General Services Administration Acquisition Regulation; SAM Representation for Leases
| Published date | 27 March 2024 |
| Record Number | 2024-06442 |
| Citation | 89 FR 21230 |
| Court | General Services Administration |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 60 (Wednesday, March 27, 2024)
[Federal Register Volume 89, Number 60 (Wednesday, March 27, 2024)]
[Proposed Rules]
[Pages 21230-21232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06442]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 552 and 570
[GSAR Case 2020-G512; Docket No. 2024-0010; Sequence No. 1]
RIN 3090-AK22
General Services Administration Acquisition Regulation; SAM
Representation for Leases
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
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SUMMARY: GSA is proposing to amend the General Services Administration
Acquisition Regulation (GSAR) to remove the requirement for lease
offerors to have an active System for Award Management (SAM)
registration when submitting offers and instead allow offers up until
the time of award to obtain an active SAM registration.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
May 28, 2024 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to GSAR Case 2020-G512 to
https://www.regulations.gov via the Federal eRulemaking portal by
searching for ``GSAR Case 2020-G512''. Select the link ``Comment Now''
that corresponds with GSAR Case 2020-G512. Follow the instructions
provided at the ``Comment Now'' screen. Please include your name,
company name (if any), and ``GSAR Case 2020-G512'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite GSAR Case 2020-
G512, in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Michaela Mastroianni, Procurement Analyst, or Ms. Amy Lara,
Procurement Analyst, at [email protected] or 816-926-7172. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at [email protected] or 202-501-4755. Please
cite GSAR Case 2020-G512.
SUPPLEMENTARY INFORMATION:
I. Background
GSA is proposing to amend the General Services Administration
Acquisition Regulation (GSAR) to create a SAM registration provision
specific for the acquisitions of leasehold interests in real property.
This proposed provision was prompted by the implementation of FAR Case
2015-005 (see 83 FR 48691), which clarified the timing of registration
in the System for Award Management (SAM). Effective October 2018, this
FAR case implemented the requirement for an offeror to be registered in
SAM prior to the submission of an offer as opposed to the offerer being
registered prior to award as was previously followed before the FAR
change. While leasing of real property is not subject to the FAR, GSA
prescribed FAR clause 52.204-7 in solicitations for the lease of real
property. It found this FAR amendment had a significant effect on
prospective GSA lessors.
On February 12, 2020, GSA issued a deviation to the updated FAR
clause to permit the completion of SAM representation for leases prior
to award instead of prior to offer for leasing companies. GSA would
therefore only require the apparent awardee to complete the SAM
registration. This proposed change would codify this provision in the
GSAR.
II. Discussion and Analysis
Upon the implementation of FAR Case 2015-005, GSA found the change
problematic for the use in real property leases. Due to the nature of
real property leases, this change created a negative impact on
competition. It is common practice in real estate transactions for an
offeror to form a separate entity (LLCs) for each building under their
control. Therefore, owners with multiple buildings in their portfolio
may have to create a separate SAM registration for every building they
wish to submit for the Government's consideration. This becomes
burdensome for property owners and becomes a deterrent for property
owners to submit offers to the Government. Additionally, this could
disqualify an offeror from competition solely based on the lack of SAM
registration. This decreases competition and does not promote maximum
competition to realize the best value or cost savings to the
Government.
While the representation is important for FAR based acquisition,
the leasing of real property is not based on the FAR. The protections
that SAM registration representations provide to the
[[Page 21231]]
Government will still be assured by requiring this SAM representation
prior to award but in a way more tailored to the lessor community.
This proposed provision will have a positive effect on the
Government and the lessor community as it decreases the burden
ultimately leading to increased competition whilst still ensuring SAM
registration. Therefore, this rule proposes to use GSAR 552.270-35 in
lieu of FAR 52.204-7.
III. Expected Impact of the Rule
This rule is not expected to have a significant impact to
Government or industry. This rule will reduce the burden on leasing
companies by allowing offerors to complete SAM representation for
leases prior to award instead of prior to offer. Completing SAM
representations prior to offer for each property is time consuming for
a leasing company and burdensome to effective competition. This will
streamline the process and encourage competition, which will benefit
the Government.
IV. Executive Orders 12866, 13563 and 14904
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms
the principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563. OIRA has
determined this rule not to be a significant regulatory action and,
therefore, is not subject to review under section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated September 30, 1993.
V. Regulatory Flexibility Act
GSA does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S. 601, et seq. because
it reduces the burden on small business entities by allowing offerors
to complete SAM representation for leases prior to award instead of
prior to offer and does not implement new or changed requirements.
However, an Initial Regulatory Flexibility Analysis (IRFA) has been
prepared consistent with 5 U.S.C. 603.
The Regulatory Secretariat will submit a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat Division. GSA invites
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
GSA will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (GSAR Case 2020-G512) in
correspondence.
The analysis is summarized as follows:
The General Services Administration (GSA) is proposing to amend
the General Services Administration Acquisition Regulation (GSAR) to
permit the completion of the System for Award Management (SAM)
representations at award instead of at offer for lease procurements.
GSAR coverage does not currently include internal policy and
guidance issued in other forms such as Procurement Instructional
Bulletins (PIBs). This internal guidance has never been fully vetted
to the regulatory level for analysis. This rule proposes to
incorporate existing policy and guidance regarding SAM registration
for leases into the GSAR.
The objective of the proposed rule is to amend the GSAR to amend
Part 552, Solicitation Provisions and Contract Clauses, of the GSAR
by creating Subsection 552.270-35, System for Award Management--
Leasing.
Currently, each business entity submitting a bid must complete
all SAM representations prior to submitting its offer. It is common
practice for leasing companies to register each individual property
within its portfolio as a separate legal entity. Under the current
SAM representation process, a leasing company will have to make
separate SAM representations prior to offer for each property within
its portfolio as each property is considered a separate entity.
Completing SAM representations prior to offer for each property
is time consuming for a leasing company and burdensome to effective
competition. To streamline the process and encourage competition,
GSA is proposing to permit the completion of SAM representation for
leases prior to award instead of prior to offer for leasing
companies.
Title 40 of the United States Code (U.S.C.) Section 121
authorizes GSA to issue regulations, including the GSAR, to control
the relationship between GSA and contractors.
GSA has approximately 8,000 leases in total. Approximately 70
percent of leasing entities were small entities. This information is
based on internal inventory data sources.
GSA does not expect this rule to have a significant economic
impact on a substantial number of small business entities within the
meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601. This
rule reduces the burden on small business entities by allowing
offerors to complete SAM representation for leases prior to award
instead of prior to offer, and does not implement new or changed
requirements.
The rule involves reporting and recordkeeping that are currently
covered under OMB Control Number 9000-0159, System for Award
Management Registration (SAM). This rule does not include any new
reporting, recordkeeping, or other compliance requirements for small
business entities.
This rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no known alternatives to this rule which would
accomplish the stated objectives. This rule does not initiate or
impose any new administrative or performance requirements on small
business contractors.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however, these changes to the GSAR do not impose additional information
collection requirements to the paperwork burden previously approved
under the Office of Management and Budget Control Number 9000-0159,
System for Award Management Registration (SAM).
List of Subjects in 48 CFR Parts 552 and 570
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA proposes to amend 48 CFR parts 552 and 570 as set
forth below:
0
1. The authority citation for 48 CFR parts 552 and 570 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
2. Add section 552.270-35 to read as follows:
552.270-35 System for Award Management--Leasing.
As prescribed in 570.702, insert the following provision:
System for Award Management--Leasing (DATE)
In lieu of FAR provision 52.204-7 use the following:
(a) Definitions. As used in this provision--
[[Page 21232]]
``Electronic Funds Transfer (EFT) indicator'' means a four-
character suffix to the unique entity identifier. The suffix is
assigned at the discretion of the commercial, nonprofit, or
Government entity to establish additional System for Award
Management records for identifying alternative EFT accounts (see
subpart 32.11) for the same entity.
``Registered in the System for Award Management (SAM)'' means
that--
(1) The Offeror has entered all mandatory information, including
the unique entity identifier and the EFT indicator, if applicable,
the Commercial and Government Entity (CAGE) code, as well as data
required by the Federal Funding Accountability and Transparency Act
of 2006 (see subpart 4.14) into SAM;
(2) The offeror has completed the Core, Assertions,
Representations and Certifications, and Points of Contact sections
of the registration in SAM;
(3) The Government has validated all mandatory data fields, to
include validation of the Taxpayer Identification Number (TIN) with
the Internal Revenue Service (IRS). The offeror will be required to
provide consent for TIN validation to the Government as a part of
the SAM registration process; and
(4) The Government has marked the record ``Active''.
``Unique entity identifier'' means a number or other identifier
used to identify a specific commercial, nonprofit, or Government
entity. See www.sam.gov for the designated entity for establishing
unique entity identifiers.
(b)(1) An Offeror is required to be registered in SAM prior to
award, and shall continue to be registered during performance, and
through final payment of any contract, basic agreement, basic
ordering agreement, or blanket purchasing agreement resulting from
this solicitation.
(2) The Offeror shall enter, in the block with its name and
address on the cover page of its offer, the annotation ``Unique
Entity Identifier'' followed by the unique entity identifier that
identifies the Offeror's name and address exactly as stated in the
offer. The Offeror also shall enter its EFT indicator, if
applicable. The unique entity identifier will be used by the
Contracting Officer to verify that the Offeror is registered in the
SAM.
(c) If the Offeror does not have a unique entity identifier, it
should contact the entity designated at www.sam.gov for
establishment of the unique entity identifier directly to obtain
one. The Offeror should be prepared to provide the following
information:
(1) Company legal business name.
(2) Tradestyle, doing business, or other name by which the
entity is commonly recognized.
(3) Company physical street address, city, state, and Zip Code.
(4) Company mailing address, city, state and Zip Code (if
separate from physical).
(5) Company telephone number.
(6) Date the company was started.
(7) Number of employees at your location.
(8) Chief executive officer/key manager.
(9) Line of business (industry).
(10) Company headquarters name and address (reporting
relationship within the entity).
(d) If the Offeror does not become registered in the SAM
database in the time prescribed by the Contracting Officer, the
Contracting Officer will proceed to award to the next otherwise
successful registered Offeror.
(e) Processing time should be taken into consideration when
registering. Offerors who are not registered in SAM should consider
applying for registration immediately upon receipt of the
solicitation. See https://www.sam.gov for information on
registration.
[(End of provision)]
PART 570--ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY
570.701 [Amended]
0
3. In section 570.701 amend the table by removing from paragraph (a),
in the second column, the entry ``52.204-7 System for Award
Management.''
0
4. Amend section 570.702 by adding in numerical order the entry for
``552.270-35'' to read as follows:
570.702 GSAR solicitation provisions.
* * * * *
552.270-35--System for Award Management--Leasing
[FR Doc. 2024-06442 Filed 3-26-24; 8:45 am]
BILLING CODE 6820-61-P
