NASA Procedural Requirements

NPR 8800.15F Effective Date: October 08, 2024 Expiration Date: October 08, 2029

Subject: Real Estate Management Program

Responsible Office: Office of Strategic Infrastructure

Chapter 6. NASA Real Estate Agreements

6.1 Overview

6.1.1 Chapter 6 of this NPR describes the policies and procedures by which NASA may enter into real estate agreements. For the purposes of this NPR, a real estate agreement is defined in Appendix A.

6.1.2 Real Estate Agreement Categories

NASA real estate agreements fall into two main categories: in-grants and out-grants.

6.1.2.1 A NASA in-grant is required in the event that NASA has the need to use, occupy, or access (generally with personnel, facilities, or equipment) dedicated real property or a portion thereof that is owned by a non-NASA entity, for a specific duration. An in-grant is a non-permanent transfer of real property rights to NASA by means of lease, easement, permit, license, or ROW. Requirements specific to in-grants are detailed in Section 6.6 of this NPR.

6.1.2.2 A NASA out-grant is required when a non-NASA entity is given the right to dedicated use, or occupancy (generally with personnel, facilities, or equipment),or is seeking to make improvements or modifications to, NASA-controlled real property or a portion thereof, for a specific duration. An out-grant is any non-permanent transfer of real property rights to a non-NASA entity by means of lease, easement, ROW, permit, license, or concessionaire agreement. Requirements specific to out-grants are detailed in Section 6.7 of this NPR.

6.1.3 Real Estate Agreement Coordination

6.1.3.1 The RPAO and RECO shall coordinate all real estate agreements with the Center POC and appropriate Agency level stakeholders to ensure compliance with Federal laws and requirements.

6.1.3.2 The Center POC shall coordinate with Center stakeholders and organizations to ensure alignment with Center mission and vision.

6.1.4 Real Estate Agreement Functional Review

Annually, the RECO Certification Committee shall conduct a sample review of real estate agreements executed in that period in accordance with Section 6.2.2.4 of this NPR.

6.1.5 International Real Estate Agreements

The Director, FRED, or delegate shall coordinate and approve real property matters involving international locations with OGC and, through them, with OIIR. NASA Headquarters will coordinate with the DOJ and the U.S. Department of State, as required.

6.2 Real Estate Contracting Officer Program

6.2.1 Overview

6.2.1.1 This section prescribes and implements the RECO Program, which includes management authorities and procedures for obtaining a real estate warrant at the various levels for acquisition (in-grants), and management and utilization of interests (out-grants) in real property by a Certificate of Appointment.

6.2.1.2 The RECO Program is designed to certify the NASA civil servant employees who are charged with performing real estate activities with the authority to execute real estate agreements on behalf of the Agency. This NPR provides procedural guidance and references for real estate warrant actions for compliance and coherent processes in support of the NASA mission.

6.2.1.3 A RECO is a NASA civil servant employee serving in an Office of Personnel Management 1170 Realty Specialist Series, assigned or detailed to the REB, appointed by the RECO Program AO, with delegated authority to execute certain real estate actions and granted warrant responsibility for the development, execution, modification, and termination of real estate agreements in accordance with Federal and NASA real property laws and regulations. The RECO has primary responsibility for the oversight of the entire real estate agreement process within the limits of his or her warrant.

6.2.1.4 In addition to this NPR, NASA has developed the RECO Program Handbook, which further describes the requirements, roles, and responsibilities of the RECO Program.

6.2.2 Program Goals and Requirements

6.2.2.1 The fundamental goal of the RECO Program is to ensure that NASA’s real estate agreements are executed under the proper authorities and are compliant with Federal law and Agency policies and procedures.

6.2.2.2 The RECO warrant defines the extent of authority vested in an individual to:

a. Approve the development of real estate actions such as business cases, advertisements, and solicitations.

b. Modify existing real estate agreements.

c. Terminate interests in real property.

d. Execute Real Estate Agreements.

e. Concur on the obligation of funds and the contractual commitment of NASA.

6.2.2.3 NASA has established four RECO warrant levels detailed in Appendix C, which describes the limitations of the authority, recommended experience for, and the training requirements for each of the levels. A general description of the warrant levels and related personnel can be found in Table 6-1.

Table 6-1 RECO Warrant Levels and Related Positions

a. The Director, FRED shall hold a Level V warrant and serve as the RECO Program AO with authority to issue and withdraw RECO warrants.

b. The Chief, REB and the Deputy Chief, REB shall hold and maintain a Level IV warrant.

c. All other warranted RECOs will be selected based on position and only if the employee meets the requisite series, experience, and training requirements for that level.

6.2.2.4 The RECO Certification Committee shall conduct annual functional reviews of real estate agreements to ensure compliance with Federal laws and regulations and NASA policies and procedures. These reviews will be conducted for activity at each Center by sampling agreements executed in that period to include all real estate agreement types.

6.3 Real Estate Authority and Code of Federal Regulations

6.3.1 Agency Authority

NASA’s independent authority for real estate activities derives from U.S.C. Title 51, National and Commercial Space Programs and is further defined in this chapter. In addition, NASA has access to other Federal authorities as further defined in Sections 6.6.1 and 6.7.1 of this NPR.

6.3.2 Delegation of Authority

14 CFR pt. 1204 subpt. 5, Delegations and Designations, establishes various delegations of authority from the Administrator to, and designations of, NASA officials and other Government officials acting on behalf of NASA to carry out prescribed functions of NASA. These functions include real estate and related matters.

6.3.2.1 14 CFR § 1204.501, Delegation of authority - to take actions in real estate and related matters, establishes the authority and delegations for acquisitions, disposals, and policy development to the Assistant Administrator, OSI, and the Director, FRED.

6.3.2.2 14 CFR § 1204.503, Delegation of authority to grant easements, delegates authority to NASA officials to take actions in connection with the granting of easements and establishes the requirements and restrictions for redelegation.

6.3.2.3 14 CFR § 1204.504, Delegation of authority to grant leaseholds, permits, and licenses in real property, redelegates authority to NASA officials to take actions in relation to the granting of leaseholds, permits, and licenses and establishes the requirements and restrictions for redelegation.

6.4 Federal Real Estate Agreement Compliance Considerations

6.4.1 Environmental and Cultural Resources Management

Real estate agreements are coordinated with the Center EMO and CRM as early as possible to ensure that environmental requirements and liabilities are addressed in accordance with Section 1.5, Environmental Compliance in Real Estate Transactions.

6.4.2 OMB Circular A-11

6.4.2.1 OMB Circular A-11, Preparation, Submission, and Execution of the Budget, Appendix B, Budgetary Treatment of Lease-Purchases and Leases of Capital Assets, establishes scoring guidelines for budgetary treatment of real estate arrangements. NASA is required to submit to OMB all real property arrangements that meet the requirements in the guidelines.

6.4.2.2 NASA is required to analyze each real estate agreement to determine the applicability of OMB Circular A-11.

6.4.2.3 The RPAO and/or RECO coordinates with OCFO to score real estate arrangements in accordance with OMB Circular A-11 guidelines.

6.4.2.4 OMB Circular A-11 requirements do not apply to agreements between Federal agencies, UESCs, or ESPCs.

6.4.3 Competition Requirements

6.4.3.1 In-grants

Competition in Contracting Act (CICA) of 1984, 41 U.S.C. § 253 et seq., directs executive agencies to use full and open competitive procedures to procure property. In accordance with CICA, full and open competition is required for in-grant leases.

6.4.3.2 Out-grants

E.O. 13327, Federal Real Property Asset Management, requires Federal agencies to promote the efficient and economical use of Federal real property resources in accordance with their value as national assets and in the best interest of the Nation. To meet this requirement for out-grants, a fair and open competition is conducted in accordance with Section 6.7.4.

6.4.3.3 For waivers from competition requirements for in-grants, see Section 6.6 and for out-grants, see Section 6.7.

6.4.4 Real Estate Agreement Compliance with Federal Laws and Executive Orders

6.4.4.1 Placement of Real Estate

Various Federal laws and E.O.s have been established to provide requirements and guidance to Federal agencies regarding the placement of real property. At a minimum, the following laws and E.O.s relate to real estate agreements:

a. RDA of 1972, 7 U.S.C. § 2204b-1, requires Federal agencies to give priority to rural areas in locating facilities.

b. The Public Buildings Cooperative Use Act of 1976, 40 U.S.C. § 3306, directs Federal agencies to acquire and use space in suitable buildings of historical, architectural, or cultural significance where feasible and prudent; encourages the location of commercial, cultural, educational, and recreational activities in public buildings; and encourages the public use of public buildings for cultural, recreational, and educational activities.

c. Wildland-Urban Interface Federal Risk Mitigation, E.O. 13728, 81 FR 32223 (May 18, 2016), directs Federal agencies to enhance the wildfire resilience of Federal buildings constructed on Federal land. Buildings need to meet certain building codes to reduce the loss of property to wildfire when altering existing structures or leasing space in buildings greater than 5,000 gross square feet (GSF) that are located on Federal property within a wildland-urban interface in an area of greater than moderate wildfire risk.

d. Federal Space Management, E.O. 12072, 43 FR 36869 (August 16, 1978), requires Federal agencies to give first consideration to locating Federal facilities in central business districts within urban areas.

e. Floodplain Management, E.O. 11988, 42 FR 26951 (May 24, 1977) as amended by Federal Emergency Management, E.O. 12148, 44 FR 43239, (July 20, 1979) precludes Federal agencies from leasing space in buildings located within floodplains unless there are no practicable alternatives.

f. Protection of Wetlands, E.O. 11990, 42 FR 26961 (May 24, 1977) as amended by Elimination of Unnecessary Executive Orders and Technical Amendments to Others, E.O. 12608, 52 FR 34617 (September 9, 1987) precludes Federal agencies from leasing space in wetland areas unless there are no practicable alternatives.

g. Establishing a Federal Flood Risk Management Standard and Process for Further Soliciting and Considering Stakeholder Input, E.O. 13690, 80 FR 6425(January 30, 2015) updates the processes used for evaluating the impacts of Federal actions in or affecting floodplains to implement E.O. 11988.

6.4.4.2 In addition to the placement of real estate, several laws and E.O.s provide guidance and requirements related to sustainability, safety, and security for Federal real property. At a minimum, the following laws and E.O.s relate to real estate agreements:

a. The Design and Construction of Public Buildings to Accommodate Physically Handicapped, 42 U.S.C. § 4151–4152, implementing regulations at 24 CFR pt. 41 establish standards for the design, construction, and alteration of buildings to insure whenever possible that physically handicapped persons will have ready access to, and use of, such buildings. When acquiring leased space, ensure the space acquired meets the GSA standards. In some cases, this may limit the buildings or facilities available to lease.

b. The Fire Safety Systems in Federally Assisted Buildings, 15 U.S.C. § 2227, requires that an entire building have sprinklers or provide an equivalent level of life safety when Federal funds are used to lease 35,000 GSF or more of space in a building (under one or more leases) and some portion of the leased space is on or above the sixth floor. This Act also requires that all hazardous areas have sprinklers in all Government leases.

c. The Seismic Standards, 42 U.S.C. § 7705b, establishes standards for assessing the seismic safety of existing buildings constructed for or leased by the Government in previously designed and constructed facilities without adequate seismic design and construction standards.

d. The Secure Federal Leases from Espionage and Suspicious Entanglements Act, or the Secure LEASEs Act, 40 U.S.C. § 585, establishes the following disclosure requirements for foreign involvement in Federal leases:

(1) The Federal lessee requires the covered entity to identify and disclose whether the immediate or highest-level owner of the leased space, including an entity involved in the financing thereof, is a foreign person or a foreign entity, including the country associated with the ownership entity.

(2) If disclosure of a foreign person or entity is made, the Federal lessee notifies the Federal tenant of the building or other improvement that will be used for high-security space in writing and consults with the Federal tenant regarding security concerns and necessary mitigation measures, if any, prior to award of the lease or approval of the novation agreement.

(3) This disclosure and consultation with the Federal tenant are completed when submitting a proposal in response to a solicitation for offers and is updated annually from the date of occupancy.

e. Interagency Security Committee, E.O. 12977, 60 FR 54411(October 19, 1995) as amended by Amendment of E.O.s and Other Actions in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security, E.O. 13286, 68 FR 10619 (February 23, 2003) establishes policy for security in and protection of Federal facilities.

f. The U.S. Department of Homeland Security implementing regulation (i.e., The Risk Management Process for Federal Facilities: An Interagency Security Committee Standard)¹⁵ establishes minimum standards for protection of Federal personnel and facilities and establishes minimum construction standards for the acquisition and occupancy of facilities (e.g., blast protection, setbacks).

g. Establishing Federal Earthquake Risk Management Standard, E.O. 13717, 81 FR 6407 (February 2, 2016) establishes requirements for earthquake safety of new Federal buildings, improvements to existing Federal buildings, and Federally leased, financed, or regulated buildings.

h. Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, E. O. 14057, 86 FR 70935(May 20, 2021), establishes green leasing requirements for in-grant lease spaces of 25,000 or more GSF where the Federal government leases at least 75% of the total building square footage. New leases that meet the above requirements and are entered into after September 30, 2030, are required to be net-zero emission buildings.

6.5 Real Estate Agreement Instrument Types

6.5.1 Lease

6.5.1.1 A lease is a written document by which the owner transfers the rights of dedicated use, quiet enjoyment, and/or exclusive occupancy of land and/or structures to another person or entity for a specified period of time in return for a specific consideration, usually monetary.

6.5.1.2 A lease transfers to the tenant a leasehold interest in the real property and, unless otherwise provided in the lease, is transferable and irrevocable for the term of the leasehold.

6.5.2 License/Incidental Use Agreement/Permit

6.5.2.1 A license represents an authority to enter or use another entity’s land or property, without possessing estate in it and is revocable at will. A license is a use agreement and conveys no ownership rights to the property. Such use could otherwise constitute a trespass if not for the granting of a license. A license is used most often with non-Federal tenants where the licensed activities have a connection to NASA mission.

6.5.2.2 A license or incidental use agreement gives the permission from the owner to an individual or an entity to use real property for a specific purpose. Unlike a lease, it does not transfer an interest in the real property. It is personal to the licensee and any attempt to transfer the license terminates it.

6.5.2.3 Incidental use agreements are licenses associated with a procurement contract (e.g., a GTA) or partnership agreement, typically a Reimbursable Space Act Agreement entered into under the authority of , 51 U.S.C. § 20113(e) with the following characteristics:

a. Term of five years or less, including all option periods.

b. Full possession and control remain with NASA, but the partner has use of the property for activities directly connected to the partnership or procurement action.

c. Involves less than .5 acres (land) or 5,000 square feet (building) of assigned space.

d. For partnership agreements, full cost reimbursement is covered under the Reimbursable Space Act Agreement.

6.5.2.4 A NASA incidental use agreement is required when a non-NASA entity is given the right to dedicated use, or occupancy, (with personnel, facilities, or equipment), or seems to make modifications to, NASA-controlled real property or a portion thereof for a specific duration. An incidental use agreement is authorized only when there is another contractually obligated relationship or formal agreement established.

6.5.2.5 For the purposes of this NPR, “Permit” is the name given to a license entered into with other Federal agencies.

6.5.3 Easement/ROW

6.5.3.1 An easement is a grant of a nonpossessory right that provides the easement holder permission to use another person’s real property, or (in the case of negative easements) the right to prevent the grantor of the easement from doing something on grantor’s land that is lawful for them to do.

6.5.3.2 However, unlike a license, an easement transfers to the easement holder an interest in the real property that encumbers the record title and runs with the land. The RPAO shall record easements acquired by NASA with the appropriate local land records office.

6.5.3.3 An easement creates a dominant estate over the land burdened by the easement, which is the servient estate. Easements grant rights that have primacy over the fee interest ownership.

6.5.3.4 Easements are classified as either appurtenant (benefiting and transferable with a specific piece of real property, and most often between two adjoining pieces of property) or in gross (personal to the grantee and generally not transferable).

6.5.3.5 For the purposes of this NPR, a ROW is a type of easement giving to the easement holder the right to pass over the property of another.

6.5.4 Amendments

6.5.4.1 Any modification to a real estate agreement will be executed through an amendment to the original agreement.

6.5.4.2 An amendment is a written modification to an existing agreement that requires signatures by authorized representatives of each party.

6.5.4.3 Amendments are treated as a continuation of the basic agreement they are altering. All amendments are created in the FRED approved format.

6.5.4.4 An amendment to an existing agreement may only be executed by a RECO with the same level RECO warrant, or higher, as was authorized to execute the original agreement. For agreements that were executed prior to the establishment of the RECO program, any amendment execution will require a RECO be assigned that holds the proper warrant based on the terms and conditions of the agreement. All amendments must be executed by a warranted RECO.

6.5.4.5 All amendments to an agreement will be maintained with the original records.

6.5.4.6 All amendments are recorded in the RPMS by updating the original contract record.

6.5.4.7 Amendments only apply to agreements that have not yet been terminated or have not yet expired. If the term of an agreement has expired, a new agreement is required. This includes agreements that have expired and are in holdover tenancy.

6.5.5 Other Instrument Types

Occasionally, real estate agreements can be the result of other types of contractual instruments. These are generally related to international real estate agreements covered under a treaty.

6.6 In-Grant Real Estate Agreements

This section describes how NASA may acquire real property assets to support its missions via an in-grant, e.g., real property assets acquired by lease, easement, permit, license, ROW, or other instrument. It includes references to laws, policies, and principles related to the NASA property acquisition process. This excludes assets acquired by deed. Procedures for recording in-grants in the RPMS can be found in Chapter 2 of this NPR.

6.6.1 Authorities

6.6.1.1 Authorities for real estate agreements executed under U.S.C. Title 51, National and Commercial Space Programs include:

a. In-grants under NASA’s general acquisition authority – Property, 51 U.S.C. § 20113 (c)(1)

b. 51 U.S.C. § 20113 (c)(1) authorizes NASA to acquire real property by purchase, lease, condemnation, or otherwise.

c. In-grant authority inside the District of Columbia – Property, 51 U.S.C. § 20113 (c)(2) authorizes NASA to acquire real property, by lease or otherwise, inside the District of Columbia through GSA for a period not to exceed ten years as further set out in that section.

d. In-grant leasing authority – Contracts, Leases, and Agreements, 51 U.S.C. § 20113 (e) allows NASA to enter into in-grant leases to conduct the Agency’s mission without regard to advance payment restrictions.

e. In-grant authority with other Federal agencies – Cooperation With Federal Agencies and Others, 51 U.S.C. § 20113 (f) is available for use when NASA utilizes real property belonging to another Federal agency. Use of this authority requires approval from the Director, FRED.

f. In-grant lease authority for National Space Grant purposes – Grants or contracts, 51 U.S.C. § 40304 is cited when a National Space Grant recipient requires a lease to conduct grant activities in accordance with 51 U.S.C. § 40301. In-grants executed by grantees under this authority follow the same policy and procedures as an in-grant executed by NASA.

6.6.1.2 Authorities for real estate agreements executed under Public Buildings, Property, and Works, 40 U.S.C., include in-grant authority for GSA Occupancy Agreements (OA) – Lease Agreements, 40 U.S.C. § 585 is cited when NASA enters into an OA with GSA for GSA to act as NASA’s agent to acquire an in-grant lease.

6.6.2 In-Grant Guiding Principles

a. NASA will only in-grant real property when it is determined necessary for an approved mission or Agency purpose. That approval will be documented through a trade study utilizing the business case process. The business case analysis will provide rationale and authorization for the RECO to execute the real estate agreement.

b. In-grant leases should be considered when a short-term (less than five years) facility need is identified.

c. When a long-term need is identified and Construction and Environmental Compliance and Remediation (CECR) CoF projects are being considered, in-grant lease interest should equal or exceed 25 years. All other leasehold improvements should ensure sufficient interest and return on investment within the current period of performance prior to entering into an agreement or obligating funds.

d. The Director, FRED or delegate has the authority to acquire real property through in-grants.

e. For all in-grants, the RPAO shall create an INoPA and submit it to the Chief and Deputy Chief, REB in REAMS. The Chief or Deputy Chief, REB will assign a RECO based on this Notice.

f. All in-grants will comply with Chapter 4 of this NPR.

g. The RECO shall create and maintain real property in-grant files with the executed agreement in addition to any pertinent documents or communication. Upon termination or expiration, these files are retained in accordance with the appropriate retention schedules found in NRRS 1441.1.

h. In-Grants that have been negotiated or developed without an approved business case and/or inclusion of the assigned RECO will only be executed upon approval from the Director, FRED.

6.6.3 In-Grant Real Estate Agreement Instruments

Table 6-2 describes the general decision matrix used to determine the appropriate type of real estate agreement to use. The RECO should always discuss the instrument with a representative of NASA OGC.

Table 6-2 In-Grant Decision Matrix

6.6.4 Requirements Document/Business Case Development

6.6.4.1 Center/Program customers who require additional space will first notify the FUO of the need. If the FUO determines NASA cannot accommodate the request, the FUO will coordinate the customer’s request with the RPAO. The customer will provide all requirements to the RPAO.

6.6.4.2 All NASA in-grants require a business case. Business cases for proposed facilities and real property projects ensure that NASA develops and controls the right set of facilities and infrastructure to support its mission. The requirement for a business case and the associated analyses support NASA’s Agency Master Plan and ensure compliance with the OMB Circular A-11 Part 7 supplement Capital Programming Guide. NASA has developed a Business Case Guide for Real Property and Facilities Project Investments for use in real estate activities.

a. The RPAO shall work with the FUO, Center POC, and the CMP to ensure a business case is developed in accordance with the NASA Business Case Guide for Real Property and Facilities Project Investments.

b. The RPAO shall coordinate with the RECO, Center POC, CMP, and CPM (if applicable) regarding all components required for leasing as part of the trade study.

c. FRED shall approve business cases prior to any commitment, site selection, solicitation, or notification.

6.6.5 Procedural Requirements

If NASA determines from the business case assessment that an in-grant is preferred, the assigned RECO shall initiate the NF 1913 procedures to ensure the following requirements are met:

a. Delineated area requirements – The area defined will be large enough to provide adequate competition. In addition, locations within the central business district of the central city within a Standard Metropolitan Statistical Area will be included unless such a location is incompatible with the NASA mission requirements.

b. Competition requirements – In accordance with CICA as referenced in Section 6.4.3 of this NPR, NASA will perform a full and open competition for real estate acquisitions meeting minimum Government requirements. Competitive offers are not required when:

(1) Other Federal property is made available; or

(2) FRED determines that it is in the public interest to use noncompetitive procedures for the

in-grant; or

(3) The property needed by NASA is available from only one reasonable source and no other type of property will satisfy the needs of NASA due to mission requirements (e.g., weather, geographical conditions); or

(4) NASA’s need for the property is so urgent and compelling that the NASA mission would be severely impacted unless NASA is permitted to limit the number of sources from which it solicits bids or proposals; or

(5) The terms of an international agreement or treaty between the U.S. Government and a foreign government or international organization greatly limits the competitive process.

c. Noncompetitive in-grants –

(1) In all noncompetitive in-grant scenarios, the RECO shall prepare a Justification for Other than Full and Open Competition (JOFOC) and receive approval from the Director, FRED, or delegate.

(2) Upon approval of the JOFOC, the RECO shall post a notice of sole sourcing on sam.gov for a period of 15 days, notifying the public of the sole source in-grant and requesting comments or solicitations.

d. Advertisement requirements – All real estate acquisitions will be advertised to the public if the space exceeds 5,000 rentable square feet. The advertisement:

(1) Will be placed in local newspapers or on the internet, and/or on sam.gov.

(2) Will include the delineated area, amount and type of space needed, date space is required, term of the lease (both firm and renewal options), and the source where further information may be obtained.

e. Market survey requirements – A market survey will be conducted to inspect each property offered to ensure all in-grant requirements are or can be met.

f. Solicitation requirements – The following requirements apply to solicitations:

(1) For leases of 5,000 rentable square feet or more, a set of minimum specifications will be prepared and will include all specific requirements and any special requirements associated with the use of the property.

(2) The solicitation will include any known requirement for renewal options.

(3) Leases will contain a termination clause that provides NASA with the right to terminate the lease after a given time.

(4) The firm term of the lease will be aligned with the availability of funds being utilized. The RECO shall confirm the availability of funds being used with the appropriate Resource Analyst.

g. Review and evaluation of offers –

(1) Reviews will be conducted with all responsible offerors to resolve any remaining issues and verify the proposal.

(2) The solicitation will explain the criteria that will be used to evaluate offerors as well as the weight each criterion will receive in scoring.

(3) All offers will be evaluated using the same criteria and will be reviewed for responsiveness to all requirements of the solicitation.

(4) The lowest price, technically acceptable offer will move to award. The RECO shall coordinate with the Program/Project in ensuring alternative technical criteria are included in the solicitation.

(5) The RECO shall notify all offerors of the results of the solicitation, in writing.

h. Environmental review – Pursuant to the NEPA (NPR 8580.1), EDD (EDD Desk Guide), and Section 106 of the NHPA (NPR 8510.1), an environmental review will be conducted on the selected, proposed property to support the real property action. This review will be prepared and completed prior to execution of the in-grant lease.

i. Budgetary scoring requirements – The NASA Lease Scorecard will be completed at various intervals throughout the solicitation process to determine the status of the lease as Capital or Operating, in accordance with OMB A-11. The requirements to complete the lease scorecard can be found in the Lease Scorecard Guide.

j. Appraisal requirements – After NASA receives offers, completes reviews, and identifies the lowest price technically acceptable offer, the fair rental value will be determined using an appraisal.

(1) Full appraisals are required for in-grant leases in excess of five acres of land and for other real property in excess of 10,000 square feet. (If desired, a full appraisal may be performed for smaller leases.)

(2) For leases that are at or less than five acres of land or 10,000 square feet for other real property, a market survey will be conducted utilizing an approved valuation method (e.g., CoStar).

(3) The VAL shall review, confirm, and approve all appraisals and/or valuations.

l. Fair Annual Rental Value requirements –

(1) The RECO shall negotiate the lowest possible economic rent.

(2) The Chief, REB shall review and approve prior to lease award all lease rentals that differ from the approved appraisal by more than 15 percent.

m. Lease award requirements –

(1) The Chief, REB or delegate shall complete and approve the NF1913 prior to lease award.

(2) Upon award, all documentation will be placed in the lease file using the standard naming convention with a retention schedule identified in accordance with NRRS 1441.1.

n. Although easements and ROWs do not require competition, the RECO shall document the sole source decision in the agreement file.

o. All NASA in-grants that involve land, require a sufficient legal description and corresponding map, or survey, to be included in the agreement (as an exhibit) and the agreement file.

p. In-grant licenses do not require competition and are generally related or incidental to another contract type agreement. The RECO shall document the sole source decision in the agreement file.

6.6.5.1 Leasehold Improvements

a. NASA-funded improvements made to in-granted real property will be recorded as leasehold improvements in the RPMS in accordance with Section 2.3.3.1 of this NPR. This includes improvements made directly by NASA and improvements that are amortized through the lease payments. The RECO shall provide this information to the RPAO.

b. NF1739 is required to be completed prior to any modifications to facilities and related property within the lease in accordance with Section 2.2.5.1 of this NPR.

6.6.5.2 In-grants Executed by NASA Contractors

a. When a NASA contractor performs work pursuant to a NASA contract that requires a lease of real property and the NASA contract authorizes reimbursement for the cost of the lease rent, acquisition of the leasehold interest is required to follow the policies and procedures in this NPR. The RPAO, assigned RECO, and the REB Chief shall review and approve all contractor real property in-grant leases.

b. The contractor may lease facilities necessary to support NASA’s contracted activity to house contractor personnel. The contractor may not lease general-purpose office space to house NASA or other Federal government personnel.

c. In cases where authority and funding have been obtained, the acquiring office is required to follow the regulations set out by GSA in the Federal Acquisition Regulations System: General Services Administration, 48 CFR ch. 5, and subsequent statutes and regulations.

6.6.5.3 Leases signed by a contractor at no risk to the Government.

A contractor may enter into a lease for a period beyond that of the fiscal year or the period of the NASA contract, as long as NASA is not liable for any of the lease costs in case of a termination of the contract, and an indirect expense pool recovers the lease costs.

a. The NASA contract is required to contain a clause that expressly states that the terms of the leases and all associated costs are the sole responsibility of the contractor, or the contractor, and/or the contractor’s corporate headquarters, as appropriate.

b. The lease between the lessor and the contractor may not in any manner or form identify NASA as a potential correspondent who may be liable for any lease payments, or any other associated costs not paid by the contractor.

c. As a matter of policy, nothing in the lease may bind or purport to bind NASA to the lease.

d. Allowable costs for the lease will be in accordance with the FAR Rental Costs, 48 CFR § 31.205-36.

6.6.5.4 Contractor’s leasing requirements.

a. No prospectus is required for contractor leases.

b. Indemnity and/or hold-harmless clauses are discouraged. When market conditions dictate and with consent from NASA, after consultation with OGC, such clauses may be used.

c. All contractor lease agreements will be consistent with OMB’s guidance on scoring of budget authority for that agreement.

(1) The budget authority scoring will be in the first year of the contract for the entire firm term of the lease.

(2) If there are cancellation rights, then the budget authority scoring will be for the exercise of rental cancellation rights plus any cancellation penalties.

d. Reimbursable contractor leases will contain certain clauses, terms, and conditions as approved by the cognizant RECO consistent with this policy.

e. In acquisition of space, contractor leases are governed by the same standards as those for Federal employees in the following areas:

(1) The amount of square footage; and

(2) Justification for alterations to the lease space that are above NASA requirements and standards; and

(3) Use of the proper appropriated funds.

6.7 Out-Grant Real Estate Agreements

This section describes how NASA may out-grant real property to non-NASA entities by lease, easement, ROW, license, permit, concessionaire, or other agreement. It includes references to laws, policies, and principles related to the NASA out-grant process.

6.7.1 Authorities

6.7.1.1 Authorities for real estate agreements executed under Title 51, National and Commercial Space Programs include:

a. Out-grant permits and licenses – Out-grant permits and licenses do not require specific authority and are conducted as part of NASA’s stewardship responsibilities under Establishment and Appointment of Administrator, 51 U.S.C. § 20111 (a).

b. Out-grant leases under NASA’s general authority – 51 U.S.C. § 20113 (c)(3) should be used for all leases with the exception of EULs where proceeds are retained by NASA, NHPA leases, and leases supporting commercial space access.

c. Concessionaire related out-grant authority – Concessions for Visitors’ Facilities, 51 U.S.C. § 20113 (k), allows NASA to make real property available for use by concessionaire activities.

d. EUL authority – 51 U.S.C. §20145 is used to lease non-excess real property to non-NASA entities, when appropriate. Under this authority, the Agency is allowed to retain net proceeds from the lease (above costs) to re-invest in Agency real property.

e. Out-grant authority for Commercial Space Competitiveness – 51 U.S.C. § 50504 may be used to allow non-Federal entities the use of NASA facilities to support commercial space activities that are compatible with Federal activity.

f. Out-grant authority, under the Commercial Space Launch Act (CSLA) – 51 U.S.C. § 50913, may be used to allow non-Federal entities the use of NASA real property that is related to launch and reentry activities. The purpose of this authority is to promote economic growth and entrepreneurial activity through use of the space environment for peaceful purposes; and to encourage the U.S. private sector to provide launch vehicles, reentry vehicles, and associated services.

6.7.1.2 Authorities for real estate agreements executed under other U.S.C. Titles.

a. Title 54, National Park Service and Related Programs, Out-grant Authority for NHPA – 54 U.S.C. § 306121 will be the first consideration when NASA is proposing a lease of “historic property,” that is, any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register of Historic Places, including artifacts, records, and material remains relating to the district, site, building, structure, or object. The Agency may retain proceeds from the lease to defray the cost of maintenance and repair of the leased facility, any historic property that lies within the same historic district as the leased facility, or other properties owned by the Agency that are listed on the National Register of Historic Places.

b. Title 40, Public Buildings, Property, and Works, Easements – 40 U.S.C. pt. 1314 allows executive Federal agencies having control over real property to grant easements in, over, or on real property of the Government. The grant may be made without consideration or with monetary or other consideration, including an interest in real property, and must be executed in accordance with 14 CFR § 1204.503.

c. Title 31, (Money and Finance, Agency Agreements – 31 U.S.C. § 1535, generally referred to as The Economy Act, allows Federal Agencies to exchange services. This authority will not be used to provide for the use of real property but can be used to allow for the exchange of related facility services.

6.7.2 Out-Grant Guiding Principles

a. Use of NASA real property by others will be covered by a real estate agreement as defined in Section 6.1.2 of this NPR, unless a determination otherwise has been made by the RPAO.

b. The Director, FRED or delegate (i.e., REB Chief or RECO) hold the authority to out-grant the use of NASA-controlled real property.

c. NASA will ensure that the pricing of real estate out-grants includes the collection of all allowed charges connected to pricing, which includes the full cost to the Agency and market pricing where applicable, and any deviation will require the approval of OSI and OCFO.

d. The RPAO shall create an INoPA for all out-grants and submit it to the Chief and Deputy Chief, REB in REAMS. The Chief or Deputy Chief, REB will assign a RECO based on this Notice.

e. NASA will only out-grant real property that is underutilized but supports a current or future NASA mission requirement (i.e., non-excess). However, some out-granting authorities are available to NASA that may allow for the use of excess or utilized property by others. If an excess or utilized property is being proposed for out-granting, the Center shall request, in writing, approval from the Director, FRED prior to making the property available for out-granting.

f. Once a Center has initiated a request for disposal of a property, that property will not be considered for out-granting.

g. An out-grant of non-excess, underutilized NASA real property to another Federal agency has the potential to reduce NASA’s operating costs, as well as save the other agency the costs of acquiring real property through other means, such as new construction or leasing. Additionally, the agreement with another Federal agency can leverage the asset to be more productive by maximizing its use and efficiency. Thus, NASA is required to give priority consideration to other Federal agencies when seeking to out-grant assets due to the benefits these agreements provide to the Federal Government. FRED will work with GSA and other entities in identifying potential Federal tenants.

h. In establishing the term of the real estate agreement, RECOs shall comply with the appropriate State law and coordinate closely with NASA OGC to ensure compliance.

i. Unless prohibited by statute or policy, all real estate activities that convey Agency property rights (e.g., lease, easement) will be priced at full cost and market-based pricing for cash consideration or, when specifically authorized, in-kind consideration. The Director, FRED, shall approve a waiver for any deviations from this Agency policy prior to any communication or negotiation that could appear to obligate the Government. Waiver requests can be referred to in the business case analysis but require a separate request routed for review and approval in accordance with Section 6.8 of this NPR.

j. All NASA out-grants will include security requirement provisions. The RECO shall coordinate the security provisions with the Office of Protective Services.

k. All NASA out-grants that involve the use of land, require a sufficient legal description and corresponding map, or survey, to be included in the instrument (as an exhibit) and the agreement file.

l. Out-Grants that have been negotiated or developed without an approved business case (or NF1914) and inclusion of the assigned RECO will only be executed upon approval from the Director, FRED.

6.7.3 Additional Requirements for 51 U.S.C. § 50504 and § 50913

6.7.3.1 The Assistant Administrator, OSI or the Director, FRED shall approve the use of this authority prior to any commitment by NASA.

6.7.3.2 The Center shall submit the proposed use of CSLA, via the business case, to FRED, which will coordinate the review with the Space Operations Mission Directorate (SOMD).

6.7..3 For NASA real property fully provided under a lease or license to non-Federal entities (e.g., the private sector or a State government) to support a commercial launch or reentry effort under the CSLA, the price is an amount equal to the direct costs, including specific wear and tear and property damage that NASA incurs during the lease or license. The direct costs for property or facilities made available by NASA to a tenant under the CSLA are determined in coordination with OCFO and the requirements defined in NPR 9090.1. Any such lease or license will comply with applicable laws, regulations, and NASA policies.

6.7.3.4 For NASA real property made partially available under CSLA involving incidental or multi-user assets, the CSLA tenant will reimburse NASA a reasonable allocation of direct costs associated with that portion of the asset. Such an allocation will be based on an appropriate, proportional allocation of direct costs associated with operating the facility and will not include costs associated with the facility shell or building systems replacements/repairs (e.g., those that would be incurred if there were no occupants). The Center may develop rates to be applied to the agreement in order to represent a reasonable allocation of the direct costs of functions typically associated with usage of the facility (e.g., by square footage or persons occupying the facility).

6.7.3.5 Within one-year prior to the completion of the initial term of the CSLA, FRED, in coordination with the Center and SOMD, shall conduct a review to determine whether the continued use of CSLA authority is appropriate or a new agreement under a different authority, such as an EUL, should be performed. The review of the use of CSLA will consider financial impacts to NASA and other relevant factors identified by the Center, FRED, and SOMD.

6.7.4 Business Case Development and Requirements

6.7.4.1 The RPAO shall coordinate the business case development with the assigned RECO and the Center POC utilizing the NASA Business Case Guide for Real Property and Facilities Project Investments. NASA out-grants that meet the following criteria require a business case:

a. Term is equal to or greater than two years including all potential options; and

b. Involves 0.5 acres or more of land; or

c. Involves a facility footprint equal to or greater than 5,000 rentable square feet or a recorded value equal to or greater than $1M; or

d. Involves a fully out-granted set of facilities/structures where the tenant requests the entire property; or

e. The interest granted is for an easement or ROW with a term at or greater than 25 years.

6.7.4.2 A NF1914, Real Property Use Justification Form is completed in place of a business case for out-grants when:

a. Term is two years, or less, including all potential options; and

b. Involves less than 0.5 acres of land; or

c. Involves a facility footprint of less than 5,000 rentable square feet or a recorded value less than $1M; or

d. An Incidental Use Agreement instrument is being used (see Section 6.9.2 of this NPR); or

e. The interest granted is for an easement or ROW with a term less than 25 years.

6.7.4.3 Business cases that include Capability Portfolio assets will need approval from the applicable CPM.

6.7.4.4 Business cases must be approved by FRED prior to announcement, advertisement, solicitation, commitment, and/or negotiations with any potential tenant.

6.7.5 Procedural Requirements

If, as a result of the business case assessment, NASA determines that an out-grant agreement should be pursued, the assigned RECO shall initiate the NF1913 procedures to ensure that the business case requirements (in accordance with Section 6.7.3 of this NPR) and the following requirements are met and documented in the lease file for all out-grants.

6.7.5.1 OMB notification of real estate agreement advertisements.

Prior to posting an opportunity or any other public release regarding a possible real estate agreement, FRED shall prepare and submit an OMB notification. This notice should be generated from the approved business case.

6.7.5.2 Competition requirements.

a. NASA is required to ensure fairness in competition between all potential entities who may be interested in leasing properties under NASA’s control. When establishing an out-grant agreement with a non-Federal entity, NASA will maximize the use of full and open competition to ensure maximum benefit to the Government. The REB Chief shall approve all advertisements and solicitations prior to release. The RECO shall post the advertisements and solicitations. NASA will advertise the opportunity to lease its property broadly through the following means:

(1) A Notice of Availability (NOA) will be issued to allow NASA to understand the level of interest that may exist for specific Agency real property. A NOA is recommended but not required if a full AFP solicitation is conducted.

(2) A Request for Information (RFI) may be issued for developmental opportunities to gather information from various sources. A RFI can be useful to generate ideas for possible opportunities.

(3) A Public Notice of Intent (NOI) is intended to advertise NASA’s intent to enter into an agreement with a sole source. A NOI will be issued if FRED approves an unsolicited proposal. A NOI will be posted for no less than 15 days.

(4) An AFP will be used to conduct the official solicitation of available NASA real property. The REB Chief shall approve the AFP prior to release. The AFP will be posted for no less than 30 days. The AFP package will include the following:

(a) The announcement of the available property; and

(b) The evaluation factors; and

(c) The FMV rent based on the valuation requirements in Section 6.7.5.3 of this NPR; and

(d) The draft agreement template with the required provisions established through Agency approved terms and conditions.

b. Final AFP solicitation package.

(1) Upon completion of the AFP package, all RECOs shall submit the package to a RECO at least one level higher for review. The package will include an executive summary identifying all key elements of the package.

(2) After the approval of the AFP package, the RECO shall prepare the OMB notification and forward it to the REB Chief for submission to OMB.

c. Evaluation of proposals.

(1) Evaluations will be conducted on all qualified proposals.

(2) All proposals will be evaluated using the same criteria and will be reviewed for responsiveness to all requirements of the AFP.

(3) The RECO, in coordination with the Center, shall establish a Proposal Evaluation Team (PET), which will lay the foundation to conduct the evaluation of all offers.

(4) The Chair of the PET shall prepare a Proposal Evaluation Plan (PEP) and all necessary documentation to establish the evaluation factors that will be applied.

(5) The Center Director shall identify the SA and Center PET members and provide to the Chair of the PET in writing.

(6) To assure the appearance of impartiality in the selection process, the SA and the Chair of the PET will not be from the same chain of command.

(7) The highest price proposal(s) that best fulfills the selection criteria will move to award unless another selection factor identified in the AFP and approved by FRED, was used.

(8) The RECO, in coordination with the SA, shall notify the selected proposer(s) to initiate negotiations of the final form lease.

(9) Upon agreement on the final form lease, between NASA and the selected proposer, an announcement of the selection will be made.

(10) Upon execution of the out-grant, the RECO will notify the unselected proposers of their individual results.

(11) If the SA determines that an AFP solicitation award cannot be made, based on incomplete proposals or other factors, the solicitation can be re-advertised for a minimum of 15 days.

d. Competition waivers and sole source decisions.

(1) Centers may request a competition waiver from FRED, through the RECO, if they believe that competition is not appropriate. Any deviations from a full and open competition for proposed out-grants are required to have an approved waiver from FRED prior to any public notices, commitments, or negotiations with a potential tenant and will comply with Section 6.8 of this NPR.

(2) Unsolicited proposals from non-NASA entities with an approved waiver from competition require a NOI for sole sourcing.

(3) Although easements and ROWs do not require competition, the RECO shall document the sole source decision in the agreement file.

(4) Out-grant licenses, permits, concessionaires, or other real estate agreements may not require competition based on the business case analysis. These are generally related or incidental to another contract type agreement, and the RECO shall document the sole source decision in the agreement file.

6.7.5.3 Appraisal and valuation requirements.

a. Full appraisals will be required for out-grants of land in excess of five acres and for other real property in excess of 10,000 square feet if fair market base rent is being applied.

b. A valuation will be required for out-grants that are at or less than five acres of land or 10,000 square feet if fair market base rent is being applied.

c. Appraisals and valuations will be no more than three years old. Annual escalations will be applied to appraisals that were not conducted in the current year.

d. Market surveys used to support a valuation will be conducted utilizing CoStar or other approved means.

e. The VAL shall coordinate with OCFO on the market analysis or appraisal, to include the appraisal statement of work.

f. The VAL shall confirm and approve the appraisal or valuation results after consultation with the OCFO.

g. The REB Chief shall review and approve, prior to advertisement and/or negotiations, all fair market value base rent that varies from the approved appraisal or valuation by more than 15 percent.

h. FMV as determined by NASA consists of base rent together with support service costs, as well as any other sublease or participating rent as the circumstances may require and as approved by the REB Chief.

i. The RECO shall negotiate the best value for the Government using the approved negotiation parameters worksheet as a guide to establish fair market base rent.

j. The RECO and VAL shall coordinate with the OCFO on the negotiations parameters worksheet to reach the FMV prior to advertisement and/or negotiations.

k. The RECO, in coordination with the OCFO, shall ensure the EPR is completed, includes the cost savings and cost avoidance estimates for each real estate transaction and is included in the agreement file.

l. Appraisals and valuations are not required for Federal Permit out-grants; however, they are required for Federal Lease out-grants.

6.7.5.4 Negotiating requirements.

a. The RECO shall coordinate with the RPAO, VAL, OCFO, and Center personnel to establish NASA’s negotiating parameters on the Negotiation Parameter Worksheet.

b. The Chief or Deputy Chief, REB shall approve this worksheet.

c. The RECO shall maintain this worksheet as part of the agreement documentation file.

d. The following parameters will be included in the worksheet:

(1) The amount of real property that will be made available,

(2) The term,

(3) Variable conditions, and

(4) Consideration.

6.7.5.5 Environmental review.

Pursuant to the NEPA (NPR 8580.1), EDD (EDD Desk Guide), and Section 106 of the NHPA (NPR 8510.1), an environmental review will be conducted on the selected, proposed property to support the real property action. This review will be prepared and completed prior to execution of the out-grant lease.

6.7.5.6 Notification of Significant Leasing Action (NOSLA).

At the completion of negotiations, the RECO shall prepare a NOSLA for all EUL, NHPA, or other highly visible out-grants and submit it to the REB Chief. This NOSLA will be circulated within the Agency prior to Lease execution. This allows early distribution to OMB, Agency, and interested Congressional members.

6.7.5.7 Real estate agreement files.

a. The RECO shall maintain an agreement file for each real estate agreement NASA enters into in accordance with the NF1913.

b. The RECO shall place all agreement documentation in the file using the standard naming convention with a retention schedule identified in accordance with NRRS 1441.1.

c. In addition to the real estate agreement files, the RECO shall provide executed documents to CMP for incorporation into the GIS database.

6.7.6 Out-Grant Real Estate Agreement Instruments

6.7.6.1 Table 6-3 describes the general decision matrix used to determine the appropriate type of real estate agreement to use. The RECO should always discuss the instrument with a representative of NASA OGC.

6.7.6.2 License and permit guiding principles.

a. License. NASA may issue to non-Federal entities a revocable out-grant license that allows for the use of NASA land or other real property and transfers no possessory interest.

b. Permit. A permit is a license granted to another Federal agency for a specific purpose and transfers no possessory interest.

c. When justified by a business case, FRED shall approve a permit for use with other Federal agencies or a license for non-federal entities where activities are connected to or highly compatible with a NASA mission.

d. A license with a non-Federal entity will not be used when the licensee is performing construction or major facility modifications. These types of activities will require a lease or easement.

e. The license term will not be longer than five years, including all renewal options.

f. If a license is required for an associated concessionaire activity, the license will follow the requirements of this Chapter and be coordinated between the RECO, RPAO, and local exchange representative.

Table 6-3 Out-Grant Decision Matrix

g. Permits issued to other Federal agencies will be referenced in the related Interagency Agreement and/or U.S. Department of the Treasury, FS Form 7600 A/B, United States Government Interagency Agreement (IAA) - Agreement between Federal Agencies for reimbursable services associated with use of the property which is subject of the Permit.

h. When justified by a business case, the Director, FRED shall approve permits issued to other Federal agencies that include construction or major facility modifications.

i. The RECO shall perform validation and verification of the draft real estate agreement in REAMS prior to license or permit execution. This will include verification that all necessary reviews and concurrences have been completed and documented.

6.7.6.3 Lease guiding principles.

a. In accordance with Section 6.6.1 of this NPR, NASA may issue a leasehold interest to a non-NASA entity for real property under NASA’s control.

b. A lease is required when vertical construction is anticipated or needed with all non-NASA, non-Federal entities. Any deviation will require a waiver.

c. If a lease is not executed under the EUL or NHPA authority, the lease is an out-grant agreement with a public or private entity in which NASA cannot retain proceeds. The lease consideration paid by the public or private entity will be at FMV and all proceeds in excess of NASA’s costs will be returned to the U.S. Treasury as miscellaneous receipts in accordance with OCFO policy.

6.7.7 Enhanced Use Leases

a. An EUL is an out-grant lease agreement with a public or private entity that allows NASA to retain the proceeds from the agreement.

b. An EUL may only be entered into for non-excess real property and related personal property.

c. The consideration paid by the public or private entity for an EUL will be at FMV. NASA’s EUL authority has the following limitations on consideration:

(1) NASA is only authorized to receive cash consideration, at FMV, which will be determined by NASA in accordance with Section 6.7.5.3 of this NPR.

(2) NASA is authorized to accept cash or in-kind consideration for leases entered into for the purpose of developing renewable energy production facilities. Additional requirements may be found in NPR 8570.1, NASA Energy and Water Management Program.

d. EUL leases are preferred when issuing a lease to a non-Federal entity. NASA may also enter into an EUL lease with other Federal agencies when appropriate.

e. EULs are not the proper instrument whereby any demand services are provided to the tenant by NASA. Any services that a tenant wishes to obtain from NASA on demand, i.e., demand services, are provided under a separate Reimbursable Space Act Agreement entered into in accordance with NASA policy and procedure.

f. No NASA civil service management activities will be charged to EUL proceeds unless a waiver is requested and approved by the Director, FRED.

g. NASA is restricted under its EUL authority from entering into lease-back arrangements and may not enter into other contracts with the tenant respecting the leased property.

h. NASA is restricted from entering into a EUL that will have a negative impact on the mission of the NASA Administration.

i. If an existing EUL terminates because of expiration date and was previously competed (documentation required), a succeeding lease action may be executed one time without competition for the follow-on lease action with the same tenant. This succeeding lease may not exceed the duration of the previous lease’s base term period of performance and will require an approved business case and updated pricing in accordance with sections 6.7.4 and 6.7.5.3.

6.7.8 Use of EUL Collections

6.7.8.1 The use of collections from all EUL leases, whether the lease was entered under the initial or expanded authority for all Centers, follows the requirements of the expanded authority for all Centers.

6.7.8.2 EUL collections will first be used to cover the full costs to the Agency in connection with the lease including indirect costs for common base level shared support services such as security, common grounds, horizontal infrastructure and administrative costs in accordance with NPR 9090.1 and NID 9091.125, Real Property Out-Grant Agreements – Financial Requirements. Net proceeds (amounts collected in excess of NASA’s full cost) in the capital account are available for maintenance, capital revitalization, and improvements of the real property assets and related personal property. This includes the revitalization, repair, and replacement of collateral equipment, as defined in NPR 9250.1.

6.7.8.3 Net proceeds are not available for routine operations costs, such as utilities, administration, and other daily operating costs.

6.7.8.4 All projects funded with EUL proceeds will follow standard project review and approval processes as established by FRED. Projects will be prioritized and approved based on Agency-approved discriminating factors, which include ensuring support of NASA’s primary missions; reducing NASA costs for maintenance, revitalization, and improvements of real property and related personal property that support those missions; and ensuring a safe, reliable, and adequate environment for NASA workers.

6.7.8.5 OSI and OCFO reviews anticipated EUL collections and cost projections as part of the Agency budget process. This information is used to develop the budget that is submitted to Congress. Centers shall provide their projections of EUL net proceeds and proposed spending plans to FRED as part of the yearly Planning, Programming, Budgeting, and Execution (PPBE) process. If specific repair projects are not known at the time of the budget submission, NASA submits details for the specific projects as part of the initial operating plan.

6.7.9 National Historic Preservation Act Leases

a. The NHPA authorizes Federal agencies to lease their historic property to others and retain the resulting proceeds for the preservation of the agency’s historic properties.

b. NASA is responsible for developing NHPA leases that will not interfere with NASA missions.

c. The RECO and RPAO shall coordinate all NHPA leases closely with the Center CRM.

d. Consultation, pursuant to Section 106 of the NHPA, 54 U.S.C. § 306108, and its implementing regulations, Protection of Historic Properties, 36 CFR pt. 800, with the relevant SHPO and consulting parties may be required and should commence prior to solicitation since certain lease conditions may be requested by the SHPO (e.g., if the SHPO requires mitigation for any potential adverse effects).

6.7.10 Use of NHPA Lease Collections

NHPA lease proceeds may be used as follows:

a. NHPA lease collections will first be used to cover the full costs to the Agency in connection with the lease including indirect costs for common base level shared support services such as security, common grounds, horizontal infrastructure, and administrative costs in accordance with NPR 9090.1 and NID 9091.125. Net proceeds (amounts collected in excess of NASA’s full cost) may be used to defray costs of administration, maintenance, repair, and related expenses incurred by the Agency for the properties identified below.

b. NHPA lease proceeds can be used on the following types of historic properties:

(1) The NHPA lease asset

(2) Properties that are contributing to the historic district in which the leased property is located. Contributing properties are those properties identified through historic property surveys that have been concurred with by the SHPO as contributing to a historic district. Lease proceeds may not be spent on noncontributing properties or elements within the boundaries of a historic district.

(3) Any NASA NRHP-listed property.

6.7.11 Improvements to NASA Out-Granted Assets

a. NASA out-grants may authorize the tenant to make capital and other improvements to NASA real property assets.

b. All construction funded by non-NASA entities will follow the requirements in NPR 8820.2 Chapter 7, Facilities Investments by Others.

c. For all construction funded by non-NASA entities, the Center’s CoF Program Manager is required to submit a NF1509 to FRED prior to design and/or construction. The Center CoF Program Manager shall coordinate the NF1509 with the non-NASA entity prior to submitting the form to FRED. All non-NASA entity related NF1509s require approval of the Director, FRED.

d. It is not NASA’s intent that permanent improvements constructed by the non-NASA entity become the property of NASA. New assets constructed by the non-NASA entity on NASA-owned land, such as buildings or other permanent structures, will remain under the tenant’s ownership and control and removed by the tenant at the end of the out-grant term, unless otherwise transferred to NASA in accordance with this NPR.

e. If non-NASA entity proposes that constructed asset(s) remain at the completion of the agreement term, the Center shall notify the RECO and/or RPAO immediately. If the Center proposes a transfer of the asset(s) the request for acquisition should be processed in accordance with the acquisition policy in Chapter 4 of this NPR.

f. NASA should provide no agreement, commitment, or other assurance to the non-NASA entity, expressed or implied, regarding NASA’s willingness to accept any such transfer, or the terms thereof, prior to any such formal request from the non-NASA entity. NASA cannot bargain for acquiring improved real property through the out-grant process.

g. In the event that improvements made to a NASA facility are transferred to NASA, the RPAO shall enter the value of these improvements into the real property record as an increase in the value of that asset. Improvements will be recorded and capitalized in accordance with NPR 9250.1 and Chapter 2 of this NPR.

h. Out-grants that authorize improvements will consider all environmental and historic preservation issues including, but not limited to, the following:

(1) Effects on historic districts, sites, buildings, monuments, structures, objects, or other cultural resources, pursuant to NHPA and implementing regulations.

(2) Protection of natural resources (e.g., wetlands, habitat critical to threatened and endangered species).

(3) Compliance with NEPA requirements.

(4) Sustainability in construction.

6.7.12 Authority for Providing Antenna Sites

6.7.12.1 OMB Circular A-25 Revised, User Charges, contains criteria that agencies are required to follow to assess fees for the use of Government property or resources.

6.7.12.2 NASA may make available any buildings and lands for the siting of commercial antennas in accordance with Federal, State, and local laws and regulations and consistent with National security concerns.

6.7.12.3 Antenna sites shall be made available on a fair, reasonable, competitive, and nondiscriminatory basis with a bias toward granting a request unless there are unavoidable conflicts with NASA’s mission, including future planned use of the property or access to the property. The siting of commercial antennas will not be made a priority over NASA mission needs. Any antenna siting should avoid electromagnetic inter-modulations and interferences and will be coordinated with the appropriate Center personnel.

6.7.12.4 Where there are multiple requests for the same site, co-location of antennas is encouraged. The real estate agreement used to grant the antenna site may be a lease, easement, permit, or license under the circumstances of the request and location.

6.7.12.5 Upon receipt of a siting request, the Center shall coordinate with the RPAO to conduct an initial evaluation to determine whether the information provided is sufficient and whether there is an obvious reason to deny the request. NASA retains the discretion to deny an unacceptable or inappropriate request to site an antenna on NASA property.

6.7.12.6 The evaluation of a siting request will consider all environmental and historic preservation issues including, but not limited to, the following:

a. Public health and safety with respect to the antenna installation and maintenance.

b. Aesthetics.

c. Effects on historic districts, sites, buildings, monuments, structures, objects, or other cultural resources, pursuant to NHPA and implementing regulations.

d. Protection of natural and cultural resources (e.g., National Parks, Wilderness Areas, and National Wildlife Refuge systems).

e. Compliance with NEPA requirements.

f. Compliance with Federal Communications Commission criteria for radio frequency exposure and with other relevant Federal regulations, including those of the Federal Aviation Administration, the National Telecommunications and Information Administration, and the National Capital Planning Commission for NASA facilities within the National Capital Region.

6.7.12.7 The agreement should ensure the timely removal of the antenna and restoration of the property at the end of the term at the sole expense of the telecommunications service provider.

6.7.12.8 The agreement will provide that the antenna structures may not contain any advertising.

6.7.12.9 The telecommunications service provider is responsible for the costs incurred by NASA that are associated with providing the requested antenna site. This includes costs associated with obtaining appropriate clearance of provider personnel for access to NASA and non-Federal land or buildings.

6.7.12.10 The EUL will be NASA’s preferred out-grant instrument for antenna siting. The use of any other out-grant instrument should be documented in the business case analysis and approved by FRED.

6.7.12.11 Depending on the FRED approved form of out-grant, NASA may charge reasonable consideration for the property out-granted. The consideration will be based on the instrument used and a proper valuation in accordance with Section 6.7.5.3 of this NPR.

6.8 Waiver Process

6.8.1 The Director of FRED shall approve/disapprove all requests for waivers from requirements of this NPR and/or Delegations and Designations, 14 CFR 1204, subpt. 5, in accordance with NPR 1400.1, NASA Directives and Charters Procedural Requirements.

6.8.2 FRED shall maintain a record of requests for waivers granted against directives under their responsibility and should periodically review waivers to determine continued need.

6.8.3 When preparing a request for waiver, the RECO and Center shall follow the requirements of NPR 1400.1, Section 5.5.2, Requesting Extensions on Expiration or Suspension Dates.

6.8.4 Centers shall submit requests for waivers from requirements in Chapter 6 of this NPR to the RPAO or RECO, documenting the following:

a. Identification of the requirement (directive and specific requirement(s)) for which the waiver is requested.

b. Scope (e.g., consideration, termination, and/or competition requirements) and duration of the request.

c. Justification in accordance with NPR 1400.1, Chapter 5, Process Requirements for Requesting Directives Cancellations, Extensions, Resolutions, Waivers, and Transfers.

6.9 The Relationship between Real Estate and Partnership Agreements

6.9.1 Partnership agreements between NASA and any non-NASA entity that are established under the Other Transactions Authority (OTA) – 51 U.S.C. § 20113(e) which involve the occupancy or incidental use of real property belonging to NASA or any non-NASA entity and being used by the other will require an appropriate real estate agreement. See NPD 1050.7, Authority to Enter into Partnership Agreements.

6.9.1.1 The OTA is not an authority used to out-grant NASA real property to non-NASA entities. Any agreement established under this authority that results in dedicated use or occupancy of NASA real property, or which involves a third-party modifying NASA real property, will require a separate, corresponding real estate agreement.

6.9.1.2 Dedicated use or occupancy occurs when a NASA asset(s), or a portion thereof, are made available to a non-NASA entity for a specified period. These situations will generally require a separate real estate agreement and determination of the most appropriate authority for consideration, to include pricing. The partnership agreement manager shall coordinate with the RPAO to make this determination.

6.9.1.3 Non-dedicated use or occupancy occurs with the joint use of NASA real property by NASA and a non-NASA entity where NASA or NASA’s contractor provide services to the non-NASA entity without relinquishing control of the NASA asset or a portion thereof. Non-dedicated use or occupancy that occurs in conjunction with a partnership activity does not require a real estate agreement. For example, a partner company Apex is using NASA’s wind tunnel for three years. All work is being performed by NASA or NASA’s contractor. Apex uses ten offices during the term of the partnership. In this example, the wind tunnel use is not the subject of a real estate agreement but is rather a service that NASA would provide under a partnership agreement; the office space use does represent an occupancy where a real estate agreement is required (i.e., dedicated use).

6.9.2 If a partner contemplates the occupancy or dedicated use of real property, the Center Agreement Manager or NASA Partnership Office shall contact the RPAO/RECO to determine if a real estate agreement is required.

6.9.2.1 In accordance with Section 6.7.4.2, a NF1914, Real Property Use Justification Form will be required in the place of a business case.

6.9.2.2 In accordance with Section 6.7.4, the RECO shall execute the appropriate real estate agreement in coordination with the Center partnerships office to document the real estate use and/or assignment to the partner.

6.9.2.3 Any partnership agreement that involves the occupancy and dedicated use of real property and requires funding from other Federal agencies will require, in addition to the real estate agreement, the use of FS Form 7600 A/B¹⁶ and priced in accordance with NPR 9090.1B.

6.9.2.4 The signature authority established for partnership agreements does not apply to real estate agreements.

6.10 Post-Execution Real Estate Agreement Management

6.10.1 Execution of any real estate agreement incurs a regulatory and/or legal obligation to comply with the agreed upon terms and conditions by both parties. Additionally, the relationship between NASA and the grantee/lessee should be actively managed by both the RECO and the Center POC.

6.10.2 To support post-execution requirements, the RECO shall:

a. Conduct inspections to ensure compliance with the terms and conditions of the real estate agreement. (Instances of non-compliance may result in cure notices or further remedies as outlined in the agreement)

b. Ensure administrative changes are communicated as appropriate, e.g., changes in POCs or notification of important information.

c. Draft and execute amendments as required, in accordance with Section 6.5.4.

d. Process change modifications related to in-grants.

6.10.3 To support post-execution requirements, the Center POC shall:

a. Serve as liaison between Center Subject Matter Experts (SMEs) and coordinate with SMEs on activities relating to facility construction, safety, fire protection, environmental issues, etc.

b. Monitor grantee/lessee activities to ensure activities remain in scope of the purpose identified in the real estate agreement.

c. Manage service agreement(s) related to real estate agreements as applicable.

d. Conduct inspections to ensure compliance with the terms and conditions of the real estate agreement.

e. Provide status reports to the RECO on a regular, reoccurring basis.

f. Report all instances of non-compliance immediately to the RECO.

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