[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Proposed Rules]
[Pages 63704-63715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28246]
[[Page 63704]]
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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: http://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 http://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 http://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 http://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 http://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 http://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, 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.
(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:
570.405 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) ``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
[[Page 63714]]
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.
570.502-2 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 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:
570.503 Alterations by the Government or through a separate contract.
(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
570.601 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:
------------------------------------------------------------------------
If-- Then include--
------------------------------------------------------------------------
(a) The estimated value of the 52.204-3 Taxpayer
acquisition exceeds the micro-purchase Identification.
threshold identified in FAR 2.101.
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.
(b) The estimated value of the 52.222-21 Prohibition of
acquisition exceeds $10,000. 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.
(c) The estimated value of the 52.209-6 Protecting the
acquisition exceeds the threshold Government's Interest when
identified in FAR 9.409(b). Subcontracting with
Contractors Debarred,
Suspended, or Proposed for
Debarment.
(d) The estimated value of the 52.203-11 Certification and
acquisition exceeds $100,000. Disclosure Regarding Payments
to Influence Certain Federal
Transactions.
(e) The estimated value of the 52.203-2 Certificate of
acquisition exceeds the simplified Independent Price
lease acquisition threshold. 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.
[[Page 63715]]
(f) The estimated value of the 52.219-9 Small Business
acquisition exceeds the threshold Subcontracting Plan
identified in FAR 19.708(b).
52.219-16 Liquidated Damages--
Subcontracting Plan.
(g) The estimated value of the 52.219-24 Small Disadvantaged
acquisition exceeds the threshold Business Participation
identified in FAR 19.1202-2(a) and the Program--Targets.
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.
52.219-25 Small Disadvantaged
Business Participation
Program--Disadvantaged Status
and Reporting.
(h) The value of the contract is 52.203-13 Contractor Code of
expected to exceed $5 million and the Business Ethics and Conduct.
performance period is 120 days or more.
52.203-14 Display of Hotline
Poster(s).
(i) The estimated value of the 52.222-24 Pre-award On-site
acquisition exceeds $10 million. Equal Opportunity Compliance
Review.
(j) The contracting officer requires 52.215-10 Price Reduction for
cost or pricing data for work or Defective Cost or Pricing
services exceeding the threshold Data.
identified in FAR 15.403-4.
52.215-12 Subcontractor Cost.
52.215-10 Price Reduction for
Defective Cost or Pricing
Data.
(k) The contracting officer authorizes 52.215-5 Facsimile Proposals.
submission of facsimile proposals.
(l) A negotiated acquisition provides 52.219-26 Small Disadvantaged
monetary incentives based on actual Business Participation
achievement of small disadvantaged Program--Incentive
business subcontracting targets under Subcontracting.
FAR 19.1203 and 519.1203.
------------------------------------------------------------------------
57. Revise the undesignated introductory paragraph of the newly
designated section 570.702 to read as follows:
570.702 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. Use the
clauses at your discretion in actions at or below the simplified lease
acquisition threshold.
552.215-70 Examination of Records by GSA
* * * * *
(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 Covenant Against Contingent Fees
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.
* * * * *
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