[Federal Register Volume 72, Number 222 (Monday, November 19, 2007)]
[Notices]
[Pages 65026-65030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22530]
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GENERAL SERVICES ADMINISTRATION
[FMR Bulletin 2008-B1]
Delegations of Lease Acquisition Authority--Notification, Usage,
and Reporting Requirements for General Purpose, Categorical, and
Special Purpose Space Delegations
AGENCY: General Services Administration.
ACTION: Notice of bulletin.
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SUMMARY: The Government Accountability Office and the General Services
Administration Office of Inspector General have reported that some
Federal agencies using the delegated leasing authority issued to
Federal agencies on September 25, 1996, are not following properly the
instructions specified as a condition for use of the leasing
delegation. The attached bulletin re-emphasizes and updates the
conditions, restrictions and reporting requirements specified in the
delegation of authority and its supporting information. This bulletin
is in keeping with the spirit of Executive Order 13327, ``Federal Real
Property Asset Management,'' to maximize the increased governmentwide
emphasis on real property inventory management. The Federal Management
Regulation and any associated documents may be accessed at GSA's Web
site at http://www.gsa.gov/fmr. Click on FMR Bulletins.
SUPPLEMENTARY INFORMATION: FPMR D-239, published in the Federal
Register on October 16, 1996, announced a new GSA leasing program
called ``Can't Beat GSA Leasing'' and the delegation of lease
acquisition authority issued by the Administrator of General Services
to the heads of all Federal agencies in his letter of September 25,
1996. GSA Bulletin FPMR D-239, Supplement 1, published in the Federal
Register on December 18, 1996, issued supporting information for the
delegation. GSA Bulletin FMR 2005-B1, published in the Federal Register
on May 25, 2005, revised and re-emphasized certain procedures
associated with the delegation of General Purpose leasing authority.
There have been several instances reported of agencies failing to
meet the conditions required for use of the lease delegation:
1. Several agencies have failed to notify GSA prior to conducting a
specific leasing action;
2. Semi-annual performance reports on use of the lease delegation
are not being submitted to GSA on a regular basis;
3. Some agencies have exceeded the authority of the delegation,
which is
[[Page 65027]]
restricted to below prospectus level actions; and
4. Some agencies have used untrained and non-warranted and,
therefore, unauthorized contracting personnel to execute contracts on
behalf of the Government.
The following bulletin re-emphasizes and updates the conditions,
restrictions, and reporting requirements applicable to GSA leasing
delegations.
DATES: Effective Date: November 19, 2007.
FOR FURTHER INFORMATION CONTACT: Stanley C. Langfeld, Director,
Regulations Management Division, Office of Governmentwide Policy, 202-
501-1737, or [email protected].
Dated: October 5, 2007.
Kevin Messner,
Acting Associate Administrator, Office of Governmentwide Policy.
Real Property
To: Heads of Federal Agencies.
Subject: Revised Implementation Requirements for Delegations of
Lease Acquisition Authority.
1. Purpose. This bulletin re-emphasizes and modifies certain
procedures associated with the use of the delegation of General Purpose
leasing authority provided by GSA in 1996 as part of the leasing
program called ``Can't Beat GSA Leasing,'' and two other longstanding
delegations for Categorical and agency-specific Special Purpose space
as currently provided in 41 CFR part 102-73.
2. Expiration. This bulletin cancels and replaces Federal
Management Regulation (FMR) Bulletin 2005-B1, Delegations of Lease
Acquisition Authority--Notification, Usage, and Reporting Requirements
for General Purpose, Categorical, and Special Purpose Space
Delegations, which was published in the Federal Register on May 25,
2005. It contains information of a continuing nature and will remain in
effect until canceled.
3. Background.
(a) GSA has the statutory authority for acquiring and providing
Federal agencies with space. The General Purpose leasing delegation was
an outgrowth of GSA's commitment to streamline its leasing operations.
Under this program, GSA provided each Federal agency a simple choice:
Either engage GSA to acquire the space, or use the delegated leasing
authority to perform the space acquisition on its own. This bulletin
establishes new requirements for agencies requesting authorization to
use the General Purpose and Special Purpose delegation authority and
establishes revised reporting requirements, including the submission of
documents to GSA at various points in the lease acquisition process,
and requires agencies to have in place an organizational structure to
address customer issues, correct property deficiencies and enforce all
provisions of the lease. This bulletin also addresses requirements for
another longstanding delegation for Categorical space, as currently
provided in 41 CFR part 102-73.
(b) Executive Order No. 13327, ``Federal Real Property Asset
Management'' (69 FR 5897), dated February 4, 2004, promotes the
efficient and economical use of Federal real property resources. Among
other things, the Executive Order requires Federal agencies to
establish performance measures addressing the cost, value, and
efficiency of all acquisitions, within the scope of an overall agency
asset management plan. Agencies using any of the three GSA lease
delegations ((1) General Purpose, (2) Categorical [41 CFR 102-73.140]
and (3) Special Purpose [41 CFR 102-73.155]) are expected to apply
these measures to their acquisitions.
(c) By letter of September 25, 1996, the Administrator delegated
authority to the heads of all Federal agencies to perform all functions
related to the leasing of General Purpose space for a term of up to 20
years regardless of geographic location. Lease procurements using this
delegation must be compatible with the GSA community housing plans for
new Federal construction or any suitable space that will become
available in GSA-controlled Federally-owned or -leased space. GSA will
advise the agency about any limiting factors (e.g., length of term), so
that the lease will be consistent with any community housing plans. The
1996 delegation of authority does not alter the space delegation
authorities in Part 102-73 of the FMR, which pertain to ``Categorical
Space Delegations'' and ``Special Purpose Space Delegations.'' None of
the GSA delegations provide authorization for agencies to conduct
procurements on behalf of or to collect rent from other agencies.
4. General Conditions for the Use of All Leasing Delegations.
(a) Relocation of Government employees from GSA-controlled
Federally-owned or -leased space may not take place unless prior
written confirmation has been received from GSA that suitable
Government-controlled owned or vacant leased space cannot be provided
for them. See 41 CFR 102-73.10.
(b) The average net annual rent (gross annual rent excluding
services and utilities) of any lease action executed under these
delegations must be below the threshold applicable to GSA's submission
of a lease prospectus to its Congressional oversight committees under
40 U.S.C. 3307. The prospectus threshold may be adjusted annually in
accordance with 40 U.S.C. 3307(g). The current threshold for each
fiscal year can be accessed by entering GSA's Web site at http://www.gsa.gov/annualprospectusthreshold.
(c) The authority to lease granted by the delegations may only be
exercised by a warranted realty contracting officer fully meeting the
experience and training requirements of the Contracting Officer Warrant
Program as specified in section 501.603-1 of the General Services
Administration Acquisition Manual (GSAM).
(d) Agencies using the GSA leasing delegations are responsible for
compliance with all laws, Executive orders, regulations, and Office of
Management and Budget (OMB) Circulars governing warranted GSA realty
contracting officers. GSA retains the right to assess, at any time,
both the integrity of each individual lease action as well as the
capability of an agency to perform all aspects of the delegated leasing
activities, and, if necessary, to revoke an agency's delegation in
whole or in part. Improper use of any delegation may result in
revocation of the delegation and denial of future delegation requests.
(e) Federal agencies must acquire and use the space in accordance
with all applicable laws, Executive Orders, regulations, and OMB
Circulars that apply to Federal space acquisition activities.
Attachment 1 is a non-exhaustive list of laws, regulations, Executive
Orders, and OMB Circulars governing the space acquisition process. This
list may be added to or amended from time to time. As discussed in
greater detail in OMB Circular A-11, all leases must be scored prior to
execution and must be budgeted in accordance with OMB's scorekeeping
rules.
(f) Agencies are responsible for maintaining the capacity to
support all delegated leasing activities, including the use of a
warranted realty contracting officer, legal review and oversight,
construction and inspection management, cost estimation, lease
management and administration, and program oversight. Prior to each
leasing action, the agency must conduct an assessment of its needs to
establish technical requirements and the amount of space necessary to
meet mission requirements. Additionally, agencies are expected to
acquire space at charges consistent with prevailing market rates
[[Page 65028]]
for comparable facilities in the community. Accountability for all
leasing activities shall be coordinated through the agency's Senior
Real Property Officer.
(g) As a condition for the use of GSA leasing delegation
authorizations, agencies are required to make their lease files
available for audit by GSA Office of Inspector General personnel or
other GSA personnel or authorized agents as determined by the GSA
Director, Real Estate Acquisition Division, or his or her successor.
(h) Agencies using the General Purpose delegation are required to
provide GSA no less than 18 months advance notice of lease expiration,
if there is a continuing need for the space and the agency wishes to
use the delegation again to satisfy the requirement.
(i) Effective immediately upon issuance of this bulletin, agencies
are no longer authorized to use the General Purpose delegation to enter
into leases in excess of 19,999 rentable square feet of space. In
addition, agencies are prohibited from using the General Purpose
leasing delegation to enter into a Supplemental Lease Agreement to
expand the amount of space currently under lease, if such an expansion
will cause the agency to lease a total of more than 19,999 rentable
square feet of General Purpose space at the leased premises.
5. Additional Delegation Requirements.
(a) Pre-authorization submittal requirements from requesting agency
for all general purpose lease delegations and for special purpose lease
delegations involving 2,500 or more square feet of such special purpose
space.
Prior to instituting any new, succeeding, extension or superseding
lease action under the General Purpose delegation or the Special
Purpose delegation involving 2,500 or more square feet of such Special
Purpose space, the head of a Federal agency or its designee shall
submit a request for authorization to use this General or Special
Purpose lease delegation authority, in writing, to the GSA Director for
Real Estate Acquisition Division, Public Buildings Service, 1800 F
Street, NW., Washington, DC 20405, or his or her successor, to satisfy
the agency's need for General or Special Purpose space. The request
also may be submitted electronically to [email protected]. The
requesting agency must submit:
1. A detailed narrative, including cost estimates, explaining why
the granting of the request is in the best interests of the Government
and how the agency's use of the delegated authority is cost-effective
for the Government;
2. The name of the warranted realty contracting officer conducting
the procurement; such individual must fully meet the experience and
training requirements of the contracting officer warrant program as
specified in section 501.603-1 of the GSAM;
3. An acquisition plan for the procurement in accordance with the
requirements specified by Subpart 507.1--Acquisition Plans of the GSAM.
A sample limited acquisition plan is available online at http://www.gsa.gov/leasingform;
4. Justification for the delineated area in accordance with
applicable laws and Executive Orders, including the Rural Development
Act of 1972, as amended (7 U.S.C. 2204b-1), Executive Order 12072 and
Executive Order 13006;
5. A floodplain check in accordance with Executive Order 11988,
``Floodplain Management;''
6. An organizational structure and staffing plan to support the
delegation, identifying trained and experienced warranted contracting
staff, post-occupancy lease administration staff, real estate legal
support, and technical staff to ensure compliance with all applicable
laws, regulations and GSA directives governing lease acquisitions and
administration of lease contracts;
7. A plan for meeting or exceeding GSA's performance measures
(lease cost); GSA's performance measures can be found on OMB's Web site
at http://www.whitehouse.gov/omb/expectmore/detail/10001157.2005.html;
and
8. The total amount of space required, any special requirements,
and any associated parking requirements.
GSA will decide whether the requesting agency's exercise of the
delegation is in the Government's best interest. Prior to granting the
agency's request for a leasing delegation, GSA will consider the
following factors: Compatibility with the GSA community housing plan
and GSA activities in the specific market, adequacy of the
organizational structure and staffing proposed for the delegation,
demonstrated ability of the requesting agency to meet or exceed GSA's
Public Buildings Service published performance measures for cost of
leased space, whether the requesting agency has complied with all
applicable laws, Executive Orders, regulations, OMB Circulars, and
reporting requirements under previously authorized delegations, and
whether the granting of the delegation authorization is cost-effective
for the Government. Failure to demonstrate compliance with any of the
enumerated factors shall be a basis for denying the agency's request.
No delegation will be granted solely for the purpose of accelerated
delivery, and no delegation will be granted for space acquisitions
totaling more than 19,999 rentable square feet of General Purpose
space.
The requesting agency may exercise the authority contained in this
delegation only after the GSA Director for the Real Estate Acquisition
Division, Public Buildings Service, or his or her successor, notifies
the requesting agency, in writing, that suitable GSA-controlled
Federally-owned or -leased space is not available to meet its space
need and GSA authorizes the agency to conduct the lease procurement. If
the agency subsequently decides not to exercise the requested
authority, it must provide written notice of such to the GSA Director
for the Real Estate Acquisition Division, Public Buildings Service, or
his or her successor.
(b) Additional post-award submittal requirements from requesting
agency.
If the awarded lease is for an average annual rental in excess of
$100,000, including option periods and excluding the cost of
operational services, within thirty days after the lease award, the
agency must submit to the GSA Director for the Real Estate Acquisition
Division, Public Buildings Service, or his or her successor, the
following documents or evidence of compliance:
1. The fully-executed lease document and all attachments;
2. The solicitation for offers (SFO) (and any amendments issued
during the procurement);
3. The pre-solicitation ad posted on FEDBIZOPPS or in a local
publication;
4. If a sole source contract, a Justification for Other Than Full
and Open Competition in accordance with section 6.303 of the Federal
Acquisition Regulation (FAR) and sections 502.101 and 504.803 of the
GSAM;
5. The market survey data identifying properties considered in
connection with the space need, including historic buildings considered
in accordance with Executive Order 13006;
6. Documentation of compliance with the National Environmental
Policy Act of 1969, as amended, in accordance with 40 CFR Sec. 1508.9
and GSA guidance;
7. Documentation that vending facilities will be provided in
accordance with the Randolph-Sheppard Act;
8. The final scoring evaluation in accordance with OMB Circular A-
11 (2002), Criteria and Scoring Ramifications for Operating and Capital
Leases;
[[Page 65029]]
9. The Price Negotiation Memorandum, prepared in accordance with
section 570.307 of the GSAM and section 15.406-3 of the FAR;
10. Documentation that the building meets all applicable fire and
life safety requirements;
11. The seismic Compliance Certification from Successful Offeror
consistent with Executive Order 12699 for new buildings (new lease
construction) and Executive Order 12941 for existing buildings;
12. Copy of the Post-Award Synopsis posted in FEDBIZOPPS;
13. The small business subcontracting plan, if required, in
accordance with section 19.702 of the FAR;
14. Documentation that the Excluded Parties List (also known as the
Debarred Bidders List) was checked;
15. The pre-occupancy final inspection report verifying measurement
of the demised space as shown on a CAD floorplan, correction of
deficiencies, and punch-list items;
16. A Funds Availability Statement signed prior to lease award by a
budget official with the requesting agency; and
17. Documentation that the negotiated rental rate is within the
prevailing market rental rate for the class of building leased in the
delegated action; the documentation may include information from
organizations such as SIOR, Black's Guide, Torto-Wheaton, or Co-Star;
if the negotiated rental rate exceeds the market range, provide
information as to why the market rate was exceeded.
To determine whether the delegation was in the Government's best
interest, GSA shall evaluate whether a delegation was cost effective
for the Government in the acquisition and delivery of the space. In
evaluating cost-effectiveness, GSA shall consider the negotiated rental
rate in comparison to the prevailing market rental rate for a similar
class of building, and may consider factors as GSA deems appropriate,
including, but not limited to, overhead costs, personnel costs, support
contract costs, travel costs, accounting costs, and reporting costs.
The agency must provide, upon request by GSA, detailed acquisition
costs.
If the awarded lease is for an average annual rental of $100,000 or
less, including option periods and excluding the cost of operational
services, the agency must submit to the GSA Director for the Real
Estate Acquisition Division, Public Buildings Service, or his or her
successor, the following documents or evidence of compliance:
1. The fully-executed lease document and all attachments;
2. If a sole source contract, a Justification for Other Than Full
and Open Competition in accordance with section 6.303 of the Federal
Acquisition Regulation (FAR) and sections 502.101 and 504.803 of the
GSAM;
3. The market survey data identifying properties considered in
connection with the space need, including historic buildings considered
in accordance with Executive Order 13006;
4. The final scoring evaluation in accordance with OMB Circular A-
11 (2002), Criteria and Scoring Ramifications for Operating and Capital
Leases;
5. The Price Negotiation Memorandum, prepared in accordance with
section 570.307 of the GSAM and section 15.406-3 of the FAR;
6. Copy of the Post-Award Synopsis posted in FEDBIZOPPS;
7. The small business subcontracting plan, if required, in
accordance with section 19.702 of the FAR;
8. Documentation that the Excluded Parties List (also known as the
Debarred Bidders List) was checked; and
9. A Funds Availability Statement signed prior to lease award by a
budget official with the requesting agency.
6. Federal Real Property Profile Reporting Requirements for General
Purpose, Categorical and Special Purpose Leasing Delegations.
(a) The bi-annual reporting of lease performance information for
General Purpose, Categorical, and Special Purpose lease delegations to
GSA's Office of Governmentwide Policy, as stated in FMR Bulletin 2005-
B1 (Delegations of Lease Acquisition Authority--Notification, Usage,
and Reporting Requirements for General Purpose, Categorical, and
Special Purpose Space Delegations) is no longer required. In its place,
and in accordance with Executive Order 13327, Federal agencies are
required to submit data for assets in their real property inventory to
the Federal Real Property Profile (FRPP). Agencies are required to
provide data on all leased assets acquired under a delegation from GSA.
The FRPP data elements that must be submitted for each leased asset
include, but are not limited to:
1. Agency/Bureau Name;
2. Size;
3. Location; and
4. Type of Space.
Agencies will also have to indicate whether the leased asset was
acquired through a General Purpose, Categorical, or Special Purpose
space delegation. A complete list of the FRPP data elements and
definitions can be found in the Federal Real Property Council's
Guidance for Real Property Inventory Reporting, a copy of which can be
obtained from the agency's Senior Real Property Officer. FRPP data
concerning GSA lease delegation actions may be provided to GSA PBS upon
prior approval of the Federal Real Property Council.
(b) GSA also reserves the right to request additional information
on agencies' delegated lease activities based on the data submitted to
the FRPP. Failure of an agency to timely or fully provide this
additional information may result in GSA's revocation of the delegation
to that agency.
Attachment 1
The listing below of laws, regulations, Executive Orders, and OMB
Circulars affecting leasing may have applicability thresholds or other
factors that impact applicability, and agency contracting officers must
determine the individual applicability of each. These laws, Executive
Orders, regulations, and OMB Circulars, each as may have been amended
from time to time, include, but are not limited to, the following:
1. Anti-Kickback Act of 1986 (41 U.S.C. 51-58);
2. Assignment of Claims Act of 1940 (31 U.S.C. 3727);
3. Balanced Budget Act of 1997 (2 U.S.C. 900, et seq.);
4. Competition in Contracting Act of 1984 (41 U.S.C. 251, et seq.);
5. Contract Disputes Act of 1978 (41 U.S.C. 601-613);
6. Contract Work Hours and Safety Standards Act of 1962 (40 U.S.C.
3701-3708);
7. Copeland Act of 1934 (18 U.S.C. 874; 40 U.S.C. 3145(a));
8. Covenant Against Contingent Fees (41 U.S.C. 254(a));
9. Davis-Bacon Act of 1931 (40 U.S.C. Sec. Sec. (40 U.S.C. 3141-
3148);
10. Drug-Free Workplace Act of 1988 (41 U.S.C. 701-707);
11. Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7701-7706);
12. Energy Policy Act of 1992 (42 U.S.C. 8253);
13. Examination of Records (41 U.S.C. 254d);
14. Leasing Authority (40 U.S.C. 585);
15. Fire Administration Authorization Act of 1992 (15 U.S.C. 2227);
16. Intergovernmental Cooperation Act of 1968 (40 U.S.C. 901-905);
17. National Historic Preservation Act of 1966 (16 U.S.C. 470-470w-
6);
18. Occupational Safety and Health Act of 1970 (29 U.S.C. 651-678);
19. Officials Not to Benefit (41 U.S.C. 22);
20. Prohibitions on Use of Appropriated Funds to Influence Federal
Contracting (31 U.S.C. 1352);
[[Page 65030]]
21. Prompt Payment Act (31 U.S.C. 3901-3907);
22. Prospectus Authority (40 U.S.C. 3307);
23. Randolph-Sheppard Act (20 U.S.C. 107, et seq.);
24. Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157);
25. National Environmental Policy Act of 1969 (42 U.S.C. 4321, et
seq.);
26. Small Business Act (15 U.S.C. 631, et seq.);
27. Rural Development Act of 1972 (42 U.S.C. 3122);
28. Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4651-4655);
29. Resource Conservation and Recovery Act of 1976 (42 U.S.C. 690);
30. Executive Order No. 11375, ``Equal Employment Opportunity''
(Oct. 13, 1967, 32 FR 14303);
31. Executive Order No. 11988, ``Floodplain Management'' (May 24,
1977, 42 FR 26951);
32. Executive Order No. 11990, ``Protection of Wetlands'' (May 24,
1977, 42 FR 26961);
33. Executive Order No. 12072, ``Federal Space Management'' (Aug.
16, 1978, 43 FR 36869);
34. Executive Order No. 12699, ``Seismic Safety of Federal and
Federally Assisted or Regulated New Building Construction'' (Jan. 5,
1990, 55 FR 835);
35. Executive Order No. 13006, ``Locating Federal Facilities on
Historic Properties in Our Nation's Central Cities'' (May 1, 1996, 61
FR 26071);
36. Executive Order No. 13423, ``Strengthening Federal
Environmental, Energy and Transportation Management'' (January 26,
2007, 72 FR 3919);
37. Executive Order No. 13327, ``Federal Real Property Asset
Management'' (Feb. 4, 2004, 69 FR 5897);
38. Executive Order No. 12941, ``Seismic Safety of Existing
Federally Owned or Leased Buildings'' (Dec. 5, 1994, 59 FR 62545);
39. Comprehensive Procurement Guideline For Products Containing
Recovered Materials (40 CFR Chapter I Part 247);
40. OMB Circular A-11 (Capital Lease Scoring);
41. Federal Management Regulation (FMR) [41 C.F.R. Chapter 102];
and
42. General Services Administration Acquisition Manual (GSAM)
(including the General Services Administration Acquisition Regulation
(GSAR) [48 CFR Chapter 5]).
[FR Doc. E7-22530 Filed 11-16-07; 8:45 am]
BILLING CODE 6820-RH-P