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Digitally signed by John D. Thomas. Effective 08/24/2020.
John D. Thomas
Acting Assistant Commissioner
GSA PBS Office of Leasing
This Leasing Alert issues leasing guidance for implementation of Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232) for the Public Buildings Service (PBS) leasing program. This Leasing Alert replaces LA-20-01, issued on February 21, 2020.
The provision at FAR 52.204-24, updated August 2020, includes the following two representations:
FAR 4.2105(a)(1) requires this updated FAR 52.204-24 provision to be included in all solicitations for contracts. Offerors/lessors are required to complete the representations as outlined in the Instructions and Procedures below.
GSA interprets the first representation, FAR 52.204-24(d)(1), to not apply to ancillary services provided as part of the contract. For leases, the offeror may be able to answer on the representation form that it is not providing such covered equipment, unless the Lease specifically requires that the lessor provide equipment, systems, or services that contain telecommunications equipment or services. As an example, this (d)(1) representation would not apply to a lessor’s pre-existing general building security system, unless providing general building security equipment or services to the Government is specifically required by the Lease. Unless specifically required to be provided to the Government by the Lease, these are considered “ancillary” and are not being provided to the Government as requirements under the lease contract. However, the (d)(1) representation would apply to items such as security cameras specifically outlined as a requirement in the lease and to be installed by the Lessor. Note that this narrower interpretation for the first, (d)(1), representation does not apply to the second, (d)(2), representation with respect to “use.”
The term “Offeror” will continue to refer to only the entity that would execute the lease contract, and not any affiliates, subsidiaries, or parent companies of the entity.
1“Covered telecommunications equipment or services” as defined under FAR 52.204-25, means —
This Leasing Alert is effective as of August 13, 2020 unless modified, canceled, or reissued.
This Leasing Alert and its attachments are mandatory and apply to all GSA real property leasing activities and activities delegated by GSA to other Federal agencies.
Leasing Alert LA-20-01.
Guidance concerning implementation of Sections 889(a)(1)(A) and 889(a)(1)(B) of the NDAA are as follows:
a. Acquisition Planning: As outlined in Acquisition Letter MV-20-10, LCOs or their designees should take appropriate steps to include consideration of 889 prohibitions as early as possible in the lease procurement process. This includes:
b. For lease projects, where GSA has not issued an RLP as of the effective date of this Leasing Alert, the LCO must include the following two (2) documents in the RLP/Lease package:
SAM currently includes an online representation (FAR 52.204-26) that, for now, only addresses the first representation (Part A) at the entity level. SAM is expected to be updated in the future to reflect the second representation (Part B). If an offeror responds “does not” to the SAM online representation (Part A), the offeror does not need to complete the first, (d)(1), of the two representations under 52.204-24. If an offeror responds “does” to this representation or has not made any representation in FAR 52.204–26, then the offeror must complete (d)(1) of the 52.204-24 representation. Until the second (Part B) representation is added to the SAM online representations and certification, the offeror must always complete the second, (d)(2), representation under FAR 52.204-24. Once the Part B representation is added to the SAM online representation 52.204-26, the offeror will not need to complete either of the representations under FAR 52.204-24 if they respond “does not” to both of the Part A and Part B representations in SAM.
Note that the offeror’s FAR representation 52.204-24, if completed as outlined above, must be in the lease file. The offeror’s representation under FAR 52.204-26, similar to the offeror’s other online representations and certifications in SAM, must be downloaded for inclusion in the lease file. Do not attach either the FAR 52.204-24 representation or the SAM online representations to the lease contract itself as these are incorporated by reference via FAR clause 52.204-19 (General Clauses).
The General Clauses containing the updated FAR Clause 52.204-25 must be included in the signed lease contract.
c. For lease projects, where GSA has issued the RLP, but has not issued a request for Final Proposal Revisions (FPR) as of the effective date of this Leasing Alert, the LCO must issue an RLP amendment transmitting both the revised representation FAR provision at 52.204-24 dated August 2020 (Attachment 1) and the revised General Clauses dated August 2020 which includes the updated FAR clause 52.204-25 (Attachments 3 or 4).
All offerors must acknowledge receipt of the RLP amendment, by signing it and returning it, along with both attachments. Offerors must complete and sign the FAR 52.204-24 “Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment” as applicable (see sub-paragraph 6.b above). Include the updated General Clauses in the lease contract. Do not include the FAR representation 52.204- 24 or the SAM online representations and certifications in the lease contract; however, these representations must be kept as part of the lease file documentation.
d. For lease projects, where GSA has issued the RLP, but Final Proposal Revisions (FPR) were due prior to August 13, 2020, the LCO is not required to amend the RLP and reopen negotiations. However, the LCO must transmit the following to the apparent successful offeror:
The apparent successful offeror must acknowledge receipt of the revised General Clauses by initialing and returning it. In addition, the apparent successful offeror must complete and sign FAR representation 52.204-24 (Attachment 1). The General Clauses containing the updated FAR Clause 52.204-25 (Attachments 3 or 4) must be included in the signed lease contract. The completed FAR representation 52.204-24 and the SAM online representations and certifications must be in the lease file but do not need to be included in the signed lease.
e. For offers received through the Automated Advanced Acquisition Program (AAAP) procurements, LCOs must implement the above procedure in 6.d. as part of the due diligence phase. Starting in FY 21, both the updated General Clauses and the FAR 52.204-24 Representation will be incorporated into the FY21 AAAP RLP package.
f. Lease extension or renewal actions. Prior to executing an extension or exercising an option, the LCO must modify the lease to include FAR Clause 52.204-25 (AUG 2020),
either added separately (Attachment 2) or by adding the updated General Clauses (Attachments 3 or 4). For renewal options, it is very important to provide a sufficient amount of time to both provide notice for exercising a renewal option and to provide lessors with adequate time to comply with the clause. At least one year prior to the renewal notification date is recommended.
g. Steps for an affirmative response (i.e., offeror provides or uses prohibited equipment)
If the apparent successful offeror responds affirmatively under either of the two representations under FAR 52.204-24 that “it will provide covered telecommunications equipment or services”, or “it does use covered telecommunications equipment or services or use any equipment, system, or service that uses covered telecommunications equipment or services”, then LCOs should follow the steps outlined under 5.c of Acquisition Letter MV-20- 10 (Attachment 8). This includes determining whether a waiver issued by either GSA or the Office of the Director of National Intelligence (ODNI) already exists. For additional guidance, please refer to the FAQs posted on GSA’s Acquisition Portal at http://insite.gsa.gov/scrm.
If, after following all the steps outlined under 5.c of Acquisition Letter MV-20- 10, the LCO determines that awarding to the successful offeror would result in a violation, then the LCO should determine that the offeror is ineligible for award and proceed to the next offeror. Repeat until an eligible offeror is identified. If no eligible offerors remain, then consider steps to increase the competitive pool (e.g., changing requirements, expanding the delineated area, etc.).
For affirmative responses involving an existing lease contract (i.e., extension or renewal), see steps under 5.e of the Acquisition Letter. For additional guidance, please refer to the FAQs posted on the Acquisition Portal at http://insite.gsa.gov/scrm.
Only as a last resort should the LCO consider pursuing a waiver.
h. GSA Agency Waivers
LCOs should only seek a waiver when there are no other means to make an award or execute an extension/renewal in time to avoid mission failure.
The waiver process is outlined under 5(f) of MV-20-10. For additional guidance, please refer to the FAQs posted on the Acquisition Portal at http://insite.gsa.gov/scrm. For leasing, whose product service codes (PSCs) are designated by the ODNI as “low risk” acquisitions, the process includes the following steps:
i. If the offeror/lessor decides not to proceed with the waiver process, the LCO should attempt to identify other acquisition strategies, which could include changing the requirement or cancelling the RLP.
i. Whether there is a compelling justification for a waiver. For real property leases, the signed occupancy agreement for leases below prospectus and the signed congressional committee resolution for agreements above prospectus, may serve as the compelling justification.
ii. Whether the offeror’s/lessor’s supply chain laydown and phase-out plan are sufficient (See (5)(f)(iii)(4)(b) of Acquisition Letter MV-20- 10 for examples).
i. GSA Agency Waivers for FEMA Disaster Leasing
For emergency lease acquisitions under the Stafford Act (i.e., FEMA disaster leases), waivers may be issued by the Administrator (or designee) on a class basis and may be communicated by the Senior Procurement Executive (SPE).
Once an agency class waiver has been granted, the LCO may proceed with award and:
For emergency acquisitions under the Stafford Act, the declaration of major disaster shall constitute the compelling justification.
The LCO shall notify ODNI and the FASC of the waiver issued under emergency conditions concurrently with the notification to Congress.
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