to add
language indicating that if a renewal
option was not evaluated as part of the
lease at award, then the addition of a
renewal option during the lease term
must satisfy the requirements of GSAM
506 regarding full and open
competition.
GSAR 570.402–2 is revised to update
the reference to publication and
advertising requirements for leases.
GSAR 570.402–5(a) is revised to add
language to emphasize that relocation
costs are to be used in price evaluations.
GSAR 570.402–6 is revised to provide
clarification on how to conduct a costbenefit analysis.
GSAR 570.403 is revised for clarity to
refer to the cost-benefit analysis in
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570.402–6 when identifying other
potentially suitable properties.
GSAR 570.404 is revised to clarify
that a superseding lease may be used
when market conditions warrant
renegotiation of an existing lease, and to
provide considerations of a cost-benefit
analysis.
GSAR 570.405 is revised to provide
examples of situations where lease
extensions may be appropriate.
GSAR 570.501(a) is revised to explain
that the procedures in 570.502 apply to
alterations acquired directly from a
lessor by modification or supplemental
lease agreement.
GSAR 570.502 is deleted because this
information is addressed in 570.501(a).
GSAR 570.502–1 is revised to tie the
threshold to the FAR definition of the
micro-purchase threshold.
GSAR 570.502–2 is revised to delete
language that refers to an obsolete form,
GSA Form 300, and allow the lease
contracting officer to delegate alteration
contracting authority to a warranted
contracting officer’s representative in
GSA or the tenant agency.
GSAR 570.503 is revised to delete
paragraph (b) from the GSAM and
incorporate it into the GSAR.
GSAR subpart 570.6 is renumbered as
GSAR subpart 570.7 and a new GSAR
Subpart 570.6, Contracting for Overtime
Services and Utilities in Leases is added
to provide requirements for when
overtime services and utilities.
GSAR 570.601 is renumbered as
570.701 and is revised to delete the
reference to the dollar value of the
thresholds, and to instead provide the
FAR reference because the thresholds
may change.
GSAR 570.601 is revised to include
additional FAR provisions or clauses
that must be included in solicitations.
GSAR 570.602 and 570.603 are
renumbered as 570.702 and 703,
respectively, and are revised to require
the contracting officer to document the
file when deleting or substantially
changing a clause. GSAR 570.603 is
further revised to number the
paragraphs (a) and (b), and to include
language in paragraphs (a) and (b) to
require the contracting officer to include
the following additional clauses in
leaseholds for real property:
552.215–70, Examination of Records
by GSA;
552.270–28, Mutuality of Obligation;
552.270–29, Acceptance of Space;
552.270–30, Price Adjustment for
Illegal or Improper Activity;
552.270–31, Prompt Payment; and
552.270–32, Covenant Against
Contingent Fees.
GSAR 570.604 is renumbered as
570.704 and is revised to delete the
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reference to GSAR clause 552.203–5,
Covenant Against Contingent Fees,
because the updated clause number is
now referenced in 570.703.
GSAR 570.701 is renumbered as
570.801 and is revised to delete the
instructions to omit the reference to
Standard Form 2–A.
GSAR 570.802(d) is added to allow
the use of the GSA Form 1217, Lessor’s
Annual Cost Statement, to obtain
pricing information regarding offered
services and lease commissions.
The clause at GSAR 552.270–1,
Instructions to Offerors-Acquisition
Leasehold Interest in Real Property, is
revised to add language requiring
execution and delivery of a lease to
effectuate contract formation. It also
adds paragraph (f) to address paperwork
collection information.
The provision at GSAR 552.270–3,
Parties to Execute Leases, is revised to
make it consistent with the instructions
contained in FAR 4.102.
The clause at GSAR 552.270–7, Fire
and Casualty Damage, is revised to
permit the government to assess a
property’s condition before giving
notice of termination.
The clause at GSAR 552.270–14,
Changes, is revised to specify the impact
of the failure to assert a claim for a price
adjustment.
The clause at GSAR 552.270–16,
Adjustment for Vacant Premises, is
revised to clarify when and how
adjustments for vacant premises will be
made.
The clause at GSAR 552.270–29,
Acceptance of Space, is revised to
simplify the reference to a section in the
solicitation.
The clause at GSAR 552.203.70, Price
Adjustment for Illegal or Improper
Activity, is relocated from GSAR part
503 to GSAR part 570 and, as a result,
is renumbered as GSAR 552.270–30.
The clause at GSAR 552.232–75,
Prompt Payment, is relocated from
GSAR part 532 to GSAR part 570 and,
as a result, is renumbered as GSAR
552.270–31. This clause is also revised
to add paragraph (d) Overpayments, to
give instructions to the contractor in
cases where the Government has
overpaid.
The clause at GSAR 552.203–5,
Covenant Against Contingent Fees, is
relocated from GSAR part 503 to GSAR
part 570 and, as a result, is renumbered
as GSAR 552.270–32.
Discussion of Comments
There were no public comments
received in response to the ‘‘Advanced
Notice of Proposed Rulemaking’’
pertaining to this GSAR part.
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This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The General Services Administration
does not expect this proposed rule to
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the revisions are not considered
substantive. The revisions delete
obsolete coverage, clarify existing
coverage, and edit current language. An
‘‘Initial Regulatory Flexibility Analysis’’
has therefore, not been performed. We
invite comments from small businesses
and other interested parties. GSA will
consider comments from small
businesses concerning the affected
GSAR part 570 in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C. 601, et seq. (GSAR
case 2006–G508), in all correspondence.
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C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
applies because the proposed rule
contains information collection
requirements. Accordingly, the
Regulatory Secretariat has submitted a
request for approval of a new
information collection requirement
concerning GSAR Case 2006–G508 to
the Office of Management and Budget
(OMB) under 44 U.S.C. 3501, et seq.
Annual Reporting Burden
At GSAR 570.702(d), the contracting
officer may use GSA Form 1217,
Lessor’s Annual Cost Statement, to
obtain pricing information regarding
offered services and lease commissions.
The annual reporting burden is
estimated as follows:
Respondents: 5,733.
Responses per respondent: 1.
Total annual responses: 5,733.
Preparation hours per response: 1
hour.
Total response burden hours: 5,733.
Public reporting burden for this
collection of information is estimated to
average 1 hour per response, including
the time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
An existing OMB clearance, OMB
Control No. 3090–0086, covers the
information contained in GSAR
570.702(c), GSA Form 1364, Proposal
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To Lease Space. In this instance, the
PRA does not apply because the
proposed changes to the GSAM do not
impose information collection
requirements that require the approval
of OMB under 44 U.S.C. 3501, et seq.
D. Request for Comments Regarding
Paperwork Burden
Submit comments, including
suggestions for reducing this burden,
not later than February 2, 2010 to: GSAR
Desk Officer, OMB, Room 10102, NEOB,
Washington, DC 20503, and a copy to
the General Services Administration,
Regulatory Secretariat (MVPR), 1800 F
Street, NW., Room 4041, Washington,
DC 20405.
Public comments are particularly
invited on: Whether this collection of
information is necessary for the proper
performance of functions of the GSAR,
and will have practical utility; whether
our estimate of the public burden of this
collection of information is accurate,
and based on valid assumptions and
methodology; ways to enhance the
quality, utility, and clarity of the
information to be collected; and ways in
which we can minimize the burden of
the collection of information on those
who are to respond, through the use of
appropriate technological collection
techniques or other forms of information
technology.
Requester may obtain a copy of the
justification from the General Services
Administration, Regulatory Secretariat
(MVPR), Room 4041, Washington, DC
20405, telephone (202) 501–4755. Please
cite OMB Control Number 3090–00XX,
GSAR Case 2006–G508, Acquiring
Leasehold Interests in Real Property, in
all correspondence.
List of Subjects in 48 CFR Parts 552 and
570
Government procurement.
Dated: November 5, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of
Acquisition Policy, U.S. General Services
Administration.
Therefore, GSA proposes to amend 48
CFR parts 552 and 570 as set forth
below:
1. The authority citation for 48 CFR
parts 552 and 570 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
2. Amend section 552.270–1 by—
a. Removing from the clause heading
‘‘(MAR 1998)’’ and adding ‘‘([DATE])’’
in its place;
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b. Revising in paragraph (a) the
definition ‘‘In writing or written’’;
c. Removing from paragraph
(c)(2)(i)(A) ‘‘the 5th’’ and adding ‘‘the
fifth’’ in its place;
d. Removing from paragraph
(c)(2)(i)(E) ‘‘the Contracting’’ and adding
‘‘that the Contracting’’ in its place;
e. Revising paragraph (e)(7); and
f. Adding paragraph (f).
The revised and added text reads as
follows:
552.270–1 Instructions to Offerors—
Acquisition of Leasehold Interests in Real
Property.
*
*
*
*
*
(a) * * *
In writing, writing, or written means
any worded or numbered expression
that can be read, reproduced, and later
communicated, and includes
electronically transmitted and stored
information.
*
*
*
*
*
(e) * * *
(7) The execution and delivery of the
Lease contract by the Government
establishes a valid award and contract.
*
*
*
*
*
(f) Paperwork collection. The
information collection requirements
contained in this solicitation/contract
are either required by regulation or
approved by the Office of Management
and Budget pursuant to the Paperwork
Reduction Act and assigned OMB
Control No. 3090–0163.
3. Amend section 552.270–3 by—
a. Removing from the clause heading
‘‘(SEP 1999)’’ and adding ‘‘([DATE])’’ in
its place;
b. Revising paragraphs (a) and (b);
c. Removing from paragraph (c) ‘‘shall
be signed with’’ and adding ‘‘must be
signed in’’ in its place; and
d. Adding paragraphs (d) and (e).
The revised and added text reads as
follows:
552.270–3
Parties to Execute Lease.
*
*
*
*
*
(a) If the lessor is an individual, that
individual shall sign the lease. A lease
with an individual doing business as a
firm shall be signed by that individual,
and the signature shall be followed by
the individual’s typed, stamped, or
printed name and the words, ‘‘an
individual doing business as ________
[insert name of firm]’’.
(b) If the Lessor is a partnership, the
lease must be signed in the partnership
name, followed by the name of the
legally authorized partner signing the
same, and a copy of either the
partnership agreement or current
Certificate of Limited Partnership shall
accompany the lease.
*
*
*
*
*
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(d) If the Lessor is a joint venture, the
lease must be signed by each participant
in the joint venture in the manner
prescribed in paragraphs (a) through (c)
of this provision for each type of
participant. When a corporation is
participating in the joint venture, the
corporation shall provide evidence that
the corporation is authorized to
participate in the joint venture.
(e) If the lease is executed by an
attorney, agent, or trustee on behalf of
the Lessor, an authenticated copy of his/
her power of attorney, or other evidence
to act on behalf of the Lessor, must
accompany the lease.
cost adjustment after the notice of reduction
to the rent, the base cost of services subject
to escalation will be reduced by said amount.
In the event that the Government occupies or
reoccupies the vacant premises on the lease
anniversary date following the occupation of
the vacant premises, the base cost of services
subject to escalation will be increased by said
amount.
(c) The reduction in operating costs shall
be negotiated and stated in the lease.
(End of clause)
552.270–7
552.270–29
[Amended]
7. Amend section 552.270–29 by
removing from the clause heading ‘‘(SEP
1999)’’ and adding ‘‘([DATE])’’ in its
place, and revising paragraph (b) to read
as follows:
Acceptance of Space.
4. Amend section 552.270–7 by
removing from the clause heading ‘‘(SEP
1999)’’ and adding ‘‘([DATE])’’ in its
place, and removing from the second
sentence of the clause ‘‘days of the fire
or other casualty;’’ and adding ‘‘days
after such determination;’’ in its place.
5. Amend section 552.270–14 by
removing from the clause heading ‘‘(SEP
1999)’’ and adding ‘‘([DATE])’’ in its
place, and revising paragraph (c) to read
as follows:
*
552.270–14
As prescribed in 570.603, insert the
following clause:
Changes.
*
*
*
*
*
(c) The Lessor must assert its right to
an adjustment under this clause within
30 days from the date of receipt of the
change order and must submit a
proposal for adjustment. The Lessor’s
failure to assert its right for adjustment
within the time frame specified herein
shall be a waiver of the Lessor’s right to
an adjustment under this paragraph.
Failure to agree to any adjustment shall
be a dispute under the Disputes clause.
However, nothing in this clause excuses
the lessor from proceeding with the
change as directed.
*
*
*
*
*
6. Revise section 552.270–16 to read
as follows:
552.270–16
Premises.
Adjustment for Vacant
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As prescribed in 570.603, insert the
following clause:
Adjustment for Vacant Premises ([DATE])
(a) If the Government fails to occupy any
portion of the leased premises or vacates the
premises in whole or in part before the lease
term expires, the rental rate will be reduced.
The reduction shall occur after the
Government gives 30 calendar days’ notice to
the Lessor, and shall continue in effect until
the Government occupies or reoccupies the
vacant premises or the lease expires or is
terminated.
(b) The rate will be reduced by that portion
of the costs per usable square foot of
operating expenses not required to maintain
the space. In addition, at the first operating
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*
*
*
*
(b) The Government will accept the
space and the lease term will begin after
determining that the space is
substantially complete and contains the
required usable square footage as
indicated in the solicitation paragraph,
Amount and Type of Space.
8. Add section 552.270–30 to read as
follows:
552.270–30 Price Adjustment for Illegal or
Improper Activity.
Price Adjustment for Illegal or Improper
Activity ([DATE])
(a) If the head of the contracting activity
(HCA) or his or her designee determines that
there was a violation of subsection 27(a) of
the Office of Federal Procurement Policy Act,
as amended (41 U.S.C. 423), as implemented
in the Federal Acquisition Regulation, the
Government, at its election, may—
(1) Reduce the monthly rental under this
lease by five percent of the amount of the
rental for each month of the remaining term
of the lease, including any option periods,
and recover five percent of the rental already
paid;
(2) Reduce payments for alterations not
included in monthly rental payments by five
percent of the amount of the alterations
agreement; or
(3) Reduce the payments for violations by
a Lessor’s subcontractor by an amount not to
exceed the amount of profit or fee reflected
in the subcontract at the time the subcontract
was placed.
(b) Prior to making a determination as set
forth above, the HCA or designee shall
provide to the Lessor a written notice of the
action being considered and the basis
therefor. The Lessor shall have a period
determined by the agency head or designee,
but not less than 30 calendar days after
receipt of such notice, to submit in person,
in writing, or through a representative,
information and argument in opposition to
the proposed reduction. The agency head or
designee may, upon good cause shown,
determine to deduct less than the above
amounts from payments.
(c) The rights and remedies of the
Government specified herein are not
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exclusive, and are in addition to any other
rights and remedies provided by law or
under this lease.
(End of clause)
9. Add section 552.270–31 to read as
follows:
552.270–31
Prompt Payment.
As prescribed in 570.603, insert the
following clause:
Prompt Payment (Sep 1999)
The Government will make payments
under the terms and conditions specified in
this clause. Payment shall be considered as
being made on the day a check is dated or
an electronic funds transfer is made. All days
referred to in this clause are calendar days,
unless otherwise specified.
(a) Payment due date.
(1) Rental payments. Rent shall be paid
monthly in arrears and will be due on the
first workday of each month, and only as
provided for by the lease.
(i) When the date for commencement of
rent falls on the 15th day of the month or
earlier, the initial monthly rental payment
under this contract shall become due on the
first workday of the month following the
month in which the commencement of the
rent is effective.
(ii) When the date for commencement of
rent falls after the 15th day of the month, the
initial monthly rental payment under this
contract shall become due on the first
workday of the second month following the
month in which the commencement of the
rent is effective.
(2) Other payments. The due date for
making payments other than rent shall be the
later of the following two events:
(i) The 30th day after the designated billing
office has received a proper invoice from the
Contractor.
(ii) The 30th day after Government
acceptance of the work or service. However,
if the designated billing office fails to
annotate the invoice with the actual date of
receipt, the invoice payment due date shall
be deemed to be the 30th day after the
Contractor’s invoice is dated, provided a
proper invoice is received and there is no
disagreement over quantity, quality, or
Contractor compliance with contract
requirements.
(b) Invoice and inspection requirements for
payments other than rent.
(1) The Contractor shall prepare and
submit an invoice to the designated billing
office after completion of the work. A proper
invoice shall include the following items:
(i) Name and address of the Contractor.
(ii) Invoice date.
(iii) Lease number.
(iv) Government’s order number or other
authorization.
(v) Description, price, and quantity of work
or services delivered.
(vi) Name and address of Contractor
official to whom payment is to be sent (must
be the same as that in the remittance address
in the lease or the order).
(vii) Name (where practicable), title, phone
number, and mailing address of person to be
notified in the event of a defective invoice.
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(2) The Government will inspect and
determine the acceptability of the work
performed or services delivered within seven
days after the receipt of a proper invoice or
notification of completion of the work or
services unless a different period is specified
at the time the order is placed. If actual
acceptance occurs later, for the purpose of
determining the payment due date and
calculation of interest, acceptance will be
deemed to occur on the last day of the seven
day inspection period. If the work or service
is rejected for failure to conform to the
technical requirements of the contract, the
seven days will be counted beginning with
receipt of a new invoice or notification. In
either case, the Contractor is not entitled to
any payment or interest unless actual
acceptance by the Government occurs.
(c) Interest Penalty.
(1) An interest penalty shall be paid
automatically by the Government, without
request from the Contractor, if payment is not
made by the due date.
(2) The interest penalty shall be at the rate
established by the Secretary of the Treasury
under Section 12 of the Contract Disputes
Act of 1978 (41 U.S.C. 611) that is in effect
on the day after the due date. This rate is
referred to as the ‘‘Renegotiation Board
Interest Rate,’’ and it is published in the
Federal Register semiannually on or about
January 1 and July 1. The interest penalty
shall accrue daily on the payment amount
approved by the Government and be
compounded in 30-day increments inclusive
from the first day after the due date through
the payment date.
(3) Interest penalties will not continue to
accrue after the filing of a claim for such
penalties under the clause at 52.233–1,
Disputes, or for more than one year. Interest
penalties of less than $1.00 need not be paid.
(4) Interest penalties are not required on
payment delays due to disagreement between
the Government and Contractor over the
payment amount or other issues involving
contract compliance or on amounts
temporarily withheld or retained in
accordance with the terms of the contract.
Claims involving disputes, and any interest
that may be payable, will be resolved in
accordance with the clause at 52.233–1,
Disputes.
(d) Overpayments. If the Lessor becomes
aware of a duplicate payment or that the
Government has otherwise overpaid on a
payment, the Contractor shall—
(1) Return the overpayment amount to the
payment office cited in the contract along
with a description of the overpayment
including the—
(i) Circumstances of the overpayment (e.g.,
duplicate payment, erroneous payment,
liquidation errors, date(s) of overpayment);
(ii) Affected lease number;
(iii) Affected lease line item or subline
item, if applicable; and
(iv) Lessor point of contact.
(2) Provide a copy of the remittance and
supporting documentation to the Contracting
Officer.
(End of clause)
Alternate I (Sep 1999). If Alternate I
is used, subparagraph (a)(1) of the basic
clause should be designated as
paragraph (a) and subparagraph (a)(2)
and paragraph (b) should be deleted.
Paragraph (c) of the basic clause should
be redesignated (b).
10. Add section 552.270–32 to read as
follows:
552.270–32
Fees.
Covenant Against Contingent
to deduct from the contract price or
consideration, or otherwise recover the full
amount of the contingent fee.
(b) Bona fide agency, as used in this clause,
means an established commercial or selling
agency (including licensed real estate agents
or brokers), maintained by a Contractor for
the purpose of securing business, that neither
exerts nor proposes to exert improper
influence to solicit or obtain Government
contracts nor holds itself out as being able to
obtain any Government contract or contracts
through improper influence.
Bona fide employee, as used in this clause,
means a person, employed by a Contractor
and subject to the Contractor’s supervision
and control as to time, place, and manner of
performance, who neither exerts nor
proposes to exert improper influence to
solicit or obtain Government contracts nor
holds out as being able to obtain any
Government contract or contracts through
improper influence.
Contingent fee, as used in this clause,
means any commission, percentage,
brokerage, or other fee that is contingent
upon the success that a person or concern
has in securing a Government contract.
Improper influence, as used in this clause,
means any influence that induces or tends to
induce a Government employee or officer to
give consideration or to act regarding a
Government contract on any basis other than
the merits of the matter.
(End of clause)
As prescribed in 570.603, insert the
following clause:
PART 570—ACQUIRING LEASEHOLD
INTERESTS IN REAL PROPERTY
Covenant Against Contingent Fees ([DATE])
(a) The Contractor warrants that no person
or agency has been employed or retained to
solicit or obtain this contract upon an
agreement or understanding for a contingent
fee, except a bona fide employee or agency.
For breach or violation of this warranty, the
Government shall have the right to annul this
contract without liability or, in its discretion,
11. Amend section 570.101 by
revising the table in paragraph (b), and
adding paragraphs (c) and (d) to read as
follows:
570.101
*
Applicability.
*
*
(b) * * *
*
*
GSAR RULES APPLICABLE TO ACQUISITIONS OF LEASEHOLD INTERESTS IN REAL PROPERTY
501
502
503
509.4
514.407
515.209–70
515.305
517.202
517.207
519.7
(c) The following GSAM provisions
apply to acquisitions of leasehold
interests in real property. These are in
519.12
522.805
522.807
532.111
533
536.271
537.2
552
553
addition to the GSAR requirements
identified in 570.101(b).
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GSAM APPLICABLE TO ACQUISITIONS OF LEASEHOLD INTERESTS IN REAL PROPERTY
501
503
504.2
504.9
504.606
504.11
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507
515.305–70
515.305–71
515.6
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519.7
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522.13
522.14
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532.8
532.9
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(d) The FAR does not apply to
leasehold acquisitions of real property.
Where referenced in this part, FAR
provisions have been adopted based on
a statutory requirement applicable to
such lease acquisitions or as a matter of
policy, including, but not limited to
‘‘Federal agency procurement’’ as
defined at FAR 3.104.
12. Amend section 570.102 by—
a. Removing the definition
‘‘Acquisition’’;
b. Adding, in alphabetical order, the
definitions ‘‘Lease acquisition’’, ‘‘Lease
extension’’, and ‘‘Lease renewal
(option)’’;
c. Revising the definitions
‘‘Simplified lease acquisition
threshold’’, ‘‘Small business’’, and
‘‘Solicitation for Offers (SFO)’’;
d. Removing the definition ‘‘Space in
buildings’’;
e. Removing from the first sentence of
the definition ‘‘Substantially as follows’’
or ‘‘substantially the same as,’’ the word
‘‘you’’ and adding ‘‘the contracting
officer’’ in its place; and
f. Adding, in alphabetical order, the
definitions ‘‘Succeeding lease’’,
‘‘Superseding lease’’, and ‘‘Usable
square feet’’.
The added and revised text reads as
follows:
570.102
Definitions.
srobinson on DSKHWCL6B1PROD with PROPOSALS
*
*
*
*
*
Lease acquisition means the acquiring
by lease of an interest in improved real
property for use by the Federal
Government, whether the space already
exists or must be constructed.
Lease extension means extension of
the expiration date of a lease to provide
for continued occupancy on a short term
basis.
Lease renewal (option) means the
right, but not the obligation of the
Government to continue a lease upon
specified terms and conditions,
including lease term and rent.
*
*
*
*
*
Simplified lease acquisition threshold
means the simplified acquisition
threshold (see FAR 2.101), when
applied to the average annual amount of
rent for the term of the lease, including
option periods and excluding the cost of
services.
Small business means a concern
including affiliates, which is organized
for profit, is independently-owned and
operated, is not dominant in the field of
leasing commercial real estate, and that
has annual average gross receipts for the
preceding three fiscal years which are
less than the size standard established
by the Small Business Administration
pursuant to 13 CFR Part 121. The size
standards may be found at https://
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www.sba.gov/size/sizetable2002.html.
For most lease procurements, the NAICS
code is 531190.
Solicitation for Offers (SFO) means a
request for negotiated proposals.
*
*
*
*
*
Succeeding lease means a lease whose
effective date immediately follows the
expiration date of an existing lease for
space in the same building.
Superseding lease means a lease that
replaces an existing lease, prior to the
scheduled expiration of the existing
lease term.
Usable square feet means the
American National Standards Institute/
Building Owners and Managers
Association (ANSI/BOMA) Office Area
where a tenant normally houses
personnel, and/or furniture, for which a
measurement is to be computed.
13. Revise section 570.103 to read as
follows:
570.103
Authority to lease.
(a) The Administrator of General
Services is authorized by 40 U.S.C. 585
to enter into a lease agreement for the
accommodation of a Federal agency in
a building (or improvement) which is in
existence or being erected by the lessor
for the accommodation of the Federal
agency. The lease agreement may not
bind the Government for more than 20
years.
(b) The contracting officer has
exclusive authority to enter into and
administer leases on the Government’s
behalf to the extent provided in his/her
certificate of appointment as a
contracting officer. Nothing in this
subsection is intended to limit the
contracting officer’s authority to
designate, consistent with statute and
regulation, a contracting officer’s
representative.
570.104
[Amended]
14. Amend section 570.104 by
removing ‘‘Unless use’’ and adding
‘‘Unless the contracting officer uses’’ in
its place.
15. Revise section 570.105–1 to read
as follows:
570.105–1
Contracting by negotiation.
Contracting by negotiation is
appropriate for acquiring space in a
building through a lease contract. The
contracting officer will usually need to
conduct discussions with offerors about
their proposals and consider factors
other than price in making the award.
16. Amend section 570.105–2 by—
a. Revising the section heading;
b. Revising the introductory
paragraph and paragraph (a);
c. Removing from paragraph (b) ‘‘You
determine’’ and adding ‘‘The
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contracting officer determines whether’’
in its place;
d. Removing from paragraph (b)(1)
‘‘You expect’’ and adding ‘‘The
contracting officer expects’’ in its place;
e. Removing from paragraph (b)(4)
‘‘You consider’’ and adding ‘‘The
contracting officer considers’’ in its
place;
f. Redesignating paragraphs (b)(iv)
through (b)(vi) as paragraphs (b)(v)
through (b)(vii) and adding new
paragraph (b)(iv); and
g. Adding paragraph (c).
The revised and added text reads as
follows:
570.105–2 Criteria for the use of twophase design-build.
The contracting officer may use the
two-phase design-build selection
procedures in 41 U.S.C. 253m for lease
construction projects. This includes
lease construction projects with options
to purchase the real property leased.
Use the procedures in 41 U.S.C. 253m
and FAR 36.3 when the conditions in
paragraphs (a) and (b) of this section are
met:
(a) The contracting officer anticipates
that the lease will involve the design
and construction of a building, facility,
or work for lease to the Government.
(b) * * *
(4) * * *
(iv) The past performance of potential
contractors.
*
*
*
*
*
(c) See 570.305 for additional
information.
570.105–3
[Removed]
17. Remove section 570.105–3.
18. Revise section 570.106 to read as
follows:
570.106 Advertising, Publicizing, and
Notifications to Congress.
(a) If a proposed acquisition is not
exempt under FAR 5.202 or GSAR
570.106(e), and is for a leasehold
interest in real property estimated to
exceed 10,000 usable square feet, then
the contracting officer must publicize
the proposed acquisition in
FedBizOpps.gov.
(b) For leasehold acquisitions where
the solicitation requires the construction
of a new building on a preselected site,
the contracting officer, in accordance
with the timeframes established in FAR
5.203, must publicize the proposed
acquisition in FedBizOpps.gov
regardless of size or value.
(c) Other than as identified above, the
contracting officer need not publicize
the proposed acquisition of a leasehold
interest in real property, including
expansion requests within the scope of
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a lease (see 570.403), lease extensions
under the conditions defined in
570.405, and building alterations within
the scope of a lease (see 570.5).
However, the contracting officer may
publicize proposed lease acquisitions of
any dollar value or square footage in
FedBizOpps.gov or local newspapers if,
in the opinion of the contracting officer,
doing so is necessary to promote
competition.
(d) The contracting officer may issue
a consolidated advertisement for
multiple, leasing actions.
(e) Except as otherwise provided in
paragraph (b) above, where publicizing
of the proposed acquisition is required,
the notice shall be published in
FedBizOpps.gov not less than three
calendar days prior to issuance of a
solicitation.
(f) Except as otherwise provided in
paragraph (b) of this section and as set
forth below, the contracting officer shall
provide offerors not less than 20
calendar days between solicitation
issuance and the date established for
receipt of initial offers.
(1) For a proposed acquisition using
simplified lease acquisition procedures
(see 570.2), consider the individual
acquisition and establish a reasonable
response time.
(2) In cases of unusual and
compelling urgency (FAR 6.303–2),
provide as much time as reasonably
possible under the circumstances and
document the contract file.
(g) If a Member of Congress has
specifically requested notification of
award, the contracting officer must
provide award notifications in
accordance with 505.303.
19. Add section 570.106–1 to read as
follows:
srobinson on DSKHWCL6B1PROD with PROPOSALS
570.106–1
Synopsis of lease awards.
(a) Except for lease actions described
in paragraph (b) of this section,
contracting officers must synopsize in
FedBizOpps.gov awards exceeding
$25,000 total contract value that are
likely to result in the award of any
subcontracts. However, the dollar
threshold is not a prohibition against
publicizing an award of a smaller
amount when publicizing would be
advantageous to industry or to the
Government.
(b) A notice is not required if—
(1) The notice would disclose the
occupant agency’s needs and the
disclosure of such needs would
compromise the national security; or
(2) The lease—
(i) Is for an amount not greater than
the simplified lease acquisition
threshold;
(ii) Was made through a means where
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action was provided through
FedBizOpps.gov; and
(iii) Permitted the public to respond
to the solicitation electronically.
(c) Justifications for other than full
and open competition must be posted in
FedBizOpps.gov. Information exempt
from public disclosure must be
redacted.
570.107
[Amended]
20. Amend section 570.107 by
removing ‘‘You may use’’ and adding
‘‘The contracting officer may require’’ in
its place.
570.108
[Amended]
21. Amend section 570.108 by—
a. Removing from the third sentence
in paragraph (a) ‘‘the List of Parties
Excluded from Federal Procurement and
Nonprocurement Programs’’ and adding
‘‘the Excluded Parties List System
(EPLS)’’ in its place;
b. Removing from paragraph (b) ‘‘Your
signature’’ and adding ‘‘the contracting
officer’s signature’’ in its place; and
c. Removing from paragraphs (c) and
(d) ‘‘you find’’ and adding ‘‘the
contracting officer finds’’ in its place.
570.109
[Amended]
22. Amend section 570.109 by
removing ‘‘applicable certifications’’
and adding ‘‘applicable representations
and certifications’’ in its place.
23. Amend section 570.110 by
revising paragraph (b) to read as follows:
570.110 Cost or pricing data and
information other than cost or pricing data.
*
*
*
*
*
(b) FAR 15.403–1 defines exceptions
to and waivers for submitting cost or
pricing data. Most leasing actions will
have adequate price competition. For
price analysis of offered rental rates, the
contracting officer may use a market
survey, an appraisal conducted using
accepted real property appraisal
procedures to establish a market price
for comparison, or other relevant market
research data. For price analysis of
offered tenant improvement costs,
obtain two bids or cost and pricing data.
*
*
*
*
*
24. Revise section 570.111 to read as
follows:
570.111
Inspection and acceptance.
Before contracting officers accept
space they must verify that the space
complies with the Government’s
requirements and specifications and
document this in an inspection report.
The inspection and acceptance
document must contain the usable
square footage accepted and the
acceptance date. Include the inspection
and acceptance in the contract file.
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25. Revise section 570.112 to read as
follows:
570.112
Awards to Federal employees.
If contracting officers receive an offer
from an officer or employee of the
Government, they must follow the
procedures in FAR 3.6.
26. Revise section 570.113 to read as
follows:
570.113
award.
Disclosure of mistakes after
If a mistake in a lessor’s offer is
discovered after award, the contracting
officer should process it substantially in
accordance with FAR 14.407–4 and
GSAM 514.407.
27. Add section 570.115 to read as
follows:
570.115 Novation and Change of
Ownership.
In the event of a transfer of ownership
of the leased premises or a change in the
lessor’s legal name, FAR 42.12 applies.
28. Add section 570.116 to read as
follows:
570.116
Contract format.
The uniform contract format is not
required for leases of real property.
29. Add section 570.117 to read as
follows:
570.117 Sustainable requirements for
lease acquisition.
Contracting officers must include
sustainable design requirements
appropriate for the type of leasing action
in solicitations for offers. Solicitation
requirements and instructions are listed
on https://gsa.gov/leasing under Leasing
Policies and Procedures, Green Leasing.
Sustainable design requirements
support improving the quality of the
environment by—
(a) Controlling pollution;
(b) Managing energy and water use
efficiently;
(c) Using renewable energy and
renewable energy technologies;
(d) Acquiring energy-efficient and
water-efficient products and services,
environmentally preferable products,
products containing recovered
materials, and biobased products; and
(e) Requiring lessors to identify
hazardous materials.
30. Amend section 570.203–2 by
revising paragraph (a) and removing
from paragraph (b) ‘‘you solicit’’ and
adding ‘‘the contracting officer solicits’’
in its place.
570.203–2
Competition.
(a) To the maximum extent
practicable, the contracting officer must
solicit at least three sources to promote
competition. If there are repeated
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requirements for space in the same
market, invite two sources, if
practicable, that are not included in the
most recent solicitation to submit offers.
*
*
*
*
*
31. Amend section 570.203–3 by—
a. Revising introductory paragraph (a);
b. Removing from paragraph (a)(1) ‘‘A
description of’’ and adding ‘‘Describe’’
in its place;
c. Revising paragraph (a)(2);
d. Removing from paragraphs (a)(3)
and (a)(4) ‘‘A statement of’’ and adding
‘‘State’’ in its place; and
e. Adding paragraph (a)(6) to read as
follows:
570.203–3
Soliciting offers.
(a) The contracting officer must solicit
offers by providing each prospective
offeror a proposed short form lease GSA
Form 3626 or SFO. The short form lease
or SFO must:
*
*
*
*
*
(2) List all award factors, including
price or cost, and any significant
subfactors that the contracting officer
will consider in awarding the lease.
*
*
*
*
*
(6) Include sustainable design
requirements.
*
*
*
*
*
32. Amend section 570.203–4 by—
a. Removing from paragraph (a) ‘‘you
need’’ and adding ‘‘the contracting
officer needs’’ in its place;
b. Removing from paragraph (b)
‘‘reasonable.’’ and adding ‘‘reasonable.
See 570.110.’’ in its place;
c. Revising paragraph (c);
d. Redesignating paragraphs (d) and
(e) as paragraphs (e) and (f),
respectively, and adding new paragraph
(d); and
e. Removing from the newly
designated paragraph (e) ‘‘$500,000’’
and adding ‘‘the amount established by
FAR 19.702(a)’’ in its place.
The revised and added text reads as
follows:
570.203–4
award.
Negotiation, evaluation, and
srobinson on DSKHWCL6B1PROD with PROPOSALS
*
*
*
*
*
(c) If the total price, including
options, exceeds the amount established
by FAR 15.403–4, consider whether the
contracting officer needs cost and
pricing data to determine that the price
is fair and reasonable. In most cases, the
exceptions at FAR 15.403–1 will apply.
(d) Regardless of the process used, the
contracting officer must determine
whether the price is fair and reasonable.
*
*
*
*
*
33. Revise the heading in subpart
570.3—to read as follows:
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Subpart 570.3—Acquisition
Procedures for Leasehold Interests in
Real Property Over the Simplified
Lease Acquisition Threshold
570.303–1
[Amended]
34. Amend section 570.303–1 by
removing from the last sentence of the
introductory paragraph ‘‘provide all the
following’’; removing from paragraph
(h) ‘‘570.7’’ and adding ‘‘570.8’’ in its
place; and adding paragraph (i) to read
as follows:
570.303–1
Preparing the SFO.
*
*
*
*
*
(i) Include sustainable design
requirements.
35. Revise section 570.303–2 to read
as follows:
570.303–2
Issuing the SFO.
Release the SFO to all prospective
offerors at the same time. The SFO may
be released electronically.
36. Amend section 570.303–4 by
revising paragraph (d), and adding
paragraph (e) to read as follows:
570.303–4
Changes to SFOs.
*
*
*
*
*
(d) If an amendment is so substantial
that it requires a complete revision of
the SFO, cancel the SFO, readvertise if
required by 570.106, and issue a new
SFO.
(e) If there are changes to the
Government’s requirements for amount
of space, delineated area, occupancy
date, and/or other major aspects of the
requirements, the contracting officer
shall consider whether there is a need
to readvertise, and to document the file
accordingly.
37. Amend section 570.304 by
removing from introductory paragraph
(a) ‘‘you use either’’ and adding ‘‘the
contracting officer uses one of the
following’’; revising paragraph (c) and
introductory paragraph (d); and
removing from paragraphs (d)(1) and
(d)(2) ‘‘if you’’ and adding ‘‘if the
contracting officer’’ in its place.
The revised text reads as follows:
570.304 General source selection
procedures.
*
*
*
*
*
(c) In a best value trade off
procurement, the contracting officer
must include price or cost to the
Government, past performance, the
planned participation of small
disadvantaged business concerns in
performance of the contract, and other
factors as required by FAR 15.304 as
evaluation factors. The contracting
officer may include other evaluation
factors as needed.
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(d) The evaluation factors and
significant subfactors must comply with
FAR 15.304 and either one of the
following:
*
*
*
*
*
38. Amend section 570.305 by—
a. Revising paragraph (a);
b. Redesignating paragraph (c)(1)(iv)
as paragraph (c)(1)(v), and adding a new
paragraph (c)(1)(iv);
c. Removing from paragraph (c)(2)
‘‘Do not’’ and adding ‘‘The contracting
officer shall not’’ (twice) in its place;
and
d. Revising paragraph (d).
The revised text reads as follows:
570.305 Two-phase design-build selection
procedures.
(a) These procedures apply to
acquisitions of leasehold interests if the
contracting officer uses the two-phase
design-build selection procedures
authorized by 570.105–2. Follow FAR
36.3.
*
*
*
*
*
(c) * * *
(1) * * *
(iv) The planned participation of
small disadvantaged business concerns
in performance of the contract.
*
*
*
*
*
(d) The contracting officer shall set
the maximum number of offerors to be
selected for phase-two to not exceed five
unless the contracting officer determine
that a number greater than five is both:
*
*
*
*
*
39. Amend section 570.306 by—
a. Removing from paragraph (a)
‘‘You’’ and adding ‘‘The contracting
officer’’ in its place;
b. Revising paragraphs (b) and (c);
c. Redesignating paragraph (d) as
paragraph (e); and adding new
paragraph (d); and
d. Adding paragraph (f).
The revised and added text reads as
follows:
570.306
Evaluating offers.
*
*
*
*
*
(b) Evaluate prices and document the
lease file to demonstrate that the
proposed contract price is fair and
reasonable. The contracting officer must
review the elements of the offeror’s
proposed rent to analyze whether the
individual elements are realistic and
reflect the offeror’s clear understanding
of the work to be performed. The
contracting officer must discuss any
inconsistencies with the offeror. If the
offeror refuses to support or make any
changes to the rent proposed, consider
the risk to the Government prior to
making any lease award.
(c) Evaluate past performance on
previous lease projects in accordance
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with 515.305 and FAR 15.305(a)(2).
Obtain information through:
(1) Questionnaires tailored to the
circumstances of the acquisition;
(2) Interviews with program managers
or contracting officers;
(3) Other sources; or
(4) Past performance information
collected under FAR 42.15 and available
through the Past Performance
Information Retrieval System (PPIRS) at
https://www.ppirs.gov.
(d) The contracting officer may obtain
information to evaluate an offeror’s past
performance on subcontracting plan
goals and small disadvantaged business
participation, monetary targets, and
notifications under FAR 19.1202–4(b)
from the following sources:
(1) The Small Business
Administration;
(2) Information on prior contracts
from contracting officers and
administrative contracting officers;
(3) Offeror’s references; and
(4) Past performance information
collected under FAR 42.15 and available
through PPIRS.
*
*
*
*
*
(f) Also see the requirements in
570.108, 570.109, and 570.111.
570.308
[Amended]
40. Amend section 570.308 by—
a. Removing from paragraph (b)(1)
and the first sentence of paragraph (b)(2)
‘‘you’’ and adding ‘‘the contracting
officer’’ (two times) in its place; and
b. Removing from the second sentence
of paragraph (b)(2) ‘‘You’’ and adding
‘‘The contracting officer’’ in its place.
41. Revise section 570.401 to read as
follows:
srobinson on DSKHWCL6B1PROD with PROPOSALS
570.401
Renewal options.
(a) Exercise of options. Before
exercising an option to renew, follow
the procedures in 517.207. The contract
must first provide the right to renew the
lease. If a renewal option was not
evaluated as part of the lease at award,
then the addition of a renewal option
during the lease term must satisfy the
requirements of GSAM 506 regarding
full and open competition.
(b) Market information review. Before
exercising an option to renew a lease,
review current market information to
determine that the rental rate in the
option is fair and reasonable.
570.402–1
[Amended]
42. Amend section 570.402–1 by—
a. Removing from paragraphs (a) and
(b) ‘‘you’’ and adding ‘‘the contracting
officer’’ (twice) in its place;
b. Removing from paragraph (b)(1)
‘‘You do’’ and adding ‘‘The contracting
officer does’’ in its place; and
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c. Removing from paragraph (b)(2)
‘‘You identify’’ and adding ‘‘The
contracting officer identifies’’ in its
place.
43. Amend section 570.402–2 by—
a. Revising the introductory
paragraph;
b. Removing from paragraph (a) ‘‘the’’
and adding ‘‘that the’’ in its place;
c. Removing from paragraph (b)
‘‘requirement’’ and adding
‘‘requirements’’ in its place; and
d. Revising paragraphs (c) and (d).
The revised text reads as follows:
570.402–2
Publicizing/Advertising.
The contracting officer must publish a
notice if required by 570.106. The notice
should:
*
*
*
*
*
(c) Indicate that the Government is
interested in considering alternative
space if economically advantageous, or
otherwise the Government intends to
pursue a sole source acquisition.
(d) Advise prospective offerors that
the Government will consider relocation
costs (such as moving, alterations, and
telecommunications) when deciding
whether it should relocate or pursue a
sole source acquisition.
*
*
*
*
*
44. Amend section 570.402–4 by
revising the first sentence to read as
follows:
570.402–4
locations.
No potential acceptable
If the contracting officer does not
identify any potential acceptable
locations through the advertisement or
the market survey, s/he may prepare a
justification to negotiate directly with
the present lessor. * * *
45. Amend section 570.402–5 by—
a. Removing from the introductory
paragraph ‘‘you identify’’ and adding
‘‘the contracting officer identifies’’ in its
place;
b. Revising paragraph (a); and
c. Removing from paragraph (b)(1)
‘‘you’’ and adding ‘‘the contracting
officer’’ in its place.
The revised text reads as follows:
570.402–5
Potential acceptable locations.
*
*
*
*
*
(a) If the cost-benefit analysis
indicates that the Government will
recover relocation costs and duplication
of costs through competition, develop
an SFO and negotiate with all interested
parties following 570.3. Disclose in the
SFO Price Evaluation paragraph the
Government’s estimate of relocation
costs that will be used in the price
evaluation. Relocation costs should
include, but are not limited to, costs to
duplicate tenant improvements,
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furniture and equipment move,
breakdown and setup of systems
furniture and other equipment,
telecommunications costs, and
administrative time.
*
*
*
*
*
46. Revise section 570.402–6 to read
as follows:
570.402–6
Cost-benefit analysis.
The contracting officer must compare
the costs and prices for a lease at
potentially suitable properties to the
costs and prices for a succeeding lease
at the current location. The analysis
must summarize the total present value
of the costs and prices for the firm term
of the lease and incorporate the
elements in paragraphs (a) through (d)
of this section:
(a) Lease prices. Establish the lease
prices by requesting an informational
quotation from each prospective offeror
and the present lessor. Provide a general
description of the Government’s needs
without a formal SFO.
(1) Adjust the prices quoted to reflect
GSA’s standard space at the potentially
suitable properties to cover any special
requirements.
(2) Document quotations with the
following information:
(i) Name and address of the firm
solicited.
(ii) Name of the firm’s representative
providing the quote.
(iii) Price(s) quoted.
(iv) Description of the space and
services for which the quote is
provided.
(v) Name of the Government
employee soliciting the quotation.
(vi) Date quote was received.
(b) Full costs to duplicate tenant
improvements. (1) Estimate the full cost
to duplicate alterations at potentially
suitable properties. Estimate the cost of
new tenant improvements, if required,
at the current location.
(2) Estimate the cost of lump sum
tenant improvement at potentially
suitable properties. Estimate the cost of
new lump sum tenant improvements, if
required, at the current location.
(c) Relocation costs. Estimate the
relocation costs to potentially suitable
properties, including, but not limited to,
the costs associated with furniture and
equipment move, breakdown and setup
of systems furniture and other
equipment, telecommunications costs,
and administrative time.
(d) Other appropriate considerations.
(e) Summary of firm term costs and
prices. Total the costs and prices for the
elements in paragraphs (a) through (d)
of this section, compare the potentially
suitable properties to a succeeding
lease, and conclude whether the
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Government will recover relocation
costs and duplication of costs through
competition.
47. Amend section 570.403 by—
a. Removing from paragraph (a) ‘‘you’’
and adding ‘‘the contracting officer’’ in
its place;
b. Revising paragraph (b)(2); and
c. Removing from paragraph (c) ‘‘you
determine’’ and adding ‘‘the contracting
officer determines’’ in its place.
The revised text reads as follows:
570.403
Expansion requests.
*
(3) Indicate that the Government is
interested in considering alternative
space if economically advantageous, or
that otherwise the Government intends
to pursue a sole source acquisition.
(4) Advise prospective offerors that
the Government will consider relocation
costs (which may include but are not
limited to costs to duplicate tenant
improvements, move furniture and
equipment, breakdown and setup
systems furniture and other equipment,
telecommunications, and administrative
time) and the cost of terminating its
existing lease when deciding whether it
should relocate or pursue a sole source
lease.
(5) Provide a contact person for those
interested in providing space to the
Government.
*
*
*
*
*
(e) If the contracting officer identifies
other potentially suitable properties, s/
he must perform a cost-benefit analysis
to determine whether it is in the
Government’s best interest to relocate.
(1) Follow the procedure in 570.402–
6.
(2) Add the total present value cost of
the unexpired portion of the firm term
of the current lease.
49. Amend section 570.405 by
removing from paragraph (b) ‘‘you’’ and
adding ‘‘the contracting officer’’ in its
place; revising introductory paragraph
(c) and paragraph (c)(3); and adding
paragraph (c)(4).
The revised text reads as follows:
*
*
*
*
(b) * * *
(2) If the contracting officers identify
other potentially suitable properties for
the total requirement, they must
perform a cost-benefit analysis to
determine whether it is in the
Government’s best interest to relocate.
(i) Follow the procedure in 570.402–
6. (ii) Add the total present value cost
of the unexpired portion of the firm
term of the current lease.
*
*
*
*
*
48. Amend section 570.404 by—
a. Removing from paragraph (a)
‘‘present lease.’’ and adding ‘‘or when
market conditions warrant renegotiation
of an existing lease.’’ in its place;
b. Redesignating paragraph (b) as
paragraph (d), and adding new
paragraphs (b) and (c), respectively;
c. Removing from the newly
designated paragraph (d) ‘‘you’’ and
adding ‘‘the contracting officer’’ in its
place; and
d. Adding paragraph (e).
The added text reads as follows:
570.405
570.404
*
Superseding leases.
srobinson on DSKHWCL6B1PROD with PROPOSALS
*
*
*
*
*
(b) If contracting officers plan to
renegotiate a lease and the superseding
lease will exceed the simplified lease
acquisition threshold, they may do so
under either one of the following
conditions:
(1) The Government does not identify
any potential acceptable locations.
(2) The Government identifies
potential acceptable locations, but a
cost-benefit analysis as described in
570.402–6 indicates that award to an
offeror other than the present lessor will
result in substantial relocation costs or
duplication of costs to the Government,
and the Government cannot expect to
recover such costs through competition.
(c) If contracting officers plan to
renegotiate a lease they should publish
a notice if required by 570.106. The
notice should:
(1) Indicate that the Government is
considering renegotiating an existing
lease.
(2) Describe the requirement in terms
of type and quantity of space.
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Lease extensions.
*
*
*
*
(c) FAR 6.302–1 permits contracting
without providing for full and open
competition when the property or
services needed by the agency are
available from only one responsible
source and no other type of property or
services will satisfy the needs of the
agency. This authority may apply to
lease extensions in situations such as,
but not limited to, the following:
*
*
*
*
*
(3) The Government is consolidating
various agencies and the contracting
officer needs to extend the terms of
some leases to establish a common
expiration date.
(4) The agency occupying the space
has encountered delays in planning for
a potential relocation to other Federally
controlled space due to documented
organizational, financial, or other
uncertainties.
50. Amend section 570.501 by
revising introductory paragraph (a) and
paragraph (a)(1); removing from
introductory paragraph (b) ‘‘general’’;
and removing from paragraph (b)(1)
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63713
‘‘justified’’ and adding ‘‘as justified’’ in
its place.
The revised text reads as follows:
570.501
General.
(a) The procedures in 570.502 apply
to alterations acquired directly from a
lessor by modification or supplemental
lease agreement. This is allowed if the
following conditions are met:
(1) The alterations fall within the
scope of the lease. Consider whether the
work can be regarded as fairly and
reasonably as part of the original lease
requirement.
*
*
*
*
*
51. Revise section 570.502 to read as
follows:
570.502
Alterations by the lessor.
52. Amend section 570.502–1 by
removing from the introductory
paragraph ‘‘you plan’’ and adding ‘‘the
contracting officer plans’’ in its place;
and revising paragraphs (a), (b), and (c)
to read as follows:
570.502–1 Justification and approval
requirements.
*
*
*
*
*
(a) If the alteration project will not
exceed the micro-purchase threshold
identified in FAR 2.101(b), no
justification and approval is required.
(b) If the alteration project will exceed
the micro-purchase threshold identified
in FAR 2.101(b), but not the simplified
lease acquisition threshold, the
contracting officer may use simplified
acquisition procedures and explain the
absence of competition in the file.
(c) If the alteration project will exceed
the simplified lease acquisition
threshold, the justification and approval
requirements in FAR 6.3 and 506.3
apply.
53. Amend section 570.502–2 by—
a. Removing from paragraph (a)
‘‘Prepare’’ and adding ‘‘The contracting
officer must prepare’’ in its place;
b. Removing from paragraph (b)
‘‘Obtain’’ and adding ‘‘The contracting
officer must obtain’’ in its place;
c. Removing from paragraph (c)(1)
‘‘Provide’’ and adding ‘‘The contracting
officer must provide’’ in its place;
d. Removing from paragraph (c)(2)
‘‘Request’’ and adding ‘‘The contracting
officer must request’’ in its place;
e. Revising paragraph (d);
f. Revising introductory paragraph (e)
and paragraph (e)(2), and removing from
paragraph (e)(4) ‘‘your analysis’’ and
adding ‘‘the analysis’’ in its place;
g. Revising introductory paragraph (f),
removing from paragraph (f)(1) ‘‘You
may make reasonable’’ and adding
‘‘Make reasonable’’ in its place, and
removing from paragraph (f)(2) ‘‘The
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negotiated price should provide the’’
and adding ‘‘Provide the’’ in its place;
h. Revising paragraph (g); and
i. Removing from introductory
paragraph (h) ‘‘Do not’’ and adding ‘‘The
contracting officer must not’’ in its
place.
agency. Alterations awards must
reference the lease number.
*
*
*
*
*
54. Amend section 570.503 by
revising paragraph (a)(2), and removing
paragraph (b).
The revised text reads as follows:
570.502–2
570.503 Alterations by the Government or
through a separate contract.
Procedures.
*
*
*
*
*
(d) Audits. If the contracting officer
requires cost or pricing data and the
alteration project will exceed the
threshold identified in FAR 15.403–4,
request an audit.
(e) Proposal evaluation. The
contracting officer must—
*
*
*
*
*
(2) Analyze price or cost information.
At a minimum, compare the proposed
cost to the independent estimate and, if
applicable, any audit results received.
*
*
*
*
*
(f) Price negotiations. The contracting
officer must—
*
*
*
*
*
(g) Order. For modifications not
exceeding the simplified acquisition
threshold, lease contracting officers may
delegate alteration contracting authority
to a warranted contracting officer’s
representative in GSAR or the tenant
(a) * * *
(2) Contract out the work using
standard contracting procedures that
apply to a construction contract
performed on Federal property. If the
Government decides to contract for the
work, invite the lessor, as well as all
other prospective contractors, to submit
offers for the project.
55. Redesignating subpart 570.6
(consisting of sections 570.601 through
570.604) and subpart 570.7 (consisting
of 570.701 and 570.702) as subpart
570.7 and subpart 570.8, respectively;
and adding new subpart 570.6.
The added text reads as follows:
Subpart 570.6—Contracting for
Overtime Services and Utilities in
Leases
Sec.
570.601 General.
Subpart 570.6—Contracting for Overtime
Services and Utilities in Leases
If—
52.204–3
(b) The estimated value of the acquisition exceeds $10,000 ..................
(c) The estimated value of the acquisition exceeds the threshold identified in FAR 9.409(b).
(d) The estimated value of the acquisition exceeds $100,000 ................
srobinson on DSKHWCL6B1PROD with PROPOSALS
General.
(a) Lease tenant agencies may need
overtime services and utilities on a
regular or intermittent basis. Lease
contracting officers may negotiate
overtime rates for services and utilities
and include those rates in leases where
a need is projected. Only lease
contracting officers may negotiate
overtime rates.
(b) An independent government
estimate is required in support of the
negotiated rate.
(c) Order. To order overtime services
and utilities, if the order does not
exceed the simplified acquisition
threshold, a warranted contracting
officer’s representative, in GSA or the
tenant agency, may place an order. The
order must reference the lease number.
(d) Payment. Do not make final
payment for services and utilities until
confirmed as delivered in a satisfactory
manner.
56. Amend the newly designated
section 570.701 by revising paragraphs
(a) through (j); and adding paragraph (l)
to read as follows:
570.701
FAR provisions and clauses.
Include provisions or clauses
substantially the same as the FAR
provisions and clauses listed below:
Then include—
(a) The estimated value of the acquisition exceeds the micro-purchase
threshold identified in FAR 2.101.
570.601
(e) The estimated value of the acquisition exceeds the simplified lease
acquisition threshold.
Taxpayer Identification.
52.204–6 Data Universal Numbering System (DUNS) Number.
52.204–7 Central Contractor Registration.
52.219–1 Small Business Program Representations.
52–219–28 Post-Award Small Business Program Rerepresentation
(use if lease term exceeds five years).
52.222 52.232–23 Assignment of Claims.
52.232–33 Electronic Funds Transfer—Central Contractor Registration.
52.233–1 Disputes.
52.222–21 Prohibition of Segregated Facilities.
52.222–22 Previous Contracts and Compliance Reports.
52.222–25 Affirmative Action Compliance.
52.222–26 Equal Opportunity.
52.222–35 Affirmative Action for Disabled Veterans and Veterans of
the Vietnam Era.
52.222–36 Affirmative Action for Workers with Disabilities
52.222–37 Employment Reports on Disabled Veterans and Veterans
of the Vietnam Era.
52.209–6 Protecting the Government’s Interest when Subcontracting
with Contractors Debarred, Suspended, or Proposed for Debarment.
52.203–11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions.
52.203–2 Certificate of Independent Price Determination.
52.203–7 Anti-Kickback Procedures.
52.204–5 Women-Owned Business (Other than Small Business).
52.209–5 Certification Regarding Debarment, Suspension, Proposed
Debarment, and Other Responsibility Matters.
52.215–2 Audit and Records—Negotiation.
52.219–8 Utilization of Small Business Concerns.
52.222–54 Employment Eligibility Verification.
52.223–6 Drug-Free Workplace.
52.233–2 Service of Protest.
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If—
Then include—
(f) The estimated value of the acquisition exceeds the threshold identified in FAR 19.708(b).
52.219–9
(g) The estimated value of the acquisition exceeds the threshold identified in FAR 19.1202–2(a) and the contracting officer is using a best
value trade off analysis in an acquisition includes an evaluation factor that considers the extent of participation of small disadvantaged
business concerns in accordance with FAR 19.12.
(h) The value of the contract is expected to exceed $5 million and the
performance period is 120 days or more.
(i) The estimated value of the acquisition exceeds $10 million ...............
(j) The contracting officer requires cost or pricing data for work or services exceeding the threshold identified in FAR 15.403–4.
(k) The contracting officer authorizes submission of facsimile proposals
(l) A negotiated acquisition provides monetary incentives based on actual achievement of small disadvantaged business subcontracting
targets under FAR 19.1203 and 519.1203.
570.702
552.215–70
GSA
GSAR solicitation provisions.
Each SFO must include provisions
substantially the same as the following,
unless the contracting officer
determines that the provision is not
appropriate. However, document the file
with the basis for deleting or
substantially changing a clause.
*
*
*
*
*
58. Amend the newly designated
section 570.703 by designating the
introductory paragraph as introductory
paragraph (a) and revising the newly
designated introductory paragraph (a);
adding new entry 552.215–70 under
introductory paragraph (a), in numerical
order; and adding new paragraph (b) to
read as follows:
570.703
GSAR contract clauses.
(a) Insert clauses substantially the
same as the following in solicitations
and contracts for leasehold interests in
real property that exceed the simplified
lease acquisition threshold, unless the
contracting officer determines that a
clause is not appropriate. However,
document the file with the basis for
deleting or substantially changing a
clause. A deviation is not required
under 570.704 to determine that a
clause in this section is not appropriate.
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Small Business Subcontracting Plan
52.219–16 Liquidated Damages—Subcontracting Plan.
52.219–24 Small Disadvantaged Business Participation Program—
Targets.
52.219–25 Small Disadvantaged Business Participation Program—
Disadvantaged Status and Reporting.
52.203–13 Contractor Code of Business Ethics and Conduct.
52.203–14 Display of Hotline Poster(s).
52.222–24 Pre-award On-site Equal Opportunity Compliance Review.
52.215–10 Price Reduction for Defective Cost or Pricing Data.
52.215–12 Subcontractor Cost.
52.215–10 Price Reduction for Defective Cost or Pricing Data.
52.215–5 Facsimile Proposals.
52.219–26 Small Disadvantaged Business Participation Program—Incentive Subcontracting.
Use the clauses at your discretion in
actions at or below the simplified lease
acquisition threshold.
57. Revise the undesignated
introductory paragraph of the newly
designated section 570.702 to read as
follows:
srobinson on DSKHWCL6B1PROD with PROPOSALS
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Examination of Records by
*
*
*
*
*
(b) Include the following provisions
and clauses in leasehold interests in real
property.
552.270–30 Price Adjustment for Illegal
Improper Activity
552.270–31
Prompt Payment
552.270–32
Fees
Covenant Against Contingent
59. Amend section 570.704 by
removing from paragraph (a) ‘‘You
need’’ and adding ‘‘The contracting
officer needs’’ in its place; revising
paragraph (b); and removing from
paragraph (c) ‘‘you can’’ and adding
‘‘the contracting officer can’’ in its
place. The revised text reads as follows:
570.704 Deviations to provisions and
clauses.
*
*
*
*
*
(b) The contracting officer also needs
an approved deviation to modify the
language of a provision or clause
mandated by statute (e.g., FAR 52.215–
2, Audit and Records—Negotiation).
The authorizing statute must allow for
a waiver.
*
*
*
*
*
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60. Revise the newly designated
section 570.801 to read as follows:
570.801
Standard forms.
Use Standard Form 2, U.S.
Government Lease for Real Property, to
award leases unless the contracting
officer uses GSA Form 3626 (see
570.802).
61. Amend the newly designated
section 570.802 by revising paragraph
(a); removing from paragraphs (b) and
(c) ‘‘You may’’ and adding ‘‘The
contracting officer may’’ in its place;
and adding paragraph (d).
The revised and added text reads as
follows:
570.802
GSA forms.
(a) The contracting officer may use
GSA Form 3626, U.S. Government Lease
for Real Property (Short Form), to award
leases if using the simplified leasing
procedures in 570.2 or if they determine
it advantageous to use the form.
*
*
*
*
*
(d) The contracting officer may use
GSA Form 1217, Lessor’s Annual Cost
Statement, to obtain pricing information
regarding offered services and lease
commissions.
[FR Doc. E9–28246 Filed 12–3–09; 8:45 am]
BILLING CODE 6820–61–P
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]]>Agencies
[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Proposed Rules]
[Pages 63704-63715]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28246]
[[Page 63704]]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 552 and 570
[GSAR Case 2006-G508; Docket 2009-0017; Sequence 1]
RIN 3090-AI96
General Services Administration Acquisition Regulation; GSAR Case
2006-G508; Rewrite of Part 570, Acquiring Leasehold Interests in Real
Property
AGENCY: Office Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is proposing to
amend the GSA Acquisition Regulation (GSAR) to revise sections of GSAR
part 570 that provide requirements for acquiring leasehold interests in
real property.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before February 2, 2010 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by GSAR Case 2006-G508 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``GSAR Case
2006-G508'' under the heading ``Enter Key Word or ID''. Follow the
instructions provided to ``Submit a Comment''. Please include your
name, company name (if any), and ``GSAR Case 2006-G508'' on your
attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat, 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite GSAR Case 2006-
G508 in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Beverly Cromer at (202) 501-1448. For information pertaining to the
status or publication schedules, contact the Regulatory Secretariat
(MVPR), Room 4041, 1800 F Street, NW., Washington, DC 20405, (202) 501-
4755. Please cite GSAR Case 2006-G508.
SUPPLEMENTARY INFORMATION:
A. Background
GSA is amending the GSAR to revise GSAR part 570, Acquiring
Leasehold Interests in Real Property. This proposed rule is a result of
the GSA Acquisition Manual (GSAM) rewrite initiative. The initiative
was undertaken by GSA to revise the GSAM to maintain consistency with
the Federal Acquisition Regulation (FAR) and implement streamlined and
innovative acquisition procedures that contractors, offerors, and GSA
contracting personnel can use when entering into and administering
contractual relationships. The GSAM incorporates the GSAR as well as
internal agency acquisition policy.
GSA will rewrite each part of the GSAR and GSAM, and as each GSAR
part is rewritten, GSA will publish it in the Federal Register.
This proposed rule revises GSAR part 570 as follows: Overall
changes were made throughout the text to change ``you'' to
``contracting officer'', and to edit language for clarity.
GSAR 570.101(b) is revised to delete GSAR rules that are no longer
applicable to the acquisition of leasehold interests in real property
and to add current references to GSAR 522.805, 522.807, and 532.111.
GSAR 570.101(c) is revised to update the GSAR provisions that are
applicable in leasing transactions. This section is revised to delete
GSAM sections from the GSAR and move them to the GSAM, the non-
regulatory portion of the manual. GSAR 570.101(d) is added to explain
that the FAR does not apply to leasehold acquisitions of real property
and to further explain that references to the FAR in GSAR part 570 are
used as a matter of policy where the underlying statute behind the FAR
provision applies to leasing or as matter of administrative
convenience.
GSAR 570.102 is revised to add definitions for ``lease
acquisition'', ``lease extension'', ``lease renewal (option)'',
``succeeding lease'', ``superseding lease,'' and ``usable square
feet''. The definition for ``simplified lease acquisition threshold''
is revised to delete the dollar value, and instead reference FAR 2.101
for information about the threshold. The definition for ``small
business'' is revised to delete the dollar limit for annual average
gross receipts and to reference the size standard established by the
Small Business Administration. Further revisions were made to include
where the size standards may be found on the Web. The definition for
``space in buildings'' is deleted because this definition was only
referenced at GSAR 570.105-3, which is also being deleted.
GSAR 570.103 is revised to update the statutory reference to
leasing authority. In addition, GSAR 570.103 is revised, consistent
with statute and regulation, to allow the contracting officer to
designate a contracting officer's representative.
GSAR 570.105-2 is re-titled Criteria for the use of two-phase
design-build. GSAR 570.105-2 is revised to update the statutory
reference to leasing authority. GSAR 570.105-2(c) is added to reference
570.305, where additional procedures can be found regarding two-phase
design-build selections that apply to acquisition of leasehold
interests. GSAR 570.105-3 is deleted in its entirety because sealed
bidding is not used in GSA leasing transactions.
GSAR 570.106 is re-titled Advertising, Publicizing, and
Notifications to Congress, and revised to incorporate advertising
requirements from GSAR part 505, because most of the exceptions to
advertising requirements contained in GSAR part 505 relate to the
leasing program.
GSAR 570.106-1, Synopsis of lease awards, is added to incorporate
synopsizing requirements of lease awards from GSAR part 505.
GSAR 570.108 is revised to update reference to ``Excluded Parties
List System'' (EPLS).
GSAR 570.109 is revised to add the language ``representations and''
for clarification.
GSAR 570.110 is revised to require the contracting officer to
obtain two bids or cost and pricing data for price analysis of offered
tenant improvement costs.
GSAR 570.111 is revised to require that the inspection and
acceptance document contain the usable square footage accepted and the
acceptance date.
GSAR 570.115, Novation and Change of Ownership, is added to include
language stating that FAR subpart 42.12 applies in the event of a
transfer of ownership of the leased premises or a change in the
lessor's legal name.
GSAR 570.116, Contract Format, is added to include language stating
that the uniform contract format is not required for leases of real
property.
GSAR 570.117, Sustainable requirements for lease acquisitions, is
added to add a requirement for the contracting officer to include
sustainable design requirements appropriate for the type of leasing
action in solicitations for offers and to provide that the solicitation
requirements and instructions are listed on https://gsa.gov/leasing.
[[Page 63705]]
GSAR 570.203-3(a), is revised to add a reference to ``GSA Form
3626'' for clarity and to require the contracting officer to include
sustainable design requirements in offers.
GSAR 570.203-4 is revised to include a reference to the thresholds
at FAR 15.403-4 and 19.702(a). It is further revised to require that
the contracting officer make an affirmative determination of price
reasonableness.
GSAR subpart 570.3 is renamed Acquisition Procedures for Leasehold
Interests in Real Property Over the Simplified Lease Acquisition
Threshold.
GSAR 570.303-1 is revised to add a requirement that each
solicitation of offers (SFO) must include sustainable design
requirements.
GSAR 570.303-2 is revised to allow electronic issuance of
solicitations.
GSAR 570.303-4 is revised to require contracting officers to re-
advertise and reissue a solicitation when a complete revision of a
solicitation is required in accordance with GSAR 570.106.
GSAR 570.304 is revised to adequately distinguish between best
value and low price technically acceptable acquisitions.
GSAR 570.305 is revised to require the contracting officer to
consider planned subcontracting opportunities for small disadvantaged
business concerns during phase one evaluations.
GSAR 570.306(b) is revised to require the contracting officer to
review the elements of the lessor's proposed rent to analyze whether
the individual elements are realistic and reflect the lessor's
understanding of work to be performed.
GSAR 570.306(c) is revised to add information on past performance
evaluations.
GSAR 570.306(f) is revised to direct the reader to important
paragraphs in part 570 concerning the evaluation of offers.
GSAR 570.401 is revised to add language indicating that if a
renewal option was not evaluated as part of the lease at award, then
the addition of a renewal option during the lease term must satisfy the
requirements of GSAM 506 regarding full and open competition.
GSAR 570.402-2 is revised to update the reference to publication
and advertising requirements for leases.
GSAR 570.402-5(a) is revised to add language to emphasize that
relocation costs are to be used in price evaluations.
GSAR 570.402-6 is revised to provide clarification on how to
conduct a cost-benefit analysis.
GSAR 570.403 is revised for clarity to refer to the cost-benefit
analysis in 570.402-6 when identifying other potentially suitable
properties.
GSAR 570.404 is revised to clarify that a superseding lease may be
used when market conditions warrant renegotiation of an existing lease,
and to provide considerations of a cost-benefit analysis.
GSAR 570.405 is revised to provide examples of situations where
lease extensions may be appropriate.
GSAR 570.501(a) is revised to explain that the procedures in
570.502 apply to alterations acquired directly from a lessor by
modification or supplemental lease agreement.
GSAR 570.502 is deleted because this information is addressed in
570.501(a).
GSAR 570.502-1 is revised to tie the threshold to the FAR
definition of the micro-purchase threshold.
GSAR 570.502-2 is revised to delete language that refers to an
obsolete form, GSA Form 300, and allow the lease contracting officer to
delegate alteration contracting authority to a warranted contracting
officer's representative in GSA or the tenant agency.
GSAR 570.503 is revised to delete paragraph (b) from the GSAM and
incorporate it into the GSAR.
GSAR subpart 570.6 is renumbered as GSAR subpart 570.7 and a new
GSAR Subpart 570.6, Contracting for Overtime Services and Utilities in
Leases is added to provide requirements for when overtime services and
utilities.
GSAR 570.601 is renumbered as 570.701 and is revised to delete the
reference to the dollar value of the thresholds, and to instead provide
the FAR reference because the thresholds may change.
GSAR 570.601 is revised to include additional FAR provisions or
clauses that must be included in solicitations.
GSAR 570.602 and 570.603 are renumbered as 570.702 and 703,
respectively, and are revised to require the contracting officer to
document the file when deleting or substantially changing a clause.
GSAR 570.603 is further revised to number the paragraphs (a) and (b),
and to include language in paragraphs (a) and (b) to require the
contracting officer to include the following additional clauses in
leaseholds for real property:
552.215-70, Examination of Records by GSA;
552.270-28, Mutuality of Obligation;
552.270-29, Acceptance of Space;
552.270-30, Price Adjustment for Illegal or Improper Activity;
552.270-31, Prompt Payment; and
552.270-32, Covenant Against Contingent Fees.
GSAR 570.604 is renumbered as 570.704 and is revised to delete the
reference to GSAR clause 552.203-5, Covenant Against Contingent Fees,
because the updated clause number is now referenced in 570.703.
GSAR 570.701 is renumbered as 570.801 and is revised to delete the
instructions to omit the reference to Standard Form 2-A.
GSAR 570.802(d) is added to allow the use of the GSA Form 1217,
Lessor's Annual Cost Statement, to obtain pricing information regarding
offered services and lease commissions.
The clause at GSAR 552.270-1, Instructions to Offerors-Acquisition
Leasehold Interest in Real Property, is revised to add language
requiring execution and delivery of a lease to effectuate contract
formation. It also adds paragraph (f) to address paperwork collection
information.
The provision at GSAR 552.270-3, Parties to Execute Leases, is
revised to make it consistent with the instructions contained in FAR
4.102.
The clause at GSAR 552.270-7, Fire and Casualty Damage, is revised
to permit the government to assess a property's condition before giving
notice of termination.
The clause at GSAR 552.270-14, Changes, is revised to specify the
impact of the failure to assert a claim for a price adjustment.
The clause at GSAR 552.270-16, Adjustment for Vacant Premises, is
revised to clarify when and how adjustments for vacant premises will be
made.
The clause at GSAR 552.270-29, Acceptance of Space, is revised to
simplify the reference to a section in the solicitation.
The clause at GSAR 552.203.70, Price Adjustment for Illegal or
Improper Activity, is relocated from GSAR part 503 to GSAR part 570
and, as a result, is renumbered as GSAR 552.270-30.
The clause at GSAR 552.232-75, Prompt Payment, is relocated from
GSAR part 532 to GSAR part 570 and, as a result, is renumbered as GSAR
552.270-31. This clause is also revised to add paragraph (d)
Overpayments, to give instructions to the contractor in cases where the
Government has overpaid.
The clause at GSAR 552.203-5, Covenant Against Contingent Fees, is
relocated from GSAR part 503 to GSAR part 570 and, as a result, is
renumbered as GSAR 552.270-32.
Discussion of Comments
There were no public comments received in response to the
``Advanced Notice of Proposed Rulemaking'' pertaining to this GSAR
part.
[[Page 63706]]
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The General Services Administration does not expect this proposed
rule to have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq., because the revisions are not considered
substantive. The revisions delete obsolete coverage, clarify existing
coverage, and edit current language. An ``Initial Regulatory
Flexibility Analysis'' has therefore, not been performed. We invite
comments from small businesses and other interested parties. GSA will
consider comments from small businesses concerning the affected GSAR
part 570 in accordance with 5 U.S.C. 610. Interested parties must
submit such comments separately and should cite 5 U.S.C. 601, et seq.
(GSAR case 2006-G508), in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) applies because the proposed rule
contains information collection requirements. Accordingly, the
Regulatory Secretariat has submitted a request for approval of a new
information collection requirement concerning GSAR Case 2006-G508 to
the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
Annual Reporting Burden
At GSAR 570.702(d), the contracting officer may use GSA Form 1217,
Lessor's Annual Cost Statement, to obtain pricing information regarding
offered services and lease commissions.
The annual reporting burden is estimated as follows:
Respondents: 5,733.
Responses per respondent: 1.
Total annual responses: 5,733.
Preparation hours per response: 1 hour.
Total response burden hours: 5,733.
Public reporting burden for this collection of information is
estimated to average 1 hour per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
An existing OMB clearance, OMB Control No. 3090-0086, covers the
information contained in GSAR 570.702(c), GSA Form 1364, Proposal To
Lease Space. In this instance, the PRA does not apply because the
proposed changes to the GSAM do not impose information collection
requirements that require the approval of OMB under 44 U.S.C. 3501, et
seq.
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than February 2, 2010 to: GSAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat (MVPR), 1800 F Street, NW., Room
4041, Washington, DC 20405.
Public comments are particularly invited on: Whether this
collection of information is necessary for the proper performance of
functions of the GSAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the justification from the General
Services Administration, Regulatory Secretariat (MVPR), Room 4041,
Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control
Number 3090-00XX, GSAR Case 2006-G508, Acquiring Leasehold Interests in
Real Property, in all correspondence.
List of Subjects in 48 CFR Parts 552 and 570
Government procurement.
Dated: November 5, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, U.S.
General Services Administration.
Therefore, GSA proposes to amend 48 CFR parts 552 and 570 as set
forth below:
1. The authority citation for 48 CFR parts 552 and 570 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
2. Amend section 552.270-1 by--
a. Removing from the clause heading ``(MAR 1998)'' and adding
``([DATE])'' in its place;
b. Revising in paragraph (a) the definition ``In writing or
written'';
c. Removing from paragraph (c)(2)(i)(A) ``the 5th'' and adding
``the fifth'' in its place;
d. Removing from paragraph (c)(2)(i)(E) ``the Contracting'' and
adding ``that the Contracting'' in its place;
e. Revising paragraph (e)(7); and
f. Adding paragraph (f).
The revised and added text reads as follows:
552.270-1 Instructions to Offerors--Acquisition of Leasehold Interests
in Real Property.
* * * * *
(a) * * *
In writing, writing, or written means any worded or numbered
expression that can be read, reproduced, and later communicated, and
includes electronically transmitted and stored information.
* * * * *
(e) * * *
(7) The execution and delivery of the Lease contract by the
Government establishes a valid award and contract.
* * * * *
(f) Paperwork collection. The information collection requirements
contained in this solicitation/contract are either required by
regulation or approved by the Office of Management and Budget pursuant
to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.
3. Amend section 552.270-3 by--
a. Removing from the clause heading ``(SEP 1999)'' and adding
``([DATE])'' in its place;
b. Revising paragraphs (a) and (b);
c. Removing from paragraph (c) ``shall be signed with'' and adding
``must be signed in'' in its place; and
d. Adding paragraphs (d) and (e).
The revised and added text reads as follows:
552.270-3 Parties to Execute Lease.
* * * * *
(a) If the lessor is an individual, that individual shall sign the
lease. A lease with an individual doing business as a firm shall be
signed by that individual, and the signature shall be followed by the
individual's typed, stamped, or printed name and the words, ``an
individual doing business as ---------------- [insert name of firm]''.
(b) If the Lessor is a partnership, the lease must be signed in the
partnership name, followed by the name of the legally authorized
partner signing the same, and a copy of either the partnership
agreement or current Certificate of Limited Partnership shall accompany
the lease.
* * * * *
[[Page 63707]]
(d) If the Lessor is a joint venture, the lease must be signed by
each participant in the joint venture in the manner prescribed in
paragraphs (a) through (c) of this provision for each type of
participant. When a corporation is participating in the joint venture,
the corporation shall provide evidence that the corporation is
authorized to participate in the joint venture.
(e) If the lease is executed by an attorney, agent, or trustee on
behalf of the Lessor, an authenticated copy of his/her power of
attorney, or other evidence to act on behalf of the Lessor, must
accompany the lease.
552.270-7 [Amended]
4. Amend section 552.270-7 by removing from the clause heading
``(SEP 1999)'' and adding ``([DATE])'' in its place, and removing from
the second sentence of the clause ``days of the fire or other
casualty;'' and adding ``days after such determination;'' in its place.
5. Amend section 552.270-14 by removing from the clause heading
``(SEP 1999)'' and adding ``([DATE])'' in its place, and revising
paragraph (c) to read as follows:
552.270-14 Changes.
* * * * *
(c) The Lessor must assert its right to an adjustment under this
clause within 30 days from the date of receipt of the change order and
must submit a proposal for adjustment. The Lessor's failure to assert
its right for adjustment within the time frame specified herein shall
be a waiver of the Lessor's right to an adjustment under this
paragraph. Failure to agree to any adjustment shall be a dispute under
the Disputes clause. However, nothing in this clause excuses the lessor
from proceeding with the change as directed.
* * * * *
6. Revise section 552.270-16 to read as follows:
552.270-16 Adjustment for Vacant Premises.
As prescribed in 570.603, insert the following clause:
Adjustment for Vacant Premises ([DATE])
(a) If the Government fails to occupy any portion of the leased
premises or vacates the premises in whole or in part before the
lease term expires, the rental rate will be reduced. The reduction
shall occur after the Government gives 30 calendar days' notice to
the Lessor, and shall continue in effect until the Government
occupies or reoccupies the vacant premises or the lease expires or
is terminated.
(b) The rate will be reduced by that portion of the costs per
usable square foot of operating expenses not required to maintain
the space. In addition, at the first operating cost adjustment after
the notice of reduction to the rent, the base cost of services
subject to escalation will be reduced by said amount. In the event
that the Government occupies or reoccupies the vacant premises on
the lease anniversary date following the occupation of the vacant
premises, the base cost of services subject to escalation will be
increased by said amount.
(c) The reduction in operating costs shall be negotiated and
stated in the lease.
(End of clause)
7. Amend section 552.270-29 by removing from the clause heading
``(SEP 1999)'' and adding ``([DATE])'' in its place, and revising
paragraph (b) to read as follows:
552.270-29 Acceptance of Space.
* * * * *
(b) The Government will accept the space and the lease term will
begin after determining that the space is substantially complete and
contains the required usable square footage as indicated in the
solicitation paragraph, Amount and Type of Space.
8. Add section 552.270-30 to read as follows:
552.270-30 Price Adjustment for Illegal or Improper Activity.
As prescribed in 570.603, insert the following clause:
Price Adjustment for Illegal or Improper Activity ([DATE])
(a) If the head of the contracting activity (HCA) or his or her
designee determines that there was a violation of subsection 27(a)
of the Office of Federal Procurement Policy Act, as amended (41
U.S.C. 423), as implemented in the Federal Acquisition Regulation,
the Government, at its election, may--
(1) Reduce the monthly rental under this lease by five percent
of the amount of the rental for each month of the remaining term of
the lease, including any option periods, and recover five percent of
the rental already paid;
(2) Reduce payments for alterations not included in monthly
rental payments by five percent of the amount of the alterations
agreement; or
(3) Reduce the payments for violations by a Lessor's
subcontractor by an amount not to exceed the amount of profit or fee
reflected in the subcontract at the time the subcontract was placed.
(b) Prior to making a determination as set forth above, the HCA
or designee shall provide to the Lessor a written notice of the
action being considered and the basis therefor. The Lessor shall
have a period determined by the agency head or designee, but not
less than 30 calendar days after receipt of such notice, to submit
in person, in writing, or through a representative, information and
argument in opposition to the proposed reduction. The agency head or
designee may, upon good cause shown, determine to deduct less than
the above amounts from payments.
(c) The rights and remedies of the Government specified herein
are not exclusive, and are in addition to any other rights and
remedies provided by law or under this lease.
(End of clause)
9. Add section 552.270-31 to read as follows:
552.270-31 Prompt Payment.
As prescribed in 570.603, insert the following clause:
Prompt Payment (Sep 1999)
The Government will make payments under the terms and conditions
specified in this clause. Payment shall be considered as being made
on the day a check is dated or an electronic funds transfer is made.
All days referred to in this clause are calendar days, unless
otherwise specified.
(a) Payment due date.
(1) Rental payments. Rent shall be paid monthly in arrears and
will be due on the first workday of each month, and only as provided
for by the lease.
(i) When the date for commencement of rent falls on the 15th day
of the month or earlier, the initial monthly rental payment under
this contract shall become due on the first workday of the month
following the month in which the commencement of the rent is
effective.
(ii) When the date for commencement of rent falls after the 15th
day of the month, the initial monthly rental payment under this
contract shall become due on the first workday of the second month
following the month in which the commencement of the rent is
effective.
(2) Other payments. The due date for making payments other than
rent shall be the later of the following two events:
(i) The 30th day after the designated billing office has
received a proper invoice from the Contractor.
(ii) The 30th day after Government acceptance of the work or
service. However, if the designated billing office fails to annotate
the invoice with the actual date of receipt, the invoice payment due
date shall be deemed to be the 30th day after the Contractor's
invoice is dated, provided a proper invoice is received and there is
no disagreement over quantity, quality, or Contractor compliance
with contract requirements.
(b) Invoice and inspection requirements for payments other than
rent.
(1) The Contractor shall prepare and submit an invoice to the
designated billing office after completion of the work. A proper
invoice shall include the following items:
(i) Name and address of the Contractor.
(ii) Invoice date.
(iii) Lease number.
(iv) Government's order number or other authorization.
(v) Description, price, and quantity of work or services
delivered.
(vi) Name and address of Contractor official to whom payment is
to be sent (must be the same as that in the remittance address in
the lease or the order).
(vii) Name (where practicable), title, phone number, and mailing
address of person to be notified in the event of a defective
invoice.
[[Page 63708]]
(2) The Government will inspect and determine the acceptability
of the work performed or services delivered within seven days after
the receipt of a proper invoice or notification of completion of the
work or services unless a different period is specified at the time
the order is placed. If actual acceptance occurs later, for the
purpose of determining the payment due date and calculation of
interest, acceptance will be deemed to occur on the last day of the
seven day inspection period. If the work or service is rejected for
failure to conform to the technical requirements of the contract,
the seven days will be counted beginning with receipt of a new
invoice or notification. In either case, the Contractor is not
entitled to any payment or interest unless actual acceptance by the
Government occurs.
(c) Interest Penalty.
(1) An interest penalty shall be paid automatically by the
Government, without request from the Contractor, if payment is not
made by the due date.
(2) The interest penalty shall be at the rate established by the
Secretary of the Treasury under Section 12 of the Contract Disputes
Act of 1978 (41 U.S.C. 611) that is in effect on the day after the
due date. This rate is referred to as the ``Renegotiation Board
Interest Rate,'' and it is published in the Federal Register
semiannually on or about January 1 and July 1. The interest penalty
shall accrue daily on the payment amount approved by the Government
and be compounded in 30-day increments inclusive from the first day
after the due date through the payment date.
(3) Interest penalties will not continue to accrue after the
filing of a claim for such penalties under the clause at 52.233-1,
Disputes, or for more than one year. Interest penalties of less than
$1.00 need not be paid.
(4) Interest penalties are not required on payment delays due to
disagreement between the Government and Contractor over the payment
amount or other issues involving contract compliance or on amounts
temporarily withheld or retained in accordance with the terms of the
contract. Claims involving disputes, and any interest that may be
payable, will be resolved in accordance with the clause at 52.233-1,
Disputes.
(d) Overpayments. If the Lessor becomes aware of a duplicate
payment or that the Government has otherwise overpaid on a payment,
the Contractor shall--
(1) Return the overpayment amount to the payment office cited in
the contract along with a description of the overpayment including
the--
(i) Circumstances of the overpayment (e.g., duplicate payment,
erroneous payment, liquidation errors, date(s) of overpayment);
(ii) Affected lease number;
(iii) Affected lease line item or subline item, if applicable;
and
(iv) Lessor point of contact.
(2) Provide a copy of the remittance and supporting
documentation to the Contracting Officer.
(End of clause)
Alternate I (Sep 1999). If Alternate I is used, subparagraph (a)(1)
of the basic clause should be designated as paragraph (a) and
subparagraph (a)(2) and paragraph (b) should be deleted. Paragraph (c)
of the basic clause should be redesignated (b).
10. Add section 552.270-32 to read as follows:
552.270-32 Covenant Against Contingent Fees.
As prescribed in 570.603, insert the following clause:
Covenant Against Contingent Fees ([DATE])
(a) The Contractor warrants that no person or agency has been
employed or retained to solicit or obtain this contract upon an
agreement or understanding for a contingent fee, except a bona fide
employee or agency. For breach or violation of this warranty, the
Government shall have the right to annul this contract without
liability or, in its discretion, to deduct from the contract price
or consideration, or otherwise recover the full amount of the
contingent fee.
(b) Bona fide agency, as used in this clause, means an
established commercial or selling agency (including licensed real
estate agents or brokers), maintained by a Contractor for the
purpose of securing business, that neither exerts nor proposes to
exert improper influence to solicit or obtain Government contracts
nor holds itself out as being able to obtain any Government contract
or contracts through improper influence.
Bona fide employee, as used in this clause, means a person,
employed by a Contractor and subject to the Contractor's supervision
and control as to time, place, and manner of performance, who
neither exerts nor proposes to exert improper influence to solicit
or obtain Government contracts nor holds out as being able to obtain
any Government contract or contracts through improper influence.
Contingent fee, as used in this clause, means any commission,
percentage, brokerage, or other fee that is contingent upon the
success that a person or concern has in securing a Government
contract.
Improper influence, as used in this clause, means any influence
that induces or tends to induce a Government employee or officer to
give consideration or to act regarding a Government contract on any
basis other than the merits of the matter.
(End of clause)
PART 570--ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY
11. Amend section 570.101 by revising the table in paragraph (b),
and adding paragraphs (c) and (d) to read as follows:
570.101 Applicability.
* * * * *
(b) * * *
GSAR Rules Applicable to Acquisitions of Leasehold Interests in Real
Property
------------------------------------------------------------------------
------------------------------------------------------------------------
501 515.209-70 519.12 536.271
502 515.305 522.805 537.2
503 517.202 522.807 552
509.4 517.207 532.111 553
514.407 519.7 533
------------------------------------------------------------------------
(c) The following GSAM provisions apply to acquisitions of
leasehold interests in real property. These are in addition to the GSAR
requirements identified in 570.101(b).
GSAM Applicable to Acquisitions of Leasehold Interests in Real Property
------------------------------------------------------------------------
------------------------------------------------------------------------
501 506 519.6 530
503 507 519.7 532.6
504.2 515.305-70 519.12 532.8
504.9 515.305-71 522.13 532.9
504.606 515.6 522.14 533
504.11 519.3 523.4 537.2
------------------------------------------------------------------------
[[Page 63709]]
(d) The FAR does not apply to leasehold acquisitions of real
property. Where referenced in this part, FAR provisions have been
adopted based on a statutory requirement applicable to such lease
acquisitions or as a matter of policy, including, but not limited to
``Federal agency procurement'' as defined at FAR 3.104.
12. Amend section 570.102 by--
a. Removing the definition ``Acquisition'';
b. Adding, in alphabetical order, the definitions ``Lease
acquisition'', ``Lease extension'', and ``Lease renewal (option)'';
c. Revising the definitions ``Simplified lease acquisition
threshold'', ``Small business'', and ``Solicitation for Offers (SFO)'';
d. Removing the definition ``Space in buildings'';
e. Removing from the first sentence of the definition
``Substantially as follows'' or ``substantially the same as,'' the word
``you'' and adding ``the contracting officer'' in its place; and
f. Adding, in alphabetical order, the definitions ``Succeeding
lease'', ``Superseding lease'', and ``Usable square feet''.
The added and revised text reads as follows:
570.102 Definitions.
* * * * *
Lease acquisition means the acquiring by lease of an interest in
improved real property for use by the Federal Government, whether the
space already exists or must be constructed.
Lease extension means extension of the expiration date of a lease
to provide for continued occupancy on a short term basis.
Lease renewal (option) means the right, but not the obligation of
the Government to continue a lease upon specified terms and conditions,
including lease term and rent.
* * * * *
Simplified lease acquisition threshold means the simplified
acquisition threshold (see FAR 2.101), when applied to the average
annual amount of rent for the term of the lease, including option
periods and excluding the cost of services.
Small business means a concern including affiliates, which is
organized for profit, is independently-owned and operated, is not
dominant in the field of leasing commercial real estate, and that has
annual average gross receipts for the preceding three fiscal years
which are less than the size standard established by the Small Business
Administration pursuant to 13 CFR Part 121. The size standards may be
found at https://www.sba.gov/size/sizetable2002.html. For most lease
procurements, the NAICS code is 531190.
Solicitation for Offers (SFO) means a request for negotiated
proposals.
* * * * *
Succeeding lease means a lease whose effective date immediately
follows the expiration date of an existing lease for space in the same
building.
Superseding lease means a lease that replaces an existing lease,
prior to the scheduled expiration of the existing lease term.
Usable square feet means the American National Standards Institute/
Building Owners and Managers Association (ANSI/BOMA) Office Area where
a tenant normally houses personnel, and/or furniture, for which a
measurement is to be computed.
13. Revise section 570.103 to read as follows:
570.103 Authority to lease.
(a) The Administrator of General Services is authorized by 40
U.S.C. 585 to enter into a lease agreement for the accommodation of a
Federal agency in a building (or improvement) which is in existence or
being erected by the lessor for the accommodation of the Federal
agency. The lease agreement may not bind the Government for more than
20 years.
(b) The contracting officer has exclusive authority to enter into
and administer leases on the Government's behalf to the extent provided
in his/her certificate of appointment as a contracting officer. Nothing
in this subsection is intended to limit the contracting officer's
authority to designate, consistent with statute and regulation, a
contracting officer's representative.
570.104 [Amended]
14. Amend section 570.104 by removing ``Unless use'' and adding
``Unless the contracting officer uses'' in its place.
15. Revise section 570.105-1 to read as follows:
570.105-1 Contracting by negotiation.
Contracting by negotiation is appropriate for acquiring space in a
building through a lease contract. The contracting officer will usually
need to conduct discussions with offerors about their proposals and
consider factors other than price in making the award.
16. Amend section 570.105-2 by--
a. Revising the section heading;
b. Revising the introductory paragraph and paragraph (a);
c. Removing from paragraph (b) ``You determine'' and adding ``The
contracting officer determines whether'' in its place;
d. Removing from paragraph (b)(1) ``You expect'' and adding ``The
contracting officer expects'' in its place;
e. Removing from paragraph (b)(4) ``You consider'' and adding ``The
contracting officer considers'' in its place;
f. Redesignating paragraphs (b)(iv) through (b)(vi) as paragraphs
(b)(v) through (b)(vii) and adding new paragraph (b)(iv); and
g. Adding paragraph (c).
The revised and added text reads as follows:
570.105-2 Criteria for the use of two-phase design-build.
The contracting officer may use the two-phase design-build
selection procedures in 41 U.S.C. 253m for lease construction projects.
This includes lease construction projects with options to purchase the
real property leased. Use the procedures in 41 U.S.C. 253m and FAR 36.3
when the conditions in paragraphs (a) and (b) of this section are met:
(a) The contracting officer anticipates that the lease will involve
the design and construction of a building, facility, or work for lease
to the Government.
(b) * * *
(4) * * *
(iv) The past performance of potential contractors.
* * * * *
(c) See 570.305 for additional information.
570.105-3 [Removed]
17. Remove section 570.105-3.
18. Revise section 570.106 to read as follows:
570.106 Advertising, Publicizing, and Notifications to Congress.
(a) If a proposed acquisition is not exempt under FAR 5.202 or GSAR
570.106(e), and is for a leasehold interest in real property estimated
to exceed 10,000 usable square feet, then the contracting officer must
publicize the proposed acquisition in FedBizOpps.gov.
(b) For leasehold acquisitions where the solicitation requires the
construction of a new building on a preselected site, the contracting
officer, in accordance with the timeframes established in FAR 5.203,
must publicize the proposed acquisition in FedBizOpps.gov regardless of
size or value.
(c) Other than as identified above, the contracting officer need
not publicize the proposed acquisition of a leasehold interest in real
property, including expansion requests within the scope of
[[Page 63710]]
a lease (see 570.403), lease extensions under the conditions defined in
570.405, and building alterations within the scope of a lease (see
570.5). However, the contracting officer may publicize proposed lease
acquisitions of any dollar value or square footage in FedBizOpps.gov or
local newspapers if, in the opinion of the contracting officer, doing
so is necessary to promote competition.
(d) The contracting officer may issue a consolidated advertisement
for multiple, leasing actions.
(e) Except as otherwise provided in paragraph (b) above, where
publicizing of the proposed acquisition is required, the notice shall
be published in FedBizOpps.gov not less than three calendar days prior
to issuance of a solicitation.
(f) Except as otherwise provided in paragraph (b) of this section
and as set forth below, the contracting officer shall provide offerors
not less than 20 calendar days between solicitation issuance and the
date established for receipt of initial offers.
(1) For a proposed acquisition using simplified lease acquisition
procedures (see 570.2), consider the individual acquisition and
establish a reasonable response time.
(2) In cases of unusual and compelling urgency (FAR 6.303-2),
provide as much time as reasonably possible under the circumstances and
document the contract file.
(g) If a Member of Congress has specifically requested notification
of award, the contracting officer must provide award notifications in
accordance with 505.303.
19. Add section 570.106-1 to read as follows:
570.106-1 Synopsis of lease awards.
(a) Except for lease actions described in paragraph (b) of this
section, contracting officers must synopsize in FedBizOpps.gov awards
exceeding $25,000 total contract value that are likely to result in the
award of any subcontracts. However, the dollar threshold is not a
prohibition against publicizing an award of a smaller amount when
publicizing would be advantageous to industry or to the Government.
(b) A notice is not required if--
(1) The notice would disclose the occupant agency's needs and the
disclosure of such needs would compromise the national security; or
(2) The lease--
(i) Is for an amount not greater than the simplified lease
acquisition threshold;
(ii) Was made through a means where access to the notice of
proposed lease action was provided through FedBizOpps.gov; and
(iii) Permitted the public to respond to the solicitation
electronically.
(c) Justifications for other than full and open competition must be
posted in FedBizOpps.gov. Information exempt from public disclosure
must be redacted.
570.107 [Amended]
20. Amend section 570.107 by removing ``You may use'' and adding
``The contracting officer may require'' in its place.
570.108 [Amended]
21. Amend section 570.108 by--
a. Removing from the third sentence in paragraph (a) ``the List of
Parties Excluded from Federal Procurement and Nonprocurement Programs''
and adding ``the Excluded Parties List System (EPLS)'' in its place;
b. Removing from paragraph (b) ``Your signature'' and adding ``the
contracting officer's signature'' in its place; and
c. Removing from paragraphs (c) and (d) ``you find'' and adding
``the contracting officer finds'' in its place.
570.109 [Amended]
22. Amend section 570.109 by removing ``applicable certifications''
and adding ``applicable representations and certifications'' in its
place.
23. Amend section 570.110 by revising paragraph (b) to read as
follows:
570.110 Cost or pricing data and information other than cost or
pricing data.
* * * * *
(b) FAR 15.403-1 defines exceptions to and waivers for submitting
cost or pricing data. Most leasing actions will have adequate price
competition. For price analysis of offered rental rates, the
contracting officer may use a market survey, an appraisal conducted
using accepted real property appraisal procedures to establish a market
price for comparison, or other relevant market research data. For price
analysis of offered tenant improvement costs, obtain two bids or cost
and pricing data.
* * * * *
24. Revise section 570.111 to read as follows:
570.111 Inspection and acceptance.
Before contracting officers accept space they must verify that the
space complies with the Government's requirements and specifications
and document this in an inspection report. The inspection and
acceptance document must contain the usable square footage accepted and
the acceptance date. Include the inspection and acceptance in the
contract file.
25. Revise section 570.112 to read as follows:
570.112 Awards to Federal employees.
If contracting officers receive an offer from an officer or
employee of the Government, they must follow the procedures in FAR 3.6.
26. Revise section 570.113 to read as follows:
570.113 Disclosure of mistakes after award.
If a mistake in a lessor's offer is discovered after award, the
contracting officer should process it substantially in accordance with
FAR 14.407-4 and GSAM 514.407.
27. Add section 570.115 to read as follows:
570.115 Novation and Change of Ownership.
In the event of a transfer of ownership of the leased premises or a
change in the lessor's legal name, FAR 42.12 applies.
28. Add section 570.116 to read as follows:
570.116 Contract format.
The uniform contract format is not required for leases of real
property.
29. Add section 570.117 to read as follows:
570.117 Sustainable requirements for lease acquisition.
Contracting officers must include sustainable design requirements
appropriate for the type of leasing action in solicitations for offers.
Solicitation requirements and instructions are listed on https://gsa.gov/leasing under Leasing Policies and Procedures, Green Leasing.
Sustainable design requirements support improving the quality of the
environment by--
(a) Controlling pollution;
(b) Managing energy and water use efficiently;
(c) Using renewable energy and renewable energy technologies;
(d) Acquiring energy-efficient and water-efficient products and
services, environmentally preferable products, products containing
recovered materials, and biobased products; and
(e) Requiring lessors to identify hazardous materials.
30. Amend section 570.203-2 by revising paragraph (a) and removing
from paragraph (b) ``you solicit'' and adding ``the contracting officer
solicits'' in its place.
570.203-2 Competition.
(a) To the maximum extent practicable, the contracting officer must
solicit at least three sources to promote competition. If there are
repeated
[[Page 63711]]
requirements for space in the same market, invite two sources, if
practicable, that are not included in the most recent solicitation to
submit offers.
* * * * *
31. Amend section 570.203-3 by--
a. Revising introductory paragraph (a);
b. Removing from paragraph (a)(1) ``A description of'' and adding
``Describe'' in its place;
c. Revising paragraph (a)(2);
d. Removing from paragraphs (a)(3) and (a)(4) ``A statement of''
and adding ``State'' in its place; and
e. Adding paragraph (a)(6) to read as follows:
570.203-3 Soliciting offers.
(a) The contracting officer must solicit offers by providing each
prospective offeror a proposed short form lease GSA Form 3626 or SFO.
The short form lease or SFO must:
* * * * *
(2) List all award factors, including price or cost, and any
significant subfactors that the contracting officer will consider in
awarding the lease.
* * * * *
(6) Include sustainable design requirements.
* * * * *
32. Amend section 570.203-4 by--
a. Removing from paragraph (a) ``you need'' and adding ``the
contracting officer needs'' in its place;
b. Removing from paragraph (b) ``reasonable.'' and adding
``reasonable. See 570.110.'' in its place;
c. Revising paragraph (c);
d. Redesignating paragraphs (d) and (e) as paragraphs (e) and (f),
respectively, and adding new paragraph (d); and
e. Removing from the newly designated paragraph (e) ``$500,000''
and adding ``the amount established by FAR 19.702(a)'' in its place.
The revised and added text reads as follows:
570.203-4 Negotiation, evaluation, and award.
* * * * *
(c) If the total price, including options, exceeds the amount
established by FAR 15.403-4, consider whether the contracting officer
needs cost and pricing data to determine that the price is fair and
reasonable. In most cases, the exceptions at FAR 15.403-1 will apply.
(d) Regardless of the process used, the contracting officer must
determine whether the price is fair and reasonable.
* * * * *
33. Revise the heading in subpart 570.3--to read as follows:
Subpart 570.3--Acquisition Procedures for Leasehold Interests in
Real Property Over the Simplified Lease Acquisition Threshold
570.303-1 [Amended]
34. Amend section 570.303-1 by removing from the last sentence of
the introductory paragraph ``provide all the following''; removing from
paragraph (h) ``570.7'' and adding ``570.8'' in its place; and adding
paragraph (i) to read as follows:
570.303-1 Preparing the SFO.
* * * * *
(i) Include sustainable design requirements.
35. Revise section 570.303-2 to read as follows:
570.303-2 Issuing the SFO.
Release the SFO to all prospective offerors at the same time. The
SFO may be released electronically.
36. Amend section 570.303-4 by revising paragraph (d), and adding
paragraph (e) to read as follows:
570.303-4 Changes to SFOs.
* * * * *
(d) If an amendment is so substantial that it requires a complete
revision of the SFO, cancel the SFO, readvertise if required by
570.106, and issue a new SFO.
(e) If there are changes to the Government's requirements for
amount of space, delineated area, occupancy date, and/or other major
aspects of the requirements, the contracting officer shall consider
whether there is a need to readvertise, and to document the file
accordingly.
37. Amend section 570.304 by removing from introductory paragraph
(a) ``you use either'' and adding ``the contracting officer uses one of
the following''; revising paragraph (c) and introductory paragraph (d);
and removing from paragraphs (d)(1) and (d)(2) ``if you'' and adding
``if the contracting officer'' in its place.
The revised text reads as follows:
570.304 General source selection procedures.
* * * * *
(c) In a best value trade off procurement, the contracting officer
must include price or cost to the Government, past performance, the
planned participation of small disadvantaged business concerns in
performance of the contract, and other factors as required by FAR
15.304 as evaluation factors. The contracting officer may include other
evaluation factors as needed.
(d) The evaluation factors and significant subfactors must comply
with FAR 15.304 and either one of the following:
* * * * *
38. Amend section 570.305 by--
a. Revising paragraph (a);
b. Redesignating paragraph (c)(1)(iv) as paragraph (c)(1)(v), and
adding a new paragraph (c)(1)(iv);
c. Removing from paragraph (c)(2) ``Do not'' and adding ``The
contracting officer shall not'' (twice) in its place; and
d. Revising paragraph (d).
The revised text reads as follows:
570.305 Two-phase design-build selection procedures.
(a) These procedures apply to acquisitions of leasehold interests
if the contracting officer uses the two-phase design-build selection
procedures authorized by 570.105-2. Follow FAR 36.3.
* * * * *
(c) * * *
(1) * * *
(iv) The planned participation of small disadvantaged business
concerns in performance of the contract.
* * * * *
(d) The contracting officer shall set the maximum number of
offerors to be selected for phase-two to not exceed five unless the
contracting officer determine that a number greater than five is both:
* * * * *
39. Amend section 570.306 by--
a. Removing from paragraph (a) ``You'' and adding ``The contracting
officer'' in its place;
b. Revising paragraphs (b) and (c);
c. Redesignating paragraph (d) as paragraph (e); and adding new
paragraph (d); and
d. Adding paragraph (f).
The revised and added text reads as follows:
570.306 Evaluating offers.
* * * * *
(b) Evaluate prices and document the lease file to demonstrate that
the proposed contract price is fair and reasonable. The contracting
officer must review the elements of the offeror's proposed rent to
analyze whether the individual elements are realistic and reflect the
offeror's clear understanding of the work to be performed. The
contracting officer must discuss any inconsistencies with the offeror.
If the offeror refuses to support or make any changes to the rent
proposed, consider the risk to the Government prior to making any lease
award.
(c) Evaluate past performance on previous lease projects in
accordance
[[Page 63712]]
with 515.305 and FAR 15.305(a)(2). Obtain information through:
(1) Questionnaires tailored to the circumstances of the
acquisition;
(2) Interviews with program managers or contracting officers;
(3) Other sources; or
(4) Past performance information collected under FAR 42.15 and
available through the Past Performance Information Retrieval System
(PPIRS) at https://www.ppirs.gov.
(d) The contracting officer may obtain information to evaluate an
offeror's past performance on subcontracting plan goals and small
disadvantaged business participation, monetary targets, and
notifications under FAR 19.1202-4(b) from the following sources:
(1) The Small Business Administration;
(2) Information on prior contracts from contracting officers and
administrative contracting officers;
(3) Offeror's references; and
(4) Past performance information collected under FAR 42.15 and
available through PPIRS.
* * * * *
(f) Also see the requirements in 570.108, 570.109, and 570.111.
570.308 [Amended]
40. Amend section 570.308 by--
a. Removing from paragraph (b)(1) and the first sentence of
paragraph (b)(2) ``you'' and adding ``the contracting officer'' (two
times) in its place; and
b. Removing from the second sentence of paragraph (b)(2) ``You''
and adding ``The contracting officer'' in its place.
41. Revise section 570.401 to read as follows:
570.401 Renewal options.
(a) Exercise of options. Before exercising an option to renew,
follow the procedures in 517.207. The contract must first provide the
right to renew the lease. If a renewal option was not evaluated as part
of the lease at award, then the addition of a renewal option during the
lease term must satisfy the requirements of GSAM 506 regarding full and
open competition.
(b) Market information review. Before exercising an option to renew
a lease, review current market information to determine that the rental
rate in the option is fair and reasonable.
570.402-1 [Amended]
42. Amend section 570.402-1 by--
a. Removing from paragraphs (a) and (b) ``you'' and adding ``the
contracting officer'' (twice) in its place;
b. Removing from paragraph (b)(1) ``You do'' and adding ``The
contracting officer does'' in its place; and
c. Removing from paragraph (b)(2) ``You identify'' and adding ``The
contracting officer identifies'' in its place.
43. Amend section 570.402-2 by--
a. Revising the introductory paragraph;
b. Removing from paragraph (a) ``the'' and adding ``that the'' in
its place;
c. Removing from paragraph (b) ``requirement'' and adding
``requirements'' in its place; and
d. Revising paragraphs (c) and (d).
The revised text reads as follows:
570.402-2 Publicizing/Advertising.
The contracting officer must publish a notice if required by
570.106. The notice should:
* * * * *
(c) Indicate that the Government is interested in considering
alternative space if economically advantageous, or otherwise the
Government intends to pursue a sole source acquisition.
(d) Advise prospective offerors that the Government will consider
relocation costs (such as moving, alterations, and telecommunications)
when deciding whether it should relocate or pursue a sole source
acquisition.
* * * * *
44. Amend section 570.402-4 by revising the first sentence to read
as follows:
570.402-4 No potential acceptable locations.
If the contracting officer does not identify any potential
acceptable locations through the advertisement or the market survey, s/
he may prepare a justification to negotiate directly with the present
lessor. * * *
45. Amend section 570.402-5 by--
a. Removing from the introductory paragraph ``you identify'' and
adding ``the contracting officer identifies'' in its place;
b. Revising paragraph (a); and
c. Removing from paragraph (b)(1) ``you'' and adding ``the
contracting officer'' in its place.
The revised text reads as follows:
570.402-5 Potential acceptable locations.
* * * * *
(a) If the cost-benefit analysis indicates that the Government will
recover relocation costs and duplication of costs through competition,
develop an SFO and negotiate with all interested parties following
570.3. Disclose in the SFO Price Evaluation paragraph the Government's
estimate of relocation costs that will be used in the price evaluation.
Relocation costs should include, but are not limited to, costs to
duplicate tenant improvements, furniture and equipment move, breakdown
and setup of systems furniture and other equipment, telecommunications
costs, and administrative time.
* * * * *
46. Revise section 570.402-6 to read as follows:
570.402-6 Cost-benefit analysis.
The contracting officer must compare the costs and prices for a
lease at potentially suitable properties to the costs and prices for a
succeeding lease at the current location. The analysis must summarize
the total present value of the costs and prices for the firm term of
the lease and incorporate the elements in paragraphs (a) through (d) of
this section:
(a) Lease prices. Establish the lease prices by requesting an
informational quotation from each prospective offeror and the present
lessor. Provide a general description of the Government's needs without
a formal SFO.
(1) Adjust the prices quoted to reflect GSA's standard space at the
potentially suitable properties to cover any special requirements.
(2) Document quotations with the following information:
(i) Name and address of the firm solicited.
(ii) Name of the firm's representative providing the quote.
(iii) Price(s) quoted.
(iv) Description of the space and services for which the quote is
provided.
(v) Name of the Government employee soliciting the quotation.
(vi) Date quote was received.
(b) Full costs to duplicate tenant improvements. (1) Estimate the
full cost to duplicate alterations at potentially suitable properties.
Estimate the cost of new tenant improvements, if required, at the
current location.
(2) Estimate the cost of lump sum tenant improvement at potentially
suitable properties. Estimate the cost of new lump sum tenant
improvements, if required, at the current location.
(c) Relocation costs. Estimate the relocation costs to potentially
suitable properties, including, but not limited to, the costs
associated with furniture and equipment move, breakdown and setup of
systems furniture and other equipment, telecommunications costs, and
administrative time.
(d) Other appropriate considerations.
(e) Summary of firm term costs and prices. Total the costs and
prices for the elements in paragraphs (a) through (d) of this section,
compare the potentially suitable properties to a succeeding lease, and
conclude whether the
[[Page 63713]]
Government will recover relocation costs and duplication of costs
through competition.
47. Amend section 570.403 by--
a. Removing from paragraph (a) ``you'' and adding ``the contracting
officer'' in its place;
b. Revising paragraph (b)(2); and
c. Removing from paragraph (c) ``you determine'' and adding ``the
contracting officer determines'' in its place.
The revised text reads as follows:
570.403 Expansion requests.
* * * * *
(b) * * *
(2) If the contracting officers identify other potentially suitable
properties for the total requirement, they must perform a cost-benefit
analysis to determine whether it is in the Government's best interest
to relocate.
(i) Follow the procedure in 570.402-6. (ii) Add the total present
value cost of the unexpired portion of the firm term of the current
lease.
* * * * *
48. Amend section 570.404 by--
a. Removing from paragraph (a) ``present lease.'' and adding ``or
when market conditions warrant renegotiation of an existing lease.'' in
its place;
b. Redesignating paragraph (b) as paragraph (d), and adding new
paragraphs (b) and (c), respectively;
c. Removing from the newly designated paragraph (d) ``you'' and
adding ``the contracting officer'' in its place; and
d. Adding paragraph (e).
The added text reads as follows:
570.404 Superseding leases.
* * * * *
(b) If contracting officers plan to renegotiate a lease and the
superseding lease will exceed the simplified lease acquisition
threshold, they may do so under either one of the following conditions:
(1) The Government does not identify any potential acceptable
locations.
(2) The Government identifies potential acceptable locations, but a
cost-benefit analysis as described in 570.402-6 indicates that award to
an offeror other than the present lessor will result in substantial
relocation costs or duplication of costs to the Government, a
