General Services Administration Acquisition Regulation; Leasing Real Property

Federal RegisterApr 20, 1995

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GENERAL SERVICES ADMINISTRATION

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

[GSAR Notice 5-399]

RIN-AF67

General Services Administration Acquisition Regulation; Leasing

Real Property

AGENCY: Office of Acquisition Policy, GSA.

ACTION: Proposed rule.

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

SUMMARY: The General Services Administration (GSA) invites written

comments on a proposal to amend the General Services Administration

Acquisition Regulation (GSAR) to implement various provisions of the

Federal Acquisition Streamlining Act of 1994 as they apply to the

acquisition of leasehold interests in real property and to implement

recommendation of a GSA process re-engineering team for streamlining

and/or improving the lease acquisition process.

DATES: Comments on the proposed rule should be submitted by June 19,

1995 to be considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to Ms.

Marjorie Ashby, General Services Administration, Office of GSA

Acquisition Policy, 18th & F Streets, NW, Washington, DC 20405.

FOR FURTHER INFORMATION CONTACT:

Tom Wiznowski, Office of GSA Acquisition Policy, (202) 501-1224.

SUPPLEMENTARY INFORMATION:

A. Background

This proposed rule implements 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. Most 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 provision 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. The most significant provisions of FASA that are implemented

through changes in Part 570 are:

(1) Section 4402 of FASA amended the Federal Property and

Administrative Services Act to authorize the Administrator of General

Services to prescribe regulations that provide special simplified

procedures for acquisitions of leasehold interests in real property at

rental rates that do not exceed the simplified acquisition threshold.

For purposes of establishing such procedures the rental rate or rates

under a multiyear lease do not exceed the simplified acquisition

threshold if the average annual rent payable for the period of the

lease does not exceed the simplified acquisition threshold ($100,000).

(2) Section 1061 of FASA amended the Federal Property and

Administrative Services Act to provide for disclosure of all

significant evaluation factors and subfactors and to provide for

disclosure to offerors 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.

(3) Section 1063 of FASA amended the Federal Property and

Administrative Services Act to provide for notification, in writing or

by electronic means, of award to unsuccessful offerors within 3 days

after the date of contract award. [[Page 19709]]

(4) Section 1064 of FASA amended the Federal Property and

Administrative Services Act to provide for post-award debriefings and

outlined information to be disclosed in such debriefings. The law also

provides for each solicitation for competitive proposals to include a

statement that described the information that may be disclosed in post-

award debriefings.

This proposed rule also implements several recommendations made by

a GSA process re-engineering team for improving the procedures for

acquiring leasehold interests in real property.

B. Executive Order 12866

This proposed rule was submitted to the Office of Management and

Budget under Executive Order 12866.

C. Regulatory Flexibility Act

This proposed 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 proposed rule substantially simplifies the acquisition process for

leases of real property entered into by the General Services

Administration making it easier for offerors to do business with GSA.

An Initial Regulatory Analysis has, therefore, not been performed.

Comments from small entities concerning this proposed rule will be

considered in accordance with 5 U.S.C. 610.

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. 3502, et seq.

List of Subjects in 48 CFR Parts 501, 503, 505, 506, 507, 552, and 570

Government procurement.

Accordingly, it is proposed that 48 CFR Parts 501, 503, 505, 506,

507, 552, and 570 are amended as follows:

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

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, 519, 530, 533, 552, 553 and 570;

part 504, subparts 504.2 and 504.9; part 509, subpart 509.4; part 515,

subpart 515.1; part 522, subparts 522.8, 522.13, and 522.14; and part

532, subparts 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

INTERESTS

3. Section 503.104-10 is amended by revising paragraph (a) and

(b)(3) 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).

* * * * *

PART 505--PUBLICIZING CONTRACT ACTIONS

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

introductory text and (c)(2) to read as follows:

505.101 Methods of disseminating information.

* * * * *

acquisitions must be publicized in local newspapers or posted on GSA's

electronic bulletin board for acquisition programs (To access, set your

communications software to 9600 or lower baud, no parity, 8 data bits,

and 1 stop bit. Dial 816-926-3387) when the acquisition is for:

* * * * *

(2) Leasehold interests in real property and exceeds the simplified

lease acquisition threshold (see 570.102).

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

introductory text and by removing paragraph (b)(1) and redesignating

paragraphs (b)(2) and (b)(3) as (b)(1) and (b)(2) to read as follows;

505.202 Exceptions.

* * * * *

(a) Advertising in local newspapers or posting on GSA's electronic

bulletin board for acquisition programs (To access, set your

communications software to 9600 or lower baud, no parity, 8 data bits,

and 1 stop bit. Dial 816-926-3387) is more appropriate than synopsizing

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

* * * * *

6. Section 505.203 is amended by inserting the words ``or be posted

on GSA's electronic bulletin board for acquisition programs'' in

paragraph (a) introductory text immediately following the word

``newspapers'' and 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 acquisition 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 acquisitions involved.

PART 506--COMPETITION REQUIREMENTS

7. Section 506.001 is added to read as follows:

506.001 Applicability.

This part and (FAR) 48 CFR Part 6 do not apply to acquisitions of

leasehold interests in real property awarded using the simplified

procedures of part 570, subpart 570.2.

PART 507--ACQUISITION PLANNING

8. Section 507.100 is removed.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

9. Section 552.270-1 is amended to revise the prescription for use

of the provision to read as follows:

552.270-1 Preparation of offers.

As prescribed in 570.702, insert the following provision:

* * * * *

10. Section 552.270-2 is amended to revise the prescription for use

of the provision to read as follows:

552.270-2 Explanation to prospective offerors.

As prescribed in 570.702, insert the following provision:

* * * * * [[Page 19710]]

11. Section 552.270-3 is amended by revising the prescriptive

language before the provision, by revising the date of the provision,

by revising paragraph (a) introductory text of the provision, and by

adding an Alternate I to read as follows:

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

As prescribed in 570.702, insert the following provision:

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

As prescribed in 570.702, 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--

12. Section 552.270-4 is amended to revise the prescription for use

of the provision to read as follows:

552.270-4 Historic preference.

As prescribed in 570.702, insert the following provision:

* * * * *

13. Section 552.270-5 is amended to revise the prescription for use

of the provision to read as follows:

552.270-5 Lease award.

As prescribed in 570.702, insert the following provision:

* * * * *

14. Section 552.270-6 is amended to revise the prescription for use

of the provision to read as follows:

552.270-6 Parties to execute lease.

As prescribed in 570.702, insert the following provision:

* * * * *

15. Section 552.270-10 is amended to revise the prescription for

use of the clause to read as follows:

552.270-10 Definitions.

As prescribed in 570.703, insert the following provision:

* * * * *

16. Section 552.270-11 is amended to revise the prescription for

use of the clause to read as follows:

552.270-11 Subletting and assignment.

As prescribed in 570.703, insert the following provision:

* * * * *

17. Section 552.270-12 is amended to revise the prescription for

use of the clause to read as follows:

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

As prescribed in 570.703, insert the following provision:

* * * * *

18. Section 552.270-13 is amended to revise the prescription for

use of the clause to read as follows:

552.270-13 Fire and casualty damage.

As prescribed in 570.703, insert the following provision:

* * * * *

19. Section 552.270-15 is amended to revise the prescription for

use of the clause to read as follows:

552.270-15 Compliance with applicable law.

As prescribed in 570.703, insert the following provision:

* * * * *

20. Section 552.270-16 is amended to revise the prescription for

use of the clause to read as follows:

552.270-16 Inspection--Right of entry.

As prescribed in 570.703, insert the following provision:

* * * * *

21. Section 552.270-17 is amended to revise the prescription for

use of the clause to read as follows:

552.270-17 Failure in performance.

As prescribed in 570.703, insert the following provision:

* * * * *

22. Section 552.270-18 is amended to revise the prescription for

use of the clause to read as follows:

552.270-18 Successors bound.

As prescribed in 570.703, insert the following provision:

* * * * *

23. Section 552.270-19 is amended to revise the prescription for

use of the clause to read as follows:

552.270-19 Alterations.

As prescribed in 570.703, insert the following provision:

* * * * *

24. Section 552.270-20 is amended to revise the prescription for

use of the clause to read as follows:

552.270-20 Proposals for adjustment.

As prescribed in 570.703, insert the following provision:

* * * * *

25. Section 552.270-21 is amended by revising the date of the

provision and paragraph (a) to read as follows:

552.270-21 Changes.

* * * * *

Changes (APR 1995)

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

with the consent of the Lessor, 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.

* * * * *

26. Section 552.270-22 is amended to revise the prescription for

use of the clause to read as follows:

552.270-22 Liquidated damages.

As prescribed in 570.703, insert the following provision:

* * * * *

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

28. Section 552.270-25 is amended to revise the prescription for

use of the clause to read as follows:

552.270-25 Adjustment for vacant premises.

As prescribed in 570.703, insert the following provision:

* * * * *

29. Section 552.270-27 is amended to revise the prescription for

use of the clause to read as follows:

552.270-27 Delivery and condition.

As prescribed in 570.703, insert the following provision:

* * * * *

30. Section 552.270-28 is amended to revise the prescription for

use of the clause to read as follows:

552.270-28 Default in delivery--Time extensions.

As prescribed in 570.703, insert the following provision:

* * * * *

31. Section 552.270-30 is amended to revise the prescription for

use of the clause to read as follows:

552.270-30 Progressive occupancy.

As prescribed in 570.703, insert the following provision:

* * * * *

32. Section 552.270-31 is amended to revise the prescription for

use of the clause to read as follows:

552.270-31 Measurement for payment.

As prescribed in 570.703, insert the following provision:

* * * * *

Section 552.270.32 is amended to revise the prescription for use of

the clause to read as follows: [[Page 19711]]

552.270-32 Effect of acceptance and occupancy.

As prescribed in 570.703, insert the following provision:

* * * * *

34. Section 552.270-33 is amended to revise the prescription for

use of the clause to read as follows:

552.270-33 Default by lessor during the term.

As prescribed in 570.703, insert the following provision:

* * * * *

35. Section 552.270-34 is amended to revise the prescription for

use of the clause to read as follows:

552.270-34 Subordination, nondisturbance and attornment.

As prescribed in 570.703, insert the following provision:

* * * * *

35a. Section 552.270-35 is amended to revise the prescription for

use of the clause to read as follows:

552.270-35 Statement of lease.

As prescribed in 570.703, insert the following provision:

* * * * *

36. Section 552.270-36 is amended to revise the prescription for

use of the clause to read as follows:

552.270-36 Substitution of tenant agency.

As prescribed in 570.703, insert the following provision:

* * * * *

37. Section 552.270-37 is amended to revise the prescription for

use of the clause to read as follows:

552.270-37 No waiver.

As prescribed in 570.703, insert the following provision:

* * * * *

38. Section 552.270-38 is amended to revise the prescription for

use of the clause to read as follows:

552.270-38 Integrated agreement.

As prescribed in 570.703, insert the following provision:

* * * * *

39. Section 552.270-39 is amended to revise the prescription for

use of the clause to read as follows:

552.270-39 Mutuality of obligation.

As prescribed in 570.703, insert the following provision:

* * * * *

40. Section 552.270-40 is amended to revise the prescription for

use of the clause to read as follows:

552.270-40 Asbestos and hazardous waste management.

As prescribed in 570.703, insert the following provision:

* * * * *

PART 570--ACQUISITION OF LEASEHOLD INTERESTS IN REAL PROPERTY

41. Section 570.102 is amended by removing the definitions of

``Fair Rental'' and ``Rent and related services'' and by adding

definitions for ``Rent'' and ``Simplified leasing acquisition

threshold'' to read as follows:

570.102 Definitions.

* * * * *

Rent means the amount of consideration to be paid by the Government

for use of land and buildings, or portions of buildings, under the

lease, excluding the cost of any services such as heat, light, water,

and janitorial service.

Simplified leasing acquisition threshold means $100,000 average

annual rent for the term of the lease, including option periods.

* * * * *

42. Section 570.104 is removed.

43. Section 570.105 is redesignated as 570.104 and revised to read

as follows:

570.104 Competition.

Unless the simplified procedures in 570.2 are used, the competition

requirements of (FAR) 48 CFR Parts 6 and 506 apply to the acquisition

of leasehold interests in real property.

44. Subpart 570.2 is revised to read as follows:

Subpart 570.2--Simplified Lease Acquisition Procedures

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 and award.

570.204-5 Inspection.

570.201 Definitions.

Simplified lease acquisition procedures mean the procedures

described in this subpart for awarding leases with annualized rent at

or below the simplified acquisitions threshold of $100,000, including

options.

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 should 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 include din the most recent solicitation

should be invited to submit offers.

(b) If only one source is solicited, the file should 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

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. The

offerors must be informed of minimum requirements that apply to

particular evaluation factors and significant subfactors.

(b) The proposed lease or SFR should 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.

prospective offerors:

(1) Measurement of space and the amount of space

offered; [[Page 19712]]

(2) Alterations or modifications, if any, to be made by the offeror

as part of the rent;

(3) Overtime rate (if needed);

(4) Level and frequency of service and maintenance;

(5) Rental;

(6) Rates for utility and service operating cost, if applicable;

(7) Percentage of occupancy of the building, if a tax adjustment

clause is included; and

(8) Unit priced items (e.g., electrical and telephone outlets) if

included in the lease.

(d) Following review, prospective offerors should be instructed to

complete the appropriate sections of the lease or SFO and submit the

proposed lease or offer to the Government by a designated time

established for receipt of offers.

570.204-4 Negotiation and award.

Offers should be evaluated in accordance with the solicitation. The

contracting officer should 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) 48 CFR 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. An acceptable small business

subcontracting plan must be provided if the lease will exceed $500,000,

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

Negotiations, if applicable, should be conducted in accordance with

570.305. 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. The contracting

officer should review the List of Parties Excluded from Procurement or

Nonprocurement Programs, to ensure the proposed awardee is eligible to

receive the award and is otherwise responsible before awarding the

lease.

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 contractor officer. The contract file must be

documented accordingly.

45. Subpart 570.3 is revised to read as follows:

Subpart 570.3--Procedures for Contracting for Leasehold Interests

in Real Property

570.301 Market surveys.

570.302 Publicizing/Advertising.

570.303 Solicitation for offers (SF).

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 should 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 expected to exceed the simplified lease

acquisition threshold must be publicized in local newspapers or be

posted on GSA's electronic bulletin board for acquisition programs

unless exempt under (FAR) 48 CFR 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 solicitation, as 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 needs. 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.

(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 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. 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 particular

evaluation factors and significant subfactors. 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.

Other evaluation factors that may apply to a particular acquisition are

the availability of public transportation, the availability of adequate

food service within a reasonable distance, the neighborhood and

building quality, the availability of daycare and physical fitness

facilities, and any other relevant factors.

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

disclosed in postaward debriefings.

(9) Include appropriate forms as prescribed in part 570, subpart

570.8.

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

same time. [[Page 19713]]

570.304 Changes to SFO's.

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

after receipt of proposals), the solicitation must be amended in

writing.

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

be provided orally if--

(1) The modifications are not complex;

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

(3) All offerors or prospective offerors are given notice on the

same day, if possible; and

(4) 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 offerors solicited.

(2) If proposals have been received but not evaluated, the

amendments must be sent to all of the offerors.

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

revision of the solicitation, the solicitation should be canceled and a

new solicitation 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 solicitation 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 the offeror of deficiencies in its offer so that the

offeror is given an opportunity to satisfy the Government's

requirements;

(3) Attempt to resolve any uncertainties concerning the offer;

(4) 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

(5) Provide the offeror a reasonable opportunity to submit any cost

or price, technical, or other revisions to its offer that may result

from the discussion.

be met since such practice constitutes an auction technique that is

prohibited. Likewise, no offeror should be advised of its relative

standing with other offerors.

(d) After receipt of offers, no information regarding the number or

identity of the offerors participating in the negotiation 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 should 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 will 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 considered under

(FAR) 48 CFR 15.412.

570.308 Preaward requirements.

570.308-1 General.

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

Representation and Agreement, in order to comply with the warranty

requirement of 41 U.S.C. 254(a), the requirements of (FAR) 48 CFR part

3, subpart 3.4 and part 503, subpart 503.4 must be followed for leasing

actions expected to exceed the simplified lease acquisition threshold.

(b) Other applicable certifications should be reviewed for

compliance with regulations.

570.308-2 Cost or pricing data.

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

described in (FAR) 48 CFR 15.804-2.

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

or pricing data are outlined in (FAR) 48 CFR 15.804-3. The competition

exemption applies when adequate price competition, as defined in (FAR)

48 CFR 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 established market price (see (FAR) 48 CFR 15.804-3(e)(3)).

certified cost or pricing data may be waived under (FAR) 48 CFR 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)

48 CFR 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)

48 CFR 15.804-6(e) and 515.804-6.

570.308-3 Proposal evaluation.

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

The contracting officer should evaluate the price and document the

lease file to demonstrate that the proposed contract prices represent

fair and reasonable prices.

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

award factors listed in the solicitation. The file should 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 offeror 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) 48 CFR 19.6 and (GSAR) 48 CFR 519.6 must be

followed. All documents and reports supporting a determination of

responsibility or [[Page 19714]] nonresponsibility must be placed in

the permanent 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 solicitation.

(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.

(d) All proposals received in response to a solicitation 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 of which the offeror received

notice of the contract award.

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

possible 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 offer;

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

successful offer and the offer 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 solicitation, 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 offer with other offers 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.

46. Section 570.502 is amended by adding in the first sentence of

paragraph (a) the phrase ``which exceed the simplified lease

acquisition threshold'' immediately after the phrase ``Succeeding

leases'' and by revising paragraphs (b)(1), (b)(2), (b)(3)(ii) and

(b)(3)(iii)(B) to read as follows:

570.502 Succeeding leases.

* * * * *

(b) * * *

(1) Publicizing/Advertising. The contracting officer shall publish

a notice in local newspapers or post a notice on GSA's electronic

bulletin board for acquisition programs. The notice should normally

(i) Indicate the Government's lease in expiring,

(ii) Describe the agency's need in terms of type and quality 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) * * *

(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 proceed to develop a formal SFO and

negotiate with all interested parties in accordance with the procedures

in part 570, subpart 570.3.

(iii) * * *

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

accordance with the procedures in part 570, subpart 570.3.

47. 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) 48 CFR 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 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--

* * * * *

space, a justification should be prepared for approval in accordance

with (FAR) 48 CFR part 6, subpart 6.3 and part 506, subpart 506.3

except when simplified lease acquisition procedures in 570.2 are used.

48. Section 570.504 is amended by revising paragraph (b) to read as

follows:

570.504 Superseding leases.

* * * * *

(b) The justification and approval requirements in (FAR) 48 CFR

part 6, subpart 6.3 and part 506, subpart 506.3 must be complied with

before negotiating a superseding lease if the amount of the lease,

including options, exceeds the simplified leasing acquisition

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

leasing acquisition threshold, the contracting officer may use

simplified procedures outlined in 570.2 and explain the absence of

competition in the file.

49. 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) 48 CFR

part 6, subpart 6.3 and part 506 subpart 506.3 must be complied with

before negotiating a Supplemental Lease Agreement exceeding the

simplified leasing 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 of less than or equal to the

simplified leasing acquisition threshold the contracting officer must

explain the absence of competition in the contract file.

50. Section 570.602-1 is amended by removing ``$25,000'' and

substituting ``$100,000'' in paragraph (a) and paragraph (b).

51. Section 570.602-2 is amended by removing ``$25,000'' and

substituting ``$100,000'' in paragraph (e)(3) and by

[[Page 19715]] removing ``$25,000'' and substituting ``$100,000'' in

paragraph (g).

52. Subpart 570.7 is revised to read as follows:

Subpart 570.7--Solicitation Provisions and Contract Clauses

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 (48 CFR part 52) Cite and Title

52.204-3 Taxpayer Identification

52.233-1 Disputes

(b) All solicitations and contracts which exceed $2,500 must

include the FAR clause at 48 CFR 52.222-36, Affirmative Action for

Handicapped Workers.

include the following provisions/clauses:

FAR (48 CFR part 52) Cite and 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 and Veterans of

the Vietnam Era

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

include the FAR clauses at 48 CFR 52.219-8, Utilization of Small

Business Concerns and Small Disadvantaged Business Concerns.

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

include the following FAR provision/clauses:

FAR (48 CFR part 52) Cite and Title

52.203-7 Anti-Kickback Procedures

52.203-9 Requirement for Certification of Procurement Integrity--

Modification.

52.203-11 Certificate and Disclosure Regarding Payments to

Influence Certain Federal Transactions

52.223-5 Certification Regarding a Drug Free Workplace

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

simplified acquisition threshold for leasing must include the following

FAR provisions:

FAR (48 CFR part 52) Cite and Title

52.203-2 Certificate of Independent Price Determination

52.209-5 Certification Regarding Debarment, Suspension, Proposed

Debarment, and Other Responsibility Matters

52.209-6 Protecting the Government's Interest when Subcontracting

with Contractors Debarred, Suspended, or Proposed for Debarment

52.215-1 Examination of Records by Comptroller General

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

only)

52.219-2 Small Disadvantaged Business Concern Representation

52.219-3 Women-Owned Small Business Representation

52.219-13 Utilization of Women-Owned Small Businesses

52.232-23 Assignment of Claims

52.233-2 Service of Protest (Solicitations only)

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

include the deviations to the FAR clauses at 48 CFR 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)).

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

provision at 48 CFR 52.222-24, Preaward On-site Equal Opportunity

Compliance Review.

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

exceeding $500,000 the FAR clauses at 48 CFR 52.215-22, Price Reduction

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

or Pricing Data, must be included in solicitations and contracts.

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

authorize the submission of facsimile proposals the solicitation must

include the FAR provision at 48 CFR 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.

(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 [[Page 19716]] 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

part 501, 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) 48 CFR 52.215-1,

Examination of Records by the Comptroller General, etc.) in order to

modify the language of the provision or clause. However, the statutory

provisions and clauses may not be omitted from the SPO unless the

statute provides for waiving the requirements of the provision or

clause.

53. 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. The reference to the

Standard Form 2-A in paragraph 7 must be deleted.

54. 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: March 27, 1995.

Ida M. Ustad,

Associate Administrator for Acquisition Policy.

[FR Doc. 95-9650 Filed 4-19-95; 8:45am]

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.