[Federal Register Volume 60, Number 159 (Thursday, August 17, 1995)]
[Rules and Regulations]
[Pages 42793-42801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20369]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and 570
[APD 2800.12A CHGE 65]
RIN AF67
General Services Administration Acquisition Regulation; Leasing
Real Property
agency: Office of Acquisition Policy, GSA.
action: Final rule.
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summary: The General Services Administration Acquisition Regulation
(GSAR) is amended to implement several provisions of the Federal
Acquisition Streamlining Act (FASA), Pub. L. 103-355, October 13, 1994,
as it applies to the acquisition of leasehold interests in real
property. Some of the provisions of FASA which are implemented in the
Federal Acquisition Regulation (FAR) will also apply to leases of real
property because the GSAR incorporates provisions of the FAR that apply
to leases of real property by reference. Other provisions of FASA are
unique to leases of real property and are addressed in Part 570 of the
GSAR. This rule also implements several recommendations made by a GSA
process re-engineering team for improving the procedures for acquiring
leasehold interests in real property.
effective date: August 16, 1995.
for further information contact: Tom Wisnowski, Office of GSA
Acquisition Policy, (202) 501-1224.
SUPPLEMENTARY INFORMATION:
A. Public Comments
A notice of proposed rulemaking was published in the Federal
Register on April 20, 1995 (60 FR 19708). Public comments were received
from the Institute of Real Estate Management and the Department of
Commerce, and comments were received from GSA real property contracting
activities. All of the comments were considered in formulating the
final rule. Changes made as a result of review of the comments include
the following: (1) The current publicizing threshold of 10,000 square
feet has been retained; (2) use of a specific electronic bulletin board
system as a publicizing alternative has been changed to use of an on-
line information system as an additional option; (3) the ``Changes''
clause has been revised to permit unilateral changes except for changes
to the amount of space under lease; (4) additional changes were made in
clause prescriptions where required by threshold changes as a result of
FASA implementation in the FAR; and (5) revisions to procedures and
regulatory language were made where comments indicated that additional
clarification was needed.
B. Executive Order 12866
This final rule was not submitted to the Office of Management and
Budget (OMB) for review because the rule is not a significant
regulatory action as defined in Executive Order 12866, Regulatory
Planning and Review.
C. Regulatory Flexibility Act
This rule is not expected to have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because it will have a beneficial impact on
all offerors, including small business concerns. The rule substantially
simplifies the acquisition process for leases of real property entered
into by the General Services Administration (GSA) making
[[Page 42794]]
it easier for offerors to do business with GSA. Therefore, a final
regulatory flexibility analysis was not prepared. However, analysis of
small business participation in the GSA leasing program revealed that
the majority of leases are awarded to small entities. The small
business share of the current active lease inventory of 7,101 leases is
approximately 72% (5081 leases). As expected, participation is
proportionately greater for smaller leases. Of the 3,383 leases which
would fall under the new simplified lease acquisition threshold, small
business participation is approximately 74%, compared to 67% for leases
over the threshold. It is anticipated that the simplified procedures
prescribed in this rule will result in an increase in the 74% small
business share because of process simplification and consequential,
significant reduction in the period of time between solicitation and
award.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and
570
Government procurement.
Accordingly, 48 CFR Parts 501, 503, 505, 506, 507, 519, 552, and
570 are amended to read as follows:
1. The authority citation for 48 CFR Parts 501, 503, 505, 506, 507,
519, 552, and 570 continues to read as follows:
Authority: 40 U.S.C. 486(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
2. Section 501.103 is amended by revising paragraph (b) to read as
follows:
501.103 Applicability.
* * * * *
(b) Parts 501, 502, 503, 505, 506, 517, 530, 533, 552, 553, 570,
and subparts 504.2, 504.9, 509.4, 515.1, 519.3, 519.6, 519.7, 522.8,
522.13, 522.14, 532.1, 532.4, 532.6, 532.8, and 532.9 apply to leases
of real property. Other provisions of the (GSAR) 48 CFR chapter 5 do
not apply to leases of real property unless a specific cross-reference
is made in part 570.
* * * * *
PART 503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3. Section 503.104-10 is amended by revising paragraphs (a),
(b)(3), and (c) to read as follows:
503.104-10 Solicitation provisions and contract clauses.
(a) The contracting officer may insert the provision at 552.203-71,
Prohibited Conduct, in solicitations for the acquisition of leasehold
interests in real property if there is a need to inform prospective
offerors of certain conduct which is prohibited by law.
(b) * * *
(3) Simplified procedures are being used (see 570.2).
(c) The contracting officer shall insert a clause substantially the
same as the clause at 552.203-73, Price Adjustments for Illegal or
Improper Activity, in solicitations and contracts for the acquisition
of leasehold interests in real property expected to exceed $100,000 and
all modifications to leases exceeding $100,000 which do not already
contain the clause.
4. Section 503.404 is amended by revising paragraph (a) to read as
follows:
503.404 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 552.203-
4, Contingent Fee Representation and Agreement, in solicitations for
the acquisition of leasehold interests in real property which exceed
the simplified lease acquisition threshold.
* * * * *
PART 505--PUBLICIZING CONTRACT ACTIONS
5. Section 505.101 is amended by revising paragraph (c)
introductory text to read as follows:
505.101 Methods of disseminating information.
* * * * *
(c) Unless exempt under FAR 5.202 or 505.202, proposed acquisitions
must be publicized in local newspapers and may also be posted on on-
line information systems, when the acquisition is for:
* * * * *
6. Section 505.202 is amended by revising paragraph (a)
introductory text to read as follows and by removing paragraph (b)(1)
and redesignating paragraphs (b)(2) and (b)(3) as (b)(1) and (b)(2),
respectively.
505.202 Exceptions.
* * * * *
(a) Advertising in local newspapers, and optional posting on on-
line information systems, are more appropriate than synopsizing in the
Commerce Business Daily (CBD) for proposed acquisitions of--
* * * * *
7. Section 505.203 is amended by revising paragraph (b) to read as
follows:
505.203 Publicizing and response time.
* * * * *
(b) The publicizing and response times in paragraph (a) do not
apply to proposed acquisitions of leasehold interests in real property
being conducted using simplified lease acquisition procedures (see
570.2). In such cases, the contracting officer may establish response
times appropriate for the individual acquisition involved.
PART 506--COMPETITION REQUIREMENTS
8. Section 506.001 is added before subpart 506.2 to read as
follows:
506.001 Applicability.
This part does not apply to acquisitions of leasehold interests in
real property awarded using the simplified procedures of subpart 570.2.
PART 507--ACQUISITION PLANNING
507.100 [Removed]
9. Section 507.100 is removed.
PART 519--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS
CONTRACTING
10. Section 519.705-2 is revised to read as follows:
519.705-2 Determining the need for a subcontracting plan.
The requirement at FAR 19.702(a)(1) for submission of a
subcontracting plan by only the apparently successful offeror does not
apply to GSA negotiated solicitations when the contract is expected to
exceed $500,000 ($1,000,000 for construction) and the contract will be
awarded on the basis of an evaluation of technical and/or management
proposals and cost or price proposals using source selection
procedures. Except for acquisitions of commercial products, or offering
minimal subcontracting opportunities, such acquisitions shall require
submission of a subcontracting plan with the initial offer by all
offerors that are not small business concerns.
11. Section 519.708 is amended by revising paragraph (c), removing
paragraph (d)(1) and redesignating
[[Page 42795]]
paragraphs (d)(2) and (d)(3) as (d)(1) and (d)(2) to read as follows:
519.708 Solicitation provisions and contract clauses.
* * * * *
(c) The contracting officer shall insert the provision at 552.219-
72, Notice to Offerors of Subcontracting Plan Requirements, on the
cover page of the solicitation if the solicitation includes the clause
at 552.219-9, Small Business Subcontracting Plan.
* * * * *
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
12. Section 552.203-72 is amended by revising the date of the
provision and revising paragraph (b) of the provision to read as
follows:
552.203-72 Requirement for Certificate of Procurement Integrity.
* * * * *
Requirement for Certificate of Procurement Integrity (Aug 1995)
(a) * * *
(b) The officer or employee responsible for the offer submitted
in response to this solicitation shall submit the following
certification upon the request of the Contracting Officer.
* * * * *
13. Section 552.270-1 is amended by revising the introductory text
to read as follows:
552.270-1 Preparation of offers.
As prescribed in 570.702(a), insert the following provision:
* * * * *
14. Section 552.270-2 is amended by revising the introductory text
to read as follows:
552.270-2 Explanation to prospective offerors.
As prescribed in 570.702(b), insert the following provision:
* * * * *
15. The provision at 552.270-3 is amended by revising the
introductory text, the date of the provision, the introductory text of
paragraph (a) of the clause, and adding an Alternate I to read as
follows:
552.270-3 Late submissions, modifications, and withdrawals of offers.
As prescribed in 570.702(c), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Offers (Aug 1995)
(a) Any offer received at the office designated in the
solicitation after the exact time specified for receipt of initial
offers will not be considered unless it is received before award is
made and it--
* * * * *
Alternate I (AUG 1995)
As prescribed in 570.702(c), substitute the following paragraph
for paragraph (a) of the basic clause:
(a) Any offer received at the office designated in the
solicitation after the exact time specified for receipt of best and
final offers will not be considered unless it is received before
award is made and it--
16. Section 552.270-4 is amended by revising the introductory text
to read as follows:
552.270-4 Historic preference.
As prescribed in 570.702(d), insert the following provision:
* * * * *
17. Section 552.270-5 is amended by revising the introductory text
to read as follows:
552.270-5 Lease award.
As prescribed in 570.702(e), insert the following provision:
* * * * *
18. Section 552.270-6 is amended by revising the introductory text
to read as follows:
552.270-6 Parties to execute lease.
As prescribed in 570.702(f), insert the following provision:
* * * * *
19. Section 552.270-10 is amended by revising the introductory text
to read as follows:
552.270-10 Definitions.
As prescribed in 570.703(a)(1), insert the following clause:
* * * * *
20. Section 552.270-11 is amended by revising the introductory text
to read as follows:
552.270-11 Subletting and assignment.
As prescribed in 570.703(a)(2), insert the following clause:
* * * * *
21. Section 552.270-12 is amended by revising the introductory text
to read as follows:
552.270-12 Maintenance of building and premises--Right of entry.
As prescribed in 570.703(a)(3), insert the following clause:
* * * * *
22. Section 552.270-13 is amended by revising the introductory text
to read as follows:
552.270-13 Fire and casualty damage.
As prescribed in 570.703(a)(4), insert the following clause:
* * * * *
23. Section 552.270-15 is amended by revising the introductory text
to read as follows:
552.270-15 Compliance with applicable law.
As prescribed in 570.703(a)(5), insert the following clause:
* * * * *
24. Section 552.270-16 is amended by revising the introductory text
to read as follows:
552.270-16 Inspection--Right of entry.
As prescribed in 570.703(a)(6), insert the following clause:
* * * * *
25. Section 552.270-17 is amended by revising the introductory text
to read as follows:
552.270-17 Failure and performance.
As prescribed in 570.703(a)(7), insert the following clause:
* * * * *
26. Section 552.270-18 is amended by revising the introductory text
to read as follows:
552.270-18 Successors bound.
As prescribed in 570.703(a)(8), insert the following clause:
* * * * *
27. Section 552.270-19 is amended by revising the introductory text
to read as follows:
552.270-19 Alterations.
As prescribed in 570.703(a)(9), insert the following clause:
* * * * *
28. Section 552.270-20 is amended by revising the introductory text
to read as follows:
552.270-20 Proposals for adjustment.
As prescribed in 570.703(a)(10), insert the following clause:
* * * * *
29. Section 552.270-21 is amended by revising the introductory
text, the date, and paragraph (a) of the clause to read as follows:
552.270-21 Changes.
As prescribed in 570.703(a)(11), insert the following clause:
Changes (Aug 1995)
(a) The Contracting Officer may at any time, by written order,
make changes within the general scope of this lease in any one or
more of the following:
(1) Specifications (including drawings and designs);
(2) Work or services;
(3) Facilities or space layout; or
(4) Amount of space, provided the Lessor consents to the change.
* * * * *
[[Page 42796]]
30. Section 552.270-22 is amended by revising the introductory text
to read as follows:
552.270-22 Liquidated damages.
As prescribed in 570.703(b), insert the following clause:
* * * * *
552.270-23, 552.270-24 [Removed]
31. Sections 552.270-23 and 552.270-24 are removed and reserved.
32. Section 552.270-25 is amended by revising the introductory text
to read as follows:
552.270-25 Adjustment for vacant premises.
As prescribed in 570.703(a)(12), insert the following clause:
* * * * *
33. Section 552.270-27 is amended by revising the introductory text
to read as follows:
552.270-27 Delivery and condition.
As prescribed in 570.703(a)(13), insert the following clause:
* * * * *
34. Section 552.270-28 is amended by revising the introductory text
to read as follows:
552.270-28 Default in delivery--Time extensions.
As prescribed in 570.703(a)(14), insert the following clause:
* * * * *
35. Section 552.270-30 is amended by revising the introductory text
to read as follows:
552.270-30 Progressive occupancy.
As prescribed in 570.703(a)(15), insert the following clause:
* * * * *
36. Section 552.270-31 is amended by revising the introductory text
to read as follows:
552.270-31 Payment.
As prescribed in 570.703(a)(16), insert the following clause:
* * * * *
37. Section 552.270-32 is amended by revising the introductory text
to read as follows:
552.270-32 Effect of acceptance and occupancy.
As prescribed in 570.703(a)(17), insert the following clause:
* * * * *
38. Section 552.270-33 is amended by revising the introductory text
to read as follows:
552.270-33 Default by lessor during the term.
As prescribed in 570.703(a)(18), insert the following provision:
* * * * *
39. Section 552.270-34 is amended by revising the introductory text
to read as follows:
552.270-34 Subordination, nondisturbance and attornment.
As prescribed in 570.703(a)(19), insert the following clause:
* * * * *
40. Section 552.270-35 is amended by revising the introductory text
to read as follows:
552.270-35 Statement of lease.
As prescribed in 570.703(a)(20), insert the following clause:
* * * * *
41. Section 552.270-36 is amended by revising the introductory text
to read as follows:
552.270-36 Substitution of tenant agency.
As prescribed in 570.703(a)(21), insert the following clause:
* * * * *
42. Section 552.270-37 is amended by revising the introductory text
to read as follows:
552.270-37 No waiver.
As prescribed in 570.703(a)(22), insert the following clause:
* * * * *
43. Section 552.270-38 is amended by revising the introductory text
to read as follows:
552.270-38 Integrated agreement.
As prescribed in 570.703(a)(23), insert the following clause:
* * * * *
44. Section 552.270-39 is amended by revising the introductory text
to read as follows:
552.270-39 Mutuality of obligation.
As prescribed in 570.703(a)(24), insert the following clause:
* * * * *
45. Section 552.270-40 is amended by revising the introductory text
to read as follows:
552.270-40 Asbestos and hazardous waste management.
As prescribed in 570.703(a)(25), insert the following clause:
* * * * *
46. Section 552.270-41 is amended by revising the introductory text
to read as follows:
552.270-41 Acceptance of space.
As prescribed in 570.703(a)(26), insert the following clause:
* * * * *
PART 570--ACQUISITION OF LEASEHOLD INTERESTS IN REAL PROPERTY
47. Section 570.102 is amended by removing the definition of ``Fair
Rental'' and by adding the definition of ``Simplified lease acquisition
threshold'' after the definition ``Rent and related services'' to read
as follows:
570.102 Definitions.
* * * * *
Simplified lease acquisition threshold means $100,000 average
annual rent, excluding the cost of operational services, such as heat,
light, and janitorial services, whether furnished by the lessor, the
government, or both, for the term of the lease, including option
periods.
* * * * *
48. Section 570.104 is revised to read as follows:
570.104 Contracting Officers.
Contracting officers, acting within the scope of their
appointments, are the exclusive agents to enter into and administer
leases on behalf of the Government in accordance with agency
procedures.
49. Section 570.105 is revised to read as follows:
570.105 Competition.
Unless the simplified procedures in subpart 570.2 are used, the
competition requirements of FAR part 6 and part 506 apply to the
acquisition of leasehold interests in real property.
50. Subpart 570.2 is revised to read as follows:
Subpart 570.2--Simplified Lease Acquisition Procedures
Sec.
570.201 Definitions.
570.202 Purpose.
570.203 Policy.
570.204 Procedures.
570.204-1 Market survey.
570.204-2 Competition.
570.204-3 Soliciting offers.
570.204-4 Negotiation, evaluation, and award.
570.204-5 Inspection.
570.201 Definitions.
Simplified lease acquisition procedures mean the procedures
described in this subpart for awarding leases at or below the
simplified lease acquisition threshold of $100,000, including options.
[[Page 42797]]
570.202 Purpose.
The purpose of this subpart is to prescribe simplified procedures
for small leases in order to reduce administrative costs while
providing for the efficient and economical acquisition of leasehold
interests in real property.
570.203 Policy.
Simplified lease acquisition procedures should be used to the
maximum extent practicable for actions at or below the simplified lease
acquisition threshold.
570.204 Procedures.
570.204-1 Market survey.
A market survey must be conducted to identify potential sources.
The contracting officer may use information available within GSA or
from other available sources to identify locations that will meet the
Government's minimum requirements.
570.204-2 Competition.
(a) When the lease is not expected to exceed the simplified lease
acquisition threshold, the solicitation of at least three sources is
considered to promote competition to the maximum extent practicable.
When repeated requirements for space occur in the same market, and if
practicable, two sources not included in the most recent solicitation
should be invited to submit offers.
(b) If only one source is solicited, the file must be documented
with an explanation for the lack of competition.
570.204-3 Soliciting offers.
(a) Offers should be solicited by presenting each prospective
offeror with a proposed short form lease or SFO which identifies all
minimum requirements, all award factors, including price or cost, and
any significant subfactors that will be considered in awarding the
lease and which states the relative importance the Government places on
the evaluation factors or subfactors. In describing the evaluation
factors to be considered, the solicitation shall clearly disclose
whether all evaluation factors other than cost or price when combined,
are significantly more important than cost or price; approximately
equal in importance to cost or price; or significantly less important
than cost or price.
(b) The proposed lease or SFO must describe the Government's
requirements and include, either in full text or by reference,
applicable FAR provisions and contract clauses required by 570.701 and
applicable GSAR provisions and clauses required by 570.702 and 570.703.
(c) To the extent necessary, the Government's requirements, pricing
matters, evaluation procedures and submission of offers should be
reviewed with prospective offerors.
570.204-4 Negotiation, evaluation, and award.
(a) Negotiations, if applicable, should be conducted in accordance
with 570.305.
(b) Offers must be evaluated in accordance with the solicitation.
The contracting officer shall evaluate the price and document the lease
file to demonstrate that the proposed contract prices represent fair
and reasonable prices. In cases where the total cost exceeds $500,000,
cost and pricing data must be obtained unless the requirement is waived
or one of the exemptions at FAR 15.804-2 applies. The market price
exemption from submission of cost or pricing data may be applied to
proposed leases where there is evidence that the price is based on an
established market price for similar space leased to the general
public. A market survey and/or an appraisal conducted in accordance
with accepted real property appraisal procedures may be used as
evidence to establish the market price.
(c) An acceptable small business subcontracting plan must be
provided if the total contract value of the lease will exceed $500,000,
unless the lease will be awarded to a small business concern.
(d) For leases expected to exceed $100,000, a Certificate of
Procurement Integrity must be provided to the proposed successful
offeror for completion and submission before award.
(e) The contracting officer should review the List of Parties
Excluded from Federal Procurement and Nonprocurement Programs, to
ensure the proposed awardee is eligible to receive the award and is
otherwise responsible before awarding the lease.
(f) An award will be made to the responsible offeror whose proposal
is most advantageous to the Government considering price and other
factors included in the solicitation.
570.204-5 Inspection.
The space must be inspected to ensure that it is in substantial
compliance with the Government's requirements and specifications before
acceptance by the contracting officer. The contract file must be
documented accordingly.
51. Subpart 570.3 is revised to read as follows:
Subpart 570.3--Procedures for Contracting for Leasehold Interests in
Real Property
Sec.
570.301 Market surveys.
570.302 Publicizing/Advertising.
570.303 Solicitation for offers (SFO).
570.304 Changes to SFO's.
570.305 Negotiations.
570.306 Evaluating offers.
570.307 Late offers, modifications of offers, and withdrawals of
offers.
570.308 Preaward requirements.
570.308-1 General.
570.308-2 Cost or pricing data.
570.308-3 Proposal evaluation.
570.308-4 Responsibility determinations.
570.309 Award.
570.310 Debriefings.
570.311 Inspection.
570.301 Market surveys.
A market survey must be conducted to identify potential sources.
The contracting officer may use information available within GSA or
from other available sources to identify locations that will meet the
Government's minimum requirements.
570.302 Publicizing/Advertising.
(a) Leasing actions for blocks of space of more than 10,000 square
feet must be publicized in local newspapers and may also be posted on
an on-line information system, unless exempt under FAR 5.202 or
505.202.
(b) When the Government intends to acquire a leasehold interest in
a building to be constructed on a preselected site, the proposed
acquisition must be synopsized in the Commerce Business Daily (CBD).
570.303 Solicitation for offers (SFO).
(a) The SFO is the basis for the entire lease negotiation process
and must be made a part of the lease. SFO's must contain the
information necessary to enable the prospective offeror to prepare a
proposal. Each SFO, at a minimum, must--
(1) Be in writing.
(2) Contain a description of the minimum requirements of the
Government, including--
(i) A description of the required space.
(ii) Specifications. The type of specification will depend upon the
nature of the space needed by the agency and the market available to
satisfy the need. Specifications may be stated in terms of function,
performance, or design requirements. The specification must be drafted
to promote full and open competition and include restrictive provisions
or conditions only to the extent necessary to satisfy the needs of the
agency or as authorized by law.
(iii) Any special requirements.
[[Page 42798]]
(iv) A delivery schedule.
(3) State the method to be used to measure space.
(4) Specify a date and place for the submission of offers.
(5) Indicate how offers will be evaluated.
(6) Indicate how offers are to be structured.
(7) Identify all factors, including price or cost, and any
significant subfactors that will be considered in awarding the lease
and state the relative importance the Government places on those
evaluation factors and subfactors. In describing the evaluation factors
to be considered, the SFO shall clearly disclose whether all evaluation
factors other than cost or price when combined, are significantly more
important than cost or price, approximately equal in importance to cost
or price, or significantly less important than cost or price. Numerical
weights, which may be employed in the evaluation of proposals, need not
be disclosed in solicitations. The solicitation must inform offerors of
minimum requirements that apply to the procurement. The other factors
that will be considered in evaluating proposals should be tailored to
each acquisition and include only those factors that will have an
impact on the award decision. The evaluation factors that apply to an
acquisition and the relative importance of those factors are within the
broad discretion of the contracting officer. However, price or cost to
the Government must be included as an evaluation factor in every case.
(8) The SFO may state that award will be made to the offeror that
meets the SFO's minimum criteria for acceptable award at the lowest
cost or price.
(9) Include a statement outlining the information that may be
disclosed in post-award debriefings.
(10) Include appropriate forms as prescribed in subpart 570.8.
(b) The SFO must be released to all prospective offerors at the
same time.
570.304 Changes to SFO's.
(a) When the Government's requirements change (either before or
after receipt of proposals), the SFO must be amended in writing.
(b) When time is of the essence, information on SFO amendments may
be provided orally if--
(1) A record is made of the information provided;
(2) All offerors or prospective offerors are given notice, or
attempts to provide offerors or prospective offerors with such notice
are made, on the same day, if possible; and
(3) The information provided orally is promptly confirmed by a
written amendment.
(c) When amendments to the Government's requirements occur, the
following procedures apply--
(1) If proposals have not been submitted, amendments must be sent
to all prospective offerors who have been sent a copy of the SFO.
(2) If proposals have been received, the amendments must be sent to
all of the offerors.
(3) If an amendment is so substantial that it requires a complete
revision of the SFO, the SFO should be concealed and a new SFO issued.
570.305 Negotiations.
(a) Negotiations will be conducted with all offerors that are
within the competitive range. The contracting officer shall determine
the competitive range on the basis of cost and other factors that were
stated in the SFO and shall include in the competitive range all offers
that have a reasonable chance of being selected for award.
(b) The content and extent of the negotiations are a matter of the
contracting officer's judgment based on the particular facts of each
acquisition. The contracting officer shall--
(1) Control all discussions;
(2) Advise offerors of deficiencies in their proposals so that
offerors are given an opportunity to satisfy the Government's
requirements; attempt to resolve any uncertainties concerning the
proposals; resolve any suspected mistakes by calling them to the
offeror's attention as specifically as possible without disclosing
information concerning other offerors' proposals or the evaluation
process; and
(3) Provide offerors a reasonable opportunity to submit any cost or
price, technical, or other revisions to their proposals that may result
from the discussions.
(c) No indication may be given to any offeror of a target price
which must be met.
(d) No information regarding the number or identity of offerors
participating in the procurement may be made available to anyone whose
official duties do not require such knowledge.
(e) Negotiations must be closed by establishing a date and time for
closing of negotiations and requesting in writing that offerors submit
a ``best and final offer'' by that date.
(f) Negotiations may not be conducted after the closing date for
best and final offers unless negotiations are reopened with all
offerors in the competitive range.
(g) Negotiations are confidential and must reflect complete
agreement on all items and conditions of the lease contract.
Information regarding the transaction will not be announced or made
available until after the contract is awarded.
(h) A written negotiation record must be placed in the lease file.
570.306 Evaluating offers.
(a) An abstract of final offers may be prepared to aid in the
analysis of offers received.
(b) Offers must be evaluated in accordance with the SFO.
570.307 Late offers, modifications of offers, and withdrawals of
offers.
Offers determined to be received late will be handled in accordance
with FAR 15.412.
570.308 Preaward requirements.
570.308-1 General.
(a) If an offeror answers affirmatively on the Contingent Fee
Representation and Agreement, in order to comply with the warranty
requirement of 41 U.S.C. 254(a), the requirements of FAR 3.4 and 503.4
must be followed for leasing actions expected to exceed the simplified
lease acquisition threshold.
(b) For leases expected to exceed $100,000, a Certificate of
Procurement Integrity must be provided to the proposed successful
offeror for completion and submission before award.
(c) 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 15.804-2.
(b) The exemptions from and waivers of submission of certified cost
or pricing data are outlined in FAR 15.804-3. The competition exemption
applies when adequate price competition, as defined in FAR 15.804-3(b),
is obtained. The market price exemption from submission of cost or
pricing data may be applied to proposed leases where there is evidence
that the price is based on an established market price for similar
space leased to the general public. A market survey and/or an appraisal
conducted in accordance with accepted real property appraisal
procedures may be used as evidence to establish the market price. The
contracting officer may grant an exemption and need not require the
prospective lessor to submit a Standard Form 1412, Claim for Exemption
from Submission of Certified Cost or Pricing Data, when there is
evidence, before solicitation, that there is an acceptable
[[Page 42799]]
established market price (see FAR 15.804-3(e)(3)).
(c) In exceptional cases, the requirement for submission of
certified cost or pricing data may be waived under FAR 15.804-3(i) and
515.804-3.
(d) When certified cost or pricing data is required, the
contracting officer shall follow the procedural requirements in FAR
15.804-6(e).
(e) If the proposed lessor refuses to provide the data when
required, the contracting officer shall follow the procedures in FAR
15.804-6(e) and 515.804-6.
570.308-3 Proposal evaluation.
(a) Offers must be evaluated in accordance with the solicitation.
The contracting officer shall evaluate the price and document the lease
file to demonstrate that the proposed contract prices represent fair
and reasonable prices.
(b) The lease file must also document the evaluation of other award
factors listed in the solicitation. The file must include the basis for
evaluation, an analysis of each offer, and a summary of findings.
570.308-4 Responsibility determinations.
(a) The contracting officer shall make a determination that the
prospective awardee is responsible with respect to the lease being
considered. The contracting officer's signature on the contract is
deemed to be an affirmative determination. When an offeror is found to
be nonresponsible, the contracting officer shall make, sign and place
in the contract file a determination of nonresponsibility which shall
state the basis for the determination.
(b) If a small business concern is found to be nonresponsible, the
procedures at FAR 19.6 and 519.6 must be followed. All documents and
reports supporting a determination of responsibility or
nonresponsibility must be placed in the lease file.
570.309 Award.
(a) An award will be made to the responsible offeror whose proposal
is most advantageous to the Government considering price and other
factors included in the SFO.
(b) Award will be made in writing within the timeframe specified in
the SFO. If an award cannot be made within that time, the contracting
officer shall request in writing from each offeror an extension of the
acceptance period through a specific date.
(c) Unsuccessful offerors will be notified in writing or
electronically within three days after the award. The first day of the
three-day period is the day following award; if the third day is not a
full contracting activity workday, the third day will be the next full
contracting activity workday.
(d) All proposals received in response to an SFO may be rejected if
the head of the contracting activity or designee determines that such
action is in the public interest.
570.310 Debriefings.
(a) Unsuccessful offerors may request a debriefing by the agency,
provided that said request is made in writing and is received by the
agency within 3 days after the date on which the offeror received
notice of the contract award.
(b) The agency shall debrief the offeror to the maximum extent
practicable within 5 days after the request for the debriefing.
(c) The debriefing shall include, at a minimum:
(1) The agency's evaluation of the significant weak or deficient
factors in the offeror's proposal;
(2) The overall evaluated cost and technical rating of the
successful offeror's proposal and the proposal of the offeror
requesting the debriefing;
(3) The overall ranking of all offers;
(4) A summary of the rationale for the award;
(5) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source selection procedures set forth
in the SFO, applicable regulations and other applicable authorities
were followed.
(6) A summary of the debriefing shall be maintained in the contract
file.
(d) The debriefing may not include point-by-point comparisons of
the debriefed offeror's proposal with other proposals and may not
disclose any information that is exempt from disclosure.
570.311 Inspection.
The space must be inspected to ensure that it is in substantial
compliance with the Government's requirements and specifications before
acceptance by the contracting officer. The contract file must be
documented accordingly.
52. Section 570.502 is amended by revising paragraphs (a), (b)(1),
(b)(2), (b)(3)(ii) and (b)(3)(iii)(B) to read as follows:
570.502 Succeeding leases.
(a) General. Succeeding leases for the continued occupancy of space
in a building which do not exceed the simplified lease acquisition
threshold may be acquired through use of the simplified procedures
outlined in subpart 570.2. Absence of competition must be explained in
the contract file. Succeeding leases which exceed the simplified lease
acquisition threshold may be entered into when a cost-benefit analysis
has been conducted and the results indicate that an award to an offeror
other than the present lessor would result in substantial relocation
costs and duplication of costs to the Government that are not expected
to be recovered through competition.
(b) Procedure--(1) Publicizing/Advertising. The contracting officer
shall publish a notice in local newspapers and/or periodicals if
required by 505.101(c). The notice should normally (i) indicate the
Government's lease is expiring, (ii) describe the requirement in terms
of type and quantity of space, (iii) indicate the Government is
interested in considering alternative space if economically
advantageous, (iv) advise prospective offerors that the Government will
consider the cost of moving, alterations, etc., when deciding whether
it should relocate, and (v) provide a contact person for those
interested in providing space to the Government.
(2) Market survey. A market survey must be conducted in accordance
with 570.301.
(3) * * *
(i) * * *
(ii) If potential acceptable locations are identified through the
advertisement or market survey and relocation costs (including
estimated moving costs, telecommunications costs, and the estimated
cost of alterations, amortized over the firm term of the lease) will be
low enough to allow recovery through a competitive process, the
contracting officer should develop a SFO and negotiate with all
interested parties in accordance with the procedures in subpart 570.3.
(iii) * * *
(A) * * *
(B) Develop an SFO and negotiate with all interested parties in
accordance with the procedures in subpart 570.3.
53. Section 570.503 is amended by revising paragraphs (a), (b)
introductory text and (c) to read as follows:
570.503 Expansion requests.
(a) When the expansion space is within the general scope of the
lease, the space may be acquired through a modification to the lease
without further justification pursuant to FAR subpart 6.3.
(b) When the expansion space needed is outside the general scope of
the lease, the contracting officer must determine whether it is more
prudent to provide the expansion space by supplemental
[[Page 42800]]
agreement to the existing lease or to satisfy the requirement by
competitive means. A market survey must be conducted to determine
whether suitable alternative locations are available. If the market
survey reveals alternate locations that can satisfy the total
requirement, a cost-benefit analysis must be performed to determine
whether it is in the Government's best interest to relocate. This
analysis may include--
* * * * *
(c) When the expansion space is outside the general scope of the
lease, a justification must be prepared for approval in accordance with
FAR subpart 6.3 and 506.3, except when competitive procedures or
simplified lease acquisition procedures are used.
54. Section 570.504 is revised to read as follows:
570.504 Superseding leases.
(a) Consideration should be given to the execution of a superseding
lease that would replace the existing lease when the changes or
modifications to the space contemplated are so numerous or detailed as
to cause complications, or they would substantially change the present
lease.
(b) The justification and approval requirements in FAR subpart 6.3
and 506.3 must be complied with before negotiating a superseding lease
if the value of the lease exceeds the simplified lease acquisition
threshold. When the cost is less than or equal to the simplified lease
acquisition threshold, the contracting officer may use simplified
procedures outlined in 570.2 and explain the absence of competition in
the file.
55. Section 570.505 is amended by revising paragraph (a) to read as
follows:
570.505 Lease extensions.
(a) The justification and approval requirements in FAR subpart 6.3
and 506.3 must be complied with before negotiating a Supplemental Lease
Agreement exceeding the simplified lease acquisition threshold to
extend the term of the lease to provide for continued occupancy on a
short term basis (usually not to exceed 1 year). For extensions valued
less than or equal to the simplified lease acquisition threshold, the
contracting officer must explain the absence of competition in the
contract file.
* * * * *
570.602-1 [Amended]
56. Section 570.602-1 is amended by removing the figure ``$25,000''
and inserting ``$100,000'' in paragraphs (a) and (b).
570.602-2 [Amended]
57. Section 570.602-2 is amended in paragraphs (e)(3) and (g) by
removing the figure ``$25,000'' and inserting ``$100,000.''
58. Subpart 570.7 is revised to read as follows:
Subpart 570.7--Solicitation Provisions and Contract Clauses
Sec.
570.701 FAR provisions and clauses.
570.702 Solicitation provisions.
570.703 Contract clauses.
570.704 Use of provisions and clauses.
570.701 FAR provisions and clauses.
In addition to including solicitation provisions and contract
clauses prescribed in the GSAR (48 CFR chapter 5), provisions and/or
clauses substantially the same as the FAR provisions/clauses listed,
shall be included in the circumstances indicated.
(a) All solicitations and contracts, regardless of the dollar
value, must include the following provisions/clauses:
------------------------------------------------------------------------
FAR part
52 cite Title
------------------------------------------------------------------------
52.204-3.. Taxpayer Identification.
52.233-1.. Disputes.
------------------------------------------------------------------------
(b) All solicitations and contracts which exceed $1,000 must
include the FAR clause at 52.232-23, Assignment of Claims.
(c) All solicitations and contracts which exceed $2,500 must
include the following provisions/clauses:
------------------------------------------------------------------------
FAR part
52 cite Title
------------------------------------------------------------------------
52.219-2.. Small Disadvantaged Business Concern Representation.
52.219-3.. Women-Owned Small Business Representation.
52.222-36. Affirmative Action for Handicapped Workers.
------------------------------------------------------------------------
(d) All solicitations and contracts which exceed $10,000 must
include the following provisions/clauses:
------------------------------------------------------------------------
FAR part
52 cite Title
------------------------------------------------------------------------
52.222-21. Certification of Nonsegregated Facilities.
52.222-22. Previous Contracts and Compliance Reports.
52.222-25. Affirmative Action Compliance.
52.222-26. Equal Opportunity.
52.222-35. Affirmative Action for Special Disabled and Vietnam Era
Veterans.
52.222-37. Employment Reports on Special Disabled Veterans and Veterans
of the Vietnam Era.
------------------------------------------------------------------------
(e) All solicitations and contracts which exceed $25,000 must
include the FAR clause at 52.209-6, Protecting the Government's
Interests when Subcontracting with Contractors Debarred, Suspended, or
Proposed for Debarment.
(f) All solicitations and contracts which exceed $100,000 must
include the following FAR provisions/clauses:
------------------------------------------------------------------------
FAR part
52 cite Title
------------------------------------------------------------------------
52.203-9.. Requirement for Certification of Procurement Integrity--
Modification.
52.203-11. Certificate and Disclosure Regarding Payments to Influence
Certain Federal Transactions.
------------------------------------------------------------------------
(g) All solicitations and contracts for actions which exceed the
simplified lease acquisition threshold must include the following FAR
provisions/clauses:
------------------------------------------------------------------------
FAR part
52 cite Title
------------------------------------------------------------------------
52.203-2.. Certificate of Independent Price Determination.
52.203-7.. Anti-Kickback Procedures.
52.209-5.. Certification Regarding Debarment, Suspension, Proposed
Debarment, and Other Responsibility Matters.
52.215-1.. Examination of Records by Comptroller General.
52.215-12. Restriction on Disclosure and Use of Data (Solicitations
only).
52.219-8.. Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns.
52.219-13. Utilization of Women-Owned Small Businesses.
52.223-5.. Certification Regarding a Drug-Free Workplace.
52.233-2.. Service of Protest (Solicitations only).
------------------------------------------------------------------------
(h) All solicitations and contracts which exceed $500,000 must
include the deviations to the FAR clauses at 52.219-9, Small Business
and Small Disadvantaged Business Subcontracting Plan, and 52.219-16,
Liquidated Damages--Small Business Subcontracting Plan (see 519.708 (a)
and (b)).
(i) Solicitations which exceed $1 million must include the FAR
provision at 52.222-24, Preaward On-site Equal Opportunity Compliance
Review.
(j) When cost or pricing data is required for work or service
exceeding $500,000 the FAR clauses at 52.215-22, Price Reduction for
Defective Cost or Pricing Data, and 52.215-24, Subcontractor Cost or
Pricing Data, must
[[Page 42801]]
be included in solicitations and contracts.
(k) When the contracting officer determines that it is desirable to
authorize the submission of facsimile proposals the solicitation must
include the FAR provision at 52.215-18, Facsimile Proposals.
570.702 Solicitation provisions.
When a solicitation for offers is issued, the contracting officer
should include provisions substantially the same as the following
unless the contracting officer makes a determination that use of one or
more of the provisions is not appropriate:
(a) 552.270-1 Preparation of Offers.
(b) 552.270-2 Explanation to Prospective Offerors.
(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.
(15) 552.270-30 Progressive Occupancy.
(16) 552.270-31 Payment.
(17) 552.270-32 Effect of Acceptance and Occupancy.
(18) 552.270-33 Default by Lessor During the Term.
(19) 552.270-34 Subordination, Nondisturbance and Attornment.
(20) 552.270-35 Statement of Lease.
(21) 552.270-36 Substitution of Tenant Agency.
(22) 552.270-37 No Waiver.
(23) 552.270-38 Integrated Agreement.
(24) 552.270-39 Mutuality of Obligation
(25) 552.270-40 Asbestos and Hazardous Waste Management.
(26) 552.270-41 Acceptance of Space.
(b) The contracting officer shall insert the clause at 552.270-22,
Liquidated Damages, in solicitations and contracts for leasehold
interests in real property when there is a critical requirement that
the delivery date be met and an actual cost cannot be established for
the loss to the Government resulting from late delivery.
570.704 Use of provisions and clauses.
The omission of any provision or clause when its prescription
requires its use constitutes a deviation which must be approved under
subpart 501.4. Approval may be granted to deviate from provisions or
clauses that are mandated by statute (e.g., (GSAR) 48 CFR 552.203-5,
Covenant Against Contingent Fees, FAR 52.215-1, Examination of Records
by the Comptroller General, etc.) in order to modify the language of
the provision or clause, when permitted by the statute. However, the
statutory provisions and clauses may not be omitted from the SFO unless
the statute provides for waiving the requirements of the provision or
clause.
Subpart 570.8--Forms Used for Contracting for Leasehold Interests
in Real Property
59. Section 570.801 is revised to read as follows:
570.801 Standard forms.
Standard Form 2, U.S. Government Lease for Real Property, should be
used to award leases unless GSA Form 3626 is used. When the Standard
Form 2 is used, reference to the Standard Form 2-A in paragraph 7 must
be deleted.
60. Section 570.802 is revised to read as follows:
570.802 GSA forms.
(a) The GSA Form 3626, U.S. Government Lease for Real Property
(Short Form), may be used to award leases when the simplified leasing
procedures in 570.2 are used or when the Contracting Officer finds its
use to be advantageous.
(b) GSA Form 276, Supplemental Lease Agreement, should be used to
amend existing leases that involve the acquisition of additional space
or partial release of space, revisions in the terms of a lease,
restoration settlements, and alterations.
(c) GSA Form 1364, Proposal To Lease Space to the United States of
America, may be used to obtain offers from prospective offerors.
Dated: August 3, 1995.
Ida M. Ustad,
Associate Administrator for Acquisition Policy.
[FR Doc. 95-20369 Filed 8-14-95; 4:03 pm]
BILLING CODE 6820-61-M
