General Services Administration Acquisition Regulation; SAM Representation for Leases

GENERAL SERVICES ADMINISTRATION <CFR>48 CFR Parts 552 and 570</CFR> <DEPDOC>[GSAR Case 2020-G512; Docket No. 2024-0010; Sequence No. 1]</DEPDOC> <RIN>RIN 3090-AK22</RIN> <SUBJECT>General Services Administration Acquisition Regulation; SAM Representation for Leases</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Acquisition Policy, General Services Administration (GSA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments in response to GSAR Case 2020-G512 to <E T="03">https://www.regulations.gov</E> 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 <E T="03">https://www.regulations.gov,</E> call or email the points of contact in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this document for alternate instructions. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov,</E> including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check <E T="03">https://www.regulations.gov,</E> approximately two-to-three days after submission to verify posting. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For clarification of content, contact Ms. Michaela Mastroianni, Procurement Analyst, or Ms. Amy Lara, Procurement Analyst, at <E T="03">gsarpolicy@gsa.gov</E> or 816-926-7172. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at <E T="03">GSARegSec@gsa.gov</E> or 202-501-4755. Please cite GSAR Case 2020-G512. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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. <HD SOURCE="HD1">II. Discussion and Analysis</HD> 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 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. <HD SOURCE="HD1">III. Expected Impact of the Rule</HD> 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. <HD SOURCE="HD1">IV. Executive Orders 12866, 13563 and 14904</HD> 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 ( <E T="03">Modernizing Regulatory Review</E> ) 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. <HD SOURCE="HD1">V. Regulatory Flexibility Act</HD> 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, <E T="03">et seq.</E> 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: <EXTRACT> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 17k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━