General Services Administration Acquisition Regulation; Leasing Real Property

Federal RegisterAug 17, 1995

Ask Donna

What actually matters in this document.

Text

GENERAL SERVICES ADMINISTRATION

48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and 570

[APD 2800.12A CHGE 65]

RIN AF67

General Services Administration Acquisition Regulation; Leasing

Real Property

agency: Office of Acquisition Policy, GSA.

action: Final rule.

-----------------------------------------------------------------------

summary: The General Services Administration Acquisition Regulation

(GSAR) is amended to implement several provisions of the Federal

Acquisition Streamlining Act (FASA), Pub. L. 103-355, October 13, 1994,

as it applies to the acquisition of leasehold interests in real

property. Some of the provisions of FASA which are implemented in the

Federal Acquisition Regulation (FAR) will also apply to leases of real

property because the GSAR incorporates provisions of the FAR that apply

to leases of real property by reference. Other provisions of FASA are

unique to leases of real property and are addressed in Part 570 of the

GSAR. This rule also implements several recommendations made by a GSA

process re-engineering team for improving the procedures for acquiring

leasehold interests in real property.

effective date: August 16, 1995.

for further information contact: Tom Wisnowski, Office of GSA

Acquisition Policy, (202) 501-1224.

SUPPLEMENTARY INFORMATION:

A. Public Comments

A notice of proposed rulemaking was published in the Federal

from the Institute of Real Estate Management and the Department of

Commerce, and comments were received from GSA real property contracting

activities. All of the comments were considered in formulating the

final rule. Changes made as a result of review of the comments include

the following: (1) The current publicizing threshold of 10,000 square

feet has been retained; (2) use of a specific electronic bulletin board

system as a publicizing alternative has been changed to use of an on-

line information system as an additional option; (3) the ``Changes''

clause has been revised to permit unilateral changes except for changes

to the amount of space under lease; (4) additional changes were made in

clause prescriptions where required by threshold changes as a result of

FASA implementation in the FAR; and (5) revisions to procedures and

regulatory language were made where comments indicated that additional

clarification was needed.

B. Executive Order 12866

This final rule was not submitted to the Office of Management and

Budget (OMB) for review because the rule is not a significant

regulatory action as defined in Executive Order 12866, Regulatory

Planning and Review.

C. Regulatory Flexibility Act

This rule is not expected to have a significant economic impact on

a substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) because it will have a beneficial impact on

all offerors, including small business concerns. The rule substantially

simplifies the acquisition process for leases of real property entered

into by the General Services Administration (GSA) making

[[Page 42794]]

it easier for offerors to do business with GSA. Therefore, a final

regulatory flexibility analysis was not prepared. However, analysis of

small business participation in the GSA leasing program revealed that

the majority of leases are awarded to small entities. The small

business share of the current active lease inventory of 7,101 leases is

approximately 72% (5081 leases). As expected, participation is

proportionately greater for smaller leases. Of the 3,383 leases which

would fall under the new simplified lease acquisition threshold, small

business participation is approximately 74%, compared to 67% for leases

over the threshold. It is anticipated that the simplified procedures

prescribed in this rule will result in an increase in the 74% small

business share because of process simplification and consequential,

significant reduction in the period of time between solicitation and

award.

D. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to

the GSAR do not impose recordkeeping or information collection

requirements, or collections of information from offerors, contractors,

or members of the public which require the approval of the Office of

Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and

570

Government procurement.

Accordingly, 48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and

570 are amended to read as follows:

1. The authority citation for 48 CFR Parts 501, 503, 505, 506, 507,

519, 552, and 570 continues to read as follows:

Authority: 40 U.S.C. 486(c).

PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION

SYSTEM

2. Section 501.103 is amended by revising paragraph (b) to read as

follows:

501.103 Applicability.

* * * * *

(b) Parts 501, 502, 503, 505, 506, 517, 530, 533, 552, 553, 570,

and subparts 504.2, 504.9, 509.4, 515.1, 519.3, 519.6, 519.7, 522.8,

522.13, 522.14, 532.1, 532.4, 532.6, 532.8, and 532.9 apply to leases

of real property. Other provisions of the (GSAR) 48 CFR chapter 5 do

not apply to leases of real property unless a specific cross-reference

is made in part 570.

* * * * *

PART 503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

3. Section 503.104-10 is amended by revising paragraphs (a),

(b)(3), and (c) to read as follows:

503.104-10 Solicitation provisions and contract clauses.

(a) The contracting officer may insert the provision at 552.203-71,

Prohibited Conduct, in solicitations for the acquisition of leasehold

interests in real property if there is a need to inform prospective

offerors of certain conduct which is prohibited by law.

(b) * * *

(3) Simplified procedures are being used (see 570.2).

same as the clause at 552.203-73, Price Adjustments for Illegal or

Improper Activity, in solicitations and contracts for the acquisition

of leasehold interests in real property expected to exceed $100,000 and

all modifications to leases exceeding $100,000 which do not already

contain the clause.

4. Section 503.404 is amended by revising paragraph (a) to read as

follows:

503.404 Solicitation provision and contract clause.

(a) The contracting officer shall insert the provision at 552.203-

4, Contingent Fee Representation and Agreement, in solicitations for

the acquisition of leasehold interests in real property which exceed

the simplified lease acquisition threshold.

* * * * *

PART 505--PUBLICIZING CONTRACT ACTIONS

5. Section 505.101 is amended by revising paragraph (c)

introductory text to read as follows:

505.101 Methods of disseminating information.

* * * * *

must be publicized in local newspapers and may also be posted on on-

line information systems, when the acquisition is for:

* * * * *

6. Section 505.202 is amended by revising paragraph (a)

introductory text to read as follows and by removing paragraph (b)(1)

and redesignating paragraphs (b)(2) and (b)(3) as (b)(1) and (b)(2),

respectively.

505.202 Exceptions.

* * * * *

(a) Advertising in local newspapers, and optional posting on on-

line information systems, are more appropriate than synopsizing in the

Commerce Business Daily (CBD) for proposed acquisitions of--

* * * * *

7. Section 505.203 is amended by revising paragraph (b) to read as

follows:

505.203 Publicizing and response time.

* * * * *

(b) The publicizing and response times in paragraph (a) do not

apply to proposed acquisitions of leasehold interests in real property

being conducted using simplified lease acquisition procedures (see

570.2). In such cases, the contracting officer may establish response

times appropriate for the individual acquisition involved.

PART 506--COMPETITION REQUIREMENTS

8. Section 506.001 is added before subpart 506.2 to read as

follows:

506.001 Applicability.

This part does not apply to acquisitions of leasehold interests in

real property awarded using the simplified procedures of subpart 570.2.

PART 507--ACQUISITION PLANNING

507.100 [Removed]

9. Section 507.100 is removed.

PART 519--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS

CONTRACTING

10. Section 519.705-2 is revised to read as follows:

519.705-2 Determining the need for a subcontracting plan.

The requirement at FAR 19.702(a)(1) for submission of a

subcontracting plan by only the apparently successful offeror does not

apply to GSA negotiated solicitations when the contract is expected to

exceed $500,000 ($1,000,000 for construction) and the contract will be

awarded on the basis of an evaluation of technical and/or management

proposals and cost or price proposals using source selection

procedures. Except for acquisitions of commercial products, or offering

minimal subcontracting opportunities, such acquisitions shall require

submission of a subcontracting plan with the initial offer by all

offerors that are not small business concerns.

11. Section 519.708 is amended by revising paragraph (c), removing

paragraph (d)(1) and redesignating

[[Page 42795]]

paragraphs (d)(2) and (d)(3) as (d)(1) and (d)(2) to read as follows:

519.708 Solicitation provisions and contract clauses.

* * * * *

72, Notice to Offerors of Subcontracting Plan Requirements, on the

cover page of the solicitation if the solicitation includes the clause

at 552.219-9, Small Business Subcontracting Plan.

* * * * *

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

12. Section 552.203-72 is amended by revising the date of the

provision and revising paragraph (b) of the provision to read as

follows:

552.203-72 Requirement for Certificate of Procurement Integrity.

* * * * *

Requirement for Certificate of Procurement Integrity (Aug 1995)

(a) * * *

(b) The officer or employee responsible for the offer submitted

in response to this solicitation shall submit the following

certification upon the request of the Contracting Officer.

* * * * *

13. Section 552.270-1 is amended by revising the introductory text

to read as follows:

552.270-1 Preparation of offers.

As prescribed in 570.702(a), insert the following provision:

* * * * *

14. Section 552.270-2 is amended by revising the introductory text

to read as follows:

552.270-2 Explanation to prospective offerors.

As prescribed in 570.702(b), insert the following provision:

* * * * *

15. The provision at 552.270-3 is amended by revising the

introductory text, the date of the provision, the introductory text of

paragraph (a) of the clause, and adding an Alternate I to read as

follows:

552.270-3 Late submissions, modifications, and withdrawals of offers.

As prescribed in 570.702(c), insert the following provision:

Late Submissions, Modifications, and Withdrawals of Offers (Aug 1995)

(a) Any offer received at the office designated in the

solicitation after the exact time specified for receipt of initial

offers will not be considered unless it is received before award is

made and it--

* * * * *

Alternate I (AUG 1995)

As prescribed in 570.702(c), substitute the following paragraph

for paragraph (a) of the basic clause:

(a) Any offer received at the office designated in the

solicitation after the exact time specified for receipt of best and

final offers will not be considered unless it is received before

award is made and it--

16. Section 552.270-4 is amended by revising the introductory text

to read as follows:

552.270-4 Historic preference.

As prescribed in 570.702(d), insert the following provision:

* * * * *

17. Section 552.270-5 is amended by revising the introductory text

to read as follows:

552.270-5 Lease award.

As prescribed in 570.702(e), insert the following provision:

* * * * *

18. Section 552.270-6 is amended by revising the introductory text

to read as follows:

552.270-6 Parties to execute lease.

As prescribed in 570.702(f), insert the following provision:

* * * * *

19. Section 552.270-10 is amended by revising the introductory text

to read as follows:

552.270-10 Definitions.

As prescribed in 570.703(a)(1), insert the following clause:

* * * * *

20. Section 552.270-11 is amended by revising the introductory text

to read as follows:

552.270-11 Subletting and assignment.

As prescribed in 570.703(a)(2), insert the following clause:

* * * * *

21. Section 552.270-12 is amended by revising the introductory text

to read as follows:

552.270-12 Maintenance of building and premises--Right of entry.

As prescribed in 570.703(a)(3), insert the following clause:

* * * * *

22. Section 552.270-13 is amended by revising the introductory text

to read as follows:

552.270-13 Fire and casualty damage.

As prescribed in 570.703(a)(4), insert the following clause:

* * * * *

23. Section 552.270-15 is amended by revising the introductory text

to read as follows:

552.270-15 Compliance with applicable law.

As prescribed in 570.703(a)(5), insert the following clause:

* * * * *

24. Section 552.270-16 is amended by revising the introductory text

to read as follows:

552.270-16 Inspection--Right of entry.

As prescribed in 570.703(a)(6), insert the following clause:

* * * * *

25. Section 552.270-17 is amended by revising the introductory text

to read as follows:

552.270-17 Failure and performance.

As prescribed in 570.703(a)(7), insert the following clause:

* * * * *

26. Section 552.270-18 is amended by revising the introductory text

to read as follows:

552.270-18 Successors bound.

As prescribed in 570.703(a)(8), insert the following clause:

* * * * *

27. Section 552.270-19 is amended by revising the introductory text

to read as follows:

552.270-19 Alterations.

As prescribed in 570.703(a)(9), insert the following clause:

* * * * *

28. Section 552.270-20 is amended by revising the introductory text

to read as follows:

552.270-20 Proposals for adjustment.

As prescribed in 570.703(a)(10), insert the following clause:

* * * * *

29. Section 552.270-21 is amended by revising the introductory

text, the date, and paragraph (a) of the clause to read as follows:

552.270-21 Changes.

As prescribed in 570.703(a)(11), insert the following clause:

Changes (Aug 1995)

(a) The Contracting Officer may at any time, by written order,

make changes within the general scope of this lease in any one or

more of the following:

(1) Specifications (including drawings and designs);

(2) Work or services;

(3) Facilities or space layout; or

(4) Amount of space, provided the Lessor consents to the change.

* * * * *

[[Page 42796]]

30. Section 552.270-22 is amended by revising the introductory text

to read as follows:

552.270-22 Liquidated damages.

As prescribed in 570.703(b), insert the following clause:

* * * * *

552.270-23, 552.270-24 [Removed]

31. Sections 552.270-23 and 552.270-24 are removed and reserved.

32. Section 552.270-25 is amended by revising the introductory text

to read as follows:

552.270-25 Adjustment for vacant premises.

As prescribed in 570.703(a)(12), insert the following clause:

* * * * *

33. Section 552.270-27 is amended by revising the introductory text

to read as follows:

552.270-27 Delivery and condition.

As prescribed in 570.703(a)(13), insert the following clause:

* * * * *

34. Section 552.270-28 is amended by revising the introductory text

to read as follows:

552.270-28 Default in delivery--Time extensions.

As prescribed in 570.703(a)(14), insert the following clause:

* * * * *

35. Section 552.270-30 is amended by revising the introductory text

to read as follows:

552.270-30 Progressive occupancy.

As prescribed in 570.703(a)(15), insert the following clause:

* * * * *

36. Section 552.270-31 is amended by revising the introductory text

to read as follows:

552.270-31 Payment.

As prescribed in 570.703(a)(16), insert the following clause:

* * * * *

37. Section 552.270-32 is amended by revising the introductory text

to read as follows:

552.270-32 Effect of acceptance and occupancy.

As prescribed in 570.703(a)(17), insert the following clause:

* * * * *

38. Section 552.270-33 is amended by revising the introductory text

to read as follows:

552.270-33 Default by lessor during the term.

As prescribed in 570.703(a)(18), insert the following provision:

* * * * *

39. Section 552.270-34 is amended by revising the introductory text

to read as follows:

552.270-34 Subordination, nondisturbance and attornment.

As prescribed in 570.703(a)(19), insert the following clause:

* * * * *

40. Section 552.270-35 is amended by revising the introductory text

to read as follows:

552.270-35 Statement of lease.

As prescribed in 570.703(a)(20), insert the following clause:

* * * * *

41. Section 552.270-36 is amended by revising the introductory text

to read as follows:

552.270-36 Substitution of tenant agency.

As prescribed in 570.703(a)(21), insert the following clause:

* * * * *

42. Section 552.270-37 is amended by revising the introductory text

to read as follows:

552.270-37 No waiver.

As prescribed in 570.703(a)(22), insert the following clause:

* * * * *

43. Section 552.270-38 is amended by revising the introductory text

to read as follows:

552.270-38 Integrated agreement.

As prescribed in 570.703(a)(23), insert the following clause:

* * * * *

44. Section 552.270-39 is amended by revising the introductory text

to read as follows:

552.270-39 Mutuality of obligation.

As prescribed in 570.703(a)(24), insert the following clause:

* * * * *

45. Section 552.270-40 is amended by revising the introductory text

to read as follows:

552.270-40 Asbestos and hazardous waste management.

As prescribed in 570.703(a)(25), insert the following clause:

* * * * *

46. Section 552.270-41 is amended by revising the introductory text

to read as follows:

552.270-41 Acceptance of space.

As prescribed in 570.703(a)(26), insert the following clause:

* * * * *

PART 570--ACQUISITION OF LEASEHOLD INTERESTS IN REAL PROPERTY

47. Section 570.102 is amended by removing the definition of ``Fair

Rental'' and by adding the definition of ``Simplified lease acquisition

threshold'' after the definition ``Rent and related services'' to read

as follows:

570.102 Definitions.

* * * * *

Simplified lease acquisition threshold means $100,000 average

annual rent, excluding the cost of operational services, such as heat,

light, and janitorial services, whether furnished by the lessor, the

government, or both, for the term of the lease, including option

periods.

* * * * *

48. Section 570.104 is revised to read as follows:

570.104 Contracting Officers.

Contracting officers, acting within the scope of their

appointments, are the exclusive agents to enter into and administer

leases on behalf of the Government in accordance with agency

procedures.

49. Section 570.105 is revised to read as follows:

570.105 Competition.

Unless the simplified procedures in subpart 570.2 are used, the

competition requirements of FAR part 6 and part 506 apply to the

acquisition of leasehold interests in real property.

50. Subpart 570.2 is revised to read as follows:

Subpart 570.2--Simplified Lease Acquisition Procedures

Sec.

570.201 Definitions.

570.202 Purpose.

570.203 Policy.

570.204 Procedures.

570.204-1 Market survey.

570.204-2 Competition.

570.204-3 Soliciting offers.

570.204-4 Negotiation, evaluation, and award.

570.204-5 Inspection.

570.201 Definitions.

Simplified lease acquisition procedures mean the procedures

described in this subpart for awarding leases at or below the

simplified lease acquisition threshold of $100,000, including options.

[[Page 42797]]

570.202 Purpose.

The purpose of this subpart is to prescribe simplified procedures

for small leases in order to reduce administrative costs while

providing for the efficient and economical acquisition of leasehold

interests in real property.

570.203 Policy.

Simplified lease acquisition procedures should be used to the

maximum extent practicable for actions at or below the simplified lease

acquisition threshold.

570.204 Procedures.

570.204-1 Market survey.

A market survey must be conducted to identify potential sources.

The contracting officer may use information available within GSA or

from other available sources to identify locations that will meet the

Government's minimum requirements.

570.204-2 Competition.

(a) When the lease is not expected to exceed the simplified lease

acquisition threshold, the solicitation of at least three sources is

considered to promote competition to the maximum extent practicable.

When repeated requirements for space occur in the same market, and if

practicable, two sources not included in the most recent solicitation

should be invited to submit offers.

(b) If only one source is solicited, the file must be documented

with an explanation for the lack of competition.

570.204-3 Soliciting offers.

(a) Offers should be solicited by presenting each prospective

offeror with a proposed short form lease or SFO which identifies all

minimum requirements, all award factors, including price or cost, and

any significant subfactors that will be considered in awarding the

lease and which states the relative importance the Government places on

the evaluation factors or subfactors. In describing the evaluation

factors to be considered, the solicitation shall clearly disclose

whether all evaluation factors other than cost or price when combined,

are significantly more important than cost or price; approximately

equal in importance to cost or price; or significantly less important

than cost or price.

(b) The proposed lease or SFO must describe the Government's

requirements and include, either in full text or by reference,

applicable FAR provisions and contract clauses required by 570.701 and

applicable GSAR provisions and clauses required by 570.702 and 570.703.

matters, evaluation procedures and submission of offers should be

reviewed with prospective offerors.

570.204-4 Negotiation, evaluation, and award.

(a) Negotiations, if applicable, should be conducted in accordance

with 570.305.

(b) Offers must be evaluated in accordance with the solicitation.

The contracting officer shall evaluate the price and document the lease

file to demonstrate that the proposed contract prices represent fair

and reasonable prices. In cases where the total cost exceeds $500,000,

cost and pricing data must be obtained unless the requirement is waived

or one of the exemptions at FAR 15.804-2 applies. The market price

exemption from submission of cost or pricing data may be applied to

proposed leases where there is evidence that the price is based on an

established market price for similar space leased to the general

public. A market survey and/or an appraisal conducted in accordance

with accepted real property appraisal procedures may be used as

evidence to establish the market price.

provided if the total contract value of the lease will exceed $500,000,

unless the lease will be awarded to a small business concern.

(d) For leases expected to exceed $100,000, a Certificate of

Procurement Integrity must be provided to the proposed successful

offeror for completion and submission before award.

(e) The contracting officer should review the List of Parties

Excluded from Federal Procurement and Nonprocurement Programs, to

ensure the proposed awardee is eligible to receive the award and is

otherwise responsible before awarding the lease.

(f) An award will be made to the responsible offeror whose proposal

is most advantageous to the Government considering price and other

factors included in the solicitation.

570.204-5 Inspection.

The space must be inspected to ensure that it is in substantial

compliance with the Government's requirements and specifications before

acceptance by the contracting officer. The contract file must be

documented accordingly.

51. Subpart 570.3 is revised to read as follows:

Subpart 570.3--Procedures for Contracting for Leasehold Interests in

Real Property

Sec.

570.301 Market surveys.

570.302 Publicizing/Advertising.

570.303 Solicitation for offers (SFO).

570.304 Changes to SFO's.

570.305 Negotiations.

570.306 Evaluating offers.

570.307 Late offers, modifications of offers, and withdrawals of

offers.

570.308 Preaward requirements.

570.308-1 General.

570.308-2 Cost or pricing data.

570.308-3 Proposal evaluation.

570.308-4 Responsibility determinations.

570.309 Award.

570.310 Debriefings.

570.311 Inspection.

570.301 Market surveys.

A market survey must be conducted to identify potential sources.

The contracting officer may use information available within GSA or

from other available sources to identify locations that will meet the

Government's minimum requirements.

570.302 Publicizing/Advertising.

(a) Leasing actions for blocks of space of more than 10,000 square

feet must be publicized in local newspapers and may also be posted on

an on-line information system, unless exempt under FAR 5.202 or

505.202.

(b) When the Government intends to acquire a leasehold interest in

a building to be constructed on a preselected site, the proposed

acquisition must be synopsized in the Commerce Business Daily (CBD).

570.303 Solicitation for offers (SFO).

(a) The SFO is the basis for the entire lease negotiation process

and must be made a part of the lease. SFO's must contain the

information necessary to enable the prospective offeror to prepare a

proposal. Each SFO, at a minimum, must--

(1) Be in writing.

(2) Contain a description of the minimum requirements of the

Government, including--

(i) A description of the required space.

(ii) Specifications. The type of specification will depend upon the

nature of the space needed by the agency and the market available to

satisfy the need. Specifications may be stated in terms of function,

performance, or design requirements. The specification must be drafted

to promote full and open competition and include restrictive provisions

or conditions only to the extent necessary to satisfy the needs of the

agency or as authorized by law.

(iii) Any special requirements.

[[Page 42798]]

(iv) A delivery schedule.

(3) State the method to be used to measure space.

(4) Specify a date and place for the submission of offers.

(5) Indicate how offers will be evaluated.

(6) Indicate how offers are to be structured.

(7) Identify all factors, including price or cost, and any

significant subfactors that will be considered in awarding the lease

and state the relative importance the Government places on those

evaluation factors and subfactors. In describing the evaluation factors

to be considered, the SFO shall clearly disclose whether all evaluation

factors other than cost or price when combined, are significantly more

important than cost or price, approximately equal in importance to cost

or price, or significantly less important than cost or price. Numerical

weights, which may be employed in the evaluation of proposals, need not

be disclosed in solicitations. The solicitation must inform offerors of

minimum requirements that apply to the procurement. The other factors

that will be considered in evaluating proposals should be tailored to

each acquisition and include only those factors that will have an

impact on the award decision. The evaluation factors that apply to an

acquisition and the relative importance of those factors are within the

broad discretion of the contracting officer. However, price or cost to

the Government must be included as an evaluation factor in every case.

(8) The SFO may state that award will be made to the offeror that

meets the SFO's minimum criteria for acceptable award at the lowest

cost or price.

(9) Include a statement outlining the information that may be

disclosed in post-award debriefings.

(10) Include appropriate forms as prescribed in subpart 570.8.

(b) The SFO must be released to all prospective offerors at the

same time.

570.304 Changes to SFO's.

(a) When the Government's requirements change (either before or

after receipt of proposals), the SFO must be amended in writing.

(b) When time is of the essence, information on SFO amendments may

be provided orally if--

(1) A record is made of the information provided;

(2) All offerors or prospective offerors are given notice, or

attempts to provide offerors or prospective offerors with such notice

are made, on the same day, if possible; and

(3) The information provided orally is promptly confirmed by a

written amendment.

following procedures apply--

(1) If proposals have not been submitted, amendments must be sent

to all prospective offerors who have been sent a copy of the SFO.

(2) If proposals have been received, the amendments must be sent to

all of the offerors.

(3) If an amendment is so substantial that it requires a complete

revision of the SFO, the SFO should be concealed and a new SFO issued.

570.305 Negotiations.

(a) Negotiations will be conducted with all offerors that are

within the competitive range. The contracting officer shall determine

the competitive range on the basis of cost and other factors that were

stated in the SFO and shall include in the competitive range all offers

that have a reasonable chance of being selected for award.

(b) The content and extent of the negotiations are a matter of the

contracting officer's judgment based on the particular facts of each

acquisition. The contracting officer shall--

(1) Control all discussions;

(2) Advise offerors of deficiencies in their proposals so that

offerors are given an opportunity to satisfy the Government's

requirements; attempt to resolve any uncertainties concerning the

proposals; resolve any suspected mistakes by calling them to the

offeror's attention as specifically as possible without disclosing

information concerning other offerors' proposals or the evaluation

process; and

(3) Provide offerors a reasonable opportunity to submit any cost or

price, technical, or other revisions to their proposals that may result

from the discussions.

which must be met.

(d) No information regarding the number or identity of offerors

participating in the procurement may be made available to anyone whose

official duties do not require such knowledge.

(e) Negotiations must be closed by establishing a date and time for

closing of negotiations and requesting in writing that offerors submit

a ``best and final offer'' by that date.

(f) Negotiations may not be conducted after the closing date for

best and final offers unless negotiations are reopened with all

offerors in the competitive range.

(g) Negotiations are confidential and must reflect complete

agreement on all items and conditions of the lease contract.

Information regarding the transaction will not be announced or made

available until after the contract is awarded.

(h) A written negotiation record must be placed in the lease file.

570.306 Evaluating offers.

(a) An abstract of final offers may be prepared to aid in the

analysis of offers received.

(b) Offers must be evaluated in accordance with the SFO.

570.307 Late offers, modifications of offers, and withdrawals of

offers.

Offers determined to be received late will be handled in accordance

with FAR 15.412.

570.308 Preaward requirements.

570.308-1 General.

(a) If an offeror answers affirmatively on the Contingent Fee

Representation and Agreement, in order to comply with the warranty

requirement of 41 U.S.C. 254(a), the requirements of FAR 3.4 and 503.4

must be followed for leasing actions expected to exceed the simplified

lease acquisition threshold.

(b) For leases expected to exceed $100,000, a Certificate of

Procurement Integrity must be provided to the proposed successful

offeror for completion and submission before award.

compliance with regulations.

570.308-2 Cost or pricing data.

(a) Cost or pricing data are required under the circumstances

described in FAR 15.804-2.

(b) The exemptions from and waivers of submission of certified cost

or pricing data are outlined in FAR 15.804-3. The competition exemption

applies when adequate price competition, as defined in FAR 15.804-3(b),

is obtained. The market price exemption from submission of cost or

pricing data may be applied to proposed leases where there is evidence

that the price is based on an established market price for similar

space leased to the general public. A market survey and/or an appraisal

conducted in accordance with accepted real property appraisal

procedures may be used as evidence to establish the market price. The

contracting officer may grant an exemption and need not require the

prospective lessor to submit a Standard Form 1412, Claim for Exemption

from Submission of Certified Cost or Pricing Data, when there is

evidence, before solicitation, that there is an acceptable

[[Page 42799]]

established market price (see FAR 15.804-3(e)(3)).

certified cost or pricing data may be waived under FAR 15.804-3(i) and

515.804-3.

(d) When certified cost or pricing data is required, the

contracting officer shall follow the procedural requirements in FAR

15.804-6(e).

(e) If the proposed lessor refuses to provide the data when

required, the contracting officer shall follow the procedures in FAR

15.804-6(e) and 515.804-6.

570.308-3 Proposal evaluation.

(a) Offers must be evaluated in accordance with the solicitation.

The contracting officer shall evaluate the price and document the lease

file to demonstrate that the proposed contract prices represent fair

and reasonable prices.

(b) The lease file must also document the evaluation of other award

factors listed in the solicitation. The file must include the basis for

evaluation, an analysis of each offer, and a summary of findings.

570.308-4 Responsibility determinations.

(a) The contracting officer shall make a determination that the

prospective awardee is responsible with respect to the lease being

considered. The contracting officer's signature on the contract is

deemed to be an affirmative determination. When an offeror is found to

be nonresponsible, the contracting officer shall make, sign and place

in the contract file a determination of nonresponsibility which shall

state the basis for the determination.

(b) If a small business concern is found to be nonresponsible, the

procedures at FAR 19.6 and 519.6 must be followed. All documents and

reports supporting a determination of responsibility or

nonresponsibility must be placed in the lease file.

570.309 Award.

(a) An award will be made to the responsible offeror whose proposal

is most advantageous to the Government considering price and other

factors included in the SFO.

(b) Award will be made in writing within the timeframe specified in

the SFO. If an award cannot be made within that time, the contracting

officer shall request in writing from each offeror an extension of the

acceptance period through a specific date.

electronically within three days after the award. The first day of the

three-day period is the day following award; if the third day is not a

full contracting activity workday, the third day will be the next full

contracting activity workday.

(d) All proposals received in response to an SFO may be rejected if

the head of the contracting activity or designee determines that such

action is in the public interest.

570.310 Debriefings.

(a) Unsuccessful offerors may request a debriefing by the agency,

provided that said request is made in writing and is received by the

agency within 3 days after the date on which the offeror received

notice of the contract award.

(b) The agency shall debrief the offeror to the maximum extent

practicable within 5 days after the request for the debriefing.

(1) The agency's evaluation of the significant weak or deficient

factors in the offeror's proposal;

(2) The overall evaluated cost and technical rating of the

successful offeror's proposal and the proposal of the offeror

requesting the debriefing;

(3) The overall ranking of all offers;

(4) A summary of the rationale for the award;

(5) Reasonable responses to relevant questions posed by the

debriefed offeror as to whether source selection procedures set forth

in the SFO, applicable regulations and other applicable authorities

were followed.

(6) A summary of the debriefing shall be maintained in the contract

file.

(d) The debriefing may not include point-by-point comparisons of

the debriefed offeror's proposal with other proposals and may not

disclose any information that is exempt from disclosure.

570.311 Inspection.

The space must be inspected to ensure that it is in substantial

compliance with the Government's requirements and specifications before

acceptance by the contracting officer. The contract file must be

documented accordingly.

52. Section 570.502 is amended by revising paragraphs (a), (b)(1),

(b)(2), (b)(3)(ii) and (b)(3)(iii)(B) to read as follows:

570.502 Succeeding leases.

(a) General. Succeeding leases for the continued occupancy of space

in a building which do not exceed the simplified lease acquisition

threshold may be acquired through use of the simplified procedures

outlined in subpart 570.2. Absence of competition must be explained in

the contract file. Succeeding leases which exceed the simplified lease

acquisition threshold may be entered into when a cost-benefit analysis

has been conducted and the results indicate that an award to an offeror

other than the present lessor would result in substantial relocation

costs and duplication of costs to the Government that are not expected

to be recovered through competition.

(b) Procedure--(1) Publicizing/Advertising. The contracting officer

shall publish a notice in local newspapers and/or periodicals if

required by 505.101(c). The notice should normally (i) indicate the

Government's lease is expiring, (ii) describe the requirement in terms

of type and quantity of space, (iii) indicate the Government is

interested in considering alternative space if economically

advantageous, (iv) advise prospective offerors that the Government will

consider the cost of moving, alterations, etc., when deciding whether

it should relocate, and (v) provide a contact person for those

interested in providing space to the Government.

(2) Market survey. A market survey must be conducted in accordance

with 570.301.

(3) * * *

(i) * * *

(ii) If potential acceptable locations are identified through the

advertisement or market survey and relocation costs (including

estimated moving costs, telecommunications costs, and the estimated

cost of alterations, amortized over the firm term of the lease) will be

low enough to allow recovery through a competitive process, the

contracting officer should develop a SFO and negotiate with all

interested parties in accordance with the procedures in subpart 570.3.

(iii) * * *

(A) * * *

(B) Develop an SFO and negotiate with all interested parties in

accordance with the procedures in subpart 570.3.

53. Section 570.503 is amended by revising paragraphs (a), (b)

introductory text and (c) to read as follows:

570.503 Expansion requests.

(a) When the expansion space is within the general scope of the

lease, the space may be acquired through a modification to the lease

without further justification pursuant to FAR subpart 6.3.

(b) When the expansion space needed is outside the general scope of

the lease, the contracting officer must determine whether it is more

prudent to provide the expansion space by supplemental

[[Page 42800]]

agreement to the existing lease or to satisfy the requirement by

competitive means. A market survey must be conducted to determine

whether suitable alternative locations are available. If the market

survey reveals alternate locations that can satisfy the total

requirement, a cost-benefit analysis must be performed to determine

whether it is in the Government's best interest to relocate. This

analysis may include--

* * * * *

lease, a justification must be prepared for approval in accordance with

FAR subpart 6.3 and 506.3, except when competitive procedures or

simplified lease acquisition procedures are used.

54. Section 570.504 is revised to read as follows:

570.504 Superseding leases.

(a) Consideration should be given to the execution of a superseding

lease that would replace the existing lease when the changes or

modifications to the space contemplated are so numerous or detailed as

to cause complications, or they would substantially change the present

lease.

(b) The justification and approval requirements in FAR subpart 6.3

and 506.3 must be complied with before negotiating a superseding lease

if the value of the lease exceeds the simplified lease acquisition

threshold. When the cost is less than or equal to the simplified lease

acquisition threshold, the contracting officer may use simplified

procedures outlined in 570.2 and explain the absence of competition in

the file.

55. Section 570.505 is amended by revising paragraph (a) to read as

follows:

570.505 Lease extensions.

(a) The justification and approval requirements in FAR subpart 6.3

and 506.3 must be complied with before negotiating a Supplemental Lease

Agreement exceeding the simplified lease acquisition threshold to

extend the term of the lease to provide for continued occupancy on a

short term basis (usually not to exceed 1 year). For extensions valued

less than or equal to the simplified lease acquisition threshold, the

contracting officer must explain the absence of competition in the

contract file.

* * * * *

570.602-1 [Amended]

56. Section 570.602-1 is amended by removing the figure ``$25,000''

and inserting ``$100,000'' in paragraphs (a) and (b).

570.602-2 [Amended]

57. Section 570.602-2 is amended in paragraphs (e)(3) and (g) by

removing the figure ``$25,000'' and inserting ``$100,000.''

58. Subpart 570.7 is revised to read as follows:

Subpart 570.7--Solicitation Provisions and Contract Clauses

Sec.

570.701 FAR provisions and clauses.

570.702 Solicitation provisions.

570.703 Contract clauses.

570.704 Use of provisions and clauses.

570.701 FAR provisions and clauses.

In addition to including solicitation provisions and contract

clauses prescribed in the GSAR (48 CFR chapter 5), provisions and/or

clauses substantially the same as the FAR provisions/clauses listed,

shall be included in the circumstances indicated.

(a) All solicitations and contracts, regardless of the dollar

value, must include the following provisions/clauses:

------------------------------------------------------------------------

FAR part

52 cite Title

------------------------------------------------------------------------

52.204-3.. Taxpayer Identification.

52.233-1.. Disputes.

------------------------------------------------------------------------

(b) All solicitations and contracts which exceed $1,000 must

include the FAR clause at 52.232-23, Assignment of Claims.

include the following provisions/clauses:

------------------------------------------------------------------------

FAR part

52 cite Title

------------------------------------------------------------------------

52.219-2.. Small Disadvantaged Business Concern Representation.

52.219-3.. Women-Owned Small Business Representation.

52.222-36. Affirmative Action for Handicapped Workers.

------------------------------------------------------------------------

(d) All solicitations and contracts which exceed $10,000 must

include the following provisions/clauses:

------------------------------------------------------------------------

FAR part

52 cite Title

------------------------------------------------------------------------

52.222-21. Certification of Nonsegregated 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 Special Disabled and Vietnam Era

Veterans.

52.222-37. Employment Reports on Special Disabled Veterans and Veterans

of the Vietnam Era.

------------------------------------------------------------------------

(e) All solicitations and contracts which exceed $25,000 must

include the FAR clause at 52.209-6, Protecting the Government's

Interests when Subcontracting with Contractors Debarred, Suspended, or

Proposed for Debarment.

(f) All solicitations and contracts which exceed $100,000 must

include the following FAR provisions/clauses:

------------------------------------------------------------------------

FAR part

52 cite Title

------------------------------------------------------------------------

52.203-9.. Requirement for Certification of Procurement Integrity--

Modification.

52.203-11. Certificate and Disclosure Regarding Payments to Influence

Certain Federal Transactions.

------------------------------------------------------------------------

(g) All solicitations and contracts for actions which exceed the

simplified lease acquisition threshold must include the following FAR

provisions/clauses:

------------------------------------------------------------------------

FAR part

52 cite Title

------------------------------------------------------------------------

52.203-2.. Certificate of Independent Price Determination.

52.203-7.. Anti-Kickback Procedures.

52.209-5.. Certification Regarding Debarment, Suspension, Proposed

Debarment, and Other Responsibility Matters.

52.215-1.. Examination of Records by Comptroller General.

52.215-12. Restriction on Disclosure and Use of Data (Solicitations

only).

52.219-8.. Utilization of Small Business Concerns and Small

Disadvantaged Business Concerns.

52.219-13. Utilization of Women-Owned Small Businesses.

52.223-5.. Certification Regarding a Drug-Free Workplace.

52.233-2.. Service of Protest (Solicitations only).

------------------------------------------------------------------------

(h) All solicitations and contracts which exceed $500,000 must

include the deviations to the FAR clauses at 52.219-9, Small Business

and Small Disadvantaged Business Subcontracting Plan, and 52.219-16,

Liquidated Damages--Small Business Subcontracting Plan (see 519.708 (a)

and (b)).

(i) Solicitations which exceed $1 million must include the FAR

provision at 52.222-24, Preaward On-site Equal Opportunity Compliance

Review.

(j) When cost or pricing data is required for work or service

exceeding $500,000 the FAR clauses at 52.215-22, Price Reduction for

Defective Cost or Pricing Data, and 52.215-24, Subcontractor Cost or

Pricing Data, must

[[Page 42801]]

be included in solicitations and contracts.

(k) When the contracting officer determines that it is desirable to

authorize the submission of facsimile proposals the solicitation must

include the FAR provision at 52.215-18, Facsimile Proposals.

570.702 Solicitation provisions.

When a solicitation for offers is issued, the contracting officer

should include provisions substantially the same as the following

unless the contracting officer makes a determination that use of one or

more of the provisions is not appropriate:

(a) 552.270-1 Preparation of Offers.

(b) 552.270-2 Explanation to Prospective Offerors.

Offers. Alternate I should be used when the contracting officer decides

that it is advantageous to the Government to allow offers to be

submitted up to the exact time specified for receipt of best and final

offers.

(d) 552.270-4 Historic Preference.

(e) 552.270-5 Lease Award.

(f) 552.270-6 Parties to Execute Lease.

570.703 Contract clauses.

(a) The contracting officer shall insert the following clauses or

clauses substantially the same as the following clauses in

solicitations and contracts for leasehold interests in real property

which exceed the simplified lease acquisition threshold unless the

contracting officer makes a determination that use of one or more of

the clauses is not appropriate. Use of the clauses is optional for

those actions which fall at or below the simplified lease acquisition

threshold.

(1) 552.270-10 Definitions (Included if 552.270-28 is used).

(2) 552.270-11 Subletting and Assignment.

(3) 552.270-12 Maintenance of Building and Premises--Right of

Entry.

(4) 552.270-13 Fire and Casualty Damage.

(5) 552.270-15 Compliance with Applicable Law.

(6) 552.270-16 Inspection--Right of Entry.

(7) 552.270-17 Failure in Performance.

(8) 552.270-18 Successors Bound.

(9) 552.270-19 Alterations.

(10) 552.270-20 Proposals for Adjustment.

(11) 552.270-21 Changes.

(12) 552.270-25 Adjustment for Vacant Premises.

(13) 552.270-27 Delivery and Condition.

(14) 552.270-28 Default in delivery--Time Extensions.

(15) 552.270-30 Progressive Occupancy.

(16) 552.270-31 Payment.

(17) 552.270-32 Effect of Acceptance and Occupancy.

(18) 552.270-33 Default by Lessor During the Term.

(19) 552.270-34 Subordination, Nondisturbance and Attornment.

(20) 552.270-35 Statement of Lease.

(21) 552.270-36 Substitution of Tenant Agency.

(22) 552.270-37 No Waiver.

(23) 552.270-38 Integrated Agreement.

(24) 552.270-39 Mutuality of Obligation

(25) 552.270-40 Asbestos and Hazardous Waste Management.

(26) 552.270-41 Acceptance of Space.

(b) The contracting officer shall insert the clause at 552.270-22,

Liquidated Damages, in solicitations and contracts for leasehold

interests in real property when there is a critical requirement that

the delivery date be met and an actual cost cannot be established for

the loss to the Government resulting from late delivery.

570.704 Use of provisions and clauses.

The omission of any provision or clause when its prescription

requires its use constitutes a deviation which must be approved under

subpart 501.4. Approval may be granted to deviate from provisions or

clauses that are mandated by statute (e.g., (GSAR) 48 CFR 552.203-5,

Covenant Against Contingent Fees, FAR 52.215-1, Examination of Records

by the Comptroller General, etc.) in order to modify the language of

the provision or clause, when permitted by the statute. However, the

statutory provisions and clauses may not be omitted from the SFO unless

the statute provides for waiving the requirements of the provision or

clause.

Subpart 570.8--Forms Used for Contracting for Leasehold Interests

in Real Property

59. Section 570.801 is revised to read as follows:

570.801 Standard forms.

Standard Form 2, U.S. Government Lease for Real Property, should be

used to award leases unless GSA Form 3626 is used. When the Standard

Form 2 is used, reference to the Standard Form 2-A in paragraph 7 must

be deleted.

60. Section 570.802 is revised to read as follows:

570.802 GSA forms.

(a) The GSA Form 3626, U.S. Government Lease for Real Property

(Short Form), may be used to award leases when the simplified leasing

procedures in 570.2 are used or when the Contracting Officer finds its

use to be advantageous.

(b) GSA Form 276, Supplemental Lease Agreement, should be used to

amend existing leases that involve the acquisition of additional space

or partial release of space, revisions in the terms of a lease,

restoration settlements, and alterations.

America, may be used to obtain offers from prospective offerors.

Dated: August 3, 1995.

Ida M. Ustad,

Associate Administrator for Acquisition Policy.

[FR Doc. 95-20369 Filed 8-14-95; 4:03 pm]

BILLING CODE 6820-61-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.