Federal Leasing Year in Review Robert C. MacKichan, Jr Gordon Griffin December 5, 2016 Nothing in this presentation should be construed as legal advice.

Agenda Changes to GSA Leases Court Decisions From the Trenches Lease Acquisition Circulars and Leasing Alerts Court Decisions Kingdomware Springfield Parcel From the Trenches Offsets & Appeals NEPA Compliance

GSA Leasing LAC 2015-01: Revisions to Leasing Forms & Templates 3518-SAM Effective Date & Applicability LAC 2015-06: Global RLP’s Shift back to a single form with a “menu” of provisions What’s coming: Online Offeror Portal and a "clause builder“ Leasing Alert 8/30/2016 Novation Changes New Chapter 17 to the Leasing Desk Guide

Kingdomware Technologies, Inc. v. United States Background GAO decides . . . And decides . . . And decides “Although our Office is not bound by the court's decisions, its decision in Kingdomware, together with the VA's position on the meaning of this statute, effectively means that protesters who continue to pursue these arguments will be unable to obtain meaningful relief. Consequently, under these circumstances, we will no longer consider protests based only on the argument that the VA must consider setting aside procurements for SDVOSBs (or VOSBs) before conducting an unrestricted procurement under the FSS. Kingdomware Techs.-Reconsideration, B-407232.2 (Dec. 13, 2012). This is Rare. One instance in 2015, with 2500 protests filed and 600 decisions issued.

Kingdomware Technologies, Inc. v. United States The Court of Federal Claims Rules in Favor of VA The Federal Circuit (on a 2-1 vote) Affirmed The Supreme Court rejected the VA's position and reversed the lower courts, finding: The Rule of Two is mandatory for the VA even where the Government meets its veteran contracting goals. FSS orders are "contracts" within meaning of 38 USC §8127(d); the VA-specific Rule of Two applies to VA FSS orders

Kingdomware: Why do I care? You might not… VA Statute vs. Small Business Act & SBA Regulations Applicability of the FAR to GSAM But then again… Solicitation Number: VA101-15-R-0162 Notice Type: Sources Sought Synopsis: The Department of Veterans Affairs (VA), Office of Construction and Facilities Management, Office of Real Property (ORP), Washington, DC, is conducting market research/seeking capable sources from bondable and experienced firms that are classified and registered in www.vip.vetbiz.gov as either Service-Disabled Veteran-Owned Small Businesses (SDVOSB) or Veteran-Owned Small Businesses (VOSB) that are interested in a forecasted lease project for a Community Base Outpatient Clinic located in San Diego, California, of 99,986 net usable square feet (nusf)

Springfield Parcel C, LLC v. United States Background / TSA Consolidation 625,000 RSF Consolidation of TSA offices Protest at GAO, an anonymous tip, and a subsequent protest at the Court of Federal Claims Lease Prospectus Issues “Prospectus Level” Lease under 40 U.S.C. §3307 (valued over $2.85 million) “The court has determined that pursuant to Subsection 3307(a), the committee resolutions created binding conditions upon the availability of appropriations. Appropriations for TSA headquarters were accordingly available only for a lease of up to 625,000 square feet because that was the limit included in the resolutions adopted by the relevant congressional committees.” “In this instance, GSA's violation of Subsection 3307(a) means that no appropriation was available for the lease for TSA headquarters. Without an appropriation, GSA's lease with Eisenhower is void ab initio.”

Springfield Parcel C, LLC v. United States Injunctive Relief: GSA now argues that its decision cannot be undone. If the court were to accept this argument, it would mean that GSA could immunize itself from post- award injunctive relief by signing flawed contracts and then claiming in court that the awards cannot be vacated. It would be inequitable to permit the government "to preserve its ill-gotten gain" in such a manner.... [I]f the government is correct, then all of GSA's leases are immune from post- award injunctive relief. This cannot be correct. Congress could not have intended in enacting the Competition in Contracting Act, 31 U.S.C. §§3301, 3304, 3551-3556, and the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, §12, 110 Stat. 3870, 3874 (Oct. 19, 1996) (codified in relevant part at 28 U.S.C. §1491(b)(1)), to grant GSA such sweeping immunity.

From the Trenches – Lease Administration in 2016 Offsets IPERA / IPERIA – Contract Auditors Palafox St. Associates, L.P. v. United States, 114 Fed. Cl. 773 (2014) “Because the contracting officer found Palafox liable for paying taxes that “were consistently less than what [was] negotiated and executed in the lease” and assessed damages in the amount of $824,416.01 . . . the court also finds that the contracting officer's April 9, 2012 decision was a final decision that determined both liability and damages. . . .The court therefore concludes that the CBCA had jurisdiction over plaintiff's appeal.” National Environmental Policy Act (“NEPA”) / E.O. 13693 Requirements for Federal Agencies, which in turn the agencies flow down to contractors / lessors Section 102(2)(c) of NEPA requires agencies to prepare a detailed statement of the significant impacts any major Federal action has on the quality of the human environment. (From the GSA NEPA Desk Guide) New Construction v. Existing Buildings

Contact Information / Follow on Questions Bob MacKichan robert.mackichan@hklaw.com 202.862.5962 Gordon Griffin gordon.griffin@hklaw.com 202.469.5122