[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Proposed Rules]
[Pages 19708-19716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9650]
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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.
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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.
* * * * *
(c) Unless exempt under (FAR) 48 CFR 5.202 or 505.202, proposed
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.
(c) Generally, the following items should be reviewed with
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.
(c) When modifications in the Government's requirements occur, the
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.
(c) No indication may be given to any offeror of a price which must
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)).
(c) In exceptional cases, the requirement for submission of
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.
(c) Unsuccessful offerors will be notified in writing or
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.
(c) The debriefing shall include, at a minimum:
(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--
* * * * *
(c) Unless competitive procedures are used to acquire the expansion
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.
(c) All solicitations and contracts which exceed $10,000 must
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.
(c) 552.270-3 Late Submissions, Modifications, and Withdrawals of
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.
(c) GSA Form 1364, Proposal To Lease Space To The United States of
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
